20131206 TZHC Mwanza

., - I . .- IN THE HIGH COURT TANZANIA LABOUR DIVISION AT MWANZA REVISION NO 35 OF 2013 . . I HAPPINESS GEFFI.. .................................................. ~PPLICANT VERSUS WADHAMINI KKKT (DAYOSISI YA ; I . MASHARIKI ZIWA VICTORIA. ... ................................... RESPONDENT (Original CMAIMZ/433!2mf,1) . JUDGEMENT 10/9/2013 & 6/12/2013 R. M. RWEYEMAMU,J:- Among other things, this case, raise two legal issue/questions I consider important-:-- The first issue has two aspects: a) Whether or not under the Tanzanian law, probationary , r employment is automatically converted into full employment aft~r expiry of the specified probation period,: b) what would be the position where the contract between the parties specifies that employment is subject to successful performance during such period. I ..... The second issue too has two aspects:- c)Whether or not fair employment ~...- termination principles applies in termination of employees unqer probation where the probation, period_ has not expired and: e) Whether . such principles apply whe·re, probation ' period expires without the employer making any decision to con~rm or not to confirm the ! • employee, and the employee continues working, and thereafter, th~ employer decides not to confirm such employees' appointment. d) In other words, is the employe~, under such circumstances, entitled to a reasonable expectation that she/he ·will be confirmed on the job? .1 ) I The parties in this case are the applicant Happiness who was employed on probation i by the respondent (herein after, the Church). Following the Church's refusal to confirm her appointment, she felt aggrieved and refer~ed a dispute of unfair termination to the Commission for Mediation and Arbitration (CMA) against the Church. That dispute was dismissed by the CMA on 20/9/2012. She has filed this application to have that decision revised. In the matter, she was represented by Mr. Khamis Gilla Advocate while the Church was represented by another Advocate, Mr. Aiex Banturaki. Hearing proceeded by way of written submission. Following are background facts which are on the main, undisputed: On 03/3/2011 Happiness passed an interview and was employ~d by the Church, in the capacity of Secretary General of the Church ,with effect from 15/3/2001. In a letter dated 17/3/2013, the Church informed her that she was employed on probation of 6 months from I 15/3/2011 to 15/9/2011. It was also stated in 1that letter that, she would be confirmed after expiry of such a period if she would have successfully performed her duty. To be specific; the letter stated, ".. utakuwa katika kipindi cha fnaamgalizi kuanzia tarehe 15/3/2011 hadi tarehe.. 15/9/2011, baada ya kipindi hiki, endapo utaonekana kuimudu kazi hii, utadhibitishwa na kuajiliwa \ kuwa katibu Mkuu kwa mkataba wa miaka mine"(Emphasis mine). The probation period expired withou,t any feedback from the Church but she continued working in the same position for !3 months, during which period the Church I funded her training in Nairobi, the training was for a "Management Course for Church I Executives /Administrators." That training took 8 weeks ending on 15/11/2011. Shortly after completing the course, she was summoned to two management ;meeting on 17th and 251~ I November. (Details of those meeting are subject of controversy). She was thereafter 2 J I I. • I informed in writing that;" ... Halmashauri Kuu ya D~yosisi (HKD)imeona umeshindwa kukidhi matarajio ya nafasi yako. Apparently, the HKD is/was the C:hurch's Appointing Authority. Following that, she was paid one months' salary in lieu of notic~. Happiness appealed the Church's decisibn to the CMA on grpund that it amounted to unfair termination and sought the following reliefs; reinstatement, payment of remuneration, and payment of 12 months' salaries as comp~nsation. That dispute was dismissed by the Arbitrator Mr. Urassa in the decision subject matter of this apblication. The Arbitrator decided that:- ► Happiness was a probationary employee: .... ► Despite expiration of the probation period, and 1absence of formal information from the Church, she remained a probationary employee until confirr~ed by the Church. That. did not happen in this case. ► • That the Church's appointing authority deliberated I her performance, was satisfied that she unsuccessful performed her duties and refused to confirm her, an action it was entitled to take. ► Given the peculiar facts of the case, HappinesJ·s termination was proper in law. In terms of the questions posed herein ~bove, the position of the Arbitrator was that a probationary employee does not automatically assume employmJnt status at the expiry of the probation period. Such employee merely becomes "eligible for confirmation". He cited as I authority that for that proposition the EACA decision in Mtenga V. University of Dare s- Salaam. I will return to the Court's reasoning both in the High Court and the EACA in the cited case later on below. For now, suffices it to state that Happiness did not believe that the legal position on the question was as construed by the Arbitrator. I 3 .... In formulating the questions I did above, I was in part, desirous of discussing and answering the legal issues posed by Happiness her supporting affidavit which reflects in I part, her understanding of the applicable for which understanding .she may not be alone. The issues she raised were:- "10.0 That, I have been advised by my Counsel, which advise I verily believe to be true, that the Application raises the following legal issues I 10. 1 Whether as of 16th September 2011 the Applicant was still a probationary employee. .. 10.2 Whether in absence of evidence to that effect, it was proper for the Arbitrator to hold that due to the work environment it was intolerable for the Applicant to pontinue to work with the Respondent. 10.3 Whether the Applicant's termination was fair in terms of procedure and reasons. 10.4 Whether it was proper on the part of the Arbitrator to invent His own facts and evidence and apply the same in reaching his decision. 10.5 Whether it was proper for the Arbitrator to order that the Applica nt is entitled to be paid only 1 for the 16 days worked for the months of December, 2011. 10.6 Whether the proceedings manifest errors material to the merits of the dispute before the CMA involving injustice on the part of the Applicant." (The t)NO emphasized grounds will be treated differently) , .. Supporting those grounds, Mr. Gil/a faulted the Arbitrator's decision and submitted in essence that:- i) Happiness automatically became an employee ol the Church after expiry of the probation period, and particularly so because she continued to work in the same position after such expiry and was paid and taken for training, and; ii) she never received I prior information from the church, before expiry of probation infqrming her that she was underperforming, or that she would not be confirmed due to such upder performance. iii) In I view of those facts, Happiness had 'reasonable expectation' of being confirmed. By .. extrapolation, Counsel reasoned that her position was comparable to that of an employee I on fixed contract, where, on poof that the employer's conduct led the employee to entertain reasonable expectation of renewal, such contract would be deemed renewed. In such 4 cases, the fixed term employee is expected tb establish facts which led him to entertain reasonable expectation of renewal. i Vi). Further, Mr. Gilla submitted that Happiness was no longer on probation because Procedures and conditions governing probationary employment and its termination I I prescribed under the under rule 10 (7) & (8) of the Employment and Labour Relations (Code of Good Practice) Rules, GN 42/2007, were not complied with. In response, Mr Banturaki supported .the Arbitrator's decision and submitted in ' answer to the above that: i) Happiness was a probationary employee until she wa~ confirmed or appointed by the Church's appointing authority- Ithe HKD. ii) That the ! . appointing authority (the HKD) sits only three times a year as such, after 15/9/2011, the nearest meeting date of the HKD which could i deliberate on the issue was on 15/12/2011. That was when they met, as such, there was ho delay in communication on the part of the I Church. I (Ill) Counsel further argued that Happiness's appointment letter specified that she would confirmed to the position by the HKD on successful performarice. iv) The HKD was satisfied on grounds adduced, that Happiness had not performed satisfactorily, that was when it refused to confirm her for the positionjand communicated the decision in the letter .. written the following day- 16/12/2011. Mr. Banturaki submitted that the decision not to confirm Happiness was proper in law and in fact.. (v) He stressed that in his understanding I I of the law, a probationary period could not be, and was not, confirmed by conduct. (iv) ; Finally, Counsel submitted that Happiness was still on probation, even I during the period she continued working after expiry of the probation period, she remained on probation until confirmed and appointed by the relevant authority. sl I wish to point out at this stag·e that under grounds 10.4 and 10.6 of her affidavit, 1 I happiness raised issues of misconduct on t,he part of the Arbitrator one being that; he invented facts in respect of what transpired in a management meeting with Happiness prior to the HKD writing a no confirmation letter. I fird it unnecessary to address that issue in this decision because it would not make any difference to the decision. As I shall demonstrate~ the decision depends on interpretation of legal consequences of the fact that is itself, not I disputed. That undisputed fact that Happiness's appointment wa? never confirmed by the appointing authority. Returning to the issues for decision! I will begin by setting out the principles I governing appointment and termination of probationary employees beginning with those I enunciated in the case relied on by the Arbitrator, the case of Mtenga Vs. University of Dar Es Salaam. The relevant facts are that the employee in that case was employed o~ probation. He was kept on (i.e., continued working) after expiry of the probation period. Not only was he kept on after expiry of probation but he was also given salary increment. When the argument of automatic confirmation was raised in the High Court of Tanzania, it was dismissed by the late Biron J., holding that, being kept on after expiry of probation period does not amount to confirmation. (See 1971 HCD 247) The case went on appeal. The EACA confirmed the above decision and held that under the facts of that case, the appellant/employee only established that ~e was eligible for confirmation, but failed ta.. establish the fact that he was in fact confirmed. That Court conyluded, in the paragraph cited by the Arbitrator that; ".. .. as .. .to the confirmed employment of the appellant after expiring M probation period, it is clear from paragraph (iv) of the terms and condition endorsed on the appellant letter of appointment I 6 ... .... which I have already made reference that such expire only renders the employee eligible for confirmation? The appellants in this case have established he was eligible for confirmation. But he has failed to establish that he was in fact confirmed in the appointment ". (Cited from the CMA decision) I have gone though one of the CAT decisions where it had occasion to consider the principle partially. That was the case of Stella Temu Vs. Tanzania Railway Authority, Civil Appeal No. 72 of 2002 where Court was dealing with an appeal from a High Court decisio~ issued in 1999. In that appeal, the Court co'nsidered among other issues; whether an employee on probation had a right to be heard before termination .. The Court's conclusion I was that that; " in the present case, however, we are of the opinion that there was no right of a hearing because I there was no termination but it was merely a non-confirmation while Stella remained in the employment of the MOF. ·It is our decided opinion that probation is a practical interview. We do not think that the right to be heard and to be given reasons extends even where a person is told 1 that he/she has failed an interview".(Emphasis mine). .... I am aware that the said decisions were made before coming into operation of the Employment and Labour Relations Act, 6/2004 (ELRA) (which became operational on 1 5/2/2007). I have therefore considered the question whether th e hitherto position was changed by the ELRA, particularly with respect to application of fair termination principles to employees on probation. I have not been able to find a provision which specifically states a 1 contrary principle. Instead, regarding application of fair termination principles, the ELRA specifically excludes employees with less than 6 months in employment (in practice the usual period for probation) from coverage under unfair termination provisions - Section 35. 1 of the ELRA. 7 ) To strengthen my interpretation of the ELRA on the issue, I have checked I comparable provisions and general practice under the relevant ILO convention, in this case, the Convention 158 and Recommendation 166 on Termination of Employment .. because although the Convention has not beeQ ratified by Tanzania, the country has not availed itself of opportunity to renounce it, and I note that the ELRA gives effect provisions of that Convention. The relevant practice is discussed in the Report of the General Observation adopted by the ILO Committee of from coverage Experts in its 79 th session, 2008, at page 16. It is noted that, under Article 2 of the Convention, categories of workers typically excluded from 1 coverage by fair termination provisions include, probation employeJs alongside casual and ... fixed term employees. It noted that most member states exclude probationary employees from strict protection. Judging from the above, it would the practice,under the convention is similar to the position of Tanzania as presented in the cited case law. Despite my observation above, I should clarify rest I am misunderstood that my understanding of the ELRA is that it embodies principles of fair labour practices in respect of all employees irrespective of their categories; although such principles do not extend to coverage under unfair termination for all categories. Now, fair practice in respect to employees on probation includes a requirement that the decisiqn to confirm or not to.. confirm appointment be conducted in accordance with fair procedures. Such procedures are supposed to observe principles of fairness. g: ... .' To make it easy for practitioners, the ELRA incorporates the Employment and Labour Relations ( Code of Good Practice), GN 42/2007 (the Code) issued by the Minister under section 99 of the ELRA. Section 99(3) provides that the ELRN has to be interpreted in accordance with the Code, and departure must be justified by the! decision maker. In my opinion, departure may be justified where the employer follows ani equally fair procedure. According to the Code, the prescribed procedures are among others that:- 1 "(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 employee has been informed of the employer's concerns; (b) the employee has been given an opportunity to respond to thosy concerns; (c) the employee has been given a reasonable time to improve performance or correct behavior and has failed to do so. I (9) A probationary employee shall be entitled to be represented in the process referred to in sub- rule (7) by a fellow employee or union representative. ... Now, among the question I have to decide is whether oni the facts adduced, the Church observed prescribed procedures or any alternative fair procedures it had, and if not, what relief if any, is Happiness entitled to. After setting out undisputed facts of this case, the parties arguments and examining i governing principles of law and practice, I give summarize the position and give my decision as follows:- 1. Under governing law and practice, expiration of the specified period of probation of an employee renders such an employee eligible for confirmation. The position does... not change where the employee continues to work after expiry of the period. The 9 position remains the same even where an employee continues to work after expiration of the probation period, is given salary increment or further training. A.. probationary employee remains with that status until confirmed by the appointing authority. In view of above position, I find the Arbitrator's decision that Happiness who was never appointed, remained on probation despite expiry of her period of probation to have been proper and justified. I confirm it. I 2. An employee on probation cannot assume appointment under the principle of reasonable expectations based on the employer's conduct, like that displayed by the Church in this case is not a substitution for confirmation, at most, it is evidence of unfair labour. 3. Fair termination principles are not applicable to employees on probation. Therefore, I find, even though for different reasons other than those given by the Arbitrator, that Happiness's .. termination was not substantively unfair. 4. In this case, although the Church "informed Happiness of its concerns; there was no evidence that it gave opportunity to her to "to respond to those concerns; or that it gave i her "reasonable time to improve performance or correct behavior and she failed to do so". 5. In view of that, I reach a decision that the Arbitrator's conclusion that the Church used proper procedures in reaching a no confirmation decision, was on the facts on record, irrational. Consequently:- 1quash and set aside that part of the decision; using powers vested in this Court under section 91 (4) of the ELRA, I find that the Church failed to observe principles of fair labour practice; as ~ result, Happiness was rightly aggrieved and deserves solace. I order that the Church to pay happiness the equivalent of six (6) months' salary as compensation. In the end result, save for part of the decision I have quashed and the order I have made R. M. Rweyemamti JUDGE 6/12/2013 10 .. r I . ' • Date: 6/12/2013 Coram: Hon. R. M. Rweyemamu, J Applicant: Present in person For Applicant: Khassim Gilla Advocate Respondent: Mr. Mchome - AG General Secrei~ry I For Respondent: Banturaki ' CC: M.S. Mlandula/Christopher Court: This matter is for Judgment. Judgment delivered this 6/12/2013. Right of Appeal Explained. ... 11 ... 11