MUHIMBILI NATIONAL HOSPITAL V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 16992 OF 2024 (Arising from Award issued on 29/09/2023 by Hon. H.H. Msina, Arbitrator, in Labour Dispute No. CMA/DSM/ILA/R. 203/16/214 at Ilala) MUHIMBILI NATIONAL HOSPITAL ……………………..…..……….. APPLICANT VERSUS PETER GABRIEL KUKAYILWA …………………..…...................... RESPONDENT JUDGEMENT Date of Last Order: 05/09/2024 Date of Judgement: 26/09/2024 B. E. K. Mganga, J. On 2nd November 2004 Muhimbili National Hospital, the above- named applicant, entered employment relationship with Peter Gabriel Kukayilwa, the above-named respondent. It is undisputed by the parties that respondent was employed as Pharmaceutical Technician. It is also undisputed that, on 13th November 2015, applicant initiated disciplinary proceedings against the respondent by serving respondent with a letter to show cause alleging that the latter committed serious gross misconducts. The misconducts that were alleged to have been committed by the respondent are that on several occasions he has been (i) taking hospital medicine without being prescribed by using existing NHIF patients who have medical record numbers (For example A74…, A85…) and (ii) denying patients some expensive prescribed medicine by 1 writing out of stock while the medicines are available in the hospital(for example Mycophenolate table). It is alleged that, the doctor prescribed patient wit number A93… to be issued with fifteen (15) Esomeprazole 20gm tables but respondent added 50 tablets of atenolol 50gm in the National Health Insurance (NHIF). It was also alleged that; the doctor prescribed a patient with number A91…to be issued Sodium Valpate but respondent added Artene (Benzhexol) 5mg 20 tablets. It was further alleged that, the doctor prescribed patient with number A68…to be issued with mycophenolic Acid to help the said patient who had kidney problems, but he wrote that it was out of stock while the medicine was available. It was also alleged that the doctor prescribed a patient with number A37…to be issued T. candestan to reduce blood pressure but respondent indicated that the said medicine was out of stoke that fact which was not true. I should point out that, I have not written full patient record numbers to avoid disclosure of records of the said patients and possibility of trace of their names and identity in future and the type of their sickness without their consent. Based on the above alleged misconducts, disciplinary hearing was conducted, as a result, on 12th February 2016, applicant terminated employment of the respondent. 2 Aggrieved with termination of his employment, respondent filed Labour Dispute No. CMA/DSM/ILA/R.203/16/214 before the Commission for Mediation and Arbitration (CMA) complaining that applicant terminated his employment unfairly. On 29th September 2023, Hon. H.H. Msina, arbitrator, having heard evidence of the parties issued an award in favour of the respondent that termination was unfair both substantively and procedurally and awarded respondent to be paid TZS 128,401,000/= being 91 months’ salary compensation from the date of termination to the date of the award and ordered applicant to reinstate the respondent without loss of remuneration. Dissatisfied with the CMA award, applicant filed this Revision Application. In support of the Notice of Application, applicant filed an affidavit sworn by Veronica Christopher Hellar, her Principal Officer. In the said affidavit, applicant has raised five (5) grounds namely: - 1. That the honourable arbitrator erred in law and fact by concluding that the respondent was unfairly terminated. 2. That the honourable arbitrator failed in law and facts to properly analyze the evidence given by the witness and forming evidence that was never testified to the commission. 3. That the honourable arbitrator erred in law and fact by concluding that the applicant did not follow the fair procedure during termination of the respondent employment. 3 4. That the honourable arbitrator erred in law and facts by concluding that there were no fair reasons to terminate the respondent’s employment without even analyzing the evidence that was adduced by the applicant. 5. Whether it was lawful and proper for the arbitrator to award the respondent what was not prayed for by the respondent through the CMA FORM No. 1. Respondent did not want this application to go unopposed. In resisting this application, respondent filed both the Notice of Opposition and his counter affidavit. When the application was called on for hearing, applicant was represented by Mr. Mkama Msalama, State Attorney while respondent was represented by Saulo Kusakallah, Advocate. Before arguing the above named four grounds and one issue, Mr. Msalama, learned State Attorney prayed to add one issue namely whether CMA had jurisdiction to hear and determine the dispute that was filed by the respondent. On his part, Mr. Kusakallah, learned advocate had no objection to that prayer hence the prayer was granted. During hearing, Mr. Msalama opted only to argue the issue relating to jurisdiction of the CMA to hear and determine the dispute that was filed by the respondent. Arguing in support of this issue, Msalama submitted that, disciplinary matters of the applicant are regulated by the Muhimbili National Hospital Act No. 5 of 2000 and Kanuni za 4 Wafanyakazi za Hospital ya Taifa Muhimbili za Mwaka 2014. He submitted further that, section 12(c) of Act No. 5 of 2000(supra) and Regulation 10.1c of the regulations(supra) provides that any employee aggrieved by the decision of the head of the department, who is the disciplinary authority, has a right to file an appeal before the Board of Trustee as an appellate authority as per section 6 of Act No. 5 of 2000 (supra). Msalama submitted that, the disciplinary authority of the respondent was the head of Pharmacy department. He added that, after termination, respondent was supposed to appeal to the board and not to file the dispute at CMA. He went on that, applicant filed the dispute at CMA prior to exhausting internal remedies. Learned State Attorney further submitted that, guideline 4(12) and (15) of the Guideline for Disciplinary, incapacity and Incapability Policy and Procedures issued under the Employment and Labour Relations (Code of Good Practice) Rules, GN. No. 42 of 2007, requires an employee who has been terminated, to exhaust internal mechanism prior to filing the dispute at CMA. He strongly submitted that, after the decision of the head of pharmacy department that terminated his employment, respondent was supposed to appeal to the Board of Trustee of Muhimbili National Hospital and not to file the dispute at CMA prior to appeal. He argued 5 that, CMA had no jurisdiction because respondent had not exhausted internal remedies. To support his submissions, he cited the case of Tanzania Posts Corporation v. Jeremiah Mwandi, Civil Appeal No. 474 of 2020, CAT(unreported), Jerome Keys v. Ardhi University, Civil Appeal No. 352 of 2021, CAT(Unreported),and TPC Ltd v Vedastus Wanjara, Labour Revision No. 18 of 2023, HC(Unreported). He went on that, once there are internal machinery, those machineries must be exhausted prior to filing the dispute at CMA. With those submissions, learned State Attorney prayed the court to nullify CMA proceedings, quash and set aside the award. He concluded that, if respondent is still interested, he can go back to the applicant to exhaust internal remedies. Resisting the application, Mr. Kusakalah learned advocate submitted that, Act, No. 5 of 2000(supra) and Regulations (supra) cited by counsel for the applicant does not provide that an employee must exhaust internal remedies. He added that, respondent was a public servant governed by the Public Servant Act [Cap. 298 R.E. 2019] that has also regulations but the same does not provide that an employee must exhaust internal remedies. He went on that, respondent was terminated on 25th February 2016 while Cap. 298 R.E. 2019(supra) was amended on 18th November 2016 by adding section 32A that requires 6 the employee to exhaust internal remedies. Kusakalah submitted further that, respondent filed the dispute at CMA on 9th March 2016 prior to the said amendment hence CMA had jurisdiction. He also submitted that, the cases cited on behalf of the applicant are distinguishable because disputes in those cases occurred after amendment of Cap. 298 R.E. 2019(supra). He cited the case of Joseph Khenani v. Nkasi District Council, Civil Appeal No. 126 of 2019, CAT(unreported), to support his submissions that CMA had jurisdiction to determine disputes filed prior to amendment of Cap. 298 R.E.2019(supra). Mr. Kusakalah also submitted that, in terms of section 34A of Cap. 298 R.E. 2019(supra), when there's conflict with any other law, Cap. 298 R.E 2019(supra) will prevail. He further submitted that, Cap. 298 R.E. 2019(supra) was enacted prior to Muhimbili National Hospital Act. No. 5 of 2000. He added that, section 34A was added in Cap. 298 R.E. 2019(supra) in 2015. It was also submitted by Kusakalah that, respondent was not served with the decision of the disciplinary hearing committee up to now hence he was denied right of appeal. That, procedures for termination was not proper because respondent was notified and called on the disciplinary hearing on the same date and time contrary to Rule 13 of GN. No. 42 of 2007. He went on that, members of the disciplinary 7 hearing committee violated the regulations of the applicant. He strongly submitted that there was no valid reason for termination. Kusakalah further submitted that, respondent was alleged that he committed fraud. He submitted that, fraud can only be proved by the court in criminally proceedings hence it was not proved. He added that, patients alleged to have been mistreated by the respondent were not called in the disciplinary hearing committee. He concluded that, termination was unfair both substantively and procedurally. With those submissions, he prayed that the application be dismissed for want of merit. In rejoinder, Msalama reitarated his submissions and added that, his submissions are not, that respondent was supposed to exhaust remedies under the public service Act, rather that, respondent did not exhaust internal available remedies. He went on that, reference to Cap. 298 R.E. 2019 (supra) by counsel for the respondent is misdirection. He added that, cases cited on behalf of the applicant are relevant to the application at hand. He further submitted that, guideline 4(12) and (15) made under GN. No. 42 of 2007(supra) are applicable to all employees regardless whether he/she is a public servant or not. Msalama further submitted that, respondent was terminated on 18th February 2016 by that time, section 32A of Cap. 298 R.E. 2019(supra) was not yet enacted and after enactment of the said 8 section, public servants are required to exhaust internal mechanism provided under Cap. 298 R.E. 2019(supra) and its Regulations. He strongly submitted that, that is not his submissions in this application. He also submitted that, section 34A of Cap. 298 R.E. 2019(supra) is clear and was quick to add that, in the application at hand, there is no conflict between Act No. 5 of 2000 (supra) and Cap. 298 R.E. 2019(supra). He further submitted that, Khenani's case(supra) is distinguishable because the said case relates to public servants filing the dispute at CMA while the contention in the application at hand is that, respondent filed the dispute before exhausting internal remedies. He also submitted that, failure to be supplied with the decision of the disciplinary committee cannot be a justification for the respondent not to follow procedures provided for under the law. To support his submissions, he cited Mwandi’s case and Kesey's case (supra). He added that, applicant had a valid reason for termination and followed procedures hence termination was fair both substantively and procedurally. I have examined evidence of the parties in the CMA record and considered submissions made in this application. In disposing this application, I will start with the issue whether CMA had jurisdiction to hear and determine the dispute that was filed by the respondent. 9 It is undisputed that termination of the respondent was done by the Head of Pharmacy Department. It was submitted on behalf of the applicant that, after termination, respondent was supposed to appeal to the Board and not to file the dispute at CMA as he did prior to exhausting internal remedies in terms of section 12(c) of Act No. 5 of 2000(supra). On the other hand, it was submitted on behalf of the respondent, that respondent was a public servant governed by Cap. 298 R.E. 2019(supra) and that, at the time of filing the dispute at CMA on 9th March 2016, there was no provision in Cap. 298 R.E. 2019(supra) requiring an employee to exhaust remedies under the said Act. It is correct that, in March 2016, there was no provision in Cap. 298 R.E. 2019(supra) requiring an employee employed in public service to exhaust remedies provided in the said Act prior to filing the dispute at CMA. It is also correct that, at that time, Act No. 5 of 2000(supra) was operative governing employees of the applicant. It is my view that, the legislature enacted Act No. 5 of 2000(supra) to govern employees of the applicant while well aware of existence of Cap. 298 R.E. 2019(supra). Therefore, it was the intention of the legislature that, though applicant is a public institution and its employees are public servants, the conducts of her employees must be regulated by the provisions of Act. No. 5 of 2000(supra) that is a specif legislation save when it is inconsistent with 10 Cap. 298 R.E. 2019(supra). The requirement for public servents to exhaust remedies availbale under Cap. 298 R.E. 2019(supra) was introduced in the said Act on 18th November 2016 by adding section 32A through Written Laws(Miscellaneous Amendments) (No. 3) Act of 2016 It is undisputed that, the said amendment was introduced while respondent has already filed the dispute at CMA. But the contention of the learned State Attorney is not that respondent did not exhaust remedies provided under Cap. 298 R.E. 2019 (supra) rather, that, respondent did not exhaust internal remedies as provided under guideline 4(12) and (15) of the Guideline for Disciplinary, incapacity and Incapability Policy and Procedures issued under the Employment and Labour Relations (Code of Good Practice) Rules, GN. No. 42 of 2007. The said guideline 4(12) and (15) made under GN. No. 42 of 2007 (supra) provides:- “4(12) An employee may appeal against the outcome of hearing by completing the appropriate party of the copy of the disciplinary form and give it to the chairperson within five working days of being disciplined, together with any written representations the employ may wish to make. The chairperson may within five working days refer the matter to the more senior level of management, with a written report summarizing reasons for the disciplinary action imposed. The appealing employee must be given a copy of this report. (13) The manager considering the appeal must take into consideration the documennts provided, An appeal should not constitute a re-hearing of the 11 entire case but it should focus specifically on the grounds for appeal and be decided on the basis of the written submissions provided. The Manager considering the appeal may however arrange a further hearing to consider evidence and arguments relating to the appeal, in this event the employee may be assisted by a representative. (14) The Manager considering the appeal must record the outcome of the appeal in the appropriate part of the original disciplinary form and return the copy to the employee. (15) An employee wishing to challenge the outcome of the appeal, may utilize dispute mechanisms contained in the Employment and Labour Relations Act. The time period within which to exercise these rights shall commence from the date the employee is advised of the outcome of the appeal.” It was submitted by the learned State Attorney that respondent was supposed to appeal to the board prior to filing the dispute at CMA in compliance with the provisions of the quoted guidelines and section 12(c) of Act No. 5 of 2000(supra) and regulation 10.1c of the regulations made under the said Act. I have read section 12( c) of Act No. 5 of 2000(supra) and find that, it provides that, the Head of Department shall be the disciplinary authority and the Board the final appellate authority in relation to all other employees of the applicant. The said section provides:- “12. Notwithstanding any provision to the contrary in the Civil Service Act or in any other written law; (a)... (b)... 12 (c) the head of department shall be the disciplinary authority and the Board the final appellate authority in relation to all other employees of the Hospital.” In addition to the foregoing, rule 10.1c of the regulations made under Act. No. 5 of 2000(supra) provides:- “Rule 10.1 MAMLAKA YA NIDHAMU Bila Kwenda kinyume na maelekezo ya Sheria ya Utumishi wa Umma na Sheria yoyote nyingine, kutakuwa na mamlaka za nidhamu za aina tatu kama ifuatavyo: - (a)... (b)... (c) Wakuu wa Idara watakuwa mamlaka za nidhamu kwa wafanyakazi wengine wote. Mkurugenzi Mtendaji atakuwa mamlaka ya rufaa ya kwanza na Bodi ya Wadhamini mamlaka ya mwisho ya rufaa katika ngazi hii.” It is undisputed by the parties that respondent was terminated by the Head of Department. It is apparent from the foregoing that, both Act No. 5 of 2000(supra) and the Regulations made thereon, provides remedies to be exhausted prior to filing the dispute at CMA namely appealing stages. In my view, those remedies were put in the said statute with the purpose namely minimizing the number of disputes that can be filed at CMA by allowing only those who are still aggrieved to file the dispute at CMA as the last resort. It was not intended, in my view, that, every dispute must be filed at CMA even without exhausting internal remedies where available. In fact, the Court of Appeal had an opportunity of discussing a similar issue of exhahuting internal remedies 13 in the case of Jerome Kessy vs Ardhi University (Civil Appeal No. 352 of 2021) [2023] TZCA 17771 prior to filing the dispute at CMA. In Jerome’s case (supra) the Court of Appeal held inter-alia that: - “…The correct position however is that, such internal mechanisms for disputes resolution at workplaces have proved efficacious in conducting proper and detailed disciplinary inquiries to justify the employer's or the body's action be it a dismissal, suspension, fine, stoppage of membership or annual increment or deduction in rank. But the most important point is that, it is not true that in every case between an employer and employee, the disciplinary body will always rule against the employee and for this reason, a careful examination of the contention by Mr. Miraa that the appellant had to refer his grievances right away to the CMA because of fear that the respondent's Disciplinary Committee would not accord him a free and impartial treatment, exposes the contention by the learned counsel as fallacious…”Considering the appeal as a whole, we agree with Mr. Kalokola and to that end, our short conclusion is that, indeed the decision by the appellant to refer his complaints right away to the CMA without exhausting the remedies available under the respondent's disputes resolution machinery was, for all purposes and intents, procedurally improper. For it is now the stance of this Court and therefore the law that, where as in the case now under review, a given law provides for a specific forum to first deal with a given dispute, resort to such a forum is quite indispensable before one can have recourse to the judicial remedy. (See Salim 0. Kabora v. Tanesco Ltd and Two Others, Civil Appeal No, 55 of 2014 and Tanzania Revenue Authority v. Tango Transport Company Limited, Civil Appeal No. 84 of 2009)…” Having so held, the Court of Appeal found that the appeal lacked merit and dismissed it. A similar position was held by the Court of Appeal in the case of Tanzania Ports Corporation vs Jeremiah 14 Mwandi (Civil Appeal No.474 of 2020) [2023] TZCA 17317 (9 June 2023) wherein it was held at page 16 inter-alia that:- “…it was incumbent on the respondent to lodge his appeal to the Board of Directors so as to exhaust the internal remedies available prior to invoking other remedies available under the law and to be precise, the Public Service Act. In other words, the CMA had no jurisdiction to entertain the respondent's case as it so held.” It was submitted by counsel for the respondent that respondent was not served with the decision of the disciplinary hearing committee to justify the route taken by the respondent. With due respect, I have read evidence of the respondent(PW1) and find that in his entire evidence he did not state that he was not served with the decision of the disciplinary hearing committee. I find that such submission is an afterthought not supported by evidence on record. More so, that was not part of respondent’s pleading in the CMA F1. I have examined CMA F1 and find that, on procedural fairness, respondent wrote:- “ I WAS NOT GIVEN SUFFICIENT NOTICE AND CHARGES BEFORE APPEARING IN A DISCIPLINARY COMMITTEE. I WAS GIVEN OUTCOME OF THE DISCIPLINARY COMMITTEE DECISION. I WAS NOT AFFORDED THE TO (sic) APPEAL AGAINST THE DECISION OF DISCIPLINARY COMMITTEE.” (Emphasis is mine). The bolded sentence tells all as to what respondent indicated in the CMA F1. That being his pleadings, he cannot be allowed to depart therefrom without leave to amend that pleading. I should point out that, 15 there was no prayer to amend the CMA F1 hence I conclude that, the complaint that respondent was not served with the decision of the disciplinary committee that would have possibly, justified as to why he did not exhaust internal remedies, is an afterthought. In addition to the foregoing, in his evidence, respondent did not state that he was denied right to appeal. Guided by what was held by the Court of Appeal in the above cited cases, I hold that CMA had no jurisdiction to hear and determine the dispute that was filed by the respondent prior to exhausting internal remedies. I therefore nullify CMA proceedings, quash and set aside the award arising therefrom. Respondent may, if still interested, persue his rights by first exhausting internal remedies. Dated at Dar es Salaam on this 26th September 2024 B. E. K. Mganga JUDGE Judgment delivered on 26th September 2024 in chambers in presence of Ms. Rose Kashamba, State Attorney and Mr. Saulo Kusakalah, Advocate for the Respondent. B. E. K. Mganga JUDGE 16