tatu s mohamed another vs a3 institute of professional studies 2020 tzhcld 3 27 march 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 308 OF 2019 TATU S. MOHAMED............................................. APPLICANT AISHA B. RAMADHANI........................................ APPLICANT VERSUS A3 INSTITUTE OF PROFESSIONAL STUDIES.... RESPONDENT JUDGMENT Date of last Order: 10/02/2020 Date ofJudgment: 27/03/2020 Z. G. Muruke. 3 The applicants, being dissatisfied with the award of Commission for Mediation and Arbitration [herein after to be referred to as CMA], on labour dispute No.CMA/DSM/ILA/R.541/15/920 delivered on 7th May,2017 by Honorable Kokusima, L. Arbitrator, in favour of the respondent, filed present application challenging the award on the following grounds: i. That the arbitrator erred in law and facts for failing to properly evaluate evidence adduced by the parties. ii. That the arbitrator erred in law and facts for failing to consider evidence adduced by the applicants. iii. That the Arbitrator erred in law and facts for reaching to an award which is not supported by the evidence adduced during the arbitration. iv. That the Arbitrator erred in law and fact reaching to a conclusion and did not awarding or reinstatement which have no legal basis or foundation. v. That the arbitrator erred in law and fact for failing to realize the lies presented by the applicants. vi. That the arbitrator erred in law and fact by failing to summarize, evaluate and record the keys issues presented by the parties. vii. The arbitrator erred in law and facts for not giving reasons for this decision as required by the law and the respondent's job descriptions. viii. That the arbitrator erred in law and facts for issuing an award which is incompetent. Application is supported by joint affidavit affirmed the applicants. The respondent filed counter affidavit affirmed by Hafsa Sasya the respondent's counsel. Hearing was by way of written submission, both parties adhered to the schedule hence this judgment. The applicants were represented by Michael Mgombozi, Personal Representative, while the respondent enjoyed the services of the Advocates from Alloys & Associates. Arguing the application, Mr. Michael Mgombozi submitted that, the respondents were employed by the Central Board of Education of the Khoja Shia Ithan Jamat of Dar es salaam and not the respondent A3 institute of Professional Studies as partly determined by CMA. There were two letters of termination one from the respondent, and the other from the Khoja Shia I than Jamat of Dar es salaam. The respondent who terminated the applicants in the first instance had no power to do, referring exhibits A3-1 and A3-6. That the arbitrator in her award, did not consider the applicant's evidence that there was no employment relationship with the respondent. It was further submitted that, the arbitrator had another reason that the applicants refused to work, that is not true. The applicants were office attendants but were given additional work of gardening, contrary to their main job of office attendant. Moreover, Mr. Mgombozi insisted that, the applicants had no any warning letter hence the arbitrator wrongly interpreted Rule 12 (2) of the Employment and Labour Relations Act, No.6 of 2004 (herein to be referred as the Act) Thus arbitrator contravened Section 37(2) of the Act and Rule 13 of Employment and Labour Relation (Code of Good Practice) G.N 42 of 2007 since the applicant were unfairly terminated. Regarding procedure for termination, the applicants' representative submitted that, the arbitrator failed to note there was no any investigation report tendered by the respondent, hence there was no any investigation conducted by the respondent as provided under Rule 13(1) and (5) of the Code. Mr. Mgombozi further insisted that the applicants have not committed any offence during their employment, since the disciplinary meeting minutes were not tendered at CMA, therefore no disciplinary committee meeting conducted. Personal representative cited Article 4 of the International Labour Organization Convention (ILO) 158of 1982,and the cases of Stamili M. Emanuel V Omega Nitro (T) Ltd, Rev.no.213 of 2014 and Bidco Oil and Soap Ltd V Robert Matonya and 2 others,70 of 2009. He thus prayed for the award to be revised and set aside. Resisting the application, the respondents' advocate consolidated grounds, 1, 2 and 3 and submitted that, each party was afforded with a right to prosecute their case. The procedure for tendering of exhibit were observed as per the law referring page 2-7 of the impugned award. Arbitrator properly recorded, evaluated and considered all the evidence adduced by both parties arriving to her decision as seen in page 7-10 of the award. On ground 4 and 8, the respondents Counsel submitted that, the respondent had valid reason for terminating the applicants and had adhered to the required procedure on terminating the applicants, referred Rule 8 (1) (c) of the Code. On failure of the arbitrator to summarize, evaluate and record the key issues presented by the parties, Respondent counsel submitted that, three issues which were raised by the parties were recorded, discussed and evaluated by the arbitrator throughout the proceedings and award. That in the award the issues were discussed referring the evidence of the parties and the principles of law and arrived to that decision. Referring page 3-10 of the award. The award was properly procured and the reason for the decision were stated by the arbitrator. The respondent counsel further submitted that, the arbitrator interpreted Rule 12(2), Rule 13 and Section 37 (2) of the Act which allow the employer to terminate the employment contract on serious misconduct. The applicants were charged with misconduct of insubordination, and proved. Thus, became difficult for the respondent to continue with the employment of the applicants, referring the case of Betty Ndyetabula V Kiboko Paints Co.LTD. Rev No. 198/2013. Ms. Hafsa Sasya counsel for the respondent, concluded that applicant had valid reasons for termination, and the procedure for termination were compiled by the respondent. Investigation was conducted and the applicants were given their rights required for a fair hearing, referring exhibits 2A, 3A and A4 Having cautiously gone through the CMA records and submissions of the parties, the issues for determinations are: 1. Whether the reason for termination of the applicant was valid. 2. Whether the procedure for termination were complied by the respondent 3. What are the reliefs of the parties? In the award CMA found that, the applicant had a valid reason for termination, since the applicants refused to perform the assigned task of taking care of the garden. Equally, the applicants failed to prove their health problems as required by the disciplinary committee. Going through the records, through exhibit A1 and Dl, employment Contracts, the applicants were employed by the respondent in a fixed term contract of one year. In exhibits, above it is provided as follows. WAJIBU WA KAZI "Kazi itapangiwa na mkuu wa idara/ taasisi na inaweza kubadilishwa kwa uamuzi wa simamizi wa kazi..." It is the applicants' submission that, they were not employed as gardeners' hence they cannot perform that task of taking care of the garden by cleaning and watering etc., also due to health problems they cannot perform the assigned task. It is apparent that, the applicants were required to attend a disciplinary hearing, where after that, they were required to submit proof regarding their health problems. From records, the applicant after that meeting, they responded in writings as seen in exhibit and A3 and D3. I find it worth to reproduce the same for easy reference: 1st Applicant Tatu S. Mohamed replay dated 26/08/2015 read as follows. YAH: TARIFA YA NIPHAMU 1. Matatizo yangu ya kiafya yalishasikilizwa toka 2012, na tukakubaliana kwa ushahidi na wakuu wangu kazi nitapewa kazi ambazo nitazimudu bila kutaka uthibitisho wa daktari. 2 Mwaka huu 8/2015 ninapangiwa tena kazi za garden, ambazo tulikubaliana sitopangiwa,wamesahau tulikubaliana nini 2012,Na sasa wanahitaji uthibitisho wa daktari kama kazi hizo siziwezi. Ninashindwa kueewa, nakutaka kunigharamia gharama zote za hospitali. Ninachomba nipewe mafao yangu kam ilivyoamriwa tarehe 21/8/2015 ili kuepuka vikwazo 2nd Applicant Aisha B. Ramadhani, replay dated 28/08/2015 read as follows: YAH: KAZI YA BUSTANI Kufuatia kikao tulichokaa tarehe 21/08/2015. Nilishawaambia kuwa kazi ya bustani siwezi.Nilishaongea katika kikao kuwa kazi ya bustani 6 siwezi kuifanya.Lakini naona bado nashikiliwa na wakati nilishasema siwezi kuifanya. Nakuhusu msaada wa hospitali sihitaji, afya yangu naijua mimi. Ndio maana nikawaambia kazi ya bustani siwezi kama amniamini basi lakini mimi kazi ya bustani siwezi napia sihitaji msaada wowote. From the reproduced evidence, it is quite clear that the applicants denied to prove their health problems which restricts them from doing the garden activities. Apparently, it clear that the applicant's conduct did not show that they were ready to negotiate on the same, even if the medical checkup costs would have been on the respondent's side. The applicants being office attendants, does not mean their obligation to clean ,were only limited to the offices and latrines as they claims, considering the fact that even the garden is part of the office premise. Hence they were responsible for the same. Rule 12(3) (f) of the Code provides for the acts which may justify termination, it states: "The acts which may justify termination are....gross insubordination". Insubordination as a misconduct have been well defined in the case of Sylvania Metals (Pty) Ltd v Mello N.O. and Others (JA83/2015) [2016] ZALAC 52 where it was held that; "Insubordination in the workplace context, generally refers to the disregard of an employer's authority or lawful and reasonable instructions. It occurs when an employee refuses to accept the authority of a person in a position of authority over him or her and, as such, is misconduct because it assumes a calculated breach by the employee of the obligation to adhere to and comply with the employer's lawful authority. It includes a willful and serious refusal by an employee to adhere to a lawful and 7 reasonable instruction of the employer, as well as conduct which poses a deliberate and serious challenge to the employer's authority even where an instruction has not been given." Also in the case of Betty Ndyetabula V Kiboko Paints Co. LTD , Rev. No. 198/2013 , as rightly cited by the arbitrator, It was held that: " It seems to me that in situation briefly explained abive, it could have been difficult for the employer to continue with the employment of an employee who had rejected an alternative work or refused to be shifted to another department apart from which she had used to be..." From the evidence of applicants themselves it is clear that applicants' conduct of denying to perform the assigned task without justification, amounts to insubordination. Therefore I uphold the arbitrator's finding that the respondent had a valid reason to terminate the applicants. Regarding the second issue, the applicants alleged that there was no investigation conducted by the respondent since they have not tendered the investigation report. I agree with the applicant representative that, in order to establish a valid reason for termination, investigation is very vital. However, the investigation depends on circumstances of the case. In the case at hand, the applicants refused to act on the lawful instructions of their supervisor, in terms of their letter quoted above exhibit A3 and D3 thus I find no need of investigation. There are various court decision 8 regarding the procedure for termination, that they should not be followed in a checklist form. In the case of Justa Kyaruzi V NBC Ltd Rev.No 79 of 2009 Lab Division at Mwanza, It was stated that: "What is important is not application of the code in the checklist fashion, rather to ensure the process used adhere to the basics of fair hearing in the labour context depending on the circumstances of the parties, so as to ensure the act to terminate is not reached arbitrarily. Admittedly, the procedure may be dispensed with as per Rule 13(12) of the Code." Therefore, since the principles of natural justice were adhered by the respondent, I find no need to fault the arbitrators finding that, the procedure for termination were followed. On relief of the parties, from CMA FI, I found the applicants prayed for the terminal benefits and the compensation for unfair termination. Since the applicants were fairly terminated in both substantively and procedurally, they deserve no compensation. There is no reason to depart from CMA decision. The application lacks merits, thus dismissed. Z.G.Muruke JUDGE 27/03/2020 9 Judgment delivered in the presence of Maiko Mgombozi, Personal Representative for applicants and Mr. Felix holding brief Philimon Mroso for the respondent. 27/03/2020 10