TPC wins appeal against former drivers

DAR ES SALAAM: THE Tanzania Posts Corporation (TPC) has won its appeal in the case involving their two former drivers, Salehe Komba and Revocatus Rukonge, who were terminated from employment for possessing Standard Seven and Vocational Training driving certificates.

This follows the decision of the Court of Appeal to allow the appeal in which the TPC, the appellant, lodged against the decision of the High Court, which ordered the two drivers, the respondent, compensated following their termination.

Justices Rehema Mkuye, Winfrida Korosso and Omar Makungu ruled that the Commission for Mediation and Arbitration (CMA), which heard the labour dispute in the first instance, ordering the respondents to be reinstated in terms of section 40(l)(a) of Employment and Labour Relations Act, lacked jurisdiction.

“In the end, we are of the firm view that the appeal is merited and we thus allow it. In consequence, we quash the proceedings and set aside the judgment and any consequential thereto orders of the CMA and the High Court. In the circumstances, we make no order as to costs,” they declared.

During the hearing, it was submitted by the appellant counsel that the CMA had no jurisdiction to entertain the labour dispute because the respondents were public servants and that it was against the provisions of section 32A of the Public Service Act, a contention adamantly refuted by the two drivers.

In their judgment delivered in Mwanza recently, the justices pointed out that Section 32A of the of the Public Service Act compels a public servant to exhaust the remedies available under the Public Service Act before seeking remedies provided by labour laws.

“…. all disciplinary matters or disputes involving public servants are exclusively with the domain of the Public Service Commission, whose decision is appealable to the president,” they said.

The justices were alive to other disciplinary measures within the appellant’s company regulated by staff regulations.

The rules, they noted, laid down procedures for employees of the appellant to undertake in case one felt aggrieved with the decision of the disciplinary committee, which, according to Rule F4, is to apply to the Postmaster General, but if still aggrieved, required them to proceed accordingly as specified by the rules.

“… Our scrutiny of the record of appeal has shown that there was no attempt by the respondents to go through the disciplinary mechanisms within the corporation as specified in the respective rules, nor those within the provisions of the Public Service Act, required for public servants,” the justices noted.

The respondents were engaged into the services by the appellant   in 1997 and 2000, respectively as part-time drivers with Standard Seven and Vocational Training driving certificates, and on November 30, 2007, each respondent was given a permanent contract.

On August 2, 2017, each of the respondents was served with a termination letter dated July 27, 2017, indicating that the termination took effect on July 25, 2017, insisting that the respondents were removed from the payroll.

When the respondents queried the reasons for their termination, they were informed that the termination arose from a Government Notice of 2004 that required employees to have academic qualifications of at least Form IV level which they did not possess.

The respondents’ complaints were that they were terminated without being heard and without the appellant having consulted Telecommunication Workers’ Union of Tanzania (Tewuta) and the Communication and Transport Workers Union of Tanzania COTWU (T) their trade unions, on the matter in question.

After taking the matter at CMA, the arbitrator ordered the appellant to reinstate the respondents in terms of section 40(l)(a) of the Employment and Labour Relations Act (ELRA). The appellant took the matter to the High Court for revision application.

In its decision, the High Court dismissed the application, set aside the award of reinstatement of the respondents and ordered compensation of 12 months’ salaries, severance allowance, repatriation allowance, subsistence allowance and other statutory dues.

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