mohamed ngowengo vs tanzania distilleries 2020 tzhcld 85 24 april 2020

THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 159 OF 2019 MOHAMED NGOWENGO............................................... APPLICANT VERSUS TANZANIA DISTILLERIES LIMITED...........................RESPONDENT JUDGMENT Date of Last Order: 18/03/2020 Date of Judgment: 24/04/2020 A. E. MWIPOPO. J Aggrieved by the Award of the Commission for Mediation and Arbitration [herein after to be referred to as CMA] delivered on 11th March 2019, 2018 the applicant m o h a m e d n g o w e n g o has filed this application under the provisions of Sections 91(l)(a),(2)(b) and 94(l)(b)(i) of the Employment and Labour Relations Act No. 6 of 2004 [herein after to be referred to as ELRA] and Rules 24(1), (2)(a)(b)(c)(d)(e)(f), (3)(a)(b)(c)(d) 1 and Rule 28(l)(c)(d)(e) of the Labour Court Rules, GN No. 106 of 2007. The applicant is praying for the following Orders:- 1. That this Honourable court be pleased to call for records, examine and revise the proceedings, award and orders o f the Commission for Mediation and Arbitration in Labour Dispute No. CMA/DSM/TEM/291/2017/175/2017. By Hon. AMOS, H. Arbitrator, dated 05™ February, 2019. 2. Any other relief this Honourable Court deems fit and proper to grant. The application is supported by the sworn affidavit of the Applicant. The respondent Ta n z a n i a d istiller ies lim it ed opposed the application through Notice of opposition and the counter affidavit sworn by Merian Kambuga who is the respondent's Principal Officer. At the hearing of the revision application, applicant was represented by Mr. Christopher Mbuba learned counsel whereas respondent was represented by Mr. Ashery Stanley learned counsel. Hearing of the application proceeded orally. 2 In his submission, Mr. Mbuba prayed to adopt the applicant's affidavit to form part of his submission. Then, he submitted the application for revision on the five grounds as following:- On the first ground that the Arbitrator's erred in holding that the respondent adhered to the Criteria of competence and experience in choosing employees to be retrenched, he submitted that the Applicant have more competency and experience than other employees who were not retrenched. Therefore, the applicant was not supposed to be retrenched. On second ground that the Hon. Arbitrator erred to hold that the respondent adhered to the principle of Last in First out {LIFO} in choosing employees to be retrenched, he submitted that one of the principle during retrenchment process is that the employee who was employed earlier will be the last to walk out of the employment. But the employer retrenched the applicant without considering that there are other employees who were not retrenched despite the fact that they were employed after the applicant was already employed. On third ground that the arbitrator erred in holding that the respondent followed all criteria agreed between employer and the 3 employee's trade union in choosing employees to be retrenched, he submitted that it is true that there was consultation but the consultation was not complete. He further argued that there was an agreement that communication should be done between the employer and TUICO Headquarter, but there is no evidence which was tendered to prove that there was communication between employer and TUICO {page 15 of the award}. Section 38 of Employment and Labour Relations Act provides for criteria for retrenchment. One of criteria is consultation. To strengthen his argument he referred this court to the case of Tanzania Buildings Works Vs. Ally Mgomba and 4 Others (2011 - 2012) LCCD 103, where this court held that the law puts the duty to engage into consultation in good faith to both employer and employee. Basing on the above case, he submitted there is no proof of complete consultation. On fourth ground that the Hon. Arbitrator erred to hold that the respondent followed all criteria agreed between employer and employees trade union in choosing the applicant who was a member of field branch committee to be retrenched, he submitted that one of the term of the agreement between TUICO and employer provides that an employee who is a member in field branch committee would be the last to be retrenched. 4 He further argued that the Award in page 14 have quoted the respective paragraph. Since the applicant was a member of that field branch committee he was not supposed to be retrenched at the first instance. But evidence shows that the applicant was the first to be retrenched and that was the result of ineffective consultation because if the names selected for retrenchment were communicated to the TUICO headquarter, the TUICO would remind the employer on the importance of adhering to the criteria agreed. Therefore the Applicant would not be retrenched at the first instance. He further submitted that rule 2 (2) of the Labour Court Rules 2007 interpret the word notify to mean notify in writing, therefore the communication was supposed to be in writing and not orally. On the fifth ground that the arbitrator erred to grant the award contrary to the standard of proof according to the law, he submitted that Section 110 of the Law of Evidence Act, Cap 6 RE 2002 provides that anyone who alleges must prove the existence of the alleged facts. He was of the opinion that in this matter the respondent failed to prove his case. He prayed for the CMA Award to be quashed. 5 In reply, Mr. Ashery Stanley prayed to adopt Counter Affidavit by one Merian Kambuga (People's Manager) to form part of his submission. Then, he submitted that section 38(1) (a) (i) of Employment and Labour Relations Act, 2004 requires the employer to comply with order of consulting the recognized trade union in the retrenchment process. In compliance, the respondent consulted with TUICO resulting to an agreement - exhibit P2. He argued that the Exhibit enlighten the selection criteria for retrenchment which includes skills, competency, experience, last in last out and employee who is a member of a selected committee to be among the last to be retrenched. He was of the view that those criteria's were supposed to be used to supplement one another where there are two employees with similar qualification. On the legal issue of consultation to Union national level, he submitted further that the Applicant was supposed to provide evidence to contradict the testimony of DW3 who testified that consultation was made orally. In absence of the witness to say otherwise means that the evidence of DW3 was not contradicted and as result it has to be believed. On the ground that the applicant was supposed to be the last to be retrenched, he submitted that there is no evidence in record that shows 6 the applicant was the first to be retrenched as it is a new fact raised at this stage. He emphasized that the procedures were followed and the applicant was satisfied with the said procedures for failure to raise and file any grievance to the review committee. He further submitted that according to clause no. 4:2 of Retrenchment Agreement - Exhibit P2 any employee who was aggrieved by selection criteria may bring grievances to the attention of Review committee established under clause 4:1. But applicant did not file any grievances to the committee. He was of the view that such failure made the respondent to believe that all procedures were adhered. He argued that the applicant cannot again file a suit under the principle of estoppel as established under Section 123 of the TEA. Regarding competence, skill and principle of the first in last out, he submitted that it was considered by the arbitrator at page 16 of the award. As Section 110 and 111 of the evidence Act provides for the duty of the one alleging any fact to prove existence of the alleged fact, then the applicant have failed to prove that he had more experience, skills and education than other employees who were not retrenched. Therefore this ground should be dismisses. In support of his submission he cited the case 7 of Metal Product Ltd Vs. Mohamed Mwerangu and 7 Others where it was held in "obiter dicta" that;- the criteria provided by the law in the agreement are not meant to be applied in a check list fashion but rather provide a guideline to ensure that consultation is adequate and covers all vital matters. Therefore he prayed for the case to be dismissed for lack of merits. In rejoinder, Mr. Mbuba reiterated his submission in chief but insisted on issue of consultation by claiming it was not effected. After carefully examined parties' submission and considering CMA records the main issues are as foilows;- i) Whether procedures for retrenchment of the Applicant was adhered. ii) What are the remedies to the parties? Starting with the determination of the first issue, The ELRA in section 38(1) provides for procedures for retrenchment. The section reads as follows, I quote;- 38 (1) In any termination for operational requirements (retrenchment), the employer 8 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 intended retrenchment; ii) any measures to avoid or minimize the intended retrenchment; iii) the method of selection of the employees to be retrenched; iv) the timing of the retrenchment; and v) severance pay in respect of the retrenchment, The above cited provision, covered both substantive and procedural obligation of an employer on how to implement the retrenchment exercise. The section is supported by rule 23(4) of Employment and Labour 9 Relations (Code of Good Practices) Rules, GN. No.42 of 2007. The rule reads as follows;- "23(4) The obligations placed on an employer are both procedural and substantive. The purpose of consultation required by section 38 of the Act is to permit the parties, in the form of joint problem-solving exercise, to reach agreement on;- (a) The reasons for the intended retrenchment (i.e) the need to retrench; (b) Any measure to avoid or minimize the intended retrenchment such as transfer to other jobs, early retirement, voluntary retrenchment packages, layoff, etc; (c) Criteria for selecting the employees for termination, such as last -in-first-out (LIFO), subject to the need to retain key jobs, experience or special skills, affirmative action and qualification; 10 (d) The timing of the retrenchment; (e) Severance pay and other conditions on which terminations take place; and (f) Steps to avoid the adverse effects of the terminations such as time of to seek work. In this application, the dispute between the parties is in regards to the criteria for retrenchment and effectiveness of consultation (communication) to retrenched employees. The reasons for retrenchment was not disputed by the applicant. What was alleged by the applicant is that the respondent did not follow the criteria for retrenchment hence improper retrenchment to employees. The applicant submitted that no effective communication in retrenchment was implemented as a result some employees were favoured and criteria for retrenchment was not followed. However, there is no evidence on record to prove how other employees were favoured. The applicant never tendered any document before CMA to prove his allegation that he have more skills, performance and education than other employees who were not retrenched at that particular time. 11 I have read exhibit D-2 (Retrenchment Agreement) which was signed by the employer and TUICO on 24th March 2017. The agreement under clause 1.5 provides that the employee's skills and work experience as well as past and current job performance, including attendance, will be taken into consideration when selecting employees to be retrenched. Further clause 1.7 of the agreement provides that the TUICO Field Branch Committee members elected as employee representative will be considered last for retrenchment and in consultation with the union national level. The record shows that DW3 testified before the Commission that the consultation was made orally to the TUICO national level thus communication was effected. DW3 testified further that the clause "last for retrenchment" referred in clause 1.7 of the Retrenchment Agreement means a member of field branch Committee will be the last to be retrenched among employees eligible for retrenchment. I agree with this interpretation of Clause 1.7 as the clause was not superior to other terms {clauses} of the retrenchment, thus it has to be read together with other clauses. Another witness Aranyael Ayo - DW2 who was plant Manager testified that the concept of LIFO (Last in First Out) was applied to employees with similar job skills, experience, performance and attendance 12 as provided under clause 1.6 of exhibit D-2 (Retrenchment Agreement). He stated further that the applicant was the last to be retrenched. In regard to the issue of consultation, Clause 1.7 of the retrenchment agreement does not show how consultation should be made by the employer to TUICO national level and at what time for the consultation to be made. The applicant called as witness PW 2 the former Union Field Branch Chairman to prove that there was no effective communication. PW 2 testified that he did not see any communication between the employer and the TUICO, but he stated that the same was supposed to be between the employer and the Union national level. Thus his evidence does not affect the testimony of the DW 3 that the consultation was done orally. The submission that the consultation was supposed to be in a written form has no basis as the retrenchment agreement did not specify the means of consultation. Further, notification and consultation are two different things thus the submission by the applicant on the meaning of consultation as imported from rule 2 (2) of the Labour Court Rules 2007 is wrong and have no basis. According to Clause 1.6 of the Retrenchment Agreement - exhibit D-2 the applicability of criteria is based on similar job skills, experience, 13 performance and attendance. Clause 1.5 of the same exhibit provides that employee's skills and work experience as well as past and current job performance, including attendance, will be taken into consideration when selecting employees to be retrenched. In my opinion the employer is in the best position to establish skills, performance and experience of the employee than the applicant. In such circumstance where there is no evidence to prove applicant's allegation that the criteria agreed was not observed, then the allegation remains to be just a mere words which lacks legal stand. Section 71(3)(a)(b)(c) of the Employment and Labour Relation Act, 2004 provides that;- 71(3) A collective agreement shall be binding on; a) The parties to the agreement; b) Any member of the parties to the agreement c) any employee who are not member of trade union party to the agreement if the trade union is recognized as the exclusive 14 bargaining agent of those employee under Section 67. From the provision above a collective agreement is binding to the parties to the agreement, any member of the parties to the agreement, any employee who are not member of trade union party to the agreement if the trade union is recognized as the exclusive bargaining agent of those employees. In the present matter there was a voluntary/collective agreement (Retrenchment Agreement) between the parties (including TUICO on behalf of employees) with the employer which was tendered before CMA and admitted as exhibit D-2 and it's undisputed that applicants was a members of trade union (TUICO). In my opinion from above legal position and as provided under clause 4.2 of the Retrenchment Agreement an employee aggrieved by the selection criteria for the retrenchment exercise should not accept the payment of retrenchment package and must bring the grievance to the Review Committee within seven (7) working days after receipt of the notification of retrenchment. The clause provides further that the Review Committee shall respond to the grievance within seven (7) working days after receipt of the written grievance. 15 In this matter, the applicant did not bring any grievance to the attention of the Review Committee for the reason that he decided to take the retrenchment package first and then he proceeded to pursue for his rights in other labour institutions. The action taken by the applicant was against the terms of retrenchment agreement. It denied the Review Committee and the respondent {employer} right to resolve the grievance administratively in accordance with the term of the Retrenchment Agreement. As the applicant failed to observe the terms of the Retrenchment Agreement then his hands are tied. The task of this court is to ensure that operational reasons are not used by employer as a cover up to terminate employees unfairly. This was observation of this court in the case of Bakari Athuman Mtandika v. Superdoll Trailler Ltd Revision No. 171 of 2013, High Court, Labour Division, at Dar Es Salaam, (Unreported) where it held that "To ensure that operational reasons are not used by the employer as pretext to terminate an employee unfairly at the employer's will; thus 'circumventing the employee's right to security of tenure guaranteed under the parties contract of employment." From the evidence in records I'm satisfied that the respondent complied with the mandatory retrenchment procedures provided by the 16 labour laws. Therefore, I find that the termination of applicant's employment for operational requirements {Retrenchment} by the respondent was valid and fair. Thus, the first issue is answered in positive. Since the answer to the first issue is positive, the applicant cannot enjoy any remedy. Therefore I dismiss this application for revision and uphold the CMA award. Each party to bear his oA/n qpst. \ A. IE. Mwipopb JUDGE 24/04/2020 Date:24/04/2020 Coram: Hon. A. E. Mwipopo, J Applicant: For Applicant: Mr. Christopher Mbuba, Advocate for the applicant Respondent: For Respondent: Mr. Ashery Stanley, Advocate for the Respondent CC: Neema Court: Judgment delivered in the presence of Mr. Christopher Mbuba, Advocate for the applicant and Mr. Ashery Stanley, Advocate for the respondent this 24/0 1 /2 0 2 0 . — r A. E.~Mwi$0| ju d g e" 24/04/2020 17