David kapoma v. the general manager tanga cement company ltd Civ no 19 of 2006 (termination of employment)

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA

(CORAM:  MSOFFE, J. A., KILEO, J. A. And KALEGEYA, J.A.)

CIVIL APPEAL NO. 19 OF 2006 

DAVID KAPOMA………………………………APPELLANT

VERSUS

           THE GENERAL MANAGER

           TANGA CEMENT COMPANY LTD………RESPONDENT

(Appeal from the Judgment and decree of the

High Court of Tanzania at Tanga)

(Mkwawa, J.)

dated 28^th September 2001

in

Civil Appeal No.8 of 2000

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JUDGMENT OF THE COURT

4 & 12 July 2007

KILEO, J. A.

The facts giving rise to this appeal are simple and straightforward. The respondent, Tanga Cement Company, hereinafter to be referred to simply as the “Company”, employed the appellant, David Kapoma, in the capacity of a stores clerk at the Company premises in Tanga in 1991. On 17.02.1995 he was summarily dismissed from employment. Being dissatisfied with the summary dismissal the appellant forwarded his complaint to the Labour Conciliatory Board which ordered his reinstatement. The Company was aggrieved by the decision of the Conciliatory Board and made a reference to the Minister for Labour and Youth Development. It is common knowledge that in between the decision of the Conciliatory Board and that of the Minister, the Company decided to repatriate the appellant and his family to his place of domicile in Wasa village in Iringa. The Company’s reference to the Minister was however unsuccessful and it was ordered to reinstate the appellant in his employment. Following the Minister’s decision, the Company wrote a letter to the appellant the effect of which was to reinstate him to his employment. The Company also transported him and his family back to Tanga. The appellant was however not paid 30 days subsistence allowance upon his reinstatement. This forms the gist of the conflict between the parties. The District Court found that he was entitled to the 30 days subsistence allowance minus the housing allowance, which he was paid for the time that he was in Iringa.  The High Court, Mkwawa, J. declined to accede to the appellant’s argument that his return from Iringa coupled with his reinstatement should be equated to an employee who was being employed for the first time or who was going on transfer. The learned judge declined to accept the appellant’s argument because; according to him the argument was not “in keeping with the practice, law or precedent”. The  judge did not end there. He went on further to state as follows: “in other words, what the respondent asserts may be chivalrous but is not the practice or law”.

The appellant’s memorandum contains three grounds: -

1)   That the learned judge erred in law and fact by not holding that the Appellant was improperly repatriated to his domicile place, while he had already observed that it happened while disciplinary proceedings were in process.

2)   That the learned Lord judge erred in law and fact by failing to give a correct interpretation of the word ”reinstatement” to enable him to decide on whether or not the appellant was entitled to subsistence allowance.

3)    That the learned Lord judge erred in law and in fact in holding that the appellant was not in keeping with the practice, law or precedent.

The appellant appeared in person at the hearing of the appeal. Mr. Akaro, learned advocate, represented the Company.

There is only one issue, which is central to this appeal. The question is, given the circumstances of this case, was the appellant entitled to be paid 30 days subsistence allowance upon his recall from Iringa?

Both sides are in agreement that 30 days subsistence allowance was payable to employees on first appointment or on transfer in terms of the Tanga Cement Company Voluntary Agreement. This kind of allowance is generally given to an employee to help her/him settle in new surroundings.

The appellant argued that since his services in effect came to an end by his summary dismissal, and since he was repatriated to his place of domicile in Iringa, his recall to Tanga from Iringa amounted to starting afresh. He pointed out that he had to look for new accommodation as he was forced to release the one he had prior to his repatriation.

The appellant also averred that the provisions of sections 31 and 41(2) of the Security of Employment Act, Cap 387 R.E.2002 were violated by the Company and for this reason it should be ordered to make good the violation.

It was further argued that the minute the Minister ordered his reinstatement his employment contract was revived. The appellant made reference to three cases in his submission. These were; General Marketing Co. versus A. A. Shariff (1980) TLR 61, K.K. Kibaya versus U.A.C. (T) LTD (1996) TLR 76 and Esso (T) Ltd versus D. R. Kaijage, Civil Appeal No 6 of 1989 (unreported). We have had occasion to look closely at these cases. We must however say that we have found nothing in these cases, which can advance the case for the appellant. The facts and circumstances of the cases were different from the facts and circumstances of the present case. The High Court, (Biron, J.) decided the General Marketing case, a decision by which we are not bound. The issue in that case however, was whether the order of the Minister given in Swahili in the following words “Mfanyakazi arudishwe kazini” meant that he was to be re-employed. In interpreting the above words the High Court held that the words “Mfanyakazi arudishwe kazini” meant that the employee was to be  “reinstated in his employment” and not re-employed. In the present case there is no issue concerning the meaning of “Mfanyakazi arudishwe kazini” or even the meaning of “reinstatement”. The issue, as we have already pointed out is whether in the circumstances of this case the appellant was entitled to be paid 30 days subsistence allowance upon his recall. The question in the K.K. Kibaya case was whether the employee was entitled to depreciation and toolbox allowances during the time of his termination. The argument he advanced was that he was entitled because those allowances were payable to him even in the period he was on leave. It is obvious that this case is distinguishable from the present case. The Esso case can also be distinguished from this case because the question whether an employee who is summarily dismissed and repatriated should be entitled to 30 days subsistence allowance upon his recall did not arise.

Mr. Akaro, learned counsel for the Company, argued that the judge did not err in not holding that the appellant was improperly repatriated while disciplinary proceedings were in process. He contended further that the law was complied with and that in any case, there is no law, which states that subsistence allowance should be paid upon reinstatement.

This case, which is rather peculiar, has indeed exercised our minds a great deal. The circumstances of this case are not catered for in the law; in other words, the law is silent on whether or not, an employee who has been repatriated to his home village at a time when reference to the Minister is pending should be entitled to subsistence allowance upon recall following a Minister’s order for reinstatement.

We are of the view that the circumstances of this peculiar case are akin to the definition of transfer given under the Regulations of Wages and Terms of Employment Order, Government Notice No. 85 of 1996, which defines transfer “to include movement of an employee from one geographical location to another”.

The appellant’s recall and reinstatement meant that he had to begin afresh in terms of seeking for accommodation and settling down.

We note that under the provisions of both sections 31 and 41 (2) once the reference was made to the Minister in relation to the summary dismissal, the order of the Conciliatory Board was suspended. The relevant provisions provide as hereunder:

“31.  Stay of certain orders on further reference to Minister

Notwithstanding the provisions of subsection (1) of section 26, where the employer makes a reference to the Minister against the refusal of the Board to confirm the summary dismissal or proposed summary dismissal of an employee, such employer shall not be required to give effect to the provisions of subsection (1) of section 26 unless he abandons such reference, or until the reference has been determined by the Minister, and the provisions of subsection (1) of section 26 in relation to the decision of the Board shall be subject to any decision made by the Minister”.

Section 26(1) provides as follows:

“26. Implementation of certain decisions

(1) Where, in the exercise of its powers under this   Part, a Board orders–

(a)       the re-engagement or re-instatement of an employee, the employer shall (unless such employee refuses to be re-engaged or reinstated, as the case may be) re-engage or re-instate the employee in his former employment, and such re-engagement or re-instatement shall have effect for the purpose of the payment of wages, entitlement to severance allowance and other retiring benefits, and otherwise in relation to any benefits of employment, from the date of the employee's summary dismissal or suspension, as the case may be, but the employer may deduct from any wages due on or after any re-instatement any half pay paid during the period of suspension;”

 and section 41 (2) provides:

   “(2) Where an employer makes a reference to

   the Minister in respect of any order of the

   Board under this Part, the order shall be

   suspended until the reference is decided by

   the Minister”.

Though the order of reinstatement made by the Conciliatory Board appears to have been by law suspended when the reference was made to the Minister, we do not think however, that it was prudent on the part of the Company to repatriate the appellant before the Minister had given his decision. As it happened, following the Minister’s decision confirming the Conciliatory Board’s decision, the Company had to recall the appellant, who upon return had to resettle, by among other ways, looking for new accommodation.

The above considerations take care of ground no 1 and no 2 in the memorandum of appeal.  As for ground no 3 we are of the opinion that the circumstances of this case being peculiar, the learned judge should at least have elaborated on what practice, law or precedent that the appellant’s arguments were not in keeping with. The decision of the learned judge lacked that elaboration.

We have studied the decision of the Principal District Magistrate (PDM) and we have observed that she ordered the Company to pay Bank rate interest on the principal sum from the date the case was filed in court to the date of judgment and till the time the whole claim is paid in full. The PDM did not state what the Bank rate was then, and moreover, she awarded that which had not been asked for. According to the calculations appearing in the amended plaint, the principal sum of shs. 2,675,946/= included interest for three years which was set between 7.5% and 8.5%. We have failed to find the basis for this calculation. The subsistence allowance, which was due before inclusion of the interest, was shs. 1,419,600/-. This was the principal amount. The principal amount should have remained the principal amount until a decision was made and a rate of interest fixed by the court. Further still, there was no justification to award interest at Bank rate because, as we have already noted, it was not asked for in the first place.

In the event we allow the appeal but vary the decision of the PDM to the following extent:

The appellant is to be paid only the principal sum of shs.

1, 419,600/=. The order for deduction, from the decretal amount, of housing allowance paid to the appellant remains.

We make no order as to costs.

DATED at TANGA this 11^th day of July, 2007.