absa bank tanzania limited formerly barclays bank tanzania vs beatrice malecha 2022 tzhcld 246 20 may 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM LABOUR REVISION NO. 40 OF 2021 BETWEEN ABSA BANK TANZANIA LIMITED (formerly, BARCLAYS BANK TANZANIA................... ...............................APPLICANT VERSUS BEATRICE MALECHA............. ..............................................RESPONDENT (From the Ruling of Commission for Mediation & Arbitration of DSM at Ilala) Dated 18th December 2020 in Labour Dispute No. CMA/DSM/ILA/R.539/17/655 JUDGEMENT 12th May 2022 & 20th May 2022 K. T. R, MTEULE, J. This Revision application arises from the award delivered by Hon. William, L. Arbitrator dated 18th day of December 2020 in Labour Dispute No. CMA/DSM/ILA/R.539/17/655. The Application is instituted by employer (the Applicant) against her employee (the Respondent). The Applicant herein is praying for the following orders of the Court: - 1. That this Honorable Court be pleased to call for, examine and revise proceedings, decision and orders by the Commission for Mediation and Arbitration, Dar es salaam Zone in respect of Labour Dispute No. CMA/DSM/ILA/R.539/17/655. 2. Any other reliefs that the Court may deem just and equitable to grant. A historical background of this application is traced from CMA record, affidavit and counter affidavit filed by the parties. The Respondent was employed by the Applicant as a Collection Officer under permanent contract from 01st November 2016. On 5th April 2017 while under probation, the Respondent's service was terminated after being accused with misconduct where he was charged with an offence of gross dishonesty. Aggrieved by the decision, the Respondent filed the matter to the Commission. At CMA the matter was decided against the Applicant which triggered this application. Along with the Chamber summons, the applicant filed an affidavit sworn by Frank Milanzi, applicant's Principal Officer, in which after expounding the chronological events leading to this application as already stated above, the Applicant alleged that, the Respondent was lawfully terminated after committing an offence of gross misconduct contrary to the Collection Code of Conduct and breach of trust. The application was challenged through a counter affidavit sworn by the applicant. The deponent in the counter affidavit vehemently and strongly disputed applicants allegation regarding lawfully termination. The application was disposed of by a way of written Submissions. The Applicant was represented by Ms. Hamisa Nkya, Advocate, whereas the Respondent was represented by Mr. Mwanakombo Chaponda, Advocate. I appreciate their rival submissions which will be considered in drafting this Ruling. Having gone through the parties' submissions and their sworn statements together with the record of the CMA, I am inclined to address two issues. The first issue is whether the applicant has adduced sufficient grounds for this Court to revise the CMA award and secondly, to what reliefs are parties are entitled? In addressing the first issue, I will start with the question as to whether the Respondent's termination was on valid and fair reason. The Applicant's counsel averred that the Respondent was lawfully terminated after committing an offence of gross misconduct contrary to the Collection Code of Conduct and breach of trust. On the other hand, the Respondent averred that the applicant failed to prove by evidence whether the act of the respondent of receiving money from the customer via her mobile phone amounted to an offence. In addressing the question posed I find it wise to direct myself to the CMA record including respondent's employment contract (Exhibit DI). The record reveals that the Applicant was employed on 17th October 2016 till 05th April 2017. In determining the fairness of the labour practices used in terminating the Respondent's employment I have noted from the record that the Respondent was terminated within her probation period as evidenced by Exhibit DI (employment contract) and Exhibit D9 (notice of termination). It is apparent that as per Exhibit D9 (notice of termination) the respondent was terminated when she was under probation. In Mwaitenda Ahobokile Michael v. Interchick Co. Ltd., Labour Revision No. 30 of 2010, High Court of Tanzania, at Dar es Salaam (unreported) it was held "This Court has firm view that the purpose of probationary period is to provide the parties with an opportunity to test one another and to find whether they can continue working with each other for a long period in healthy employment relationship," 4 From the above authority, termination during the probation is a right of the employer which can be exercised upon dissatisfaction with the employee's conduct and performance. Further it is on record that the Respondent was terminated after being accused of misconduct (breach of trust) where she was alleged to have accepted customer's money via her phone number and use it for her personal gains contrary to the Collection Code of Conduct (see Exhibit D6 - respondent's reply to show cause letter). Although in the CMA the Respondent disputed to have committed any misconduct, I have gone through the evidence adduced there in and I am satisfied that there was sufficient evidence to proof such misconduct. The evidence includes Exhibit D15 where the Respondent herein acknowledged to have received the customer's monies via her mobile phone and use the said money to solve her personal issues. The act of the employee to use the collected money for her person gains, basing on the nature of applicant's business as a Financial Institution which needs trust and integrity, I am of the view that the respondent had a duty to inform her employer regarding loans collection before acting contrary to employer's policy so as to maintain healthily employment relationship capable of being confirmed after probation. The Respondent's act of hiding information relating to loans collection and use the collected money for personal gain, is a behavior uncalled for which amounts to gross dishonest. In my view, the alleged misconduct was a good cause for the applicant to terminate the Respondent's employment as per Rule 12 (3) of the Employment and Labour Relations (Code of Good Practices) GN. No. 42 of 2007. Therefore, there was a fair reason for termination. In such circumstance I differ with arbitrator findings that termination was not a proper sanction to be imposed to the respondent. Regarding reliefs, Section 35 of the Labour Employment and Relations Act Cap 366 of the RE 2019 excludes employees with a duration of less than six months in sen/ice from enjoying the remedies available under Sub Part E of the Act which cover unfair termination. The respondent in this application is barred to enjoy remedies for unfair termination as claimed in CMA Form No. 1 on the ground the issue of procedure is not disputed in this application, and it already found that the reason for termination was fair. Having I found that there were fair labour practices in terminating applicants employment with fair reasons I find nothing to award to the Respondent. On that basis this Court finds that the application filed by the applicant has merit, therefore I allow the application. The CMA award is hereby quashed and set aside. Each party to the suit to take care of their own cost. It is so ordered. Dated at Dar es Salaam this 20th day of May, 2022. KATARINA REVOCATI MTEULE JUDGE 20/5/2022 7