By FAUSTINE KAPAMA
The Court of Appeal has ordered the
National Museums of Tanzania to pay compensation of 18 months and other unpaid
benefits to their former Curator History Grade II, Magreth Mapunda, for illegal
termination of her employment services.
Justices Stella
Mugasha, Ignas Kitusi and Sam Rumanyika ruled in favour of Magreth, the
appellant, after allowing her appeal she lodged to oppose the decision of the
High Court, which has reversed the findings of the Commission for Mediation and
Arbitration (CMA) on the matter.
“We are
satisfied that the termination was both substantively and procedurally unfair,
which attracts a heavier penalty as opposed to procedural unfairness. On
account of procedural and substantive unfairness, it is deserving that the
appellant be paid compensation,” they ruled.
Referring to the
provisions of section 37 of the Employment and Labour Relations Act, the
justices pointed out that the termination of an employee from employment will
be rendered invalid if the employer fails to substantiate the same and if the
requisite procedures were not followed.
They revisited
the letter allegedly contained the charges and noted the appellant was required
to avail explanation as why she did not hand over the office keys while being
aware that she was proceeding on leave the reason for accessing the office
while she was on vacation.
The justices observed that there was
nothing mentioned about the disciplinary offence alleged to have been committed
and the contravened provision.
In this regard,
they decline the argument by the employer that absence of charge was immaterial
considering that the right to be informed on charges is among tenets of a fair
trial constituting a fundamental and basic right under article 13 of the
Constitution of the United Republic of Tanzania.
“It is glaring
that what is contained in the termination letter and the extract of minutes of
the leadership committee on the reasons of termination, is not in the purported
charge in which the appellant was initially notified about having proceeded on
vacation with the office keys,” the justices said.
They were of the
firm position that what was contained in the purported charge, the appellant
was not accorded a right to be heard on the nature of accusations as contained
in the extract of the minutes of the leadership committee and the termination
letter.
In the
circumstances, the justices agreed with counsel for the appellant that his
client was condemned without being accorded a right to be heard which is a
violation of the fundamental and basic right as enshrined under article 13 of
the Constitution.
“Furthermore,
without prejudice, the employer did not substantiate the allegation on the
office being inaccessible on account of the appellant having left with the
office keys,” they said.
The justices
were fortified in that regard having considered the uncontested appellant's
account that the two other keys were held by the Acting Director General and
the Head of Department which tells that the office was indeed accessible.
Thus, they said,
it could not be safely vouched that the historical collections in the office
were destroyed and there was no tangible proof in that regard.
“In a nutshell,
in terms of section 110 (1) of the Evidence Act, the (employer) did not
discharge the required burden to establish that the appellant had committed a
disciplinary offence,” the justices ruled.
The appellant
was employed by the National Museum of Tanzania as a Curator History Grade II
on September 27, 2005 until her termination on April 30, 2012. She was
terminated on accusations of committing several disciplinary offences.
This prompted
the appellant to refer the matter to the CMA claiming that the termination was
procedurally and substantively unfair and prayed to be paid compensation from
the date of termination or reinstatement without loss of remuneration.
The employer
denied the allegations, contending that termination was justified because the
appellant had breached the disciplinary code and processes and the respective
procedures were complied with to the letter.
After a full
trial, the arbitrator was satisfied that, the appellant was unfairly terminated
both substantively and procedurally in the absence of valid grounds to warrant
the termination.
As a result of
the said unfair termination, the CMA awarded the appellant reinstatement to the
employment without loss of remuneration from the date of termination to date of
the award upon payment of a total sum of 59,187,800/-.
Undaunted,
the employer took the matter to the High Court for revision and he was
successful and the decision of the CMA was revised. It was at that point in
time when the appellant decided to cross the bridge to the Court of Appeal for
further scrutiny.
Hakuna maoni:
Chapisha Maoni