20140328 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION OF THE HIGH COURT AT DODOMA REVISION NO. 16 OF 2013 BETWEEN i FLORA ZABRON KISANGA & 6 OTHERS ...............'I APPLICANTS I VERSUS TANZANIA MEAT COMPANY LIMITED ................ RESPONDENT ! {ORIGINAL/RF/CMA/DOD/174/2011) JUDGMENT 25/03/2014 & 28/03/2014 Mipawa, J. This application for Revision has been filed by i the applicants Flora Zabloni Kisanga and six others as against the R~spondent and their erstwhile employer Tanzania meat company. The application was filed by way of a notice of application under Section 91 (2) (b) (c) of the Employment an Labour Relations Act No. 4 of 2004 and Rules 24 (1), 28 (1) (c) (d) of the Labour Court Rules GN. No. 106 of 2007. In this application the applicants were represented by Mr. Rajabu Jaha from TUICO while the Respondents enjoyed the services of the ·learned counsel Mr. Steven Kuwayawaya. The applicants were terminated from their employment by the Respondent qn 31/03/2011 I 1 for striking and threatening other employees with knives and metal objects for the purposes of restraining them from working. The Commission for Mediation and Arbitration at Dodoma dismissed their trade dispute they had filed in the Commission challenging the decision of the Respondent employer for terminating their employment. The Commission in upholding the Decision of the employer .in "Mgogoro wa kikazl' No. RF/CMA/DOD/174/2011 found that there were no threats to the other employee by knives and metal objects for the sole purpose of restraining those other workers to work:- .... Hoja ya mlalamikiwa kuwa walalamikaji walitoa vitisho kwa wafanyakazi wenzao kwa njia ya visu na vipande vya bomba kuwa wasifanye kazi nivyo kuhatarisha amani mahali pa kazi haina mashiko ... The Commission through the evidence of the Respondent police officer No. E9129 PC Gilbert Katunzi based its finding that the applicants were not found with any weapons and trere were no ; threats. The Commission however found that the applicants were substantially an procedurally fairly terminated for being involved in an illegal strike as leaders. That the applicants were charged and attended the disciplinary hearing with their representative from TUICO I [trade union] the applicants were given the right to be heard and defend themselves two Respondent's witnesses had testified to that effect. The evidence of the applicants in the Commission was adduced by Flora Zablon Kisanga on behalf of other six applicant~ who told the I i 2 ! I -' found that on the material date of 12/07/2010 the employees did not work, they only entered the place of work at 4:30 a.m and when it approached at 5:00 they striked or refused to work ard thence the i work of slaughtering cattle and goats was never done:- I I I ... Hakuna kazi iliyofanyika katika muda wote wa m~saa ya kazi mnamo tarehe 12/07/2010 ... kwa ujumla waliingia eneo la kazi tarehe 12/07/2010 saa 10:30 alfajiri na ilipofika saa 11.·00 alfajiri hawakuanza ·kazi badala yake waligoma hivyo kupelekea shughuli za uchinjaji wa nyama [Ng'ombe na Mbuzi] kusimama wakidai kulipwa na mlalamikiwa mshahara wa mwezi Juni, 2010 katika mizania kitendo hiki ni mgomo ... 1 The Commission also found that the strike was illegal in view of Section 80 (1) (a) - (e) of the Employment an Labour Relations Act Cap. 366 No. 6 of 2004 because it was a dispute of right and not a dispute of interest. He concluded that the claim of salaries by the employees is a fundamental claim of right and therefdre in law it is I not permitted to strike but instead the applicants wer~ supposed to ; I continue with their duties as the General Manager ha~ promised to I pay them:- I I ... Kwa mujibu wa kifungu cha 80 (1) (a) - (e) :cha Sheria ya Ajira na Mahusiano Kazini Na. 6 ya 2004 mgomo huu ulikuwa batili (si halali) kwa kuwa ulikuwa mgomo wa haki (dispute of right) na sio wa kimasilahi (dispute interest). Dai la mshahara ni haki ya msingi kwa wafanyakazi hivyo kisheria haruhusiwi kugoma badala yake walalamikiwa walipaswa kuendelea na kazi kwa kuwa tayari Meneja Mkuu wa TMC a/ikuwa 1 Record: Arbitration award of the CMA at Page 11 and 12. 4 amewaahidi kulipwa mshahara wao siku hiyo tafehe 12/07/2010 ... 1 On the above reasons the Commission concluded that the ! Respondent had valid reasons to terminate the applicants because the strike was illegal. On procedural fairness the Commission found that I I the applicants contentions that they were not afforded the right to be heard and defend themselves was unfounded because the applicants ! were given the charges and every applicant was required to defend himself of herself and everyone was given a letter to appear before the disciplinary hearing committee before their termination thence the I learned arbitrator on procedural fairness concluded that the Respondent followed the procedure of Rule 4 (3) - (4) GN. 42 of 2007. cementing his decision the learned Arbitrator held that the word strike has very wider meaning which included the act of the I I employees entering their place of work without doing any work required of them to do. This was what the applicants did:- ' ... Neno mgomo Jina maana pana/ haimaanishi kwamba kitendo cha mfanyakazi kuingia/kufika sehemu yake ya kazi bt'la kufanya kazi kuwa si mgomo hapana; kisheria kitendo cha kuingia sehemu ya kazi halafu mtu ktJkaa bi/a kufanya kazi pia tafsiri yake ni mgomo; !kitu ambacho ndicho kilichofanywa na walalamikaji hivyo shughuli za uzalishaji wa nyama kusimama kabisa siku nzima .... tarehe 12/07/2010 ... 2 The Commission therefore confirmed• the decision of the employer to terminate the applicants from their employment as there I I I ' 2 Record: CMA arbitration award at Page 13 Para 3 5 was a valid reason and the procedure was followed .. That decision triggered the applicants motive to challenge th~ Commission I Arbitration award in this court. Before this court the applicants were I represented by Mr. Jaha from TUICO trade uni~m while the i Respondent was represented by Mr. Kuwayawaya learned counsel for ; the Respondent / employer. Submitting in support of ~he application for revision Mr. Jaha argued Viva Voce [by live voice] that the Respondent terminated the applicants for allegations of restraining their fellow employees not to work by allegedly threatening them with knives and inducing also others not to work on 12/07/2010 because they were not paid their salaries of June, 2010. Mr. Jaha argued that:- ··· The evidence at CMA showed that there was no employee who was seen holding or threatening others [employees] with knives or metal objects. This is also the holding of the arbitrator at Page 14 of the awardI ... 3 I Submitting further the applicant's representativ~ argued that the arbitrator decided that the applicants were terminated because they striked and that the strike was not legal. He said that on the material date more than fifty employees did not work but were not terminated and the sanction of termination only hit the applicants [seven employees]. He concluded that the employees /applicants were not terminated for striking but by threatening others with knives and restraining their fellow employees to work. However the arbitrator found that the act of threatening others with knives or restraining 3 Record: Proceeding in Revision No. 16 of 2013 6 I them was not proved but raised another issue that they were legally terminated for striking a strike which was not legal. On his part the learned counsel for the Respondent Mr. Kuwayawaya argued this court to confirm the CMA arbitration award because the evidence adduced at CMA proved tt,at the applicants were involved in restraining others from doing or performing their duties:- ··· They [applicants] were the leaders of the strike and participated in restraining others from working ... there is no where they proved that they did not restrain their fellow employees to work or that they were not involved in the strike. It is true that many workers did not work on that day including the applicants but ... the seven applicants are the cause ... The respondent proved that the applicants ... threatened their fellow employees so as not to work ... 4 The learned counsel argued this court to dismiss the application for revision filed by the applicants. In his rejoinder Mr. Jaha representative for the applicants from TUICO rejoined that, the decision of the· arbitrator at Page 12 talked on the strike only for all employees and not applicants alone. The arbitrator also talked at Page 13 of the arbitration award that all employees had striked and in that connection they wonder why the applicants were employees terminated out of many employees who did not work on the material date, inspite of the fact th~t it was not proved that they were leaders of the alleged illegal strike. Having heard the parties when submitting before me and after having had read the record from cover to cover, 4 Record: Proceedings in revision No. 16 of 2013 7 the issue is whether or not the Commission for Mediation and Arbitration was sight to hold that the applicants were validly terminated and that the procedure was followed. Now the valid reason which the learned arbitrator found in terminating the seven applicants was for them being involved in an illegal strike which had also involved all employees:- ··· Nimejiridhisha kutokana na ushahidi wa pande' mbili (2) kuwa kimsingi hakuna kazi iliyofanyika katika muda wote wa masaa ya kazi tarehe 12/07/2010 ... wafanyakazi wa TMC kwa ujumla waliingia eneo lq kazi tarehe 12/07/2010 saa 10:30 alfajiri na ilipofika saa 11 :00 alfajiri hawakuanza kazi badala yake waligoma hivyo kupelekea shughuli za uchinjaji wa ng'ombe na mbuzi kusimama wakidai kulipwa mshahara wa mwezi wa Juni, 201 0 ... kitendo hicho tafsiri yake ni mgomo. 5 j The above except from the Commission for Mediation and 1 Arbitration award speaks for itself that workers of the Respondent all did not work on 12/07/2010 as they were demanding to I be paid their I June salary 2010, the act which the learned arbitrator i~terpreted it as a strike for employees had entered the place of work but did not perform their duties. The learned arbitrator termed the strike as illegal because it was not a dispute of interest as per Section 80 (1) (a) - (e) of Employment and Labour Relations Act No. 6 of 2004 and the same law defines a dispute of interest as "any. dispute except a complaint' strike is defined as:- I ' ' ... a total or partial stoppage of work by employees if the stoppage is to compel their employer any other s Record: CMA arbitration award at Page 11-12 8 employer, or an employer's association to which the employer belongs, to accept, modify or abandon any demand that may form the subject matter of a dispute of interest [Section 4 ofAct No. 4 of 2004]. i In order for the strike to take its shape there must be a complete refusal to work. This is what we all understand a strike . i to mean and refers to a situation where employees refuse to perform I any of their duties. A partial refusal to work. This refers to the situation where employees perform some of their duties, but refuse to perform all of them. The definition of strike as may be seen in the I Employment and Labour Relations Act No. 6 of 2004 lacks an important third element part of the strike meaning apart from the two elements mentioned in the Act which are:- [ I 1. A total stoppage or complete refusal to work.: This refers to the situation where employees refuse to petform any of their duties. 2. A partial stoppage or a partial refusal to work. This refers to the situation where employees pe)form some of their duties, but refuse to perform all of them. Perhaps and I rightly think the third element of the definition of strike has to include what is termed as:- J. The retardation of work this may be where employees carry on working, but at a reduced pace. It may be also called a go-slow another encountered example of a retardation of work is the so called vrork - to - rule where employees exercise their duties strictly in accordance with their contracts· of employment and do no more than the minimum required of them. 9 It is clear from the record that the employees of the Respondents on the material date of 12/07/2010 entered in the place of work but did not perform their duties as required, the record shows also that it was not the applicants only who did not perform their duties but more than fifty employees of the Respondent refused to work or had total stoppage of work on the material date of 12/07/2010 as a result the work of slaughtering cattle and goats was not carried out on that day of 12/07/,2010 as also pointed out by the learned counsel for the Respondent. I entirely and respectfully agree with the learned arbitrator that there was a strike of all employees. However it is not known why the Respondent picked the seven applicants and imposed into them the sanction of termination that they participated in an illegal strike while in fact according to the record all employees of the Respondent who were more than fifty refused to work claiming to be paid June, 2010 salary. I will here ; agree with the representative of the applicants that the applicants were terminate by the employer Respondent for threatening their fellow workers with knives and metal object and restraining them from performing their duties the offence which was not proved in the Commission see Page 14 of the Commission for Mediation and Arbitration award:- ··· Hoja ya mlalamikiwa kuwa walalamikaji wa/itoa vitisho kwa wafanyakazi wenzao kwa njia ya visu na vipande vya [chuma] bomba kuwa wasifanye kazi ... haina mashiko kisheria kwani shahidi wa mlalamikiwa askari Na. £9129 PC Gilbert Katunzi akiwa zamu siku ya ' 10 tukio amekiri mbele ya Tume kuwa alikuta wafanyakazi ... wamesimama kazi kusubiri hatma ya mshahara wao 6 wa Juni, 2010. • I The Commission for Mediation and Arbitration record shows that the applicants were given charges where among the offences was that they restrained other employees from doing the work of the employer, causing loss to the Company after the work of slaughtering cattle and goats was not carried out or done. However there is no where in the record of the Commission for Mediation and Arbitration that prove the fact that the seven applicants restrained their fellow workers to work as the except from the award of the Commission for Mediation and Arbitration quoted above speaks. It ,was even not shown in the Commission for Mediation and Arbitration that the applicants were leaders of the illegal strike. Now let me turn to the definition of strike, the record in the Commission for Mediation and Arbitration shows that the employees on the material date of 12/07/2010 were found not performing their duties, about fifty employees of the Respondent who were pressing and demanding to be paid their salaries of the month of June:- ··· Wafanyakazi wa TMC kwa ujumla waliingia eneo la kazi tarehe 12/07/2010 saa 10:30 a/fajiri na ilipofika saa 11:00 alfajiri hawakuanza kazi badala yake waligoma hivyo kupelekea shughuli za uchinjaji wanyama [Ng'ombe na Mbuzi] kusimama wakidai kulipwa na mlalamikiwa mshahara wa mwezi Juni, 2010 katika mizania ya sheria kitendo hiki ni tafsiri ya mgomo ... 6 Record: Arbitration award of the CMA Page 14 11 I i I I said earlier in this judgment that the act of the Respondent employees not to work was a strike within the meaning of the term strike. However where there was a purpose to strike as required by the definition of the word strike, e.g the purpose of compelling the employer [Tanzania Meat Company to give the employees the salary of June, 2010 as clearly is the situation in this case] but that this purpose has subsequently fallen away. This would be the case where for example the parties settle the dispute or where the employer has agreed to the demands of the employees, it would not therefore in the circumstances constitute a strike. In the present case though there was stoppage of work on the m'aterial date of 12/07/2010, but the purpose of the stoppage of work [strike] was the demand of the employees to be paid June, 2010 salary which was _settled by the employer on the same date of 12/0,7/2010 in that connection the purpose of strike had subsequently fallen because the; employer had settled the dispute and paid the employees the salary of June, 2010 they were demanding right on the same date as the record shows. In other words the stoppage or refusal 'to work was short of being a strike perse. The evidence of the dispute being settled by the employer. and the employer conceeded to the demands of the employees on the material date of 12/07/2010 is noted at Page 9 of I the award and Page 12 of the award:- ' ... Meneja Mkuu wa TMC ,[Respondent] alikuwa amewaahidi kulipwa mshahara wao siku hiyo hiyo ya tarehe 12/07/2010 walalamikaji wenyewe ... walikiri 12 mbele ya Tume kuwa walilipwa mshahara i na mlalamikiwa [Respondent] siku hiyo hiyo tarehe 12/07/201 0 majira ya saa 12:00 jioni kupitia kwenye akaunti zao Benki. I In view of the fact that the purpose of the strike was washed by ' the employer settling the dispute by agreeing or conceeding to the I demands of the employees by paying their salary of June, 2010 ! which was their [employees] discontent thence the foundation and I purpose of the strike had fallen apart, the strike is no longer ! functional it has no purpose and it terminates. Our La,bour Laws are in parimateria with the Labour Laws of South Africa iand it will not be a sin for me to comment the above views by citing a decision of the Labour Court of South Africa which summarized the above situation. In Africa Ltd Vs. SACWU and Others;, SACWU and Others Vs. Africa Ltd 1997 4 BLLR 382(LC) the court held that:- ··· A strike can terminate in various ways one way for a strike to terminate is where the strikers abandon the strike. This normally takes the place (Sic) of unconditional return to work. Another possible way ... is by the disappearance of the substratum. If the Casus be/Ii [cause of discontent] is removed, for example by the employer conceding to the demand of the strikers or by removing the grievance or by resolving the dispute, then the foundation of the strike fall away., The strike is no longer functional, it has no purpose and it terminates. Where the strike terminate, (Sic) so does its protection. It is not in the interest of labour peaceI for strike action to be continued in such circumstances even in the case ofprotected strike. [at 386 D-F] i 13 I In the discussion above after the employer had settled the dispute with the employees and paid them their June, 2010 salary the record does not show that the employees continued to refuse to work, and in case the employees could have continued to refuse to work even after the employer had settled the disputE;? on the same date of 12/07/2010 and had conceded to the demand of the employees by paying them the salaries of June, 2010 it could have been legal and right for the employer to terminate the employees who would have continued with the strike because the foundation of the strike had fallen and the protection likewise. Therefore in my view and considered opinion the learned arbitrator was not right to hold that the applicants were involved in the strike ' and therefore were legally terminated on valid reason. The employer's sanction of terminating the applicants was improper and the court may interfere with it because although:- ··· the determination of an appropriate sanction is a matter which is largely within the discretion of the employer. However this discretion must be exercised fairly. A court should therefore not lightly interfere with the sanction imposed by the employer unless the employer acted unfairly in imposing the sanction. The question is not whether the court would have imposed the sanction imposed by the employer, but whether in the circumstances of the case the sanction . was reasonable ... [the Labour Appeal Court of South Africa in Nampau Corrugated wade ville Vs. Khoza [1999] 201 L J 578 [LAC] at 584 A.CJ In the present case the sanction of the employer to terminate the applicants was unreasonable in the circumstances of the case. 14 i The record does not show that they used threats knives and metal object to restrain other employees to work, no proof of the act was revealed in the Commission for Mediation and Arbitration neither the fact that the applicants were leaders of the alleged ~trike, but the ' complaint of the employer against the applicants was that they had i carried knives and metal objects which were used to threaten fellow employees and restrain them from working. It was a blunt lie of the day by the employer as the fact was disproved by the employer's o~n witness. Therefore the offences in which the applicants were charged are different with the sanction of terminatipn which was imposed upon them on reason of participating in the illegal strike. This was also supported by the learned counsel for the respondents 1 Mr. Kuwayawaya when submitting before me that the applicants ; were the leaders of the strike. However as rightly poin'ted out by the representative of the applicants from TUICO Mr. Jaha that the I applicants were not terminated for striking but for threatening other employees with knives and metal objects for the purpose of ' restraining others from doing the work, the allegations as correctly I pointed by the arbitrator were not established or proved in the Commission by the Respondent. It is my finding also t~at the learned arbitrator was wrong to crop or raise an offence of striking and leveled the same to the applicants that they striked and failed to 1 show how but he only depicted the seven applicants among the fifty plus employees who were alleged to have refused to wprk- striked - 15 I when there was no proof to connect the seven applicants as leaders of the alleged strike or that they threatened other employees and restrained them to work by knives and piece of metal objects. I agree with the representative of the applicants that [when he submitted]:- ··· The employees applicants were not terminated for striking but threatening others with knives and restraining them [from working] to work. However tt,e Arbitrator found that the act of threatening others with knives and restraining others was not provect but raised another issue that they were legally terminated for striking a strike which was not legal ... 7 ' · It was not correct for the arbitrator to crop an issue of strike as the cause of the applicants termination of their employment because the grievance of the fifty plus employees who had stopped to work was removed that is to say the Casus be/Ii [cause of discontent] by the employer who settled setting the dispute by paying the employees their salary of the month of June, 2010 on the same date of 12/07/2010 and there was no proof that the fifty plus employees continued to refuse to work or strike after the purpose of the refusal to work or strike terminated. A cursory glance on the letters sent by the employer to the applicants or charges reveal that the relevant count which could be related with striking was that of restraining other employees from performing their duties or work of the employer. This count and others were not proved in the Commission and it is surprisingly that the arbitrator "fished" out 7 Record: Proceedings in Revision No. 16 of 2013 16 ' i i from nowhere the issue that the applicants were ~erminated for striking. For easy of reference, the charges which are more or less the same to all seven applicants may be seen in the Commission's I record and they read as follows:- MASHTAKA [CHARGES] ·, 1. Kwa nini umeisababishia Kampuni hasara ya Tshs. 3,216,000/= [ikiwa ni ushuru wa siku ya 12/07/2010. 2. Kwa nini umeisababishia hasara Kampuni kuwalipa tidia wadau kwa kutowachinja Ng'ombe wao. 3. Ni kwa mamlaka gani uliyotumia kuwazuia wafanyakazi wasifanye kazi ya mwajiri wao. 1 4. Kwa nini umewaletea hasara wadau kwa kutofanya biashara yao kutokana na Ng'ombe wao kutokuchihjwa na Kampuni [emphasis added] i I As the above charge explains the contents whi~h are more or less the same to all seven applicants the main count was that which appears as No. three (3) which means that' the applicants i were charged also with restraining others from doing the work of their employer. This count was as the record show~, not proved in the Commission for Mediation and Arbitration and the arbitrator himself failed to get any evidence or proof from the Respondent witnesses that the applicants actuaUy restrained others form doing I the work of the employer Respondent. Yet the arbitrator I found that the applicants were terminated for striking the 1Arbitrator was wrong in holding as such. In the event and on the foregone I hold that the Commission for Mediation and Arbitration (CMA), award was ! 17 ·- . improperly procured, it was bad in law and I proceed to revise it and quash the same, in that connection the application for Revision filed by the applicants succeeds to the effect that this court orders the employer Respondents to reinstatethe applicants in their employment because the termination of the applicants was unfair and ·the Commission for Mediation and Arbitration was wrong to hold that the termination of the applicant was fair. If the employer Respondent is not willing to reinstate the applicants he must comply with the Employment and Labour Relations Act No. 6 of 2004 Section 40 (3) of the Act which reads for easy of reference:- ··· Where an order of reinstatement or re-engagement is made by an arbitrator or court and the employer decided not to reinstate or re-engage the employee, the employer shall pay compensation of twelve months wages in addition to wages due and other benefits from the date of unfair termination to the date of !final payment. The respondent is ordered to comply with this order within twenty eight days from when this judgment is pronounced order accordingly. I.S.~a JUDGE 28/03/2014 18 Appearance:- 1. Applicant: Present and Mr. Rajabu Jaha - TUICO 2. Respondent: Mr. Nashon Kalinga - Human Resource Officer COURT: Judgment is read to the parties who are present as above shown today. \~ Ill LS. M~~ci- JUDGE 28/03/2014 Further rights explained. ~U~11\J\ LS. MJ~~ JUDGE 28/03/2014 19