tanzania international container terminal services ticts vs fulgence steven kalikumtima others 2018 tzhcld 19 20 april 2018

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 471 OF 2016 BETWEEN TANZANIA INTERNATIONAL CONTAINER TERMINAL SERVICE (TICTS) .................... APPLICANT VERSUS FULGENCE STEVEN K A LIK U M TIM A 'i I I CHRISTOPHER MILANZI FULMANCE UKANE ' i SALOME SALEW A 1 RESPONDENTS MUZRAH MASINDE ARON NICK KAMARA HARUNA KARAMA JAMES J. MUGERA ! JUDGM ENT Date of Last Order 10/04/2018 Date of Judgm ent 20/04/2018 NYERERE, J. The applicant/ Ta n z a n i a i n t e r n a t i o n a l c o n t a i n e r t e r m i n a l s e r v i c e (t i c t s ) file the present application seeking revision of the award of the Commission for mediation and Arbitration (CMA) on eight grounds articulated at paragraph 6 of the supported affidavit summarized as; (i) That the Hon. Commission for mediation and arbitration at Temeke erred in law in granting reliefs to people who were not parties in the commissions proceedings since the names of those who filed the complaint are different from the names of those who testified before the commission as well as are different from the names of those who got the reliefs by the commission. (ii) That the hon. commission for mediation and arbitrator at Temeke erred in law since other respondents did not testify before the commission but still were award a relief without proof of their claims. (iii) That the Hon. Commission for mediation and arbitration at Temeke erred in law and facts for deciding that the termination of the respondent's employment was unfair. (iv) That the Hon. Commission for mediation and arbitration at Temeke erred in law and facts in ruling out that the applicant had failed to disclose sufficient reasons and or cause for termination. (v) That the Hon. Commission for mediation and arbitration at Temeke erred in law and facts in refusing to admit and or 2 consider the applicants evidence thus wrongly ruled that the applicant's evidence is basing on weak circumstantial evidence. (vi) That the Hon. Commission for mediation and arbitration at Temeke erred in law in ordering that the respondents being paid 24 months' salary following the "aggressive" termination without considering that the respondents were paid 3 months' salary upon termination as per their employment contract. (vii) That the Hon. Commission for mediation and arbitration at Temeke erred in law for failure (when granting the reliefs in favour of the respondent of payment of 24 months to all) to consider that the respondents employment was for specific period of time which would end automatically upon lapse of the remained months. (viii) That the award is unlawful, illogical and irrational. Briefly facts of the application are that on 9/08/2011, the complainants filed a complaint to the CMA, alleging unlawful termination and prayer to be reinstated. However prior to termination, the complainants were suspended from employment, to allow investigation against them. On 2nd August 2011 complainants were summoned for disciplinary hearing and on 5th August, 2011 they were issued with letter of termination that complainants attitude of work has deteriorated to a level that cannot be tolerated by the employer, as well as the said complainants were among 3 employees whose name have been frequently mentioned in the cases of container theft. Such decision aggrieved complainants and thus they referred a complaint to the Commission for Mediation and Arbitration. The CMA presided over by Hon. Johnson I. Faraja, Arbitrator decided in favour of the complainants that termination was substantively and procedurally unfair; Applicant again aggrieved by the CMA decision and knock the doors of this Court praying that the CMA decision be quashed and set aside. At the hearing the applicant was represented by Mr. Bernard Shirima, Advocate whereas Respondent was represented by M/S Glory Venance Advocate. Arguing the grounds for application Mr. Bernard Shirima learned Counsel for Applicant prayed to withdraw ground (III), (IV) and (V) of revision. He started arguing ground (viii) for revision that, the CMA award is unlawful, illogical and irrational. That Section 91(2) (c) of the Employment and Labour Relations Act is for making a revision when the award is unlawful, illogical and irrational. Counsel for Applicant contended that the CMA awards contravenes Rule 27(3) (f) of GN. 67/2007 of the Labour Institutions (Mediation and Arbitration Guidelines) Rules which requires the award to be precise. He argued that the CMA award is not precise, it does not state the total amount awarded to the respondents. That page 21 of the award states; "The respondents are awarded 24 months salaries" Counsel for Applicant was of the view that for the award to be precise the amount awarded to each respondent's should have been seen in the award and proceedings. That this will help in the execution of the award. Counsel for Applicant argued that respondents has filed Execution Application No. 26/2018 before Hon. Simfukwe Deputy Registrar claiming to be paid T.shs. 96,833,803/=, that this amount does not appear in the CMA award or proceedings. Counsel for Applicant on ground no. (I) & (II) jointly, argued that the names of the respondent's who testified before CMA are different from the names of those who got relief at CMA. He argued that m uzah m a s in d e testified and obtained the relief; also f u l g e n c e s t e v e n k a l i k u m t i m a testified as PW 2 however who got relief is FULGENCE k a l i k u l i m a . Further Counsel for Applicant argued that k a l i k u m t i m a and k a l i k u l i m a are two different names. Counsel for Applicant went on to submit that at page 7 of CMA award one FULMANCE u k a n e testified as PW3 but at page 24 of the Award the one who got the relief is fu lg e n ce ukani, that fulm ance ukane and fulgence u k a n i are tw o d iffe re n t nam es. Counsel for Applicant proceeded to submit that at page 7 of the CMA award one C h r i s t o p h e r m lan zi testified as PW 4 but at page 24 of the award the one who got relief is C h r i s t o p h e r u la n z i, which MLANZI and ULANZI are two different names. Counsel for Applicant went on to argue that at page 8 of the award one J. m u g e r a testified as PW5 but at page 5, however the person who got relief is j a m e s m ig e r a . Counsel for Applicant contention is J. m u g e r a and JAMES m ig e r a is two different persons. Similarly at page 8 of the award, that one a r o n n ic k k a m a r a testified as PW6 however h a r u n a k a m a r a got the relief. That a r o n n ic k k a m a r a and h a r u n a k a m a r a are two different names. Counsel for Applicant argued that there is no Affidavits or Deed Polls to state the difference of names in which refers the same people. Further Counsel for Applicant argued that Sa l o m e s a l e w a did not testify but was awarded reliefs, in the CMA award at page 24. Submitting on ground no. VI & VII, Counsel for Applicant argued that there was no justification granting 24 months salary to respondent's as compensation and that arbitrator on finding the termination was unfair he could award 12 month salary. Counsel for Applicant went on to argue that respondent's had fixed term Contract; the arbitrator should have awarded respondent's salaries for the remained period. Counsel for Applicant prays court to revise the CMA award and proceedings for being unlawful, illogical, irrational and not precise as required by the law. In rebuttal M/S Glory Venance Counsel for respondent's responded to ground no (viii) and argued that applicant is contending that the award is not precise only because it did not state the amount that was awarded to each respondent. She argued that the applicant /em ployer know the salary of each employee/respondent likewise the employees themselves know their last salary which they were paid. It is her contention that applicant should have contested the amount during Execution proceedings. Counsel for respondents submitting on ground no. (I) & (II) as in regard to the names of the respondents who testified at CMA, that are different from the names of those who got reliefs in the CMA award. She contended that, this is human error which can be corrected by writing a letter to the CMA and rectify the names in the award so that they can appear as in CMA form No. 1 which was filed by respondents. Hence, the human typing error that occur in CMA award should not cause delay of justice to the respondent's herein since they have been prosecuting this! case for about eight years now. Regarding the issue of s a l o m e s a l e w a that she did not testify, she argued that all the respondents herein were terminated on the same offence, therefore the evidence of the other six respondents were enough to avoid repetition before the CMA. Submitting on ground no (VI) & (VII) Counsel for respondents argued that the CMA award is justified, that the applicant failed to prove the termination of the respondents was fair as required by Section 39 of Employment and Labour Relations Act No. 6/2004 and Rule 9(3) of GN No. 42/2007 of Employment and Labour Relations (Code of Good Practice). Concerning the argument by the Applicant, that there was no justification for awarding 24 months salary. She is of the view that Section 4 0 (l)(c) o f the Employment and Labour Relations Act No. 6/2004 empowers the arbitrator upon finding termination is unfair to order compensation to the employee of not less than twelve months remuneration. She contended that the arbitrator was right in awarding 24 months salary compensation because he finds that the termination of the respondents was both procedural and substantive unfair. In concluding and responding to Applicants submission that, the respondents should have been awarded salaries of the remained period of their fixed contract. Counsel for respondents was of the view that this ground lacks merit because the employer did terminate the employees unreasonably and arbitrarily, thus prayed this court to uphold and maintain the CMA award and dismiss the revision application. In rejoinder, Mr. Bernard Shirima Counsel for Applicant reiterated his submission in chief and proceeded to argued that Rule 27(3) (f) of GN. 67/2007 requires an award to contain precise outcome of the arbitration. After carefully examined and evaluated the parties' arguments in light of the evidence on CMA record of proceedings and my understanding of the law and practice in deciding unfair termination disputes. I find issues for determination as follows; (i) w hether the termination was fair substantively and procedurally. (ii) To w hat relief (s) parties are entitled to. The record and submission by the parties shows that the respondents were terminated for reasons of deteriorated work attitude and complainants being among employees whose name have been frequently mentioned in the cases of container theft. It has been observed by the Arbitrator that applicant relied on circumstantial evidence, the testimony of DW1, at page 15 of the CMA award, in which evidence was not collaborated to support evidence against respondents. In that regard the arbitrator found the complainant did not discharge his duty to justify the termination as provided under Rule 9 (1) of the GN.42 of 2007, where the burden of proof lies with the employer and the employer is to prove the reason on the balance of probabilities as per Rule 9 (3) of the GN. 42 of 2007. This is also the position of the Act where under Section 37 (2) provides that; "A termination of employment by an employer is unfair if the employer fails to prove- (a)That the reasons for termination is valid; (b) That the reason is a fair reason- (i) Related to the employee's conduct, capacity or compatibility; or (ii) Based on the operational requirements of the employer, and (c) That the employment was terminated in accordance with a fair procedure." In regard to whether there was substantive reason to terminate the respondent, it is without flickers of doubt that respondents were terminated on unfounded charges which were never substantiated, in which I, agree 10 with the CMA findings that respondents termination was substantively unfair. It is undisputed fact, that there was loss of containers at the applicant's premise, a fact which was further established by PW6 at page 49 of the CMA proceedings, that PW6 was responsible for clearing containers at TICTS and it was his duty to file information of containers that were cleared for exit in the system and copy of it was handed to the driver responsible in transporting the containers. PW6 established that only TICTS security was responsible for checking final order and release vehicles that had been cleared for exit. Furthermore, PW1 testified, that it was his duty to make sure containers cleared exit correctly, that it was not possible for a container to exit TICTS yard without being noticed by TICTS staff as evidenced at page 51 of CMA proceedings. From The evidence of all two witnesses who testified before the CMA, their testimony establish applicant had valid ground to investigate the respondents on the alleged theft. However on perusing the court records, there is no record of the investigation report (s) in which the applicant based his reason for suspending and latter terminating respondents 11 employment as per Exhibit DW1B. Basing on the above the facts they support the arbitrators reasoning that Applicant relied on circumstantial evidence. The applicant ought to rely on the investigation report to collaborate his allegations. Thus the arbitrator correctly considered evidence advanced at the CMA. And its clear there was no concrete proof of respondents involvement in alleged theft, thus I do not find reason to fault Arbitrators findings that there was no valid reason to terminate the respondents as required by the law. As to the issue of procedural fairness of the respondents termination, Section 37 (2) (c) of the Act provide that a termination of employment by an employer is unfair if the employer fails to prove that the employment was terminated in accordance with a fair procedure. Also Rule 13 of the Employment and Labour Relation (Code of Good Practice) Rules, GN 42 of 2007 provide very clear the procedure for termination of employment. First and foremost this Rule requires the employer to conduct an investigation to ascertain whether there are grounds to charge the employee concerned and thereafter conduct disciplinary hearing, Rule 13 (1) of the GN. 42 of 2007 states; 12 "The em ployer shall conduct an investigation to ascertain w hether there are grounds for a hearing to be held." And where the hearing is to be conducted, the employer shall notify the employee of the allegations using a form and language that the employee can reasonably understand; this is clearly provided under Rule 13(2) of the GN. 42 of 2007. More so after investigation the law under Rule 13 (5) of the GN 42 of 2007 provides that; "Evidence in support of the allegation against the employee shall be presented at the hearing, the employee shall be given a proper opportunity at the hearing to respond to the allegations, question any witness called by the employer and to call witness if necessary." Also Article 7 of the Termination of Employment Convention (ILO) No. 158 of 1984 provide for the fair procedure before the termination of an employee, the article provide;- 'The em ploym ent of a worker shall not be terminated for reasons related to the worker's conduct or performance before he is provided an opportunity to defend himself against the 13 > i allegations made, unless the employer cannot reasonably be expected to provide this opportunity." After a thorough perusal of the submissions, CMA record it is crystal clear the disciplinary hearing committee of the applicant violated the provision of section 37(2), of the Employment and Labour Relation Act, and Rule 13 (5) of GN.42 of 2007 which forms the basis for fair disciplinary hearing in my view. As established in the court records, the applicant suspended respondents in order to conduct investigation; however there is no scintilla of evidence to substantiate that applicant conducted an actual investigation. Therefore, it indicates that the applicant charged the respondents and finally terminated their employment before conducting investigation as required in law. Thus I am of the considered view, the arbitrator did consider that there was no investigation which was conducted; this is in the absence of such proof i.e. investigation report, which rendered the whole process illegal. This is the position of the court in the case of Fredrick Mizambwa v. Tanzania Ports Authority, Revision No.220 of 2013, and HC Labour Division at Par es Salaam fUnreported), In our instant case the respondents in their CMA F .l prayed for the reinstatement, however arbitrator granted twenty four (24) months salary 14 after adjudging termination to be substantively and procedurally unfair. But applicant is faulting such discretion on ground that there is no justification of awarding the same to respondent's as compensation, in which applicant observed that where arbitrator finds the termination was unfair he ought to award 12 month salary as per Section 40(1) (c) of the Employment and Labour Relations Act, No. 6 of 2004. In line to the above, I am of the considered view that, it is the discretion of a Judge or Arbitrator to give an award that is considered just and fair depending on the circumstances of each case, though is restricted to comply by what is or are indicated in CMA FI as was decided in the case of Power Roads (~DLTD vs. Haii Omari Nqomero, Revision No. 36of 2007, where, Hon. Mandia, J (as he then was) held that; " ........there is noprovision in the Employment and Labour Relation Act, or in the Labour Institutions Act, particularly section 20 on powers of Mediators and Arbitrators allowing Mediators and Arbitrators to make changes suo moto, on what appears on the referral form. The additions made by the arbitrator are therefore illegal and set aside...." Subscribing to the above, I proceed to award the respondent's twelve (12) month's salary compensation under Section 40(1) (c) of The Employment and Labour Relations Act, No. 6 of 2004 and consequently quashing the award of twenty four (24) months salary compensation. Further for the interest of justice, the court takes into consideration that respondents have been pursuing their rights for a longer period of time, therefore remitting this matter to start afresh in the CMA will defeat the end of justice. The court took cognizance of the fact that it was the arbitrator's error which occasioned misspelling of respondent's proper names in CMA award. This being a court of record, law and equity it is justifiable for this court to order the respondents to go back to CMA to make corrections of their names to match with the CMA Form No. 1, as the same is curable under Rule 30(1) of GN. 64/2007 and Section 90 of Employment and Labour Relations Act, No. 6/2007 which allows amendment of clerical error made by Arbitrator in making an award. That section 90 of the Employment and Labour Relations Act, GN No. 6/2004; states; "an arbitrator who has made an award under section 88(8) may, on application or on his own motion, correct in the award any clerical mistake or error arising from incidental slip or omission". 16 In the end result the application partly succeed to the extent stated above. It is so ordered. A.C. Nyerere JUDGE 20/04/2018 Date: 20/04/2018 Coram: Hon. S. Kainda, DR. Applicant. ^ Q 0ry venance, Advocate brief for Mr. Bernard For Applicant: — * Shirima, Advocate Respondent: > - Ms. Glory Venance, Advocate For Respondent^! C.C. J. Kalolo Ms. Glory V enance: The matter is for Judgement. We are ready. Court: Judgem ent have been delivered today in presence of Ms. Glory Venance, learned Counsel for respondents also holds brief for Mr. Benard Shirima, Advocate for applicant. S. Kainda DEPUTY REGISTRAR 20/04/2018 Court: Right of Appeal fully explained. ^ 1/ I/'-^UaA S. Kainda DEPUTY REGISTRAR 20/04/2018 17