ISAAC NGESI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LABOUR DIVISION) AT ARUSHA AMENDED REVISION NO. 60 OF 2023 (Arising from Labour Dispute No. CMA/ARS/ARS/83/22/35/22 and the Award of Hon. A.K. Anosisye, Arbitrator dated 1st day of September 2023) BETWEEN ISAAC NGESI................................................................................... APPLICANT VERSUS RIJK ZWAAN............................................................................... RESPONDENT JUDGMENT & 08/11/2024 MWENDA, J.: The applicant ISAAC NGESI filed this application seeking to challenging the award issued by the Commission for Mediation and Arbitration (CMA) at Arusha in dispute No. CMA/ARS/ARS/83/22/35/22. He advanced nine grounds, however in his written submission in support of this application, he abandoned some of the grounds and remained with five. The same read as follows, that: - i. That, the Honourable Arbitrator erred in law and fact in disregarding my evidence without assigning any reasons. ii. The Arbitrator erred in law and fact by failing to properly assess and evaluate the evidence tendered before it, leading to wrong findings. 1 | Page iii. That, the Honourable Arbitrator's decision is based on assumed facts and is not supported by evidence on record. iv. The arbitrator erred in law and fact by considering matters which were not part of the proceedings. v. The arbitrator erred in law and fact by holding that the procedures for termination of my employment were fair. This application was disposed orally and as a matter of legal representation, MR. EMMANUEL GERVAS TARIMO, learned advocate appeared for the applicant while MR. KAPIMPITI MGALULA, learned advocate appeared for the respondent. Submitting in support of the 1st, 2nd and 3rd grounds, the learned counsel for the applicant had it that the arbitrator erred in law for failure to analyze the evidence by concluding that the salary increments letter (Annexture MT-2) was a proof of the change of applicant's position to a warehouse assistant. He said that there was no job description which was given to the applicant and he added in that if the respondent ever changed the applicant's position from store keeper to warehouse assistant as per MT-3, then the same was not communicated to the applicant as required under Section 15 (1) of the Employment and Labour Relation Act, Cap 366 R.E 2019 ( herein ELRA). He 2 | Page stressed that the applicant was dealt with based on unknown charges and under different employment position unknown to the applicant, the act which contravened Section 15 (1) of ELRA. It was his further submission that even the panel that dealt with the disciplinary hearing that terminated the applicant was not properly constituted and biased as the one so called Mr. Mbaga who stood as the Chairperson was also involved in circumstances/matters giving rise to the case before him contrary to Rule 13 (4) of GN No. 42 of 2007. He also referred this court to part 4 (2) of the guidelines for disciplinary incapacity and incompatibility policy procedure of GN. No. 42 of 2007 which requires a chairperson of the Disciplinary hearing to be impartial. To support his argument, he cited the case of LUCY MANDALA V. TCCC, REVISION NO. 185 OF 2020. Responding to what was submitted by Mr. Tarimo, Mr. Kapimpiti replied that at the trial commission, the applicant did not dispute the fact that on 15/1/2015 he received a letter from the respondent which changed his position and salary and at page 15 of the proceedings, he admitted the same. He said further that the applicant was enjoying the salary of the new position as warehouse assistant and as per exhibit D-7, his letter dated 18/10/2022, 3 | Page he referred himself to as warehouse assistant. According to him, the arbitrator was correct to acknowledge the position of the applicant as warehouse assistant when he referred to exhibit D-l. According to Mr. Kapimpiti, the applicant was fairly terminated based on the alleged misconduct which he did not deny. He distinguished all the cases cited by the learned counsel for the applicant on the ground that the arbitrator considered the evidence from both sides. Regarding the allegation that the chairman of the disciplinary hearing was not impartial, Mr. Kapimpiti said that Mr. Mbaga was never involved in any matter/circumstances which gave rise to this matter. It was his submission that Rule 13 (4) of GN No. 42 of 200 was complied with as the Chairman was senior officer to the applicant. He said further that even during the Disciplinary hearing, the applicant was given the right to be heard. Thus, he prayed for this application to be dismissed for want of merit. In brief rejoinder, the learned counsel for the applicant had it that in Exhibit D.l the applicant never accepted the said letter as a notification for change of his position/title, but rather, a salary increments which was commonly issued on yearly basis. Further to that he said that the salary increment was 4 | Page TZS 8988 to TZS 10,000 and that by itself was not meant for the changing of the title and enjoyment of the salary of the new title. Moreso, he said the chairman of the disciplinary committee was an internal legal adviser whom, according to HR, provided advise before the disciplinary hearing commenced thus by virtue of his title, he was not required to chair the disciplinary hearing. He then concluded by reiterating to his previous prayer in submission in chief beseeching this application to be allowed. Having heard the rival submission form the learned counsel for the parties, the issues for determination are as follows: i. Whether the respondent changed the position of the applicant from storekeeper to a warehouse assistant. ii. Whether the Chairman of the Disciplinary hearing was impartial as required by Rule 13 (4) of GN No. 42 of 2007. Starting with the 1st issue as to whether the respondent changed the applicant's position from storekeeper to warehouse assistant, I have revisited the records of the trial court and noted that the arbitrator was correct to refer the applicant in a position of warehouse assistant instead of storekeeper due to the following reasons. One, in all the exhibits which were 5 | Page admitted before the CMA, the applicant's position was referred to as the warehouse assistant, See Exhibit D5, D7, D9 and DIO. For example, in exhibit D5, the applicant described himself as such by using the following words, and I quote: "I'm Warehouse Assistant at Rijk Zwaan my responsibility is to receive and issuing to user when they followed all the procedure like to receive and issue Diesel my name is Isaac Ngesi." (sic) Based on the cited exhibits and the quoted paragraph, this court is of the view that the applicant's working position changed from the storekeeper to a warehouse assistant thus, the allegation that the applicant signed Exhibit D.l to only acknowledge a salary increments which was commonly issued on yearly basis is baseless as other exhibits tendered and signed by himself prove otherwise. Apart from that, even if it could have been true that the applicant's title never changed to warehouse assistant which is not the case, still, based on the facts that it is not in dispute that the applicant's names are ISAAC NGESI, the names of a person alleged to be involved in theft of fuel, the offence 6 | Pa ge which was not committed in the cause of performance of his duties as per his title, then any improper job title was not of essence as it did not occasion any injustice to him during disciplinary proceedings. This is because after such allegations against him, investigation was mounted against him (Isaac Ngesi ) and in the cause, he happened to respond to some letters and, during the disciplinary hearing he begged for forgiveness as evidenced at page 20 of the CMA's proceedings during Cross examination when he was asked if he attended before the disciplinary hearing and responded in affirmative while adding the following words and I quote: "Nisamehewe, ni mara ya kwanza kupata tatizo". The above explanations are a clear indication that the applicant was aware with the allegation which was facing him, no wonder he did challenge the said job title at the Disciplinary hearing. That said, I find the first issue answered in affirmative. Regarding the 2nd issue, Mr. Tarimo stated that the Chairman at the CMA was not impartial as he was involved on the circumstances/matters giving rise to this issue as he was the internal legal adviser who was advising the 7 | Page applicant herein. He said the respondent conducted disciplinary hearing contrary to Rule 13 (4) of GN 42 of 2007. In tackling this issue, it is apposite to point out that truly, the law bars an officer who was involved in the circumstance/matter giving rise to the case from chairing the disciplinary committee. This is by virtue of Rule 13 (4) of GN No. 42 of 2007 which provides as follows, that: "The hearing shall be held and finalized within a reasonable time, and chaired by a sufficiently senior management representative who shall not have been involved in the circumstances giving rise to the case." In the present application, as it was correctly submitted by Mr. Kapimpiti, in the records of the CMA particularly exhibit D4- collectively (Investigation report) there is nothing which indicate that Mr. Mbaga was involved in the circumstance giving rise to this matter at hand. The applicant failed to show his involvement or advise purported to be issued by him on allegations which led to his termination. On that note, this court is of the view that the disciplinary committee was properly constituted as it was chaired by Mr. 8 | Pa ge Mbaga who qualified to do so under Rule 13 (4) of GN No. 42 of 2007. That said, this issue is answered in affirmative. From the foregoing, I find no merits with this application, and it is hereby dismissed without costs It is so ordered. DATED at ARUSHA this 8th day of November 2024. JUDGE 08/11/2024 9 | Pa ge