digital grid solution vsomary manywele 2021 tzhcld 60 19 march 2021

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM REVISION NO. 602 OF 2019 DIGITAL GRID SOLUTION..................................APPLICANT

VERSUS OMARY MANYWELE......................

RESPONDENT & X\ JUDGMENT X W • Date of Last 0rder:16/03/2021 Date ofjudgment: 19/03/2021 Z. G, Muruke, J, Omari Manywele was empIpyed/ByAapplicaht for one year under probation period of six months! > He didznoBreport to work for more than \\ five days without permission. XHe was charged, and convicted on Disciplinary hearing. He filed dispute at CMA in which decision was in his favour. Applicant was;dissatisfied, thus filed present revision. On the date set for hearing HeTman^Lupogo represented applicant while Yusuph Mathias reprpsentedsresppndent. 'X' ,z In supporFofcrevision applicant counsel submitted that. According to emplpymentscpntract between the parties herein, exhibit DI, it is clear that, thereXwas six month probation period. Applicant was employed on 21st November, 2016. Respondent termination was on 27th March, 2017 being after 4 months i.e. before expirary of probation period. Provision of Section 35 ELRA, Act No. 6 /2004, read as follows:- i "The provisions of this sub part shall not apply to an employee with less than 6 months employment with the same employer whether under one or more contract." Respondent at CMA claimed for unfair termination which in terms of the provision above was not right. The award at page 7 last paragraph, arbitrator admitted that respondent was in probation period and that he only worked for 4 month out 6 probation period. Respondent

does not quality to get relief for unfair termination provided undet^Sectibh 40 of Employment and Labour Relation Act, that provides for relief of unfair termination. d? Position of probationer employee wasSlaid'down4 in the case of David Nzaligo Vs. NBC Civil Appeal No>61y2016X Karbsso, JA at page 21 held H ''X. J ) that, "Probations is a such a situation that^cannot enjoy the right enjoyed by confirmed employee." Since respondent waQufttler probation, the law bars him from enjoying the benefit-^op-permanent employee. There is no dispute that respondentwasjiobconfirmed. On.the^relief'of the parties, respondent, is only entitled to the payment’ of^Salaiy on days he has worked before termination of employrner|tX~He traveled on 8th March, 2017 and return was supposed to be on 13"* March, 2017. He did not report on 13rd March, 2017. Respondent was entitled for the salary for 12 days only. On the issue of transport allowance was suppose to be given only for 12 days he has worked. Not the whole amount of 250,000 Tshs. Other relief as granted by arbitrator are strongly disputed as not entitled. The award was erenious, granted, ought to be set aside. 2 On the other hand respondent counsel submitted that according to CMA form number one, respondent claimed breach of contract. The said breach of contract was to contravene one of principle of nature justice. Respondent was assigned the

tusk by applicant, he became sick, but applicant terminated respondent. He was communicating with applicant on his sickness. Paragraph 3.4 of affidavit in support of the application, proves communication between the applicant and respondent'.fOnly after Todays from the last communication on 17th March, 2017, ^spondent was terminated. All the procedures were done within>7?days. Hbvw may days then, respondent was given to recover from sickness before termination. From the facts, of the case respgn^en^wassent to perform duty, after communications, sickness wSs repprte¥., Tlo any previous record that “I Vk. )) respondent misconducted. It was first offence. There was no room for A right to be heard. In the eyes of law/T^e said termination was contrary to principal of natural justice^ Sq,, respondent is entitled for payment for the months remained before^qxqiraiV of probation, and general damages for breach of contract.vC\\ In rpjoinder^fespondent counsel submitted that, applicant was aware of<r.espohdent'Sickness as shown in paragraph 3.4 of affidavit in support of the application. It is applicant who attempted to communicate by respondentoy asking his where abouts, being after 5 days from the date was suppose to report to work. It is on record that applicant requested for sick sheet or ED (Excuse Duty) upon several reminders same was not furnished by respondent. This shows

negligence on respondent part, who was supposed to know his responsibility. Reason of sickness is not automatic relief from absenteeism from work without permission. Absence 3 from work is one the offence which may constitute termination in terms of GN 42/2007 in the schedule, item 9. Having heard both parties submission, It is clear that, respondent travelled but did not report to work as scheduled. He was absent for more than 5 days thus applicant inquired his where about as avared at paragraph 3.4 of affidavit in support of application that a That on 17th March, 2017, the applicant contacted’rhe^responderffi’ wanting to know his whereabouts in which the respondent claimed to have abdominal malaria, and he promised to submiXthe sick sheet to <^[ Xx^a the Human resources department on the next^day^but the^promise was not honored. Furthermore, applicant reminded'Tespondeht to comply as reflected at paragraph 3.5 of affidavit in support of the^application that:- That the applicant severally reminded the respondent via emails, phone C\ X\ calls and messages. to firstly^submit the sick sheet or excuse duty form (ED). After/severaferemihders from the applicant the respondent admitted^that^he was* feeling better and promised to go to the office thus the -applicant-intended to serve the respondent with a notice of XX \X intention tchcoriduct a Disciplinary hearing to dispose off the

matter of * M \\ absenteeism) but the respondent never honored the promise, and was XpowhefeTo be found and avoided the applicant. Despite applicant effort to assist the respondent to put his records right yet, he failed as averred at paragraph 3.6 of affidavit in support of application that:- That the applicant could not serve the notice of intention to conduct a disciplinary hearing to the respondent hence the applicant had to 4 conduct the disciplinary hearing on the 24th March, 2017 in absence of the respondent and thus termination of his employment prior to expiration of the probation period. Under normal practice an employer who subject an employee to a probationary period, during the period on probation, the employees, skills, abilities and compatibility are assessed and tested. The probation provides for an opportunity to test one another and to find out-wh'etiier they can continue working with each other for a long period of time in^a'healthy employment relationship. At this point, it it important to understand that, there are two employment contracts. The first is’-during probationary period, and, if successfully completed, axconfirmation is issued to the v employee, culminating in the conclusion‘"ofxaxsecdhd employment contract. The job of a probationary employee is potentially more secure than that of . . _. , 3^ . .. . a temporary employee. This isv because, right

at the outset, the . .. probationary employee hj^Jthe expectation of permanent employment. However, the probationary^employee does not initially have the same degree of security/as'-that^pfJa permanent employee. An employee may ex _ \\ start as probationary employee and become a permanent employee at the 'X\_ end of probationaryjperiod if the probationary conditions have been met. \Jt is my dear observation that the respondent's offer of employment was nobxcohfirmed, this clearly show that the respondent was still recognized as a probationer employee who cannot claim on unfair termination. It is a principle of law that once employee is in probation there is no automatic confirmation of employment. In the case of Commercial Bank of Africa (T) LTD Vs. Nicodemus Musa Igogo , Lab Rev.NO.40/2012, (unreported) It was held that 5 I. A probationary employee, remains with that status until confirmed with the proper authority II. Fair termination Procedure are not applicable to the employees on probation" The same position was reasoned in a recent decision of the Court of Appeal in the case of David Nzaligo Vs National Microfinance Bank PLC, Civil Appeal No. 61 of 2016 CAT, Korosso, J.A, (unreported) held that:- $ a. "At the time the appellant was still in probation, we areqtthe view that, a probationer in such a situation , cannot^enjoy the right and benefit enjoyed by a confirmed employee. Since The respondent was still a probationer at the time he resigned^and he cannot benefit from remedies under Part III E of<theELRA."^

A XX Moreover, this court in the case^x^^hamed Kitabuddin Vs JD United Manufacturing Co Ltd & ^nzar^Toblsu,'@arments Limited, HC Lab. (t 'Xx. Rev. No. 934 OF 2O18(unreported) It was:hfeld that: Probation period is a kin to^engagement before marriage'. As the saying goes 'The job interviewishot over until employee has gone through the probation'. Also in the case of'Stella Temu Vs Tanzania Railways Authority, Civil Appeal No.72^of '^OOZr'CAT, while answering the issue of whether the prqbationfem'gl^eeyhad a right to be heard for termination, Court held .. Xs. & X ” that;v\ ’Sfc'V "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" it further stated that probation is a practical interview. With the above observation, I find the arbitrator incorrect for holding that, the respondent is covered under S.37 (2) of the Employment and Labour Relations Act, No.6/2004 while he was a probationary employee. As far as reliefs are concerned, since the respondent was a probationary employee, not covered by the law as observed and he himself misconducted by not reporting to work from 13 march uptiLter^minated on 24th March, 2017, he cannot benefit from the wofk^he hasttnot, oone. Absent from work without permission is one of the offence that can lead to misconduct, thus termination is an apprdpdate^remedy. Revision application allowed. Thus applicant is only'entitiedxd’a salary on days that he had worked for month of Marchandfuel^allbwance being 12 days only. The award of 4,125,000Tshs is quashed and -set aside. Revision allowed to n /ft the extent shown

JUDGE 19/03/2021 i / .X X Judgment delivered in the presence of Herman Lupogo for applicant and Yusuph Mathias for the respondent. [\

JUDGE 19/03/2021 7