dar es salaam yatch club vs lucy kimwaga 2021 tzhcld 323 27 august 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION DAR ES SALAAM LABOUR REVISION NO. 295 OF 2020 BETWEEN DAR ES SALAAM YATCH CLUB...................................................... APPLICANT VERSUS LUCY KIMWAGA........................................................................ RESPONDENT JUDGMENT Date of Last Order: 28/07/2021 Date of Judgement: 27/08/2021 I, ARUFANI, J, The applicant filed the instant application in this court seeking for revision of the award of the Commission for Mediation and Arbitration at Kinondoni (hereinafter referred as the CMA) delivered in Labour Dispute No. CMA/DSM/KIN/R.456/18/117 dated 15th June, 2020. The application is made under section 91 (1) (a) and (2) (b) and (c), section 94 (1) (b) (i) of the Employment and Labour Relations Act No. 6 of 2004 (herein after referred as the ELRA) Rule 24 (1), (2) (a) (b) (c) (d) (e) and (f); Rule 24(3) (a), (b), (c) and (d) and Rule 28 (1) (c) (d) (e) of the Labour Court Rules GN. No. 106 of 2007 (hereinafter referred as the Rules) and any other enabling provisions of the law. i The background of the application is to the effect that, the respondent was employed by the applicant as a Bar maid from 22nd August, 2000. She rose through different ranks until when she became a Purchasing Officer. On 23rd April, 2018 she was terminated from her employment on ground of misappropriation of the property of her employer and gross dishonesty. It was alleged that, the respondent being the applicant's Purchasing Officer, failed to make proper purchase and caused loss to the applicant. Being aggrieved by the termination, the respondent referred the matter to the CMA where decision was made on her favour. The Arbitrator found the respondent's termination was both substantively and procedurally unfair. The Arbitrator ordered the respondent be reinstated to her employment without loss of her remuneration. The arbitrator ordered further that, if the applicant would have desisted to reinstate the respondent, the applicant would be required to pay the respondent the salary of twelve months as compensation for termination of her employment and all unpaid salaries up to the date of paying the said compensation. The applicant was dissatisfied by the award issued by the arbitrator and filed the present application in this court to challenge the 2 award issued by the CMA. The application is supported by the affidavit of Lulinga Jonathan Lulinga, the applicant's Advocate and in opposition, the respondent filed in the court her counter affidavit. The parties were represented in the matter and while the applicant was represented by Mr. Juvenalis Ngowi, Learned Advocate, the respondent was represented by Mr. Jackson Mhando, Personal Representative. When the matter came for hearing before my learned sister Muruke, J. on 10th June, 2021 she ordered the application be argued by way of written submission. I commend both sides for filing their submission in the court within the time given by the court. The counsel for the applicant argued in support of the application that, the arbitrator erred in law and in fact in finding termination of employment of the respondent was unfair as he failed to analyse the applicant's oral and documentary evidence. He stated that, the applicant tendered before the CMA the notice of suspension, investigation report, CCTV camera footage together with oral evidence adduced by DW1 and DW2 which proved termination of the respondent's employment was due to misappropriation of the applicant's property and gross negligence. He argued that, if the arbitrator considered the said evidence, he would have arrived to a 3 decision that there was sufficient evidence to prove the said misconducts, thus the applicant had valid reason for terminating the respondent's employment. As regards to the investigation report, it was submitted by the counsel for the applicant that, the arbitrator erred in law and in fact by deciding that, investigation was not conducted due to the fact that, the investigation report was neither signed nor dated by the person conducted the same. He stated that, the applicant tendered before the CMA the investigation report which was admitted in the matter as exhibit DY3 but it was ignored by the arbitrator. He argued that, the law under Rule U of the Employment and Labour Relations (Code of Good Practice) Rules, GN. No. 42 of 2007 requires the employer to conduct an investigation when there is a serious allegation of misconduct against an employee. He stated the purpose of investigation is to obtain necessary evidence to initiate a disciplinary hearing. He went on submitting that, the law does not provide for a format as to how the investigation report ought to appear. He referred the court to the case of Emmanuel Talalai v. Cocacola Kwanza, Rev. No. 24/2019. HC at Mbeya (unreported) where it was 4 stated that, the law does not direct the investigation report to be tendered in evidence. It was submitted further by the counsel for the applicant that, the applicant had valid reasons for terminating employment of the respondent and stated the applicant complied with the procedures for termination of employment of an employee provided under the law. He submitted that, the arbitrator erred in law by awarding the respondent 26 months' salaries and 12 months' salaries as an alternative of being reinstated in her employment while termination of her employment was fair. He stated the respondent was paid all of her entitlement as shown in exhibit DY5. The counsel for the applicant argued further that, the arbitrator misdirected himself in considering that, the applicant was required to proof the loss incurred by the applicant due to the respondent's misappropriation of the applicant's property and her gross negligence. He stated that, the loss incurred was not an issue before the CMA and neither of the parties argued on the same. He submitted that was an irrelevant issue in determining the issues of unfair termination and prays for the application to be granted. 5 In response to the grounds of the revision the respondent's representative submitted that, the Arbitrator considered both oral and documentary evidences tendered before the CMA by the applicant. He argued that, as found by the arbitrator the investigation report should contain the names of the person who conducted the investigation, signature of the author, date and findings of the investigation. He stated that, even the CCTV camera footage, (exhibit DY 10) as noted by the arbitrator did not prove the commission of the alleged disciplinary offences. He added that, even admission of the CCCTV camera footage in the dispute as evidence was made contrary to Section 18 (2) of the Electronics Transaction Act, 2015. He supported his argument by referring the court to the case of Simbanet Tanzania Ltd. v. Sahara Media Group Ltd., Commercial Case No. 2 of 2016, HC Com. Div. at DSM (unreported) where it was stated that, compliance with what is provided under section 18 (2) of the Electronic Transaction Act is necessary. It was submitted by the respondent's representative that the respondent was not found guilty of the offences laid against him in the disciplinary charges. He stated the purchasing order, delivery note and tax invoice shows the correct number of goods received and were 6 checked by Ally Kassinge on the same date of 13th February, 2018 as appears in exhibit DY 10 collectively. He stated that, although the purchase was made on 13th February, 2018 but the respondent was suspended on 21st February, 2018, while the goods had already been handed to the store keeper from when it was received. He contended that, the applicant had no valid reason to terminate the respondent's employment and stated the applicant failed to follow the procedures for termination of employment of an employee provided under the law. He argued that, the applicant's counsel misinterpreted Rule 12 (3) of GN. No. 42/2007 as there was no negligence committed by the respondent or evidence adduced before the CMA to substantiate the same. The respondent's representative submitted that, after finding termination of the respondent's employment was unfair, the arbitrator was right to order the respondent be paid her unpaid salaries from when her employment was terminated to the date of being reinstated which was the salaries of 26 months. The arbitrator ordered further that, if the applicant would have desisted to reinstate the respondent the applicant would be required to pay the respondent compensation of twelve 7 months salaries as an alternative to the reinstatement as provided under section 40 (3) of the ELRA. He went on submitting that, the arbitrator was correct to take into consideration the issue of loss as the same was relevant before the CMA as the applicant had a right to work by virtue of Article 22 (1) of the Constitution of United Republic of Tanzania. He went on submitting that, the arbitrator properly analysed the evidence of both parties and prayed the application be dismissed for lack of merit. In his rejoinder, the applicant's counsel reiterated what he argued in his submission in chief. After carefully considered the parties' submissions and going through the record of the matter and the laws relating to this matter, the court has found the issues raised in the affidavit supporting the application together with the issues argued by both sides in their submission can be merged to form the issues listed hereunder:- i. Whether the applicant had valid reason for termination of employment of the respondent. ii. Whether the applicant complied with the fair procedures for termination of the respondent' employment. iii. What reliefs parties are entitled. 8 Starting with the first issue the court has found proper to state here that, it is a requirement of the law that an employer should only terminate employment of an employee on fair reason. The stated requirement is provided under section 37 (1) of the ELRA which states that, it is unlawful for an employer to terminate employment of an employee unfairly. The above referred provision of the law has been observed by this court in various disputes relating to unfair termination and one of them is the case of Mathias Petro V. Jundu Construction & Plumbers, [2015] LCCD 185 where it was stated that, under the ELRA, all employment contracts must be terminated fairly. The duty to prove termination of employment of an employee was fair is placed to the employer by section 39 of the ELRA which states that, in any proceedings concerning unfair termination of an employee by an employer, the employer shall prove that the termination was fair. As provided under section 37 (2) (a) of the ELRA a termination of employment by an employer is unfair if the employer fails to prove that the reason for the termination is valid. The fair reasons for termination of employment of an employee are provided under paragraph (b) (i) and (ii) of section 37 (2) of the ELRA to be the reason relating to the 9 employee's conduct, capacity or compatibility; or based on the operational requirements of the employer. While being guided by the position of the law stated hereinabove the court has found as alluded earlier in this judgment, the respondent was terminated from her employment on ground of misappropriation of the property of her employer and gross dishonesty. The court has found the counsel for the applicant submitted intensively in his submission that, the arbitrator failed to analyse, and he ignored the documentary and oral evidence tendered before the CMA by the applicant's witnesses to prove termination of employment of the respondent was made on valid and fair reasons. The documentary evidence which the counsel for the applicant stated were adduced before the CMA but were not properly analysed and were ignored by the arbitrator are notice of suspension, investigation report, CCTV camera footage, defence for disciplinary charges, purchase order, delivery note and tax invoice. He stated further that, the oral evidence which was ignored by the arbitrator is the oral evidence adduced by DW1 and DW2. 10 After going through the evidence mentioned hereinabove and the award the applicant is challenging before this court, the court has found proper to start by having a look on the charges laid against the respondent and the reasons used to terminate her employment. Thereafter the court will determine whether the reasons used to terminate employment of the respondent were proved to be fair and valid. The court has found that, the letter of suspension issued to the respondent on 22nd February, 2018 (exhibit DY1) shows the respondent was facing a single charge of misappropriation of the applicant's property. Thereafter the respondent was served with the disciplinary charges issued on 16th March, 2018 (exhibit DY3) which shows the respondent was facing two offences of misappropriation of the applicant's property and gross negligence. The court has found further that, as rightly found by the arbitrator and as appearing in the letter of termination of employment of the respondent dated 23rd April, 2018 (exhibit DY4), the respondent was terminated from her employment after being found guilty in the offences of misappropriation of the applicant's property as well as gross dishonesty and not on ground of gross negligence as argued by the counsel for the applicant. li That means one of the offences used to terminate employment of the respondent is the offence of gross dishonesty and not the offence of gross negligence laid in the disciplinary charges (exhibit DY2) given to her. The proceedings of the CMA show the proceedings of the disciplinary committee was not admitted as evidence in the matter and there is no evidence adduced to show the charges served to the respondent were amended before hearing of the matter commenced. It is also not stated anywhere that the respondent was given chance to give her defence in the new offence of gross dishonesty used as one of the reasons of terminating her employment instead of the offence of gross negligence laid in exhibit DY2. Exhibit DY3 shows the respondent made her defence in the offence of gross negligence and not gross dishonesty. Let me pause here for the time being, and I will revert to the above finding when I will be dealing with the second issue. Back to the first issue which is asking whether the applicant managed to prove the reasons used to terminate employment of the respondent were fair and valid the court has found that, it is true as argued by the counsel for the applicant that the Arbitrator stated at page 6 of the award that the investigation report (exhibit DY3) did not meet the legal standards of being an investigation report without stating 12 the law setting the stated standards. The court is also in agreement with the counsel for the applicant that, Rule 27 of the GN. No. 42 of 2007 requires where there is a serious allegation of misconduct an employer may suspend an employee pending investigation of the alleged misconduct and there is no law directing how an investigation report is required to be. However, the court has found that, it is not true that the Arbitrator did not state what caused him to find the investigation report admitted in the matter as exhibit DY3 was not proper. The court has found as argued by the respondent's personal representative the Arbitrator stated clearly in the award that, the investigation report contains statements recorded from different people without indicating the name and signature of the person recorded the statements and is not showing when the statements were recorded, what was being investigated and what was the finding of the stated investigation. The court has gone through the case of Emmanuel Talalai cited by the counsel for the applicant to support his argument and find it is stating it is not a legal requirement for an investigation report to be tendered in a case as evidence and the court is totally in agreement with the stated position of the law. However, the court has found as the 13 report was tendered in the case as an exhibit, it was supposed to be a report which would have assisted to prove the issue which was required to be proved before the CMA. The court has found the way the report is prepared it cannot be said it managed to prove the issues which the CMA was determining in the matter. The court has arrived to the above stated finding after seeing the report is not showing who prepared the same, what was being investigated, what was the finding of the investigation conducted and when the report was prepared. The court has been of the view that, as the investigation report was tendered in the case as evidence it ought to be recorded in a manner which would have assisted the CMA to determine the issues required to be determined. The court has also been of the above view after seeing even the people whose statements were recorded in the investigation report were not called to testify before the CMA and it is not stated anywhere if they testified before the disciplinary committee or not. As for the disciplinary charges, the counsel for the applicant argued the respondent admitted there was irregularities in receiving the goods as she admits the goods were received and checked by one security guard and the LPO was prepared on the following day and 14 signed by another security guard which is contrary to the policy and procedures used at the applicants working place. The court has found the said argument is getting an answer from the defence made by the respondent in exhibit DY3 which was not contradicted by any evidence from the applicant. The court has found the respondent stated clearly in her defence and without being contradicted by any evidence from the applicant that, it was their tradition at their place of work to receive goods and checked by one security guard and the LPO prepared in the next date. To quote her own words, the respondent stated in her defence that "It has been our traditional that, the goods can be received and checked by one security guard and LPO to be prepared on next day due to time limit depending on what time the goods were delivered and received. Hence can also be signed by other security guard on behalf, basing on the information written on security book register, the traditional which has been there for many years and nothing has been going wrong" As there is no evidence adduced by the applicant to show what was stated in the defence of the respondent was contrary to their tradition of doing work at their place of work, the court has failed to see how the alleged admission proved the respondent committed the 15 offences used to terminate her employment. The court has also gone through the purchase order, delivery note and tax invoice which were admitted in the matter as exhibit DY10 which the counsel for the applicant stated were not properly analysed by the Arbitrator but find that, although it is true that there is nowhere indicated in the award the said evidences were considered by the Arbitrator but the court has failed to see how those evidence proved the respondent committed the offences used to terminate her employment. The court has considered the submission made by the counsel for the applicant that the evidence adduced by DW1 and DW2 managed to prove the offences laid against the respondent but the Arbitrator failed to analyse and consider the same properly. The court has come to the finding that, as stated earlier in this judgment the charge of gross negligence the counsel for applicant submitted was proved by the evidence adduced by the mentioned witnesses is not one of the offences used to terminate employment of the respondent. One of the offences used to terminate employment of the respondent is the offence of gross dishonesty which as provided under Rule 12 (3) (a) read together with (d) of the GN. No. 42 of 2007 is a different offence from the offence of gross negligence. 16 As for the offence of misappropriation of the applicant's property the court has found the word "misappropriation" used in the said offence is defined in the Oxford Advanced Learner's Dictionary of Current English, Seventh Edition, at page 937 to mean "taking somebody eIse's money or property for yourself, especially when they have trusted you to take care of it". That being the meaning of the word misappropriation the court has keenly considered the evidence adduced before the CMA by the applicant to establish the respondent committed the said offence but failed to see anywhere stated by any of the appellant's witnesses that the respondent took the crates of drinks alleged were not delivered to the applicant. To the contrary the court has found the evidence adduced by DW1 and DW2 was trying to show the respondent caused loss to her employer by being negligent in purchasing and receiving the goods of her employer and not that she misappropriated the properties of her employer or she was dishonesty. The above finding of this court can be seeing in the evidence of DW1 who when he was cross examined he said in his evidence that:- "Tuhuma yake Hikuwa ni uzembe uliosababisha hasara. Uzembe huo aliufanya wakati wa kupokea mizigo kwani yeye huagiza na 17 kumkabithi mtu wa stoo.... mlalamikaji aliachishwa kazi kwa kosa la uzembe lililosababisha hasara kwa Yatch Club". When DW2 was also cross examined, he had the similar words as he said that, the respondent was terminated from her employment because of the offence of occasioning loss of the properties of her employer. To the view of this court the evidence of the mentioned witnesses did not prove the offence of misappropriation of the properties of the respondent's employer or gross dishonesty which were used to terminate her employment but was trying to show the respondent committed the offence of occasioning loss to her employer on allegation of being negligent. That makes the court to find it is not true that, the evidence of DW1 and DW2 was not properly evaluated or was disregarded by the Arbitrator. Coming to the evidence of CCTV camera footage, (exhibit DY10) which the counsel for the applicant argued was not analysed properly the court has found the stated exhibit is not in the record of the CMA brought to this court. However, the court has found DW3 stated the said exhibit showed the crates which were delivered to the applicant were 26 crates and not 32 crates ordered from the supplier. It is the finding of this court that, although the counsel for the applicant said that exhibit 18 was not given weight by the Arbitrator but the impugned award shows the Arbitrator considered the same at page 7 of the award. The court has found the Arbitrator found it was not showing how the goods which were being offloaded in the said exhibit were relating to the offences laid against the respondent. The court has also found the Arbitrator stated that, the CCTV camera footage was showing the respondent going to inspect the goods and later on she was seeing returning to her office without showing the alleged difference of the crates ordered and the crates delivered to the applicant. To the view of this court the applicant was required to adduce sufficient evidence before the CMA to prove on balance of probability that the crates delivered to them were 26 crates and not 32 crates ordered from the supplier. It is also the view of this court that, the applicant was required to adduce evidence to prove the crates of drinks alleged were not supplied to them were misappropriated by the respondent or were not supplied to them because of gross dishonesty of the respondent. The court has found the evidence of the security guard who checked the goods being received, the storekeeper handed the goods 19 after being received and the security guard signed the LPO were important witnesses to prove whether there was deficit of the crates alleged were not supplied to the applicant but the mentioned persons were not called to testify in the matter. The court has come to the above finding after seeing the respondent stated that, from when the goods were supplied to the applicant up to when she was informed about the alleged charges of misappropriation of six crates of drinks about ten days had passed and it was not stated clearly when the alleged misconduct was discovered and who specifically discovered the same. The above finding caused the court to come to the view that, even if all the evidence said by the counsel for the applicant were not properly analysed and were ignored by Arbitrator are put together, they cannot establish the Arbitrator erred in finding the applicant failed to prove the reasons used to terminate employment of the respondent were fair and valid. The requirement to prove the reason for termination of employment of an employee was fair and valid was emphasized in the case of National Microfinance Bank V. Japhet Machumu, Revision 20 No. 710 of 2018 where it was held that:- "Termination of employment must be first substantively fair with fair and valid reasons putting in regard that the concept of right to work as a component of human rights, is so fundamental". The court has considered the further argument by the counsel for the applicant that the Arbitrator misguided himself by taking into consideration irrelevant matters that there was a need to prove the loss incurred by the applicant but failed to see any misguidance in the said finding of the Arbitrator. The court has come to the stated finding after seeing it is not true that there is nobody argued about loss caused to the applicant by the respondent because as alluded earlier in this judgment both DW1 and DW2 stated in their evidence the respondent was terminated from her on employment because of her gross negligence which caused loss to the applicant. The court has also found that, even if it would have been taken the issue of loss was not required to be looked at by the Arbitrator but as appearing in the award of the CMA that was not the ground used by the Arbitrator to determine the matter. The court has found the Arbitrator determined the matter after finding the applicant had failed to prove existence of misappropriation of their property by the respondent 21 and gross dishonesty committed by the respondent as valid reasons for terminating employment of the respondent. Coming to the second issue relating to the fairness of the procedure used to terminate employment of the respondent the court has found that, as stated earlier in this judgment it was not stated clearly whether the respondent was given chance to prepare her defence in relation to the offence of gross dishonesty used to terminate her employment as initially, she was charged with the offence of gross negligence. The court has also found that, as found by the Arbitrator and argued by the respondent's representative there is nowhere stated the respondent was given right of being represented before the disciplinary committee by her fellow employee or representative from her trade union as provided by Rule 13 (3) of the GN. No. 42 of 2007. The court has also found it was not stated anywhere that the respondent was given right provided under Rule 13 (7) of the GN. No. 42 of 2007 to put forward her mitigating factors before the decision being made on the sanction to be imposed to her. It is the view of this court that, if the respondent was given right of being represented in the matter by her fellow employee or representative from her trade union and she was given right of giving her mitigation before decision being 22 made on the sanction to be imposed to her she might have prayed for lenient punishment than termination of her employment. The above find has caused the court to come to the view that, the Arbitrator was right in finding fair procedures for terminating employment of the respondent provided under Rule 13 of the GN. No. 42 of 2007 were not observed. The requirement to terminate employment of an employee on fair reason and fair procedure was insisted in the case of Tanzania Revenue Authority V. Andrew Mapunda, Labour Revision No. 104 of 2014 HC Lab. Div, at DSM (unreported) where it was stated that:- "It is the established principle that for the termination of employment to be considered fair it should be based on valid reason and fair procedure. In other word there must be substantive fairness and procedural fairness of termination of employment, section 37 (2) of the Act". In the light of the above stated position of the law and in totality of all what I have stated hereinabove the court has found termination of employment of the respondent was not made on valid reasons and fair procedures laid by the law were not observed. Hence it is the find of this court that, both the first and second issues are supposed to be answered in negative. 23 As for the reliefs the parties are entitled the court has found that, although the counsel for the applicant stated the Arbitrator erred in awarding the respondent salaries of 26 months but the court has found that were the respondent's unpaid salaries from when her employment was terminated up to when the CMA issued the award. As the said relief of unpaid salaries and an order of paying compensation in lieu of reinstatement is in line with what is provided under section 40 (1) and (3) of the ELRA, the court has failed to see any justifiable reason which can make it to alter the reliefs awarded to the respondent by the Arbitrator. That being said the application for revision filed in this court by the applicant is hereby dismissed in its entirety for being devoid of merit and the award of the CMA is accordingly upheld. It is so ordered. Dated at Dar es Salaam this 27th day of August, 2021. presence of Mr. Issac Lupi, Advocate for the Applicant and in the 24 presence of the respondent in person and accompanied by Mr. Josephat Mhando, Personal Representative. Right of appeal to the Court of Appeal is fully explained. 25