Africa-Press – Tanzania. THE High Court’s Labour Division has ordered the Higher Education Student’s Loans Board (HESLB) to pay its former Chief Accountant, Yusufu Kisare, his entitlements after terminating his employment services on the ground of sexual harassment.
Judge Iman Aboud ruled in favour of the employee after allowing his application for revision he lodged to fault some findings of the Commission for Mediation and Arbitration (CMA).
“(……..) The Court upholds the Arbitrator’s award save to payment of 12 months remuneration as compensation for unfair termination per section 40 (1) (c) of the (Employment and Labour Relations) Act and one month salary in lieu of notice,” the judge ordered.
In his award, the Arbitrator at the CMA had ordered the employer to pay the employee 38.4m/- as six months salaries compensation, repatriation and subsistence expenses, 16,896,000/- as cost of transportation of personal effects.
He also ordered payments of 1,728,000/- being total air tickets price for himself, wife and four children as per the fast jet quotation, subsistence allowances as per section 43,(1) (c) of the Act as well as leave payment equal to 6.4m/-.
Before determining the dispute, the judge had to consider whether the dispute was prematurely filed at the CMA, whether the employer proved the misconduct levelled against the employee and whether the employer followed laid down procedures in terminating the employee at hand.
As regarding the issue as to whether the dispute was prematurely filed, the employer had argued that the CMA had no jurisdiction to entertain the dispute at hand because the employee did not exhaust internal remedies of appealing to the Minister as provided under section 15 (1) of Act No. 09 of 2004.
The judge noted that a terminated employee who is required to appeal to the Minister should have been either the Executive Director or Director.
However, the records in the case do not reveal that the employee in question was a Director appointed under section 13 of the Act in the employer’s organization as rightly disputed by the counsel for the employee neither was he the Executive Director.
On the contrary, the record indicates that the employee was the Chief Accountant as evidenced by the letter for Revised HESLB Schemes of Service, Job descriptions and Salary Structure.
“Under such circumstances, it is my view that the employee was not supposed to exhaust any internal remedies as suggested by the employer counsel,” she said.
The judge also noted the employer’s submission that the accused employee admitted that his disciplinary authority was the Board.
In such an aspect she joined hands with the employee counsel arguments that his client admission does not override the requirement of the law which express clearly that for one to appeal to the Minister should be either the Executive Director or the Director the positions which were not held by the employee.
“Based on the above discussion l have no hesitation to say that the matter was properly filed at the CMA and the CMA had jurisdiction to entertain the smarter at hand,” the judge ruled.
Regarding the question of whether the employer proved the misconduct levelled against the employee, the judge noted that in any proceeding concerning unfair termination of an employee, the employer shall prove that the termination is fair, as per section 39 of the Act.
According to her, it is also a well-established principle that the standard of proof in civil suits, as it is on employment matters, is on the balance of probabilities.
In the matter at hand, the employee was terminated on the ground of sexual harassment.
The employee was accused of harassing four different women who were under his supervision.
The Counsel for the employee had strongly submitted that there was no evidence on record to prove on the balance of probabilities that indeed the employee was guilty of the misconduct in question.
