20140618 TZHC Mbeya

fe IN THE HIGH COURT OF TANZANIA (LABOUR DIVISION) AT MBEYA REVISION NO. 550F2013 TEOFILO KISANM UNIVERSITY ti \ VERSUS ) FROLA DAVID KIWALA KA (AD MI N ISTRATRIX 17 \ -: -\. 11 •/ I: OF THE LATE, DAVID YOTHAN KIWALAKA .... RESPONDENT (Original CMAIMB Y111201 0) )UDGEMENT 05/11/2013 & 18/06/2014 Aboud) ) Th a'pplication is made under Section 91(1)(b) of the EmpI'Thent and Labour Relations Act, No. 6 of 2004 and Rules 24 (1), (2) and 28 (1) of the Labour Court Rules, GN. 106 of 2007. The applicant calls upon this Court to revise the ljleofilo K i s a n j i U n i v s e r s i t y Vs Flora David Kiwalaka (Adrniriistratrix of The Late, David Yothari Kiwalaka proceedings and arbitration award passed by the Commission for Mediation and Arbitration (herein the CMA) at the Mbeya on 12/08/2013. Shortly are the facts of the matter. The respondent is the administratrix of deceased one David Yotham Kiw_alal6'_" . . ho was the complainant at CMA and an employee of the applicant at the position of Assistant accountant since 01708/2008 He was terminated by the applicant on 18/01/2010 for health reasons He referred the matter to çMA for unfair termination On 03/08/2010 the deceased died, therefore the matter was adjourned sine die waiting for the appointment of the administrator. On 07/02/2013 the mediation failed hence the matter was referred tb arbitration. The CMA found the termination of the respondent was procedural and substantively unfair and rd,red the applicant to pay the respondent one month 'noticeto the tune of Tshs. 577,9701=, severance pay Tshs 144,492 501= and payment of arrears of salaries to the tune OfTshs. 4,623,760/=. At the hearing the applicant was represented, by Ms. Mwamwezi while Mr. Makafu represented the resporR .) 21leofilo Kisanji Univsersity Vs Flora David Kiwalaka \ (Administratrix of, The Late, David Yothan Kiwalaka Arguing for the application Ms. Mwamwezi for the applicant submitted that the Arbitrator did not consider some of the evidence adduced by the applicant at CMA to prove that the termination of the respondent was fair. She said the applicant complied with Section 32 of the Employment and Labour Relations Act, 2004 which provides sick leave 126 dys only whereby the employee is allowed to be paid fulI salary of only 63 days and half salary for 63 days which the applicant complied with as shown in exhibit P1 in the CMA records She submitted further that the CMA wrongly considered the evidence of Staff Regulations tendered by the respondent which was not in existence 'during the time the respondent was terminated. That it was not part of the regulation in operation at the applicant's office.; Shecànçiuded by praying for the court to quash and set aside the CMA award and for any order that the court will find fit to give ir(this application. In reply Mr. Makafu for the respondent submitted that, the Arbitrator did consider the evidence of both parties is 31 Teofilo K i s a n j i U n i v s e r s i t y Vs Flora David Kiwalaka - (Adminisiratrix of The Late, David Yothan Kiwalaka reflected in page 5 to 12 of the award. He said the Arbitrator was correct to decide that the applicant did not comply with the legal requirement in terminating the respondent because the applicant did not comply with Rules 19 and 21 of GN of 2007 He further submitted that the Arbitrator did cbnsidér the sick sheet which was tendered by the applicant at cMA. As regard to Staff Regulation of ,2006 the respondent submitted that it was in operation because the letter of employment of the respondent shows the terms are in Regulations of 2006 and even the confirmation letter of the respondent used the same Regulations of 2006. In rejoinder the applk'ànt submitted that it is not true that applicant was ref üctäntto issue sick leave to the respondent and the respohde"ntfaiied to prove such allegation at CMA. As r&gard to Staff Regulation the applicant admitted to have used ton confirmation letter of the respondent which was in draft. And in appointment letter he said they referred the applicant Staff Regulation and Scheme of Service, theri- tIe 41 TeofiIo K i s a n j i U n i v s e r s i t y V s Flora David Kiwalaka (Administratrix of The Late, David Yothan Kiwalaka applicant followed the procedure which is in the Act No. 6 of 2004. After considering all the above, it is my view that the Arbitrator's conclusion on the unfairness of the ternination was reasonable one in light of the evidence In his d'ecisio?i the Arbitrator considered all the evidence tenderd before him to wit exhibit 'P2", the letter which was to the effect that the respondent will be paid half salary, Exhibit "Dl" a confirmation latter of appointment. It is clear from the Arbitrator's decision that he considered the latter of appointment and confirmation where he quoted what was stated as follows, I quote, "you will be under a probation period for six months according to the regulations of, the University Charter. And your daily activities will be guided by the University staff regulations and Scheme of Service" Moreover in the confirrnatih: letter of 16th February, 2009 the applicant stated, as t'Arbrator, I quote, "all other terms shall remain the same as governed by the University Charter, Staff Regulations, Financial Regulations and the Schëii 1• Service for University." " 5 1 Teofilo K i s a n j i U n i v s e r s i t y Vs Flora David Kiwalaka (Administratrix of The Late, David Yothan Kiwalaka According to the applicant's submission, they admitted to have applied the University Charter, Staff Regulations of 2006, in the letter of appointment and confirmation. It also clear from the Arbitrator's award, he considered the University charter; St,aff Regulations of 2006 tendered before it as Exhibit 'b"Acc1ing to the University Charter, Staff Regulations of, 2006 unde? part II, clause 1 4A the conditions of sick leave provided therein are most favorable than that provided under the Employment and Labour Relation Act Part II, Clause 1.4A of the University Charter, Staff - - Regulations of 2006 provides th'at "1.4- On recommendation of an approved medical officer,.: an employee may be allowed sickor convalescent leave. Approved sick or con alescent leave shall be paid leave under -. the following conditions: :-' A. Every permanent employee, during the same illness/ sick period, shall receive full pay for the first six months and half pay 6 iTe 0 filo K i s a n j i U n i v s e r s i t y V s Flora David Kiwalaka (Administratrix of The Late, David Yothan Kiwalaka for the subsequent six months. At the end of the first six months the employee shall be examined before a Medical Board." Itis clear that the apphcant did not comply wiUf'the above condition as provided for University Charter, Staff Regulations of 2006 and followed the procedure of sick lev6 as provided for under the Employment and Labour RelationsAct I agree with the Arbitrator's findings that Employment and Labour Relation Act provides for a mipInum sta)idards of which one may not act below the standards pescribed under the Act And where an employer has established more favorable standards is duty bound to comply, he may not turn blind eye and come back to the laid down minimum standards. Since it is not disputed that the applicant did not comply with clause 1.4A of the Staff Regulatioh hich provides better terms on sick leave, I agree with the arbitrator's findings that the termination of the respondent was unfair. After considering the evidence on record, I am fully convinced that the Arbitrator did consider all ce 7 iTeofilo Kisanji Univsersity Vs Flora David Kiwalaka (Administratrix of The Late, David Yothan Kiwalaka tendered before him, contrary to what has been alleged by the applicant. Having discussed as I did, I find the application to have no merit Consequently I up hold the CMA decision Inthè resültthe application is dismissed - it is so ordered. Date: 1810612014 Coram: Hon. LD.Aboud , Judge Applicant For Applicant Ms Martha Gwalema, Advocate Respondent For Respondent Mr. K. Makafu, Personal Representative C/C Subira 81 TeofiIo K i s a n j i U n i v s e r s i t y V.s Flora David Kiwalaka (Administratrix of The Late, David Yothan Kiwalaka Order: Judgement delivered in presence of Ms. Martha Gwalema, Advocate for the applicant and Mr: Kenneth Makufu, Personal representative of the respondent. i.ABOUD JUDGE 18/06/2014 N: - j y / N 7 glTeofilo K i s a n j i U n i v s e r s i t y Vs Flora David Kiwalaka (Administratrix of The Late, David Yothan Kiwalaka