20140821 TZHC Dar es Salaam 2

r.--: ·,,/' / j~ . ,J?c ,,}/ INTHEHIGHCOURTOFTANZANIA ~ LABOUR DIVISION AT DAR ES SALAAM ✓ REVISION NO 401 OF 2013 SALUM OMARY MAVUNYIRA........... :............................. APPLICANT VERSUS THE DIRECTOR GENERAL NHC ....................................... R (Original/CMA/LIN/LD/ARB/03/21 /2\1 2417/2014 & 21/8/2014 R.M. RWEYEMAMU J.; ~ffE>G The applicant filed l dis put} · · .;, unfair termination against the respondent/employer in the C itnission 0r:Mediation and Arbitration (CMA). His claim ·nvalid reason (substantively unfair), and that it was not · n a,d award issued on 23/3/2013, the CMA Arbitrator decided r termination of the complainant were valid, although not all of · .:res for termination were not fully con:iplied with. For that reason, the re ,~en. · ordered to pay t~e applicant, equivalent of 12 ~onths' sala~ as compen-s-'°n. The sum to be so paid was Tshs. 12,420,000/=; c) '... smce the applicant was terminated on disciplinary grounds, he was entitled to terminal benefits as per Section 39 (i) of the National housing Corporation Staff Regulations, 4th Edition as published in August 2010. 1 Each party was aggrieved by some aspects of the above decision. The applicant seeks revision on ground basically that: a) The Arbitrator erred in ordering compensation in terms of Section 40 (1) (c) instead of reinstatement under Section 40 (1) (a) of the Employment and Labour Relations Act, (ELRA) 6/2004. And b) That the Arbitrator erred in ordering terminal benefits in terms of the NHC Staff Regulations which do not include benefits under Section 43 (1) (c) of the ELRA. c) The respondents e Arbitrator's decision, save for the order of compensation. At the hearing of this application, the employee employer appeared through Mr. Msuya assisted by Mr. M dvocates. Hearing was by way of written submission. At the outset, I wish "l.1 appreciation of the respondent's arguments in submissions, which questions presented by this case: I pro,.:eed to questions, parties' arguments and my decision thereon as follows: 1. Whether or not, an Arbitrato o order reinstatement of an employee following a finding of unfa'r ~►-:- ··. t the Arbitrator was enjoined to make an order of of unfair termination. The employer's response was that n (where 'circumstances surrounding termination were such that elationshi would be intolerable to order payment of compensation rng Section 40 (1) (c) of the ELRA read together Rule 32(2) of the Labour ...........= =...........==--=____.....,.;:,.:.=--"-=u=id=e=lin=es~R=u=le.:.,,s GN No. 67/2007.My observation and decision on the above question is; a. Following a finding of unfair termination, an Arbitrator has discretion to grant any remedy specified under Section 40 (1) (a) to (c) of the ELRA; but: 2 I. \ b. In this case, it is undisputed that termination of the employee was for a valid reason but was unfair on procedural grounds only. Under such circumstances, it would not be a proper use of discretion for an Arbitrator to order Reinstatement- See provisions of Rule 32 (2) (d) of GN 67/2007. c. The Arbitrator's decision not to order reinstatement was proper in law, not because there were circumstances making continued employment in. olerab but because termination was procedurally unfair only. ~ 2. Whether procedural unfairness (irrespectiv~ of exte ~ -~quences of flouted 'v: procedures), justify/enjoins the Arbitrator to awq, ;S.ation in terms of Section '\~ 40 (1) (c) of the ELRA. J having found that the employee had committed a serious miscon at; despite failure by the Disciplinary Committee to -~ nearing which would have formally informed the o a higher authority, the employee was not prejudiced ·nairman of a registered trade union he could have appealed .·decision if he _so chose. The employee made no response on the rson's understanding, _any unfairness justify a higher penalty of My decision on this question is; grant of remedy under section 40 (1) of the ELRA is discretionary. In the circumstances of this case, grant of the compensation was not illegal, because even though there was a degree of unfairness in the procedure, thl flouted 3 procedure was not fatal to justify grant of compensation of 12 months' salary. The fundamental requirements of procedural fairness, i.e.; disciplinary proceedings were conducted, the employee was granted the right to be heard; only missing was use of a prescribed form - a minor and in this case, inconsequential discrepancy. Under such circumstances, grant of 12 months' salary was unjustified. Using powers vested in this Court, I quash the award of 12 months' salary and replace the s me compensation in the sum equivalent to 6 months salary. 3. Whether it is proper for the Arbitrator to order p" .~Jerminal benefits in '\.~, accordance with an employer's scheme instead.- . scribed under section 43 .,,~} (1) (c) and 44 (1) (e) of the ELRA. In this case, the employer's staff regul to employees terminated on discipli 'i .its from respective pension scheme entitled leave days o self and the family to place of domicile •~ portation of personal effects to place of domicile ,• Aft parties arguments, in light of facts of the case and the law, I make the I0n and decision on the above question; a. The ELRA prescribes Minimum Standards to parties in an employment relationship. The law however, does not prevent the parties from agreeing on better terms and conditions of work than those prescribed by law. What is prevented is to agree on lower terms. 4 ~· '·-r~ \' \ b. Under the ELRA employees are entitled, on termination, to repatriation to place of recruitment, this standard is lower than 1that provided in the National Housing .' Corporation staff regulations, which provides for repatriation to the place of domicile. c. Where parties contract of employment governed by terms and conditions, not necessary to apply standards provided under the ELRA. I d. It is true that a terminated employee is entitled to subsis nce,l'/a·Howance while awaiting repatriation. In this case however, it was undis-. ti:·}, pl . ~ was repatriated to place of domicile on same d'ay : of termination. A subsistence allowance, which is provided und~r Sec i . . .,, µch, e issue of 3 (1) (c) ofthe ELRA, did not arise. e. Again, Section 44 (1) (e) of the ELRA refer ·~.e pay. My decision is that the employee was not entitle~J2~ tha'f-' :.a under section 42 (3) (a); severance is not payable to "-I a fair /(§ JO on grounds of misconduct" Following finding that termination wa~. for \ ~ n ; it is my decision this ground has no merit and is hereby dismist ·,. ·· · . he compensation order, this application is found to .I s '. I Date: 21/08/2014 Coram: Hon. R. M. Rweyemamu, J Applicant: Present in person For Applicant: Respondent: For Respondent: Ms. E. Misso Advocate CC: Happy Court: This case is for judgment. Judgment delivered this 21/08/2014 in presenc@\, Right of Appeal Explained JUDGE .it?,:;:..,;--.>: 1/08/2014 ' 6