dastan daudi vs tanzania mineral audit agent 2020 tzhcld 3850 28 august 2020

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM LABOUR REVISION NO. 212 OF 2019

BETWEEN DASTAN DAUDI................................................ APPLICANT

VERSUS TANZANIA MINERALS AUDIT AGENT......................... RESPONDENT

JUDGEMENT Date of Last Order: 08/06/2020 Date of Judgement: 28/08/2020 Aboud.

3. The Applicant filed the present application seeking revision of the award of the Commission for Mediation and Arbitration (herein CMA) which was delivered on 15/02/2019 in Labour Dispute No. CMA/DSM/KIN/R.599/15/16 by Hon. Gerald. J, Arbitrator. The application was made under the provisions of Sections 91 (1) (a) (b) & 91 (2) (a) (b) and 94 (1) (b) (i) of the Employment and Labour Relations Act [CAP 366 R.E 2019] (herein the Act) and Rules 24 (1), 24 (2) (a) (b) (c) (d) (e) (f), 24 (3) (a) (b) (c) (d) and 28 (1) (a) (b) (c) (d) (e) of the Labour Court Rules, GN No. 106 of 2007 (herein the Rules). The applicant moved the court on the following grounds: - i. The CMA erred in law and in fact by failing to consider the evidence adduced by the applicant before it and held that the applicant failed to prove the existence of fair procedures leading to unfair termination. ii. The Commission erred in law and in fact by failing to consider the applicant's final submission. The background of the dispute is that, on December, 2012 the applicant was employed by the respondent as a Minerals Export and Import Auditor for three months contract renewable upon agreement of both parties. It is on record, the contract between the parties had been renewed from time to time with the change of duties and place of work. Upon termination the applicant was on a fixed term contract of three months

which commenced on 01/08/2015 and was about to end on 31/10/2015. On 24/11/2015 the applicant was terminated from work for three misconducts namely, absenteeism, insubordination and contravention of the Code of Ethics and Conduct for the Public SOervice. Aggrieved by the 2 termination the applicant unsuccessful referred the dispute at CMA where the same was dismissed for lack of merit. Being resentful with the CMA's decision the applicant filed the present application. Both parties were represented. Mr. Mbaraka Kaleta, Learned Counsel appeared for the applicant while Ms. Hadija Bakari Ramadhani, Legal Officer represented the respondent. The matter was argued by way of written submissions; both parties complied with the schedule. Arguing in support of the application Mr. Kaleta submitted that, the Arbitrator failed to consider the evidence adduced by the applicant as well as Rule 12 (1) (b) (v) of the Employment and Labour Relations (Code of Good Conduct) Rules, GN 42 of 2007 (herein GN 42 of 2007). He stated that several letters were admitted which explained why the applicant absconded from work. Mr. Kaleta further submitted that, the applicant was making follow up on his transfer and his payment at the Head office of which the Head of Department was aware of it. Mr. Kaleta went on to submit that, it was the applicant's first offence thus, termination was not an appropriate

sanction taking into account the circumstances of which the misconduct occurred. As to the misconduct of 3 insubordination he submitted that, the Arbitrator failed to consider the evidence adduced by the applicant that the text message to the manager was just a reminder of the applicant's rights against the respondent. He added that the Arbitrator ought to make sure that the proper procedures stipulated under Rule 13 of GN 42 of 2007 were followed. Mr. Kaleta submitted that, in this case the applicant was not given his right to mitigate after the hearing he was just handed a termination letter. Mr. Kaleta strongly submitted that the Arbitrator failed to consider the evidence of the applicant which in turn shows the termination was unfair as it did not follow proper procedures stipulated under Rule 13 of GN 42 of 2007. He therefore prayed for the prayers in the chamber summons to be granted. Responding to the application Ms. Ramadhani submitted that, the misconduct of abscondment is provided under Regulation 57 (1) of the Public Service Regulations (GN 168 of 2003) (herein GN 168 of 2003) and its sanction is provided thereto. She stated that the applicant was terminated due to his absence from work for more than five working days as per Regulation 57 (1) of GN 168 of 2003 read together with Order F.16(l) of the Public Service Standing Orders, 2009. She further stated that, the

applicant's text message amounted to insubordination as it shows threat and despise the officers subordinate to CEO. As to termination procedures she submitted that, the respondent followed all the termination procedures as stipulated under part V (B) of GN 168 of 2003. She stated that, after investigation the Disciplinary Committee was formed where the applicant was summoned before it and all procedures were followed to ensure that the applicant is accorded his right to be heard. She further submitted that, the misconduct of abscondment had no any other sanction than termination thus the respondent properly terminated the applicant. Ms. Ramadhani argued that, the reasons for termination were reasonable and fair and that the fair procedures stipulated by the law were followed. She therefore prayed for the application to be allowed. Having gone through and considered the Commission and Court's records as well as submissions by both parties. It is my considered view that the issues for determination before the court are whether the respondent had valid reason to terminate the applicant's employment 5 contract, whether the respondent followed procedures in terminating the applicant and lastly is to what reliefs are the parties entitled. On the first issue, the law requires employers to terminate employees on valid reason. The concept of a valid reason is well elaborated under

Section 37 of the Act which is to the effect that, I quote:- "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" [Emphasis is mine] The above provision is in line with Article 4 of the Convention No. 158 of International Labour Organization which provides inter alia that:- 6 "The Employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operation requirements of the undertaking, establishment of services." [Emphasis is mine] The aim of the legislature in the above provision is to require employers to terminate employees on a valid reason and not on their own whims. In the instant case the applicant was terminated for absenteeism, insubordination and contravention of the Code of Ethics and Conduct for the public service. In any labour dispute the burden of proving that termination was fair is on the employer as stipulated under section 39 of the Act. The relevant provision provide that:- "S. 39 - In any proceedings concerning unfair termination of an employee by an employer, the employer shall prove that the

termination is fair" Starting with the misconduct of absenteeism, the respondent tendered exhibits at the CMA to prove that the applicant was absent from work from 18/09/2015 to 30/09/2013. The respondent alleged that the applicant absconded from work for about 13 days. On the other hand the applicant alleged that the Arbitrator disregarded the applicant's evidence that he had justifiable reason of being away from work. The respondent submitted that such misconduct is provided under part F.16 (1) of Standing Orders for the Public Service, 2009 which is to the effect that:- "F.16 (1) where a public servant is absent from duty without leave or reasonable cause for a period exceeding five days, that public servant may be charged with the disciplinary offence of being absent without leave and punished by dismissal." The above provision is in parimateria with Regulation 57 (1) of GN 168 of 2003. I have careful examine the record, and the respondent's attendance register (Exhibit TMA7) revealed that the applicant was absent from work for the alleged days. The applicant when summoned at the disciplinary 8 hearing, he admitted the misconduct in question. This is reflected at the Disciplinary Minutes (Exhibit TMA12). For easy of reference I quote the applicant's testimony in his verbalism "Swali: Je ulitoa taarifa kwa msimamizi wako kutofika kazini na pia una sababu gani

zilizokufanya usifike kazini? Jibu: Sikutoa taarifa kwa msimamizi ila tayari nilisema kwa Mtendaji Mkuu kabla ya kuanza kwa mkataba huu wa sasa kwamba hali yangu ya kifedha si nzuri na itafika sehemu nitashindwa kufika kazini na pia sababu nyingine ni kwamba mkanganyiko uliokuwepo kuhusu madai yangu na kushindwa kujua natumikia mkataba gani na zaidi ni kukosa nauli." Loosely translation of the quotation above is that, the applicant was asked if he notified his supervisor on his absence from work and in his reply he admitted that he did inform him however before entering into the contract he told Mtendaji Mkuu that, due to his financial difficulties he will not be able to go to work. Under such circumstances it is my view that the applicant intentionally absconded from work. The applicant as an employee was duty bound to adhere to the employer's policy of attending to work every day regardless of his financial difficulties. As the record reveals the parties entered into numerous contracts, thus if the applicant was of the view that the respondent's payment of salaries and allowances did not sustain him he had an option not to accept the job. However he did not do so. Regarding the misconduct of insubordination it is defined in a legal dictionary to mean willful disobedience or refusal to obey one's superior or intentional disobedience of the servant. In the application at hand

the applicant claims were addressed in a letter dated 24/08/2015 (Exhibit TMA3) that the applicant is entitled to transfer allowances and the same were in due process. However the applicant being dissatisfied by the Chief Registrar's response, he sent a text message to him complaining of his right while threatening him and his subordinate (Exhibit TMA 11). Under such circumstances it is my view the respondent was right to charge the applicant with insubordination and such misconduct was proved by the respondent as required under section 39 of the Act by tendering document. 10 Moreover the applicant himself admitted to have sent the alleged text message. The last misconduct was contravention of the Code of Ethics and Conduct for the Public Service. As discussed above the two misconducts were proved against the applicant. Thus, it is crystal clear he contravened the respondent's Code of Ethics and Conduct for the Public service as charged. On the basis of the above discussion it is my view that the respondent proved the misconducts levied against the respondent and the Arbitrator properly examined the evidence tendered by both parties and correctly made the award in question. On the second issue as to termination procedures, the applicant alleged that he was not given the right to mitigate before sanction was passed against him. The record reveals that the applicant mitigated in

the misconduct charged. As to the misconduct of absenteeism it is reflected in the quotation above that the applicant mitigated himself that he failed to go to work due to his financial problem. Turning to the misconduct of contravening with the employers rules and conduct he admitted that he did 11 not use good language however he pleaded that it was due to anger. The applicant stated as follows:- "Hapana, ni kweli sikutumia lugha nzuri ya kuwasiliana nae lakini hii yote ilikuwa ni kwasababu ya hasira." I have also observed other termination procedures, as rightly submitted by the respondent all the termination procedures stipulated under Rule 13 of GN 42 of 2007 were adhered. The applicant was notified of his charge (Exhibit TMA8) and he responded there to (Exhibit TMA 9). Then the applicant was notified to attend at the Disciplinary hearing (Exhibit TMA 10) where the charges against him were levied and he responded thereto as discussed above. The disciplinary Committee found the applicant guilt and he was terminated from work (Exhibit TMA13). Thus, I have no hesitation to say that all the termination procedures stipulated by the law were followed by the respondent as rightly found by the Arbitrator. On the basis of the above discussion the applicant was fairly terminated both procedurally and substantially. Therefore that answers the last issue as to parties' relief that the

applicant is not entitled to any relief 12 stipulated under section 40 of the Act, which are given only when the court found the termination was unfair. In the result I find the application has no merit. The applicant did not put forward any justifiable reasons to fault the Arbitrator's award. Thus, the application is dismissed and the Arbitrator's award is hereby upheld. It is so ordered. I.D. Aboud.

JUDGE 28/08/2020 13