exim bank tanzania ltd vs david mumbii 2018 tzhcld 39 25 may 2018

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 445 OF 2016 EXIM BANK (TANZANIA) LIMITED................. APPLICANT VERSUS DAVID MUMBII..........................................RESPONDENT JUDGEMENT Date of Last Order: 27/02/2018 Date of Judgement: 23/05/2018 L.L.Mashaka, 3. This Judgement is in respect of the application for revision filed by the applicant against the award issued by the Commission for Mediation and Arbitration [to be referred to as CMA] in Labour Dispute No. CMA/DSM/ILA/R. 63/13/139 which found that there was unfair termination both substantively and procedurally and ordered reinstatement of the respondent without loss of remuneration. During hearing Ms. Sofia Stanley, Advocate appeared for the applicant and the respondent was represented by Mr. Michael Nyambo, Advocate. Learned Counsel submitted that the application was made under Section 91 (1) (a), (2) (b) & (c) of the Employment and Labour Relations Act No. 6 of 2004 as amended and Section 94 (1) (b) (i) of the Act No. 6 of 2004, Rule 24 (1) (2) (a) - (f) (3) (a)-(d) and Rule 28 (1) (c) (d) & (e) of the Labour Court Rules GN No. 106 of 2007 and prayed to adopt affidavit of one Mikidadi Mahali Ngoma to form part of her submission. Learned Counsel prayed for this Court to revise and set aside the CMA award which was delivered on 28th July, 2016 based on 3 grounds. The 1st ground being that Hon. Arbitrator erred in law and fact by holding that it was the Zonal Human Resources Officer who made the decision in disciplinary hearing meeting and proceedings to terminate the respondent as a personal decision refer paragraph 10 of affidavit. That under the CMA award page 8, 1st paragraph the statement by Hon. Arbitrator was not true. That before the termination of the respondent, there was a disciplinary hearing conducted on 24/12/2012 and it was well construed with the following 5 members namely Mr. Geofrey Kitundu, Ms. Anna Mrosso, Ms. Irene Mkuu, Ms. Rose Mndolwa and Mr. Grey son Malisa was the observer from the Human Resources Office and the respondent. That these members were from different departments of the applicant. She submitted further that Mr. Kitundu was from the International Bank Department, Ms. Mrosso was from Clearing Unit, Ms. Mkuu was from the Centralized Bank Organization Department, Ms. Mndolwa was from the Legal Department. That before the termination the disciplinary committee hearing was conducted, the respondent appeared before the said Committee and the respondent signed the hearing form on the 02/01/2013 and also signed the minutes of the meeting on same date. That these documents were tendered at the CMA as Exhibit RCMA 3 collectively. That the decision to terminate the respondent came as a recommendation from the Disciplinary Committee (DC), as per last paragraph on Exhibit RCMA 3 the minutes of the Disciplinary Committee Meeting. This establishes that it was not a personal decision of one person but a recommendation by the DC. She contended that even the person who wrote the letter for termination one Hetal Ramaiya was the Assistant - HR Manager from the Head Office and not the Zonal HR Manager. That the termination letter was tendered at the CMA and marked as Exhibit RCMA 4. Therefore she concluded that the decision to terminate was from the Head Office and not by the Zonal HR Manager. On the 2nd ground, referring paragraph 12 of affidavit, it was well established that the respondent was Chief Cashier at the Zanzibar branch of the applicant and has terminated on grounds of serious misconduct, that while in course of work he committed fraud which led the Bank to get a loss of Tshs. 10 million. In regard to that, the relationship between the respondent and the applicant is intolerable, that there is no trust due to the offence committed by the respondent. That even the image of the Bank was tarnished by the acts of the respondent. Therefore to order reinstatement will be contrary to Rule 32 (2) (b) & (c) of GN No. 67 of 2007. That there is no more trust between the employer and employee for that case to order reinstatement was not right. She further argued that the position held by the respondent requires a person of trust and honesty. That he was the Chief Cashier of the Branch and due to the serious misconduct it is very hard to reinstate him to his previous post. Learned Counsel prayed to the Court to consider the situation and revise the order for reinstatement by Hon. Arbitrator. Learned Counsel submitted that they have also been ordered to pay the respondent for the time he was terminated not working and even the time when the CMA award was delayed to be delivered, they have been told to pay the respondent. That the CMA award was delayed for 5 months by Hon. Arbitrator and no reasons adduced or given for the delay. That it was supposed to be delivered on 20/02/2016 but the same was delivered on the 28/07/2016 and the applicant was served on the 30/08/2016. She argued that was an irregularity in procedure which is contrary to Section 88 (9) of the Employment and Labour Relations Act No. 6 of 2004. According to the said provision, Hon. Arbitrator was required to deliver the award within 30 days. She referred the case of Dar Es Salaam Yatch Club Vs. Eliezer Musama and James, Revision No. 263 of 2008, High Court Labour Division at Dar Es Salaam (unreported) at page 3. That they were supposed to be served with the award on 20/02/2016 and there is no excuse for the delay by Hon. Arbitrator to deliver the award. That there is no reason established why the CMA was delayed refer to page 9 of the CMA award. She prayed for the Hon. Court to revise the order for reinstatement without loss of remuneration by the CMA. On the 3rd ground for revision Learned Counsel argued that Hon. Arbitrator erred in law and fact holding that the applicant unfairly terminated the respondent without a valid reason. That the reasons were well established during the trial, by evidences adduced by DW2 Mr. Omari and DW1 Mr. Mikidadi M. Ngoma and DW3 Sgt Tugela P. Nyembe. The A reason for termination was the serious misconduct which was committed by the respondent and during the trial at the CMA these 3 witnesses tendered documents Exhibit RCMA 5 tendered by DW2 and Exhibit RCMA 1,2,3 & 4 was tendered by DW1. That the evidences tendered at the CMA established the offence committed by the respondent and Hon. Arbitrator failed to consider the evidence adduced but demand for other witnesses, refer page 7, paragraphs 2 & 4 of the CMA award. The Hon. Arbitrator was supposed to consider the evidences adduced by the witnesses. She humbly submitted that this Hon. Court revise and set aside the CMA award basing on her submission above. In response Learned Counsel Nyambo for the respondent prayed to the Court to adopt counter affidavit replied to the 1st ground for revision that the Hon. Arbitrator was very correct on holding that the termination of the respondent was based on personal decision of the Zonal Human Resources Officer. That if one looks at the minutes of the Disciplinary hearing finds that the members of the Disciplinary Committee (DC) have just been mentioned by their names, which made it difficult for the person who did not know them to understand where they come from or their Departments or status. That it is until this time there has been clarification by Learned Counsel today. That no one could understand Exhibit RCMA 3 the Disciplinary Committee hearing minutes when he looks at the Exhibit RCM 3 at part 1 it shows the members who were present at the hearing and their designation, they mentioned their name and status but their status at the Bank was not mentioned. That it was hard for a person to understand the status of the members who were suppose to constitute the Disciplinary Committee (DC). On the 2nd ground for revision, on order for reinstatement by Hon. Arbitrator, he submitted that, Hon. Arbitrator did not err in law or fact when he gave the said order. That before the CMA reached its decision, considered the evidence before it, that is evidences of DW1 Mikidadi Ngoma, DW2 Omari and DW 3 Sgt Nyembe and the CMA came out with the view that their evidence was not right for failure to establish the fairness of the termination of the respondent. Upon such consideration, Hon. Arbitrator decided to reinstate the respondent back to his official position with no loss of remuneration. That Learned Counsel for the applicant submitted that it was wrongful to order reinstatement, but on CMA F No. 1 filled by the respondent among his prayers was to be reinstated back to work without loss of remuneration. The CMA denied to grant the prayer after consideration of the evidence adduced before him. On the issue that the CMA delayed the delivery of the award to be revised by the Court, he submitted that, it was true the law does provide the award is to be delivered within 30 days after final submissions have been made. That according to the nature and situation which is facing the CMA, it is very difficult to adhere to this law. That many awards from the- CMA do take more time a month before being delivered by Hon. Arbitrator. That in practice many awards do delay because of the work load Hon. Arbitrator have at the CMA. On the order to pay additional 5 months salary when the award was delayed he argued that if one goes through the CMA award, there is no where there is such order by Hon. Arbitrator to pay salary for the 5 months delay. On the ground for revision on reinstatement of the employee by the employer, due to the intolerable relationship, Learned Counsel submitted that the said intolerable relationship has been caused by the employer after raising that there is a serious misconduct on part of the employee and has failed to prove the said misconduct. That upon the employer's failure, it is the right of the employee to get all his rights (before he was terminated) after the unfair termination. On the applicant's fair reason to terminate the respondent, he submitted that, when they look at the minutes of the disciplinary hearing conducted on the 24/12/2012 every one finds that the finding of the Disciplinary Committee Hearing which resulted to the termination of the respondent was the evidences and documents submitted by the Vigilance dept of the applicant. But when you look at the disciplinary hearing form on part showing the findings by the Disciplinary Committee, the information does not touch the respondent in any manner. In Exhibit RCMA 5 Internal Investigation Report, at page 5, paragraphs 1 & 2, provide the findings of the investigation. There are 6 findings in the said Report and did not touch the respondent or mention the respondent to have committed any fraud as alleged by the employer. That at page 2 of the same Report, one can find the executive summary arid the Disciplinary Committee used this report to find the respondent guilty. The Executive summary at paragraph 4 stated that the intentional fraud was committed by the Chief Cashier the respondent and 7 another person who holds account with the applicant. When you go through Exhibit RCMA 5, there is nowhere the respondent has been connected to the fraud. It was only their feelings but there is no where it is said that the respondent engineered the fraud. He submitted that the applicant had no fair reason to terminate the respondent by basing on facts which were not proved anywhere being the Exhibit RCMA.5 or the Disciplinary Committee Meeting. That the application be dismissed for lack of merit and uphold the award of the CMA. In rejoinder, Learned Counsel for the applicant strongly objected the submission of Learned Counsel for the respondent on the 1st ground that there is no law which was cited by Learned Counsel for the respondent to have been contravened by the applicant requiring to show of status of the members of the Disciplinary Committee (DC). That if the respondent was not satisfied he was to appeal to the management to clarify on that before going to the CMA. That he was required to do so at the first instant, and that finding of being a final decision was by the Hon. Arbitrator and not the respondent. She prayed to reiterate her submission in chief on this ground. On the order of reinstatement, prayed to reiterate what she said before and dispute the point that Hon. Arbitrator based his findings on the CMA F No. 1, that he was required to look at the law and circumstance of the relationship between employer and employee after the offence was committed. On the delay to deliver the CMA award, Learned Counsel prayed to dispute because Hon. Arbitrator did not show the reason for the delay and was suoDosed to be indicated in the award and not to be submitted by the respondent. She further rebutted that though the award has not stated expressly that the respondent is to be paid the 5 months salary delay in delivery of the award, impliedly it has been covered as per the CMA award. That they are supposed to pay the salary for the months he was out of work while there was a delay of 5 months. She prayed to reiterate submission in chief on this ground. Also she disputed the submission on the fair reasons for termination, basing on Exhibit RCMA 5, that there were a number of documents tendered at the CMA to establish the reason of termination was fair. She lastly humbly prayed to reiterate her prayer in submission in chief. After hearing submissions from both parties and gone through the records, this Court is called upon to decide on the 3 grounds raised for revision by the applicant Exim Bank (T) Ltd and the Court will commence with the ground on the time limit for delivery of a CMA award after closure of arbitration proceedings including final statements of both parties. From the submission by Learned Counsel for the applicant she advanced 4 grounds for revision namely. V It is noted from the CMA records that the arbitration proceedings both typed and hand written seem to be closed on re examination on the 18/12/2015. From there, there is nothing shown what went on. There is no last order by Hon. Arbitrator. The award is dated 28/07/2016. That is 9 improper recording of the CMA proceedings. This Court when dealing with proper recording of CMA proceedings, in the case of Project Manager Barrick Gold Mine(Bulyanhuiu) Vs Andriano .0 Odhiambo, Revision No.290/2008, HCTLD at Mwanza [unreported] Hon. Rweyememu, J (as she then was) at p.4 where the Court was confronted with the issue at hand held that ; 'The Arbitrator failed to keep records o f proceedings as required under Rule 32 o f the Labour Institutions (Mediation and ArbitrationjRuies GN 64/2007,quoting the case of Bidco Oil Soap Vs Abdu Said and 3 Others, Revision No. 11/2008 Hon. Mandia, J that: emphasis (is) on regular and orderly progress in law and procedure from commencement o f an action to execution o f judgement, the function o f arbitration are quasi-judicial, so arbitrators should insist on basic characteristics o f orderliness and regularity in execution o f their duties. Lucky the Commission has made elaborate rules (published as GN 64/2007) and GN 67/2007..These rules o f procedures are subsidiary legislation and arbitrators are bound to follow rules set therein".page 4. 'The Court held that failure to keep a proper record vitiated the whole proceedings including the resultant award, which it proceeded to quash"[supra a tp 4]. Also in the case of Edna Pendael Tenga Vs Parokia ya Bugando, Revision No. 19/2007, HCLD at Mwanza [unreported] Hon. Rweyememu,J(as she then was), where the Court noted that; "...the records does not show how the case commenced, what issues were up for arbitration; what evidence was lead and the like. It would appear the parties were only requested to file statement-themselves not indicated to 10 be part o f the record. In short; there was no record o f proceedings properly so called... Those cases above were persuasively quoted by this Court in the case of Tanzania Leaf Tobacco Company Ltd Vs Said Mgemwa, Revision No 16 of 2018,HCLD atTabora [unreported] Mashaka,J, and in all the cited cases where the Court decided inter alia proper recording of CMA proceedings, whole the records with their resultant awards were quashed and set aside and disputes order to start afresh before different arbitrators. Hon Arbitrator did not properly record the proceedings after the re examination was conducted on the arid what went on thereafter. The main issue on time limit for delivery of the award, under Section 88 (9) of the Employment and Labour Relations Act No. 6/2004 clearly sets out the time limit for the delivery of the award after closure of arbitration proceedings, that:- "S. 88 (9) Within thirty days o f the conclusion o f the arbitration proceedings, the arbitrator shall Issue an award with reasons signed by the arbitrator." [Emphasis is mine]. Hon. Arbitrator issued the award outside the prescribe time under the law. That is an irregularity on the part of Hon. Arbitrator making the award to be improperly procured fit to be revised as rightly submitted by Learned Counsel for the applicant and evidenced at paragraph 9 of the supporting affidavit of applicant. n Hon. Arbitrator has failed to explain why the award was issued out of the prescribed time, whether parties contributed to the same or any other reasons. It is Learned Counsel for the respondent who explained the reasons for the delay of the award and not Hon. Arbitrator. Learned Counsel for the respondent is a party to the dispute and did not decide and issue the CMA award. It the finding of this Court that it is not the duty of a party to the dispute at the CMA to explain why the award is delivered outside the legal prescribed time but Hon. Arbitrator himself has to provide justifiable and genuine reasons thereto which do not prejudice parties to the dispute as both parties under industrial relations have rights to timely disposal of the dispute as stipulated under Section 3 the Employment and Labour Relations Act No. 6/2004, the objects of the Act. I subscribe to the persuasive case of this Court submitted by Learned Counsel for the applicant, Dar Es Salaam Yatch Club Vs Eliezer Musama & James, Revision No. 263/2008, HCLD at Dar Es Salaam [unreported] Rweyememu,J (as she then was) at pages 2-3,on the mandatory requirement to deliver the CMA award within the prescribed time under the law. The CMA award was improperly procured fit to be revised by this Court as per Section 91(2) (b) of the Employment and Labour Relations Act, No 6/2004. The whole of CMA arbitral proceedings with its resultant award are hereby quashed and set aside. This ground for revision suffice to dispose of this application, therefore I will not belabour on the other remaining grounds. 12 Using powers vested in this Court under Section 91(4)(b) of the ELRA No 6/2004, orders that the CMA records be remitted back and the applicant to file a fresh dispute at the CMA within 30 days from when served with this judgement, the date the applicant is served with this judgement and the dispute to proceed afresh as per law governing CMA proceedings before a different arbitrator of competent jurisdiction. The same should be given priority being a long pending matter. This application for revision is successful to the extent explained above. Right of appeal explained. * L.L.Mashaka JUDGE 25/05/2018 13