Court name
High Court Labour Division
Case number
Revision 259 of 2008

Dawasco vs Rwegoshora (Revision 259 of 2008) [2010] TZHCLD 14 (30 April 2010);

Media neutral citation
[2010] TZHCLD 14

 

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM IN THE MATTER OF

REVISION N0.259 OF 2008

BETWEEN

DAWASCO -APPLICANT

AND

ABDULSWAMADU M. RWEGOSHORA - RESPONDENT

30/3/2010 & 30/4/2010

RULING

The applicant, herein referred to as the employer seeks revision of the Commission for Mediation and Arbitration (C.M.A) which is dated 8th October, 2008.The reasons for the application were advanced in the applicant's affidavit as well as submitted orally when the application came for hearing. The respondent opposed the application; the reasons were stated in the counter-affidavit and in his submission.

It was stated that the applicant was initially employed to perform a number of blue collar jobs such as meter reader, pump attendant, commercial assistant (by then known as revenue collector) lastly his post was changed to customer care supervisor as he is as standard seven leaver manpower and job qualification requirements, the Respondent's post of customer care supervisor required at least a minimum qualification of a Diploma in the related field and computer literacy. Following the reforms the respondent could not stood the requirements.

That in order to secure the respondent's job post, it was proposed to have him shifted from customer supervisor post to his former position that of commercial assistant (formally known as revenue collector).

 

That on December 2007 the Respondent was informed by the applicant on the proposed changes, he was further informed to get prepared for a discussion to sign a performance contract as he had done the job before.

That without justification, the respondent refused the proposed changes in writing and also refused any further cooperation with the applicant including the proposed consultations and discussions on the proposed changes. Following the refusal, in order to maintain peace at the place of work, the respondent was advised to shift to the head office to proceed with his current position while an amicable solution is sought, however he refused and absented from his work.

That after the refusal and absenting from duty, a disciplinary committee was convened to deliberate on the matter and it was finally decided that the respondents services be terminated on misconduct.

That following the termination, the respondent filed a claim at the C.M.A but not withstanding the unequivocal establishment and finding by the commission that there was justification for the transfer, the commission ordered reinstatement of the respondent.

The advocate for the applicant too submitted among other things that the job post transfer was not a new post.

That the C M A misconstrued S.15 (4) of the Employment and Labour Relations Act, Act NO. 6/2004. That this sections doesn't require the employer to consult the employee. That what is needed is notification but the respondent interrupted the process prematurely as he immediately wrote a letter of refusal after receiving a copy. The C M A erred when it held that the applicant didn't follow retrenchment Procedure. The employer has prerogative rights to transfer the employee to other job posts provided it can be justified. C M A having found that restructuring was inevitable then it should have come with a different conclusion.

That the C M A award is itself not properly procured. Three issues were raised at page 3 however at page 8 four other issues were raised. The issues raised on page 3 were left unattended as a result the Arbitrator misled herself.

That CMA form no. 1 was not properly filled in. Its incomplete hence there was no dispute before the CMA.

The respondent stated in his affidavit that he was in continuous service with the applicant from 14thOctober, 1996 to 30thJanuary 2008 when his services were unfairly terminated and in accordance with unfair procedure. At the time of unlawful termination he was working at the capacity of customer care supervisor at llala station Dares Salaam.

By qualification and on merits he was promoted from the post of commercial assistant/ revenue collector to customer care supervisor the duties of which he ably and competently performed from 15th May 2007 to 31st January 2008. There is no evidence that the respondent was provided with work and failed to perform.

The changes or demotion was made by the commercial area manager without prior consultation and without prior approval of the Chief executive officer amounting to harassment against which the commission for mediation failed to award damages not more than T.shs.100,000,000/=.

That the MEMO of llala Area Manager dated 6th December 2007 addressed to the respondent ( Annexture A which was produced at the C M A and another MEMO of the said manager to the CHRO on the same day ( Annexture B) filed in support of the application are forgery.

That the Area Manager off DAWASCO had no authority to alter terms and conditions of the respondent's employment vide annexture C to this Counter Affidavit.

That the applicant contravened the provisions of Employment and Labour Relations Act, the Code of Good Practice and staff Regulations with impunity.

Mr.Mrugaruga, the respondents representative stated thus; That respondents services were unlawfully terminated as he had no record of misconduct and no disciplinary action was taken against him nor there were any written warning.

That S.15(4) of Act NO.6/2004 states that the employee must be consulted in event of any change in written statement of the particulars of the employment; and the employee has to be given job description. The respondent was not given job description nor was he consulted.

The Area manager had no authority to transfer him and the termination was unfair and there were no valid reasons to terminate. The respondent was denied a right to work.

The issue, whether the CMA Form was defective, he stated that the form is for purposes of mediation only. The fact that the form is defective at arbitration stage should not be entertained.

The issue is whether the CMA award was proper procured. I have taken into consideration the record and both sides submissions; I am of the following opinion:

(i) The arbitrator correctly found at page 8-9 that due to operational reasons and
need of restructuring, the employer had to transfer the respondent to another post.
There is evidence on record to the effect the that the respondent was informed of the
changes but he refused to be posted to a new job; on the ground that he was not
given job description; and that the officer who wrote the transfer letter was not vested
with authority to do so. I am of the considered opinion that in view of what the
arbitrator findings on page 8-9 and due to the fact that the applicants company was
undergoing restructuring, the arbitrator erred when he ordered that the respondent
should be reinstated to a previous post which in view of the re organisation , he did
not qualify. In the circumstances of the case, the proper course was to order
retrenchment of the respondent. Reinstatement would be possible if the respondent
was ready to take up the new post. The evidence shows that the respondent did not
report to the new post and lodged a complaint to the management because he was
not ready for the new post. The complaint was dully investigated however it was
found that transfer of a post was inevitable.

(ii) Concerning Section 15(4) of the Employment and Labour Relations Act, Act

NO. 6/2004. As contended by both parties, it puts a requirement of consultation. The provision reads thus:

"(4) Where any matter stipulated in subsection (1) changes, the

employer shall, in consultation with the employee, revise the written

particulars to reflect the change and notify the employee of the change."

 

There is evidence to the effect that the respondent was informed of the need to restructure; and that he would be transferred to another post. The respondent resisted as he did not report to his new post. The employer ought to have suggested to him an option of retrenchment and not terminate his services for misconduct as he did.

(jit) Regarding the issue of Form NO. 1; I have gone the form, all relevant parts have been filled in ; the date of employment, date on which the cause of action arose, the dispute ,the reliefs claimed and particulars of the parties. It is my view that the C M A F. NO 1 was in the prescribed form in compliance with S.86 of the Employment and Labour Relations Act, Act No. 6/2006.

For the a foregoing reasons I revise the arbitrators award to the extent that the respondent should be retrenched and be paid all retrenchment benefits.

 

 

 

R/A Explained

 

 

 

S.C. Moshi

Judge

30/04/2010