20140805 TZHC Dar es Salaam

' I, ', _··:<?· - 7 " ;.~; ,.,.•~ \ < -~· < ' ' ' ' j IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 317 OF 2013 I KNIGHT SUPPORT (T) LIMITED ............. ~ ..... .APP~JCANT 1 VERSUS ·.·- - 1 - I ···,,. · .. ' RAMADHANI MAGINA IGAI. ..... 1 ,. . . . . . . . . . . . ,t~:····R~SPONDENT -~•• I (Original/ CMA/DSM/KIN/621/11/601) ' ' - ''\ JUDGEM,EN"E~- 01/08/2014 & 05/08/2014 I Aboud,l ! The applicant "-tnade,. tmjs appli.cation by filiJg a Chamber Summons suppprte,~r · b.f his affidavit on ij/9/2013. The applicatioliit_ is made under section 91 (1) , (2) of the Employment and Labour~Relations"::Act, No. 6 of 2004 and Rule~24 (2), 28 (1) . (e) and (d},.o(',the Labour Court Rules, GN. No.10p of 2007 and any other 'enabling provision of the law.. · The application hearing proceeded orally whe~e both parties were represented. Mr. Kahozya learned counsel represen'ted the applicant while Mr. Ngwije Madaraka from\ CHODAWU, represented the respondent. 1 The respondent was an employee of the applicant from 01/03/2001 as a security guard until 21/7/2011 when he was terminated from his employment. The respondent's employment was terminated due to the allegation that he used abusive language towards his supervisor and insubordination. Dissatisfied by the termination the respondent referred his complaint to the Commission for Mediation and Arbitration (CMA) where it was decided in his favour and was awarded statutory compensation for unfair termination. The applicant was ag§rieved by the CMA award hence this revision at hand. Arguing on· the application Mr. 'kahozya submitted that Arbitrator at the . CMA did not consider tn:e evidence that the respondent termination was:,. due to disciplinary grounds. He said it is on record that the app>licant pfclduced four witnesses who testified to prove that the respog @ent misconducted himself and 1 was subjected to discipliinary proceedings. Mr. Kahozya further submitted that all witn~sses testified that the respondent bad mouthed his SUQiervi,~dr\.w(hen was' asked why he switched on the alarm which inqJtated there was a problem while there was not. He said the alarm made the witnesses to rush .with the ambulance to where the alarm signal came from only to be told by tine respondent that he did switch on the alarm because he was supposed to leave and no one came to replace him as required. Respondent told the court that what he did was a normal procedure incase such situation occurred. 2 Mr. Kahozya for the applicant further submitted that reason for the respondent termination from employment was that on 19/6/2011, that after six month from the first incident, the respondent badmouthed again the Sector Manager, his supervisor . after he was asked why he was late to report at work. Therefore, the applicant had reason to terminate the respondent's employment as he misconducted himself and Rule 12 (3) of the Employment and Labour Relations Act (Code of Good Practice) GN. 42 of 2007 provides that the employee can be terminated on the reason of gross misconduct as the respondent did to his superior as exhibited by Exhibit KS.3 in- the CMA record. He also submitted that, the respondent tendered the evidence at the CMA to prove the disciplinary proce.edings were conducted as exhibited by KS.1 of 4/1/2011, those/statemen~~ of DW3 and DW2 in the CMA proceedings. He concluded that," the respondent admitted to have committed the offence tt:lpt~ was charged because he failed to bring any witness to di,sapprove the charges against him. The respondent was, su_bjected so disciplinary proceedings and given the opportunity t6,_be heard and represented but he choose not to do so. Therefore his termination was fair. Responding to the applicant submission, Mr. Madaraka strongly resisted to the application on the ground • that the respondent did not commit any offence by switching on the alarm because it was a normal procedure at that work place in the circumstances that the supervisor forgot to send anoth_er security guard to leave the one whose shift has ended. And the respondent did push on the alarm which was . set for that 3 purposes and not the alarm which was for the signal in case of any problem as alleged by the applicant. Mr. Madaraka further submitted that the respondent worked for the applicant for ten years and he was never warned or subjected to any disciplinary action by the applicant. That the respondent never committed any misconduct as alleged by the applicant. He said at the CMA the applicant did:not bring. evidence to prove as to who was badmouthed by the respondent. Therefore the charges against the respondent were baseless. As regard to the disciplinary proceedings, Mr. Madaraka submitted that it was not concluded because the purported disciplinary proceedings do not show who chaired the disciplinary committee and who were the members of such committee. He concluded that there was :no ., basis for the respondent's termination and the evidence teri1cfered were cooked to implicate the respondent on the:-;;charged offence. Thereforeheprayed the application be dis.missed. In reply Mr. kah9zya submitted that the evidence that was tendered by the applicant at the CMA clearly reflected that the respond~nt admitted to court he committed the offence of gross 3 misconduct. ·' 'He said the evidence of DW4 shows how the respondent committed the offence charged and the evidence of four witnesses did not contradict each other as they testified on different incidences which the respondent misbehaved at work and how he misconducted at work. I have gone through the parties submission and court record with eyes of caution and directed myself on the relevant 4 I provisions of the law on this matter. The point of df:termination is · whether the award was properly procured by the; respondent at the CMA. The Arbitrator decided that the respondent termination ' I of employment by the applicant was unfair. ·j It is the established principle under Section! 37 (1) of the 1 , Employment and Labour Relations· Act, that it ~h~ll be unlawful . I,•· I for an employer to terminate the :employment qf an empl·oyee unfairly. Section 37 (2) of the relevant Act also provifJ,ed that:- 1 • I "A termination of employment ;bl,;,_an employer is1 unfair if the employer fails to prove2:·~- ; (a) that the reason for the te..r.mination is valid; (b) that the reason ~ i's a fair . reason- I 1 (i) Relatecl~ to ~he employee's conduct, · capc1~ity or c~fupatibility; : {ii) Bas~d on the ,operation req~irements of the··eoi'ployer,, and l . {c) tl;lat;,.\ttie ·.employment was tJrminated in. , I -'"-~c~"(?rcl'ance with a fair procedure. " 1~~\ 's::,: I i Thus, ttte questions before nie are whether there was valid reason to terminate the respondent's employment and whether such term'ination was in accordance with a fair procedure? According to what I have gathered in this matter is jthat, the main re~son for the termination of the. r~spondent's employment was his misconduct, that he used abusive language to \his supervisor when was asked why he switched on the alarm on ~/1/2011. And the respondent misconducted himself when he was! asked why he I 5 -I'' came late at work on 19/6/2011. The evidence at the CMA was that of four witnesses. In his award, the Arbitrator considered fully the evidence adduced by the applicant's witness which was that of DWl, DW2, DW3 and DW4. The Arbitrator reached the decision that according to the .evidence of the applicant, exhibit KS.J and KS.4, the disciplinary proceedings forms and termination letter of the respondent respectively, they reflect that the respondent was terminated because he used abusive language to his supervisor. The Arbitrator evaluated the evidence and reached the conclusion that the evidence that supported such allegation was of DWl, DW2, DW3 which explained what transpired on 4/1/2011 while that of DW4 testified for the incident of 9/6/2011. However the evidence of DW4 contracted to exhibits KS.3 and KS.4 which stated clearly that the respondent was charged for using abusive language to his supervisor while the evidence of DW4 shows that he used abusive languag~ mot to his supervisor but somebody else. I fully agree:\;·"with :.the Arbitrator findings that the only offence that the r~spondent was charged according to the evidence was that ·of 4/1/2011 as supported by the evidence discussed above. And the respondent was moved and transferred to the applicant office at Tangi bovu. Therefore what was testified by DW4 was for the offence that allegedly to be committed by respondent on 9/6/2011 which he was not charged for according to Exhibit KS3 and KS4. On the basis of the above, I fully agree with the Arbitrator that such warning against the respondent was for the six months only as provided under Rule 9 (2) of the Employment and Labour 6 . I ,I . i ' Relations Act (Code of Good Practice) GN. 42 of 2007 which provides that; I i "Written warnings and final written w arnings 1 should be kept on an employee's _personal file • • I and should remain operative for six months." I The applicant had no reason to punish tne qe·spondent for the offence committed for the pass six month, :is eyideri1G~:Yby the letter of termination and disciplinary proceediAgs forms (KS.5 and KS.4). Therefore, it is my view that the ap~l1icant had no substantive reason to terminate the .respondent's ··,; .. employment. I As to whether the termination que~ti~n wa'.s procedurally i;., unfair, it is on record that'. is.2.: ·both1Jn Arbitr~tor's •::~! award , and CMA ·:~1:. proceedings the applicant faUed to ·p·rovide eviden¢e at the CMA whether the procedures .for diS{;!P1inary hearing was followed in the termination of the ~espondent. It is appa;rent that no investigation was confiuet:ecf-as requ',ired Rule 13 (1 )] of the GN. 42 of 2007.Not only that R(J.l~--·t3· (5) of GN. 42 of 2007: provides that •. I the empltQyee -vvho. is ;~tharged for arny disciplinary offence should • ':' . . '.. .'· I f be availed opportµnity to give evidence or to defend himself to • ... . 1~~,: I the charges -aga'lri°st him. As .correctly decided bX ~he Arbitrator the respolide*nt had no such opportunity and no witnesses of the . I • applicant testified during the disciplinary committet proceedings as indicated in Exhibit KS.3. Therefore it is obvious that the I termination was procedural unfair. I ! It is appare,nt from. the record that the arbitratpr considered . and evaluated the evidence available in this dispute\ and correctly found the respondent's termination_ was unfair both substantively. I I 7 .. I ·. '' and procedural as discussed above, hence I find no reasons to fault the CMA award. In the result this application lacks merit and is dismissed accordingly. ) \ \ . (2\ . ,_,q - ~ - I.D. Aboud JUDGE 5/8/2014 8 i i ) 1!1 I I I I . • .i i '. Date: 5/8/2014 Coram: Hon. LD.Aboud,J Applicant: · Ms. Mbogoro, Advocate: For the Applicant: Respondent: . in person For the Respondent: CC: G. Mushi ,. • 1'1 "7; Order: Judgment-delivered on 5/8/2014 in the prlesence . I of Ms. .I ,.1-, ,, .; , Mbogoro, learned counsel for -the ~p~lica'ht _and Respondent in :"_,. ,., ,•,';,,_. ·,,,. -,t,fa~ (f person. =----A>-'f~ . •' --...:_; - 'I I ! .: 1.0. Ats~ud -. "'\,;,. -~_JUDGE 1 ~·,:.-,_ '· ~:i~,.518/2014 : ,I I I I I ! ' l ' :1 I \ '' I , ' J ' I , I : Ii j ' I I I I I i I 9 . I . 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