DAMASI SAMSON HEMUV

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM LABOUR REVISION APPLICATION NO. 30293 OF 2024 (Arising from an Award issued on 13/11/2024 by Hon. Kokusiima, L, Arbitrator, in Labour Dispute No. CMA/DSM/ILA/89/2024/55/2024 at Ilala) DAMASI SAMSON HEMU ..............................................................APPLICANT

VERSUS MSIMBAZI CENTRE ......................…………………………………. RESPONDENT

JUDGMENT Date of last Order: 14/03/2025 Date of Judgment: 27/03/2025 B. E. K. Mganga, J. Damas Samson Hemu, the abovenamed applicant, was employed by Msimbazi Centre, the abovenamed respondent for two years fixed term contract of employment. The said two-year fixed period contract commenced on 1st January 2022 and was expected to expire on 31st December 2023. In the said fixed period contract, applicant was employed as welder at monthly salary of TZS 362,880/= monthly. It is undisputed that, on 23rd December 2023, respondent allowed her employees including applicant to go out for picnic. It is also undisputed that, while out for picnic, employees of the respondent including applicant, enjoyed among other thing alcohol. It is said that, when they returned at office, applicant assaulted and injured one of his co-workers. 1 Based on the above, on 1st February 2024, respondent terminated employment of the applicant due to misconduct. Dissatisfied with termination of his employment, on 21st February 2024, applicant filed Labour Dispute No.CMA/DSM/ILA/89/2024/55/2024 before the Commission for Mediation and Arbitration (CMA) at Ilala claiming that respondent breached his employment contract. In the referral form (CMA F1), applicant indicated that he was claiming to be paid TZS 8,740,000/= as compensation for a breach of contract. On 13th November 2024, Hon. Hon. Kokusiima, L,

Arbitrator, having heard evidence of the parties, issued an award that termination was substantively fair but procedurally unfair. With those findings, the arbitrator awarded applicant to be paid TZS 1,140,000/= being three months’ salary compensation for procedural unfair termination. Applicant was dissatisfied with the said award hence this application for revision. In the affidavit in support of the notice of application, applicant raised four issues namely: - (1) Whether the award delivered by the Commission for Mediation and Arbitration was properly procured. (2) Whether the arbitrator considered the none-existence of the contract the disciplinary meeting as claimed by the respondent. (3) Whether the award of TZS 1,140,000/= as compensation to the applicant was properly procured and 2 (4) Whether respondent's reasons of termination of employment contract of the applicant were reasonable as stated in the award. Respondent did not want this application to go unopposed as a result, she filed the notice of opposition and the counter affidavit sworn by Mr. Emmanuel Elias Kaasa, her Personal Representative. When the application was called on for hearing, Ms. Loveness Ngowi, learned Advocate, appeared and argued for and on behalf of the applicant while Mr. Emmanuel Kaasa, Personal Representative, appeared and argued for and on behalf of the respondent. Arguing the 1st and 4th

issues together, counsel for the applicant submitted that, reasons for termination were not reasonable because, DW1 testified that she was assaulted by the applicant and that, she was injured, as a result, she went at hospital to be treated. Counsel submitted that, neither medial report, PF3 nor police report book (RB) were tendered by the respondent to prove that DW1 was assaulted and injured by the applicant. When probed by the court, counsel for the applicant conceded that, it is not a requirement of law that whenever a fellow employee assaults another, a medical or police report must be tendered as proof of assault. Counsel for the applicant strongly submitted that, respondent had no valid reason for termination and 3 prayed that the application be allowed and applicant be awarded 23 months’ salary compensation being the remaining period of the contract. Arguing in support of the 2nd issue, Ms. Ngowi submitted that, reasons advanced by the respondent in terminating employment of the applicant was that the latter assaulted a fellow employee. Counsel submitted that, in the award, the arbitrator did not consider that there was no disciplinary hearing that was conducted. She added that, applicant was not called to attend the disciplinary hearing after replying to the show cause. When probed, counsel conceded that, in CMA F1 which is pleadings, applicant did not indicate that he

was not called to attend the disciplinary hearing prior to termination of his employment. Counsel was quick to submit that, rule 13 of the Employment and Labour Relations (Code of Good Practice) Rules, GN. No. 42 of 2007 provides that, disciplinary hearing must be conducted. She went on that, the Arbitrator held that disciplinary hearing was conducted based only on oral evidence of DW1 and DW2, but applicant stated that he was not called to attend the disciplinary hearing. Arguing in support of the 3rd issue, Ms. Ngowi, submitted that, the award of TZS 1,140,000/= was not proper because, it is contrary to the provisions of section 40(1)(c) of the Employment and Labour Relations Act, Cap. 366 R.E.

2019. Counsel submitted that, applicant was 4 awarded three months compensation instead of twelve months. With those submissions, counsel for the applicant prayed the court to allow the application. Resisting the 1st and 4th issues, Mr. Kaasa, personal representative of the respondent submitted that, respondent proved the misconduct that was committed by the applicant hence termination was fair because, respondent had a valid reason for termination. The personal representative submitted that, applicant assaulted a fellow employee while at place of work. In respect of the 2nd issue, Mr. Kaasa submitted that, rule 13 of GN. No. 42 of 2007 (supra) relates to fairness of procedure. He further submitted that, applicant wrote a letter (exhibit D4) admitting that there was misunderstanding between himself and his co-employee. He added that, on 5th January 2024 applicant was served with the charge and on 8th January 2024 disciplinary hearing was conducted as per exhibit M5. He also submitted that, applicant attended the said disciplinary hearing. In respect of the 3rd issue, Mr. Kaasa submitted that, there was no unfair termination of the contract because, the dispute that was filed by the applicant is breach of contract and not termination of employment contract. He added that, applicant committed a misconduct within six months while still under warning. 5 In rejoinder submissions,

counsel for the applicant submitted that, exhibit M5 was not received by the applicant because there is no proof that he received it. She added that, there is no proof that applicant attended the disciplinary hearing. I have examined evidence of the parties in the CMA record and considered their submissions in this application. The issue is whether termination of employment of the applicant was fair. It was evidence of applicant Damas Samson Hemu (PW1) that, his contract of employment was terminated because on the day respondent allowed all employees to go for picnic he quarrelled with his co-worker. He also testified that when they arrived at working station, the employer called them and asked them to write a show cause letter. That, after the said show cause letter, his employment was terminated. In his evidence, PW1 stated that he was not called to attend disciplinary hearing. On the other hand, Grace Aggrey Mjema (DW1) testified that on the day respondent took out all employees for picnic. That while at picnic, after taking alcohol, applicant exhibited unbecoming behaviour. She went on that, on their return at workstation, applicant slapped her to the ground as a result she was injured by the bottle of bear she was holding. DW1 testified further that she went at police where she was 6 issued with a PF3 and thereafter went to hospital for treatment. She also testified that

she was called to attend the disciplinary hearing. Ceaely John Tilia (DW3) evidence is similar to that of DW1 on aggressiveness behaviour of the applicant while enjoying their picnic. On his part, MR. Joseph Ntilema (DW2) testified that applicant was terminated due to misconduct namely assault over co- employee and that disciplinary hearing was conducted. It is undisputed by the parties that applicant was terminated due to misconduct namely assault over his co-employee. In his evidence, applicant (PW1) stated that there was just a quarrel but looking into totality of evidence of the parties especially that of DW1 who was not shaken during cross examination, I find that applicant committed the misconduct that led to termination of his employment. I therefore hold that respondent had valid reason for termination hence termination was fair substantively. It was argued and submitted by counsel for the applicant that respondent did not tender medical report, PF3 or police report book (RB) to prove that she was assaulted by the applicant. With due respect to counsel for the applicant, that is not a requirement of the law. I ma of that view because, it is not a requirement of the law that a every fact must be proved by documentary evidence. Section 61 of the Evidence 7 Act, Cap. 6 R. E. 2019 only requires facts to be proved by oral evidence. This Court(Samata J, as he then was) put it

clear in the case of Julius Billie v. Republic [1981] TLR 333 and Lancert Laboratories Tanzania Ltd vs January Munyuri Byaro (Revs Appl No. 463 of 2021) [2022] TZHCLD 607 (10 June 2022) that, both documentary evidence and oral evidence carries the same weight. The Court of Appeal in the case of Flano Alphonce Masalu @ Singu vs Republic (Criminal Appeal 366 of 2018) [2020] TZCA 197 (30 April 2020) clarifying on what was held by this court in Billie’s case (supra) held that:- “non-production of a thing which is the subject- matter of court proceedings goes only to the weight and not to the admissibility of the evidence concerning or relating to it. The court did not lay down or restate any principle of law requiring the tendering of the stolen goods or the offensive weapon as a precondition for establishing the guilt of an accused person. Whether or not the prosecution must tender such items depends, on the whole, upon the circumstances of the case.” For the foregoing, I find that submissions by counsel for the applicant on this aspect is devoid of merit and dismiss the 1st, 2nd and 4th grounds. I should point out in a passing that the 2nd ground was misplaced. At CMA, the arbitrator found that termination was fair substantively but unfair procedurally and awarded applicant to be paid 8 One Million One Hundred Forty Thousand Tanzanian Shillings (TZS 1,140,000/=) only being three

(3) months salary for procedural unfairness. Respondent was not aggrieved with the said award hence did not file revision to challenge the said award. It was submitted by counsel for the applicant that arbitrator erred to award applicant three months salary compensation instead of 12 months’ salary compensation in terms of section 40(1)(c) of Cap. 366 R.E.2019(supra). With due respect to counsel for the applicant, that is not the correct current position of the law. The Correct position of the law is that, when termination is substantively fair but unfair only procedurally, the court or the arbitrator may award compensation below the minimum amount provided under section 40(1) of Cap. 366 R.E. 2019(supra). In fact, in the case of Felician Rutwaza vs World Vision Tanzania (Civil Appeal No. 213 of 2019) [2021] TZCA 2 (2 February 2021) the Court of Appeal held that:- “In the context of the case in which the unfairness of the termination was on procedure only, guided by some decisions of that court, the learned Judge reduced compensation from 12 to 3 months. With respect, we agree with her entirely... We respectfully subscribe to the above interpretation, for we think it is founded on logic and common sense; it reflects a correct interpretation of the law. Under the circumstances, since the learned Judge found the reasons for the appellant's termination were valid and fair, she was

right in exercising her discretion ordering lesser compensation...” 9 I have pointed hereinabove that termination of the applicant was substantively fair hence he was not entitled to be paid 12 months salary compensation. I therefore find that the 3rd ground relating to the relief applicant was awarded has no merit. For all discussed hereinabove, I find that the application lacks merit. I therefore hereby dismiss it. Dated at Dar es Salaam on this 27th March 2025 B. E. K. Mganga

JUDGE Judgment delivered on this 27th March 2025 in Chambers in the presence of Damas Samson Hemu, the Applicant and Joseph Ntilema, the Manager of the Respondent. B. E. K. Mganga

JUDGE 10