mantrac t ltd vs joaquim p bonaventure 2018 tzhcld 13 6 april 2018

IN THE HIGH COURT OF T AN ZAN IA LA BOUR DIVISION AT DARESSALAAM CON SO LID ATED REVISION NO. 137 AND 151 OF 2017 BETWEEN MANTRA T A N Z A N I A L I M I T E D .........................................AP P LICA N T VERSUS JOAQUIM P. B O N A V E N T U R E ........................... .................RESPONDENT JU D G E M E N T Date of Last Order 23/02/201S Date of Judgm ent 06/04/2018 NYERERE. 3 This is consolidated revision application filed in this Court by applicant,/ Mantra Tanzania Ltd against the decision of the Commission for Mediation and Arbitration (CMA which w a s ’ delivered on 17/02/2017 by Aifrey Massay Arbitrator in favour of the respondent/ Joaquim Bonaventura. The sequence c f events leading to the present application were mainly tnat, the Respondent was employed by applicant from Mwanza Region on 14th May, 2007 as Finance and Administration Manager cn permanent contract for the monthly salar/ of USD 3,500 however, at the time of his termination his salary was USD 4,300 per month. He was also enjoying a monthly house allowance of 15% of the gross salar/, fully maintained vehicle for business and private purposes, and other emoluments such as health insurance, education cost to the maximum of USD 750 per annum and relevant professional training on ongoing basis. On 3': September, 2013 respondent suffer T.3 and Diabetes and he was admitted at AMI Hospital and he was granted 60 days E.D, which was further extended for another 14 days up to 2"z November, 2013 as he was still very sick, Cn 4“ November, 2013 respondent reported to work bur he was suspended from employment. On 6* November, 2013 respondent was served with notice to attend the disciplinary hearing on 7th November, 2013. At the disciplinary hearing respondent faces four charges and he was found guilty on two charges. 12] 30/11/2013 at Dar es Salaam cn alleged reasons Misappropriation c f Company's Funds. Respondent being aggrieved by the termination decision he appealed to the Com mission for Mediation and Arbitration and prayed for reinstatement, paym ent of terminal benefits and statutory allowances such as repatriation allowance and subsistence allowances. CMA in its decision decided that respondent termination was substantively fair but proceduraliy unfair and awarded applicant among others, six months saiary compensation for unfair termination equals to Tshs. 67,868,154/-, House allowance Tshs. 128,044,448/- plus commercial interest rate of Tshs. 28,169,778.55/- per annum, which for 3 years totaling Tshs. 212,553,784/=, Share Option payment Tshs. 64,800,000/-, insurance premium wrongly deducted Tshs. 1,400,000;-, repatriation allowance Tshs. 48,600,000/-, Subsistence Expenses Tshs 512,926,625/- which made the Total award of Tshs. 908,148,563/- The CMA award Aggrieved both parties w hereas applicant filed Revision No. 137/2017 while respondent filed Revision No. 151/2017. The At the hearing c f the consolidated revision applications applicant was represented by Mr. Ditrick Mwesiga learned counsel whereas respondent was represented by Mr. Meshack Lyabonga learned counsel and hearing was by way of written submission, and parties agreed on the following issues for determination by this court. i, Whether the termination of the employee's employm ent was substantively fair. if. W hether termination was procedural^ fair; iii. W hether Arbitrator was right in awarding six months compensation. iv. Whether Arbitrator erred in awarding the amount of Tshs. 64,800,000/- Share option payment. v. To what reliefs are parties entitled to. Submitting on the first issue whether the termination was substantively fair counsel for the applicant submitted that respondent was ateo :cr .r.isapprcpr aticn cf the applicant's funds by using applicants money to m e u-ne c f Tshs, 4,205, 353 to pay fcr import c'ur/ of his private vehicle and use c f Tshs. 1,400,000/- for payment of insurance Picm ium of his private vehicles Without the prior authorization from the applicant. He submitted that respondent during the disciplinary hearing he admitted that On 4:h March 2013 he issued an email instruction to Network Freight Forwarders for the clearance c f one Subaru vehicle on instruction that respondent will do the settlement on the office but until October, 2013 respondent never bothered to settle the dues. He went further elaborating that respondent issued and used the applicant's money without obtaining approval from the applicant which is contrary to the applicant's policy. He further stressed that the argument by respondent at the CMA that there was no need of approval before putting employer's funds to own use because he was on managerial level does not hold water and it is against the rules of any institution. He went on submitting that among the misconduct which may lead to termination of an employee as provided for under Paragraph 9 and 10 of 15! the Errplcyrr.ent and La c-cur Felaticns (Cede of Good Practice) GN 42/2007 C.r c /* "Theft or unauthorized possession of the employer's property.... Fraud or misappropriation of the organization fund." And he asked this court to confirm Arbitrator finding and decision that respondent's termination was substantively fair. Submitting on the second issue whether the termination was procecureliy fairness, Mr. Autiax Kahencacuza Vedasto learned Counsel submitted that Arbitrator found respondent's termination to be procedural!)' unfair on ground that on 6‘ri November, 2013 respondent was served with notification to attend disciplinary hearing on 7:" November, 2013 contran/ to Rule 13 (3) of the Code of Good Practice which require the employee to be given at least forty' eight hours to prepare for the hearing. The learned counsel faulted the Arbitrator findings on the basis that respondent in his CMA Form No. 1 never indicated whether he faulted the procedure applicant adopted to terminated him, thus Arbitrator was wrong :51 :o consider the ;ssue c f procedure fairness end he made 3 reference in the 'amous case c f Pcwer Reads (7) Ltd v. Hali Omari Noomero Revision K'o. 16 c f 2007 where Mandia 1 fAs he then w a s N/ held that: "....There is no provision in the Em ploym ent and Labour Relations Act, or in the Labour Institutions Act, particularly section 20 on the power of Mediators and Arbitrators/, allowing Mediators and Arbitrators to make changes, suo moto to w ha t appears on the referral form. The additions made by the Arbitrator are therefore illegal and are set aside.,./' The ’earned counsel funner made a reference to numbers of decision of this court including Coca Cola Kwanza Ltd v. Stephen Ndunguru (2013) LCCD NO. 166, Rogart Lyakurwa v. Kaisi H. Munisi (2011 - 2012) LCCD No. 30, Kessy Nuru v. Benki Kuu ya Tanzania (2013) LCCD No. 43 and the case of Rumishael Shoo & 64 Others v. The Guardian Ltd (2011-2012) LCCD No. 20 where Moshi 3. Observed that; V) "The Significance of Referral Form is just s sample, the arbitrator was right on this p o i n t Referral Form is part of the Pleadings, applicant's claim have to be pleaded in the referral Form, i.e Form No. 1. The CM A has to make a decision on w ha t has been pleaded in Form No. 1..." That be not enough the learned counsel also refer this Court in the Ccurt of Appeal of Tanzania decision in the case of Makori W assanca v. Joshua (1987) TLR 88 where it was held that; "In general, and this is, I think, elementary, a party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in evidence. He is not permitted to set up a new case." He further submitted that even if this court would find that there was a freedom to deviate from Form No. 1. This court has to consider that respondent filed the complaint at the CMA out of tim e contrary to Rule 10(1) of the Labour Institutions (Mediation and Arbitration) Rules GN !fcj 5-/2007 which require discute c f fairness of termination to be 'oc'cec within 20 days from the cate the decision to terminate was mace. He saia there is an interval c f six months naif year from the date respondent was aggrieved by applicant's termination decision and filling of the com plaint at the CMA. And he prayed this court to refer to Section 3 (1) of the Law of Limitation Act, [Cap 89 R.E 2002] and dismiss this application. Mr, Audax Kahendaguza Vedasto learned counsel submitting on third issue, as to whether it was right to order compensation c f 6 months, he said Arbitrate! has such discretion following the judicial c'ecisicn c f this court in the case of Benda Kasanda Nc-asi v. Makufuli (Motors Ltd Revision In' o . 25 cf 2010 where Rwevemamu j , (As she then, was) Observed that; "I agree that the decision whether or not to award compensation in any particular case is discretionary according to section 40 of the Act which com mences with the following word; the arbitrator ....may.." "It is obvious from the above rule that the Arbitrator may make any appropriate compensation based on the circumstances of each matter and considering the factors given under sub rule 5(a)(b)(c)(d) and (f). In my opinion the learned arbitrator trekked in the correct avenue when he ordered the compensation of six months, he had the discretion to order the compensation of less than twelve months remuneration where appropriate/' And he finally asked this court to maintain the award of six months compensation by Arbitrator if only it satisfied the termination was unfair. On fourth issue whether the Arbitrator erred in awarding the respondent Tshs 64,500,000/- as share option paym ent the learned counsel submitted that Arbitrator fatally erred to award share option p c ;-rr£r: trecause it was net pleaded cn the CM A Form No. 1 also there is no evicence tendered at the CMA In respects c f the share option payment. He said respondent at the CMA admitted that the issue c f share option payment was arrangem ent between respondent and applicant's parent ccmpany thus it was not proper for Arbitrator to award and he prayed this court to quash it and set aside. Cn the last issue what reliefs are parties entitled to, he submitted that Arbitrator erroneously awarded respondent repatriation and subsistence expences despite the facts that respondent was recruited from Mwanza and he was terminated at Dar es Salaam, because respondent never requested the claim c f repatriation, subsistence expences and riouse aFcwance in his CMA Form No. 1 and aisc it was time barred as Rule 10(2) of the Labour Institutions (Mediation and Arbitration) Rules GN 64/2007 requires all claims other than the claim of unfair termination to be filed to the CMA within 60 days. And he referred this court in the case c f Coca Cola Kwanza Ltd v. Stephen Ndunquru (7013) LCCD No. 166 cited above. The learned counsel went further submitting that despite the fact that repatriation and subsistence allowance is provided under section 43 of [in LCCD 119 where the court observed that; "W hat then is the am ount the com plainant is entitled to as transport/repatriation? In law, who alleges must prove. Since the com plainant did not establish any basis for the am ount claimed over and above the a m ount already paid, I find that he has failed to establish that claim. In the end result, I conclude that the com plainant has no further claim from the respondent/' And in respect or the awarG of i 5 w ,o as House ai;Ovvance Mr, a u o s x Kahendaguza submitted that it was wrong because it is time barred as respondent was supposed to claim it within 60 days provided under Rule 10(2) of the GN 64/2007 even before he was terminated and he made a reference in the case of Kinondoni Municipal Council v. Rupia Said and 117 Others LCCD f2014") where Rwevemamu J. (as she then was) held that; "I however quash the Arbitrator's order for paym ent of unpaid salary for reason that the claim was time barred. Such claims have to be made within a period of 60 days (See rule 10(2} of the Labour Institutions Mediation and Arbitration Rules, GN 64/2007." The learned counsel went further to argue that even if this court finds that house allowance is part and parcel of the salary but the same was supposed to be claimed when the claim arouse. And he refer this court ;n the case c f Ben-amin M. Kimu v, Real Security Group & Marine Service (2013^ LCCD No. 29 where the ccurt held that; "Overtime allowance is part and parcel of employee's salary, therefore, it was supposed to be claimed as and when the claim arouse. The claim arises when the salary is due for payment., the law require that claim be lodged within 60 days, see GN 64/2007." [13] lO :e :":e tna: i r e re sp cn o e n ts termination was substantively fair but prcceduraiiy unfair, and award of repatriation and susbistance expence, house allowance, share option payment and com pensation of 6 months salary while the termination was fair. He finally prayed the application be allowed and the CMA award be quashed and set aside. In responding to the first issue w hether termination was substantively fair Mr. Edward Peter Chuwa learned counsel for the respondent submitted that Arbitrator erred in law to adjudge respondent's termination was substantively fair by relying cn the testimony of (DVVi) Ca'la Van W esiiruzeinl who cave the contradictory evidence by not knowing even :he name c f the Company applicant alleged respondent instructed to clear the import duty of the vehicle in question. He further submitted that Arbitrator failed to consider the evidence tendered before him which clearly indicated that it is a normal practice for Manager to use employer's fund and the same be deducted from their salary. He said the Auditor of the applicant (PWC) showed the cost of the import duty was posted and receivable from respondent on 30" September, 2 0 :3 in m e bocks cf applicant and deduction was zc be c'cne oefcre December, 2GI3. He further avers that deductions were late because when documents were received frcm Network Freight Forwarders applicant w;as supposed to forward the docum ent to respondent for signature for deduction process but at that particular time respondent was admitted at AMI Hospital the reasons which cause delay in deduction. He went on submitting that there is no rule or standard regulating modes of using employer's fund and time frame for remitting the same to employer for manager in order to held respondent guilty for using his employer's fund and failed to remit timely and made a reference to Rule 12(1) cf the Employment and Labour Re:ations (Code c f Gcc-d Practice) GN 42/2007 provide that; 12(1) Any employer, aruitratcr or ju d g e wno is recjUireo io decide as termination for misconduct is unfair shall ccnsider;- a) W hether or not the employee contravened a rule or standards regulating conduct relating to employment; MCI i) It is reasonable; ii) It is d e a r and unambiguous; iii) The employee was aware of it, or could reasonably be expected to have been aware of it, iv) It has been consistently applied by the employer; and v) Term ination is an appropriate sanction for contravening it. He said Arbitrator's decision that Managers use of applicant's fund require pre-authorization is misconceived and it is not backup by evidence as the disciplinary hearing report which was tendered as Exhibit D5 declared there was no written Policy from the com pany on employee related expenses thus arbitrator erred to decide that the termination was rcr valid reason. Ke further pointed out that V s Iiq reasons is the pre~ condition for terminating the employment contract of an employee (Section cr — =mr!c\mer.t and l s &c l t Relations Act, No. 6/2004), which was articulated oy this court ;n the case of Mohamed R. Mwenda v. Ultimate Security Ltd Revision No. 440 of 2013 HC Labour Court Case Digest [LCCD) 2013 by adding that; 'Valid reasons must relate to the employee's conduct, capacity or compatibility; or based on the operational requirements of the employer" And he finally argued that the conduct of the respondent as Manager to import vehicle, and pay bock clearing c f the duties by a supplier by using suppliers' credit facility is net a misconduct because It is a normal prac^ce c f the applicant's employee on managerial level. In responding cn the second issue whether the termination was procedural!1/ fair Mr. Edward Peter Chuw'a learned counsel submitted that it is wrong for applicant's counsel to argued that this issue was never pleaded in CMA Form No. 1 thus Arbitrator erred in law' to deliberated on it because respondent properly pleaded in his CMA Form No. i the cause of action is unfair termination. He said in the case of Teddy Martin and [17] iCipcr v. Gates cr Pa^adisr r-’ctel (2014") LCCD No. 92 Rwevemamu X (As e then was) stated that; "It is my understanding of the law that once an employee indicates in the dispute referral form - CMA F . l that the cause of action for the referred dispute is unfair termination, such an employee has pleaded the issue. There would be no need to, and indeed it is not anticipated, that an employee would then state the issue of unfair termination separately/' He said Arbitrator was correct to adjudge the terminatlc procedural!'/ unfair as the evidence in record indicated t r a t cn 06r -sr.-in u., -.— i:^_ r — :- - r-C-£\ r~ ~ i IVUYCIIIUCI, i u u li i c c u p i i C c i IL i ^C!i :v_( IIUIISCII I\C^UIV.C W! t i V_Cl uuc J. Mrengo issued a notification to attend the disciplinary hearing on 0 7 " November, 2013 (Exhibit P7) without mentioning any charges as well as contrary to Rule 13(3) o f the Code of Good Practice which require an employee to be given 48 hours to prepare for hearing, [15] months compensation the learned counsel submitted that remedy for unfair termination is clearly provided under Section 40 of the Em ploym ent and Labour Relations Act, No.6/2004 which provides that; "If Arbitrator or Labour Court finds a termination is unfair, the Arbitrator or Court may order the employer a) To reinstate the employee from the date the employee was terminated without loss of remuneration during the period that the employee was absent from work due to the unfair termination; or b ) T o re- engage the employee on any terms that the arbitrator or court may decide; or c ) T o pay compensation to the employe e of not less than twelve months' remuneration." ;e said basing on the cited provision of the law Arbitrator or Court has no discretion to award less compensation than what is provided under the law; or the law does not gives the Arbitrator or Court power to award less compensation basing on the extent em ployer flouted the law in the course c f terminating employee, and made a reference in the case of Joseph C. Magesa v. Tanzania Breweries Ltd Revision No. 60/2013 HC Labour Division Mwanza Sub Registry (Unreported). The learned counsel went further elaborating that Arbitrator misdirected himself when gives the award c f 6 months compensation which were no: provided anywhere in lav; and prayed this court 10 quash it ano croer reinstatement as prayed by respondent. In respect of issue four whether Arbitrator erred in awarding the amount c f Tshs. 64,800,000/- Share option paym ent the learned counsel submitted that respondent being a senior em ployee of the applicant he was given 13,800 shares by the parent company of the applicant which was supposed to mature in December, 2013 but applicant terminated re sp crce n t cn 30* !\lc v e iT b : Kil 2013. r e further argued that Arbitrator was corr-Ci lo aware ;t ce-cause responoent is entitled as per clause 5 paragraph 2 of the em ploym ent contract. In regards to last issue to what reliefs are the parties entitled to the learned counsel submitted that Arbitrator was correct to award respondent repatriation cost Tshs. 48/600,000/'- and subsistence allowance of Tshs. 512,926,625/- because respondent was recruited from Mwanza and he was terminated at Dar es Salaam and the law clearly under Section 43(1) c f the Employment and Labour Relations Act, 2004 provides that; "Where an employee's contract of employment is terminated at a place other than where the employee was recruited, the employer shall either;- a) Transport the employee and his personal effects to the place o f recruitment, b) Pay for transportation o f employee to the place o f recruitment, or c) Pay the employee an allowance for transportation to the place o f recruitment in :2i| accordance with subsection (2) and dally subsistence expenses during the period/ if any between the date of termination of the contract and the date o f transporting the employee and his family to the place of recruitment To strengthen his argum ent he refer this court in the case c f Kenya Kazi Security (T) Ltd v. Nambeke Skawa Revision No. 37/2016 HC Labour Division Mwanza Subregistry (Unreported) cited with approval in the decision c f in the Attorney General & 3 Others v, Eligi Edward Massawe and 104 Others Civil Appeal No. 86/2002 CAT DSM(Unreported) a r c the case c f Paul Yustus Nchia v. National Executive Secretary CCM & Another Civil Appeal No. 85/2005 CAT DSM (Unreported) where the Court c f Appeal of Tanzania held that; "Employee is entitled to repatriation cost, and subsistence allowances only if he was terminated on the place other than place of domicile, and employee remained on the place of recruitment, entitled with subsistence allowance for the period of remain/' i he same was reiterated in the case of Ibrahim Kamundi Shayo v. Tanzania Fertilizer C om p a n y Ltd (TFC) Labour Dispute No. 1/2014 HC Labour Division Moshi Sub registry w here the court held that; uMy understanding of the Court of Appeal decision is that employee is only entitled to be paid subsistence allowance once employer failed to repatriate such an employee to his place of domicile and such employee continued to stay in the working place/7 He further argued r : a t the argument advanced by applicant's ccunse! that the claim fcr repa triarcn and subsistence allowance is tim e barred by referring to Section c f the Law of Limitation Act, [Cap 89 R.E 2002] is devoid of merit because repatriation and subsistence expense is payable upon termination of em ploym ent contract, and the law of limitation Act, [Cap 89 R.E 2002] is net applicable as far as Labour matters is concerned. ' The total value of all payments, in money or in kind, made or owing to an employee arising from the em ployment of that employee." He further submitted that the argum ent advanced by applicant's ccunsei that the issue of house allowance is time barred and it was never pleaded in CMA Form No. 1 is misconceived and prays this court to disregard by basing on the findings c f this ccurt in the case of Suleiman Mrisho Sumav v. Mint Master Security m Ltd (2011-2012) LCCD No. 73. In rejoinder, Mr. A u cax Kahendaguza Vedasto learned ccunsei submitted in respect c f the first issue that respondent admitted on tr.e charges in respect c f use c f applicant's money for personal use thus ;t require no need fcr applicant to bring witness to testify he made refererce in the case cf Frank Saluhara and C h a fe s Nvamko v. Nvanza Bcttiino Co. Ltd f2014N ) LCCD No. 133 where the court observed that; "From the records and parties submission it is clear that, the complainant conceded- to the misconduct charged with. It is apparent therefore that applicants knew and understood the allegations charged with, which they according conceded to.,, since the applicants conceded to the misconduct charged with, I believe there was no need to call in further evidence." On second issue the learned counsel maintained that the claim was time barred thus has no leg to stand and heavily made reference to provision c f the Law of Limitation Act, [Cap 89 R.E 2002] in which he believe the very law is applicable in em ploym ent matter. He further argued that the requirement for em ployer to issue a 48 hours notice to em ployee to attend disdpiinary hearing started from the time employer faiied to do so and not when employer's made his decision to terminate such an employee and prays this ccurt to dismiss such aspects for being time • _______ f carreo. A r c cn the ether issues third, fourth and fifth applicant's counsel reiterated his submission in chief and prayed this court to quash the arbitrator's decision that respondent's termination was unfair, award c f repatriation and subsistence expences, house allowance, share option payment, insurance premium, and compensation of six months and adiudoed the termination was fair. A . e r c s r e fil.y examined parties submission and c c r sice ring CM A icCC.Cs l i l i u L c c v i i .)j/ tcicv'ciii cf_Jlc;^'le IsDour Iowsr case iaws ano tair Labour practices my decision on the agreed issues are as fcilcws; In regards to the first issue whether the termination was substantively fair I hastily subscribed to respondent's counsel submission that valid reasons is the pre- condition for terminating the em ploym ent contract of an employee (Section 37 of the Em ploym ent and Labour Relations Act, [\!c>. 6/2004) which was articulated by this court in the case of M o h a m e d R. M w e n d a v. U l t im a t e S e c u r i t y L td R e v i s io n No. 4 4 0 o f 2 0 1 3 K C L a b o u r C o u r t C a s e D ig e s t [ L C C D ) 2 0 1 3 by adding that; ' V a lid r e a s o n s m u s t r e la t e to t h e e m p lo y e e 's c o n d u c t , c a p a c it y o r c o m p a t ib ilit y ; o r b a s e d o n t h e o p e r a t i o n a l r e q u ir e m e n t s o f t h e e m p lo y e r " In the present application respondent was terminated for Misappropriation of employer's fund by merely issued instruction to Network Freight Forwarders (NFF) to process import duty Tshs. 4, 205, 353/- for his private vehicle, and payment of Tshs. 1,400,000/- insurance premium for such imported private vehicle. I must point out in the outset it [27] .s a o e r e n t cn e v ic e rc e "espcncent ti'ti net denied what enip!ever termed w.- iiii. v.v i i w l l vh ui'wwiiu ii. i^ a ,i-wfir.cl practice ior senior Managers to boek various services by using applicant's money and later cn being deducted from the employee's salary. I must say in the outset that the evidence reveal such practice is common to the applicant, the evidence reveal further that respondent was only held liable because the deduction from his salary was delayed from March 2013 when respondent issued an email instructed NFF for clearance c f the vehicle till when he was suspended from em ploym ent for such allegation. However, respondent alleged in his submission and during the disciplinary hearing that the d e !ay was caused by his long time health problem which caused him to be out c f the c f f c e for more than two months. New the question remained here for determination is whether such delay by respondent fall within the misconduct which may justify termination by employer. Rule 12(1) of the Employment and Labour Relations (Code of Good Practice) GN 42/2007 provide that; [2SJ a) N/A b) N/A c) W hether or not the employee contravened a rule or standards regulating conduct relating to employment; d) If the rule of standards was contravened, whether or net p, ri/ IJ '« i v / r-v hi) UjH-. iv) N/A v) N/A vi) It is reasonable; vii) It is clear and unambiguous; viii) The employee was aware of it, or could reasonably be expected to have been aware of x) lerm instion is an appropriate sanction ter contravening it. I must point out in the cutset that there is no rules or policy by employer which respondent violated to justify his act of delayed to refund his employer's fund. Also I just say this by passing that even if there would have been Rules or Policy the facts that such transaction was done bonafide by respondent without the intention to deprive applicant's funds termination c f em ploym ent was a harsh penalty to respondent who always have acted in good manner. Thus I hastily quash arbitrator finding that respondent's termination was fc r valid reason thus this issue is merited. In respects c f the second issue whether termination was procedure!!’/ unfair I must say in cutset that Arbitrator w'as correct to decide that respondent was procedurally unfairly terminated as he was denied his fundament rights provided under Rule 13(3) of the Employment and Labour Relations (Code of Good Practice) GN 42/2007 which require employee to be given at least fort/ eight hours to prepare for the hearing. Evidence (Exhibit D2) indicated that on 6th November, 2013 respondent prescribed time provided in law. The argum ent advanced by applicant's counsel that the issue of procedural!'/ fairness was never pleaded by respondent in his CMA Form No. 1 is misconceived and I quash that argum ent on ground that this court has in many occassicn as respondent's counsel submitted in the case of Teddy Martin and another v, Gates of Paradise Hotel (2014) LCCD No. 92 Rweyem amu 3. (As she then was) stated that; "It is my understanding of the law that once an employee indicates in the dispute referral form - CMA F . l that the cause of action for the referred dispute is unfair termination/ such an employee has pleaded the issue, There would be no need to, and indeed it is not anticipated, that an employee would then state the issue of unfair termination separately. oc\e c re o case a eria lly Titerereted Secticn 37 c f the ELRA vc w. :•>. v.wII'v-rjrt cr ir,7c!r term inaticn ,n u\o aspect or vaiidit/ or the reasons and procedural!'/ fairness. Thus in any instance if an employee challenged indicated in his CMA Form No. 1 that the dispute is about fairness c f termination in itself it involved two aspect as elaborated above. Also I find opportune though by passing to enlighten counsei for applicant Mr. Audax Kahendaguza Vedasto on the cause of action cn unfair termination dispute arouse only when em ployer imposed penalty to an employee be it a decision to terminate an employee or even issuance of written warning. If such an employee is aggr;e\ed by such decision may seek recress to em ploym ent cispute handling machinery. Thus the arcwmert advanced by Mr. Audax that this m a tte r 's t'm,e barred c crtrary to Section 3 of the Law of Limitation Act, [Cap 89 R.E 2002] is highly misconceived as em ploym ent dispute is a creature of the statute and the very laws provide for time limit to initiate the em ploym ent dispute proceedings (See Rule 10 of the GN 64/2007). The law of Limitations Act may apply only to this court only if the court invoke its power under Rule 55 of the Labour Court Rules GN [22] 1O6/7C07 a~ci choose any practicable remedy under such legislation cnly if mere is lacuna under the labour Saws. Having said al! that and cone I find this issue also "'ails. Arbitrator findings and decision that termination was procedurally unfair is hereby upheld. My decision on third issue whether Arbitrator was right in awarding six months compensation is that remedies for unfair termination are clearly provided for under Section 40 of the Employment and Labour Relations Act, No.6/2004 which provides that; "If Arbitrator or Labour Court finds a termination is unfair, the Arbitrator or Court may order the employer d ) T o reinstate the employee from the date the employee was terminated without loss of remuneration during the period that the employee was absent from work due to the unfair termination; or e ) T o re- engage the employee on any terms that the arbitrator or court may decide; or [ 33] f) To pay compensation to the employee of not !ess than twelve months' remuneration," m my understanding c f the law the very law is that gives discretion to the court or Arbitrator to award either of the remedies enlightened above. Such discretion does not warrant the decision maker to award less than the minimum compensation provided by the law of twelve months even if the Court c r Arbitratcr considered the circumstances provided for under Rule 32 of the GN 64/2007. In my view the v e r/ law encourage award of mere than twelve months and net vice versa. Applicant's counsel invited this court to consider its previous decision in the case c f Benda Kasanda Ndasi v, Makufuli Motors Ltd Revision No. 25 of 201Q where Rweyemamu J, (As she then was) and the case of Sagar.ga Mussa v. Institute of Social Work (2014) LCCD No, 41 where Mipawa 1 (As he then was) where the two previous Judges c f this court were of the view that if Court adjudged the termination to be procedural unfair only, and considered the extent em ployer faulted the procedure the court may award compensation of less than twelve months. in my view t r e c'ec'sc.n in the two cited case are sound t u t the facts Ci unS ^ ^ ,i~^ — l c Cc u s s in chc insi-ant case m e cresent applicant's skipped procedure as stipulated under (Rule 12(3) c f the GN 42/2007). This ca nnct be termed as minor discrepancy thus Arbitrator was wrong to award compensation c f less than twelve months. The same is hereby quashed and set aside. In regards to fourth issue whether Arbitrator erred in awarding the amount c f Tshs. 64,800,000/- as share option payment. I must say in outset that indeed Arbitrator erred In law and facts to grant such remedy because it is net back up by any kind of evidence in records. The only mere wcros from respondent ccunsei curing his submission was that responder,: entitled with share c p tic n payment by virtue clause 5 paragraph 2 of the employment contract, I managed to go through the em ploym ent contract c f the respondent particularly clause 5 para 2 and it read as; "In certain circumstances, the Board of Directors may determine that a cash or option incentive bonus is due to you to reflect your contribution E3 5 j towards the Company's achievement of its overall objectives/7 Frcm the words c f the above clause I find Arbitrator award c f share option payment was from the blue sky because there is no ether evidence like resolution by the Board cf Directors granted share option to respondent was tendered at the CMA. W ithout wasting precious time of this court I proceed tc quash and set aside the award of share option payment granted by Arbitrator. New turning to the last issue to w hat reliefs parties are entitled to. The reccrds reveal that respondent at the CMA was awarded Repatriation allowance, subs’stence allowance a rd he use allowance. New the issue x r determination here is whether respondent :s entitled to such reliefs. Starting with repatriation and subsistence expenses it is undisputed facts that respondent was recruited frcm Mwanza Region and he was terminated here at Dar es Salaam on 30:" November, 2013, the law' clearly under Section 43(1) of the Employment and Labour Relations Act, 2004 r KA\ l!/A 4-k-. . pi U V IU C D LI I C L , [36] 'W h e r e an employee's contract of emplo ym ent is terminated at a place other than where the employee was recruited, the employer shall either;- a) Transport the employee and his personal effects to the place of recruitment, b) Pay for transportation of employee to the place of recruitment, or c) Pay the employee an allowance for transportation to the place of recruitment in accordance with subsection (2) and daily subsistence expenses during the period, if any between the date of termination of the contract and the date of transporting the employee and his family to the place of recruitment. In the case of Kenya Kazi Security (T) Ltd v. Nambeke Skawa Revision No. 37/2016 HC Labour Division Mwanza Subregistry (unreported) cited with approval the decision in the case of Attorney General & 3 Others v. Eligi Edward Massawe and 104 Others Civil Appeal No. 86/2002 CAT DSM (Unreported) and t r e c ase c f Paul Yustus Nchia v. National Executive Secretary CCM & Another Civil Appeal No. 85/2005 CAT DSM (Unreported) where the Court of Appeal of Tanzania held that; "Employee is entitled to repatriation cost, and subsistence allowances only if he was terminated on the place other than place of domicile; and employee remained on the place of recruitment, entitled with subsistence allowance for the period of remain." The same was reiterated in the case of Ibrahim Kamundi Shayo v. Tanzania Fertilizer Com pany Ltd (TFC) Labour Dispute No. i/ 2 0 1 4 HC Labour Division Moshi Sub registry where the court he'd that; "My understanding of the Court of Appeal decision is that employee is only entitled to be paid subsistence allowance once employer failed to repatriate such an employee to his place of domicile and such employee continued to stay in the working place/' Thus :t is without flickers c f doubt respondent Is entitled with repatriation and subsistence expenses as correctly decided by the Arbitrator because respondent continued to stay at the place of working since he was terminated on 30tn November, 2013 to date. The argum ent advanced by applicant's counsel that the claim for repatriation and subsistence expenses is misconceived as the cause of action for repatriation and subsistence allowance arouse only on termination or end c f employment contract or retirement and em ployer failed to repatriate the particular employee. The cn!y question which I find opportune to elaborate is on m odalit/ cf calculating subsistence allowance. In the instant case Arbitrator granted subsistence allowance at the rate c f 200,000/- per day the am ount which applicant feels unhappy with. I must say the modality c f calculating subsistence expenses has not been adjudicated upon. However, in recent time, following the coming into operation of the Employment and Labour (1) "The subsistence expenses provided for under section 4 3 ( l) ( c ) of the Act shall be quantified to daily basic wage or as may, from time to time, be determined by the relevant wage board/' (2) In determining the subsistence expenses, the conditions prescribed under Section 37 of the Labour Institution Act shall apply". Thus calculating the daily basic wace for respondent is UDS 4,500 4-30 = 1-3.332 LS D which is equals to Tshs, 318,200 per day wh'ch is the specific rate Arbitrator ought to use. However, considering factors provided for under Section 37 (d) (i) cf the Labour Institutions Act, No, 7/2004 and Section 3(a) of the Employment and Labour Relations Act No. 6/2004 read together with Rule 55(2) of the Labour Court Rules GN. 106/2007 in which sets the principal objectives of the Act is to promote economic development efficiency, productivity and the good ends of justice. I also 200,000/- per ca y to Tshs. 150,000/- per day. Thus respondent is entitled to payment of Tshs. 150,000 x 30 x 12 x 5 = 270,000,000/'= from the period of termination to the date of this judgement. As to repatriation costs the evidence revealed that respondent at the time of recruitment he was transported from Mwanza to Dar es Salaam for Total cost of USD S000. In my view this was supposed to be the correct repatriation cost and not what Arbitrator granted Tshs. 48,600,000/- therefore I revised the award c f Tshs. 48,600,000/- to LS D 9000 which is equal to Tshs. 19,500,000/- Ncw coming to the award c f house allowance the records re\ea»s that among the terminal benefit respondent was used to enjoy by virtue cf his employment contract and it forms past and parcel of his remuneration is house allowance as rightly submitted by respondent counsel section 4 of the Employment and Labour Relations Act, 2004 define the term remuneration as; nThe total value of ail payments, in money or in kind, made or owing to an employee arising from the employm ent of that employee.” Thus it is true that respondent was entitled with house allowance c f 15% of his salary. However, the claim before the Arbitrator in respects of house ailcwance aroused two years back before respondent was terminated but respondent never bothered to claim this em olum ent timely in tnat recarcs I entirely scre e with Mr. Audax Veoasto counsel fcr m e applicant and the decision in the case of Benjamin M. Kimu v. Real Security Group & Marine Service (2013) LCCD No. 29 where the court held that; "Overtime allowance is part and parcel of employee's salary, therefore, it was supposed to be claimed as and when the claim arouse. The claim arises when the salary Is due for payment., the law require that claim be lodged within 60 days, see GN 64/2007." rcvided under Rule 10(2) c f the Labour Institutions Mediation and Arbitration Rules GN 64/2007. In the end result and after considered ail the issues as advanced by parties applicant is hereby ordered to pay respondent as follows; 12 months compensation for unfair termination Tshs, 113,520,000/-, Tshs. 3,460,000/- One months salary in lieu of notice, Repatriation allowance Tshs. 19,800,000/-, Subsistence Expenses Tshs. 270,000,000/- make the Total of Tshs. 412,780,000/-, In the upshot the consolidated revision application succeeded as e'abcrated above. It is so ordered. A,C. Nyerere JUDGE 06/04/2018