C.R.D.B. (1996) LTD. vs Regional Labour Officer (Emma Swigo) (DC Civil Appeal. No. 2 of 1998) [1999] TZHC 379 (10 December 1999)

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IN THE HIGH COURl' OF TANZANIA AT MBEYA DC CIVIL APPEAL. NOo 2 OF 1998'· · (Fram. Sumbawang.a District -Court Civil Case Noo 21 of 1996 Before: T.A.R. Nassacy - R~ident Magistrate) C.,R.D.B. ( 1996) LTD. o o • e o o • • o o o o. • • ·versus· '11HE. REGI.rnllAL LABOUR OFFICER ) (EMMA SWIGO) i·. - . . ) 0 0 .. oe I I .__,_ . ;, .. ·,,.;. .. . - .. ,; - JUDGMENT -,- APPELLANT RESPONDENT MOSB:I 1 J.

The r.espondent, The Regional Labour Oifi-0~ on l::reha1.f o.f Emma So Swi6is, •' ·preferred the suit befo:re the district court of Sumbrudanga -e.g-ainst. the ,11, the Branch Manag-er (C.R .. D.B.) Surnbawanga, c·laiming th~ - suni of shs;552_, 750/:: • · being costs of per diem, transport and treatment of her son at th~ Kili.ma!i.ja?o' Christian Medical Centre (K.C.M.C.) Referral, -Hospital. The claim was pr,oteti by a Labour Officer, Salum Malungulu and defended by Mr. Kampakasa, learne• · . ' advocate. Only Emma S. Swigo (PW1) t·stified for the respondent I and the Bra,ic Manager of the appellant, Francis Mwakyema (DW1),·for the appellant. The district court allowed the claim as prayed in the plaint. The appellant felt aggrieved and Mr. Kampakas~,;ti~~'r-erred this appeal ·which was• however, argued before me by Mro Naali, learned advocate, and esisted by Mr· Fabian Mwakulya, Rukwa Regional Labour Offic.er~ ;pese material facts were not only established in evidence but were . . . und=i:5puted as well. Emma (PW1) was at all material times employed by, and working for, the appellant as Branch Accountant at Sunibawanga. '. In late December 1995 she was.on leave. According to the appellant-(DW1) the leave were to expire · ;on: 20.1 .96. She was attending her sick child who was being treated at Sumbawanga Regional Hospitalo The appellant (DW1) said he was aware of the illness of the childo The major prolem was with the ears. Towards·the end of December 1995 the Medical Doctor. t:r_ea:ting·_te ehild referred him to the K.C.M.C. reir:ral . " .... , ·o • • • • • • /<,.

• 2 - h.oi..pi~ for 1'1'$0ialis't att.entioo -and treatment. The Medi.cal. doctor had recorded 'il! the 't'egional hospital's out-patient treatment .card. (Ext P3) of the child: . -'· nwn1 benefit from ENT Specialist review (= Surgicci.l corrtion) - KCMC," and . •· • • i ··::,.{::.., . ·- •. . .·. duly signed his name. This was followed by a refer.r9: letter written to the ~ - Sp,Ex:ialist K.CMC :t;>;y -tb..-e R-9gional hos.pitalhs- Surgaan - S.pecial.ist, Dre . Nduasinde J .s. On 27.12.95 Emma (PW1) wrote a let,ter (Ext f2} to he appellant asking . . . ' . . . ~ . . .. far permission and assistance to take the child to the K.C.M,C. for ENT Specialist: examin-ation .and tr,eatment. She was .still on leave. She found the appellant on safari. She left the lette.)t-P2) on his table and pro to the KCiv'lC with her ehild. She returned on 15.1.96. She was still on ly, .. ,_.>.· Transport -an~ trea.tma:p.t :qq.s!:,s~ .a.t4i- ,p.e~ .-diem l..owaru:;.e -Oa.me to a. total 0 of shs.. 5~~;,780/ 7 . She had supporting. r_eceipts (Ext P4).· on·20.1.96 she reported for duty upon expiry of her leave. On that day she was served with a retrenchment letter {Ext P1) dated 30.12.95 effectiv€ 1.1·.-96-;,. She was pid all her dues including sa1a·ry up until 2001.96. But she wasi-efused the costs of taking her child to the KCMC, hence the· suita The reasons given by the appellant for the refusal were that the respontent (PW1) did not obtain Official permission from the appellant for the trip to KCMC; that no !sick sheet was issued by .the appellant or the Accountant a.s required under the CRDB Personnel Service Manual (Ext D1); and that an·employee would·be permitted to go for medical treatment at the expense of the bank only if the budget allows. The trial court found these reasons untenabl'e, and I would, with respect, uphold that finding. Medical treatment at the expense of the bank was an entitlement of every employee· of the bank and his family as per the personnel service manual (Ext D1). This right was not conditional on the budget. Ext D1 did not say so. The right was unconditional. Permission to go for medical treatment would not, therefore, depend on availability of funds. So an employee of the bank would be entitled •••••• • f •• · •

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• 3 - to a refund cf xpenses. :incurt'ed for medical t't'eatment of himself and mernb9rs of hl.s family. Exp:r,ess perrnis&ion for the .safari to KCMC was not obtained, but sufficient effort to obtain it was made, and circumstanees beyond th& control of the respondent made it difficult to obtain. The appellant was on safari and the respondent was on leave, but still an employee. The evidence did not establish who,.if any, was acting for the appellanto So the respondent left the letter for .permission (;Ext ) . .in .-the offic(;! of the appellant where he found it on return from safario. She could not be faulted for doing soo Matters of medical treatment are of the highest priorityo She was a senior officer of the bank who was fully aware of he unconditional right to medical treatment at the expense of the banko In the circumstances of this case, a sick sheet was not ·a·priority. The child was being treated at the regional hospital with .official knowledge and information of the appellant. The child was referred to the KCMC by the hospital and not the banko What mattered here, therefore, was the reference to the KCMC and not a sick sheet from the bank. It sufficed that the respondent was still an employee o the bank when she left for KCMC and when she returned. She was retrenchme~t served with the. · . · ··.-- letter (Ext'P1) on 20 •. 1.96 when.she reported for duty on expiry of her leaveo The effective date· of the letter· (Ex:t·.P.1) ,- therefore, was 20.1.96 as found by the trial court. This would account for the fact that she was paid all her dues including salary up until 20.1.960 In all the foregoing circumstances, therefbre, I would uphold the trial court's findings that the respondent's safari to KCMC was justified, and that she was entitled t·o a refund of the expenses incurred. I would, in conclusion, briefly comment on the quantum claimed and awardedo The respondent produced receipts (Ext P4) in its support. Mr. Naali submitted that the quantum did not tally with the receiptso But what the learned advocate said was out of touch with the evidence of the appellant. It did not reflect anywhere in that evidence. In fact the appellant did not make any mention of the quantum claimed. The quantum, therefore, was uncontroverted, and I am •••oooo•• /4 ' .....

• 4 - satisfied that the trial court was titl.e.d to grant the ql.lalltutri as praie,d. On the preponderance of probability, therefore, the respondent's claim stood established in its -entirety and I would, in co.nsequauce-, dismiss the. appeal with costs. AT MBEYA. 10 December 19~. For.Appellant: Mr. Naali, advocate. . . . For Respondent: Present in person.

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,... __ B.P. MOSHI JUDGE. J