20131121 TZHC Iringa2

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT IRINGA I LABOUR REVISION NO.21 OF 2013 PYRETHRUM COMPANY OF TANZANIA LTD .... APPLICANT : VERSUS EDDA NYAlJ[fA. Ill • • • • • • • • • • • • • • • ■ ••• ■ •••••••••••••• ■ 1111 ■ 1 RESPONDENT (Original/ CMA/IR/29/2011) JUDGEMENT 13/11/2013 &21/11/2013 Aboudl,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 (1) (e) of the Labour Court·Rules, GN.106 of 2007 and any other enabling provisions of the law. The ~, applicant calls upon this court to revise the Commission for Mediation and Arbitration (CMA) decision dated 2_2/4/2013. Briefly, the CMA decision followed a referral. made by the ' respondent, EDDA NYALIFA who was the employee of the applicant, PYRETHRUM COMPANY OF TANZANIA LTD challenging her termination from employment on 20/12/2011 by the l applicant. The applicant terminated the respondent for several reasons, being; 1. That on 16/07/2010 the respondent shut, blocked the gate thus preventing the General Manager from entering the factory. That he was cautioned, forgiven without any disciplinary action. 2. That she made false claims of allowances, transport to her new station in Njombe for her husband and four children i knowing that her children are above 18 years. I 3. That she made false claims of overtime worked, 24 hours without authorization of General Manager. 4. That on many occasions she was absent from her work place in Njombe. ! 5. That she rented the company property, Njombe Godown Yard for her personal financial gains. 6. That she took several five days ED and ~4 days excuse duty without valid medical certificate as required by law and authorization of her emp,loyer. 7. That she intimidated her employer to force them to i I recommend the loan application contrary to employer agreement with NMB BANK. ; I 2 8. That her absence on 16/7/2010 from place of work violated the Company Policy on the safety in factory and Godowns contrary to her contract of service. 9. That she acted in breach of employn,ent contract, contrary to her contract of service, company staff and regulations. 10. That her conduct showed disrespect and insubordination to management of PCT. 11. That she occasioned losses to her employer by closing the factory gate, making several false claims, absence from work place contrary to regulations· and Company Policy. The CMA decided infavour of the respondent and found the respondent's termination to be substantively and procedural unfair. The Arbitrator ordered the applicant to pay the respondent the sum of Tshs. 8,400,000/= being the forty eight months salaries, Tshs. 175,000/= for notice and gratuity for five years of work Tshs. 235,557/= as well as Tshs.19,480,000/= being the subsistence allowance from the date of termination, which brought the total of Tshs.28,290,577 /=. Oissatisfied by the decision the applicant filed the present application and raised two points for determination in this court, that; 3 1. The decision of the Arbitrator does not qualify to be a decision of the court. 2. The Arbitrator's award is illegal, that is the award of 48 months salaries as compensation and 487 days payment of subsistence allowance. Hearing of this application proceeded orally where both sides · were represented by Advocates. The applicant was represented 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 Arbitrator's decision does not qualify to be a decision as it lacks the qualities of the decision of the court. He said the decision should contain evaluation of evidence and assessment of the credibility and finding of the contested facts in issue. He supported his argument with the case of Stanslaus Lubaga Kasusula and AG vs. Fares Kabuye (1982) TLR 338. He further submitted that the: Arbitrator left the issue of whether the gate was closed or not unresolved at page 3 of the award contrary to the principle established in the cited case above, which renders the CMA decision· not a decision in the eyes of the law. 4 Mr. Mwamgiga further submitted on the second point that, the Arbitrator's award is illegal as he awarded two awards which • < were not asked by the respondent. He said, the respondent prayed for 36 months salaries compensation but the Arbitrator awarded 48 months salaries contrary to what is contained in the CMA FORM 1 and subsistence allowance equivalent to Tshs. 19, 480, 000/= which the respondent did not claim for in the CMA FORM 1. He supported his argument with Revision No.36 of 2007 between Power Roads (T) LTD vs. Haji Omari Ngomero, HC Labour Division, Dar es Salaa·m. He added that the law under section 40 (1) (c ) of the Employment and Labour Relations Act provides for compensation of twelve months so even if the respondent would have claimed for compensation of 48 months, the Arbitrator had to show reasons why the respondent should be paid compensation more than 12 months as prescribed under the above provision. He supported his argument with 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. In reply Mr. Malangalila learned Advocate for the respondent submitted on the first point that in making of awards the CMA is 5 guided by Rule 27 · (3) of the Labour, Institutions (Mediation and Arbitration Guidelines) Rules, GN.67 of 2007 of which the Arbitrator complied with accordingly. On the issue that the Arbitrator did not determine whether the gate was ;closed or not Mr. Malangalila submitted that the :Arbitrator determined that issue in the relevant page. On the second point Mr. fVlalangalila submitted that Arbitrator correctly awarded the respondent 48 months salaries after taking into account the evidence before him and time the respondent had worked for the applicant. As regard to 487 days subsistence allowance Mr. Malangalila submitted that the respondent asked for· such arelief in 5 bullet th of annexure of CMA FORM 1. He! said, the Arbitrator rightly awarded the respondent as required under Sectio11 43 (1) (c) of the Employment and Labour Relation? Act. Having gone through the records of the CMA, the court record and the submissions made by the parties, the court have the following views; I On the first point, that the Arbitrator's decision does not qualify to be a decision as it lacks the qualities of the decision of the court. In his submission the applicant maintained that the 6 Arbitrator did not evaluate the evidence and he left the issue ' unresolved at page 3 of the award. According to Rule 27 (3) of ' GN.67 of 2007 an award shall contain details of the parties, issues in dispute, background information admitted between the parties, I summary of the parties evidence and arguments, re.asons for the decision and the order. I went through the award of CMA, it is crystal clear that the Arbitrator evaluated the ~vidence and argum,ents of parties. The Arbitrator raised and discussed three issues which led to his decision that' contained. the reasons for, which are, I quote; I i. Je kulikuwa na sababu halali katika kusitisha ajira ya mlalamikaji? Meaning, was the , reasons for termination valid? ii. Je, taratibu halali zilifuatwa katika kusitisha ajira ya mlalamikaji? Meaning, whether proper procedure I was followed before termination of the respondent's I employment. iii. Nini nafuu ya kilq upande? Meaning, wbat are parties entitled to. In determining the first issue the Arbitrator di.scussed all the reasons for termination as stipulated in -the letter of termination, Exhibit "C" and the Exhibits in the record. He made a thorough 7 . ! discussion from page two (2) up to page (10) of the typed decision where he decided at the second paragraph of page ten (10) that, I quote; "Katika kuthibitisha kama kulikuwa na sababu halali ya kusitisha ajira ya mlalamikaji, tume imeona mlalamikaji hana kosa hata moja. Mashah~di w,a ml.alamikiwa waliieleza tume uongo kwamba mlalamikiwa alikutwa na hatia katika kikao cha nidhamu lakini ushahidi umeonesha kwamba hakuna popote katika muhtasari wa kamati ya nidhamu ambapo ilisemekana kwamba mlalamikaji kakutwa na hatia na wala hakuna mapendekezo yoyote kutoka kwa kamati hiyo kuhusu hatua za kuchukuliwa mlalamikaji. Huu ni uvunjifu mkubwa wa sheria na Tume inaamini sababu hizi zililenga kumkandamiza mlalamikaji." What he meant in that finding is that nothing in the applicant's evidence at the CMA which shows that the disciplinary committee found the respondent guilty for the offence that she was charged. Not only that but also no proposed or recommended disciplinary action that was in the report of the disciplinary committee constituted by the applicant himself. Therefore the CMA found the charges against the respondent were not found in law. 8 In my view the Arbitrator findings on this issue was correct as there was no evidence from the CMA proceedings, . that justified the applicant decision to terminate the respondent's employment. Exhibit "G" the disciplinary committee report is silent on whether the respondent was found guilty for the charged offences and no action against her was proposed by such committee. As regard to the second issue the Arbitrator found the procedures were not followed and he gave four reasons for his decision. The first reason, that, I quote; "kwanza, sababu ni za kulimbikizwa na zilipaswa kila tukio linapotokea lishughulikiwe kwa wakati muafaka kwa lkumjulisha . mwajiliwa iii aweze kujieleza na ndipo kama kuna haja ya kuitisha kikao cha nidhamu jambo hilo lifanyike mara moja laki~i hili mwajiliwa · amekuja kuambiwa kwa ujumla kwamba ana makosa kadhaa ya vipindi tofauti" Meaning, the reasons for termination were cumulative which were supposed to be determined each on its appropriate time by informing the employee and where there was a need to convene a disciplinary committee were to be done promptly. However that was not done by the employer. 9 The second reason being, I quote; "k.atika barua ya tuhuma dhidi ya mlalamikaji yaani kielezo "A", mlalamikaji ametuhumiwa kwa sababu saba tu ambazo ndizo alipata fursa ya kuzijibu kama ilivyo katika kielelezo "BIV ambayo ni majibu ya mlalamikaji kuhusiana na tuhuma saba dhidi yake lakini katika barua ya kusitisha ajira ya mialamikaji yaani kielelezo "C" kuna sababu kumi na moja za kusitisha ajira ya mlalamikaji. Hii inamaanisha kwamba sababu nne mlalamikaji hakupata fursa ya kuzijibu iwe kwa mwajiri au kwenye kamati ya nidhamu." This 111eans, the letter ( exhibit "A'1 which contains charges against the complainant (respondent) had only seven charges and was replied accordingly as per exhibit "B". However her termination letter ( exhibit "C'') had eleven reasons for termination. That means the complainant was not availed opportunity to reply on the added four reasons neither to the employer nor to the disciplinary committee. The third reason was, I quote; "Mwajiri alipaswa kumwandikia mlalamikaji baada ya shauri kuhusu maamuzi yaliyotolewa. Hii inatamkwa bayana katika kanuni ya 13 (8) Tangazo la Serikali namba 42 la mwaka 2007, ...... Lakini hata muhtasari wa kikao cha nidhamu 10 hakuna popote palipoandikwa kwamba mlalamikaji alikuwa na hatia katika tuhuma zake na wala hakuna mapendekezo yoyote ya kamati hiyo kuhusu mlalamikaji kuchukuliwa hatua kama kungekuwa amepatikana na hatia yoyote." Meaning, the employer was supposed to inform the complainant the decision of the disciplinary committee as provided under Rule 13 (8) of GN.42 of 2007. Even the minutes of disciplinary committee did not disclose wh~ther the complainant was found guilty for all the charges against her and no proposal or recommendations were made for the disciplinary action to be taken against her. Forth reason, I quote; " •• •• katika kielelezo 'G' ambao ni muhtasari wa kikao cha kamati ya nidhamu kamati haijasema imemkuta mlalamikaji na hatia, Tume haielewi mlalamikiwa alifanyia kazi maamuzi yepi mpaka kufikia kusitisha ajira ya mlalamikaji. Huu ni ukiukaji mkubwa wa sheria katika utaratibu wa kusitisha ajira ya mlalamikaji" That means, in the minutes for disciplinary committee (exhibit "G') no where it is stated by the respective committee that the complainant was found guilty, so the CMA never understood the 11 I ' I reasons which made the employer to terminate the, employment .of the complainant. That act was contrary to the p~ocedures for terrnination of employment as provided in labour laws. So those were the reasons g'iven by the Arbitrator in detern1ining the second issue at the C~A. In determining the third is?ue t~e Arbitrator considered the prayers as stipulated in the CMA FORM 1 in th~ _record and discussed it thoroughly from page ·11 th to 13th of the typed decision before reaching his decision. 1 I Therefore from what I have gathered on record and my discussion above I totally disagree with the applicant that the Arbitrator did not evaluate the evidence, it is clear that the I Arbitrator's decision, contains all the ·ingredients of the award as stipulated under Rule 27 (3) of GN.67 of 2007. 1 In his submission the applicant said the Arbi'trator did not detern1ine the first charge against the respondent that is whether the respondent closed the gate or not. It is clear from page 3 of I the award that the Arbitrator when determining the first issue discussed all the reasons for the applicant's termination including the first point. The Arbitrator held inter alia that, I quote; 12 "tume inachozingatia hapa ni kwamba iwe mlalamikaji alifunga geti au hakufunga cha msingi ni kwamba alisamehewa na maisha ya kazi yakaendelea kama kawaida kama barua ya kusitisha ajira ya mlalamikaji kielelezo "C" inavyojieleza." Meaning, CMA considered whether the complainant did close the gate or not, but importantly here is that she was forgiven by her employer for that act and continued with her work as it is evidenced by exhibit "C" the termination letter. Looking on the records, that is exhibit "C" it states clear that the respondent committed the offence on 16/07/2010, she was cautioned, forgiven without any disciplinary action. Therefore, the Arbitrator did not find it prudent and if there was any justification for the applicant decision to terminate the respondent for the offence which the applicant had forgiven her. Therefore in my view the Arbitrator correctly decided not to consider whether the respondent closed the gate or not as a. ground or reason for the respondent's termination. In that regard I find nothing to fault the Arbitrator's award on this point. As regard to the second point, contrary to the CMA decision, by the time parties agreed the dispute to be heard the relief sought by the applicant was thirty six (36) months salaries as 13 shown in the referral form, that is CMA FORM 1. In the award the • I Arbitrator awarded 48 months salaries extra to what was claimed in the referral form. It is the position of the court in Revision No,.36 of 2007 between Power Roads (T) LTD vs. Haji I On,ari Ngomero where, Hon. Mandia, J (as he then was) held that; "... there is no provision in the Employment and Labour Relations Act; or in the 'Labour Institutions Act; particularly section 20 on powers of Mediators and Arbitrators, allowing .Mediators and Arbitrators to make changes, suo moto, on what appears on the 'referral form. The additions made by the arbitri(ltor are therefore illegal and set aside... " Therefore I fully agree with the applicant counsel on this point and I take the above position of the court and decide that, the Arbitrator award of 48 months salaries as compensation to the respondent is revised to reflect the amount claimeo in CMA FORM 1, that is 36 months salaries. The respondent is therefore entitled to 36 months salaries only. As regard to the payment of ?ubsistence allowance of 487 days awarded to the respondent, it is clear from the records that 14 is ANN 'EN-A1 in CMA FORM 1 that the respondent claimed for • nights allowance from the date of termination to the date of payments of terminal benefit. The Arbitrator awarded the respondent subsistence allowance to the tune of Tshs. 19,480,000/= from the date of termination to the date of the award which was 487 days. The law under Section 43 (1) (c) of the Employment and Labour Relations Act provides that; "{1} where an employee's contract of employment is terminated at a place other than where the employee was recruited, the employer shall either- { c} pay the employee an allowance for transportation to the place of recruitment in accordance with subsection {2} and daily I subsistence expenses during the period, if any, between the date of termination of the contract and the date of transporting the employee and his family to the place of recruitment." From the provision above and what are in record of the court there is no dispute that the respondent was not transported to ' her place of recruitment as required in law and that being the 15 case is entitled to night allowance or subsistence allowance I whichever the name, from the date of termination t0 the date the applicant will finally effect the transportation of the respondent to the place of recruitment. Therefore in my view, the Arbitrator's award need to be revised as the respondent is regarded to be at her working station where her emp'loyment was terminated to date, that is what I do and the applicant is ordered to pay the respondent subsistence allowance from the date of termination to the date of transporting the respondent to the place of recruitment. Under the circumstance, I find no reason, to fault the decision of the arbitrator at the CMA, and I accordingly dismiss this application and confirm the award as well as the reliefs granted saves for the correction of 36 months salaries and subsistence allowance. It is so ordered. I.D.ABOUD JUDGE 21/11/2013 16 • I .Date: 21/11/2013 Coram: Hon. I.D.Aboud,J I I Applicant: i I i For Applicant: Mr. Mwamgiga, Advocate \ Respondent: Present i For Respondent: Mr. Malangalila, Adv~cate I CC: J. Mbasha , i i Order: Judgement delivered on 21/~1/2013 in th~ presence of Mr. Mwamgiga, Advocate for the A+licant and Mf, Malangalila, Advocate for the Respondent. . The respondent I is also present. i ·</-~. . '1'.·"'· /' . I I.D.Aboud JUDGE . ·.• 1· ··•• ,• • . _, 21/11/20]3 !! I 17