novatus rupia vs tanzania zambia railway authority 2022 tzhcld 223 20 may 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM MSIC. APPLICATION REVISION NO. 127 OF 2021 NOVATUS RUPIA 1CT APPLICANT VERSUS TANZANIA ZAMBIA RAILWAY AUTHORITY ^...RESPONDENT (From the Application for Execution NojB3sh>fa2019) dated 17th Februa 23rd March & 20th May 2022 Rwizile, J This court^^Kl^^^e applicant to interpreter and give directives in respect o^i^feisi^i in Revision No.786 of 2018, dated 2nd August 2019, whereby theygspondent refused to reinstate him, and denied payment of employment rights stated in the Collective Bargaining Agreement (CBA). The application has been filed under section 94(1) (b) of the Employment and Labour Relations Act (ELRA), Rule 55 (1) (2), 28 (3) and Rule 24 of the Labour Court Rules, GN 106 of 2007. i It has been gathered that the applicant was employed by the respondent as storekeeper in 2007. When their employment relationship turned bad, he was terminated. To challenge his termination for being unfair, he filed a dispute with Commission for Mediation and Arbitration No. and lost. The applicant was again aggrieved and filed j^wpplica@ig. for revision No. 786 of 2028 before this court. On 2nd Augus®019^it^is court set aside the award that held termination to be su^^^^^and procedurally fair. The court held that his terminatin' wa^^^^~ in all fours. As the remedy, the respondent was ordered to rehi)|gt<^) the applicant to his employment from the date of terminatioi^fthout loss of remuneration during the period he was absent froi^zly^dygfo unfair termination. It further directed that if the applican^does-n^r^instate him, she should comply with section 40(3) of the As a rrrattg^gf choice, the respondent did not opt to reinstated the applicant. Instead, paid terminal benefits. The applicant was not satisfied with the payment. He then, filed an application for execution styled Execution No. 635 of 2019 to enforce the judgement of the court. Before the Deputy Registrar of this court, on 17th February 2021, it was held that since the 2 judgement of this court did not quantify the amount of compensation to be paid instead of reinstatement, the Deputy Registrar has no jurisdiction to not only compute, but also to interpret the decision of court during the execution proceedings. He therefore advised the parties to explore the provisions of Rule 48 (8) of the Labour Court Rules. This application^ th^refcre ig, that response. By his affidavit, the applicant raised two groundsuor wlijch this application should be based as follows; i. Whether the decree hojcler isCatjl^l the remuneration stipulated in the workplace co^ctiv^^gr^eement of the workers Union ii. Whether the cou^as’powers and jurisdiction define her decree. representativejjf the applicant, while advocate Beatrice Mtembei stood for the resp^lCnt and opposed the application. Advancing his argument in the first issue, Mr. Mgombozi stated that the applicant was paid terminal benefits that counted from 23rd June 2013 to 28th February 2017 contrary to the judgement. In his view, he ought to be 3 paid from December 2013 to the date of final payment. Since payment made was in 21st June 2013, the respondent did not comply with the judgement. Mr. Mgombozi went on saying that there were salary adjustments of March 2017, which were not paid as well as annual increment based on the CBA an amount of ll,118.00TZS per annum. This in his view^^Lce^he monthly salary from 741,200.00TZS to 528,000.00 TZS per month.^le dra^ot pay, according to him, as per section 40(3) of the A^a^nual leave which was for 36 days. He said, compensation was tcxbe base'ckpn the last salary. In his view, the applicant was tcTbe pa^ttyollowing other benefits from date of termination to date; annuakleaye) from termination date to date of final payment, severancekpay&as per section 42 and 44(1) of the Act, payment of golden handshakes per the CBA-2019, long term service award for 9 years^^iMate^^final payment based on clause 15.6 of the CBA, payment^o^l^^mths compensation at the salary of 741,200.00TZS, surastence alklvance and not repatriation as per the CBA, repatriation costs as per CBA- clause 26(ii)(b) -three tones. Further, it was added that the notice is for 6 months as per the CBA. He asked this court to refer to the case of Lukelo Chitimbao Nyagawa vs Mufindi TEA and Coffee Co. Ltd, Application No. 14 of 2008. 4 On party of the respondent, Ms Beatrice Mtembei submitted that the order of the court was complied with. She submitted that the respondent paid terminal benefits according to section 40(3) ELRA as follows; house allowance, annual leave for 216 days. The learned advocate further submitted that the annual salary increment can only befpaicn3khe vyprker who performed his duties to the satisfaction of the ^eq|plo^er upon performance appraisal. It was his submissiqg^Ct^l^ applicant paid increments based on the exchanged rate in^rhsofeJJSD because payment was so based as per CBA and staftregi^^^^O^fer benefits paid were 12 months salary. In her view, the g^en^noshake was not paid because it is paid to the retiring persbrtor after working for at least 10 years. The learned advocate was^pf the'firm view that the applicant was paid although^t^as^o^e in instalments. She therefore asked this court to dismi^^^^peation. By way of re-joining, it was submitted that payment has not been completed and the amount last paid was on November 2020. He therefore asked this court to allow this application. 5 Having heard the submissions, I have to straight forward go to section 40(3) of ELRA, which this court ordered be applied. It states as hereunder; 4O.-(l) Where an arbitrator or Labour Court finds a termination is unfair, the arbitrator or Court may order the employer - (3) Where an order of^msta^m^t or re-engagement is made by an arbitrator or Cour^riddhe^empioyer decides not to reinstate or re­ engage the et/^fyee^the employer shall pay compensation of twelve months^vyagesjn addition to wages due and other benefits from the termination to the date of final payment. The judgement is clear on what to be done. The dispute arises on the way the amount decreed was paid. It is therefore my view that the respondent ought or is required to pay the following; i. Salary of 12 months 6 ii. All salaries due from date of termination to 2nd September 2019 when this court ordered so. iii. House allowance for the same period at the rate of 25% iv. Annual leave for the same period and v. Repatriation costs to the place of domicile <3^^^ The respondent is directed to make calculations based on thesajary payable as at 2nd September 2019. The applicant has toffee paic^glj he is entitled as per this order after deducting what wasj^^^^^before this application was preferred. The application |smereforewanted to the extent shown above with no order as to costs, JI JUDGE 20.05.2022 7