FATUMATA BERETE V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 14381 OF 2024 (Arising from Award issued on 06/05/2024 by Hon. Wilbard, G.M, Arbitrator, in Labour Dispute No. CMA/DSM/KIN/347/2022/147/2022 at Kinondoni) FATUMATA BERETE………………………………..……….. APPLICANT VERSUS MINARA TANZANIA LIMITED….............................. RESPONDENT JUDGMENT Date of Last Order: 30/08/2024 Date of Judgment: 06/09/2024 B. E. K. Mganga, J. Brief facts of this application are that, on 10th January 2022, Fatumata Berete, the abovenamed applicant entered a two-year fixed term contract of employment with Minara Tanzania Limited, the abovenamed respondent. In the said fixed term contract of employment, applicant was employed as Capital Project Manager with monthly salary of Ten Million Nine Hundred Seventeen Thousand Five Hundred Tanzanian Shillings (TZS 10,917, 500/=) only with six (6) months’ probation period. The said fixed term contract of employment was expected to expire on 16th January 2024. It was agreed by the parties in the said fixed term contract of employment that, during probation period, each party has the right to terminate the contract by issuing the other party a written seven(7) days’ notice if termination is in the first 1 month of employment and thirty (30) days written notice if termination is after the first month of employment and that the respondent had the right to pay applicant in lieu of the applicable notice. On 22nd June 2022, respondent terminated employment of the applicant allegedly due to poor work performance. Aggrieved with termination, on 30th June 2022, applicant filed Labour dispute No. before the Commission for Mediation and Arbitration (CMA) complaining that there were unfair labour practices. In the referral form (CMA F1), applicant claimed to be paid (i) Nineteen (19) months remuneration to the tune of (i) TZS 207,432,500/= as general damages and (ii) Twelve (12) months remuneration being payment of garden leave under non- competition and invention agreement for protection of company assets to the tune of TZS 131,010,000/=. On 06th May 2024, Hon. Wilbard G.M, arbitrator, having heard evidence of the parties, issued an award in favour of the respondent that there was no unfair labour practice pertaining non-confirmation of the applicant consequently dismissed the dispute. Applicant was aggrieved with the said award hence this application for revision. In the affidavit in support of the Notice of Application, applicant raised Eight (8) grounds namely: - 2 1. That, the Honourable Arbitrator erred in law and fact by holding that the Complainant was aware with the required standards of her employer. 2. That, the Honourable Arbitrator erred in law and fact in holding that the Applicant’s performance was below the required standards while the Applicant was not aware of the standards. 3. That, the Honourable Arbitrator erred in law and fact by concluding that there were no unfair labour practices since the Respondent complied with the procedures under Rule 10 of the Employment and Labour Relations (Code of Good Practice) Rules, GN. No. 42 of 2007. 4. That, the Honourable Arbitrator erred in law and fact by holding that the Commission is aware of employee management contracts. 5. That, the Honourable Arbitrator erred in law and fact by stating that a third part to the contract of employment can terminate employment contract. 6. That, the Honourable Arbitrator erred in law and fact for failure to award the reliefs sought in the CMA Form Number 1 considering the circumstances of this matter. 7. That, the Honourable Arbitrator erred in law and fact erred in law and fact for failure to consider and evaluate Applicant’s evidence. 8. That, based on the circumstances of this matter, it was legally wrong for the Honourable Arbitrator to rely on Rule 17 and 18 of the Employment and Labour Relations (Code of Good Practice) Rules, GN. No. 42 of 2007 and conclude that the Applicant was underperforming. In opposing the application, respondent filed the Notice of Opposition and the counter affidavit of Abubakari Lekoroki, who is the Manger, Human Resource Business Partner. When the application was called on for hearing, Ms. Oliver Mkanzabi and Mr. Devis Vedatus learned counsel appeared and argued 3 for and on behalf of the applicant while Mr. Peter Ngowi, learned Advocate appeared and argued for and on behalf of the respondent. During hearing, counsel for the applicant abandoned the 6th ground. Arguing the 1st and 2nd grounds in support of the application, Ms. Mkanzabi submitted that, in terms of Rule 10(7) and (8) of the Employment and Labour Relations (Code of Good practice) Rules, GN. No. 42 of 2007, before terminating a probationer employee, the employer must notify the employee of any concerns about his/ her performance and give the employee an opportunity to improve. She added that, if the employer decides to terminate the contract of the probationer employee, the employer, (i) must inform the employee the employer's concern, (ii) employee must be given an opportunity to respondent to those concern and (iii) the employee must be given reasonable time to improve performance or correct behaviour. Counsel for the applicant submited further that, at CMA, respondent did not adduce evidence to prove that she raised any concern based on performance of the applicant. She added that, respondent terminated applicant simply because she was in managerial position ignoring the provisions of Rule 18(5) (a) of GN. No. 42 of 2007(supra) on ground that, an opportunity to improve may be dispensed if the employee is a manager. She went on that, the arbitrator relied on an email(exhibit 4 M4) to conclude that respondent notified applicant regarding performance while the said email does not indicate that respondent notified applicant about her performance. It was furher submitted by Ms. Mkanzabi that, in performance of her duties, applicant faced a lot of challenges that she raised on the management as reflected in exhibit F5, F7, F8, F9 and F13. She also submitted that, the said challenges were that, applicant failed to have access to the system as a result, she failed to execute her obligation properly. She strongly submitted that, these challenges were not considered by the respondent, as a result, the latter terminated applicant’s employment for poor performance. She concluded that, respondent did not adduce evidence relating to poor performance. Arguing the 3rd ground, Ms. Mkanzabi submitted that, respondent was supposed to access performance of the applicant but that was not done. She further submitted that, it was unfair for the respondent to terminate employment of the applicant based on the challenges she raised. Learned counsel for the. applicant also submitted that, it wrong for the arbitrator to conclude that there was no unfair practices while there was violation of Rule 10(1) to (9) of GN. No. 42 of 2007(supra). Arguing the 4th ground counsel for the applicant submitted that, the arbitrator relied on an agreement between the respondent and Paradigm for provision of management services (exhibit M1) to conclude 5 that the commission is aware of employee management contract. Mkanzabi submitted that, applicant was not party to exhibit M1 hence she cannot be bound by it. She further submitted that, Regulation of the National promotional Services (Private Employment Promotion Agency) Regulations , 2014 GN. No. 232 of 2014 allows only the third party to recruit on behalf of the employer. She added that, Regulation 3(2) of GN. No. 232 of 2014 (supra) provides that, the said third party cannot be part of employment relationship between the parties after recruitment. She went on that, in the application at hand, after recruitment, the third party continued to management employment relationship of the parties contrary to the provisions of the said Regulation. Mkanzabi furrher submitted that, applicant's employment was terminated by an officer from Paradigm, a third party, who was not her employer but a promotion agent. Arguing the 5th ground, Ms. Mkanzabi submitted that, applicant was terminated by Adrian Chapman, the operational director for Paradigm International Limited as evidenced by exhibit F15. She Mkanzabi submitted that, applicant was an employee of Minara, the respondent and in no time, she worked for Paradigm International Limited. Counsel for the applicant cited the case of David Nzaligo v. National Microfinance Bank PLC, Civil Appeal No. 61 of 2016 6 (unreported) to cement her submissions based on sanctity of contracts and that it was not proper for the said Adrian Chapman, a third party to terminate applicant. She went on that, applicant and respondent were bound by their contract of employment. She added that, it was illegal for Paradise to initiate termination process as evidenced by Show cause Notice(ext. F12), Notice of hearing (ext. F14) and termination letter (exhibit F15). She strongly submitted that, Adrian Chapman was neither the respondent's employee nor part to the contract of employment between applicant and the respondent. She further submitted that, Adrian Chapman was the complainant in the disciplinary hearing and issued termination letter. She also submitted that, Adrian Chapman was a judge on his own case hence violation of natural justice principles. Arguing the 7th ground, counsel for the applicant submitted that, that the arbitrator had a duty of considering and evaluating evidence of both parties. She cited the case of Kaimu Said v. the Republic , Criminal Appeal No. 391 of 2019, CAT(unreported) to support her submissions that analysis and evaluation of evidence must be apparent on the record. She further submitted that, Arbitrator failed to consider exhibit F5, F7, F8, F13 and F15 and M1. She added that, Arbitrator was supposed to consider evidence of both parties but failed. She went on that, at the time of entering into employment contract, applicant was 7 required to sign non-compertition and invention agreement (exhibit F1). Ms. Mkanzabi further submitted that, few days after termination, applicant was notified through exhibit F16 that she was not entitled to payment under exhibit F1 contrary to what the parties agreed. She added that, this was not considered by the arbitrator. With those submissions, Ms. Mkanzabi prayed the court to evaluate evidence and come up with its own findings. Arguing the 8th ground Ms. Mkanzabi submitted that, applicant was a probationer hence Rule 10 of GN. No. 42 of 2007 (supra) was applicable. She further submitted that it was an error on part of the arbitratotr to rely on the provisions of rules No. 17 and 18 of GN. No. 42 of 2007(supra) that are applicable only to confirmed employees. Ms. Mkanzabi concluded her submissions praying the court to allow this application. Resisiting the 1st and 2nd grounds of the application on behalf of the respondent, Mr. Ngowi submitted that, the only issue was whether, non-confirmation of the applicant amounted to unfair labour practice. Counsel for the respondent submitted that, the arbitrator did not error in holding that applicant was aware of the required standard. He aslo submitted that, there is no clear definition as to what amounts to the required standard. He submitted that, instructions directing applicant 8 how to do thing, modality of report preparation, timely communication amounts to the standard that applicant was aware of. Mr. Ngowi further submitted that, exhibit M4 collectively shows instructions that came from applicant's supervisors. He added that, from the date of recruitment, applicant was notified as who was her supervisor and since then, she continued to receive instructions from her supervisor. He went on that, Adrian Chapman(DW3) was the applicant's supervisor. It was submitted by Mr. Ngowi that, applicant refused to attend training in which her performance was supposed to be improved as per email dated 22nd April 2022 (exhibit M4). Counsel for the respondent further submitted that, DW3 testified that he was employed to supervise the applicant on behalf of the respondent. He added that, applicant admitted that, Adrian Chapman (DW3) was her supervisor on behalf of the respondent. He went on that, DW3 was an employee of the respondent. Mr. Ngowi also submitted that, exhibit M1 shows that Adrian Chapman was contracted to manage and recruit employees of the respondent including the applicant. He further submited that, there was no violation of GN. No. 232 of 2014(supra). He further submitted that, applicant’s contract of employment (exhbit F1) was signed by Steve Waller the employee of the respondent. He also submitted that, applicant was terminated by the respondent and not paradigm 9 international Limited. It was submissions of Mr. Ngowi that, paradigm international Limited was performing her duties on behalf of respondent. It was further submitted by Mr. Ngowi that, applicant's failure to comply with instruction from her supervisor lead to termination after conducting performance appraisals as evidenced by various exhibits such as exhibit F11, F12, F13, F14 and F15. He further submitted that, applicant was a manager with nine years experience on capital projects. That, her failure to communicate when needed and her failure to report or perform the task given, were valid reasons for the respondent to terminate her because she was not capable for that position. He went on that, in her contract, applicant was aware that she was subjected to six months probation as per exhibit F1. Responding to submissions made on behalf of the applicant on the 3rd and 4th grounds, counsel for the respondent submitted that, there was no unfair labour practices. He submitted further that, exhibits he pointed out when arguing the 1st and 2nd grounds proved that, there was no unfair labour practices. He went on that, applicant admitted in her evidence that Adrian Chapman (DW3) was her supervisor. He added that, DW3 entered in the disciplinary hearing as performance supervisor and not member of the disciplinary hearing. 10 Regarding the 5th ground, counsel for the respondent submitted that, Adrian Chapman(DW3) was working with Paradigm International Limited, a company that was contracted by the respondent to manage the entire operation of the respondent. He also submitted that, Paradigm International Limited was given power to recruit, to set KPI, and to manager performance of senior managers of the respondent as per exhibit M1. In his submissions counsel admitted that, it is Adrian Chapman (DW3) who signed termination letter of the applicant on behalf of the respondent. Regarding the 7th ground, Mr. Ngowi submitted that, Applicant(PW1) admitted in her evidence that, respondent deserved the right to enforce payment after termination as per paragraph 2 of exhibit F1. He also submitted that, when applicant was cross examined on exhibit F16, she stated that respondent communicated to her that she is free to seek employment from any other company. He further submitted that, exhibit M3 is a letter written to the applicant to the effect that respondent will not enforce none competition agreement. Resisting the 8th ground,counsel for the respondent admitted that, the arbitrator wrongly relied on Rule 17 and 18 of GN. No. 42 of 2007(supra). He was quick to submit that, that did not prejudice the applicant who was a probationer. Mr. Ngowi strongly submitted that, 11 procedures under Rule 10(2), (3), (4), (5), (6) of GN. No. 42 of 2007(supra) were adhered to. With those submissions, counsel for the respondent prayed that, the application be dismissed for want of merit. In rejoinder, Ms. Mkanzabi submitted that, there were no standards set in the emails (exhibit M4) because those are tasks that were daily given to the applicant. She further submitted that, respondent did not adduce evidence showing that other employees were also treated in the same manner as applicant was treated. She also submitted that, applicant was not reporting to DW3 but was reporting to Mapande. She submitted that, applicant did not admit at in her evidence that she was reporting to DW3. Counsel for the applicant reiterated it was wrong for a third party to terminate applicant because the 3rd party had no power to terminate employment contract of an employee. Having heard submissions of the parties, I adjourned this application schuduling the date for judgment. At the time of preparing my judgment, I perused the CMA record in order to appraised myself with evidence that was adduced by the parties and whether matters raised herein were also raised at CMA. Unfortunately, I found that, in recoding proceedings, the arbitrator used acronym that is only known to her hence difficult to understand what she meant. Facing that difficulty, when the application was scheduled for judgment, I asked learned 12 counsel for both parties to peruse the CMA record in my presence to see whether they can properly understand what was recorded. Both learned advocates having perused the CMA record, I asked them to address the court as to whether proceedings were properly recorded and the effect thereof. Responding to theissue raised by the court, Mr. Davis Vedastus, advocate for the applicant submitted that, proceedings were not properly recorded because the arbitrator used initials which makes hard to understand what she meant. He added that, it is difficult to have flow of the sentence and meaning. He went on that, the record also is silent as to whether some of exhibits were admitted or not. He concluded that, all these has rendered CMA proceedings a nullity. Responding to the issue raised by the court, Mr. Peter Ngowi, advocate for the respondent submitted that, he has read CMA proceedings and find that, sometimes the arbitrator was using initials hence difficult to understand what she meant. He also submitted that, some exhibits were not indicated that were admitted. He joined hands with counsel for the applicant that, it is difficult to understand these proceedings as they were improperly recorded. With those submissions, counsel for the respondent prayed the court to nullify CMA proceedings, 13 quash and set aside the award and order trial de novo before a different arbitrator. In dispossing this application, I will only discuss the issue that I raised and asked learned counsel for the parties to make submissions thereon. I entirely agree with both counsel that, in recording evidence of the parties, sometimes the arbitrator used acrominomies and or shortcust best known to her. The manner proceedings were recorded, it is difficult to have flow and meaning of some sentences or evidence that was adduced by the parties. Part of the said CMA proceedings bears the truth to that. For example, when Fatumata Berete (PW1) was testifying, the arbitrator recorded as follows:- “…Tht was done via email n site 2b allocated n’ Enyes team to be on ground with contractors…Next; there is 3rd system VDR(system which alter uses to put all info for each site). The video will have list of Minara(site) info abt tower location ireto. VDR gvs data for’ each site. VDR is a data base gvnr land owner, structure, buildings. Its located near airport/ Tanapa and see who own site etc. So for me 2do my job I need access to VDR database bcoz contractors r going to site. I need to know whr Am taking contractors for me to follow required procedure…The Hg ended in r hr I rcvd termination letter frm Adrian Chapman n’ Hg Form was attached as minutes…” In the quoted evidence above, I have failed to understand the meaning of the bolded letters or abbreviations. Unfortunately, I cannot do a guess work or assumption because, proceedings should speak on 14 themselves. Any assumption as to the meaning of those words may lead to injustice. When Farida Hassan Mraba(DW2) was testifying, the arbitrator recorded inter-alia that:- “…Minara tangu ianzishwe na hizo Cos inashirikiana kufanya kazi pamoja…Hayo yote yapo ktk makubaliano service agreement ya paradigm & SGA… Ktk Idara ya m/kaji kuna bosi anatoka Paradigm kisha wanafuatia wazawa…” Letters “ktk” in the second sentence may mean “katika”. Therefore, the sentence will be “Hayo yote yapo katika makubaliano service agreement ya paradigm & SGA. But the problem arises in the third sentence where “ktk” may mean “katika” or “kutoka” and m/kaji may mean “mlalamikaji” or “mshikaji” or “mshikwaji” hence the said sentence can be, (i) Katika Idara ya mlalamikaji kuna bosi anatoka Paradigm kisha wanafuatia wazawa, or (ii) Katika Idara ya mshikaji kuna bosi anatoka Paradigm kisha wanafuatia wazawa, or (iii) Katika Idara ya mshikwaji kuna bosi anatoka Paradigm kisha wanafuatia wazawa, or (iv) Kutoka Idara ya mlalamikaji kuna bosi anatoka Paradigm kisha wanafuatia wazawa, or (v) Kutoka Idara ya mshikaji kuna bosi anatoka Paradigm kisha wanafuatia wazawa, and or (vi) Kutoka Idara ya mshikwaji kuna bosi anatoka Paradigm kisha wanafuatia wazawa. In my view, what I have pointed out shortly a while 15 cannot mean is what was testified by the witness. But the use of acronyms by the arbitrator has created confusion hence it cannot be said with certainty what was testified by the witness. I once again, advise arbitrators to use official languages and avoid the use of abbreviations in their proceedings. This is not the first time to encounter a similar problem and give similar advice. In fact, in the case of Godson Paul Katambi vs Mini Bakeries (T) Ltd (Revision Application No. 920 of 2024) [2024] TZHCLD 46 (3 April 2024) this court remarked that:- “It seems the arbitrator is relying on the provision of section 88 of Cap. 366 R.E 2019 (supra), Rule 19(1) of GN. No. 67 of 2007 (supra) to determine how to conduct arbitration proceedings, which is why, she has used acronomies best known to her as quoted hereinabove. In my view, those provisions are not tickets for the arbitrator to use languages that can be used while enjoying nocturnal drinking sessions or languages that are only used in private life and not in public offices. I once again, advise the arbitrator that, official language should always be used when discharging public duties including determination of someone’s right. We should always remember that we are in public office, discharging public duties, therefore, let us respect the offices we are working in and the public we are serving. We should always also remember that, the public is the consumers of our decisions and they expect us to use the official language for that matter. We should always further remember that, the awards and judgments were are issuing or delivering to the parties, does not end into the hands of the parties but becomes public documents for public consumption. That being the reality and keeping that in our minds, let us use the language that is 16 easly understandable by the parties and the public. In other words, let unofficial and jargon languages be reserved for use in social media only, if necessary, but, that should not be used in official duties in public offices. See the case of Imran Murtaza Dinani vs Bollore Transport & Logistics Tanzania Ltd (Revs Appl No. 253 of 2022) [2023] TZHCLD 1170 (27 February 2023) and Issa Barnabas Pakata vs Victoria Finance Plc (Consolidated Labour Revision No. 329 of 2022) [2022] TZHCLD 1048 (28 November 2022).” That remark and or advice is still valid and should be complied with. In the application at hand, the arbitrator used abbreviations best known to her to the extent that proceedings lacks corehence and cannot be compreneded as it was correctly submitted by both counsel. It seems that, the arbitrator opted to use abbreviations as a way of speed recording proceedings or evidence of the parties. But, the Court of Appeal now and then, has not ceased to remind us to balance speed and the need to do justice. For example, in the case of Nyanza Roads Works Limited vs Giovanni Guidon (Civil Appeal 75 of 2020) [2021] TZCA 396, the Court of Appeal cautioned us that:- “…Secondly, while we agree with the learned Judge on the expeditious resolution of disputes, we think that expeditiousness must be subject to the dictates of the law and justice. As we had occasion to remark… speed is good but justice is best… And by justice we mean justice to both parties to the dispute.” 17 In the case of Independent Power Tanzania Ltd & Standard Charterd Bank (hong Kong) Ltd (Civil Revision 1 of 2009) [2009] TZCA 17 (9 April 2009) the Court of Appeal had this to say:- “…In view of all this, we find ourselves constrained to hold that this Court will not countenance the fast-tracking of justice delivery, if this is done or achieved through trampling over peoples' rights to a fair hearing. This is not even the spirit behind Article 107A - (2)(b) of the Constitution. We are enjoined therein to deliver timely justice but within the confines of the laws of the land. This provision was never intended to derogate from the provisions of Article 13(6)(a), referred to earlier on in this ruling. It is important always to remember that speed in itself, as courageously commended by Ms. Karume, is not of the essence in the delivery of justice if it does not lead to justice itself. Our conviction is that in the administration of justice, speed is good, but JUSTICE IS BEST. For as Potter Stewart once aptly observed in the Time of October, 20th, 1958: "Swift justice demands more than just swiftness." We take it to be an immutable truth that there can be no equal justice when one, for no compulsive reason, is condemned unheard.” The above quoted decisions of the Court of Appeal has nailed the need to balance speed and justice to the fullest. It was correctly submitted on behalf of the parties that, the manner in which proceedings were recored has occassioned injustice to the parties because there is no proceedings in the eyes of the law worth to be acted or considered by the court. It was also correctly submitted 18 by both parties that the award emanating from incoherent and incomprehensible proceedings cannot stand. It is for the foregoing, I hereby nullify CMA proceedings, quash and set aside the award arising therefrom and order trial de novo before another competent arbitrator. Dated at Dar es salaam this 06th September 2024 B. E. K. Mganga JUDGE Judgment delivered on this 06th September 2024 in Chambers in the presence of Davis Vedastus, Advocate for the Applicant and Peter Ngowi, Advocate for the Respondent. B. E. K. Mganga JUDGE 19