teofilo kisanji university vs frola david kiwalakaadministratrix of the late david yothan kiwalaka 2014 tzhc 2366 18 june 2014

IN THE HIGH COURT OF TANZANIA (LABOUR DIVISION) AT MBEYA REVISION NO. 55 OF 2013 ~S3T-x 'f o , TEOFILO KISANJI UNIVERSITY............ .vg,....APPLICANT -Sir; **7: v VERSUS FROLA DAVID KIWALAKA (ADMINISTRATRIX OF THE LATE, DAVID YOTHAN KIWALAKA....RESPONDENT ■p (Original CMA/MBY/1/2010) ^ % ,JUDGEMENT 05/11/2013 18/06/2014 Aboud.J 2> . r ,4* ' The-^application is made under Section 91(l)(b) of the Employment and Labour Relations Act, No. 6 of 2004 and Rules 24 (1), (2) and 28 (1) of the Labour Court Rules, GN. 106 of 2007. The applicant calls upon this Court to revise the proceedings and arbitration award passed by the Commission for Mediation and Arbitration (herein the CMA) at the Mbeya on 12/08/2013. Shortly are the facts of the matter. The respondent |s. the administratrix of deceased one David Yotham Kiwalaka who was the complainant at CMA and an employee of the applicant at the position of Assistant accountant since 01^08/2008. He was terminated by the applicant on 18/01/^010^for health reasons. He referred the matter to CMA efor ianfSir termination. On 03/08/2010 the deceased died, therefore the matter was -='- f adjourned sine die waiting' for' the appointment of the administrator. On 07/0/2013 the mediation failed hence the matter was referred.. arbitration. The CMA found the termination of the respondent was procedural and substantively V f; unfair and .ordered the applicant to pay the respondent one month fiottoe *to the tune of Tshs. 577,970/=, severance pay Tshs. 14f;492.50/= and payment of arrears of salaries to the tune opTshs. 4,623,760/=. At the hearing the applicant was represented by Ms. Mwamwezi while Mr. Makafujepresented the respondent. 2 |T e o f i I o K i s a n j i U n i v s e r s i t y Vs F l o r a D a v i d K i w a l a k a ( A d m i n i s t r a t r i x of T h e L a t e , Da v i d Y o t h a n K i w a l a k a Arguing for the application Ms. Mwamwezi for the applicant submitted that the Arbitrator did not consider some of the evidence adduced by the applicant at CMA to prove that the termination of the respondent was fair. She said the applicant complied with Section 32 of the Employment arid Labour Relations Act, 2004 which provides sick leave of 126 days only whereby the employee is allowed to be paid full salary of only 63 days and half salary for 63 days which the applicant complied with as shown in exhibit PI in the CMA records. Si'. She submitted further th|t the CMA wrongly considered the evidence of Staff Regulations tendered by the respondent which was not in existence during the time the respondent was terminated. That ij: was n‘6t part of the regulation in operation at the applicant's office.'! She. concluded by praying for the court to quash and set aside thefCfvjA award and for any order that the court will find fit to give in this application. In reply Mr. Makafu for the respondent submitted that, the Arbitrator did consider the evidence of both parties as it is reflected in page 5 to 12 of the award. He said the Arbitrator was correct to decide that the applicant did not comply with the legal requirement in terminating the respondent because the applicant did not comply with Rules 19 and 21 of GN of 2007. 4 jA k. He further submitted that the Arbitrator did consider the sick sheet which was tendered by the applicant at GMA. .A- As regard to Staff Regulation of *2006 the respondent ip submitted that it was in operation,; begause the letter of f£i employment of the respondent sshows the terms are in Regulations of 2006 and e\%i the** confirmation letter of the respondent used the same Regulations of 2006. In rejoinder th%apf>Jiclnt submitted that it is not true that applicant was relud&nFto issue sick leave to the respondent and V** the respoitdenOai1ed*to prove such allegation at CMA. o Staff Regulation the applicant admitted to have usl$ it d rf confirmation letter of the respondent which was in draft. ‘ And in appointment letter he said they referred the applicant Staff Regulation and Scheme of Service, therefore the applicant followed the procedure which is in the Act No. 6 of 2004. After considering all the above, it is my view that the t|V -atjJ «*%> Arbitrator's conclusion on the unfairness of the termination was reasonable one in light of the evidence. In his decision the Arbitrator considered all the evidence tendered.before him to wit exhibit "P2", the letter which was to, the effect that the respondent will be paid half salary, Extijbit^JDl" a confirmation latter of appointment. It is clear ffom ^the Arbitrator's decision that he considered the lattef of appointment and confirmation where he quoted what was stated" as follows, I quote, "you will be under a probation period for six months according to the regulationsjpf!%|helOniversity Charter. And your daily ?r • * . v * activities wills, be '* - guided by the University staff regulations^ and Scheme of Service". Moreover in the confirrrSti0n.Jetter of 16 February, 2009 the applicant stated, as •iW •V**K tHe'>ArbitEator, I quote, "all other terms shall remain the •0l- ; 'Tin' same" as governed by the University Charter, Staff Regulations, Financial Regulations and the Scheme of Service for University." According to the applicant's submission, they admitted to have applied the University Charter, Staff Regulations of 2006, in the letter of appointment and confirmation. It also clear from the Arbitrator's award, he considered the University Charterf Staff Regulations of 2006 tendered before it as Exhibit "D5"..* According to the University Charter, Staff Regulations of^Q,06 under part II, clause 1.4A the conditions of sick leave provy&<J*t^erein are most favorable than that provided under the; ErhplSyment and Labour Relation Act. . it,- iVS' Jpr Part II, Clause 1.4A f)f the^tiniversity Charter, Staff Regulations of 2006 provides that;5* ' t•> "1.4- On recbinrhendation of an approved medical qffli^i^ln employee may be allowed sick qxtaiQplescent leave. Approved sick or convalescent leave shall be paid leave under thel’oilowing conditions: A. Every permanent employee, during the same illness/ sick period, shall receive full pay for the first six months and half pay tendered before him, contrary to what has been alleged by the applicant. Having discussed as I did, I find the application to have no Jjr*' merit. Consequently I up hold the CMA decision. In.tffe result the application is dismissed. It is so ordered. 18/06/2014 & Date: 18/06/2014 Coram: Hon. I.D.Aboud , Judge Applicant: 4\;f ‘■•fe;,. For Applicant: Ms^afthaPSwalema, Advocate € ' % ~ Respondent: $ For Respondent: Mr. K. Makafu, Personal Representative C/C Order: Judgement delivered in presence of Ms. Martha Gwalema, Advocate for the applicant and Mr. Kenneth Makufu, Personal representative of the respondent^- " mr^ .' I.D.ABOUD JUDGE % 18/06/2014 ib, €