bank of africa t limited vs michael elias kingori 2021 tzhc 5897 23 august 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF ARUSHA AT ARUSHA REVISION APPLICATION NO. 33 OF 2020 (Original CMA/ARS/ARB/60/19) BANK OF AFRICA (T) LIMITED .......................... APPLICANT Versus MICHAEL ELIAS KING'ORI.......... ............... RESPONDENT JUDGMENT 07/06/2021 & 23/08/2021 GWAE, J I am requested to ascertain legality and propriety of the award procured by the Commission for Mediation and Arbitration of Arusha at Arusha (CMA). The applicant, Bank of Africa (T) Limited has brought this application under the provisions of section 91 (1) (a), (2) (a), (b) and (c) of the Employment and Labour Relations Act, cap 336 Revised Edition, 2019 (ELRA), Rules 24 (1), (2)(a), (b), (c), (d), (e), (f), (3)(a), (b), (c) and (d), 28 (1) (c), (d) and (e) of the Labour Court Rules, GN No. 106 of 2007, praying for the following orders: i 1. That, this court be pleased to call for and examine the records of CMA Award delivered on the 24th April 2020 in Labour Dispute No. CMA/ARS/ARB/60/2019 so as to examine the record, proceedings decision and an award of the Commission to satisfy on the legality and propriety on the following grounds; (a) Whether the respondent had given sufficient reasons for extension of time (b) whether it was proper for the arbitrator to grant compensation of twelve (12) months' salary instead of reinstatement sought by the respondent in the complaint form 1 (c) Whether the applicant terminated the employment of the respondent without following due procedure and principal of natural justice as required by the labour law (d) Whether the arbitrator failed to evaluate the evidence as result failing to appreciate that the respondent committed misconduct grounding termination of his employment 2. That, any other relief this court deems just and fair to grant. The application is supported by the sworn affidavit of Ms. Joyceline Kaika, the leaned advocate for the applicant. The applicant's affidavit seriously disputed the arbitral award for the grounds set out herein above. 2 Opposing this application, the respondent through his counter affidavit sworn by Mr. Asubuhi Yoyo, his learned counsel contested the application stating that the findings of the arbitrator were proper and in accordance with the labour laws adding that it was the applicant who owed a burden of proving that the termination was for valid reason and that principles of nature justice were complied with before termination. Brief facts of the dispute between the parties can be recapitulated as follows; that, the applicant and the respondent were an employer and an employee respectively. That, both parties plainly entered into contract of employment on the 26th June 2009. The respondent was employed as Assistant Branch Manager at Arusha Branch. However, the contract of employment was unilaterally terminated on 12th July 2017 by the applicant on the alleged respondent's misconduct of mishandling of cash money at the applicant's office and breach of applicant's operational procedure. That, the applicant's disciplinary hearing was conducted against the respondent and eventually, the respondent was found guilty. The applicant was however barred with limitation of time to file the dispute. He thus filed an application for extension of time on the 15th 3 September 2017 which, though no ruling that is available in the CMA record, was granted after rival parties' submission. After hearing both parties, the arbitrator came into conclusion that the respondent was unfairly terminated in both substantive aspect and procedural law. The arbitrator's findings were that the disciplinary hearing form (RES) does not exhibit evidence adduced during hearing and that the said investigation from IAD was neither annexed nor tendered during arbitration and that the respondent was condemned unheard since it was only documents that were relied upon by the Disciplinary Hearing Body, the Committee which was found not being impartial or neutral especially when no witness tendered documents. Thus, according to the arbitrator, the Committee assumed the duty of employer, that of prosecutor as well as of a judge. The arbitrator went on granting the respondent with a compensation of 12 months' salary and severance pay instead of reinstatement initially sought by him vide his Referral Form No. 1 due to the fact that, he had already secured another employment at EFTA. 4 Aggrieved by the arbitral award, the applicant has preferred this application for the grounds that are contained in the sought order No. 1 above (a-d). The applicant and respondent throughout the arbitration proceedings before CMA were represented by Mr. Jafari Suleiman and Asubuhi Yoyo respectively, both the learned advocates as was the case before this court. Following court's consensus, the application was then argued by way of written submission after various adjournments which were intended to settle the matter out of the court. I shall consider the parties' submission while determining each ground raised by the applicant. a. Whether the respondent had given sufficient reasons for extension of time. It is the arguments by the applicant that the respondent did not count for each day of delay as judicially and consistently stressed by our courts whereas the respondent was of the opinion that the respondent was able to account for each day of his delay particularly sickness accruing from 12th August to the date when an application for extension was filed. Having cautiously considered the reasons given in the respondent's affidavit while seeking extension of time. I am unable to fault the decision 5 of the mediator as the reasons given were about respondent's sickness and that of his mother. I also find that the time started to accrue against the respondent when he was served with termination letter and he started to be time barred after lapse of his 30 days from the date when he received the termination letter. I would therefore like to subscribe the case of Reginal Manager-TANROAD Kagera v. Ruaha Concrete Company Limited, Civil Application No. 96 of 2007 (unreported), where the Court of Appeal held; "What constitutes sufficient cause must be determined by reference to all circumstances of each particular case, this means the applicant must place before the material which will move the court to exercise its judicial discretion in order to extend time". Basing on the evidence given as to the respondent's delay and reasons thereof to wit; sickness and that of his mother, Modesta Mwacha. I am therefore satisfied that the mediator was, in the circumstances, legally justified in granting extension of time in favour of the respondent to enable him file the dispute. This ground is thus dismissed. 6. b. whether it was proper for the arbitrator to grant compensation of twelve (12) months' salary instead of reinstatement sought by the respondent in the complaint form 1 Though it is as alleged by the applicant's counsel that the respondent when presenting his referral form, he sought to be reinstated (see page 3 of the form). Despite the fact that, the respondent plainly prayed reinstalment, in my considered view, yet that alone does not oblige the arbitrator to award the relief sought upon the termination being found unfair as far as labour disputes are concern unlike to other civil cases. Upon a verdict of unfair termination by an arbitrator or judge as the case may be, such arbitrator or judge is legally empowered to award an employee one of the remedies provided for under section 40 (1) of the Employment and Labour Relations Act No. 6 of 2007 (ELRA) as herein under reproduced; (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 7 (c) To pay compensation to the employee of not less than twelve months remuneration It my view, it appears that the remedies awardable by the labour court or CMA which are quoted hereinabove are discretionary but I think each case must be decided on its own merit dependent on the set of facts and circumstances surrounding the dispute and indeed the statutory discretion must be exercised judiciously by considering circumstances surrounding the dispute for instance; i. Where no valid reason for termination at all and circumstances do not call for any misconduct on the part of an employee, a remedy of reinstatement can be safely made or ii. Where reason for termination is substantively valid and fair based on incompetency incompatibility, remedy of re­ engagement is preferable iii . Where there is a valid reason or reason is not so clear more so, the requisite procedures were not followed or not fair and or labour relationship can no longer be maintained between an employee and employer, here a remedy of compensation is suitable It follows therefore, the remedy available under section 40 (1) (a) of the ELRA and Rule 32 (2) (a) of GN. 64 OF 2007 does not dictate only what an employee has prayed through his Referral Form No. 1 but also the 8 circumstances of each case for instance whether the industrial relationship still exist or not between the parties or whether, the same position held by an employee is still available or the employer is still running the business progressively or not. Hence, there a lot of factors that are to be considered before making an order as to remedy when a judge or arbitrator find that the termination was unfair. More so, in our case, the respondent glaringly prayed to change his remedy that he sought in the referral form because he had secured another employment, the prayer which was correctly considered by the learned arbitrator. This ground also lacks legs to stand, it is therefore dismissed. c. Whether the applicant terminated the employment of the respondent without following due procedure and principal of natural justice as required by the labour law According to the applicants counsel, there was valid reason which necessitated termination of the respondent's employment and that, the fair labour procedures were accordingly adhered to. It is my view that, there were accumulative violations of procedures namely; a failure to conduct an investigation by virtue of Rule 13 (1) of the Code of Good Conduct Gn. No. 42 of 2007 (Code) (the applicant purported to have conducted the same 9 but it was not annexed or tended or both), failure to record evidence of witnesses including defence constituting unfair hearing (See Rule 13 (4) of the Code) as well as the applicants failure to give the respondent an opportunity to make any mitigating factors as required under Rule 13 (5.) of the said Code as plainly depicted in the Disciplinary Form (RE5). The right to be heard is fundamental, a decision arrived at in violation of such basic right shall not be left to stand as was rightly held in Mbeya Rukwa Auto Part & Transport Limited v. Jestica George Mwakyma, Civil Appeal No. 45 of 2000 (unreported-CAT) where the Court of Appeal of Tanzania held that fair hearing is among the attributes of equality before the law. Considering the violations of principles of right to a fair hearing by the applicants Disciplinary Hearing Committee as rightly apprehended by the Commission and argued by the respondents' counsel. I do not see if this ground is meritorious. The same is thus dismissed. d. Whether the arbitrator failed to evaluate the evidence as result failing to appreciate that the respondent committed misconduct grounding termination of his employment Having answered the 3rd ground and the manner the arbitrator analyzed evidence before him I do not see any reason as to why I should io be detained determining this ground. It follows that, even if the applicant had valid reason to terminate the respondent's employment yet the procedures in handling such disciplinary hearing against the respondent in order to avail him a fair hearing were clearly violated. Moreover, the investigation report was not tendered and admitted by the Committee but it is found that, the Disciplinary Committee had possession of such report before hearing which, which in my considered view, compromised the principle of the rules against bias. For the foregoing reasons, this application is dismissed for lack of merit. The CMA award is upheld in addition thereto, the applicant shall be availed with a certificate of service. Given the fact that this application is not frivolous or vexatious, no order as to costs is made. 11