yusuph kichawele vs sense international tanzania 2021 tzhcld 346 18 august 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 895 OF 2019 YUSUPH KICHAWELE....................APPLICANT VERSUS SENSE INTERNATIONAL TANZANIA RESPONDENT JUDGMENT Date of last 0rder:08/06/2021 Date of Judgment: 18/08/2021 Z.G.Muruke, J. Yusuph Kichawele, was employed by sense International Tanzania as Finance and Administration Officer on permanent terms from 13th February, 2017. He was responsible for finance and administration duties, including preparation of the organization's accounts. While in the administration function he was supervising and managing the drivers, Office Assistant, in terms and Volunteers in the organization. He was terminated on 8th April, 2019 on account of poor performance. He filed a complaint at CMA to challenge termination. The Commission for Mediation and Arbitration (CMA) heard the parties and satisfied that, termination of the applicant was both substantially and procedurally fair. Being dissatisfied he filed present revision raising grounds as found in the affidavit in support of the application that, had raised two issued for determination namely:- (I) Whether the commission decided the matter fairly. (ii) Whether the applicant was fairly terminated. 1 Respondent filed counter affidavit, refuting contents of applicant affidavit. In the cause raised two preliminary objection, which after scrutinizing, same lacks merits. Thus I will proceed to determine the revision on merits. Having gone through pleadings, submission and CMA records, issues for determination before this court are whether there was reason for termination, and if procedure was followed. Centre of the dispute is on poor performance. Exhibit D4 underlined different answers to allegations of misconduct namely. (i) Applicant was accused of delaying request for funds transfer from U.K, as a result staff did not get their salaries by 25 of month. In his defense applicant replied that; Yes I had delayed and I apologies for that, we have been receiving country director salaries from UK by mistake which we need to pay back to them. After calculating the request for the fund I discovered we need around 52 Million and if we were going to pay back UK 50 Million we will remain with a very little amount of Tshs. 3 million. I <v»xv, <:w.. planned to report to you about that issue but I then forgot to do so. It is very clear from the answer above that, applicant delayed to request for funds transfer from UK, that delayed respondent employee's salary and late return of NSSF and PAYE. (ii) Delayed monthly Financial Report to UK. Same was sent on 10th October, 2017 instead of latest day being 9th October, 2017. 2 The answer from the applicant was, yes the report delayed and I also apologies for that. (iii) Being out of office on Thursday 12th and Friday 13 October without permission or information. The answer:- From applicant yes and apologies for that, on 11th October, 2017 I sent you a text notifying you of my health problems which I had for few weeks before that day, I was in real pain and I was real confused as I didn't know what was wrong with me.... (iv) Failure to write a response to HDIF for expenditure verification report. Answer from applicant was I didn't fail to write a response what happened was I needed time to go through every line on the EV trade of findings from HDIF and also go through a lot of files to get all the documents said they were missing. (v) Poor preparation of documents for the expenditure verification exercise. Answer: From applicant was yes we didn't prepare the documents well for verification exercise and I told you we needed more time to go through our document one by one before handling them for verification but you said let's just give them what we had at that time. Finally applicant said at the last two page of exhibit D4 that: We need to take responsibilities of things when happen instead of looking for someone to be blamed always. 11 A 71/7 \ 3 I just want to say I will continue to put my effort to understand and learned more things in order to improve my way of working for we can achieve the intended organizational goals. So am open to corrections and advises which will improve my work here at Si-Tanzania. The aboves are the accusations and answers to Respondent from applicant. In exhibit D5 page 3 Geofrey and applicant after lengthy discussion they agreed that: (1) To start a new chapter, and to forget the past. (2) Going forward, to be open to each other and communicate our feelings candidly. (3) To exert confidence in all that we are doing and to say no, when it is no, and yes, when it is yes, rather than to remain silent. (4) To recognize each other's Sensitivity and react appropriately with the knowledge of that weakness. (5) To work as a team, and to respect each other's leadership roles, Geofrey as the leader of the organization and the leadership role that Yusuph has over his finance expertise. IB After the above understandings, it was then followed with exhibit D6, normal communications. Exhibit D8 is agreed objectives for applicant after discussion with Geofrey Atieli from January - March, 2019. From the contents of part of Exhibit D5 reproduced above, applicant failed to perform some of his duties agreed in his terms of contract applicant objectives were 17, but reduced to be 4 namely; (i) Prepare back reconciliation. (ii) Reconciliation for staff debtors k 4 (iii) Complete the transfer requests properly. (iv) Reconcile the donor account HD1. These objectives were to be addressed by March, 2019 and ensure timely and accurate transaction of all the financial requests with strict adherence to the Finance manual. Despite applicant remained with 4 objectives, yet, performance was till below expectations. In March 2019 applicant did reconciliation for April, May and June, 2018 out of 7 months. On staff advances he had sorted only one out of five issues. On the issue of HDIF nothing was done. In exhibit D9 and DIO at CMA, proves that agreed issues were not addressed. Applicant was asked in an email by Geofrey Atieli his manager to describe problem he had with the system but there was no response from the > applicant. More so, applicant was advised to prepare ahead of the performance review through an email dated 22nd March, 2019 exhibit Dll. He was supposed to submit his own assessment by 27th March, 2019 but he did not do anything. A review meeting was held on 1st April, 2019, in which applicant was asked about his-self assessment and the template was filled. After a review, the applicant was found to be underperforming. Since the applicant had been subjected to a series of performance improvement plans without success and there was no indication that any further extension would change his attitude or improve his performance, a decision to terminate him was made. 5 From the series of exhibit, from D5, D6, D7, D8, D9 and DIO there was nothing respondent could have done apart from to terminate applicant. Thus, termination was with valid reason. Whether procedure was followed, Exhibit D11,D12 and D13 applicant was given chance for improvement self-assessment but did not. Applicant was generally warned, in a friendly manner but did not, applicant being senior employee was not acting diligently. By his position, he was supposed to act in accordance with his contract, more so, to exercise professional skills. All procedure was followed, to protect applicant employment but he remained deaf. Respondent having exhausted all the procedures, termination of applicant was procedurally done. Exhibit D14 prove that applicant was paid all his dues. There was nothing left behind. Thus revision lacks merits. Accordingly dismissed. Z.G.Muruke JUDGE 11/08/2021 6