airtel t plc vs richard nyarugenda others 2020 tzhcld 70 30 april 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 24 OF 2019 AIRTEL (T) PLC........................................................ APPLICANT VERSUS RICHARD NYARUGENDA AND 15 OTHERS..............RESPONDENT JUDGMENT Date of last Order: 20/04 /2020 Date of Judgment: 30/04/2020 Z, G. Muruke, 3 The applicant AIRTEL TANZANIA PLC , being resentful with the award of Commission for Mediation and Arbitration [herein after to be referred to as CMA], on labour dispute No.CMA78/DSM/KIN/R.961/17 delivered On 28th December,2018 by Hon. Belinda, S, Arbitrator, in favour of the respondent, the applicant filed the present application seeking revision of the award. Application is supported by affidavit of the applicant's legal counsel Gladys Fimbari. In opposition, respondent filed counter affidavit sworn/affirmed by the respondents themselves. The case was disposed by way of written submission. I thank both parties for adhering to the schedule hence this judgment. The applicant was served by advocates from IMMA advocates, while the respondents enjoyed the service of advocate Sosten Mbedule. The brief background of the matter is that, the respondent was employed by the applicant on various dates and positions. They worked with the applicant until July, 2017 when they were terminated on operational requirement of the business based on the applicant's economic and structural needs. The parties signed an agreement for retrenchment. The respondents were unsatisfied with the retrenchment hence referred the matter before CMA claiming to have unfairly terminated. Submitting on the application, the applicant consolidated grounds (a and d) and submitted that the reason for retrenchment based on the applicant's economic and structural needs which is valid reason as per section 37 (2) (b) (ii) of the Employment and Labour relations Act Cap 366 RE 2019 (herein to be referred as Cap 366). The parties agreed on retrenchment as per exhibit D7 which was admitted before CMA and the reason for the same being restructuring of the applicant's operations. In preamble and clause 467.1 and 2 of the said agreement, the respondents admit to had being informed and consulted on the restructuring process and the impending retrenchment hence the procedure were adhered as required under Rule 23(4) of the Employment and Labour Relation (Code of good practice), GN 42(herein to be referred as the Code).The agreement was valid as it was made by free consent of the parties competent to contract, for a lawful consideration and with lawful object are contracts 2 unless declared otherwise referring Section 10 of the Law of Contract Act, Cap 345. The allegation that there was undue influence was neither among the issues framed to be determined before CMA nor proved by the respondents, hence the arbitrator erred in disregarding the contracts and decide basing on undue influence. On consolidated grounds (d and e) the Applicants Counsel contended that, the issue of validity of the contract was not determined by the CMA. The arbitrator at page 43 of the award stated that DW1 failed to produce evidence that those who signed the agreement on behalf of the applicant, were legally authorized to do so on behalf of the applicant. The agreement was executed by authorized person as per Section 38 of the Companies Act, Cap 212. Therefore the one who allege has to prove as the applicant accepted to be bound by the agreement entered on its behalf. The arbitrator disregarded the applicant's evidence without adducing any reason thereof contrary to Rule 27(3),( e) of the Labour Institutions (mediation and Arbitration) guidelines,2007. On ground (b), the applicant Counsel submitted that, the law recognizes economic and structural change as one of the valid reasons for termination of employment. The arbitrator admitted the same at page 35 of the award. Exhibits Dl, D4, D6, and D7 proved that the reasons were explained to the respondents, however the arbitrator found it insufficient to prove the existence of a valid reason for retrenchment. The applicant proved the same as per section 61 of the Evidence Act. Therefore it was wrong for the arbitrator to disregard the applicant's evidence and decide that the termination was unfair. Regarding ground (c), the arbitrator disregarded the applicant's evidence regarding the procedure followed prior retrenchment. All the retrenchment procedures were adhered. The consultation process took about a month which was sufficient for the parties to deliberate and reach consensus as seen through the agreement executed by the respondents. On grounds (d) and (h) the applicant averred that the arbitrator awarded the respondents compensation of 24 months basing on the fact that, all the respondents were unemployed while there was no any proof regarding the same. The award was contrary to Section 40(1) (c) of Cap 366. 12 months compensation is the amount mention by the law, referring the case of International Medical & Technological University V Eliwangu Ngowi, Rev. 54 of 2008. The applicant Counsel stated that arbitrator erred in law and fact by falling to consider that the termination was substantively and procedurally fair. Responding to the grounds of revision, the respondents counsel stated by raising a Preliminary Objection on two grounds namely: i. The notice of application is defective as it is contrary to Rule 24 (2) (f) of the Labour Court Rules GN 106/2007 ii. The affidavit is improperly verified contrary to Order VI Rule 15(2) of the Civil Procedure Code Cap 33 RE 2019. Then the respondent's counsel submitted that the termination of the respondents by the applicant was both substantively and procedurally unfair because there was no justification and the procedure were not adhered, referring Section 38 of Cap 366 and Rules 24-25 of the Code. He added that the first question to ask is when the applicant contemplated retrenchment, and when notice was issued? From exhibit D5 email dated 24th July 2017 shows that, the respondents were terminated since 19th July, 2017 and the effective date was 21st July ,2017, referring page 43 of the typed proceedings. There was no room for consultation and the letters for termination do not provide for a reason for such termination. There was no enough time for consultation as the same was just information as the decision was already made, consultation was not aimed to minimize retrenchment referring the case of Visser v Sanlam (2001) 22IU666 as quoted in the case of Omary Ally Dodo v Tanzania Company Limited, Rev No. 322/2013. On validity of the agreement, the respondent counsel stated that the agreement lacks the applicant seal, not signed by the applicant's principal officer duly authorized to sign he documents, also no proof that those who signed were duly authorized to do so on behalf of the applicant, referring the case of Tanzania a Fish Processors Limited v Christopher Luhanyula, Civil appeal No. 21/2010 CAT,(unreported). Again the respondent counsel argued that the company was not running under loss, the reason for retrenchment was restructuring but failed to produce the old and new organization structure to prove reason for termination. 5 The arbitrator's award was just and fair considering the respondents' right to work and lack of valid reason for termination. He referred Section 40 of Cap 366 and the case of Victoria Galinoma and Another v Balto Tanzania Ltd. He further added that the contract is not binding as the applicant did not sign and even his name is not indicated in the attestation clause. The applicant being a legal entity had a duty to properly sign the same as per exhibit D9, seal or stamp for authentication/legalizing. It is contrary to section 10 of the law of contract. In rejoinder the applicant submitted that Preliminary Objection raised by the respondent was withdrawn by the respondent during trial on 29th May, 2019. Thus the respondents are estopped from raising the same. The applicant reiterated what had been submitted in submission in chief. He further added that, the law did not provided for time for consultation, it provided for the purpose of consultation under Rule 23(4) of the Code. Michael Mnyabebe was on suspension and he was notified of the consultation on 20th July 2017, was consulted on 25th July, 2017 that resulted to an agreement yielded, he agreed to have read and sign the contract. The case of Tanzania Fish Processors Limited is distinguished in the circumstances of this case as in that case the issue was the identity of Mr. TFP which is not an issue in this case. Having gone through the rival submissions of the parties, I find that this court is called upon to determine the following issues:- 1. Whether the preliminary objection has merit. 2. Whether or not the respondents had a valid reason for retrenching the applicant. 3. Whether or not the procedures for retrenchment wee adhered to by the respondents. 4. The reliefs which parties are entitled to. Addressing the 1st issues, from records the respondent counsel had raised Preliminary objections on the following points: I. The notice of application is defective as the same is contrary to rule 24(2) (f) of the Labour Court Rules, GN No. 106 of 2007. II. The affidavit is incurable defective, as it is improperly verified contrary to Order VI Rule 15 (2) of the Civil Procedure Code, Cap.33 R.E 2002. On the 1st ground of objections, the respondents counsel argued that, It is a mandatory requirement that a list and attachment that are material and relevant to the application shall be contained in the notice, however the application herein failed to comply with this mandatory procedure. On the 2nd ground of objection, Mr. Mbedule submitted that ,the applicant had failed to properly verify paragraphs 3 (i, ii, iii, iv) and 15 (a, b, c, d, e, f, g, h, k, and i) of the affidavit in support of the application. The sub paragraphs were not included in the verification clause contrary to O VI Rule 15(2) of the Civil Procedure Code R.E 2019. The applicant counsel in his rejoinder, abandoned the objection by stating that the same were abandoned by the respondent on 29th May, 2019. 7 I have cautiously gone through the proceedings and the grounds of Preliminary Objection said to be abandoned. I have noted that the objections prevailing under Notice of Preliminary Objection dated 14th February ,2019 are quite different from the current points of Objections. Therefore the applicant negligently decided not to take into consideration of the same. The applicant denied the right to argue on the preliminary objection. Addressing on the grounds of objections it is true that the notice of application shall be accompanied by a list and attachment of the documents that are material and relevant to the application. Applicant application did not comply with the mandatory requirement, hence the objection is sustained. Again, from the applicant's affidavit in support of the application, subparagraphs three and fifteen were not verified, hence defective verification clause. Therefore the application is incompetent for being accompanied by the defective affidavit as stated by the respondent's counsel. In the case of ANATOL PETER RWEBANGIRA Vs. THE PRINCIPAL SECRETARY, MINISTRY OF DEFENCE AND NATIONAL, THE HON. ATTORNEY GENERAL, Civil Application No. 548/04 OF 2018, CAT, it was stated that; the court was not properly moved as the notice of motion was supported with a defective affidavit on account of defective verification clause. Having found that the application is supported by an defective affidavit, court is not properly moved. Taking consideration that the applicant had contentious issue to be discussed in the intended revision, for the interest of justice I hereby strike out the application with leave to file proper application for revision within 30 days from today. Ordered accordingly. JUDGE 30/04/2020 Judgment delivered in the presence of Aireen Ludhoke for the applicant and Sosteness Mbedule for the respondents. Z.G. Muruke JUDGE 30/04/2020 9