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HESLB bid against former employee reinstatement quashed

THE High Court's Labour Division has rejected an application by Higher Education Student's Loans Board (HESLB), challenging decision on reinstatement of former Assistant Director of Personnel and Administration, Mr Gabriel Robi, as awarded by Commission for Mediation and Arbitration (CMA).

Judge Zainab Mruke ruled that the application for review of the Court, confirming the CMA decision in favour of Mr Robi, the respondent, was incompetent for the HESLB, the applicant, including some additional grounds and introducing issues that were not agreed upon.

However, in order to determine the parties' rights in the interest of justice and in terms of Rule 55 (1) and 2 of the Labour Court Rules, the court decided to "strike out" the application in question with leave of 30 days to file a competent review application.

"It is now an established position of the law that in exercise of their duty of administration of justice, courts of law are required to give substantive justice priority to legal technicalities. Principles of natural justice must be observed by courts save where their application is excluded expressly," the judge said.

Since March 2018 when the CMA gave its order, the Board has refused to reinstate Mr Robi for a number of reasons, including the existence of the application for review in question. Mr Robi has unsuccessfully petitioned the Board Chairman for the applicant to comply with the order.

When dismissing the Board's application for revision, Judge Mruke revisited the report given by Controller and Auditor General (CAG) on the years, that the applicant alleged the respondent to have committed the offences complained in the charge sheet he was given before his was dismissed.

According to the judge, it was clear that there was no such audit quarry by the CAG. She noted that the Audit Report of the applicant by the CAG was addressed to the Chairman of the Board, by then, Prof. Anselm Lwoga.

However, Judge Mruke further observed, it was the same board that have initiated disciplinary hearing against the respondent.

"This court wonders, if a statutory Auditor of Government Revenues and Expenditure had confirmed that procedures were followed and there was no any loss or mishandling of procedure, where does the applicant board derive the authority to charge innocent respondent?" the judge queried.

Mr Robi was employed by the Board on December 18, 2006 at the position of Assistant Director of Personnel and Administration. He was reporting to the Director of Finance and Administration. On November 1, 2013 he was asked to go on compulsory leave to allow investigations.

Later, he was given charge sheet after 47 days of compulsory leave and required to answer within 14 days. After answering the charges, without any explanations he was given other different charges on February 14, 2014.

He answered them within 14 days. He was terminated on March 19, 2014. Being dissatisfied, Mr Robi filed a labour dispute before the CMA. After a long hearing, the CMA ordered the Board to reinstate the employee without loss of remuneration.

The Board was dissatisfied with the decision of the CMA and filed an application for revision before the High Court's Labour Division, seeking orders to call for records of the proceedings and the award from the CMA, revise and set it aside.

However, Judge Mruke, having revisited the evidence tendered, she dismissed the application, observing that there was no reason for the Board to charge Mr Robi at all.

Equally, the judge noted also from the evidence that it was obvious Finance Planning and Administration Committee did not summon Mr Robi, give him audit report and interrogate him during investigations.

 "In general, Arbitrator was right by holding that the procedure for terminating the respondent was unfair. The applicant denied (him) a proper hearing before he was terminated. The respondent was not interrogated before the investigation report was made contrary to the law," she said.

According to her, the respondent was not given the report on the basis of the charges which led to his termination, he was not given a chance to mitigate before a sanction was imposed on him and that the Disciplinary committee was improperly constituted.

"It was composed of members who were junior to the respondent contrary to law. The applicant's Executive Director participated in different stages of the respondent's termination process contrary to law. The respondent was charged and terminated based on offences which were a nullity," she said.

THE British High Commissioner to Tanzania ...

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Author: DAILY NEWS REPORTER

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