stella egidio vs tanzania standards news paper ltd 2018 tzhcld 9 24 august 2018

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 442 OF 2016 BETWEEN STELLA EGl|DIO............................................................APPLICANT VERSUS TANZANIA STANDARDS NEWS PAPER LTD.............RESPONDENT JUDGMENT Date of Last Order 13/07/2018 Date of Judgment 24/08/2018 NYERE|RE, 3. Applicant filed the present application seeking revision of the decision of the Commission for Mediation and Arbitration (CMA) which was delivered on 31/d8/20l]6 by Hon. A. Massay, Arbitrator in favour of the applicant. Brfiefly factual background of this application is as follows: The Complainant was employed by respondent on 21st November, 2006 as Office Management Secretary until 17th November, 2014 when she was terminated. The Complainant was aggrieved, that there was no valid reason for tier termination and that she had not been given the right to defend the charges against her, thus instituted a claim of unfair termination to the CMA, praying to be reinstated without loss of remuneration. The said Labour Dispute was condoned for late filling and determined that the, the procedure for termination was not fair and the CMA awarded the Twelve Months Compensation, Notice of termination and Severance P^y. That decision aggrieved applicant who file the present revision application faulting Arbitrator's award on four grounds articulated under paragraph 11 of the supported affidavit for easy of reference I quote them in verbatim. (^) The presiding arbitrator erred in law and facts by failing to consider my prayers in the referral form CMA FI. (b) T(iat the presiding arbitrator erred in law and facts by failing to interpret clearly the provisions of Employment and Labour Relations Act in awarding 12month salary compensation for unfair termination. (<t) Tlhe presiding arbitrator erred in law and fact by failing to evaluate properly evidence tendered at the hearing hence giving improper decision. (cP) Any other grounds which may be adduced on the hearing date. At the hearing of the application both parties were represented by advocates Mr. Evod Mushi learned counsel appears for the applicant whereas Mr. Districk Mwesigwa learned counsel appears for the respondent and hearing [proceeded orally. Submitting on the 1st ground of revision Counsel for applicant argued that arbitratdr erred in law and in fact by failing to consider applicant's prayer in the referral Form No. FI. That the applicant prayed for reinstatement. He further argued that, at the disciplinary hearing, there were nd> witnesses who testified to prove the charges against the applicant and insisted that DW1, DW2, and DW3, also testified before the CMA that there wfere n<D witness called a the disciplinary hearing. Hfe concluded this issue by arguing that the only evidence which the arbitrator relibd on was the evidence of DW2 Deus Ngowi, a witness who admitted on record that he did not appeared before the Disciplinary Committtee. fte contended that it was not proper for arbitrator to rely on this evidence Furthermore applicant did not cross examine Deus Ngowi DW2 as a witness at Disciplinary Hearing. Therefore the applicant was found guilty on an offerees which was not proved at the Disciplinary Hearing, and the CMA confirmed it. CtDunse for applicant abandoned the 2nd ground for revision, and proceeded to submit on paragraph 11(c), that the Arbitrator failed to evaluate/ int$rpret properly the evidence adduced at the hearing resulting to a (tlecisicpn that awarded 12 months compensation. Instead of reinstatement as prayed by the applicant. C(t>unse for applicant was of further view that, DW1 the Chief Executive Officer of the Respondent is the one who raised the allegation against the applicant, charged the applicant, appointed his subordinates to form Disciplinary Committee and terminated the applicant as per Exhibit " D ll" . Itl is th4 contention of Counsel for applicant argued that, the Board of Directofs was biased, because it ordered disciplinary action to be taken against the applicant and later on became the appellate authority to decide the applicants appeal. That there was gross violations of the principles of the natural justice, thus applicant prays to be reinstated in her former position without loss of her remuneration. Ih rebuttal Mr. Districk Mwesigwa Counsel for respondent responding to the |lst ground he argued that the termination was substantivelyfair,and unfair |f)rocectlurally. That to grant remedy under Section 40(1) (a),(b),and (c) of the Employment and Labour Relations Act ready together with Rule 32 (5) pf GNI67/2007 is discretionary. He was of the view that, when the termination is adjudged unfair on procedural ground only the decision maker will award compensation instead or Reinstatement or re-engaged, and he cited the case of MOHAMED R. MWENDA & 5 OTHERS VS. ULTIMATE SECURITY Revisidn No. 440/2013 and quoted page six of the Judgment where RweyemamuU. stated as follows: "Grdmt o f rem edy under Section 40(1) o f Em ploym ent and Labour Relations A ct is discretionary. In the ci rep instances of this case, grant of the com pensation w as not illegal because even though there w as a degree of unfairness in the procedure, the flout of the procedure wasl not fatal to justify grant of com pensation o f tw elve moriths salary. The fundam ental requirem ents of procedural fairness i.e. Disciplinary Proceedings w ere 5 conducted, the em ployee was granted the right to be heal'd; only m issing w as use of prescribed form a m inor and in this case, consequential discrepancy". C(bunsei for respondent contended further that, arbitrator has discretion to pward compensation where there are justifiable grounds to do so. Suoh grqunds are provided for under Rule 32 (5) (a) - (f) of GN 67/200t. Th|at sub-rule (a) which prescribes the maximum amount of the compensation! as it was in this case. That it was proper of the arbitrator to award 12 mdnths compensation instead of the reinstatement after finding that termination was fair substantively but unfair procedurally. Submitting on procedural irregularities, Counsel for respondent argued that Applicant was summoned on five grounds based on misconduct and absenteeism. That applicant admitted to being absent thus no further proof w|as required. Ctunsel for respondent insisted and maintained that, Mr. Deus Ngowi testified before the Disciplinary Committee, by a telephone call and applicant he^rd the same, and applicant was given chance to cross examinfe the witness who was testified over the phone. And that arbitrator properly evaluated the evidence adduced and made a proper decision and prays tfiis revision to be dismissed. In rejoinder Mr. Evodi Mushi Counsel for Applicant reiterated his submission in chief, and proceeded to insist that arbitrator used evidence of a witness who was not present at the Disciplinary Hearing. That CMA decision basid on the consideration of a testimony made over a mobile phone and applicant did not cross-examine that witness. After carefully considered parties submission and examined CMA records, Affidavit and Counter affidavit filed in this court, labour laws and practicq of this court my decision on the ground for revision is as hereunder. Th3 issu£ for determination is whether the Commissioner correctly evaluated th$ facts presented before it and arrived at a conclusion that is reasonaole. As a point of departure, there can be no dispute, that the only evidende wh|ich the arbitrator relied on, was the evidence produced telephohically by DW2 Deus Ngowi, as presented before the Commissioner, at pagel 9 Of the CMA Award that; " ...In finding the Com plainant guilty in relation to charges levelled against her, the respondent relied on the disciplinary hearing Com m ittee findings and evidence led before it. During th at hearing the evidence of the m anagem ent against the Com plainant w as led by Deusi Ngof w ho w as the only w itness" It is further gleaned from the Applicants submission that, DW2 testimony wds not cross examined, but respondent relied on it and found applicant guilty of misconduct. In accordance with the provisions of Section 37 of the ELRA No. 6/2004, the neason for the termination must be fair. Section (2) of the Act, provided for circumstances that may lead to unfair termination including failure to pro|ve reasons for termination is valid, also Rule 8 (1) (c) of the ELRA (Code Of Good Practice) GN. 42/2007 reiterates that employer may terminate employee's employment on fair reasons as defined under section 37(2) of the Employment and Labour Relations Act No. 6/2004. Iih response to applicant's contention, that he was found guilty on an offences whith was not proved at the Disciplinary Hearing. I am of the view thlat, indeed the evidence relied upon by respondent ought to have been crbss examined to prove the same. I agree with applicant's argument that, the opportunity to cross examine the witness had been unduly interfered with. In that any findings by respondent of the existence of misconduct dn the part of the applicant, in this respect, is entirely devoid of any merit. Thus I fault the arbitrator's finding that applicant was terminated fqr valid reason. Iifi regard to the procedure for termination, the Commissioner found at pagd 15 of the CMA award that, procedure for termination was not fair as no Witness appeared during the hearing to prove the allegations against the appjlicantj In particular, on the absenteeism the Commissioner found the disciplinary hearing improperly reached a decision, which no witness appeared duriing the hearing to prove allegations against the applicant, the applicant coijld not cross examine the witness testifying. In addition to that, thfc Arbitrator was correct to adjudge that applicant's termination was unfair (Droce^urally because the disciplinary hearing conducted violated Rule 1^(1) G|N. 42/2007 which provides for fairness of the procedure, in the basis of the above, I concur with arbitrators reasoning. Iru regard to applicants prayer to be reinstated without loss of remuneration. In view of the above, I find that the applicant was unfairly terminated then this court is enjoined by Section 40(1) (a) of the ELRA which rtrovidfe that; "Jf an arbitrator or Labour Court finds a term ination is unfair, the arbitrator or C ourt m ay order the em ployer- ( i) Tb reinstate the em ployee from the date the em ployer was term inated w ithout loss of rem uneration during the period that tHe em ployee w as absent from w ork due to the unfair term ination." A|so there is no evidence presented by Counsel for respondent that the employer has no position available for applicant. Irl the fend result I quash and set aside the arbitrator decision that awarded 12 months compensation Notice and Severance pay to the applicant. It|is so prdered. JUDGE 24/08/2018 10 IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 442 OF 2016 BETWEEN STELLA EGIDIO APPLICANT VERSUS TANZANIA STANDARDS NEWS PAPER LTD RESPONDENT Date: p4/0lB/2018 Coram: Hon. E.G. Mrangu, DR. Applicant: Present For Applicant!: Mr. Godfrey Ngasa, Advocate Respondent: For Respondent: Mr. Stanley Mahenge, Advocate C.C. J. kalold Court: This Judgement is delivered in Chamber this 24th day of August, 2D18. In presence of Applicant in person, Mr. Godfrey Ngasa fd>r Applicant and Mr. Stanley Mahenge Advocate for Respondent, while Court Cl lo. E.G. DEPUTY REGISTRAR 24/08/2018