elvis prosper koola vs 21st century textiles limited 2021 tzhcld 360 7 september 2021

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT MOROGORO REVISION NO. 01 OF 2019 ELVIS PROSPER KOOLA........................................ APPLICANT

VERSUS 21st CENTURY TEXTILES LIMITED...................RESPONDENT

JUDGMENT 31st August & 7th September 2021 Rwizile J, This application is for revision of the decision of the Commission for Mediation and Arbitration done in RF/CMA/136/2017 dated 14th December 2018. The applicant asked this court to revise the decision of Commission for Mediation and arbitration (CMA) for being decided against the weight of evidence of the applicant and that the commission was not independent. It was factually stated that parties to this application once had a relationship of employer and employee since 27th March 2012 when he was employed on a probationary term of 3 months. His employment as electrician was therefore commenced on 1st March 2012. This relationship lasted for some years, because his employment ended on 30th June 2017. Before termination, it is on record that the same was accused of misconducts of being absence from work without permission, insubordination and mis-use of employer's time during work hours. He was charged and found quilt of absence from work without permission and his employment was terminated. He was not happy with termination. He, then filed a dispute before the Commission. Upon hearing the same. The Commission found that termination was justified and claims by the applicant unjustified and were dismissed. He was only paid the sum of 1,837,718/= as deductions for food and 4 days' salary. He was aggrieved by the decision and

hence this application. Mr. Hamis Salum personal representative from TASIWU appeared at the hearing for the applicant while the respondent was represented by Mr. Adam Mwambene, learned advocate. When arguing the application, Mr. Hamis submitted that the CMA's decision on payment of 1,837,718 is not proper. He said, the applicant was unfairly terminated. Under section 40(l)(c) of ELRA the applicant ought to be paid terminal benefits, since there was no evidence proving that termination was fair. The applicant, he argued, was only given a notice of termination but was not terminated in procedure. According to him, the applicant was already convicted even before the hearing and then a notice followed. The applicant therefore, Mr. Hamis held the view that, he did not get his dues. He lastly said, there was no good cause for termination as per section 37 of the ELRA. He prayed, the holds that the same was not paid his dues. Mr. Mwambene on his party, submitted that the decision of the Commission was justified. He said, payment of one month's notice, compensation for 12 months' salary were baseless claims. Under Section 39 of ELRA, the duty is on the employer to prove fair termination. CMA held, according to him that there was good cause for termination. Because the same was preceded by disciplinary hearing on the charged misconduct of absence from duty without permission which

was repeating as per exhibit MKW1. Exhibit MKW4 accordingly proved there was a serious warning, and insubordination was also proved. He did not like to sign warning letters as per (Pg. 12-13) of CMA award. As to termination procedure, CMA held basing on evidence that the notice and charge sheet were given as per exhibit MKW6-hearing form. The applicant, according to him, was called to a disciplinary meeting but did not attend deliberately, contrary to rule 13(6) of the Employment and Labour Relations (Code of Good Practice) rules, GN 42 of 2007, that is why the respondent proceeded with meeting. According to him, the applicant cannot be paid terminal benefits, compensation and Sacco's payment because the same were not proved. There was no need for payment of notice, leave pay was not also backed by evidence as per exhibit MKW5. Since termination was fair, the application be dismissed. In his brief, rejoinder, Mr. Hamis was of the view that, there was no evidence to prove absenteeism. He added, that the applicant was not warned and there is no evidence that documents were not admitted. He asked this court to grant the application. Having heard the parties, I am asked to determine one point, whether, the CMA decided the matter against the weight of evidence. In this, the applicant has complained that there was evidence to prove that he has ever been warned. He has as well, stated

that the respondent did not prove that he was called in a meeting but failed to appear deliberately. Starting from the evidence. There is no dispute that the applicant was terminated after a hearing that was conducted in his absence. The CMA, held the view which I share, that there was no evidence proving the two misconducts of insubordination and misuse of the employer's time. This is true because, the evidence alleged adduced in all matters was not supported by the whole evidence of the case, but one-sided story of the respondent. The respondent has shown that in a number of times, the applicant did not attend his duty without permission. He was called and the records show he was not accepting warning letters except in one single occasion. It is therefore clear to me that no reason stated by the applicant to show that the letters of warning were concocted. He did not raise the point that for investigation by the CMA or this court. The evidence therefore is clearly and cogent that he was warned but did change. Because he was used not accept letters from his employer, it goes o without saying therefore that it also happened when served with the notice of hearing. The same notice and all letters were served on the worker's union, if they were not, he could have testified so before the CMA and called them as witnesses. I therefore agree with the respondent that the applicant is

to blame for his acts. I hold that the case was not decided against the weight of evidence since there was valid reason for termination. As to termination procedure, there is evidence that he did not attend the hearing. The reasons for not doing so are clear, he did not like to appear. In other words, he absented himself from the hearing which was essential to his employment. Rule 13(6) of the Code of Good Practice, allows the proceedings to proceed exparte, if duly served but did not appear. In this I find no fault in the CMA decision. But what I think, is not the procedure, is about no compliance to rule 13(7) and (8) of the Code. The two rules require the employer to serve a notice informing him the hearing and the decision made and should be informed of the steps to take. As well, he was also to be informed upon termination what to do after his employment has been terminated. These are two glaring none compliance of the law. It may therefore be held that termination though reasonable, it was not fair enough. I have therefore to agree with the award and the amount awarded will remain due. Otherwise, the application is dismissed. No order as to costs is made. AK. Rwizile Judge 07.09. 2021