JOSHUA JOHN VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB - REGISTRY

AT MOSHI LABOUR REVISION NO. 25394 OF 2024 (Arising from award of the Commission for Mediation and Arbitration of Kilimanjaro at Moshi dated 13th October, 2023 in Labour Dispute No. CMA/KLM/MOS/ARB/41/2022) JOSHUA JOHN…………………………………………………...APPLICANT

VERSUS RAYNA DIAGNOSTIC DIALYSIS CENTRE LTD…………RESPONDENT

JUDGMENT 12th June & 3rd July, 2024. A.P. KILIMI, J.: This is an application for revision wherein the applicant one JOSHUA JOHN under the provisions of section 91 (1) (b), 91 (2) (a) (b) of the Employment and Labour Relations Act, No. 6 of 2004 hereinafter “ELRA” and Rule 24 (1), (2) (b) (c) (d) (e ) (f) and (3) (a) (b) (c ) (d) and Rule 28 (1) (a) (c) (d) and (e ) of the Labour Court Rules, GN No. 106 of 2007 “ the Code”; is praying for this Court to revise and set aside an award by Commission for Mediation and Arbitration hereinafter “CMA” at Moshi in Labour Dispute No. CMA/KLM/MOS/ARB/41/2022 and order the respondent to pay him compensation as prayed in his application form to the CMA. 1 The genesis of this revision is simple to comprehend, the applicant was employed by the respondent as a Pharmaceutical Technician for a contract of five years beginning on 01/06/2019 but on 30/06/2022 the respondent terminated his employment. At CMA the applicant told the CMA that before his contract was terminated, he was suspended from work for one month without pay from 01/6/2022 until 30/6/2022. After the suspension period was over on 01/7/2022 he went back to work and that is when he was given a letter of termination of his employment. Consequently, he preferred an application to the CMA praying the decision of his employer was unlawful since it breached the contract by

unfairly terminating his employment. After hearing both parties the CMA decided that there was no breach of contract as alleged rather the contract was legally terminated following an agreement between the applicant and the respondent hence the applicant did not deserve any compensation. According to applicant’s affidavit, he has invited this Court to determine the following grounds depicted at paragraph 5 to paragraph 9 that: One, the Arbitrator erred by deciding that the procedure was followed while there was neither a disciplinary meeting nor was the 2 applicant given a right to be heard. Two, the Arbitrator erred by deciding that there was an agreement basing on a single letter of termination issued by the employer certified by the applicant which does not validate that the procedure was followed. Three, that the Arbitrator erred by deciding that the act of the applicant signing the termination letter meant agreeing with its contents. Four, that the Arbitrator erred by deciding that the reason for termination was appropriate without considering which term of contract was breached by the applicant. When this matter came for hearing on 15th day of July, 2024. The Applicant was represented by Mr. Manase Gideon, Personal Representative, whereas Mr. Emmanuel Antony learned advocate appeared for the respondent. Arguing in support of the first ground Mr. Manase after

adopting applicant’s affidavit, he contended that the CMA was not correct to say the procedures were followed without considering the provisions of the Employment and Labour Relations Act no. 6 of 2004 section 37 (1) (2) (a- c) and Code of Good Practice GN. 42 of 2007 in regulation 13 (1) (2) (3) (4) and (5). He submitted further that it is true the complainant was interdicted to work pending an investigation but the employer did not give 3 him a letter showing his allegations so that he could make his defence. Moreover, he said the employer did not call him to the disciplinary committee. Also, he submitted that the employer did not give the applicant a copy of the inquiry done. He argued that failure by CMA to follow all those procedures renders the award a nullity. Secondly, it was Mr. Manase’s submission that there were no valid reasons for terminating the applicant from work. Explaining further he said what had happened was that the Director followed the applicant at the canteen during lunch hours and told him that there was a patient in need of medicine. The applicant replied to him that he was finishing his food and would then attend the patient. The Director was unhappy with the response and lead to them exchanging words but the applicant went and gave the medicine to the patient and that was the reason which caused the employer to suspend him from work and later his

employment was terminated. Therefore Mr. Manase faulted the decision because in his opinion the offence or misconduct alleged was exaggerated. Besides, the irregularity in procedure adopted, Mr. Manase faulted the award because it was incorrect for the CMA to decide the matter basing on a termination letter referred as exhibit J3. He argued that after 4 the applicant was suspended by a letter dated 31/5/2022, the employer called him orally to return to work and on 1/07/2022 he was given a letter for termination. It was Mr. Manase’s submission that CMA was wrong to rely on the said termination letter because it was written by the employer himself and there was no meeting held by the employer to discuss about terminating the applicant from his job. Thus, he contended that by receiving termination letter it did not mean the applicant agreed to be terminated and that is why he rushed to CMA to object that there was a breach of contract. Further in challenging the award, Mr. Manase submitted that in the suspension letter referred as exhibit J2, it was categorically stated that the applicant was suspended from work without payment. He therefore argued that the CMA erred in refusing applicant’s claim of salary while he was suspended for a reason that it was not the matter in dispute. It was also Mr. Manase’s submission that the CMA by doing so violated the provisions of the law under

the Employment and Labour Relation Act 2004 and the Code of Good Practice GN. 42 of 2007 under Regulation 27 (1, 2, 3 (a) and (b)). 5 Concluding his submission, Mr. Manase maintained that since the applicant had a contract of five years and he was terminated after 3 years, there remained two years of contract thus in his opinion this was a breach on the part of the employer. Therefore, he prays for this court to nullify the decision of CMA and instead the employer be ordered to compensate the applicant for his June 2022 salary when he was suspended and secondly to pay his remaining salaries of 24 months which are salaries of his remaining time of contract. Therefore, it was his prayer that the applicant be paid a total sum of Tshs. 22,500,000/= which include salary for the month of June 2022 and 24 months salaries as stated above. Before responding to the submission Mr. Emmanuel Antony prayed for this court’s directions on the validity of documents prepared by representative of the applicant in this court. The learned counsel further prayed to adopt their document filed in this court on 12/12/2023, which are Index, Notice of Representation, notice of opposition and also a counter affidavit. It was also his prayer that this application be dismissed with cost. Reacting to the submission above, the learned counsel submitted that according to the provision moving the application at

hand, there is no 6 document which contains prayers, and the specific rule for revision used by the applicant is Section 91 of ELRA, therefore what the applicant needed to prove in this court under the said provision is that the award was improperly procured or there was Misconduct of arbitrator, or if that award is unlawful and illogical. On the contrary what he submitted in his affidavit the applicant did not aver that the award was procured improperly, or it was invalid, also nowhere avers that the said Arbitrator committed any misconduct. Responding to the issue of non-compliance with rule 13(1) (2) (3) (4) and (5) of GN. 42 of 2007, Mr. Emmanuel submitted that this is a new matter because it was not mentioned in CMA F1, he further argued that in that form applicant nature of complaint was said to be breach of contract and that if he was claiming unfair termination he was required to fill in the reasons for wrong termination in that form but those spaces were not filled. He thus contended that this argument is new due to the fact that those reasons were not filled in the form and not evidenced. Arguing that the award was properly and legally procured, Mr. Emmanuel submitted on how procedure was followed at CMA, he added that the CMA formulated issues where parties agreed and one of them 7 was, whether the Respondent had breached the contract without justification. In that

regard the applicant evidenced on the breach of contract and not on procedural illegality then arbitrator gave both parties right. Advancing his submission, Mr. Emmanuel stated that the foundation of the Award of CMA was exhibit J3, which was the Employment termination letter in which the applicant admitted the said termination. It was the learned counsel’s view that by signing the termination letter the applicant agreed on the said termination and also, he did not return the money which was paid to him. Thus, it was Mr. Emmanuel’s submission that the applicant admitted on matters in dispute and not in disciplinary issues, thus he submitted that rule 13 is not applicable on the issue which is not misconduct, as the said termination was due to the applicant and employer agreement. It was also his view that the CMA was correct to say that the contract was terminated by agreement. Lastly, Mr. Emmanuel contended that personal representatives of the applicant have submitted issues on bar which were not in affidavit. First, issue that Director followed the applicant in canteen and exchanged unusual words, this issue was not discussed at the CMA, as were not 8 pleaded and it did not form part of issues at CMA. Second, the issue of suspension from work by letter and returning him to work orally are not in affidavit, thus prayed not to be considered, and hence prayed this matter be

dismissed with costs. In brief rejoinder Mr. Manase insisted objecting the award because it did not follow the proper procedures like meeting of the disciplinary committee, and all other proper procedures. He further submitted that with respect to filing form CMA F1, it depends with the nature of dispute. In this case he said the nature of the dispute was a breach of contract and in such a case it is not required to fill part (b) as this is filled for other form of complaints. However, he submitted that there was a letter of termination by the Employee through which the Applicant proved that his termination was unlawful. It was Mr. Manase’s submission that according to section 39 of ELRA it is the Employer who is required to prove the case. Mr. Manase also submitted that the Applicant did not admit to his termination that is why after he took the letter for termination, he went to file a complaint with CMA. He argued that this was a sign of not agreeing with his termination. Mr. Manase further said his client acknowledge receiving payment for not less than one month salary but they didn’t know 9 whether such payment was a notice of termination or salary of the period used when the Applicant was interdicted. In conclusion he prayed for the application to be allowed due to unfair termination and breach of contract by employer. To start with the objection by Mr. Emmanuel that

there is no document which contains prayers as per provision used by the applicant of section 91 of ELRA. I have considered the applicant’s documents initiating this application, though were written in Kiswahili, in his affidavit the applicant has raised grounds to be considered by this court in making revision, on those grounds he has raised issues which were not considered by CMA in procuring its decision and on his chamber summon prayed this court due to the said grounds to revise and nullify the said award, thereafter this court be pleased to order the respondent to pay the applicant his dues as per filed form CMA F1. In my opinion by raising those grounds means the award was either improperly procured or irrational, therefore I am of settled view the same met the legal requirement and much more did not prejudice the respondent. 10 Now in respect to substantive part of this application, I find the only issue need to be answered is whether this application for revision has merit thus should be granted. In my examination of the grounds as advanced by the applicant in his affidavit, the applicant challenged the award of the CMA based on the ground that the Arbitrator did not consider that the procedure for termination was not proper and also erred by deciding that there was an agreement to the termination of contract basing on the letter of termination issued by the

respondent. The respondent on the other hand contends that the applicant since filed his complaint through CMA F1, therefore Rule 13 which provides for fairness of procedure was not an issue to be discussed at the CMA. Thus, maintained that the termination was due to the applicant and employer agreement. For ease of reference and appreciation of how their contractual Relationship was and how it was terminated, I find apposite to extract the relevant part of the contract between the applicant and respondent and letter issued to the applicant from the respondent. Paragraph 5 of contract of employment (admitted as at CMA as exhibit J1) provides; 11 “After successfully completing the Probationary period [Clause 4], this CONTRACT binds the EMPLOYEE in this employment for five (5) consecutive years; the EMPLOYEE will not, be allowed to terminate, cancel, and/or resign from their position without a valid reason and/or if the EMPLOYER fails to constitute any of the Clauses of this contract; only the EM P LOYER is at liberty to term inate this contract during this five (5) years by w ritten notice of thirty (30) calendar days; after the completion of this five (5) consecutive the employee is at liberty to exist the contract, if the EMPLOYEE wishes to; if the EMPLOYEE without any valid reason terminates and/or fails to report to work during this period, the EMPLOYER will have no choice

but to report the EMPLOYEE's actions to the relevant authorities and/or take stiff action against the EMPLOYEE.” [ Emphasis added] A suspension letter (admitted at CMA as exhibit J2) from employer directed to the applicant reads as follows; 12 “OUR REF: HR/EMPLOYEE/DISCIPLINARY/ACTION/2022 JOSHUA JOHN JOSPHAT (PHARMACEUTICAL TECHNICIAN), MOSHI, TANZANIA. RE: SUSPENSION LETTER Kindly refer to the above heading. The Operation Director has been informed of your unethical behaviour towards your superiors, colleagues especially towards Mr. Vishal Pithia (acting Operations Director). Your colleague and superiors made a genuine request to carry out your duty, which you responded in an unethical and very rude behaviour followed up by showing physically attempt to violate the acting Operations Director which occurred in the morning hours and also a second attempt to do the same in the afternoon hours as indicated in the written statements provided by the deputy doctor in charge and the matron (please find attached with letter). The statements clearly state the people in witness to your behaviour and also underlines grounds for disciplinary action procedures. This kind of behaviour cannot not be tolerated at this facility; thus, the management has come to a final conclusion to suspended you from your duties as the pharmaceutical technician for a period of one (1) month WITHOUT PAY

beginning 01st of June 2022 to 30th June 2022 pending your disciplinary hearing proceeding. You w ill be recalled to appear for disciplinary hearings once the m anagem ent has com pleted its investigations in this regard. You’re at liberty to appeal this judgement when recalled for the disciplinary hearings, and if the m anagem ent finds you responsible 13 for the unethical and rude behaviour, the m anagem ent w ill and can term inate your em ploym ent contract. Respectfully, Signed VISHAL MOHANLAL PITHIA (ACTING OPERATIONS DIRECTOR) FOR: CHETAN UMEDLALGOHIL (OPERATION DIRECTOR)” [Emphasis added] Termination letter (admitted as at CMA as exhibit J2) directed to the applicant reads as follows; “OUR REF: HR/EMPLOYEE/TERMINATION/2022 JOSHUA JOHN JOSPHAT (PHARMACEUTICAL TECHNICIAN), MOSHI, TANZANIA. RE: EMPLOYMENT TERMINATION LETTER Kindly refer to the above heading. We informing you regarding the disciplinary action taken against your unethical behaviour tow ards the m anagem ent, has been discussed and concluded. The conclusion reached by the m anagem ent is to term inate your em ploym ent contract from the 30th of June 2022. This conclusion is brought after carefully review ing your past and present code during your em ploym ent. 14 The management has decided to pay your one (1) m onth notice pay and one (1) m onth of annual leave. No further dues can be demanded as this is the

final pay as prescribed in the Employment act of the United Republic of Tanzania. Please hand over all company property. I , Joshua John Josphat, certify that I have agreed to this term ination and to the dues prescribed by the m anagem ent. Signed; JOSHUA JOHN JOSPHAT (PHARMACEUTICAL TECHNICIAN) Approved by Signed VISHAL MOHANLAL PITHIA (ACTING OPERATIONS DIRECTOR) FOR: CHETAN UMEDLALGOHIL (OPERATION DIRECTOR)” [Emphasis added] According to CMA record, the above exhibits were not objected when tendered by the applicant. However, the respondent’s counsel as alluded above, maintained termination of applicant relied on the agreement by the applicant himself to be terminated, he buttresses his stance by relying exhibit J3 which applicant signed, I have revisited the termination letter ‘exhibit J3” above. In the outset I may say, there is no evidence adduced by the respondent that, applicant agreed on each term in that letter, what Somoka Nkarani Mwakapalaga (DW1) a respondent witness said at page 15 26 is that they called the applicant in order to agree on termination of employment contract, applicant attended and they explained to him to terminate the contract without affecting applicant’s character and he signed. In my view exhibit J3 was a termination letter given to the applicant, as a letter for termination, applicant as recipient had no option rather than receiving it, the

fact that it bears the words “I certify and agreed” and signed cannot be acknowledged that he agree each and everything written in it, otherwise there could have been a separated document specifically for agreement on such purpose, for instance termination of employment contract by agreement (see Muhimbili National Hospital vs Linus Leonce (Civil Appeal No. 190 of 2018) [2022] TZCA 223 (TANZLII), but in this matter it was a mere termination letter as its subject depicted. However, as quoted and emphasized above on exhibit J3, applicant was not engaged before the management reached the said decision. Nonetheless, even if it is said to be an agreement, the way it is drafted can be interpreted to mean more than one dimensions, therefore, the same 16 should be taken in disfavour of the respondent who drafted it under Contra Proferentem doctrine. From the foregoing stated, I hold that CMA erred on relying on termination letter which in my considered view did not qualify the requirements provided under rule 8 (2) (b) of Employment and Labour Relations ( Code of Good Practice) Rule, GN 42 of 2007, since it was not correct to use the said letter as a reason to salvage the bad behaviours of the applicant if it is true existed, in order to protect his future carrier as observed at page 5 of CMA’s award, thus by doing so, the applicant was influenced to sign, consequently in that regard,

the said exhibit J3 cannot be an agreement in the eyes of the law, as per provision of section 16 of the Law of Contract Cap. 345 R.E.2019. In view thereof, the next point for determination is whether from the above letters there was fair reason and compliance of fair procedure in applicant’s termination. In contention to the fair procedure, respondent’s counsel averred that the applicant did not tick in CMA F1 to show that he was claiming for unlawful termination, rather claimed under the breach of contract, It is true 17 but, I have considered the rationale of filling the said form, to my view was to inform the other party the nature of dispute the applicant wishes to rely so that should not be taken by surprise. In this matter it was the applicant who started to give evidence, according to the CMA record the applicant testified on how there was unfair procedure of terminating the contract, also he tendered exhibit J2 and J3 which speaks themselves that there was a disciplinary procedure conducted and decided to terminated him without being heard. I have also considered the record at page 19 which shows the applicant closed his case on 6th March, 2023. Further at page 25 of typed record shows respondent’s witness at CMA testified on 19th July 2023, a period of more than three months from when the applicant testified, I am settled the rationale envisaged on the said form was

fulfilled since in considering the time passed before respondent’s testified, the respondent knew the claims by the applicant through evidence tendered. Thus, it cannot be said he was surprised. Be that as it may, according to section 37 (1) of ELRA provides that; "37- (1) It shall be unlawfully for an employer to terminate the employment of an employee unfairly," 18 The above provision was reinforced and cherished to any form of employment contract by the court in St. Joseph Kolping Secondary School vs Alvera Kashushura (Civil Appeal No. 377 of 2021) [2022] TZCA 445 (TANZLII) when observed that; “We also do not agree with him that, under our laws a fixed term contract of service can be prematurely terminated without assigning reasons. This is because the conditions under section 37 of the ELR A are m andatory and therefore im plicit in all em ploym ent contracts. It is only inapplicable to those contracts w hose term s are shorter than 6 m onths. (See section 35 of the ELRA). In addition, creation of a specific duration of contract gives the employee legitimate expectation that if everything remains constant, he or she will be in the service throughout the contractual period. The expectation is defeated, if the sam e can be term inated at any tim e w ithout reason.” [ Emphasis added] 19 From the above, it is my firm observation that termination of applicant's employment

contract could not be fair without being based on fair reasons and procedure set out under section 37 of the ELRA which includes unfair termination. Applying the above principles in this matter at hand, in respect to the reason for termination as evidence by termination letter exhibit J3 was what was termed as unethical behaviour towards the management. This means the reason was misconduct on the part of the applicant as the employee. Based on evidence adduced before the CMA, it was alleged by the respondent’s witness that the applicant was asked to issue medicine to a patient and he refused because he was on break and that led to quarrelling/misunderstanding between the applicant and the director. The same transpired on page 14, 25 and 26 of the typed proceedings of the CMA and was also deponed on paragraph 8 of applicant’s affidavit of this application. Therefore, I am not in agreement with Mr. Emmanuel when he argued that the same was not discussed at CMA and pleaded in this matter, thus not a new issue. The applicant complained that this was not a fair reason for termination of his employment. Now, in examining fairness of reasons, the 20 law requires the court to see as to whether or not the employee contravened a rule or standard regulating conduct relating to employment. See Rule 12(1) (a) of the Code of Good Practice, GN. No.42 of 2007 (The Code). Based on what is on

record the applicant’s behaviour towards the director was unethical and that led to the employer’s decision to terminate his contract of work. The law further provides under Rule 12(1) (b) that if a rule was contravened, the court should also look into the following; First whether or not- it is reasonable; Second, it is clear and unambiguous; Third, the employee was aware of it, or could reasonably be expected to have been aware of it; Fourth, it has been consistently applied by the employer; and Fifth, Termination is an appropriate sanction for contravening it. Examining what happened in the present matter in relation to the provision above the following is uncovered. The applicant does not dispute the fact that he quarrelled with his director however he argues that reason did not justify termination of his employment. My opinion after examining the record in light of this provision is that the applicant in the present matter was made aware of the misconduct, as evidenced by a letter suspending him from work. What was not established is whether 21 termination was an appropriate sanction. The law further provides under Rule 12 (2) of the Code as follows; “First offence of an employee shall not justify termination unless it is proved that the misconduct is so serious that it makes a continued employment relationship intolerable”. In the present case there is no evidence adduced

by the respondent to prove any of above circumstance as provided in the Code. Therefore, I am settled the ground for termination was unreasonable. As for the second aspect which was on the fairness of the procedure, the same was triggered by above quoted letters (exhibit J2 and J3), it is undisputed as emphasized hereinabove on those letters, the applicant was promised to be called in a disciplinary meeting, but later he was given termination letter informing him that a disciplinary action had been taken against him by the management after discussing his unethical behaviour and reached a conclusion to terminate his employment from 30th June 2022. According to CMA record, the evidence is clear that, the applicant was neither called in any disciplinary meeting nor given the charge he 22 faced. Therefore, failure to prove that the applicant was called for a disciplinary hearing as required by the law has actually impacted on the respondent’s procedure used of terminating the applicant from employment. Since this component was incomplete all other requirements as provided under Rules 13 of the code of good conduct was not abided to by the respondent. In view of the foregoing deliberations, I am of the considered opinion it is undoubtedly correct that the applicant was unfairly terminated after the respondent has failed to observe the mandatory requirement set out under section 37

of the ELRA as explained above. On the last prayer, according to the record, in the CMA F1 the Applicant prayed for salaries of the remaining period of the contract. It is an established principle that the compensation award in any unlawful termination of fixed term employment contract is based on the remaining period of such contract. Therefore, when an employer terminates a fixed term contract, the loss of salary by employee of the remaining period of the unexpired term is a direct foreseeable and reasonable consequence of the employer’s wrongful action. (See Benda Kasanda Ndassi vs. Makafuli Motors Ltd, Rev. No. /2011 HC Labour Division DSM and Good 23 Samaritan vs. Joseph Robert Savari Munthu, Rev. No. 165/2011 HC Labour Division DSM (All unreported). In the premises, I find the present application has merit. It is the findings of this Court that there was a breach of employment contract by the respondent. Thus, the Arbitrator's Award is hereby quashed and set aside. Since, the applicant was employed on 1st June 2019 for a fixed term of five years as per contract ‘J1’ and terminated on 30th June, 2022 as per termination letter ‘J3’ The Applicant is entitled to compensation of twenty- four (24) months being salaries of the remaining period of the contract save for one month notice and one-month annual leave which was paid to the applicant. It is so ordered. DATED at MOSHI this day of 6th August 2024

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JUDGE Signed by: A. P. KILIMI 24 Court: Judgment delivered today on 6th day of August, 2024 in the presence of Mr. Emmanuel Anthony, advocate for the respondent. Applicant and his representative absent. Sgd; A. P. KILIMI

JUDGE 6/08/2024 Court: Right of Appeal explained. Sgd; A. P. KILIMI

JUDGE 6/08/2024 25