matrix CASE LAW
DIGEST VOL 1
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AGNESS B. RUHERE V. UTT MICRO FINANCE PLC, HIGH COURT, LABOUR
DIVISION, DAR ES SALAAM (2017)
Termination of a probationary employee –probational period – unfair labour
practice relating to probation – substantive and procedural fairness –purpose of
probation – negative employment reference check.
An employee who is under probational period when terminated cannot
sue or file a dispute for unfair termination.
Termination of a probationary employee without following the legal
requirements amounts to an unfair labour practice.
A probationalemp|oyee whose employment has been terminated can sue
or file a dispute for an unfair labour practice relating (or concerning) to
probation.
Entitlements of a probational employee.
Before terminating or resorting to termination of the probationer or
extending the probationary period, the employer must invite the
probationer to make representations and consider them. Such
representation may also be made on behalf of the probationer by a trade
union representative or co-employee.
Substantive and procedural fairness in the termination of a probationary
employee.
Tanzanian labour laws are more or less in parimateria with the labour
laws of South Africa.
Definition of unfair labour practice.
The purpose of probation is to put the employer in a position to take
aninformed decision about the capacity and suitability of an employee to
do a certain job.
Termination of a probational employee on the basis of information that
the employee was terminated by the previous employer for gross
misconduct.
Probational employee who was terminated as a result of unfair labour
practice was awarded compensation of twelve months salaries.
AIRTEL TANZANIA LIMITED V. EARL MATTHYSEN, HIGH COURT OF TANZANIA,
LABOUR DIVISION (2017).
Non-citation of enabling provisions – non-citation of sub-paragraphs –
application for extension of time – non-endorsement of documents – firms and
partnerships cannot practice as advocates.
Non-citation of enabling provisions of the law.
Non-citation of sub-paragraphs.
An application, before the Labour Court, for an extension of time which
does not cite sub-paragraphs (a), (b), (c) and (d) to Rule 24 (3) of the
Labour Court Rules is defective.
Non-endorsement of documents
Firms and partnerships cannot practice as advocates, legally sign and or
file any pleading in Court.
Sections 2, 6 and 8 of the Advocates Act.
RamadhaniSoodBalenga v. Hans AingayaMacha; James Charles
LubwaVs Gold Star Paints(T) Limited followed.
CONSOLATA & 2 OTHERS V. MANSOOR DAYA AND CHEMICAL CO. LIMITED,
HIGH COURT OF TANZANIA, LABOUR DIVISION (2017)
Procedural fairness guidelines – non-compliance with procedural fairness
guidelines –mechanical checklist approach.
The procedural fairness guidelines under Rule 13 (1) - (13) of theCode of
Good Practice GN. No. 42 of 2007 are more or less in parimateria with the
guidelines of the Code of Good Practice of South Africa where our labour
law is heavily borrowed from.
Non-compliance with one or more of the procedural fairness guidelines
will not necessarily render a dismissal procedurally unfair. It will be
procedurally unfair only if, on balance, an employee is not given a fair
opportunity to state a case in response to the factual allegations against
him or her. (Mutual Construction Co.TVL (Pty) Ltd. V. Nombela [2010] 5
BLLR 513 [LAC] followed.
Procedural fairness guidelines should not be applied in what is called ''a
mechanical check list approach” that every guideline should be complied
with the employer.
EDEN MAEDA V. HOTEL AND LODGES (T) LTD, HIGH COURT OF
TANZANIA, LABOUR DIVISION (2017).
An employment contract of an indefinite period – absenteeism from work for
two days – reasonable time to prepare for hearing and respond to any
allegations from the employer – termination of employment by the
disciplinary hearing committee – compensation for unfair termination – 12
months salaries -
An employment contract of an indefinite period cannot be terminated
without fault.
Absenteeism – procurement officer was absent from work for two
days on grounds that he travelled to perform a task which he was not
assigned to do – the reason is unacceptable.
Absenteeism from work for two days does not justify termination.
It is a command of thelaw that employees be availed with reasonable
time to prepare for thehearing and respondto any allegations from
employer, and reasonable time is termed to be not less than 48 hours.
Employer was given a letter of allegations against him and was
ordered to respond on the same day – it was held that the employer
was not availed with reasonable time to respond.
Termination letter was signed by a member of the disciplinary
committee (human resource director )–wrong.
The role of the disciplinary hearing committee is to hear and find the
employee guilty/not guilty and recommend the best penalty to the
higher authority to make decision.
An issue which was not raised before the Commission for Mediation
and Arbitration cannot be rained during the revision stage.
Chairman of the disciplinary hearing committee should not have been
involved in the circumstances giving rise to the case.
Compensation for unfair termination - compensation of not less than
12 moths salaries, one month’s salary leave, one month’s salary in lieu
of notice, severance pay and clean certificate of service.
EDWIN NTUNDU V. PLAN INTERNATIONAL TANZANIA, HIGH COURT,
LABOUR DIVISION (2014).
Unfair termination – compensation – section 40 of the Employment and
Labour Relations Act – twelve months remuneration.
Once the termination of employment is adjudged unfair, the arbitrator
may award remedies to the affected employees as prescribed by the
law in section 40 of the Employment and Labour Relations Act.
The law provides for an award of not less than twelve months
remuneration upon unfair termination.
MUSSA JAMES MNYETI V. REGISTERED TRUSTEES OF TRADE UNION AND
OTHERS, HIGH COURT, LABOUR DIVISION, DAR ES SALAAM (2017).
Defects in a chamber summons – omission by court registry – right of a member
to challenge a federation or organisation which does not comply with its
Constitution.
Chamber summons lack name of Judge and date – the applicant cannot
be penalized since the omission was occasioned by the Court registry.
Employment and labour relations - re-course to the Court of law against
the Federation or the Registered Organization which acts against the
Constitution - right of a member to challenge the federation and/or
registered organisation in court upon failure to comply with its
Constitution – section 53 of the Employment and Labour Relations Act.
NATIONAL MICROFINANCE BANK V. NEEMA AKEYO, HIGH COURT, LABOUR
DIVISION, ARUSHA (2017).
Absenteeism from work – discrimination in the work place on ground of religion
– insubordination – investigation – disciplinary hearing conducted without
justification – an award of 36 months salaries for unfair termination.
Employee was terminated because she went to worship on Saturday only
during worship time – allegations of absenteeism but no attendance list
was brought to establish that the respondent was not in the work place –
unfair termination.
Definition of discrimination.
Insurbodination – termination letter mentions insubordination but
employer did not prove the offence.
Procedure for termination of employment - failure to conduct
investigation prior to disciplinary hearing – disciplinary hearing
conducted without any justification.
In a literal meaning of Section 40(1)(c) of the Employment and Labour
Relations Act, the arbitrator has powers to grant more than 12 months
salary compensation.
Employee was awarded 36 months compensation since she was
terminated as a result of discrimination on ground of religion.
SAFARI MAKERS LTD V. MOSSES MZIRAY, HIGH COURT, LABOUR DIVISION,
ARUSHA (2017).
Clerical mistake – clerical error –constructive termination – making employment
introlerable -onus to prove constructive termination – imperative questions for
determining constructive termination.
Correction of a clerical mistake or error – arbitrator cited a wrong year of
enactment of a statute in an award – the error is curable and will not
cause the award to be revised by the Labour Court.
Constructive termination - imperative questions for determining
constructive termination.
Constructive termination – the onus to prove constructive termination
rests on the employee to prove that resignation was not voluntary and
that it was not intended to terminate the employment relationship.
Employee resigned because, allegedly, he was insulted by the director –
that does not make the employment intolerable, hence no constructive
termination.
STANLEY NYAKUNGA AND FOUR OTHERS V. MOFED TANZANIA LTD, HIGH
COURT, LABOUR DIVISION, (2017).
Wrong citation of the law section, sub-section and/or paragraphs or non-citation
– enabling provision for revision before the Labour Court – ass and scare crow of
the law.
Non-citation of a subsection or subparagraph of the enabling provision is
tantamount to non-citation
Revision before the Labour Court - non-citation of sub-paragraphs to Rule
24(2) and (3) of the Labour Court Rules is fatal.
wrong citation of the law section, sub-section and/or paragraphs or non-
citation is fatal.
Ass and scare crow of the law.
TANZANIA REVENUE AUTHORITY V. GODFREY KAJETANI DIMOSO, HIGH
COURT, LABOUR DIVISION (2016).
Arbitrator’s powers to grant relief not prayed for – CMA form No. 1, poor work
performance – misconduct – unfair termination – right to work – disclosure of
reason for termination in the termination letter – denial of right to appeal
against decision of the disciplinary hearing.
The arbitrator has powers to grant a prayer which has not been prayed
for in CMA form No. 1, after making a finding of unfair termination
regard being had to Rule 32(1), (2) and (5) of the Labour Institutions
(Mediation and Arbitration Guideline) Rules.
CMA form NO. 1 acts as a guide and cannot be taken as sancrosanct
form.
CMA form No. 1 cannot be compared to a plaint in normal civil cases.
A recommending officer was terminated for poor work performance and
misconduct for the recommendations he made while those
recommendations were subject to approval by the approving officer –
that amounted to unfair termination.
Termination letter does not disclose reason or termination – amounts to
an unfair labour practice.
Right to work.
Denial of right to appeal against decision of the disciplinary hearing -
denial of the employee's right to appeal to the higher authority against
his employment termination pollutes and “chills” the whole process of
termination.
WALLAFRID ANTHONY MGINA V. GRUMETI RESERVES LIMITED, HIGH COURT,
LABOUR DIVISION (2017).
Gross violation of company procurement procedure due to working under
pressure – definition of dishonesty - chairperson of the disciplinary hearing -
senior manager from a different office – compensation of not less than twelve
months.
Gross violation of company procurement procedure leading to financial
loss is a valid reason for termination – employee admitted to have
violated the procedure, so whether or not the company had procurement
procedure and policy is immaterial.
Employee’s excuse that she violated the procurement procedure because
of work pressure is not justifiable.
Definition of dishonesty.
Complaint that the disciplinary hearing was improperly constituted since
the chairperson of the disciplinary hearing, who was coming from a
different office, was a private advocate and was not a senior manager in
his office – the complaint was rejected because it was not backed up by
evidence indicating qualifications and position of the chairperson.
The arbitrator found that termination of employment was unfair but
awarded compensation of 3 months salaries – the labour court held that
the arbitrator was wrong because the law specifically demands that the
compensation should be of not less than 12 months.
WALK WATER TECHNOLOGIES V. RECHO CHARLES, HIGH COURT, LABOUR
DIVISION (2017).
Fair reason for retrenchment – alternatives to retrenchment – fair procedure for
retrenchment – consultation before retrenchment.
Meaning of fair reason for retrenchment.
Failure of the employer to consider alternatives to retrenchment.
Retrenchment – employer failed to prove that retrenchment was properly
and genuinely justified.
Employer violated the fair procedure for retrenchment.
Meaning of consultation prior to retrenchment.
Consultation has to be as early as possible – consultation process must
commence as soon as possible as the employer contemplates a reduction
or retrenchment.
Tanzanians labour laws are heavily borrowed from South Africa.
WILSON CHACHA V. MENEJA MKUU DAWASCO, HIGH COURT, LABOUR
DIVISION (2017).
Right to be heard – audialterampartem – powers of deputy registrar to overrule
decision of deputy registrar – faulting registrar’s decision.
Right to be heard on issues which the court raises suomotu –
audialterampartem – natural justice.
The Deputy Registrar of the Labour Court cannot overrule the decision of
a fellow Deputy Registrar.
The faulting of the Registrar’s decision is the domain of the domain of
the High Court Labour Division.
TANZANIA BUREAU OF STANDARDS V. ANITA KAVEVO MARO, HIGH COURT,
LABOUR DIVISION, 2017.
Exclusive jurisdiction of the Commission for Mediation and Arbitration and the
Labour Court – exhaustion of local remedies in employment and labour disputes
- evaluation and assessment of the employees performance – performance
appraisal – probation of a senior employee – confirmation of a probationary
employee – procedure for termination of a probationary employee – unfair
labour practice – entitlements of a probationary employee – unfair work
performance review – general damages for suffering and illness caused by
unfair labour practice and unfair work performance review.
Tanzanian labour laws are heavily borrowed from South Africa.
Only the CMA and the Labour Court has jurisdiction to determine labour
matters, questions or issues arising from such disputes, like of unfair
labour practices. This right and exclusive jurisdiction cannot be taken
away easily by simple allegations that the employee has not exhausted
local remedies or non-confirmation and related matters.
Requirements for evaluation and assessment of the employees
performance.
Guidelines for handling probationary employees – Rules 10(5), (6), (7), (8),
and (9).
Probationary employee was not informed about employer’s concerns on
her performance until after two years and eight months – employee was
not given an opportunity to respond to those concerns.
Employers have a duty to be fair even to senior managers who are under
probation and able to judge themselves whether they are meeting the
standards set by the employer.
Confirmation of a probationary employee has to be at least two months
towards the end of the probation period.
A probationary employee is not required to submithis/her tangible
achievements for assessment by the employer.
Termination of a probationary employee without due regard to procedure
and guideline amounts to unfair labour practice.
Meaning of unfair labour practice.
Entitlements of a probationary employee.
Employer terminated a probationary employee without inviting the
probationer to make representations – the representations may be made
on behalf of the probationer by the employer.
Employer, top official, suffered stress and illness due to an unfair work
performance review and unfair labour practice regarding probation –
testimonies of two doctors confirmed that – awarded general damages in
the sum of TShs. 100,000,000/-.
TANZANIA UNION OF INDUSTRY AND COMMERCIAL WORKERS V. KILOMBERO
SUGAR COMPANY AND OTHERS, HIGH COURT, LABOUR DIVISION (2017)
Jurisdiction – complaint arose in Morogoro but was filed in Dar essalaam
without leave of Court –the complaint should be filed in Morogoro where it
arose.
TLL PRINTING AND PACKAGING LIMITED V. MELKIORI STANSLAUS, HIGH
COURT, LABOUR DIVISION (2017).
Revision before the labour court - Respondent failed to file written submission
without an excuse – court entered default judgment against respondent.
WORLD VISION TANZANIA V. RACHEL LAIRUMBE & 13 OTHERS, HIGH
COURT LABOUR DIVISION, 2017.
Award issued after expiration of 30 days – using retrenchment as pretext for
termination – discretion – compensation for retrenchment.
An award of the Commission for Mediation and Arbitration issued after
expiry of 30 days contrary to Section 88(9) of the Employment and
Labour Relations Act (ELRA) is not fatal.
Some unscrupulous employers are using retrenchment as pretext for
termination.
Discretion should be exercised judiciously.
Arbitrator found that retrenchment was for valid reasons and awarded
employees compensation of 4 months’ salary – wrong. That award is not
provided for under the relevant labour laws or parties’ agreements.
