REV NO 10819 OF 2024 ESSAU AMON TEGGA VRS AZANIA POLY BAG INDUSTRIES LTD

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM APPLICATION FOR REVISION NO. 10819 OF 2024 CASE REFERENCE NO. 202405131000010819

BETWEEN ESSAU AMON TEGGA AND 4 O TH ERS........... ................................... APPLICANT

VERSUS AZANIA POLY BAG INDUSTRIES LTD ............................... RESPONDENT

JUDGEMENT Date of last Order: 31/ 07/2024 Date of Judgement: 16/ 08/2024 MLYAMBINA, J. Briefly, the Applicants were offered a permanent employment contract with the Respondent on August, September and October, 2022 subject to probation period of three months. It is the Applicants allegation that they were suddenly terminated by Respondent at the end of December, 2022 due to poor performance for failure to meet target while they were on probation less than six months without fair labour practice. Aggrieved by the termination, the Applicants referred the matter to the Commission for Mediation and Arbitration (herein CMA) where the matter was registered as Dispute No. CMA/DSM/ILA/24/2023/25/2023. After considering the rival submissions of the parties, Hon. Johnson Faraja L., Arbitrator delivered an Award on 19th January, 2024 where the Applicants claims were dismissed. Unhappy with the CMA's decision, the Applicants filed the present application calling for determination of the following issues: i. Whether Respondent followed fair Labour Practice relating to probations. ii. Whether termination of employment under probation, a burden of proof lies on employer. iii. Whether probationers are entitled for the compensation and other relief. The Applicants were represented by Mr. Donald Olomi, Personal Representative. On the other side, Mr. Mahadi Mvungi, learned Counsel appeared for

the Respondent. The above grounds were jointly argued. It was Mr. Olomi's submission that the Applicants were never given target while they were on probation to the Respondent. Thus, there are no volume, number or level (specification) of target in the employment contract. There is no even evidence of job description which shows amount of target either contrary to Rule 10(2) o f the Employment and Labour Relations (Code o f good practice) Rules, GN. No. 42 o f2007 (herein GN. No. 42/2007). Mr. Olomi submitted that the Applicants were never given opportunity by employer to be represented by a trade union or fellow employees prior to their termination nor being notified of their performance. They were also never given opportunity to respond to the allegation prior to decision of termination in accordance with Rule 10(1) - (9) o f GN. No. 42 o f 2007. He argued that Probationer employees are entitled to evaluation, instruction, training, guidance or counselling, an opportunity to make representative prior to termination and assistance by a trade union representative or fellow employee. In support of the position, he referred the Court to the case of Agness B. Behere v. UTT Micro Finance PLC, Revision. No 459 of 2015, High Court Labour Division, Dar es Salaam dated 21/04/2017 where it was held as follows: Therefore, in Identifying possible unfair labour practice guideline may or be

gathered from the rule which govern the obligation of an employer before a fair decision to terminate an employee on the grounds of poor performance is reached or concluded. See the guideline contents in the Employment and Labour Relation (Code o f Good Practice) GN. 42 o f 2007 as mentioned in the judgment (supra). See for example Rule 10. Therefore, the unfair labour practice by employer under this context may both be substantive and procedural, to borrow the wisdom of Christoph Garbers (supra): In a substantive sense, the failure to inform the employee properly about requirement performance standard and in a procedural sense the failure by employer to afford the employee reasonable guideline evaluation, training, counselling and instruction. The same guideline as mentioned in the excerpt above are clear in the Employment and Labour Relations (Code o f Good Practice) Rules where the guidelines are put for the employer to comply with before the decision to terminate is reached failure of which unfair labour practice relating to probation employees. It was the representative's submission that the Respondent tendered fake warning letters which were rejected before the CMA for not being original and bearing the Applicants' signatures. In the upshot, he urged the Court to fault the CMA's decision. In response, Mr. Mvungi disputed the Applicants allegation that they were never

given target. He stated that the targets are reflected at clause 11 of the employment contracts (exhibit D1 collectively). He firmly stated that the termination procedures in the case at hand were followed. Therefore, the Applicants have no claims against the Respondent. He thus, pleaded the Court to dismiss the application. In the matter at hand, it is undisputed that the Applicants were probationer employees. Therefore, the employer was not required to follow the procedure laid down under Sub-part E o f the Employment and Labour Relations Act [Cap 366 Revised Edition 2019] as well as under the guidelines contained in the Code of Good Practice. The procedures for termination which ought to have been followed are provided under Rule 10(6)f (7% (8) o f GN. No. 42/2007as follows: Rule 10 (6) During the period of probation the employer shall- (a) Monitor and evaluate the employee's performance and suitability from time to time; (b) Meet with the employee with regular interval in order to discuss the employee's evaluation and to provide guidance if necessary. The guidance may entail instruction, training and Counselling to the employee during probation. (7) where at any stage during the probation period the employer is concerned that the employee is not performing to standard or may not be suitable for the position the employer shall notify the employee of that concern and give the

employee an opportunity to respond or an opportunity to improve. (8) subject to sub-rule (1) the employment of a probationary employee shall be terminated if- (a) the probationary employee has been informed of the employer's concerns; (b) the employee has been given an opportunity to respond those concerns; (c) the employee has been given a reasonable time to improve performance or correct behaviour and has failed to do so. Under Rule 10 (8) (supra) fair termination of the probationer employee can exist only when the employee has been informed of the employer's concerns, the employee has been given an opportunity to the said concerns and the employee has been given enough and reasonable time to improve performance performance or correct behaviour and has failed to do so. Examining the records at hand, there is no proof that the above stipulated procedures were followed. The Applicant alleged that he served the Applicants with warning letter before making the decision to terminate them but that is not proved from the records. As it appears in the CMA proceedings, when DW1 was testifying on 21/09/2023, the Respondent tried to tender the alleged warning letters. Upon noting that the exhibits were not properly arranged, the Respondent's Counsel prayed for an adjournment of the matter, a prayer which was granted and the matter was scheduled on 9/10/2022. When the matter was called

on for hearing on the adjourned date, the Respondent did not tender the warning letters as expected and proceeded to tender other evidence. On such basis, the warning letters cannot be relied because they are not on record. Therefore, in the case at hand, the Applicants were terminated without following procedures in accordance with Rule 10(6), (7), (8) (supra). It thus, amounts to unfair labour practice. The Applicants prayed for 24 months remuneration and general damages. As the record speaks, they were probationary employees, hence, cannot enjoy the benefits of a confirmed employee. It is my view that since the Applicants were terminated one month before end of the probation period, they are entitled for the compensation of the remaining one month. This is also the position in the case of Adinani Ally Sipuru & Others, v. Resort World T/A Palm Beach Casino, Labour Revision No. 341 of 2022, High Court Labour Division, Dar es Salaam. In the result, the present application has merit. The CMA's Award is hereby revised and set aside. The Respondent is ordered to pay the Applicants a total of TZS 1,409,600/=. Each Applicant be paid TZS 352,400/=. It is so ordered.

JUDGE 16/08/2024 Ruling delivered and dated 16th August, 2024 at 15:25 hours in the presence of Mr. Donald Olomi, Personal Representative of the Applicants and Counsel Mahadi Mvungi for the Respondent. Right of Appeal fully explained. Vi> YJ. MLYAMBINA

JUDGE 16/08/2024