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Cecilia Gregory Mungata Vs UN Lodgev en Afrique 2024 TZHC 6579 (28 June 2024)

Judgement

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Auson Andrea
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52 views12 pages

Cecilia Gregory Mungata Vs UN Lodgev en Afrique 2024 TZHC 6579 (28 June 2024)

Judgement

Uploaded by

Auson Andrea
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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT ARUSHA REVISION APPLICATION NO. 34 OF 2023 (Originating from labour dispute No. CMA/ARS/358/20/52/2021) BETWEEN CECILIA GREGORY MUNGATA APPLICANT AND UN LODGE EN AFRIQUE... »» RESPONDENT 29/05/2024 & 28/06/2024 JUDGMENT MWASEBA, J. Being aggrieved by the decision of the Commission for Mediation and Arbitration for Arusha at Arusha (CMA) in Labour dispute No. CMA/ARS/358/20/52/2021, the applicant herein has preferred this revision application urging this court to call for, examine and revise the records of CMA award to be satisfied in its correctness, legality and propriety of the proceedings and set aside the same. Red. 1|Page decisions by the disciplinary committee and she was further issued with the termination letter instantly. d. That, the honourable Arbitrator erred in law and fact by failure to consider and evaluate the evidence by the applicant. Further, the arbitrator failed to consider her final submission. During the hearing of this matter, Mr. Frank Wilbert Makishe, learned counsel, appeared for the applicant, while Mr. Qamara Aloyce Peter, learned counsel, appeared for the respondent. The application was disposed of by written submission. Amplifying the first ground, Mr. Frank argued that the applicant was charged with the misconduct of theft and the incident was reported at Minjingu police station with RB No. MN/RB/66/2018. A police search was conducted, and seizure certificates were tendered as Exhibit P11. He referred this court to Section 37 (5) of the Employment and Labour Relations Act, Cap 366 R.E 2019, which provides that no disciplinary action in the form of penalty, termination or dismissal shall lie upon an employee who has been charged with a criminal offence which is substantially the same until final determination by the court and any appeal thereto. He also referred to Rule Aleta 3|Page Her application is made under Sections 91(1)(a),(b),91(2)(b), and (c), 91(4)(a) and (b) and Section 94(1)(b)(i) of the Employment and Labour Relations Act [Cap 366 R.E. 2019] and Rules 24(1),(2),(a), (b), (c),(d),(e) and (F), 3(a),(b),(c), and (d) and Rule 28(1)(c),(d) and (e) of the Labour Court Rules, GN No. 106 of 2007 and is accompanied by an affidavit sworn by the applicant herself. In her affidavit, the applicant has pointed out four grounds to be dealt with by this court on revision as hereunder: a. That, the honourable Arbitrator failed to acknowledge that the applicant stood charged with the criminal misconduct of theft and that the same was still under Police investigation with RB number MNJI/RE/66/2018 and it was not proved beyond reasonable doubt against the Applicant. 5, That, the honourable Arbitrator failed to acknowledge that the Respondent did not conduct investigation to ascertain whether there were grounds for disciplinary hearing. c. That, the honourable Arbitrator failed immensely to reasonably assess and observe that the Applicant was not given a right to appeal on the Fecfe 2[ Page 27 (5) of the Employment and Labour Relations (Code of Good Practice), Rules, GN No 42 of 2007, and The Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedures set out in the Code (The Guidelines) schedules to strengthen his argument. He was of the opinion that criminal offences must be Proved beyond reasonable doubt and that since the same was not proved to the required standard, the internal disciplinary action carried out could not dictate the outcome, Regarding the second ground for revision, Mr. Frank pointed out that Rule 13 (1) of the Employment and Labour Relations (Code of Good Practice) Rules (Supra) requires the employer to conduct an investigation to ascertain whether there are grounds for a hearing to be held. However, in this case, no investigation was conducted by the respondent since the investigation, which was done by the police, could not be relied upon by the respondent to make a decision as it was subject to proof based on the standard principle. Submitting in support of the third ground, Mr. Frank complained that the applicant was not given a right to appeal against the decision of the disciplinary committee as she was issued the termination letter instantly. He was of the opinion that the employer did not follow the ter ination 4lPage Pret

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