sam frost east africa ltd vs laurian waijah 2020 tzhcld 8 4 september 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 01 OF 2020 BETWEEN SAM FROST EAST AFRICA LTD........................................APPLICANT AND LAURIAN WAD AH.................................................... RESPONDENT JUDGMENT Date of Last Order: 17/06/2020 Date of Judgment: 04/09/2020 A.E, MWIPOPO, J. Aggrieved by the Award of Commission for Mediation and Arbitration [herein after to be referred to as CMA], the applicant SAM FROST EAST AFRICA LTD has filed this application for revision praying for the Court to call for the records of the proceedings in Labour Dispute No. CMA/DSM/ILA/R.689/18/522/125, revise and set aside the Arbitrator's award issued by Hon. Igogo, Arbitrator on 13th December 2019. The applicant is also praying for Cost to be provided for, and any further orders this Court deem fit and just to grant. The application was supported by the affidavit of i Adam Stanislaus Moshi, Applicant's Principal Officer. The affidavit contains three grounds of revision as follows; 1. The dates concerning Respondent's tenure of employment contract stated in the last paragraph at first page are at variance with those at page 5 and 6 of the Judgment. 2. The Arbitrator erred both in law and facts in holding that the respondent had been working under fixed written renewable employment contract since February, 2016 without any proof. 3. The Arbitrator erred both in law and facts in entertaining the respondent claim for unfair termination. The respondent one LAULIAN WAIJAH filed a counter affidavit challenging the application. The background of the dispute in brief is that the respondent was employed by the applicant on fixed term contract from 2nd February 2017 to 31st April 2018 in the position of welder with a monthly salary payment of shillings 500,000/=. The respondent was terminated by the applicant for Absenteeism. The respondent was not satisfied with the applicant's decision and he referred the matter to the CMA. The Commission heard the dispute and find the respondent was unfairly terminated. The Commission awarded 2 a compensation of 11 months' salary compensation to the respondent. The applicant was aggrieved by the CMA award and he filed the present revision application. At the hearing of the application, both parties to the dispute were represented. Mr. Mashiku Sababa Advocate appeared for the applicant whereas Mr. Jackson Mhando Personal Representative appeared the respondent. With the leave of this Court, the matter was disposed of by way of written submissions. In support of first ground of the revision application, Mr. Sababa submitted that the CMA's award is tainted with factual fatal errors which erode its authenticity and validity. This is clearly seen at page one of the Commission award which show that the contract was supposed to expire on 2nd February 2018, while at page five show that the contract is going to expire on 30th April 2018. Page six of the same CMA's award shows that the contract was supposed to expire on 30th April 2017. The noted errors have a negative legal impact on the validity of entire judgment as the contractual tenure is not clearly stated. The applicant submitted on the second ground that there was no sufficient proof that the respondent had been working under fixed renewable 3 contract since he failed to tender a copy of the alleged renewable employment nor any document showing that he was working with the applicant's Company since February 2016. It was submitted that the only available exhibit to prove the fact is the contract tendered by the applicant which shows that respondent's contract commenced on 2nd February 2017 and was supposed to expire on 30th April 2018. Section 110(1) (2) and 112 of the Evidence Act shoulders the onus of proof upon any person who wishes the Court to believe in existence of a particular fact. Therefore, there is no evidence on record to prove that the respondent worked with the applicant before the time provided by the said employment contract. The third issue is that the Arbitrator erred both in law and facts in entertaining the respondent claim for unfair termination. The applicant submitted on the issue that the respondent had not attained the required minimum probation period of six months from the date of employment therefore she was not covered by Section 35 of the ELRA. Thus the Commission erroneously entertained the matter contrary to section 35 of the Employment and Labour Relations Act, 2004. The applicant prayed for the decision to be quashed and set aside for want of validity. 4 In reply, Mr. Jackson Mhando Advocate for the respondent submitted that the application is supported by the affidavit of Adam Stanslaus Moshi which is bad in law for contravening Rule 24 (3) (d) of the Labour Court Rules, G.N. No. 106 of 2007. The affidavit does not contain the relief sought contrary to the Labour Court Rules, 2007. The respondent submitted on the first ground of revision that the applicant failed to prove that the respondent was absent from his duty station as it was alleged. There is no evidence to prove on alleged absenteeism after the leave of 18 days ended on 27th May 2017 contrary to Section 111 of the Evidence Act, Cap 6 R.E 2002. The applicant has duty under section 15(6) of the Employment and Labour Relations Act, 2004, to produce a written contract or written particulars of the employment. The applicant also failed to prove that the respondent employment commenced on 02/02/2016 as he alleged. It was argued further by the respondent that Human Resources Officer - DW1 testified that he is the one who dealt with respondent disciplinary matter, but he also acted as Chairman of the Disciplinary Committee. Thus his impartiality was affect contrary to Rule 4(2) of G.N No. 42 of 2007. Therefore, the procedure for termination was not fair. 5 The respondent stated that he is not bound by section 35 of the Employment and Labour Relations Act, 2004, since he worked under fixed term contract for over one year from 2nd February 2016. The written contract is in custody of the applicant and he failed to produce it. Therefore, on that basis the arbitrator decided to award the respondent remained 11 months as the contract was supposed to come to an end on 30th April 2018. In rejoinder the applicant reiterated his submission in chief. He also responded to the allegation that the applicant affidavit in support of the application is defective for contravening rule 24 (3) (d) of the Labour Court Rules, 2007. The respondent argued that the respective affidavit has been sworn in support of the relief sought in both Notice of Application and Chamber Summons. I find it pertinent to determine the respondent proposition that the affidavit in support of the application is defective for failure to contain relief sought hence whole the application become incompetent. I agree with the respondent that the applicant's affidavit does not contain the relief sought as it is required by the Rules. However, I'm of the opinion that the alleged defects did not cause any injustice to the respondent since paragraph 10 of the affidavit in dispute states that the affidavit is deposed in support of the 6 relief sought in both Notice of Application and Chamber Summons. The applicant sought for three relief in the Notice of Application and Chamber Summons. The first relief is for the Court to call for the records of the proceedings in Labour Dispute No. CMA/DSM/ILA/R.689/18/522/125, revise and set aside the Arbitrator's award issued by Hon. Igogo, Arbitrator on 13th December 2019. The second relief sought by the applicant is for Cost to be provided for, and the last one is any further orders this Court deem fit and just to grant. Therefore, the defectiveness of the affidavit doesn't vitiate the application since the affidavit referred the relief in Notice of Application and Chamber Summons hence there is a chance for the respondent to find them. As a result, the respondent prayer is rejected. Now turning the issue(s) for determination in the present application, after going through the parties' submissions and the CMA's record there are two issues for determination of this matter. The issues are; 1) Whether the respondent was terminated from employment while still under probation. 2) What are the relief entitled to parties? The evidence available in the record prove that the respondent was employed by the applicant for a fixed term contract of 14 months. The 7 employment contract - Exhibit SI shows that the contract commence on 2nd February 2017 up to 30th April 2018. According to letter of termination - Exhibit S4 the respondent was terminated on 7th of June, 2017 for misconduct (absenteeism). Starting with the determination of the first issue whether the respondent was terminated from employment while still under probation, the relevant provision is Section 35 of the Employment and Labour Relations Act, 2004 and Rule 10 of G.N No. 42 of 2007. Section 35 of the Act provides that; 35. The provision of this Sub- Part shall not apply to an employee with less than six months' employment with the same employer whether under one or more contracts. Rule 10 of G.N No. 42 of 2007 provides for procedure for termination of employees who are under probationary periods of not less than 6 months. Rule 10(1) provides that all employees who are on probationary period of not less than 6 months their termination procedure shall be provided under the guidelines. The employer is obliged to follow the procedure provided under rule 10 otherwise the termination will be unfair labour practices and the employee will be entitled for remedies. 8 The evidence available shows that the respondent was employed under fixed term contract as evidence by Exhibit S-l (Employment Contract). The Contract commenced on 2nd February 2017 and was supposed to end on 30th April 2018. Under item 1 of the contract the respondent will be under probation for six months. Thus, as the respondent signed the contract he was bound by its terms. The respondent was terminated on 7th June 2017 which is about 4 months from date of commencement of the contract. According to item 1 of the Contract, the respondent by this time was still under probation hence his termination was supposed to be in accordance with rule 10 (8) of the G.N. No. 42 of 2007. Rule 10(8) of the Rules requires probation employee to be terminated after been informed of the employer's concerned and being given a reasonable time to collect the behavior. Rule 10 (8) of the G.N. No. 42 of 2007 reads as follows; 10 (8) Subject to sub-rule (1) the employment of a probationary employee shall be terminated if- (a) the employee has been informed of the employer's concerns; (b) the employee has been given an opportunity to respond to those concerns; (c) the employee has been given a reasonable time to improve performance or correct behavior and has failed to do so. In the present matter, there is no evidence which was tendered at CMA to prove an offence of absenteeism. Further, there is no evidence which 9 prove that the employee was informed of employer's concern, was given opportunity to respond to the concern and was given reasonable time to correct behaviour and failed to do so. It is just a word of DW1 Adam Stanslaus Moshi, applicant's Human Resources Manager, who testified that the respondent reported late for six days after the end of his 18 days leave. There is no attendance register or anything which proves that the respondent was absent from his duty station apart of DW1 testimony. The applicant conducted disciplinary hearing against the respondent according to the testimony of DW1 and exhibit S-3. However, the respondent being under probation there was no need to conduct disciplinary hearing which is a requirement under fair termination provisions. This court in the case of Happiness Geff vs. Wadhamini KKKT (Dayosisi ya Mashariki Ziwa Victoria), Revision No. 35 of 2013, High Court of Tanzania, Labour Division, at Mwanza, held that, I quote; " the Employment and Labour Relations Act embodies principles of fair labour practices in respect ofall employees irrespective of their categories; although such principle do not extend to coverage under unfair termination for all categories". io their categories; although such principle do not extend to coverage under unfair termination for all categories . Failure of the applicant to comply with rule 10 (8) of the GN No. 42 of 2007 amount to unfair labour practices. Thus, I find that the applicant act of terminating the employee was unfair labour practices. The last issue is that what are the relief entitled to parties? Since the Respondent termination was under unfair labour practice and by the time of termination still the contract had almost 11 months before it come to an end, I'm of the opinion that the respondent is entitled to be compensated for the less amount than that will be awarded to the confirmed employee. Thus, the applicant is ordered to pay 6 months' salary compensation to the respondent for unfair labour practices. Therefore the application is partly allowed to the extent discussed herein and the CMA Award is set aside. /? - F'W- JUDGE 04/09/2020 11