20131028 TZHC Dodoma

• t IN THE HIGH COURT OF TANZANIA AT DODOMA I ,-., REVISION NO.01 OF 2013 I TANZANIA MEAT COMPANY LliD ...................APPLICA'NTS I vs i MOHAMED GHOST AND OTHERS-------------RESPONDENT I (Original!CMA!DOM/223/2011) I 18/04/2013 & 28/10/2013 R. M. RWEYEMAMU, J:- JUG DEMENT The respondent/employees successfully filed a claim of unfair termination against their employer the applicant, in the Commission for Mediation and Ar itration (CMA). In its 1 ,/ award issued on 29/11/2012, the CMA decided that the employer had failed to prove that . i the employees were guilty of the alleged miscon9uct namely, stealing meat and ordered their reinstatement without loss of remuneration. In reaching that decision, the CMA Arbitra.tor reasoned that the employer had failed to disprove the employees' defence that their possession of condem~ed meat was authorized by the veterinary doctor (who has the .authority on the use of that meat); and that their transfer of the said meat to the woman who :was found in posse~sion was innocent and proper. The said conclusion was based on the facts; that the evidence of the veterinary ! I doctor and the lady found in possession was missing at both the disciplinary committee . I I hearing and arbitration; that such evidence was necessary to prove guilty possession, and therefore that; the employer had failed in his duty!' to disprove the emJloyees' I defence. [1] ' r- Aggrieved, the employer sought revision of that decision on gr unds contained in the I ·.• supporting affidavit which summarized are, the Arbitrator's decision that the employees' were unfairly terminated was against the weight of the evidence; that the adduced evidence clearly established that the employees were guilty of a misconduct they were charged with I before the disciplinary committee; that their defence in the form of a dbctor's permit certificate to possess the condemned meat was a forgery; and therefdre that the CMA decision was wrong and against the law. At the hearing of this application, the employer was represente d by Mr. Kuwayawaya 1 :~i:~~ate while the respondents were represented by Mr. Jaha of TUl!CO, a registered trade Substantiating on the averred to grounds, Mr. Kuwayawaya ar •ued that there was enough proof that condemned meat was recovered from a woman, 4ose explanation that he got the condemned meat from the employees was not denied by them. Instead, their I explanation was that they were given permit to possess the said meat by the veterinary doctor. According to Counsel, that explanation was negated by the fact that the stamp on the permit letter was not from the Veterinary Doctor, rather, it was from the office of the abattoir Manager and it was tendered but ignored by the Arbitrator. In response Mr. Jaha argued that the Arbitrator properly believed the employees' undisputed defence that they were given permit to possess the meat in question by the I Veterinary Doctor; that they gave it to a lady who was later apprehenqed with it. He added I that the employer failed to disprove that defence when it failed to call the Veterinary Doctor or the woman found in possession to testify. In a brief rejoinder Mr. Kuwayawaya added that if the employees had permit to possess the condemned meat, they should have given the same to th~ lady to whom they I I [2] i I, • I' !i I ' :. I \ sold the meat; and that, there was no rational exp,,anation why they sold the condemned • meat if it had been given to them. Ii ' I have considered the parti~s arguments ard the Arbitrator's rersoning in the award and find that; two key issues were not proved. Th©se issues are; .whether the employees I I I had stolen condemned meat and sold it to a woman in whose pos~ession it was found. Ii,. ,, Those issues would have been ascertained had the veterinary doctor and the woman been called to testify, thatiwould have shcid light on the co~dit1ons under which possession was given to the employees plus, manner in which thJ wo man got possession 1 that is, whether she had bought the condemned ~eat from the emploiees or not. It was the employer who had the burden to prove guilty pos~ession and theretork fairness of the employees' termination. In the absence of such eyidence and pr~f, I rail to agree with the applicant's submission that the Arbitrator's decisi~n was. not justifi~d by the evidence on record and should be revised and set aside. lnste~ad(lin-ci:thiJ : /. "f-'<t; (;J £~ilic'Jtion to have no merit r ',, '">x .,,. . , 't an d d1sm1ss I . l/i// l.lfJi~ B,'~iff;;~;\)1,J,\ ,::, :I\~.,1-~;\' Ve\ t JJrei ~ . ·~1!1 ~'-=-----~f\......_,,,,.,,. ~' ,. >l/'.-if'·:?: · "~_Jii :\ -' ,,. ,·\ ~. \i-J-i'Jf:'-~l!'jd'"' . .. R.M. Rweyemamu0, ~,::;:::::,;' i· :, .; . . ·\,._.~ .',. ~ .: ,,.~·-, '~'\." JUDGE ·-~t-.._"J,~. '.Lc[·.r ,. ,,,v_ .;;;;..;;;;..;;~" 28/1012oi13 ~S(;-t?rv: I ,'I v r ["'.'.~~;~ :;· _,~•"';,..._-.,~!:;,7:::;: ,~~~--.A'.• -: • i • I Order: This ruling shall be delivered to the partiJ~ by the Hon. RJgis rar on the date to be notified to them. I I 11