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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY AT MOROGORO LABOUR REVISION NO. 23210 OF 2024 (Originated from CMA/MOR/15/2023) ISMAIL ALEX KWEKA APPLICANT VERSUS YAPI MERKEZ INSAAT VE SANAYI AS RESPONDENT JUDGEMENT 12/11/2024 & 29/11/2024 KINYAKA,3,: The applicant preferred the present revision emanating from the decision In arbitration proceedings of the Commission for Mediation and Arbitration for Morogoro hereinafter the "CMA" In Labour Dispute No. CMA/MOR/15/2023 delivered on 12^ September 2024. According to the affidavit in support of the application, the applicant was employed by the respondent on 9^^ February 2019 in the position of Dump Truck Driver. On 6^^ October 2020, the applicant's health deteriorated where the respondent allowed him to seek medical attention. Upon being given the sick sheet by the respondent, the applicant went to Temeke Hospital where he was diagnosed with allergic rhino sinusitis on 6^^ October 2020. The sick sheet was admitted in evidence as Exhibit D9. After being put under medications, he was advised to stay away from the allergen dust, smoke and perfumes vide the report from Temeke Regional Referral Hospital dated 9'^ October 2020 admitted in evidence as Exhibit DIO. Following the applicant's submission of the report to his employer, the later informed the applicant of her steps initiated towards termination of the applicant's employment on health reasons and summoned him to attend the meeting on 6'*' November 2020 vide a letter dated 4'*^ November 2020 admitted in evidence as Exhibit Dll. Vide Exhibit D12, the applicant responded to the respondent that he was still sick and could not attend the meeting. However, he requested the respondent not to hold any meeting but to proceed with a decision in accordance with the laid down procedure under the law. Vide a letter dated 9''' September 2020 and admitted in evidence as Exhibit C4, the respondent terminated the employment of the applicant retrospectively from 4"^ October 2020. Vide the testimony of the DW,the respondent's Human Resource Officer Clerk informed the CMA that the respondent paid the applicant 28 days salary in lieu of notice, salary payment to the last working day that is by 4"^ November 2020, 21 days salary pay in lieu of accrued leave, 7 days severance pay making a total of TZS 901,268.50 after statutory deductions. 2 Aggrieved, the applicant initiated a labour dispute before the CMA. After hearing both the applicant and the respondent, the CMA held that the termination was fair in terms of reason and procedure and dismissed the applicant's complaint. In the affidavit in support of the application, the applicant sought before this Court the orders that the CMA erred to make a decision that is contrary to law; that it erred for its failure to consider the evidence of the applicant and its reliance of evidence of one side; erred for its failure to evaluate evidence adduced before it; and erred to deliberately delay the determination of the dispute in order to decide against the applicant. On IZ**" November 2024 when the application came for hearing, Mr. Goodluck Lema represented the applicant while Mr. Humphrey Aloyce learned advocate represented the respondent. Upon being invited by the Court to submit on the application, it was Mr. Lema who began to address the Court by adopting the contents of the affidavit sworn by the applicant as forming part of the applicant's submissions. He informed the Court that the applicant's complaint is the CMA's failure to consider crucial documents received as Cl, C2, C3 and C4 in evidence and evaluated. Mr. Lema complained that from page 5 of the award to the end in which all the exhibits were evaluated, there was no mention of Exhibit C2 which are terms of the agreement between the 3 applicant and the respondent In which under the Introductory part and clause 7, prohibit the respondent from terminating the employment of the applicant if the employee suffers from health complications arising from the employment. He relied on the case of Insignia Limited v. Commissioner General of Tanzania Revenue Authority, Civil Appeal No. 14 of 2017 on page 6 where it was held that ^the correctness of the assessment had to be proved by direct or documentary evidence of the actuai determination and not by a presumption imposing an evidentiai burden of proof on the appeiiant to prove facts which were within the knowiedge ofthe respondent' He submitted that the failure to consider Exhibit C2 led to an unfriendly decision against the applicant. He submitted that Exhibit C4, the letter of termination of employment dated 9^ September 2020 was not assessed by the CMA though the applicant was terminated on 4*^ November 2020. He contended that it is questionable If the respondent fairly terminated the applicant, and that if the CMA was impartial, it would not have arrived at the decision it made. He drew to the attention of the Court on page 9 of the award regarding Exhibit Dll, which reveal that the same was prepared on 4^ November 2020 but had a clause terminating the employment of the applicant. He argued that the letter had two purpose of summoning the applicant to the meeting and termination his employment. 4 Regarding Exhibit D12 reproduced by the CMA on page 10 of the award, Mr. Lema argued that if the CMA had carefuiiy assessed the situation of the appiicant, it wouid have heid that the iil heaith was the main reason for the applicant's failure to attend the meeting. He contended that the change of the CMA file number creates doubt which led to delay in proper determination of the dispute contrary to section 88(4)(a)of the Employment and Labour Relations Act Cap. 366 R.E. 2019, hereinafter the "ELRA". He prayed for the reversal of the award of the CMA and order the respondent to pay the applicant his entitlements as prayed in the opening statement and the final submissions. In reply, Mr. Aloyce prayed to adopt the contents of his counter affidavit as forming part of the respondent's reply submissions. He refuted the applicant's complaint that the CMA did not consider and assess exhibits in determining the dispute before it, as to him, the CMA assessed the exhibits on page 11 through to 12 of the award. He argued further that the terms in Exhibit C2 were geared at protecting the interest of the employee but could not supersede the law, particularly, the Employment and Labour Relations (Code of Good Practice) G.N. 42 of 2007. He submitted that human labour require heaith as a capital. He contended that the applicant through D9 and DIO submitted to the respondent his 5 -fc- letter and the report on his health condition admitting that he was sick. He added that there was no recommendation in Exhibit DIO for the applicant to be given alternative job. He informed the Court that the respondent paid all benefits to the applicant and that the dispute at the CMA was an afterthought. He contended that Exhibit Dll was the letter calling the applicant to the meeting in accordance with Rule 21 of the Employment and Labour Relations (Code of Good Practice) G.N. 42 of 2007, which the applicant responded by informing the respondent that he was sick and that the respondent should proceed with decision making. He contended that Exhibit C4 is an error occasioned by copying and pasting but the letter specifically refers to the letter dated 4^ November 2020. The letter should have been dated 4^ November 2020 instead of 9^ September 2020 and that is why the CMA ignored the same. Regarding the issue of change of numbers of the file, Mr. Aloyce submitted that the applicant first filed the dispute at CMA Ilala which was struck out; he then filed incompetent applications which were struck out after the respondent's objections were sustained by the CMA; on 4^ April 2024, the applicant was the one who applied for adjournment of the matter for four months up to July 2024 due to issues he was facing. He added that it was until 14^ March 2023 when the applicant's application for condonation in 6 CMA/MOR/14/2022 was granted, where he lodged a new dispute f CMA/MOR/15/2023. He submitted that the arbitration of the matter began matter began on 7^ March 2024 after mediation had failed. He blamed the applicant for the delay in the determination of the dispute. He refuted the claim that the applicant was denied proceedings by the CMA as the former applied for the same on 16^ July 2024 on the last day of hearing. He blamed the claim as an afterthought as there has been no any evidence of any follow ups made by the applicant subsequent to the closure of the hearing. He submitted that the case cited by the applicant was irrelevant to the present case In which the applicant denied his own rights. He prayed for dismissal of the application for lack of justified factual or legal ground that would warrant the Court to revise the proceedings and resultant award of the CMA. In rejoinder, Mr. Lema reiterated that the assessment by the CMA was one sided and no exhibit tendered by the applicant was assessed. He argued regarding Exhibit C2 that the respondent cannot claim that it could not supersede the law as he was the one who prepared the same. He added that in Exhibit D12, nowhere the applicant requested to rest or be terminated. He contended that the respondent did not provide any evidence to prove that he paid the terminal benefits and if the same were correct. He added that no bank statement was produced at the CMA. Regarding the error on the date of termination, Mr. Lema submitted that the respondent concealed the letter and did not produce the same before the CMA. He argued that the respondent should have informed the CMA of the errors but they did not do so. He contended that the respondent's objections were sustained in CMA/MOR/14/2023 on 14^^ April 2021 but the CMA ordered the applicant to amend the application, but the remaining objections were overruled in CMA/MOR/09/2022 on 14^^ July 2022; in CMA/MOR/19/2021 on 13*^ August 2021; in CMA/MOR/14/2022 on 21=^ October 2022. He stated that the summons and parties filed documents based on CMA file number CMA/MOR/14/2023. Mr. Lema concluded by informing the Court that though he did not write a reminder, but made follow up of the proceedings and was informed that the same were yet to be prepared. The closure of the parties' submissions justifies the determination of the general question as to whether the proceedings and resultant award of the CMA are tainted with illegality and therefore invalid. In the course of my determination, I will consider each of the grounds of discontent preferred by the applicant found In his affidavit and submitted upon by his representative as well as the opposition by the respondent. I will start with the applicant's complaint that there were changes in the CMA file number and the delay in determination of the dispute. I have read the proceedings of the CMA. The same reveal that the applicant lodged labour dispute number CMA/DSM/ILA/873/20/005/21 at CMA Ilala Dar es Salaam which was dismissed on 7"^ May 2021 for want of jurisdiction. He then lodged labour application number MISC.APPLyCMA/MOR/19/2021 at CMA Morogoro which was struck out on 12*^ November 2021 but the CMA gave the applicant 14 days to refile the application. The applicant lodged labour dispute number CMA/MOR/95/2021 which was struck out on 11'^ March 2022 for incompetency. He again lodged labour application number MISC.APPL/CMA/MOR/09/2022 which was struck out on 14^^ July 2022 but the CMA gave the applicant 7 days to refile the same. The applicant lodged another application for condonation vide MISC.APPL/CMA/MOR/14/2022 which was granted by the CMA on 14''^ April 2023. It was in compliance with order of the CMA dated 14'*' April 2023, that the applicant preferred the labour dispute number CMA/MOR/15/2023 whose award is the subject of the present revision. Even the opening statement g of the respondent lodged before the CMA on 21^ December 2023 is based on labour dispute number CMA/MOR/15/2023 so as the CMA's summons, proceedings and the award. According to the typed proceedings of the CMA, the arbitration proceedings began on 23^'' November 2023 and ended on 12'*' September 2024 when the award was pronounced. I have noted from CMA Form No. 1 that the same contains stamps of the CMA receiving the same Form on 24'** May 2021, 22"'* March 2022, 14'" July 2022 and lO'" April 2023. To me, it demonstrates that whenever the applicant's labour dispute was struck out with an order to amend the same, and upon the grant of condonation, the applicant was filing the same CMA Form No. 1 and the CMA received the same and stamped a new stamp signifying the receipt of a labour dispute. In view of the above, I hold that it was neither the respondent nor the CMA that delayed the hearing and determination of the dispute through changing file numbers. The respondent had unfettered right to raise preliminary objections upon her finding that the applicant's applications wee incompetent. Similarly, the CMA had a duty to determine the objections [See the case of Wilson Richard v. Nokia Solutions Network Tanzania Limited, Civil Appeal No. 500 of 2020 [2024] TZCA 615 (19 July 2024) on page 7]. Apparently, it is the applicant who occasioned the delay in the determinination of the labour dispute by filing 10 incompetent disputes and applications culminating to the grant of condonation application on 14"^ April 2023.1 dismiss the ground for lack of merit. I now turn to deliberate on the applicant's complaint that he was not availed with proceedings of the CMA stated in paragraph 4 of the affidavit. Though it was on record that the applicant wrote a request for proceedings of the CMA on 16''' July 2024 on the last date of hearing, there is no evidence of refusal by the CMA. The admission by Mr. Lema that he did not write any reminder for the proceedings, warrants this Court to dismiss the complaint. After all, the applicant failed to state in the affidavit and Mr. Lema failed to inform the Court in his submissions if the applicant was prejudiced and the extent of such prejudice. I now move on to determine the complaint that the CMA failed to consider the evidence of the applicant, and its failure to assess and evaluate the evidence on record culminating to a decision against the applicant. My reading of the judgement reveal that the CMA considered the evidence ofPW, the applicant herein on page 7, 8, 10 and 12 as well as Exhibit C4 as indicated on page 8 of the judgement. What the CMA did after consideration of the evidence of both parties is to rely on Exhibits D9, DIG, Dll and D12 to hold that there was fair reason and procedure in terminating the applicant's employment. 11 However, it Is crucial at this point to determine whether the CMA correctly assessed and evaluated the evidence on record. I will begin with a complaint that the CMA did not consider, evaluate and assess Exhibit C2, the terms of the agreement in the introductory clause and clause 7 on the right of the respondent to terminate the applicant's employment except on employee's ill health. I agree with Mr. Aloyce that the prohibition under the said clauses cannot supersede the law. Section 37(2)(b)(i) of the ELRA treats incapacity as a fair reason for termination of employment. That is why Rule 19, and 21 of the Employment and Labour Relations (Code of Good Practice) Rules G.N. No. 47 of 2007 hereinafter, the "Rules" provides for fairness as to reason and procedure, respectively, in terminating the employee's employment based on ill health. I hold that even if Exhibit C2 was considered by the CMA, it would not have favoured the applicant as the law allows termination of employment based on the ground of ill health. Regarding the fairness as to the reason of termination of employment, I have considered Exhibits D9, DIO and D12 where it was confirmed that the applicant was suffering from allergic rhino sinusitis and was advised to stay away from the allergen dust, smoke and perfumes after being put under medication for some time. Admittedly, the applicant was employed 12 ^ as a Dumb Truck Driver and his job Involved working In dusts environment. It should be noted that the applicant was employed In the respondent's Standard Gauge Railway (SGR) Project where the respondent was constructing the SGR from Morogoro to Dodoma. The medical report (Exhibit DIO) did not recommend an alternative job. However, even If there was such a recommendation, I agree with the respondent that he would not have been able to offer an alternative job due to the nature of the construction project that was run by the respondent at the time. Under the circumstances, I hold that the respondent's termination of the applicant's employment complied with the dictates of Rule 19 of the Rules regarding fairness as to the reason for termination of employment. On whether the termination was procedurally fair. Exhibits Dll, D12 and C4 as well as 37(2)(c) of the ELRA and Rule 21 of the Rules are relevant. I should point out that I do not find the clause In Exhibit Dll that the applicant's suspension pending the outcome of the meeting that was scheduled on 6'*' November 2020 was tantamount to termination of employment. The clause clearly states: "Kwa kuheshimu na kuzingatia sheria za ajira za hapa Tanzania tunapaswa kufuata taratibu kama ifuatavyo. Kwamba tunakuondoa kazini kuanzia ieo tarehe 04 hadi 06 13 Novemba 2020 Hi kukuwezesha kujiandaa na utetezi/majadiiiano katika mkutano/kfkao cha maamuzi." I hold that the above excerpt did not amount to termination of employment. To the contrary, I agree with the applicant that the CMA did not asses and evaluate Exhibit C4, the letter of termination of his employment that led to an unfavourable decision against him. Notably, through Exhibit Dll, the applicant was called to attend the meeting on 6"^ November 2020 but through Exhibit D12,the applicant communicated his excuse not to attend the meeting due to his ill health and requested the respondent to proceed making a decision in accordance with the labour laws. In my view, the applicant's request justified the respondent's steps taken towards terminating the applicant's employment. Contrary to the submissions by Mr. Aloyce that the applicant's employment was terminated on 4^^ November 2020, DW testified as reflected on page 8 of the proceedings that the applicant was terminated on 6"^ November 2024. Nevertheless, Exhibit C4 is dated 9*^ September 2020 almost two months before the issuance of Exhibit Dll dated 4"^ November 2024 summoning the applicant to attend the meeting on November 2020 to discuss on his employment vis a vis his ill health. In terminating the applicant's employment. Exhibit C4 stated: 14 "Kwa kumbukumbu ya barua yetu ya tarehe 04/11/2020 na kwa mujibu wa majibu yako ya 04/11/2020 kuhusu hati yako ya kiafya kufuatia maoniya wataalamu wa afya na plajitihada na ripoti za wataalamu wa afya, barua hii ni ya kukufahamisha kwamba mkataba wako wa ajira utasitishwa rasmi tarehe 04/10/2020. Kwamba kwa kuzingatia afya na usaiama wako ni kipaumbeie chetu na baada ya tathmini ya njia nyingine mabdaiatunaiazimika kusitisha mkataba wako wa ajira ikiwa ni suiuhisho ia mwisho."[Emphasis added] It is clear from the above excerpt that the applicant's employment was terminated before the call for the meeting vide Exhibit Pll on 4'*' November 2020. In the circumstance, it cannot be said that the respondent complied with the fair procedure under Rule 21 of the Rules to terminate the employment of the applicant if the termination was made on 4"^ October 2020 through a letter dated O'*' September 2020, before the scheduled meeting on 6^*^ November 2020 vide a letter issued on 4''^ November 2020. I have read the entire record of the CMA including DW's testimony, and the final submissions. I have not found anything in the record suggesting the respondent's clarification of the could be error made in the drafting or preparation of Exhibit C4. 15 I hold that although there was a fair reason terminating the applicant's employment, there was no fair procedure in the respondent's termination of the applicant's employment. That said, it is lucidly clear that the termination was unfair as per the dictates of section 37 (2) of the ELRA which provides that: '54 termination ofempioyment by an empioyer is unfair if the empioyer faiis to prove- (a) That the reasons for termination is vaiid; (b) That the reason is a fair reason- (i)Related to the employee's conduct, capacity or compatibility; or (ii) Based on the operational requirements ofthe employer, and (c) That the employment was terminated in accordance with a fair procedure."[Emphasis added] Elucidating the above position under section 37(2) of the ELRA, the Court of Appeal stated in its recent decision in the case of Tanzania (2000) Adventure v. Gasper Mchaki, Civil Appeal No. 533 of 2020 [2024] TZCA 556(15 July 2024) on page 5 that: "The above provision creates the conceptofunfair termination of employment by defining "unfair termination of employment"as termination where the empioyer fails to prove that the termination was for a vaiid and fair reason and that fair procedure was followed." 16 Guided by the above provision, I hoid that the termination of the applicant's employment was unfair and the record justifies me to hold that the respondent failed to prove that the termination of the applicant's employment was fair as required under section 39 of the ELRA. Consequently, the revision is merited. The award of the CMA in Labour Dispute No. CMA/MOR/15/2023 is quashed and the orders emanating from the said award are set aside. The applicant is entitled to be paid by the respondent compensation of twelve months remuneration which shall be paid in addition to, and not a substitute for, any other unpaid amount or benefits to which the applicant is entitled in terms of the law or contract of employment as required under section 40(l)(c) and (2) of the ELRA. The present matter being a labour dispute, I order each party to bear its own costs. It is so ordered. Right of appeal fully explained. DATED at MOROGORO this 29''' day of November 2024. H. A. KINYAKA JUDGE 29/11/2024 17