REV

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 27231 OF 2023 CASE REFERENCE NO. 20231208000027231 BETWEEN BRAC TANZANIA FINANCE LIMITED...................................... APPLICANT VERSUS SHABANI RASHIDIISIMBULAH.......................................... RESPONDENT JUDGEMENT Date of last Order: 25/ 04/2024 Date of Judgement: 07/ 05/2024 The Respondent successfully challenged the termination of his employment contract by the Applicant herein at the Commission for Mediation and Arbitration (herein CMA) in labour dispute No. CMA/DSM/KIN/243/2022. The CMA's decision was delivered on 25/10/2023 by Hon. Lucia C. Chacha. It was found that the Applicant unfairly terminated the Respondent in his employment. Following its finding, the CMA awarded the Respondent a compensation of the remaining months of the contract and notice that stood to the tune of Tanzania Shillings Seventeen Nine Hundred Sixty Two Thousands Five Hundred Sixty (TZS 17,962,560.00). The Applicant disputed the Award, hence this revision on the following grounds: i. That, the Arbitrator erred in law and fact by failing to evaluate the evidence adduced by the Applicant who proved that the Respondent was negligent in performing his duties. ii. That, the Arbitrator erred in law and fact in disregarding a ll the Applicant's documentary and oral evidence o f the Applicant's witnesses in support o f the Applicant's case. Hi. That, the Arbitrator erred in law and in fact by completely failing to understand the reason for terminating the Respondent thus ended up concluding that there were no reasons for the termination o f the Applicant. iv. That, the Arbitrator erred in law and fact by issuing a biased and one-sided award in favour o f the Respondent withoutjustifications. v. That, the Arbitrator completely disregarded the final submission filed by the Applicant. vi. That, the Arbitrator erred in law and facts by basing her decision on matters which were not proved by the Respondent as the result ended up in an erroneous conclusion. The application was argued by way of written submissions. In arguing for and against the application both parties were represented by learned Counsel. Mr. Priscus Richard appeared for the Applicant and Mr. Phillip Irungu was for the Respondent. In this application, the first, second and third grounds were argued jointly. Mr. Richard submitted that exhibit D1 (the investigation report) and the testimony of DW1 and DW2 showed that the reason for termination of the Respondent was the negligence in handling the consignment of the mobile handset which was purchased by the Applicant. Pages 3 and 4 of the report as pointed out by DW1 on her testimony, showed the Respondent had duties to perform in the process of receiving the handset and the duties were not performed as required, thus leading to the loss of handsets. He stated that the Arbitrator failed to consider such evidence hence ending with a wrong conclusion that the Respondent was unfairly terminated. It was contended that at page 21 of the impugned award, the Arbitrator has stated that the investigation report was never tendered before the CMA while the said report was tendered by DW1 and received as exhibit Dl. It was further submitted that, the Arbitrator failed to consider that during the investigation the mobile handsets were already distributed into different regions, and the same was not stocked in the register for the reasons that the store assistance was not availed with the copy of delivery notes from the Respondent. It was stated that the handover of the delivery notes to store assistance was supposed to be done after the Respondent had verified the consignment. The same was not verified and thus the Respondent failed to hand over to document to store assistance as testified by DW1 and DW2. Mr. Richard went on to testify that the Arbitrator failed to understand that DW2 could not open the boxes to verify the items therein since the consignment was delivered by the transporter (Seguruma) in sealed boxes. He stated that unsealing the box was to be done by the Respondent and Vodacom representative on the next day. Thus, unsealing the box for verification could not be done by DW2 as he was instructed by the Respondent by phone to receive the boxes on his behalf without even mentioning the number of boxes. He added that; the transporter was not accompanied by a Vodacom representative and DW2 was informed that verification by unsealing the box and counting the items inside would be done on the next date by the Respondent and Vodacom. Mr. Richard went on to submit that the Arbitrator failed to understand that the Respondent was terminated for gross negligence causing loss to the Applicant. He stated that the negligence arose out of 4 failure to verify the consignment of a mobile handset purchased by the Applicant from Vodacom. He added that the Respondent was the procurement officer and during his testimony, he mentioned his daily responsibilities in his position which included handling all the purchases within the Applicant organization. Therefore, he failed to handle with care the consignment of the mobile hand thus, leading to the loss of the mobile handset. In response, Mr. Irungu strongly submitted that the Arbitrator properly considered the evidence on record. He stated that the investigation report (Exhibit Dl), spoke about 190 phones that were considered lost after investigation. DW-1 during cross examination stated that only 186 phones were lost. Mr. Irungu stated that the change of number of stolen phones is what prompted the Arbitrator to see that there was no investigation done in relation to the offences charged to the Respondent. It was further submitted that even if the investigation report is considered to be proper, the same was not served to the Respondent. Thus, the termination procedures were violated. It was Mr. Irungu's argument that it is the principle of this Court and the Court of Appeal that failure to share the investigation report by the employer amounts to failure to accord the employee a fair hearing. In support of his 5 submission, the counsel cited the decision of the Court of Appeal of Tanzania in the case of Severo Mutegeki & Another v. Mamlaka Ya Maji Safi Na Usafi Wa Mazingira Mjini Dodoma (Civil Appeal 343 of 2019) [2020] TZCA 310 (19 June 2020). Regarding the verification of the mobile phones claim Mr. Irungu submitted that, DW2, testified that he verified the mobile phones and endorsed a signature on every page. Such testimony was also supported by DW3 he added. He also stated that the Respondent could not verify the mobile phones because he was attending his studies at the university. It was further submitted that the Respondent was not served with a job description as per Section 15(l)(c) o f the Employment and Labor Relations Act, [Chapter 366 Revised Edition 2019] (to be referred as ELRA). That, the Applicant did not tender any policy/standard operating procedure that shows it is a duty of the Respondent to verify the cargo in the following day. Mr. Irungu argued that the Applicant had a duty to show which rule was breached as it is provided under Rule 12(1) and (3) o f the Employment and Labour Relations (Code o f Good Practice) GN No. 42 o f2007(herein GN. No. 42 o f2007). It was Mr. IrungiTs strong submission that that the Applicant had no fair and valid reason for termination. He stated that the charges were birthed on an investigation that showed the stolen/missing phones were 190, contrary to the charges against the Respondent. I have dully considered the submissions of the parties. As rightly submitted by Mr. Richard, the Respondent was terminated for gross negligence in the performance of work as it is indicated in the termination letter (exhibit P3). The referred letter indicated that the Respondent failed to adhere to BRAC Tanzania Finance Ltd, HRPP Code o f Conduct 7:2 that requires staff to be committed to high ethics and professional standard in performance of their service and HRPP Code of Conduct 7:2:2 that requires staff to handle BRAC Tanzania Finance Ltd's finance, physical and other resources with care, at all times ensuring their proper use. It was further stated that, the Respondent acted negligently in performance of his work as a Procurement & Administration Officer in handling and issuing a total of 1,760 mobile phone handsets that were received from supplier Seguruma couriers & logistic company limited, leading to the loss of total 190 Vodafone 301 Smart 7 dual handsets amounting to TZS. 9,880,000/= (cost to connect for 190 mobile phone handsets as per contract transaction schedule). The same charges were also served to the Respondent in the charge sheet (exhibit D3). Before the CMA and this Court, the Respondent strongly stated that he was not involved in any loss alleged. That, he did not receive the alleged consignment hence, he had no duty to verify the same. In determining whether the Applicant proved the misconducts levelled against the Respondent, the Court is guided by Rule 9(3) o f GN. No. 42 o f 2007where it is provided that in determining the fairness of reason for termination and procedures the burden of proof lies to the employer and it is sufficient for the employer to prove the reason on the balance of probabilities. Unlike, in criminal cases where the burden is beyond reasonable doubt. In this case, it is undisputed that the Respondent directed Mr. Innocent (DW2) to receive the consignment on his behalf. The Respondent also admitted that after the consignment was received by his colleague, he did not verify the same because he trusted his colleague (DW2). That was also testified by the Respondent during disciplinary hearing. I hereunder quote part of his response to the allegation as reflected in the hearing form (exhibit D4): Mr. Shabani being the focal and contact person with Vodacom company in the process of handset supply, agreed to instruct Mr. Innocent to receive the handset from supplier Sengeruma couriers and logistic company on the 14th of November 2019. On the following day of 15th November 2019, Mr. Shabani agreed that he received the delivery note of the supplied handsets and shown where the handsets were kept in the store from Mr. Innocent, but he neither verified the received handsets nor recorded in the inventory register because he believed Mr. Innocent have already verified the handsets and registered them. As rightly reflected in the above quoted evidence, the Respondent admitted that he did not verify the consignment. I have considered the Respondent's argument that he was not responsible to verify the consignment in question because he was not the one who received it. It is my view that, notwithstanding the fact that the consignment was not received personally by the Respondent, he had the duty to verify the same on the following reasons. First, he was the officer responsible for procurement process at the Applicant's office. Second, he was the one who sked Mr. Innocent to receive the consignment on his behalf. Therefore, he was the one who assigned his colleague to perform his responsibilities on his behalf. Thus, he had the duty to verify if the assigned duties were properly performed. I have considered the fact that the Respondent was permitted to attending his studies, if he was not responsible while out of the office as claimed, he should have not moved himself and appoint Mr. Innocent to receive the consignment on his behalf. The office should have been responsible to appoint a person to receive the consignment on his behalf. Third, if the Respondent trusted Mr. Innocent as claimed, what hesitated him to receive the second batch of the consignment which was delivered in his presence? As the officer in charge of the whole process, he should have proceeded with his responsibilities. Failure to do that, in my view, amounts to negligence. Fourth, the Respondent's name is appearing on the delivery notes (exhibit D2), as the receiver of the consignments in question. Therefore, he had the duty to verify what is reordered therein in the documents in question. Fifth, it is not disputed that the Respondent was the one who initiated the purchase in question. Thus, he was liable to supervise the transaction in question. On the basis of the foregoing, it is my view that in one way or another the Respondent acted negligently in performing his duties which resulted to the loss of the mobile phones in question. I have noted Mr. Irungu's submission that the record is not certain as to the number of mobile phones lost. That, in the investigation report (exhibit Dl), the loss indicated was 190, whereas in the show cause letter (exhibit P2), it is indicated as 186. It is my view that as much as there was discrepancy on the number of mobile phones lost, there is no dispute that a large number of phones were lost. As analysed above, the loss resulted from the negligence of the Respondent and his fellow employees whom some of them were also terminated. Again, in the impugned Award, the Arbitrator analysed at length the negligence of DW2 for failure to verify the consignment, the act which resulted to the loss of phones. It is my view that the discussion thereat should have not detained the Arbitrator at such length, as much as DW2 was negligent on his part. The case before the CMA was between the parties herein. Thus, the Arbitrator should have confined himself in examining if the Applicant established and proved any negligence on the part of the Respondent. Again, the fourth and sixth grounds will be jointly determined. It was Mr. Richard's submission that throughout the Respondent's testimony at the CMA, there is no point where he complained that he was not availed with an investigation report. That, the issue was brought by the Arbitrator when composing the Award as it is reflected at page 25 of the impugned Award. He strongly submitted that the Respondent was availed the report together with an invitation to attend the disciplinary hearing and the charge sheet. Also, Mr. Richard faulted the Arbitrator's findings that the report was not tendered at the CMA. It was Mr. Richard's further submission that at the CMA the Respondent claimed for compensation of TZS 13,000,0000/= which was the remaining period of his contract. He stated that the Arbitrator awarded the Respondent a sum of TZS 17,900,000/= including leave and notice without considering that the same was not claimed and was already paid to the Respondent during termination. In response, Mr. Irungu strongly submitted that the Arbitrator properly awarded the Respondent. He stated that the Arbitrator was right to disregard the investigation report that was not used during the disciplinary hearing. Further, the said investigation report did not reflect the charges issued against the Respondent. As such it was a different document. He added that it was DW3's own testimony that they did not avail the investigation report to the Respondent. On the aspect of payment, it was submitted that, the Respondent being a fixed term employee, was rightly awarded his remaining salary, notice and leave as he had requested in the CMA F.l. He stated that there is no proof that the Respondent was paid his terminal dues. As rightly contended by Mr. Richard, in his testimony the Respondent did not allege that he was not availed with job description as found by the Arbitrator at page 25 of the impugned decision. The Arbitrator raised such issue suo motto and proceeded to determine the same. From the records, it is true that no job description was tendered to show the Respondent's duties and responsibilities. But the record shows further that the Respondent was quite aware of his duties assigned. This is reflected in the Respondent's testimony before the CMA. When testifying he stated in verbatim as follows: Majukumu yangu kazini ilikuwa kuratibu na kusimamia manunuzi hapo kwa Mlalamikiwa From the above quotation, the Respondent admitted that his duties were to supervise procurement activities in the Applicant's company. Again, when cross examined the Respondent added that: Majukumu yangu ni kutafuta pia watoa huduma vifaa mbalimbali vya kiofisi, kusimamia malipo ya hao wanaopatikana wakileta mzigo nasimamia mauzo na pia kuidhinisha malipo. Therefore, even in absence of the alleged job description, the Respondent's responsibilities were known to him. Regarding the issue of not being served with the investigation report, the same was stated by DWl when cross examined. He clearly testified that; after the investigation completed, the Respondent was not served with the investigation report. I join hands with Mr. Richard's argument that the same was not also raised by the Respondent. However, in the CMA Fl, the Respondent claimed for breach of contract 14 which resulted to his termination of employment. Therefore, in due course of examining whether the contract was fairly breached, the procedures followed to arrive to the decision of termination must be examined if they were stipulated as provided by the law. As stated in the first grounds, the Respondent was terminated for negligence which falls on misconduct. The termination procedures on the ground of misconduct are provided under Rule 13 o f GN. No. 42 o f2007. The first procedure requires the employer to conduct investigation and ascertain whether there are grounds for hearing to be held. The provision did not direct the employer to avail the employee with the investigation report upon conclusion of the investigation. However, in some special cases and circumstances like the present one, the employer ought to have supplied the employee with the investigation report. It is my view that the report if supplied will help the employee to be aware of the evidence the employer has against him/her so as to enable him/her to prepare for his defence. Thus, to afford him/her with a fair hearing. This is also the Court's position in the case of Severo Mutegeki & Another v. Mamlaka Ya Maji Safi Na Usafi Wa Mazingira Mjini Dodoma (supra) where at page 19 it was held that: ...it is the audit report which triggered the charges against them. In that regard, the non- involvement of the appellants and subsequent conviction based on that report was irregular because they could not adequately prepare for the hearing before the disciplinary committee of the Respondent. Instead, it is the Respondent who being in possession of the report had all the ammunition to make a stronger case which was to the disadvantage of the appellants which rendered what followed to be unprocedural. Regarding the award of the remaining period of the contract, it is my view that since the Respondent had reason to terminate the Respondent but he only violated some of the stipulated procedures, the Respondent is not entitled to all the remaining months of the contract. In the case of Felician Rutwaza v. World Vision Tanzania, Civil Appeal No. 213 of 2019, Court of Appeal of Tanzania at Bukoba (unreported), the Court confirmed the High Court's decision where the award of 12 months remuneration was reduced to 3 on the ground that the employer had valid reason to terminate the employee but he violated some of the specified procedures. In the referred case, the Court went on to refer to the case of Sodetra (SPRL) Ltd v. Mezza & Another, Labour Revision No. 207 of 2008, High Court where my learned Sister Hon. Rweyemamu, 16 J (as she then was) interpreted Section 40(1) (c) o f the ELRA by holding that: ...a reading of other sections of the Act gives a distinct impression that the law abhors substantive unfairness more than procedural unfairness, the remedy for the former attracts a heavier penalty than the latter... Similarly, in the circumstances of this case, it is my view that the Award of the remaining months of the contract is too excessive considering the fact that the Applicant proved the reason for termination. Moreover, I have examined other procedures for termination as they are provided under Rule 13 (supra) and the same were adhered. On such basis, the Award of 19 months salaries is hereby reduced to 10 months remuneration. The Applicant also claimed on the Award of leave payment and one month salary in lieu of notice. As rightly contested by the Applicant, in the CMA FI the Respondent did not claim for the referred reliefs awarded. However, as per Section 44 o f the ELRA, upon termination, the employee is entitled to the same regardless the fact that he prayed or not. Thus, the Arbitrator properly awarded the same. Turning to the last ground Mr. Richard submitted that, the Arbitrator in analyzing the evidence did not consider and analyse the final submission made by the Applicant herein. He urged the Court to adopt the final submission of the Applicant as part of this submission in support of this revision. He therefore urged the Court to grant the application. In response, Mr. Irungu was of the strong position that the Arbitrator considered the final submissions filed. He further submitted that the final submissions are not evidence to state they will change the status of testimony of the parties to the case. He stated that such issue is irrelevant. On this ground, I join hands with Mr. Irungu's argument that final submissions are not evidence. It is the analysis of evidence which has been already tendered. Thus, the Arbitrator will only be faulted if he did not consider the evidence on record and not final submission as claimed by Mr. Richard. In the premises, I find the present application to have partly succeeded. The Applicant proved the reason for termination of the employment contract. Therefore, the CMA's Award is hereby revised. The Applicant is ordered to pay the Respondent a total of TZS 10,264,320/= being ten months salaries as compensation for breach of contract, one month salary in lieu of notice and one month salary as leave payment. It is so ordered. JUDGE 07/05/2024 Judgement pronounced and dated 7th May, 2024 in the absence of the Applicant and in the presence of the Respondent in person. Y.J. MLYAMBINA JUDGE 07/05/2024