camel oil t ltd vs othman hatibu kafeni and 6 others 2022 tzhcld 948 23 september 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 230 OF 2021 (Arising from the decision of the Commission for Mediation and Arbitration at Temeke in Labour Dispute CMA/D8M/TEM/83/2020/48/2020) BETWEEN CAMEL OIL (T) LTD ........... APPLICANT VERSUS OTHMAN HATIBU KAFENI AND 6 OTHERS ............................ RESPONDENT JUDGEMENT S.M, MAGHIMBI, J: The application beforehand was lodged under the provisions of Section 91(1), 91(l)(a) 91(2)(a), 91(2)(c) 91(4)(a) and S.94 (l)(b)(i) of the Employment and Labour Relations Act Cap. 366 R.E. 2019 ("the ELRA"), Rule 24(1), 24(2)(a), (b), (c), (d), (e), (f) and 24(3)(a), (b), (c) (d), 24(11) Rule 28(l)(a), (b), (c), (d) and (e) of The Labour Court Rules GN. No. 106 of 2007 ("the LCR"). In both his Notice of Application and the Chamber Summons, the Applicant is applying for orders in the following terms:- i. That this Honourable court be pleased to revise and set aside the whole award of the Commission for Mediation and Arbitration i ("CMA") dated 30th April, 2021 delivered by Hon. Amos, H, Arbitrator in labour dispute No. CMA/DSM/TEM/83/2020/48/2020. ii. Any other relief(s) as this Hon. Court may deem fit and just to grant. The application was supported by an affidavit of Mr. Mohamed Mussa Rehani, Principal Officer of the applicant dated 10th June, 2021. Before this court, the applicant was represented by Mr. Hassan Juma Zingiza, learned advocate while the respondent was represented by Mr. Matoyo Ngabo, learned advocate. The dispute at hand emanates from employment relationship between the parties herein whereby the respondent was employed by the applicant as Pump attendant on different dates. The respondents alleged to have been orally terminated by the applicant on 04/02/2020. Aggrieved by the alleged termination, the respondents referred the matter to the CMA claiming for unfair termination where they prayed for a relief of reinstatement. After considering the evidence of the parties, the CMA found that the respondents were unfairly terminated from employment hence, they were each awarded 12 months' salaries as compensation for the alleged unfair termination. Being dissatisfied by the CMA's decision, the applicant filed the present application on the following grounds:- 2 i. That, the Hon. Arbitrator erred in law and facts by holding that, the respondents had contract with the applicant. ii. That, the Hon. Arbitrator erred in law and facts by declaring that, the respondents were terminated by the applicant. iii. That, the Hon. Arbitrator appeared to have acted in the exercise of her jurisdiction illegally or with material irregularity. The application was disposed by way of written submissions. In his submission in support of the application, Mr. Zungiza withdrew the first ground. As for the second ground, he submitted that the respondents were not terminated from employment rather they were suspended. That even at the CMA, the respondents' witness (PW1) testified that the respondents were terminated on 28/09/2019, the date when the respondents were arrested and arraigned to the police station for theft allegations. He submitted that in the CMA Form No. 1, the respondents indicated that they were terminated on 04/02/2020 the fact which shows that they failed to prove their termination hence, they filed their complaint prematurely. Turning to the third ground, Mr. Zungiza submitted that pursuant to Rule 5(2)(3) of the Labour Institution (Mediation and Arbitration) Rules, G.N No. 64 of 2007 the respondents' witness (PW1) was only 3 mandated by the respondents to institute the CMA proceedings and sign the documents on their behalf but not to testify on their behalf as he did. He argued that in this case, the respondents did not testify at the CMA hence, renders the CMA proceedings void. Mr. Zungiza went on to submit that the Arbitrator acted ultra vires by declaring the award in favour of all respondents without taking their evidence. He further submitted that the Arbitrator acted illegally by arbitrating the dispute which was filed through incomplete form. He stated that the respondents did not properly fill part B (3) of the CMA Form No. 1 because they did not indicate the reason for their termination, an omission which invalidates the whole CMA proceedings and award. In the upshot the advocate urged the court to allow the application and grant prayers sought therein. Responding to the second ground Mr. Ngabo submitted that the applicant failed to prove that he had valid reason and he followed procedures in terminating the respondents. That the Arbitrator properly found that the respondents were unfairly terminated from employment. He added that the respondents were properly awarded pursuant to section 40(1) of the ELRA. 4 Regarding the last ground Mr. Ngabo's response was contrary to what was submitted by Mr. Zungiza. He insisted that the award was properly procured by the respondents. Mr. Ngabo submitted that the applicant failed to prove the reason for termination and adherence to the procedures for termination. He therefore urged the court to dismiss the application. Having considered the rival submissions the parties, Court's records and the evidence adduced during arbitration, I find that the main issues in controversy are whether the respondents' witness (PW1) had mandate to testify on behalf of other respondents, whether the respondents were terminated from employment and if so, if the termination was far both procedurally and substantively. I will then determine what reliefs are the parties entitled to. Starting with the first issue as to whether PW1 had mandate to testify on behalf of others, going through the records, it is noted that PW1 was only mandated by the respondents to represent them in accordance with Rule 5(2), (3) of the G.N 64 of 2007. The relevant provision provides as fbllows:- "Rule 5(2) Where the proceedings are jointly instituted or opposed by more than one employee, documents may be 5 signed by an employee who is mandated by the other employees to do so. (3) Subject to sub rule (2) a list in writing, of the employees who have mandated a particular employee to sign o their behalf, must be attached to the document. The list must be signed by the employees whose name appear on it." As rightly argued by Mr. Zungiza, the provision above empowers the representative to sign on behalf of others only and not to testify on their behalf. In the matter at hand the record shows that PW1 testified on behalf of all respondents. The question to be addressed is whether all respondents were supposed to defend their case? A similar circumstance has been addressed by the Court of Appeal in the case of Security Group Tanzania Ltd vs Samson Yakobo & Others (Civil Appeal 76 of 2016) [2020] TZCA 6 (16 January 2020). "In this case however, unlike in a situation where each person has an individual ciaim to prove, the respondents had a common ciaim and in such a situation, evidence need not be adduced by all of them. Their complaint was against the appellant's breach of the law in terminating them. It will be 6 sufficient if the compiained of breach is proved by the evidence of some of them." In the light of the above decision, similarly, in the matter at hand all respondents had similar claim that they were unfairly terminated on the same date from the same alleged misconduct and they were paid the same salary. Even the manner in which PW1 testified, he proved the claim of all respondents therefore, under such circumstances, it was sufficient for PW1 to testify on behalf of other respondents as he did. TTius, such ground lacks merit. Turning to the second issue as to whether the respondents were terminated from employment, firstly it should be noted that in any proceedings concerning unfair termination of an employee, it is the duty of the employer to prove that the termination fair, this is pursuant to section 39 of the ELRA. In the matter at hand, the applicant submitted that the respondents were not terminated rather they were suspended from employment. The applicants contention is not supported by any evidence in record. No proof of suspension and even the alleged date and length of suspension is unknown to this court. On his testimony on the other hand, PW1 testified that the respondents were arrested on 29/09/2019 and remanded at police station for three days. After being 7 bailed out, they went to report back to work where they were orally suspended from work. Aggrieved by the oral suspension they continued to report at work until 04/02/2020 when they were orally terminated. On their part, much as the applicant is disputing the respondents' evidence, they did not tender any evidence to counter the same. As stated earlier, if it is true that the respondents were suspended from employment as the applicant would wish this court to believe, evidence should have been tendered to prove the same. In absence of any proof, the applicant's contention stands as mere words from the bar and more weight is awarded in favour of the respondents. On that note, under the circumstances of this case, I join hands with the Arbitrator's findings that the respondents were unfairly terminated from employment. Coming to the last issue as to parties' reliefs, since it is found that the respondents were unfairly terminated from employment as it is found by the CMA, this application has no merits as there is no justification to vary or interfere with the findings of the CMA. Consequently, the application is hereby dismissed. Dated at Dar es Salaam this 23rd day of September, 2022. 8