steek seacher company ltd vs isack edward mlay 2021 tzhcld 61 23 march 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 774 OF 2019 BETWEEN /Z STEEK SEARCHER COMPANY LIMITED ^..APPLICANT VERSUS ISSACK EDWARD MLAY.............. .^.^...^wRESPONDENT Date of Last Order: 23/02/2021 Date ofJudgment: 23/03/2021 Z. G. Muruke with warningletter;';afteixhaving exceeded bundle of goods contrary to the <3^ Zx \\ order. Thuston 18LMay, respondent admitted the misconduct, apologized by letter, ariiTpromised not to repeat the act. However, on 24th May and Hi 26 June,<;201'8, respondent was again warned for the same misconduct of loading more bundles of good contrary to the order. This time, he refused to receive warning letter, as a result, disciplinary meeting was held, in which' it was deciced that respondent contract be terminated. Thus on 30th June, 2018, respondent was served with termination letter. He was dissatisfied, thus filed dispute at CMA on 26th July, 2018. Unfortunately on 10th September, 2018 commission issued an order to proceed expert. However, applicant filed application to set aside expert order on 11th September, 2018, which was later granted on 19th November, 2018, thus, case set for mediation on 28th November, 2018. Mediation failed, then case proceeded for arbitration, in which decision was in favour of respondent, who was awarded 4.800,OOOTshs, being" 8 ^months salary. Same dissatisfied applicant, thus filed present revisionxchallenging^CMA decision. Respondent was served, and filed counter^affidavitlogetner with VX notice of preliminary objection that preserr^,revision is out of time. Previously applicant filed revision number 615/2019 thafcwas struck out for <x incompetence on 26th September, 20,19,, Xyith^leaVe of 14 days to file '^xX competent revision. PresentfrSvIsion^was^filecl^bn 03rd October, 2019, being 8 days from 26th September, 201^>thus)well within the time granted ,-x Xx X, by the court. On 9th November, ’2020‘Xupon perusal of courts records, it was revealed that despite^fllihg counter affidavit respondent did not appear even once^despite^sevefal court orders, thus order to proceed expert was issued on'>09th<;Novernbe‘r, 2020. Supporting revision, applicant counsel Victoria Mgpnja submitted that, respondent misconducted himself by allowing, loading? of excess bundle of sheets contrary to the order on 15th Xx May, 2018Jn which he admitted and apologized, thus forgiven. Again on 24th May, and 26th June, respondent repeated the same misconduct. This, time refused to receive warning letter. He replied the letter only and in the cause admitted, but, refused to appear in disciplinary meeting. 2 Evidence was tendered to prove that, applicant adhered to the procedure, but arbitrator at page 12 second paragraph wrote: Kwa mameno mengine swala la nafasi ya kusikilizwa ni la msingi katika kufikia uamuzi wa haki zote mbili, kulingana na ushahidi wa pande zote mbili kikao cha nidhamu akikufanyika mwajiri alivunja m kata ba wa mlalamikaji kwa kumpa barua mbili za onyo peke yake./> / / kZ \\ Applicant counsel insisted that, arbitrator failed to^co^sidehvevi.dence tendered by applicant. Respondent refused tovap“pear before, disciplinary hearing, it is him who denied himself right^to fre^present. There was nothing more applicant could have done., Thus^Jhe aWard was reached contrary to the evidence, insisted yictoriaNMgonjaJ who requested for setting aside of the award and5,allow reyisioriZ \\ A xx Having gone through, this* court records and applicant submission, issue before>me^ whether respondent misconducted himself and if yes whether'^pplfeanRxfollowed procedure on termination of respondent contrapt. ZZZZ5 Whether respondentxjbmmitted misconducted as alleged. ^XAccordih'g^dSrtlie evidence PW2 Ramadhani John evidence while beinghcross Examined by respondent, at CMA he admitted that there was extra bundle contrary to the client order, and it was the responsibility of the respondent as shown at page 14 of CMA typed proceedings below. Swali: Ni nani alikuwa akiwaita kupakia mzigo Jibu: Tulikuwepo Kampuni ilipoanza Swali: Nani alikuwa akiwapa oda ya kupakia? 3 Jibu: Mlalamikaji (Isaack Edward Mlay) Swali: Ikitokea oda imezidi aliyekuwa anaulizwa ni wewe au Issack. Jibu: Isaack Swali: Unathibisha kwamba ni kweli kuna mzigo ulirudi. Jibu: Ni kweli, baada ya Meneja kukagua gari la mteja, na IssacR-alihusishwa Vs- W v? From the evidence above, respondent committedxthe misconduct alleged. Second issues is whether procedure\td>terminate^respondent contract was followed. There was no disputeWat/ respondent was given first warning which he accepted and apologize'cbon 18th May, 2018 as X X reflected in exhibit D4 that read as follows:, x\ Yx " I am god own supervisor,Souring thi^grocess of loading it was found that one bundled was loaded wr^gly aj|d"e5cceeded. The reason why happened is because bundles were'no&iri good arrangement due to the woods which was--under\the.,roof car. So I accept that it was may fault I will be more-carefully aridThis happened accidentally." Issack Edward Sgd: 18/05/2018 ^However,} respondent, misconducted himself again, as a result, on 26th June>^018 he was accused of breaching company's Rules and regulations provided under his contractual obligations, as reflected under exhibit D-3 as follows:- Reference is made to allegation reported and disciplinary hearing held on 1st June, 2018, this letter is to inform you that you are being discipline for the act related to habitual, substantial and willful 4 negligence in performance of work that cause injury to one daily worker hence bring loss to the company. Respondent upon being given record of warning at page two of the same, on employee's response (if any) he replied. "I will not sign it because I have many reason there was no quality too.Isxalso it was accident so this is out of my responsibiiities KJhave evidence to prove this at any convenient time." Dated 26/06/2018 From the wording of respondgqt^lii.gis'el|,^Ke refused to follow procedure. Exhibit D4 was m^e^alleg^on^^hlejought to have received and give his defense before appropria^e-;fori!im not to refuse the way he did. Refusing lawfully instructions fro^supervisor is insubordination, which is a serious misconduct in^ter^s of respondent employment contract with applicant, exhibit psl.\^rom^the> wording of respondent at page two of exhibit D4, it is !|(imself\^$h0^ absented from raising his defense as he \\ H claimed to^fjaveXx Moirej/ evidence is found at page 9 of CMA typed p^ceedi^s\^^^D^2 Maria Mlimrod Mkemwa was being cross examined as fellows: Swali: Baacla ya kugundua wizi mlichukua hatua gani Jibu: Baada ya kugundua mambo yanaongezeka tuliitisha kikao cha nidhamu, ambako Isaack alikataa kuwa hakufanya kosa hawezi kuja. Tulimwandikia barua ya onyo lakini alikataa kusaini. Na aliyegundua wizi ni mkaguzi aliyekagua gari kabla hajaruhusiwa kutoka getini. 5 From the evidence of DW1,DW2 and respondent refusal to receive complain letter for him to give is defence as seen in exhibit D4 is an evidence that, respondent was given opportunity to be heard but refused. There was nothing more, applicant could have done. Right to be heard is very fundamental, but, respondent refused to grap the opportunity given by his employer. He cannot now complain of the sameZ>tb this court exhibit D4 and evidence of DW1 is proof that/ respondent had1 an XXZ/' opportunity to be heard but refused. Thus as correctly argued by applicant'/a>unsebyictoria Mgonja arbitrator was wrong to hold that applicant ciidxnot, convene disciplinary meeting. The award issued to,-th'e-respondenKwas;feached contrary to the V( V\ evidence on records. Respondent contract- was correctly terminated. Therefore, Award of 4,800,000/=xbeing .salary and bonus for 8 months is (’"■A f JUDGE 23/03/2021 6