Thomas Malongo Ghabi 2

IN THE HIGH COURT OF THE UNITED REPUBLICOF TANZANIA [ARUSHA SUB - REGISTRY] AT ARUSHA LABOUR REVISION NO. 0835 OF 2024 (Arising from Labour Dispute No. CMA/ARS/ARS/97/23/49/2023 of Commission for Mediation and Arbitration before Hon. O. Mwebuga, Arbitrator) THOMAS MALONGO NG'HABI.................................................. APPLICANT VERSUS FAME-FOUNDATION FOR AFRICA MEDICINE AND EDUCATION LIMITED.................................................. RESPONDENT JUDGMENT 21st October & 15th November,. 2024 I.e. MUGETA, J. The applicant was employed by the Respondent as a Medical Doctor (surgeon) through a fixed term contract of two years commencing from 01/10/2022 expected to expire on 30/09/2024. The contract had a probation of six months condition. It is alleged that the applicant failed to meet the expectations of the Respondent, and he was incompatible with other employees. This led to his termination within the probationary period of 30th January, 2023. Aggrieved by the termination, the applicant referred the matter to the Commission for Mediation and Arbitration (CMA). Upon consideration of the parties' evidence, the CMA concluded that the termination proper. The arbitrator found the complaint was without merits and dismissed it accordingly. Being dissatisfied by the CMA's decision, the applicant filed the present application on the following grounds of complaint: 1. The arbitrator erred in law and fact by holding that the applicant was given time to improve the poor work performance o f the applicant. 2. That the arbitrator erred in law and fact by holding that the respondentproved the poor work performance o f the applicant 3. That the arbitrator erred in law and in fact for holding that the applicant failed to meet the requirement o f his employer - the respondent 4. That the arbitrator erred in law and in fact for holding that the applicant failed to meet the requirement o f his employer - the respondent 5. That arbitrator erred in law and in fact by failure to properly assess and evaluate the evidence tendered before it, leading to 2 wrong findings. 6. That the arbitrator award has occasioned miscarriage o fjustice to the applicant. The applicant enjoyed the services of Mr. George Stephen Njooka, learned Counsel, whereas Mr. Benard Buhoma, learned Counsel appeared for the Respondent. The application proceeded by way of written submissions. The argument of the applicant in the first complaint is that upon noticing the applicant's alleged shortcomings, he was not given time to improve as required by the law. That there is no documentary evidence to prove meetings between the parties over the same except one meeting held on 30/01/2023 which was followed by the termination decision on the same date. This argument has been repeated in the applicant's rejoinder. I agree with counsel for the applicant that regarding documentation on how the respondent dealt with the alleged incompetency, there was tendered in evidence a documented record of one meeting only. However, documents are not the only evidence upon which facts can be proved. The same can be established by both oral and documentary evidence. This is the principle established under section 61 and 63 of the Evidence Act [Cap. 6 R.E 2022]. 3 In this case, Dr. William Mkapa (DW2) who is the director of the respondent conceded that only one meeting relating to the employer's concern on the applicant's poor performance was documented. The rest incidences on the demand for improvement were stated in the oral evidence of DW1 and DW2. In my view, considering the circumstances of this case, the documented meeting of 30/1/2022 was just the climax of the matter. DW2 testified that he met with the applicant three times in efforts to make him improve but he learnt that the applicant was not an attentive person, indomitable, disrespectful of leaders, and not a team worker. DW2 described incidences involving the applicant to support his above assertion. Firstly, that he discharged prematurely a patient who had been operated against the expert opinion of fellow experts. This allegation is supported by DW1 who said the discharged patient's deteriorated and the incident was about to put the respondent into hot soup. Secondly, that he referred a patient to KMC without proper support and thirdly, that he incited and prevented a medical to perform an operation on a patient to demonstrate his dissatisfaction with how the medical officer in charge treats him. The medical officer in charge is Gabriel Kisime (DW1). He testified that at 4 one point in time the applicant refused to attend a patient for a ground that DW 1 pesters him during morning briefs. He further testified that several meetings were held to correct the applicant but he was adamant. On cross examination, the applicant admitted that during meeting his performance had been brought to questions. In one part of his evidence he said: "Boss wangu mimi medical incharge Dr. Kisima ambaye sikuwa na mahusiano mazuri nae (sic) kwa sababu aiiona sijui majukumu yangu na aiikuwa anataka kunie/ekeza kiia kitu baada ya mgonjwa kuja hospitaii kufanyiwa operesheni" In my view, the above statement is self-confession that there was a demand for improvement and the applicant was rebellious seemingly out of inappropriate self-pride. Rule 10 (8) (a) - (c) of G.N. No. 42 of 2007 provides conditions to be met before a probationary employee's contract can be terminated. They include informing the employee of the employer's concern, the employee being given opportunity to respond to those concern and the employer being given reasonable time to improve. It is my view that the respondent demanded the applicant to improve but 5 the demand was considered by the applicant as annoyance to him. Therefore, the concern was raised but the applicant decided to hit back instead of collaborating. The first complaint has no merits. I move to the record complaint which is that poor work performance on part of the applicant. The argument on this allegation is that poor work performance was not proved. Counsel for the applicant has relied on two incidents to argue his case. The death rates after operation performed by the applicant and the patient who was discharged before full recovery. He argued that no evidence was brought to prove that the deaths were caused by the applicant's poor work, and that no evidence proved that the patient was discharged on the same date. In his evidence the applicant who testified as (PW1) said his contract was terminated because he had performed 59 operations out of which 8 patients died which was contrary to the employer's expectations. However, no investigation was carried out to prove the deaths were caused by his poor work. Indeed, this was an agenda in one of the meeting whose minutes is part of exhibit Dl. I shall discuss this complaint in the context of this meeting which I have held herein above that it climaxed the applicant's carrier with the respondent. 6 In that meeting, the respondent management was arguing its case that the performance of the applicant's department as a surgeon was not satisfactory. Facts were cited where after patient's operation some cases had to be reopened to repeat surgical repair and others had to be referred due to post-operative complications. According to the record of the meeting, that was not the standard of work and outcome the respondent expected at any level of service delivery. Surprisingly, the minutes in exhibit D1 shows, the applicant demonstrated insensitivity to the concerns raised by replying: "deaths are normal in a hospital setting .... he does not see anything wrong with his practice other than seeing it as unfair accusations for him as a specialist". The applicant being on probation was on disadvantage side as the meeting resolved: "no consensus and no ground for any intention to take responsibility to approve the situation in the surgical department" Consequently, the meeting further resolved: "... the Director o f Operations informed Dr. Thomas that with this altitude and no commitment for improvement, the hospital will give him a proper notice to show intent o f not extending is (sic) probationary contract... " i The applicant is recorded replying: "... if that is the decision that is okay" After this meeting on 30/01/2023, indeed, the notice of intention to terminate the contract of the applicant was issued on 31/01/2022. The applicant established that he neither wished to take accountability nor commitment to improve the condition which the authority says is unsatisfactory and unacceptable. Regarding the premature discharge the argument is that there is no evidence that the discharge was on the same day. The counsel for the applicant is making this general statement without referring to evidence showing when it was. However, in his evidence on the same issue, DW1 had this to say: "Kuna kipindi aliruhusu mtoto a/iyeumia na akapata matatizo akiwa huko shuieni tofauti na mawazo ya wataalamu wengine suaia iilipeiekea kituo kupata changamoto" In my view, the date of discharge of the patient is immaterial to the fact in issue. The issue is that the applicant discharged the patient against the opinion of other experts which evidence is undisputed by the applicant. DW1 testified that the applicant was not obliging to the instructions of the medical officer in charge, he spent more time during operations than 8 expected and he unreasonably boiled over other staffs. The applicant did not address these issues in his evidence. He concentrated on the meeting of 30/01/2023 to discuss the performance of the surgery department. For the foregoing, it is my view that poor performance was proved. The rest of the complaints shall be dealt with jointly because they are either interrelated or a repetition of what has been discussed herein above. The complaints therein include the allegation that the applicant was not given any target to meet, therefore, it is not right to hold that the applicant did not meet expectations of the employer. I find this statement untrue. The targets during probation are listed at item 5 of the contract. They include the capacity or compatibility with the job, nursing skills, interaction with patients, willingness to learn and apply new knowledge and overall performance and work ethics. The other complaint is on breach of contract. It centres on an issue of failure to give the applicant opportunity to respond on the employer's concern. It is my view that the opportunity was given as demonstrated in exhibit Dl. At the meeting held on 30/1/2022 the issue of deaths after operations and the need to improve the performance of the surgery department was tabled. The applicant responded that in hospital settings he regards death arising from surgery as normal. He also considered a request to take responsibility on improving performance at his department as unfair demand from the administration. What else could the respondent's administration have done with an employee with such attitude? In the end, I hold that the application has no merits. It is dismissed. Lastly, let me comment on the complaint of the counsel for the applicant that the counsel for the respondent filed the written submissions out of the prescribed schedule. The complaint is in the rejoinder. I admit that the submissions complained about was filed on 18/10/2024 instead of 14/10/2024 per the court's schedule. On that account, the counsel for the applicant prayed the Court to summons the parties to address it over that issue. I have ignored this prayer because there is no meaningful issue which counsel for the parties ought to address me regarding the filing of submissions out of the time scheduled in the court order. The rule is that submissions filed outside the prescribed schedule are useless. That is why in this decision I have considered the submissions of the applr3"* ™ lw 15/ 11/2024 10 Court: Judgment delivered in chambers in the presence of Michael Napunigwa holding for George Njooka, Advocate for the applicant and Benard Buhoma, Advocate for the respondent. Sgd: I.C. MUGETA JUDGE 15/ 11/2024 11