The Industrial Relations Court deputy chairperson Anthony Kapaswiche has granted an injunction to Salima Sugar Company Limited (SSCL) security manager, Osman Kapida, who was fired from the company.
Kapida, who was accused of negligent discharge of duties, incompetence and serious misconduct was fired by the company’s Chairperson Wester Kosamu in February this year.
However, through his lawyers Mbulo Attorneys, he dragged the company to court demanding damages for breach of constitutional right to unfair labour practices, damages for unlawful dismissal and an order of reinstatement, and applied for an injunction staying the disciplinary processes and the subsequent decision of SSCL dismissing him from employment pending the hearing and final determination of his substantive action herein.
Kapida challenged the mandate of Kosamu who is still working with the company despite the expiry of his term and demanded that the disciplinary processes against him be reversed arguing that his dismissal is null and void.
“The Applicant proceeded to state that upon noticing that at the material time there was no Board of Directors for Salima Sugar Company and no sitting Board of Directors for Green Belt Authority-the Respondent’s parent company which could legally empanel a subcommittee to preside over the disciplinary process, he wrote the Respondent on the 17th day of December 2024 through email questioning the validity, legality and propriety of his said pending disciplinary processes. Despite the inquiry, the Respondent proceeded with the disciplinary hearing which resulted in the Applicant’s dismissal. The dismissal letter was issued by the Executive Chairman/ Chief Executive Officer of the Respondent.
“The Applicant proceeded to state that the he believes that the disciplinary hearing and the subsequent dismissal are invalid and unlawful because the Executive Chairman, Chief Executive Officer acted without legal justification in dismissing the Applicant as his tenure at the Green Belt Authority expired on the 3rd day of August 2024. The Applicant contended that his dismissal is irregular and unlawful for having been made by an officer who was irregularly and unlawfully doubling as the Respondent’s Executive Chair and Chief Executive Officer.,” reads part of the ruling dated April 1 2025
However, Kosamu argued that Kapida was suspended on several allegations of misconduct and was called for a disciplinary hearing and a decision was made that he will be heard by a Committee of the Board.
“The respondent then changed their position after realising that the applicant was not recruited by the Board but rather by Management and for that reason, the Respondent saw no reason for the Applicant to be disciplined by the Board. However, no member of management took part in the Applicant’s disciplinary hearing committee as he was heard by a committee constituted by existing shareholders of the Respondent, which is a committee of the Board,” reads the rilung in part
Kosamu further argued that he was advised that where there is a gap in a board of an entity, the shareholders, and or ex officio members of the entity exercise powers to ensure continuity of operations
He argued that despite the allegations that he holds his office illegally, he is the one who confirmed the appointment of the Kapida hence the he should consider himself an illegitimate officer having been confirmed by a person whose tenure expired.
“It was further stated that the Secretary to the President and the Cabinet issued a public notice advising all parties to refer communications and dealings of the Respondent to the office of Executive Chairman which he holds hence he was vested with management authority,” reads the ruling
In granting the injunction, Kapaswiche wondered how the subcommittee of the Board, which handled the disciplinary hearing existed at the time when there was no board.
“Who would have the power to appoint a subcommittee of the Board when the Board does not exist in the first place? The Respondent in their letter dated 18th day of December 2024 to the Applicant stated that the committee that handled the disciplinary hearing of the Applicant was set up by Ex-Official Board members. The question that comes up immediately is as to whether in the absence of a Board there could be said to exist Ex-Official Board members who can competently discharge the duties of the Board,” reads the ruling
He said he decided to grant the stay order to avoid creating an awkward scenario where, if he is successful, it will be difficult to be reinstated if the position is filled with another person.
“The fact that the Applicant has raised triable issues in his claims poses a danger that if an interim order sought is not granted and he is successful on trial, he may be found in an awkward position where his position is filled by another person hence making it difficult for an order of reinstatement to be made.
“It is the view of this Court that the circumstances of the present case justify the grant of the urgent interim relief sought in this motion and I proceed to grant the Applicant the urgent interim relief that stays the disciplinary processes and the subsequent decision to dismiss the Applicant until the final determination of the substantive action herein,” he ordered
