20130917 TZHC Dar es Salaam

'. 1 IN THE HIGH COURT OF TANZANIA q . •· ·AT DAR ES SALAAM,,·- MISC. CIVIL APPEAL NO'. 5 OF'.)',2010 CORAM: Shangwa, J., Muruke, J. and Mgaya, J. ZUHURA S. FUMBA . . . . . . . . . . . . . . . . . . . . . . . . APPELLANT v. TANZANIA ELECTRIC SUPPLY (TANESCO) . . . . . RESPONDENT Date of last order- 2/11/2010 Date of Judgment- 17/9/2013 JUDGMENT Shangwa, J. The Appellant Zuhura S. Fumba was employed by the Respondent TANZANIA ELECTRIC SUPPLY COMPANY LTD. (TANESCO) as accounts clerk. She was employed in June 1994. On 25 th January, 2005, she was dismissed from employment. S~e was. ·;not satisfied by her dismissal. She ·/ ' ' . '_.. ::·_:,;/' then lodged her complaint to the Labour Commissioner. j . 2 On 26 th January, 2006, the Labour Commissioner referred her complaint to the Industrial Court for determination as to whether or not she was dismissed fairly and as to whether or not the laid down legal procedure in dismissing her was followed by the Respondent and if not what are her reliefs. Her complaint was registered by the Industrial Court as Trade Inquiry No. 12 of 2006. On 18 th April, 2008 NMK Mipawa, Deputy Chairman as he then was, gave judgment in her favour. He ordered the Respondent to reinstate her physically in her job. The Respondent was not satisfied with the judgment of the said Deputy Chairman. Mr. Msefya, Advocate filed an application on behalf of the Respondent for its revision by the Full Bench of the Industrial Court. The said Court received his application and registered it as Misc. Civil Revision No. 5 of 2010. 3 In its decision given on 23 rd January, 2010, the Full Bench reversed the judgment of the Deputy Chairman by partly allowing the Appellant's application for revision and partly rejecting it. The Full Bench declared that she had won her application by 75% and lost it by 25%. In her memorandum of appeal lodged in this court, the Appellant advanced two grounds of appeal which are as follows:- 1. That the Industrial court (Full Bench) erred in law to determine her employment contract suo motu under s. 58 (3) of the Employment Act Cap. 366 R.E. 2002. 2. That the Industrial Court (Full Bench) erred in law and fact to set aside the decision of the trial court (Deputy Chairman) to reinstate her physically even after finding that the trial court was correct in setting aside the decision of the employer to dismiss her. 4 Before examining the above listed grounds of appeal, let us mention the facts which led to the dispute between the parties albeit in brief. These facts are as follows:- On 16 th December, 2004, the Appellant developed a mental disease known as Bipolar. She was taken to Mwananyamala Hospital for treatment. On 19 th December, 2004 she was referred to Muhimbili Hospital for further treatment. On 25 th January, 2005, the Appellant's relative called Chande Ramadhani went to the Respondent's office to inform them that the Appellant was ill upon which he was informed that the Appellant had been dismissed from employment for having been absent from work for a period of 22 days without ED or information. End of facts. Let us now consider the two grounds of appeal which were raised by the Appellant against the decision of the Full Bench of Industrial Court. On the first ground of 5 appeal, the Appellant criticises the Full Bench of the Industrial Court for determining her employment contract suo motu. It is true that the Full Bench of the Industrial Court did determine the Appellant's employment contract suo motu. The Full Bench held at page 6 paragraph 2 of its judgment that it has determined the Appellant's employment contract under S. 58 (3) of the Employment Act Cap. 366 R.E. 2002. The question now is whether or not the Full Bench of the afore said court had legal powers to determine the Appellant's employment contract suo motu. In order to _) answer this question, let us quote S. 58 (3) of the Employment Act Cap 366 R.E. 2002 and see what it provides. This section provides as follows:- 6 "S.58 (3) The contract may be determined on the application of either party to a court." In this case, neither party to the employment contract be it the Appellant or Respondent made an application to the Industrial Court to determine it. Therefore, we agree with counsel for the Appellant Mr. Nzowa that the Full Bench of the Industrial Court was wrong to determine the Appellant's contract of employment suo motu by relying on section 58 (3) of the Act without any application from either party. This disposes of the first ground of appeal. On the second ground of appeal, the Appellant criticises the Full Bench of the Industrial Court for setting aside the decision of the Deputy Chairman after finding that the Deputy Chairman's decision to set aside the decision of the employer to dismiss her was correct. 7 Indeed, in its revisional decision, the Full Bench of the Industrial Court found the decision of the Deputy Chairman to be correct that the Appellant was dismissed by the Respondent from her job unfairly, unreasonably and inhumanely. We agree with counsel for the Appellant Mr. Nzowa that after so finding, it was wrong for the Full Bench of the Industrial Court not to uphold the Deputy Chairman's decision to reinstate the Appellant physically in her job. It appear~ to us that its decision was self contradictory. As a whole, we agree with the finding of the Deputy Chairman which was not controverted by the Full Bench that the Appellant was dismissed from her job unfairly, unreasonably and inhumanely. She was dismissed unfairly because the Respondent/Employer did not give her opportunity to be heard about her absence from work for a period of 22 days. She was dismissed unreasonably because the procedure to dismiss her was 8 not followed by the Respondent. She was dismissed inhumanely because the Respondent ignored the fact that she was absent from work for 22 days not due to laziness or for being on a frolic of her own but due to her mental illness. Also, the Respondent dismissed her inhumanely by ,, ignoring a letter from Muhimbili Hospital psychiatric Department with reference No. MNH/PST/C.17/VOL/1/267 dated 16 th November, 2006 in which the Respondent was categorically informed that the Appellant had been admitted in hospital for treatment of her mental illness known as Bipolar and that her mental condition was I • stable enough to resume her normal duties. In addition to that, the Respondent dismissed her inhumanely by alleging that her absence from work was not due to illness but that it was due to fear of her unpaid debts from her creditors. 9 All in all, we agree with the Deputy Chairman of the Industrial Court that as the Appellant had developed mental illness, she was not in a position to go to her place of work and collect a sick sheet from the Respondent's administrative officer. She was also not in a position to ask any of her relatives to go to her place of work and report about her mental illness or disorder. So, we agree with the Deputy Chairman's decision that the Respondent should physically reinstate the Appellant in her job. But as correctly submitted by Mr. Msefya for the Respondent at page 1 of his written submissions, no employer can be forced to work with any employee of whose services is no longer interested in. Therefore, if the Respondent Company (TANESCO) is not interested in the order to reinstate the Appellant in her post physically, it should pay her statutory compensation as provided · for under S. 40 (3) of the Employment and Labour Relations Act No. 6 of 2004 and 10 bid her farewell. Thus, we allow this appeal except that we sustain the Industrial court's order which was given by the Full Bench that her debt of Tzs.1, 500,000 / = owed to the Respondent should be deducted from her dues. This should be done once our order to reinstate her in her post -· physically is not in harmony with the Respondent's interest. With regard to costs, we order that each party should bear its own costs. ~ A.Shangwa JUDGE 17/9/2013 JUDGE 17/9/2013 JUDGE 17/9/2013