20131121 TZHC Iringa

,., IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT IRINGA · LABOUR REVISION NO.22 OF 2013 PYRETHRIUM COMPANY OF TANZANIA LTD ...... APPLICANT VERSUS CHARLES TARCHISIUS KIBIKI ..................... RESPONDENT (Original/ CMA/IR/MAF/35/201 OJ JUDGEMENT 14/11/2013 &21/11/2013 Alboud,J The application is made under section 91 (1), (2) and Section 94 (1) (b) of the Employment and Labour Relations Act, No.6 of 2004, Rule 28 (11 (e) of the Labour Court Rules, GN.106 of 2007 and any other enabling provisions o( the law. The :•· 1. applicant calls upon this court to revise the Commission for Me~iation and Arbitration (CMA) award dated 22/4/2013. ' Briefly are the facts of the case, the CMA deoision followed a . referral made by the respondent, CHARLES 1:°ARCHISIUS KIBIKI who was the employee of the applicant, PYRETHRUM COMPANY OF TANZANIA LTD challenging his termination by the applicant. 1 The applicant terminated the respondent for several reasons as they appear in his termination letter, that being; 1. ffhat on 16/07/2010 you acted outside your powers and without mandate of the management to close the factory gate and ,prevent other workers, private contractors from entering the factory, contrary to your contract of service, the labour laws and regulations and company policy. 2.ffhat you showed disrespect and insubordination to your superiors by refusing to heed to the management's call and urge to open the factory gate and let in your fellow employees into the factory, contrary to your contract of service, the labour laws and regulations and .company service. 3.ffhat you interfered with and obstructed the management in executing company's policy regarding mobile phones usage in factory, contrary to your contract of service, the labour laws and regulations, and company policy. 4.ffhat you occasioned loss to the employer by closing the factory gate and thereby prevent the workers from entering the factory and commence work and production, contrary to your contract of service, the labour laws and regulations and company policy. 2 5.frhat your actions on the said date of 16/7/2010 violated the company policy on safety in the factory, contrary to your contract of service, the labour laws and regulations and company policy. 6. ffhat you acted in breach of your employment contract by refusing to heed to your employer's directives regarding the incident of 16/7/2010, contrary to your contract of service, the labour laws and regulations and company policy. 7. frhat you incited casual workers and private/ contractors to participate in a standoff with our employer. 8. ffhat you called in Mafinga police purportedly on the ground that there is strike at the factory. 9. ffhat your actions caused bad publicity of your employer in the district. I The CMA found the respondent's termination to be substantively fair but procecJural unfair. The Arbitrator ordered the applicant to pay the respondent the sum of Tshs. 5,670,000/= being the eighteen months salaries and certificate of service.: Dissatisfied by the decision the applicant filed the present application. Hearing of this application proceeded orally where both sides were represented by Advocates. The applicant was represented ' 3 by Mr. Mwamgiga, Advocate while Mr. G. Malangalila, learned counsel represented the respondent. In his submission Mr. Mwamgiga, Advocate for the applicant submitted on the first point that the respondent admitted to have committed the offence which led to his termination and the CMA correctly decided that the respondent committed the offence of closing the gate on that date, that is 16/07/2010. He said the applicant lawfully terminated the respondent and paid his terminal benefits. He submitted further that since the respondent ' was paid by the applicant all his terminal benefits it was not proper for the Arbitrator to award him again terminal benefits of Tshs. 5,670,000/=. Mr. Mwamgiga said such an award is a double payn1ent of terminal benefits which this court has to set aside. Mr. Mwamgiga further submitted that the Arbitrator awarded the respondent eighteen months salaries which he did not claim for in the CMA FORM 1 contrary to section 40 (1) (c) of the Employment and Labour Relations Act. He supported his argument with the case of Power Roads {T) LTD vs. Haji Omari Ngomero, Revision No.36 of 2007. He_ finally prayed for the court to set aside the CMA award. ' In reply Mr. Malangalila for the respondent submitted that the issue whether the respondent committed an offence which 4 _ caused his termination of employment was not the only -·issue before the CMA, that CMA records shows that the procedures for termination were not followed by the applicant and that was the basis of the award of 18 months salaries. i He further submitted that the terminal benefit which the applicant paid the respondent was for the termination but was not part of the claim of unfair termination by the respondent. he raised another claim in his submission that the respondent was not paid his severance for 9 years which he worked for the applicant and prayed for the court to order payment of such severance allowance. Mr. Malangalila submitted on the case of Power Roads (supra) referred by the applicant's counsel th~t it is distinguishable to the present case and prayed for the court to disregard the same. He submitted on the award: of 18 months compensation that the Arbitrator exercised his powers vested on him under section 40 (1) (c) of the Act which is not less than 12 months. He finally prayed for the application to be dismissed. In rejoinder the applicant submitted on the issue of severance payment that it was not claimed at CMA and this court being the appellate court cannot grant the same. s Having gone through the records of the CMA, the cou~t's record and the submissions made by the parties, the court has the following views; On the first point that the respondent was paid by the applicant all his terminal benefits then it was not proper for the I Arbitrator to , award him again terminal benefits of Tshs. I 5,670 ,000/ =, it is clear from the records that the respondent Jas paid terminal benefits of Tshs.614,500/= being one month salary, payrr1ent in lieu accrued leave and Transport. However, the respondent was not satisfied with the termination of his· employment and decided to refer the matter before the CMA as ' . I per Rule 10 of the Labour Institutions (Mediation -and Arbitration) Rules, GN. 64 of 2007. The Arbitrator found the respondent's termination procedurally unfair and awarded the respondent eighteen months salaries. The law under Section 40 (1) (c) of the Employment and Labour Relations Act provides that; "{1)-if an arbitrator or Labour Court finds a termination is unfair, the arbitrator or court may order the employer- 6 {c} to pay compensation to the employee or not less than twelve moths' remuneration." It is the position of the court as decided ini the case of International Medical and Technological University vs. Ulimwengu Ngowi, Revision No.54 of 2008, HC-Labour Division at Dar es Salaam (unreported) at page 11 where I the court held that; "The law provides for an award of not less than twelve months remuneration. This is the only certain figure mentioned by the Jaw. Any amount above that must be justified by the facts of the case. " In the present case the respondent claimed for payment of expected lifetime of contract from the date of termination to the date of expected retirement which the Arbitrator found no justification to grant therefore decided to invoked section 40 (1) ( c) of the Employment and Labour Relations Act to grant the applicant 18 months salaries. From the above position of the law, I find the Arbitrator misdirected himself to grant 18 months salaries as compensation as the facts of _the case does not clearly justify such addition. 7 Therefore without any hesitation the court decide that, the amount for 18 months salaries is revised to reflect the amount of 12 months salaries equal to Tshs. 3,780,000/= as provided by the law. I am mindful of the decision of Powers Roads (T) Ltd (supra) cited by the applicant however I find it distinguishable to the present case because in the present case the respondent did not claim for the compensation in question as it was in the cited case. In Powers Roads case the court decided that the Arbitrator cannot change the claimed compensation suo motto which is not the case in the case at hand. The court decides: to invoke the powers vested on it under Section 40(1) (c) of the Employment and labour Relations Act to order the compensation of 12 months salaries so as to achieve the good end of justice. As regard to the issue of severance payment raised by the respondent's counsel, the law under Section 42 (2) (3) (a) requires that severance payment is to be paid to an employee who has completed 12 months continuous with an employer, it provides; "{2)- Ar, employ~r shall pay severance pay on i termination of employment if- {a} The employee has completed 12 months continuous service with an employer; and 8 _ Basing on the provision of the law above it is crystal clear that the applicant is entitled to severance payment for the complete nine years of the employment contract which had ended on 20/12/2010. The records reveals that the applicant was never paid severance payment for the nine ye.ars of the contract by the applicant of which he is entitled to according to the law. Under this circumstance where the respondent did not claim severance payment at CMA since he is legally entitled to, I asked myself whether such right of the respondent can be left without being considered by this court just because he did not claim on his CMA FORM1 and were not considered by the CMA? My answer is no and I resort to Rule 55 (2) of the Labour Court Rules to achieve the good ends of justice. Rules 55 (2) provides that; ''In the exercise and performance of its powers and functions, or in any incidental matter, the Court may act in a manner that it considers expedient in the ·circumstances, to achieve the objects of the Act and, or the good ends of justice." . I On the basis of the above provision of the law this court hereby orders the applicant to pay the respondent severance payment for the complete nine years of the employment contract. 9 11 ., r I I I i I In the result I find no· reas+ to fault the decision of the Arbitrator and I accordingly dismijs this applica,ion and confirm the award save for the correction of 12 months salaries I i compensation and severance paymfnt. ! It is so ordered. I I I I I.D.A OUD I JUDGE ·21/11/2013 10 • ~ Date:21/11/2013 Corarn: Hon. I.D.Aboud,J Applicant: For Applicant: Mr. Mwamgiga, Advocate Respondent: Present For Respondent: Mr. Malangalila,Advocate CC: J. Mbasha Order: Judgement delivered on 21/11/2013 in the presence of I.D.Aboud JUDGE 21/11/2013 11