mwambaya thadeo chacha vs saint harry hospital 2021 tzhcld 366 8 september 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT MOROGORO REVISION NO. 09 OF 2021 MWAMBAYA THADEO CHACHA................................ APPLICANT VERSUS SAINT HARRY HOSPITAL..................................... RESPONDENT JUDGMENT 6th & 8th September 2021 Rwizile J. This application is for revision, where the applicant challenges the decision of the CMA. It is filed under section 91(l)(a), (2)(b)(c) and Section 94(l)(b)(i) of the Employment and Labour Relations Act, Rule 24(1), (2)(a), (b), (c), (d), (e) and (f) and (3)(a), (b), (c) and (d) and Rule 28(l)(c)(d) and (e) of the Labour Court Rules, GN No. 106 of 2007. It is supported by an affidavit of the applicant Mwabaya Thadeo Chacha, asking this court to mainly revise the decision of the CMA in Labour Dispute No. RF/CMA/MOR/50/2020. The points for determination of this application are stated in the terms as stated hereunder; 0) Whether there was a valid employment contract between the parties. (ii) Whether termination was fair in terms reason. (iii) Whether termination was procedurally fair. It should be noted at the earliest that the applicant was employed as the Assistant Medical Officer (AMO) by the respondent. He worked as the medical in charge of the Hospital for some time. Though not clearly stated, la V but his employment with the respondent is alleged to have commenced in July 2016 and was terminated on 7th August 2020. The reason for termination were stealing and gross dishonesty. Following his termination, the applicant filed a complaint with Mediation and Arbitration Commission pleading for unfair termination and so claiming for compensation for termination for 36 months, repatriation expenses, gratuity, accumulate 4 years annual leave payment, notice for termination as well as other terminal benefits deemed fit by the commission. ■■■M % After full hearing of the matter, the Commission was of the view that terms of employment in the contract of employment were not proved. But agreed that termination was justified and fair. It only awarded to the applicant a salary for March 2020, a notice of one month and accumulated leave. This was therefore to the tune of 3,300,000/=. This, however aggrieved the applicant who has no filed this application. Standing on his behalf was Mr. Marwa Masanda advocate of Geem Attorneys. The opposite party was represented by Mr. Ignas Seti Punge advocate of PJC Premier Attorneys. Before this court the applicant's advocate submitted that the CMA award at page 18, held there was no valid contract when in fact there was one. He said, the employer is required to provide to the employee written contract. The burden of proof under section 15(6) of the Act is on the employer to prove that the employee had a written contract. It was submitted that the evidence of Dwl admitted, there was an employment contract. According to the learned counsel, the evidence of the applicant by exhibit PD1,2,3,4, & 5 shows there was proof of employment since 2016. The employer did not prove there was no such a contract leading to miscarriage % ■■ of the applicant's right which would flow from unfair termination. Mr. Marwa asked this court to refer to the case of Angela Gerald Manyonyi vs Bhunu Mbundi Co. Ltd Labour Revision No. 27 of 2019 at pg. 7-8 Submitting on the second point, he said, the reasons for termination i.e stealing was not discussed, it is because the CMA believed there was a case. In his view, exhibit DD2 was just an information at the police. (RB Police Morogoro). This, did not prevent the commission from dealing with the issue, it was not a pending matter in court. The learned advocate was of the argument that there was no proof that the applicant committed the misconduct of dishonesty and stealing. Submitting on the last point, it was argued that there was no proof of fair termination as per section 37(2)(c) ELRA and rule 13 of the code of good practice, GN 42/2007. According to the learned counsel, the applicant was not afforded a right to be heard. Dw3, he said, did not interrogate him A v during investigation. He did not even appear at the hearing to interrogate > r him, exhibit DD1 collectively shows no witness before the disciplinary f \ ) hearing were called. He said, exhibit DD4 (investigation report) did not suggest any penalty as per Rule 13 of the code of good practice. This therefore proves unfair termination, Mr Marwa submitted. On reliefs, he was of the view that compensation for unfair termination is under section 40(1) of ELRA where at least 12 months' salary should be paid as compensation. He concluded, that the applicant ought to be repatriated under section 43 of the Act, paid the salary for March and leave for 4 years he worked and a notice of salary of one month. Mr. Punge on the other hand, submitted that there was no dispute on whether there was no employment. It was not an issue and should not be discussed. He submitted, that evidence is clear that there was an agreement which was renewable and the last one was on 2nd January 2020 and it was terminated on 07th March 2020. % * Dealing with the second point, he said, reasons for termination are stealing and dishonesty. The 1st one was not determined because the matter was at the police. According to Mr. Punge, it was in favour of the applicant not to determine the same but CMA decision in his view did not comply with section 37(5) of ELRA. There was no case in court, the employer was justified to proceed with the matter as it was. He went on submitting that dishonesty was proved. The evidence before CMA was clear on this point. Evidence by all three witnesses proved and the Commission agreed with it. Lastly, he submitted that termination procedure was followed. The disciplinary meeting was done on 05.03.2020. The applicant was present and fully participated. He never complained about anything in terms of his rights and procedure. He did not opt to have a representative, it was stated. The learned counsel argued that the report on investigation was o proper and it was admitted at the CMA and it was used to take disciplinary measures, since there was no objection, when tendered before the CMA. Submitting on reliefs, the learned counsel saw nothing to fault the decision of the Commission. He only asked this court to proceed dismissing this application. By way of a rejoinder, Mr. Marwa, held the view that the finding by CMA that there was no contract of employment was not justified. He finally, submitted that termination was not proper because nothing that suggest disciplinary measures be taken against the applicant. The first point to tackle as hinted before is if there was a valid employment contract between the parties. This point should not hold me, because as suggested by Mr. Punge, if one goes by evidence, it is crystal clear that the respondent does not dispute having been in a contract of employment with ', % । ” the applicant. The Commission, although it held that there was no written contract, because the one tendered was not admissible in evidence, but it ultimately found out that termination of the applicant was fair. In the eyes of the law, one cannot terminate the employment contract that has never existed. I share the view with Mr. Punge that the first point has no home to stay. Going by the second point for determination, I think, I have to combine both, the 2nd and 3rd issues, and deal with them together. I have therefore to find out, if termination was fair in terms of procedure and reason. In law, termination is said to be fair if it complies to section 37(2) of the Employment and Labour Relation Act, [Cap 366 R.E 2019] which provides that: - "A termination of employment by an employer is unfair if the -'A' employer fails to prove- (a) that the reason for the termination is valid; (b) that the reason is a fair reason- & (i) related to the employee's conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer." ■ • ■ (c) that employment was terminated in accordance with a fair procedure. This court in the case of Tanzania Revenue Authority v Andrew Mapunda, Labour Rev. No. 104 of 2014, it held that: - "(i) It is the established principle that for the termination of employment to be considered fair it should be based on valid reasons and fair procedure. In other words, there must be substantive fairness and procedural fairness of termination of employment, as per section 37(2) of the Act. (ii) I have no doubt that the intention of the legislature is to require employers to terminate employees only basing on valid reasons and not their will or whims." As to how, termination must be fairly done, the code of good practice J I presents the answer. Rule 13(1) to (5) of the Employment and Labour Relations (Code of Good Practice) Rules, GN No. 42 of 2007, states stages to hold in conducting a fair termination procedure. First, there must be an > investigation, second, the employee must be informed or notified as formal % as possible, if there is a hearing to be conducted, third, the employee be given reasonable time to prepare for the hearing, fourth, the hearing has to be conducted and finalized in a reasonable time, fifth, upon presentation ,• C". . of evidence in support of the charge at the hearing, he must be sufficiently allowed enough time to put up a defence. In the application at hand, it is explicit, that the applicant was charged of misconduct of gross dishonesty. Stealing was left out because it was reported at the police station. o Since this second misconduct of stealing was not dealt with then it is unworthy venturing into. It serves no purposes either because the decision of the CMA did not base its finding on it. Having scanned, the evidence produced at CMA, I am of the firm view, that investigation was done and a hearing was conducted. The applicant was found guilty of the misconduct of dishonesty. Under rule 12(3) of the Code of good practice, among the misconducts that may fetch termination penalty even if it is the first offence includes, gross dishonesty among many others. Dishonesty is however not defined by the law, but I think, it may include the acts done without honesty. It is used to describe a lack of integrity, cheating, lying, or deliberately withholding information, or being deliberately deceptive or a lack in integrity. But Dishonesty has traditionally been seen as a serious offence and one that could render an employment relationship intolerable. This is because dishonesty damages the ability of the employer to trust the employee. Under subrule 4 of the code, dismissal imposes a number of requirements on an employer who is contemplating dismissing an employee for this misconduct. The employer should first consider factors such as the employee's length of service, his employment records, previous disciplinary o record, as well as personal circumstances. Here, I think, I have to add, the nature of the work and the degree of professionalism involved. The matter before me, is that the applicant, worked in the medical profession as the AMO, he was charged with duty of dealing with sick people. To mis- behave as shown on party of the applicant is uncalled for and would in my view render termination of employment. I think, the arbitrator was right to hold that given the justices of this case, the act of dishonesty merited termination of employment. I therefore see nothing to fault the CMA award. The applicant was fairly terminated. This means, the application is dismissed with no order as to costs.