REV NO 17465 OF 2024 CAR GENERAL TRADING LIMITED VRS WILLIAM MBATILO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM REVISION APPLICATION NO. 17465 OF 2024 CASE REFERENCE NO. 202407201000017465

BETWEEN CAR & GENERAL TRADING LIMITED .................................. APPLICANT

VERSUS WILLIAM MBATILO ................................. .................. RESPONDENT

JUDGEMENT Date of last Order: 12/09/2024 Date of Judgement: 01/10/2024 MLYAMBINA.

3. The brief facts as can be gathered from the records are that; on 22nd November 2016, the parties herein commenced employment relationship. The Respondent was employed in the position of field Service Engineer. For the reasons which will be apparent herein, the Respondent was terminated from service on 29th April, 2021. Aggrieved by the termination, he referred the matter to the Commission for Mediation and Arbitration (herein CMA) where the dispute was registered as Labour Dispute No. CMA/DSM/ILA/84/42/2021. Having considered the evidence of the parties, the CMA decided the dispute in favour of the Respondent. He was Awarded a total of TZS 12,129,600/= being 12-month salaries as compensation for the alleged unfair termination, one month salary in lieu of notice TZS 790,400/=, TZS 790,400/= being leave pay and TZS 1,064,000/= as severance pay. Aggrieved by the Award, the Applicant filed the present application on the following grounds: i. That, the trial Arbitrator erred in law and facts by admitting exhibits G l, G2, G3 and G4 without following the due process of law. ii. That, the trial Arbitrator erred in law and facts to rely his decision on the Evidence which was not tendered and admitted as per the law. iii. That, the trial Arbitrator erred in laws and facts by his failure to state which procedure of the laws was violated by the Applicant so as to term the Respondent's

termination un-procedural. iv. That, the trial Arbitrator erred in laws and facts by holding that the Applicant failed to advance valid reasons for termination of the Respondent contrary to the evidence and testimony given thereto. v. That, the trial Arbitrator erred in law and in fact by ordering the payment of Notice and leave to the Respondent which was already been paid by the Applicant. vi. That, the Arbitrator erred in laws by failure to specifically point out how the Applicant failed to comply with provision of the laws so as to term the termination of the Respondent unlawful. vii.That, the Arbitrator erred in laws by holding that it was mandatory to the Applicant to show the evidence of the previous misconduct or warning be fore the termination of the Respondent. viii. That, the Arbitrator erred in laws by ordering the payment to the Respondent based on the salary other than the one provided by the later during the institution of his dispute and opening statement. ix. That, the Arbitrator erred in laws and facts by his failure to analyze evidence submitted by the Applicant and hence made an Award which is un lawful, illogical and irrational. The application proceeded by way of written submissions. Before the Court, the Applicant enjoyed the services of Mr. Anindumi Jonas Semu, learned Counsel. On the other side, Ms. Adelbera John Nyakiriga, Personal Representative was

for the Respondent. Arguing in support of the application, the Applicant joined the first and second grounds, the third, sixth, seventh and nineth whereas the fourth and eighth grounds were separately submitted. To start with the first and second grounds, it was Mr. Semu's argument that it is a trite law the witness should request to submit his annexures as evidence after it has been cleared for its admission as an exhibit. He stated that the exhibit should be duly identified, cleared and admitted when it is tendered. Thus, when an exhibit is not tendered as per the law, it cannot be relied upon as evidence but may only be marked for identification purpose only. He was of strong view that exhibits G l, G2, G3 and G4 were not properly tendered before the CMA, hence wrongly relied by the Arbitrator. In support of his submission, he referred the Court to the case of Mhubiri Rogega Mong'ateko v. Mak Medics Ltd, Civil Appeal No. 106 of 2019, where the Court held that: It is a trite law that a document which is not admitted in evidence cannot be treated as forming part of the record even if it is found amongst the papers in the record It was further held that: Therefore, it is clear that the two Courts below relied on the evidence which was not tendered and admitted in evidence as per the requirement of the law. This omission led to miscarriage of justice because the Appellant

was adjudged on the basis of evidence which was not properly admitted in evidence. In response, Mr. Nyakiriga was in surprise of the particular ground. He stated that the contested exhibits were tendered by the Applicant himself through his witness as part of his testimony before the CMA. He argued that; if the Applicant is challenging his own testimony, it is equivalent as stating that she did not present document to be relied upon as evidence before the CMA. Mr. Nyakiriga submitted further that; even if the said exhibits are to be excluded, it would not materially affect the fundamental aspects of the case. There are still undisputed testimonies from the parties to prove the case. He therefore urged the Court to dismiss the ground for lack of merits. I have revisited the records which shows that the contested exhibits were all tendered by DW2, Haroub Suleiman. As the record shows, Exhibit G1 is the Respondent's appointment letter, G2 - disciplinary hearing attendance form, G3 - disciplinary hearing form, and G4 is the termination letter. The case of Total Tanzania Ltd v. Samwel Mgonja (Civil Appeal No.70 of 2018) [2021] TZCA 265 gives a guidance on how an exhibit can be tendered as follows: That is, if the witness wants to tender a particular document, pleaded and attached to his witness statement, he ought to make a prayer for tendering it as exhibit. And the adverse party

should be given a chance to object or concede to its admission... In the matter at hand, as CMA records shows, exhibit G l, G2, G3 and G4 were all admitted without following the above stipulated procedure. There is no prayer from the witness to tender the exhibits in question. Furthermore, the other party was not afforded the chance to respond as to whether he accepted or rejected the exhibits in question. As rightly submitted by Mr. Nyakiraga, the contested documents were tendered by the Applicant himself through his witness and the other party had no objection on their admission. Under the circumstances, I find the Applicant's contention on the improper admission of the exhibits is an afterthought. If the Applicant is well conversant with the required procedures, he ought to have followed the same or raise his objection before the CMA while tendering the same. Therefore, such ground lacks merit. Taking into account of the provision of Section 88(4) o f the Emp/oymenet and labour relations act (herein ELRA) which require the Arbitrator to conduct Arbitration proceedings with minimal legal formalities, I find admission of the relevant documents does not occasion injustice in any way. Thus, the 1st and 2nd ground lacks merit. Coming to the third, sixth, seventh and ninth grounds, it was Counsel Semu's strong submission that the employer proved before the CMA that the procedures

for termination were followed as per the law. He added that the investigation was conducted before the decision to proceed with disciplinary hearing was made and the same was done as per the company policy or mechanism. The employee was afforded his right to be heard as it was evidenced by DW2 and provided under Rule 13 o f the Employment and Labour Relations (Code o f Good Practice) Rules, GN No. 42 o f2007 (herein GN. No. 42 o f2007). In support of his submission, Counsel Semu cited the case of Paschal Bandiho v. Arusha Water Supply & Sewerage Authority Civil Appeal No. 04 Of 2020, where the Court stated that: An investigation prior to hearing is variable, the process of investigation depends on each institutional mechanisms but central to that is that an employee should afforded an opportunity to be heard prior to dismissal. He also cited the case of Geita Gold Mining Limited v. Patrick William, Labour Revision No. 84 of 2019, where this Court stated that; the employer is not compelled to comply with the entire checklist as stipulated under Rule 13 o f GN. No. 42 o f2007. He further referred the Court to the case of Sharifa Ahmed v. Tanzania Road Haulage Ltd, Revision No. 299 of 2014 where it was stated that: What is important is not the application of the code of checklist of fashion, rather to ensure that the process used adhered to the basics of a fair hearing in the

labour context depending on the circumstance of the parties, so as to ensure that act to terminate is not reached arbitrarily. On the other limb of termination on fairness of the reason, it was Counsel Semu's submission that the Applicant had a valid/fair reason to terminate the Respondent in accordance to Section 37(2)(b)(ii) o f the ELRA (supra). He stated that when cross examined, the Respondent admitted himself to have not complied with the directive given by his superior officer in the line of duty. That, the act amounted to gross insubordination as per Rule 12(3)(f) o f GN. No. 42 o f2007. To booster his submission, Counsel Semu referred the Court to the case of Geita Gold Mining Limited v. Eunice Mgore, Labor Revision No. 39 of 2021 and urged the Court to reduce the amount awarded to the Respondent. In response, it was Mr. Nyakiriga's submission that the Applicant did not conduct thorough investigation. To cement on the relevance of investigation, the Respondent referred to numerous Court decisions including the leading case of Kibobery Limited v. John Van Der Voot, Civil Appeal No. 248 of 2021. On the fairness of the reason for termination, Mr. Nyakiriga submitted that the Respondent's termination was unfair. The representative strongly denied the accusation that the Respondent did not comply with the directive given to him by his superior officer (DW1). He stated that

the Respondent complied with the instructions, which directed him to visit Kapunga Rice on 19/04/2021, to assess the issue of generator and identify the necessary parts that needed to be purchased by the Applicant herein, for the Respondent to carry out the repairs. The Respondent then submitted a requisition form with total amount of TZS 120,000/= for consumables materials including transport from Poster to TAZARA which was cancelled on 21/04/2021 by superior officer (DWI), and another individual named Louis George was sent in his place to repair the said generator. Mr. Nyakiriga continued to submit that on the same date, that is on 21/04/2021, the Respondent received a call from Human Resource Officer requesting a meeting on 22/04/2021, during which he was given a notice to attend a disciplinary hearing on 23/04/2021 within 24 hours, which is contrary to Rule 13 (3) o f GN. No. 42 o f2007. It was added that on 29/04/2021, the Respondent was given outcome of the disciplinary hearing together with the termination letter without being given time to appeal against the decision of the disciplinary hearing. Let me start with the reason for termination, the termination letter (exhibit G4), indicates that the Respondent was terminated for gross insubordination as per Clause 23(3), (3.3(k) o f the Company Policies and Rule 12(3) (f) o f GN. No. 42 o f2007. In the supreme Court of

Appeal of South Africa, in the case of National Union of Public Service 7 Allied Workers Union (NUPSAWA) Obo Mani and 9 Others v. National Lotteries Board, Labour Case No. 576 of 2012, quoted with approval in the case of Yohana Karanja v. Mbeya City Council, Revision No .10 of 2014, the offence of insubordination was defined to mean: Unfair labour practices occurring when an employee refuses to accept the authority of his or her employer or of a person in a position of authority over an employee. In line with the above definition, insubordination occurs when an employee refuses a lawful order of the employer. In the matter at hand, it is undisputed fact that the order was given by the Respondent's supervisor to visit Kapunga Rice on 19/04/2021 to assess the issue of the generator and identify the necessary parts that needed to be purchased by the Applicant herein. Before the disciplinary hearing, as reflected in the disciplinary hearing form (exhibit G3), the Respondent admitted that he received the instruction in question. The Respondent defended himself that after receiving the instruction, he wrote a request to higher pressure washer office but the said request was cancelled by his supervisor. Going through the records, there is no proof of the request made by the Respondent. The Respondent further stated that the supervisor directed him to go and collect pressure washer

from another customer but when he reached to that customer, he did not succeed. I have read the excuses given by the Applicant and found that they have no merit. If the Respondent was prevented by any sufficient reason to comply with the relevant order, he should have proved the same. In absence of any reason, refusal to comply with the order stands as insubordination. On the basis of the evidence available on records, it is my findings that the misconduct of insubordination is proved in this case. As regards to the procedures for termination, it was the Arbitrator's findings that the investigation was not conducted. As per Rule 13(1) (supra), it is the law's requirement that the employer is supposed to conduct investigation prior to the disciplinary hearing. In 11 the case at hand, there is no proof that the investigation was conducted. Furthermore, on 22/04/2021 the Respondent was notified of the disciplinary hearing which was conducted on 23/04/2021 contrary to Rule 13 (3) o f GN. No. 42 of2007\Nh\ch require the notice to be issued not in less than 48 hours. Thus, the noted procedures were violated by the Applicant as rightly found by the Arbitrator. I have noted Mr. Semu's submission that the procedures ought not to be followed in a checklist fashion. I subscribe to that position and the cases cited thereto. However, in the circumstances of this case, I find the cases cited

are distinguishable to the circumstances of this case where the employer violated some of the fundamental procedures. On the fifth ground, it was briefly submitted that the Hon. Arbitrator wrongly ordered repayment of the notice and leave to the Respondent which was already paid as evidenced by exhibit G4. In response, it was Mr. Nyakiriga's submission that the Applicant is confusing this Court because in the first ground he is rejecting the exhibits tendered including exhibit G4, yet he wants the Court to rely on the mentioned exhibit. The payments in question are payable as per Section 44 o f the ELRA (supra). In this case, through exhibit G4, the Respondent was directed to be paid one month salary as notice of termination and leave payment. On such basis, it is my view that the Arbitrator wrongly awarded him the same. Turning to the last ground, Counsel Semu submitted that The Hon. Arbitrator erred by ordering the payment of TZS 12,129,600.00 to the Respondent while his Opening Statement stated at page 1 showed that his salary was TZS 580,000.00. The statement was restated at page 3 of the CMA F.l but the Arbitrator awarded the Respondent by calculating from the basic salary of TZS 790,400.00 as monthly salary, which is contrary to the amount shown in the opening statement and CMA FI. In response, it was Mr. Nyakiriga's submission that the CMA F.l reflects the basic salary

after deductions, while the amount of TZS 790,400/= is the gross salary. That, the Arbitrator awarded remuneration as per Section 44(l)(a) o f the ELRA (supra). It was added that; during examination-in-chief, the Respondent confirmed his remuneration to be TZS 790,400/= per month and there was no objection on the said remuneration by the Applicant herein. As rightly submitted by Counsel Semu, through the CMA FI, the Respondent stated that his monthly salary was TZS 580,000/=. Similarly, in the opening statement he stated the same. Therefore, the salary applied by the Arbitrator is contrary to the evidence in record. In the result, I find the present application to have partly succeeded. The Award is reduced to six-month salaries as compensation for unfair termination. Other remedies awarded by the Arbitrator are hereby quashed. The Applicant is ordered to pay the Respondent the total of TZS 3,480,000/=. It is so ordered. Y. 3 . MLYAMBINA

JUDGE 01/10/2024 Judgement pronounced virtually and dated 1st October, 2024 at 2:20pm in the absence of the Applicant and in the presence of Ms. Adelbera John Nyakiriga, Personal Representative for the Respondent.