jetendra kapoorchand solank vs machine and tractors t ltd 2022 tzhcld 909 28 september 2022

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM LABOUR REVISION NO. 389 OF 2021 (Arising from the decision of the Commission for Mediation and Arbitration of DSM at liaia (Mbena: Arbitrator) dated 27th Day of August 2021 in Labour Dispute No. CMA/DSM/ILA/620/19/306) JETENDRA KA POO RC HAND SOLANK ....... APPLICANT

VERSUS MACHINE AND TRACTORS (T) LTD........... .................... RESPONDENT

JUDGEMENT K. T. R, MTEULE, J 8th September 2022 & 28th September 2022 Aggrieved with the award of the Commission for Mediation and Arbitration of Dar es Salaam, Ilala [herein after to be referred to as CMA] the applicant has filed this application for revision under Sections 91(l)(a)(b), (2)(a)(b)(c), (4)(a)(b) and 94(l)(b)(i) of the Employment and Labour Relations Act No. 6 [CAP 366 RE 2019]; Rules 24(1), (2)(a)(b)(c)(d)(e)(f), (3)(a)(b)(c)(d) and 28(l)(c)(d) and (2) of the Labour Court Rules, GN No. 106 of 2017. The applicant is praying for this Court to be pleased to call and examine the records and Award of the Commission for Mediation and Arbitration at Dar es salaam in respect of Labour Dispute No. CMA/DSM/ILA/620/19/306, revise it and i set aside the award thereof. The applicant is further paying for costs of this application and any other relief(s) as the Court may deem just and fit to grant. At this juncture, I find it worth, to offer a brief sequence of facts leading to this application as extracted from the CMA record, and parties' sworn statements from the affidavit and counter affidavit. The applicant started working with the respondent from 1st August 2017 on a controverted arrangement. Sometime in 2017, he entered a contract with the respondent where he started working as an consultant with effect from 1 August 2017. On 1st November 2018 they entered into

another agreement (Exhibit DI) which changed his employment status into an accountant with a different monthly take home salary from USD 2000 to TZS 2,200,000. On 31st January 2019, vide a letter of transfer, (Exhibit D2) the applicant was transferred from accounts department to the sales department. He did not agree with the transfer hence he wrote a letter to the respondent protesting non-disclosure of the terms, conditions and responsibilities associated with the transfer and the new roles. From that refusal a prolonged discussion persisted with some exchange of correspondences between the applicant and the respondent until when the applicant yielded to the transfer and reported to his new department. In the course of exchanging correspondences, the applicant 2 happened to have sought assistance from an advocate specifically in responding to a letter dated 10th June, 2019 questioning his performance, something which aggrieved the respondent culminating to a disciplinary hearing. The tension never stabilized until when a disciplinary hearing was initiated by the respondent. In the disciplinary hearing the applicant was charged with two offences, the first being failure to respond to a lawful management instruction regarding his performance as detailed in the letter dated 10th June 2019 and secondly, failure to discharge duties directed to him by Parts Manager. The

disciplinary committee found the applicant to have failed to discharge his duties and recommended termination of his employment. This resulted to the applicants termination from his employment vide a letter of termination (Exhibit D9) stating the reasons to be unacceptable performance, behavior, attitude, incompetence, and inefficiency as well as reference of grievances to outside parties contrary to the company policy. Being dissatisfied with the employer's decision to terminate the employment, on 07th August 2019 the applicant referred the matter to the CMA. At the CMA, the arbitrator found the termination to be both 3 procedurally and substantively fair and awarded nothing to the applicant. The applicant being aggrieved with the award, preferred this application. Along with the Chamber summons, the affidavit of the applicant was filed, in which after elucidating the chronological events leading to this application, asserted that, the arbitral award is tainted with material irregularity as the arbitrator failed to analyze and evaluate evidence in composing the award. In the affidavit, the applicant claimed that despite of having no negotiation prior to his transfer, he was transferred to the new department without any training to equip him with knowledge in his new roles which he did not have experience with, causing the applicant being seen as has failed to perform well. In

the affidavit the applicant, advanced four ground of revision as stated at paragraph 4 as follows; - a) That the reason for termination was unfair as there is no any law in our hand forbidding a citizen of this Country to seek legal conciliation and enjoy the service of the lawyer duly authorized to practice in accordance with the law. 4 b) That, the arbitral award was improperly procured as it tainted with material irregularity and illegality. The arbitrator relied on extraneous matter in composing and delivering the said award. c) That the arbitrator failed to evaluate and analyses the evidence by the complainants now the applicant in reaching and composing the said award. d) That, the arbitrator conducts on the matter as stated in the foregoing paragraphs amounts to gross violation of the law which makes it necessary to remedy it through revision hence this application. To challenge the application, the respondent filed a counter affidavit sworn by one Charles Ephraim, the respondent's Principal Officer. The deponent of the counter affidavit disputed the allegation that there was no negotiation prior to the transfer. He alleged the applicant of poor performance in the new department and failure to respond to a letter of warning written to him by taking all confidential documents outside the office which is contrary to the policy of the respondent. In this application parties

enjoyed legal services. The applicant was represented by Mr. Abraham Lupia, Advocate from Justice Mark Attorneys, whereas the Respondent was represented by Ms. Bernadeta 5 Shayo, Advocate from Sylvester Shayo & Compony Advocates. The hearing of the matter proceeded by a way of written submissions following the parties' prayer on 08th Day of June 2022. I thank both parties for complying with the Court's schedule and the industrious work done in the submissions. Arguing in support of the application regarding the fairness of the reason for termination, Mr. Abraham Lupia described the applicant's transfer as a maneuver towards his termination since he was never given the promised new terms, neither a training nor work description to smooth his performance. He challenged the arbitrator's findings and holding that there was no reply from the applicant to the letter issued by the management regarding his performance, as the same was replied by his advocate and not the respondent himself contrary to employer's policy in resolving administrative matters relating to workplace. He further argued that the reason for termination was not fair because, firstly, the respondent had option of rejecting the letter written by the applicant's advocate and direct the applicant to respond it by himself and secondly, the labour laws do not prohibit an employer or employee from enjoying legal services

and thirdly, there was no proof at CMA that the applicant had 6 poor performance on his work. Citing Article 13 (6) of the Constitution of the United republic of Tanzania which stipulates right to be heard, the applicant is of the view that the denying the rights do not begin and end in court premises but even before one takes a case before the court, rights needs to be protected. Mr. Lupia further submitted that the respondent was required to investigate the reasons for poor performance after issuing guidance, training and instruction on how the applicant should, perform his work. He is of the view that for an applicant to be terminated on poor performance he/she must be afforded with an opportunity to improve and should have considered .the nature of the job, length of service and the employee's past performance. According to him, the decision to engage an advocate was done after several misunderstandings on different matters regarding salary reduction, suspension and the transfer to sales department. Mr. Lupia Referred to Rule 12 of the Employment and Labour Relations (Code of Good Practices) G.N 42 of 2007 which guides the principles of terminating an employee which is the seriousness of the misconduct and the circumstances in which it occurred and the likelihood of repetition. 7 On the second ground concerning improperly procured award for being tainted with material

irregularity and illegality, Mr. Rupia faulted the arbitrator alleging him to have relied on extraneous matters in composing and delivering the said award. That the award was improperly procured He argued that the evidence of the applicant was never considered as the arbitrator relied on extraneous matters in composing and delivering the said award. He referred to page 8 and 9 of the impugned awards. Lastly Mr. Rupia submitted that the procedure in terminating applicants employment was not followed on reason that the investigation was never conducted, and that the applicant has never been given enough time to respond to the charges nor call witnesses. In reply on first ground Ms. Bernadeta Shayo stated that the applicant challenged the award on the reason that he was aggrieved by the same and not because the arbitration proceedings lacked legal sufficiency. Supporting her stand on the meaning of defective she referred this Court in Black's Law Dictionary. On the second ground concerning improperly procured award for being tainted with material irregularity and illegality, Mr. The arbitrator relied on extraneous matter in composing and delivering the said award that 8 the award was improperly procured as the arbitrator relied on extraneous matter as stated in applicants affidavit at paragraph 4 and 2 of the applicants affidavit, Ms. Bernadeta Shayo submitted that there was no

evidence that suggests that there was a misconduct on the part of the arbitrator. He stated that the arbitrator in his findings considered the evidence given on both sides and concluded that the termination was both substantively and procedurally fair. According to Ms. Bernadetha the Court has not been moved under section 91 of the ELRA to exercise its jurisdiction for this Court to ask whether the award is unlawful, illogical or irrational. On extraneous matters as alleged by the applicant Ms. Benedeta Shayo submitted that Article 13(6) of the Constitution of United Republic of Tanzania does not give right to an advocate to answer queries at work places which needs to be resolved administratively and by the management of the employers. On such basis she is of the view that the advocate is in violation of Section 40 of the Advocate Act. Responding to the allegation regarding investigation, Ms. Bernadetha submitted that the assertion is misplaced because the respondent was in possession of evidence regarding misconduct and insubordination which in fact the applicant admitted to it. 9 From the submissions made by both parties, as well as the applicant’s affidavit, the Respondent counter affidavit and CMA record, I draw up two issues for determination which are whether the applicant have provided sufficient ground for this Court to revise the CMA award and secondly what reliefs

are parties entitled to. In approaching the above issues, the four grounds identified in the affidavit will be considered all together focusing on two aspects of fairness of termination, namely reason and procedure. I will start with the first aspect regarding the fairness of the reasons for termination. The applicant contended that the arbitrator erred in law in his findings by holding that there was no reply from the applicant to the letter issued by the management regarding applicants performance, while the said letter was replied by his advocate and not the respondent himself contrary to employer's policy of resolving administrative matters in workplace. In addressing substantive fairness, reference is made to Section 37 of the Employment and Labour Relations Act, Cap 366 R.E 2019 which makes it unlawful for an employer to terminate the employment of an employee unfairly. The section places the burden to prove the io fairness of the reason to the employer. Section 37 (1) and (2) reads as follows: - "37 (1) It shall be unlawful for an employee to terminate employment of an employee unfairly, (2) A termination of employment by an employer Is unfair if the employer fails to prove- (a) That the reason for termination is valid; (b) That the reason is a fair reason* (i) Related to the employee's conduct, capacity or compatibility; or (li) Based on the operational requirements of

the employer, and (c) That the employment was terminated in accordance with a fair procedure." As said earlier, the applicant was charged with two offences, one being failure to respond to a lawful management instruction regarding his performance as detailed in the letter dated 10th June 2019 and the other one being failure to discharge duties directed to him by Parts Manager. To start with the first offence, it is not disputed that the said lawful management instruction was responded to by the advocate of the applicant on behalf of the applicant which was one of the sources of the employer's grievances as it considered as taking office issues outside. li The applicants counsel challenged the holding of the arbitrator who considered the reply done by an advocate as amounting to no reply. In applicants view, there is no law which prohibits advocate from advising and act on behave of an employee whose rights are infringed on technical issues of employment. The arbitrator defined the act of the applicants Counsel to reply to the letter regarding accusation of poor performance on applicants directives as insubordination and held it as one of basis to consider the termination reason to be fair. The applicants counsel is of the view that it was proper for the applicant to seek a legal advice due to the tension which existed between the applicant and the respondent. Going through the

entire scenario of the case, I have noted that the nature of. the relationship between the applicant and the respondent created a tension which in a reasonable apprehension created a foreseeable impending labour dispute. This can be traced from the time of transfer which did not please the applicant and the exchanged correspondences which were based on a hot debate amongst the parties. In my view, due to that situation, there was a reasonable fear which could force the applicant to consult a lawyer for technical issues which could prejudice the impending dispute. Whether the consultation 12 with a lawyer constitute an unlawful act, I have gone through section 40 of the Advocates Act which is cited by the respondents counsel, purporting that the section prohibits advocates services to answer quarries at places of work, I could not see that prohibition in section 40 I searched to find in the CMA record the policy referred to by the arbitrator as Exhibit Dll (see page 4 of the award) unfortunately I did not see it. Thought the said exhibit was not found in the record, there is unmarked document which seems to be the said policy. I read it, particularly section 23. It does not prohibit employees to have legal consultation for the matter about to endanger their legal rights or about to signal impending dispute. From the foregoing, it is my view that, consultation with a lawyer

was not a bad measure taken by the applicant because by that time he needed a proper legal guidance to handle the situation which was before the parties. Whether it was legally appropriate for the lawyer to reply directly to the letter, this should be another issue outside the instant realm but is does not render the applicant's legal consultation as insubordination as held by the arbitrator. I therefore agree with the counsel for the applicant that there was nothing wrong for the applicant 13 to consult a lawyer for what transpired which signaled an impending labour dispute. Regarding to the second disciplinary offence of failure to discharge duties directed to the applicant, the applicant's counsel is of the view that the respondent had a duty to ensure that the applicant was properly trained and guided in the new roles in the new department into which he was transferred controversially, while the applicant protesting due to his unfamiliarity with the said new roles. The arbitrator did not address the fairness of this charge but only focused on the first charge of failure to respond to the letter concerning poor performance. I am of the view arbitrator errored in not taking into account this point. By tracing this dispute from its genesis, what triggered all the misunderstandings was the applicant's protest against the transfer which was taking him into a department with new

responsibilities in which he was not experienced to. The applicant did foresee the performance failure and alerted the respondent demanding guidance and training (See Exhibit Pl), but his cry was not heeded to. It is for this reason I agree with Mr. Lupia that the respondent had to investigate the reasons for poor performance before taking the action of terminating the applicant. In my view, in the transfer, there was a big share of reasons 14 which contributed to the poor performance by the applicant. I agree with applicant's counsel that the employer had a duty to train the applicant to ensure conversance with the new roles. Could the employer properly investigate the reasons of poor performance, termination could not have been the best measure in the circumstances. From the foregoing I could not see any fairness in the reasons which justified the applicant's termination. Having found that there was no valid and fair reason for the termination of the applicant's employment, the next question is on procedural aspect. At the CMA it was found that the applicant's termination was procedurally fair, but the applicant challenged its fairness. In the applicant's view, the procedure was not fair on the reason that the applicant was not afforded with a chance to send a witness in the disciplinary hearing and no investigation was done for the alleged insubordination. ; Since the

termination was based on misconduct the relevant provision is Rule 13 of GN 42 of 2007. To start with the lack of the investigation I find it worth to reproduce subrule (1) of this provision which provides; - "Rule 13(1) The employer shall conduct an investigation to ascertain whether there are grounds for a hearing to be held." 15 The above provision speaks loud. It is mandatory to conduct an investigation prior to holding of the disciplinary hearing. It is not disputed that there has never been an investigation prior to the disciplinary hearing. The award is silent on the issue of investigation. The arbitrator made a general statement that all the procedures were followed by the employer without addressing anything specific. There was no analysis of the evidence made by the arbitrator neither the reasons given for arriving at such conclusion. The respondent defended the absence of the investigation by asserting that it was not necessary due to the fact that the offence was apparent. This assertion cannot hold water because according to the law, it is only the investigation which should establish a prima facie case leading to disciplinary hearing. Rule 13 (1) of GN No 42 of 2007 is coached in a mandatory language by using a word shall which means a mandatory prerequisite of law. I agree with Mr. Lupia that failure to conduct investigation prior to holding of the disciplinary

hearing constitutes infringement to Rule 13 (1) of GN No. 42 of 2007 which renders the procedure invalid and unfair. Further to failure to conduct the investigation, Mr. Lupia asserted unfairness in the time offered to the applicant to respond to the charges and information about the requirement of entering the disciplinary hearing and challenged the neutrality of the chair of the committee. 16 It is the responsibility of the employee to prove fairness of termination. In the CMA, there is no evidence to state if the chairperson of the committee was free or not. This leaves much to be desired to understand the neutrality of the chairperson. Since the onus of prove lies on the respondent, it remains that there was no prove of fairness in the composition of the committee. From the foregoing, it is my holding that the procedure was not fair. From the foregoing, since the termination of the applicant is found to be unfair both in procedure and reason, it is my.further finding that the issue as to whether there are sufficient grounds to revise the CMA award is answered affirmatively. What follows is relief. In the CMA Form No. 1, the applicant pleaded termination and breach of contract. Since I have found there to have unfair termination, the remedy will be guided by Section 40 (1) of the Employment and Labour Relations Act. It provides for compensation of not less than 12 months.

Taking into account the history of the matter, it appears that the applicant has been on a long term crisis which created unpleasant environment in the matter as well. This being the case, to award 24 months compensation will suffice to redress the applicant's pain. 17 In the upshot, I revise the CMA proceedings, quash and set aside the award. I award the applicant 24 months as compensation for unfair termination. This means the applicant shall be paid the total of TZS 52,800,000/= as compensation which constitutes his net monthly salary for 24 months. The applicant is further entitled to other statutory benefits as provided under section 44 of Cap 366 if not yet paid. Dated at Dar es salaam this 28th Day of September 2022.

KATARINA REVOCATI MTEULE

JUDGE 28/09/2022 18