IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
(LABOUR DIVISION)
IN THE DISTRICT REGISTRY OF KIGOMA
AT KIGOMA
LABOUR REVISION APPLICATION NO. 2 OF 2020
(Arising from Labour Dispute No. CMA/KIG/130/2019 at the Commission
for Mediation and Arbitration (CMA) at Kigoma).
K.K. SECURITY.............................................................. APPLICANT
VERSUS
RAJABU LUAMBANO................................................. RESPONDENT
JUDGMENT
Dated: 3/8/2020 & 3/8/2020
Before: Hon. A. Matuma, J
The Respondent Rajabu Luambano was an Employee of the Applicant
as a Security Guard and was appointed supervisor in his site of work at
RSC Nyarugusu.
He was accused to default his duties as a supervisor by allowing absence
of other Security Guards on their duties without the knowledge of the
Employer which brought about complaints from her client herein above
named RSC Nyarugusu.
The Employer/Applicant at first took disciplinary actions against the
Respondent by issuing him a Final Written Warning after a due disciplinary
hearing.
Then the Applicant's client RSC Nyarugusu denied access of the
respondent to the site of service and therefore the Applicant wrote to the
respondent informing him that; for he has been denied access by the
i
client the only option available was to change his working station. Part of
that letter exhibit R7 reads;
"You can recall that, after the whole disciplinary process
following the allegations charged against you, finally you
were issued with a final Written Warning and ordered to
return to your working station.
Together with the Final Written Warning issued to you,
please be informed of the following;
1. Unfortunately, your access has been refused by client
RSC Nyarugusu.
2. Following to that effects, the only available alternative
to accommodate you is to change your working station
and work in Mwanza. Therefore, you are required to
report to your site coordinator in order to get
repatriation cost ready for shifting to Mwanza".
It seems, the problem arose from this point as the respondent refused
to acknowledge service of the letter and absented himself from duty
which necessitate another Disciplinary meeting to be convened against
him.
According to the Applicant's evidence, the respondent was issued with
a disciplinary hearing notice but he refused it which necessitated the
Disciplinary committee to proceed hearing the accusation exparte and
ended by terminating the service of the respondent hence this dispute
at the Commission for Mediation and Arbitration for Kigoma.
2
After a full trial, the honourable Arbitrator found that the grounds upon
which termination was based were sound and justifiable but that the
due procedures for termination was not adhered;
"Hata hivyo kwa kukataa kusaini barua ya uhamisho, mlalamikaji
alitenda kosa.
...hivyo mlalamikiwa aiikuwa na sababu ya msingi ya
kumwachisha kazi mlalamikaji".
As I have earlier on stated herein above the Arbitrator found that
despite of good and justifiable reason for termination of service the
due process for termination was not followed. The complained
breached due process was that the Respondent was not heard in the
Disciplinary hearing which terminated him. The arbitrator was not
satisfied that the notice of hearing was dully served to the respondent
before the Disciplinary hearing could proceed;
"Kwa mlalamikiwa kushindwa kuthibitisha utumwaji wa had ya
mashtaka na mwaliko wa kuhudhuria kikao cha nidhamu,
ninaona kuwa mlalamikaji aiiachishwa kazi biia kupewa nafasi ya
kusikilizwa".
The honourable arbitrator then awarded the respondent.
i. Likizo Tshs 300,000/=
ii. Gharama za usafiri
a) Basi kutoka Kigoma kwenda Mwanza Tshs 41,800/=
b) Mizigo Tani 3 Tshs 2,298,000/=
Hi. Fedha za kujikimu miezi 7 Tshs 2,100,000/=
iv. Fidia miezi 6 Tshs 1,800,000/=
The total award was thus Tshs 6,498,000/^<
3
The Applicant being dissatisfied with that award against her preferred this
application for revision under four grounds but at the hearing of this
application only three of them were argued while the other one
withdrawn.
The grounds of complaint are;
a) That the arbitrator erred to rule out that termination procedures
were not followed while the available evidence is to the contrary.
b) That the Arbitrator improperly evaluated the evidence on record
thereby reaching to a wrong conclusion.
c) That the Arbitrator wrongly based the calculations of the reliefs on
assumptions contrary to the law.
At the hearing of this Application Mr. Salehe Nassoro learned advocate
represented the Applicant whose officer Mr. Dawson Batakangwa was also
present.
Mr. Joseph Mathias learned advocate entered appearance holding brief of
Advocate Michael Mwangati for the Respondent. Even though, the
respondent despite of having been effected service through his advocate
Mr. Michael Mwangati of AMC Attorneys since way back on 20/2/2020
defaulted to file a Notice of opposition, a counter affidavit or both within
fifteen days after the service as mandated by rule 24 (4) (a) of the Labour
Court Rules, G.N 106 of 2007. I therefore, ordered an exparte hearing of
this application. With that order, Mr. Joseph Mathias learned advocate
sought and dully granted leave to quit leaving the hearing behind him.
Mr. Salehe Nassoro learned advocate started to address the first ground
of complaint having adopted the applicant's affidavit in support of the
application.
4
He argued that, it was wrong for the arbitrator to rule out that the due
procedures for a lawful termination was not followed while the evidence
or record is clear that they were fully complied with.
He further argued that the respondent was not heard in the Disciplinary
proceedings because he deliberately refused services of the notice of
hearing and there was sufficient evidence to that effect.
He pointed the evidence to be the affidavit of one Nakumbuka Babaza an
officer of the Applicant who witnessed the refusal of the respondent to
receive the notice of hearing. The said witness along with his affidavit
gave evidence during trial at CMA.
The learned advocate ended this first ground of complaint by arguing that
under the circumstances, the Applicant was legally justified to proceed
with the Disciplinary hearing exparte as the respondent waived his rights
to be heard.
I am of the settled view that with the available evidence on record, this
Applicant's ground of complaint has merit.
It is in evidence that on 16th May, 2019, the Applicant issued a notice to
the Respondent of invitation for a Disciplinary hearing exhibit R.5 but the
same is endorsed that he refused to sign in the presence of three
witnesses, Nakumbuka Babaza, Thabit Ulimwengu, and Joseph
Mzungu.
DW2, Nakumbuka Babaza testified to that effect. There was no good
reason for disbelieving this witness and discrediting the evidence available
to the effect that the respondent deliberately denied service particularly
when it is on record that the Respondent hirnself admitted to have
5
developed a habit of denying service from the Applicant due to the advice
he had obtained from his advocate.
"Baada ya kuona barua imeandikwa hivyo, mimi niliiomba kusudi
nimpeiekee mwanasheria kwa sababu mwanasheria
aliniambia nisisaini vitu nisivyovifahamu hasa kwa kuwa
tulishaingia kwenye mzozo".
It is further in evidence of the Respondent himself that they denied him
that invitation for his refusal to sign;
"Baada ya hapo, aiivyoninyima akanambia kama hutaki acha".
With such evidence, it is obvious the respondent refused service on
irrational advice of his advocate whom he did not disclose the name. In
the circumstances and as rightly submitted by Mr. Salehe Nassoro learned
advocate, the Applicant was legally allowed to proceed with the
Disciplinary hearing in the absence of the respondent as provided for
under rule 13 (6) of the Employment and Labour Relations (Code of Good
Practice) G.N. 42 of 2007 that;
"Where an employee unreasonable refuses to attend the
hearing, the employer may proceed with the hearing in the
absence of the employee".
Refusal to accept service is as good as refusal to attend the hearing. It
was wrong therefore, for the arbitrator to rule out that there was no
evidence of service while there is, but it was the respondent himself who
denied service on irrational, unethical, and misleading advice of the so
called "his advocate", that he should refrain from acknowledging service
from his employer because they are in dispute.
6
The respondent should have acknowledged service and forward the same
to his advocate for further advice and not to deny the service.
The respondent had even earlier on refused to sign the transfer letter and
the arbitrator had observed that such was wrong;
"... kwa kukataa kusainibarua ya uhamisho mlalamikajialitenda
kosa"
Since the Arbitrator's award based on the alleged fact that the respondent
was not served a notice of hearing to conclude that the termination was
unlawful for breach of the right to be heard, and since I have found it to
the contrary that the respondent deliberately denied service, I conclude
the first ground that the due procedures for the lawful termination were
dully complied with by the Applicant and the Respondent's termination
was lawful and legally justified.
Before I proceed with the other ground, let me say something here. I
discourage advocates to engage themselves into Labour disputes in
disguise. That won't help their clients but lit fire to the burning dispute
between the employer and the employee.
In this case no doubt, the respondent's advocate was part to the dispute
between the parties in disguise.
He wrongly advised his/her client to deny service of documents from his
employer as by doing so he/she was not helping but destroying whatever
good relation which had remained between the parties. It is my firm view
that; such is not the role of a determined advocate. The advocate should
be party to the resolution of disputes and not a party to its scorching. Let
me leave it as such.
7
The two remaining grounds were argued together. The learned advocate
for the Applicant submitted that it was wrong to base the calculations at
Tshs 300,000/= while the respondent's salary was Tshs 167,781/ =
per month.
The learned advocate further argued that even during trial that amount
was not claimed and therefore, the arbitrator acted on assumptions which
led to a wrong conclusion.
I agree with the applicant. I have not seen anywhere on record on how
the learned arbitrator got this amount Tshs 300,000/=. The arbitrator
did not even say anything as to why the calculation should have not been
made basing on the contractual salary of Tshs 167,781/=. I refrain
myself to make my personal assumption that the arbitrator might have
been referring the said amount of Tshs. 300,000/= as the minimum wage.
This is because, if that would have been the case, then he should have
explained why didn't he abide by the Labour Institutions Wage Order,
2013, GN. No. 196 of 2013 which provides for the Minimum Wage in
respect of Private Security Services to the tune of Tshs. 150,000/= for
International and Potential Companies or Tshs. 100,000/= for small
companies. In the circumstances and without assuming what was that
Tshs 300,000/= for, I hereby set aside all the awards made out of the
calculations basing on that amount of Tshs 300,000/=. In lieu thereof, I
replace the due calculations for the terminal benefits to base on the
contractual salary of Tshs 167,781/= which is an amount over and
above the minimum wage for Security Service Companies.
I further set aside all the reliefs awarded to the respondent since there is
no any explanation in the arbitration award asjxnhow they were arrived
at. k
8
In lieu thereof, I replace with an order that the Applicant should provide
the respondent with only the terminal benefits which are legally available
such as certificate of service subject to the respondent having made
clearance, repatriation to his recruitment station as per available options
under section 43 of the Employment and Labour Relations Act No. 6 of
2004.
Also, since the Applicant in her Termination letter acknowledged an
accrued leave for 42 days to the Respondent, I order such payments.
Having said all these it is hereby ordered that this application is allowed
to the extent herein above explained and the Arbitrator's Award vide
'MA/KIG/130/2019 is hereby set aside.
8/3/2020
