JUMA ALI KAZIYABURE v TANZANIA POSTS AND TELECOMMUNICATIONS 1994 TLR 1 (HC)

 

JUMA ALI KAZIYABURE v TANZANIA POSTS AND TELECOMMUNICATIONS 1994 TLR 1 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Msumi J

MISCELLANEOUS CIVIL CAUSE NO. 94 OF 1985 B

21 August, 1986

Flynote

Labour Law - Summary dismissal - Minister orders reinstatement of dismissed

employee - Whether employer C may terminate services and pay statutory

compensation instead - Security of Employment Act, Cap 574.

-Headnote

The respondent summary dismissed the applicant from employment. The Minister for

Labour, in D agreement with the decision of the Reconciliation Board, ordered the

reinstatement of the applicant. Instead of complying with it the respondent purported

to terminate service on payment of statutory compensation and twelve months salary

in accordance with s 40A(5) of the Security of Employment Act as amended by Act

No 1 of 1975. E

The applicant then applied to the High Court for an order of specific performance of

the Minister's decision. He also claimed damages arising from the respondent's failure

to comply with that decision. The learned counsel for respondent was of the view

that an employer can legitimately ignore the order of the Minister or Board for

reinstatement provided he pays the aggrieved employee F statutory compensation,

plus twelve months salary.

Held:

(i) There is no legal backing for the argument that an employer can

legitimately ignore the order of the Minister or Board for reinstatement provided he

pays the aggrieved employee statutory compensation plus twelve months salary; G

(ii) Section 27 and 40A(5) of the Security of Employment Act is where the

Minister or Board has ordered for reinstatement or re-engagement it is the

complainant employee, and not the offending employer, who may opt for one of the

two alternatives. H

(iii) An employer who refuses to reinstate his employee in contravention of

the decision of the Minister or Board risks having such decision executed against him

by way of specific performance with or without payment of damages;

(iv) in addition to an order for specific performance, the court is

empowered, under s 27(2) of I the Security of Employment Act, to award damages.

1994 TLR p2

Case Information

A Application upheld; respondent ordered to reinstate the applicant within thirty

days.

No case referred to.

Teye, for applicant.

Kisaka, for respondent.

[zJDz]Judgment

B Msumi, J: These proceedings have been initiated under the provisions of s 27 of

Security of Employment Act, cap 574 and Order XXI Rule 20 of Civil Procedure Code,

1966. The applicant is seeking the assistance of this court in executing the decision of

the Minister of Labour who, in C agreement with the decision of the Reconciliation

Board ordered for the reinstatement of applicant in his position as an employee of the

respondent. Prior to the decision of the Minister, respondent had invoked a

disciplinary action against the appellant by dismissing him summarily. In these

proceedings respondent does not challenge the Minister's decision which according to

law is final D and conclusive. However, instead of complying with it by reinstating

the applicant, respondent purported to terminate his service on payment of statutory

compensation and twelve months salary E in accordance with s 40A(5) of Security of

Employment Act as amended by Act 1 of 1975. It has been submitted by the learned

counsel for the respondent that this provision gives an employer the option to

terminate the service of his employee instead of reinstating him provided he pays him

the stipulated compensation.

F The relevant provisions in this case are s 27 and 40A(5) of the Security of

Employment Act, henceforth referred as the Act. Both sections are hereby fully

quoted for ease of reference.

'27(1) The decision of the Minister on a reference to him under s 26, and

subject to any decision on a reference to G the Minister therefrom the decision of a

Board on a reference to it under this Part -

(a) shall be final and conclusive and

(b) shall be binding on the parties to the reference and the relationship

between the parties in the consequence H of the matters in respect of which the

reference was made shall be determined accordingly, and

(c) may be enforced in any court of competent jurisdiction as if it were a

decree.

(2) In addition to its powers to execute any decision which requires the refund

of any wages deducted or, expressly or by implication, the payment of any sum to any

employee where a dismissal is ordered to take effect as the I termination of

employment, a court in which it is

1994 TLR p3

MSUMI J

sought to enforce a decision of the Minister or a Board may make and enforce

such orders as are necessary for the A specific performance of any decision for the

re-engagement or reinstatement of any employee (notwithstanding that the court

would not have power apart from this subsection to make or enforce such orders) and

may award damages for the failure of the employer to carry out any such decision as if

he had dismissed the employee B concerned wrongly (and if Part IV of this Act is in

operation in relation to the employee concerned, such damages shall include the

statutory compensation provided for in that Part.)'

Section 40A(5) provides -

`40A(5) Where a reinstatement or re-engagement has been ordered under this

section and the employer refuses or fails to comply with the order - C

(a) in the case of an order made by a Board against which no reference has

been made to the Minister within twenty eight days of the order being made, or

(b) in the case of an order made by the Minister on a farther reference to

him, within fourteen days of the order D being made by the Minister,

the employer shall be liable to pay the employee compensation of an amount

equal to aggregate of -

(i) the statutory compensation computed in accordance with s 35, and E

(ii) a sum equal to twelve months wages to which the employee was

entitled immediately before the termination of his employment or, as the case may

be, his dismissal.

and such compensation shall be recoverable in the same manner as statutory

compensation the payment of which has been ordered under s 39.' F

As noted earlier, respondent refused to reinstate the applicant and instead he

purported to terminate him on payment of statutory compensation and twelve

months salary. The learned counsel for respondent is of the view that an employer

can legitimately ignore the order of the Minister or Board G for reinstatement or reengagement

provided he pays the aggrieved employee statutory compensation plus

twelve months salary. With respect I can find no legal backing for such argument. My

understanding of s 27 and s 40A(5) of the Act is that where the Minister or Board has

H ordered for reinstatement or re-engagement the complainant employee may opt

for one of the two alternatives. He may either apply to the court under s 27(1) of the

Act to have the order executed as if it was a decree, or he can claim for payment of

statutory compensation and twelve months salary as I provided under s 40A(5) of the

Act. Either

1994 TLR p4

MSUMI J

A of these alternatives can only be initiated at the instance of the aggrieved

employee and not the offending employer. An employer who refuses to reinstate his

employee in contravention of the decision of the Minister or Board does so at the risk

of having such decision executed against him by way of specific performance with or

without payment of damages, or on the application of the aggrieved employee, he

may be ordered to pay the employee statutory compensation plus twelve B months

salary. An employer cannot, at his own initiative, choose to pay his aggrieved

employee statutory compensation and twelve months salary as an alternative to

comply with the Minister's or C Board's decision of reinstatement.

Essentially what the applicant is asking the court to do is to order specific

performance of the Minister's decision. He is also claiming damages arising from the

respondent's failure to comply with D the decision of the Minister. As far as

reinstatement is concerned, the decision is quite clear, it says:

`Kwamba kufukuzwa kwake kazini mfanyakazi siyo sawa na halali. Hivvo

arudishwe kazini kwake kama kawaida.'

E This is the decision which the applicant wants to execute by way of specific

performance. However, in addition to making an order for specific performance, the

court is empowered under s 27(2) of the Act to award damages. However, apart from

his claim for various entitlements applicant has not claim and prove any damage. He

is mainly claiming for payment of arrears of wages.

F In conclusion the application for the execution of the Minister's decision is hereby

upheld. Respondent is ordered to reinstate the applicant with effect from 28 October

1983 the day when the Minister gave his decision. As a necessary measure for

enforcing this decision it is further ordered G that respondent should reinstate the

applicant within thirty days from the delivery of this ruling. For the avoidance of

doubt it is specifically stated that applicant is entitled to be paid his arrears of salary

H from 28 October 1983 to the time of his reinstatement. No order for costs is made.

1994 TLR p5

A