REV NO 20964 OF 2024 VIVO ENERGY TANZANIA LIMITED VRS OMAR SHAREEF

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 20964 OF 2024 CASE REFERENCE NO. 202408271000020964 BETWEEN VIVO ENERGY TANZANIA LIMITED..........................................APPLICANT VERSUS OMAR SHAREEF.................................................................... RESPONDENT JUDGEMENT Date of last Order: 11/ 10/2024 Date of Judgement: 16/ 10/2024 MLYAMBINA, J. The Respondent was employed by the Applicant as a Supply and Distribution Manager Develop from 16/02/2020. His employment was subject to successful probation of six months. Despite extension of the probation period, the Applicant was of the view that the Respondent did not perform to the required standard. He was therefore terminated from employment with effect from 16/02/2021 as reflected in the termination letter (exhibit P16). Aggrieved by the termination, the Respondent referred the complaint to the Commission for Mediation and Arbitration (herein CMA) claiming for unfair labour practice. After considering the evidence of the parties, the CMA decided in favour of the Respondent. The Arbitrator was of the view that the Respondent's performance was on target thus, he was unfairly terminated on the ground of poor performance. Consequently, the Respondent was awarded a total of T7S 142,000,000/= being twelve months salary compensation for the alleged unfair termination. Being dissatisfied with the CMA's decision, the Applicant filed the present application on the following issues: a. Whether the Arbitrator was justified in finding that the Respondent's termination was without valid reasons. b. Whether the Arbitrator erred in law and fact by basing her decision in a single piece of evidence, exhibit P14 in holding that there was no valid reason while ignoring other evidences and testimony on record (Exhibits D-2, D-4, D-6, P-5, D-7, D-8, P-10, D-10, D-12) which proved that the Respondent was informed of the gaps on his performance, reviewed, assessed and evaluated on his performances despite the alleged target and bonus. c. Whether the Arbitrator was justified in awarding compensation of 12 months salaries in this case. d. Whether the Arbitrator was correct in awarding notice pay in this case. The application proceeded by way of written submissions. Before the Court, the Applicant was represented by Mr. Ezron Jasson, learned Counsel. On the other hand, the Respondent was represented by Ms. Oliva Mkanzabi Malekia. Arguing for the application, Counsel Jasson jointly submitted on the first and second grounds. He stated that the Hon. Arbitrator failed to evaluate the evidence on record. That, she failed to note that in terms of Exhibit PI, the Respondent was a probationer which entails that he was under practical interview or job interview for the period of probation. That, being a probationer it entails that whatever he was doing was under observation/monitoring by the Applicant as Employer to make an informed assessment of whether the Respondent was competent to do the job and suitable for employment. In support of his argument, the Counsel referred the Court to the case of Ws Insight Ltd (formerly Known as Warrior Security Ltd) v. Dennis Nguaro (Revision No. 90 of 2019) [2020] TZHCLD 1 (13 March 2020). It was further submitted that exhibit D2, an email from the Respondent's line Manager, speak for itself on the reason for termination highlighting on the gaps/weakness of the Respondent in his performance as required by the Applicant. He strongly submitted that the Respondent's position in the company has never changed. That the Respondent was terminated in compliance with Rule 10 (6) o f the Employment and Labour Relations (Code o f Good Practice) Rules, GN. 42 o f 2007 (herein GN. No. 42/2007) and was informed, consulted and issued with directives on his unsatisfactory performance in line with Rule 10 (3), (4), (5), (6), (7), (8) o f GN. No. 42/2007 through the performance review meetings which were conducted to enhance the Respondent's performance as per Exhibits D2, D3, D4, D5, D6, D8, D9, DIO, D ll, D12. Counsel Jasson continued to submit that the primary intent of retaining the Respondent employment is manifested by the extension of probation as per exhibit P5. That, the Respondent was given a room to improve on his performance. Therefore, in light of the above revelation and the testimony on record of DW1, it was erroneous for the Arbitrator to hold that the termination was without valid reason. It was further submitted that the Hon. Arbitrator failed to appraise and evaluate Exhibits D2, D3, D4, D5, D6, D8, D9, DIO, D ll, D12. It was further submitted by Counsel Jasson that the payment of bonus cannot outweighs the overall competence required for the position of Supply and Distribution Manager, which was a Managerial position in the Applicant's Company. He urged the Court to interfere with the decision of the CMA, by revising the said decision for its failure to properly analyze the evidence on record in line with the decision of the Court of Appeal in Hotel Sultan Palace Zanzibar v. Daniel Laizer & Violet Benjamin Laizer, Civil Appeal No. 104 of 2004. In response, it was Ms. Malekia's argument that the Hon. Arbitrator was justified in holding that termination of the Respondent's employment contract was without valid reason and that the decision was reached by considering all evidences tendered by the parties. She stated that the Respondent was employed as Supply and Distribution Manager Develop as per Exhibit PI and was subjected to a probationary period of six months as per clause 2 of Exhibit PI. therefore, his assessment as to suitability on the position was supposed to be done in respect of his position as Supply and Distribution Manager Develop rather the Applicant changed the Respondent's role without consultation to Engineering role as per Exhibit D1 and conducted assessment of the Respondent's based on Engineering role. She said the change of role was contrary to Exhibit PI and defeated the spirit of Rule 10 o f GN No. 42 o f2007. Counsel Malekia went on to submit that looking at Exhibit D2, D3, D4, D5, D6 as submitted by the Applicant's Counsel particularly the subject of the said email, the concern was in respect of Engineering role and not Supply and Distribution Manager Develop. Also, referring to Exhibit D8, the Respondent was being assessed based on two roles. Thereafter, he shifted to make assessment on another role as reflected on Exhibit D9, DIO, D ll, D12. Therefore, based on Rule 10 ofGNNo. 42 o f 2007, the Applicant had no valid reason to terminate the Respondent's employment contract. In the termination letter, (exhibit P16) the Respondent was informed that his overall development has not been sufficient to justify permanent employment to the position of Supply and Distribution Manager. In the case at hand, the facts are loud that the Respondent was a probationary employee. The procedures for terminating a probationary employee are provided from Rule 10 (6) (7) (8) o f GN 42/2007 which is hereunder quoted for easy of reference: Rule 10 (6) During the period of probation the employer shall- (a) Monitor and evaluate the employee's performance and suitability from time to time; (b) Meet with the employee with regular interval in order to discuss the employee's evaluation and to provide guidance if necessary. The guidance may entail instruction, training and Counselling to the employee during probation. (7) where at any stage during the probation period the employer is concerned that the employee is not performing to standard or may not be suitable for the position the employer shall notify the employee of that concern and give the employee an opportunity to respond or an opportunity to improve. (8) subject to sub-rule (1) the employment of a probationary employee shall be terminated if- (a) the probationary employee has been informed of the employer's concerns; (b) the employee has been given an opportunity to respond those concerns; (c) the employee has been given a reasonable time to improve performance or correct behaviour and has fails to do so. In the instant matter, though by the appointment letter (exhibit PI), the Respondent was appointed to the position of Supply and Distribution Manager - Develop, for the reasons best known to the parties, the Respondent was introduced in the Applicant's company as Supply and Distribution Manager - Develop and Engineering Manager (exhibit P2). As per Section 15 (4) o f the Employment and Labour Relations Act [Cap 366 Revised Edition 2019], if there are any changes in the terms of the contract which includes position of the employee, the changes shall be made after consultation with the employee and notify him/her in writing. This was not done in the application at hand. As rightly found by the Arbitrator, since the Respondent worked for the new assigned position for almost ten months, he consented to the changes and any claim thereafter is an afterthought. The record shows that, after ten months the Respondent resumed to the position which he was employed. In an email dated 24 November 2020, Exhibit D7, the addressees were requested to constitute a team that will review Respondent's performance and suitability to the position of Supply and Distribution Manager after working for almost 10 months. Therefore, exhibit D2, D3, D4, D5, D6, D7, D8 and D9 all reviewed the Respondent's performance while he was assuming the position of Engineering Manager. The referred exhibits also indicates so. As per the position of Supply and Distribution Manager, the first review was done to the Respondent on 04/02/2021, exhibit D10. Thereafter, the Applicant had the second review meeting held on 15/01/2021 as reflected in exhibit D ll. Therefore, in the position which he was employed, the Respondent was reviewed for almost three months only. On the circumstances of the case at hand, it is my view that, though the parties did not made change of the terms of the contract in writing, since the Applicant decided to resume the initially agreed terms by placing the Respondent to his original position, then, his probationary period ought to have been as indicated in exhibit PI, that is six months. It is my further view that the three months period afforded to the Respondent were not enough to conclude if he was fit or not in the position assigned. At his best, the Applicant tried to adhere to the procedures for terminating a probationer employee as quoted above. However, it is my view that Rule 10(7)(c) (supra) was violated. I therefore join hands with the Arbitrator's findings that the Respondent's termination was unfair. On the third and fourth grounds, it was Counsel Jasson's submission that the Arbitrator wrongly awarded the Respondent who was still a Probationer compensation of 12 months without justification and thereby erroneously exercised her judicial discretion. He was of the view that no compensation was entitled to the Respondent and he was paid all his entitlement per Exhibits D14 and D15. It was added that the Arbitrator wrongly awarded the Respondent remedies of a confirmed employee. That, the case of Equity Bank Tanzania Limited v. Erick Mgosi Shao (Revision Application No. 147 of 2023) [2023] TZHCLD 1448 (20 September 2023) relied by the Arbitrator in her decision is distinguishable to the case at hand. That, in the referred case, the termination was found to be unfair both substantively and procedurally, unlike the present case. Counsel Jasson urged the Court to apply the case of Adinani Ally Sipuru & Others v. Resort World T/a Palm Beach Casino (Revision Application No. 341 of 2022) [2023] TZHCLD 1187 (15 March 2023), at page 16 and 17 reported at Tanzlii where the Court applied the principle of foreseeability by estimating compensation based on the remaining period of the contract to award a probationer employee. It was further cemented that the Respondent is a probationer, his status remains as probationary employee and cannot enjoy remedies of a confirmed employee. He supported his position with the case of David Nzaligo vs National Microfinance Bank Pic (Civil Appeal 61 of 2016) T20191 TZCA 287 (9 September 2019) at page 21 and 22 reported at TANZII. In addition, he referred the Court to the case of Essau Amon Tegga & 4 Others vs Azania Poly Bag Industries Ltd (Application for Revision No. 10819 of 2024) T20241 TZHCLD 133 (16 August 2024) at page 7 reported at TANZII, which underscored on the principle that a probationer cannot enjoy the remedies of a confirmed employee by upholding the principle of foreseeability in Adinani Ally Sipuru case (supra). In awarding the Probationer a remaining month in a contract as they were terminated one month before end of probation period. The Counsel also disputes the payment of notice. He stated that; as per exhibit P10, the Respondent was served with notice that his employment will not be confirmed if the goals set out in the review meeting were not met. In response, Ms. Malekia was of the strong position that the case of Equity Bank Tanzania limited (supra) relied by the Arbitrator fits to the circumstances of this case. She was of the view that the award of twelve (12) months as compensation was reasonable and fair considering that the Respondent was a probationer. She conceded to the position in the case of David Nzaligo (supra) but stated that the same cannot be applied in this case as the Respondent in this case was not paid benefits enjoyed by confirmed employees rather, he was paid amount arising from unfair labour practices. It is a settled position that there is no automatic confirmation, and a probationer employee cannot enjoy the rights of a confirmed employee. The same was at length discussed in the case of David Nzaligo (supra) which both parties are aware with. In the case at hand, the Respondent was awarded 12 months salaries as compensation for unfair labour practice. Unfortunately, the law has not set the remedy for unfair labour practice as it is in cases of unfair termination. I subscribe to the principle applied in the case Adinani Ally Sipuru & Others (supra). A probationer employee once terminated before completion of the probation period, he/she is entitled to the remaining period of the probation. In the case at hand, the remained probation period as analysed above is three months. The Respondent is thus entitled to the compensation of such period and not twelve months as awarded by the Arbitrator. I find no need to labour on the payment of one month salary as notice since the same was not awarded by the Arbitrator. In the result, I find the present application to have partly succeeded. The award of twelve-month salaries is hereby reduced to three months. Therefore, the Applicant is ordered to pay the Respondent a total of TZS 33,000,000/= instead of 142,000,000/= awarded by the Arbitrator. It is so ordered. Y. J. MLYAMBINA JUDGE 16/10/2024 Judgement pronounced and dated 16th October, 2024 in the presence of Counsel Hezron Jasson for the Applicant and Hezron Jasson holding brief of Davis Vedastus for the Respondent. Right of appeal explained.