By FAUSTINE KAPAMA-Judiciary
THE High Court, Morogoro District Registry, has
ordered the Kilombero Sugar Co. Ltd to compensate 29 former employees 12
months' salary each for termination of their employment services during implementation
of a project for restructuring and improving company operation system.
Judge Paul Ngwembe ruled in favour of the employees,
the applicants, after allowing their application for revision they lodged to
challenge the findings of the Commission for Mediation and Arbitration (CMA),
which had awarded them tiny compensation.
“Under section 91 of the Employment and Labour
Relations Act, the employees are awarded compensation of 12 months instead of
five months' salaries granted by CMA including other benefits if not yet paid,”
the judge ruled.
Before the CMA, the applicants had demanded for
compensation of 20 months' salary for everyone, arrears, repatriation costs,
subsistence allowance and damages, totaling at 253,025,015/01.
The finding of CMA was to the effect that procedurally
partially were followed, as notice of intention to retrench employees was not
sufficiently issued to the employees and consultative meetings were not proved
to have been convened.
Thus, the CMA proceeded to award compensation of five
months' salary to every employee, fare, arrears and severance pay forming a
total of 95,651,133/-. Both parties were aggrieved by the award of CMA
delivered and decided to take the matter to the High Court for revision.
Before the High Court, it was questioned whether the
employer had sound reason to retrench the employees and whether followed the
laid down legal procedures. It was also questioned the propriety of the
compensation awarded by CMA.
In his judgment delivered recently, the judge pointed
out that labour disputes are governed by a good number of legal principles,
among them are in sections 37, 39 and 40 of Employment and Labour Relations
Act.
He noted that statutorily it is the duty of the
employer to prove that termination of an employee was fair and fair termination
emprise justifiable grounds for termination and followed the prescribed
procedures.
“Failure to satisfy both substantive fairness and
procedural fairness, the termination will be unfair and that duty is performed
by the employer,” the judge further said.
According to him, when the employer unfairly
terminates the employee, the law is strict that the employer is bound to
compensate the employee in terms of salaries, among other remedies. He said
that the CMA may award twelve (12) months' salary for compensation, less or
more.
On the issue of whether the procedure for retrenchment
were followed, the judge observed that employees were not informed clearly the
purpose of the project, named as name of Fit for Future Project, in relation to
the fate of their employment.
Furthermore, he said, it was on record that up to the
date when employees attended the meeting purported to be a consultative
meeting, the employer pressed much emphasis on the project not on retrenchment.
The judge was, thus, satisfied that it was not clearly
presented that what was going to happen in the employer’s company was
retrenchment.
“I have no slight doubt in my mind to conclude that
consultation was not properly made in respect of retrenchment, thus hard for
this court to accept the submission by the employer's counsel who forcefully
argue that the employer followed the procedure in retrenchment of the
employees,” he said.
The judge went on to say, “I am confident to declare,
just as the arbitrator did, although retrenchment was substantively fair for
having a valid reason to retrench employees, yet procedurally was quite unfair.
As such the employees' complaint is merited.”
As regard to the compensation given by the CMA, the
judge also observed that the criteria and method applied by the employer for
selection of the retrenched persons were unknown and the time of service on
some employees, among other relevant factors, were not considered.
He pointed out that even the allegation that some
personnel employed after retrenchment were of the same qualification hold
merits and that the defiance of legal procedure in this case was nothing of
inadvertence, but a calculated device.
Under the circumstance, the judge said, though the CMA
had the authority to award less than 12 months' salary compensation, it ought
to have awarded at least twelve months salary as compensation.
“To award compensation less than 12 months’ salary
must be accompanied with sound reasons. For example, where retrenchment or
termination was in substance due to the employee's misconduct. Otherwise,
compensation should be proportionate to the circumstance,” he said.
The applicants were employed permanently by Kilombero
Sugar Co. LTD on different dates, capacities and in sections, including at the
Management, Supervision, Service Hand, Weeder or Cane Cutter and Watchmen,
respectively. They all served on their respective job posts up to march 31,
2020.
What brought their employment to the end is the
project, the employer devised by the name of Fit for Future Project, aimed at
restructuring and improving the operation system of the company.
In its manifestation necessitated into restructuring
of some job positions. Some of the employees were unsuccessful even after
applying for the new job positions, hence retrenched.
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