illovo distillers tanzania vs gasper ringo 2021 tzhcld 371 6 september 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT MOROGORO REVISION NO. 47 OF 2020 ILLOVO DISTILLERS (TANZANIA)......................... APPLICANT VERSUS GASPER RINGO.............................. RESPONDENT JUDGEMENT 31st August & 6th September 2021 Rwizile J. This application is for revision. The applicant moves this court to & revise the decision of the Commission for the Mediation and Arbitration, RF/CMA/MOR/140/2014, dated 11th November 2015. It is filed by the chamber summons supported by an affidavit of Mwanaidi Kiya. It contains grounds for determination at paragraph 4 of the affidavit hinging on two points thus; /. The Arbitrator erred for failure to hold that termination of the employment was for justifiable grounds based on willful insubordination o ii. That the Arbitrator erred in awarding 18 months compensation without establishing exceptional circumstances or reasons Facts leading to this dispute were clearly stated that the applicant employed the respondent on permanent contract. Their relationship th commenced on 30 September 2013, when the contract was signed. However, on 19th October 2014, his employment was terminated. Before termination, it is on record that the respondent whose duty th was a leaf operator, on 15 September 2014, refused to obey a lawful order given to him by his superior to clean a cooling tower strainer. Following this event, investigation was conducted and disciplinary hearing were commenced with the charge on similar issue, the respondent was found guilty of insubordination and hence ■'i-V '<?' terminated from employment. The respondent was not satisfied with termination and filed his dispute at Commission. Following the hearing, the Commission did not condone termination a fair. It awarded the amount of 7,276, 500/= unfair termination and compensation. The applicant was aggrieved by the decision hence this application. o Before this court, the applicant was represented by Mr. Danstan Kaijage advocate from the Law Care Chambers. The respondent was in the service of Mr. Jamal Ngowo learned advocate from TUICO. At the hearing, Mr. Kaijage submitted, three witnesses attended the hearing at the Commission, and proved good reason for termination. He said, Dw2 elaborated and proved the misconduct conduct committed. To his dismay, CMA considered one ground for termination, other grounds of misconduct proved the respondent refused to do the job assigned, which is a gross-misconduct. The learned counsel said, his defense that the duty was not in his job description was not raised at CMA. According to him, gross misconduct was left out and blessed by CMA. In his view, powers of employers to manage misconduct was condoned by CMA. Section 15(C) of ELRA, he said was for unfair termination and not applicable because the respondent had a written contract as per section 15(2) of ELRA. No evidence produced by the respondent to justify the same. The award impugned, he went on by submitting, gave 18 months awarded was contrary section 40(l)(c) of ELRA without reasons to justify it. Compensation must be fair and o judiciously. We pray that this court be pleased to revise the CMA award as prayed. Opposing the application, Mr. Jamal Ngowo, was clear that he who alleges must prove. It was not proved that termination was fair, he added no evidence produced to that effect under section 37 ELRA. The advocate was clear that reasons for termination must be fair and so proved. The act of the respondent was not proved to be a gross­ misconduct to warrant termination because the duty assigned to do was of 3 people and was forced to perform the same alone. Section 15(c) of ELRA, he argued, was for job description and not the contract of employment. If work changes, occurs in the duty station, % the worker is informed in writing about the changes. He submitted; it was the duty of the applicant to follow the procedure for fair termination as per Rule 9(1) of GN 42/2007. In his view, fair procedure for termination is provided under rule 13 of GN 42/2007 ■' ..... Lastly, he argued an award of 18 months as compensation is in line with section 40 which provides for not less than 12 months as she did. By his Rejoinder Mr. Kaijage, submitted that the respondent refused to work, because the job needed three people. The respondent did not even attempt to do the work like others. For him, it was a valid and fair reason for termination. He asked this court to hold that termination was fair as the law requires. The arbitrator after hearing the dispute found out that there no justifiable reasons for termination. She ruled out that the respondent was justified to disobey the order due to his security and the obtaining circumstances which involved rain and it was at night. The , . , . . .. respondent gave evidence on his own. The applicant case was mannered by three witnesses Dwl, Dw2 and Dw3. Dwl was the person whose order was disobeyed. It was done in the presence of Dw3. Upon examining the evidence of both sides, it is apparently vivid that Pwl, the respondent does not dispute that Dw3 was present when it % Fw was happening. The evidence he gave, ie Pwl was solely forming the basis of the award. This means he was believed to have told the truth compared to Dw3. My examination of both evidence of the two, clearly indicates that there was no bad blood relationship between Dwl and Dw3 on one side and Pwl on the other. I am saying so because, Pwl does not o dispute to have been assigned the duty. He admits he did accept doing the same because it was difficult to do it alone and had working gears. This, however goes contrary to the evidence of Dw3, who said, it has been the case that when one is asigned the same, he has calls others to do it. When the respondent refused, the only reason given was that it was at night. Dw3 and his fellow went ahead and tried to do it. In law, failure to obey the order of the superior officers at the work place constitutes a grave offence called insubordination. It falls therefore in a category of misconducts that may attract termination as per item 9(2) on general offences and breaches of organizational rules. Offences which may constitute serious misconduct and leading to termination of employee, as it is the schedule to the Employment I and Labour Relations (Code of Good Practice) Rules, GN 42 of 2007. I am therefore not in line with respondent and the finding of the arbitrator that the respondent was justified to straightaway disobey his superior. According to his contract of employment clause 5 bound him do perform other duties even though not his. This, I think is common to all, employers and employees. But looking at his terms of his employment and the evidence given by Dwl and Dw3,1 am o content that he was always not assigned a specific duty. He was therefore bound to try the duty and compromise the impossibility of doing it alone. As to whether, there was rain at the material time both Dwl and Dw3 Said it had stopped but they all admit that it was at night. From the A /A foregoing, I do not think that the respondent was justified to do what he did given the circumstances that were prevailing. I am not saying all orders must be obeyed at the work place. But reasonable orders given reasonably must be obeyed. There is not suggestion that the I: same was among the dangerous works not be performed. In this the v: I ■ decision of the commission is not justified, therefore there was a valid z:: On the second ground, one has to venture, into whether termination was fair or not. The commission was of the view that it was not, the reason given, is that the disciplinary hearing was not fair. I agree with the same finding. The hearing was not fairly done because the respondent and his representative were forced to leave the meeting because it was not conducted in a manner that was in line with best practice. It was therefore the duty of the employer to prove that the same was not true. But evidence in this party is overwhelming as their admission by Dw2 about. That being the case. I do accept the submission by the respondent in this aspect. This leads me to the holding that the same was not fair. If the termination is not fair then the consequences for unfair termination have to flow towards the respondent. This leads to the reliefs. From the above, the respondent is to fault for the misconduct but was not fairly terminated in terms of procedure. This means, the application is partly allowed, therefore, the consequences of the same is the reduction of compensation awarded. The commission awarded the respondent compensation of 18 months. This, I think is not fair on party of the applicant. To meet the justices of this case. I think I have to reduce the same to 12 months as the law provides. In the final analysis the application is partly allowed to the extent explained herein. ■0 AK. Rwizile Judge 06.09. 2021 o