chacha petro nicolaus yohana secilia masemba 37 others vs finca microfinance bank limited 2022 tzhcld 666 28 june 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION APPLICATION NO. 246 OF 2021 {From the decision of the Commission for Mediation and Arbitration of Dar es Salaam at Kinondoni dated 2&h day of December2020 in Labour Dispute No. CMA/DSM/KIN/551/2020/227/20 by (Ng'washi: Arbitrator) BETWEEN CHACHA PETRO NICOLAUS YOHANA .................5^. APPLICANTS SECILIA MASEMBA & 37 OTHERSJ VERSUS FINCA MICROFINANCE BANK LIMITED............................... RESPONDENT 24th June 2022 & 28th June 2022 J K. T, R, MTEULE, This Revision application^ emanates from the decision of the Commissiotv^^^^iation and Arbitration of Dar es Salaam at Kinbi^ionL^^ (CMA) in Labour Dispute No. CMA/DSM/^IN/551/2020/227/20. The prayers contained in the Chamber summons are:- 1. That this Honorable Court be pleased to call for records and proceedings of the Commission for Mediation and Arbitration, in Labour Dispute No. CMA/DSM/KIN/551/2020/227/20 between Finca Microfinance Bank Limited v. Chacha Petro and 38 others, i revise, quash and set aside the whole award by Hon. Ng'washi Y, Arbitrator dated 28th December 2020. The brief background of the dispute leading to this application is grasped from CMA record, affidavit and counter affidavit filed by the parties as stated hereunder. The applicants were employed by the Respondent in divest periods holding different positionszOh. 29t^June 2020, they receive a notification for a staff meeting to^be^held on 1st July 2020. That the meeting was convene^anci^a^ agenda of an intended retrenchment was tabled. U^oj^ij^ssion, no consensus was reached amongst the parafes as^iejpplicants herein questioned the criteria used to retrench thetsele&ed staff and further demanded payment of 10 months salaries on top of the statutory benefits. This prompted the Respondents lodge a complaint in the Commission for Mediation anCArbitraEibn praying for a declaration that all employees are^^rtle^S^ statutory packages and that the Respondent was unable lomake more payments other than the statutory benefits. The settlement of the dispute failed during the compulsory mediation process hence the Respondent referred the dispute to the arbitration process vide Labour Dispute No. CMA/DSM/KIN/551/2020/227/20. The Arbitrator issued a decision in favour of the Respondent (the 2 Employer who was the Applicant therein) where she found all procedures of retrenchment to have been complied with and allowed the retrenchment to be implemented within 14 days from the date of the decision. The arbitrator further ordered the Respondent (Applicant therein) to pay the statutory benefits to the Applicants namely notice, leave if any and severance pay^^^nsequently, the Applicants were retrenched for the reason of finanaa/^pstraints affecting the Respondent's business operatio^^^^^pon the order of theCMA. . The CMA decision aggrieved the^p^cants • hence the present application. At paragraphs 12^rf^heir affidavit, the Applicants advanced four groundsW\evision which can be paraphrased as follows:- i) T^fc^^Afbitrator exercised her jurisdiction illegally, with \^^feh^irregularities and delivered erroneous decision that respondent had valid reasons to proceed with retrenchment process. ii) The arbitrator failed to properly analyse the evidence on record to arrive at a right decision. iii) That there was a misconduct on the part of the Arbitrator for failing to properly record the evidence of the applicants. 3 iv) That the Arbitrator acted illegally by awarding remedies which were never prayed for by the respondent in his CHA Fl or in the open statement as provided for under the law. Both parties to the application were represented. The Applicants were represented by Mr. Remmy William, Advocate, whereas the Respondent was represented by Mr. Evodi Musl^Adlobate. <Upon prayers by the parties, the Court ordered for the application to be disposed of by a way of written submissions^^a^both parties for complying with the Court's schedule^a^^kappreciate their rival submissions which will be consiaeredbin determining this application. Guided by the submission^ made^by both parties, the applicant's affidavit, the Respohde^^counter affidavit and CMA record, I formulate^^^^^^^or determination which is whether the applicant^^Iiav^provided sufficient ground for this Court to revise the?CMA award. In approaching the above issue, the grounds identified in the affidavit will be considered one after another. The first ground concerns the fairness of the retrenchment. It is known that fairness is assessed in two aspects which are procedure and reasons. In the CMA, the fairness of the reason was not a matter for determination. It does not 4 appear anywhere in the CMA that retrenchment was not a necessity in the Employers organization. It was neither disputed nor was it framed as an issue in the CMA. Although parties are trying to convince this Court to address it, I will not do that being a new thing at revisional stage. The first legal issue of the affidavit is answered in the negative. I see no error on the arbitrator's jdecisidn that the retrenchment was based on reasonable cause. Under the second legal issue forming arbitrator is criticised for having not pfo^^gnalysed the evidence on record. I have gone through th^^^sion of the arbitrator. The arbitrator was guided by^the eyi(|g|ce including that of Deusdedit Edward "PWl" who state^that 40 notice of intention to retrench were issued to thf^employees. They were admitted as exhibit F2. PW1 is alsov^corded^to have stated that the principle of LIFO, (Last Mast outwwas followed. The arbitrator further relied on Exhibit F3 whid^dteates how LOFO was complied with. I could not see where the arbitrator went wrong in analysing the evidence. She properly determined the matter basing on the facts surrounding the retrenchment exercise and what was stated in the CMA. I see no reason to fault the arbitrator's findings on this ground as evidence was properly analysed. 5 Under the third legal issue of affidavit, the applicants complained that the arbitrator awarded what was not sought by the applicant in the CMA. It is not disputed that what the instant respondent sought in the CMA were:- a) Declaration that all stuff in attached list are entitled with statutory package in retrenchment ^mc^^done, by employer, b) Declaration that employer is not capabi&tojjay additional of 10 months’ salary in retrencfih^^^ckage to all stuff due to financial constraints;^ hence, to proceed with notice, leaj^arjdJseverance pay. In what is granted or ordered by th^ar^ato^/as not outside the prayers sought by the employee. The prayelf were to allow payment of statutory benefits and proceed with retrenchment and this is what the arbitrator granted. As well I see no reason to differ with the arbitrator at this point. While arguing the first issue on the evidence evaluation, the counsel for the Applicants stated at lengthy the fairness of reason and the 6 procedure. In the CMA, the reasons for retrenchment was not at issue. I would like to point out that dealing with fairness of reasons will be amounting to a creation of a new matter at the revisional level which is not appropriate legally. The law is settled on this aspect. (See Makori Wassanga v. Joshua Mwaikambo and Another [1987] TLR 92; Peter Ng'homango v. Attorney, General, Civil Appeal No. 114 of 2011, (CAT), DSM (unreported)*. anct<that of Astepro Investment Co. Ltd v. JawingaTnyestment Limited, Civil Appeal No. 8 of 2015, (CAT), DSMf unreported)}. I find no need for this Court to labour on a miatt^n^krowas not an issue in the ( forum of the first instance or orkundispcited facts. On procedural fairness ofetne^retrenchment, the legal position is that pyx? even when ther^^s^wir and valid reason to retrench some employee^^^^ercise must adhere to mandatory procedures prodded ^^t^ie *aw> Retrenchment procedures are guided by sectiorh38of the Labour and Employment Relations Act (Cap 366 of 2019 R.E.) read together with Rules 23 and 24 of the Codes and the Guidelines under the Employment and Labour Relations (Code of Good Practice) GN. 42 of 2007. Section 38 provides:- 7 "Section 38 (1) in any termination for operational requirements (retrenchment), the employer shall comply with the following principles, that is to say, be shall: - (a) give notice of any intention to retrench as soon as it is contemplated; (b) disclose all relevant information on the intended retrenchment for the purpose ofproper consultation; (c) consult prior to retrenchment or redurfaamzy on^ (i) the reasons for the intended retrenchment^. (ii) any measures to avoid or minimize the intended retrenchment; (Hi) the method of selection^^th^kemployees to be retrenched; (iv) the timing of the retrenchment^ (v) severance pay In^esp^tzqAe retrenchment From the above positi^^^establishing the validity and fairness of retrenchment^exerciselthe responsible authority must observe the integrity^Wl^entu'e process as prescribed in Section 38. Even when there^s a miriness of the reason, the termination can still turn out to be unfair if the employer fails to act in compliance with the procedure and the steps required. I have noted from the CMA record that there was a meeting which was held to discuss the retrenchment as evidenced by Exhibit F-3. (minutes of consultative meeting). Evidence reveals further that the 8 purpose of the meeting was to inform the affected parties about the reason for retrenchment, any measures taken to avoid or minimize the intended retrenchment, the method of selection of the employees to be retrenched, the timing of the retrenchments and severance pay in respect of the retrenchment. It appears that only to employees who we^effintehbed to be retrenched were invited to the meeting. Despite of this irregularity, the arbitrator waskif tF^bpinion that the procedure should not be followed in^coeck list fashion. She referred to the case of Bernard Gindo and 27d0thers v. TOL Gases Ltd., Revision No. 18 of 2012f"Hic^So^rt, Labour Division at Dar Es Salaam. In this case^this^Court observed that various prescribed stages arejiotjneant tb be applied in a check list fashion, rather are meant tc^prpvide guidelines to ensure that the consultation is fair and adequate ih^trenching employees. Having considered the extent of the involvement of the applicants in the retrenchment and the extent of consultation, the arbitrator found the procedure to be fair. In the strength of the decision cited by the arbitrator and taking into account that no prejudice occasioned to the applicants in not issuing 9 the notice to all the employees, I see no reason to differ with the arbitrator's opinion on the fairness of the retrenchment procedure. With regard to reliefs of the parties, the Arbitrator being concerned with the financial situation of the Respondent, did order the employer to pay only the statutory payments without making addition of 10 months salaries which was the point of misunderstanding ii& the consultation meeting. In my view, since the^minatibi^was fair in both reasons and procedure, payment <gf terqjinal benefits as provided under Section 44 of the Employi^r^and Labour Relation Act, Cap 366 R.E 2019 is sufficient iri^^^iatter. On the above reason I uphold the^aecision of the Commission for Mediation and Arbitfa^^yie application has no merit, and it is dismissed^ac^r^^^^ach party to take care of its own cost. It is so ordered, a Datechgt Salaam this 28th day of June, 2022. JUDGE 28/06/2022 io