NEW LABOUR REVISION NO

IN THE UNITED REPUBLIC OF TANZANIA

IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA

AT MTWARA LABOUR REVISION NO. 9942 OF 2024 (Arising from Employment Dispute No. CMA/UN/06/2023/01/2023 of the Commission for Mediation and Arbitration for Lindi) MPUTA SECURITY SERVICE GUARD CO. LTD............................... ....APPLICANT

VERSUS MARIAM AHMAD MFUMU......................... RESPONDENT

RULING 31st October & 2CP November2024. DING'OHI, J. This Application for revision intends to challenge the award of the Commission for Mediation and Arbitration (CMA) of Lindi at Lindi in Labour Dispute No. CMA/LIN/06/2023/01/2023. Before dwelling on determining the substance of this application, I find it a need to narrate a brief background of this revision as emanated from the CMA records that I have in my hands. It is alleged that Mariam Ahmadi Mfumu, the respondent herein, was employed by the applicant as a security guard from 29th August 2018. She was dismissed on 9th August 2023 for failure to attend at the workplace. The Page 1 of 8 respondent herself defended that her non-attendance at the workplace was caused by the fact that she was sick suffering from tuberculosis and heart diseases. Being unhappy with the dismissal action the respondent referred the dispute to the CMA, for the award of reinstatement. In the defence, before the CMA the applicant exposed that the respondent did not inform her employer about her illness. The respondent opted to withdraw herself from employment by not attending to the workstation. In furtherance, the applicant stated that even the attachments submitted in an attempt to prove the respondent's illness show that she was treated in 2019. Up to that time the respondent was being paid all his employment entitlements by the applicant. After

a full trial, the GMA found for the respondent. She was awarded the sum of Tshs. 1,440,000/= as her twelve months' salary which the applicant was ordered to pay within thirty days. The Applicant being aggrieved has filed the present application on the following grounds: 1. That, the Honourable Court be pleased to revise and set aside the whole A ward ofthe Commission for mediation andArbitration at UNDI Page 2 of 8 Employment Dispute No. CMA/LIN/06/2023/01/2023 delivery by Hon CHENGULA on 2nd January2024.

2. That, upon revisiting the CMA proceedings, decision and orders thereof, this Honourable court be pleased to issue an order setting aside and quashing the impugned Arbitration Award which has been improperly procured.

3. That, any other relief(s) this Honourable court deems fit to grant. The Application is supported by the Applicant's Affidavit sworn by Abraham L. Muhoja, Applicant's Human Resources Manager. Unfortunately, the respondent never filed a notice of opposition and counter-affidavit to challenge the allegations made by the applicant. However, when this matter came on 30th July 2024 before this court for a mention in the absence of the applicant, the respondent was quoted saying; 'The applicant is absent without notice. I had to make a counter affidavit but I was not able to secure the person who could assist me. I pray for a hearing.' I wish to preface my deliberation with a peremptory principle of law that generally where the respondent does not lodge an affidavit in reply despite being served, it is taken that he does not dispute the contents of the Page 3 of 8 applicant's affidavit. The Court of Appeal of Tanzania has highlighted this position in numerous decisions including but not limited to the decision in the case of William Getari Kegege vs Equity Bank & Another (Civil Application 24 of 2019) [2021] TZCA 185, where the Court relied on its previous decision in Yokobeti Sanga v. Yohana Sanga, Civil Application No. 1 of 2011 (unreported) and held that: '... it is settled that where the respondent does not lodge an affidavit in reply despite being served, it is taken that he

does not dispute the contents of the applicant's affidavit.... Therefore, the respondent who appears at the hearing without having lodged an affidavit in reply is precluded from challenging matters of fact, but he can challenge the application on matters of law.' See; Finn Von Wurden Petersen & Another vs Arusha District Council (Civil Application 562 of 2017) [2020] TZCA 167. In the instant application, though the respondent did not file her counter-affidavit and notice of opposition, during the oral hearing of this application she maintained her position of opposing the application. Also, in the course of arguing against this application, the respondent did not raise any point of law to be considered by this court. Under the circumstances, Page 4 of 8 her submission will not be considered because she did not file a counter affidavit to oppose the application at hand, as held in the case cited above. The same is hereby expunged from the record of this application. Having expunged the submission of the respondent from the records, I will proceed to determine the substantive part of this application. In doing so, I will concentrate on the applicant's submission and her supporting affidavit. At the hearing, the applicant was represented by Mr. Benado Philipo Kikoti, PR who submitted that it Is undisputed that the respondent was employed by the applicant. However, from December

2023 she was not attending work. It is alleged she was continuing with her business out of the workplace. As stated under paragraph 3 of the affidavit supporting this application, the applicant did not convene and conduct any disciplinary committee meeting to discuss and decide the fate of the respondent for a reason, The reason for not conducting a disciplinary meeting is said to be that the respondent was not seen and it was not known how and where to find her. Therefore, according to Mr Kikoti, on December 2023, the salary of the respondent was stopped. Page 5 of 8 It was further submitted that on 13th March 2024, the respondent wrote a letter stating that she had recovered from the sickness and wanted to come back to work and thus claimed Tshs. 360,000/= being unpaid arrears. It is Mr Kikoti's submission that the said letter was not accompanied by any attachment to prove that the respondent was sick. Having gone through the applicant's submission, Labour laws, CMA and court records, with eyes of caution, I find the issue for determination here is whether the applicant followed termination procedures. It is a settled law that an employer is required to terminate an employee for valid reasons only. In this case, the applicant complained that they had no information that the respondent was sick. They state that the said respondent was not attending to work. The question that

stacks in my mind is that if they did not have information that the respondent was sick which led to absenteeism from work, why as an employer, did not take any measure to discipline the respondent? I have considered the applicants reasoning as adduced in the affidavit that they failed to conduct a disciplinary committee meeting because the respondent was nowhere to be found. With due respect, there is no evidence showing that the respondent was traced in vain. The law is clear however that a disciplinary hearing may be held in Page 6 of 8 the absence of an employee. This position is provided for under Rule 13 (6) of The Employment and Labour Relations (Code of Good Practice) Rules, 2007 as follows; 'Where an employee unreasonably refuses to attend the hearing, the employer may proceed with the hearing in the absence of the employee.' The above stipulation is couched in permissive terms. It gives the employer two options where the employee unreasonably refuses to attend the hearing. The first option is proceeding with the disciplinary hearing in the absence of the employee with the evidence substantiating the charges against the employee being presented and a verdict reached. The second possibility is to adjourn the hearing to a further date. The act of not doing one of the above gives me confidence to conclude that the required procedure to terminate the respondent was not

followed per the law. I will therefore agree with the reasoning given by the CMA as reflected on page 13 of the Award to the effect that; 'Tukirudi kwa upande wa Mlalamikiwa naye hakufuata utaratibu uliostahili baada ya kuwa mfanyakazi haonekani kazini. Slitakiwa amwandikieBarua ya kujibu tuhuma za utoro na kufuata utaratibu wa kumsikiliza katika vikao vya nidhamu, kuelezea Tume kama Page 7 of8 Mlalamikaji alikuwa mtoro wakati hakuna uthibitisho wowote kwa hatua zilizochukuliwa baada ya hapo yaani ikiwemo kufanya uchunguzi wa juu ya kinachoende/ea, kutomwita kwa lengo la kumsikiliza, ni ukiukwaji wa Sheria ya Ajira na Mahusiano Kazini.' It is for the foregoing I would also find that the respondent's termination was procedurally unfair. This application is therefore without merit. The same is dismissed in its entirety. It is so ordered. Dated at Mtwara this 20th day of November 2024. R. DING'OHI

JUDGE 20/11/2024 COURT: The Ruling delivered this 20th day of November 2024 in the presence of respondent who appeared in person and in the absence of the applicant. ,/\ S.R. DING'OHI

JUDGE 20/11/2024 Page 8 of 8