sozigwa kumbuka sihiyana others vs ako catering services ltd 2018 tzhcld 10 17 august 2018

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 513 OF 2016 BETWEEN SOZI0WA KUMBUKA SIHIYANA AND 18 OTHERS.... APPLICANTS VERSUS a k o Ca t e r i n g s e r v i c e s l t d ................................. r e s p o n d e n t EX-PARTE JUDGMENT Date df Laslt Order 16/07/2018 Date df Judgment 17/08/2018 NYERBRE. J. lit) this application applicants/ s o z i g w a k u m b u k a s i h i y a n a a n d 18 o t h e r s filed the present application seeking revision of the Commission for Mediation and Arbitration (CMA) decision and award issued by arbitrator Alfred, Amps in respect of the employment dispute No. CMA/DSM/KlN/R.34/15/557. Facts leading to the matter are that the applicants were employed by respondent between 2004 and 2014 in different position and capacity, that on 2md December, 2014 applicants were retrenched and that after applicant's termination respondent employed 442 new staff. Being aggrieved bj/ the respondents' decision, applicant's referred the matter to the CMA claiming unfair termination and Discrimination in the course of employment!. The CMA entertained the matter and found that there was no valid neasorl for terminating applicant's employment; the CMA awarded applicants, s|x month salary compensation. Aggrieved applicants lodged revision application whereby advancing grounds for revision under paragraph 13 of the supporting affidavit as followst (i|) That the Arbitrator erred in holding that respondent had reason to terminate our employment contract by Redundancy. (i|) That, the Arbitrator erred in law and fact for not considering the evidence tendered to proof (sic) the said Application. (iji) That the Arbitrator erred in law for not Awarding the Applicants appropriate remedy as prescribed by law. div) That, the Arbitrator erred in law and fact in not holding the Respondent observed the fair procedure and decided in favour her on Awarding less Remedy to Applicants (V) That, the Arbitrator erred in Law and Fact for not considering the nature of the dispute and weight of the evidence of the parties. At thg hearing the applicants were represented by Mr. Kassim Masimbo personal representative, whereas respondent was absent without notice, despite being served and notified through telephone calls. Thus the matter preceded ex-parte against the respondent. Personal Representative for the applicant argued, the arbitrator did not conside|r the evidence adduced, exhibits or provision of law and issues during arbitration hearing, establishing that arbitrator failed to state which procedure was followed and not followed in that arbitrator procured illegal award. Further Personal representative arguing in regard to arbitrator failure to consider provision of law or issues, argued, 18 applicants/employees were ertnploypd between 2004-2014 on different times and position, that on 2nd December, 2014 respondent held a meeting at TTC Club Changfombe and informed applicants on the intended retrenahmerlt/redundancy EXHIBIT "A l" The Personal representative for the applicants proceeded to argue that applicants referred the complaint to CMA, as respondent violated Section 38(1J) (a) of The Employment and Labour Relations Act No. 6/2004 which dequir$s an employer to give notice of intention to retrenchment. H0 further argued Section 38 (1) (d) (ii) of Employment and Labour Relations A d requires the respondent to invite a Trade Union in the work place, Arguing there was no prior information given to the applicants as per Section 38(11) (a) and (b) of The Employment and Labour Relations Act, insisting that CHODAWU had its Branch at AKO CATERING but was never consulted or even informed of the retrenchment process, therefore applicants priy to be reinstated. Aftter darefully considered applicant's submission, CMA records, labour laws |and practice of this court, the issue for determination is whetheit or not the Arbitrator award is justified in law. Whether the employer had valid reasons for terminating the applicants. d)n substantive fairness, applicants were terminated for operational reasons (retrenchment) after respondent lost tender to service the TTC Ctlub which operated under Mkombozi Saccos. Therefore responldent proved valid reason to terminate applicant [substantive fairness] and! not a camouflage for another reason, such as misconduct or incapacity. Ad expllained in the case of Bakari Athuman Mtandika v. Superfloll Trailer Ltd Labour Revision No. 171 of 2013 (UnreOortetP that; the basic duties of the decision maker where operational reasons are raised as a cause for terminating an employee, is to enquire ir|to and ensure that, the employer has proved existence of a fair reason, in that context, meaning, proved existence of operational reason^ justifying use of the option to terminate. It is the court opinion that, the reasons given by the employer as explained abpve in this judgment were justifiable and based on rational ground^, grounds that are founded upon reason and logic. I entirely and respectfully agree with the learned arbitrator that there was fairness of the reason |n terminating the applicants through retrenchment. Wlhat fallows is whether or not procedure was followed by employer in retrenching the applicant's. In tetms of Section 38(1) (a) of the Employment and Labour Relations Adt, No. 6 of 2004, here the employer is required to give notice of the intension to retrench, and to disclose the relevant information on the intended retrenchment by engaging employees or their representatives, in a consultation process as per Section 38 (1) (b) of Employment and Labour Relations Act. FlurtheK Section 38(1) (c) (i) Employment and Labour Relations Act require|s the employer to disclose reasons for retrenchment in writing, and Sectiorl 38 01) (c) (ii) enjoins the employer and the employees or their representatives to attempt to reach consensus on appropriate measures to avoid the terlmination here the employer may offer voluntary retrenchment by consulting the employees and trade union for the purpose of minimizing the intended retrenchment. Itj is wcjrth to note that, Section 38(1) of the Employment and Labour Relations Acty No. 6 of 2004, ensure that consultation is fair and adequate; as observed i Dy R.M. Rweyemamu, J. (As she then was) in the case of Bernaifd Giihdo & 27 Others v. TOL Gases LTD Revision No. 18 of 2012 (|unreportecO where she held that; T|ie Isw in section 38 (1) of the Act, provide for vital information to be exchanged, procedures for consultation in law, such consultation does not have to result in a sig|ned agreement, the employer complied with substantive aspect of the law which is to ensure adequate consultation." Irj this case, it must be determined, whether there was proper consultation in determining so, there it has to involve a factual enquiry. Therefore, ih the context of the present case, it must be determined whether respondent invited Trade Union / CHODAWU in the work place, prior t(> giving information to the applicant of the intended retrenchment. From t|ne coiurt record, there is evidence of meeting taking place on 2nd December, £014 involving applicants and the management. In that meeting the main agenda was to inform the applicants that, respondents contracts ends on 31/12/2014 , giving twenty (28) days' notice from 02/12/2014 Ho 31/12/2014. The second agenda discussed in that meeting was applicants statutory terminal benefits; notice, severance pay and leave. V\|ith e|II surrounding facts, I am of the firm view that, the consultation process engaged by the respondent was genuine and bona fide, cjeared to exchange vital information regarding the contemplated retrenchment. The employer successfully complied with substantive aspect of the law uinder Section 38(d) (i) (ii) of GN No. 6 of 2004 which requires employer to disclose relevant information on the intended retrenchment by engagihg tr^de union members in the work place to ensure adequate consultation. tn thif case, DW1 at page 9 of the CMA award explained that representative from CHODAWU, PW1 and PW2 were in the meeting as CHODAlWU members and not in the capacity as trade union representatives. These assertions are reflected in their testimonies at CMA proceeding. However I disagree with the contention of exclusion of CHODAWU members from the consultation, the employees were represented by trade union representatives generally. I am of the view to require employer to consult with a multiplicity of individual apart from the union representatives that were present in the meeting, is to result in a wide amd irreconcilable finding, what was not tendered is the invitation letter Of th$ union representative, however I find the presence of CHODAyvil Chairman and Secretary suffice to constitute trade union represe|itatioh in the consultation process. therefore, I disagree with the learned arbitrator that there was an error iiji the procedure in terminating the applicants through retrenchment without involving trade Union present in the work place. Consequently, faulting the arbitrator's decision and quashing the decision thereto. The application ig dismissed for lacking merit. A.i re JUDGE 17/08/2018 IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 513 OF 2016 BETWEEN s o z ig Iw a Ku m b u k a s i h i y a n a a n p i s o t h e r s .... a p p l i c a n t s VERSUS AKO CATERING SERVICES LTP................................. RESPONPENT Pate: (17/0B/2018 Coram: Hon. S. Simfukwe, DR. Applicants: Present For Applicant*;: Respondent: For Respondent: Absent C.C. J. Kalolo Court: E>t parte Judgement delivered in chamber this 17th day of August, 2018 in the presence of the Applicants in person and in absence of Respondent. S. SimruKwe PEPUTY REGISTRAR 17/08/2018