ditrick rweyemamu vs medical clinic 2018 tzhcld 8 17 august 2018

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 403 OF 2016 BETWEEN DITRICK RWEYEMAMU.................................................. APPLICANT VERSUS 1ST MEDIdAL CLIN IC............................................. RESPONDENT JUDGMENT Date of LastlOrder 05/07/2018 Date of Judgment 17/08/2018 NYERERE, J, The applicant has filed the present application seeking revision of the decision and award of the Commission for Mediation and Arbitration (Herein to b§ referred as CMA) which was delivered on 11th August, 2016 awarding applicant three months compensation. The applicant/ Ditrick Rweyemamu was employed by the 1ST Medical Clinic, as Asslistant Accountant. That on 07th November, 2014 applicant was terminated on gross misconduct. Aggrieved by the termination applicant referred the matter to CM A. The CMA entertained the matter and found that the employer had valid reason for termination and fair procedure was followed. In that CMA awarded applicant three months compensation to the tune of T3H 10,465,713/= that decision aggrieved applicant who file the present revision application faulting Arbitrator's decision and award. At the Hearing of the application applicant appeared in person, whereas respondent was represented by Mrs. Lucia Kiangi Assisted by Mr. Safari Kimbokai. The matter proceeded by way of written submission. Applicant submitting on whether there were valid and fair reasons for terminating his contract of employment contended that, respondent failed to prove validity and fairness of the reasons for applicant's termination contrary to Section 37(1) and 20 of the Employment and Labour Relations Act No. 6/20041. That DWIL, the Clinic Manager, in his testimony admitted that the lost money was in accountant's office, and the office was occupied by Farhaz Juma and RuHinakaratela, which means the money was not lost in the applicant's custody. Applicant went on to submit that there was no evidence to prove the alleged misconduct, that there was no evidence tendered at the disciplinary hearing to prove the applicant caused loss to respondent. The Applicant is of the view that applicant's termination of employment is| contrary to Rule 13(5) of the Employment and Labour Relations (Cod$ of Good Practice) GN No. 42 of 2007. Further applicant argued that, DWI and PW1 testimony was hearsay and that cannot be relied upon, that DWI was on leave on the day the loss occurred thus termination is unfair as per Section 37(2) of the Employment and Labour Relations Act, 2004. It was applicant further submission that, DWI and PW1 testified that applicant had no defined job; however he was employed as Assistant Accountant (Exhibit API), but the disciplinary proceedings Exhibit CMA R1 show he was Head of Accounts, furthermore applicant argued, it was impossible for him to know his duties and limits, as respondent had not established job description of the applicant at the work place, thus respondent act[ed contrary to Rule ll(l)(3 ),1 2 (l(a )(b ) of the Employment and Labour Relations (Code of Good Practice) GN No. 42 of 2007. Applicant] proceeded to submit that on 22nd August, 2014 when loss occured, applicant was performing multiple duties, including Tax Audit by TRA, therefore it is unfair to terminate applicant on negligence. Submittirlg on the investigation, applicant argued, the Managing Director, Dr. Y||)eSmit reported the theft to the police station, also, charged applicant with theft and terminated him, under the circumstances, respondent contravened Rule 13(4) of the Employment and Labour Relations (Cod$ of Good Practice) GN No. 42 of 2007. Applicant went on to submit that, there is no consistence in fairness of disciplinary actions and penalties, that DW1 and PW1 allege loss took place in the office of Farhaz Juma and Rubinakaratela, however, it is only the applicant was found guilty of gross misconduct, and no action was taken against ffarhaz Juma and Rubinakaratela. Further applicant argued that, he was not allowed to call witnesses and the notice to attend disciplinary hearing did not advise applicant to call witness thus contrary to Rule 13(5) of the Employment and Labour Relations (Codfe of Good Practice) GN No. 42 of 2007. Applicant! further argued that he was not given enough time to prepare for his defense, the notice to attend hearing was sent via email, on 28tth October, 2014 and applicant was to attend hearing on 30th October, 2014. Submitting on notice to attend hearing, applicant argued that he was notified on thle hearing on 29tth October, 2014, and that requested clarification on the charges, that respondent provided clarification on the charges on the , 30th October, 2014 and that hearing was at 8:52 am, which means applicant had five hours to prepare his defense. In that, applicant contended that respondent violated Rule 13(3) of the Employment and Labour Relations (Code of Good Practice) GN No. 42 of 2007 which requires a minimum of 48 hours for employee to prepare for hearing. Further applicant argued he was neither consulted nor given investigation report of the charges against him, that he was suspended pending interrial and police investigation, and after investigation he was not given the import, thus he could not defend himself. Submitting on mitigation, applicant submitted that he was terminated without being given opportunity to mitigate the penalty before being imposed, contrary to Rule 13(7) of the Employment and Labour Relations (Code of Good Practice) GN No. 42 of 2007. Further applicant argued, that the disciplinary hearing was chaired and conducted by outsiders, that persons who conducted the hearing were not employee?, thus could not do justice to applicant, this is contrary to Rule 13(4) of the Employment and Labour Relations (Code of Good Practice) GN No. 42 of 2007. Submittihg on humiliation and harassment, applicant argued police arrested him |n front of other employees, clients and he was accused of theft, and applicant was refused bail. Further applicant was suspended pending investigation, and until now applicant has not been cleared on the alleged crime and he is being regarded as a thief, causing harassment and humiliation. Therefore applicant prayls the court to determine that he was unfairly terminated both substantively find procedurally. 6 In rebuttal counsel for respondent submitted that on 22nd August 2014 USD 12,098.00 went missing from cash box in the accounts office, that it was thei clinic's practice that the collected money to be placed in the cash box and Jiven to the applicant, the money was collected from 13th to 21st of August 2014. The accountant then is to put the money in a safe deposit in the accounts office and then take the money to the bank once or twice a week. However the applicant failed to do so, and money was stolen. Counsel for respondent further argued, the applicant, Assistant Accountant wa|s responsible in keeping the money and insisted that DW1 testimony confirms the applicant was responsible for the money collected and he ought to comply with procedure in performing his duties and prevented sucHi a loss. Responding to whether applicant's termination was procedurally fair, Counsel for respondent argued that respondent involved police in the investigation, end applicant was aware the matter was reported to the police. Further Counsel for respondent argued after the investigation, respondent conducted disciplinary hearing and issued notice to attend to applicant on 2$/10/2014, in which was to take place on 30/10/2014. Counsel for respondent went on to argue the Chair Person who conducted the disciplinary hearing and made decision on it, was in no way involved in giving rise to the case. That the Chair Person was from Exor Attorneys and latter represented respondent at the CMA. Furthermore Counsel for respondent argued that applicant was never embarrassed o|r humiliated, that the police have the right to call upon and suspect for q u e stio n in g . And insisted that applicant is not to be reinstated that there is rpo trust anymore between respondent and him. Therefore prays the application to be dismissed. After carefully examined and considered parties industrious submissions, (JMA records of proceedings, Affidavit and Counter affidavit filed in this coiurt, labour laws and practice of this court my decision on the grounds are as hereunder. 1) Whether the respondent had valid reason to terminate the applicant's em ploym ent substantively or procedurally. 2) Whether the respondent followed the fairness of procedure before terminating the applicant's on misconduct (Procedural fairrhess) 3) To what relief(s) parties are entitled? On the fairness of the reasons, Rule 12 (1) (a) (b) (2) (3) the Employment and Labour Relations (Code of Good Practice) GN No. 42 of 8 2007, deals With fairness of the reason on misconduct , an employer, arbitrator or judge is required to decide and consider, for ease of reference I qucj>te here under; "Rule 12(1) (a) whether or not the employee contravened a rule or standard regulating conduct relating to employment; (b) If the rule or standard was contravened, whether or rtot - (i) It is reasonable (ii) itlis clear and unambiguous (iii) the employee was aware of it or could reasonably be expected to have been aware of it (iv) ilt has been consistently applied by the employer, and (v) termination is an appropriate for contravening it (t(ie rule)" Basing on the above rule, in this case, applicant did not contravene a rule or standard; included in written contract of employment of the applicant (Exhibit API), but contravened a standard regulating the conduct of employee att work place which is the common law which suggests that an employee must act in good faith towards the employer. An employee who is guilty of misconduct breached this common law duty. As regards to applicant termination, the CMA record shows that the employee/applicant was guilty of gross misconduct and negligence at the work place causing employer financial loss. With that, it was made clear at the outset by (applicant's that the lost money was at accountant's office, and the office was occupied by of Farhaz Juma and Rubinakaratela, therefore he wps not liable to it. Under thfe circumstances of the case, I am of the view that, applicant failed to exercise the standard of care and skill that could be expected of an employee ii|i his position. The employee knew and could reasonably be expected to (lave been aware of what was expected of him while performing his duties failure of the applicant to exercise due care led to the loss in that the termination was substantively fair. Further in view of the facts above, DW1, Clinic Manager in his testimony on page 4 of the CMA award clearly stated I quote: "kwahiba ili "safe" ifunguliwe walihitajika watu wawili na kwa Utaratibu wa kampuni watu wanne ndio waliokuwa 10 na nywila "pass word" na mlalamikaji alikuwa ndio mtu pekee aliyekuwa na ufunguo wa "safe". On his part, applicant stated; .... mnamo tarehe 22/08/2014 muda wa asubuhi Farhaz alimfliata (mlalamikaji) akamwambia kwenye "cash box' kulikliwa na hela hivyo azichukue aweke kwenye "safe" mlalamikaji akamwambia asubiri aende benki sababu alikuWa siku ya kuandaa mishahara ila aliporudi kutoka benki alipewa taarifa kuwa hela haionekani katika "cash box"....." In my \Jiew, the reading of the above does disclose circumstantial evidence presented by both DW1 and the Applicant, to establish, inter alia that applicant failed to exercise the standard of care and skill as an accountant while performing his duties. With regard to the issue that applicant had no defined job; the court through Exhibit API Contract of Employment this proved the applicant's employment status that, the applicant was employed as Assistant Accountant, tlhough his duties were not outlined. 11 In regard! to applicant's employment status, facts and court records stand unchallenged, it is clear that applicant was employed as Assistant Accountant any remained in that position . It is also undisputed that his duties were consistent with the Accounts field. Having so observed, I am satisfied that applicant being Assistant Accountant w js aware of the rule or standard required in performing his duties, as to put the money in a safe deposit in the accounts office and then take the money to the bank but failed to do so. Therefore there was valid reason tfc> terminate the employee as correctly held by the learned arbitrator in t\\e commission. Now, Whether or not the respondent/employer followed a fair procedure b e fo re terminating the employment of the applicant. The learned arbitrator found that the applicant/ employee was afforded his rights as per rule 13 of the Code of Good Practice Rules 2007, further it is in record that applicant was notified of the intended hearing as per Exhibit CMA-R3, and also was given the option to bring another emplbyee or representative in the disciplinary hearing, contrary to applicants submission because the notice to attend disciplinary hearing did advise applicant to call a representative (Exhibit CMA-R3) I quote: 12 You are entitled to have another employee or representative with you for the disciplinary hearing". To my undierstanding, the notice to attend hearing complied with Rule 13(3) of the Employment and Labour Relations (Code of Good Practice) GN No. 42 of 200|? which requires a minimum of 48 hours for employee to prepare for hearing, as it was in the present case. The notice was issued on 28th October, 2014, and on 30th October, 2014 hearing took place, thus sufficient time for applicant to prepare himself. Regarding the applicant not being availed with the investigation report, thus ha could not defend himself. In this case applicant was aware of the matter being investigated by the police and the internal investigation; I am of the view fair procedures before termination was followed. It ig a finding of this court that respondent did not violate cardinal principles of fairness of procedures. I entirely and respectfully agree with th|e learned arbitrator that the employer had followed the procedure befcpre terminating the applicant. In conclusion I would state that the applicant breached the common law principle of acting in good faith for the purpose of promoting the employer's business. The relationship between applicant/ employee and 13 the respondent/ employer has been destroyed by the gross misconduct of the applicant therefore there is no trust and confidence. As such the two can no longer work together. In that, I fault the arbitrator's decision in awarding three months compensation of TSH 10,465,713/= without justification, as the respondent hatl substantive reason in terminating applicant's employment and he did follow the Procedure before terminating the applicant's on gross misconduct. Consequently, I quash and set aside the CMA award and its decision hence the application is dismissed for lack of merit. It is so ordered. 3UDGE 17/08/2018 14 IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 403 OF 2016 BETWEEN DITRICK RWEYEMAMU.................................................. APPLICANT VERSUS 1ST MEDICAL CLIN IC............................................. RESPONDENT Date: 17/08/2018 Coram: Hon. 3. Simfukwe, DR. Applicant: Present For Applicant: Respondent: For Respondent: Mr. Yusuf Sheikh advocate holding brief for Safari Kimboka advocate C.C. J. Kalolo Court: Judgement delivered in chamber this 17th day of August, 2018 in the presence of the Applicant in person and Mr. Yusuf Sheikh learned Counsel who was holding brief for Mr. Safari Kimboka learned Counsel for the Respondent. e c- S. Simfakwe DEPUTY REGISTRAR 17/08/2018