musoma urban water supply and sanitation authority vs raphael ologi andrea 2020 tzhc 1125 29 may 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LABOUR DIVISION) AT MUSOMA LABOUR REVISION NO. 21 OF 2019 (Arisingfrom the decision of the Commission for Mediation and Arbitration for Musoma in Employment Dispute No. CMA /M U S /162/2018 ) MUSOMA URBAN WATER SUPPLY AND SANITATION AUTHORITY ........ ....APPLICANT VERSUS RAPHAEL OLOGI A N D R E A ................. RESPONDENT JUDGEMENT Date of Last Order: 22th April, 2020 Date of Judgement: 29th May, 2020 KISANYA, J.: This is an application for revision of the award of the Commission for Mediation and Arbitration (CMA) at Musoma in C M A /M U S /162/2018 It has been made by way of Chamber Summons under section 91(l)(a)(b) and 91(2)(a) and (b)(c) and section 94(l)(b)(i) of the Employment and Labour Relation Act No. 6/2004 as amended by section 14 (b) of the Written Laws (Misc. Amendments) Act, 2010 and rule 24 (1), 24(2)(a)(b)(c) (d) (f), 24 (3)(a)(b)(c)(d) and rule 28(l)(c) (d)(e) of the Labour Court Rules, 2007. Briefly, the applicant, Musoma Urban W ater and Sanitation Authority employed the respondent, Raphael Ologi Andrea as casual labour in the position of plumber. This was on 1/1/1997. The respondent’s personal records (Exhibit P4) shows that he was employed on temporary basis. Ten years later, on 30/08/2007, the respondent signed a three years contract in the same position of plumber (Exhibit PI). The said contract was extended for five years with effect from 1/4/2013 as per letter Ref. No. U W SA /PF16/34 dated 10/4/2013 (Exhibit P2). However, there is another letter Ref. No. U W SA /PF.16/44 dated 01/08/2014 (Exhibit P3) showing that the contract was extended from 1/7/2014 to 30/6/2017. Therefore, basing on paragraph 6 of Exhibit P2, the respondent’s employment was expected to lapse on 31/03/2018. However, the respondent was terminated with effect from July, 2017 as per letter Ref. No. U W SA /PF16/58 dated 2/7/2018 (Exhibit P7) on the ground that he had failed to submit his form four secondary academic certificate. Prior to the said termination, he was suspended and given time to submit the said certificates as per letter Ref. No. U W S A /P F 16/58 dated 20/7/2017 (Exhibit P6). The applicant tendered the Government Circular which required employees who were employed from 21/05/2004 to have the minimum education of form four secondary (Exhibit P5). In his evidence, the respondent testified that he was employed in 1999. He- tendered the NSSF sheet, Identity Card and Salary Slip to prove that fact. He also tendered a leave form to show that he was granted annual leave as employee. He testified further that the Government Circular on the minimum requirement of secondary education did not cover employee who were in service before 20/5/2004. He therefore claimed that he was 2 terminated unfairly by the respondent as he was not accorded the right to be heard. After full trial, the CM A decided in the favour of the respondent. The applicant was ordered to pay the respondent Tshs. 18,360,000/= being compensation for the remaining duration of contract of three years from 01/7/2017. Dissatisfied, the applicant has filed the present application which is based on the grounds stated in paragraph 6 in the affidavit in support of the application as follows: “6.1. Whether it was proper basing on thefacts and evidence tendered before the CMA for the Arbitrator to award the Respondent reliefwhich he did not plead. 6.2. Whether it was proper for the Arbitrator to entertain the said dispute without exhausting all remedies provided under the Public Service Act, 2002 and Public Service Regulation, 2003 6.3. Whether it was proper on the side o f the Arbitrator to order payment of 18,360,000 as compensation for the remaining period of contractfor Unfair Termination ” 6.4. Wl'iether it was proper for the Arbitrator to order payment of Tshs 18,360,000/- within one month from the date o f Judgement. 6.5. Wl'iether it was proper on the side of the Arbitrator to reach to an award without responding to the framed issues raising during hearing. 6.6. Whether the evidence given was properly analyzed by the Arbitrator. This application was disposed of by way of written submissions. Both parties submitted their respective submissions in accordance with the schedule fixed by the Court. The applicant’s submission in support of the application was filed by Ms. Vicky Mbunda, learned advocate. On the other hand, the respondent engaged Mr, Asubuhi John Yoyo, learned advocate to prepare the submission in opposing the application. In their submission the parties addressed the following issues or grounds: 1. That the Honorable Arbitrator had no jurisdiction to entertain the dispute. 2. That the Hon. Arbitrator misdirected himself for failure to distinguish between unfair termination and retrenchment. 3. That the Hon. Arbitrator considered and relied on the facts which were not pleaded by the Respondent. 4. That the Honorable Arbitrator misdirected himself for giving order for compensation of Tsh. 18, 360,000/- to the Respondent contrary to the requirement of the law. Submitting in support of the first ground, Ms. M bunda argued that the Honourable Arbitrator had no jurisdiction to entertain the dispute. The learned advocate stated that, the applicant’s employees are governed by the Public Service Act, 2002 and the Public Service Regulation, 2003. For that reason, counsel Mbunda submitted that, the respondent ought to have exhausted the remedies available under the Public Service Act including referring the dispute to the Public Service Commission before going to CMA. She cited the provision of section 32A of the Public Service Act, 2002 as amended by the Written Laws (Miscellaneous. Amendments) (No. 3) Act of 2016 to support her argument. On the second ground, Counsel Mbunda stated that the Hon. Arbitrator misdirected himself for failure to distinguish between unfair termination and retrenchment. She argued that the respondent was not terminated on' the basis of operational requirement but because he deceived the employer that had a form four secondary education certificate. The learned advocate 4 submitted further that, the applicant had no option other than terminating the respondent because he failed to submit the original copy of certificate of ordinary secondary education. Ms Mbunda contended further that the respondent stated to have been terminated unfairly under section 37(1)(2)(3)(4)(5) of the Employment and Labour Relation Act, 2004 (ELRA) and not on the basis of al requirement. Therefore, she argued that the Arbitrator misconceived the termination and retrenchment. The learned counsel argued further that the Arbitrator erred in holding that rule 23(2) of GN No. 42 of 2007 and section 38 of the ELRA are mandatory provisions. She cited the case of Metal Products vs Mohamed Mweragi and Others, Revision No. 148 of 2008. As to the third ground, Ms M bunda submitted that, the Arbitrator considered and relied on facts that were not pleaded by the Respondent when he registered the dispute before CM A. Also, she argued that the award granted by the CMA was not pleaded by the respondent. Submitting in support of the fourth ground, Ms. M bunda stated that, the order of compensation to the tune of 36 months salaries, contravened section 40(1 )(c) of the ELRA. The learned counsel was of the view that, the Arbitrator was required to order compensation of 12 m onths’ salary. She argued that, as the respondent was terminated unfairly on procedural ground only, he was entitled to 12 months compensation as held in Amina Ramadhan vs Staywel Apartment Ltd, Revision No. 461 of 2016, HCT, Labour Division at DSM (unreported). 5 Ms Mbunda argued further that, the award lacks the standards stipulated under Rule 27(3) of the Labour Institutions (Mediation and Arbitration Guidelines), 2007. That said, counsel M bunda urged me to revise and set the CMA award. The respondent resisted the application. On the first ground, he submitted that the Public Service Act applies to servants in active service which is not a position to the case at hand. He argued further that, the objection on jurisdiction of the CMA to entertain the labour dispute was required to be raised during the hearing. The respondent urged the Court to consider substantive justice and discourage use of technicalities to override justice. On the second ground, the respondent argued that the termination whether unfairly or by operational requirement requires stringent laid down procedures stipulated under sections 38 and 39 of the ELRA including, to prove that the termination is fair. He referred to Rule 8(2) (a) (d) of GN No. 42 of 2007 which bars automatic termination in lieu of communication to the employee and accord fairness process by hearing both sides before termination. The respodent argued further that, arbitral proceedings can be nullified if there is irregularities apparent on the relief sought. He submitted further that the deception deployed by the applicant amounts to misconduct on the part of the respondent and thus, the procedures of terminating the employee were required to be complied with accordingly. The respondent went on to argue that, both termination and retrenchment require adequate hearing and consultation to be executed fairly. He cited the case of Tanzanite One Mining Limited vs Sham Ammo Magiwa, Revision No 46 of 2013 to support his argument. Therefore, the' respondent argued that, the applicant neglected to comply with established procedure before terminating him. On the third and fourth grounds, the respondent replied that the compensation of Tshs. 18,360,000 was significantly minimal. The respondent argued that, given the fact that he had been in active service of almost 19 years but terminated unfairly and contrary to law by relying on ‘the circular which does to apply to him, the Court should find out that injustice was occasioned to him. Thus, the respondent asked the Court to correct the award and grant a compensation to the tune of not less than .Tshs. 116, 280, 000 equivalent to 228 months as pleaded. After going through the CM A proceedings, affidavit, counter affidavit, submission by the affidavit and the relevant laws, I find that the issues to be considered are: 1. Whether the CMA had no jurisdiction to entertain the matter filed by the respondent. 2. Whether respondent was terminated or retrenched; 3. Whether the termination or retrenchment was substantively and procedurally unfair; and 4. WJ'iether the CMA’s reliefisjustifiable. Starting with the first issue, the applicant is of the opinion that the CMA had no jurisdiction to entertain the matter on the ground that, the respondent being a public servant was required to exhaust the remedy available under the Public Service Act, 2002 as amended. On the other hand, the respondent stated that the Public Service Act is not applicable to him. I have read section 32A of the Public Service Act, 2002 (as amended) which was relied upon by Ms. Mbunda. It requires the public 7 servant to exhaust the remedy available under the Public Service Act before resorting to remedies available under the lablour laws. The said provision reads as follows: “Public servant shall prior to seeking remedies providedfor in labour laws, exhaust all remedies as providedfor under this Act. ” The next question is whether the respondent was a public servant. Section 2 of the Public Service Act, 2002 defines the term “public servant” to mean a person holding or acting in the public service office. This brings us to another question on what is the “public service office”? Again, the answer to this question is found in section 2 of the Public Service Act which provides that: "public service office"for the purpose of this Act means: (a) a paid public office in the United Republic charged with the formulation of Government policy and delivery of public services other than (i) a parliamentary office; (ii) an office of a member of a council, board, panel, committee or other similar body whether or not corporate, established by or under any written law; (Hi) an office the emoluments o f which are payable at an hourly rate, daily rate or term contract; (iv) an office of a judge or otherjudicial office; (v) an office in the police force or prisons service; (b) any office declared by or under any other written law to be a public service office; [emphasize is mine]. 8 Therefore, a person whose salary or emolument is based on the term contract is not holding or acting in the public service office. This include a person who is employed for a specific period because his emolument or salary depends on the term specified in the employment contact. For that reason, I am of the considered opinion that a person employed for a specific period and paid basing on that period is not a public servant. In the instant case, the respondent was employed for temporary basis ‘(Exhibit P4). Further, the employment letters (Exhibits P I, P2 and P3) suggests the term or duration of his contract of employment. Thus, he was paid his salary basing on the term or duration of that contract. Therefore, I find that he was not a public servant and the CMA had jurisdiction to entertain the dispute referred to it by the respondent. For that reason, I find no merit in the first ground. . The second issue is whether the respondent was terminated or retrenched. The term termination of employment is defined under section 36 of the Employment and Labour Relation Act, 2004 (as amended) to include failure to renew a fixed term contract on the same similar term if there was a reasonable expectation of renewal. The said section provides that: “For purposes of this Sub-Part- (a) termination of employment” includes- (i) a lawful termination of employment under the common law; (ii) a termination by an employee because the employer made continued employment intolerable for the employee; (Hi) a failure to renew a fixed term contract on the same or similar terms if there was a reasonable expectation of renewal; 9 (iv) a failure to allow an employee to resume work after taking maternity (v) leave granted under this Act or any agreed maternity leave; and (vi) a failure to re-employ an employee if the employer has terminated the employment of a number of employees for the same or similar reasons and has offered to reemploy one or more of them ” On the other hand, retrenchment is provided for under section 38 (1) of the ELRA. This provision suggests retrenchment is termination of employment for operational requirement on the part of employer. I am in agreement with the Hon. Arbitrator that ,the respondent in the case at hand was terminated due to operational requirement. It is in evidence that, the applicant terminated the respondent in order to comply with the Government Circular which required all employees who were employed from 20/5/2004 to have a minimum qualification of secondary school education. This is mirrored in Exhibit P6 (a letter which informed the respondent to submit form four academic certificate by 14.08.2018) and the termination letter (Exhibit P7) which is reproduced hereunder. “Nakujulisha kuwa ajira yako imesitishwa kuanzia Julai, 2017 kutokana na utekelezaji wa waraka kutoka kwa Katibu Mkuu Utumishi Kumb. Na. CFC26/205/01 /06 ya tarehe 13 Aprili, 2018 uliokuwa unaelekeza Watumishi wote walioajiriwa baada ya tarehe 20, Mei, 2004 wakiwa hawana sifa ya kufaulu mtihani wa kidato cha nne waondole kwenye utumishi wa umma. ” Counsel Mbunda was of the view that the respondent was terminated because he deceived the employer that he had a form four certificate. This 10 argument is not supported with evidence. It was not stated in the termination letter. Further, there is no evidence to prove that at one point ‘in time the respondent informed his employer that he had form four education. In his personal record form (Exhibit P4), the respondent stated that he had primary secondary education. ’The learned counsel for the applicant stated further that, the respondent claimed to have been terminated unfairly under section 37 of the ELRA and not basing on operation service. W ith respect, I have read CMA Form • 1, the respondent did not state to have been terminated under section 37 of the ELRA. He stated that “THIS IS A TERM INATION D ISPU TE”. It is clear that the applicant did not mention whether the termination was under section 37 of the ELRA or termination due to operational requirement. It is the evidence given by both parties which shows that the respondent was terminated due to operational requirement as shown above. It is for aforesaid reasons, I find that the respondent terminated due to operational requirement. On the third issue, the procedure for terminating an employee on operational requirement are specified under section 38 of the ELRA and Rule 23(2) of GN. No. 42 of 2007. Both provisions advocate consultation before terminating an employee for operational requirement. Section 38 of the ELRA provides: 38.-(1) In any termination for operational requirements (retrenchment), the employer shall comply with thefollowing principles, that is to say, he shall- (a) give notice of any intention to retrench as soon as it is contemplated; li (b) disclose all relevant information on the intended retrenchmentfor the purpose of proper consultation; (c) consult prior to retrenchment or redundancy on - (i) the reasonsfor the intended retrenchment; (ii) any measures to avoid or minimize the intended retrenchment; (Hi) the method of selection of the employees to be retrenched (iv) the timing of the retrenchments; and (v) severance pay in respect of the retrenchments, (d) give the notice, make the disclosure and consult, in terms of this- subsection, with- (i) any trade union recognized in terms of section 67; (ii) any registered trade union which members in the workplace not represented by a recognised trade union; (Hi) any employees not represented by a recognized or registered trade union Ms M bunda was of the view that the employer is not obliged to comply with all principles or procedure specified under section 38 of ELRA and rule 23(2) (2) of GN No. 42 of 2007. Even if it is considered that the employer is not required to adhere by all items or procedures laid down in section 38 of ELRA and rule 23 of the GN 42 OF 2007, he is duty prove the procedure employed in lieu thereof for the Court to be satisfied whether the same was fair or not. In the matter hand, the procedure used' by the applicant was not stated. The only action taken by the applicant was to inform the respondent to submit his form four certificate before 14/8/2017. However, the said letter (Exhibit P6) was written on. 12 20/7/2017. It was not practicable for the respondent to have acquired the required qualification within three weeks. For that reasons, I am in agreement with the Hon. Arbitrator that the termination for operational *requirement did not comply with the law due to lack of consultation on issues related to the reasons for the intended retrenchment; measures to avoid or minimize the intended retrenchment; the method of selection of . the employees to be retrenched; and the timing of the retrenchments As rightly argued by the respondent, even if it is considered that the respondent was terminated on deceiving the employer that he have the .form four education, the applicant was duty bound to conduct the disciplinary proceedings against the respondent before terminating him. This was not done thereby denying him the right to be heard. Therefore, the third issue is answered in affirmative, the respondent was terminated unfairly. The last issue relates to the relief to which the parties are entitled to. Ms. Mbunda argued that the compensation of 36 m onths’ salary was granted while it was not pleaded in CM A F.l and that it contravened section 40(1 )(c) of the ELRA. On the other hand, the respondent states that the compensation of 36 m onths’ salary was to minimal and that, the Arbitrator ought to have granted compensation of 228 m onths’ salary. I have examined the evidence on record, item 4 of CMAF. 1 shows that the respondent prayed for “compensation for unfair term ination.” Therefore, the argument by Ms M bunda that the compensation was not pleaded by the respondent has no merit. 13 Generally, compensation is one of the reliefs available to an employee who is terminated unfairly. Other reliefs are reinstatement and re­ engagement. This is pursuant to section 40(1) of the ELRA which provides that: "...S. 40 (1) I f an arbitrator or Labour Court finds a termination is unfair the arbitrator or Court may order the employer: (a) To reinstate the employee from the date the employee was terminated without loss of remuneration during the period that the employee was absent from work due to the unfair termination; or (b) To re-engage the employee on any terms that the Arbitrator or Court may decide; or (c) To pay compensation to the employee of not less than twelve months' remuneration." In my opinion, in the event the terminated employee is to be compensated, the law provides that the compensation should not be less than 12 months’ remuneration of that employee. The maximum compensation to be awarded by the arbitrator or the Labour Court has not been stated. It is to be decided by the arbitrator or the Labour Court depending on the circumstances of each case. This position was also stated in Tanzania International Containers Terminal Services (TICTS) vs Fulgence Steven Kalikumtima and 7 Others, Revision No. 471 of 2016, High Court of Tanzania, Labour Division at Dar es Salaam (unreported) that: “In line to the above, I am of the considered view that, it is the discretion of a Judge or Arbitrator to give an award that is considered just and fair depending on the circumstances of each case, though is restricted to comply- by what is or are indicated in CMA F I” 14 However, if an employee is on a term contract, he is entitled to compensation for the remaining period of the contract of employment This position was also stated in Benda Kasanda Ndasi vs Makufuli Motors Ltd, Rev. No. 25 of 2010, HCT, Labour Division at Dar es : Salaam (unreported) and Mbeya Cement Company Limited vs Allen Mwinula, Revision No. 24 of 2017, HCT at Mbeya (unreported) In the present case, the respondent requested for compensation for unfair termination. However, he did not state the number m onths’ salary to be compensated. It is in his final submission when he requested for compensation of 228 m onths’ salary. The. Hon. Arbitrator ordered the .applicant to pay the respondent compensation of 36 m onths’ salary which is the remaining period of contract renewed by default for three years from 01.07.2017. The Hon. Arbitrator decision was based on the fact that, the last employment contract ended on 30.06.2017 and thus, it was renewed impliedly for another term of three years from 01.07.2017. On my part, Letter U W S A /P F 16/34 dated 10.04.2013 (Exhibit P2) suggests that the respondent had a five years contract from 01.04.2013 to 31.03.2018. In this regard, unless renewed by the applicant, the respondent employment was expected to lapse on 31.03.2018. I understand that, in 2014 the respondent was issued with a three years contract via letter Ref. No. U W SA /PF. 16/44 dated 01/08/2014 (Exhibit P3). However, the 2014 letter did not revoke the previous contract dated 10th April 2013. Further, it did not even state the respondent salary which •is an essential ingredient in employment contract. 15 Therefore, as the employment contract was terminated with effect from July, 2017, the remaining contract period for the five years contract from 2013 was 9 months. Then, the respondent was entitled to compensation of the said 9 m onths’ salary (Tshs 4,590,000) and not 36 m onths’ salary (Tshs 18,360,000) granted by the Hon Arbitrator or 228 m onths’ salary (Tshs. 116,280,000) requested by the respondent. This is because, the applicant had discretion of extending the contract the contract which expired on 31st March, 2018. However, letter Ref. No. U W S A /P F 16/57• dated 20.07.2017 (Exhibit P6) was to the effect of informing the respondent that the contract would not be extended unless he attain form four secondary education. Therefore, basing on his last salary (510,000), I find that the respondent was entitled to compensation for the remaining period of contract (9 months). This is equivalent to Tshs. 4,590,000. In view of the above, the application partly succeeds to the extent the- award is revised on the compensation order as shown above. A party aggrieved by this decision may appeal to the Court of Appeal in accordance with the law. Dated at M USOMA this 29th day of May, 2020. C U B E. S. Kisanya JUDGE 29/05/2020 Court: Judgement delivered this 29th day of May, 2020 in the presence of Ms. Vicky Mbunda, learned advocate for the applicant, and the respondent, in person. E. S. Kisanya JUDGE 29/5/2020 16