20140618 TZHC Mbeya

1-64 IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT MBEYA LABOUR REVISION NO.65 OF 2013 BARCLAYS BANK TANZANIA LIMITED............. APPLICANT VERSUS. KOMBO ALLY SINGANO............................ RESPONDENT JUDGEMENT 1110612014 & 1810612014 Aboud,] The application is made under section 91(1)(a) and (2) (a) (b) and 94()(b)(i) of the Employment and Labour Relation Act, No.6 of;2004, Rule 24(1),(2)(3) (11) and 28(1)(a),(b),(c),(d), (e) and (2) of the Labour Court Rules G.N No. 106 of 2007. The applicant calls upon this court to call for the record and revise the proceeding and set aside the award of the Commission for llBarclays Bank Tanzania Limited VsKomho Ally Singano Mediation and Arbitration (CMA), in the CMA/MBY/131/2010 at Mbeya dated 11/03/2011. The brief facts led to this application are; on 07/01/2008 the respondent was employed by the applicant as retail bank manager, his service of employment came to an end on 03/09/20 10 for the reasons that the respondent failed to adhere to the procedures set by the applicant in deositing cash at BOT. Following such termination the respondent referred the matter to the CMA where he succeeded and CMA awarded him Tsh 87,887,200/= be the remedy for unfair termination. Dissatisfied with the CMA award the applicant filed this revision. During the hearing parties were represented, the applicant was represented by of Mr. Tazan, learned counsel while Mr. Akyoo, learned counsel represented the respondent Arguing the application Mr. Tazan submitted that the complaint flIei at the CMA was time bared hence the arbitrator had no jurisdiction to entertain it He said it is apparent from the award at page 1 that the dispute referred at the CMA on 4/10/2010 and termination occurred on 03/09/2010, so the complaint was filed two days after expiration of the time prescribed in law, that is to Rule 10(1) of the Labour Institution 2 1 Barclays Bank Tanzania Limited Vs Kombo Ally S i n g a n o 45-- '. (Mediation and Arbitration) Rules GN 64 of 2007 which required the dispute for unfair termination be filled within 30 days from the date of termination. Secondly the applicant counsel submitted that the arbitrtor failed to evaluate the evidence adduced before him as the law required the employer to prove that termination wasdue to valid reasons and followed a proper procedure. Hesaid the evidence on record reveals that the respondent was charged for failure to follow procedures set by the applicant in carried out his duties which caused loss of Tsh 1,239,000/= and damaged company reputation. He further submitted that among the reasons which may justify termination is conduct of the employee this is C9(4) provided under Rule (a) of the Employment and Labour Relations (Code of 'Goád Practice) GN 42 of 2007. Therefore respondent's' failUre to adhere to the BOT circular would have led to cancellation 'of license of the applicant, he supported his argument with the case of G4 Security Service (T) Ltd vs. Peter Mwakipesile, Revision No. 109 of 2011. 17 It is the submission of Mr. Tazan that the applicant followed a fair procedure while terminating the respondent as investigation was dully conducted and the respondent was asked to produce 31 Barclays Bank Tanzania Limited Vs Kombo Ally Singano 10 complaint in time because 02/10/2010 was Saturday and on 03/10/2010 was Sunday, therefore according to Rule 3(1) of the GN 64 of 2007 weekends are excluded to file the complaint at the CMA. He submitted that Rule 4(1) of GN 64 of 2007 exclude the first day includes the last day to file or refer a complaint so all that considered the 30th day and will be on 05/10/2010 Hence the complaint was properly referred at CMA.<:7*/ 3 - In regard to the second ground Mr Akyoo, learned counsel submitted that there was no sufficient investigation conducted to trace the lost moneys which js contrary to rule 13(5) of the GN 42 of 2007 Also he said the respondent cannot count all the monies as was not supplied with enough facility like counting machines. As to the third ground he submitted that the disciplinary committee was composed by only two person that is a Human Rsoure Manager (HR Manager) and Manager whom their deasion was biased as the HR Manager represented the employer and he was a member. On the ground that the respondent complained at the CMA only on procedural issue and not substantive. Mr. Akyoo said it is not correct as CMA F.1 clearly reflected reasons for termination. 5lBarclays Batik Tanzania Limited Vs Kombo Ally Singan Starting with the first issue, whether the complaint was referred at the CMA out of time it is cursory glace clear under Rule 10 of the Labour Institution (Mediation and Arbitration) Rules GN 64 of 2007 that I quote; "Dispute about the fairness of an employee's termination of employment must be referred to the commission 'within thirt days from the date of termination or the date that the employer made a final decision to terminate, or uphold the decision to terminate" The records show that the respondent was terminated on 03/09/2010 and on 08/09/2010 the respondent appealed against the decision of the disciplinary committee. On 21/09/2010 the applicant acknowledge receipt of the appeal letter and the hearing was scheduled tO be conducted on 27/09/2010, but for the reasons not d,icIôsed to the court the appeal was not conducted then the respondent decided to refer his complaint to the CMAçn'04/I0/2010. Therefore in my view time started to run against the respondent from 27/09/2010 when the applicant failéd•.t'6 conduct the appeal this is because the respondent exhausted the internal disciplinary settlement mechanism before he referred his complaint to CMA. however assuming the time started to run from the termination date, 03/09/2010 to 71 Barclays Bank Tanzania Limited Vs Kombo Ally Singano 04/10/2010, the court fully agreed with the respondent counsel that the first day and weekend is excluded in counting the days pursuant to Rule 4(1) and (2) of the Labour Institutions (Mediation and Arbitration) Rules, GN 64 of 2007 which provide that, - "4(1) for the purpose of calculating any period of time in terms of these Rules, the first day shall be excluded and lust day shall be included. çL -4 \- 4(2) the last day of any period must be excluded if it falls on a Saturday, Sunday or public holiday" In our instant case the last dayought to be on 02/10/2010. I took my time to go throug'hthe2010 calendar and found that on 02/10/2010 was Saturday and 03/10/2010, therefore on the basis of the provision dted above those days are excluded in computing time limit of 30 days. That be the case I agreed with counsel 4for th'e espondent that the complaint was properly referred tthë CMA the ground found unmerited. As to the second issue whether the termination was substantively and procedurally fair, the record and submission by the applicant shows the respondent was terminated for failure to comply with the applicant regulation as a retail manager the act which caused a loss of monies and damaged the applicant 8 1 Barclays Bank Tanzania Limited Vs Kombo - Ally Singano . reputation. But the respondent explained on his testimony that the working environment of the applicant did not support detail counting of money as required by the applicant because as there was no enough staff, strong room, counting machines and enough safe to store volume of money he received from other branches Then the respondent opted bulk counting for the safety of the applicant. The record shows that he notified the applicant several times of the working environment However on 20th July 2010 the Regional Operation Manager inspected the working place and found it is was true that' the working environment was not such conducive for the detail counting of money where the CDC was shifted from Mbeya - Express branch to Mbeya Main -- 1 branch which has enough facilities to such effect. The records shows that the alleged loss monies occurred on April 2010 when the working environment was not conducive for detail counting so it is clearthat the respondent act was fully contributed by the applicá'nt and holding the respondent liable is unfair. Hence I find the reasons for the respondent termination were unjustifiable As to procedural fairness of the respondent termination, Section 37 (2) (c) of the Employment and Labour Relation Act, No. 6 of 2004 provide that a termination of employment by an 9 1 Barclays Bank Tanzania Limited Vs Kombo Ally Singano employer is unfair if the employer fails to prove that the employment was terminated in accordance with a fair procedure. Also Rule 13 of the Employment and Labour Relation (Code of Good Practice) GN 42 of 2007 provide very clear the procedure for termination of employment First and forerpost tus Rule requires the employer to conduct an investigafion to ascertain whether there are grounds to conduct disciplinary hearing. Rule 13(1) of theGN.42 of 2007, says; "The employer shail conduct.. an= investigation to ascertain whether there are grounds for a hearing to be held." And where the hearing is to be conducted, the employer shall notify the employee of the allegations using a form and language that the employee can reasonably understand; this is clearly provided under Rule 13(2) of the GN 42 of 2007 More so after investigation the law under Rule 13 (5) of the GN 42 of 2007 provides that, / ' Evidence in support of the allegation against the employee shaii be presented at the hearing, the employee shall be given a proper opportunity at the hearing to respond to the allegations, question any witness called by the empioyer and to call witness if necessary." lOiBarclays Bank Tanzania Limited Vs Kombo Ally Singanq. Also Article 7 of the Termination of Employment Convention (ILO) No. 158 of 1984 provide for the fair procedure before the termination of an employee, the article provide;- 'The employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before he is provided an opportunity to defend himself 'against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity." After a through perusal of the submissions, CMA record and this court record and considering .what I have gathered in line with the legal requirement .-for procedural fairness principle in termination of employment, I have this to say, that it is crystal clear the disciplinary hearing committee of the applicant violated the provision of section 37(2) (1) of the Employment and Labour Relation Act, and Rule 13 (5) of GN.42 of 2007 which forms the basis for fair disiplinary hearing in my view. On the record I find inv estigatioWas conducted by the director, the respondent was fully informed of the allegation but there is no report which was tabled during the hearing at the disciplinary committee level to prove that the investigation was conducted. The respondent claimed that there were no investigation conducted and absence of such proof is violation of the law which renders the whole lllBarclays Bank Tanzania Limited Vs Kombo Ally 5ingan process illegal. This is the position of this court in the case of Fredrick Mizambwa v. Tanzania Ports Authority, Revision No. 220 of 2013 HC Labour Division at Dar es Salaam (Unreported) I As to the last issue whether the award was properly procured the law that is Section 40 of the Employment and Labour Relation Act, No. 6 of 2004 provide 'clearly the remedy once the termination of employment adjudgd unfair among others be order for reinstaternent,• re-engagement or compensation and other entitlements W. includes, allowances, overtime, leave, notice, seyerance pay, gratuity and others depending on parties agreement which is provided under section 43 of the Act. HoweVer it is at the discretion of a Judge or Arbitrator to give award that is considered just and fair depending on circumstance of each case, though is restricted to comply by what is,,oraré indicated in CMA Fl as was decided in the case of Power Roads (T) LTD vs. Haji Omari Ngomero, Revision NO 36 of 2007, where, Hon. Mandia, J (as he then was) held that; there is no provision in the Employment and Labour Reiation Act, or in the Labour Institution Act, particularly section 20 on powers of Mediators and Arbitrators allowing 121 Barclays Bank Tanzania Limited Vs Kombo Ally Singano Mediators and Arbitrators to make changes suo moto, on what appears on the referral form. The additions made by the arbitrator are therefore illegal and set aside...." In our instant case the respondent in his CMA Fl prayed the following remedies that is reinstatement without loss of salaries or compensation pursuant to Section 40(1) (c) of the Act, leave, severance pay, repatriation allowance and other remedies the court deemed just to grant The arbitratoç 'awarded 40 months compensation which means the arbitrator exercised his discretionary powers vested to him by law. However, this court found that the arbitrator anticipated the future events of the respondent and awarded 40months which was just speculation as the arbitrator did not justify why he decided to award that amount after he refused to award the amount Tshs 711,886,320/= on the basis that was mere speculation I • t therefore' revised the award of 40 months to read 12 months compenipn..1his court also found the respondent is entitled to bé:paid 1: 5°?o house allowance from the date of termination to the date'of this order be one of his entitlement provided in his employment contract, leave, notice, and severance pay. As to the repatriation allowance there is no evidence provided on place of 131 Barclays Bank Tanzania Limited Vs Kombo Ally Singa recruitment therefore the court found difficult to grant such prayer. In the result the application if found to have no merit and is hereby dismissed save for the award revised as indicate herein / above. It is so ordered. I. D.ABOIJD JUDGE) 18/06/2014 141 Barclays Bank Tanzania Limited Vs Kombo Ally Singan 16 Date: 18/06/2014 Coram: Hon. I.D.Aboud / Judge Applicant: Absent - = 1•. For Applicant: Respondent: Present For Respondent: C/C Subira Order: Judgement delivered on 18/6/2014 in presence of the respondent in persOn andthe applicant is absent. H I.DUABOUD JUDGE 18/06/2014 (Yau O1) 15Barcays Bank Tanzania Limited Vs Kombo Ally Singano