bulyanhulu gold mine ltd vs fortunatus john nzoih 2016 tzhc 2168 22 march 2016

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR COURT ZONE CENTRE AT SHINYANGA CONSOLIDATED REVISION APPLICATIONS NO. 12 OF 2016 BETWEEN BULYANHULU GOLD MINE LTD.................... ........... APPLICANT VERSUS FORTUNATUS JOHN NZOIH........................ ....RESPONDENT (CMA/SHY/148/2013} AND REVISION APPLICATION NO. 11 OF 2016 BETWEEN BULYANHULU GOLD MINE LTD................... .......... APPLICANT VERSUS EZEKIEL NYAKONGE BUGINGO................... ........ RESPONDENT (CMA/SHY/134/2013) and REVISION APPLICATION NO. 14 OF 2016 BETWEEN BULYANHULU GOLD MINE LTD.................... ........... APPLICANT VERSUS SAFARI MUSA........................................... ........ RESPONDENT fCMA /SHY/125/2013) REVISION APPLICATION NO. 15 OF 2016 BETWEEN BULYANHULU GOLD MINE LTD.................................. APPLICANT VERSUS MARTINE S. WAKATI............................................ RESPONDENT /CMA /SHY/139/2013) JUDGMENT 18/03/2016 & 22/03/2016 Mipawa, J. At the hearing of the application for Revision No. 12/2016 between Bulyanhulu Gold Mine Ltd. Versus Fortunatus John Nzoih, Mr. Sehewa Njamasi Advocate for the applicant prayed to this Court to consolidate that application with other applications which the applicant was a party and they were all on the same legal issue namely ill health, and the CMA Award was the same thus the same ground for revisions. w Si. % Mr. Dotto representative of the respondent Fortunatus John Nzoih concurred to that prayer apart from what was elaborated by Mr. Sehewa for consolidating the applications, he added that reason that he was also representing all the respondents hence they be consolidated. This Court went through the records, and granted that prayer that the applications be consolidated. The legal issue in all these applications for revision is on incapacity of the employees due to ill-health. The respondents were all employees of the applicant Bulyanhulu Gold Mine, and it is undisputed that at the time employment they were all of good health. Their employment contracts were terminated on the ground of ill health, hence filed their labour dispute to the CMA.1 At the CMA after both parties were heard and the CMA found that there was substantive reason for terminating the respondents,2 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. Sehewa Njamasi Advocate and the respondents were represented by Mr. Benjamin Dotto, a personal representative of the party's own choice.3 The applicant faulted the decision of the arbitrator of granting eight months salary only on procedural aspect of termination while there was a valid reason for termination. Mr. Sehewa argued that the law,4 permits the arbitrator to grant a fair compensation after making a finding of unfair termination and he may award less that twelve months salaries. He referred this Court to the cases of Ayubu Mbwana V. Security Group Ltd. Rev. No. 65/2009,5 Sodetra Ltd V. Ngeu Meza and 1 CMA refers to the Commission for Mediation and Arbitration established by section 12 of the Labour Institutions Act No. 7/2004. 2 Termination on the ground of ill-health. 3 A type of recognition recognized to this Court under section 56 (b) of the Labour Institutions Act No. 7/2004. 4 Section 40(1) of the Employment and Labour Relations Act No 6/2004. 5 Per Moshi, J. another Rev. No. 207 of 2008,6 on awarding appropriate compensation. That the discretion of the arbitrator in awarding a certain compensation must be exercised judiciously and consider the factors as per rule 32(5) of the Mediation and arbitration Guidelines/ putting into mind that the respondents were all sick and the employer had already incurred costs on medical treatments of the respondents and were being paid full salaries while on medical treatment hence it was not proper for the CMA to award eight months salaries to the respondents as the employer failed at a very lesser extent in procedure before terminating the respondents and already they were paid terminal benefits including insurance packages. Mr. Sehewa further argued that it is true that the employees were not consulted before termination only the trade union was consulted. And that the employer did not look for alternative jobs as per medical advice the respondents could not be offered any alternative job at the applicants' work place. He concluded that ordering the employer to pay eight months salaries while he had already paid the respondents was double jeopardy to the employer thus prayed to this Court to revise the award of the CMA. m - & »• In%response Mr. Dotto for the respondents submitted that the discretion of the arbitrator as governed by the law, namely GN. No. 67/2007 Rule 32 (2) (5) which explains factors to be considered by the arbitrator when granting compensation for unfair termination. 6 Per Rweyemamu, J. 7 GN No. 67/2007 On consultations Mr. Dotto submitted that the employees were not consulted before employment as per law requirements thus no even alternative jobs was sought for the respondents. He concluded that the Arbitrator was right to order compensation of eight months which money could continue to help them for treatment, and Insurance is a mandatory legal requirement and is paid to everyone even who want to quit the job. he prayed for the CMA award to be confirmed. In rejoinder Mr. Sehewa Advocate for the applicant submitted that the reasons for termination was valid , because the employer could not continue having employees who were not working despite the fact that the Medical Review Board had proposed for the respondents to be provided with alternative employment but on the material period there were no alternative employment. However even if there could have been any alternative employment the respondents could not do their jobs well as the employees were ill and could*no longer produce for the employer. ^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 caute/a [with extreme eyes of caution] this court is now called to perform her noble task of proclaiming the Judgment par excellence.8 8 Par excellence means with eminence. The decision of this Court in the present applications for revision is highly borrowed from the thinking and decisions of this Court in Consolidated Revision Application No. 3 Of 2016 in Bulyanhulu Gold Mine Ltd. Versus Mahboob Champion Illah;9 as well as consolidated Revision application No. 130/205 in Bulyanhulu Gold Mine Ltd Versus Dag Peter Mlekwa.10 The issue at hand is on ill-health whereas the contentious issue is on procedural aspect that the non adherence to the procedures was lesser in itself and that the arbitrator erred in granting the eight months salaries to the respondents on that aspect while the applicant employer had already paid the respondents during termination Before going into discussing on that issue and decided 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.11 The term Ill-health under the labour parlance:- ... is one o f the broad categories o f incapacity where ** an employee is incapable of doing work. Others are poor work performance, injury and incompatibility 9 Delivered on 22/03/2016, at 14:20hrs, Shinyanga Sub Registry, per Mipawa, J 10 Delivered on 22/03/2016, at 15:00 hrs Shinyanga Sub Registry ,per Mipawa, J. 11 See consolidated Revision application No. 78/2015 between Bulyanhulu Gold Mine Ltd Vs Babu Mamdali Meghji, HCLD At Shy (unreported),per Mipawa, J. which is considered to be the third type of incapacity.12 Ili-health or Injury connotes that the employee may be unable to perform his duties due to ill health or injury. Incapacity may result from a motor Vehicle accident deterioration in sight or hearingalcohol or drug abuse. Whether or not injury or ill health may warrant to termination of employment depends upon various factors like:- i. The nature of the business ii. The type of the job iii. The safety of co-workers or public at large iv. The circumstance of the employee...13 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 o f performance required by the employer in sm­ other words the employee is not capable o f doing the The law therefore,15 puts down factor which the employer must consider before terminating the ill-employee,16 to wit:- a) The cause of incapacity. 12 See the case of Revision No. 27/2012, Sandvick Mining Construction Vs Joseph Magesa Mlaponi, HCLD at Shy (unreported) per Mipawa, J. 13 op.cit note 12. 14 See rule 19 (11) of the Employment 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. 15 See rule 19 of the Employment and Labour Relations Act No. 42/2004 16 Termination of employment on ground of ill-health or injury b) The degree of incapacity. c) The temporary or permanent nature of the incapacity. d) The ability to accommodate the incapacity. e) The existence of any compensation or pension.17 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,18 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 Mine Ltd. Vs. Babu Mamdali Meghji,19 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 17 op. cit note 12, rule 19 (1) (a) (b) (c) (d) (e). 18 The same was Registered Medical Board 19 op.cit note 12,at page 14. decision to do so was fain The fairness or otherwise of the decision cannot be divorced from the process by which it was arrived a t It is through fair process that fair decision are generally reached...20 On the concept of alternative employments to be offered to the ill- employee, Marylyn Christianson,21 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] % r 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 injury acguired while at work and that the Medical Doctors satisfied on the same, therefore this Court confirms the substantive fairness of the termination of the applicant hence confirms the decision of the arbitrator on the issue. 20 op. cit note 17. Senior Lecturer at the Oliverschreiner School of Law, University of Witwatersrand South African 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 ft 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 workfConstitutional Riahti22. As rightly pointed out by Dr. Stella Vettori,23 in her Paper titled as ' The Role o f Human Dignity in the Assessment o f Fair Compensation for unfair Dismissal, that:- m-. ...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 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 22 See Article 22 of the Constitution of the United Republic of Tanzania, Cap 2 R.E 2002. 23 She is Professor of Law in the School of Business Leadership at the University of South Africa 24 Solatium means comfort or payment or compensation ordered by the court. 2Sop. cit note 12 at p 26 (quoted) hereby dismissed in toto and the arbitrator's decision of eight months salaries to the respondent is hereby confirmed. It is so ordered. JUDGE 22/03/2016 Appearance:- 1. Applicant: Mr. Gwakisa Gervas, Legal Officer 2. Respondent: Mr. Benjamin Dotto, Personal Representative of the parties and choice. Court: Judgment has been read to the parties present as showed in the appearance above. I.S JUDGE 22/03/2016