By FAUSTINE KAPAMA-Judiciary
THE St. Joseph Kolping Secondary School is to pay
their former School Headmistress Alvera Kashushura 12 months’ monthly salary
for unlawful terminations of employment services for allegedly want of
cooperation with her fellow teachers and members of the stuff.
This followed a decision of the Court of Appeal delivered at Bukoba recently to
dismiss the appeal lodged by the secondary school, the appellant, to oppose
findings of the High Court’s Labour Division, which upheld the award of the
Commission for Mediation and Arbitration (CMA) on such labour dispute.
“Labour Court Judge was right in holding that
termination of respondent's employment contract could not be fair without being
based on fair reasons and procedure set out under section 37 of the ELRA
(Employment Labour Relations Act),” Justices Augustine Mwarija, Barke Sehel and
Issa Maige ruled.
They pointed out that termination of service is said
to be fair according to section 37(2) if it is based on fair and valid reasons
and carried out in observance of fair procedures stipulated in the provisions
of the ELRA.
The justices pointed out that the fairness
requirement under the ELRA emanates from the provisions of Termination of
Employment Convention 158 of 1982, which establishes the core elements of the
employee's rights as to include requirement for valid reason for any
termination.
According to
them, the Convention recognizes three valid reasons as misconduct, incapacity
and operational requirements which have been duly incorporated in section 37(2)
(b) (i) and (ii) of the ELRA.
During hearing of the appeal, the counsel for the
appellant had submitted to justify the termination under clause 6.2 (b) of the
contract which provides for termination of contract by giving three months'
notice or cash in lieu thereof.
In his submission, the lawyer said that such kind of
termination is justified under rule 8 (2) of the Code of Good Practice without
necessarily observing the requirements under section 37 of the ELRA.
Deciding on such submissions, the justices pointed
out that they were quite aware that, under section 36 of the ELRA, termination
of contract of service includes a lawful termination under common law.
However, they said, in understanding broadness of
concept of termination of contract of service under common law, rule 3 (2) of
Code of Good Practice defines termination to mean; termination of contract by
agreement, automatic termination, termination by employee and determination by
employee.
“Neither of the circumstances refers to termination
at the instance of the employer as it is in this case. In our opinion, the
application of the rules as to termination of contract under common law is
subject to the provisions of the ELRA and its regulations, including section 37
of the ELRA,” the justices said.
They could not agree with the counsel that, under
our laws a fixed term contract of service could be prematurely terminated
without assigning reasons because the conditions under section 37 of the ELRA
are mandatory and therefore implicit in all employment contracts.
“In addition, creation of a specific duration of
contract gives the employee legitimate expectation that if everything remains
constant, he or she will be in the service throughout the contractual period.
The expectation is defeated, if the same can be terminated at any time without
reason,” the justices said.
Alvera had since May 4, 2015 been in the service of
the appellant as the school head mistress. The term of the contract was three
years renewable. On October 21, 2015 the respondent received a letter from the
appellant accusing her for "unworthy reception of the school owner when he
visited the school".
She apologised in writing. Two months later, the
appellant terminated her service for want of cooperation with her fellow
teachers and members of the stuff also using unworthy language and bullying
them. Alvera challenged the termination to the CMA at Bukoba for being unfair.
The CMA found the termination unfair both
substantially and procedurally. It therefore, awarded her the amount equal to
the monthly salary of the remaining contractual period of 12 months as cash in
lieu of reinstatement and other terminal benefits.
Aggrieved, the appellant preferred a revision to the
Labour Court. The Labour Court dismissed the appeal and upheld the decision of
the CMA. It was at that point in time when the appellant decided to knock the
doors of the Court of Appeal, the highest temple of justice in Tanzania.
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