crdb bank plc vs lucy wambura 2022 tzhcld 823 25 august 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 459 OF 2021 CRDB BANK PLC APPLICANT VERSUS LUCY WAMBURA................................ ...................................... RESPONDENT (From the decision of the Commission for Mediation and Arbitration of DSM at Hate} (Igogo, Arbitrator) Dated 25th Ottober 2021 lnl REF: CMA/DSM/ILA/305/2020/164 12“’ & 25“ August 2022 JUDGEMENT <>. Rwizile J The applicant filed the presen$applicati@n>to challenge the decision of the Commission of Mediation andrArbitration ("CMA") which was delivered on 25th October^2021 by Hon. Igogo. M, Arbitrator. The application is made byWtlce of app ication supported by an affidavit deponed/b^M^^Masoud Matange, applicant's Manager. On the other harfe^the respondent challenged the application by filing the counter affidavit deponed by herself. Briefly, the application arose out of the following context; the respondent was employed by the app leant as a Bank Teller since 01st July, 2016 on a permanent contract. She was stationed at different branches and was last at Bunju Branch. The respondent was terminated from employment on 31st March 2020 on the ground of absenteeism. The record shows that the respondent was a member of seventh day Adventist Church therefore had a tendency of not attending work on Saturdays. The termination letter indicated that 2017. Aggrieved by termination the respondent referred the matter to — L ’w the CMA claiming for unfair termination on the ground of discrimination. J; After considering the evictee of both rties the CMA decided in the respondent's favolJF^v^^ she was awarded a total of TZS. 46,200,051\^being^«367 months salaries for the alleged unfair terminatronW-^5^ Beingi dissatisfied by the CMA award, the applicant filed the present application, urging the court to determine the following issues: - i. Whether there were reasonable reasons for termination. ii. Whether the applicant followed procedures during termination of the complainant's contract. 2 Hi. Whether the respondent is entitled to the reliefs granted by die Arbitrator. iv. Whether the CMA at liala had territorial Jurisdiction to hear and determine the dispute and whether the CMA complied with the hearing procedures. The application was argued orally. Before this ratfrt, <1% applicant was represented by Mr. Sweet nert Elgidius, le^Red^^vocate whereas Mr. Remmy William, learned Ad^^^gppeared for the respondent. % I appreciate the comprehensivd*submissions of both Counsel which shall be taken on boa^^^^^course of constructing this judgement. Since the^^st^^^^questions e jurisdiction of the CMA to adjudicat^the^matter, I will start w h it first ahead of the rest. With respiest to4bjs ground Mr. Elgidius submitted that the respondent worked at Bunju Branch therefore, she ought to file her case at Kinondoni and not at Ilala District. He stated that CMA Ilala had no territorial jurisdiction as it was held n the case of Changshun Liu v Rebecca Mussa and 2 others, M sc. Appl. No. 387 of 2017, High Court, Labour Division at Dar es salaam and the case of Mkombozi 3 Commercial Bank PLC v Humphrey Singogo, Revision No.877 of 2019 High Court Labour Division at E'ar es salaam where it was held that CMA Temeke had no jurisdiction to entertain the matter whose cause of action arose at Mkuranga District. Responding to this ground Mr. Remmy submitted thcit R^te 22 of the Labour Institutions (Mediation and A tration) Rul^%N W^f 2007 ("GN 64/2007") empowers the CMA to Jlibnine a venue for mediation or arbitration proceedings, hjesfeated^that it depends on where the employer has thefoffica. Helanjued that the case was heard at CRDB Head QuarterRat lid a and so the respondent was terminated at Ilala. He'^rfromly submitted that the CMA Ilala had jurisdiction. Mr^ Remmwfurther submitted that th s ground ought to have been raisedet CMA and decided by the arbitrator as per rule 20 of GN 64 of 2007. He was of the view that it is not proper to raise the same at this stage because no evidence can be brought here. He added that the case of Mkombozi Commercial Bank (supra) cited by Mr. 4 Elgidius is distinguishable to the circumstances at hand. He therefore prayed for the entire application to be dismissed. In a rejoinder Mr. Elgidius reiterated his submission in chief. He added that the CMA did not have to move suo motto and determine the issue of jurisdiction as it was held in the case of JosepJ^Mwento v^TL, Revision No. 497 of 2019, High Court of Tanzania, Laobur Division at Dar es salaam, at page No. 10. Deciding on this issue, I have^to say, jurisdiction is a very crucial matter which ought to be determined/first before going to the merits of the application. This iSjalsoThe position of the court in the case of Mkombozi ComniSr^l^^nk PLC (supra). I have considered Mr. Remmy's sub^^orbth^i the issue of jurisdiction ought to have been raised avth^GMAFi fully agree with him and add that it is preferable objectiohsas to court or tribunal's jurisdiction to be raised at the earliest stage of the case so as to avoid unnecessary utilization of resources and delays. Nonetheless, it has been decided in numerous decisions that the issue of court's jurisdiction can be raised at any stage of the case even at the revisional stage. This is the court's position in the case of Amina Karim Jetha vs Wakf & Trust Property Commission (Civil Appeal No.86 of 2019) [2019] TZCA 511; (13 December 2019) where at page 14 the court held that: - "A courts Jurisdiction is conferred by a statute and that parties cannot, expressly or by conduct, confer on^court the jurisdiction it does not have under the law. inejssue of jurisdiction being so fundamental can braised at any stage ofproceedings." In the application at hand, it is undisputed fact that the respondent that Buniu?is:witjhln.^Kinondoni District. Furthermore, the records indicates that the respondent was terminated at Ilala whereas the notice to .attend disciplinary hearing served to her (exhibit D2) only informed her to attend a disciplinary hearing which would be conducted on 20th March, 2020 at 8:30 am at DHR Meeting Room. There is no indication that the venue of the disciplinary meeting was at Bunju or the applicant's head quoters which is alleged to be within Ilala District. Under such circumstances, it is my view that the matter was properly filed at CMA Ilala because there is no proof of territorial jurisdiction of the CMA. But one would also argue that the cause of action arises at the place where termination occurred and or where the employee worked. Looking at the labour laws, they are silent on when an objection of territorial jurisdiction can be raised. This is a lacuna, I take inspiration" from t^CWTl Procedure Code, [CAP 33 RE 2019] ("CPC") where undejksectfon 19 it is provided as follows: of suing shall be allowed by any app^ilatejbr-^visional court unless such objection was takSn ]n\tfieicourt of first Instance at the earliest possible oppjDigunity and, in all cases where Issues are settled, at or before such settlement, and unless there has been a consequent failure ofjustice." The CPC, a law of general application, does not have a straight application in the CMA. But this court' and. the Court of Appeal have in certain instances applied some provisions of the same. I think, I have to add here that application of the CPC, must be when and only when, there is a gap in the CMA rules. It should not be applied, even in the situation I have just said, to hinder, but to facilitate CMA application of its rules to avoid delays and or any otter thing that may lead to failure of justice. This is so because, when closely lookedzat, t^MCMA->rules and the labour regime as whole allow, lexibility, equity aqd ap^cation of laws with minimum requirement of appHec^i^^ttles.' Therefore, for territorial jurisdiction to belpleaded successfully at this stage two tests must be appliedjdfirste it should have been not only raised at the CMA, but^d&^it should have been at the earliest possible. Second,proved t hat there was failure of justice. There is above tests were met. I would further add, I think, the^e^ession territorial jurisdiction or place of suing, simply means, tta^yenue of the trial. It has nothing to do, in my view, with competency of the court. If that is the case then, how can a suit be defeated by reason of being tried by a competent court, but at a wrong venue? This ground has no merit) it is dismissed. 8 Arguing in support of the first ground Mr. Elgidius submitted that the reasons for termination were based on failure of the respondent to attend duties on Saturdays. That she did not work on Sundays and had several warnings to that effect as per exhibit D6. He submitted that the respondent worked at Bunju Branch and admitted that failure to work on Saturdays was against the appl^ntOjanual. It was further submitted that the respondent did not hax^permission to work at another branch as she did. Mr. lE^jilijjjs added that the respondent had to prove, she was allow^^^^rji at another Branch. To support his prepositions, ^^re^^^the case of Abdul Karim Haji Vs. Raymond Nchimbixa^i|mother, Civil No. 99/2004 at page 14. Mr. Elgidius went^bbJtbs^submit that the respondent also received allowances^W wqrking^on Saturdays as per exhibit D9 therefore, it was jusmelM^idve him terminated. He stated that the award at page W13> it is not true that evidence brought was a hearsay, he strongly submitted that the exhibit tendered was proper. To support his submission, he cited the case of DPP v Mirzai C. Hadji and 30 others, Civil Appeal No. 493/2016 at page 7-8. 9 As to termination procedures, it was argued that the same were complied with by the applicant. That t he respondent was called at the hearing, she was afforded chance to appeal but she did not and went straight away to CMA. He insisted that the procedures were followed. Regarding the last issue as to parties' reliefs Mr. Jil^idiflsksubmitted that the reliefs granted by the arbitrator are not proper. He stated that there were reasons for term natio^and^^ocedures were followed. Therefore, 36 months salaies w^^oo excessive. The Counsel submitted that the rejsponl&Tth&id^he had 32 years thus, she ought to have alternative^QjpIgyment. He further argued that the decision was based‘b^Crong analysis. Mr. Elgidiul^jIW^d^hat to award excessive compensation reason must be^ad^ticeSTHe added, that the reasons should be related to failurerb|tl)e respondent to get another job as it was in the Court of Appeal case of Veneranda Maro & Another vs Arusha International Conference Center (Civil Appeal 322 of 2020) [2022] TZCA 37 (18 February 2022). Responding to the first issue Mr. Remmy submitted that the reason for termination it is not true. He stated that the respondent did not go to work on Saturday but she aid the same on Sunday. He stated that she was terminated for failure to work on 15.03.2020 which was on Sunday as evidenced by the records. He stated that the respondent is a 7th days Adventist and she worked^ Sunday instead of Saturday on that behalf. The counsel submitted that the branch of ^pnju^did not operate on Sunday, she was therefore working atxT^^^hranch that operates on Sunday. Mr. Remmy argued d^tJ^wS not the duty of the employee to prove fairness of termination under section 39 of ELRA. He went on to sffihM^trf^the case of Abdul Karim Haji (supra) does not^applyd^fchi^case be it is not a labour matter. He added, thatMe'WiA was proper to hold that absence from office for one daywdoes not warrant term nation because the respondent admitted not work on that day due to sickness of her child and it was only on that day. As to the second ground Mr. Remmy submitted that the award was clear that the procedures were not followed. He stated that no ii investigation was conducted by the employer, the disciplinary hearing dealt with absence from duty on Saturday and so the evidence, but termination was based on absence on Sunday. He insisted that the applicant did not follow the law. 1 XJ her name was sent to BOT. we added that the law allows him to grant more than 12 monthsK The counsel argded^^t^ that th ase of Veneranda Maro (supra) providesThatthere must be justification why over 12 months. apart frm^those prayed in CMAF1, thus, it was proper to grant 36 months. In a rejoinder, Mr. Elgidius reiterated his submission in chief. On the allegation of investigation report, he added that it does not arise on issues where the investigation is not an issue as per the case of Emmanuel Talala! v Cocacola Kwanza Ltd, Revision No. 24 of 2019 at page 10-11 Obadlous Mwangamila and Others v TCC, Revision No. 334 & 355 of 2020 page 27. He strongly submitted that it was a misdirection to deal with investigation report. After considering the parties sub ons, I have/fo pi^ceeding to deal with the remaining grounds. Starting with tri^ first; as to whether there were reasonable reasons for^the^termination of the respondent's employment; as ind cated^h^fee termination letter (exhibit D4) the respondent wa§- te-^jnycTfbr failure to attend her work on 15.03.2020. To be more.predise the termination letter stated as follows: - "That, on l!ffiMarbhJiiD20 you deliberately not attended to your workstatipniwithout permission and without reasonable t^^^^on^^ollowing a number of warnings from your supervisor contrary to Section 10.4.2 of Personnel Manual 2017." The relevant provision of the Personnel Manual (exhibit D7) provides as follows: - Clause 10.4.2, On MISCONDUCT "Employees who breach any staff rules of these regulations, which constitute misconduct, shall be served with a written warning after each breach. Termination will be effected on the third breach of the same offence if committed within a period of 6 months." I have cross checked the calendar of t ar 2020^itii^^sthat the alleged date, 15.03.2020 was on Sunday. In'-the disdpbhary hearing form (exhibit D3) the respondent was cl^^^^for^failure to attend work on most of the Saturdays notwjth!5©q^dg>the charged date was on Sunday. Even in the writt^^varniQ^(exhibit D6 collectively) the J respondent was warned w failure-to attend work on Saturdays. In the circumstances, iMs^^^ew that the applicant intended to charge the respondent ^ra^^e to attend work on Saturdays. In the premises,^t’^isupy^ view that the date, 15.03.2020 which was on Sunday was,.rnistakenly written as submitted by the applicant During disciplinary hearing, the respondent admitted that she failed to attend work on Saturdays because it is her day to go to church. Basing on the nature of applicant's business, it is obvious when, entering into employment contract, the respondent was aware that 14 she was required to work on Saturdays. Therefore, working on Saturdays being one of the clauses agreed by the parties in the employment contract, it is my view that the respondent had to obey the same, no matter how hard it contradicted with her religious belief. It has been held that parties are bound by the agreed terms of the contract. This is the position in the case of Hotel Sultan Palace Zanzibar v Daniel Laizer & Another, Civil. Application. No; 104 of 2004 (unreported), where it was held that:-,^^^^^ "It is elementary that the empioyepahd^empioyee have to Otherwise, it would be a chaotic state of affairs if employees or employers wertfi^mo freely do as they like regarding the * Or i working on^Su'ndays at Tegeta Branch instead of working on Sundays at her stafroned Bunju Branch. Looking at the record there is no any letter authorising the respondent to work at Tegeta Branch as alleged. There is no proof that she was attending work on Sundays at Tegeta Branch. This is also reflected in the respondent's testimony at the disciplinary hearing where she testified as follows: - ”(1) Which branch are you working? Bunju (2) Who gave you permission to work on Sunday at Tegeta instead of Sundays at Bunju? No answer." Under such circumstances, it is my view that if the respondent M & wanted to work on Sundays instead of Saturdays<as?agreed|she could have sought for permission or author zation ^rst from the applicant before acting on her own. In the eveqt^^^^as I respect the respondent's religious belief of no^^fej^^n Saturdays, it is my view that any violation of any^^iulateljtprm of the contract amounts to breach of contract which will^eventually attract termination of employment. ° On the basis of Ine^bove analysis, it my view that the applicant had valifereasormo terminate the 'espondent's employment for failbte to hoociur the employment cont act taking into regard that she was previously warned. I have equally considered the respondent's allegation of discrimination. As stated earlier, from the commencement of the employment contract the respondent knew that she was supposed to work on Saturday. 16 Therefore, any change of such terms of the contract had to be made by mutual agreement between the parties and must be in writing pursuant to section 15(2) of the EL.RA. Unfortunately, such a change is not reflected in the record. It is my view that discrimination would have stood, if other employees were allowed not to work on the day of their religious worship, while the respondent deified such an opportunity. However, there is no proof that the re^hdent^formally sought permission of working on Sjndays inflea'duof Saturdays as it was in the case of National Microfinance. Bank Ltd vs Neema Akeyo (NMB) (Civil Appe^ir^^20) [2022] TZCA 44 (21 February 2022). A Coming to the as to whether the applicant followed the procedure insterminating the respondent. As stated earlier the responden^^^<i^rminated on the ground of misconduct. The terminatiojrjprocedure on such gromd is provided under Rule 13 of GN. 42 of 2007. Looking at the matter at hand, the respondent is contesting that no investigation was conducted. The requirement to conduct investigation is provided under Rule 13(1) of GN. 42 of 2007. The respondent admitted, she was not going to work on Saturdays. 17 Therefore, under such circumstance, there was no reason to do investigation to prove the misconduct in question. In my view each case should be decided on its own peculiar circumstances. The circumstances of this case did not warrant further investigation to prove the respondent's absenteeism. The respondent also claimed that she was not afforded thenright to be heard. That she was charged for fai^^^to^attend work on Sundays and terminated as such whiiesjh^dilcjplinary proceedings proceeded with respect of failure t^attend“at work on Saturdays. This issue has been addressecli^atxMi that the applicant's conducts proved he intended toKcnarge her far failure to attend work on Saturdays. Therefore;xtne,sWiday was mistakenly placed. I have alsojietfamined' other termination procedures as they are proyided'irkthe cited provision and the same were also followed. In a time to prepare for her defence, she appeared at the disciplinary committee and defended herself. Therefore, all the termination procedures were followed in this case. Turning to the last issue as to partes' reliefs, as it is found that the respondent's termination was fair both substantively and procedurally, I find the Arbitrator wrongly awarded the respondent. She is not entitled to any of the remedies provided under section 40 of ELRA. In the result, I find no merit in the application. 19