crown health care vs joackim mwaijande 2021 tzhcld 105 30 april 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 900 OF 2019 BETWEEN CROWN HEALTH CARE LIMITED... .. APPLICANT VERSUS JOACHIM MWAIJANDE RESPONDENT JUDGMENT ------------- X P/ Date of Last Order: 30/03/2021 Date ofJudgment: 30/04/2021 A" < XCX i' Xi Z.G.Muruke, J. Ya Mr Joachim Mwaijande, the respondent/ was employed by the applicant in a one year fixed"contraction August,2015. He worked with the applicant until 8*5 March;?2Q16 when he was terminated on ground > ■% of absenteeism. It>was"alleged that several times the respondent came late to his<vyprfcpjacejwithout informing his supervisor the reason for his lateness.^Isb^ on^ 15th February, 2016 and 7th March,2016 the res^ondent^was'absent from his office without adducing any reason for doing^so. JTJfe respondent was aggrieved with the termination he referred the matter to the Commission of Mediation and Arbitration (herein CMA). CMA determined the matter exparte as the applicant failed to enter appearance twice. The applicant filed the present application seeking revision of the CMA's exparte award. The application was supported by the affidavit of Laurensia John, applicant's 1 Human Resource Manager The same was challenged by the counter affidavit of the respondent. The application was disposed by way of written submission. Both parties were represented. Advocate Victoria Mgonja for the applicant, while Donald Philip, Personal Representative was for the respondent. In her submission the applicant's counsel submitted on two grounds; ZK < That, honourable arbitrator erred in law and^fact by entertaining the dispute exparte. ii. That Honourable arbitrator erred in lav^aridjacvibtdecide that the procedures were not followed. 'v On the first ground it was^submittedkthat, before proceeding with U j| the hearing of the matter, the|arbitratorAust satisfy himself that the a) parties are properly notified>on tfedate, place, and manner in which proceedings shall proceed referring Rule 7(3) of the Labour Institution (Ethics and Code of-CphductSfor mediators and arbitrators) Rules,2007. (T However,dn the 'matter* at hand the arbitrator erred in law as she proceeded to^determine the matter exparte, without satisfying herself as to<whether the.applicant was served with the summons and decided not to appear before CMA. As regard to the second ground the applicant's counsel submitted that, the duty of proving the fairness of the termination is on the employer as per S.39 of the Employment and Labour Relations Act, Cap 366 RE 2019. Since the matter was determined exparte the applicant herein was not afforded with a right to defend herself. Therefore, the award would have been fair if the matter was entertained inter parte. 2 Thus, the award against the applicant was illegally and incorrectly procured and was based on bias. She thus prayed for the application be granted. In response the respondent's representative contended that, the applicant's 1st ground of revision that the arbitrator erred in law and fact by entertaining a dispute exparte, is a new issue which was neither raised in the affidavit, chamber summons nor/in thi^ notice of application. He prayed for the court to disregard the same, ^further submitted that, the applicant had no valid reasons to wlTphe failed to appear at the hearing that is why he did not d^Ileftgedhe Ruling dated 03rd July,2018 which dismissed their application^or setting aside the exparte award. That the applicant only^^ts^o^delay the respondent's right. Mr. Philip submitted that; appljcant has failed to prove that termination was fair. He therefore^ prayed for dismissal of the J? application. % After carefuIly.consideration of the rival submissions of the parties and records, I havSmoted that the 1st ground raised by the applicant in her submission, that arbitrator erred in law and fact by entertaining the J) dispute exparte,\s'a new ground as it was not among the grounds raisedMn thefaffidavit in support of the application as stated by the respondents representative. It is obvious that the applicant is challenging the ruling which dismissed her application to set aside the exparte award dated 03/07/2018. The application in hand is for revision of the exparte award dated 31st March,2017. The two decisions are different, even in challenging them the court is moved by different 3 provisions of the law. Therefore, I will disregard the 1st ground as this court was not properly moved to determine the same. Concerning the 2nd ground, the applicants' counsel has argued that the arbitrator erred in law and fact by holding that termination was procedurally unfair. However, in her argument learned counsel insisted that the respondent was not given a chance to be heard on her defence. The decision would have been different if the responden&defended her seif. On records, it is apparent that the dispute before^GMA in/dispute CMA/DSM/KIN/R.254/16/404 was determinecl^ exparte^ after the applicant's failure to enter appearance. Rule! 28x(b); of the Labour Institutions (Mediation and Arbitration ^uide^ir^s) Rules GN.67/2007 - -J : provides 'When a party fails to attend an arbitration hearing, an arbitrator may do the following- (b) Where a party,against whom relief is sought fails to attend, the arbitrator mayproceed irf the absence of that party or postpone From ^that^projgsj^n the arbitrator is powered to proceed entertainingJan^a^lication exparte when the party failed to appear on theJ&date" s|^fpr> hearing. Therefore, the arbitrator arrived to that decisiorbafter consideration of the evidence adduced by the respondent. However, I have keenly gone through records especially the documents which were filed by the respondent before CMA as documents to be relied upon in their defence, I have found that the respondent was terminated on 8th March, 2017 and there is no any proof that the applicant followed the procedure for termination as required by the law under Section 37(2),(c) of Cap 366 RE 2019 which states that: 4 'Section 37(2) A termination of employment by an employer is unfair if the employer fails to prove- (a) that the reason for the termination is valid; (b) that the reason is a fair reason- (i) related to the employee's conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer^and (c) that the employment was terminated in accordancewitha fair procedure." I had a glace on the termination letter, even the same does not refer any decision made by a disciplinary committee. ,On that regard I find that the arbitrator was correct to, decided that termination was procedurally unfair. It is my considered view that, the^applicant herein may be seeking % A " the right to be heard on merit. Mowever, counsel misdirected herself into filling the applicatior^'to^challenge the exparte award. Since the applicant was aggrieved'^ijtff the said exparte award and filed application to set^asideCthev same, the application which was dismissed for failure to^addbce sufficient cause for her nonappearance. She ought to have (fileWapplieation for revision of the ruling dated 3rd July,2018 whicMismissed their application to set aside the exparte award. Basing on the above discussion, I find the application lacks merit and it is hereby dismissed. Z. G. Mruke JUDGE 30/04/2021 5 Judgment delivered in the presence of Donald Philip respondent personal representative and in the absence of applicant. Z. G. Mruke JUDGE 6