BULYANHULU GOLD MINES LIMITED VS. PASCHARY ANDREW STANNY CIVIL APPEAL NO. 281 OF 2021.

Abstract

i) In any proceedings concerning unfair termination of an employee by an employer, the employer shall prove that the termination is fair." The above section, comes out clearly that where there are allegations of unfair termination, the burden of proof that the termination complained of was fair, lies on the employer, and that is why, in Labour disputes it is the employer who starts to give evidence, though, a respondent, unlike in other civil matters and even criminal cases, where a party initiating the proceedings starts to adduceevidence and then a party sued comes next. ii) An employer who is considering to terminate an employee on grounds of ill health or injury shall take into account the following factors to determine the fairness of the reason in the circumstances (a) The cause of the incapacity; (b) The degree of the incapacity; (c) The temporary or permanent nature of the incapacity; (d) The ability to accommodate the incapacity; (s) The existence of any compensation or pension. iii) the appellant failed to discharge the burden of proof placed on her by section 39 of the ELRA, of proving that the reason for terminating the respondent was valid. We therefore find no substantiated valid reason, for termination of the respondent if the basis was ill health. Hence, we find no merit in the 5th ground of appeal and we accordingly dismissed.