stanford mwamasangula vs nas dar airco company ltd 2022 tzhcld 885 29 august 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 444 OF 2021 BETWEEN STANFORD MWAMASANGULA................................................... APPLICANT VERSUS NAS - DAR AIRCO COMPANY LTD............................................... RESPONDENT JUDGMENT S.M, MAGHIMBI, J, The application beforehand was made under Section 91 (1), (a), (b), (2) (a), (b), (c); 94(1) (b) (i) of the Employment and Labour Relations Act, Cap. 366 R.E 2019 ("ELRA") and Rule 24(1), (2) (a), (b), (c), (d), (e), (f), (3) (a), (b), (c), (d) (e) and Rule 28 (1) (a), (b), (c), (d), (e) Labour Court Rules G.N. No 106 of 2007 ("the Rules"). The application was lodged by a notice of application and Chamber Summons supported by an affidavit of the applicant, Stanford Mwamasangula, dated 02nd November, 2021. In both the Notice of Application and the Chamber Summons, the applicant is moving the court for the following orders: i 1. That the Honourable Court be pleased to revise the Arbitration proceedings and award issued by Hon. Igogo, M. Arbitrator in the Commission for Mediation and Arbitration on 22nd September, 2021 in Labour dispute No. CMA/DSM/ILA/552/19/275. 2. That upon revising the CMA proceedings, decision and orders thereof, this Honourable Court be pleased to issue an order setting aside and quashing the impugned arbitration award which has been improperly and illegally procured. 3. Any other relief(s) that this Honourable Court deems fit and just to grant. 4. Costs of the Application be provided for. The applicant was employed as a Passenger Service Agent by the Respondent from the 20th of June, 2016. The employment ended on the 2nd of July, 2019 when he was terminated from employment on alleged grounds of misconduct, reasons that the applicant alleges to be unfair. Subsequently on the 16th July, 2019, the applicant knocked the doors of the Commission for Mediation and Arbitration for Ilala vide labour dispute No. CMA/DSM/ILA/552/19/275 ("the Dispute") claiming terminal benefits to a tune of 19,137,727/=, praying for compensation for unfair termination 2 at the tune of his salaries of 24 months. He also pressed for payment of accrued leave, notice and severance pay. The dispute was decided in favor of the respondent by an award dated 22nd September, 2021 whereby the CMA found the termination to be fair. Aggrieved by the outcome of arbitration, the applicant has lodged this application on the ground of material irregularities in the CMA award which needs to be revised by this Honourable court as follows: i. The Arbitrator erred in law and facts for failing to consider evidence adduced by the Applicant. ii. The Arbitrator erred in law and facts when she decided the matter in favor of the Respondent while the Respondent failed to prove that the complainant had committed a misconduct (gross dishonest) while performing his official duties. iii. That the Arbitrator erred in law and facts by awarding the matter in favor of the Respondent while the Respondents evidence was contradictory by itself as it failed to prove that the alleged luggage carried by the complainant was of the complainant and not the passenger who was assisted by the complainant. 3 iv. That the Arbitrator erred in law and facts by considering mere allegations of dishonest against the complainant without the Respondent adducing sufficient proof upon them. v. That the Arbitrator erred in law and facts by failure to award the complainant his unpaid leave before termination. vi. That the Arbitrator erred in law and facts by failure to award severance pay to the complainant. vii. That the Arbitrator erred in law and facts by failure to award any compensation for unfair termination to the complainant. From those grounds, the applicant raised the following legal issues to be determined by this court: i. Whether the award issued by the arbitrator in favor of the respondent was based on reasonable grounds. ii. Whether it was legally right for the Arbitrator to hold that the Applicant committed misconduct (dishonest) by carrying the passenger luggage despite the fact that the Applicant was performing his work duties. iii. Whether the reliefs not given to the complainant in the Arbitration award are legally justifiable. 4 Hearing of the application was by way of written submissions; the applicants submissions were drawn and filed by the applicant in person while Mr. Arnold Peter, learned advocate, filed submissions for the respondent. The applicant addressed the grounds of revision collectively. He started by pointing out that before the CMA, the Applicant testified that he was employed by the Respondent as a Passenger Service Agent whose duties were to receive and verify travel documents, show passengers were to seat while waiting for the plane, and attend to passengers that required special care (mahitaji maalumu). Further that apart from the aforementioned duties the Respondent allocated to him another duty of being a paramedic (wheel chair attendant). That on the fateful day, that is 04th May, 2019, while he was on his duty roster as a paramedic shift, he was notified that there was a patient who required a wheel chair, the patient was accompanied by her son, both had luggage. That he went to the patient put her on the wheel chair and rod her to the counter for them to get a boarding pass and other necessary travel documents and at that time, the patient's son carried the hand luggage. When the patient arrived at the counter, the porter handled the 5 travel luggage to the counter, whereby the luggage was checked and cleared and that he then took the patient with his luggage to the immigration offices. He submitted further that while preparing to leave the offices at 7.15 am, he was called by his Head of Department Mr. Ngalapi who reported to him the alleged misconduct reported by Edward Ntayangiri and that on the 6th May 2019, he and Mr. David Ngalapi(Manager Security Nas) went to the CCTV room whereby they watched the CCTV footage and thereafter Mr. Ngalapi told the Applicant that no misconduct was committed and that he will process back his work ID. Citing Section 39 of the ELRA, he emphasized that in any proceedings concerning unfair termination of an employee by an employer, the employer shall prove that the termination is fair. The applicant then argued that the respondent failed to prove the balance of probability before the CMA that the Applicant had committed a misconduct since the Applicant was performing his work duties when he was assisting he patient who together with him was her son carrying the alleged luggage. Further that the Respondent failed to prove their case against the Applicant by failing to call the patient who was assisted by the Applicant whom they allege to be illegally helped by the Applicant. That failure to call the patient to testify 6 against him in the CMA proceedings rendered all allegations against the Applicant be a hear-say since the Applicant missed an opportunity to examine the witness as to the correctness of the allegations of misconduct alleged against him. The applicant submitted further that the Respondent failed to adduce any evidence before the CMA indicating that the Applicant's act of assisting the patient and son was an act contrary to his work policy and regulations. He argued that his duty as a paramedic was to assist the patient who needed wheel chair services along with assisting the patient carry his luggage upon reaching the check in counter and after boarding the plane. He concluded that due to the above substantiated reasons, the Applicant has palpably demonstrated that the Respondent failed to provide a valid reason for terminating the Applicant. His prayer is that the award of the CMA be set aside and dismissed. In reply, Mr. Peter submitted that the Applicant was caught red handed attempting to check in luggage that did not belong to a wheel chair passenger by using the said passenger's ticket, something that is wrong and against the Respondents Rules as well as Airport's policies. He pointed out that in the CCTV Camera Footage, the Applicant can be seen wheeling 7 in the wheelchair passenger, and going back to assist two passenger who are not in wheel chairs and who are not with the wheelchair passenger, to carry their luggage from the security check in, and putting about eight bags of luggage next to where the wheelchair passenger was seated. The footage further shows the Applicant speaking to another employee to carry the luggage and to take it for check in and further footage shows the Applicant speaking to yet another passenger and receiving a document from that passenger, and further taking his baggage and again placing it next to the wheelchair passenger. Mr. Arnold argued that although no voices can be heard from the footage, the Applicant's body language shows how tense he was and how he was looking in all directions to ensure that he was not observed by Airport Security. He then pointed out that it was the Airport Security as well as ATCL Station Manager that caught the Applicant and informed the Respondent. As a service provider at the Airport, the Respondent is required and legally obliged to ensure that her employees conduct themselves in a manner that is legal and acceptable. Having received an oral report about the Applicants' conduct, the Respondent was obliged to 8 take proper action in order to determine whether or not the Applicant was guilty. To this end, Mr. Arnold submitted that the Respondent conducted an investigation and issued an investigation report (exhibit D 2), an investigation which involved talking to other employees who were present when the Applicant carried out the alleged misconduct. Elaborating the report, Mr. Arnold submitted that the investigation report contains statements from one Yassin H. Lwasa and one Gloria and that both their testimony narrates what is seen in the CCTV footage, where the Applicant asked Yassin to assist him in pushing the luggage belonging to a lady and a man not related to the Wheelchair Passenger, to a Counter of Ethiopian Airlines. The statements further state that the Applicant checked in the luggage using the Wheel Chair Passenger's tag and during hearing of the Matter, DW -1; Edward Ntyangiri testified that he was the officer who carried out the investigation and prepared the Investigation Report. Mr. Arnold submitted further that page 1 of the said report states that one Mr Ikota Air Tanzania Security Officer, called the Applicant after finding that there were 7 pieces of luggage whose owners were unknown but the said luggage was brought in by the Applicant. According to the 9 report, Stanford attempted to check in luggage saying that the same belonged to wheel chair passengers but when asked where the said passengers are, he pointed to an old man sitting on a bench, but the said old man was not a wheel chair passenger. He submitted further that under the Civil Aviation carriage by Air Regulations, 2008; Regulation 6 (4), a carrier is required to deliver to the passenger a baggage identification tag for each piece of checked luggage and that what the Applicant attempted to do, i.e. to pass luggage belonging to other passengers using a Wheelchair passenger is against this regulation and is a breach of the same. Being an employee of the Respondent, if the Respondent failed to take proper disciplinary measures against the Applicant, the Respondent would have been the one in breach of the Law, argued Mr. Arnold. He concluded that there were valid reasons to terminate the Applicant's employment and the same was proved on the balance of probability as per the requirement of law. In rejoinder, the applicant submitted that the Respondent has failed to negate the raised grounds of appeal instead decided to copy and paste his counter affidavit in the reply submission. He then reiterated his collectively argued submissions on the ground of appeal that Respondent io Since as pointed out by Mr. Arnold, that the applicant did not challenge the fairness of the procedures, then the applicant before me is devoid of merits and it is hereby dismissed. Dated at Dar-es-salaam this 29th day of August, 2022 S.M. MAGHIMBI JUDGE 12