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Ex-worker awarded over 70m/- for unfair termination of employment

TANZANIA-based gold mineral company Pangea Minerals Limited is to pay its former equipment operator Joseph Bulabuza over 74m/-, being compensation for unfair termination of his employment about two years ago over health complication claims.

This follows the decision of the High Court (Labour Division) to dismiss the revision under which the mining company, the applicant, had lodged to oppose the award given by the Commission for Mediation and Arbitration (CMA) in Shinyanga in favour of Bulabuza, the respondent.

“I find the revision without merit. It is dismissed in its entirety. Being a labour matter I make no order as to costs,” Judge Elizabeth Mkwizu ruled.

According to the Judge, it was an uncontroverted fact from the record that respondent had a lower back pain and he was attended to at Buzwagi Mine Clinic and later was referred to a neurosurgeon at Muhimbili Orthopaedic Institute (MOl) and later to TMJ Hospital for further treatment.

She noted also that the degree and nature of the respondent's incapacity was duly investigated through a medical review board meeting, which recommended that a redeployment committee meeting to be determined whether he would be able to perform his duties or there was an alternative job for him.

The committee digested the recommendations not only of the Medical Review Board, but also that of the specialist doctor who recommended that the respondent should not work on a vibrating surface.

Having considered the recommendations, the redeployment meeting found nothing suitable for the respondent and, therefore, recommended for termination.

However, the judge said the review of records revealed that though the employer the applicant in this matter was able to investigate the nature of the incapacity facing the respondent. She failed to indicate how she considered accommodating such incapacity.

This is so because reading the records it is clear that the redeployment committee was held and recommended for termination while the respondent was still on medication," Judge Mkwizu said.

She observed that the respondent's doctor and neurosurgeon had suggested in a progress report that there was a prospect of improvement and that no final report was issued which would have enabled the applicant or the redeployment committee to justify termination.

Again, the judge said, there was no indication that the redeployment committee meeting investigated alternative duties for the respondent and that the discussion on the meetings conducted focused on the respondent's incapacity and whether he could manage to perform his original duties.

“There is nothing showing the efforts made to invite other alternative jobs or seek the respondent's opinion or suggestion on available opportunities. I, therefore, find nothing to fault the arbitrator's finding on this issue,” she ruled.

The judge further observed that a similar conclusion was arrived as to whether the applicant followed a stipulated procedure before termination as Rule 21(1) required the employer to consult the employee on the whole investigation process.

She said it was evident the respondent was represented at the meetings conducted, but there was no indication that the applicant investigated alternative duties available for him and if so such opportunities were not communicated to him either to accept or refuse or suggest otherwise.

“At the end, the outcome of the meeting for termination was not communicated to the applicant in writing as required by the law. The respondent was also not informed of the termination until October 2018 when he learnt of his salary cut. The termination was, therefore, procedurally unfair,” the judge said.

Joseph Bulabuza was employed by Pangea Minerals Limited as an equipment operator until on August 15, 2018 when his employment was terminated on the ground of incapacity (ill-heath). Aggrieved, he filed a labour dispute at the CMA, challenging the termination procedurally and substantively.

After hearing, the CMA found in favour of the respondent and awarded him a 30-month salary as compensation for unfair termination at 55, 528, 744/-, subsistence allowance amounting to 18, 900, 952/73 from August 21, 2018 to the date of the award and all terminal benefits.

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