REVISION APPLICATION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA REVISION APPLICATION NO. 4 OF 2024 (Originating from Labour Dispute No. CMA/ARS/ARS/157/21/86 & 124/2021) SOA TANZANIA TRADING AS SENSE OF AFRICA........................ APPLICANT VERSUS RICHARD HENRY WAMEYO................................................ 1st RESPONDENT FRANK PATRICK NDOSSI.................................................. 2nd RESPONDENT PAUL DISMASS OLAL......................................................... 3rd RESPONDENT JUDGMENT 21/08/2024 & 23/10/2024 NDUMBARO, J Dissatisfied with the decision of the Commission for Mediation and Arbitration (CMA), the applicant has filed this application seeking for revision of the Commission Award that was delivered on 8th December 2023. The application was supported by an affidavit of Mr. Nassir Juma Swedi the Country Manager of the applicant. According to the affidavit, the applicant is seeking revision of the Commission Award on the following grounds; 1. That the Honourable Arbitrator erred in law and in fact by not taking into consideration the fact that the reason for termination was not disputed at all by the respondents. 2. That the Honourable Arbitrator erred in law and in fact by not taking into consideration the testimony of DW1 which showed that consultation was conducted. 3. That the Honourable Arbitrator grossly erred in law and in fact by treating the rules and guidelines in the Code of Good Practice as checklist that the employer has to follow without allowing room for the unique and varying nature of the hospitality and also the different circumstances of the applicant. 4. That, the arbitrator grossly erred in law and in fact by ignoring the submissions made by the learned counsel for the applicant in opening and closing which gave a sufficient legal basis to justify the termination of the respondents to be fair procedurally and substantially. 5. That the Arbitrator grossly erred in law and in fact by not analyzing and merely brushing aside the evidence provided by the applicant at the hearing that substantiated the validity of the reasons and procedures for termination. 6. That the Arbitrator grossly erred in law and in fact by ordering the applicant to compensate the respondents while the reason and procedure for termination were fair. The applicant thus prayed for this court to revise and set aside the award of the Commission and to declare that termination of the respondents was fair both procedurally and substantively. The respondents on the other hand opposed the application through their joint counter affidavit and they all prayed for the dismissal of this application for being an abuse of the court process. It is apposite at this juncture to give a brief background giving rise to this application is that the respondents were the employees of the applicant until 23/03/2021 when the respondents were terminated from their employment on reasons of operational requirements due to massive business turndown arising from the Covid - 19 global pandemics. Aggrieved, the respondents filed their complaint at the Commission claiming for unfair termination together with other terminal benefits. After hearing of the parties' evidence, the CMA delivered its award in favour of the respondents that they be paid 12 months' compensation by the applicant on reasons of unfair termination on procedural aspect. Dissatisfied by the decision of the Commission, the applicant has now filed this application challenging the award of the Commission. When the matter was scheduled for hearing, the parties opted to argue the application by way of written submission. While the applicant enjoyed legal services from Advocate Erick Stanslaus, the respondents on the other hand were represented by advocate Anthony Kazikodi. Submitting in support of the application, the applicant's counsel categorized the submission into two issues which were framed at the Commission. On the first issue, he submitted on whether proper procedures were followed in the retrenchment process and second, the counsel submitted on what reliefs are the parties entitled to. On the first issue, the counsel commenced his submission by citing the provision of section 38 (1) (a) (b) (c) (i) - (v) of the Employment and Labour Relations Act Cap 366 R.E 2019 which is the enabling provision of the law regulating termination on operation requirement (retrenchment). The counsel went on to submit that, pursuant to the above provision, the applicant followed the procedures as it is evident from the records that on 22nd February 2021 the respondents were issued with the notice for retrenchment and the same was receive by the Commission as exhibit D3. The counsel went further to state that, after the respondents were issued with the general notice, consultation meetings followed and the same was done between the respondents and the applicant and minutes of the said meetings were tendered at the Commission. According to him, the consultation meeting clearly showed the reason for retrenchment, measure taken to avoid retrenchment including unpaid leave, reduction of working hours and selection methods. The counsel faulted the decision of the Commission which denied that proper consultation was conducted. To bolster his argument, Mr. Erick argued that the minutes of the consultation meetings were not contested by the respondents indicating that they accepted, more so, the termination letters issued to the respondent made reference to the consultation meetings. All this indicated that before termination of the respondents' employment, the respondents were consulted. As to the issue that the minutes were not signed, the counsel submitted that this is not a legal requirement and that the Arbitrator ought to have considered the fact that the respondents did not dispute the substantive reason for their termination. With regard to the award of 12 months' compensation, the counsel submitted that this award is excessive taking into account that the 5 respondents do not dispute on the validity of the reason for termination and that they were issued with general notice and more so the respondents were all paid their terminal dues. To support this argument, Mr. Erick cited the following cases from this Court; Elizabeth Owen Chigala vs Thinamy Entertainment Limited, Labour Revision No. 13 of 2022, Lab Division at Dar es Salaam and Steven Nkomola vs Muhoji General Supplies Ltd, Labour Revision No. 179 of 2022 Lab Division at Dar es Salaam. Responding to the applicant's submission, the respondents maintained that the applicant did not follow proper procedures in particular on the consultation to the respondent. The respondents insisted that termination was unfair and therefore they are entitled to compensation. It goes without saying that, due to the spread of the decease (Covid- 19 pandemic), there were directions or orders relating to the lockdown of the Government offices as well as private sectors save few offices offering essential services. Therefore, people around the world were ordered to stay at home or avoid public gathering. In some countries, there was almost total lockdown unlike in our country. It is reported that, by April 2020 about half of the world's population was under some 6 form of lockdown. Thus, no adult person who was not aware of the pandemic or not affected in one way or the other by the same. See the decision of this Court in the case of Loishie Medutieki Mollel & 13 others vs Consolidated Tourist & Hotel Investment Limited & another, Labour Revision No. 79 of 2022, Labour Division at Arusha. It is ordinarily the requirement of the law that, the employers should not terminate an employee by way of retrenchment without issuing prior notice and without consultation with either the trade union or and employee where he/she is not a member of the trade union. This procedural requirement is provided for under section 38 of the Employment and Labour Relation Act which reads as follows; 38 (1) In any termination for operational requirements (retrenchment), the employer shall comply with the following principles, that is to say, he shall- (a) Give notice of any intention to retrench as soon as it is contemplated. (b) Disclose all relevant information on the intended retrenchment for the purpose of proper consultation; (c)Consult prior to retrenchment or redundancy on - (i) The reasons for the intended retrenchment; (ii) Any measures to avoid or minimize the intended retrenchment; (iii)The method of selection of the employees to be retrenched; (iv)The timing of the retrenchments; and (v) Severance pay in respect of the retrenchments, (d) Give the notice; make the disclosure and consult, in terms of this subsection, with- (i) Any trade union recognised in terms of section 67; (ii)Any registered union with members in the workplace not represented by a recognised trade union; (iii) Any employees not represented by a recognised or registered trade union. In the instant matter, it should be noted that from the beginning, the respondents did not dispute on the reason for their termination as they all acknowledged on the outbreak of the Corona virus which led into shutting down of offices in particular those in the Tourism Industry. However, it was their complaint that they were procedurally unfairly terminated. On the aspect of procedures, the respondents complained that they were not properly consulted, on the other hand the applicant maintained that the respondents were consulted and even their termination letters reflected what was agreed in the consultation meeting. I have had time to go through the records of this application, as the reason was termination is undisputed, I find that the issue to be determined by this court is on whether the CMA was justified to hold that termination of the respondents did not follow proper procedures. It is already provided above that the procedures for termination of employment on operational requirements (retrenchment) is guided by section 38 of the Employment and Labour Relations Act. Among the requirements that the employer must comply with is issuance of notice of the intention to retrench, it is fortunate that this notice was issued and is not subject to discussion. Secondly it is required by the law that the employer must consult the employees before termination. Actually, this is the centre of the controversy between the parties. Before determining this issue, I should bring to the attention of this court that it has been the position of the law that procedures for retrenchment should not be adhered in a checklist fashion on the reason that each case must be decided according to its own set of facts and circumstances. This position was stated in the case of Metal Product Limited vs Mohamed Mwerangi & 7 others, Labour Revision No. 148 of 2008 where it was held; "It is my opinion that the various stages itemized under section 38 are not meant to be applied in a checklist fashion, but rather provide a guideline to ensure that the consultation is adequate and covers all vital matters. Consultation is conducted with view to reaching an amicable settlement and where there is an impasse, the law provides that the matter should be submitted to mediation (Section 38(2)) o f the Act. Whether consultation is adequate depends on circumstances o f each case. Where such consultation results in an agreement, signed by recognized representatives o f the parties as was done in this case, then the requirement o f the law has been met." At the commission, the applicant while testifying through DW1 Nassir Juma the Country Manager of the applicant informed the Commission that consultation meetings were conducted and he tendered the minutes of the said meetings and the same were marked as exhibit D3. I have had time to go through the said minutes it is unfortunate that the said minutes lacked the signatures of the respondents. The minutes were signed by only the country manager and the secretary. Actually this is a misfortune, as the respondents ought to have signed the 10 minutes to reflect that they appeared in the said meeting and they participated. Nevertheless, I have further gone through the respondents' termination letters, they all reflected what was discussed in the consultation meetings. The discussion also included their terminal benefits which were paid to them. The respondents signed their termination letters and they all received their terminal benefits as reflected by exhibit D1 collectively. What this court has gathered from all this is that, it is not true that the respondents were un aware of what was going on, and taking into account that their termination letters reflected what was agreed in the consultation meetings and the respondents signed them meaning that they accepted the termination and if they had no knowledge of what was agreed in the said meetings it is practically that they would not have signed the termination letters. It is therefore the firm view of this court that even in the absence of the signatures of the respondents in the consultation meetings, yet the respondents were aware of what transpired in the said meetings. That said, it is my firm view that the applicant followed the procedures in termination of the respondents save for the signing of the respondents in the minute of the consultation meetings. 11 What follows is on the relief following the mischief that has been occasioned by the applicant. I have observed that the Commission awarded the respondents 12 months' compensation. With due respect I find this award to be excessive on the reason that there were fair reasons for termination the fact which was also admitted by the respondents. Even on the aspect of procedures, the applicant flopped in respect of not letting the respondents sign the minutes of the consultation meeting. I am persuaded by the decisions of my learned sister Mteule, 3 which have been cited and supplied by the applicant's counsel in his submission. In the case of Steven Nkomola vs Muhoji General Supplies Ltd the learned Judge when faced with the situation as mine, had the following to say; "I have found that the respondent had fair reason to terminate the applicant, but she did not comply with fair procedure. This means the termination was unfair in terms o f procedure. Therefore, the applicant is entitled to compensation for such unfairness. The applicant claimed to compensated 12 months' remuneration. When unfairness is based only on procedural irregularity with fair reasons, the compensation cannot be as equal as when the fairness is on reason or on both reasons and procedure. In the case o f Felician Rutwaza vs 12 World Vision Tanzania, Civil Appeal No. 213 o f 2019, CAT at Bukoba (Unreported). It was held; ......... Under the circumstances, since the learned Judge found the reasons for the appellant's termination were valid and fair, she was right in exercising her discretion ordering lesser compensation than that awarded by the CMA.... " Guided by the above authority, the minimum amount o f compensation provided under section 40 o f the Employment and Labour Relation Act seems to be disproportionate to the procedural unfairness in this matter. I find it excessive to award the applicant 12 months' remuneration as compensation for a matter where unfairness is based on only one among several procedures. In my view, 6 months' remuneration is sufficient to compensate the unfairness in the procedure." With due respect, the above holding has said it all and I need not say much. Since it is the finding of this court that the respondents were terminated on fair reasons, and that the unfairness in the circumstances of this case is on only one among the several procedures. It is therefore my firm view that the award of the Commission of 12 months' compensation to the respondent is excessive and in that regard, this 13 award is hereby revised to the extent that the respondents are awarded 9 months' compensation. It is so ordered. D. D. NDUMBARO JUDGE 23/ 10/2024 14