edi secondary school vs ezekiel damas sinyangwe 2014 tzhc 2365 18 june 2014

IN THE HIGH COURT OF TANZANIA (LABOUR DIVISION)

AT MBEYA REVISION NO. 10 OF 2013 EDI SECONDARY SCHOOL................ ......... ./APPLICANT VERSUS i \ EZEKIEL DAMAS SINYANGWE.....^..;....:^....RESPONDENT '"WgK a % (Origin&lCMA/MB Y/161/2012) 05/11/2013 & m Aboud. 3 "'*5hr. Th§ ijjpiiSa'tion is made under Section 91 (1) of the W jtet- EmpH^ment^nd Labour Relations Act, No.6 of 2004 and Rules 28 (l)(c ) $!fand (d) of the Labour Court Rules, GN.106 of 2007 and any other enabling provision of the law. The applicant calls upon this court to revise the arbitration award passed by the Commission for Mediation and Arbitration (herein the CMA) at Mbeya on 30/04/2013. Shortly are the facts of the matter. The respondent filed a complaint at CMA claiming for Tshs. 53,567,327/= being the Terminal benefits for unfair termination. The a f plicin\ objected .?<?' ■**&= &•- the claim on ground that the respondent is entitled^ to^lerminal benefit because he was in probation when vyiSs,terminated. In his .U C C.>. , decision the arbitrator fond the responSPept's^rmination was <r. . M r ,. procedural and substantively unfajfl^fte afcarcled the respondent compensation of twelve m^h’ths%ala'1|es to the tune of Tshs. 10,440,000/= and one month notice to the tune of Tshs.522, 000/=. Dissatisfied tfye^ipplicant filed the present application. The respondent- fifed a notice of preliminary objection through the gc&jn^gr affidavit. During the hearing the

respondent prayed to wl$idr|w the preliminary objection so as to proceed malUj application, the payer which was granted by the %# Courf.% At the hearing the applicant was represented by Mr. Rweikiza, Advocate while the respondent appeared in person. 2 |P a g e The parties advanced arguments in support and against the application. Mr. Rweikiza, Advocate for the applicant submitted that the applicant was not served with the notice and other documents to appear before the CMA for Mediation and Arbitration. That the case was entertained by#th§#gspondent with unauthorized people without the knowledge of the Manager of the applicant. He said that the applicanftbecome aSvare of the dispute when he was served with the avyar|_by th§ respondent on 24/5/2013. Therefore the Arbitrator, erfiga^in not taking in to V consideration whether the gpplicantwipPesentatives were dully authorized by the applicant to appegr'-before the CMA. Mr. Rweikiza furthMsubmitted that, the Arbitrator erred in awarding the respoodent %hile he was not the applicant's employee:. He tlferefore'p'rayed for the application to be allowed. In ijepryyihetrespondent submitted that he was employed by the;. Headmaster’ of the applicant on February, 2012 and was termi^j^^oh 10t September, 2012. The respondent said, he served the applicant with summons from CMA which was signed by the Headmaster of the applicant, one Mr. Daud

Mwakakenda. He submitted further that at the CMA, Mr. Mwatujobe and Mr. Pastory Ndimbo, both the teachers from the applicant appeared 3 1P a g e ...... ‘ *" .... during the mediation and arbitration at the CMA. He therefore said, it is not true that the applicant was not represented. Having gone through the parties submissions I find two grounds which the applicant has argued against the CMA decision and which the court will determine, that is, first itfe efpfjlicant.was not afforded an opportunity to be heard at CMA and secbnd, that the respondent was an employee of the apj^iiant. On the first ground, the appljcahfc v&as served with the summons to appear for mediatiqfP dated 20th September, 2012 which was received and ligned^^yjthe Headmaster of the applicant, one Mwakaker^a 0?iyorf25/9/2O12. Furthermore the proceeding on the disputeshows clearly that the applicant was represented by^gQe\G^frey Mwatujobe and he had three witnessesi-who testified on the matter, both are the employees of the applicant,, Rasing on the records it is evident that the applicant wai^afforded an opportunity to be heard, it is enough "v *s ^ ... jS k that tne Headmaster of the applicant received the summons and the other teachers appeared and testified during the proceedings of the matter. Moreover, since the applicant alleged that he did not authorize the representative to appear on his behalf, I am

of the view that the applicant has the duty to prove that the representative and the witnesses who appeared and testified before the CMA were not his representative. Therefore I do not agree with the applicant that they were not given the right to be heard. This ground is found to have no merit. On the second ground that respondent wassfiot^nlemplpyee 'S jl v .‘V of the applicant, it is undisputed that the respondentias an employee of the applicant since February, 201^2. According to the records, that is the testimony of the ^ ptyganrr witnesses the respondent was on probation jxj&Q. employment was terminated on 10th SepteiriJter, S^liHdue to misconduct. The Court asked itself as to ^Jjat dpes the law say regarding termination on employm*e|t? Rule 10 (1), (2) of the Employment and Labour Relations (Cocfe- of Good Practice) GN.42 of 2007 provides that; a!^ employees who are under . proffitfphary o f not less than 6 months, their term ination procedure shall be provided under the guidelines. (2) Terms o f probation shall be made known to the employee before the employee commences employment". Basing on the above provision the applicant had the duty to prescribe the terms of probation to the respondent and the :8T ’“ '♦ jiu ■«.> _> procedure for termination. However looking at tfie^redords the applicant failed to adduce any evidence rega/ding the terms of probation of the respondent and 4h% pr&^dure for his termination. Therefore I agree wi^Wtif#,, Arbitrator that the J '^ % , ^ J ‘ respondent employment v/as unlawfully terminated. I totally % . .v disagree with the applicantwiat |he respondent was not his employee, because that1& contrary to the evidence in record.

JUDGE 18 Date: 18/06/2014 Coram: Hon. I.D.Aboud , Judge Applicant: Absent. For Applicant: J Respondent: Present % For Respondent: C/C Subira X:. % Order: Judgement delivered on £8/;6/201f1n presence of the respondent in perign ancNh^applicant is absent. vJ.D.ABOUD

JUDGE 18/06/2014