By FAUSTINE KAPAMA-Judiciary
THE High Court’s Labour
Division in Dar es Salaam has ordered the Southern Sun Hotel Limited to pay her
44 employees the 80 percent of their salaries, which were cut during the Covid 19 pandemic, saying such deduction was unjustifiable.
Judge Augustine Rwizile
gave such orders after allowing an application for revision lodged by the
employees, the applicants, to oppose the Award issued by the Commission for
Mediation and Arbitration (CMA) in favour of the Hotel Company, the respondent.
He noted that the
deduction from the applicants’ salary started from April to November, 2021
which is eight months in total and that all applicants had salary cuts for that
period without justification.
“The same should be paid
their 80 percent as from April, 2021 to November, 2021. This application
therefore has merit. The CMA award is hereby quashed and set aside. Since this
is the labour matter, I order no costs to either party,” the judge said in a
ruling delivered recently.
He revisited the evidence
tendered by the parties before the CMA and was satisfied that there was a
contract establishing employment relationship between the two parties. It was
the position of the judge that the applicants, therefore, were employees of the
respondent.
The judge further noted
that there was no dispute that 80 percent of the applicants' salary was cut due
to COVID-19, but there was no evidence that the salary cut was a product of
common understanding.
“In actual fact, there
was no consultation and to the applicants the decision came by surprise. Both
parties are not in dispute of this fact. Basing on the evidence, the respondent
alone decided to deduct the salaries of the applicants by 80 percent,” he said.
The judge went on
observing from the evidence tendered that the respondent decided by herself on
the amount to be deducted from the applicant's salaries without any
consultation and that the applicants were only informed in the meeting of the
decision taken.
“I think, employees were
entitled to be heard on the matter before the decision was forced on to them.
It is a trite law that parties are bound by their agreement,” he said.
The judge meant that in
any situation, be it financial constraints, COVID-19 or both, the respondent
had to consult the applicants, discuss the situation and then come to new terms
precipitated by the current situation. In doing so, he said, the laws and
procedure would have been complied with.
During hearing of the
labour dispute, one witness for the respondent had testified that the contract
with the applicant had a reduction clause that when production falls, some
decision should be made by the respondent.
In his ruling, however,
the judge pointed out that given the circumstances, it was the duty of the
respondent to prove that such terms existed as the law provides.
“Above all, there was no
contract tendered to show the terms. From the foregoing, there is no
justification in my view, to have the applicants' salary cut by 80 percent,” he
said.
The applicants were
employed by the respondent and were paid on monthly basis. Contrary to their
employment contract, on April 27, 2020, following Covid-19 pandemic, the
applicants received a salary cut of 80 percent each from their basic salary and
were ordered to work from home.
Having not being happy
with the salary cuts without prior information, the applicants filed a labour
dispute against the respondent at CMA. The award was in favour of the
respondent. After they were aggrieved with such a decision, the applicants
knocked doors of the High Court to oppose the Award.
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