MTENGA v. UNIVERSITY OF DAR ES SALAAM (1967) HCD 13

(Civ. App. 53-d-71; E.A.C.A. 8/2/72)

 Law, Mustafa, JJ. A and Duffus, P.

The appellant was employed as an Administrative Assistant by the University of Dar es Salaam, by a letter dated 4^th June, 1968, which stated that the appointment was probationary and subject to the relevant Regulations of the College Council. The principal terms ad conditions were summarized on the reverse side. Paragraph (iv) provided: “(iv) You will be on probation for a period of one year in the first instance at the end of which period, subject to your work and conduct being satisfactory and to your passing any requisite examinations, you will be eligible for confirmation in your appointment.” In January, 1969, the appellant was granted an increment, not withstanding the provisions of regulation 15(c) (1) Of the relevant Regulations, which lays down that an employee will not be entitled to an increment until the date of his confirmation? On the 3^rd June, 1969, the appellant’s probationary period as defined in his letter of appointment expired without the appellant having received notice of any extension of his period of probation, as required by regulation 15 (a) of the relevant Regulations. On the 15^th August, 1969, the appellant received from the Principal of the University a letter expressing dissatisfaction with his work and purporting to extend his probationary period until 31^st December, 1969. In January, 1970, the appellant received a further increment. On 2^nd May, 1970, the Principal purported to terminate the appellant’s probationary appointment summarily, with payment of one month’s salary in lieu of notice, in accordance with regulation 16 (a) of the relevant Regulations, which empowers the Principal to terminate a probationary appointment on one month’s notice. The appellant, dissatisfied with his dismissal, complained to the Commissioner of Labour Tribunal (here in after referred to as the Tribunal) as being “an apprehended Trade Dispute” within the meaning of the Permanent Labour tribunal Act, 1967. The Tribunal’s main recommendations were that the appellant should be considered as having been confirmed in his appointment, and given three months salary in lieu of notice, as is appropriate in the case of the dismissals of a confirmed officer. The Tribunal did not recommend the appellant’s re-instatement. The respondent University accepted the Tribunal’s recommendations, and paid the appellant a further two months salary, which he accepted. Notwithstanding this, the appellant then sued the respondent University, claiming a declaration that the purported termination of his appointment was invalid, re-instatement into his former position, and alternatively unspecified damages for wrongful dismissal. The University by its defense pleaded, firstly, that the court had no jurisdiction to entertain the suit as the matters in dispute had been lawfully disposed of by the Tribunal; secondly it denied that the appellant had been confirmed in his appointment; and thirdly, it claimed that the appellant was lawfully dismissed as a probationary employee. The trial judge held that his jurisdiction to entertain the suit was not excluded by the proceedings before the Tribunal, and this holding has not been challenged on appeal. He dismissed the suit on the ground that the appellant had filed to discharge the onus of proving that he had ever been confirmed in his appointment.

HELD:

(1) After careful consideration, and without in any way wishing to condone the dilator and unbusiness-like methods adopted by the respondent University in this case, and its disregard of its own Regulations, I am of the opinion, with respect, that the learned judge came to a correct decision in this case, and that his judgment should be affirmed As to the increments, the Regulations merely say that an Employee on probation shall not be entitled to increments. This does not prevent increments from being paid to a probationer, whether b mistake or intentionally, and such payment cannot in my view be construed as equivalent to confirmation.” 

(2) “As to the continued employment of the appellant after the expiry of his probationary period, it is clear from paragraph (iv) of the terms and conditions endorsed on the appellant’s letter of appointment, to which I have already made reference, that such expiry only renders the employee eligible for confirmation, and does not involve automatic confirmation. The appellant in this case has established that he was eligible for confirmation, but has failed o establish that he was in fact confirmed in his appointment.” 

(3) Appeal dismissed.