Date: 21/02/2013 & 26/02/2013 R.M. RWEYEMAMU, J:- RULING

Transcription

1 IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT MWANZA REVISION NO 23 OF 2012 GODFREY RWEKIZA & 11 OTHERS...APPLICANTS VERSUS STANLEY MINING SERVICES (T) LTD...RESPONDENT (Original CMA/MZ//06/2009) Date: 21/02/2013 & 26/02/2013 R.M. RWEYEMAMU, J:- RULING In this application, the applicants vide their Counsel Mr. J. Mushobozi of Kailu Law Chambers calls upon this Court to revise and quash the CMA decision and award issued on 28/7/2009. In that decision, the CMA dismissed the applicants two claims against the respondent/employer. The first dismissed claim was of unfair termination. The arbitrator decided that the applicants termination on operational requirements was on valid grounds and was carried out according to prescribed procedures. Faulting that decision, the applicants averred in grounds 4, 5 and 7 of the supporting affidavit:- 4. That the applicants complained that the retrenchment procedures were not followed in a manner thus no proper consultation, no selection criterion was set before retrenchment, no measure to minimize or avoid retrenchment were taken and no agreement was reached to the fate. 5. That throughout the evidence on the part of the respondent it was clear that there was no such manner and procedures as principally laid down were followed. 7. That the Hon. Arbitrator made a finding generally that the redundancy procedures were followed without going into details of each procedure and no agreement was tendered to show that after the consultation parties agreed in 1

2 principle thus all documents tendered by the respondent at the arbitration were challenged in cross examination and so were evidentially in support of the applicants. The respondent filed a counter affidavit in opposition in respect of that first claim, and averred that the applicants were retrenched for operational requirements; and that retrenchment procedures were followed as prescribed by law. The second dismissed claim was on underpayment of salary. This claim was based on the premises that the applicants were supposed to be paid wages according to rates applicable to the Mining sector (which was a higher rate) but had been paid a rate applicable to the Construction sector. The arbitrator noted that on the facts adduced, the applicants work was in mining sites, including risk/dangerous activities like work on drilling sites. But, the arbitrator declined to grant the claim, holding that, despite the facts, his hands were tied because the respondent/company was licensed as a mining and not contractors company under Act No. 17/1997. Faulting that decision, the applicants averred in ground 6 and 8 of their supporting affidavit:- 6. That the applicants and others were doing mining works at Geita Gold Mine and Bulyanhulu Gold Mine, as also supported by the respondent s evidences at the Commission for mediation and arbitration, but were not being paid minimum wages prescribed for Mining Sector. 8. That the Hon. Arbitrator found that some of the applicants worked in risk areas in mine but still he refused to award minimum wages payable to mining sector. In response, the respondent averred in paragraph 8 of the counter affidavit that the Company was working as contractors at the Geita and Bulyankhulu Gold Mines, and were engaged in drilling work but, they were not registered as a Mining Company, never owned a mine nor exploration sites. 2

3 At the hearing the parties were represented by Mr. J. Mushobozi and Mr. Nasimire for the applicants and respondent respectively. Let me commence with the issue which arose in the course of hearing regarding an existence of an amicable agreement between the parties in this dispute. Mr. Nasimire submitted that the dispute between the parties was amicably settled as per Notice of Settlement filed in Court on 21/10/2010, following which, the application for revision registered as Rev. No. 205/2009 was marked withdrawn. I hasten to point out at this stage that; the applicants admitted to have each received 6 months salary following a Notice of Settlement, although they denied that the dispute was thereby amicably settled. They explained that they were still dissatisfied because they believed they were entitled to 12 months salary as compensation for unfair termination, and that was why they continued with the present application. Be that as it may, I shall now consider the arbitrator s decision in light of parties contending arguments and give my decision on the two claims. For ease of comprehension, I will deal with the claims sequentially. Faulting the arbitrator s decision on the issue of fairness of the retrenchment process, Counsel for the applicants submitted that, proper procedures for termination on ground of retrenchment were not adhered to, as provided for under Section 38(1) of the Employment and Labour Relations Act, No. 6/2004 (ELRA). The procedure followed was specifically faulted for: Failure to give adequate and timely notice; lack of consultation on all the various aspects covered by the law; failure of consultation to result in agreement and evidenced by signed minutes of the consultation meeting. They however admitted that they received an internal MEMO (Exh. E) issued by the respondent for the consultative meeting. meeting. 3

4 Mr. Nansimire, Counsel for the respondent submitted that there was proper consultation; that reasons for retrenchment and criteria to be used were contained in the admitted internal memo (exhibit E);there was a consultative meeting which involved employees/applicants chosen representative (as there was no branch of a registered trade union in the premises); that minutes of the Consultative meeting were produced as exhibit F. he argued that under the law, it is not mandatory that such consultative meeting be signed and urged the court to find that the fact that the minutes were not signed by the parties was not fatal. I have carefully considered both parties arguments and records, but find no basis to fault the arbitrators decision on this aspect in fact or in law. The respondent complied with the substance of the law, which is to ensure adequate consultation. In this case, consultation involved representatives of the applicants in two consultative meetings. I agree with submission by Counsel for the respondent that section 38 of the Act read together with rules 23-24of the Employment and Labour Relations(Code of Good Practice) Rules, GN 42/2007(the Code), provide various stages which are not meant to be applied in a check list fashion, rather are meant to provide guidelines to ensure that consultation is fair and adequate. Further, I disagree with the applicant s submission in rejoinder that, if there had been adequate consultation, it should have resulted in a signed agreement. The law, that is section 38 (1) of the Act provide for vital information to be exchanged; procedures for consultation but in law, such consultation does not have to result in a signed agreement. In view of my said conclusion, I confirm the arbitrator s decision that the applicants were not unfairly terminated, and are therefore not entitled to any compensation for unfair termination. On the issue of minimum wage, Mr. Mushobozi applicant s Counsel submitted that, the arbitrator erred when he failed to decide on the evidence available that the applicants were working for a Mining sector, but instead, focused on the type of the License the respondent 4

5 had. In response, Mr. Nasimire submitted that, the arbitrator properly accepted the evidence that the respondent s company was as per its license not a mining company. He further submitted that although the arbitrator did not specifically decide whether or not the applicants were entitled to salary governing the mining sector, it cannot be concluded that he failed to exercise vested jurisdiction as per rule 28 (1)(d) of the Labour Court Rules. GN 106/2007, as claimed by the applicant. Further on this issue, Mr. Nasimire was of the opinion that the issue of underpayment of salary ought to have been raised separately from that of retrenchment. In rejoinder to that, the applicants argued and I agree with them that, the underpayment of salary was a continuous cause of action which lasted until they were paid their last salary on retrenchment. As such, the two claims were properly joined. Counsel added on a without prejudice basis that, if the applicants are found to have been covered by salary rates operative in the Mining sector and therefore to have been underpaid, in deciding the amount to grant to the applicants, the court should take into consideration the fact that they had admittedly, already received 6 months salary as explained herein above. Counsel went on to further pray that since the receipt of that payment is not disputed, the agreement involved should now be recorded by the court as consent order, under rule 39(3) of GN 106/2007. I hasten to point out that the last request cannot be granted, it has been overtaken by events but suffices it to note that, the applicants admit to have received the stated 6 months salaries. After considering the parties arguments and facts accepted at arbitration, my observation and decision on the issue of the applicants salary rate is as follows; It is undisputed that the respondent s company, therefore its employees (including the applicants), 5

6 although licensed as a contractor, was working in mining activities in Bulyankulu and Geita Gold Mines. The activities involved working on dangerous sites including drilling. In my opinion, the key factor in determining the sectoral wage rate applicable to a particular employee is not the type of business license the employer has, rather it is the kind of business activities of the employer, and therefore, the activities its workers are actually involved in. After all, it is my understanding that among the rationale for providing different rates of pay and remuneration for employees under different sectors, is to factor in matters like complexities and risks associated with work in a given sector. Since in this case the applicants were admittedly involved in risk/dangerous activities in the mines, It is my decision that the salary rate applicable to them is the rate applicable to the mining sector. I accordingly find that the applicants were underpaid for all the period they were drawing salaries on a rate less than that provided for the Mining sector In the end result, I confirm the arbitrator s decision that the applicants were fairly terminated; decide that the applicants were underpaid, and to obtain the amount due to each, I direct that the parties should work out through their advocates, the monies due to each applicant being the difference between the amount received in the relevant period, the amount that ought to have been received under the Mining Sector, minus the six (6) months, admittedly received in anticipation of the finding of unfair termination which has not come to pass. To ensure finality, this case will be mentioned by the Registrar on the date to be notified to the parties, with aim to facilitate the process in the event the parties have failed to conclude the issue or to mark the issue as concluded whichever is applicable. R.M. Rweyemamu JUDGE 26/02/2013 6

7 Date: 26/2/2013 Coram: Hon. R.M. Rweyemamu,J. Applicant: 8 present For Applicant: Counsel absent Respondent: For Respondent: Absent C.C. Lwiza COURT: This matter is for ruling. Mr. Charles Mulokozi: Legal Officer from offices of the applicants Counsel informs court that Counsel for the applicants is sick. Ruling delivered this 26/02/2013. R/A Explained. R.M. Rweyemamu JUDGE 26/02/2013 7