amina ramadhani vs staywell apartment ltd 2018 tzhcld 18 13 april 2018

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REV. NO. 461 OF 2016 BETWEEN AMINA RAMADHANI ....................................................APPLICANT VERSUS STAYWELL APARTMENT LIMITED........................... RESPONDENT JUDGMENT Date of Last Order 15/03/2018 Date of Judgment 13/04/2018 NYERERE. J. The applicant/ AMINA RAMADANI file the present application seeking revision of the award of the Commission for Mediation and Arbitration which was delivered by Hon.P.MChuwa on 14/09/2016 in favour of the applicant. Briefly; December, 2018 applicant was employed as a cleaner by respondent, both agreed on terms of employment and signed employment contract, which remained in respondent's custody. However on 9/10/2012 applicant was terminated from employment for misconduct; that she absconded from work. But applicant alleges being terminated from her employment without probable cause and without being heard contrary to Rule 13(3) GN No.42/2007. At the CMA three issues were agreed by the parties for determination namely; (1)What where the employment terms between complainant and respondent (2) Whether complainant salary was inconformity with the minimum wage requirement (3) Whether the termination of the complainant employment was substantively and procedurally fair. (4) What reliefs are entitled to both parties? Arbitrator in deliberating on the raised issues adjudged that applicant's termination of employment was substantively and procedurally fair; thus awarding complainant one month salary in lie of notice. Such decision aggrieved complainant who filed the present application in this court faulting arbitrator's decision on seven grounds articulated under paragraph 14 of the supported affidavit for easy of reference I court them in verbatim; a) That, the Honorable learned Arbitrator erred in law and in fact in failing to evaluate evidence on record and erred further by failing to give reasons for her decision. b) That the Arbitrator improperly ruled that the reasons for termination of the applicant employment were valid. c) That the Arbitrator improperly ruled that the procedure before termination of the applicant's employment were observed as required by law. d) That the Arbitrator improperly ruled that the applicant's termination was fair. e) That the Arbitrator improperly misconducted herself by failing to fault the respondent's decision to terminate the applicant's employment without determining the seriousness of the alleged misconduct in the light of the nature of the applicant's job and the circumstances in which it occurred. f) That the honourable Learned Arbitrator generally misconducted herself in dismissing the applicant's dispute in spite of the evidence or record in support of the applicant's case. g) That, the Honorable learned Arbitrator erred in law and fact in not finding that the applicant's complaint was meritorious and that he 3 was entitled to the reliefs prayed for in the CMA Form No.l read together with open statement. At the hearing in this court both parties were represented by advocates Mr. Elisaria Mosha Elisaria for applicant and Mr. Gilbert Mushi for respondent. Mr. Elisaria Mosha Counsel for applicant abandoned grounds (a) (d) (e) and (f) but consolidated the remaining grounds. He proceeded to argue in regard to procedural irregularity, and submitted that DW1 admitted to have conducted investigation against the applicant on page 17 of CMA proceedings. However DW1 failed to reveal the commencement and ending of the said investigation when he was cross examined and that Rule 13(1) of GN 42/2007 and Rule 13(2) of GN 42/207 was never complied with he further added that Rule 13(3) requires not less than 48 hrs for a complainant to make her defense. He went on to argue that DW1 at page 22 of the CMA proceedings while Cross -examined he admit his failure to prove end of suspension for purpose of getting investigation regarding the allegation of abscondment contrary to Rule 13(1)(2) and (3) of GN. 42/2007 to support his argument he cited case Labour Revision No. 35/2009 between KNIGHT SUPPORT (T) LTD VS CHRISERINUS CAROL where the court emphasized on the importance of conducting investigation. It is the contention of Applicant Counsel that employer have failed to prove existence of investigation and existence of notice to attend disciplinary hearing as the burden of proving fairness of the termination lies with the employer also keeping the records of employment. Also the employer failed tender the outcome of the Disciplinary hearing to show whether it was ever conducted or not. Therefore the Hon. Arbitrator acted with material irregularity by addressing the dates and time for the conduct of the disciplinary hearing while there was no exhibit that was tendered by the employer. Counsel for the applicant proceeded on the issue of DW1 being the only witness called to prove the fairness of the termination that under item 11-17 of CMA proceedings , DW1 admits to allow the applicant to take 28 days leave however he did not tell the date and the month even the year. That at page 17 of CMA proceedings DW1 states and admit the applicant returned back to employment from leave after 12 to 13 days however the Arbitrator's award at page 8 paragraphs 6 stated that the applicant failed to report after 17 days. 5 Counsel for applicant went on to argue that there are contradictions, on arbitrator's part on the conclusion that there was proof of misconduct by applicant. That this court will find there was unfair termination in procedure and substance. In rebuttal Mr. Gilbert Mushi learned Counsel for respondent on responding to the issue of procedural irregularity argued that Rule 13 of GN 42/2007 covers the requirements to be followed when the employer wishes to terminate employee. He argued what needs to be answered by this honourable court is whether the procedure laid down by Rule 13 of GN. 42/2007 are mandatory requirements and should be use as checklist, citing Labour Revision No. 10/2012 between FAUSTINE NANGALE VS SHIRECU at page 11 it was held that by quoting the Ruling of the Court of Appeal in the case of VICTOR BUSHIRI & 133 OTHERS VS. AMI(T) LTD Civil Application No. 64/2000 (unreported) where Kisanga (JA) (as he then was) held that: "This court has said in a number of occasion that the use of the word shall in a provision does not always make the provision mandatory. Whether the use of that word has such effect will depend on the circumstance of each case". Counsel for respondent went on to argue that Section 38 of the Employment and Labour Relations Act set out the procedures to be 6 followed when the employer in the process of terminating the employees on the ground of retrenchment as it is in the Rule 13 of GN 42/2007 where the word shall is also used in this Section 38 of Employment and Labour Relations Act. However, he submitted that in the case of METAL PRODUCTS LTD VS MOHAMED MWERANGI &7 OTHERS. Revision No. 148/2008 at page 10, 2nd paragraph Madam Rweyemamu, J. (as she then was) pointed out that the various stages itemized under Section 38 are not meant to be applied in a check list fashion. To strengthen his argument he also cited the case of RHODA LEMA & ANOTHER VS MS SUMARI GROUPS OF COMPANY LTD where by Hon. Wambura held on the issue of retrenchment and insisted that there is no need to follow all the items in Section 38 of Employment and Labour Relations Act. That is to say the procedure laid down under Rule 13 GN 42/2007 are not to be followed as checklist fashion, that the employer may depart from those procedures depending on the circumstances of each case. Counsel for respondent further argued that it is not disputed that the dispute between applicant/respondent originated when applicant was on leave, applicant did not return to work when her leave expired, what is disputed is applicant right to defend herself and the minutes of the disciplinary hearing was not submitted at CMA. 7 On submitting in regard to procedure for terminating applicant; counsel for respondent was of the view that the applicant was availed right and opportunity to be heard but she denied appearing before disciplinary hearing committee which led to the hearing to be conducted in her absence. Furthermore Counsel for respondent submitting in regard to the reasons for terminating respondent, he concurred with the Counsel for the applicant argument that the employer has a duty to prove the termination was fair as per Section 39 of Employment and Labour Relations A c t ; and on balance of probabilities under Rule 9(3) of GN 42/2007. And added that the applicant when asked to account for the seventeen days (17) which she was absent from work, she produced receipt from hospital; Mwananyamala Regional hospital, however she failed to state whether she was excused from duty to attend hospital. Counsel for respondent contended that the applicant was absent from work without permission and without acceptable reasons, thus employer had a valid reason to terminate her. On responding to Counsel for applicant contention that, the arbitrator improperly conducted herself, the award does not reflect the proceedings. Counsel submitted that this is a new reason or ground, is submitted at the hearing stage therefore should not be considered. Concluding his submission Counsel for respondent made it clear to the court that the applicant had been suspended on 19th September, 2012 and she was asked to bring her evidence on 22nd September, 2012 while her suspension ended on 22nd September, 2012. In rejoinder Mr. Elisaria Mosha Counsel for Applicant reiterate his submission in Chief, and went on to submit that the burden of proof lied to the employer to prove that the applicant was heard at the disciplinary hearing committee or applicant defaulted appearance. Further Counsel for Applicant argued that the evidence of DW1 has no proof to support what was decided by the arbitrator. After carefully examined the Commission for Mediation and Arbitration proceedings, submission by parties, Affidavit and Counter affidavit, and applicable labour laws; First, I find it prudent to address the issue of the conduct of the arbitrator and the award not reflecting the proceedings. The law provides under R. 27(3) of the Labour Institutions (Mediation and Arbitration Guidelines) G.N. No. 67/2007, what an award should contain: (a) Details of the parties (b) The issue or issues in dispute (c) Back ground information ( i.e information admitted between the parties; (d) Summary of the parties evidence and arguments; (e) The reason for the decisions; and (f) The orders (the precise outcome of the arbitration). Observing the CMA proceedings and the award, it reflect the spirit of law affording both parties with opportunity to prove or adduce evidence on claims which were presented in form no. 1. I find that there are no material irregularities in the award and the arbitrator himself. Now, Whether or not Arbitrator's finding that applicant's termination was substantively unfair is justifiable in law. Under the Employment and Labour Relations Act, No. 6 of 2004, all employment contracts must be terminated fairly. Termination is interpreted to include all situations itemized under Section 36 (a) and (b) thereof. Unfair termination is defined under Section 37(2) of the ELRA as follows: "(1) It shall be unlawful for an employer to terminate the employment of an employee unfairly (2) A termination of employment by an employer is unfair if the employer fails to prove- (a) That the reasons for termination is valid; 10 (b) That the reason is a fair reason- (i) Related to the employee's conduct, capacity or compatibility; or (ii) Based on the operational requirements of the employer, and (c) That the employment was terminated in accordance with a fair procedure" That is to say, an employment contract of an indefinite period cannot be terminated without fault. The position of our law is similar to the position under the ILO Convention on Termination of Employment 158 of 1982. Article 4 thereof provides that: "The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on operational requirements of the undertaking, establishment or service". In the present case applicant was terminated for absenteeism; absconding from work from 28/08/2012 to 19/09/2012. Exhibit A-2 "barua ya kusudio kusitisha ajira yako kwa utoro kazini" was on 19/09/2012, the letter also directs applicant to bring forward her defense on 22/09/2012; and suspending applicant on the same letter. It is further in evidence that applicant was absent from work from 28/08/2012 to 19/09/2012 Exhibit "D-3" barua ya utoro mkubwa kazini. And that applicant brought Exhibit A -l sick sheet; issued on 28 August 2012 by Mwananyamala hospital, as evidence of her ailment. However its unclear of applicant's whereabouts from 29/08/2012 to 19/09/2012 when she was suspended. In addition to that Exhibit a-l (Sick-Sheet) issued on 28/08/2012 did not excused Applicant from duty. Therefore from what I gathered on the records it is the applicant who was to substantiate her absence from work in view of Sections 110 and 111 of the Law of Evidence Act, Cap. 6 R.E. 2002 which state inter alia: 110. 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 those facts exist. 111. The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side. It is the finding of this court that the applicant did not establish her reasons for absent from work from 29/08/2012 to 19/09/2012. Therefore absenteeism stands here as a valid reason to terminate the applicant as the applicant was failed to provide sufficient evidence. 12 Thus in determining whether Arbitrator was justified in deciding that applicants termination was substantively fair on grounds of absence from work for more than five days without permission I am compelled to observe the position of; GN 42/2007 Item 9 of the Employment and Labour Relations (Code of Good Practice) offences which may constitute serious misconduct and leading termination. (i) "absence from work without permission or without acceptable reasons for more than five working days". From the above provision of law, I am of the decision that; the Arbitrator was correct in holding that respondent had valid reason to terminate the applicant from employment for absconding work without permission of her employer. Secondly, whether or not Arbitrator's decision that respondent termination was procedurally unfair is justifiable in law; It observed at page 9 of the CMA award that I quote: "barua ili mtaka mlalamikaji kujitetea iliandikwa tarehe 19/9/2012 na alisimamishwa kazi na kutakiwa apelike utetezi wake tarehe 22/9/2012. Mlalamikaji anakiri kuwa hakuandika utetezi kwa sababu tayari alishasimamishwa kazi hivyo hakuona umuhimu wa kuandika maelekezo. 13 Hivyo aliachishwa kazi tarehe 9/10/2012 kwa utoro mkubwa kazini". I subscribe on the above paragraph that, respondent did not conduct Disciplinary Hearing; there is evidence to support his argument that applicant failed to appear in the disciplinary committee thus proceeded in the absence. Rule 9 (3) Employment and Labour Relations (Code of Good Practice) GN. 42/2007, which reads that: ...the burden of proof lies with the employer but it is sufficient for the employer to prove the reason on balance of probabilities.... Consequently respondent also failed to comply with the rule of natural justice by not affording the applicant the right to be heard. This court in the case of Abbas Sherally and Another V. Abdul Sultan Haji Mohamed Fazal boy Civil Application No. 33 of 2002 (unreported) observed that; "the right of a party to be heard before adverse action or decision is taken against such a party has been stated and emphasized by the Courts in numerous decisions. That right is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be breach of principles of natural justice." In the circumstances the Arbitrator's decision that applicant termination was procedurally fair is hereby quashed as it is unjustifiable under the law. Therefore applicant is entitled to 12 months compensation under Section 40 (1) (c) as termination is adjudged unfair on procedural grounds only. Hence the application succeeds to the extend stated above. It so ordered. A.C. Nyerere JUDGE 13/ 04/2018 15