SAINT Joseph Kolping Secondary School is to pay their former School Headmistress Alvera Kashushura 12 months' salary for unlawful termination of her employment services for allegedly lack of cooperation with her fellow staff and other workers.
This followed a decision of the Court of Appeal to dismiss the appeal lodged by the secondary school, the appellant, to oppose findings of the High Court's Labour Division, which upheld the award of the Commission for Mediation and Arbitration (CMA) on such labour dispute.
"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 (Employment Labour Relations Act)," Justices Augustine Mwarija, Barke Sahel and Issa Maige ruled.
They pointed out that 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 the ELRA.
The justices pointed out that the fairness requirement under the ELRA emanates from the provisions of Termination of Employment Convention 158 of 1982, which establishes the core elements of the employee's rights, as to include requirement for valid reason for any termination.
According to them, the Convention recognises three valid reasons as misconduct, incapacity and operational requirements, which have been duly incorporated in section 37(2) (b) (i) and (ii) of the ELRA.
During hearing of the appeal, the counsel for the appellant had submitted to justify the termination under clause 6.2 (b) of the contract, which provides for termination of contract by giving three months' notice or cash in lieu thereof.
In his submission, the lawyer said that such kind of termination is justified under rule 8 (2) of the Code of Good Practice without necessarily observing the requirements under section 37 of the ELRA.
Deciding on the submissions, the justices pointed out that they were quite aware that, under section 36 of the ELRA, termination of contract of service includes a lawful termination under common law.
However, they said, in understanding broadness of concept of termination of contract of service under common law, rule 3 (2) of Code of Good Practice defines termination to mean; termination of contract by agreement, automatic termination, termination by employee and determination by employee.
"Neither of the circumstances refers to termination at the instance of the employer as it is in this case. In our opinion, the application of the rules as to termination of contract under common law is subject to the provisions of the ELRA and its regulations, including section 37 of the ELRA," the justices said.
They could not agree with the counsel that, under our laws a fixed term contract of service could be prematurely terminated without assigning reasons because the conditions under section 37 of the ELRA are mandatory and therefore implicit in all employment contracts.
"In addition, creation of a specific duration of contract gives the employee legitimate expectation that if everything remains constant, he or she will be in the service throughout the contractual period. The expectation is defeated, if the same can be terminated at any time without reason," the justices said.
Alvera had since May 4, 2015 been in the service of the appellant as the school headmistress. The term of the contract was three years renewable. On October 21, 2015 the respondent received a letter from the appellant accusing her for "unworthy reception of the school owner when he visited the institution".
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She apologised in writing. Two months later, the appellant terminated her service for lack of cooperation with her fellow staff and other workers as well as using unworthy language and bullying them. Alvera challenged the termination to the CMA at Bukoba for being unfair.
The CMA found the termination unfair both substantially and procedurally. It therefore, awarded her 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. The Labour Court dismissed the appeal and upheld the decision of the CMA. It was at that point in time when the appellant decided to knock the doors of the Court of Appeal, the highest temple of justice in Tanzania.
