By Faustine Kapama-Judiciary
THE Court of Appeal has dismissed the appeal lodged
by National Microfinance Bank LTD (NMB), opposing 36 months’ salary compensation
awarded to former Bank’s Teller, Ms Neema Akeyo, whose employment was terminated
for absenteeism having attended religious Saturday prayers.
Justices Stella Mugasha, Barke Sehel and Lucia Kairo
ruled against the NMB Bank, the appellant, after upholding the findings of the
Commission for Mediation and Arbitration (CMA) and that of the High Court,
which decided in favour of Ms Akeyo, the respondent.
They were satisfied that the termination of the respondent
from employment was substantively unfair and, in the circumstances, both the
CMA and the High Court were justified to award 36 month's salary as
compensation.
“In the absence of sound reasons to vary the
decision of the High Court, we find the appeal not merited in its entirety and
it is hereby dismissed,” the justices declared in their judgment delivered
recently at Arusha Court’s Registry.
During hearing of the appeal, the counsel for the
appellant had faulted the High Court for, among others, holding that the
termination was procedurally and substantially unfair.
The justices noted that the High Court Judge found
that the termination was based on invalid reasons which rendered the
termination substantively unfair, the determination of procedural compliance
was inconsequential and could not add any value in the wake of lacking valid
reasons for the termination.
There was another criticism that the Judge erred in
law and fact by holding that the complaint was terminated on ground of
discrimination based on region, which was not framed as an issue neither at the
CMA nor at the High Court and which was not in the jurisdiction of the court to
determine.
The justices began with what was decided by the High
Court and aspects considered, notably, the right of worship as enshrined under
Article 1 of Discrimination (Employment and Occupation) Convention, 1958,
Article 19(1) of Constitution and sections 7(4) (a) of Employment and Labour
Relations Act (ELRA).
Another aspect related to the appellant's act to
allow some of the employees including the Branch Manager to exercise their
freedom of worship and at the same time deter the respondent from enjoying such
rights.
The justices found that the High Court Judge applied
the law on the factual account on how the respondent was treated differently
from other staff in exercising the right of worship during working hours.
“In the circumstances, as correctly found by the Judge
of the High Court, the act of the appellant as an employer contravened the
provisions of section 7 (4) of the ELRA which abhors discrimination at place of
work,” they said.
The justices equally found as wanting the
appellant's complaint that the issue surrounding termination based on
discrimination cropped up at the High Court.
They noted before the CMA that apart from the
respondent denying the charges on absenteeism her response was to the effect
that, on Saturdays she reported at work place and at ten o'clock, she sought
and obtained permission from the manager to attend religious services.
“She as well, testified that the Muslims were given
such permission on Friday's, when asked on the issue of discrimination she
replied in the affirmative that while others, like the Muslims were given
permission to go for prayers, on (her) part going for prayers was considered as
a problem,” the justices noted.
They, thus, agreed with the respondent’s counsel
that, apart from the High Court being seized with jurisdiction to exercise
revision powers, the appellant was not denied the right to be heard on the
issue of termination based on discrimination and the appellant's complaint was
untrue and afterthought.
The respondent was employed by the appellant as a Bank
teller at its Branch in Karatu. The employment commenced on October 27, 2010 up
to June 5, 2015 when the appellant terminated the respondent on accusations of
absenteeism and insubordination.
This made the respondent to refer the matter to the CMA
claiming that the termination was procedurally and substantively unfair and
prayed to be paid compensation for breach of employment agreement.
The appellant denied the allegations, contending
that termination was for valid reasons and requisite procedures were complied
with.
It was the appellant's contention that, the
termination was prompted by the respondent's failure to attend at work on
Saturdays which was in contravention with the local employment agreement and
the Human Resource Policy and NMB PLC Code of conduct.
After a full trial, the arbitrator was satisfied
that the respondent was unfairly terminated both substantively and procedurally
in the wake of absence of proof from the appellant that the respondent was not
attending work on Saturdays.
Further to that, it was also found that after the
respondent was found guilty, she was not given opportunity to give mitigating
factors. As a result of the said unfair termination, the CMA awarded the
respondent 36 month's salary as compensation.
Undaunted, the appellant lodged an application to
the High Court seeking to have the CMA decision revised. However, the
application was dismissed and instead, the CMA's award was confirmed on ground
that the termination was substantively and procedurally unfair.
Hakuna maoni:
Chapisha Maoni