yakobo sahani vs ws risk and protective services ltd 2023 tzhcld 1515 12 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION APPLICATION NO. 245 OF 2023

BETWEEN YAKOBO SAHANI............................................................................ APPLICANT

VERSUS WS RISK AND PROTECTIVE SERVICES LTD............................... RESPONDENT

JUDGEMENT Date of last Order: 29/ 11/2023 Date of Judgement: 12/ 12/2023 MLYAMBINA. J. In the instant matter, the Applicant is aggrieved with the decision of the Commission for Mediation and Arbitration (herein referred as CMA) delivered on 22/09/2023 by Hon. Kiangi, N. Arbitrator in Labour Dispute No. CMA/DSM/KIN/630/2022/289/2022. The Applicant herein instituted a labour dispute claiming for unfair labour practice. After considering the evidence presented by the parties, the CMA found that the Applicant's claim had no merit. Consequently, the CMA dismissed the Applicant's claim. Again, being dissatisfied by the CMA's decision, the Applicant filed the present application. The application proceeded orally whereby the Applicant appeared in person, unrepresented. On the other hand, the Respondent enjoyed the service of Ms. Maria Mgonja, the Respondent's Human Resource Officer. 1 Arguing in support of the application, the Applicant submitted that he was aggrieved by the CMA decision because it did not consider his exhibits tendered before the Disciplinary Committee. The Applicant contended sickness from 25/9/2022. Therefore, he had a leave of seven days from 17/8/2022 up to 23/8/2022. He was supposed to be at work on 24/8/2022. He then returned at work on 06/09/2022 whereby he delayed for 11 days. The Applicant strongly contended to have informed his supervisor one Robert Anania

through a phone call on 25/8/2022 about his sickness. Robert Anania adduced evidence before the Disciplinary Committee. He alleged to have started feeling bad on 23/8/2022 but he could neither get Anania on that day nor call him on 24/8/2022 due to the Village environment. His phone was out of balance on that day. He added that; he lives at Igunguhya Village, Ng'hundi Ward. He went to Lunele Dispensary on 26/8/2022. It was further submitted that the Arbitrator failed to record the proper adduced evidence. That, annexure Y-2 was wrongly interpreted by the Disciplinary Committee and CMA. He maintained that; he had sick leave of three days running from 2/9/2022 up to 4/9/2022. He was given permission to resume at work on 06/9/ 2022. The other reason advanced by the Applicant was that; the Applicant was deducted 100% on his salary dated September, 30th of 2022 contrary to the law. He argued that the deduction of salary must not exceed % as per what he called the Employment and Labour Relations Rules. Page 4 of the Award shows that he tendered salary slip to prove his presence at work. But he tendered it to show his salary claim from 30/9/2022 up to 22/9/2023. Another reason was that; he applied for appeal to the WS Risk and Protective Services Ltd's Country Manager, but he was not given such right. He added that; page 12 of the Award does not show if the appeal was heard. He boldly

submitted that the appeal was not heard. Thus, he was not afforded the right to be heard on appeal. The last ground was of not been given physical medical examination. It was just submitted to the Arbitrator without affording the Applicant with the right to see it. Since there was unfair termination, he prayed be paid as per his reply to the Counter affidavit. In reply, Ms. Mgonja admitted that the Applicant requested for leave to go for burial service of his son. It was a request of 14 days, but he was given seven (7) days compassionate leave as per Paragraph 8 o f the Employment Agreement. It was from 17/8/2022 up to 23/8/2022. He was supposed to report at work on 24/8/2022. But he never did so. Instead, he reported at work on 6/9/2022. She said; the supervisor of the Applicant conceded during disciplinary hearing that the Applicant phoned him one day prior expiration of his leave. The reason given was that he had no fair to report at work timely. He requested be given time to find bus fair. The supervisor gave the Applicant three days only. It was from 23/8/2022 up to 26/8/2022. The Applicant never reported on 26/8/2022. Instead, he reported on 06/09/2022 with a different story of sickness. Ms. Mgonja denied the allegation that the Applicant was denied the right of appeal. The Applicant was asked to appear with the original sickness identity from hospital, the proper name of

the deceased child, death Certificate and burial certificate. He refused alleging that those were personal information. Therefore, his appeal was refused and he became terminated from work. He refused to receive the termination letter before witnesses. It was further submitted that the Applicant never returned all the uniform and working tools of the Employer. That is why they deducted 100% of his final salary (final dues). She added that the Applicant is still wearing boots of the employer. That, they served the Applicant with the Medical Report prior tendering before CMA. In the upshot, Ms. Mgonja urged the Court to dismiss this application. She added that the Applicant was in probation period. He worked for three months only. In rejoinder, the Applicant maintained that the appeal was not heard. That, he was not given a date of hearing. He added that; there were no reasons of demanding the alleged documents because the issue was on absenteeism. After considering the rival submissions of the parties, CMA and Court records as well as relevant laws, I find there is only one issue for determination: Whether the Arbitrator properly considered the evidence on record. The record shows that the Applicant instituted a dispute at the CMA claiming for unfair labour practice. That he was employed without a medical examination. He also complained that he was terminated without justifiable

reason and proper procedure. To start with the allegation of being employed without a medical report, such an allegation should not detain the Court. The same was rightly determined by the Arbitrator. The Respondent tendered Medical (Physical Examination Form) Form (Exhibit D2) which shows that the Applicant was examined on 08/04/2022. The employment contract (exhibit Dl) indicates that the contract between the parties commenced on 06/05/2022. Therefore, the medical report proves that the Applicant was examined before commencement of his employment contract. The Applicant on his part wants this Court to believe his oral evidence. The same is contrary to the law position. It is trite law that oral evidence cannot supersede documentary evidence. This is pursuant to Section 100(1) o f the Evidence A ct [Chapter 6 Revised Edition 2019]. The provision was also elaborated in the case of Hope Stiftung (Hope Foundation) v. Sisters of St. Joseph - Kilimanjaro Region and 2 Others, Land Case No. 3 of 2020, High Court of Tanzania, Moshi Sub Registry (unreported). Thus, the documentary evidence produced in this case superseded the Applicant's oral evidence. As to the allegation of being terminated without reason, the records are loud. The Applicant was terminated for absconding from work for more than five consecutive days from 24th August 2022 to 05th September 2022 without permission from

his superiors as it is indicated in the termination letter (exhibit D ll). The Applicant strongly submitted that he was sick from 25/08/2022 up to 06/09/2022 when he reported back to work. The record reveals that on 17/08/2022, the Applicant requested for leave to attend the funeral of his daughter (exhibit D3) at Mwanza. Leave was authorized for seven days commencing from 17/08/2022 to 24/08/2022. After the said leave ended, the Applicant did not report back to work. He reported back on 06/09/2022 alleging that he was sick and attended to dispensary. Thereafter, the Applicant was summoned to disciplinary hearing where the Applicant was afforded the right to be heard and he tendered his medical report (exhibit D6) which shows that he attended to hospital on 02/09/2022 and the report indicated that he was ready to resume work on 06/09/2022. Notwithstanding the Applicant's report, it is my view that even if the Applicant was sick, he had no mandate to authorize himself to absent from work. Having examined the records, there is no authorization given to the Applicant to absent himself from work. Even if the Applicant obtained three more days leave from his supervisor as alleged, he had no permission to resume work on 06/09/2022. Therefore, the Respondent was right to terminate him on the ground of absenteeism since he had no permission to proceed with his medical treatment without

authority. On the termination procedures, I have observed the same and they were dully complied by the Respondent. The Applicant was summoned to the disciplinary hearing, he defended himself and the disciplinary Committee found him guilty of the charged misconduct. I am not in disregard of the Applicant's allegation that he was not afforded the right to be heard. As per the exhibit D8, the Applicant appealed against the decision of the disciplinary hearing. The Respondent's appellate body with a letter dated 28/09/2022 (exhibit D9) replied to the Applicant letter and demanded some documents which could have been useful to defend his case. However, the Applicant voluntarily neglected to submit the alleged documents. Therefore, the management rightly proceeded to determine the appeal on the evidence available in record. It has to be noted that every right has an obligation to fulfil. If ones fail to fulfil a certain obligation in respect of a right, he/she deny himself/herself with such right. In this case, the right to be heard was fully afforded to Applicant. Thus, unfair labour practice cannot stand in this case. I have also noted, the Applicant's allegation that he was deducted his salary. The salary slip (exhibit D12), indicates that the Applicant was paid his final dues but the same were deducted for failure to hand over the Respondent's working tools. Thus, he has to comply with the rules of the company by doing clear handover. In the result, the Applicant has not stated sufficient reason to depart from the Arbitrator's decision. As a result, the application is hereby dismissed for lack of merit. It is so ordered. Y. J. MLYAMBINA

JUDGE 12/12/2023 Judgement pronounced and dated 12th December, 2023 in the presence of the Applicant and Maria Mgonja and Clementina Makubuli, Human Resource Officers for the Respondent.

JUDGE 12/12/2023