bulyanhulu gold mine ltd vs dag peter mlekwa 2016 tzhc 2222 22 march 2016

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR COURT ZONE CENTRE AT SHINYANGA CONSOLIDATED REVISION APPLICATIONS NO. 130 OF 2015 BETWEEN BULYANHULU GOLD MINE LTD.................................. APPLICANT VERSUS DAG PETER MLEKWA.........................................I... RESPONDENT fCMA /SHY/118/2013) - AND Jt % REVISION APPLICATION.NO.^131 OF 2015 ^ *> $ BETWEEN % ' BULYANHULU GOLD MINE LTD..... ..... ...... ...... ...... APPLICANT VERSUS # VICENT MAGESA........... .f.......... ..................... ....RESPONDENT (CMA/SHY/114/2013) AND REVISION APPLICATION NO. 132 OF 2015 W• > % J! BETWEEN BULYANHULU GOLD MINE LTD........................... ...... APPLICANT % % VERSUS DEUS NGAIZA................................................... (CMA /SHY/112/2013) AND l REVISION APPLICATION NO. 133 OF 2015 BETWEEN BULYANHULU GOLD MINE LTD APPLICANT VERSUS LEORNARD JACOB CHILIMO RESPONDENT fCMAASHY/116/2013) AND REVISION APPLICATION NO. 134 OF 2015 BETWEEN BULYANHULU GOLD MINE LTD APPLICANT VERSUS ABAS JOSEPH PETRO RESPONDENT CCMA /SHY/149/2013) JUDGMENT 17/03/2016 & 22/03/2016 Mipawa, J. When, the application for Revision No. 130/2015 between Bulyanhulu Gojd Mine Ltd. Versus Dag Peter Mlekwa came for hearing,1 the parties' representatives called for this Court to consolidate the present applications for the revision of the CMA award parties, this Court granted that prayer. The legal issue in all these applications for revision is on Incapacity due to ill-health. 1 On 17/03/2016 in presence of the parties representatives. 2 The respondents were all employees of the applicant Bulyanhulu Gold Mine, and at the time employment with the applicant, the respondents were all of good health capable of producing for the applicant. Their employment contracts were terminated on the ground of ill health,2 hence filed their labour dispute to the CMA.3 At the CMA after both parties were heard the CMA found that there was substantive reason for terminating the respondents,4 but the procedures for termination were not fair hence granted eight months salaries to each employee. That decision of the CMA triggered the applicant employer Bulyanhulu Gold Mine hence the present applications. The hearing of the application before this Court was viva voce [with live voice] whereas the applicant Bulyanhulu Gold Mine was represented by Mr. Godfrey Kange Advocate from Galati Law Chambers (Advocate) and the respondents were represented by Mr. Benjamin Dotto, a personal representative of the party's own choice.5 % Submitting for^the applications Mr. Kange Advocate for the applicant argued that the respondents were all employees of the applicant employed at different times and they were terminated on ground of ill health which made them incapable of working. He further argued that the termination took place after the employer had made medical investigation (medical experts) per law,6 together with union representatives as per 2 Terminated on different dates. 3 CMA refers to the Commission for Mediation and Arbitration established by section 12 of the Labour Institutions Act No. 7/2004. 4 Termination on the ground of ill-health. 5 A type of recognition recognized to this Court under section 56 (b) of the Labour Institutions Act No. 7/2004. 6 As per rule 19 of Governm ent Notice No 42/2007 3 exhibit D1 and the ought come of the meeting was communicated to the respondents. He insisted that there was valid reason for terminating the respondent as per medical report and it was proved that there was no alternative job to be offered to the respondents depending on the nature of business of the applicant. Mr. Kange Advocate further argued that on termination the respondents were paid compensation including insurance package at different rates. He therefore faulted the decision of the CMA, of granting eight months salaries to the respondents on procedural aspect while the procedures were followed and the respondents had been already paid thus prayed for this Court to set aside the CMA award. In response Mr. Dotto for the respondents argued that the law permits the arbitrator to award appropriate award after making the finding #7 of unfair termination,7 hence the arbitrator was right to grant eight months salaries to the respondents. On the issue of terminal benefits Mr. Dotto argued that the investigation done was to see whether the respondents were unable to continue working due to ill health or not. And that Medical opinion is not automatic reason to terminate the respondents. There was no any meeting conveyed for alternative job. Only one Peter Mlekwa a driver was given light work for a short time. 7 He referred this Court to section 40 (1) (c) of the Employment and Labour Relations Act No. 6/2004. He argued further that the Medical Board did not sit again before the termination took place as when the respondents arrived from Muhimbili National Hospital it's when they were terminated. The employer did not comply with the law requirement to wit rule 19 and 21 of the Code.8 On the issue of terminal benefits Mr. Dotto submitted that being paid insurance package does not bar the respondents to be paid their terminal benefits as the same can be paid even to the employee who is still at work, he referred this Court to the case Geita Gold Mine Vs. Jumanne Bayasabe, on the same issue. ■*?>. He concluded that there was no valid reason for termination and even if it could be there, the procedures were not followed per law. In rejoinder Mr. Kange Advocate argued that alternative employment depends with the nature of activities at the work place (Bulyanhulu Gold Mine) which involves blasting and other activities, and the employer^looked into the fact whether the employee could find alternative employment on such activities. He further argued that it is not true that the respondents were served with ^termination letters upon arrival at work premises from treatment. They were not terminated abruptly, there were consultative meetings prior to termination see exhibit Dl. 88 Employment and Labour Relations Code of Good Practice Governm ent Notice No. 42/2007. 9 Revision No. 225/2008 {unreported} HCLD, before Rweyemamu, J. On the issue of pension the respondents could have filed revision application to claim the same rather that claiming for the same now. He insisted that it was wrong to award 8 months compensation because procedure was followed and were already paid over and above. Mr. Kange therefore prayed that the CMA award be revised. After hearing the parties and going through the records cover to cover regard being had to the issue involved in these labour disputes in ex-abundant cautela [with extreme eye of caution] this court is now called to perform her noble task of proclaiming the Judgment par excellence.10 The decision of this Court in the present applications for revision is highly borrowed from the thinking and decision of this Court in Consolidated Revision Application No. 3 Of 2016 in Bulyanhulu Gold Mine Ltd. Versus Mahboob Champion Illah.11 The issue at hand is on ill-health whereas the contentious issue is greatly on procedural aspect that the arbitrator erred in granting the eight months salaries' to the respondents while the applicant employer had already paid therruduring termination. Before going into discussing on that issue and decide on the same thereto, this Court finds it plausible to revisit the concept of ill health and thus see to it that there was valid reason for terminating the respondents despite the factor that it has ceaselessly spoken on the same.12 10 Par excellence means with eminence. 11 Delivered on 22/03/2016 at Shy, per Mipawa, J. 12 See consolidated Revision application No. 78/2015 between Bulyanhulu Gold Mine Ltd. Vs. Babu Mamdali Meghji, HCLD At Shy (unreported),per Mipawa, J. The term Ill-health under the labour parlance:- ... Is one of the broad categories of incapacity where an employee is incapable of doing work. Others are poor work performance, injury and incompatibility which is considered to be the third type of incapacity...13 Ill-health or Injury connotes that he employee may beunable to perform his duties due to ill health or injury. Incapacity "may resultfrom a motor vehicle accident deterioration in sight or hearing, alcohol or drug abuse. Whether or not injury or ill health may warrant to termination of employment depends upon various factors like:- i. The nature o f the business //. The type o f the job Hi. The safety o f co- workers or public at large iv. The circumstance o f the employee...14 Whereas:- & ...Incapacity implies that unrelated to any intention or & & negligent conduct or performance by the employee in the "work place the employee is not able to meet the standards * 'v ' of performance required by the employer in other words the employee is not capable of doing the work...15 13 See the case of Revision No. 27/2012, Sandvick Mining Construction Vs. Joseph Magesa Mlaponi, HCLD at Shy (unreported) per Mipawa, J. 14 op.cit note 12. 15 See rule 19 (11) of the Em ployment and Labour Relations Act No. 42/2004, also quoted in consolidated Revision No. 78/20015 between Bulyanhulu Gold Mine Ltd. versus Babu Mamdali Meghji, HCLD at Shy (unreported) delivered on 23/11/2015 before Mipawa, J. 7 The law therefore,16 puts down factors which the employer must consider before terminating the ill-employee,17 to wit:- a) The cause o f incapacity. b) The degree o f incapacity. c) The temporary or permanent nature o f the incapacity. d) The ability to accommodate the incapacity. e) The existence o f any compensation or pension.18 For the case at hand, it is clear as ruled out by the arbitrator after going through the report of the applicant's Medical Review Board,19 that the respondents could not continue being employed by the applicant after they had confronted injury (permanent incapacity) arising from their employment and that the employer terminated the employment of the respondents after being guided by the opinion of the Registered Medical Doctors. The ill-employee after being found to be permanently incapacitated means that can-not be productive to the employer. This Court Borrowing the reasoning and decision of the Labour Appeal Court of South ^Africa, in The case of National Union of Mine Workers and % Another Vs. Libanon Gold Mining Co Ltd. (1994), in her decision Consolidated Revision No. 78/2015 between Bulyanhulu Gold See rule 19 of the Em ployment and Labour Relations Act No. 42/2004 17 Termination of em ploym ent on ground of ill-health or injury 18 op. cit note 12, rule 19 (1) (a) (b) (c) (d) (e). 19 The same was Registered Medical Board Mine Ltd. Vs. Babu Mamdali Meghji,20 made it clearly that:- ... While an employer may not be obliged to retain an employee who is not productive; fairness requires that a proper assessment is made...observance of a fair process is fundamental to the question whether its decision to do so was fair. The fairness or otherwise of the decision cannot be divorced from the process by which it was arrived at. It is through fair process that fair decisions are generally reached...21 On the concept of alternative employments to be offered to the ill- employee, Marylyn Christianson,22 in the Article titled Dismissal for Incapacity, in the Book titled The South African Law of Unfair Dismissal, the other Authors Pax Le Roux and Andre Van Niekerk (1994) suggests that:- ...It is for the employer to show that the possibility of alternative employment was at least considered. Where there is available it should be offered. Clearly the employer is^not obliged to create employment for the incompetent worker [or a worker incapable of doing work due to ill health..emphasis mine]... From that" above this Court is of the view and decision that the arbitrator's finding that the respondents could not proceed with the employment with the applicant was rightly underscored and that their iniury was acquired while at work and that the Medical Doctors satisfied on the same, therefore this Court confirms the substantive fairness of 20 op.cit note 12,at page 14. 21 op. cit note 17. Senior Lecturer at the Oliverschreiner School of Law, University of W itwatersrand South African the termination of the applicant hence confirms the decision of the arbitrator on the issue and the submission by Mr. Dotto representative of the respondents fails. On the issue of procedural fairness this Court confirms the finding of the arbitrator as after the Medical Report (investigation) that the applicants were incapable of working, no alternative work was sought, no efforts were made to seek for reasonable accommodation of the employee. The arbitrator was correct in holding that the procedures for terminating the respondents were not fair and it is the holding of this Court that the grant of eight months salaries to the permanently incapacitated employees in the present applications who can no more be effectively productive was a righteous and appropriate decision in the circumstance at hand regard being had that the employees had lost their right to work,(constitution riqhO,and it is evident that due to the incapacity of the respondents acquired from the course of their employment their capacity to earn their daily bread has been greatly maimed hence deserve a solatium . As rightly pointed out bb Dr Stella Vettori,23 in her Paper titled as xThe Role o f Human Dignity in the Assessment o f F a ffCompensation for unfair Dismissal, that:- * ...Generally the monetary compensation is perceived to be a solatium/4. This is especially the case of procedural unfair dismissal, As such it may be necessary to prove any loss or infringement of a right...25 ^ She is Professor of Law in the School of Business Leadership at the University of South Africa ^ Solatium means com fort or payment or compensation ordered by the court. op cit note 12 at p 26 (quoted) 10 In the present case going carefully through the CMA records and the reasoning of the arbitrator this Court finds no reason to interfere with the decision and finding of the arbitrator as the arbitrator exercised judiciously his discretion hence the present applications for revisions are hereby dismissed in toto. It is so ordered. U JUDGE 22/03/2016 Appearance:- 1. Applicant: Mr. Gwakisa Gervas, Legal Officer 2. Respondent: Mr. Benjamin Dotto, Personal Representative Court: Judgment is read over and explained to both parties today the 22nd day of March, 2016. I-S JUDGE 22/03/2016 li