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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA (LABOUR DIVISION)

MBEYA SUB REGISTRY

AT MBEYA LABOUR REVISION NO 615 OF 2024 (Originating from Complaint CMA/MBY/Mby/23/2023 of the Commission for Mediation and Arbitration at Mbeya by Hon Ndonde, S- Arbitrator)

BETWEEN APEX RESOURCES LIMITED…...…….………….……………………. APPLICANT

VERSUS DENDEA LEONARD IDALE……………………...……………….……. RESPONDENT

JUDGMENT Date: 24 May 2024 & 12 July 2024 SINDA, J.: The applicant filed the present application seeking revision of the award of the Commission for Mediation and Arbitration (the CMA). The application is based on the grounds stated in paragraph 12 (i-v) of the affidavit supporting the application of Mr. Ladislaus Rwekaza the applicant counsel. The respondent opposed the application through the counter affidavit of Mr. Yona Nicolaus Frank, the respondent counsel. 1 The hearing was by way of written submission. The applicant was represented by Mr. Ibrahim Idd Athuman, learned counsel while the respondent was represented by Mr. Yona Nicholaus Frank, learned counsel. Briefly, the respondent was an employee of the applicant and on 21 March 2023 he was granted sick leave until 13 April 2023. However, after the sick leave ended, he did not return to his working station and without justifiable reasons. The respondent terminated the applicant employment contract on the ground of absenteeism. Being aggrieved with the termination, the respondent referred the dispute to the CMA where the decision was on his favour. Aggrieved with the award the applicant filed the present application. On the issue of whether the applicant justified that termination of the respondent employment was fair and justified, Mr. Athuman submitted that the proceedings show that the respondent was absent from

his working station without any valid reason or explanation to his employer. This was proved by the attendance sheet that the respondent was absent from his work station from 1 May 2023 to 3 May 2023. Several efforts were taken to trace him but in vain. The disciplinary hearing was arranged and summons were issued. However, DW2 failed to find the respondent 2 and the disciplinary hearing was held in his absence. He insisted that the applicant had valid reason for termination of employment and adhered with the procedure. He referred to the case of Exim Bank (T) LTD vs Jacqline A. Kweka (Revision Application No. 429 of 2019) [2019] in approval of the case of NBC LTD Mwanza vs Justa B. Kiyaruzi Revision No. 79of 2009 HC Labour Division of Mwanza sub-Registry (unreported) to support his submission. On the second issue on whether the CMA was improper to rule out that the respondent was unfairly terminated while the respondent was summoned to appear before the disciplinary committee but departed. Mr. Athuman submitted that the trial arbitrator failed to evaluate the evidence in record resulting to erroneous decision since the disciplinary hearing form (Exhibit D12), work attendance sheet (Exhibit D8) and summons to appear in disciplinary hearing (Exhibit 11) was supported by the testimony of DW2. DW2 sent summons to the respondent to appear in the disciplinary hearing but the

respondent was not found. This led for the hearing to proceed in absence of the respondent or his representative. He was with view that termination of respondent employment was fair since he was afforded right to be heard but respondent did not appear to disciplinary hearing. He referred to the case of Alliance One Tobacco 3 Tanzania LTD vs George Masoro, Revision No. 14 of 2015 High Court (unreported) to support his argument. On the third issue of whether the CMA was justified to award the respondent with salary compensation. Mr. Athuman submitted that the arbitrator errored to award compensation of salary to the respondent who failed to prove that he was unfairly terminated by the applicant. He added that in the proceedings of the CMA, the respondent failed to justify his absence from work station from 2 May 2023 to 8 May 2023 since he did not sign attendance sheet. In reply to the first ground, Mr. Frank stated that the point lack merit because the respondent attended work station every day except the days which he was under sick leave. He added that DW1 was not a credible witness because no strong evidence was adduced by the applicant to prove that the respondent was absent from the work station on the stated dates. There was no proof that the respondent was given formal charge and summons to appear before disciplinary committee. Failure to do so amount to unfair hearing.

Mr. Frank stated that the applicant failed to discharge duty of proof as stipulated in the case of Bulyanhulu Gold Mines Limited vs Paschary Andrew Stanny, Civil Appeal No. No 281 of 2021, TZCA at Shinyanga (Tanzlii) and Dew Drop Co. Ltd vs Ibrahim 4 Simwanza, Civil Appeal No. 244 of 2020 and Peter Maghali vs Super Meals Limited, Civil Appeal No. 279 of 2019 (Tanzlii). The court in the above cases emphasized that failure to serve employee with a formal charge and advise him of time and date of proposed disciplinary hearing, giving him reasonable time to prepare for hearing is gross violation of rule 13 (2) of the Employment and Labor Relations (Code of good Conduct) Rules 2007, Government notice No. 42 of 2007 read together with paragraph 4 (3) of Guidelines making termination of respondent procedural unfairly. He submitted that the case of Exim Bank (supra) cited by applicant is distinguishable for reasons that the right to fair hearing before any action is taken is paramount, whether in labour dispute or not. Responding to the second issue, Mr. Frank submitted that the CMA properly evaluated the evidence. There was no summons served to the respondent herein to procure his attendance before the disciplinary hearing as a result the hearing proceeded ex-parte against the respondent. Thus, the right to be heard inwas fringed which is bad in law. He referred to the case of Severo

Mutegeki & Another vs Mamlaka ya Maji Safi na Usafi wa mazingira Mji Dododoma. (Duwasa), Civil Appeal No. 343 of 2019, TZCA Dodoma. He stated that the cited case of 5 Alliance One Tobbaco Tanzania LTD vs George Masoro, Revision No 14 of 2015HCT is distinguishable and should be taken with caution. On the third ground, Mr. Frank argued that no error was done in the proceedings of CMA. The applicant failed to show this court how the trial arbitrator committed an error by awarding the respondent salary compensation. The fact that the respondent failed to prove that he was unfairly terminated by the applicant lack merit because it was the duty of the applicant to prove. In rejoinder, the applicant reiterated his submission in chief. He further stated that the cases cited by the respondent are distinguishable and should not be considered by this court. I have gone through the court records and submission made by the parties. It is a principle of law that termination of employment must be on valid and fair reasons and procedure. For the same to be considered fair, it should be based on valid reasons and fair procedures. There must be substantive and procedural fairness of termination of employment as provided for under Section 37(2) of the Employment and Labour Relations Act, No. 6 of 2004 that: - “Section 37 (2) A termination of employment by an employer is unfair if the employer

fails to prove- 6 (a) that the reason for the termination is valid; (b) that the reason is a fair reason- (i) related to the employee's conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer (c) that the employment was terminated in accordance with a fair procedure.” It is also a settled position of law that burden of proving that there was valid reason and all procedure in terminating an employee contract of employment was observed is upon the employer. As stated in the case of the of Dew Drop Co. Ltd v. Ibrahim Simwanza (supra). Going through the records, I find that there was no dispute that the applicant had a valid reason for terminating respondent employment. The records show that the applicant presented the attendance sheet which proved that the respondent was absent at his working station for more than 5 days without reasons/permission contrary to Exhibit D7. The facts which the CMA found that was proved. The respondent never challenged the award on that aspect through the available avenue. In that regard I will not discuss more on whether the applicant had valid reason for terminating respondent employment. 7 I wish to deliberate the first and second issue together on whether the termination of respondent contract by the applicant was procedurally fair and adhered with the procedure. What is disputed in this revision is

whether the applicant complied with the procedure to terminate the respondent's contract of employment. What amount to a fair procedure in terminating an employment contract is governed by Rule 13 of the Employment and Labour Relation (Code of Good Practice) GN No. 42 of 2007 provides that: "13(1) The employer shall conduct an investigation to ascertain whether there are grounds for a hearing to be held. (2) Where a hearing is to be held; the employer shall notify the employee of the allegations using a form and language that the employees can reasonably understand. (3) The employee shall be entitled to a reasonable time to prepare for the hearing and to be assisted at the hearing by a trade union representative or fellow employee, what constitute a reasonable time shall depend on the circumstances and complexity of the case. But it shall not be less than 48 hours (4) The hearing shall be held and finalized within a reasonable time and chaired by a sufficiently senior management representative who shall not have been involved in the circumstances giving rise to the case (5) Evidence in support of the allegation against the employee shall be presented at the hearing, the employee shall be given a proper opportunity 8 at the hearing to respond to the allegations, question any witness called by the employer and to call witness if necessary" In this case the records do not show if

investigation was conducted by the employer to ascertain whether there were grounds for hearing to be held. DW1 and DW2 stated that they took some effort to notify the respondent about the disciplinary hearing but he was not found. To prove the same DW1 tendered Exhibit D6V which was a notice to inform respondent to attend disciplinary hearing and affidavit sworn by DW2 (Exhibit D6IV) to prove that DW2 did not find the respondent when he sent the notice. However, the affidavit was sworn before DW1 who was not a commissioner of oath. Therefore, I find that it was not correct for DW2 to swear that affidavit before DW1. In that regard I expunge the affidavit because it was taken contrary to the law. In absence of that affidavit, there is no other evidence to prove that the applicant failed to notify the respondent to attend the disciplinary hearing because he was not found. Failure to notify the respondent to attend a disciplinary hearing means the respondent was dismissed from employment without adhering with the procedure as provided under Rule 13 of the Employment and Labour Relation (Code of Good Practice). 9 However, among the persons who the attended the disciplinary hearing according to Exhibit 12 is DW2. However, DW2 during the hearing stated that he did not attended the disciplinary hearing. This give doubt on whether the disciplinary hearing was conducted. As decided by

the trial arbitrator, I find that the respondent was terminated with good cause but the procedure was not followed before terminating the respondent contract of employment. On the third issue of whether the CMA was justifiable to award the respondent with salary compensation while the respondent failed to prove that he was unfairly terminated by the applicant. I find that the applicant counsel misconceived himself in this aspect. As already stated in the above authorities it is the duty of the employer not employee to prove that he has valid and fair reason for terminating the contract of employee and he adhered with a fair procedure. The employer in this case failed to adhere with the fair procedure when terminating respondent contract for employment. Section 40 of Employment and Labour Relation Act provide for remedies on unfair termination. “40. -(1) Where an arbitrator or Labour Court finds a termination is unfair, the arbitrator or Court may order the employer – 10 (a) to reinstate the employee from the date the employee was terminated without loss of remuneration during the period that the employee was absent from work due to the unfair termination; or (b) to re-engage the employee on any terms that the arbitrator or Court may decide; or (c) to pay compensation to the employee of not less than twelve months remuneration” As provided under Section 40 (1)(c) above is clear

that when the arbitrator finds that termination is unfair, the arbitrator orders the employer to pay compensation to the employee of not less than twelve months remuneration. In that respect I find the arbitrator was correct to order salary compensation of twelve months in this case. In conclusion, I find no need to fault with the CMA award. The application lack merit. Dated in Mbeya this 12 day of July 2024. A. A. SINDA

JUDGE 11