20140807 TZHC mWANZA2

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION ATMWANZA REVISION NO 40 OF 2012 COMMERCIAL BANK OF AFRICA (T) LTD .............................. APPLICANT VERSUS NICODEMUS MUSSA IGOGO ... ......................... ,................ . (ORIG/NAU CMN MZA/466/2011 2217/2014 & 07/08/2014 R.M.RWEYEMAMU, J:- This decision involves a consideration of three questions/issues which are of significance t~, nd those immediately involved in this case. These issues are:- '11::\ ,4G'.ii\/;,, \;\i~, Ji a) Whetfie4:tpr nbt\,t,!ITS8f:~ithe Tanzanian Law, an employee on probation automatically assumes emplqym~~'t\StciJus ·,}here the stipulated period of probation has expired, without the employer "" .. •<"''""'\,•·•'• makino a,fltcision't; .. ~ ··~ confirm or not to confirm the employee. . o}WheJher or not an employee, whose employment is terminated after expiry of the probation periofbut before confirmation, is entitled to protection under the unfair termination provisions- Section 37 of the Employment and Labour Relations Act, 6/2004 (ELRA). c) Who is responsible to ensure that the Commission for Mediation and Arbitration (CMA) record of proceedings is timely submitted to this Court for purpose of revision, Is it the applicant? [1] r r The three questions arise in the following Context: The applicant/bank employed the - resp9ndent on 4/2/2010, on a six months probation period. The respondent was terminated on 22/12/2011 on ground of misconduct namely; "poor performance". Termination was after- the six months probation period had long expired, but before the respondent's employment status had been confirmed. The respondent appealed the termination decision to the Commission for Mediation and Arbitration (CMA) where he filed a cl · , o. · ir termination and sought the remedy of reinstatement. Issues framed were I •med in disputes of unfair termination, namely; • whether termination was for a valid reason; • whether it was conducted in accordance with • Relief parties' were entitled to. At the CMA, the applican. · that; the respondent's probation period expired on 8/8/2010 but his ~ aQce was unsatisfactory, that was why he was not ~" confirmed instead, his 6., .: .:;,,;,,.-,J"!. Jion period was extended on 16/5/2011. The applicant . !!1~' further ·testifj.~d thatthl,resp J\I. en was given a warning more than once, and on one of "'~_:..r~. .. . f-Jr:\,V\~. '··17\b . . ~~it those times, h'@~as·~~@h;.;:ostrbng warning. They testified further that, after the respondent .,.m. '-"~. ,fr?;, refused to ~g'H_f::P~riQnihance evaluation form; was thereafter summoned to a disciplinary me~t\a~ on 2oti2,{~b11 and terminated on 22/'\ 2/201 t .,.,;~-~,:-' _J;;::··:,: ~ ·;;·:::..,t ~~~- :·· ''\$~' Basically, the respondent admitted not to have been confirmed when he testified that he made several requests for confirmation without success. He also admitted to have been given warning including strong warning after it was discovered that he had failed to mention his former employees including the Stanbic Bank; and to have refused to sign assessment [2] form for period 20/6/2011 to 7/12/2011, which led to being called at disciplinary meeting on 20/12/2011 and termination 2 days after. The CMA decision was in brief that: a) since the employee had worked for more than a year before termination, the argument that respondent was not terminated because he . was still on probation is baseless. b) The employer had fail ,<;'to~~. p poo\ work performance because there was no proof of breached perform e ndar~required under Section 39 of the ELRA read together with Rules 9(3 . 17(3) o e Employment and Labour Relations (Code of Good Practice) Rules, GN 4 he employer failed to I consider employee's reasons for non performance as 42/2007. d) It was improper for the applicant to terminate the respondl rformance without having warned him more than once, for that !ffiseon improper for the employer to terminate the employee/respondent, f.4: ·1e he er afforded training opportunity to improve performance. f) The C CTU!l~~at due to all the above reasons, the employee was unfairly terminat d deserved compensation in the sum equal to 12 months' salary. - .: . '.ti1:. .. ; Aggri;tese:lh~~~~1i9a.&t seeks revision of the above decision on grounds, in brief that:- The;Arbii;?torF~:[;fed in law and in fact in holding that the respondent was unfairly . . .:_;:::?~:~-..-~. Wt . termiwated, wjthout\,considering the applicants evidence and nature of the applicant's .· ·.. _ \'.;_:~.rtf.r business·:';';AndJthat the ruling/Award was based on different issues which were not framed ·\f;~' ::~.. by the parties. Last, that the Arbitrator failed to properly assess the evidence on record and henceforth reached a wrong decision. [3] " . - ~------ - At the hearing both parties were represented by Advocated namely Mr. Tarzan Mwaiteleke and Mr. Luhigo Andrew, for the applicant and respondent respectively. Parties arguments are indicated in summary below: The applicant Counsel Mr. Mwaitekele submitted that; ► the Arbitrator's conclusion that respondent was not on probation n t supported by facts, ► the practice of the employer was to give confirmation in ent had no such confirmation; ► the respondent had a record of poor work perform Arbitrator ► at the time the applicant wanted to confi •ndent, it was noted that respondent lied on the application form th_ dwith Stanbic Bank ► the Arbitrator erred in fact by -~-rudin \that ,e standard of performance against which the respondent was mea ed was . wn to him, while the standard was very clear to the respondent, who ..qi~y., had previous experience working with other banks. •-.:-. ,, In opposing the applic9,t· · ;:~ ~', . ► the issu~~l*~~ti~f1,;;,,. snot raised at the CMA; and even then, ► the r,esppnaentv.Z~t not on probation because; t~ .:!1{~l "'1~!~~"-~-·· ;►,_, the em~loY~twas confirmed by implication 1 " ~:.~ \.~.~s;/< ► tnet!er,W'ination was procedurally unfair because it was not conducted in accordance with~ule 10 (4) of the GN 42/2007, he said the respondent asked several time the confirmation letter but he was told it was on process at the headquarter. ► Misconduct of poor work performance did not justify termination; and finally that; . [4] In addition to the above, the respondent applied for costs on reason that, the case has been pending for a long time, with the respondent/decree holder remaining with unexecuted decree because there was delay to submit CMA record of proceedings. Despite that long history, I find an answer to two questions suffices to dispose of the key issues in this application. These questions are: Does an employee on probation assume employment status on limitation? This question was considered in this Arbitrator, the case of Mtenga Vs Uni aam. The relevant facts in that case were that; the applicant was em ion. He was kept on i.e, continued working after expiry of the proba '•, n pen ot only was he kept on after expiry of probation but he was also increment. The argument of automatic 4kt confirmation was raised in· · urt of Tanzania but dismissed by the late Biron J., /it~~~~· . holding that,, being tc@pt olt,,\ expiry of probation period does not amount to confirmati o,ri~1:J:~f~:;:iili:1~;~~t~24 7). Temu \f§".~:anza~ia Railways Authority, Civil Appeal No. 72 of 2002. In that case, the CP, ' ' :·'I.:,;.~• was dealing with an appeal from a High Court decision issued in 1999 and considered among other issues; whether an employee on probation had a right to be heard before termination. The Court's conclusion was that:- [SJ " in the present case, however, _we are of the opinion that there was no right of a hearing because there was no termination but it was merely a non-confirmation while Stella remained in the employment of the MOF. It is our decided opinion that I, probation is a practical interview. We do not think that the right to be heard and to be given reasons extends even where a person is told that he/she has failed an interview". (Emphasis mine). A. My conclusion on the above is that an employee on probation remains su~:s until confirmed by the employer, there is no automatic confirmati 'der the la The 2nd crucial issue is; whether an employee . n ·. is protected under the ~ unfair termination provisions of Section 37 ~11"•~~lM"{~- I am aware that the decisions a before coming into operation of the Employment and Labour Relation ELRA) (which became operational on 5/2/2007). I have therefore co ¾l, red the question whether the previous position was changed by the ELRA, partiaularl jtti · spect to application of fair termination principles. It is my considered opinif"lir ·,. -~5 unambiguously exempts employer from observing mandatory ptovi~j<il'f'.f,,~ftsub_part E of the ELRA (incorporating Section 37which defines -.,'i~;;r;- v,•;tf~·~:;. ------~v ·:·.: unfair termin~t~ti~,Y'~~he~'\~ealing with probationary employees. ,,-,,~ ,,, To ~i$tr,engthen 0 . 'l'~i- my interpretation of the ELRA on the issue, I have checked comparable provisions and general practice under the relevant ILO convention, in this case, the Convention 158 and Recommendation 166 on Termination of Employment. I am aware that the Convention has not been ratified by Tanzania, the country has not availed itself of opportunity to renounce it, and I note that the ELRA gives effect to provisions of the Convention. (6) . The relevant practice under the Convention is discussed in the Report of the General Observation adopted by the ILO Committee of Experts in its 79 th session, 2008 at page 16. It is noted that, under Article 2 of the Convention, categories of workers typically excluded from coverage by fair termination provisions include, probation employees alongside casual and fixed term employees. It is noted in the Report that most member states exclude probationary employees from strict protection. Judging from the a easonable to ~' assume that the said practice under the Convention, is similar t ~~anian as represented by the cited case law. Despite my observation above, I should clarif sunderstood that my understanding of the ELRA is that it embodies princi our practices in respect of all employees irrespective of their c , fair practice in respect to i employees on probation includes a ··'the decision to confirm or not to confirm appointment be conducte ·n acc.~~""'~.. with fair procedures. Such procedures are supposed to observe princi~1 s·1::, f_airness. I say so becau~~ incorporates the Employment and Labourt Relations '~}., , ''"· . \.,1,,,, ,:;;. (Code of Gooti';f;ffacnci;}'~N,::o/2/2007 issued by the Minister under section 99 of the ELRA. Section 99J3,:i~~~t~~J\at the ELRA has to be interpreted in accordance with the Code, . · ,:1J:*r- ·-~.~~~~ -· and :qeparture:1:mu$ttbe justified by the decision maker. in mr opinion, departure may be justifi~·d·,~~en;t,:tRfempioyei follows an equally faii procedure. According to the Code, the prescribed,,p:fg~edures are among others that:- "(7) where at any stage during the probation period. The employer is concerned that the employee is not performing to standard or may not be suitable for the position the employer shall notify the employee of that concern and give the ·employee an opportunity to respond or an opportunity to improve. (7] . ,. (8) Sµbject to sub-rule (1) the employment of a probationary employee shall be terminated if.·- a) The employee has been informed of the employer's concerns; " b) The employee has been given an opportunity to respond to those concerns; c) The employee has been given a reasonable time to · correct behavior and has failed to do so. 9) A probationary employee shall be entitl~j process referred to in sub-rule /lo · ployee or union representative. (Emphasis mine) ,d~~ / ..~.:/f'" . After setting out undisputed fac!(~t this parties arguments and examining governing principles of law and pract1 ~ I u arize the position and give my decision as follows:- 1. 'tice, expiration of the specified period of probation of an emplo ,.. r~~_€fs"SDch an employee eligible for confirmation. The position ~t,~.'- ,,, , <(~~Jo. 1\, rem' . ~ame,/even .,,\c;. '•···· where an employee continues to work after expiration of \b'e7~(& ~~'.~Q11jeriod; is given salary increment or further training. P, probationary emP,(~y~;:rtmains ,,, with that status until confirmed by the appointing authority. In ·;:.:. <1.;.view:~of above position, I find the Arbitrator's decision that the resoondent. who ,( .,. was never confirmed. attained employee status by implication, to have been an error in law. I quash that decision. [8) 2. Fair termination principles are not applicable to employees on probation therefore I quash the Arbitrator's decision which was to the contrary. 3. That said, it is my view that an employee on probation is entitled to fair labour practices. Under the law, Rule 10 (7) (8) and (9) of GN 42/2007 "A probationary employee shall be entitled to be represented in the process ref~ ule _7) by a fellow employee or union representative". Since there tlat the applicant accorded the respondent compensation for that breach: 4. The law regarding duty to submit recorcfz1 ·gs to this Court following application for revision is s · (4) of the Labour Institutions Mediation and Arbitration provides that a party may request Iii,, yment of costs. My quick understanding of this provision is arty seeking proceedings for purpose of revision or otherwise, has a"' , them to be processed by the CMA, upon payment of costs. ·'"" Tt4f1;7ek 't;p, tc. . , f adopted, would have prevented delays in submitting retbr:95,je~§~a:::qM,.?Parcity of resources on part of the CMA. .~f{h ,;;,\t . . .,t/'t.'... ·:".~~- i,.- ),'.," ,· But,~~;~m.;.:t~r practice has been different, the CI\/Lt, processes the record upon '.·\;req~~sf by the Court. Until the position is clarified, or the law chanaed. an 1 ~ 66licant for revision cannot be blamed for delays in submittina record of CM.L\ proceedings to the Court. [9) • lri the final result of what is discussed a~d decided above, I find that the respondent. _, was an employee on probation, not cover.-►-by Section 37 of the ELRA. Consequently, I find the application on the main, merited; quash the Arbitrator's decision and award, in its stead, order the applicant to compensate the respondent in a sum equal to 6 months salary, at the rate he was earning at the time the applicant decide not to confirm his employment. It is so ordered. R.M R JUD 07/08/ Date: 07/08/2014 Coram: Hon. R. M. Rweyemamu, J Applicant: Counsel absent For Applicant: Respondent: For Respondent: Absent CC: Lwiza/Christopher,gv~t: Mr. Emmanuel Mkwe;~Advo'&'at~: Holding brief for Mr. Luhigo Andrew Advocate - who had travel to 3lt),~,;§~1::m:{,•l~~w Court: JuS~~"e;t\'.Je\jv~red in the absence of both parties but before an Advocate holding bri~f for_ the R€~ppcitlent. Order: ,,ti§?Rf'of Judgment to be supplied to the applicant and respondent through Mr. •••• ,~ • •, ,, I Emmanuel Mkwe. R. M. Rweyema , JUDGE 07/08/2014 [10]