19930415 TZHC Dar es Salaam

-'I .IN THE HIGH :_;QlJJ.T OF TAHZ~\NIA ' :::;;s SALAAM AT DAR CIVIL APP? L NO. 16 of 1992 . STEPHEN M. KAZEYJ ................ ooooAPPELLANT VE 1.SU.S TANZANIA BOTTLERS Lii'UTED •••••••••••• RESP0NDENT KYAN.DO J., J U D G E ME N T This is an appeal against the ruling of the Resident Magfstrate' s Gour~ of Dar ·es Salaam, at Kisutu, dismissing the claim of the appellant aGainst the respondent for wages due from 1 .• .1 f 90 to the ·date of. satisfying the decree; one months salary in lieu of notice; leave pay for 63 days (Shs, 26,300/=); leave allowanee (2 years) Shs. 2,000/~;. t'ake home allowance ( including house and transport allowance) Shs,. ·12.,500/== p.m. from 1"'1.90 to the date of satisfying the decree; lUJ::l~h allowance . , Shs. 1,000/• ·p,m. from 1,1.90 to. the date. of satisfying~ di'Oree1 madieal expense.s, Shs~ 30,000/; incide_ntci;l_,e~p-~~ses Shs. 22,_000/= int~rest ~t" 10% ou all the above per month from 1,1,91 . .. to the date of satisfying tr,ie decree, and any other !X'eld.efs, The learned magistrate who dismissed the suit was of the v~ew that it, i.e. the suit;'ell ·.,. under the provisions of S.·28 of the Security of Employment Act, Cap. 574, and co~ld therefore not be entertained by his courts. 28 provides:- 1128 - (1) No suit or other civ:i.l proceed1ng (other than proceedings to enforce a decision of the Minister or the Board on a reference under this part) shci.11 be entertained in any ~i vil court with ·r1c:~~t:i. J to the .surnmar.x ~ismissal or proposed suri1:~1ary dismissal, or a deduction by way of a disciplins.ry penalty from the wages, of an employee. ( 2) In this section, ;;Civil Proceedings 1• includes a eross suit or counterclaim, any set 4 ~{f~~nd a:Q.,X_qivil p:r:_C?._ceedings under XI oft~~ ~mJ2?::Q™1 t, 0 r dir1;_'.}.D~ ;; (my undGrlin.ing) 2 The arguments put forward by the defendant in the lower ' court leading to the magistr3te's dismissal of th~ suit were that after the appellant was served with his letter of termination, {Exh. 1 A 1 ) h2 12ft h~s place·of employment, without taking the letter, and disappeared •. It was contended that by doing so he, the appellant, had dismissed himself aumoarily )fror:1 his e;]ployr.len~t, and theref<?re had brought himself within the aw.bit of the provisions of S, 28 of the· Security of E1~1p],oyment Act. The Learned Magistr::1te seems to have accepted tlhis and, as shown, dismissed the suit, Before me,. I'-1r~ Mrugaruga fror,1 the Labour Commissioner's Office, for the appellant, reiterated the arguments he. had -~e in the trial court that the appellant had not been summarily dismissed as contended by:the respondent/defendant, but, as the letter which he received .shows, his services with the defemdant/respondent had been terminated, by the respondent, He urgu~d flU'tl?,.er that in addition what the appellant wa& suing for was not to challenge the . terri1ination but to seek his·bene£its which were incidental to the termi~ nation ..· He submi tteq. therefore that the suit fell well out- side the. purview of the provisions of s. 28 of the Secur:ty of Employment.Act and that the magistrate erred in holding that it did, He prayed therefore that I allow the appeal and direct ·the. t.rial court· .. to entertain the suit,. "Summary dismissal•l ha's not, as 6ften it has· been ,aid, ,been de.fifi~_in ·the Security of Employme1;1t Act. However, - for a dismissal to· qu.aJJ,fy .aa a summai:'Y.: __ ~ismissal,. it should in my view, have beh~n carried .out in accofdance with the procedure laid down-in ·~e ~urity of Employ-went Act I itself (see.ss.· 20-27 ·of _the Act)., for otherwise, under 8~19 of the Act, summary dismissal is. prohibiteq., In the instant case, that. proeedure does not appear to h3ve been follow~d at all. Instead the.respondent/def2nd::mt contended, as shown, that the appellan:t:. aSWDJi1ari ly disr:,issed hit:1s elf;; 'by disappe- aring from his place of wor~ when his. letter o:f termination was about to be served.on him. This, of course, is a very ingenious argument, but, \'.'7i th r:?spect, it amounts to nothing more than sheer ..soph.:lsiu.. Thts -is so because even after . the appellant app ared a53in to take his lQ.t.t.er he -wc,s handed .... /3 l l, a ·1etter of teri;1ination or services: not ohe for summary dismissal. The letter included an i~e~ for payment of a month's salary in lieu of noticea This therefore clearly was not a :.-)ase of summary disiJissal., It was a case of termination of services 9 unaffected by the provisions of S. 28 .of t;1-2 Security of Euployment Act •.. If the resrondent wished to summarily dis □ iss the appellant 2 it should have · followed t~e procedure le-id down, as stated already, in the Security of Employment Ac\t • . The trial court erred in holding that this case could ·not be entertained by it because of the provisions of S. 28 of the Security of Employ--:nent .Aot. I allow the appellant's appeal to this court, therefore, quash the ruling ,: ~ the trial court and direct that it' ( the court) is l!low to entertain the suit. . DAR ES SALAAM. ... ..... ....... 15.04.93 . Mrugaruga for appellant . ~, ~espondent - absent Court: Judgiuent pro.nouneed.