IN THE HIGH COURT OF TANZANIA

(LABOUR DIVISION)
IN THE DISTRICT REGISTRY OF SHINYANGA
AT SHINYANGA

LABOUR REVISION NO. 69 of 2018

DENIS BWIRU I. APPLICANT
VERSUS
BULYANHULU GOLD MINE LIMITED RESPONDENT
(Application from award of Commission for Mediation and Arbtration- CMA)
(Nnembuka K,Chairman)
Dated 22ndday of November,2018
in
Labour Dispute No. CMA/SHY /142/2017

RULING

7th December, 2020 & 26th February,2021

MDEMU, J.:

In this application, the Applicant moved this Court to revise the award

of the Commission for Mediation and Arbitration in Labour Dispute No.

CMA/SHY/142/2017 .The application is under the provisions of Section

91(1)(a)(b),(2)(a)(b),(c) and 94(1)(b)(i) of the Employment and Labour

Relations Act,No.6 of 2004,as amended by Section 14(b) of the Written

Laws(Miscellaneous Amendment) Act No.3 of 2010 and Rule

24(1),24(2)(a)(b )(C)( d)( e)(f) 24(3)(a)(b)( c)(d), and 28(1)( c)( d)( e) of the
Labour Court Rules, G.N. No.106 of 2007 and is supported by the affidavit

of one Denis Bwiru, the Applicant.

Brief facts of this Labour dispute are as elaborated in the Applicant's

affidavit. On 2nd of July,2008, the Applicant was employed by the Respondent

as mining trainee and later was promoted to a position of miner within

underground mining Department. During recruitment of his employment, the

Applicant did undergo medical examination in which he was found to be

physically fit to perform the functions and duties recruited for.

In the year 2013, the Applicant experienced mechanical lower back

pain which lead him to attend treatment at the Respondent's mine site clinic

and later on was referred to Muhimbili Orthopedics Institute (MOl) for further

investigation and treatment. He was diagonized and found with mechanical

lower back pain and mild cervical disc disease.

On 2014, the Respondent convened his own medical health review

board which confirmed that, there was work related incapacitations. The

Board on this recommended him to continue with treatment while the

Respondent looks for alternative jobs and any possible means to

accommodate his incapacitations. On 20th of May, 2017, the Respondent

terminated him from employment for reasons of incapacity(ill-health). The

Applicant being aggrieved by that termination, referred the matter to the

Commission for Mediation and Arbitration (CMA) alleging unfair termination,

breach of contract and infringement of his rights to work and right to life.

The CMA determined the complaint and arrived to the conclusion that,

the Applicant's termination was on fair grounds thus dismissing the entire

complaints. The Applicant being aggrieved by that decision, lodged this

labour revision praying for the following orders;

1. That, this Honourable court may be pleased to

call and revise the Arbitration proceedings in

respect of labour dispute No.CMAjSHYj142 of

2017 by the Commission for Mediation and

Arbitration (CMA)at Shinyanga.

2. That, this Honourable Court may be pleased to

revise the Award issued under that Arbitration

due to irregularities and order reinstatement of

our employment and payments of all

remunerations and other entitlements from

termination date. If fail to reinstate, he must

affect payment of 36 months remunerations

 being compensation for unfair termination of

our employment due to incapacitation payment

24 years remunerations as a remedy for breach

of our contract and damage of our rights to

work and to life.

3. That, Honourable court may be pleased to grant

any order that it considerjust and convenient to

grant.

4. Costs to be borne by the Respondent.

This application was heard by way of written submissions where by

Mr. Benjamini Dotto, Personal Representative submitted for the Applicant

and Ms. Caroline Kivuyo, Learned Advocate, submitted through her written

submissions, for the Respondent.

In the Applicant's submissions, Mr.Benjamini Dotto first prayed this

court to adopt notice of application and the affidavit of the Applicant to form

part of his submissions. He then submitted that, the Applicant was

terminated from his employment on 20th May,2017 for incapacity(ill-health).

In his view, the burden of proving fairness of reasons before terminating an

employee for incapacity lies upon the employer. He added that, factors
stated in the provisions of Rule 19(1)(a)-(e) of the Employment and Labour

Relations(Code of Good Practice)Rules, G.N.No. 42 of 2007, have to be

observed. He further submitted that, the Arbitrator failed to consider in

termination the followinqi- One, the Applicant was terminated from

employment without any opinion or recommendations from his specialist

Doctor contrary to the requirements of Rule 19(3) of GN. No. 42 of 2007.

The Rule compels the employer to be guided by the opinion of a registered

medical practitioner to determine the cause and degree of any incapacity.

Two, the Respondent did not go greater length to accommodate the

Applicant's incapacity which resulted from work contrary to the provisions of

Rule 19(2). Three, the Respondent did not also accommodate the Applicant

with any alternative work. In this, he cited the case of Geita Gold Mine Ltd

v. Jumanne 8ayasabe, Rev. No.22S of 2008 (unreported) stating that,

the Respondent was not supposed to terminate Applicant while on

treatment. Four, the Respondent didn't provide any compensation or

pension to the Applicant as a remedy for loosing his job due to incapacity

contrary to Rule 19(1)(e) of GN N. 42/2007. To him, this requirement is

mandatory as was decided in the case of Cosmas Yambi, Cyprian Simon

~=====5~~~ _
Mbutto and 5 Others v Bulyanhulu Goli Mine Limited, Labour

Application No.76 and 77 of 201S(unreported).

He further submitted that, basing on the above factors, the

Respondent failed to prove before CMA if he had valid and fair reasons to

terminate the Applicant's employment and also failed to comply with the

provisions of Rule 21(5)(6)(7)(8) which required the Employer to call

meeting with the employee who shall be allowed to have trade union

representative in case there is termination. He cited the case of Martine

Oyier v Geita Gold Mine Limited, Labour Revision No.226 of 2008

(unreported) to support his point. He concluded that, the Arbitrator erred in

law for holding that, the Applicant does not deserve to be compensated or

reinstated because termination was fair in terms of procedure and

substantively. He cited the case of Pangea Minerals Limited v Joseph

Mgalisha Bulabuza, Revision Application No.7 of 2020, Isaac Sultan

v. North Mara Gold Mine Limited, Consolidated Labour Revision

No.16 and 17 of 2018 (all unreported) to support his point on

compensation.

In reply, Ms. Caroline Kivuyo, Learned Advocate for the Respondent

prayed first counter affidavit and notice of opposition be adopted to form

6)
part of her submissions. On the first factor that the employee was terminated

without any opinion or recommendation from his specialist doctor; she

submitted that, the evidence on record proved that the Respondent was

guided by opinion of a registered medical practitioner in determining the

cause and degree of incapacity as per exhibit D3 from Aga Khan Hospital.

Furthermore, in exhibit D1, a Medical Review Board ("the board") was

formed and among the members was Dr. Othman Kilomola from Muhimbili

Orthopaedic Institution (MOl). To her, the Board investigated the capacity

of the Applicant and reached a conclusion that, he has partial permanent

incapacity.

On the second factor that the Respondent did not go to a great length

to accommodate the Applicants incapacity; she submitted that, evidence on

record especially in exhibit D1, is clear that, the Applicant was diagnosed

with illness way back in 2013 and was given sick leave of four years.

Furthermore, the sick leave was fully paid and also the Respondent paid all

medical expenses of the Applicant throughout. To her, incapacity was

accommodated above and beyond reasonable standards.

Submitting on the third factor that the Respondent didn't investigate

and look for alternative job as recommended by the Applicant's Specialist

7\
Doctors; she said that, on 7th October,2016, there was a meeting were the

Applicant was represented. As per the testimony of Shukuru Mwinunu

(DW2), all options put forward by the Applicant including alternative work as

a CQV operator, safety officer and Store dispatch were considered but none

was found to suit the Applicant due to health restrictions. She distinguished

the case of Geita Gold Mining Limited v. Jumanna Bayase (supra) cited

by the' Applicant because, the Respondent herein diligently followed all the

procedures and involved the Applicant with his representative Nkai Samwel

as per exhibit D-6.

As to the fourth factor on want of compensation or pensions by the

Respondent; she submitted that, the Applicant was paid compensation for

his incapacitation under the Workers Compensation Act, Cap.263. She

added that, according to Exhibit D-9, the Applicant was paid

Tshs.l,OOO,OOO/= which is above the statutory compensation of

Tshs.l08,OOO/=. On that note, the case of Cosmas Leon Yambi and

Others v Bulyanhulu Gold Mine Limited (supra) Cyprian Simon

Mbuto and 5 Others v Bulyanhulu Gold Mining Limited,

Consolidated Miscellaneous Labour Applications No.76 of 2005

(unreported) cited by the Applicant are distinguishable because, the

Applicant herein had been paid compensation for his incapacitation.

She further submitted that, the Respondent complied with Rule

21(5)(6)(7)(8) of G.N.No.42 of 2007 because, the Applicant was represented

by Nkai Samweli Shukuru Mwainunu who was given opportunity to make his

presentation and recommendations. Therefore, she concluded that,

termination was fair both procedurally and substantively and she thus

distinguished this case and the case of Pangea Minerals Limited v

loseph Mgalisha Bulabuza.Revlslon Application No.7 of

2020(unreported) cited by the Applicant.

In rejoinder, Mr. Benjamini Dotto reiterated his earlier position and

emphasized that, the Respondent terminated the Applicant on 20th May 2017

without being afforded an opportunity to attend medical follow ups as it was

recommended by his specialist Doctor. To him, it was proper for the

Applicant to be reinstated or compensated accordingly.

Having considered submissions of both parties and thier affidavit,

counter affidavit together with respective records; in paragraph l(c) of the

9
affidavit of one Denis Bwiru, the Applicant, there are five main legal issues

constituting grounds for revision. They are:-

i. That, whether it is proper and fair for the

Arbitrator to hold that, his employment was

terminated fairly by the Respondent.

if: That, whether it is proper for Arbitrator to

hold that his contract of employment was not

breached by the Respondent.

Hi. That, whether it is proper for Arbitrator to

hold that the Respondent is not responsible

for any damage(tort) resulted from loss of his

employment.

iv. That, whether it is proper for Arbitrator to

hold that he do not deserve to be paid any

compensation or to be reinstated.

v. That, whether the Arbitrators holdings are

based on any points of law or on his own

findings and that he was biased.

 According to the legal issues just quoted above, I will start by citing

the provisions of Rule 19(1) of the Employment and Labour Relations (Code

of Good Practice) Rules in resolving then. The Rule provides that;

'}1n employer who is considering to

terminate an employee on grounds of ill

health or injury shall, take into account the

following factors to determine the fairness of

the reason in the circumstances;

(a) The cause of the incapacity;

(b) The degree of the incapacity;

(c) The temporary or permanent nature of the

incapacity;

(d) The ability to accommodate the incapacity;

(e) The existence of any compensation or pension.

From the provisions just quoted above, the law is clear that, an

employer who intends to terminate an employee on ground of ill health or

injury shall take into account or comply with the above factors.

Noncompliance will render any such termination unfair. This was also
stated in the case of Said Mohamed Nzegere v. AARSLEFF BAM

International, Labour Court Case Digest, 2014 -PART 1 at page 226

that, where termination is on the ground of sickness resulting to

incapacitation, it is the duty of the employer to determine illness first before

he proceeds to terminate on that ground. It was stated in that case that:-

"The act of the Applicant of NOT being in the capacity

to perform his duties falls under the term and category

of INCAPACITY. Thus, when the employer terminates

the Applicant because of ill-health then the termination

for incapacity based on ill health crops. Mainly there are

•
three types of different INCAPACITY to wit, (i)

incapacity due to poor work performance (ii) Incapacity

due to ill health or injury (iii) Incompatibility as a form

of incapacity. "

In the instant application, it is not disputed that, the Applicant got ill-

health and he was terminated on that ground. What is disputed is on failure

of the Respondent to provide any compensation or pension to the Applicant

after termination of his employment as a remedy for loosing of his job due

to that incapacity/ill-health. According to Rule 19 of the Employment and

J
12

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Labour Relations (Code of Good Practice) Rules as cited above, if the

incapacity is temporary, an employer must investigate the extent of the

incapacity or injury, and that, if the period of the incapacity is unreasonably

long, then the employer may consider all alternatives available before

termination.

Furthermore, the law is clear with regard to fairness of procedure to

follow due to incapacity -ill-health or injury that, the following have to be

complied by the employer; one, investigation, two, Consultation, three,

reasonable accommodation, four, alternative employment and five, an

enquiry or hearing as provided for under Rule 21 of the Employment and

labour Relations (Code of Good Practice). The rule reads as follows:-

"21(1) The employer shall investigate an employees

incapacity due to ill-health or injury.

(2) The employee shall be consulted in the process

of the investigation and shall be advised of all the

alternatives considered.
(3) The employer shall consider the alternatives

advanced by the employee end, if not accepted. give

reasons.

(4) The employee is entitled to be represented by a trade

union representative or fellow employee in the

consultations.

(5) Prior to decision to determine the employment of an

employee for ill-health or injury, the employer shall call a

meeting with the employee, who shall be allowed to have

a fellow employee or trade union representative present

to provide assistance.

(6) The employer shall outline reasons for action to be

taken and allow the employee and/or the representative

to make representations, before finalizing a decision.

(7) The employer shall consider any representations

made end, if these are not accepted. explain why.

(8) The outcome of the meeting shall be communicated

for the employee in writing, with brief reasons.

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 Also, in Rule 7 of Employment and Labour Relations (Code of Good

Practice) Rules regarding the question of procedure, it is stipulated that:

"In casesof alleged incapacity of an employee due

to ill health or inju~ a Managershould consult the

employee to identify and analyze the problem. The

manager should be guided by the opinion of a

registered medical practitioner in determining the

cause and degree of any incapacity and whether it

is of a temporary or permanent nature. "

According to the legal requirement just quoted above, the issue here

for determination is whether termination was fair and that the Respondent

followed all procedures of termination regarding lncapacitvtitl-health) as

enumerated above. As to the first factor that the Applicant Employee was

terminated without an opinion or recommendation from his specialist doctor,

the records of CMA at page 13 reads as follows;

''Katika shauri hili lililo mikononi mwangu,

m/a/amikiwa alizingatia mambo hayo na kwa mujibu wa

kikao cha bodi ya Afjta kilichofanyika siku ya tarehe

-----
 25/6/2013 kwa Cosmas Yambina tarehe 25/9/2013 kwa

Denis swlru, kikiongozwa na Daktari bingwa wa

mgongo (Relevant MedicaISpecialist)DKt.Othman

Kiloloma kutoka Taasisi ya Mifupa (MOI) ambapo

sababu na kiwango cha ulemavu cha walalamikaji kiliweza

kubainika kwa kila mmoja kwamba ulemavu wa

kudumu(Partial Permanent Incapacity). " (emphasis

supplied)

As to the quotation above, it is clear that, the Respondent Employer got

guided by the opinion of a registered medical practitioner in determine the

cause and degree of incapacity. Among the members of that medical specialists

was Dr.Othman Kilomola from Muhimbili Orthopaedic Institution (MOl). In this

therefore, the Board investigated the incapacity of the Applicant and reached a

conclusion that he has partial permanent incapacity. This factor is thus baseless

as the decision got reached after taking into account recomandations of Medical

practitioner.

As to the second factor that the Respondent did not go to great length

to accommodate the Applicant's incapacity which resulted from work; the

record shows that, the Applicant was diagnosed with illness way back in

16 \
2013. Following that diagnosis, he was given sick leave of four years.

Furthermore, the said sick leave was fully paid. In addition to that, the

Respondent paid for medical expenses of the Applicant the whole period.

Regarding this, at Page 13 and 14 of CMA award it is provided that:-

''Kwa mujibu wa Ushahidi katika shauri /i/i/opo

mikononi mwangu, wa/a/amikaji ni wagonjwa kwa

muda mrefu na tangu walipobainika kuwa na

matatizo ya mgongo walikuwa katika likizo ya

ugonjwa tangu mwaka 2013 mpaka

walipoachishwa kazi mwaka 2017 takriban

miaka minne Zaidi ya kiwango kilichotajwa katika

sheria ambacho ni siku 126 kif.cha 32(l)(2)cha sheria

ya Ajira Na.6/2004.Na kwa kipindi chote hicho

mwajiri amekuwa akimhudumiapale alipotumia

gharama zote za matibabu bi/a ya wa/a/amikaji

kufanya kazi yoyote na hata m/a/amikiwa hakuwa na nia

mbaya na wa/a/amikaji na a/itimiza matakwa ya sheria. "

(emphasis mine)

17 )

-=======~----------
 In this position of the Arbitrator, I am of the view that, the incapacity

of the Applicant was accommodated beyond and above reasonable

standards. The assertion of the Applicant that it was not, holds no water thus

remain afterthought.

Regarding the third factor on failure of the Respondent to investigate

and look for alternative job as recommended by the Applicants Specialist

Doctors; at page 14 and 15 of the CMA award, the following is stated:-

"Katika shauri hili walalamikaji hawakuwa na

taaluma ya ziada tofauti na kazi walizokuwa

wanafanya na hata kazi ambazo walihitaji

kupatiwa mafunzokwa mujibu wa vizuizivya

magonjwa yao ilionekana hazitawafaa,

kwani miongoni mwa vizuizi ni kutokaa,

kutotembea, na kutosimama kwa muda

mrefu,kutonyanyua vitu vizito na kuepuka

kuinama inama na hivyo kwa kifupi ni

kwamba ajira mbadala ilikosekana."

(emphasis supplied)

-----
 On that note, the Respondent strived to the best to locate alternative

work to the Applicant in vain. There was no alternative job to suit the

Applicant considering the health restrictions observed by his specialist and

experience in such alternative jobs. The Respondent thus complied with that

requirement thus, I do not find if a need arise to faulty the Arbitrator in his

observation.

As to the fourth factor on provisions of compensation or pension, the

record also is clear at page 13 of CMA award that:-

''Pia kwa mujibu wa kie/e/ezo D-9 wa/a/amikaji

wa/i/ipwa fidia ya kuumia kazini Denis

(Tshs.1,000,000) na Cosmas (Tshs.1,400,000)

ambayo ni Zaidi ya kiwango ki/ichotajwa kwenye

sheria ya fidia kwa wafanyakazi (Workers

Compensation Act,Cap.263 R.E2002) kwani katika

sheria hiyo kiwango chajuu ni shi/ingi 108,000/-."

With the above quotation, it is clearly on record that, the Applicant

was compensated to the tune of Tshs.1,OOO,OOO/=being compensation for

his incapacitation which is above the statutory compensation of

Tshs.l08,000j- provided by the Law. For that reason, I am of the firm view

that, the arbitrator considered compensation which the Respondent paid the

Applicant. I do not agree with the Applicant that, there was no any

compensation paid. Equal/y I do not agree with the Applicant, both in his

affidavit and during submissions that termination of the Applicant, under the

circumstances of this dispute was unfair. The Applicant was involved in

looking for alternative job basing on recomendations of the Medical

Specialist. His representative was also present and that the reasons (ill

health) leady to termination was investigated

In my opinion, termination was thus fair, just and equitable

substantively and procedural/y. In consequence thereof, this application is

hereby dismissed. No order as to costs.

Order accordingly.

~mu
JUDGE
26/02/2021
DATED at SHINYANGA this 26th day of February, 2021.

," Gerson l. Jdemu---

i: JUDGE
/: 26/02/2021

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