scania tanzania ltd vs humphrey dominician ponera 2022 tzhcld 690 30 june 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM LABOUR REVISION NO. 50 OF 2021 (From the decision of the Commission for Mediation and Arbitration of Dar es Salaam at Kinoridoni dated 21st day of December 2020 in Labour Dispute No. CMA/DSM/ILA/19/2020 (Ngaruka: Arbitrator) BETWEEN SCANIA TANZANIA LTD................................................ ^...^APPLICANT VERSUS HUMPHREY DOMINICIAN PONERA............................ ....RESPONDENT JUDGMENT This is an applicatiq^^e^g^for this court to call for the record of Commission for^^^bb^ and Arbitration in Labour Dispute No. CN!A/DS^IlI^fez202d for this Court to satisfy itself as to the coi^ectne^^ationale and propriety of the findings and the award issi^^tj^in. The application further seeks for this court to revise, quash and set aside the said award and its proceedings and determine the dispute on its merit. From the record of CMA, the affidavit of the Applicant and the submission in support of the Application, it appears that the Applicant i employed the Respondent as a service advisor on a permanent contract which commenced from 19th February 2018 with a monthly salary of TZS 1785,000. In September 2019, under disciplinary proceedings, the Respondent was charged with the offence of stealing some spare parts and found guilty. The employer initiated criminal proceedings where the Responden wa'^^^jec^fltfl^the offence of stealing at Buguruni Primary Court Ilala "District. The charged with. On what the applicant afiegedXtc। nave the Applicant's abscondence from work and ^^ng^^^ findings of the disciplinary proceedings which confirmed the^ofence of stealing as charged, the respondent was terminated^f^n the employment. The ternto^^^^^ed^the Respondent who lodged a complaint in the matter commenced by a failed mediation and tfren arbi^^on proceedings. In the arbitration, the arbitrator considered the fairness of the reason and procedure in terminating the applicant therein (the instant respondent). The arbitrator found both the reason and the procedures to be unfairly observed and ordered the employer who is the instant Applicant to pay all statutory 2 terminal benefit and 12 months salaries as compensation ail making a total of TZS 31,786,839.00. In this application, the Respondent never responded to the application. He was initially represented by one Nehemia Munga, Personal Representative who appeared on 19th Aprik20Mand later by one Sammy Katerega, Personal Representative wnoapp^eaped on 11 October 2021. In all other dates when the^ljtter wasxalled, the Respondent was recorded to be absent he.^^^^^irt ordered the matter roceed ex parte and by waW^r^n submissions. Having considered the submissj^^^^tneapplicants, I am inclined to address the issue as t^^rether the plic has established sufficient grounds^<^^rtrant revising of the CMA award. The first argilim^tss^^^^ applicant's challenged the propriety of t respond^kmj^ng the decision in the criminal case in deciding the rrw^wCJbt being satisfied as to which decision came first betweenthe disciplinary decision and the criminal judgment. Having narrated the evidence of DW1, Exhibit tendered RD 4, and Exhibit RD 5 the applicant is of the view that the reason of termination was the Respondents abscondence and not the criminal case. 3 I have gone through the proceedings and the decision of the CMA. It is true, there was evidence which alleged the respondent to have absconded from the work from 30/9/2019 to 30/10/2019. Throughout the decision of the CMA, I could not find anywhere the evidence of abscondence was considered. I agre^wjiwhat the Applicant's counsel submits that abscondence isKoneWoP the disciplinary offences which can warrant to tern^ation of employment under Rule 9 (1) of the Employment^md Labour Relations (Code of Conduct) Rules, J|N. as prescribed in the list of offences under d^^linary^i^ocedures. Could the CMA addressed itself on the e^fence of^oscondence, it could have come up with a different <nd^g, Wit:h regards to reasons for termination. The teri^naton^^^^/hich was served to Respondent clearly shows that the^^^to^was terminated on reasons of abscondence. From ti^oreg<|r^I differ with the arbitrator's findings on the issue of reasons^/ As to whether the procedure for termination was correctly followed is another question to be determined. The Applicant's counsel is of the view that the act of the Applicant making efforts to find the Respondent through various means of communication amounts to 4 observance of appropriate procedure. Termination of employment is guided by Rule 4 of the Rule 4 of the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedures Embedded in GN. 42 of 2007. It provides:- "( 1) Senior managers should be appointed as chairperson to convene a disciplinary hearing in the event (a) further misconduct following a writ&^yarningor warnings or (b) repeated written warnings offences; or (c) allegations of serio^miscop^^ such as those referred the Rules relating to le^ngjjon of employment, and which could on their a final written warning or dismissal. In the ^eyldgjsi^^^^employer did not show if there was any discipIin^Ffemeeti^ which dealt with abscondence apart from the one wffich was^field prior to the said abscondence. The applicant's counsel escaped to address whether there was a disciplinary meeting which was held to decide the fate of the Respondent after abscondence. At this point, having found no disciplinary meeting held to discuss the termination, I see no reason to differ with the 5 arbitrator in finding the termination to be unfair in terms of procedure. Now what follows is the rationale of the reliefs. The arbitrator awarded the statutory terminal benefits and compensation of 12 months salaries. This has aggrieved the applicant who Jias opinion that it is too much for a matter where terminationv/aMfair irifehns of reasons. In determining the reasonability of th%^lief, I wiPbe guided by the finding of the Court of Appeal Rutwaza vs. World Vision Tanzania (Civil AfpM1^03 of 2019) [2021] TZCA 2. The Hon. Justices o^^pe^ha^ne following to state:- ’We find it conveniedtbto start^with the complaint on compensation which was theappellai^^^one of contention in ground 4. The learned Judge discu^^^^^ejnedies flowing from unfair termination in the fighf^q^dction^40^(l) (c) of the ELRA and held, (at page 225 of the refarfy^fei^Is not mandatory that in all cases of unfair termination, ^W/?e arbitrator should order compensation of not less than 12 months' remuneration. In the context of the case in which the unfairness of the termination was on procedure only, guided by some decisions of that court, the learned Judge reduced compensation from 12 to 3 months. With respect, we agree with her entirely. In Sodetra (SPRL) Ltd. v. 6 Mezza & Another (supra) referred to by Mr. Mkumbukwa, the High Court (Rweyemamu, J.) interpreted section 40 (1) (c) thus:- "...a reading of other sections of the Act gives a distinct impression that the law abhors substantive unfairness more than procedural unfairness, the remedy for the former attracts a heavier penalty than the latter^(at$Mg^^ty^ We respectfully subscribe to the above interpretation, for we think it is founded on logic and common sense; it reflects a correct interpretation of the law. Under the circumstances, since the learned Judge found the reasons for the appellants termination were valid and fair, she was right in exercising her discretion ordering lesser compensation than that awarded by the CMA. We sustain that award" From the abov^dec^ion^it Is apparent that each case must be considered^oi^it^ovyn^ircumstances when it comes to assessment of compei^ton^^e Respondent having been terminated on fair reason du<3W’0> abscondence which falls under a serious disciplinary offence, the Applicant only errored in not holding disciplinary hearing. This happened after another disciplinary hearing which confirmed the Respondent to be involved in a theft incidence although acquitted in a criminal charge. All these indicate that there was a very good reason to terminate the respondent's employment if the procedure 7 could have been correctly followed. In my view, this is an appropriate case to apply the wisdom in the case of Felician Rutwaza supra to find that compensation of 12 months salaries is excessive in the circumstances of this case. This calls for a need to revise the CMA award. In the above reasons, it is my finding that the issuers to wither the applicant has established sufficient^^iunds to! warrant revising of the CMA award is answered<^ ^^ei|. From the foregoing I hereby revise the CMA by reducing the compensation from 12 months remuneration. All other contents of awa^^^'emain undisturbed. The application is therefore allowe±toJlW extent. It is so ordered. Dated at DMe^Salaam this 30th day of June, 2022. B 5KATARINA REVOCATI MTEULE JUDGE 30/06/2022 8