By FAUSTINE KAPAMA-Judiciary
ABOUT 129 former
employees of Hodi Hotel Management Co. Ltd have lost their claims of over 1.35bn/-
compensation they were demanding for being retrenched due to Covid-19 outbreak
in 2021.
This followed the decision of
the High Court’s Labour Division at Arusha to dismiss in its entirety their
application for revision they lodged to challenge the award issued by the
Commission for Mediation and Arbitration (CMA).
“I find no merit of this
application and I proceed dismissing it entirely. The CMA's award is confirmed.
As this application arises from a labour dispute, I make no order as to costs.
Ordered accordingly,” Judge Mohamed Gwae ruled.
During hearing of the
application, the counsel for the ex-employees, the applicants, had contended
that there were errors material to the merits of the matter before the
Commission, which had ordered the Hodi Hotel, the respondent, to pay
87,876,142.67/- instead of the claimed 1, 352,098,043/-.
They stated that arbitrator
failed to properly analyze the overall evidence adduced before him in finding
that the retrenchment was both substantive and procedural fair despite the
overwhelming evidence adduced by the applicants' side demonstrating violations
by the respondent.
In disposing of the two
grounds of complaints, the judge ruled that the respondent had valid reason for
retrenchment, that is, global Pandemic Disease (COVID-19) which plainly led to
total or partial international closure of businesses and lockdown of peoples'
movements.
Hence, he said, the
applicants' termination was seen to have pertained with operational
requirements which was the real reason and not a pretext for terminating the
involved employee as was correctly stressed in the case of Moshi University
College of Corporative and Business Studies (MUCCOS).
“As earlier explained, I do
not see any reason to be curtailed by the first ground (of complaint) since it
is clear that there was valid reason for applicants' termination. The same is
thus dismissed,” Judge Gwae ruled.
According to him, considering
the documentary evidence and testimony of some witnesses, he was of the view
that, there was sufficient notice, consultation followed by meetings between
the employer and employees and meaningful consensus was reached by the parties.
“What the respondent
did is nothing but substantive compliance with requirement of law, the required
compliance which does not need to be in every procedural aspect or to be
ascertained in a checklist fashion, it suffices to look at substantive
compliance of the requirement provided by the law,” he said.
The judge was of the firm
view that the applicants were substantively involved in the retrenchment
exercise and given the fact that, there was valid and real reason of doing so.
More so, he said, the applicants were accordingly paid their terminal dues
except the arrears due to admitted miscalculations.
Facts show that the
applicants filed a dispute against the respondent on unfair termination based
on operational requirements, in other words, retrenchment of applicants'
employment.
The applicants who were
employed in different times and places of work and who were rendering services
to the respondent in various positions were retrenched on June 14, 2021.
Main area of the applicants'
complaint was that they were unlawfully retrenched since the respondent did not
comply with the provisions of section 38 of the Employment and Labour Relations
Act (Act).
The applicants' claims were
in six (6) categories namely; twelve months' salary compensation, one-month
salary in lieu of notice, severance pay, annual leave, payment for public
holidays and salary arrears. All claims made a claim sum of 1, 352,098,043/-.
On the other hand, it was the
respondent's assertion that, the applicants were retrenched due to the valid
reason, that is, out-break of pandemic decease, COVID-19 pronounced nationally
in March 2020.
It was contended that the
respondent who deals with hotel industry, providing services, such as
accommodations, conference facilities and beverages was tremendously and
significantly affected by the lockdown that prevailed on that period.
Consequently, the respondent
could not be financially able to pay her employees as used to be prior the
pandemic outbreak since it lacked regular customers. Therefore, drastic drop of
the respondent's income earnings.
It was at that point in time
the respondent was forced to carry out the retrenchment process. The employees
decided to take the matter to the CMA. Through its award procured on November
19, 2021, the CMA dismissed the applicants' prayer for compensation.
Hakuna maoni:
Chapisha Maoni