20140217 TZHC Mwanza

,, 1 REVISION NO 32 F 2013 1 NICKSON YARED ENOS ....... ......... APP.., VERSUS, I SYMBION POWER LLC ............ :.... . . . . . . '~~~DENT 1 1· . \,!. 1 I (ORIGINAL CMA/MZ/SENG/ I' 1'3 I I I i I I 25/11/2013 & 17/2/2014 I I R. M. RWEYEMAMU, J:- ~. r .. ! J: 1 1,I I . #tft1 J ,GMENf I ~~ 1: I I The applicant/employee h''~'' in after, Enos)::applies for revisicm ofI the Commission I ' 'I I sion issued on 12/6/2013. ln that decision, the CMA 1 ~i · I I dismissed his unfair term· a. against the respondent/employer. 1 1 I he application is r· opposed and parties ar res.ented by Mr. Nasirn ire Advocate and :a P~rsonal representative' 1 Mr. Banyikila, td'r~t, ant and respondent, rJs1pectively. I 1 \ I 1 ! I : I I I fter co aring parties' arguments with t~e; undisputed facts in ttis case, it is my 1 opinion th :s re is ·some apparent confusion, o~ ~art of each of th~ pa1ies, regarding contested aspects of the Arbitrator's decision and 1hat I am called uponlto decide. My 11 ' 1 reason for saying is pest appreci3ted if viewed in'light of background fac ts. ': I I i 1 I I !i i I I I 1 ' I : I I

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I I I "I I . :. I I ~ (771 I , I , 1 I The following facts are uncontested. Enos was employed on a one year fixed term contract commencing 2/9/2011 t62/9/2012. He wJs/suspended for a~ all~ed misconduct fi, f I I on 23/1/2013. Following that, disciplinary proceed(n@s were conductep, h~ was found guilty and ultimately terminated on 1/212013. At the time/dn1is termination: !he ter~tract which had commenced on 2/9/2011 had already e'xbired. Fixed te "~' ofr~ci~,;:}lrminate 1 automatically at the expiry of the agreed fixed perlob- (Rule 4 (2 f • !mp;tment and Labour Relations (Code of Good Practice) Rules, dN 42 of. 7), u~\esi reasonable expectation of renewal of such contract is allegedt 1 , I ..-. II

I I I I Even though the first framed issue at the~@~ hether pr npt the contract between th_e parties was for a specifiedjiOO) o ~ ified pe~od,I no Fviden_ce was led by the parties to allege or deny that thefbontract Was for a fixed termI: with or without reasonable expectation of renewal or th~~~~~;~act was for unsp~cifikd period. From the I. . I ·/ facts adduced by each party, exist, e of an empllbyment contract ras rssumed. That is probably why the employer's def~, nos' clrih1 of unfair termin;auor (both on procedural and substantiv as not that~e contract had $xpi/ed. Rather, the employer gave a typical to such claims hamely that, terminatioh was for a valid reason namely . ' ~ct, and that such\: rmination was cdndu/bted in accordance . I with a fair/proR I I I I ~sing, the CMA decision had n~tHing to do with the:frated issue of the type of employment contract between the parties. Fu~her, that issuew9s nqt addresses by Mr. Nasimire, in his submission in chief at the supp6t of the applicatio~. Y the bulk of Mr. h Banyikila's arguments in opposition to the application, and Mr. Nasimirk's arguments in rejoinder were centered on answering that very iJsue namely, whethet/l or not Enos's . I 2 I /

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I I I ! : I I . Ji · {~~:/t': I i tiLe t ,!_ contract was for a fixed term and therefore he~ the same expired or as terminated. To 1, ! I me, both parties position reflects some con n r~garding the gist 0f, I heI CMA decision I 1 and contested issues in this application. 1 I i I I i i As I have demonstrated, the CMA did not 1 dral with or d , 1 :· . issu employment contract. As such, this Court cannot fault the CMA on ~att~r which were not before ii, such is not the role of a revision court. fJr that re ·t ii niyidecision that ii is not necessary or required in this application, to entuire into, br d~cide whether or not Enos's termination was due to expiry of fixed te+ c t I !

I I I I The other aspect reflecting conf ion is ote question o'I v~lidit of Enos's termination. The employer's defence at 1 ~~,as that Enos wa terf inated because of misconduct; specifically that he di efBeyed instruci1ons ' of his superi0r whom he also

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II I confronted and threatened with ti /r As rightly argued by Mr. Banyikila, from the facts on record, Enos did not den ~ , ed miscond~ct either during 4rb+lion or in this court. . I I : I I I ; I , I I rbitrator's conclusion n that question of valjdity of Enos's termination w{li' · 10 ground 5 of the applicaJt•s supporting affitlav~, Mr. Nasimire made no s mission oil1 ,at ground at the hearing of tt1 application. Giv~n tj<>lh those facts, I find no basis a 'he Arbitrator's reasoning that Enlos's termination was for a valid reason. And, from the un- refuted description of the natJr! of the miscondutt, I ~nd no basis to fault the Arbitrator's conclusion that, Enos' miscondu~~ amounted to gro~s i~subordination, a :I I I misconduct in law justifying termination. i 11 I I : I i I I

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I I I l:;v!A' + ,/'""!\ I/;/'. . ,__ I I i ! That done, the remaining issues to be ··e Jdd is with respe Jo Arbitrator's decision on the issue of procedu/31 fairness of he itJrmination procest anr consequential reliefs. I examine th~m below beginning with the ap, licants' arguments, t'e response thereto and my decision. j I ; It!) a. Mr Nasimire submitted that the Arbitrator Jnred vital pi~•, f ~ide v which established that termination was procedurflly unfair namely; tha ':flos was not given 1 sufficient notice to prepare for disciplinary ~taring s~ •, noticf w~s given on 29/1 /201S and hearing scheduled the same 1bay; a ·~t , :.~ notice for disciplinary hearing was insufficient in that it did not conlain : 1! - ~a·i. ~s of 1a11ebations he was . I supposed to defend as required by law. Th ' ted by fylr. ~anyikila who submitted that although the letter summ . s for the m~eti~g was written on 29'"January, the meeting was s{eduled 11r• \j ~. I I but in faCt did not take place until 1.2.2013. Further, with respect t& ,~d ground, he sub~ittL that particulars of 1 the misconduct were contai ed in the lett~ri!of suspension EJh. 0-2 adding that the - 11 I 1 letter summoning him to. ~isciplina~y:fhearing was additional. • . 1 I ,, e given sufrtcllnt time to defend ah allJgation, and that he be made aware of Jl• ~lleged misco+~lct is mandated to e~sur, Iair process. Where, as s§; there

are un refuted facts that the emploiee liad sufficient time to was the of particulars of allegatio s, the Arbitrator can~ot Je faulted for finding that ered to. I dismiss the applicJnt's arguments on t~e twb aspects. I I . i I b. En .t;rnot given opportunity to mitigatJ sentence after b¢ing, found guilty. This ground was not directly refuted, instead, ~r. Banyikira repe~ted! the CMA's finding that the applicant ".. .alishindwa kukanush~ tuhuma zilizokuWa ¾inamkabili ndipo I! !1 1· I mlalamikiwa alipo muachisha kazt. Ii I I 1 i i I' 4 1 I I lj i I

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I I I l,j //1 (6,: Ii 1/-./ ' • L>y~1 I I In my view, where an employee chooses not to spond or refute alleged isconduct or explain 'l I 1 I special circumstances surrounding commissio~ o~he misconduct, the /4rbitr~tor is not bound to , I 1! \ \ ask the employee to adduce mitigating factors. I I I !) I I II I . , c. Mr. Nasimire further argued that the sanctid~ of terminatio. · s inap priate for a iI lf' ' I first offender with record of long service r~IYiing on rule 12 (4)10 1~1.Code. And that, the Arbitrator erred to conclude without e~i9ence tha ntinued Jmployment of the Ii' .I I applicant would be intolerable to the resporfdent. ·ila's response was that 1 1 1 I I under the Code, gross insubordination justifies t~7 10n a~d np evidence existed 11 to justify a finding of long service. · I I I I On the main, I agree with arguments ~~_.l~~dJbY , "·iii-" ila. Where e~p101iment is based on fixed 1 where the term had been renewed, w~i rtfho be the position in this case, unless there was term contracts, the question of long se.rvice wou1a.' ot arise. Long ~rvice wo uld not arise even ~ I 1 '. I! 1 I evidence that such renewal cha'Jed the nature of!the contract from fix~d t~rm to that of unspecified period. In this ca -1'1! ··~~~~rgument of long service is mispla?ed. ~econd, the remedy of "lrxiate wh:eJe termination is adju~ged unfair.

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I I I I ~ ess the issue of reliefs due under thei law:, even where d.4.u·uJg· ed fair. The response was that terminallberlefits were paid ,.,;:r,, · i I , severance and leave eratitlements to whichl Mr.I Nasimire rejoined at since . e applicant's fixed term contra~t had been renewed,! he was entitled to a ,,e; for· the unex ired term of the coniract. 1 I " I: I I 1 It My decision on the above is this; the question of Jayment for the une~pired term of the contract would be relevant only where ,termination is adj\Jd~ed unfair. In this ca~e, t~rmination was adjudged fair, a conclusion I have found to hav~ Jeen proper and ratidnal. f i ~ : I 1 : i I S j I I

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I I I .l - __.., i ~ ·1 "" ' - . t!!tfil';r ·. I /jr' l' ~... ; II . I I ' •. Regarding terminal benefits, it is t:aator(_d:::2 mlke ~ny reference or I . findings on Enos' benefits(But I agree with th~ Arbitrator' position bn t~e issue because; Enos made no such claims in the referral form-(CMA Fl~); at the CMA and i~ thiJ Court, it was the

I I I employers' position that Enos was paid terminal b~nefits on terminatio?; th 1aij, ·cant oftbis Counsel Mr. Nasimire did not deny that such pay~ents had been mad~ra,iwt, r~pined by stating that " Enos was entitled to 'payment for t~J unexpired teffi!~t(b- ~~ntract f.tat aspect is already answered above. : : J ·t '" I I, I In totality of all the above, I find that this applica\i n has no ~.i,:'1~; a~d di~miss it. . I /6.R I

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J I I . I I Date: 17/02/2014 I I Coram: Hon. RM. Rweyemamu, J~1~ I I I if Applicant: Present in person an i,?f> sented b~ MS Grace Nga1J1a />idvocate for Nasimire t I I I Advocate . i 11 - I I I i I Respondent: Absent I I CIC: Christopher R I I V ed for Judgment toi.1 y. : : ,in presence of parties inJicated above, thi~ 17~02/2014.

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JUDGE I I 17/02/~014 : : I I i 61

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