kassim mtulya vs ison bpo tanzania limited 2021 tzhcld 290 5 july 2021

IN THE HIGH COURT OF TANZANIA (LABOUR DIVISION) AT DAR ES SALAAM REVISION NO. 38 OF 2020 BETWEEN KASSIM MTULYA............................................................................ APPLICANT VERSUS ISON BPO TANZANIA LIMITED................................................. RESPONDENT JUDGMENT Date of last order: 02/07/2021 Date of Judgment: 05/07/2021 D. P. NGUNYALE, J The applicant alleged that he was sick suffering from ears caused by nature of the duties he was assigned by his employer the respondent herein. The sickness made him to be unable to continue with the work of customer care attending customers through phone call. The medical doctor in his findings advised that his employer should give him an alternative job so that he can continue with his employment. The applicant alleged that after that he was prevented from entering the employers premised for work and later, he was unfair terminated. The applicant forwarded the complaint of unfair termination before the Commission for Mediation and Arbitration. 1 The commission attended the dispute and at the end of the day held that the applicant was never terminated. The commission said I quote;- "Hivyo basi, mlalamikaji ameshindwa kuithibitishia Tume hii kuwa mlalamikiwa alisitisha ajira yake na hivyo Tume inaona kuwa mlalamikaji hakuwahi kuachishwa kazi na mlalamikiwa. In respect of the relief the Commission said that;- "... mlalamikaji katika CMA F. 1 aliiomba tume hii iamuru mlalamikiwa kumlipa mafao yake ya kuachishwa kazi na fidia ya ugonjwa.... kuhusu mafao ya kuachishwa kazi, Tume inaona kuwa mlalamikaji hastahili malipo haya kwani hakuwahi kuachishwa kazi na mlalamikiwa kama hoja ya kwanza ilivyojibiwa. Kuhusu fidia ya ugonjwa, Tume haina mamlaka juu ya hili... kuhusu madai ya mapunjo ya mishahara tokea mwaka 2013, kutokana na Rule 10 (2) of G. N No. 64/2007 inaeleza migogoro mingine ambayo haihusiani na uhalali wa kuachishwa kazi iletwe Tume ndani ya siku 60 toka mgogoro huo kutokea. Madai ya mapunjo ya mshahara ya mlalamikaji ni tokea mwaka 2013 na shauri limefunguliwa tarehe 06/07/2017..." The decision above invited the applicant to seek further relief through litigation, he filed this application for revision under section 91 (1) (a) (b), 91 (2) (a) (b) (c), (3) (a) (i) and 94 (1) (b) of Employment and Labour Relations Act, 2004 and Rules 24 (1), 2(a), (b), (c), (d), (e) and (f), (3) (a), (b), (c) and (d) of the Labour Court Rule , 2007 (GN No. 2 106 of 2007), and Rule 28 (1) (a) (b) (c) (d) of GN NO. 106 of 2007 and any other enabling provisions of the law seeking the Court to call and revise the CMA Arbitral Award pronounce on 6th January, 2020 by the Arbitrator in labour dispute No. CMA/DSM/TEM/617/2017/247/2017 and set aside the same aside. The application was supported by the affidavit of KASIM MTULYA the applicant. In the affidavit he deponed that he was employed on 18th October, 2013 with written permanent contract. During hearing the applicant was un represented and the respondent was represented by Avitus Rugakingira, they submitted as follows;- The applicant submitted that he was employed by the respondent from 18th October 2014 Customer Service post. He was performing duties as usual. But from 2016 he suffered from ears caused by earphone and hand set they were using to communicate with customers. The ears started to get hotness because of communication. He went to hospital for treatment. At Muhimbili National Hospital a report was prepared after he was thorough examined. The said report he forwarded to his employer. The employer was given condition to provide alternative work so that the applicant could continue to work as usual. The employer told him to resign but he refused. He instructed the security guards at the entrance to 3 prevent him from entering the employers premised for work. He made efforts to communicate with the employer by email in vain. He filed a case to CMA where his prayer that he was unfair terminated was not honoured. He called upon the Court to revise the decision of CMA for every party to get his right. In reply the respondent through his counsel submitted that the central dispute is whether the applicant was terminated or not. He referred the Court to section 112 of Evidence Act Cap 6 R: E 2009 that the one who allege must prove the allegations. The applicant who alleged that he was terminated had such burden of proof. He failed to prove. At page four of CMA award page 4 he said that he was terminate orally. He prayed the Court to dismiss the revision for lack of merit. In a brief rejoinder he said that he was prevented to enter the working premised by the security guards. Having gone through parties' submissions this Court finds that, there are two major issues for determination. The issues are as follows; i) Whether respondent terminate applicant's employment? ii) If the first issue answered positive then whether termination was both substantively and procedurally fair? Hi) what are the reliefs entitled to parties? 4 In addressing first issue as to whether respondent terminate applicant's employment. In reply to this question, I am of the view that the applicable provisions are; Section 39 of the Employment and Labour Relation Act, Cap366 R.E 2019, which provides that: - "In any proceeding concerning unfair termination of an employee by an employer the employer shall prove that the termination is fair" In this matter at hand the applicant contend that he was terminated by the respondent as he prevented to have access of entering working premises contract. On other hand the respondent maintained that she had never terminate applicant's employment. Preventing the applicant to enter the premises amounted to constructive termination. I have gone through the record and noted that the applicant had unspecified time contract which started on 01st May 2015 as supported by Exhibit P-1 collectively (employment contract). Again, it is undisputed that the applicant's sickness resulted from his job type of receiving phone as Customer care Representative as evidenced by Exhibit P-2 (applicant medical report), on that sickness applicant's employment turned sour. Since the respondent didn't tender any evidence like attendance register or wages payment or there was alternative job offered to him on applicant's absenteeism to fault 5 applicant's allegation that his termination was resulted due to his sickness as he was restricted to have entrance to the working premises due to his incapacity as supported by Exhibit P-5(A letter to Labour Commissioner). On basis of the above discussion, I am of the view that the respondent acted contrary to Section 15 and 39 of the Employment and Labour Relation Act, Cap366 of 2019 which require the employer to keep record of employee and to prove on the same. In such findings as the medical report (Exhibit P-2) suggest alternative ways to be used by the employer so as to secure applicant's employment. I have no hesitation to say that applicant was unfairly terminated for incapacity contrary to Rule 7(1) Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedures, G.N No.42 of 2007. Therefore, respondent's allegation that he had never terminate applicant's employment lacks legal stance. Having found that the termination was unfair the next issue to be addressed is the relief. In this matter at hand the applicant in CMA Form No.l prayed for illness compensation and terminal benefit, Section 40 of the Employment and Labour Relation Act, Cap 366 of 2019 direct this Court what to be awarded in case of unfair termination considering the circumstance of this case I award the applicant 24 months and not 12 months as he was mistreated for his sickness and other terminal benefits 6 not paid, but compensation in respect of illness should be addressed to the proper authority i.e. Workers Compensation Fund (WCF). Therefore, I find the Revision application has merit and I hereby allow it. The Commission arbitral award is set aside. I give no order as to the cost of the suit. JUDGE 05/07/2021 7