kenya kazi security vs irene johnson shoo 2020 tzhcld 3858 4 march 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 217 OF 2020 BETWEEN KENYA KAZI SECURITY.............................................................APPLICANT VERSUS IRENE JOHNSON SHOO.......................... .... RESPONDENT Date of Last Hearing: 06/12/2021 Date ofJudgment: 04/03/2022 I. ARUFANI, J, The present application originates from the background that, on 11th August, 2014 the respondent was employed by the applicant as a a % Ik receptionist to work with TBL Project at Masaki. On 18th June, 2018 she was terminated from her employment on the ground of operational requirement. Dissatisfied by the decision the respondent filed the matter before the CMA which decided the matter on her favour and awarded her compensation of six months' salaries on the ground that the reason for termination of her employment was valid but the procedure for termination of her employment was unfair. i After being aggrieved by the decision of the CMA the applicant filed the present application in this court and the legal issues proposed by the applicant for determination in this matter as listed at paragraphs 13 of the affidavit supporting the application are as fol lows:- /. Whether the honourable Arbitrator was correct in holding that termination was procedurally unfair \ J* while the applicant complied with all procedure requirements. ii. Whether the respondent has a right to claim for unfair termination against the applicant. Hi. Whether the relief of six months compensation granted by the CMA to the respondent was legally justifiable in law. Sv When the matter came for hearing the applicant was represented by Mr. Elipidius Philemon, Learned Advocate and the respondent was represented by Mr. Michael Mgombozi, Personal Representative. The application was argued orally. Arguing in support of the application the counsel for the applicant prayed to adopt the affidavit supporting the application and started with the second issue. He argued in relation to the second issue that, the respondent had no right of claiming for unfair termination against the applicant. 2 He stated that, according to the offer of employment tendered at the CMA and admitted in the matter as exhibit DI the respondent was employed as a receptionist to work at TBL project located at Masaki Dar es Salaam. He argued that, as the TBL project ended the service of the applicant as evidenced by the print out email which was admitted in the matter as exhibit D2 then the employment of the respondent came to an end automatically. He stated that since the applicant was employed for the specific task of working at TBL Project located at Masaki and her employment ended when the TBL communicated to the applicant that they would no longer require their service then he was of the view that the same would have applied to the respondent. Supporting his application, he cited the case of Amos Henry and 5 Others V. TTCL, Revision No. 58 of 2013, High Court of Tanzania, at DSM (unreported) where it was held that, specific task employees are not covered under the unfair termination provisions of the Employment and Labour Relations Act, Cap 366 R.E 2019 (ELRA). It was further argued by the counsel for the applicant that, the employment offer of the applicant is not stipulating the time as to 3 when it would have come to an end. This is because the end of it was depending on the existence of the TBL project. Regarding the first issue the counsel for the applicant argued that, the respondent's contract ended after the end of TBL project. He went on arguing that, as the respondent was employed for & specific task to work for TBL project there were no procedure which the applicant ought to have followed. The counsel argued that the respondent was paid her salaries up to 18th June, 2018, outstanding leave and severance allowance. Therefore, there were no procedures to be followed because her contract of employment ended automatically. He further argued that, although the employment of the respondent ended but the applicant offered alternative post to the respondent as supported by exhibit D3 (letter of respondent's termination) and the same was supported by exhibit D5 (phones conversation) between the respondent and Sales Manager, but the respondent refused the said offer. As for the third issue relating to the reliefs awarded to the respondent the counsel for the applicant argued that, as the applicant was working with TBL for specific task and her services was no longer needed, he was of view that the same applies to the respondent as 4 her contract automatically come to an end. He added that for the applicant to be awarded any relief for unfair termination under specific task or fixed contract, it should be based on remaining period and not otherwise. In bolstering his position, he cited the case of Prosper Makene and 2 others V. Media Intervention & Consultant, Revision No. 882 of 2020, High Court of Tanzania, at Dar es salaam, (unreported), where it was stated that, specific task comes to an end on completion of the specific task. At the end he prayed the impugned award be revised and set aside. In his reply, the respondent's personal representative stated in relation to the first ground that, the applicant is supporting the CMA award by saying the respondent was retrenched from his employment. He submitted that, it is not true that the respondent was employed for specific task and stated the applicant misconstrued the contract prepared by themselves contrary to Section 14 (1) (b) and (c) of the ELRA, as appearing in exhibit DI (the employment contract). He submitted that, the employment contract for specific task does not contain probation period, notice of thirty (30) days in case of termination and annual leave of 28 days. He stated the 5 respondent's employment contract (exhibit DI) has all of the mentioned rights and does not state when it will come to an end. On that basis he was of the view that the employment contract of the respondent was not for a specific task. It was argued that there was no any clause under respondent's employment contract stipulating that her contract would have been terminated automatically after the applicant's contract being terminated by TBL. He submitted that, mention of working station in the contract does not mean the contract was for specific task. Strengthening his argument, he referred the court to the case of % Denis Kalua & Another V. Flamingo Cafeteria, Revision No. 210 of 2010, HLCD. He submitted that, the argument that the Arbitrator erred in holding that the contract was for a specific task is a wrong interpretation of the employment contract. % * As for the case of Amos Henry cited by the counsel for the applicant the respondent's personal representative argued is totally distinguishable from the present case. He stated in the cited case the employee was a daily paid employee while in the present case the respondent was monthly paid employee and she was being given 6 annual leave and she was subjected to probationary period which she passed. He went on challenging the argument by the Counsel for the applicant that, the respondent was given alternative jobs but rejected the offer given by her employer. He stated that, what was offered to the respondent was a job which she had not been trained and that was stated at paragraph 4 of the CMA award. He said the same was given intentionally so that they could have not continued with the employment of the respondent. He submitted that, the argument by the applicant's advocate that the contract came to an end lacks legal merit. He submitted that, if the applicant wanted the contract to come to an end, she should have complied with section 15 (4) of the ELRA. The cited provision of the law states where there are any changes in the terms of the A* contract of employment the employer is required to consult with the employee and notify him or her about the said changes. He cited Rule 8 (1) (b) and (c) of the GN. No. 42 of 2007 in his submission which gives directives as to how the specific contract may be terminated. He also stated that, there must be a reason for termination of employment of an employee and the procedure must 7 be followed. He insisted that the Arbitrator was right in his finding that the applicant failed to follow the required procedures in terminating employment of the respondent. The respondent's representative submitted that as the respondent was retrenched, he was of the view that the applicant was required to follow the legal procedures provided under section 38 of the ELRA which failure to observe the same amount to unfair termination. Supporting his stand, he cited the case of Samora Boniphace & 2 others V. Omega Fish Limited, Revision No. 56 of 2012 and Bakari Athuman Mtandika V. Superdoll Trailer Limited, Revision No. 171 of 2013, High Court of Tanzania, at Dar es Salaam (unreported). With regards to the compensation of six months salaries awarded to the respondent he argued that, it is provided under I lb section 40 (1) (c) of the ELRA very clear that, when the arbitrator or court finds termination of employment of an employee is unfair, the compensation of salaries which is required to be awarded should not be less than twelve months. To support the application, he cited the case of Teddy Martin & Another V. Gates of Paradise Hotel, Revision No. 308 of 2013 at page 3, 4 and 5. Lastly, he prayed for 8 the application to be dismissed and the CMA award to be upheld. In his rejoinder the counsel for the applicant reiterated his submission in chief. Having heard the party's submissions and upon perusal of the record, I have found there are three issues which this court is called upon to determine. The said issues are as follows:- .-: 'T' i. Whether the respondent's employment contract was for a specific task or permanent? ii. Whether the termination of the respondents' employment was both substantively and procedurally fair? Hi. What remedies the parties are entitled. Starting with the first issue the court has found the provision of the law providing for specific task and permanent or unspecified period of time contract is section 14 (1) (a) and (c) of the ELRA. After going through the record of the matter the court has found it is undisputed fact that the applicant and the respondent had the employment contract and the same contain terms of the contract as evidenced by exhibit DI (employment contract). The court has also found that, section 15 (1) of the ELRA gives legal duty to the employer to supply to an employee the particulars of the employment contract basing on the reason that the employer is the one design or 9 prepare the contract. Since the applicant and the respondent had contract of employment the court has found it was held in the case of Hotel Sultan Palace Zanzibar V. Daniel Laizer & Another, Civil Application No. 104 of 2004 that:- is elementary that the employer and employee have to be guided by agreed term governing employment. Otherwise, it would be a chaotic state of affairs if employees or employers were left to freely do as they like regarding the employment in issue." % The court has found in the present application that, the first si '■ paragraph of exhibit DI (the employment contract) states the > .. contract of the respondent would have commenced on 11th August 2014 but it does not state when the contract would have come to an aaywqgmk >ct end. The court has found that, as the contract does not state when C % i the contract would have come to an end that is contrary to section 15 (1) (e) of the ELRA which requires the employer to state the form and duration of the employment contract. As the employer had the stated duty as a designer of the employment contract and he failed to discharge the stated duty the court has found there is no way it can be said the respondent's employment contract was not for unspecified period of time. In the 10 premises the court has found that, as rightly argued by the respondent's representative, the respondent's contract of employment was permanent or unspecified period of time contract and not a contract for specific task. If the applicant wanted the contract to be for specific task, she was required to state so expressly in the contract. The court has also arrived to the above finding after seeing that, as rightly argued by the respondent's personal representative the contract of employment of the respondent admitted in the matter as exhibit DI contains terms like undergoing probationary period, annual leave and requirement of a notice of thirty days for termination of the contract which normally are not provided to an employee who has been employed on specific task but to an employee who has been employed on unspecified period of time. Having found the employment of the respondent was for permanent or unspecified period of time and not for specific task as argued by the counsel for the applicant the court has found that, the respondent had a right to claim for unfair termination of her employment because termination of her employment was being governed by the provisions of the ELRA. The court has found that, 11 the case of Amos Henry (supra) cited by the counsel for the applicant to support his submission is distinguishable from the case at hand because it was dealing with contract of employment for specific task and not unspecified period of time contract. Coming to the second issue relating to the fairness of the reason for termination of employment of the respondent the court has found that, section 37 of the ELRA provides that it is unlawful for the employer to terminate employment of an employee unfairly and put the duty to prove the reason for that termination was fair and .... w valid to the employer. Section 37 (1) and (2) reads as fol lows:- "57 (1) It shall be unlawful for an employee to terminate the "''vi employment of an employee unfairly. (2) A termination of employment by an employer is unfair if the employer fails to prove (a) That the reasons for termination is valid; That the reason is a fair reason:- \(b) (i) Related to the employee's conduct, capacity or compatibility; or (ii) Based on the operational requirements of the employer, and (c) That the employment was terminated in accordance with a fair procedure." 12 The above provision of the law makes termination of employment of an employee to be unlawful if it was made contrary to what is provided therein and it put to an employer a duty to prove termination was made on valid and fair reason. The letter of termination of the employment of the respondent (exhibit D3) in the present case shows that, the reason for termination of employment of the respondent was due to termination of service which the applicant was rendering to TBL where the respondent was working. That being the reason for termination of employment of the S3 respondent the court has found the termination of employment of the V respondent was made on operational ground. As provided under section 37 (2) (b) (ii) of the ELRA termination of employment of an w employee on operational ground is a fair reason for termination of employment if it is proved the said ground was in existence. It was stated in the case of Bakari Athumani Mtandika V. Superdoll Trailer Ltd., Labour Revision No. 171 of 2013 HCLD at DSM (Unreported) that, the basic duty of decision maker in unfair termination dispute, when operational reason is raised as a cause for termination of employment of an employee is whether or not 13 operational grounds were genuine reason to justify termination of an employee or is just a pretext. In this dispute the reason for termination of employment of the respondent was given by Pamela Meero - DW1 who testified before the CMA that, the reason for termination of employment of the respondent was that the TBL terminated the contract of service with the applicant as evidenced by exhibit D2 (email print out of terminating the applicant's contract) and exhibit D3 (letter of termination dated 18th May 2018). If the contract of the applicant and C% the TBL which created vacancy for the applicant to employ the & respondent was terminated it cannot be said termination of the respondent's employment contract was not made on fair reason. The court has arrived to the above finding after seeing that, the letter of employment of the respondent (exhibit DI) shows at its first A. “ paragraph that the respondent was employed to work in the position of a receptionist at TBL Project based in Dar es Salaam with effect from 11th August, 2014. Furthermore, the letter of termination of employment (exhibit D3) shows at its third paragraph that the employment of the respondent was terminated due to the reason that the applicant's client TBL informed the applicant they would no 14 longer require any services provided to them by the applicant at their offices located at Masaki where the respondent was working. The court has also found that, after the applicant being informed about the intention of the TBL to terminate their clientship at the said office, the applicant informed the respondent through exhibit D3 about the said intention. The court has also found that, as rightly argued by the counsel for the applicant, it was also stated in jRk exhibit D3 that, the applicant gave the respondent option of taking a % vacancy of security officer or customer service which were available in their office but the respondent refused to take the said vacancy. .JI The court has considered the argument by the respondent's V personal representative that the applicant gave the stated options to the respondent as a gesture as they knew she would have not taken the said posts as she was not trained to the same but failed to see M C It any merit in the said argument. The court has arrived to the stated <■ finding after seeing the applicant stated in exhibit D3 categorically that, if the respondent would have taken the said posts, they would have taken her through the process and accommodate her request immediately. 15 As the respondent was not ready to take the said posts and it was not said there was any other post which was available and the respondent was ready to take it but she was not given the same, there is no way it can be said termination of employment of the respondent was unfair. To the contrary the court has found that, as a rightly found by the Arbitrator termination of employment of the I- respondent was made on valid and fair reason. jlC With regards to the procedures governing termination of employment of an employee terminated from employment on operational ground the court has found the same is provided under section 38 of the ELRA which its subsection one reads as fol lows:- "38.- (1) In any termination for operational requirements (retrenchment), the employer shall comply with the following principles, that is to say, he shall a) give notice of any intention to retrench as soon as it is contemplated; b) disclose all relevant information on the intended retrenchment for the purpose of proper consultation; c) consult prior to retrenchment or redundancy on (Hi) the reasons for the intended retrenchment; (iv) any measures to avoid or minimize the intended retrenchment. 16 (v) the method of selection of the employees to be retrenched; (vi) the timing of the retrenchments; and (vii) severance pay in respect of the retrenchments." From the wording of the above provision of the law, it is crystal clear that the employer is required to comply with the requirements provided in the above quoted provision of the law during retrenchment process. The court has found that, as rightly found by the Arbitrator the respondent was served with only a letter of termination of her employment which was admitted in the matter as % exhibit D3. She was not served with notice of intention to retrench & w her, no information on the intended retrenchment was disclosed to her before being served with the letter of terminating her employment, no consultation was made prior to retrenchment and % r'Xy timing of the retrenchment was not communicated to her before the letter of termination of her employment being served to her. The court has been of the view that the stated procedures and steps required to be taken before retrenching an employee (s) from his or her employment was put in place with a view of preventing or minimizing termination of employment of employee (s) on operational 17 grounds. The stated view of this court is getting support from a persuasive South African case of General Food Industries Ltd. V. FAWU (20040 7 BLLR (LAC) cited in the impugned award by the Arbitrator where it was stated that:- "The loss of jobs through retrenchment has such a deleterious impact on the lives of workers and their family that it is imperative that, even though the reasons to retrench employees may exist, they will only be accepted as valid if the employer can show that all viable alternatives steps have been considered and taken to prevent the retrenchment or to limit it to the minimum." The court has found that, although it was stated in exhibit DI that the applicant was informed there was a post of Security Officer 'V... and customer service which the respondent was invited to apply for the same but as rightly argued by the respondent's personal IL representative there was no discussion made between the applicant and the respondent to see whether the said posts would have been appropriate for her. Since the procedure for terminating employment of the respondent provided under section 38 of the ELRA was not adhered the court has found termination of employment of the respondent was procedurally unfair. Basing on the above reasoning the court has found that, as rightly found by the Arbitrator 18 termination of employment of the respondent was substantively fair but procedurally unfair. Coming to the reliefs the parties are entitled the court has found that, as termination of employment of the respondent was substantively fair but procedurally unfair, it is wise to be guided by the position of the law stated in the cases of Salum Omary Mavunyira V. Director General of NHC [2014] LCCD No. 107, Mohamed R. Mwenda & 5 Others V. Ultimate Security Ltd, Revision No. 440 of 2013, Deus Wambura V. Mtibwa Sugar Estates, Revision No. 03 of 2014 and Consolidated Revision No. 370 and 430 of 2013 between Saganga Mussa Vs. Institute of Social Work where the Court held that:- "Where there is a valid reason for termination but the procedures have not been complied with, then the remedy cannot be similar as in cases where the termination was unfairly done both substantively and procedurally." While being guided by the position of the law stated in the above cited cases the court has taken into consideration the circumstances of the matter at hand and find the respondent was employed under the unspecified period of time contract as discussed earlier in this judgment. The court has also found section 40 (1) (c) of the ELRA 19 directs for the award of not less than 12 months in unfair termination of employment. However, the court has been of the view that, as the reason for termination of employment of the respondent was found was valid and the problem is only the procedure for termination of employment of the respondent which was not adhered, the Arbitrator was right in awarding the respondent compensation of six months ■■ , salaries for failure to follow the required procedures in terminating employment of the respondent. Consequently, the court has found the applicant has not managed to satisfy the court there is any justifiable reason which can move it to revise the award issued by the CMA. In the upshot the application of the applicant is hereby dismissed for being devoid of merit. It is so ordered Dated at Dar es Salaam this 04th day of March, 2022. JUDGE 04/03/2022 Court: Judgment delivered today 04th day of March, 2022 in the presence of Mr. Elipidius Philemon, Learned Advocate for the 20 Applicant and in the presence of Mr. Michael Mgombozi, Personal Representative for the Respondent. Right of appeal to the Court of Appeal is fully explained. 21