jackob abner ntupwa vs tanzania electric supply company ltd 2021 tzhcld 224 18 june 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 759 OF 2019 BETWEEN JACOB ABNER NTUPWA................................. APPLICANT VERSUS TANZANIA ELECTRIC SUPPLY COMPANY LIMITED..................................... RESPONDENT JUDGMENT Date of Last Order: 15/06/2021 Date of Judgment: 18/06/2021 Z.G.Muruke, J. Jacob Abner Ntupwa an information Technology (IT) specialist was working as Reginal Business application officer (RBAO) Tanesco - Kibaha. In December 2018, there was an allegation that applicant password was used to issue free energy token in Temeke Tanesco regional office, as a result, he caused loss of revenue of ten (10) millions. Following the incidence, respondent suspended the applicant from employment to allow the investigation to be conducted in free and fair environment. Same dissatisfied applicant, thus filed dispute at (CMA) Commission for Mediation and Arbitration claiming compensation of 500,000,000 Tshs for defamation and false imprisonment. At Commission for Mediation and Arbitration (CMA), respondent filed preliminary objection on the point of law that dispute was pre-mature filed, same was sustained by CMA. Applicant was dissatisfied, thus filed present revision to challenge CMA ruling, raising two grounds namely; 1 (i) The mediator erred in law and facts when he arrived at conclusion that the dispute was filed prematurely. (ii) That the mediator erred in law when failed to consider that there was other complaints such as Discrimination, defamation and false imprisonment. Hearing was conducted by way of written submission. Both parties complied hence this judgment. Applicant submitted that, the decision of Mediator intend to close doors of the employees to challenge legality of suspension by allowing employers to suspend an employee at their own will without adhering requirement of law and practice. The suspension had no specific period and the conditions, was embarrassing and it was treated as if the matter was condition of bail in criminal matter, while it was labour issue, this kind of suspension should be challenged. It was further insisted that, employee was promised to be paid his salary fully during suspension, it is good practice but one can ask himself that" is only payment of salary during suspension makes the suspension to be lawful. The answer will be negative, since other conditions must also be considered like time frame. Most of employer have Economic strong Musles • ■ ■ . ■ if they will be allowed, if only salary to validate the suspension most of Tanzanians will remain in street getting free money from employer for their interest. This is contrary to Article 22 and 23 of the Constitution of United Republic of Tanzania which insist right to work and get remuneration accordingly. Section 88(l)(ii) of Employment and Labour Relations Act defines complaint "as any other contravention of this Act or any other 2 labour law or breach of contract or any Employment or labour matter falling under common law, tortuous liability and vicarious liability." From the above quotation is very clear like a full moon that legality of suspension may be challenged before the Commission (CMA) or Labour court since employer can injure an employee especially on tort perspective, insisted applicant counsel, who requested for revision to be allowed. On the other hand, respondent counsel submitted that the act of the applicant had two faces, first it had criminal elements, and on the other side it was a gross misconduct. The proper way to handle the matter of that kind was to report the matter to the police and to suspend him taking into consideration the applicant is a specialist in information technology (IT). Allowing him to stay at the work place during investigation could have make him to temper with the system and obstruct the whole process of investigation. In his submission counsel for applicant argued that the applicant was treated as if it was criminal matter, while it was labour issue, he also raised the issue of time for suspension. The allegations need to be investigated as there is element of criminality. Whenever there are criminal element, there is need to leave matter to the police having mandate to investigate and prosecute insisted Mr. Thadeo Mwabulambo respondent counsel. This court having gone through court records, and submission by both parties:- First issue for determination is whether, the mediator erred in law and facts when he arrived at conclusion that the dispute was filed prematualy. Rule 27(1) The Employment and Labour Relations (Code 3 of Good Practice Rule) GN 42 of 2007 empowered the employer to suspend employee where there is serious allegations of misconduct the rule provide that: 27(1) where there was serious allegations of misconduct or incapacity, an employer may suspend an employee on full remuneration whilst the allegations are investigated and pending further action. It is true that the dispute emanated from labour dispute but originated from allegations of criminal nature. Therefore, reporting the matter to police could not be avoided. As provided under Section 7(l)(a) of the criminal procedure Act. [CAP.20 R.E. 2019] that; 7(1) every person who is or becomes aware- (a) Of the Commission of or the intention of any other person to commit any offence punishable under the penal code shall forthwith give information to a police officer or to a person in authority in the locality who shall convey the information to the officer in charge of the nearest police station. ,s»&. % f* The provision cited give obligation to every person to report to police when he/she finds out that a criminal offense has been committed that is how respondent reported the matter to police, for investigation to be carried out. As to the argument of period of suspension rule 27(4) of GN 42 provides as follows; 27(4) the period of suspension must be reasonable, taking into consideration how long the investigation and the decision on any further action may take. 4 The suspension is the requirement of law, it gives chance for the employer to conduct the investigation in the free and fair environment to reveal the truth. Therefore challenging the suspension is like obstructing investigations. Rule 27(3) of GN 42 of 2007 provides for the reason of suspension, it state as follows; 27(3) the reason for suspension are the following; (a) The employee's presence at work my obstruct the investigation and/or (b) The employee's ongoing performance of work duties may present a problem whilst the investigation takes place. More light was shed in the case of Francisca K. Muindi Versus The Tanzania Ports Authority (TPA) and two others, Misc. Application No. 95 of 2004 (unreported) HCLD Dar es Salaam at page 4, second paragraph that; ....one cannot challenge to be suspended as it is a process in determining whether or/nor one should be terminated. This court cannot issue an injunction to restrain the employer from suspending any one. To the best on my knowledge, the law protects a person in her situation, if one is merely suspended one is entitled to all his /her rights until it is otherwise so decided. If terminated the applicant can still pursue her rights. If she believes that her rights have been infringed, she so can file an application to recover the same. 5 This court fully subscribes to the decision of Francisca Muindi Vs. TPA (supra). Applicant, Jacob Abner Ntupwa by filing a dispute at CMA while on suspension from his employment was not properly done. Whether there is issue of defamation or not is an issue to argued, following termination of applicant employment. To this court, mediator was right to struck out the dispute. Thus, revision application lacks merits, accordingly dismissed. Judgment delivered in the absence of both parties. Z.G.Muruke JUDGE 18/06/2021 6