lina k massawe vs the agakhan health services tanzania 2023 tzhc 1281 12 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 43 OF 2023 BETWEEN LINA K. MASSAWE............................................................................... APPLICANT VERSUS THE AGAKHAN HEALTH SERVICES TANZANIA...............................RESPONDENT JUDGEMENT Date of last Order: 28/ 04/2023 Date of Judgement: 12/ 05/2023 MLYAMBINA, J. The Applicant filed this application aiming for this Court to go through the proceeding and revise the Award of the Commission for Mediation and Arbitration (herein CMA) in Labour Dispute No. CMA/DSM/KIN/60/21/20/21 held by honourable Johson Faraja, J (arbitrator) on 1st February, 2023. The affidavit to support this application was sworn by the Applicant herself which was contested through the counter affidavid of the Respondent sworn by Jamil Kanji (Head of the Department of Human Resources and Legal Affairs). Factually, the Applicant was firtsly employed by the Respondent on 4th May, 2017 as Administrative Assistance in the Radiology Unit. She worked in different Units. She entered another employment contract with the Respondent having a period of five year which started on 04th May, 2019 and supposed to end on 3rd May, 2024. But on 1st October, 2020, the Applicant's employment contract was breached for poor performance. The Applicant being disatsfied took the matter to the CMA. It was heard and the Award pronounced was in favour of the Respondent. Yet, being aggrieved the Applicant filed this Revision application raising the herein issues: i. Whether there was a disciplinary hearing which ordered the Applicant's contract to be breached. ii. Whether the em ployer was not obliged to resolve the operational challenges raised by the Applicant during the exercise o f PIP. Hi. Whether the CMA was correct to decide that the em ployer did not need to follow the procedure to breach the contract iv. Whether the Arbitrator was correct in not complying with the labor law concerned with underperformance. v. Whether the Arbitrator property considered the evidence presented before the CMA in deciding the relevant dispute. vi. Whether the Arbitrator was correct in determ ining the appropriate re lie f for the parties. The hearing was conducted orally. Both parties were represented., Mr. Frank Killian learned Advocates for the Applicant and Mr. George Shayo for the Respondent. Mr. Killian submitted on the first ground that; On 15/09/2020, the Respondent alleged that the Applicant underperformed subject to a Performance Improvement Plan (PIP). They agreed to review the performance on 22/09/2020. Thus, upon going through the said review of the Performance Plan, one will find that the employer assigned the Applicant with duties to be performed on monthly basis as found on paragraph 1.7 of the Performance Plan. Mr. Kilian stated that on 28/09/2020, the employer called up the Applicant to cross check as to whether there was a performance (Exhibit D2). The task was for the Applicant to put her concern raised in the meeting into writing. In his view, this was not a disciplinary meeting. As per Employment and Labour Relation Act, Cap 366 [Revised Edition 2019], the disciplinary meeting must have a Chairman, Secretary, Complainant, Respondent and charges. Mr. Kilian was of submission that the Applicant was to be advised in advance that there will be a disciplinary meeting which have the mandate of terminating the contract. He cemented by stating that paragraph I of Exhibit D2 does not show the quorum as per the law. Paragraph 2 consists of two agenda. One for opening of the meeting and two, feedback for Performance Improvement Plan (PIP). For him, Exhibit D2 is not a disciplinary hearing and so prayed for the Court to rule out there was no disciplinary hearing as provided under Part III the Employment and Labour Relations Act (Code o f Good Practice) Rules, 2007 ofG.N. No. 42 o f2007. It is also provided under Rule 17 and 18 ofG .N . No. 42 0f2007that there must a formal meeting for a disciplinary hearing, a complainant and decision. In the matter at hand, there were none and so for him it was a performance review meeting and not a disciplinary hearing. On ground number two, Mr. Kilian submitted that the Applicant raised some concern of which the employer was supposed to take care (Exhibit D9). One being, there were too much line of commands which raised confusion to the team as there was a Company known as Malileo Company hired by the employer. He continued that the mentioned company was to carry out the duties of the Applicant listed under exhibit Dl. The Applicant was just the supervisor supposed to make sure the work is carried out and had no mandate of taking action against Malileo, the Applicant was responsible for reporting when things went wrong. In his view, there were a lot of supervisors; the supervisor of Malileo and the supervisor of the employer and there was an issue of communication gap. Mr. Kilian went on to submit that another issue was shortage of linen as the employer was supposed to increase linen. On the issue of waste; Mr. Kilian stated that the employee requested for it to be channeled to the supervisor and that the evidence of DW1 & DW2 acknowledges that it is Malileo Company which was contracted to carry out all the duties listed in exhibit D7 but the challenges raised by the Applicant were not taken into consideration. Mr. Kilian submitted further that; on the issue that there was a patient complained to the management, there was a cleanness issue in the Hospital proceedings which shows that there was no patient complained that he used a towel already used by another person (evidence of DW1 and DW2). He stated; Rule 17(1)(c) (d) & (e) o f the G.N. No. 42 of2007tasks the employer to make sure that the concerns raised by the employee are taken care before ruling out that the employee has underperformed. He continued that in exhibit D2, the employer ruled out that the employee had to put her concerns in writing and that is what the Applicant did (exhibit D9). In his view the employer did nothing and ended up terminating the contract. To him the employer violated Rule 17(l)(c)(d) & (e) o f the G.N. No. 42 o f2007 (supra), hence there was a breach of contract on the part of the employer. Mr. Kilian submitted on ground three and four jointly. He elaborated that the trial Arbitrator misdirected himself by holding that the Applicant pleaded guilty to the charges. Hence, the employer had no duty to follow the procedures of terminating the contract. To him, the Arbitrator messed up two issues: One, the employee was terminated on poor performance. Two, the employee termination based on disciplinary issues. As regards the termination based on disciplinary issues, Mr. Kilian submitted that the employer had to raise the offence committed by the employee, conduct an investigation, disciplinary hearing, then termination of employment. For him, these scenarios were not applicable in the case. It was Mr. Kilian's view that the employer was duty bound to follow the procedures laid down under Rule 17 & 18 o f G.N. No. 42 (supra) but the Arbitrator never bothered to make sure there is compliance of the rules. He stated that the Arbitrator misguided himself on relying to exhibit D3 which was an email dated 28/09/2020 when there was a meeting concerning review of the performance improvement whereby the Applicant promised to make follow up so that those concern raised should not re-happen (exhibit D3). For him, the Applicant took responsibility to work with his team to see how she could improve and so it was not proper to hold that the employer had no duty to follow rules on under performance. On ground five, he submitted that the records shows that the Applicant worked to the Respondent from year 2017 to September, 2020 but it took only two weeks to raise an issue of underperformance to the termination 6 date. The review was to be made after two weeks but the target given was for a month. For him, the Arbitrator did not take that into consideration. On ground six, Mr. Killian submitted that; even though the Arbitrator ruled that there were no breach of contract and that the employer was not bound to follow the procedure; in CMA F.l the Applicant prayed to be paid on the remaining part of the contract to recompense him to the position if the employer honored the agreement. For him, the Respondent was duty bound with the sanctity of the agreement signed with the Applicant. He then prayed to this Court to fault the decision of the Arbitrator and order that there was breach of the contract by the employer and pay the Applicant the remaining part of the contract. Responding to the grounds raised, Mr. George submitted on the first ground that there is no evidence tendered by the Applicant that some duties were to be reviewed on monthly basis. He stated that there was no such contract. He then referred to exhibit D1 paragraph 1.7and stated that this was not part of PIP Agendas but was on stock taking on weekly and monthly basis. Mr. George continued that the Applicant was the administrator and so was to make sure that stock taking was done on weekly and monthly basis. For him, the Applicant had to make sure that linen was available, clean and put at required locations. Mr. George submitted further that; the duration for PIP was from 31/08/2020 ending 15/9/2020 (exhibit D l) and so it was a proof of a review of PIP process, the process which went on up to 28/9/2020 (exhibit D2). Mr. George stated further that the Applicant was found to be a reactive person as she reacted when problem was brought up to her supervisor. That, poor performance does not need a disciplinary meeting. On ground two, he submitted that there were no challenges on the part of the employer. He stated that the Applicant alleged that there was communication gaps but evidence reveals that there was no such gap as it was found that the Applicant was not doing anything when problems were submitted to her. To cement his point, Mr. George stated that exhibit D3 proves that the Applicant was called by her supervisor to be taken through the linen Management process but she ignored. He added that there were no numerous lines of command as the Applicant received command from her immediate supervisor Sijaona Mushi. The advocate for the Respondent submitted that the Applicant was to administer supervision on the part of the Respondents' employees subordinate to her (those who received dirt linen from the hospital) to the subcontractor Malileo and from Malileo to the Hospital. 8 He continued submitting that; it was not a duty of Malileo to know which Ward or Room required linen or curtain as it was the duty of the Applicant who supervised a team. He elaborated that the Applicant never pointed out that there was shortage of linen until when the Applicant was asked on poor performance. He added that the Respondent had no shortage of linen and that one of the duties of the Applicant was to make stock taking weekly but She never raised before. Mr. george submitted that the evidence of DW1, DW2 and Exhibit D3 proves the receiver of complaints as one patient was found naked and Sijaona had to write email (exhibit D3) but the Applicant refused to follow the instruction of her immediate supervisor. And on the issue of following procedure, he submitted that; the employer followed all the procedures and after identifying the poor performance, the employer through the Applicant's supervisor Sijaona) tried to train the Applicant but she refused. And through PIP, they conducted two review meeting but the Applicant failed. Mr. George stated further that Frida Somii was not an employee of the Respondent but rather a link between Malileo and the Respondent. Exhibit D3 shows email from the Applicant. It is an admission and that the email of the Respondent was replied on the same date. He continued the previous performance of the Applicant are not in issue and that they are not in record. Also, he continued that there was no agreement that PIP could run for a month. For him, the Respondent had no ill-will with the Applicant and that relief(s) granted were proper. In rejoinder, Mr. Killian submitted that most of the submissions of the Respondent are not in records and that there was no single witness said that the Applicant was pro-active. He continued that at page 6 last para, DW1 conceded that there was no patient who complained and that DW2 never said there was such a complaint but only Sijaona. On the issue of disciplinary procedure, he stated that it was brought by the Arbitrator (P. 18) and that he agreed that there was no need of disciplinary hearing. He continued that there was no single witness testified that Farida was not an employee of the Respondent and that the Respondent was the one to reply if there was a gap or not. After the perusal of both parties' pleadings, submissions, CMA records and exhibits tendered; there are three issues to be determined. First, whether underperformance was proven to be the reason which led to the breach o f employment contract o f the Applicant) second; if the answer is in affirm ative, whether procedure was follow ed to term inate the Applicant and third; to what re lie f (s) each part is entitled to. 10 In determination of issues raised, there is no dispute that the Applicant was employed by the Respondent having a five-year contract started on 4th May, 2019 and was supposed to end on 3rd May, 2024 (exhibit PI). Also, that the Applicant on 1st October, 2020 was terminated from work for poor performance in relation to linen and waste management. This is in accordance with exhibit DIO (termination letter). Dealing with the first issue raised, Rule 17(l)(a-e) (supra) provides for factors to be considered in determining termination under poor work performance. The rule states: 17(1) Any employer, arbitrator or judge who determ ines whether a term ination for poor work perform ance is fa ir shall consider- (a) Whether or not the employee failed to m eet a perform ance standard; (b) Whether the employee was aware, or could reasonably expected to have been aware, o f the required performance standard; (c) Whether the performance standards are reasonable; (d) The reasons why the employee failed to m eet the standard; and (e) Whether the employee was afforded a fair opportunity to meet the perform ance standard. li On determination of the issue, Mr. Kilian Advocate for the Applicant stated that termination was a breach of contract as there was no reason whatsoever for it. In dispute, Mr. George, the Advocate for the Respondent stated that the reason for termination was because the Applicant failed to supervise her co-workers in management of linens and hospital wastes. Exhibit D7(email conversations) shows the duties which the Applicant was obliged to perform (this answers (b). Records does not show that the Applicant contested that she did not know her responsibilities and so this Court considers them to be Applicant's responsibilities and for that matter, these answers (c) above. For easy of reference: • Ensure quality o f linen going to patient No damaged linen reach to patients • Report a linen discrepancies tim ely • Participate in linen stock taking on weekly and m onthly basis • Ensure a ll linen trolleys in the hospital are labelled and functional • Patient wheel chairs are dean, good and functional • D irty linen and dean linen rooms are in good condition • Waste management and control 12 • Assist to follow up outsourced HK team attendance • Participate on housekeeping daily rounds • Hospital fum igation schedule follow up • On daily basis ensure hospital waiting chairs are dean and in good arrangem ent • Supporting during CME events and other camps • Assist on KPI preparations. Also, records shows that on 15th July, 2020 the Applicant received an email from Sijaona Thomas Swalle stating that there are complaints from day 13th - 15th July, 2020 about linen. For easy reference, the letter read: Dear Lina, For three days consecutively (Monday 13th, Tuesday I4 h and lo d ay 15thJu/2020) we get linen com plaints from various units. This linen m atter is affecting patient safety and the hospital reputation. We had to intervene to resolve the matter. Today three tim es we got calls asking for patient linen, this is not acceptable, there is no point for a ll o f us to be on the ground if we cannot resolve such m inor issues. Yesterday there was a bitter com plaint at CCU where a patient had no gown to dress on and the nurse 13 decided to put her naked on the bed, I was called to intervene o f which I resolved the matter... The same letter was replied by the Applicant by taking fully responsibility and mentioned shortage of linens. For easy of reference, the reply read: Dear Boss, I really send my sincere apologies to the team; I take the responsibility. Though they have been challenges on the reporting of linen issues to you rather to us (the linen team) ... Moreover, we still face linen shortage and insufficient due to the increase in number of patients in different ward. The afore emails conversations shows that the Applicant was not taking her responsibilities seriously as it took for her to be reminded and in answer to that she took a full responsibility (this answers to (a) above). The reason is that she agreed not to do the follow up of linens in the Wards and she even went further complaining of not being told of the challenges in lines. She did not end there but went further stating the shortage of linen the Respondent is facing. The question to it is; what if she was not been sent an em ail on such m atter o f shortage o f linen when did she plan to represent it to the adm inistration? This shows irresponsibility and lack of seriousness on her duties on her part (this answers (d) and (e)). 14 Again, the records show that on 28th September, 2020 the Applicant was emailed and informed of curtains not being taken to washing since 1st June, 2020 and some room since 8th July, 2020, others from 11th August, 2020 and other since 15th August, 2020. Not only that but also the email stated of worn-out linen that were reaching patients' area. It is in my view that the Applicant worked in the hospital which deals with peoples' health. As a responsible employee, she ought to take her work more seriously and not being reminded several times over the same issue. I find the arbitrator was right to hold that there was reason for Applicant's termination. On determination of the second issue concerning procedure, Mr. Kilian Advocate in his submission in chief stated that the disciplinary hearing was not conducted and so the procedure was not followed. But later in his rejoinder, he conceded with Mr. George Advocate for the Respondent that disciplinary hearing was not a mandatory thing. It is the findings of the Court that the procedure for termination over a poor work performance is governed by Rule 18 ofG .N No. 42 o f2007. Rule 18(1) (supra)states that the reason has to be investigated. Exhibit D1 shows that performance improvement plan was conducted and the results to it were pronounced to the Applicant and so this covers the investigation part, Rule 15 18(2) (supra) provides for guidance, instruction or training to be given to the employee. Exhibit D3 proves that there was a consultation between the Respondent (through Sijaona) and the Applicant notifying the Applicant concerning linen on 15th July, 2020 and 28th September, 2020. Under Rule 18(3) (supra), a reasonable time to improve has to be given. Exhibit D3 also shows the conversation between the Applicant and Sijaona was on July and September (a two months duration). For a reasonable man, it is enough time for one to improve. Under Rule 18(4) (supra) warning has to be given if the employee continues to work under performance. Exhibit D3 (the email dated 15th July, 2020) also shows inspite of the conversation about linen issues, the Applicant was given a warning by needing her to state why disciplinary actions should not been taken to her. For easy reference, the warning read: With this please can you give explanations why we should not take disciplinary action against your perform ance which see, to affect patients as stated above. Under Rule 18(6) (supra), a meeting with the employee has to be called by the employee. Exhibit D2 is the minutes which proves that there was a meeting conducted between the Respondent and the employee. Under Rule 18(7) (supra) reasons have to be stated at the meeting and the employee to be given chance to make representation. 16 Exhibit D2 also shows that the Applicant was given time to give out her reasons, that: According to Lina, (the same is referenced in her written statem ent attached) she was not able to m eet some o f the objectives because o f the communication gap in the departm ent Under Rule 18(8) (supra) representations to be considered and if not, reasons have to be given. Under Rule 18(9) (supra) the outcome of the meeting shall be communicated to the employee with brief reasons. These are all seen in the termination letter (exhibit DIO) which stated the reason why the Applicant was being terminated. For easy of reference, Exhibit DIO read: 1st October, 2020 Lina M. Killian Dear Lina, Re: Termination o f Employment for poor perform ance Reference is made to the Performance Improvement Plan (PIP) that was com pleted on 22nd September 2020, the meeting that you had with Human Resource Personnel and your Line Managers on 28th September 2020 and your subsequent written response to the Performance Improvement Plan (PIP) dated 28h Septem ber 2020. As discussed at these meetings, despite you have been working under a Performance Improvement Plan (PIP) we have had concerns about your work perform ance even during the Performance Improvement Plan (PIP) 17 time. Particularly poor perform ance had been noted in areas related to linen and waste management Unfortunately\ you have not im proved your work perform ance to a consistent acceptable standard as required. Due to this therefore, the Institution has no any options than term inating your employment on the grounds o f poor work performance... As it has been seen above, I have all the reasons to believe that procedure to terminate the Applicant's employment contract was followed. In the end, I find no need to wrong the Arbitrator's finding. The CMA Award is hereby upheld. No order as to costs as this is a labour matter. Y JUDGE 12/ 05/2023 Judgement pronounced and dated 12th day of May, 2023 in the presence of learned Counsel Frank Kilian for the Applicant and Gilbert Mushi holding brief of George Shayo for the Respondent. Right of Appeal fully explained. 12/ 05/2023 18