maris stella nyankweli evarist vs the registered trustees of vignan education foundation 2023 tzhcld 1467 19 october 2023

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 125 OF 2023 (Arising from Labour Dispute No. CMA/DSM/KIN/163/21/74/21 the award of the Commission for Mediation & Arbitration of DSM at Kinondoni) MARIS-STELLA NYANKWELI EVARIST….................................APPLICANT VERSUS THE REGISTERED TRUSTEES OF VIGNAN EDUCATION FOUNDATION………………………………………..RESPONDENT JUDGEMENT Date of last order: 26th Sept. 2023 Date of judgement: 19th Oct. 2023 OPIYO, J. This Revision application emanates from the decision of the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/DSM/KIN/163/21/74. MARIS-STELLA NYANKWELI EVARIST the applicants herein are praying for the orders of the Court in the following terms: - 1. That, this Honorable Court be pleased to call for records, revise the proceedings and set aside the ruling and order of the Commission for Mediation and Arbitration at Kinondoni, Dar es 1 salaam in Labour Dispute No. CMA/DSM/KIN/163/21/74/21 before Hon. Mbeyale, R. Arbitrator. 2. Any other order this Honorable Court may deem fit and just to grant. The background of the dispute in brief is grasped from CMA record, affidavit and counter affidavit filed by the parties, leading to this application. The applicant herein was employed as a Teaching nurse. On 12th December 2018 she was retrenched for the reason of structural changes affecting business operation. She was dissatisfied with the retrenchment process, filed a dispute at CMA which issued the award in favour of the respondent. She was still resentful of the outcome resulting to the current application. The applicant advanced three legal issues of revision as stated at paragraph 4 of her affidavit as follows: - i) Whether the Honourable arbitrator erred in law and fact to shift the burden of proof to the applicant while the respondent had never discharged the same. ii) Whether the Honourable arbitrator was correct to dismiss the applicant complaint because the applicant had failed to prove her claim in the complaint. 2 iii) Whether the arbitrator was justified to rule out that the applicant was required to produce the bank statement to prove payment of her terminal benefit while the duty to keep records is casted to respondent. Both parties to the application were represented. The Applicant was represented by Mr. Japhet Mmuru, Advocate, whereas the Respondent was represented by Mr. Bernard Mbakileki, Advocate. The Court ordered for the hearing of the matter to proceed by way of written submissions following the parties’ requests. Their detailed submissions are appreciated. The respective submissions will be considered in relation to the issues they concern. Having considered the submissions made by both parties, affidavits, CMA record I find that the issues for determination in disposing this application is whether the applicant manages to convince this Court to exercise its power of revising the CMA award and to what reliefs parties are entitled. At CMA the arbitrator found that retrenchment process was lawfully exercised, hence, nothing was awarded to the applicant. In resolving the disputed issue, I find it worth to observe two aspects of termination which are fairness of reason and procedure for 3 termination, plus reliefs to be granted. However, as it is noted that, the issue of reason for termination was neither disputed nor contested by the applicant before this court, I find no need to spend courts precious time dealing with it. On other aspect of termination, procedural fairness of retrenchment, the legal position is that, even if the employer might have a fair and valid reason to retrench employees, he/she also has to adhere to mandatory procedures in retrenchment exercise. Procedures for termination on retrenchment/operational requirement are provided under Section 38 of the Act read together with Rules 23 and 24 of the Codes and the Guidelines under the Employment and Labour Relations (Code of Good Practice) GN. 42 of 2007, the applicable provisions provides that; - "Section 38 (1) in any termination for operational requirements (retrenchment), the employer shall comply with the following principles, that is to say, be shall: - (a) give notice of any intention to retrench as soon as it is contemplated; (b) disclose all relevant information on the intended retrenchment for the purpose of proper consultation; (c) consult prior to retrenchment or redundancy on:- (i) the reasons for the intended retrenchment; 4 (ii) any measures to avoid or minimize the intended retrenchment; (iii) the method of selection of the employees to be retrenched; (v) the timing of the retrenchments; (v) severance pay in respect of the retrenchment. The plain meaning of the above provision is ostensible that in establishing the validity and fairness of retrenchment exercise, the responsible authority has to observe the bonafide and integrity of the entire process. Even if there is a fair reason, the termination can still turn out to be unfair if the employer fails to act reasonably and follow the steps required to effect fair redundancy. In this matter the applicant argued that there was no proper consultation as she did not attend the meeting held on 5th and 7th December 2018. She further added that the signature appended in Exhibit D4 (Minutes of Consultative meeting) do not belong to her, on the reason that it differs with her signatures in other document, as reflected in Exhibit D3 (notice of student transfer) and Exhibit D6 (notice of termination). Having gone through the record, it is undisputed that the meeting was conducted as evidenced by Exhibit D-4(minutes of consultative 5 meeting) and attended by all employees the purpose of the which was to inform the affected party about the reason for retrenchment, as evidenced by Exhibit D1 (notice of intention to cancel full registration). Again, there was a retrenchment agreement between respondent and all staffs including applicant who were intended to be retrenched as per Exhibit D5. The principle of being bounded by the terms of the agreement was expounded in numerous cases including the case of Hotel Sultan Palace Zanzibar vs. Daniel Laizer & Another, Civil. Appl. No. 104 of 2004, Court of Appeal of Tanzania, (unreported) it was held: - ’’It is elementary that the employer and employee have to be guided by agreed term governing employment. Otherwise, it would be a chaotic state of affairs if employees or employers were left to freely do as they like regarding the employment in issue.’’ Basing on the above cited authority, as the respondent agreed to be terminated under retrenchment agreement, then, I am of the view that applicant’s allegation regarding difference in signature lacks stand. This allegation could have a legal stance if there was no any agreement between the parties over the retrenchment. It is settled 6 law that parties are bound by the agreements they freely entered into and this is the cardinal principle of the law of contract (Simon Kichele Chacha v. Aveline M. Kilawe, Civil Appeal No. 160 of 2018 (unreported), the Hon. Court of Appeal of Tanzania at Mwanza). It follows therefore that how can the applicant dispute being consulted while she finally signed the agreement she does not dispute. The above legal findings justifies that there was a proper consultation in initiating retrenchment exercise, hence procedurally fair. Therefore, applicant’s allegation regarding her signature in consultative meeting finds no basis in law. What finally binds her is the retrenchment agreement she do not dispute signing. The remaining issue is relating to terminal benefits payment. The applicant contended that, she was not paid any benefits, and the burden to proof was shifted to her contrary to Section 115 of the law of Tanzania Evidence Act. On other hands the respondent maintained that the applicant’s terminal benefits were paid as per Exhibit D6 (termination letter). 7 In addressing the disputed question the relevant provision is Section 15(5),(6) of the ELA, Cap 366, R.E 2019 which provides that ;- (5) The employer shall keep the written particulars prescribed in subsection (1) for a period of five years after the termination of employment. (6) If in any legal proceedings, an employer fails to produce a written contract or the written particulars prescribed in subsection (1), the burden of proving or disproving an alleged term of employment stipulated in subsection (1) shall be on the employer. From the above provision, since the applicant was terminated under retrenchment, then respondent had a legal duty to tender the evidence including bank statement or cheque on how she paid the applicant, failure to do so, the benefit of doubt goes to the one claiming she was paid. The same applies in this matter the alleged Exhibit D6 (termination letter) does not show that the applicant was paid the alleged benefits as they had agreed, even the language used therein at paragraph 2 line 3 the wording is “The Univesrty would pay you” but nothing supports that the payment was honored. In such circumstances since parties agreed to end their employment relationship via retrenchment by signing the agreement as per Exhibit 8 D5, it is my considered finding both sides are bound with the terms and to see the same are honored. As pointed out hereinabove, no proof of payment was coming from the respondent, the applicant is entitled to be paid terminal benefits as stipulated in retrenchment agreement as per Exhibit D5; which are For that reason, I hereby revise the CMA ruling to the extent explained. The application is partly allowed. No order as to costs. M. P. OPIYO, JUDGE 19/10/2023 9