mr discount hyper and supermarket ltd vs selemani siasa mohamedi 2022 tzhcld 824 31 august 2022

IN THE HIGH CO F TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 67 OF 2022 MR. DISCOUNT HYPERAND SUPERMARKET LTD APPLICANT VERSUS SELEMANI iLEMANI SIASA MOHAMEDI............ ........................... RESPONDENT (From the decision of the Commission for Mediation and Arbitratipn offDSMatl/aia) dated 28th January 2022 JUDGEMENT 14th July 2022 & 31st August 2022 Rwizile, J This application jemanates|from the award of the Commission for Mediatfon^^^^ssirbltratfon in Labour Dispute No. CIWDSiWfi3^21/84 dated 28 January 2022, which was determinedjby Ilala Commission for Mediation and Arbitration, Dar es Salaam. This court has been asked to call for the record of the CMA revise and set aside the award issued therein. The applicant herein is praying for an order in the following terms: - 1. This Honorable Court be pleased to call, revise and set aside the award of the Commission for Mediation and Arbitration of Dar es salaam Zone, Labour Dispute No. CMA/DSM/ILA/47/21/84 by Hon. Kiwelu, L. Arbitrator delivered on 28th January 2022. 2. This HonourableI Court be pleased to issue an order to quash the findings' of the Commission for Mediation and Arbitration in respect of the Labour Dispute. CMA/DSM/ILA/47/21/84. 3. Any other relief this Honourable Court may deem firfe gra^t. I find it appropriate at this point, give a briefa^iencWf facts leading to this application. The respondei^mwfs^gnployed by the applicant as Supervisor. Their re atio^iip/turned sour on 24th December 2019 for an alleged|^unfair termination. On such misunderstanding, the respondent filedthe matter in the CMA claiming to have been unfairly terminated and claimed for payment of terminal benefits. After the^determination of the matter, the arbitrator found % i that the substantively and procedurally unfair hence awarded’cohipehsation of 12 months and other terminal benefits to The Chamber summons, supporting the application, the Applicants filed an affidavit, in which after elucidating the chronological events leading to this application, the applicant chai enged the arbitrator's findings on the reason that respondent had never been terminated, however he absconded himself from work. 2 In her affidavit, the Applicant advanced five issues of revision as stated at paragraph 4 of the affidavit, paraphrased as follows: - i) That the honourable Arbitrator immensely erred in law and fact for failure to reasonably determine whether there was a termination of employment at all. ii) Whether the respondent me naged to establish thetermination as alleged by the arbitrator. Hi) Whether it is proper for honourablefarbitr^tor to rely on the respondent's mere word i:hat^he^™^^,terminated without adducing any proof during t^jari'fig. iv) Whether it is proper f^rKarbitrator to award the respondent compensation tjO&^nontfs salaries where the respondent failed to^pfove^if^tnere was a termination let alone unfair ^/) ^W^^^^the amount of c nsation of TZS 2,062,497.00 N\ordered by the Commission was fair and reasonable basing on the circumstances of the case at hand. The application was challenged by a counter affidavit affirmed by the respondent himself who disputed all the material facts of the affidavit and put the applicants in strict proof, The hearing of the application was by a way of oral submissions. The applicant was represented by Mr, Mhina Michael, Advocate while respondent was represented, by Mr. Omary Mwinyimkuu Mwenegoha, Advocate. In her submissions, the applicant's Counsel framed three points in which his submission was based. Starting with the first Mr. Mhina submitted that there’^was no termination as per Section 110(1) of evidence Act,.which directs that the one who alleges must prove. He stated that there was an allegation of unfair termination without proof (^termination. For that reason, he ______ _ ________ 1 __________ ____________ was of the view that the arbitrator's findings are against the principle of unfair termination, asTieldJn case of CRJ Construction Co. Ltd v Maneno Ndaliye*and^an6ther, Revision No. 205 of 2015, High Court, La^fi^ision/lat Dar es Salaam, (unreported). % % O0hSecond,point'Mr. Mhina submitted that the commission was seized with jurisdiction to determine the matter as there was no termination. Bolstering his position, he cited the case of Abdullazak Jabily Nabibakshi v. See Sweet Royale Confectionary Ltd, Rev. No. 771 of 2019, High Court of Tanzania, Labour Division, at Dar es salaam, (unreported). Lastly it was submitted that since the respondent failed to prove that there was termination, he was of the view that the only remedy is CMA award to be quashed as held in the case of Abdulkarim Haji v Raymond Nchimbi and another [2009] TLR 420 as well on CRJS case - page 7, the applicant thus prayed for the CMA award be A quashed and set aside. In reply Mr. Mwenegoha submitted tiat, it is the duty of^he employer to prove that the employee was not ter^^^:^H)ut absconded, otherwise, it will amount to unfair termination.Since the employer did not prove by tendering ^coro^^iicn justify respondent's abscondment. As was emphasized^ :^e case Abdallah Kidunda and another v CM Co. Ltd, Revision No. 277 of 2013, High Court of Tanzania, Labour/DlvisiotjZzdrDar es salaam, (unreported). Therefore, the same w^^^iinated. He went on stating that the case CRJ (supra) ^^^guishable with the present application. It is not as it here^oday*^ It was further argued that the awa*d was reasonable as there was termination. The counsel, thus prayed for the application to be dismissed. In a rejoinder the applicant reiterated his submissions in chief. 5 Having gone through the parties' submissions and the record of the CMA, I am inclined to address two issues. The first issue is whether the applicant has adduced sufficient grounds for this Court to revise the CMA award and secondly, to what reliefs are parties entitled? In answering the first framed issue, I will start withjfte rham disputed issue contested by parties as to whether there was a^termination of respondent's employment, on the reason tl^^he^same answered affirmatively will dispose Of the maler^r^this^Enatter the applicant contended that there was an^llegat^^ unfair termination without proof of termination. For that^r^asm) he was of the view that the arbitrator's findings are^against the principle of unfair termination. On the othe^iSri^he^respondent ntained that it is the duty of the en^toyer ^y^dve that the empoyee was not terminated but absconded^* otherwise, it will amount to unfair termination. In addressing the disputed question, the relevant provision is Rule 1 of Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedures of Employment and Labour Relations (Code of Good Practice) G.N No. 42 of 2007 which directs that absence of an employee from the work for more than five days without permission, falls under 6 offences which may constitute serious misconduct and leading to termination of an employee. From the above cited rule, the employer is duty bound by the law to take legal action for an abscondment which exceed more than five days. However, things are different with this application, the record available including CMA Form No.l. It reveals that the’matte^wa^filed at CMA on 21st January 2021 and the employer employee relationship turned sour on 24th December 2020 after thefreSopdent was accused of misconduct (dishonesty) and adm tied orWhe^ame as per Exhibit Dl(respondent's written staternent)^^^mSns, the applicant failed to take legal action for more tnaq^h/c^days contrary to the law. In the circumstances, theapplicant's allegation that the respondent % had a duty to p^ve^Xj^nce of termination lacks merits, as the applicant^^^^fetwdlspute the ed of unfair termination as per Section 39 ofxELRA; for the burden of proof to shift to the respondent. Section^l§(6) of the Employment ard Labour Relation Act, placed a duty to an employer to prove, employee particulars prescribed under Subsection 1 of the same Act. However, in this application the applicant failed to honor his legal duty by shifting such duty to the respondent. For that reason, I agree with the respondent's counsel by citing the case of Abdallah Kidunda's case (supra) on its relevance to this matter. Apart from the above weakness, the applicant failed even to tender salary slip of December 2020 or warr Ing letter to justify his notion of not terminating the respondent's employment. From the above findings, I have no hesitation to sa^fhatn^ibse^ce of any evidence and no legal action by the applicant ir^j^tifying fair termination in both aspects incljding r^^h>^and procedure for termination, then the same amount to unfairtternjination. Having found on the first issue^affinpal^^^hen I find no need to fault the arbitrator decision The next question is <reyiefs entitled to the parties. Since it is undisputed that the respondent was employed by the applicant and no any evidence! wavadduced, that he was under any other type of con^rfbt^y an permanent employee. There is no need to interfere with reli^^For the foregoing reasons, this application is devoid of merit and is hereby dismissed. An order for costs is declined. It is so ordered=-^ , A. K. Rwizile JUDGE 31.08.2022