KIZURA YONAS CHUSI VS LODHIA INDUSTRIES LTD

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA APPLICATION FOR REVISION NO. 66 OF 2023 (Originating from Labour Dispute No. CMA/ARS/260/22/156/2022) KIZURA YONAS CHUSI.............................................................. APPLICANT VERSUS LODHIA STEEL INDUSTRIES LTD........................................... RESPONDENT JUDGMENT 7/08/2024 & 02/10/2024 NDUMBARO, 3 Dissatisfied by the decision of the Commission for Mediation and Arbitration (CMA), the applicant has filed this application seeking for revision of the records and proceedings of the Commission and set aside the Award in Labour Dispute No. CMA/ARS/ARS/260/22/156/22 that was delivered in favour of the respondent. The application was supported by the affidavit of the applicant's Personal Representative Mr. Herode Bilyamtwe who also represented the applicant before the Commission. A little grasp of Mr. Bilyamtwe's affidavit is to the effect that, the applicant is dissatisfied with the decision of the Award of the Commission on reasons that, first, the Arbitrator erred in giving his decision that the termination of the applicant based on the warning letters which admitted as exhibits Dl. Second, the Arbitrator erred by relying on the evidence of DW1 whose evidence was hearsay and that the head of department was not called to testify at the disciplinary hearing. Third, the applicant's complaint on reliance of the warning letters which according to him were issue to him two years back and therefore at the time of his termination they had already expired. Fourth, the applicant complained that there was no documentary evidence tendered by the respondent either at the Commission or before the disciplinary hearing showing that the applicant contravened the standard of conducts. Fifth, the applicant is aggrieved when the arbitrator held that the applicant was found guilty and he was given his right to appeal while the disciplinary committee's outcome was to forgive the applicant and return him to his job but under supervision. Sixth, that the decision of the Commission was reached while the respondent did not conduct any investigation to prove the allegations. Lastly, the applicant complained that the Award of the Commission was pronounced without notice to the parties after the lapse of 180 days. The applicant thus maintained that his termination was unfair both substantively and procedurally. The respondent on the other hand opposed the application through the counter affidavit sworn by the respondent's counsel Mr. Wilson Ezekiel. In the counter affidavit, the respondent through his counsel strongly opposed the applicant's application and stated that the respondent followed all procedures in terminating the applicant. The respondent also stated that the termination of the applicant was on valid reasons as there have been several warnings that had already been issued to the applicant before his termination. The respondent added that before termination, the applicant was summoned to the disciplinary committee and that even after his termination he was paid his terminal benefits. On the issue of delivering the award beyond the required time, the respondent admitted that the award was delivered beyond the required time but parties had notice of the date of the pronouncement of the judgment. When the matter was called on for hearing, the applicant was represented by Mr. Herode Bilyamtwe, the respondent on the other hand was under the legal representation of advocate Wilson Ezekiel. The application was disposed by way of written submissions which I shall consider while disposing this application. 3 In determining this application, the following issues shall guide me; first, whether the Commission was justified to hold that the applicant was terminated on fair reasons and second, whether the Commission was justified to hold that the applicant was terminated on fair procedures. The termination letter of the applicant is to the effect that the applicant herein was terminated for reasons of poor performance leading to financial loss to the respondent; "Kushindwa kusimamia majukumu yako ya kazi ipasavyo na kumsababishia mwajiri wako hasara kwa kutokufika malengo ya uzalishaji." Labour laws are very clear that, an employer who wishes to terminate an employee, must do so basing on fair reasons and fair procedures. More so, it is the duty of the employer to establish that the termination of the employee was fair both substantively and procedural. Equally, it is also the observation of this court that, termination of an employee is initiated by the disciplinary hearing where fair hearing will be conducted and the outcome of the disciplinary committee shall pave way on whether to terminate the employee or not. However, I am alive of the position of the law in the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedures (GN. No. 42 of 2007) where it is stated that Disciplinary procedures are a guide for appropriate disciplinary action and they do not detract from management's right to depart from it depending on the circumstances of each case. Guided by the above position of the law, it is the submission of Mr. Bilyamtwe that there were no fair reasons to terminate the applicant as there was no evidence to support that the applicant committed the misconduct and more so, there was no investigation report that was tendered before the disciplinary hearing. Moreover, Mr. Bilyamtwe lamented that, it was improper for Hon. Arbitrator to rely on the written warnings that were issued to the applicant two years back. Since it is the disciplinary hearing that initiate the termination process, I shall subject myself to the disciplinary hearing form to inquire on what transpired in order to ascertain whether the respondent had a fair reason or not. In the said disciplinary form, the summary of the allegations against the applicant as are as follows; "1. Kushindwa kusimamia majukumu yake ipasavyo na kuruhusu watu kwenda ku/aia na yeye kwenda kulala (night shift) 2. Kusababisha hasara kwa mwajiri kutokufikisha lengo la uza/ishaji wa siku." In his defence against the allegations leveled against him, among others, the applicant stated that in the department where he works (Furnace department) there was no good communications with their leader. In its finding, the disciplinary hearing committee found out that there was poor communication in the furnace department between the employees and their leaders which made them not to reach the goals set by their employer. In that regard, the committee concluded that the applicant be forgiven and he should work under close supervision. After the finding of the disciplinary hearing, the respondent went on in terminating the applicant's employment on the very same reasons he was charged with at the disciplinary hearing. This court does not dispute the position of the law that the management may depart from the findings of the disciplinary hearing however the same must be done under special circumstances. Having gone through the disciplinary hearing form, it is my firm view that the disciplinary hearing committee was correct and justified to hold that the reason as to why the work was not done efficiently to meet the respondent's goals was because of poor communication between the employees and their heads of department. In other words, it suffices to say that basing on the evidence that was presented before the disciplinary hearing it did not find a sufficient reason to terminate the applicant and that is the reason they decided to take him back to his work with close supervision. I have also had time to scrutinize the evidence that was presented before the disciplinary hearing, it is my view that the same was scanty and wanting to justify the reason for termination. DW1 also testified at the disciplinary hearing on behalf of the employer where she stated that she was informed of the allegations leveled against the applicant by the Manager. Unfortunately, the said Manager did not come to testify before the disciplinary hearing and at the Commission. Therefore, it remains that what was testified by the said Agness was hearsay and she did not witness the commission of the said offence. Further to that, it was also alleged that the applicant occasioned loss to the respondent but there was no any evidence that was tendered at the disciplinary hearing to justify the loss that the respondent incurred due to the poor working performance of the applicant. As to the issue of warning letters, it is the submission of the respondent that the applicant was terminated on fair reason as he had previously been warned over the same misconducts. Therefore, the applicant was aware of the misconduct I have gone through the records of this application, Indeed, I have found that the applicant herein sometimes in the year 2020 he was issued with three warning letters. The first warning letter was issued on 19/06/2020, the second warning letter was issued to the applicant on 20/07/2020 and last warning letter was issued on 07/11/2020. One may note that in all these warning letters it was alleged that the respondent suffered loss occasioned by the applicant but never the less, there is nowhere the respondent gave a report or any documentary evidence proving the said loss. On equal footing and as it was rightly submitted by Mr. Bilyamtwe, the law under guideline 9(2) of the Guidelines for disciplinary, incapacity and incompatibility policy and procedures (G.N No. 42 of 2007) it is clear that existence of written warnings is not indefinite and that their lifespan is limited only to six (6) months. The applicant here in was terminated on 03/08/2022 almost two years after they were issued to him. In fact, I am of the considered view that, warning letters are among the punishments issued to an employee and it is improper to use the said warning letters which were issued two years back to justify the reason for termination. This position was discussed by this court in the case of The Parastatal Pension Fund v. Siriel Mchembe, Lab. Div., DSM, Revision No. 389 of 2013, 03/06/14, Mipawa, J (Rtd). In this case, when the court was faced with similar situation it had the following to say; "A perusal o f the exhibits and reading the CMA record it seems to me as rightly pointed out by the Commission that the employer applicant had dosed the chapter on the issues concerning the respondent and her follow employees which led to the incompatibility, the respondent was given a verbal warning and the respondent employer refused to continue with the discussion on the issues because he had already punished the respondent and gave her a verbal warning which dosed the chapter on the matters concerning the fellow employees and the respondent hence it was not fair for the respondent to resurrect the incidents already dosed in the year 2010 and polish them with colours to make them "alive" when they had passed away in the year 2010 and a punishment ensued. As clearly stated in thisjudgment the applicant had resurrected the offences committed in the past ie, between 2009 and 2011 and as correctly pointed out by the learned arbitrators the offences were determined and punishment ensued by the respondent being warned. The applicant had dosed the chapter on the offences concerning the respondent. It was not correct for the applicant employer to use them against the respondent 9 employee again. The warnings which the respondent had received were alive only for 6 months and the offences accruing from such warnings ought not to have been resurrected and used in the similar or other incidents, as per Rule 9 (2) o f Government Notice No. 42 o f2007." In the premises, I am satisfied that the disciplinary hearing committee was justified in its findings and there were no justifiable reasons for the respondent to depart from the findings of the disciplinary hearing committee as there were no valid reasons to terminate the applicant. On the second issue of whether the Commission was justifiable to hold that the applicant was terminated on fair procedures; Rule 13 (1) of the Employment and Labour Relations (Code of Good Practice) GN No. 42 of 2007 provides that the employer shall conduct an investigation to ascertain whether there are grounds for a hearing to be held. I am aware that not in all offences/misconducts investigation is necessary, however, in this case where it is alleged that the applicant occasioned loss to the respondent, to me this is a very serious allegation where investigation report was a necessary document to justify the misconduct alleged to have been done by the applicant. So far this court is not sure 10 of the kind of loss the applicant is alleged to have occasioned to the respondent, but had it been that the respondent had conducted an investigation and a report was prepared there at, it would have justified the allegations. Apart from the above, this court has observed that, the applicant was terminated for reasons of poor working performance. The law under Rule 18 of GN No. 42 of 2007 provides clearly for fair procedures to terminate an employee basing on this reason and it states that; "(1) The employer shall investigate the reasons for unsatisfactory performance. This shall reveal the extent to which is caused by the employee. (2) The employer shall give appropriate guidance, instruction or training, if necessary, to an employee before terminating the employee for poor work performance. (3) The employee shall be given a reasonable time to improve. For the purpose o f this sub-rule, a reasonable time shall depend on the nature o f the job, the extent o f the poor performance, status o f the employee, length o f service, the employee's past performance record. (4) Where the employee continues to perform unsatisfactorily, the employer shall warn the employee ii that employment may be terminated if there is no improvement (5) An opportunity to improve may be dispensed with if- (a)the employee is a manager or senior employee whose knowledge and experience qualify him to judge whether he is meeting the standards set by the employer; (b)the degree o f professional skill that is required is so high that the potential consequences o f the smallest departure from that high standard arc so serious that even an isolated instance o f failure to * meet the standard mayjustify termination, (6) Prior to finalizing a decision to terminate the employment o f an employee for poor work performance, the employer shall call a meeting with the employee, who shall be allowed to have a fellow employee or trade union representative present to provide assistance. (7) At the meeting, the employer shall outline reasons for action to be taken and allow the employee and/or the representative to make representations, before finalizing a decision. (8) The employer shall consider any representations made and, if these are not accepted, explain why. 12 (9) The outcome of the meeting shall be communicated to the employee in writing, with brief reasons." The above being the position of the law, the CM A record shows that the employer never followed the above procedures before terminating the applicant. In that regard, I find merit in this application and it is the finding of this court that the applicant was unfairly terminated both substantively and procedurally. Generally, where termination is adjudged unfair substantively and procedurally, the appropriate remedy is reinstatement unless there are justifiable grounds such as those enumerated under rule 32 (2) (a) to (d) of the GN 67/2007. In the matter at hand, the applicant in his CMA Form No. 1 among others, he prayed compensation for unfair termination, the remedy which I also find suitable given the circumstances of this case considering the employment relationship between the applicant and the respondent. In the upshot, I find merit in this application, the award of the Commission for Mediation and Arbitration is hereby quashed and set aside. In the event, it is hereby ordered that the applicant was unfairly terminated both substantively and procedurally. Secondly, the 13 respondent to pay the applicant compensation of twelve (12) months' salary for unfair termination and any other terminal benefits if it is proved that they were not paid to the applicant. No order as to costs is issued. Before I pen off, I wish to comment on the complaint raised by the applicant that the CMA award was delivered out of the prescribed time of thirty days. Well, this needed proof but all the same as correctly argued by the respondent's counsel I am of the opinion that the time frame set by the law was to safeguard the timely dispensation of justice by issuing the decisions within time. However, noncompliance with the time frame does not make the decision/award unenforceable. It is so ordered. D. D. NDUMBARO JUDGE 02/ 10/2024 14