AIRTEL TANZANIA PLC V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO.21385 OF 2024 (Arising from an Award issued on 19/7/2024 by Hon. Kiwelu,Arbitrator, in Labour Dispute No. CMA/DSM/KIN/209/21/126/21 at Kinondoni) AIRTEL TANZANIA PLC ..……….…………………………………….…. APPLICANT VERSUS TEDDY CHAMSHAMA.. ...................………………………………... RESPONDENT JUDGMENT Date of Last Order: 16/10/2024 Date of Judgment: 28/11/2024 B. E. K. Mganga, J. Brief facts of this application are that, in 2005, Airtel Tanzania PLC, the herein applicant entered unspecified period contract of employment with Teddy Chamshama, the herein respondent. In the said unspecified period contract of employment, respondent was employed as Call Center Agent in Customer Care Service. At that time, applicant was known as Celtel. On 9th November 2017, respondent was promoted to the position of Corporate Sales Sector Manager by the herein applicant with three months probation period. On 31st July 2018, applicant confirmed respondent to the position of Corporate Sales Sector Manager. On 25th February 2021, applicant terminated employment of the respondent allegedly, due to Poor performance. Respondent was aggrieved with the 1 said termination, as a result, on 19th March 2021, she filed labour dispute No. CMA/DSM/KIN/209/21/126/21 before the Commission for Mediation and Arbitration henceforth CMA at Kinondoni complaining that applicant terminated her emloyment unfairly. In the referral form (CMA F1), on substantive fairness, respondent indicated that, termination was inappropriate because applicant did not give fully support. On fairness of procedure, she indicated that procedures were not followed as required by the law. Based on the foregoing, applicant indicated that she was claiming to be reinstated without loss of remuneration and be paid damages. Having heard evidence of the parties, on 19th July 2024, Hon. Kiwelu, L, Arbitrator, issued an award that, applicant had no valid reason to terminate employment of the respondent and further that, procedures for terminaition were not adhered to. With those findings, the arbitrator awarded respondent to be paid Fourty-Seven Million Three Hundred Ninety Thousand Eight Hundred Fourty-Three Tanzanian Shillings (TZS 47,390,843/=) only being 12 months salary compensation. Applicant was aggrieved with the said award hence this application for revision. Applicant filed the affidavit of David Lema, her Legal counsel and Company Secretary in support of the Notice of Application. In the said affidavit, applicant raised three issues namely:- 2 1. Whether, the Arbitrator was justified in finding that applicant had no valid and fair reason for terminating respondent’s employment. 2. Whether, the Arbitrator was justified in finding that fair procedures were notfollowed prior to termination of the respondent’s employment. 3. Whether, Arbitrator was justified in ordering payment of Twelve(12) months’ salaries compensation forunfair termination. Respondent opposed this application by filing both the Notice of Opposition and the Counter affidavit. When the application was called on for orders, the parties prayed the application be argued by way of written submissions, as a result, I issued an order to that effect. In compliance with the order of filling written submissions, applicant enjoyed the service of Ms. Samah Salah, learned advocate from IMMMA Advocates, while respondent enjoyed the service of Ms. Irene Mchau, learned advocate from Trustmark Attorneys. Arguing in support of the 1st issue, counsel for the applicant submitted that, in holding that applicant failed to adduce evidence to prove that respondent failed to meet performance standards in the years 2018/2019 and 2019 /2020, the arbitrator failed to note that there was neither a dispute on failure to meet the standards during the years in question nor evidence showing that respondent had ever disputed the failure to meet the standards. Counsel submitted further that, on 18th August 2020, respondent was notified of poor performance through exhibit D7 and she did not object to be put under performance 3 Improvement Program(PIP) because, through exhibit D24, she agreed and signed permance targets with her line manager. Counsel submitted further that, that proves absence of dispute of respondent’s underperfomance in 2018/19 and 2019/2020. Counsel added that, in her defence on failure to meet standard(exhibits D9 and D15) respondent stated that, it was due to network issues and Covid -19 pandemic. She went on that, in the CMA F1, respondent did not indicate that there was a dispute on underperformance in 2018/2019 and 2019/2020. She further submitted that, the said exhibits shows that, the dispute was on reasons and concluded that, findings by the arbitrator that proof was required to show that respondent underformed during the said years was erroneous. Counsel further submitted that, the arbitrator found that, performance policy dated 1st September 2015(exhibit D6) that applicant used to assess performance of the respondent was supposed to be reviewed in 2017 and that, applicant was supposed to present another policy or prove that there was agreement to use the said policy in assessing the respondent. Counsel submitted that, use of exhibit D6 was not disputed by the respondent and that, there was no evidence proving that exhibit D6 expired and was not applicable in 2018 to 2020. She added that, there is no law prohibiting use of a document that is subject 4 to review which has not been reviewed. She added that, the arbitrator’s findings was an error neither supported by parties pleadings nor evidence on record. Ms. Salah submitted further that, the arbitrator held that, applicant failed to show steps taken in correcting respondent’s poor performance in the first year(2018/2019) and that, it was wrong for the applicant to wait until the laspe of a year before putting respondent in performance improvement programe. Counsel submitted that, arbitrator did not explain the basis of those findings or the law that was violated by the applicant. Counsel added that, respondent did not challenge to be put in performance improvement programe after two years and that, the issue of none performance was not in dispute. Counsel also submitted that, commencement of performance improvement programe after two years shows that respondent was afforded an opportunity to improve before being put under performance improvement programe hence the findings by the arbitrator was erroneously reached. Counsel critized the arbitrator’s finding that respondent was not provided with performance assessment before commencement of performance improvement programe as it was not supported by evidence on record. Counsel submitted further that, performance improvement programe letter(exhibit D7) shows that respondent was 5 informed of the performance scores for the year 2018/2019 and 2019/2020. She added that, respondent never claimed lack of knowledge of assessment because she was aware. Counsel also faulted the arbitrator who held that, the standards used to assess performance of the resondent were not clear or understandable because applicant failed to present a policy showing the required percentages to be achieved. Counsel submitted that, evidence on record shows that scores were agreed between respondent and her line manager during performance improvement programe. She added that, exhibits D24, D25, D26, D27, D28, D29 and D30 that were signed by the respondent shows the agreed performance percentage targets. She went on that, there is nothing on record to show that the said percentages were ambiguos or confusing. She also submitted that, respondent neither claimed to have failed to understand nor disputed the agreed percenatges hence the findings by the arbitrator were erroneously reached. The arbitrator is further faulted for his findings that applicant was required to prove that the percentages achieved by the respondent indicated poor performance and that, according to respondent’s score during perfomance improvement programe, she was supposed to be removed from the said program as being erroneously arrived at. Counsel 6 submitted that, performance improvement programe forms (exhibits D24,D25, D26, D27, D28, D29 and D30) shows that, respondent and her line manager agreed on the applicable scores and that, respondent failed to met the agreed scores. Counsel submitted further that, the said exhibits proved the agreed standards and what respondent scored which was below the agreed standard/performance. Counsel for the applicant faulted the findings by the arbitrator who held that, one month was not enough to asses respondent’s performance and that, it was not explained if respondent’s performance was assessed by obtaining average performance of the three months of the performance improvement programe. Counsel also faulted the findings by the arbitrator who held that, respondent’s job description did not show standard of performance and that, respondent ought to have been removed from performance improvement programe following some improvement. On this aspect, counsel submitted that, respondent’s performance was assessed for five months from August 2020 to February 2021 and not one month as it was held by the arbitrator. Counsel submitted further that, there is no rule that requires performance standard be stated in job description and that, there is no evidence to prove that, the said absence prejudiced the respondent’s performance. Counsel added that, respondent was aware of the 7 standards and that, according to exhibits D6 and D10, respondent agreed that, her performance has to be measured according to the agreed percentages. She concluded that, failure by the respondent to meet the agreed score amounted to poor performance. Counsel for the applicant faulted the findings of the arbitrator who held that respondent was not given time to improve performance and that, applicant contravened the provisions of Rule 17(1)(e) of the Labour Institutions (Code of Good Practice )Rules, GN. No. 42 of 2007 because, respondent was assessed weekly during performance improvement programe instead of monthly. Counsel submitted that, those findings were erroneously reached because, in terms of rule 18(3) and (5) of GN. No.42 of 2007(supra), respondent being Corporate Sector Manager, hence senior employee, was not entitled the opportunity to improve her performance though she was given a total of five months to improve. She added that, there is no evidence by the respondent to prove that the said time was not sufficient. She went on that, according to exhibit D10, the weekly review was agreed by the parties to enable respondent to get timely feedback. Counsel for the applicant also submitted that, in the award, the arbitrator held that, respondent’s performance deteriorated after promotion to Corporate Sector Manager and that, she was not supposed 8 to be terminated rather, was supposed to be demoted back to her previous position prior to promotion. She also submitted that, arbitrator further held that, applicant was supposed to consider respondent’s previous performance and different awards attained. In faulting those findings, counsel for the applicant submitted that, there is no such requirement under the law or the policy (exhibit D6). She added that, previous performance and awards has nothing to do and are not connected to respondent’s performance as Corporate Sales Sector Manager. On procedural fairness, counsel for the applicant submitted that, arbitrator erred to hold that procedures were not followed because respondent was neither called to a disciplinary hearing nor given an opportunity to have a representative present. In faulting the arbitrator, counsel for the applicant submitted that, there is no requirement under the policy, to proceed with disciplinary hearing for termination based on poor performance because, the policy under clause 8.2.13 uses the word “may”. Counsel added that, disciplinary hearing is only required where poor performance constitutes a misconduct. Counsel went on that, there is no evidence to prove that the underperformance constituted a misconduct hence there was no requirement of disciplinary hearing. She also submitted that, procedure for termination for poor performance is 9 provided under Rule 17 and 18 of GN. No. 42 of 2007(supra). Counsel further submitted that, there is nothing on record showing that respondent was prejudiced due to absence of representation. Counsel went on that, what is required is substantial compliance depending on the circumstances to ensure that termination was not arbitrary and that, applicant substantially complied with the procedure. To cement on those submissions, counsel cited the case of Total Tanzania Ltd v. Faustine Bankama, Labour Revsion No. 938 of 2018(unreported). She further submitted that, in the application at hand, there is nothing on record showing that termination was arbitrary. She concluded that, the arbitrator erred to hold that termination was unfair procedurally. On the reliefs, counsel submitted that, termination was fair substantively and that, the arbitrator erred to award 12 months compensation. Counsel cited the provisions of section 40(1)( c) of the Employment and Labour Relations, Act[ Cap. 366 R.E. 2019] and the case of Felician Rutwaza v. World Vision Tanzania, Civil Appeal No.213 of 2019 to support her submissions that, less amount can be awarded. She further submitted that, Rule 32(5)( c) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, GN.No.67 of 2007 requires the arbitrator to consider ability of the employee to secure alternative work. She added that, such consideration was not made by 10 the arbitrator. Counsel concluded that, should the court find that termination was substantively fair but procedurally unfair, may reduce the award of compensation. Resisting the application, counsel for the respondent submitted that, applicant had a duty to prove, at the balance of probability that, termination was fair both substantively and procedurally. To suport those submissions, counsel cited the case of Tanzania Breweries Limited v. Leo Kobelo, Civil Appeal No. 147 of 2011, CAT(unreported) and Paulina Samson Ndawavya v. Theresia Thomas Madaha, Civil Appeal No. 45 of 2017, CAT(unreported). She added that, in proving that applicant had a valid reason to terminate respondent for poor peformance, in terms of rule 17 of GN. No. 42 of 2007(supra), applicant was supposed to prove that, (i) respondent failed to meet the standard, (ii) respondent was aware of the satandard, (iii) the said performance standard was reasonable, (iv) reasons as why respondent failed to meet standards and (v) that, respondent was afforded a fair opportunity to meet the required standard. Counsel further cited the case of Stanbic Bank(T) Limited v. Sophia Majamba, Civil Appeal No. 31 of 2020, CAT(unreported) to the position that, performance standards need not only be fair but sufficiently serious to justify termination, namely that, termination was the only fair sanction to be taken and that, there was 11 no any other option such as moving the employee to another position. Relying on Kobelo’s case (supra) counsel for the respondent submitted further that, applicant was required to investigate reasons for poor performance and give respondent reasonable time to improve. Counnsel for the respondent further cited the case of Stanbic Tanzania v. Hellen Makanza, Labour Revision No. 90 of 2023, HC(unreported) to the position that, for termination based on poor performance to be a fair reason for termination, employer must comply with the provisions of Rule 17(1)(a) to (e) of GN. No. 42 of 2007(supra) and that, the said conditions are cumulative. Counsel further submitted that, employer must prove that the employee did not meet the known performance standard; that, the said failure is serious; employer must have given the employee training or support, time and counselling to improve; and that, the employer must demonstrate that failure to meet the performance standard was due to inability of the employee and not due to other factsors outside the employee control. Counsel submitted further that, the policy (exhibit D6) was applicable to all employees including the respondent and further that, clause 8.2 of the said exhibit D6 provides performance improvement plan(PIP) forms that the employee must agree with the line manager. She also submitted that, claused 8.2.8 of exhibit D6 requires an 12 employee to be placed under PIP if his/her performance proved to be unsatisfactory at the end of the year performance assessment. She added that, clause 8.2.10 of exhibit D6 provides that, performance must be documented. She went on that, clause 8.2.12 of exhibit D6 provides that, where partial improvement is shown, extension is given and if no significant progress is achieved, disciplinary hearing may be conducted under clause 8.2.13. Counsel further submitted that, applicant was supposed to prove not only that performance assessment was conducted but also how it was done. She also submitted that, agreed targets and scores for the period of 2018 /2019 and 2019/2020 were not tendered in evidence. Counsel for the respondent submmitted that, reasons for respondent’s failure to meet target was Covid 19 pandemic as indicated in exhibit D9, applicant’s poor performance as proved by TCRA fine (exhibit A-13(a), (b), applicant’s email confirming the adverse effect of Covid 19 pandemic to her business(exhibit A-14) and various complaints from customers (exhibit A-15(a)- (d). Counsel strongly submitted that, respondent’s failure to perform was not only caused by her inability but was couped with other factors beyond her control. Counsel submitted that, the arbitrator considered the policy (exhibit D6) as valid and correctly held that, the said exhibit does not 13 provide the score. She also submitted that, exhibits D24, 25, 26, 27, 28, 29 and 30 relied on by the applicant does not prove that scores of 40%, 50%, 80% or 90% represents the poorest to the highest performance. She added that, DW1 and DW2 contradicted in their evidence in relation to the scores. She went on that, DW1 admitted in her evidence that, documents proving status of score were not tendered in evidence. She therefore, relying on the case of Exim Bank Tanzania Limited v. Kija Ndegeiswa, Labour Revsion No. 402 of 2016, HC(unreported), prayed the court to draw adverse inference against the applicant for failure to tender those documents. She further submitted that, applicant failed to prove by evidence that respondent obtained poor score hence violation of rule 17(1)(c) of GN. No. 42 of 2007(supra). Counsel also submitted that, respondent was placed under PIP for two months (exhibit D8) and during extension(exhibit D10), review was done after every two weeks instead of monthly as provided under clause 8.2.10 of exhibit D6. She also submitted that, there was no approval by the MD/ CEO in extension of PIP hence violation of calsue 8.2.12 of exhibit D6 hence extension of PIP was invalid. She went on that, respondent was not afforded sufficient training to improve her performance because exhibits D11 and D12 are not training. 14 Counsel further submitted that, termination was not the only option available because, applicant was bound to reconsider moving respondent to another position as she previously performed well as evidenced by exhibits A4(a)-(h), A5, A6, A7, A8, A9, A10, A11 and A12. To bolster that submisions, counsel cited Kobelo’s case (supra). On procedural fairness, counsel submitted that, for termination to be fair, employer must comply with the provisions of rule 18(1) to (9) of GN. No. 42 of 2007(supra). She also submitted that, applicant terminated respondent without affording her right to be heard hence violation of rule 6(5) of GN. No. 42 of 2007(supra). She cited Stanbic’s case(supra) to support her submissions that, (i) employer must investigate reasons for poor work performance and how it was caused by the employee, (ii) give appropriate guidence, instruction, training if necessary, (iii) give an employee reasonable time to improve depending on the nature of the job, extent of poor performance, status of the employee, length of service of the employee’s past performance record save for employees in managerial or senior position or where the degree of professional skill is high that potential smallest departure from standard are so serious even on isolated instance, (iv) warn the employee for poor performance that employment. May be terminated if there is no improvement, (v) call a meeting with an employee and allow 15 him to have a fellow employee or trade union represenative to provide assistance, (vi) a the meeting, the employer must outline reasons for action to be taken and allow the employee and or the representative to make represenation, (vii) employer must consider representation made by the employee and give reasons if not convinced with the representation and (viii) must communicate the outcome to the employee in writing with brief reasons. On relief, counsel for the respondent submited that, applicant failed to prove validity of reason hence cases cited by applicant are distinguishable. She further submitted that, there is no explaination by the applicant as to why, the 12 months award made on discretion of the arbitrator should be enterferred with. In rejoinder submissions, counsel for the applicant submitted that, in CMA F1, respondent was not challenging validity of reason rather, that she was not supported by the applicant. Counsel further submitted that, during PIP, respondent did not rely on any other reason for under performance and that, reasons that were advanced later were afterthougt. Counsel added that, despite that, applicant discussed with the respondent and allowed her time to improve. Counsel further submitted that, no disciplinary measure were taken against the respondent because it was a poor performance matter. 16 Counsel further submitted that, on substantive fairness, in terms of rule 16(1), 17(1)(a) to ( e) and (2) of GN. No. 42 of 2007(supra), applicant was only required to prove that, (i) respondent has failed to meet the performance standards, (ii) respondent was aware of the performance standards, (iii) performance standard was reasonable, (iv) reasons why respondent failed to meet performance standards, and (v) avail respondent with a fair opportunity to meet standards. Counsel also submitted that, there was no contradiction between evidence of DW1 and DW2 and that, there was no need of tendering any policy to show the meaning of the agreed targets. On absence of MD/CEO approval of extension of PIP, counsel submitted that, it is a new issue that has been raised only at this revision stage. On failure to provide training to the respondent, counsel submitted that, the same is not supported by the law because respondent, being in managerial position, was not entitled. She added that, no evidence was adduced by the respondent at CMA showing that the period for training was insufficient. On failure to restore respondent to her previous position, counsel submitted that, Kobelo’s case (supra) did not set precedent that, in each poor performance, the employee must be restored to his/ her previous position. 17 Counsel further submitted that, respondent was afforded right to be heard and that, since termination was due to poor performance and not a misconduct, applicant had no obligation to hold disciplinary hearing. On why the award of 12 months salary should be enterfrered with by this court, counsel cited the case of Pangea Mineralsd Limited v. Gwandu Majali, Civil Appeal No.504 of 2020, CAT(unreported) because there was no justification. I have examined evidence of the parties in the CMA record and considered rival submissions made on behalf of the parties in this application. It is undisputed by the parties that, respondent was terminated allegedly due to poor performance. The issue to be answered is whether, the said termination was fair or not, and the reliefs the parties are entitled to. I should point out, albeit briefly that, in terms of sections 37(1) and (2) and 39 both of the Employment and Labour Relations Act[Cap. 366 R.E. 2019], for termination to be fair, the employer must prove that there was valid reason and that fair procedures were adhered to. In addition to the foregoing, in terms of Rule 17(1) of the Employment and Labour Relations (Code of Good Practice) Rules, GN. No. 42 of 2007, the employer must have fair reasons and in terms of rule 18(1), (2), (3), 18 (4),(5),(6),(7),(8),(9) of GN. No. 42 of 2007(supra), employer must adhere to fair procedures of termination. In fact, rule 16 and 17(1) of GN. No. 42 of 2007(supra), provides guidence as what should be considered in deciding whether termination for poor work performance is fair substantively, that is to say, whether the employer had a fair reason or not. The said rule 16 and 17(1)(a),(b),(c),(d) and ( e) provides:- “16(1) It is important in determining the fairness of termination for poor performance, that the performance standard is not only reasonable but is also known to the employees. 17.-(1) Any employer, arbitrator or judge who determines whether a termination for poor work performance is fair shall consider- (a) whether or not the employee failed to meet a performance standard; (b) whether the employee was aware, or could reasonably be expected to have been aware, of the required performance standard; (c) whether the performance standards are reasonable; (d) the reasons why the employee failed to meet the standard; (e) whether the employee was afforded a fair opportunity to meet the performance standard.” [Emphasis is mine]. In the application at hand, respondent was terminated allegedly due to poor work performance. In the case of Tanzania Breweries Limited vs Leo Kobelo (Civil Appeal No. 147 OF 2021) [2024] TZCA 57 (19 February 2024), the Court of Appeal had an advantage of discussing fairness of termination of employment based on poor 19 performance. The conditions set out in Kobelo’s case (supra) are (i) the employee failed to meet the standard, (ii) the employee was aware of the satandard, (iii) the said performance standard was reasonable, (iv) reasons as why respondent failed to meet standards must be proved and (v) that, employee was afforded a fair opportunity to meet the required standard. The same position was held in the case of Bruce E. Massawe vs Bank of Africa (T) Limited (Civil Appeal No. 366 of 2021) [2024] TZCA 938 (25 September 2024). I will therefore be guided by the said cases and others cited on behalf of the respondent in this application. The issue is whether, applicant proved by evidence that she had fair reason and followed fair procedures of termiation of respondent’s employment due to poor wrk performance. In the bid to prove that the she had fair reason and followed fair procedures to terminate the respondent for poor work performance, applicant called two witnesses namely Pamela Dick Mwandetele(DW1) and Aman Amon Msuya(DW2). In her evidence in chief, DW1 testified inter-alia that, respondent was employed in 2005 as call center agent in customer care service but on 9th November 2017 she was appointed as Corporate Sales Sector Manager with three months probation period. That, after performance review, on 31st July 2018 respondent was 20 confirmed to the position of Corporate Sales Sector Manager. In her evidence, DW1 also stated that, in 2019 respondent’s performance was reviewed as a result, she was rated 4 meaning that, her performance was moderate and that, rate for poor performance is 5. In her own words, DW1 was recorded stating:- “ Teddy mwaka 2019 alikuwa reviewed na kupata performance rate ya 4(nne). Kuna policy ya kampuni ambayo ina guide performance rating- 1= outstanding performance, 2= strong performance, 3= ni Good performance, 4 ni moderate performance na 5 ni poor performance. Mwaka huo 2019 alikuwa rated 4 akaendelea na majukumu yake ya kazi.” It is my view that, the 2019 performance that was used by the applicant to terminate employment of the respondent has nothing to do with respondent’s poor performance. I am of that view because, respondent was rated 4 which mean moderate performance. In other words, respondent was not rated 5 which means poor performance. It was further evidence of DW1 that, after the said performance review, respondent was put into performance improvement plan(PIP). She also stated that, the last performance review was conducted in November 2020 but respondent didn’t meet the targets, as a result, on 2nd December 2020, she was served with final warning (exhibit D8). In her entire evidence, DW1 did not state that either in 2020 or 2021 respondent was rated 5 which means poor performance. 21 While under cross examination, DW1 admitted that performance review were not tendered as evidence of the applicant. In her own words DW1 was recorded stating inter-alia that:- “Swali: umesema haujaleta annual performance review ya Teddy ya 2018, inayoishia April 2018. Jibu: ndiyo sijaleta. Swali: Umeleta ordinary review alifanyiwa Teddy kama wanavyofanyia wafanyakazi wenzake. Haujaleta AnnualReview ya Teddy hata ya mwaka mmoja. Jibu : Sijaleta. Swali: Hizo ambazo hujaleta zinazoishia April 2018 Teddy ali perform vibaya” Jibu: Tume:- Shahidi amenyamaza. Swali: Nakuuliza kipindi kinachoishia April 2018 kuna aliyofanya vibaya kwenye hizo ulizoacha ofisini. Jibu: Siwezi kukumbuka, alifanyiwa na bosi wake. … Swali: haujawahi kutuletea hapa any performance review yoyote after confirmation. Jibu: Sijaleta, nimeleta results zikihitajika nitaleta. Annual review zikihitajika nitaleta. Annual performance review zilizofanywa na Nick, line manager wa Teddy kwa mwaka 2019 na 2020 zipo ofisni. Nick alijoin 2020. Swali: Review kabla ya kuingizwa kwenye PIP ipo wapi? Jibu: haipo hapa mahakamani ipo on line … Airtel walilipishwa fine kwa poor quality(network) shida yanetwork. Teddy hausiki na quality ya network. Hakuna mteja aliyelalamikia balance Kwenye PIP hakuna rating , rating ipo kwenye annual review. 22 Swali: Kwenye exhibit D7 Teddy aliwekwa kwenye Performance Improvement Plan ya miezi mitatu, je aliperform vipi? Jibu: haku “perform vizuri” kwenye required standards zilizowekwa. Swali: Hizo standards ni zipi” Jibu: Sifahamu, Boss wake atakuja kujibu nachojua aliingia kwenye PIP.” While under re-examination, DW1 was recorded stating:- “Teddy alikuwa best performer kipindi akiwa katika position ya KEY ACCOUNT MANAGER lakini kuanzia Nove 2017 alipopata nafasi ya Corporate sector manager hakuwahi kuwa best performer. Document inayoelezea Annual review haikuletwa kwani malalamiko ya Teddy yalikuwa kwenye PIP ambapo kuna target zimewekwa na hizo hazitegemei rating za reviews. Target zinakuwa set kati ya line manager na employee mwenyewe. Sijaleta review za Teddy kwa miaka iliyopelekea PIP kwani Teddy hakulalamika kuhusu hizo review, alikubali kuwa ni kweli ali under perform. Niki Shija line manager aliajiriwa baada ya Teddy.” (Emphasis is mine). On the other hand, Aman Amon Msuya(DW2) testified that he joined the applicant and find respondent has already been terminated. He stated that his evidence is based on what he found in system. He also stated that, on 17th August 2020, respondent and her line manager agreed that she should improve performance. I should point out that, DW2 did not witness the said agreement bwetween respondent and her liner manager agreeing she should improve performance. Therefore, evidence of DW2 in that aspect has no weight. 23 On her side, Teddy Senga Chamshama(PW1), gave evidence showing her outstanding performance and tendered several documents relating to her performance prior to be appointed as Corporate Sales Sector Manager. In her evidence, Respondent(PW1) denied the allegation of poor performance stating that she was forced by Nick Shija Kuzaka, her line manager to sign the scores. In addition, respondent stated matters such as Covid 19 pandemic, network failure etc that were a barrier to score the targets that were set by her line manager Mr. Nick Shija Kazuka. I have carefully examined evidence of the parties and I am of the considered view that, applicant did not prove respondent’s poor performance justifying termination of her employment. Evidence of both DW1 and DW2 did not prove that in performance review that was done, respondent was rated 5 meaning that she performed poorly. The quoted evidence is clear that, respondent’s performance review for the period applicant alleged that respondent under performed, were not tendered as evidence as it was admitted by DW1. In my view, it is unsafe to conclude as counsel for the applicant wants the court to do, that, respondent under performed without tendering performance review and the rates respondent scored. As I have pointed hereinabove, neither DW1 nor DW2 testified that respondent was rated 5 which is poor 24 performance. To the contrary, DW1 testified that, respondent was rated 4 which is moderate performance. In my view, moderate peformance cannot, at any rate, be regarded as poor performance justifying termination for poor performance. The above quoted rates from 1 to 5 were set by the applicant not for cosmetic purposes. Moderate performance(rate 4), in my view, should carry its purpose and meaning and should not be equated with poor peformance(rate 5). It is clear from evidence of both DW1 and DW2, the only witnesses who testified on behalf of the applicant, who stated that, respondent was rated by Nick Shija Kazuka, her line manager. The said line manager, who, it is alleged, set targets to the respondent and put respondent to PIP and was the initiator of termination of the respondent through the targets he set, was not called as a witness and no reasons were given by the applicant. Since the alleged targets were set by the said Nick Shija Kazuka, who was not called as a witness, neither DW1 nor DW2 were aware of the exactly target the said line manager set to be scored by the respondent and agreement thereof. In fact, DW1 so admitted while under cross examination. In my view, applicant opted not to call the said line manager fearing that he will give adverse evidence against her. The said line manager was a key witness who could have unearthed many issues that were discussed between himself and the 25 respondent including but not limited to allegations that he forced respondent to sign those target scores. Failure to call the said line manager as a witness entitles this court to draw adverse inference against the applicant. There is a litany of case laws that, the court can draw adverse inference when the party to the case fails to call a key witness or fails to disclose important information. See the case of Lazaro Kalonga vs Republic (Criminal Appeal 348 of 2008) [2012] TZCA 201 (7 December 2012), Bashiri s/o John vs Republic (Criminal Appeal 486 of 2016) [2019] TZCA 89 (16 May 2019), City Coffee Ltd vs Registered Trustee of Ilolo Coffee Group (Civil Appeal No. 94 of 2018) [2019] TZCA 645 (1 November 2019) and Hamza Byarushengo vs Fulgencia Manya & 4 Others (Civil Appeal 246 of 2018) [2022] TZCA 833 (12 April 2022). My afore decision of drawing adverse inference against the applicant is fortified by the performance management policy of the applicant (exhibit D6) which shows the role of the line manager in performace assessment of the employee. Exhibit D6 reads in part:- “8.1.1 where an employee’s performance is not meeting the expected standards, the line manager must first attempt to establish the reason for the performance problem. 8.1.2 The line manager should counsel the employee as may be required; and ensure that the employee has had sufficient guidence, instruction and training to enable him/her to perform satisfactorily on the role. 26 8.2.1 Where adequate guidence , instruction, training and counselling have been provided, and the employee’s performance continues to be unsatisfactory, a formal improvement intervention, through a documented, time-bound Performance Improved Plan (PIP) should be implemented. 8.2.2 An employee may be placed on PIP for a specific period if it is recognized that serious performance deficiencies exists but are within the employee’s ability and desire to correct. 8.2.3 The following categories of employees may be placed on a PIP: 8.2.3.1 An employee whose performance has deteriorated at any time during the financial year to an extent of being in serious jeopardy of not meeting the expectated standards/ objectives. 8.2.3.2 Employees whose performance has been rated unsatisfactory at the year -end performance calibration exercise. 8.2.4 This forma approach to improving the employee’s performance shall involve the Human Resources Department 8.2.5 The Line manager and the employee should bear in mind the objective of implementing the forma PIP which is to improve performance. This is the spirit in which the process should be initiated and managed. … 8.2.7 The agreed deliverables and support required shall be documented on a standard PIP form (see appendix) and signed off by the employee, line manager, Function Head and HR Director before the effective date of the PIP. 8.2.13 If no significant progress has been achieved at the end of the 3rd month i.e. initial or extended PIP period, a disciplinary hearing may be constituted leading to a final outcome up to and including employment termination. 8.2.14 The final decision of employment termination shall be in line with the separation policy. 9.3 PERFORMANCE RATING CALIBRATION. 27 9.3.1 Calibration is a process which involves multipl managers comparing performance of the employee with simialr roles, ensuring that an objective overall rating is assigned to each employee in the context of the overall function/business and in comparison to peers (functional or roe-specific peers) 9.3.2 That Calibration committee typically consists of the functional/executive leardeship team with an HR representative faciliating the session. 9.3.3 It is the expectation that employee’s performance ratings will have a correlation with the overall business performance. A calibration distribution is thus provides as a guide for aligning each employee’s final rating. Rating Rating 1 outstanding performance- exceeds most established performance expection. Rating 2 strong performance – meets all, and significantlly exceeds some of the performance expectations. Rating 3 good performance- contributes effectively and meets all established performance expectations Rating 4 moderate performance – does not meet some established performance expectation Rating 5 unsatisfactory- does not meet most of established performance.” (Emphasis is mine). As pointed hereinabove, exhibit D6 quoted shortly a while, was supposed to be implemented by Nick Shija Kazuka, the line manager of the respondent who did not testify. It is clear fro evidence of the aplicant that neither DW1 nor DW2 testified that respondent was rated 5 that is to say, unsatisfactory. 28 Clause 8.2.14 of exhibit D6 quoted above shows that termination based on poor performance shall be in line with separation policy. I should point out that, separation policy referred to in exhibit D6 quoted hereinabove was not tendered to prove that termination of the respondent was in line with the said separation policy. It was applicant’s duty but she failed. It is clear from evidence of the parties that, targets were set by Nick Shija Kazuka. The said targets were not tendered as correctly submitted by counsel for the respondent and as it was testified by DW1 during cross examination. It is my view that, failure by applicant to tender the said targets denied both this court and the Arbitrator an opportunity to assess whether, the said targets were reasonable or not. Reasons for failure to tender the said targets are undisclosed hence an invitation of darwing adverse inference against the applicant as I hereby do. It was admitted by DW1 while under cross examination as quoted herein above that she was not aware of the standard used to assess performance of the respondent. DW1 also admitted that the person who knows those standards is the respondent’s line mager who, as I have pointed out hereinabove, was not called by applicant as her witness. In other words, DW1 admitted that, the alleged standars were not known 29 to all employees and did not apply in uniformity. In other words, the alleged standard did not meet the reasonability criteria under rule 16 and 17 of GN. No. 42 of 2007(supra). In my view, any standard that is not know to employees cannot be regraded to be reasonable. More so, termination of employment of the employee based on unreasonable standard is unfair for want of reason and is in violation of rule 16 and 17 of GN. No. 42 of 2007. I am of that view because, performace standard must be applied consitently to all employees and not a matter of ageement beween one employee and his /her line manager as it happened in the application at hand. In the case of Stanbic Bank Tanzania Limited vs Hellen Makanza (Revision Application No. 90 of 2023) [2023] TZHCLD 1386 (11 August 2023) this Court held that performance standard must be applied consistently to all employees. I should add that, that is the logic behind requiring the standard to be known to employees as per rule 16 and 17 of GN. No. 42 of 2007(supra). The intention of applying the performance standards to all employees is to avoid selective and vindication. It is undisputed by the parties that, respondent gave reasons for failure to meet the targets that were set by the said Nick Shija Kazuka, the line manager who, as pointed out herein above, was not called by the applicant as her witness. Those reasons are in exhibit in the 30 response to the final warning dated 2nd December 2020(exhibit D8). In fact, exhibit D8 being evidence of the applicant supports evidence of the respondent and justify that applicant had no fair reason for termination. In exhibit D8 respondent stated inter-alia that:- “…Due to Global Pandemic uncertainty challenges majority of companies are still working fromhome hence the decision to our proposals delays, companies were opting to remain with current providers due to fear of delays on turnaround time of service etc. Network complaints to some of the clients which we shared proposals they are on hold…Other companies are still working from home hence it causes delay in decision making. Government sector is to delays on tender evaluation because of its Government manadate hence wewe have involved our board Chairman for more support (PSSF, NHC, NHIF, NIDA). Global deals are lost due tocompetitor attack at Group level hennce decision is being made direct(TBL, TWIGA CEMENT, First national bank (FNB, Uniliver). Other deals are waiting for Group Support due to price factors (SHA, GADA WORLD, TRA)…” The quoted reasons advanced by the respondent were not rebutted by evidence of the applicant. Some reasons also in favour of the respondent were given out in minutes of performance meeting dated 11th December 2020 (exhibit D10) that was tendered on behalf of the applicant hence it is evidence of the applicant. That evidence corroborated evudence of the respondent on reasons for failure to meet some of the targets. In fact, evidence shows that, due to network failuer, applicant was fined by the Tanzania Communication Regulatory 31 Authority(TCRA) and that, some clients wrote demand letters and others serving applicant with the notice to terminate relationship. Selective as it was, no evidence was adduced on behalf of the applicant showing that, employees who were dealing with network were also terminated due to poor work perfornce. In my view, applicant was selective in terminating respondent based on poor performance. I therefore conclude that termination was unfair for want of reason. On procedural fairness, I also hold that, applicant was supposed to comply with the provisions of rule 18(1),(2), (3), (4), (5), (6) ,(7), (8) and (9) of GN. No. 42 of 2007(supra) but she did not. There is no dispute that, prior to be appointed as Corporate Sales Sector Manager, performance of the respondent was outstanding and that she was given several awards/rewards. It was testified by DW1 that, after promotion to the position of corporate Sales Sector Manager, respondent ceased to be the best performer. In terms of rule 18(1) of GN. No. 42 of 2007(supra), applicant was supposed to investigate as to why respondent’s performance droped after being promoted to the said position. Unfortunately that was not done, instead, sapplicant rushed to terminate employment of the respondent allegedly that the latter underperformed. The said investigation would have revealed whether, the alleged poor performance was caused by other factors including fellow employees on 32 the same rank or subordinate to her. In my view, the said investigation would have given reasons for the alleged poor performance as Corporate Sales Sector Manager though she was the best performer in her previous position. The investigation would have helped applicant to determine the cause of poor performance and eliminate the said cause if it was associated with applicant’s working environment including co- workers be it those under herself or senior officers who planed to make her a failure for reasons best known to them. I am of that view because, sometimes office mates be it subordinate or of the same rank, for reasons best known to them, may plan and make sure a person becomes a failure. That can be done just to ensure that, the person is removed from office etc. In my view, the drafters of rule 18(1) of GN. No. 42 of 2007(supra) had that in mind and were well aware of human behaviour, which is why, they drafted the said rule requiring the employer to investigate the cause of poor performance. In deed, fellow employees may have an interior move applicable to footballers with a saying which goes that, “if a football team performs poorly, it is the coach and not the prayers who will be fired hence another saying that, coaches are hired to be fired”. In implementing that move, sometimes footballers, opt to perform poorly so that the team loses in some matchs and ensure that the coach is sacked and a new coach employed. Be as 33 it may, the coach must know his team and what they plan prior to be sacked otherwise, he or she may be a victim of conspiracy by his team. In my view, the saying that coaches are hired to be fired or bosses are appointed to be fired, cannot be left to extend in employment relationship which is why, there is a requirement of conducting investigation to know the cause of poor performance. In the application at hand, the said investigation would have came up with findings as whether, it was a foul play by respondent’s subordinate or, employees in same rank in different departments, or it was associated by personal problems of the respondent and provide solutions on how to improve performance including elimination of the cause of poor performance or failuer to meet targets. In addition to that, applicant was supposed to investigate whether, what was stated by the respondent in her response were the real cause or not. Unfortunately, there is no evidence showing that applicant eliminated the causes that respondent indicated were the cause of her failure to meet the targets. In my view, to terminate respondent in those circumstances without eliminating matters complained of, is unjustifiable. It is my considere opinion that considering circumstances of this application especially previous outstanding performance of the respondent, termination was not the only remedy available. 34 It was submitted on behalf of the applicant that, disciplinary hearing is only required where poor performance constitutes a misconduct. It was also submitted on behalf of the applicant that, there is no evidence to prove that the underperformance constituted a misconduct hence there was no requirement of disciplinary hearing. With due respect to counsel for the applicant, if poor performance amounted not to a misconduct, then, why was respondent terminated. The issue that may be raised is, can an employee be terminated for something which is not a misconduct?. In my view, the answer to that issue is in the negative. In my view, submissions by counsel for the applicant that there was no ned of disciplinary hearing, is on itself, contrary to clause 8.2.13 of exhibit D6 that was tendered on behalf of the applicant. The said clause clearly provides that, a disciplinary hearing may be constituted leading to a final outcome up to and including employment termination. In short, exhibit D6 requires a disciplinary hearing be conducted prior to termination based on poor performance. In the application at hand, no disciplinary hearing was conducted. In other words, applicant violated her policy she used to bank up termination of the respondent. Counsel for the applicant relied on the word “may” used in clause 8.2.13 of exhibit D6 arguing that, it was not mandatory. In other words, 35 applicant opted to rely on the said exhibit D6 in disregard of the law. With due respect, exhibit D6 being applicant’s policy, cannot supercede Rule 18(6), (7), (8) and (9) of GN. 42 of 2007(supra) that requires presence of fellow employee or representative when considering termination of an employee for poor performance. In addition to that, the said policy (exhibit D6) does not supercede Guideline 6(2) of the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and procedures, that is a schedule to GN. 42 of 2007(supra). Applicant was under obligation to comply with those rules and Guidelines but she did not. I therefore, conclude that termination was also unfair procedurally. It was submitted by counsel for the applicant that, the arbitrator erred to award respondent to be paid 12 months’ salaries as compensation for unfair termination. Counsel invited the court to award respondent less than 12 months compensation. Counsel cited Felician Rutwaza vs World Vision Tanzania (Civil Appeal No. 213 of 2019) [2021] TZCA 2 (2 February 2021) to that position. With due respect to counsel for the applicant, in terms of section 40(1)(c) of Cap. 366 R.E. 2019(supra), the lowest amount compensatable when termination is both substantively and procedurally is 12 months salaries. In Rutwaza’s case (supra), termination was fair substantively but unfair procedurally unlike in the application at hand where the arbitrator found 36 correctly as I have held that termination was unfair both substantively and procedurally. I therefore hold that, the arbitrator was justified to award respondent the said 12 months salaries compensation. For all what I have discussed hereinabove, I uphold the CMA award and dismiss the application for want of merit. Dated at Dar es Salaam on this 28th November 2024. B. E. K. Mganga JUDGE Judgment delivered on this 28th November 2024 in Chambers in the presence of Fatuma Mgunya, Advocate for the Applicant and Irene Mchau, Advocate for the Respondent. B. E. K. Mganga JUDGE A 37