securex security and alarm company t limited vs monica cosmas michael 2021 tzhcld 321 24 august 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LABOUR DIVISION) AT DAR ES SALAAM LABOUR REVISION NO. 139 OF 2020 SECUREX SECURITY AND ALARM COMPANY (T) LIMITED...................... APPLICANT VERSUS MONICA COSMAS MICHAEL............... /RESPONDENT JUDGEMENT S. M, MAGHIMBLJ, The applicant filed the present application^ under the provisions of Section 93 (1) of the Employment and Labor Relations Act, No. 6 of 2004, and Rules 24(l),(2)(a)(b)(cXd)(.ferand 24(3) (a)(b)(c)(d) of the Labor Court Rules, 2007, G.N. No. 106/2007 seeking revision of the decision of the Commission^ for Mediation and Arbitration ("CMA") delivered on23/01/202$by Hon. J. Gerald, Arbitrator in Labour Dispute $ No. CMA/DSM/KIN/R.800/18/181. She is seeking for the following orders 1. This Honorable Court be pleased to call for records, inspect, examine such records therein and its proceeding to satisfy as to the correctness, rationality, propriety and legality of the Award of the Labour Dispute No. CMA/DSM/KIN/R.800/18/18r 1 delivered by Hon. J. Gerald, Arbitrator on 23rd January, 2020 and served upon the applicant on 09th March, 2020. 2. This Honourable Court be pleased to revise and set aside the whole proceedings and subsequent Award of the Dispute CMA/DSM/KIN/R.800/18/181 delivered by Hon. J. GERALD, Arbitrator on 23rd January, 2020 and served upon the applicant on 09th March, 2020. <5 3. Any other relief this honourable Court may deerrKfit and just to grant. The application is supported Jjy^h^affidavit of Ms. Elizabeth Kayawaya, applicant's Legal Officer dated}03rd day of April, 2020. The % A respondent vehemently challenged^the application by filing counter affidavit deponed by his'personal representative one Cosmos Kumalija Maige on 06th August,^2020: The ground upon which the applicant is seeking revision are^asToliows: i.x^That/Jhere was no proof of termination. ii. That^the Arbitrator failed to properly analyze evidence adduced. iii. That, the Arbitrator erred to order the payment of Tshs. 3,240,000/= as 18 months pay out of work and reinstatement as there was no termination. 2 The matter was argued by way of written submissions, the applicant's submissions were drawn and filed by Ms. Grace Msuya, learned Counsel, while Mr. Cosmas Kumalija, Personal Representative drew and filed the respondent's reply submissions. On the first ground of revision, Ms. Msuya submitted that the </ Z-v respondent was employed on 02/04/2017 as a "Security Guard and worked for the applicant for almost 7 years. That her relationship with the applicant was good until when she startedigpingtto work late and took her job for granted by abscohding^pm work without prior information. That due to due ’to continued^ series of abscondment, the company called the respondent irito^a"disciplinary hearing but she did ' Xx Xx not appear and decided, to refei^the dispute to CMA. __ Xx VX. Ms. <Msuya-cdn{inued to submit that at the CMA, the respondent claimed that^she^was on a sick leave and the Arbitrator relied on her \ S * f XsJ\ testimony witnout any proof thereof. She strongly argued that the Xx respondent was never terminated from work but she left on her own accord. It was further submitted that the respondent did not show interest in her job when she neglected to attend a disciplinary hearing, therefore 3 it was improper for the CMA to award the respondent while there was no termination at all. The learned Counsel further contended that, the Arbitrator failed to properly analyse the evidence presented before him arguing that the respondent had a duty to prove that she was terminated as it is the principle under section 110 of the Evidence Act, [Cap 6 RE 2019]; that the one who alleges must proye^provided % w As to the award of 18 months salaries, Ms$$lsuya suBmitted that, the respondent was not terminated form employment thus the Arbitrator %. wrongly awarded her. To support her^bmission^she referred the Court Z'-’* ts to the case of Exim Bank (Tanzama)^Limited v. David Mumbii, .. Xs Rev. No. 445 of 2016 andbrged the Court to revise the CMA's award. Responding to.t^l^s.^suya's submissions, Mr. Maige first prayed (pXpJ" that the courtaddpt.the. respondent's counter affidavit to form part of _ \\ his submission.^He£then submitted that the application at hand should V’V r>' ’-.X. be aismissed^because the Arbitrator properly analysed the evidence X/ before him and reached to a just conclusion. That the respondent presented evidence at the CMA to prove that she was terminated from work and that she remained with the companies' properties as evidence on her case. 4 It was further submitted that, the applicant wrongly proceeded with ex-parte disciplinary hearing of the respondent without any effort of summoning the employee in question to the relevant meeting. It was firmly submitted that, the disciplinary meeting was held in violation of the principles of natural justice emphasized in a range of cases. He si? therefore prayed for the CMA's award to be upheld.^Xx % X V Having considered the rival submissions the parties, Court's records and the evidence adduced during trial, Kfind that the main issue in controversy is whether the resp'ondent'fwas terminated from employment to have entitled her to bring^an action before the CMA. % & Having so determined iserwhenX;this court will see whether the compensation awarded<tothe respondent was proper and just under the circumstances.^ Ongth'ekfirstJssue as to whether the respondent was terminated from\employment, according the records, during trial, the applicant strongly disputed the fact that she terminated the respondent. The evidence was that the respondent absconded from work and when she was called to attend the disciplinary procedures, the disappeared and emerged at the CMA having lodged the matter that is a subject of this revision. Under the circumstances, the issue is whether the respondent 5 was terminated, whether substantively or constructively, to have entitled her to bring an action against the applicant. In proving termination, the burden shifts to the employee to show that she was actually terminated by an employer unless the issue of termination is not disputed at the hearing. The duty^of ..the employer under Section 39 of the Employment and Labor Relations Act^Gap. 366 R.E 2019 (ELRA) is to prove that the termination(was fair. Looking at X.\ the evidence adduced during trial, in her<testinjony;"at the CMA the X respondent testified that she was on^sick^leaye^and received a phone call from the applicant's Human Resource? named Joyce Mwacha and received information that^she was'y terminated from employment. Glancing on the records3±here is no any exhibit tendered by the respondent to prove xthat"she was on sick leave, neither is there evidence^of, th'extermination. During cross examination, the respondent admitted that all disciplinary actions are communicated through official XX ^xx letter, inparticular, her testimony was that: 'Sikupewa wito na wa!a sikukabidhiwa barua yoyote ya mambo ya nidhamu na mawasi/iano yote hayo yanafanyika kwa njia ya barua ya kiofisi.' From the above respondent's testimony, it is clear that she is aware that all issues on disciplinary matters were communicated through 6 official letters. She however failed to tender any letter of termination served by the applicant. Under such circumstance, it is my view that the respondent failed to prove that she was terminated from employment hence the allegation that she was terminated through phone call is not supported by any evidence. Further to that, if the respondent claimed that'she^was siciPduring the material duty, she was duty bound to provejthe sickness. However, all documents tendered showed her sickness 'during“_an earlier period and not the alleged time. I therefore^agree iwith-the submission by the applicants Counsel that there^were "hoxbocuments proving that the 'K. bX /I / respondent was on sick leave hence^did not support what was alleged On the basis of the above findings, I find merits in this application and therefore proceed to grant it. The Award of the Arbitrator dated 23rd January 2020 in 7 In the result, having found that the respondent was not terminated from the employment, I hereby quash and set aside the Arbitrator's award of 18 months salaries to the respondent. It is so ordered. It is so ordered. 8