abdulrazak jabilly nabibakshi vs sea sweet royale confectionery ltd 2021 tzhcld 225 29 june 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 771 OF 2019 BETWEEN ABDULRAZAKI JABILLY NABIBAKSHI.................. APPLICANT VERSUS SEE SWEET ROYALE CONFECTIONERY LTD......... RESPONDENT JUDGMENT Date of Last Order: 10/06/2021 Date of Judgment: 29/06/2021 Z. G. Muruke, J. Aggrieved by the award of the Commission of Mediation and Arbitration (herein to be referred as CMA) in the Labour Dispute No. CMA/DSM/TEM/303/2018/122/18, dated 21st September, 2019 which was in favour of the respondent, the applicant herein has filed this application for revision challenging the award raising following legal issues: % i. Whether the arbitrator erred in law and fact by holding that the applicant failed to prove that he was terminated. ii. Whether the arbitrator erred in law and fact by not taking evidence in its totality iii. Whether the arbitrator erred in law and fact by holding that the compliant was prematurely filed. 1 iv. Whether the arbitrator was biased by accepting the fact that there was disciplinary hearing by denying the fact that the applicant was terminated. v. Whether the arbitrator erred in law by issuing an award beyond 30 days limit without giving reasons for such delay. The application was supported by the applicant's affidavit. The counter affidavit of Jokha Abdallah was filed to challenge the application. Hearing was by way of written submission. The applicant was represented by Advocate David Andindilile whereas, the respondent was represented by Willington Theobard. In his submission, the applicant's counsel prayed to abandon the issue number five (v) and continue to argue on the remaining issues. On the consolidated issues no i, ii and iii, counsel submitted that, after the applicant reported back from sick leave, he was charged with abscondment. He was given oral notice to attend disciplinary hearing on 4th April, 2018, in which, after he gave his explanation concerning his absence he was exonerated from the same. Later, transport manager came up with an offence of car destruction and told the applicant to wait for the boss's decision he was thus suspended. He waited for the outcome of the disciplinary hearing, until 21st April, 2018, when informed by the Human Resource Manager to write a letter for the job application. After he queried why write a letter, while he is still an employee, the applicant was notified that it was the employer's decision and failure to comply with the same, he will lose his employment. 2 For seventeen (17) days the applicant was not served with the disciplinary meeting outcome. That was contrary to 13(4) of Employment and Labour Relations Act (Code of Good Conduct) GN.42/2007 and Guideline 4(9) of the Guidelines for Disciplinary, Incapacity and Incompatibility and policy Procedure of GN 42/2007. As regard to issue no.(iv) Mr. Andindilile submitted that, the arbitrator was bias as she held that there is no dispute that there was disciplinary hearing by relying only to the respondent's evidence. The arbitrator could have used the said evidence as to why the hearing outcome was not issued for seventeen days until she decided to be on the respondent's side as reflected at page 4 of the award that 'pengine mwajiri alikuwa kimya kwasababu aliamua kumsamehe'. If that was the case, then, why didn't he allow the applicant to continue with work without any condition? The applicant has proved on balance of probability that, he was terminated, therefore he prayed for the application be granted. In response, respondent's counsel contended that, the award based on the evidence adduced by the applicant. He failed to prove that he was terminated by the respondent. The applicant testified that after the disciplinary hearing he was told to wait for the employer to decide, hence the matter was not concluded. Therefore the applicant's complaint was prematurely filed, referring the case of CRJ Construction Co. Ltd v. Maneno Ndalije & Another, Rev.No.205/2015. In addition it was submitted for the respondent that, the applicant has failed to prove that 3 the respondent ordered him not to resume his work, rather he has to apply for job application. As regard to the (iv) issue, the respondent's representative submitted that, it was the applicant's fault not to be issued with the outcome of the meeting as he did not show up at the office, until he appeared with the CMA's summons. The respondent never terminated applicant. He thus prayed for dismissal of the application. Having considered the rival submissions and records, the issues for determinations are; i. Whether the applicant was terminated by the applicant. ii. Whether termination was both substantively and procedurally fair iii. Relief of the parties. On the first issue, the applicant alleged that he was terminated by the respondent, having informed by Human Resource Manager, through a text message that, he cannot resume his job position, but he has to submit fresh job application while waiting for the employer's decision concerning his employment status. The same was rebutted by the respondent's representative arguing that the applicant was not terminated as the respondent was yet to issue his decision after the recommendations of the disciplinary committee. It was the applicant who absented himself. According to the records the applicant was charged and attended the disciplinary hearing conducted on 4th April, 2018. It is also undoubted 4 that till the date of referring the dispute before CMA the employer's decision was yet to be issued. I have gone through records and noted that, in CMA Fl used to initiate the proceedings before CMA, the applicant's claim is compensation for being unfairly terminated both substantively and procedurally. On records, I did not came across any evidence showing that the applicant was terminated. The applicant has not even tendered the evidence to justify his allegation that Human Resource Manager informed him through a text message that, he cannot resume his position, he rather had to submit another job application. If he could have proved the same, then the position would have been different, that he was impliedly terminated by being told to apply for a new job, while he was still the respondent's employee. It is the principal of evidence law that, one who allege must prove. The same is provided under Section 110(1) and, 111 of Cap. 6, the Law of Evidence Act. 'Section 110 (1) whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists. Section 111. The burden of proof in a suit proceedings, lies on that person who would fail if no evidence at all were given on either side.' In the circumstances of this matter, the applicant failed to justify his claim that he was terminated by the respondent. As it was found by arbitrator, the dispute was prematurely filed before CMA. On that regard, I find no reason to interfere the CMA's ruling, I thus uphold the same. 5 Application for revision is dismissed for want of merits. Z.G. Muruke. JUDGE 25/06/2021 6