CIVIL APPEAL NO 83 OF 2021 ANNA REUBEN MTAITA VS STANBIC BANK TANZANIA LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MKUYE. J.A.. GALEBA. 3.A.. And MGEYEKWA. J.A.^ t CIVIL APPEAL NO. 83 OF 2021 ANNA REUBEN MTAITA.................................................................... APPELLANT VERSUS STANBIC BANK TANZANIA LIMITED .......................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania Labour Division at Dar es Salaam) (Wambura. J.1 ) dated the 7th day of August, 2020 in Labour Revision No. 665 of 2019 JUDGMENT OF THE COURT 8th July, & 6th August, 2024 GALEBA. J.A.: Anna Reuben Mtaita, the appellant in this appeal was employed by Stanbic Bank Tanzania Limited, the respondent in 2003, but was summarily dismissed from employment on 29th March, 2006. She contested the dismissal before the Conciliation Board (the Board), and on 29th November, 2007, the Board agreed with her and ordered the respondent to reinstate the appellant in her previous employment. The respondent bank was not satisfied by that decision of the Board, so much so that she challenged it before the Minister responsible for Labour Matters (the Minister). That respondent's attempt was unsuccessful, because on 25th August, 2008, the Minister dismissed the respondent's appeal, and confirmed the decision of the Board; ordering the respondent to reinstate the appellant in her former employment. Consequent to the Minister's order, on 19th November, 2008 the appellant wrote a letter to the respondent asking the latter to comply with the Minister's order. The respondent responded to her on 24th November, 2008. The substance of that response which is relevant to this appeal is as follows: "RE: Reinstatement to Your Employment ...in your fetter you indicated your wiiiingness to report back to work and you were advised that the Bank is complying with the Minister's order and thus you have been reinstated as o f l9 h November, 2008\ that is the date you reported to the Bank. Following your reinstatement; you are required to start reporting to the bank effectively from 1st December, 2008. Upon your arrival, you are required to report to the Head, Human Resource who will provide you with further details...” On 1st December, 2008, the respondent wrote another letter to the appellant, and the material portion of it to this appeal, is the following: "RE: Employment Status with the Bank Reference is made to the discussion between you and management on 1st December, 2008 on your employment 2 status with the Bank following reinstatement decision by the Minister for Labour. The discussion was centered around the fact that your position with the bank could not remain open for the three years you remained outside the bank. Therefore, the following two alternatives were discussed: - To be placed in alternative position on the same terms and conditions. - To discuss the possibility o f retrenchment and the likely retrenchment package. While we have not reached agreement yet on the above issues, you are expected to continue reporting to the bank during working days as you remain re in s ta te d [Emphasis added] Before an agreement of parties on which option to implement, on 10th December, 2008, the appellant received yet another letter from the respondent. For purposes of firsthand appreciation, we take liberty to quote the operative part of the letter. It says: "RE: Employment Status with the Bank Reference is made to our letters dated 24h November, 2008 and 1st December [2008] consecutively, where you were required to attend to work with immediate effect from 1st December, 2008. However, you absconded from work for four consecutive working days being from 2nd to 9 h December, 2008 and reported on l( fh December, 2008. On this, you are required to respond in writing explaining the reasons for your abscondment by 11th December, 2008. In addition, piease refer to previous discussions in regard to your empioyment status. In previous meetings between you and management, the following facts were discussed: - That, your previous position could not be left vacant for three years and thus it is no longer available. - That alternatively managementproposed retrenchment in line with our Internal policies and procedures, of which you turned down. - That, provided that the bank does not have any other related or equivalent role vacant at the moment, the only other option would be to give you other unrelated junior position. This may have a result in degrading your job. Bearing in mind o f the above facts, piease advise the bank o f your recommendations on the best approach going forward.." [Emphasis added] It is clear from the record that until 30th January, 2009, nothing concrete had been agreed upon by parties in the spirit of the above letters. That is to say, by that date, there is no evidence that the respondent had either reinstated the appellant in her former position or even offered an alternative post to her. Nonetheless, on that date, that is, on 30th January, 2009, the appellant was summoned to appear before the disciplinary committee of the respondent to answer charges of absconding from duty for thirty-seven days. As she did not appear before the disciplinary committee, the appellant was convicted in absentia and was consequently "terminated from employment" on 6th February 2009. Notably, instead of contesting this termination, the appellant decided to enforce the order of the Minister. In doing so, she filed Execution No. 324 of 2018, but the same was dismissed because, the Deputy Registrar in that matter reasoned that there was nothing to enforce because the appellant was properly reinstated in terms of the letters whose relevant parts we have quoted above. The appellant was dissatisfied with the decision of the Deputy Registrar and filed Revision No. 665 of 2019 in the High Court Labour Division at Dar es Salaam, to challenge it. However, the High Court upheld the decision of the Deputy Registrar, insisting that the appellant was properly reinstated by the respondent in accordance with the order of the Minister. This decision aggrieved the appellant, hence this appeal which is predicated upon one ground of appeal, which is: 5 "That the Honourable High Court erred in law by holding that the Appellant was reinstated by the Respondent" At the hearing of the appeal, Messrs. Amos Paul and Anthony Arbogast Mseke both learned advocates, appeared for the appellant and the respondent respectively. Both counsel addressed us on the above ground orally, for none of them had filed written submissions, and it was Mr. Paul who was the first to submit. His major contention was that subsequent to the Minister's order, the respondent did not reinstate the appellant. He submitted that when the appellant reported to the respondent bank to be reinstated in her former position, the latter did not have that position vacant, such that the respondent initiated negotiations between the two parties to look for an alternative position in which to place the appellant. Mr. Paul contended that, as long as the respondent did not have the appellant's position vacant, it was impossible for the respondent to reinstate the appellant, and that was the essence of the negotiations. As to what the term reinstatement entails, the learned advocate referred us to the South African Constitutional Court's decision in Equity Aviation Services (Pty) Ltd v. CCCM and Two Others Case No. 88/07 [2008] ZACC 16. 6 On his part, Mr. Mseke was of a diametrically opposite position. His point was that the Minister's order did not mention the position into which the appellant was to be reinstated. To him, the fact that the appellant was told to be reporting on all working days as the negotiations on the alternatives available were being explored, was an act of reinstatement in strict compliance with the order of the Minister. When we inquired from Mr. Mseke as to the position into which the appellant was placed consequent to the Minister's order, learned counsel's decisive take was that the Minister did not specify the position that the appellant should be placed into, upon her reinstatement. He stated that the definition of reinstatement as per the case of Equity Aviation Services (supra) is not applicable because, in that case the foreign court was not interpreting the Security of Employment Act, No. 62 of 1964 (defunct SEA). With the above submissions of counsel on the contested ground of appeal, the one issue before us is whether, consequent to the order of the Minister, the respondent reinstated the appellant. In the context of the concept of summary dismissal and orders of reinstatement as per the defunct SEA, we do not think the issue presents any serious difficulty. In order to appreciate what the employer ought to do, upon pronouncement of a reinstatement order, we will revisit section 40 A (4) (a) of the defunct SEA. That section used to provide as follows: 7 "(4) Where in the exercise o f its powers under this section a Board or the Minister ordersi- (a) Re-instatement of an employee, the employer shall re-instate the employee in his former employment, and such reinstatement shali have the effect for the purposes o f the payment o f wages, entitiement to severance allowance and other retiring benefits, and otherwise in relation to any benefits o f the employment, from the date o f the termination of the employee's employment or his summary dismissal as the case may be, but the employer may deduct from any wages due on or after reinstatement, the wages in respect o f the number o f days during which the employee remined absent from work (and including) the day on which the termination or the dismissal took effect and the day on which reinstatement is ordered by the Board or, in the case o f a further refence to the Minister, the day on which reinstatement is confirmed or ordered by the Minister." [Emphasis added] In terms of the above quoted section of the defunct SEA, an order of reinstatement made by the Minister, may be complied with, only if the 8 employer places the employee in his former employment ox in alternative by observing the provisions of section 40 A (5) of the same defunct Act. In this case, there was no dispute that the appellant was serving as Assistant Finance Manager in the respondent bank. According to the respondent's letters dated 19th November, 2008, 1st December, 2008 and 10th December, 2008, whose operative parts have been quoted above, at the time of her reinstatement by the Minister, the appellant's position in the respondent bank was no longer vacant. In fact, according to the letter of 10th December, 2008, the respondent did not even have any related or equivalent role vacant at that time, such that, the only option available to the respondent would be to offer the appellant, not only unrelated, but also a junior position. That, according to the respondent in that very letter, would have a result of degrading the appellant's position. On 12th December, 2008, when the appellant was required to explain herseif as to why she absconded from the job, this is what she replied in clause 2 of her letter to the respondent at page 208 of the record of appeal. She stated: "2. That after receiving the said ietter I reported to work in the manner advised, but I was never assigned any duty or work, rather I was always informed to stay 9 in the Board Room. The issue o f absconding from work cannot arise under the circumstances." We keenly studied the record of appeal and attentively listened to the submissions made on behalf of the respondent, we must confess that we were unable to grasp the nature of the duties, assignments or work that the appellant was assigned upon the alleged reinstatement. We could not get any clarification as to the position that the appellant was placed into, upon the alleged reinstatement. In our view, to reinstate an employee is not to tell him that he is now reinstated. It is to place him in the previous position he occupied within the employer's undertaking before the challenged termination and be allowed to discharge the same duties and responsibilities as per the job description relevant to the position. That is what section 40A (4) (a) of the defunct SEA quoted above provided for and effectively meant. To inform the appellant that she was reinstated was not what the Minister ordered. To reinstate the appellant entailed the process of availing her with working facilities like working space and necessary gadgets for the job. Reinstatement included assigning the appellant duties and responsibilities. In this case however, other than telling her that she was reinstated, there was nothing suggesting that she was assigned any duties or responsibilities. According to the appellant, when she was reporting to the respondent bank, she was being 10 told to go and wait in the board room. That was not reinstatement under the law, because the appellant's job before her dismissal was not to wait in the boardroom. As we get closer to the end of this judgment, we wish to shed some light on the respondent's own evidence supporting the appellant's cause of action in this appeal. In all the three respondent's letters referred to above, two points stand out clearly. One, that the appellant's previous position in the respondent bank was not vacant at the time of her reinstatement. Two, the discussions on which option to get along with, in the circumstances, was underway. In this respect, the third letter of 10th December, 2008 was still soliciting the appellant's recommendations on the approach she thought to be the best going forward. Throughout the record of appeal, there is no document showing that on 30th January, 2009 when the appellant was charged, that the appellant had been offered any employment in the respondent's business. In view of the above discussion, the only legally conceivable conclusion is that the appellant was never reinstated as was required by section 40 A (4) (a) of the defunct SEA. We therefore find merit in the raised ground of appeal, and hereby allow it. ii Finally, we allow the appeal, reverse the decision of the High Court and hold that the appellant was not at any material time reinstated in her former employment as was required by law consequent to the order of the Minister. We make no order as to costs, since the dispute behind this appeal was a labour matter. DATED at DAR ES SALAAM, this 29th day of July, 2024. R. K. MKUYE JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 6th day of August, 2024 in the presence of the Appellant in person and Ms. Anna Asey, holding brief for Mr. Arobogast Mseke, learned counsel for the Respondent, is hereby certified as a true copy of the original. J. J. KAMALA 1 DEPUTY REGISTRAR / M COURT OF APPEAL 12