tamico on behalf of anthony nigangwa another vs ma kharafi sons 2020 tzhcld 77 3 april 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 522 OF 2018 TAMICO ON BEHALF OF ANTONY NIGANGWA AND FRANCIS ODILO............................ APPLICANT VERSUS M.A. KHARAFI & SONS............................................RESPONDENT JUDGMENT Date o f la st Order: 20/02/2020 Date o f Judgment: 03/04/2020 Z.G.Muruke. 3 Anthony Nigangwa and Francis Odilo were employed by the respondent on different dates and capacities. Anthony Nigangwa on 4th May, 2004 as storekeeper while Fransis Odilo on 10th July, 2003 as storeman, both were terminated on the same day. On 8th March, 2006 the two were arrested by Police accompanied by respondent Security Officer, kept in police custody until 13th March,2006, when released on bail. The pending criminal case was dismissed by the court in 2008. During pendency of criminal case, the two applicants were retrenched from the employment. After long and several actions by the applicants in view of the old law by then, finally dispute was filed at Commission for Mediation and Arbitration as labour dispute number KZ/U10/MG 30/09. Arbitrator decided in favour of the respondent, and partly for the two applicants. Being i dissatisfied, applicant filed earlier revision that was struck out for incompetence with leave to file present revision. Application was supported by joint affidavits of the two applicants. Respondent filed counter affidavit to refute applicants allegations. On the date set for hearing applicant was represented by Evod Mushi, Learned Counsel while respondent was represented by Mr. Emmanuel Kisusu representative. Upon discussion and by consent, issues raised by respondent in the paragraph 18(b) of counter affidavit, were adopted by the court as issues for determination on this matter, namely:- (i) Whether the arbitrator properly analyzed the evidence. (ii) Whether the Award of the arbitrator is illegal, illogical and improperly procured. (iii) Whether this application has merits. Applicant started by adopting affidavit in support of the application, and submitted on issue number one that Arbitrator erred by reaching in to the conclusion that retrenchment was fair, while on the same award, admitted that procedures were violet, as shown at page 19 last paragraph and page 20, up 23 of the awards. Retrenchment cannot be fair while procedure were not followed. Termination is fair when there is fair reasons and procedure were followed. Termination was unfair because procedure for retrenchment was not followed, because there was no meeting between respondent and TAMICO to agree on retrenchment. In issue number two, applicant counsel adopted submission in issue number one as they relate to the evidence. On failure to analize evidence by arbitrator, it was submitted that it is clean that applicant were arrested on 08th March, 2006, and taken to police custody. Applicants were given termination letter dated 8th March, 2006, the same date they were arrested. Arbitrator concluded that, they were retrenched for valid reasons. Applicant were not employee for specific period, they were with respondent for long time. Circumstances of termination was based in criminal case that were being charge with. It is clear that there was no valid reasons for termination, insisted applicant counsel. Arbitrator failed to direct her mind on the evidence on records. Arbitrator's finding that procedure were violated yet he went on ruling favour of the respondent. Arbitrator did not award anything to the applicant. What was awarded is compensation. Reason for termination was not given at CMA. The award way illegal and irrational, because termination did no follow procedure. Thus,applicant be paid compensation of not less than 12 months' salary. Matter arose in 2003, the law applicable was the old laws, insisted applicant counsel. Respondent representative on the other hand submitted on ground one that there is no error at all. Arbitrator when she said at page 19 that procedure were not followed, she was referring to first letter. After being educated by labour office, then, respondent corrected the letter. Consultation of retrenchment was done by TAMICO, Labour Officer and respondent. Evidence shows that, respondent offered to pay applicants salaries in areas form March 2006, to June, 2006. Applicants refused, and have not collected to date. Their arguments are that, they needed half salary from when were charged in March 2006 up to the conclusion of criminal case on 3 29th December, 2008. Second letter of termination was on June, 2006, while termination of criminal case was in 29th December, 2008. Criminal proceeding of applicant has nothing to do with redundancy. Respondent is a contractor sometimes in road construction project. Applicant were store keepers. The project were nearly to an end. Contractor had to scale down his work force. Counter affidavit at paragraph 8 shows that, at the time applicant were declared redundant in June, 2006, respondent work had fallen down. All the applicant's work were directed to the accounts department. Applicants had no work to do, so were redundant. Respondent cannot employ store keepers while he has no work to do. Applicant were f store keeper for Mingoyo project. Since the project was coming to an end, they have to go. Applicant were terminated by way redundancy on June 2006, while criminal case came to an end on 29th December, 2008. Case for respondent at CMA was supported by evidence and labour officer who was involved in the whole matter. DW1 gave the evidence in support of the respondent. So, respondent case was worth believing. It was further submitted by respondent representative that applicant said, there was no compensation, yes there was no compensation because the law applicable was old law. Even then, applicant were sufficiently compensated by the arbitrator. Applicants were awarded four months, salary as Golden hand shake. Respondent has been ready to pay the applicant since then. The award issued by arbitrator is fair in the circumstances of the case. This application for revision has been filed without sufficient cause, insisted respondent representative. In rejoinder applicant counsel insisted Termination was not fair. Compensation only ordered payment of four month salary as Golden hand shake not provided under the law. Arbitrator awarded Golden hand shake on her own. Arbitrator did not had power to substute handshake, with compensation, much as Golden hand shake has never been disputed. From both parties submissions, the three issue are all centred in one major issue as to whether, there was sufficient evidence on retrenchment. The answer to the above is as correctly found in the evidence of DW1 Ibrahim Dickson, Labour Officer from page 48 to 49 of CMA typed proceedings. J: Niliamua kwenda kumuona mwajiri ana kwa ana na kujua taratibu gani zinazotakiwa kufuatia wakati wa kumwachisha mtu kazi. S: Ulionana na nani? '? J: Nilionana na Project Manager na Afisa Utumishi nikawaeleza kuwa taratibu za kufuata ni pamoja na kushirikisha tawi la Chama cha wafanyakazi na kwamba baadaye kutisha tawi wakubali kubatilisha barua ya tarehe 08th March, 2006 na wawalipe mishahara ya March, April na May pamoja na terminal benefits ambazo ziko kwenye barua ya tarehe 08th March, 2006 baada ya kushauriana na Field Branch. S: Je, mwajiri alikubali ushauri wako? J: Mwajiri alikubali na alitisha hicho kikao kati ya Project Manager, Field Branch na TAMICO Kharafi na waliopunguzwa kazi Francis Odilo na mwenzake. S: Unafahamu kilitokea nini baada ya mkutano huo? 5 J: Baada ya mariadhiano malipo ya Shs. 2,300,000/= zililetwa kwenye kusudi nishuhudie wanalipwa. S: Je, ninakumbuka yalikuwa ni malipo ya nini? J: Yalikuwa ni malipo ya mishahara ya miezi 3 March, April na May S: Kwa nini walikuwa wanalipwa mishahara hiyo? J: Ni kwa sababu mwajiri baada ya kueleweshwa alibatilisha barua yake na kuona kwamba hakufuata utaratibu kwa hiyo aliamua kufuata taratibu. Aliwalipa pia na terminal benefits zao ambazo mtu anastahili pale anapopunguzwa kazi. S: Je, uliletewa pesa zikiwa na kitu gani kingine? J: Nililetewa pesa pamoja na payments vocha. S: Je uliziona payment vocha? J: Ndiyo payments vocha niliziona pamoja na barua niliziona. S: Ukiona unaweza kulitambua? J: Ndiyo. S: Unaweza kuzitoa kwa ajili ya identification? J: Ndiyo. Zimepokelewa kama identification exhibits zitatolewa ushahidi na mlalamikiwa mwenyewe. S: Sasa unasema uliletewa payments vocha walilipwa? J: Walikuwa walipwe na mwajiri wao mbele yangu. S: Walilipwa? 6 J: Walikataa kupokea malipo hayo mbele yangu. From the above quoted evidence is it is clear that, procedure for retrenchment was followed after DW1 advised respondent principal officers. Two applicants were given their three month salary March, April and May following corrections of the respondent letter dated 8th March, 2006. But respondent refused to take the same. Equally, arbitrator awarded two applicants four months' salary as Golden hand shake, this has been accepted by respondent, as correctly submitted by the Mr. Emmanuel Kisusi respondent representative. Applicants rights has been explained in details from page 27 to 28 of the CMA award. The two applicants failure to receive their dues is their own fault. Procedure for retrenchment was followed in terms of evidence DW1. Respondent offered to pay applicants their dues. This court sees no reasons to depart from the CMA decision. Thus, revision application lacks merits as correctly submitted by respondent representative. CMA award is upheld. Revision application is dismissed for lacks of merits. m JJM Z.G. Muruke JUDGE 03/04/2020 Judgment delivered in the presence of Linda Mafuru for the applicant and in the absence of the respondent having notice. Z.G.Muruke JUDGE 03/04/2020