St. Joseph Kolping Secondary School vs Alvera Kashushura (Civil Appeal No. 377 of 2021) [2022] TZCA 3071 (18 July 2022)

ST. JOSEPH KOLPING SECONDARY SCHOOL V. ALVERA KASHUSHURA IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MWARIJA, J.A., SEHEL. J.A., And MAIGE, J.A) CIVIL APPEAL NO. 377 OF 2021 (Appeal from the Judgment of the High Court of Tanzania, Labour Division at Bukoba) Labourlaw – Practice and procedure - Termination of employment-whether the termination was fair Labor law – Practice and procedure- Whether the procedure of termination was followed. The respondent had since 4th May, 2015 been in the service of the respondent as the school head mistress. The term of the contract as per exhibit D3 was three years renewable On 21st October, 2015 the respondent received a letter from the appellant accusing her for "unworthy reception of the school owner when he visited the school". The respondent apologized in writing. Two months later, the appellant terminated her service for want of cooperation with her fellow teachers and members of the staff also using unworthy language and bullying them. The respondent challenged the termination to the Commission for Mediation and Arbitration at Bukoba (the CMA) for being unfair. The CMA found the termination unfair both substantially and procedurally. It therefore, awarded the respondent the amount equal to the monthly salary of the remaining contractual period of 12 months as cash in lieu of reinstatement and other terminal benefits. Aggrieved, the appellant preferred a revision to the Labour Court raising two complaints. Held: (i) Termination of service is said to be fair according to section 37(2) if it is based on fair and valid reasons and carried out in observance of fair procedures stipulated in the provisions of ELRA. Therefore, the Labour Court Judge was right in holding that termination of respondent's employment contract could not be fair without being based on fair reasons and procedure set out under section 37 of the ELRA. (ii) the employer is bound to give the employee notice of termination even though it is not provided in the contract of service. Section 41(3) and (4) of the ELRA requires such notice to be in writing and state the reasons for and the date of the termination. The appeal was found with no merit and was accordingly dismissed. Statutory provision referred to: (i) Employment and Labour Relation Act (ii) Common Law Principles under Judicature and Application of Laws Act Cases referred to: (i) Stella Temu v. Tanzania Revenue Authority [2005] TLR 178 (ii) RemiglusMuganga v. Bar rick Bulyanhulu Gold Mine, Civil Appeal No. 47, 2017 (unreported)