tropical alluminium glass industries vs amani nyambula others 2018 tzhcld 5 17 august 2018

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION NO. 118 OF 2016

BETWEEN TROPICAL AULUMINIUM & GLASS INDUSTRIES....... APPLICANT

VERSUS AMANI NYAMBULA & 26 OTHERS.......................... RESPONDENTS EX-PARTE JUDGMENT Date of Last Order 09/07/2018 Date of Judgpnent 17/08/2018 NYERERE. J. In this application applicant/ tr o p ic a l a llu m in iu m & glass in d u s tr ies filed the present application seeking revision of the Commission fibr Mediation and Arbitration (CMA) decision and award issued by Arbitrator1 Kiwelu, L. in respect of the employment dispute No. CMA/DSM/IL/i/R.520/13/631. Tttie respondents were employed on 1st February, 2012 and on 18th June , |2013 respondents engaged in a unlawful strike demanding salary increase, following the strike the applicant agreed to resolve the matter by the end 0f July, 2013. However, four (4) days later respondents strike again, applicant again met with the respondent's representative, TUICO and informed respondents, that there will not be salary increase, respondent's opted to end their employment by executing an agreement signed by\ both parties, and respondents were paid their terminal dues. Being aggrieved the respondents referred the matter to the CMA claiming unfaiif termination. The CMA entertained the matter and found that applicant had not followed proper procedure in terminating the respondents, tjhe CMA awarded respondents, one month salary in lieu of notice add two months salary of the remaining contractual period. Aggrieved applicant lodged

revision application whereby advancing grounds for revision as stipulated under paragraph 9 of the supporting affidavit as follows: (a) The Honourable Arbitrator erred in law and in fact by awarding one month salary in lieu of notice and two months salary of the remaining contractual period while the matter concerned with the termination by agreement entered on 19th July 2013 (b) Whether certificate of service can annul or negate a termination by agreement. (]c) The respondents have sued the wrong party. (|d) The award is un-executable as against the applicant (Tropical Aluminum and Glass Industries Limited). At tjhe hearing of the application applicant was represented by Mr. Alex Baltomi Cbunsel for Applicant, whereas respondents were are absent and the nfiatter proceeded by way of oral submission and the same was ex- parte for failude of respondents to file Counter Affidavit despite the court order to substitute services which was published in Mwananchi Newspaper on 9th April, 2|018 still respondent defaulted appearance and no Counter Affidavit ^/vas filed, hence exparte hearing. Submitting in support of the application, Mr. Alex Mashamba Balomi Counsel for Applicant prayed to adopt the supported Affidavit of Aziza Mhina Advocate, to form part of his submission. He specifically refers this court to paragraph 3-10 of the said affidavit in order for the court to grant this

application. Afjter cprefully considered applicant's submission and affidavit in support of this application especially paragraph 3-10, CMA records, labour laws anpl prattice of this court, the issues for determination are whether or not the Arbitrator award is justified in law and whether respondents sued a wrong party. With resjpect, to the reasoning of the applicant, based on the argument that respondent sued the wrong party, as this issue is raised at this pointy Labdur Court, involving the same parties at the CMA. It is in the interests Of justice to point out that, the CMA and Labour Court records do not support applicant's contention; as the facts in records and evidence; falls within a radius of conclusions that parties involved are relevant parties. Further, it is common ground that the strike conducted by the respondents vvas never guided by law. The employees participated in unlawful strike contrary to Section 80(1) (a) to (e) of the ELRA No. 6/2004. Addressing this issue, I do subscribe to the arbitrator's decision at page 12 pf the CMA award. I quote: "Ni msingi wa sheria kuwa hakuna anayepaswa kufaidika na makosa yake. Kwa kuwa katika shauri hili pande zote mbili wanamakosa na hivyo kuwapa walalamikaji mishahara yote kwa muda wa mkataba uliobaki ni sawa na Tume kubariki mgomo ambao walalamikaji wenyewe wanakiri waligoma. Tume inaona kuwa nafuu inayofaa kwa

walalamikaji ni kulipwa mishahara ya fniezi miwili kila mmoja kwani walifanya pigomo usio halali" Given the circumstances in this case, the respondents having, contravened R|ule 14(1) and (2) of the Employment and Labour Relations (Code of Good Practice) GN No. 42/2007 which prescribes conditions for exercising the rjioht to strike: for ease of reference I quote: 14(1) Disciplinary action shall not be taken against an pmpldyee who participated in a strike that complies to the provisions of Part VII of the Act. (2)Ncitwithstanding the provisions of sub-rule (1) participating in a strike that does not comply to the prdvisions under PART VII constitutes misconduct and matv justify termination of employment Hoyveven, the applicant ought to comply with Rule 13 GN 42/2007 (Code off Good! Practice) Rules, which is the fairness of procedure before terminating the respondents. Rule 13 of the Employment and Labour Relations Code of Good Practice^ GN No. 42/2007, entails that employer to comply with fairness of procedure, such as employer shall conduct investigation to ascertain whether there are grounds for a hearing to be held, notify the employer on the allegations, give reasonable time to prepare for the hearing and inform employee of his right to assistance at the hearing , further to provide evidence In suplport of the allegation at the hearing in order to allow proper response to

allfegations, and to communicate the decision and reasons for termination , pnd the right to appeal the decision of the Disciplinary committee. With the above observation and comparing it with the facts of this case and evidence adduced at arbitration hearing. The arbitrator observed at page 6 of t(ie CMA Award, that the employer is the one who wrote the employees letter of voluntary resignation and not the respondents themselMes. I tiuote: "Bartfa hii kwa uandishi wake inaonyesha kuwa iliandikwa na m kurugenzi.... .............................. barua hii imeeleza masuala ya mgorho nakueieza kuwa mfanyakazi aliyetajwa katika barua hiyo kwamba siku ya tarehe 18/06/2013 aliamua kutorudi kazirfi na badala yake akataka apatiwe kila kilicho haki yake ili akat^fute ajira kwingine yenye maslahi zaidi " Fi|rther at page 7 of the CMA award, arbitrator observed that the applicarits di<tl not voluntarily resign. Therefore the respondents were to prove ttiat applicant's resignation was voluntary, in which he failed. I may state upfront that the respondent's became witness in their own case, Owiflig to the fact that respondents had the burden to furnish evidence which raises a credible possibility that applicant forced respondents to write resignation letters, in which respondents successful discharged thati burden. In that, I agree with the arbitrator's decision that applicant did

not comply With fairness procedure as per Rule 13 of the Employment and Labour Relations Code of Good Practice, GN No. 42/2007, therefore awarding one month salary in lieu of notice to the respondent's and then two (2) rfionthi salary for the remaining contractual period is fair and just. In that I hereby confirm CMA decision. Therefore application is dismissed for lack of merit. It ife so drdered. A.C. Nyerere

JUDGE 17/08/2018

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION NO. 118 OF 2016

BETWEEN TROPICtAL AlLUMINIUM & GLASS INDUSTRIES....... APPLICANT

VERSUS AMANI NYAMlBULA & 26 OTHERS............................. RESPONDENTS Date: 1)7/08/2018 Coram: Hon. S* Simfukwe, DR. Applicant^: For Applicant: Mr. Priscus Richard advocate holding brief for Alex Balomi advocate Absent C.C. J. KHlolo Court: Ex parte Judgement delivered in chamber, this 17th day of August, 2018, in the presence of Mr. Priscus Richard advocate wlio was holding brief for Mr. Alex Balomi learned Counsel for the Applicant. S. Sim

DEPUTY REGISTRAR 17/08/2018