CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MKUYE. J.A.. RUMANYIKA. J.A And MDEMU. J J U CIVIL APPEAL NO. 94 OF 2022 Reference No. 20220310000063 GOODLUCK RINGO.................................................................... APPELLANT VERSUS CORTEVA AGRISCIENCE TANZANIA LIMITED Previously known as PANNAR SEED (T) LTD........................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division, at Arusha) (Gwae. 3.^ dated the 27th day of September, 2021 in Revision No. 106 of 2020 JUDGMENT OF THE COURT 19th & 27thFebruary, 2025 MDEMU. J.A.: This appeal arises from the decision of the High Court of Tanzania which reversed the award of the Commission for Mediation and Arbitration (the CMA) to the effect that, the appellant's termination of employment was unfair both in substance and procedure. Initially, the appellant had filed a labour dispute in the CMA complaining for being unfairly terminated by his employer, the respondent. According to the record of appeal, the employment relationship of the duo is traced way back on 1st June, 2018 when, as per the employment contract (exhibit Dl), the appellant was employed by the respondent as a research associate. Sometimes in June, 2019 the appellant was involved in car accident when driving a vehicle with registration number T.647 DMZ make Nissan Hard Board, the property of the respondent. He repaired it without notifying the proprietor. Again, on 22nd October, 2019 the appellant was involved in another car accident at Moshono. The assessment made post-accident indicates that costs for repair was estimated to be TZS 28,961,920.00 (exhibit D4). On the other hand, the appellant was suspended from work pending the decision of the Ethics and Compliance Committee to which the matter was referred. The latter, in the end, recommended to the respondent to terminate the appellant. He was accordingly terminated as per exhibit D8. Besides such termination, the respondent also referred the matter to the police who later arraigned the appellant in the court of law for the offence of causing accident through reckless driving. He was convicted on his own plea of guilty. However, it is the termination of his employment that prompted the appellant to rush to the CMA for redress alleging unfair termination. As we alluded to, the CMA dismissed the claim because of the admission of the criminal charges by the appellant and for that matter, the CMA equated it to be the highest gross misconduct making it unnecessary on the respondent side to hold a disciplinary hearing. The CMA thus found the termination of the appellant was on fair reasons and followed the requisite procedures. The appellant was dissatisfied with that award of the CMA. He eventually initiated revisional proceedings in the High Court which, as said, it reversed the CMA award by holding that, the termination of the appellant was unfair and did not follow the prescribed procedures, including the holding of a disciplinary hearing. The appellant was accordingly awarded a compensation of eight months remunerations. This too was unpleasant to the appellant, he thus invited this Court on appeal to hear him on the following three grounds: 1. That, the honourable learned Judge o f the High Court grossly erred in law and in fact to award the appellant 8 months salaries compensation, after having rightly found that the appellant's termination o f employment was unfair both substantively and procedurally. 2. That, the learned Judge o f the High Court grossly erred in law and in fact to base his decision o f awarding 8 months compensations to the appellant on grounds which are speculative and which lacks proof. 3. That, the leaned Judge having found that the termination o f employment was unfair both substantively and procedurally, he ought to have ordered reinstatement o f the appellant to his position, the contrary decision by the hon. Judge amounts to abuse o f his discretion. The appeal was before us for hearing on 19th February, 2025 in which Mr. Emmanuel Shio, learned advocate appeared to represent the appellant whereas the respondent company was ably represented by Mr. Emmanuel Sood, also learned advocate. Having stood by the contents of the written submissions he had filed to form part of his oral submission, Mr. Shio then argued grounds one and two together. His submission basically was in response of the issue he raised before us, that is, whether it was legally justified for the learned Judge to award eight (8) months compensation after holding that, the appellant's termination was substantively and procedurally unfair. He argued that, the appellant ought to have been compensated forty (40) months remunerations as prayed for in CMA Form No.l appearing at page 9 of the record of appeal. He added that, the eight (8) months compensation so awarded was illegal because it went below the statutory twelve (12) months remuneration provided for under section 40 (1) (c) of the Employment and Labour Relations Act, Cap. 366 (the Act). As to the absence of a reinstatement order complained of in ground three of the appeal, the learned counsel submitted by making reference to the case of Victor W. Meena and Another v. Arusha Technical College (Civil Appeal No. 515 of 2020) [2024] TZCA 111 (21 February 2024; TanzLII) that, reinstatement is often grantable where, as in the instant case, the termination of employment is grounded on unfair reasons and procedure. He finally urged us to allow the appeal. In reply, as was to Mr. Shio, Mr. Sood also opted to stand by the contents of his written submissions with a few oral clarifications. Clarifying his stance in resisting the reinstatement order, Mr. Sood argued first, that the appellant did not pray for reinstatement in CMA Form No.l and second, that reinstatement as a remedy for unfair termination is awardable at the discretion of the court. He thus attacked Mr. Shio for stretching to question the discretion of the court on whether or not the reinstatement be ordered. He referred us to the case of Veneranda Maro and Another v. Arusha International Conference Centre (Civil Appeal No. 322 of 2020) [2022] TZCA 37 (18 February 2022; TanzLII) imploring us not to interfere with the High Court's discretion because it had not failed to consider any matter neither did it go beyond it nor made any misdirection in refraining to make an order for reinstatement in favour of the appellant. Responding to the appellant's complaint of illegal compensation of eight (8) months remunerations for unfair termination of employment, Mr. Sood argued in twofold. One, that it is not automatic that whatever is prayed for in CMA Form No. 1 is grantable by the court or arbitrator. In his argument, there ought to be evidence, which is lacking in the instant case, for the court to base on in determining what ought to be awarded. Two, under section 40 (1) (c) of the Act, courts, as was in this case, have the requisite discretion to award compensation even below the twelve (12) months remuneration for unfair termination. He thus implored us to find the appeal unmeritorious and dismiss it. We have attentively heard the counsel's oral submissions and duly considered their written submissions, along with the entire record of appeal in the determination of the appeal. Gauging from the grounds of appeal, we note that, the legal controversy fronted by the appellant is in two areas of concern. One is whether courts may grant more than one remedy at once under section 40 (1) of the Act upon making a finding that termination of employment was unfair. We came to that stance because the appellant's complaint in the grounds of appeal is in twofold. First, is the alleged illegal compensation of eight (8) months and second is the faulting of court's refrainment to reinstate the appellant. Two, whether courts have discretion to award a compensation below twelve (12) months remunerations provided for under section 40 (1) (c) of the Act. Before we resolve the two raised issues, we find it apposite to begin by reproducing the said section as hereunder: "40. -(1) Where an arbitrator or Labour Court finds a termination is unfair, the arbitrator or Court may order the employer - (a) to reinstate the employee from the date the employee was terminated without loss o f remuneration during the period that the employee was absent from work due to the unfair termination; or (b) to re-engage the employee on any terms that the arbitrator or Court may decide; or (c) to pay compensation to the employee o f not less than twelve months remuneration." Now to the first issue we raised, that is, whether the court or arbitrator may grant more than one remedy under the section upon making a finding that the termination of employment was unfair. In Amos Logan Masuluali v. Sunshine Industrial Company Limited (Civil Appeal No.439 of 2022) [2024] TZCA1290 (16 December 2024; TanzLII), we quoted the said section, and at page 7 of the judgment, we made the following interpretation: 7/7 the section we havejust quoted above, where the court or the arbitrator makes a finding that the employee was unfairly terminated\ it may order reinstatement, reengagement or payment of compensation of not less than twelve months remuneration." [emphasis ours] We think that is still a good law as interpreted, especially, given the manner the said section was drafted and indeed, in our view, that was precisely the intention of the Legislature. Mr. Shio therefore wrongly interpreted the section in his choice and phraseology of the grounds of appeal and the way he coached both oral and written submissions presented before us. For that matter, we are of the view that, the High Court was justified in the exercise of its discretion to choose an order for compensation to the appellant, being among the remedies under the section instead of reinstating him as prayed for. Other remedies under the section are reinstatement without loss of remunerations and reengagement. The choice was therefore within the parameters of section 40 (1) of the Act and on that account, the learned Judge did not abuse his discretional powers as complained by the appellant. Ground three of the appeal on that account fails, and we accordingly dismiss it. We now revert to the second issue, that is whether courts have discretion to award a compensation below twelve (12) months remunerations as legislated under section 40 (1) (c) of the Act. This issue is in response to grounds one and two of the appeal. In Tanzania Cigarette Company Limited v. Lucy Mandara (Civil Appeal No. 187 of 2021 [2024] TZCA 128 (26 February 2024; TanzLII), when we were discussing the import of sections 40 (1) (c) and 40 (2) together with 44 of the Act, we said the following on award of compensation under section 40 (1) (c) at, page 20 through 21 of the judgment: "On that note; this appeal is partly allowed as discussed above. We thus quash and set aside the judgment and decree o f the High Court forthwith. In the circumstances, we award 12 months' salary compensation being the minimum provided for under section 40 (1) (c) of the ELRA. In terms o fsection 40 (2) o f the ELRA, this compensation is in addition to the terminal benefits awarded to the respondent in the termination letter found at page 99 through 100 o f the record o f appeal." [emphasis ours] In another decision of the Court in Amos Logan Masuluali v. Sunshine Industrial Company Limited (supra), regarding the exercise of discretion of the arbitrator or the court in awarding compensation under section 40 (1) (c) of the Act, we stated at page 10 of the judgment that: "In our considered view, having found that the appellant's termination was unfair, and having sought the remedy o f that unfair termination was the payment o f compensation within the meaning o fsection 40 (1) (c) o f the ELRA, then the exercise o f her discretion regarding the amount o f compensation is clothed within the section, which prescribes the minimum compensation o f not less than twelve months remuneration." In the instant appeal, the learned High Court Judge at page 394 of the record of appeal, considered two factors which compelled him to award the compensation of eight (8) months remuneration. One, is that, the appellant was paid terminal benefits and two, was the Covid 19 pandemic. In Amos Logan Masuluali v. Sunshine Industrial Company Limited (supra), the Court held the following at page 9 of the judgment regarding compensation payable under section 40 (1) (c) of the Act: "What we note in the above reproducedprovisions o f the law, in the circumstances o f this case where the appellant was paid other terminal benefits in terms o f section 44 (1) o f the ELRA is that, section 40 (1) (c) should not be read in isolation to subsection (2) o fsection 40 to the ELRA. It is dear in section 40 (2) o f the ELRA that compensation for unfair termination under section 40 (1) (c) o f the ELRA has two tenets. One, that such compensation is payable as an addition to any other payment which the employee is entitled and two, such compensation is not a substitute o fany statutory or contractual arrangement that would entitle the employee to other payments." With the foregoing, we hold that, the learned High Court Judge erred in awarding eight (8) months compensation to the appellant because of Covid 19 pandemic or that, the appellant was paid other benefits. We therefore decline the invitation of Mr. Sood when citing the case of Veneranda Maro and Another v. Arusha International Conference Centre (supra), that we should refrain from interfering with the discretion of the High Court Judge in the award of eight (8) months compensation made thereat. With respect, he misdirected himself in the interpretation of section 40 (1) (c) of the Act, as such interference may not be avoided. In the final analysis, this appeal is allowed to the extent as explained above. The award of eight (8) months compensation meted out by the learned High Court Judge is thus quashed and set aside and instead, we substitute it with the minimum statutory compensations of twelve (12) months remunerations provided for under section 40 (1) (c) of the Act. Each party to the appeal to bear own costs. DATED at ARUSHA this 26th day of February, 2025. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgement delivered this 26th day of February, 2025 in the presence of Mr. Emmanuel Shio, learned counsel for the Appellant and Ms. Julieth Msonsa holding brief for Mr. Emmanuel Sood, learned counsel for the Respondents; is hereby certified as a true copy of the original. F \ DEPUTY REGISTRAR COURT OF APPEAL