NA TZHC Dar es Salaam 5

• IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 220 OF 2013 1 • _ (ORIGINAL/ CMA/ DSM/TEM/ 116f2009)<> FREDRICK MIZAM BWA .......... I • • • • • I I • • • • I.I.~:~. '•":--:",::.. ~},iii•, :·APPLICANT ··•:·.• VERSUS. TANZANIA PORTS AUTHOJUfV.:'.L .... ~:~ .......... RESPONDENT ,tr .'•'•, ·. ··\ . '. . ~.-· ,'.,;: 1010212014 & 211o;'}ja/f/ · :::·, ->: Aboud,J:·< '.,~-.' ;. The_,apJ~lication is made under Rule 24 (1)(2) and 28 (1) (c) (d)-: pf t_qe Labour Court Rules G.N No. 106 of 2007 and section 91 c1ft2) (4) of the Employment and Labour Relation Act, No. 6 of 2004. The applicant calls upon this court to call for the record and revise the proceeding and dismissal order in the Commission 1 for Mediation and Arbitration (herein the CMA) on the CMA/DSM/TEM/116/2009 at Dar es salaam dated 03/08/2010. The brief facts, are on 17/01/1997 the applicant was employed by the respondent Tanzania Ports Authority (yPoA) as _.::;:.'·' •·.• .. Casual Dock Worker, and worked on different posts::i•arnong:'..pther are Tally Clerk, Casual Security Guard, and Casual El~ctrician. From 02/06/2007 he worked on three month)tontract bases, on 30/06/2008 the applicant received an offer-.·O~ton~' ;ear contract, working as Monthly Dock Worker ,•:,:(M.DW):~)b~ •,,·,;,·.'. ,:. "1./, 08/10/2008 the applicant received a letter fronrteSppncfent that required him to ::/ -::::::•<;:•:~:,···· show cause within five days a:s.to wby ·the respondent should not ·,:::\,.. .. ·.-·: .. ,: , take disciplinary measur~$::-againsf him for not appeared to work for more than four. da't;'.:\ft;;~quently, contrary to TPA rules. On 25/11/2008. the _ 9 ·' p~tlbaqtt\Nas ":<· .. called for disciplinary hearing but the heariog .,_,_,_. ·.,. a,djourned ·->. ';'.<::V\{~S:;- .•.· due to non appearance of the members. . frocn (IDOWUTA) and applicant was told to be notified . '·:--'/~ ··.··~~=-;-~,-- or,_"•>'.: the •·'othe.r,:-date ::.••.·,:·;;· of the hearing. On 25/03/ 2009 the applicant wa§t\~q:pihated. Dissatisfied with the decision of his employer the ··,\-'.'•' applicant referred this matter to CMA claiming that it was unfair termination. At the CMA the applicant was not successful, hence this revision. 2 In this court the applicant were represented by Mr. Nzowa, learned counsel while the respondent was represented by Mr. Msuya E.A, learned counsel. Arguing the application the applicant prayed that thE:\tbntent .~:-. ::>· >:· in his affidavit in support of his application to for,.mtpart 'pf/his ' ' submission. The applicant grounds for revision are artkulated in paragraph 1, 2, 3, and 4 of the supporting affidavit, but at the hearing the applicant counsel consolidatet,~f~opnd. : No. 1&2 and :.~ ·~-·' . ·_,,,_ decided to abandoned ground No. 4,. th¢y ;-: : a'.re quoted below for ' . :.~' ,_ . .. ':.;,· easy of reference; i.) That the arbitratof :~_rred in law and fact for failure t~,(i(~~me the issue concerning substa,~ivlrfai rness. ii.) That tt~!};';~;trator was wrong in law to :·.·,>:~:~t;·.,:~,· ·-"':;~:, .,~:t; that ··the employer has valid .::re·asons to terminate the service of the :~,• , . " ' I applicant without framing the issue concerning substantive fairness. : iii.) The arbitrator erred in law and facts to declare that the employer did follow fair 3 procedure in disregard of the fact that the applicant was not prior notified the date of the hearing and was not given a right to be heard. Mr. Nzowa learned counsel, submitted that the \CMA Arbitrator erred in law and facts for failure to frame >an issue concerned substantive fairness. He said in ap:pli~ant Form No. 1 referred to CMA, the applicant had two is~,d@$: t~\b~ determined by the CMA, the first been procedlJr~.H\tJ~}:fh~~s ·,t:••;•:·,;,:;,; ·>:.~'::::::·, and the other one being substantive fairness,/but _/'." th~ afbitrator only framed one ·:·/:_\:.:-:a•' issue of procedurally fairness)\whichfis an irregularity as he was supposed to comply withtRul;:::::24,(~) of the Labour Institution (Mediation and Arbitratlo~}',(Suidelines GN. 64 of 2007. ', ., ·<~t·:. ,,. ·.•,:;: In arguing ,(Ori':g:r6trhd number three Mr. Nzowa submitted that the ~fifraipr,lrred in law and fact to declare that the employ~r•;:fo.ffow~d the right procedure in terminating the service ofrJhe ;i:i;lid~nt while the applicant was not notified on the date set for .disciplinary hearing, so it is the same as saying that the applicant was condemned unheard, contrary to Rule 13(2) of the Code of Good Practice, GN. 42 of 2007, read together with Paragraph 4(3) of the Guidelines for the Disciplinary Incapacity 4 I and Incompatibi·ll~> Pol-icy and ·Procedure, which is part of the Code. He furth~,r>·Submitted that it is settled law that a body I which is to make decision regarding any discipl\nary action must afford the employee an opportunity to defend himself J:>efore I ,.;:,'·\:-: \ ./:., .,:<·:~·· ::. . condemning him. He cited the case of I.S. Msangi .,y.!i·. lurn11lya .,.::1/:,'. '.:y~~~:::; _ :;_\,:::-·· ya Wafanyakazi wa Tanzania & another, Cijvil Ap:p_eal No. 26 of 199:l.r CA (Unreported) to support)n,+J argu~-~nt. Mr. ."- Nzowa submitted further that all the irre~:Gla.fit~le;§ makes the whole proceedings a nullity. He also suJ),p~ft~;;hiJ argument with the case of Hamisi Jonath~Jl,. Jg;hri\:;~;a~age ,vs. Board of <7' '·'t. s;· \ External Trade, Civil A'ppeal /'=ffb. 37 of 2009, CA (Unreported). And thus ~e . ·~ ;;tfyet1'1for the interest of justice the I court to set aside .thi\:::;decision of CMA and allowed the ·!-~{~'.;,~ ·;t?;~: application. I \ Mr. M,SlJ¥ai/QCJ~"€ --:::";-.); >::: ·--•1 respondent in response from the applicant II submissiqn..''::f:t~.,.-§frongly resisted the application an~ .he said in orper fg;;lf~@\:···~~urt to exercise its revision power, the applicant had\tq pr~~~ the following factors that; I 1. there was a misconduct on the part of the arbitrator, \ 2. the award was improperly procured, I II 5 3. the award is unlawful, illegal and or irrational He submitted that the above mentioned ground are the legal I requirement as per section 91 (2) (a) (b) (c) of the Employment and Labour Relation Act, No. 6 of 2004, but this: applica:tion did not meet the above requirements. He said that is tnein~quir,_rnent of the law particularly Rule 24( 4) of GN. 67 which p;;dvide that issues should be narrowed down by the Arbit?!tor. He submitted '·'' :- that despite the facts that the arbitrator did·::n9t frame the issue '·~.'!:• of substantive fairness but he did cqnsidered .. it, in its award at ·-_:,.•,,•· · ;••,_. ·.· 1 page 5 where the arbitrator s~i¢f· ,:,, "Katika Mgogoro huu w~i~~c!lw~1=Jwamekubaliana ushahidi unajitosheleza kuwa m,~'lamik;}f h~kufika kazini kw~ muda wa 1 siku 13 bila sababu z~'::~$jngi," -.·:;::,;,, ·--:~<\ He said thgt·:,:;:~'.b~prBing to the award the, applicant was absent frqm ..:WPfk::J~:~~m .13/09/2008 consecutively to 25/09/2008 thus this_:~}d~p~):c;·~-not fit either in Section 91(2)(a)(b)(c) of the : :· ·.- ··,:-;_::-. ':,:/~<-·-· Employmeriband Labour Relation Act, No. 6 of 200 4. 1 '•.~:· \: <~~--:~ .; ,' ·Mr:· Msuya submitted further that the applicant was I summoned to appear before the disciplinary 'committee on 25/11/2008 and he appeared, but the meeting was not conducted, and he was formally informed to appear on 6 18/12/2008 but he did not appeared, therefore the applicant was given all chances to defend his case but he waived that opportunity. And he finally prayed this application be dismissed. In rejoinder Mr. Nzowa submitted that substantiye Ja;irness ._:;: :·· .:..:- <\ was an issue to be dealt with by the arbitrator as)f-":is..···:.~.,.in pqg.e4, .. ',, ', • paragraph 1 of the award that said; ,,::- .,, ... "Mlalamikaji alieleza kuwa alikuwa anaumi~\.\na . .... .-. mwajiri .' . ,,_ ' alikuwa na taarifa" Mr. Nzowa submitted this was ath~ 'contentious issue which the arbitrator needed to const~g; w·'ll~}ra.~ing issues. He said it is undisputed fact that the aJbJifar,f:i;·as informed by a letter to . --~·?~~;:::-:>,•-· attend the disciplinary he~:fing on 25/11/2008, and he did so, but the hearing was adjou'i-+1~~,:.·and he was told he will be informed ·-:; ', . ·~: _; ' on the other da.tet::~fiiGtf was not done. Mr. Nzowa prayed the court to aljpyt::t~i~/a,pliication. ,-.•: ·,:'.:'.- I hayet _. . _,:gb.fl~ through the record of the CMA. and this court ·-·. ' ~". ahd. ~ully;cdhsidered the submissions of both parties with eyes of :-.~_>i caution~·•· The issue for determination here are; whether there I were valid reasons for terminating the applicant employment, and secondly was the termination followed fair procedure or not? In 7 other words whether there was substantive fairness and procedural fairness of the applicant termination. It is the established principle that termination of employment which is not based on valid reason ang fair procedure in law is unfair. The law under Section 37(2) of the Emp,c:>yment ·.·.:;_· and Labour Relation Act, No. 6 of 2004 provided that: "(2) A termination of employment by an ertip.l_~jer is unfair if the employer fails to prove- -/: ''>:':,.: · ,, /''' (a) That the reasons '.,:-·· :fg;· ;er~lnat,in is valid; .: :·;~ ... (b) That the reason i~:::i::fa,r0f~ason- -:r-- (i) Rel.at~:,,Jo ,._: ·.•·· the employee's conduct, capacity >< oi:q9r~{patibility; or (i~r ·, ·::~~~~tf :o·n the operational requirements of the ';<\,:,,. ,Y employer, and . . ··(cJ \That the employment was terminated in accordance with a fair procedure" '17:pe'· intention of the legislature is to require employer to terminate employees only with valid reasons and not at their own will or whims. The position of our law took cognizance of the International Instrument to wit International Labour Organization 8 Convention (ILO) No.158 of 1982 which entered into force on 23 November 1985 where as in Article 4, the convention provide that; "The employment of a worker shall not be terminated unle~s-. :,;., there is a valid reason for such termination connecte,d With 'the'.·: capacity or conduct of the worker or based on dp~riitjonal ·-;.:;-,-. requirements of the undertaking establishment or service", " · ·-:~I-. Therefore it is crystal clear in law that p~fbte.,; termination of .;,. employment, employers have to examine:<the\concept of unfair .··· ··:>•·\ termination on basis of the conduqtf q~pacity, compatibility and operational requirement of th~f~·~pfdver~} ·(: :!./ . In this case the appliJ:ant~ia•s:lerminated from employment :~·- because of his conducthwrnat does conduct mean? Conduct of an ·:;,;. employee relates tothl$·•::behavior. In case of termination on this ground as resp,~~~~u~id, as he argued that the employee (applicant)icb~'.~Itt;ect .·,: a serious misconduct that he did not came to work: forJ3-,:,working days consecutively without the leave of his\~mployer. However in support of his application the applicant argued::::'. contrary that he was sick and the employer has knowledge of his absence from work, but Mr. Msuya counter argue this reasons on the ground that the applicant was charged and was served with letter (Form NID 'B') to show cause as to 9 why the disciplinary action should not be taken against him as he was charged but the applicant failed to respond from that. In my view the applicant acted unreasonably for not informing his employer that he was sick and was unable to attend w9:[k, He could have done so vide the letter or other means<::,ivailable. to him. I went through the CMA record particularly tll~-~~sti.,mdh~ -~·::;-. of DWl and the applicant and I found the reasqps for termination was undisputed as the applicant himself agt~;ed<tt,at he did not ·,,;.; go to work for good 13 days. • - <•7;~· .;.'~·-·, The law under the Schectule ~:·t oi GN} 42 of 2007, Guidelines <;~..~._;-;:;":'.-;,-;:>. for Disciplinary Incapacity ~1{ 9_nd ..Jncompatibility Policy and Procedures, Paragraph 1. Which is under the heading "OFFENCES WHICH MAY CONSTITtlt@\SERIOUS MISCONDUCT AND LEADING TO TERMINATIQ~::,Q:f\l\N}~·MPLOYEE" · among other is; . ..•,• . "Abs,11~e:;:fr~ffitwJik without permission or without acceptable rea~ori~;tf9r ril:ore than five working days" '' ,., . . .·,:~-;:>::- ·,· On the:'.~econd _,,. ,· •.' issue as to whether the termination followed fair'pr:q~edure or not, I will consider submissions by the applicant counsel that the Arbitrator erred in law and fact by declaring that the employer followed the right procedure in terminating the service of the applicant while the applicant was not notified on 10 the date set for disciplinary hearing, so it is the same as applicant was condemned unheard. Mr. Nzowa told the court that it is settled law that a body which is to make decision regarding any disciplinary action must afford the employee an opportu_pity to defend himself before condemning him unheard. ,, . I will also consider submission by the respondent;:,.counsel that the applicant was summoned to c1i,-,ear. before the disciplinary committee on 25/11/2008 and:_h~:.dic( . ._, appeared but the meeting was adjourned, and h_~., .was fbrmally informed to appear on 18/12/2008 but h.~·::;•tJid;:(~·~{)1ppeared, therefore the ,:· -~ ·,-:·::~- .': :' ·.. _;· applicant was given all chanc&$ ..to d¢fend his case but he waived ,;,_,.,;.:::··· that opportunity. 0 Section 37 (2) (c)' bt"'the Employment and Labour Relation Act, No. 6 of 2094_:·::p.;~◊rd~,' that a termination of employment by ·-:,· :_:·' an employ~rr·;l§ ·.'.(lr-1f-air if the employer fails to prove that the .-.-, employm,ent'\k/gs: terminated in accordance with a fair procedure. Al$p R~l~ :_J§::., of the Employment and Labour Relation (Code of ··'.>:-·.. .",_ Good>.pr~·ctice) GN 42 of 2007 provide very clear the procedure for termination of employment that first and foremost this Rule requires the employer to conduct an investigation to ascertain 11 whether there are grounds for hearing to be held. Rule 13 (1) of the GN. 42 of 2007 say; "The employer shall conduct an investigation to ascertain whether there are grounds for a hearing to b~:_ .-.<·,,·;• held." I ,..:·•.:.?_-_. And where the hearing is to be held, the employer-;shJ11JJ?tify the employee of the allegations using a form and:::Janguage ..-. that the \··-;. employee can reasonably understand, this,(.is \:learly provided .: • .<,-'.I~• ·.' under Rule 13(2) of the GN. 42 of 2007i:t -•-:',,,; __ :,_;. After a through perusal o{:;:the}$ub~issions, --:'.'" ;_,·•. CMA record and . ,, ·. this court record and considering "Yhat I have gathered in line with the legal requiremept fo/'\p}~cedural fairness principle in ::t/· termination of employm~.nt,'::-. I have this to say, that it is cristal clear the discipljpa~'\:;Q,~~;ti~g committee of the Tanzania Port Authority (re~pq:~-~I~;i) -~iolated the provision of section 37(2)(1) •'., :'., •:'', • -~••,:-.;,, '•'•'•:.:•'•'. I ··-~·~\·.. ';;~~- I of the Erpployrn<#,t and Labour Relation Act, and Rule 13 (1) and (2) of G~:~:4,_: _~r 2007 which forms the basis for fair disciplinary ;<:.~._.{;:,· hea'rir,g .Jn my view. On the record I find no investigation was conducted in this case, there is no report which was tabled during the hearing at the disciplinary committee level. 12 In my view the fact that Rule 13 of the GN. 42 of 2007 provide a mandatory requirement for the empl0yer to conduct investigation, investigation in this case was only to gather the reasons why employee was absence from work for all that time, its violation renders the whole proceeding invalid,:(~·nd;ti,~t,.; .,_ .. is :' I t what I found in this case. 1 · More so I find the respondent violated:):RµI~ J3 (5) which " ··:::t,:/-· provides that; "Evidence in support of the allegatJ9n'::~g~i".'~{ the ~mployee shall be presented at the hearing, ~he" eniploy~e shall be given a proper '·'· ·-.;:,, opportunity at the hearing t~{responi{th the allegations, question any witness called by the employ~fiaq<ttcf call witness if necessary." -::/ provide;- ''Th~ .e~ploy~fuent of a worker shall not be terminated for rea~,~risc:.~Ji;ted to the worker's conduct or performance before he 'is,-.~r~vided an opportunity to defend himself against the \, :c1!fegations made, unless the employer cannot reasonably be expected to provide this opportunity." The above relevant Labour Legal regime, particularly the provision under the Schedule of GN. 42 of 2007, Guidelines for 13 • . l ; Disciplinary Incapacity and Incompatibility Policy and Procedures, Paragraph 4(3) which is under the heading ' DISCIPLINARY I HEARING in my view mandatorily requires employers to formally ' notify employees in writing about the date of the disc!plinary I ,:,: ·:>' hearing. It clearly provide that; "The employee should be advised in writing of the alleg~ti~ns and time, and date of the proposed hearir);g> giving the employee a reasonable opportunity to :Pl;Jjr,,./for the ·-·<·:, hearing". ,: ., I ·•·., It is from the CMA records and3 fr~fn.,-.th; submission of the both parties that the appHc~~~t .:iW:g,S::::. dully informed of the disciplinary hearing which wa~\tqJgke .. cause on 25/11/2008, but ' ,~,,.• the hearing which was h,~ld on 18/12/2008 that resulted to the '· '.,:,:-:,. ¼ v, i termination of the 9ppliqpnt, he was not informed or notified ~ ~~ I whether orally ::6r'·,::j~{>:'\vriting as per applicant's testimony. However/ ,gwt;?:\estffied that during the discip;inary hearing conduct,{2d:~}:~:rit2:§;11/2008 all members including 1applicant was infprm~d::fv~Pbally that the next hearing will be conducted on , . 1s;l.212obs, the evidence which was disputed by ithe applicant, therefore this court find this is a contentious issue and it must resort to what the law say, that is paragraph 4(3) of the Schedule of GN. 42 of 2007 as cited above which is clearly provide that the ! 14 t • I employee should be advised in writing, '(\'hich to my understanding of the prov1s1on the term "should" indicate I mandatory not option In the circumstances lam satisfied that, the I applicant was not informed on the hearing which took pl 9ce on 18/12/2008 as the court found nothing in the record:'co~:Jin~ing : :-: ·,:. <· that the applicant was dully informed as con~endetj__._ by the I .. respondent counsel. I therefore fully agree· with the applicant /i' ·:-,:\_, I _., counsel that a body which is to make de¢.i.siori':\regarding any disciplinary action must afford the empl~~ie;'.:::~n ·:·_. _.,,_. ,'opportunity I to defend himself before condell)pJng{:'hifu_ ~s ·was decided in the :;:•;.· '\;_ ,:; I case of I.S Msangi vs. :;,umui:yif · ya Wafanyakazi wa Tanzania (Supra) where . ·.· ~fie':::::::Cburt of Appe~I at page 6 .• paragraph 1 held that; r . 'i:(>:, •'.' ., :'.:\' "In those ~!"1\l~~/1Rs if the disciplining authJrity was minded to impost·: sanction on him, as indeed it di~, it was right<~-ri:~f:·:j>rtp~f accordance with the principle of natural ·,:·~\-, \> ju~tic.~, tQJJ~ar him before condemning him". ' /:\%:>, ·-,:'' In);fami~;c:lorlathan John Mayage's case (supra') the Court of Ap;Jat:a{,.page 10 paragraph 2 held; . "From all authorities we have noted that the right to be heard has been emphasized as it is so fundamental to the extent that I if it is denied it will vitiate proceedings and the decision that has followed from it." I 15 '· Emphasized the compliance with the rule of natural justice by affording the right to be heard to the parties. In the same case the Court of Appeal quoted the Case of Abbas Sherally and Another v. Abdul Sultan Haji Mohamed Fazalboy,:\ Civil Application No. 33 of 2002 (Unreported) wh_~t~ th~t;~c9.wrt emphasized; i./ · · \' •. · "the right of a party to be heard before ad.verse action or decision is taken against such a party has .,~e~\:~tJd and <,. ·\.:,. I emphasized by the Court in numerous ~ecisiQn~. That right is I\:. ·:_,,:_-, I so basic that a decision which is arrived ; . •,::~.::, alin.-violation . ::•: '. -•,• ' ofiit will '/'. ' be nullified. even if the same decisi'bn would have been reached had the party bee~. hearJ;,:::'b'e~ause the violation is considered to be a breach Jh\~:~::pf{nciple of natural ju~tice." (Emphasis is mine) "·f ···· ·.:·'·'· In that regard l iJ"h-;~<the termination of the ap~licant was unfair one, for tht'~~~To$~r failure to meet the require~ standard , .,: ', ·1 procedure,qn'h~t_tjiin~'tion. ' In;h1~\;;;~G1t the CMA proceeding and award are quashed ahd:~et -~,side respectively. The respondent is hereby ordered to . :•,_. .;? reinstate the applicant as required under section 40(1)(a) of the I Employment and Labour Relation Act, No. 6 of 2004 and failure to do so, the respondent should comply with the requiJement of 16 17