20140820 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 172 OF 2013 BETWEEN TUCTA........................ •.• ................. . I • • • • • • • • •.~;. 31/07/2014 & 20/08/2014 Mipawa, J. t'~ ti """- ~~. lf:i .ii? ~f;,-'"-r,t;)' The applicant in thip, Revision namely Trade Unions Congress of . -ti Tanzania styled TUCT · ~~~~ aggrieved by the decision and award of ·, the Commission ~i If,, ediation and Arbitration [CMA] in CMNDSM/ILA/1@~in 'which the Respondent Nestory Kilala Ngula, the Secrellfl_ - ~ of the Applicant emerged a winner in the Trade Dispute~✓~· Jened in the CMA which evolved on two basic issues namely:i If . · · · ~ 1 . ::ether or not the Respondent the General Secretary · of TUCTA had resigned in the circumstances or was terminated by the employer [the applicant TUCTAJ and if in the affirmative ie. the Respondent resigned or was terminated was the procedure followed? 1 t The · Learned Arbitrators Shanes Nungu and Festo Muzee unanimously decided on 25/08/2011 that the Respondent was not terminated as there was no proof from the employer on evidence that they really terminated the respondent's employment. On whether the responden~ resigned from the post of Secretary ~:n ;;~:.&- 7Ja1~"l1oft;~!lYCTA the .§ Learned Arbitrators found that the respondent ,~lei not re,s:rgn because /J't' ''".i/{~i,~ it\;('~ the contention by the applicant/employer thaf4;~t•;\he respondent resigned from the post of Secretary Gen~~~t. of TUCTA by uttering ·:~~7 J~\~-~>"11/~ < •• . words of resignation before the Executivei(ommittee in Morogoro on ~t~~\•. ~i -:.-~~t::~ th 30 March, 2009 after the two ,,tr:,yes~j.g~1frive team which had investigated unto the acts of misrriana~~'rri'~nt and embezzlement of the applicant's money sub,mlfted\.~.their reports to the Executive Committee Meeting on 3d~Q3/20m9 at Morogoro, was contra, to ·~i~::~:~~{,t~ TUCTA Constitution. ,";~ .. The resignatiqt~ or l,~e Secretary General of TUCTA the Learned Arbitrators foun,a7l}~.,.. guided by the TUCTA constitution which ij t; requires the •si?,m:sti~n of the Secretary General to be in writing to ( -·~ .- 1;:,,'. nt and not by viva voce (by live voice] and the general ;f\Q of the applicant had to confirm or reject the r · natio . f the respondent and a letter thereof issued to , the , i}Ji ,,,r!ii respo Gi~nt, but this was not done and thence there was no resignation. On this point the learned arbitrator as above stated put 2 the same in Kiswahili language that:- ., ... Katiba ya Shirikisho la Vyama vya Wafanyakazi Tanzania TUCTA toleo la tatu 2007 inaeleza ... utaratibu wa iwapo Katibu Mkuu anataka kujiuzulu Ibara ya 16:6 na 1_6:6:1 zinaeleza ... 16:p Kiongozi wa TUCTA atakayechaguliwa atakoma kuendelea kushikilia ofisi ikiwa, 16:6:1 atajiuzulu kwa kutoa taarifl6, ya~ ·-- maandi~hi kw_a Katibu_ M_kuu au ka~a -ni lfati!/? _ Mkuu kwa Rais [Comm1ss1on'sI: emphasis, ,. <el '-17 · : ._~:·... ,~ -· . -~~ The Commission for Mediation and Arbitration"'~rarther reasoned that the employer/applicant was supp6s~t1to· produce a letter of : ,lqj{ ~~J' resignation by the respondent and any ~i2'~®'GlJ~nt from the office that I ~~~--. -•c:,1 the general . . meeting was convened fo½,.th?irpurpose ..J ... ,(··::• of accepting or ~::.tr::::~:.... ~-c:'_;~J1r' not, the reslgnatiqn of the Sec;et~fry /G~neral of TUCTA and that the • t'l!:~\:.;·:r \,t~J> • . z,~ I. general meeting had agreitf,,..for~'tni'" respondent to resign. The fl,:\ ,~ .: applicant/employer had rln~~QJ the word of mouth that the ~..'ii!;z.s,:F ·1 I respondent resigned and~not by a written letter of resignation as the TUCTA Constitution re'q', - $:~- ... Kama · 'e,.f{"itf. 1 lalamikaji alijiuzulu kwa utaratibu uliowe&_ i-·J"iJi/- katiba, basi upande wa mlalainikaji ulipasl4j;,!/Ja mbele ya Tume, hii kielelezo cha taarifa ., ~f1<f!JJil/tiltJ na muhtasari wa kikao cha Mkutano Mkuu -r ·at/J~garifi ya kukubaliwa kujiuzu/u baada ya Mkutano - 0"fj<Uridhia ... upande wa mlalamikiwa.. ; uliegemea •, kuwa mlalamikaji alijiuzulu kwa mdoino, utaratibu bao... haupo kwenye Katiba ya TUCTA ... 2 , il , - , :i - ~jr Comr:nission therefore at the end of the day ordered the applicant [TUCTA]/employer to continue recognizing the respondent 1 CMA Arbitration Award at page 17 2 Ibid page 18 3 I • I .Ii as the Secretary General of TUCTA until his contract end as to the date the general meeting of the applicant states. However, in order to have a gist of the matter and comprehend what had transpired in the commission a short visit t0i the facts and back ground of the case is necessary. The resp6ndt~~\ ~h~, was the t::t )~,•-" '·\:;;.~:' complainant in the commission told the said commission" that he was '':> elected by the General Assembly of TUCTA,Jn , .. the year 2001 to the ' - .\' post of Secretary General of TUCTA, the tyrs"elo,.be elected since the formation of TUCTA. In the year 2006 the iespondent was re-elected by the General Assembly to continue with the post•· ofSecretary General which could . . ," ·r:~ ., end in the year 2011. Howe~er..jQ .. between, that is, the year 2009 the _;:~,,:·:S:.- ~ Executive Committee of ,]UCTA through the request of one member of "~~:~~\ the committee agreect,;~Jat.s:discuss the work performance of the ,:)>.~ =~ ·- ?,~;> Secretary Genera!:->,,"q:t)e {l--"'···••:-.i\r~fi·- '"'·, discussion led to the formation of two investigative teJros c•W:· ~h various aspects touching the office of the ():\'r.'::¥~;i~·• t~ .., Secretary"~~(n.~?~l,•-'in spite of his, objections and that of other {{·:~. ' "\1';~:~.~i.,-·:~/i,_~\ membersFi$):1::td"~t:saw that the discussion of the agenda was not :), . ..:::·f ·,i;'flt" pr~sentedw':Bdl'accordance to the procedure. He was put on leave to <,,~~ ⇒j allow~:;;tb~''investigations of mismanagement and embezzlement of {~'!,,~"~ applicant's money. 4 After the investigation the report was read before the Executive Committee of TUCTA on 30/03/2009 where he disputed all the allegations. There were voices from some members of the Executive Committee requiring him to resign in case he wanted to save himself. However according to him, PW 1 he told the Executive1:~pmm'ittee that t''i; -'•✓ ~ !1, .{t ~j-' ,...i;, if the allegations could be proved to be tru~+llpt~~ he 'Was ready to resign. In fact the issue of his resignation swept acfm~s the public like . ' 1 6 wild fire and PW respondent requested th~ltesident of TUCTA (PW ) ,} ~(t,_• . to cancel the words that he had resignfed from the post of the ~')-"-._ .., ~h Secretary General of TUCTA. The resp9_nd~qjfold .... the CMA that he did ,,_ . not resign neither did he write a l~f:t'e'rr'.9f··resignation and further that ·:,;, ·;;_. he was not procedurally giyen~~th~t~~·a'rge or allegations in order to answer them but rather ti\, alleg)tions were read in the Executive ~ . Committee as a result of ihe investigations which was conducted. The applicant4~~nt in the CMA confirmed through the evidence of one ~-l~gaya that the respondent resigned himself as the Sec,-~neral of TUCTA on 30/03/20,09 before the Executive e., ittee of the applicant TUCTA. The witness deeped his test~~ on the alleged embezzlement. of money by that - re.s~:ndel" _shaurimoyo Offices in Dar Es Salaa~, Mufindi in Iringa and ~flleza m Tanga where the respondent 1s alleged to have pocketed money after he had sold some buildings ·of the applicant. The witness further told the Commission that the respondent resigned 5 I orally and that he did not put in writing as the procedure required. On 14/04/2004 the TUCTA President after being cornered by the lawyer of the respondent to denounce his words that the respondent resigned, called a meeting of the Executive Committee which later decided to send the matter [of oral resignation] . ,to the General :• Assembly "Baraza Kull' which according to DW Nich9la~ Mgaya it 1 . L;, consented and blessed the resignation of the Secretary General of TUCTA. The applicant was therefore prepa~~d to pay the respondent after resignation Tshs 7,600,000/= which is equarto 25% of his salary of five years but he refused:- ... Kuhuslana na suala la kujiuzu/u /<U!ikofanywa 11a mlaiamikaji mbe!e ya /<1kao cha· Baraza Kuu a/ie!eza kuwa baada ya mlalamikaji kutainka kuwa anajiuzulu 1 alitoka nje ya ukumbi wa Mkutano . .. shahidi alieleza kuwa anaue!ewa vlzar( utqratibu wa kujiuzulu kwamba ni pamoja na kyandil<a"' 6arua ya kuomba kujiuzulu... mlalamikaji hakt)andika barua ya kujiuzulu licha ya kuahidi kufanJ{,a_ fiivyo... kufuatia kauli yake ya kujiuzulu mlalamikiwa alik,u&ti tayari kumlipa shs. 7,600,000/= sawa na 25°/4_ y{!t mshahara wake wa miaka 5 lakini mlalamll<a)t'•J!ikataa... dai la kurudi kazini sio dai la msingl},kwa) sababu alikwishajiuzu/u bali TUCTA ipo .--:fayaf.i.;.:.l{amflpa 25% ya mishahara yake ya miezi 5 swa -3 '1(s/f) na'§hs. 7,600,000/- ... C ,.-; '" ; ~:L?;tt,,. "\;,'f:':'·, DurJr:ig··the hearing of this revision viva voce, the applicant was :~; . . ,;!( dat~repre~ehted by M/S Mcharo, Advocate and the respondent by Mr. 1,:1,;:,,.. ,,J· ArbogasfJ'Advocate. Submitting in support of the revision M/S Mcharo Learned Counsel for the applicant submitted that the Commission for 3 Ibid at pages 12 and 13 6 I I I Mediation and Arbitration. was wrong to order the reinstatement and at the same time order the compensation of Tshs 78 million which was an alternative prayer but it granted both reinstatement and the . I compensation which was not proper. Further ,, that the respondent did not prove the same before the CMA but had put;\he {figure as , ll !\ii 4'· alternative if his claims would be failil The ~ a s Wbreakdown because it does not tell how he reached the claim. ~11).at the CMA took I ~ the figures as it were and awarded the re~~'.~pdent. The respondent had claimed to be paid Tshs 78 million ·:at-&tR~a~sa~ion he.demanded , .-=rj:~j! ~~~~1;~ to be paid salaries due, house rent at.~t_5°/6l=he claimed for severance ~\~, .:.it allowance and employment bene~~ts,::!r.r~~-tffd not mention in his letter the learned counsel also arg~ecl;1th&t::f ) 1 1 ~ ·f\ ... The CMA decisien or rt/ling/award there were no reasons given by th~~f6lrJ.'11fb award the respondent 78 million Tzs as CQ/f1pensation... the award/ruling was not concise becat.!G.e the CMA granted award to the respondent di' ~'Qg him employment benefits but the CMA failed~_ l!!.bora!e which :were the benefits and how the¥:. eat./;1.e'a at... . f ·- '1 He con • ,~~m'at the ruling was reached as it were because the . i learned arbt ·, .~ ; ailed to analyze the evidence put before him. ,tf I Mr. V, ogast on the other hand controverted the submission of & I ·',fGant and argued that the appli~ant has not managed to point out a single error in the particular award which could have caused 4 Revision No. 72 of 2012 Applicants submission viva voce 7 injustice. Further that the applicant's advocate has failed to single out a single ground under Rule 28 (1) (a) of the Labour Court Rules5 • That the entire submission of the applicant has not touched any substantive merit or outcome of the CMA award and even in the affidavit there is nothing in para 9 which invites this•:'c.,ourt to revise ;·~- :,· -;-,_. , the award 6 • ·... On the payment of Tshs 78 million l~arned counsel submitted -~(-:~ ,. that the same were an alternative upon:ttfo~,--applicant's failure to I -:·,~, reinstate the respondent. The CMA found that the respondent was unlawfully terminated and the foundation ofthe reliefs emanated from the fact that there was uniawfµJ terr,nir7ation of the respondent7. On the contention by counsel f9r the ~pplicant that the Tshs 78 million was wrongly granted, the r~spondent's counsel argued that there .,1·-:i;J were two remedies solJgljt by the respondent, first was reinstatement from the date when.h~'.i.w_;~unfairly terminated and in the alternative the CMA said tha,:e:~~'Vigg/n~vi/o"the applicant pay the respondent Tshs :.i~. Tfo 78 million ;~:~:~~ claim.ed-an"et other benefits8• It was therefore immaterial to @: • -~•:.-i:s\~. ' -'•• OL 1 say that the 1t~.bs.18 million were not proved. They failed to reinstate / ... ~;~t·~:'.·:.,._ ' ·\(: . the respgqfient as ordered. The learned counsel for the respondent 5 Government Notice No. 106 of 2007 6 Op. cit note 4 Respondent's submissions viva voce 7 Ibid 8 Ibid 8 further submitted that:- ...As to the CMA award being contrary u/o [under orderJ 20 of the Civil Procedure Code9 we differ with her because Civil Procedure does not apply in this court.. . save under order 21 which deals with executions.. . Section 40 of.the ELRA 10 No. 6;of 2004 tells powers of the commission to order reliefs .. . the cont$,rll of-~ annexture ~ falls "':ithin th~ alterna~ive relief (sJYotf.t,io11p as the applicant failed to remstate him1 • 1 .,1t \?' In rejoinder M/S Mcharo Learried Counsel for the applicant rejoined that the respondent's lawyer.' did_)\ie?d Rule 28 sub rule ' .,r,f/., ~·(~! 12 (d) (e) where he showed that the ~W~'r-1€ft.,O(the CMA was full of : ,,.,~l~~~. . ~- errors and it is on that errors thel.<;pu~► is asked to revise the ;/;/:.':-}!.~~~ ·.~~r-'.:~\;~/r-·: . proceedings and award of the cormJnis·si.on. It is not therefore true as .,{;Ji'i-f'f:1 "~~·~.J;jl alleged by Mr. Arbogast th 9f they,J a'pplicant) did not single out any ~ 1 error· on the issue of unlaJJ\~(~i1fii~ation as argued by counsel for ' ' the respondent13, M/S. ·, char6 Lear~ed Counsel submitted in all strength that:- we have ~v.eret:lthe issue of hnlawful termination in the affit!JW~i;tlr:fr. Mgaya14 that the applicant has never termin ·· ~e employment of the respondent:15••• lly and dully considered ·in ex-abandunt cautela aution or extreme caution] the submissions of both I '! 9 Cap 33·~,~~l · 10 ~,P• Employment and Labour Relations Act No. 6 of 2004 11 Op. cit Respondent's submissions viva voce 12 GN 106 OF 2007 13 · Op. cit note 4 applicant's submissions 14 Applicant's affidavit 15 Op. cit note 13 9 I. learned counsel submitted before me viva voce [by live voice] the main issue is whether or not the Commission for Mediation and Arbitration award was properly procured. This main issue may be sub divided like this:- 1. Whether or not the respondent employee had resigdlid from his post of the General Secretary of TUCTA par excellent~. _/ 2. Whether the applicant employer TUCTA,\·~_Jermin~ted the respondent's employment in the circumstand'es.''"•' ·):,, · 3. Whether the respondent was entitled to the awarcl" of Tshs 78 million. 4. What relief? the parties are entitled ther~f6re. The respondent/employee categorically had denied resigning .,. ..-.: from the post of Secretary General ofTUCTA before the commission '· .. (CMA) a post which he wc;35 . eieqtea:,by . . ,,. the TUCTA Trade Union . , -~·;-. Congress of Tanzania Genefyal assembly "Mkutano Mkutl' in the year :·i'l...)tl _,,/;·:· 2001 to 2005 and he was re~efeGfed in the year 2006 for another five _.~;f}, years which could hav~-;~11~ed in the year 2011. The respondent had .. ;'<,,, .. c.;>, alleged that he did _Qpt"~,fe~i.gn but was prohibited from entering in his office by the app!Jcan:t,.Ctpgn false accusation of office mismanagement :;,\ "tt~ and embe1zl~!Jl~[1tt~1f'.the applicant's money hence he was also forced '~► H/ ;~{~\ to take a _,,gne.,JQJ?hth leave in order to allow investigation to take its ;~~-Jty, ·i!~ ~,t••::-½" course sp,9o~frly. The reliefs which the respondent/employee sought . !1\.~~~F bef:9r~ th~~commission were reinstatement to his post until the end of "•,·» .r:-'',r,-:' his coritf~ct and or be paid compensation of Tshs 78,000,000/=. According to the respondent's evidence in the commission the Secretary General is elected by the General Assembly of TUCTA 10 "Mkutano Mkut.l' and that it is the Gen~ral Assembly of TUCTA which is the disciplinary authority of the Secretary General and it is the said ' General Assembly which is empowered 'by the TUCTA constitution to 1 agree or reject a letter of resignation bY:the General Secretary:- ... Katibu Mkuu huchaguliwa na Mkutano Mkuu n1/"f1diyo $, pekee wenye mamlaka Juu yake ya kumcfJ/j!'f<ulia h\tuq? za _kinidhamu au kama ni kuji~~ulu basitf$_'kfi.;_[?._.no Mig,lu nd10 wenye mamlaka kwa muJibu wa Kat,ba -Yi!,;;_[UCTA kuridhia au kutoridhia kujiuzulu huko16 ••• '<f.:., ,r- The respondent had denied __ <dt ,..1,.. ·:J<. '"\+J;ttae allegations of misappropriation and embezzlement of th'et~l5plicant's money and told ~\~-~ ;·l~> . . the Executive Committee of TUCT~A9 p:pl,jcant that if the allegations ~~~t •J~➔ would be proved against hi~?,,¥t1eii'.l~~~..}fOuld resign from his post of J/:! ~:t-. -~:.-,-- Secretary General. \\ i.) f The respondent w-fs surprised to hear from the media that he 1 had resigned and wh~~~ ·~reported t~ the office he was restrained . . ~ ~? ' . from entering alJe ~ -:~1'ecause he had already resigned. He was I 1: ' served with a lei; r :~ that effect by. the applicant. , The respondent did not ~i- '& etter of resignation . as required for by TUCTA Constit 'quoted the said constitution at item 16 which read as fi 16:6 Kiongozi wa TUCTA atakayechaguliwa kuendelea kushikilia ofisi ikiwa, ,!,- 1 i, 16 ' :1 I Commission for Mediation and Arbitration CMA award at page 4 'I 11 111. 16:6:1 atajiuzulu kwa kutoa taarifa ya maandishi kwa Katibu Mkuu kwa Rais17 ... 16:6 TUCTA Leader who will be elected to hold office shall, if 16:6:1. upon resignation inform the Secretary General by a written notice or if he is the Secretary General to the President [bqlded interpretation words mine]. +,}f 1 ~£~:. -<, .~· ~t .',~" The applicant/employer did not deny t'1ei;;ffl~ th'a,fthe TUCTA Constitution requires the Secretary General u·;on '~Jtignation to write ,)j~:-· ~· • a formal letter of resignation to the PresideHililoJ TUCTA. However the ".~t ,/f'·~"'" ···. applicant insisted that the respondent r<t,?1§.qS~· 6y uttering the words of resignation viva voce before the .Executive Committee of TUCTA and he did not write a letter of resignati8n, the evidence of Nicholas Mgaya [now the current Secf~tary,General of TUCTA] and one Yahya Msigwa proved that fact in i\~~-]~~. -:i,>CM'.;, Nevertheless the record shows ,(>..~J. , :: that the applicant/emp!byer called or convened an emergency ~~\t~tr,., Executive Committee ·fs!t~~t:h1g to discuss the issue of the respondent ., -,~iJlJ->. ' resignation and t~-~-llav~J~Whelmingly on 14/04/2009 ruled to sent the .t/~•tf:;:-~\. ~;:-•7'~' matter or issue (iefore the General Assembly "Baraza Kull' of TUCTA ~~t?¥1:~:·~·~.,tJ:l which actq5fing~~ilto the applicant's President the General Assembly ~~~·,,. ,/!./ "Baraza /fifi ""·onfirmed the resignation of the respondent employee:- ~\ " ·~ ' "' ~tflarehe 14/04/2009 Rais aliamua kufanyike kikao cha ~\0.. );flliarura cha Kamati ya Utendaji iii kujadili barua hiyo ,,,;,~?f'frJ.,,A;Jambapo iliamua kuwa jambo hili lipelewe (sic) kwenye ''t/ Baraza Kuu na Baraza Kuu liliafiki tamko la kujiuzulu kwake1 8••• 17 Op. cit note 16 page 17 18 Ibid page 12 12 The applicant/employer as the record shows insisted that the respondent/employee uttered words of, resignation and ·therefore the applicant employer picked the words as an interpretation that the employee respondent had resigned '.from his post of Secretary ' . >, A General. The record also shows that tt)e statement ~fijresig:tAation by I' ,r"'i< .f/' &, il·!'<', ffb the respondent/employee ·which was by live JiQice ["1fttta voce] as ......-;t,.i{' "''-"~, , .,y alleged by the employer applicant had created tvv . :\PPOSing groups within the Executive Committee Meeting · 11,t~~ applicant/ employer. •.:.. 1z-..;::. .a The first group denouncing the oral sta,,te~:~nf"''of resignation by the - I.~'"' ',i;,.,; employee/respondent that it was nqt ~ resignation until and ~ < '\,._ ir~i~~l ,. ···•! when the employee/respondent .: f'las~ 1\produced his resignation in .,,/ 'I"· writing the other group agr~efitith~lfJ.[~.stgnation by utter words of the £).I ~ ili~ ·1A · employee respondent:- \:~~, .•. Kuhusiana na suala !ll?iuJiuzulu shahidi alieleza kuwa mlalamikaji kwef.i/ari yake baada ya kusikiliza ripoti ya Tume na m~g ~xaliyotolewa, mlalamikaji alitamka mbele ya tJt.ao--- ·11araza Kuu kuwa anajiuzulu ukatibu mkuu, la '""'~a, okea mvutano kidogo Juu ya Jambo 1 hilo k . :'tladhi ya wajumbe walieleza kuwa kamii~/J}:!,~fi alijiuzu/u basi :angeleta barua ya 9 . 11fzaJjJ/~'f/esignation latterf ... : . . • ,; I f Th~.e ..,, . ·was that the employee/respondent did-. riot write a ,'I,/~~ . letter o(rer§tination as required by the constitution of the applicant2°, -I been quoted ·in this judgment above. It is my. view therefore that the employee respondent mere words that he resigns 19 Op. cit note 16 page 14 : 20 TUCTA Constitution article 16:6 and 16:6:1 as quoted from the CMA arbitration award at page 17 13 do not qualify to be accepted as a resignation of the employee without putting the words in a written document or paper as required by the TUCTA Constitution of the applicant employer. Further as rightly pointed out by the learned arbitrators that since there was no written resignation letter by the employee/respondent tQ thePresident of TUCTA applicant employer expressly c9uched ;\'N1thout any ambiguity that the Secretary General of TUCTA 'was resigning it cannot be said par excellence that ther~: ,was resignation of the Secretary General of the applicant employer._ The resignation letter of the respondent had to be submitted to the·. President of TUCTA who will oiac2 the same before the Generai ,i:\ssembiy of TUCTA Baraz3 Kuu which is the last machinery and instrument that could accept or ' reject the resignation letter of the Secretary General and I think also '•-:r /;_~, by writing a letter to th~.::Secretary \f}, General accepting his resignation or rejecting it, this wa5;\ndtJ~one. What can be seen is just the words ,,~·:1r•-,~ ·~:tl - of a witness of thet"e.mpibyer/applicant that the resignation of the / ,-:;'._. <$:~;_ ~·\t.;:-.;4-' respondent as a ;~ecf~tary General was accepted by the Baraza Kuu la TUCTA (tl,JC,TA'7~~n~'~al ·, -~-if · .:;, Assembly] 21 • Apart from the procedure not being foJl.e\X~d:,1;j·.:~. by the Secretary General writing a resignation '{f' ~~•I,:'.~•> , ', letter tb I!b~ ;-TUCTA President22 who in turn would table the ~ ·, ·,"t;:•f:.-'- reslgqatiog;, letter before the General Assembly of the applicant which ''':::",~t.tJ 21 Op. cit note 18 22 Ibid 14 will accept or reject the resignation 23 • If it were true that the General Assembly of TUCTA accepted "oral resignation" of the employee/respondent to wit, the Secretary General of TUCTA then that was contrary to the TUCTA Constitution 24 • In the absence of an /"I item from the constitution which grants man~~t~/t~ t~ 1 General 7 Assembly to receive oral resignation of the enJW!~yee re~p46ndent and ,,., '"ii,~,-~ , ~.,., -~:-,.._ which was not pronounced before it by the maker 6r,9s the case may be there was no resignation by the resp~;~cfent employee and the ,'"ft '~i~ ' Secretary General of the applicant employEtg,- Tl:JCTA25 • ~· ~ ~- ' ·t .. ; ~- k ..i '±.) I come now to the second issue.,~fter.: ·;:..'::,·_,/:· .. answerina.__, the first issue in -•~•·' ro I,' L. the affirmative that there was QO r~sign'ation per se by the employee/ ,-:ff',..- .~.y ~.~,~~-" respondent c'est -a-dire [that is1:1to say] the respondent/employee "{~ /1 did not resign from his post~QfJn8ecretary General of the Applicant/ Emp~oyer [TUCT~], a~-~wn will the second issue is whe~er the applicant termmat~d ',~e respondent's employment in the circumstances. ~~s evidence adduced in the commission by the appli~n~. '@-,.\(} that the respondent/applicant was accused of mismanag~~~i9"nd embezzlement of employer's money "alikabiliwa ~';.~ na tuhuJJtP~11kupokea fedha za pangd' that he misused money [rent fr@,r;n TUcVbuildings]. He sold buildings belonging to TUCTA in Mu~),Tshs 18,000,000/= Muheza at Tshs 10,000,000/= etc. That 23 Op. cit note 16. The General Assembly of TUCTA has powers to accept or reject the resignation of the Secretary General 24 Op. cit note 16 25 The Respondent employee denied to have resigned 15 two investigation teams w~re formed by the applicant/employer in order to investigate as to the truthfulness of the allegations facing the respondent and the other team was for investigating the board. The record shows that the investigation report which was tendered by the team on the mismanagement and misuse of applicanr~}~money by the _"'' / t,_ ';;' respondent did not reveal anything or r:ecommenGt , --~-- ,, that the . respondent be given an opportunity to defend therrfselves before the disciplinary committee but as per the recordJhe report recommended r~·- ;.. that the Secretary General and his deputyr \i\'eighlhemselves over the accusation:- ... Shahidi alie!eza kuwa ripotF yao ya uchunguzi j/ibaini kuwa Ofisi ya Katibu /vfkuw [kwa: maana hiyo akiwemo Naibu wake] ilipendekeza Katibu Mkuu na Naibu wake wapime uzito wa tuhuma hiid6••• !_ :·. ~ ·-1!· l . ,r,. ,..,_.,,~ • In spite of the fag thaf-l:here was a team report over the 1· accusation which were{i:ct~~ the respondent/ employee, the applicant employer did not cliarge ,;,v~ the respondent employee and sent or him to i~ ., ~::r~~i- I~ -~Y:Jf> 1 ' a body legally aitho!!fed to decide his fate where he could defend 1 himself befoi:~~it::~~:?rightly pointed out by the Learned Arbitrators that 1t;:M A it was il]J:t(;.~~e~1tecause he was not even given the charges and \ , ' ~ i ' t . , • ·. . . •:.)• defend fhJ:tn~~f before the General Assembly2 ,,;;-.r,:_c 7 • The Learned A~lt~ptors;~dvised ~-" y the applicant employer that they could have duly char~e~the employee respondent who could have defended himself 26 CMA arbitration award Op. cit at page 21 27 Ibid page 21 16 by answering to the charges and appear before the General Assembly to defend himself as per item 7:5 of TUCTA Constitution which reads:- ... Kiongozi/mtumishi yeyote atakayekiuka katiba au kuvunja kanuni taratibu na au masharti ya ajira atafunguliwa mashitaka ya kinidhamu kwa kuandikiwa barua ya kujie/eza Juu ya tuhuma zinazomhuSU/'qaye atatoa utetezi wake kimaandishi na kisha at~£!:w,.?(1in/Rel~2> ya ma_rglaka inayohusika kujitetea ka~i:~{::,ra k1.lf!/j_tli uamuzf .. . ,i& '+i~Y:>l~ The translation of the above is that aq:¾f leader or employee who contravenes any rule or item of the constrtLtio11;k,Or ··~ - breaks any terms ' of the employment contract will be chah~;·d\·and sent before a body • ~I legally constituted in ord~r to defend'.~him;~!f before the decision of the employer. ,-,~{·::' . :·~ t~1 '\~ Now since the applicaflt b~o never charged and given the ,.;:j:f.''.~iifiV respondent/employee q <:. ortunity to defend himself before a body legally constituted toi~, -it, and determine his fate, the Learned ..:~.. 9:, c,,; _ Arbitrators decide }l;J(;fr· ruling that the applicant employer did not if~:" '·":"•-'· terminated the ~t,,e ,,ndent employee from his employment as a . <Ac --~'! Secretary<\~. j of TUCTA29 • The Learned Arbitrators [Shanes ,•c:e•- ,;11~,,.w1W Nungu a,§f ~ · . :o·Muzee] ruled:- ,:,;..,. -~ Hivyo basi baada ya kupitia ushahidi ulioto/ewa ," c1amuzi wote wawili kwa pamoja tunaona kuwa · mlalamikaji [employee] hakuachishwa kazi wala mlalamikaji hakujiuzulu nafasi yake ya Katibu Mkut.1°... 28 Op. cit note 16 page 21 29 Trade Union Congress of Tanzania 30 Op. cit note 16 at page 24 17 The above excerpt literal translation is that after evaluation of evidence the two arbitrators are of the firm view that the respondent [complainant in the CMA] was not terminated by the employer and the respondent/employee did not also resign at his own will from his post as a Secretary General. With greatest respee!":i~tb the;, Learned •.·..+ ~~-t:.- ~ ~ '• ··t ! "\ ··.·, Arbitrators and whereas I entirely and respecfil;yely agree with the ,;'.A,:.' ,l,L~lT'. ·;: commission that the respondent/employee ciid not'"·r,esign from his post of Secretary General as I have att~mpted to show in this , judgment above, I don't agree with the IL~~rned Arbitrators that the respondent/ employee was not terminated t)y the applicant/employer. In view of what I have .discussed ... -~ above it clearly reveals that ·:~ . the conduct of the applicant/~~ployer, by insisting that the . . ~>-. ~ . :./' respondent/employee had resfgnea at his own will "orally" whereas in ~·:$ fact he had not resigti~~ were coated with elements of unfair constructive termin~tiJitft;:Rule 7 of Government Notice No. 42 of 200731 I reads·- • 1 ~'~;~~~1· •y c~ \~ ·"''· ,. ·f1..? ~ff-? ... 'ftl{~(e'~·-r:/l:Je employer makes an employment 4",;.:iB.toleralilf ... :~.. . . ,., e which may result to the resignation of the ~;mP/p.~~e, t~at resig?ation amount to forced resignation {, l')trucorlstructwe termmate... \; il Jit ~ ..•_,""1 ~. Althqt!gh the respondent/employee in this case had denied that ·•~;~ ,,4- he resigned from his post of Secretary General, the acts of the employer/applicant that were behind the employee/respondent had 31 Employment and Labour Relations (Code of Good Practice] Rules 2007 18 !I made the continued employment !intolerable this is the basic requirement of constructive terminati9n. The record reveals the acts ,, and I will demonstrate. First, the act of the employer/a pplicant creatin_gf an -~quiry of if \1A~~,, Secretary 1 investigation team which investigated the offitfe ·.-•. ,,. (~y-- . General [the respondent employee] ion the1 alr'e@~..d accusation of ·{~1,~ mismanagement and embezzlement of thg applicant's money. I ,, The 1 report did not recommended that the re~~l> e.@.~, be charged if at all ', , r_,:,~:f<, there were any offence committed hf1tt~@~,- employee respondent. --t~ _ -~:j $.i 1 Secondly, the act of the employ~r;;)itp~Jicant :ll:.•·· ··-- • .. of not charging the employee/respondent instead:"it k1!~ked'.j him out of office under the ,,)1·~p__,. ·~,~~~71i1~V/ ,'II',~ ~ I cover of giving him [emplo¼ee] on@.~m6nth leave. Thirdly, the act of \~ t~ the employer/applicant refusatd5 allow the respondent/employee ti-· entrance to his office ater the one n;,onth leave inspite of the fact ~ 'tt~ I that there were_ n~:-cfra\~~s preferre? against him. on the alleged investigated off,ces\. ourthly, th~ act of the applicant/employer of insisting a-~~§.§§lng that the resp?ndent/employee had resigned ,.. ".l.t'"'- I 1Cvithout due regard to the TUCTA Constitution which ' require . _:gnation of the Secretary General to be in writing and . I# a<d, essed~ o the President of TUCTA33 • 0 Fifty the act of the empl -~ applicant of "tabling" the 1~oral - resignation" before the General Assembly of TUCTA [Baraza Kuu] · without tabling a written I " Op. cit note 16 at page 7 para 2 II 33 TUCTA Constitution item 16;6 and 16;6;1 see the CMA arbitration award at page 17 19 letter of resignation and sixth, the act of the employer General Assembly [Baraza Kuu] of TUCTA accepting the respondent/ employee's alleged 'oral resignation" without any written resignation letter as per the constitution of TUCTA and without the General i':i Assembly Baraza Kuu itself responding by writing th 9 ~~,i accepted the _.•1i~~ ~~:·· \! ,):rJr resignation were all in breach of the TUCT~~'.[~mplq¾ef/applicant] <T .':r:i_;~)'!c~... constitution 34 • (·,")> ·;·::~rtt'.t Indeed the aboye six acts and condu~i o ltme applicant/employer '. ·'.tf..~· . had led or made the continued empldym.~nt intolerable. Guidance may be borrowed in this aspect . fr.;~,,,tM f decision of the Labour 1 Appeal Court of South Africa Jtheiab~~ur Laws of South Africa are in ·.if . ,;;. '<~\.';(,:., , . pari materia with our Tahzania;;~;Labour Laws and in fact heavily -,~\i:n, .di borrowed from South AfricaJ::,lili~P'retoria Society for the care of the Retarded V. Loot~{{1997] 35 I subscribe to the decision of the ~-. '\'~ Labour Appeal Co. rt·~~\v:t1J2h Xf 4· held that; [on the requirement of constructive termiiiat . I -t~i ~·JJJ:Jijjy [isJ whether the appellant [the employerJ easonable and proper cause, conducted itself "'"'t::{ ·.iit.Y:::r.o.1 ner calculated or likely to destroy or seriously 4,i,;,,•~ ""r;e the relationship of confidence and trust i ,~ ., een employer and employee. It is not necessary to 't-Nbw that the employer intended any repudiation of the ontract, the court's decision is to look, at the employer's conduct as a whole and determine whether .. .its effect Judged reasonably and sensibly is such that the employee cannot be expected to put up with it... 34 Op. cit notes 16 page 12 note 18 the Baraza Kuu accepted the oral resignation by the employee 35 (1997] 18 IU 981 [LAC) at page 985 20 Indeed even if we could say that the employee/respondent in our case resigned it could be correctly asserted that had it not been the acts of the employer/applicant as demonstrated above the employee would have carried on wor~ing indefinite~ Likiwise the · acts of the applicant/employer as above noteliJyfa'ff ~~frely under constructive termination which was unfair enoe,,~yery constructive iA1t-: w 1 "~ termination is unfair] but this time the ~p-1 loyer insisting that the employee resigned, that act of the emp!gt e;;rra-~'f)licant by and large. 'r:Ar:!"-~ ,, "<'ti,, amounted to unfair constructive termination :,;'~Because had it not been ' ~ ~ the acts of the employerL:3pglt~amt noted above, the ,' ~r}i!~-. ···:\> ,_ _r respondent/employee coul~<;;:~j:!Ve.,t!a,~-$ffen working as a Secretary +'; "-U...A-rf General of TUCTA. I },i, \ :: ..· 1i -.,1,.:if!" I I There were acts f the emplbyer/applicant of trying and calculated to destr~~a("};~©r seriously damage the relationship of confidence and tr ...:t""-7~ t,11§etJeen the employer and employee by creating ~e--~ . _t~} teams to investigate "offences" which were .neither e-!e. d nor revealed by the employer. The imputation '·t~ ' of mism~~, ... -ent and embezzlement of employer's money by the ~ respondenfJ,efuployee without charging the respondent and proving ' t h ~ i imputed before an authoriz~d body amounted to seriously 21 '' i;, ' ' I., ,' '', damaging the relationship of confidence and trust between the employer and the employee/respondent in our case at hand36 :- ... Constructive dismissal [termination] could only be said to have taken place where the employer [as the case in TUCTA Vs. Nestory Ki/ala Ngula, the case at hand37J intended to drive the employee to res.j9n... [but where] there was no coercion on thei;a1,_ro~;fh~;!'· employer to drive the employee to leave (fl[s was d(!),t{a ..·-::~>'!t" :'••~;,'!,;. constructive dismissal... [see Labour Coutff(f€Jpf SoiJth Africa which held the above position )n Goli~th V. Medscheme [PTY] Ltd 199638••• ;[qplded.,,,·,-,:,• words in bracket mine]. -,:t: '.~;"': :,·, ,:,;, The acts of the employer in our case··,mad :r:•:> •'. intended to drive the employee/respondent to a forced resigh§!!Oh when the employer took the task of pronouncing that the ,:respdnd,ent/employee had resigned himself from his post of 5.@~~;ta~+G,~neral of TUCTA. .. ,··. •.I There was forced resignation which ac6ei;ql!ilg:tto Rule 7 of the Employment and Labour Relations [Code1tiif< f Good Practice] Rules39 [it] amounted to unfair constructive ter~t~a 10n. I will conclude by stressing Rule 7 of ~~~ ' . 1 GN No. 42 of . 200:: .:.y ,,r; tl\J ,, hat I have said above and visited various highly persuasiv!\,c,~i~ laws, that the employer should have made or ':'t.ll:.~-· ,4'>., created fPf' J~rable atmosphere of employment in order to "baptiz~t~lfl..,;1; ~~tion unfair constructive termination. There are five 1 -.#t ll N g _"delines~~tel constructive termination which the Commissioner or Ai Judg · . - ;tty consider when faced with a case of constructive 36 Op. cit note 35 37 Revision No. 172 of 2013 (HCLDJ at Dar Es Salaam 38 [1996] SBLLR 603 [IC] 39 Government Notice No. 42 of 2007 22 termination a.s in the case at hand, gui~eiines in form of questions put by the Labour Appeal Court of South Africa [South Africa Labour Laws ' are in pari materia with our laws] is ~elpful:- A. Did the employee intend to bring fhe employment relationship to an end1° r .1h . B. Had the working relationship becor'ie so unbe~.{a~tg:r&r-g;i/.bJef!ively speaking, that the employee coul(f not fulfil{,Ifiis ~obli!aJbns · to work11 · ; ' : 'rf-i.fr" C; Did the employer create the intolerable situ •titian?'~~,, · D. Was the intolerable situation likely to continue for a' period that 2 Justified termination on the relationship 5YJ,.{he employeef E. Was the termination of the employ.JJ,e71\aqpntract the onlY, reasonable option open to the emplor,,_eetl#,} ·= I wouid like to add one more:.s::00i,rif~of ·( /'" discussion in conclusion. fl~ ~ : ?;~J~ ,;it ¥; The Employment and Labim'rJ.t Rel:gll¢hs [Code of Good Practice] ,i;§' ,.J\[, ,· ~ ~ i • 44 Rules does not give or ~,covide!w~at may constitute "intolerable conduct or behaviour" on a~~~ e~ployer [who as a result makes employment intolerablff i :1 ... 7 (1) Wben '?Jt:l employer ('lakes an employment i11tole~i!,:bl~/Jlllh may result ~o the resignation of the emplo(ee t11)t resig~ati~n :smoqnt to forced resignation or a · iY:f!!·we termmatton. ... ~ , our case at hand \as I have said above in this I . • '" judgment,. ,. employer/applicant saiq that the employee/respondent aA!is,Till ·resigned from his post ff Secretary General and say, if ® V I Jooste V. Transnet Ltd. t/a South African Airways (1995) 16 rU 629 [LAC] 41 42 Pretoria Society for the care of the Retarded V. Loots (1997) is IU 981 [LAC] Ibid ;i 43 Cases quoted by Ingrid de Villiers "Constructive dismissal" 20&0 contemporary Labour Law 9:12 -111-118 at 113 44 0p. cit note 39 ·.. • •. ;I 45 Ibid Rule 7 (1) .. . i 23 ~ I f I I1 I ,· ;, ' , ! '·,· that trend could be taken as it were true then it amounted to forced resignation regard being had the conduct of the employer/applicant towards the employee/respondent. However since the procedure of a Secretary Gemeral. to resign does not recognize oral resignation i.e. by the ~mployee merely uttering words that he has resigned but b;: ·wr:iting>~a letter of ·:::.: resignation according to TUCTA employer,applicant constitution, 46 it ;·:.", would be agreeable that the act and ' . conduct of the employer/ ~ " applicant as stated above in this judgment if judged reasonably and sensibly are such that the emoloyee/respondent :annct be exoected to put with lt. In other words he t:annot be expected to continue with his employment therefore there. w9s unfair constructive dismissal. I said earlier that the definition ofconstructive termination in Rule 7 (1) of the Employment andt~abour Relations Code of Good Conduct47 ·\\·r ., ~,~~:?'.~. does not define or prpvideJhe intolerable behavior or conduct of the employer which co'EJ~-)nake employment intolerable. Jf\ -+.:: ,. / ."'".:t:;:i:, '},;• ;:;i Suffic~\ it te> say here as rightly pointed out by Prof. Annal Sasson gtid\;th~f~ in the book "Essential Labour Laws [2002]48 [which \, . :;· ~J;\ - I 1~~bscrib~:tc] that a value judgment could be made on the above .. "' .·",, depending"' on the circumstances of each case but case law49 as ~ - ~) 45 Op. cit note 17 TUCTA Constitution 47 Op. cit note 39 GN No. 42 of 2007 48 Labour Law Publications HAUGHTON, South Africa third Edition [2002] at page 137 49 Op. cit note 35 Pretoria Society for the care of the Retarded V. Loots 24 quoted supra in this aspect suggest that the court in order to determine what is intolerable behavior or conduct of the employer which could make employment intolerable, the enquiry by the court is twofold:- (iJ The employee must establish that thfi.~l was'? no voluntary intention by the employel/No#re~lgf?f The employer must have caused the resiglJ9{ion. fr;,1 (ii) The court must look at the empibyerl's~~onduct as a whole and determine whethe'1 Judged reasonably and sensibly is such that the ~mpfoxee cannot be expected • • .-"-?:tu.',. . to put with ,t. ;f' ·%~~'.~,,{;:i 'it'l. '%.Y On all what I have stated above ·1,. fn~~ft~~ judgment I don't have :.1t any flicker of doubt that there was.,,unfaircconstructive termination in the circumstances of this f?J-$e itr' :~~~ ~.-;h~ large. The conduct and ....-!."~:.:..·:,~ behaviour of the employe.t/applieant as demonstrated supra are 't;,., Jl sufficient enough to be condti~t1(t) and or behavior of the employer which made the employ,1~nt intolerable. A celebrated South African ' '·i1'~ Lawyer Professor P L ·, oux 50 wrote in his master piece book titled The South Afrimm, ' 'of unfair dismissal [1994] on constructive lrs 1 l termination iQ;~ \fe.Utwing words [I subscribe to that definition, and .,,, South Afri ur Laws are in pari materia with our Labour Laws · ,tieavily borrowed from South Africa] 51 :- ~-· A constructive dismissal [termination] takes place · where the employee terminates the employment or agrees to termination, but the termination or agreement was prompted or caused by the conduct of the 50 Professor of Merchitile Law University of South Africa (UNISA] 51 The New Labour Laws of Tanzania, Guidelines, Code of Good Practice, Labour Court Rules etc. 25 employer. The fact that the employee was caused to terminate his employment as a result of an employer's action means that the termination was at the initiative or behest of the employer2... [emphasis added by the Author]. All what I have attempted to say in this judgment.':iI . , think by and ;;.j",r':~. . . large that there was forceable resignation of tq~" respenc1ent by the . applicant which resulted to unfair constructi;e·•, te~M'ination and therefore the termination of the respond~n_t/employee was at the initiative of the employer/applicant look at\fhe following ev:idence on record:- . '., . ...Shahidi baada ya taarifa ya : tuhuma dhidi yake kusomwa alisimama na kuzikanusha... lakini baadhi ya wajumbe ;,va/ipaza sauti kuwa ilrajiokoe basi ajiuzulu... naye akasema iwapo tuhuma zote dh1di yake zitathibitika .. . atajfuzulu53 }: Kuhusu kujiuzulu shah,di alieleza kuwa Katibilki! TU/7TA iko wazi Juu ya utaratibu wa kujiuzulu54..,.. alieleia'"-kuwa hakuandika barua ya 1 kujiuzulu na kutf!J?a Rais wala hapakuwa na sababu za kujiuzulu.. .shal1(ifl-> ~alieleza ... hajawahi kuandikiwa kujulishwa.,JYaliFkupewa tuhuma zozote... kwenye kikao <,1~'. r-11,"'-:;"'f cha ka_fJ!f]tl~~y{J/ utendaji a/isomewa matokeo ya uchungoz/!!f~iSio tuhuma'5 .. .shahidi [DW1] alieleza kuwa.}:t,arn/l:i ya utendaji ... iliamua Jambo hilo <t liR~iekw,'¢ ·r<wenye Baraza Kuu na Baraza Kuu liliafiki -tJmko Jg, kujiuzulu kwake'6... i,~-\~~,: \t/" Orittwfielher the respondent was entitled to the compensation of tP. -,\jf· Tsn~i~ ~Jnl'on which the commission granted, the applicant employer ,_:,,,/., 52 Prof. PAK~! Roux The South African Law of unfair dismissal [1994] page 84 53 Op. cit CMA award at p. 6 54 Op. cit note 1. TUCTA Constitution item 6:6:l requires the resignation of the Secretary General to be in writing to the President of TUCTA 55 Op. cit note 53 p. 7 56 Ibid page 12 26 I . ,1 I submitted that the award of T~hs 78 million was not legal and correct I for the respondent to be paid because the complainant at CMA did not prove the same57 • The respondent had put the figure as an I alternative if the applicant/employer would not reinstate him to his employment or position of the Secretary General.,, Ttr~\ap~_Ntant also I/ ,fl" ~. .1· challenged that the CMA did not give any r~i~n for\~i§ award of ~ "'~~ Tshs 80 million. On the other had Mr. Arbogast for~~the Respondent .i argued that:- : • ~it:t1jl,, r-!~ 2 ... On the issue that the CMA ofdetlct th~'i13pplicant to pay the respondent Tshs 78 milliQIJ~§,'? -.,;,:.~ '·· compensation and reinstatement .. .My Lotd~,tt,e ·-zth million was an alternat~ve upon· the appli~cJ{J(_""(_~1lt!JJe to reinstate the respondent. The CMA fOl!l(1d th9t the respondent was unlawfully terminatec!~~-, {5l;.,, · _if ~~r_;f P- .~.,.. ~:.~~~t:::~£) ·: l !1 --~~ I The respondent furthe"rt';,told tlat ~ourt that the applicant on the '~~ ,,.£!ii ' ·•-~41.~7 ' Tshs 78 million being qB alterhative prayer by the respondent for • I reinstatement, the ..~;~tt~ant] faileq to disapprove it in the commission and tha - proceedings wh,(~ , ,, :e ~e '. i was no single place in the citing of CMA applicant questioned on the legality of Tshs ' 78 millio, c~nf~. According to· the respondent's ··advocate \ ~<;limission to order relief ~ ! (s) are under Section 40 of of 2004 where it talks of powers of the commission to 57 Commission for Mediation and Arbitration Acronomy CMA 58 Revision No. 172/2013 Respondent's viva voce submission 27 Now it should be noted that the respondent was the first Secretary General of the applicant who was elected for the first time by the General Assembly of TUCTA "Mkutano Mkutl' in the year 2001 for the period which ended in the year 2006 where he was re-elected for the second time for the period which could have ~Jif~,ed in,:the year }z{?f ,-jf!" ~~t i~t~:~ 2011 had it not been the events which led .Jet.,, appli<fcl]ril't employer --it,✓ ~·~;~Hr~ '\~- putting the employment relationship with the respofit:lent to an end in the year 2009 which cropped the responde~t.employee's casus be/Ii [ cause of discontent]' In deciding wheth.erL~/!Abt the respondent was entitled to the compensation of Tshs\?8 rmJH1bn it should be born in .. ·{;·::\, mind first and foremost that the Ta,nzargJ~1"tabour Law prohibits unfair /iii. ·::tf~- termination of an employeer 2:f:it :i~:,~,.cdhcerned with the fairness for t! both parties c'est-a-dire [i~,~t is 1say] employer and employee60 • :,1~\"~>~~1:: V~~ ~-:l:}~ As rightly pointed~ut by the learned counsel for the respondent ~;ti. ~:~:~~,:, in his viva voce submt§jl6n ,~.. [live voice] that the application lacks merits because t@e~;,,, ri~nt:- ~\ \11& ... LJ,,,~~!!C?,fJt,e1ed to reinstate the respondent did not ~";,fg/ftstat~ :.:-, ..-~-·" .1,J him, he did not indicate that he would pay the fl' ~·§Jmillion, we think the applicant is disputing the . , -tive payment... the respondent claim of Tshs 78 i,, .,/,rfni!J!5n was... an alternative prayer by the respondent ~1or reinstatement .. My Lord under section 40 of the Z.RA61 No. 6 of 2004 it tells powers of the commission to order reliefs... applicant failed to reinstate him and 59 ELRA Act No. 6 of 2006 S. 37 (1) Op. cit note 10 60 Ibid Section 36 61 Op. cit note 59 28 the applicant knew the consequences of paying the Tshs 78 m1'llion62 ••• The compensation for unfair termination under Section 40 of the Employment and Labour Relations Act is well known as the remedies are outlined under Section 40 (1) (a (b) (c) (2) and ,~i the9Jaw talks J> .<ft \1i l:, of exceptions to re-instatement re-engagemef!;t~that w,,bJ~re it is not i#f'"'I;' :.,.,.,;t~~:. ~~ 1" 1 reasonable practicable for the employer to re-instate .~:t·> or re-engage then the employer must compensate the"''~!l!)ployee. .· .:;~~~i;::-, Compensation comes only wh~n the primary remedy fom[~~·fait' termination namely reinstatement63 of the employee is not :in~,tcJue to reasonability and .•·' '°' _:t·~.,.,, practicability of the act to reinstate,, ,:,the· employee. Usually the compensation is not less ,than ~~ivfu months remuneration 64 or compensation and other b~fuefits f~pm the date of unfair termination to the date of final paym~_nt6;~~\\it{ts,t' 4ft: <& Tv"''-'1'~~~ it is possible for the court or the However in '~-~~ '\!'; ~- commission to gt. '"";,:nivent the caps of ELRA on compensation ~~' provided in ten::rf\9w;i/ e Employment and Labour Relations Act No. 6 ·-...=~;,::1'~ 66 of 2004 ~i~'l "1V~s V or arbitrators still have the discretion , to award an amount~} . mpensation that it just and equitable in all ·l cii<;_umstantes. However the discretion must be exercised judiciously. ... , l?itli _,]t~ ·~,w, 62 Op. cit note 54 63 Ibid ELRA S. 40 (1) (a) 64 Ibid S. 40 (1) (c ) 65 Ibid S. 40 (3) 66 Ibid the whole of section 40 ELRA 29 And as rightly pointed out by Professor Stella Vetorri 67 the position which I entirely and respectfully agree when she was discussing compensation in unfair dismissal South African LRA68 which is in pari materia with our Tanzania ELRA69 the learned professor pointed out that:- .-·~- ./';. ... General the monetary compensation is,p¢rceiveer.io be a solatium7° [comfort] [or. ::payQ1~nt ;/"of compensation made either voluntarily or uporfjudicial decree for loss sustained or injury suffered]... As such it may not be necessary to;,.pr©\f'.e loss or damages since !.,:r· ··,, the compensation is a solace for the loss or infringement of a right7 1 . I entirely and respectfully agree and I think it was not right and correct for the learned coui;,se.l for:~:the: applicant to argue that since the respondent did not \,.~ro_ve.l .. he was not entitled to the '""',•,_·, _';,,' compensation of Tshs ?~!;million. I agree with the learned counsel for -~(?'--.... _ the respondent on th'l~p6int. Further the courts (judges) or the ,f·!~ - -•~~~ 9fers}7 commission (arbltr:,.,~\i~:):\ -:.· - have to consider the damages or loss /,:; ....... t .. actually sufferedt~:~Y tlie employee who is unfairly terminated as the ,. ,(0;;;~;~;::-~:~·,".I}~~_.'. result of tfte;{eniR1oyer's wrongful acts in determining the amount of ,,_... .,..\,¥~\>::.. . . ..._~lf/ compen~~~"g~1j,ayable in unfair termination. 1} ./~/ ·:-r,-4£ f;t\~) 67 Profes~6fSJ:~6ol of Business Leadership University of South Africa 68 Labour Relations Act 66 of 1995 [LRA] South Africa 69 Op. cit Employment and Labour Relations Act No. 6 of 2004 Tanzania 70 Solatium: In the strict Roman law women could not adopt children but the Emperor allowed them this privilege by way of comfort for the loss of their children 71 Prof. S. Vetorri; The Role of Human Dignity in the assessment of fair compensation for unfair dismissal [South Africa] page 106/231 30 I alsp subscribe and respectful'ly agree with the persuasive decision of the Labour Appeal Court of South Africa which held in Le Monde Luggage cc t/a Pakarells Petje V. Dunn 72 in which Justice of Appeal Jappie AJA remarked that [South African Labour Laws are in '1 ;'1 pari materia with our Laws] compensation is:- t":. • , A ♦ . • I ... Payment to offset the financial ' los. ~ which r,as 4 resulted from a wrongful act. The prima, et-U:JJ!/ry for a court is to determine the extent of that loss takflfJg into account the nature of the unfair df~/lJJssal and hence th~ scope of the wrongful act on P~f!!~bf;J..h~ employer. , This court has been careful to ens&{~ thc1ttthe purpose of the compensation is to make1g9c/t:i'!:;:[he employee's loss and not to punish the emp{q[ePi(:\ "',-· . ..\:?\, ; , .-;t '?i :>i"·" '~(i,f,f ) ,,~. The spirit is therefore J@at '%Q,,~_jefompensation awarded to the 4 :!if•' \~., . :"" ;.'.c...: rtk employee should be in the sime vejfl ~ith the damages for the breach ~ ,Si'' ' of contract and the employe)rwftb h~s been unfairly terminated be placed in the same -l ion had the contract of employment not breached. The p14~po nd spirit of making just and · equitable ~--- ! compensation gG>.~fi~rtner to the effect that the awards must serve . 1 , , the recti r :1r-,,aQ~ on ones dignity. There are factors to be ~ffi cases. A good exa~ple is our case at hand where f the respondent as a General Secretary of TUCTA 1 e is a dignified position a very senior post National wise ,.efore a need for solatium award [ comfort] in terms of actio I I• I 72 (2007] 28 JU 2246 [LAC) para 30 as quoted by Prof. Vetorri lbi'd page 106/231 - 107 73 0 p. c,'t note 71 :i 31 :I . 1 1 I, i I injuria74 • The Labour Appeal Court of South Africa set the position on solatium award which I entirely and respectfully subscribe because the South Africa Labour laws are in pari materia with our Labour Laws]. In determining the compensation in such cases the Court (Judge) or the Commission (Arbitrator) should consig@l the~following /i :Jt" ~?\ factors interalia:- .}f:( ~~J'' //fF. ,:,,;y;;;~\:. '}/ ... The nature and seriousness of the injiitia ~t•N the circumstances in which the infring(tment .... ·, took place. . The behaviour of the defendant [ esA¢_,,ciallyJ whether the motive was honourable or maliciiius:~)r.he extent of the plaintiff's humiliation or distresg:.Jhe abuse of the relationship between the parties and the' altitude of the defendant after the injuria had'takfr,f/ace75 •.. ,. ··•.:' . The record shows clea~l)c, hoyv t~e respondent in the case at .,~::-.-,~.' ··- -~~-\f::j/;-" hand was treated in an .inhumarg way. He was accused of mal administration and embezzle"rbemt' of the applicant's money which ,,r, . ·: I were not even proved,,~ause the respondent was not charged or '.--~::.~ ~~ \~, . given chances to r~~!{t~,itfe allegations. Indeed the motive of the applicant in putt}fg.~fie:?t,seudo [false] allegations was malicious and not honouTa~..~~. ~:.., t~S:i~'applicant humiliated the respondent for his acts ,M -"'' . . and publisfilf&g, t the public that he has resigned and the applicant -''.f.tM~\ ••~~;I failure t(~'·"'dfile~~ to the TUCTA constitution on the requirement for f} resj. natio ,0 'f the Secretary General. The dignity of the respondent was r :Q_eir and humiliated. 74 Op. cit note 70 also means payment or compensation made either voluntary or upon judicial decree for loss sustained or injury suffered Solatlum (comfort) 75 Minister for justice and constitutional Development V. Tshishonga [2009) 2 BLLR 862 [LAC] page 18. The Labour Appeal Court of South Africa. 32 I Some helpful guidelines in determining the amount of .i compensation in the cases of unfair termination may be borrowed '/ from the persuasive decision of the ~abour ,. Appeal Court of South . . 1, Africa where the Labour Laws of South I!Africa are in parimateria with our Tanzania Labour Laws and actuall/heavily borroW,;f@ frolfr't which I ; . /l:##<l\,.11 subscribe. In Ferodo [Pty] Ltd. V. De Rviter.7 v The ~~t5our Appeal '· . W,&..;jr-. .. Court of South Africa listed the guidel:ines which ~@TIJ= later followed by the Labour Appeal Court of South Africa~u~llowing English Law] in ,4· '',•~ (ef ~~./') Pretoria Society for the care 'of the Retardetl V. Loots 77 . .:; •ti~1~:~~'/b The court held in ferodo case~~litra,.,,,ihich the auidelines were put thus:- {i) ,1,:, ,(:tr There must ii: evideff:Ge of actual financial loss suffered .. by the persoJ~_c/aimirlb cbmpensation. (ii) There must be~ref!I thal the loss was ·caused by the unfair latfour practice. 1 i {Iii; The lo.f,/~'lft be fores~eab/e ,:e. not too remote or specula~e. ~ , 1 (iv) Th!!!-?tft!J;~·must •endeavo~r to pl~ce the applicant Jbl!m'/l,joye~ ':'nf~1rly ~erm1nated] m monetary terms '"7 tha't pos,tJOn. m which he would have been had the ,$u. ·. ··~ntlir Jabour pr,actice not been committed. ·~··:·!< Jmaking the award the court must be guided by what · ,✓G' reasonable and fair in the circumstances [Emphasis ~ . ,-y9 mme1 .. 76 (19931 14 IU 974 [LAC] 981 C - G n (1997] 18 IU 981 [LAC] 990 A - B 18 Op. cit note 71 79 Op. cit note 66 at page 108/231 33 To conclude, constructive termination is important in the context of impairment to one's dignity because it often happens that an employer's acts [like the acts of the applicant in the present case] or omissions that render a person's work situation intolerable also impair that person's right to dignity80 . •> All in all and on what I have attempted ?tbhsay above in this ·~,l~" judgment the respondent had the rigmt,,c' to just and equitable compensation resulting from unfair t¢1f,~niation ·..,,;:.·. [unfair labour practice] by the employer/applicant and''I1,t~'ink it will be unpracticable as well as unreasonable in the present circumstances to order for the ·'·.•,·· . , reinstatement of the respond.ent/whor;;:was . '.;:·:. ~--:·· ">·-·-··.·7} a Secretary General of .\'/' ..... .- TUCTA [National wise]. ,,,.·;~~ •:') . . i1'.l::;~i,~::l: I uphold the decl§.fbn ,:a:tr~), of the Commission for Mediation and Arbitration to the tune·;~91obnt of Tshs 78 million as compensation to the respondent unJ~ir~t~.~~nation81 • Regard being had to the position {J} .,--·-t--,~:~;t1~>> ,w held by the reS.R,OnJi,ent which I consider it as a reputable and ,!•~ "»\~~;~;••' honourable·~¥..: ;;;; n, the service of the respondent as a Secretary ..r:a'~• ,~-· General 11ef'\?lt .h. , ;;, A for many years and his prospects of being re- \~ II' p1tr~:~ el~cted •@~ th~ie6f. Jj ,, ~.• ii" ",r- ·.f~'.? ,ef~· :~:J'1, ",~j: 80 Op. cit CMA award at page 25 81 CMA award. 34 • I have considered also the seriousness of the injuria and its . ' nature, the circumstances in which the infringement took place, the behaviour of the applicant/employer '[ as shown in this judgment]. The motive of the applicant/employer which was [as shown in the judgment] by and large not honourable; but malicious.,;'\, ♦ . i&iiA/f . '~.Jj' ~/ir . The respondent was humiliated as the r. slfti,t~f tne conduct of -·~~ the applicant. The loss to dignity of the ~&,~?pondent as a Secretary /:tt~'!h. General of the applicant for many years iq£,'eralfil,· : ,,;,:'',;,_~ As I have said earlier in this::~Judgment the court or the 1•·1 ;.:t?ft-r-c,~ 't';; '.':~::~ .~:~:: commission (Judge or Arbitrator] tfn c~~ain circumstances [as in the .t~7;r~ri, --1~·-:- .I present case] may cirCUllJ!fent tvl¥•''caps of the Employment and ,,:: :,fl. ~7 ,,q Labour Relations Act No. 6\~~~04 in ordering compensation for unfair termination whic, •fis just and equitable in the circumstances. The same should also··:,, punitive, c-est- - 'J· · ~y be just and equitable but should not be at is to say] not to punish the employer. I subscribe to~-.~: suasive decision of the South. Africa Labour Appeal C~: ~ ~h held the same position above .. [Labour Laws of South Aff ln parimateria will our Labour Laws]. Perhaps if I i m y be e ,::,,,. ed once again to quote the excerpt from the judgment of t~· ½~tour Appeal Court in ord~r to further strengthen my '!;!-"' 35 • conclusion on the issue of compensation for unfair termination. Unfair termination compensation is:- ... Payment to offset the financial loss which has resulted from a wrongful act The primary enquiry for a court is to determining the extent of that loss, taking into account the nature of the unfair disrp/ssal [termination] and hence the scope of the wrof!gfu~-act. on the part of the employer. The cou,jl has o~e/i careful to ensure that the purpose of C017Jpens9,{ion lf"to make good the employee's loss and not to pf:irtisb the employel2••• .·. In my respectfully view, I don't consider.the unfair termination compensation of Tshs 78 million Tanzania Shillings granted by the :, '' commission to the respondent as a pupish, to the applicant employer, [but] rather as a just :and equitable compensation in the circumstances. ,r.(, In the event and ·~!l the foregone, but on the raisond d'etre ..:. "-.\:\'.. different from that,. rJ~t:l:t~ by the Commission for Mediation and ,ts~~-" ~:v,t· Arbitration. I upgold,;~n<tf''confirm the [CMA] award of the commission fr,}? 1 -~lt. ,,,, consequentlY,r,,~glt,l~l:Ytompensation of Tzs 78 million and the unpaid -~~!!"-. r;·-- - ~'.;'.~-~~ . .. salaries aricf:l~t~neuts. The revision application filed by the applicant in . .,?:rrr;,. -, ·~-r;p:;1~~ this cou~~,,jn() merits, but mere kicks of a dm~e in articulo 82 Le Monde Luggage cc t/a Pakwells Petje V. Dunn [2007) 28 IU 2246 [LAC) para 30 Per Jappie AJA see also Prof. Vetorri Op. cit note 71 at page 106/231 and 107/231 36 mortis [at the point of death] and it is!I hereby dismissed. I order no costs. ~~~t~ l.S. Mipawa JUDGE 20/08/201,4 Appearance:- 1. Applicant: Present 2. Respondent: Present in person Court: Judgment is read over and expl'aJn~ar' to the parties present as ..}"' :::J . -~;;::1 th shown in the appearance above to~ay ~fu,e 20 August, 2014. . ··1t;iii~l . .. f.\. ·.~ ,11 L\Jl:ja. II · 20/08/2014 i1~~1~~ I.S. Mipawa ,I JUDGE 20/08/20~4 I 37