tanzania electric supply ltd tanesco vs atrid bayona 2020 tzhcld 58 29 may 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 880 OF 2018 BETWEEN TANZANIA ELECTRIC SUPPLY COMPANY LTD (TANESCO) .. ... APPLICANT VERSUS ASTRID BAYONA............................ RESPONDENT JUDGMENT Date o f Last Order: 04/05/2020 Date o f Judgment: 29/05/2020 S. A. N. Wambura. J. Aggrieved by the award of the Commission of Mediation and Arbitration [herein to be referred to as CMA] in the Labour Dispute No. CMA/DSM/KIN/R.412/570/16/432 dated 21/02/2017 which was in favour of the respondent astrid bayona, the applicant Tanzania electric supply company LTD (TANESCO) has filed this application. It is supported by the affidavit of Mr. Florence A. Kahatano, who is their Advocate. They are seeking to revise the award on the following issues:- i. Whether the arbitrator in the course o f exercising his jurisdiction, acted reasonably by concluding that the Respondent was unfairly terminated. ii. Whether the arbitrator in the course o f exercising his jurisdiction, acted reasonably by holding that parties have reached a point whereby cannot work together hence compensation is the only option. iii. Whether the arbitrator in the course o f exercising his jurisdiction, acted reasonably by ordering that the respondent be compensated. iv. Whether the arbitrator acted fairly to consider that by varying the respondent's positions the applicant breached the terms of contract between the applicant and the respondent. v. Whether the arbitrator acted fairly by considering that by varying the respondent's position the applicant demoted the respondent. The respondent filed her counter affidavit challenging the application. She was represented by Mr. Thomas Chubwa, Advocate. The brief background of the dispute is that, on 20th April, 2009 the applicant was employed as a Regional Customer Relations Officer stationed at Coast region. On 8th April, 2016, the applicant was transferred from Coast Region Sales and Marketing Department to the Head Office as a Customer Services Officer. On 3rd May, 2016 the applicant issued a 30 days' notice of resignation alleging that it was a strategic carrier move. The respondent confirmed her termination vide a letter dated 17th May, 2010. Thereafter, the applicant filed a complaint at CMA claiming to have been constructively terminated. CMA decided in her favour. Aggrieved with CMA's award, the applicant has now approached the doors of this Court praying to have the award revised. With leave of the court matter was disposed of by way of written submissions, I thank both Counsels for filling their submissions as scheduled. It was submitted by the applicant's Counsel that:- 1. The respondent was the one who decided to resign on the ground of her strategic carrier move. Therefore claiming to have been constructively terminated is just an afterthought. That on 10th May, 2016 seven days after the respondent had issued the notice of resignation, she wrote an email requesting for working equipments. respondent was unfairly terminated without any proof, citing Section 110(1), (2) of the Evidence Act [Cap 6 RE. 2002]. 2. The arbitrator ordered compensation to the respondent on the ground that parties can no longer work together. If the parties had t reached a point where they cannot continue to work together, why would the respondent pray for reinstatement in the position of Regional Customer Relation Officer? 3. The arbitrator unreasonably ordered compensation to the respondent d without considering the fact that, it was the respondent who on her own whims decided to resign and she was paid all her entitlements. Since the respondent had failed to prove how the applicant was responsible for her termination, then it was unjust for him to order the applicant to compensate the respondent. On the 4th and 5th grounds consecutively, the applicant counsel argued that, it is not true that the applicant breached any term of the employment agreement. What happened was varying of duties as stated in the respondent's employment agreement that:- " the duties o f the employee may vary from time to time as specified by the employer, but without reduction or increase in remuneration unless agreed to by both parties in writing." That the respondent was not demoted. She was just transferred to the applicant's Company Headquarters where she assumed more responsibilities. At her previous station was handling the customers at the Regional level, while at the Headquarters she was supposed to be dealing with customers all over the country. And there were no alterations as to her remunerations. In reply to the applicant's contentions, the respondent Counsel prayed to adopt the respondent's affidavit to form part of their i submissions. Mr. Chubwa contended that the respondent's resignation was caused by the applicant as he made the working environment intolerable to the respondent. The respondent was demoted from her position without any reason. She was holding a Regional Customer Relations Officer position, whereas at the Headquarters she became a Customer Service Officer. At her new working station, she was not accommodated and also was not supplied with the working tools such as a computer in order to perform her duties. Thus the only option was for her to resign as the environment were intolerable. In rejoinder, the applicant reiterated what he stated in their submissions in chief. He further submitted that the respondent does not deserve any compensation as she was adequately paid her entitlements upon submissions of her termination letter. Having gone through the arguments of both parties, I believe this court is called upon to determine the following issues:- (i). Whether the respondent was constructively terminated. (ii). The reliefs entitled to the parties. 1. Was the respondent constructively terminated? Rule 7(1) of the Employment and Labour Relations (Code of Good Conduct and Practice) GN 42/2007 provides that:- "Where the employer makes an employment employee, that resignation amount to forced resignation or constructive termination." [Emphasis is mine]. In the case of MS TCDC v. Elda Mtalo, Revision No. 01/2013 HC Labour Division Arusha Sub-Registry (Unreported) Rweyemamu J, (As she then was) defined constructive termination as herein quoted:- "A situation in the workplace, which has been created by the employer, and which renders the continuation o f the employment relationship intolerable for the employee - to such an extent that the employee has no other option available but to resign." [Emphasis is mine]. In the present matter the applicant resigned from her employment on alleged two grounds namely; (i) Demotion after being transferred from Coast Region to the Headquarters - Dar es salaam. (ii) Lack of working equipment in the latter office. Starting with the 1st ground of her resignation, that she was demoted, the respondent stated that she was demoted from Regional Customer Relations Officer position to Customer Services Officer position at the Headquarters. I have gone through the records, there is no tangible evidence tendered by the respondent to show the variance in the two positions nor the proof that she was assigned the duties of contact office department. Exhibit AB1 which is the employment agreement at the 1st Item, it was stated that:- "...Duties o f the employee may vary from time to time as specified by the employer, but without reduction or increase in remuneration unless agreed to by both parties in writing." On this basis the respondent could not claim that she was demoted by being transferred. She failed to adduce elements proving that she was indeed demoted. On the 2nd ground, the respondent alleged that she was not accommodated by being given working tools, and she was positioned at t the contact center office. 8 From records I found that the letter of transfer (Exhibit AB6) was issued on 8th April, 2016 and she was supposed to report after seven (7) days. Meaning she reported on or about the 15th of April, 2016. On 3rd May, 2016 the applicant wrote a 30 days' notice of resignation. It is apparent that it was only 18 days that she had spent at her new station. It is my view that, 18 days was a short period for the respondent to • ) opt for resignation considering the fact that she did not make her claims to the Management until after her notice of resignation was tendered as evidenced by Exhibit A5 dated 10th May, 2016 while notice of resignation was issued on 3rd May, 2016. For constructive termination to stand, the respondent was supposed to prove that there was no other motive for resignation, save that the employer was responsible for the intolerable conditions and that there was no other way of resolving the issue except by resignation. What I have observed is the respondent's lack of tolerance because her claims could have been solved administratively. Yet there is no proof that she tried to resolve the same prior to tendering her resignation notice. 9 In view of the above, I find the arbitrator's findings that the respondent was constructively terminated unjustified. 2. What are reliefs entitled to the parties? Having found that there was no constructive termination then I herein allow the application, quash and set aside the Arbitrator's award. 29/05/2020 10 IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 880 OF 2018 BETWEEN TANZANIA ELECTRIC SUPPLY COMPANY LTD (TANESCO) APPLICANT VERSUS ASTRID BAYONA RESPONDENT Date: 29/05/2020 Coram: Hon. S.R. Ding'ohi, Deputy Registrar Applicant: For Applicant: Mr. Sixmurd Mhagama Legal Officer Respondent: i Absent For Respondent: _ CC: Lwiza COURT: Judgment delivered this 29th day of May, 2020. 29/05/2020