20130830 TZHC Dar es Salaam

1 .IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC. CIVIL APPEAL NO. 10 OF 2010 CORAM: Shangwa, J., Utamwa, J. and Mutungi, J. Z. S. MKONDYA & 13 OTHERS . . . . . . . . . APPELLANTS VERSUS NATIONAL BANK OF COMMERCE LTD .. RESPONDENT Date of last order - 18/ 10/ 2011 Date of judgment- 30/8/2013 JUDGMENT Shangwa, J. This is an appeal against the decision of the Revisional Bench of the Industrial Court of Tanzania which was given on 18 th December, 2010 in Revision No. 1 of 2007. In their memorandum of appeal, the Appellants raised three grounds of appeal which are as follows and we quote:- 2 "1. The Industrial Court erred in fact and law in holding that the Redeployment Committee had full powers to represent all TUIC0 - NBC filed Branches to make consultations on their behalf on redundancy of the Appellants thereby satisfying the statutory requirements of S. 6 (1) of the Security of Employment Act Cap. 366 R.E. 2002 and Paragraph 2.5 of the Voluntary Agreement No. 4 of 1995. 2. Having found that the Union Leaders were wrongly terminated, the Industrial Court erred in fact and law for vacating the award of the trial Court which had awarded the ,. ' 3 appropriate and justified reliefs to the affected Union Leaders. 3. The Award of the Revision Bench is bad in law for want of reasons to vacate the findings of the trial court." The Appellants were represented by Mr. Kariwa, Advocate and the Respondent was represented by Mr. Ishengoma, Advocate. On 21 st October, 2010, we ordered that the appeal should be argued by ·way of written submissions. Counsel for the parties filed their written submissions as ordered by the Court. However, rejoinder submissions were filed by the Appellants out of the time limit which was scheduled by the court. According to the court's order, the Appellants had to file their rejoinder submissions on 10 th December, 2010. However, instead of doing so, they filed their rejoinder submissions on 29 th 4 August, 2011 after seeking and obtaining leave of the court to do so. In his written submissions, counsel for the Appellants dropped the 3 rd ground of appeal and argued the 1st and 2 nd grounds of appeal only. The first ground of appeal raises an issue as to whether the Redeployment Committee had legal powers to make consultations on behalf of their Worker's Union namely TUICO concerning their redundancy. Mr. Kariwa for the Appellants submitted that the committee which is envisaged under S. 5 of the ~ecurity of Employment Act cap. 387 R.E. 2002 is a committee which is composed of at least one member from the field Branch and who is employed. He did not state as to whether or not the Redeployment Committee was so composed. What he did is that he jumped into something else which is not related to any of his grounds of appeal by stating that the redundancy exercise was bad in law since I . ' 5 the Redeployment Committee in the field Branches of NBC was not consulted before the Appellants were declared redundant. Surprisingly, it is the same Committee which he argues that it had no full powers to represent TUICO NBC field Branches in making consultations with NBC before they were made redundant. We think therefore that Mr. Kariwa jumped into something which led him to self- contradiction. On the other side, counsel for the Respondent Mr. Ishengoma submitted that the Redeployment committee had full powers to represent NBC field Branches of TUICO in making consultations with NBC on redundancy matters. He said that from P.3 of the Voluntary Agreement it can be Seen that the Trade Union together with NBC Management agreed that the Redeployment Committee shall represent field Branches of the Trade Union 1n redundancy processes. 6 We have gone through the Voluntary Agreement in order to find\ out as to whether or not the Redeployment Committee had full powers to represent NBC field Branches of TUI CO 1n making consultations concerning the Appellants' redundancy. After so doing, we found that the said committee had full powers to do so. The powers of the said committee to do so are embodied in the Voluntary Agreement at page 3 where the Redeployment Committee is defined as follows and we quote:- "Redeployment Committee shall mean a committee compri.sing of members of Management and representatives of TUICO (the Executive Committee of TUICO) vested with powers to negotiate with Management for and on behalf of NBC Limited TUICO field Branches . . . " • • I 7 Thus, as it can be seen from the. above quotation, counsel for the Respondent was correct in his submission in saying that the Redeployment Committee had full powers to negotiate or represent NBC field Branches of TUICO in making consultations in respect of redundancy matters. This disposes of the 1st ground of appeal which we find to have no merit. The second ground of appeal raises an issue as to whether or not having found that the Union Leaders were wrongly terminated the Revisional Bench of the Industrial Court erred in fact and in law for vacating the award of a single Deputy Chairman of the Industrial Court. In order to resolve this issue, we started by going through the decision of a single Deputy Chairman of the Industrial Court and found that the Respondent was ordered to pay each Appellant 12 months salary based on the salary scale received by each of them at the time when ,t • t 8 they were terminated. That is in February, 2001. In addition to that, the Respondent was ordered to pay each Appellant "Statutory Compensation" as per S. 35 of the Security of Employment Act No. 62 of 1964. On top of that, the Respondent was ordered to pay the Union Leaders six months salary more than the rest of the Appellants. Thus the Respondent was ordered to pay the Union leaders a total of 18 months salary. After going through the decision of a single Deputy Chairman of the Industrial Court, we also went through the decision of the Revisional Bench of the Industrial Court and found that it reversed the decision of the single Deputy Chairman by ordering that the Appellants should not be paid 12 months salary and that the Union Leaders should only be paid 6 months salary instead of 18 months salary. However, there are no clear reasons on record which made 9 the Revisional Bench of the Industrial Court to reverse the Award of a single Deputy Chairman. As correctly pointed out by Mr. Kariwa for the Appellants, the full Bench of the Industrial Court observed that the procedure was violated in retrenching the Union leaders without approval of the Labour officer. We agree with him that after so observing, it was wrong for the Revisional Bench to reverse the award of a single Deputy Chairman which was given to the Union Leaders. The Revisional Bench also went wrong in reversing the decision of a single Deputy Chairman for awarding the rest of the Appellants 12 months salary without giving reasons for doing so. This disposes of the 2 nd ground of appeal which has merit. For the reasons we have given 1n this judgment, we here by quash the decision of the Revisional Bench of the Industrial Court and restore the Award which was given to 10 the Appellants by the Single Deputy Chairman. It is so ordered.· Thus, we allow this appeal but each party should bear its own costs because this is an employment matter by its nature. B. R. Mutungi ( JUDGE : -··. -·--·, - __ •·.. .. . . 11 Delivered 1n open court in the presence of Mr. D. Mushi for Mr. Kariwa for the Appellants and Mr. Karume Mrisho for the Respondent.