IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM

REVISION APPLICATION NO. 4065 OF 2024

CASE REFERENCE N0.202402281000004065

BETWEEN

EFC TANZANIA MICROFINANCE BANK LT D .................. ............. APPLICANT

VERSUS

FATUMA MWAIMU............................................................... RESPONDENT

JUDGEMENT

Date of last Order: 30/ 04/2024

Date of Judgement: 03/ 05/2024

MLYAMBINA, J.

The dispute at hand emanates from the decision of the Commission for

Mediation and Arbitration (herein CMA) in Labour Dispute No.

CMA/DSM/KIN/656/2022/19/2023. In the mentioned dispute, the Respondent

referred the matter to the CMA alleging unfair labour practices where he

prayed for 12 months salaries as compensation for the alleged unfair

termination and one month salary in lieu of notice. After considering the

evidence of the parties, the CMA found the Respondent's claim had merit.

Following such findings, the CMA awarded the Respondent six (6) months
salaries as compensation. Dissatisfied by the CMA's decision, the Applicant

filed the present application calling for determination of the following issues:

/' Whether it was proper for the honorable Arbitrator to find that there
was irregularity for terminating the Respondent for unfair labour
practice and;
ii. Whether it was proper for the honorable arbitrator to order payment
o f TZS 24,447,5701= being six (6) month's salary as compensation for
unfair labour practice,
m. Whether she evaluated the evidence adduced by the Applicant in order
to reach to affair justice

The matter proceeded by way of written submissions. Before the Court,

the Applicant was represented by Cleophace James, learned Counsel. On the

other hand, Mr. Adam Mwambene, learned Counsel appeared for the

Respondent.

Arguing in support of the application, Mr. James jointly submitted on

the first and third grounds that there was a valid reason and the

procedures were proper for terminating the Respondent under probation.

He stated that as per exhibit D-4 which was also admitted to be signed by

the Respondent, she was underperforming. That, the Respondent did not

submit the list of auction dates to be sold in June. Furthermore, as per

exhibit D-2, the Respondent admitted to have participated during training

to improve her performance. He added that the Respondent's performance

was evaluated by the Managing Director and she was supported by the

Managing Director in order to improve. Therefore, the Applicant complied

with Rule 10(6), (7) and (8) o f Employment and Labour Relations (Code o f

Good Practice) GN. No 42 o f 2007 (herein GN. No 42 o f 2007) which

provide the procedures of terminating probationary employee. In support of

his submission, He cited the case of Water Mission Tanzania v.

Deusdedith Mkunguru, Labour Revision No 300 of 2021, High Court of

Tanzania (unreported), where the Court stated the purpose of probation

period.

Mr. James continued to submit that the Respondent was under

performing and there was a monitoring of performance with appraisals by

the Managing Director. That several warnings were officially communicated

to the Respondent which she admitted to have received the same and they

were admitted as exhibit D3 and D4. Mr. James contended that it was wrong

for the Arbitrator to hold that there was no evidence proving that the

employee was given an opportunity to improve during probation period. The

Arbitrator disregarded Exhibit D-4 in which she was given time to improve

and if she needed any support from the Managing Director she should have

consulted him. It was Mr. James's strong position that poor performance is

one of the reasons for terminating an employee as it was held in the case of
Josiah Zephania Warioba v. Bouygues Energies & Services, Labour

Revision No 16 Of 2022 (unreported).

In response, Mr. Mwambene admitted that the Respondent was on

probation period and that she was under performance (exhibit D-4). He

stated that there were serious irregularities associated with the Respondent's

termination. That, it was unfair labour practice to monitor an employee

underground without her knowledge and participation. He added that

evaluation and monitoring of an employee performance ought to be open

and participatory. To strengthens his position, he cited the case of Agness

B. Buhere v. UTT Microfinance Pic, Labour Revision No. 459 of 2015

(unreported) where it was held that:

The code of good practice stresses that before terminating

or resorting to termination of the probationary or extending
the probationary period, the employer must invite the
probationer to make representation and consider them. Such
representation may also be made on behalf of the
probationer by a trade union representative.

It was Mr. Mwambene's further submission that the Respondent was

not accorded her right to be heard which is the fundamental right enriched

under Article 13(6) o f the Constitution o f the United Republic o f Tanzania,

1977 (as amended from time to time). He also supported his submission
with the case of Mbeya - Rukwa Auto parts & Transport Ltd v.

Jestina George Mwakyoma, Civil Appeal No. 45 of 2000 [2003] TLR

251. Mr. Mwambene maintained that the procedures for terminating the

Respondent as they are provided under Rule 10 o f GN. No. 42 o f 2007

were violated in this case.

In the instant matter, both parties are in agreement that the

Respondent was employed by the Applicant as a Legal Manager effective

from 13th February 2017 as it is reflected in the employment contract (exhibit

Dl). The contract had a condition of probation period of six months as it is

provided under clause 2.5 of exhibit D l which I hereunder quote for easy of

reference:

The Employee shall serve a probationary period of six months.

During the probation period the employee's performance will be
closely monitored and evaluated. Further, during this period the
Employer will carry out a security and a security investigation on
the Employee. If the Employee successfully completes the
probation period, and is satisfactory cleared by the said
investigation, the Employee shall be notified in writing.

The record shows that the Respondent's employment contract ended

on 26th July 2017 when she was served with a non- confirmation letter

(exhibit D5). It was one month before the end of her probation period, as
rightly submitted by Mr. James. Thus, the Respondent was a probationer

employee and her termination procedures had to be in accordance with Rule

10 (supra). The relevance of adhering to the mentioned provision was

correctly highlighted in the case of Hope Kivule Secondary School v.

Matiku Alfred & 2 Others, Revision Application No. 124 of 2021, High

Court Labour Division, Dar es Salaam, where it was held that:

Applicant seems to have a notion that one an employee is on

probation or had just completed probation period can be
terminated as the employer deems fit and without procedure.
This notion is wrong because even Rule 10 (7) and (8) o f the
Employment and Labour Relations (Code o f Good Practice) GN.
No. 42 o f 2007 is clear on the procedure to be followed on
termination of an employee who is on probation.

I subscribe to the above position. The procedures are there to limit the

employer from terminating the probationary employee on his own whims. As

stated above, the procedures for terminating a probationary employee are

provided from Rule 10 (6) (7) (8) o f GN 42/2007 which is hereunder quoted

for easy of reference:

Rule 10 (6) During the period of probation the employer shall-

(a) Monitor and evaluate the employee's performance and
suitability from time to time;
 (b) Meet with the employee with regular interval in order to
discuss the employee's evaluation and to provide
guidance if necessary. The guidance may entail
instruction, training and counselling to the employee
during probation.

(7) where at any stage during the probation period the

employer is concerned that the employee is not performing to
standard or may not be suitable for the position the employer
shall notify the employee of that concern and give the
employee an opportunity to respond or an opportunity to
improve.

(8) subject to sub-rule (1) the employment of a probationary

employee shall be terminated if-

(a) the probationary employee has been informed of the

employer's concerns;

(b) the employee has been given an opportunity to

respond those concerns;

(c) the employee has been given a reasonable time to

improve performance or correct behaviour and has fails to
do so.

Mr. James submitted that the Respondent's performance was

evaluated by the Managing Director. On the other hand, Mr. Mwambene

strongly disputed the said evaluation on the ground that the evaluation was

conducted without informing the Respondent. It is my view that the

Respondent's contention is answered by clause 2.5 of exhibit D1 quoted

above. From the commencement of the contract the Respondent was fully

informed that during the probation period her performance will be closely
monitored and evaluated. She was also informed that if she successfully

completes the probation period, and it is satisfactory cleared by the

investigation, she would be notified in writing. Thus, the allegation that she

was evaluated without her knowledge lacks merit. Moreover, it is the law's

position that during the probation period the employer is required to make

an informed assessment of whether the employee is competent to do the

job and suitable for the employment, this is in terms of Rule 10(3) o f GN.

No. 42 o f2007.

Although the Applicant complied with some of the quoted provision, he

also violated some of them as correctly contested by the Respondent. The

Applicant did not afford the Respondent the right to be heard as it is required

by the quoted provision. The non confirmation letter (exhibit D5) clearly

indicated that the Applicant was not satisfied with the Respondent's

performance. On that basis, the Applicant was supposed to inform the

Respondent of her performance and afford her the right to be heard

regarding of her performance. I don't disregard the fact that the Applicant

warned the Respondent of her performance through a warning letter date

07th June 2017 (exhibit D4). It is my view that before reaching the decision

to terminate the Respondent, she should have been afforded the right to

defend herself. The decision was reached suo motto by the Applicant himself,
hence, infringing the right to be heard as it is provided under Article 13(6)

supra. Therefore, there was unfair labour practices in this case as rightly

found by the Arbitrator.

With respect to the second ground as to whether it was proper for the

honorable arbitrator to order payment of TZS 24,447,5701= being six (6)

month's salary as compensation for unfair labour practice, the Applicant's

counsel submitted that there was no dispute that the Respondent worked

for five (5) months from 13th February 2017 to 26th July 2017. She

remained with one (1) month to complete six (6) months of probation.

Therefore, it was wrong for the Arbitrator to award her TZS 24,447,570/=

being six (6) month's salary while she under performed and she was still on

probation. He was of the view that the Arbitrator was required to apply the

principle of foreseeability of remaining period as it was held in the case of

Adnani Ally Sipuru & Others v. Resort World t/a Palm Beach

Casino, Revision No. 341 of 2022, where it was held that:

That, since the Respondent breached employment contracts

under probation period which was to expire in one month time,

therefore I award the Applicant a compensation of one month
each.
 To sum up, the counsel urged the Court to grant the application and set

aside the CMA's award.

In response, by referring to the case of Agness Buhere (supra), Mr.

Mwambene urged the Court to reconsider the relief awarded to the

Respondent and award her the minimum compensation of twelve (12)

months.

In deciding this issue, the Court will be guided by the Court of Appeal

decision in the case of David Nzaligo v. National Microfinance Bank

PLC, Civil Appeal No. 61 of 2016 where it was stated that:

At the time the appellant was still in probation, we are of the

view that, a probationer in such a situation, cannot enjoy the
right and benefit enjoyed by a confirmed employee. Since
the Respondent was still a probationer at the time he
resigned, and he cannot benefit from remedies under Part
III E o f the ELRA.

The award claimed by the Respondent before this Court is awarded in

cases of unfair termination to confirmed employees. As decided in the first

ground, the Respondent was a probationary employee, hence, she cannot

enjoy the rights of a confirmed employee, as it is the position in the above

cited decision. The labour laws are silent on the award entitled to

probationary employees but it is my position that where there is any breach

of provisions relating to termination of probationary employee, the affected

employee deserves compensation. In the matter at hand, there was

infringement of the right to be heard as decided herein above. Therefore,

since the Respondent was terminated before one month of the completion of

probation period, it is my view that the award of two month's salaries as

compensation will serve justice to the case at hand. One month salary will

serve as a notice pay of non-confirmation whistly the other one month is for

the remaining period of the probation.

In the result, I find the present application to have partly succeeded to

the extent explained hereinabove. The Award of six months is hereby

reduced to two months. Hence, the Applicant is hereby ordered to pay the

Respondent a total of TZS 8,149,180/= as compensation for unfair labour

practice.

It is so ordered.

Y.J. MLYAMBINA
JUDGE
03/05/2024

Judgement pronounced and dated 3rd May, 2024 in the presence

of Counsel Cleophace James for the Applicant and Augustino Mahela
Masanja for the Respondent. Right of Appeal explained.

li