tanzania portland cement co ltd vs frank maziku 2021 tzhcld 95 23 april 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 674 OF 2018 BETWEEN TANZANIA PORTLAND CEMENT CO. LTD................................. APPLICANT VERSUS W .r, FRANK MAZIKU................................................................... RESPONDENT JUDGMENT Date of Last Order: 02/03/2021 Date of Judgment: 23/04/2021 A.E MWIPOPO, J, This is revision application against the Commission for Mediation and Arbitration (CMAlin^kabbur Dispute No. DSM/KIN/R.490/14/618 which was delivered'bn 31708/2018 by Hon. Nyagaya, P., Arbitrator. J? or Tanzania Portland^Cement Co. Ltd, the applicant herein, is applying to fthis Courffbftan order in the following terms:- ^l^That, this Court be pleased to revise and set aside the whole proceedings and award of the arbitrator in the CMA Labour Dispute No. DSM/KIN/R.490/14/618 delivered on 31st August, 2021 by Hon. Nyagaya, P., Arbitrator. i 2. That, this Court be pleased to grant any other relief(s) as it deems fit. The application is accompanied with Chamber Summons and is supported by Affidavit sworn by Jesse Shuma, Applicant's HR Director. The Applicant's Affidavit contains three grounds for revision in paragraph 13. The grounds are as follows hereunder;^ *&v/> i. The award is illegal, has irregularities^and does^iot reflect the evidence and findings of‘the Commission as the Arbitrator exhibited biasness'by holding that there was no proof that there^was communication with TRA in total disregarding tp^the^Applicant's evidences. - ii. Whether it^isXlegally correct for an employee to be represented^by^a third part Trade Union while he is a %^qmemoer^pf another Trade Union. Whether this does not ^^brig’g-about disrupt of CMA proceedings. The Respondent ^was a member of TUICO and he was represented by X TUPSE. iii. The award is contradictory, contains irregularities and contains errors material to the merits of the subject 2 matter, for ordering payment of monetary award without proofs and ascertainment of the Respondent's salary. The brief history leading to the present application was that: The Respondent namely Frank Maziku was employed by the Applicant on 12th May, 2008 as Process Engineer for unspecified period. The Respondent was terminated from the employmenLfor^isconduct on 20th August, 2014. The Respondent referred thejdisputefethe CMA OxS - (r* which decided the matter in his favor. The ^pplicant^was aggrieved by the Commission award and decided tp„.fiid<the present application. ft" At the hearing of the application,, the)applicant was represented \\ & by Mr. George A. Shayo,AAdvocate,Bwhereas the Respondent was represented by Mr. Michael Mgombozi, Personal Representative. Hearing of the ^plicatioppproceeded by way of written submission followingThe^Courtigrder. Iflie^ppliGant consolidate ground no. i and iii of the revision and C argue^l tye-two grounds jointly. The Applicant Counsel submitted in respect of the consolidate ground that the Arbitrator erred not to consider his objection which was raised on 15th May, 2015 that the dispute was referred improperly before the Commission as it was based on Collective Bargaining agreement. The Respondent prayed in CMA 3 Form No. 1 to be paid terminal benefits as per the outcome of the Chairperson of Disciplinary Committee which was in accordance with voluntary agreement. The Respondent had no issue with the termination but he wanted his payment to be paid in accordance with Voluntary Agreement. The Commission had no jurisdiction to.entertain £ the matter since the dispute centred on sectiohW4(aMof^the Employment and Labour Relations act, cap. 366>,R?E. 2019X It was further submitted by the Appjicaqt that<he Commission improperly interpreted the law and helcl^tha^theVkpplicant confused between the nature of the dispute anddthe outcome of the dispute. The Vi CMA was of the opinion that the<Qatune* of the dispute was indicated in the CMA Form No. 1 td':bezunfair termination regardless of his prayer to be paid his/tefminal^odhefits as per voluntary agreement. The Arbitrat6r<faHefr? rule 3(5), 13(4) (a), 13(5), 16(1), (2) and (3) ofijthejLabour Institutions (Mediation and arbitration guidelines) -i Rules, G.NPNo. 67 of 2007 on determination of the nature of the "S.'/ dispute and certifying if the dispute has resolved or not. The Counsel was of the opinion that the Commission relied on the interpretation in the book of C.K. Takwani at page 158 and the case of Morogoro Canvas Mills (1998) Ltd vs. Mwamsumbi, 4 case No. 106 of 2009, the authorities which are irrelevant to the matter at hand. The Commission interpreted the voluntary agreement provisions in reaching out to its decision which is contrary to section 74(a) and (b) of the Act as seen in page 11 of the ruling. Thus, the Commission conferred itself with illegal jurisdiction which is^solely for \\ v- High Court Labour Division by changing the nature/Ofxthe dispute. To support the position the Applicant cited the case^of SDV TRANSAMI । /■ 'X'X (T) Ltd vs. Faustine L. Mungwe, Revision No. 277of 2016, High % Court Labour Division, at Dar Es Salaam, (IJrireported). The Applicant Counsel]?submitted ^further that even if it is re­ considered that the Commission Jiad jurisdiction to entertain the dispute yet the award<1s illegal, irregular and does not reflect the evidence and findingsaward. The Applicant's evidence proved $ through Tntema^Inyestigation Report - Exhibit DI and oral testimony of DWTand^DW3that the Applicant attached forged taxi receipt in the % Cr imprest retirement form. The Arbitrator discredited the Applicant's evidence for the reason that there is no evidence to support the evidence that TRA was communicated and Exhibit DI does not state where it come from and where it was addressed. But the Exhibit DI shows in its introductory part that investigation was on claim together 5 with the receipt forwarded and the investigation was done by E. Amon and Gregory Ndimbo. The Arbitrator never made analysis on the balance of probability of what was stated by DW1 and DW3 and the content of Exhibit DI in respect of the allegation that the receipt tendered by the Respondent were forged. The Arbitrator did not consider that the Respondentadmitted to his misconduct by issuing a v letter dated 1st August, 2014 - Exhibit D8 which>was written by the Respondent as his mitigation during discipljnafyjieariog. Further, the Applicant CounseLsubmitted 'that the award is contradictory, it contains irregularity-and errors material to the merits of the subject matter. The^Arbitratorordered the Applicant to pay the Respondent compensationxon the basis of Respondent's salary of shillings l,950/290/=^hipwever, the Respondent's employment -A contract datedi31^May, 2010 - Exhibit D2 shows that the Respondent Xs J’4 salary^was^shiliings 1,183,644/=. Thus, the Arbitrator used a wrong salaiy as basis of Respondent calculation. Then, the Applicant Counsel submitted on the remaining ground of the revision that the Respondent was represented by Mr. Michael Mgombozi who is from Trade Union known as. TUPSE which is for private security employees while the Respondent was a member of 6 TUICO which is the union for industrial and commercial workers. The TUICO was involved in the whole disciplinary proceedings hence could have properly guided the Respondent on this matter incliding the issue of claims for voluntary agreement. He is of the view that under rule 23(1) of the Labour Institutions (Mediation and Arbitration) Rules, G.N. No. 64 of 2007, and rule 7(a) (b) and rule 21(1) (a)'(b)-.of G.N\No?67 of 2007 directs openly that whenever there isTieed of representation then the representation may come from a membePofficial of a party's Vx XN trade union, employer's association ptJiri^Advocate. Also, section 56 (a) (b) (c) of the Labour Institution Act, Cap. 300, R.E. 2019, provides that the party can be represented_by!?personal representative of the party's own choice. Since TUPSE was not Respondent's Trade Union it was wrong for the^personarrepresentative from TUPSE to represent the ResponaentxThe^pplicant prayed for application be allowed, the CMA pfoceedings^be quashed and its award be set aside. fl X. X^Replying to Applicant's submission, the Respondent's Personal Representative submitted all Applicant's grounds of revision together. He argued that the Arbitrator correctly held that the Respondent was unfairly terminated from employment by the Applicant. The Applicant did not conduct the investigation per requirements of the labour laws. 7 The Arbitrator evaluated the evidence in record and found that Exhibit DI which was the basis of Applicant's decision to terminate the Respondent. The evidence shows that the Respondent was terminated without being heard. To support the position the he cited the case of BIDCO Oil and Soap Ltd vs. Robert Matonya and 2. Others, Es Salaam, (Unreported). The Respondent averred that the Respondent Tetter - Exhibit D8 was to accept termination. The letterXwas>wrote after he was AM ' commit.the alleged offence as^iK^is)alleged by the Applicant. The % x-x the Commission,^iXisraisedTor the first time before this Court hence <;\ 'K "ft the samemas'to^be^sregarded. IJhe^Respondent's Representative submitted regarding the salary (O"' which is the' basis of the Commission award that the Respondent tendered his salary slip- Exhibit FM3 which shows that his salary was shillings 1,950,290/= per month. Also, the Commission has power to order other terminal benefits together with compensation for unfair termination which is provided under section 40 (1) of the Employment 8 and Labour Relations Act. The respective terminal benefits are provided under section 44(1) of the Employment and Labour Relations Act, Cap. 366, R.E. 2019 and includes any remuneration for the work done, annual leave pay, accrued annual leave, notice pay, severance pay and transport allowance if any. Thus, the Commission award was justified and was in accordance with the law. The Representative\qtecrtn Xk VO support of the position the case of Access Bank>Tanzania> Limited vs. Raphael Dismas, Revision No. 39of2015, High Court Labour Revision, at Dar Es Salaam, (Unreported). Regarding the Applicant's submission that the Respondent was improperly represented by.Mr.Xichael? Mgombozi TUPSE which is for private security employeesxwhile the Respondent was a member of TUICO. which is/tlTe^unTonJpr industrial and commercial workers that, the Respondent's^Representative submitted that the dispute at hand is betweefTthe employer and the Respondent. It was not filed by TUICO. Xk ' ox TUPSfE was^hot party to the dispute. The Respondent has right to choose who can represent him in this dispute. To support the position he cited the case of Eva Dominick Kamote vs. Wanyama Hotel Co. Ltd, Revision No^ 687 of 2018, High Court Labour Division, at Dar Es Salaam, (Unreported). 9 The Respondent the prayed for the application be dismissed and the CMA award be upheld. In rejoinder, the Applicant retaliated his submission in chief and emphasized that the Respondents Representative is admitting at page 2 of the submission that since it was the first misconduct by the ZX \\ Respondent he was not supposed to be terminated^But, the law is X clear that there are situation which allows the^employer to^erminate f A employee who commits the misconduct footie first^time. The issue NS raised by the Respondent that he was^condemned unheard is new and was never raised before the/ Commission^ hence this Court has to % disregard it the same to the issiie^thaVthe Respondent was forced to accept termination. Tfe^Salary slip tendered by the Respondent as Exhibit Cl was heavilyTross'examined hence it is worthless. —A Fro^hec^submi,ssions, there are five issues for determination. The issues-are^asToIlows; - Z\j) ^whether the Commission had jurisdiction to entertain the matter. ii) Whether the award was properly procured by the arbitrator at CMA. iii) Whether the reason for termination was valid and fair. io iv) Whether the procedure for termination was fair. v) What are the reliefs entitled to parties? Commencing with determination of the first issue about the jurisdiction of the Commission to entertain the dispute, the Applicant submitted at lengthy that the dispute before the Commissionzwas about the interpretation of the Collective Bargaining Agreement which 'its jurisdiction is vested to the High Court Labouf<Diyision uncler section 74 of the Employment and Labour Relations Act, Cap>366, R.E. 2019. Thus, the Commission erred to hold that if has jurisdiction to determine Z .jf'" f- the matter. The Respondentias of^the opinion that the Commission rightly held that it has jurisdictipnjtp^entertain the matter since the CMA Form No. 1 showsxthat the nature of the dispute was unfair termination of th^Respondeht's employment. % % I haye,;re'adxthe^espective CMA Form No.l the document which instituted^the'dispute before the Commission. The CMA Form No. 1 shbvys that^the nature of dispute is termination of employment. The form further shows that the outcome of the mediation is payment of Respondent's terminal benefits as per outcome of the Chairman of Disciplinary Hearing Committee. The Respondent filled in the part B of the CMA Form No. 1 which is additional form for termination of ii employment dispute only. The additional form shows that the Respondent started to work to his employer on 12th May, 2008 and was terminated for misconduct on 20th August, 2014. The form further shows that the Respondent feels that the termination was procedurally unfair because he was not given an opportunity to cross-examine Xi? \\ employer's witnesses and the employer failed to caltwitness to prove his case before the Disciplinary Committee. Also<the Respondent also feels that the reason for termination was unfair because there is no evidence to prove the alleged reasons Jotter mi nation. This evidence proves that the dispute before the Commission was about fairness of termination of employment. The Applicant was^of the opinion that since the Respondent claim x*. xS- % vx to be paid termihal^b^pefits as per decision of the Disciplinary Committee^hich'shows that the Committee outcome of the hearing recomipriended^that the Respondent to be terminated with pay according joXollective Bargaining Agreement (CBA). This Applicants submission is misconceived for the reason that the claims for payment of terminal benefits was outcome of the respective dispute and not the nature of the dispute. The Respondent did not file at all the dispute regarding interpretation of Collective Bargaining Agreement. Thus, the 12 Commission was justified to hold that it has jurisdiction to entertain the matter. Therefore, I find the first issue is positive that the Commission had jurisdiction to entertain the matter. The second issue is whether the award was properly procured by the arbitrator at CMA. The Applicant argued that award doe^ not reflect the evidence and findings of the Commission as theWbiftator exhibited biasness by holding that there was no pjopf that7 there was communication with TRA in total disregaraipg tb^the Applicant's evidences. The Applicant alleged that the%espqndent was represented by Personal Representativefrrom xJTUPSE which is Trade Union representing employees from prj^atejsecurity while the Respondent W, was member of TUICO.. which is Trade Union for Industrial and % Commercial Worlds, ThelRespondent was of the opinion that the H TA Xk w. Xx Vs Commission f a ward-xefIects the evidence and findings of the Commission. "The Respondent submitted regarding the issue of C. Personal ^Representative that the .dispute at hand is between the employer and the Respondent. It was not filed by TUICO. TUPSE was not party to the dispute. The Respondent has right to choose who can represent him in this dispute. 13 The Labour institutions Act, Cap. 300, R.E. 2019, provides in section 56 (a) (b) and (b) that a party to the proceedings may appear in person or be represented by an official of a registered trade union or employer's organization, a personal representative of the party's own choice or an advocate. But, this is in regards to the discretion of party to the proceedings before the Labqpr Court,to~be represented by any representative of his own choice. % The provision of the Law which provides fbr^representation before the Commission for Mediation^and^Arbitratibn is Section 86(6) and Section 88(7) of the Employmehtandslabour Relations Act, Cap. \\ 366 R.E. 2019. These Sections which/Were amended by Written Laws r (Miscellaneous Amendments) Act, Act No. 8 of 2006 provides clearly /X. that a party tp^Meftiatrdn or Arbitration proceedings may be represehtedzby<>asxnnember or official of that party's trade union or employer's^asspciation or an advocate or a personal representative of part^ own-choice. Despite the facts that rule 23(1) of the Labour Institutions (Mediation and Arbitration) Rules, G.N. No. 64 of 2007, and rule 7(a) (b) and rule 21(1) (a) (b) of G.N. No. 67 of 2007 provides that whenever there is need of representation then the representation may come from a member official of a party's trade union, employer's 14 association or an Advocate. But, since the Employment and Labour Relations Act, Cap. 366, R.E 2019 provides clearly that personal representatives of party's own choice are allowed to represent them before the Commission, the party to the dispute before the Commission may be represented by personal representative of their own choice. Thus, the allegation that the Respondent was nof'supposeid^to^be \n V represented by personal representative from different trade^union has no basis. Furthermore, the issue of personal representative was not raised before the Commission. It isfraised'Tor the first time in this revision Vi; which means that it is an afterthpiight. The party, especially the Respondent, had no opportunity to address the matter before the % Commission for ,the:Courttcrbe able determine it. Thus I find that the U A issue is newfand, has-been raised for the first time before the Court. Looking attHe Commission award it is very clear that it contains the^details^of the parties, issues in dispute, history background, summary of evidence and argument, reasons for the decision and the precise order as provided under rule 27(3) of the G.N. No. 67 of 2007. The allegation that the Arbitrator was biased by disregarding Applicant's Witnesses oral testimony has no basis since the testimony 15 of DW1 and DW3 concerning the TRA report about the alleged motor vehicle registration number found in the taxi receipt attached with the retirement imprest was challenged by the Respondent. Thus, the same requires another evidence to support it. However, there is no TRA report which was tendered. Also, it was not clear as to whom the z Vs % investigation report was addressed to. Hence, thefevismo biasness at Arbitrators' decision. Thus, I find that the Commission award was properly procured hence the answer to the^second issue is positive. %% Turning to the 3rd issue whetherjfF&reasbn for termination was valid and fair, the Employmen/and LabourBelation Act, Cap. 366, R.E. 2007,provides in section. 37(2)M§)x|nd (b) that a termination of that the reason<for^tefmination is valid and fair. Onus of proof for ♦ c $ fairness^f,|emHpatigiS'is on the employer as per Section 39 of Cap. 366 and the ptoof is on a balance of probabilities. * ... %%Jt L> is^ih record that the Respondent was charged for the disciplinary of offence of cheating on claiming expenses for taxi from the factory to port, forging of documents for his own benefit. The hearing form - Exhibit D6 shows the evidence presented before the Disciplinary Committee was investigation report, Respondent's 16 statement, receipts and witness statements. I have read the investigation report, witness statement of Abdallah Hamisi and Respondent statement. It is clear that there is no evidence to prove what has been alleged in the investigation report. There is no proof of forgery of the taxi receipt. Abdallah Hamisi statement shqyvs that he gave the Respondent taxi receipts worth in total shillings 60Q>000/ This means that if these receipt were forged itrwas the witness who forged it. Concerning the remaining tax^ feceiptsxtb'e Respondent denied in his statement to forge the .Receipt. Tjie^hvestigation report was not supported by evidence^from'TRA id prove that the alleged taxi registration, numbers in theTeceipts^spme were for trucks, motorcycles, tricycles and SUV's. Thus, Rfind that there was no sufficient evidence to prove the reasdh;for<tejmination as it was held by the Commission. Tffe^TlsisiJ^iswvhether the procedure for termination was fair. SectioiT3Z(2) (c)~of the Employment and Labour Relation Act, provides 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. The fair procedure for termination for misconduct is provided under rule 13 of the Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007. 17 It is in record that the Applicant followed some of the procedures in terminating the Respondent for misconduct. The Applicant informed the Respondent about the misconduct as shown by Exhibit D3, Investigation was conducted and the report was made as shown by Exhibit DI, the respondent was notified of disciplinary hearing as per Exhibit D6 and disciplinary hearing was conducted as snpwn byjhearing "X form - Exhibit D7. Then, the Applicant was notified of the outcome of the disciplinary hearing as per Exhibit D12 ahq\he wasjnotified of the X, X terminated as per Exhibit D13. Xv X\ v However, the evidence available-shows that the Respondent was X *-1! X\ S not given the respective investigation/eport which was the basis of the disciplinary charges. Faijhurebto accord the employee with the report which is the basis’bf-allegation amount to deny the employee right to be heardfeThis-ppsitio^ was taken by the Court of Appeal in the case XiA \X ' of Seyero^Mutegeki and Another vs. Mamlaka ya Maji Safi na Usafi waMazingira Mjini Dodoma (DUWASA), Civil Appeal No. 343 of 2019, Court of Appeal of Tanzania at Dodoma, (unreported). Further, the Respondent alleged that he was denied right to hear witnesses and to cross examine them during disciplinary hearing. The Hearing Form - Exhibit D9 shows that the evidence which was relied 18 by the Disciplinary Committee in reaching decision was investigation report, Respondent's statement, receipts and witness statement. This prove that employer's witnesses were not called to the disciplinary hearing. Also, the hearing form does not show if the Respondent was given an opportunity to call his witnesses. This is contralto rule 13 (5) of G.N. No. 42 of 2007 The Applicant alleged that the Respondent;did write<a letter - ?f xx Exhibit D8 where he admitted to commit the^offence/H^wever, reading the respective Exhibit D8 it is clear that,th^ was mitigating after he was found guilty by disciplinary Cqpimittee. This could not be Vx X said to be admission sincere Respondent was pleading to Disciplinary Committee to reduce^tlje^ipunishment after finding him guilty for . . , „ _ ...... Tnellastissue is what reliefs are entitled to the Respondent. The Arbitrator^clicl find that the Respondent is entitled to 12 months' salary compensation for unfair termination, remuneration for the work done, annual leave pay, notice pay and severance pay. The basis for the calculation was shillings 1,950,000/=. The Applicant was of the opinion that the Respondent salary is shillings 1,183,644/= according to the 19 employment contract dated 31st May, 2010 - Exhibit D2. However, as submitted by the Respondent, the CMA typed proceedings shows in page 58 that the Respondent tendered his salary slip which was not objected and it was received as Exhibit Cl. The Exhibit Cl shows that the Respondent salary was shillings 1,950,000/= as it was held by the Commission. Thus, the Commission rightly calcu!ated;'the Respondent entitlement on the salary. There is no doubt^that the Commission arbitral award was justified and I find no reason^toyrevise it. The Commission rightly held that the Applicaht^iasTo^pay the Respondent a sum of shillings 31,804,726/= being;42 months' salary compensation for unfair termination, notice pay,_remuneration for the work done, . < annual leave pay and severance pay. Therefore,4;find'thatkhe Revision Application is devoid of merits % and I hereby'dis^niss^t: The CMA award is upheld. Each party to take care o^his|pwh'cost of the suit. JUDGE 23/04/2021 20