IN THE HIGH COURT OF TANZANIA LABOUR DIVISION
AT DAR ES SALAAM IN THE MATTER OF REVISION NO.8 OF 2009
TISCAN LIMITED -APPLICANT
REVOCATUS SIMBA - RESPONDENT
16/4/2010 & 30/4/2010
The applicant has lodged the present application under Sections 91(1) and 94(1 )b) of the Employment and Labour Relations Act, 2004, Rule 24(1 ),(3) and (11), and Rule 28(1) of the Labour Court Rules,2007 and any other enabling provisions of the law seeking a Revision of Commission for Mediation and Arbitration(C.M.A) Award dated 17th December,2008; he prays for the following reliefs:
1. A declaration that the respondent, for valid reasons and observance to the procedure, was lawfully terminated by the applicant.
2. An order that the commission erred in reinstating the respondent without sufficient cause, a midst clear loss of trust between the parties herein.
3. A declaration that the respondent was fully paid terminal benefits.
The issues before the C.M.A were (I) whether there was a valid reason for terminating respondents services (II) Whether the employer followed a fair procedure in terminating the respondent's services. The arbitrator found that there was no valid reason for termination; and that the respondent was not given a right to be heard; also that a hearing procedure was not adhered to.
The applicant submitted interalia thus:- The applicant company is a TRA agent. Among the applicants tasks is to analyse price of imports for the purposes of taxation. According to the applicant's submission, the respondent was the price analyst valuer however he knowingly, negligently and dishonestly undervalued the price of the files TZDAR 29980 and TZDAR 300356.That the respondent defended himself in writing and stated that the mistake was occasioned by other employees; however he was the one with final authority. That the employer had good /valid reason to terminate the respondents services because he had breached the contract of service, hence the employer was justified to do so under Rule 8(2)(a) to (d) of the Code of Good Practice, G. N. No.42/2007.The rule provides that where the employer has employed an employee on fixed term contract, the employer may terminate the contract before expiry of the contract period without notice if the employee materially breaches the contract. The effect of warning is to notify the employee that a further offence could result to a more serious disciplinary action. That the employee was warned three times.
That the arbitrator didn't consider the termination clause which provides that termination is to be done by notice.
That an order for reinstatement was wrongly done as the applicants business is built on trust and honest; and the arbitrator too erred as he didn't consider R.12 (1) of G.N. No 42/2007.
The submission for the respondent was among other things thus: On 22nd December he received a Memo requiring him to present statement on the assessment in connection to files TZDAR 299809 and TZ DAR 300356.He submitted a written statement on the same day. On the same date, the applicant suspended the respondent pending investigation. That while awaiting for results of the investigation on 17/1/2007 he was terminated and the reasons for termination was discrepancies of some valuation reports which were not the subject matter of the 22nd December MEMO ;several reprimands which connotes lack of seriousness, professionalism and reform; loss of confidence by the applicant and non performance. That no charges were laid against him, no disciplinary hearing was conducted against him after the investigation and the referred warning was not connected to the alleged breach. He therefore submitted that the C.M.A was right to decide as it did.
I have considered both side's submissions, the C.M.A award and proceedings and the record as a whole; and the cited laws and I have the following observations:
1. It is clear that the main reason for termination was non performance. To determine whether the work performance is poor is a question of fact; see R.17 (1), (3), R.18 of the G.N.NO 42/2007. Therefore the employer was duty bound to inquire on the fairness of the reason and to follow the stipulated procedure.
2. Failure to follow the stipulated procedure denied the respondent the fundamental right to be heard on the allegations charged in the termination letter. The transactions which the employee was required to give explanation, prior to suspension were quite different from those indicated in the termination letter. Hence the employee, in the circumstances of the case was entitled to be given an opportunity to account for the poor work performance. The law requires the employer to ascertain whether it is a misconduct or incapacity. After making such a finding then the relevant procedures should be followed. If it is a misconduct Rules 11, 12 and 13 of G.N NO.42/2007 would follow; and if it is poor work performance then Rules 17 and 18 of G.N. NO 42/2007 would be complied with.
3. It is my view that R. 8(2) (a) to (d) of G.N.NO.42/2007 do not provide for automatic termination. The material breach has to be proved on balance of probabilities and has to be communicated to the employee, as the fairness procedure requires.
Also Rule 12(1) of G.N. 42/2007 provides for guidelines for determining whether the reason was fair; the arbitrator did consider whether the reason was valid; see pg. 9 -10.
Having discussed as I did, I find no reason to differ with the arbitrators findings that there was no valid reason s for termination and that the fairness procedure was not followed. THUS the termination was unlawful.
The arbitrator ordered reinstatement of the employee to his employment. However, learning from the submissions, it is obvious that the parties' relationship has been tainted. I therefore, in order to maintain industrial harmony; order under Section 40 (3) of the Employment and Labour
Relations that if the employer decide not to reinstate the respondent within fourteen(14) days from the date of this Ruling; The Employer (applicant) should pay the employee (respondent) COMPESATION of TWELVE MONTHS salaries in addition to what was paid to him. Section 40(3) provides thus:
Where an order for reinstatement or re-engagement is made by an arbitrator or court and the employer decides not to reinstate or to reengage the employee, shall pay compensation of twelve months wages in addition to wages due and other benefits from the date of unfair termination to the date of final payment.
Apart from the variation of the above order the, the application is dismissed for want merits.
It is so ordered.
Rl A Explained.
No Similar Judgment found.