REVISION NO 2906 OF 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT ARUSHA REVISION NO. 2906 OF 2024 (C/F Labour Dispute No. CMA/ARS/211/130/2022) NEEMA GODSON ZELLY................................................................. APPLICANT VERSUS MATERNITY AFRICA................................................................RESPONDENT JUDGMENT 19th August & 25th October 2024 Masara, J At the Commission for Mediation and Arbitration for Arusha ("the CMA"), Neema Godson Zelly ("the Applicant") filed labour dispute CMA/ARS/ARS/211/130/22 against Maternity Africa ("the Respondent") for breach of her employment contract. The CMA, having considered the evidence by both parties, decided that the claim for breach of contract was devoid of merits as there was valid reasons for the breach of employment contract and there was adherence of the procedure for termination by the Respondent. It, thus, dismissed the Applicant's claims. Being aggrieved by the CMA award, the Applicant preferred the current revision Application on the following grounds, reproduced verbatim: 1) That, the honourable arbitrator error in law and fact when deciding the dispute in question by miss conducting himself and failed to consider, whether there were valid reasons for termination of the Applicant contract as the result reached in the erroneous conclusion. 1 | Page 2) That, the arbitrator award was improper as it's based on his own opinion and views by failed to observe that the incident which led to death of the baby was not of the Applicant fault, the mother (Rose Seuri) lacks immediate care of the doctor soon after admitted to hospital despite she was a referral patient from 01mod. 3) That, the arbitrator error in law by failing to analyse and evaluate evidence vivid adduced. During hearing of the Application, the Applicant was represented by Mr Alex Michael, a Personal Representative from Wesagi Employment Solutions, while the Respondent enjoyed the services of Mr Henry Simon Katunzi, learned advocate. Hearing proceeded by way of written submissions. Before I consider the submissions by the parties with respect of the Application, it behoves me to outline facts giving rise to the present Application, albeit in brief as may depicted from the records. The Applicant was employed by the Respondent as a nurse/midwife on a 2-year term. She was later appointed as a maternity ward in charge. On 20/05/2022, the Applicant was terminated from employment on allegations of misconduct. She was not satisfied whereby she preferred a labour dispute at the CMA where she claimed for a total of TZS 16,800,000/= being compensation for the remaining period of 10 months from her fixed term contract. The CMA dismissed the Applicant's claims in their entirety on the 2 | Page basis that the Respondent was justified to terminate the Applicant's contract. The Applicant preferred this Application which was supported with an Affidavit deponed by the Applicant herself. The Application was strongly opposed by the Respondent through a Counter Affidavit deponed by one Frida Kimaro, the human resources manager of the Respondent. Submitting in support of the Application, Mr Alex craved to adopt the contents of the Applicant's Affidavit filed in support of the Application as well as the closing submissions filed at the CMA. He also preceded it by narrating a historical background of the labour dispute between the parties herein. Mr Alex conferred that the decision issued by the CMA arbitrator is tainted with material irregularities rendering the award to be unlawful. That, the Applicant was accused of negligence which caused death of a toddler. This led the Respondent to institute a disciplinary charge against the Applicant. That the alleged negligence arose on 16/03/2022 where a referral pregnant patient was admitted in the Respondent's hospital at night. The Applicant was not on duty at the time. According to the Applicant, the patient needed urgent care by a doctor which service was not rendered to her. The patient was kept until 17/3/2022 when the 3 | Page Applicant entered on duty. That by that time she could not do anything to help the still born, who died before being born. To cement on this point, reference was made to the Court of Appeal decision in the case of Winfred Mkumbwa vs SBC Tanzania Limited, Civil Appeal No. 150 of 2018. Basing on the case cited above, Mr Alex implored this Court to consider how it was possible to leave a referral patient with labour pain for the whole night without immediate care and later on to allege negligence to a person who entered shift a day after. Mr Alex further submitted that, had the CMA arbitrator properly examined the evidence on record he would have realised that there were no good reasons for termination of the Applicant's contract and that there was no compliance to the principle of natural justice as required under section 37(2) of the Employment and Labour Relations Act, Cap. 366 [R-E 20191 and Rule 8(1) (d) of the Employment and Labour Relations (Code of Good Practice) G.N No. 42 of 2007. Mr Alex also referred this Court to the decision in the case of Lucy Kessy vs NMB PLC Ltd, Revision No. 123 of 2015 regarding proof of negligence and further implored this Court to have regard that the burden of proof lies with the employer to prove justifiable reasons for the termination on balance of probabilities as per 4| Page Rule 9(3) of the Employment and Labour Relations (Code of Good Practice) G.N No, 42 of 2007. Expounding on the procedural aspect of the Applicant's termination, Mr Alex averred that there was no procedural compliance during the disciplinary hearing, as the Applicant was required to enter her defence even before the Respondent's witnesses testified in order to lay down facts constituting the offence. Further, that documentary evidence purported to have been tendered at the disciplinary hearing were tendered by the human resources manager after the completion of the hearing, contrary to the requirement of Rule 13(5) of the Employment and Labour Relations (Code of Good Practice) Rules, G.N No, 42 of 2007. Hence, it is the view of Mr Alex that the Applicant was denied her right to be heard. Mr Alex urged the Court to reverse the findings made by the CMA for the interest of justice. Responding to the Applicant Counsel's submissions, Mr Kitunzi contended that, as the Applicant's claims were for breach of her employment contract and, pursuant to section 110(1) of the Evidence Act and the case of Lesikari Sailevu vs Nqilort Sainevunye, Misc Land Appeal No. 20 of 2018, Salmon Ryoba Salmon vs Mara Credit Company Ltd (Revision No. 215 of 2021) [20221 TZHCLD 209, and Emmanuel 5 | Page Zephania Makoye vs KK Security Company Ltd, Revision No. 592 of 2019, the Respondent had no duty to prove the allegations as it was not a claim of unfair termination. Regarding this Application, Mr Katunzi submitted that the Applicant failed to prove the allegations of breach of contract against the Respondent because she was unable to demonstrate which specific clause of the said contract was breached, a demonstration that the termination was fair as evidenced by Exhibit RD-1. Mr Katunzi implored this Court, as the first appellate Court, to reanalyse the evidence in order to confirm the validity of the CMA award and that the craved Revision be centred and be addressed on the issues as framed during the arbitration proceedings at the CMA, consistent with what was established in James Funke vs The Attorney General [20041 TLR 161, Elisa Mosses Msaki vs Yesata Nqateu Matee [19901 TLR 90, and Erastus Vicent Mtui vs Coca Cola Kwanza Limited, Consolidated Civil Appeal No. 619 of 2022 & 13 of 2023. Basing on the above authorities, Mr Katunzi urged that, since the Applicant failed to prove her allegations of breach of contract against the Respondent, and since the Respondent has justified the reasons for termination and 6 | Page complied with fair procedures before termination, the Applicant's claims lack merits. The Respondent's Counsel finalised his submissions by praying that this Court upholds the decision of the CMA and dismiss this Application for lack of merits, as the termination of the Applicant was done pursuant to Rule 8(l)(a), (b), (c) and (d) of the Employment and Labour Relations (Code of Good Practice) Rules, 2007. In his brief rejoinder, Mr Alex reiterated what he stated in his submission in chief and emphasised that, before the CMA, the investigation report tendered by the Respondent's witness was never read over thereby denying the Applicant her right to adequately defend herself on the allegations therein, which were not within her knowledge. Having outlined the summary of the rival submissions by the parties herein and having considered the records for the CMA and the Affidavits for and against the Application, it behoves me to determine whether or not the Application herein has merit. It is not disputed that there existed an employment contractual relationship between the Applicant and the Respondent. What is in dispute here is whether the Applicant's termination from her employment contract was in accordance with valid reasons and in compliance with legal procedures. 7 | Page I am also alive to the issues raised by the Applicant in his Application. First, the Applicant contests the arbitrator's decision on whether there was a valid reason for termination of her employment contract. The records of the CMA depict that when the unfortunate event occurred, the Respondent did inform the Applicant that she was to attend a disciplinary hearing due to allegations negligence that affects clients arising from poor monitoring of a patient on oxytocin leading to in-utero death of the baby and incorrect documentation of labour progress documents. This is contained in exhibit RD-1, which is a notice to attend a disciplinary hearing dated on 10/05/2022 addressed to the Applicant. The said notification also informs the Applicant that, a detail on the allegations and available evidence has been made available to her through the attached investigation report together with its findings. The CMA records also reveal that the Applicant attended a disciplinary hearing, as exemplified by exhibit RD-2, which are minutes of the hearing dated 13/05/2022. In item 3.4 of the said minutes, the Applicant verified that the allegations against her as well as the summary of investigation were issued to her and that she understood the allegations she faced. Thereafter, the same were read over to her and the Applicant entered her defence. The available evidence on record further reveals that the 8 | Page Applicant pleaded guilty to the charges and allegations made against her as per item 4.1 of exhibit RD-2. It was due to her guilty plea and after both the mitigation and aggravating factors were given that she was found guilty by the committee. It is following the decision of the Committee that her employer served her with the termination letter; that is exhibit RD-3. The question here is whether there were valid reasons for termination of Applicants contract. The Applicant thinks that there were no valid reasons for her termination owing to the fact that the alleged gross negligence on her party cannot be true as the patient was left unattended until when the Applicant entered shift the following day. Thus, the alleged negligence was not proved to the standard required. The Respondent, on the other hand, maintains that no part of the employment contract was abrogated. I had the opportunity to examine the employment contract which the Applicant alleges to have been contravened by the Respondent. This is Exhibit RD-4. Item 12.1(v) thereof allows termination of employment contract on performance of acts of gross negligence. Further, Rule 12(3) (d) of the Employment and Labour Relations (Code of Good Practice) Rule 2007 G.N No. 42 recognises an act of gross negligence to justify termination of an employment contract. 9 | Page From the above, it is not in dispute that there were strong allegations of negligence against the Applicant. The Applicant was served with a report showing the particulars of such negligence and the report thereof. It was imperative for the Applicant to dispute those allegations before the hearing committee. Instead, she opted to confirm the report and her culpability to the charges against her. She cannot now turn against and shift the burden to the Respondent. I, thus, disagree with the Applicant's claim that there were no valid reasons for termination of her contract. Regarding fairness of the procedure in terminating the Applicant, Rule 13 of G.N No. 42 of 2007 lays down all the required procedures to be followed in terminating the employee. First, the employer is obliged to conduct an investigation to ascertain whether there are grounds for a hearing to be held. Second, after the investigation, the evidence in support of the allegations has to be presented at the hearing. Third, the employee is to be given an opportunity at the hearing to respond to the allegations. Lastly, where an employee is found guilty, he or she has to be given an opportunity to mitigate before a sanction is imposed. The CMA records reveal that the Respondent complied with all the required procedures. Looking at exhibit RD-1, there is no doubt that a notice was issued to the Applicant for her to attend a disciplinary hearing. 10 I P a ge In the said notice, the Applicant was informed that an investigation had already been conducted. The evidence supporting the allegations and findings were all attached together with the letter of notice and was served to the Applicant. Notably, exhibit RD-2 evidences that the Respondent conducted a disciplinary hearing on the Applicant whereby the Applicant was given an opportunity to respond to the allegations that faced her and she pleaded guilty to the offence. She was found guilty and was accorded an opportunity to mitigate prior to being issued with the decision of the Disciplinary hearing. After the decision of the Disciplinary hearing was made available to the Applicant, pursuant to exhibit RD-3, the Applicant was issued with a formal termination letter within which reasons for the decision were stated and her rights were explained. With all those facts on records, I find it difficult to agree with the Applicant that the CMA erred for its failure to properly analyses evidence laid before it. It is the finding of this Court that there was proper analysis of evidence done by the Arbitrator which led to a conclusion that the termination of the Applicant's employment contract was in accordance with valid reasons and in accordance with laid down procedures. 11 | P a g e Basing on all what has been stated above, it is my conclusion that there is no sound ground for this Court to interfere with the CMA award. I therefore uphold the CMA award and dismiss this Application in its entirety. This being a labour dispute, I make no orders as to costs. DATED and DELIVERED at ARUSHA this 25th day of October 2024. Y.B. Masara JUDGE 12 | P a g e