When Oliver Kabalisa’s young daughter fell seriously ill, the nurse faced a painful choice familiar to what many working parents face.
Should she stay home and nurse her, or should she report to work and leave her sick daughter in the hands of other people?
Kabalisa stayed away from work, and this cost her her job.
Ironically, Kabalisa worked as a nurse at Nakasero Hospital in Kampala.
She joined the private hospital as a registered nurse on July 1, 2013. In May 2017, she became a dialysis nurse, taking on supervisory and management responsibilities within the dialysis unit.
Trouble started in July 2019 when Kabalisa was accused of staying away from work without authorisation for more than five days.
Hospital managers alleged that she failed to report for duty between July 22 and July 26, 2019, and again between July 29 and August 2, 2019.
The hospital also accused her of gross negligence, endangering patients’ lives and fraudulent conduct.
Kabalisa denied the accusations. She said she had been forced to attend to her daughter, who had been hospitalised with severe malaria and pneumonia at another health facility. Kabalisa also argued that some of the days in question had already been approved for her studies at Aga Khan University.
She said she informed her supervisors about her family emergency and believed her absence was justified.
However, on August 15, 2019, Nakasero Hospital summarily dismissed her for gross misconduct.
Feeling wronged, Kabalisa filed a labour complaint with the Industrial Court in 2021.
Her lawyer Stella Okumu of OSH Advocates told the court that her client’s dismissal was a sham and violated the constitutional right to a fair hearing.
She told the court that the hospital had failed to prove that Kabalisa had absconded from work.
According to the lawyer, the nurse’s absences were explained by her daughter’s medical emergency and approved study programme.
Okumu also said the hospital gave Kabalisa insufficient notice before the disciplinary hearing and that the panel was biased.
Nakasero Hospital used the legal services of James Zeere of S&L Advocates, who argued that Kabalisa’s unauthorised absence amounted to gross misconduct under the hospital’s code of conduct and justified summary dismissal.
Zeere maintained that the hospital genuinely believed Kabalisa had committed misconduct and had therefore acted within the law.
He further argued that she had been notified of the disciplinary hearing through WhatsApp before formal service of documents.
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Justice Anthony Wabwire Musana closely examined how the disciplinary process was conducted. Evidence showed that the invitation letter for the disciplinary hearing was sent to Kabalisa through WhatsApp on August 12, 2019.
She formally acknowledged receiving the notice on August 14, 2019, and the hearing took place the following morning, August 15.
Justice Musana said while technological developments had made electronic communication an accepted means of delivering important notices, the hospital did not give Kabalisa enough time to prepare her defence.
He said giving Kabalisa only three days from the WhatsApp notification and effectively one day after formal acknowledgement was inadequate.
As a result, the disciplinary process failed the legal test of procedural fairness.
But that was only half the story.
Justice Musana then examined whether Kabalisa had actually committed the misconduct she was accused of, and on this, he sided largely with the hospital.
He established Kabalisa had indeed received approval to attend classes on Mondays and Tuesdays while pursuing studies at Aga Khan University. He said this explained some of her absences.
However, Justice Musana discovered significant gaps in her explanation for several other days she missed work.
He noted that although she claimed to have informed supervisors and delegated duties, she failed to provide convincing evidence to support those claims.
Justice Musana observed that some medical documents Kabalisa relied on to prove that her daughter had been ill contained contradictions that weakened her case.
As a result, he concluded that Nakasero Hospital had successfully proved the allegation of unauthorised absence.
He ultimately ruled that Kabalisa’s absenteeism amounted to a fundamental breach of trust between her and the hospital and that the disciplinary committee was substantively justified in recommending her summary dismissal.
This created an unusual legal outcome.
While the court said the dismissal was justified in substance because Kabalisa had committed misconduct, the same court said her sacking was still unlawful because the disciplinary process violated her right to adequate preparation time.
In the end, Justice Musana declared that Kabalisa had been “unlawfully and unfairly dismissed” by Nakasero Hospital.
Kabalisa had asked for Shs 150 million in general damages and Shs 50 million in aggravated and exemplary damages, but Justice Musana said labour law could not be used to reward an employee whose own misconduct had contributed to the mess.
“It is an unassailable canon of labour justice that an employee cannot enrich themselves from their own misconduct,” he said.
He also found no evidence that Nakasero Hospital acted maliciously or in a high-handed manner.
In the end, Kabalisa was awarded only Shs 1.6 million, equivalent to four weeks’ wages, as compensation for the procedural defect.
That was all!
