maulid sinahali and 2 others vs tanzania china friendship textile coltd 2021 tzhcld 288 23 july 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 702 OF 2019 BETWEEN MAULID SINAHALI & 2 OTHERS................................ APPLICANTS VERSUS TANZANIA CHINA FRIENDSHIP TEXTILE CO. LTD .... RESPONDENT JUDGMENT Date of Last Order: 24/06/2021 Date ofJudgment: 23/07/2021 L, J. Itemba, J. The applicants MAULID SINAHALI, JOHN AKARO and HAMISI MSHANA, being aggrieved by the decision of the Commission for Mediation and Arbitration (herein after referred to as CMA) dated 20th August 2018, have filed the present application for revision. It is alleged that, the 1st, 2nd and 3rd applicants were employed by the respondent TANZANIA CHINA FRIENDSHIP TEXTILE CO. LTD, on diverse dates in the year 1989, 1999 and 1992 respectively. The 1st and 3rd respondents were in production department while the second respondent was in technical department. On 15th September 2016 the applicant's i employment were terminated for grounds of misconduct. The applicants filed a complaint of unfair termination before CMA, claiming for a compensation of Tshs. 114,456,800/ = . The application was dismissed. At the hearing of the present revision, the applicants were represented by Ms. Mwanakombo Chaponda a representor from a TUICO and the respondent was represented by Mr. Michael Mahende learned counsel. In her submissions, Ms. Chaponda adopted the applicants' affidavit and prayed that two grounds of revision, ground 4 (c) and 4 (e) be abandoned. Based on the remaining grounds 4(a, b and d), she submitted that the respondent did not establish a fair reason to terminate the applicants' employment. That, based on the CMA award, the arbitrator stated that the ground for termination was "utovu wa nidhamd' meaning 'misconduct' while there was no evidence to support the said misconduct. She further stated that termination was unprocedural because the applicants were not given an opportunity to bring witnesses and the minutes of disciplinary hearing which were recorded by the respondent 2 (Exhibit DWEX3) does not disclose that the applicants were involved in a strike. The counsel for respondent argued that the arbitrator was correct in his analysis. That there were 10 exhibits which were tendered without objections including a footage of CCTV camera and their contents were considered by the CMA. As regard to procedure, he referred the Court to the Notice to attend a disciplinary hearing (exhibit DI), issued to the applicants and Minutes of the said disciplinary hearing (Exhibit D3) which shows that the procedures were followed during the disciplinary hearing; and that the applicants were given right to appeal and their appeal letters were replied accordingly. It was his contention that, there was no dispute that 53 employees including the applicants participated in an illegal strike and there is oral and documentary evidence to support that. He stated that, the disciplinary offences were 4 in total, although he did not mention which are the said other offences apart from the strike. He questioned the representation of the 3rd applicant as he (the 3rd applicant) did not appear before the CMA. In her rejoinder Ms. Chaponda stated that all the 3 applicants were represented by the 1st applicant before CMA and that in her submission, 3 she did not mention about the evidence of CCTV camera because the arbitrator did not rely on it in his decision. Based on these facts, the issues to be determined by the Court are; /. Whether the respondent had valid reason for termination. ii. Whether the procedure for termination were adhered. Hi. What are the reliefs to the parties. Starting with the first issue, section 37 (2) CAP 366, provides that:- 'Section 37 (2) "/I termination of employment by an employer is unfair if the employer fails to prove:- a) that the reason for the termination is valid; b) that the reason is a fair reason :- i. related to the employee's conduct, capacity or compatibility; or ii. based on the operational requirements of the employer, and a) that the employment was terminated in accordance with a fair procedure.' This position is also recognized by the International Instruments under the International Labour Organization Convention (ILO) 158 of 1984 under Article 4. 4 Therefore, it is a principle of law that employers should only terminate employees basing on fair and valid reasons. There are a number of cases which have maintained the above legal position including the case of Naftali Nyangi Nyakibari v Board of Trustees- NSSF Labour Div, MZA, Revision No. 12 of 2014, [2015] LCCD 1. Where it was provided: 'It is the established principle that the termination of employment to be considered fair it should be based on valid reason and fair procedure. In other words there must be substantive fairness and procedural fairness of termination of employment.' The case provides further that; 'The intention of the legislature is to require employers to terminate employees only basing on valid reason and not their will or whims.' Having gone through termination letters against the applicants, all 3 letters mention "utovu wa nidhamd' that is misconduct as a ground for termination. It is purported that the said misconduct refers to the applicants unlawful participating in the strike at their workplace. That, the said misconduct was established when the respondent's administration 5 conducted a disciplinary hearing with the applicants. However, the minutes of the said disciplinary hearing which are very brief, do not reveal details of the said strike. They also reflect that all the three applicants disputed to have participated in the strike. There was no single witness in the said disciplinary hearing who talked about occurrence of the strike or who even linked the applicants with the said strike. Under the circumstances, it is unclear as to where did the respondent got evidence that the applicants participated in the strike. There are forms which were tendered before CMA named 'fomu za kusikiliza shauri', item 9 of the said forms requires a list of names of witnesses who attended the disciplinary hearing, if any. There is no single witness mentioned in the form to establish that the applicants participated or enticed the said strike. In the minutes, there is a mention of CCTV camera footage that the applicants were seen participating in the strike. However, during the hearing before the CMA, at page 28, the respondents' Human Resource Officer (DW2), stated that he did not see any of the applicants in the said footage. It is not said whether the said video was played before the CMA 6 and if so, what were its contents. Therefore, the evidence from CCTV footage has no weight and the arbitrator was justified by not relying on it. It is the duty of the employer to prove that termination was fair as per section 39 Cap 366 and the respondent has failed to prove that. I have not found any evidence which establishes that the applicants participated in a strike or committed any misconduct. The first issue is answered in negative that the respondent has not substantiated any valid reason for terminating the applicants' employment. With regard to the procedure for termination, the law under Section 37(2) (c) Cap 366 requires termination to be based on fair procedure. The employer must comply with procedure for termination. The said procedure is expounded under Rule 13 of GN 42 /2007. Rule 13 (1 to 5) of GN 42/2007 provides for steps to be taken by the employer to ensure fairness of procedure before termination. It requires among others, for the employer to conduct investigation to ascertain whether there are grounds for a fair hearing to be heard, to notify of the allegation to the employee in an understandable language, employee to be 7 given reasonable time to prepare for hearing and employee given an opportunity to respond and question the witness. In the disciplinary hearing minutes, there is also no evidence to show that the respondent conducted investigation. Either, it was not shown if the applicants were assisted by the employer to understand their charges, to have a representative or given an opportunity to call witnesses. Despite the fact that there is no evidence to show that they actually participated in the alleged strike, it is still uncertain whether the strike really happened and why the employees decided to strike. If the strike involved about 53 people it is not known why only the 3 applicants herein were terminated from employment? These are some of the questions which would have been answered had investigation been done by the respondent as per Rule 13(1) GN 42/2007. In the court records, there is no evidence to show that the above procedural requirements were complied with. In that regard, I am of different opinion from the Arbitrator that termination of the applicant was procedurally fair. The second issue is therefore answered in negative. 8 As it has been deliberated above, this is a case where termination of employees was based just on the whims of the employer as opposed to valid and fair reasons. Consequently, I hereby revise and set aside the decision of CMA that the termination of the applicants was valid and fair. The last issue is the relief entitled to the parties. I have gone through the CMA Form No. 1, the applicants have claimed for compensation of a total of Tshs. 114,456,800/= which is for 12 months' salary, leave, notice, severance pay, remained salary and damages. Section 40 (1) and (2) of Cap 366 provides that: 1) Where an arbitrator or Labour Court finds a termination is unfair, the arbitrator or Court may order the employer a) to reinstate the employee without loss of remuneration;......or b) to re-engage the employee........; or c) to pay compensation to the employee of not less than twelve months remuneration. 2) An order for compensation made under this section shall be in addition to, and not a substitute for, any other amount to which the employee may be entitled in terms of any law or agreement.' 9 As regard to remained salary, this is paid to an employee who had a contract of a specific time; whereas the employer will have to pay the employee based on a number of months remained in the said fixed time, before unfair termination. See Ultimate Security (T) Limited V Abubakari Abdallah Mkupasi, Labour Rev. No. 337 OF 2019. In this matter, there is no evidence to show that the applicants had contracts for a specific time. Therefore, payments of remained salary does not apply to the applicants. Either, the applicants could not prove that they have suffered any damages based on the consequences of unfair termination thus there are no orders for damages. It is undisputed that each applicant has worked with the respondent for at least 10 years. Therefore, severance pay and notice is their statutory right as per section 41(5) and 42 of Cap 366. Therefore, the applicants should be paid notice, severance allowance and any unpaid leave as claimed in their CMA Form No. 1. io Further to that, as the termination was unfair both procedurally and substantively, the respondent is ordered to pay each applicant a compensation of 12 months' remuneration. The application is allowed to the extent shown. It is so ordered. L.J. Itemba JUDGE 23/07/2021 11