20140819 TZHC Dar es Salaam2

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM REVISION NO. 382 OF 2013

BETWEEN , ,.,: JAMES LEONIDAS NGONGE .......................... ·~~:~ .... APPLlCANT

VERSUS DAWASCO ............ ■ •••••• ■-■ ••• I. ■ ••••••••••••••••• ;.~.·\······· RESPONDENT (ORIGINAL/CMA/PWN/KBH/212/10)

JUDGMENT 14/07/2014 & 29/08/2014 M.1pawa, i) l. •"'' ..;:::.,,~._ The applicant,ir:tthis··.'ievision .:t '· ·;~( _\r~_. . one James Leonidas Ngonge was ~ employed;;,IJy .;:th~;:;t~spqMdent DAWASC01 in 1998 as a meter reader ,~:. ,-;. . ··.:~·-. . . :~ :.:/. and later)ie Wqs eJ~vated to the position of customer care supervisor. , i;:"' .· .. '. ~-. . .\·'\,~~-:-:::..; ·:~.:. The.:f,chang~s l[!. DAWASCO led to the applicant being transferred to ·r~J:,\ . !-..~~t•..:;•~-~ r '. • Kibah~:11,~.~grtnen to Mlandizi where he was a commercial -supervisor ·•.,;=,~- until when the employment relationship interparties had turned soar .. What "chilled' the relationship was when the respondent had accused the applicant of a misconduct to wit; illegal connection of water to a 1 Dar Es Salaam Water and Sewerage Corporation t ••. client', one Ibrahim Mwangalaba and pocketed the money accrued from that service3 • The ·applicant was upon failing to convince the employer respondent on the explanation he was required to give, was (applicant) sent before a disciplinary hearing committee which on hearing the applicant, found him guilty and hence the employer respondent terminated his employment. Dissatisfied the applicant opened a trc1de dispute. before the .·,., ~:· Commission for Mediation and Arbitration [CMA] Vide Mgogoro wa Kikazi Na. CMA/PWN/KBH/212/104 where the appliccint's Casus be/Ii (cause

of discontent] was unfair termination. based on misconduct (illegal connection of water s~pply to_ a ·client] the learned arbitrator (Massawe Esq.) dismissed the\~pplicant's· claims and found that he 5 was fairly terminated subst?ntiv~lybut' with few procedural flow • ,'. . . ·:::. ,_;;. ''\\~\:: \t\,c 7 The decision ;:,of 1fhe l~onimission for Mediation and Arbitration ;~;;'' N••~;.:,f,·\~' \~•, {?;(~ (CMA) crq.pp~,~t...f~Jthetr the casus be/Ii and hence the present ·•+. .~ ·~~}" ''<·,.~ .~~;'~.·:.) ::j:t application . ror,. reti?1on. The applicant filed the revision application t~:;:~~·~::i. ~. ".:\:o-:;~·.·..!:~~~ unt~r Sectiprit~f-:(1) (a) (c) and 94 (1) (b) (i) of the Employment and ';-Q ..... .,.,,:1-.,. Lab~CTt:1?.-elitit?ns Act as amended by Section 14 of the Written Laws 4'i,it,J}.}f't-' . (Miscellaneous Amendment) No. 3 Act No. 17 of 2010 6 • Rules 24 (1) 2 Dawasco, letter to the applicant informing him on the illegal connection of water to a client as a gross misconduct 3 Commission for Mediation and Arbitration (CMA) award at Page 2 4 Trade dispute CMA/PWN/KBH/212/10 5 op. cit. note 3 at Page 19 6 Act No. 4 of 2004 2 '·:;. ·- i..t:· . :(-- .·: .,. .;-l'-...,~•·· - . (2) (3), 28 (1) and 55 (1) (2) of the Labour Court Rules GN. No. 106 of 2007 7• In the notice of application the applicant has raised a number of grounds that the permit to connect the water supply to

the_ client was issued by the site engineer one Julius Buberwa and tb_~refore the . .,;/° _. _:· \. . learned arbitrator should have held that the respond;ent ha9 no,valid reason to terminate the services of the appli~ant8. That. the' ·learned, arbitrator shifted the burden ,of proof to th_~···applicant. 'contra~ to . ..• . Section 37 (2) of the Employment and Labour -Relations Act No. 6 of .2004 and Section 60 of the Labour 1nstitution Act No. 7 of 2004 and not taking serious considerati9n to the. job, description supplied by the respondent to the applicant in ·JttlY 20089_'.,:He averred that:- ... the respondenfbeing.'.a ·:Public Institution to which the provision ofn i:h~~.-. .... Public Servant Regulations 2003 apply the ·\/nqUJ,;y_ -;ifommittee was not properly constitut~r:L,.~··'?o(I (/}e evidence that_ the Disciplinary Author/fi ol{.~the{,)applicant was the chief executive f;,t.officet lhe learned arbitrator should have held 'that the · fluinafF',~Bt!soilrces Manager Mr. Elias Kasitila acted ,.5,>.1t/tfi'o,,tJ,t]i!,risdiction to terminate ... the applicant .. 10 ,~t,.. 'I/ ~rj.::,:!{,,,_ ·: '~11'.''. '~1\Ihe a~-eMtant further in his notice of application averred that the learn~a}1a,_~t,lt;ator seriously erred in law and fact in not holding that the -participation of Khalfan Keha, Elias Kasitila and Johnson Kahabuka in the making of the decision on the issue imputes

elements of bias in 7 . Government Notice No. 106 of 2007 a Applicant's notice of application ground No. 1 9 ibid ground 2 and 3 10 op.cit note 8 grounds 4 and 5 3 .. . r' •• -. -.~ -· .... . . .. . , . . ... . ~ : --- ~-t~,, ..~ . • :;~•. ". __._.,~_- -~ ·.• ~~-:.·.:~~~-':-.. · ~ . . ; ~:~~-- ..~:•l"··. violation of one· of the principles of natural justice, namely that a person should not be a judge of his/her own case11 • An element of discrimination was erupted by the applicant in his notice of application that:- there was discrimination in that the applicant was subjected to disciplinary action whereas the s(fe. Engineer Mr. Julius Buberwa who issued t/1,e V?lld permit for the construction of water supply·;.to the:- premises of Mr. Ibrahim Mwangalaba was 'treated ,.; •· differently or was accorded opportunitie~ or advantage outside disciplinary measures12• · --. · · The applicant concluded that the learned arbitrator seriously erred in law and fact for holding that the applicant has already been paid terminal benefits in full in the absence of evidence of such 13 payment including repatriation e?(pensesto the place of domicile •. In his counter reply the respgndent,:.;.argQed in the counter affidavit that· r;=-- -~~~i~. the applicant was ipydl~~~~ti1f1 a number of malpractice activities '\;.ti-:., ...;,:'t. -4'; including illegal cqnne~h:\g _ people to the water

distribution system 14. "\, _ . ,::, ·•·:?\!'. ·:;)· .,,1--· In r~pfYt,to J~~~i~~ ';.;:. ,;giound three (3) of the applicant the respondent .?;.;: . arg,~ed tfia:t,;~tql¾ntemo ·was a: transfer of the applicant from Kibaha '··-;Jjt ('$, ~:-~t:, area'lq_\Mla'~d1zi and the same does not confer power to participate in >·:tl::. ~•ft'· the m~!practice without disciplinary measures being taken 15 • That the 11 op.cit note 8 ground 6 · • • · ''·'. . · ~. , 12 op.cit note 8 grourid-7,-' · :·, ·· : • . · 13 . • I op.cit note 8 ground 8 - 14 ' .Respondent's counter affidavit Paragraph 4 15 ibid Paragraph 5 4 ,. f • ~:.::~t.>a_..,,_t,•• .,_1';, applicant has already been paid his terminal benefits in accordance to the law. 16 Now in order to comprehend what transpired in the Commission for Mediation and Arbitration (CMA) which led to the applicant's employment being terminated by the respondent_ e~ployer it is necessary to make a visit to the facts of the matterfalbeit irf_a ~utshell -~ L . (brief). The applicant who was a commercial. supervisor,~~ priori his .. termination was a sole witness in the Commission for Mediation and Arbitration and mediation testified that, he- was . . a customer care supervisor at Kibaha before being elevated to the position of commercial supervisor when i:,e ·was t;ansferred to Mlandizi, ·he was earning a salary of 419,0001/= per: month 17 • He denied to

the. accusation that he illegally/connecteci'water supply to a client, rather .. it was the site engi.neir<:~he, Buberwa who issued the permit to connect water to;:=;the·;,1:'1teg¢~f client, 18 that they visited the client and _:{, !~\ .,. . others witt\J.He:~dfscjpUmary committee members and found that the ~:~~ i:i -~t;:,,. ·~(.~;:1.:~ ;'•" . water m~tetJ5fit<tg~)client Mr. Ibrahim Mwangalaba had a legal meter ,; ~ ;;:f.:f;.,, '!°it:t'=· . ' du'"lv,~.conn~~"¢~ 9 • When they had finished visiting the clients the ' ~0 . applica-rit_,€ontended further that they went to the office of Mr. .,. ~_{.,.,'.).. . Ibrahim Mwangalaba the client whom the applicant was alleged to have illegalli connected water supply at his site. The visit to the said . client in his office was for the purpose of hearing the alleged recorded 16 . · . op.cit no.re 14 Paragraph 8 17 Op. cit note 2 page 13 of the award 18 ibid page 14 19 ibid l 5 -· . _.,.. ~ :--~ . ~~- .!',,-· -~1!.~!!t5/!Jt !, voice or communication viva voce (by live voice) between the applicant and the client over the issue of connecting water supply by the applicant to the premises of the client Mr. Ibrahim Mwangalaba who had alleged that he recorded the applicant after sensing that he was not a trustworthy person 20 • When they had heard the recording in the office of Ibrahim Mwangalaba (client) they.1 returioed to the office where the

Chairman of the disciplinary hecfri~~:f_om~itt,,e;· read· the verdict and he (applicant) was terminated:-. :·· ... Baada ya kutoka site... kesho yake....'.J¥akaenda... kwa mteja Ibrahim Mwanga/aba ofisinl kwa*e KBC Bank Oysterbay Hi kusikiliza recording za. kwenye simu [ mobile phone recording] baada ya kutoka KBC Bank walirudi ofisini .'<utoa uamuzi... Mwenyekiti alisoma uamuzi wa shauri na::.shahidl alinukuu kama ifuatavyo •: .. aachishwe kazi kwa_ mujibu wa sheria kutokana na kanuni za DAWASCp... 21 \,:. ..:, ·./•i '•,· ::-:... _,; The respondent e;~1o,yer on the other hand called several ;,~;: • -.,?~~/~" k~f;-~~~:;. witnesses in the.,,f:'1:CdtrimissJoh for the purpose of proving the .::r·-- ·-• .. \:;~., ';~•.,t:it• miscondug aJl~,g~o_ly t9 be committed by the applicant employer. ·:,::~}..!_. •±r~. --.--:-~P- :·•:\i~;_;.,,.i_:._;.{1 They were D"Wl Kh~lfahi Keha, DW2 Maulid Ramadhani, DW3 Ibrahim .-&·1;;_:(- -·::i}:.:... ~ .. ,i:t M~-enga'laq~~):;(flferit) and DW4 Mwaluko Maroda [security guard of ·(,:., t.~- :·•,\,; DW3.J}:t\Cco)ding to DW3 Ibrahim Mwangalaba [a client at issue], the . ~.t '· ,{;;;;"/' applicanf;who was introduced to him by his friend called Maulid that' he applicant was a DAWASCO employee who could connect water supply at his site. He received 1.8 million Tzs from him being the cost 20 DW3 Ibrahim Mwangalaba (Respondent witness) see page 11 of the CMA

award 21 op. cit note 3 at Page 14 DAWASCO Regulations (Annexture E) item 3:1 and 3:2 deals with circumstances and procedure of termination of Employment 6 ' . - __ __ .., .. -. f of connecting water supply at his site. Since DW3 had a very tight work schedule, they agreed upon with the applicant that the applicant would be given the amount of money for that purpose. At first DW3 gave the applicant 1 million Tzs for buying items for the work as well as remitting the required money to DAWASCO offices. The applicant however bought low quality items contrary to wha_t.-they;:~ad a_greed , - . ~ ' upon, he sensed therefore that the applicant was not a tru_st, worthy person and hence he decided to record him through the mobile phone on all what they were agreeing upon. At his 'dismay the applicant .. never gave him (DW3) the receipts from DAWASCO that could have shown that he paid for the connection of water supply legally at his site i.e application fee and co?ts for wat~r connection. He demanded the receipts at no avail. When DAWASCQ -~~n:>¥~es visited the site they asked to be given receipt from ·'{D04J,,.Mwaluko who was a security guard of the • "•. :t,,, ''•" . .··· -~.f. {~·:\. . witness (D~~~fN,YJ)OJl,;fl'is failure to produce DAWASCO receipts they were tolgetg_:h,tt]J~:connection of water at his site was done illegally . ~, :if .)}}~-~- :;t;:· ; ,. ~ anct~1.. witho_~f

~;::following the procedure required and that they ~t~ ·-~;<~~;\, disconne~~d the water. On seeing that, the applicant came to re- -~- connect the water supply but was once again disconnected by DAWASCO Manager who summoned DW3 to DAWASCO office for illegal connection of water at his site22 • At DAWASCO DW3 produced the phone recording to the manager and the whole fracas of illegal 22 op. cit note 3 at Page 11 7 . .-~- _. ·,.;.-. · _.::,_..~.;.l _,?~.. :;- · ,,.;~:;:,;(t: ... -- ~ ·-- ..•.• .:c' .,..- •,:"' . . ".; ~ .. --- . ~-. . :: ~ --~··. '1L.'S- : · '11111( I water connection by the applicant was revealed and the employer decided to interdict the applicant:23 • The evidence of DW3 was corroborated by his security guard (DW4) who told the Commission that it was the applicant who came at the site of DW3 and talked with his boss and later. . ,/-:~ he -;.";~wiJnessed .., his __ _ boss giving money to the applicant who went to- ·'buy ... items . .for the .• : - work of connecting water and that it was him DW4 -w.ho· 'dug the trench for putting ~he items needed for water.·· connection supply. Khalfani Keha who testified in the Commi'~sion as DW1 told the Commission for Mediation and Arbitration that Ibrahim Mwangalaba was (DW3) not a legal DAWP6CO client that his site was illegally connected with water supply bec;ause ·there was no person who came to DAWASCO offices for to~e

purpose· of being connected with water supply as the procedure,,h~~:3ked, where he could be provided with ari ··:::-)~. '';.;~~- ~: .expert ['!7taalaml!J'frqgf:~/)jWASCO to survey the area and the cost of connecting:;.,,~pte~i1 :~m~~$Of. The procedure of connecting water at the site of QW:q,. ·~~s..,therefore not followed. However at the disciplinary ~; JJ~1., ~_i.~'1(~ A,; • hi~tllJ.19 coqimfttee it was revealed that Ibrahim Mwangalaba (DW3) \ . .i{;t-, ·\?;J°{:- prod uce9:~1·trvid ence that he was given the permit of connecting water -1) by the site Engineer, that the permit was shown to the said site engineer during the hearing who confessed that the signature on the permit was his signature. DW1 further told the Commission that there t~ t . was no evidence before the Disciplinary Committee which showed that '/: ..,,., .~"\ ~: \ ' 3 i ibid Page 12 8 .. , ... the applicant had received bribe from the client in order to connect water at the site of DW3 :- ... katika uchunguzi wa kamati ya nidhamu... Ibrahim Mwangalaba alitoa ushahidi kwamba alipewa kibali cha kuunganisha maji na Bwana Julius Buberwa ''Acting Site Engineer'' kibali hicho kilionyeshwa na Bwana Buberwa alikiri kuwa sahihi inayoonekana kwenye kibali hicho ni sahihi yake. Hapakuwepo ushahidi wa mla/~mikaj{ kupewa pesa ya rushwa iii amuunganishie maj( mte"ja;:_ Ulitumika ubaguzi katika kumuachisha kazi

·/11/alamikaji ~- -:r na kumuacha Bwana Julius Buberwa aendelee na.,kazi ·.. kama kulikuwepo na ·ushahidi wa kuanganisha maji ... kwa Ibrahimu taratibu zote hizo': '· hazikufuatwa isipokuwa maji ya/iwekwa bi/a kufuata taratJbu hizo ... 24 \/\/hen the supply of water was disconnected the client D\/1/3 came to DAWASCO office and told D\JV1 that he was ready to prove that the supply of water at his site vyas· connected by a DAWASCO employee Mr. James Ngo_r{ge. 11.,,· When the applicant was required to give an explanation qf ~-:r~. Wh"/'. nf?. had connected water at DW3 without -¾?.::> 1\~- followi ng the prqgetl.ijreit.1,t~l· f. ·7i, ..,,,.,. applicant according to DWl denied to have connectecbw~ter ti the site of DW3 or even to know him25 • ffii::.','i:f{i~~};;,. -~~::\lt·,::?,/•t.C .,J~.- Thi's \o/,itqts's'"further told the Commission that the applicant was ··tr,~.,, ~{~ )1 . ; . identlffi.~d by 1 DW4 [the Security Guard of DW3] as the one who came 'i.,<1\:.-.,:£!,{T;/- to put tn~ required items after they had dug the trenches for that purpose. DW1 further said that there was a shop nearby where the applicant was said to have sent the application form for water connection in or~er that the said application form could reach Ibrahim 2• Op.cit note 3 at page 6 25 ibid 9 l Mwangalaba [DW3] that woman who was the shop seller identified the applicant by pointing him at the

disciplinary hearing but the woman never testified in the Commission:- ... Pia kuna duka karibu na eneo la tukio akiuza mama kuna fomu ya usaji/i [application form] wa maji ambayo James aliwahi kupeleka hapo dukani 11i imfikie Ibrahim [DWJJ naye mama aliweza kumtambua James kwq kumwonyesha kwa kidole. Kwahiyo Kamati ilif[dhika>na'. ushahidi huo na mlinzi yule alikiri kuw/J·. ndiye -. aliyechimba mtaro na kulipwa na James... 26 i: , The witness argued that, the applicant attempted to register the ' client DW3 to the Chines Project by using the form of registration that was left at the said shop. The disciplinary hearing committee saw that the applicant was guilty of _the misconduct. The applicant . . according to DW2 did registerJhe cli_ent form as Chines Project and - that it was himself [DW2 . :the ·rel;Hv~~:?of DW3] who accompanied the applicant to Mailimoj9. in~,~;~8a,ba to buy the items needed for water -~~;._._ ';,i~.. '\ .; connection and h~'iWa§_.'pajgft,000,000/= Tzs. In spite of the fact that :~s. -..,~,,,.~ ... the wate;h,~~~PP.ty'\,,,g,egt resumed yet DAWASCO came again and .....;:;..-1!"' .. ~~~-- ~- -.. disconn11~~"'i~~b.~Jsupply of water because the client Ibrahim M~aJ!ga.i'aq~-t~jf3] water supply at his site was illegally connected. -~~{~-.. ,::t;r}~ Theifearned arbitrator after hearing the parties he was of the view that the applicant was fairly terminated

because there was a valid reason ~o terminate, however. he found that the respondent ' . employer did, riot fo~low. the fair proc~dure as the names of the 26 Op.cit note 3 at page 7 .·. ·. .- . - ~·- .. .1'.r:.. ... .• - ~ '~;!.... •. : ~ • ·?-" ...... ·_ ·., . _. ·_ ~ . .'f: --:: -: ~ ~ . '-.; .-~ .:_r.~...: disciplinary hearing committee members were not revealed putting the allegation by the applicant that his manager who was a prosecutor had also participated in the decision maki.ng as the members of the disciplinary hearing committee. This was contrary to Government Notice No. 42 of 2007 at page 67 concerning disciplinary hearing27 • [Guidelines 4 (2) I think is the one which is referred~o]:-.• ·· . ~ -,,:·.~ -. (2)... The chairperson of the hearing should be impartial . . and should not if possible have been involved ih. the ':,; · issues giving rise to the hearing, In1 :;appropriate circumstances a senior manager from a. different office may serve as a chairperson ... 28 · · In their final written submissions each party gave a version of his own. The applicant submitted on the fairness of the reason that _ since the permit to connect water supply to the premises of Ibrahim· Mwangalaba was issued :9Y the ·appropriate authority i.e. Mr. Julius Buberwa the learned ,J3rl5it,ratox should have held that the respondent -:--.;:.~f:>i- '-\~.,.. ''r•'; has no valid

reasorr;te, 4:r terzm.inate:- .::\\. r,_,.1-J.:/ .. \.~/'.. 'f./J,~,4?.~(f:(t )to construC! the water supply i~sued by thf!t;~?'te4fpglh't!er was valid and accurate and gwen that J-:it/Je·~emplqyer failed to produce the said permit to the "?:;;. i! {?M,&._/·ttfat tantamount [sic] to failure to discharge the 1 '¼~l... ·.;,.,$. ~µdJ.en of proof that the conduct to construct and <.-!{';•;.-.,. "';;~,. 5/iimect the said water supply did not constitute a ~+;;/contravention of any rule or right. ..29 The applicant argued further that his post as a commercial supervisor as per job description of 2008 annexure 'E' to the 27 op.cit note 3 page 10 28 GN No. 42 of 2007 Guidelines 4 (2) 29 Applicant's written submission at page 2 paragraph 1 ' ' 11 . .,. · applicant's affidavit did not include construction and connecting water supply to customers30 • On the issue of procedural fairness the applicant submitted that the respondent employer did not follow the 31 mandatory regulation 44 (5) of the Public Service Regulations [2003] which requires that " ... a charge or charges shall be accompanied . by notice which may be in the form laid down . jn part B of the schedule to these regulations ... ". The responde~t.r,1ever,}ssued to ·, the applicant the same save the respondent issued a letter to the - applicant requiring him to provide explanatior, on the illegal .. connection of water services

to Ibrahi_m-~Mwangalaba 32 • That the respondent failed to comply with the mandatory requirement of Regulations 45 (1). of the Public Service R:egulation 33 , 2003 regarding inquiry into disciplinary charges w,b.ic~_._provides:- 45 (1) ... or ma1<J§}~epres;~;ation which in the opinion of the disc/pilhcl!Y,.\~~uthority do not amount to a complete d#fencl{pf..;the offence which the accused public sl/1Yat1t -►--s~(,t,irged. The disciplinary authority ;.-· :-::'I' _,",., ,ftsha/L"appoiil~; two or more members to hold an .;1lJ.f/fiiry;._~iil.t,g}the charge or charges14 [emphasis ;;::iJ_LIPP/ied":f?y the applicant] ,. , .f. i,0'-1:.,. ' ~Jf.;;'·!(.'· ·,-;\.1t!heretor~1--a·ccording to the applicant the disciplinary authority ·-1f:;. ':.;;.:,:.:.•·: instead!'•Qft:~ppointing an inquiry committee as required by Regulation ·t_-{-" 45 (1) above quoted he constituted a disciplinary committee of five members to inquire into the charges. That the committee is 30 ibid paragraph 3 31 Government Notice No. 168 of 20th June, 2003 32 op. cit note 29 33 op. cit note 31 34 op. cit note 29 Regulation 45 (1) of GN 168 of 2002. The Public Service Regulations and quoted from applicant's written submission 12 . ~-..:· ..··,:,,.·.·. 1· .., - • • ... ::-·-,_~-"··- ... ....... · : . , •• ....... : , . •• , ,,;~ .. -- ' -. precluded from endorsing any recommendation as to the type of · punishment to be

awarded. Hence the purported disciplinary committee was incompetent to_ inquire the charges35 • The applicant further submitted that the learned arbitrator should have held that the Human Resources Manage~: [H~~] one Elias Kasitila acted without jurisdiction to terminate the:-employment of the applicant by the letter Ref. DAWASCO/DA/CPF/2008 ·,·_of 10th November, 2010 annexture 'D' to the applicant- affidavit because the Chief Executive Officer [CEO] of the respondent is the disciplinary authority and that letter mentioned above did not make a reference to effect that the Human Resource Manager was acting upon instructions or implementing a decision mad~ by toe·disciplinary authority36 • That there was bias because,;i_Khalf~~'· ·K~ha [DW1] Elias Kasitila and '?. ~.... Johnson Kahabuka w~retg{ea'.~Manager Mlandizi [DW1] Elias Kasitila [Human Resourc~;-tDA.VJA$.~O] and Johnson Kahabuka [member of FIBUCA]. '%\f\1.1"-P~.ftisip~ted ,.1;<.. . .1".. . •• .,. in the disciplinary committee and thu?- ·-.:~ ,!~ Judge of~ili§ b"-in .~use37• The applicant imputed further that there ~ ~J. .-:?+::~~ -~.-:t-~ .' was::.. disciplJnaw on part of the employer respondent contrary to I r~t._ :i.. ~~• :;}; Sectiori's1rpfthe •'<,,,:J}~ Employment and Labour Relations Act 200438 as the 35 ibid page 3 36 ibid page 4 37 (ELRAJ Act No. 4 of 2004 38 op. cit note 29 at page 5 13 ,/ ,, : ·: .,~<~--~7:: ~=i~

,~ ; evidence revealed that the permit was issued to construct· water supply by the site engineer of the respondent:- ... The permit for construction of water supply to the premises of Mr. Ibrahim Mwangalaba was issued by Julius Buberwa site Engineer. The said permit was not produced by the respondent during the disciplinary preceding [sic]. The applicant was subjected to disciplinary action whereas the site Engine?.r ~as treated different or accorded opportunities ·· or advantages outside disciplinary measures19 ... ·· '·. The applicant concluded in his written submission that he was not paid the cost of transportation for hirnself and his family personal effects from Mlandizi [duty station] to his,:. pl·ace of domicile i.e. Misenye District in Kagera Region 40 to the turn of 3,500,000/= by then in November, 2010 that the· ~ntitlement constitute part of terminal benefit according to Section ,·, 43 of ._the ELRA41 and article 3:3:5 on page 7 of Kanuni na Mc!ihctrti ya Utumishi DAWP-SCO42 [Guidelines •••·. I,• <~~,_. "';i\ -. ·-:~. and Rules of Emplqyv.,em.t D_1A,.WASCO]. \t .;~: ,;;' -.:Z:\;')~_:}I, .-:\t- . .\ ..;":·• ~~~\:-L. . ·:?\. The respondentJih his short written submission averred that ...'7f::•~ ·-i~~ii-i-- "<J;r. there "Y,as·~1t,.~LJijcient and justifiable reasons to terminate the ':t;j', ~:;~;~ 'r.:;,_;· -.;. em-~1Qymerft:.,o.f the applicant. The applicant had also

misconstrued ·,i*k-. .,_:,, . the job·a~scription and the involvement in malpractice activities which 1t ibid page 6 • S. 43 (1) Act No. 4 of 2004 where an employee's contract of employment is terminated at a place other than where the employee was recruited, the employer shall either · fa) Transport of the employee and his personal effects to the place of recruitment (bl Pay for the transportation of the employee to the place of recruitment or (c) ......... . 41 DAWASCO guidelines annexture 'F' Rule 3:3:5 mandates the employer to the easiest type of transportation not 39 the select either of the two (a) or (b) 41 op. cit note 31 · , attract disciplinary action. Therefore being a commercial officer or supervisor was not an immunity for disciplinary action and that the offence attracts summary proceedings. As regard to the provisions of Public Service Regulations43 , the respondent submitted that:- ... Procedure was followed... that in the award paragraph 1 of page 20 it is clearly stipulated that there is no ar,y · prejudice for the application of other laws $uch:f~as Employment and Labour Relations Ad No. 6,,of 2004 toi be used on matters of disciplinary hearing. As it [is]_the '.,:: same law the applicant lodged the application to- tqe CMA. If the Public· Regulations couid :have been involved .. the applicant could appeal.,_;~-~ to-tfle. Public Service Commission instead to

refer (s/c)Vt to CMA. .. 44 Hence according to the respondent· the invocation of the Public Service Regulations as ground; of revis_ion .:9oes not serve the purpose and wholly taken, there is notl'.ljng sh~~n 6n how the award was ,;,,:., /, erroneously obtained atCMA on ;h;'ther there was discrimination on ~~-. ~. "'-~·,. . taking disciplinary m~~sut~s\1by the respondent. The respondent .v.•_:;,_: ,.-.°'! •:.~-..~-~-. ff-::;- concluded that Qh ttut:,tpayment of terminal benefit it is clearly . .:r .. 1~(. , ·c.½. stipulated -,~lnJtn~i~,~wa..rd\ that the terminal benefits were paid except -~tt-. ~~:;}{. the one Jff6irJt.n·~,Q.t1te which the commission ordered to be paid within 'i;f<"~- ,,; ·,t,}.•?: ":kt·,. "';.;_.- . , 14 cf~{~· i.Q.~refore there are no grounds for revision to attract this . court tdt¼.~vise the arbitration award on any material irregularities in the award ... 45 43 Respondent written submission at page 2 44 ibid page 3 . . 45 Revision No. 382 of 2013 James Leonidas Ngonge Vs. 0AWASCO 15 I have duly consider the written submissions of both parties and read the commission record in ex-abandunt cautela [with eyes or caution or extreme caution] in deciding the present revision46 • I will also confine myself on the issues that futured in the Commission for Mediation and Arbitration. The first question to be determined in this revision is whether or not there was

fairness of,-- th~· ·reasons in terminating the applicant employee. The Employment . an9. '· ,Labour •, Relations [Code of Good Practice] requires that4~-:- ...Any employer arbitrator or Judge who is required to decide as to termination for miscond_uct is unfair shall consider:- · (a) Whether or not the employee contravened a rule or standard. regulating conduct relating to employmenf8~~- Under the above rule there are.. ..two things to be considered, first , , ., .. _ it must be determined-.,,.if . tb.ere is a rule existed second if the rule existed it must be ,_c:leter~Ib~cf'ff the employee contravened it. There ·~.··;-~;."..;,_,,::r;:.-' ...:.~~~-: .,,: ;:~ -~~· are sev~ral impprta'rit. ~sources of rules regulating conduct of employee;1~,;~~l~~m;~nt or work place some of them are:- .. ("!j~· . '~~-;t;,{ _;:}, ·:;~-~~ .\' ·:ei) ',.J:).lsciplinary .:;·~ .. . ,. code this is a important source of rules. . -:;., c:;._ ::.t, If there is a code at work place then it must be 'f\~ .,:,,~--:4 determined whether the rule which the employee 1 ... \;_\::f:;, contravened existed or is contained in the disciplinary code. Under the above source it can be said that if the disciplinary code does not include the rule which the employee contravened, then 46 Government Notice No. 42 of 2007 41 ibid 48 ibid 16 ~ . . .. . .... . ~ - .~ · -· ·... ~.-.7•..,-.?f.'1'••. ~_;~.,..

·:_~."'~~~">~,...r~;~,~~7¢.t'~~t: _... ; ... " l.:.:,r~t: •._.. -.. an inference might be drawn that such rule done not exist i.e. the rule which the employee contravened. However if the rule contravened is not included in the code at place of work, it should not be taken as a "knee jerK' response that an employee's termination is unfair because there are q~per sources where such rules may be contained for example:-. :, \:,~. · (a) The rule may be contained in the employ~es -- written contract of employment. (b) The rule may also be included, in ·a .policy or personnel manual or in the notices placed on the notice boards where the employee works. · (c} Registration Rules regulating the conduct of employees at place of work may be found in various respective legislations. (d) Common law. . This is another source;·_·tof rules regulating the conduct of employees at place of work because in comm.on ;laW·th.~ employee must work or act in goqcf faith lo'tyards ' :,$-:~-. , •,-~·, ~: : ,:. the employer. f? . •~·. lf. '· \~;:)(~}r Theq:~sponpe_Q.t erpployer had charged the applicant employee -~~,:r. ·, ·\~;,.......... '.: ;._:;:. before th~JilseJpli~rihearing committee with two counts (offences) /I . Y·\::,, ~\;f~~t.fi-t . which are:-:,:>\;. ·,· -~~fy~~ :i~;: . . ;;:,., ".:t·f.~\ ([/t; · Kuunganisha wateja kinyume na taratibu za ··':k;,)':;· DAWASCO [illegal connection of water supply

to clients]. (ii) Kupotosha ofisi kwa kujaribu kumsajili Bwana Ibrahim kama mteja wa mradi wa Wachina49 [attempting to register Mr. Ibrahim as a client in a China Project [English translation mine]. --------.• 49 "{/, Disciplinary hearing proceedings Exh. 0 3 17 ... , ..., ...¥'" ·1·----· / < .. '!Ito ·t • ·. -..._ ~~·or ... ,... . . . :_ . .: ; ' ·.• Unfortunately the respondent did not say what DAWASCO rule the applicant employee had contravened. I had expected that the respondent could have produced the DAWASCO KANUNI NA MASHARTI YA UTUMISHI 50 [DAWASCO RULES AND CONDITION OF EMPLOYMENT] JULY 2005 either as annexure or exhibit to show the Rule which the applica~t emp~,ayee.: had contravened but to my surprise, it was the applkant employee :, .-._•, who •·. , had annexed the QAWASCO rules and condition of employment in his affidavit for the purpose showing the terminal benefits he was not paid by the employer respondent as enshrined~·in the said rules and condition of employment note bien item or article 3:3 at page 7 which reads:- · .. .Malipo wakati wa kuachishwa kazi [payments upon termination] . , 3:3:1 Ms/Jahc1.[a wa mfanyakazi hadi siku ya tmwisbo Ya. kuachishwa kazi [salary of the ·'"'' ii17]ploY,ee io the last date of termination] 3{-i-i,, '''\:.;,.),;. t:i'· ·t:-.· •..r-'-'.~··' ,)'.t;\\i{*?~{4;{:~¥_:.It _..•·:;:t;1;,,, ,'<" -'t-. -~>:,. _3:3/5 Gharama za usafiri

[transportation costs]:.:. .,._,,,..,, .. ,,__, /.;) ?i/ -::.~:··~··.. ·•,r~ ,. :.'· l // ••• :\;;, 'ii. <:,:,_ (ii) Kumlipa mfanyakazi gharama ya usafiri wa yeye -\~~-,;- ·,:c, ,_; mwenyewe na familia yake na gharama ya 'f.'.,,/' kusafirisha mizigo isiyozidi tani tatu hadi sehemu · alikozaliwa [transport costs to be paid to the · employee and his family and luggage or goods not exceeding three tons to the place he was born] [English translatipn-:mine/1 I ~- .I ,- • - ~. ·" ; ·~· ••• ) ' .. .. ' ' • j - so Rules and condition of employment July 2005 DAWAS~d 1H:~~ti1:~·~·Ma!t~~iva ~~um;shi DAWASCO July, 2005) annexture 'F' to the applicant employee affidavit Revision No, 3fitof 2013 51 ibid page 7 of the DAWASCO Rules . . '' r" 18 • ., Jltl!il ,%; ,, •• ,,. . ,.. ': ' ,·_' j·•· . . ' A cursory glance on the DAWASCO rules and condition of employment appear to have 18 pages with articles from 1 :0 [introduction] to 10:0 mengineyo [others] at page 18. The applicant had filed or annexed only part of the DAWASCO rules and condition of employment with only 7 pages instead of the 18 pages for the purpose of supporting his arguments on unpaid te~!}l1in 91··'~enefits by the employer respondent5 2 • I did not see the eighth· p9rt of.the rules which has the types of offences:- B:2 Aina ya makosa yaflayoangukia katika_ kundi la makosa ya kawaida [types:·of offences falls under ordinary

offences]. 8:3 Makosa yanayoangukia katika · kundi la makosa makubwa [ti;pes of offences which fall under serious offences} 8:4 Adhabu kwa kushindwa kutii kanuni na masharti ya . uf/Jmishi [penalty for contra,v..~ning tfie <rules and condition of 3 emplqyfnent/ ..... "'.: ---;,.,. Chapter eigJat"'~~6f.~,.. •. . ·r-~.... ~ ~h'e ··DAWASCO rules and condition of r·~:;:·. employme~t ~µ9i~~~:-~_g9ve in party, shows that there are rules and penalty for_•:i:tont~~y~;ing and they appear at page 15 which the ~}· "'·~t'\:;t . :'f:\:::.:.:,t!/ appJt~nt h1a~·T1pf attached. He attached only page one and seven as ·"1, ·-·~ •. well cis'~he_,c~bntents from article 1:0 to 10:0 [pages shown as 1 - 18]. ~ I,tl/: v1f}f:~t· Be that as' it may even if we could say that the applicant was charged with contravening the rule to wit illegal of water supply connection to .,_. 52 See the affidavit of the applicant employee paragraph 6 and annexture 'F' ;OAWA-SCO -Rutes andtor;t:tition~ . '' · employment •· . ,.. · . • · · ~ ·~.;,;, ,..,,. ·- ~ "-:- "'·., . : : ·., · · ·~ 53 Part eight of the DA WASCO rules ibid page i/orthe contents of the DAW~SCO 'll!~s . ~ . ✓-. ·. ,,..J ~ 54 the client and that the said rule contravened existed, still as far as the record is concerned the employer respondent had not discharged his duty of proving that there was illegal water supply connection to the client on Ibrahim

Mwangalaba because there was a permit "kibali" to construct the water supply issued by the Site Engineer one Julius Buberwa 55 that according to the evidence of the,.,.employer ; ·... in .· the . commission the investigation made by the discipHn,~ry committee where three clients had testified including Mr. Ibrahim· Mwangalaba [whom the applicant is accused of illegal cor,mectio.n of water supply to him] this one testified that he was ~iven th.e permit by the site Engineer Mr. Julius Buberwa which permit was shown to the said site Engineer at the disciplinary- hearing ar:id he [the · Site Engineer] confirmed that the signature one,,tr~ .l?ermit to constru·ct water supply ,. . ,,. :·· . . at Ibrahim Mwangalaba.,wifs.,.his signature:- -..\~- ·<;. : ...Bwana lbtahin/t:f'{fJ;/ttnga/aba alitoa ushahidi kwamba aHp~~:ftibii,{f1sft~iuu?ganishi"'!a maji na Bwa~a J~lius ,;.. Buberw~,. ''A'cJ,_mg · Site Engmeer'~ Kiba/1 h1cho :"' '/fi./i¢ilfy~"h:vy.p._,,../!Ja Bwana Buberwa alikiri kuwa. sahihi 1 iiia\oorie'{f,a'lia'kwenye kibali ni sahihi yake...56 - ,.t~~iiii,".:'·',f"·\~,:.:J y:",:t The With~s above was testifying on behalf of the employer '"·\},:..,_' ',':::...;-:..,\::... . 1· respon~~~SJDWl] Khalifani Keha DAWASCO Manager of Mlandizi. -~:' . Unfortunately the employer respondent did not call Mr. Julius Bu~rwa the Site Engineer to testify before the Commission and 54 Rule 12 (1) of

the Employment and Labour Relations [Code of Good Practice) Government Notice 55 CMA arbitration award at page 4 56 ibid page 4 20 ... • - ... "'~ ••• - ,,.,· \ ·- . .: . ~ i ", -: .•· produce or challenge the said water supply construction permit. Since there is no evidence on record that showed that the perm it given to Mr. Ibrahim Mwangalaba by the Site Engineer of the respondent was a forged one the respondent employee cannot say therefore that there was illegal water connection at the premises of Ibrahim Mwangalaba done by the applicant employee. What. I think went . . wrong in my view was the procedure before the· permit toiconstruct . . . .. : water supply had been issued. The permit to connect water supply ...... '":" was however issued as the record shows ·. although the employer respondent did not want to produce it or call'. the Site Engin.eer to testify and give a challenge to the permit he acknowledged before the disciplinary hearing a permit which ~as produced by the client Ibrahim Mwangalaba whom the applicant. is accused of illegal . . ·l•,:"{-1~ connecting water supply., cittt,is premises 57 • I entirely and respectfully agree with the applicaot tfiat·;,:,\, £~~~\1~,.-, .~-~\~;, ·1:";- ... The p_errrilt-tt.d·tonstrud water supply to the premises ''<gt 1;,fn~,~'M.C!,.. ~rahim Mwangalaba was issued by the aji/),(opriq/e;,;;authority i.e. Mr. Julius Buberwa the

Site :~),J.'qpgln~~r):pnd that permit was not produced by the '':ti;; :f t;,e's!fp)filent as such the learned arbitrator should have 1 ~· ~~, 0/:(~i~i:that ;1e respondent had no valid reason to "~, teffhmate... --i:},i\~:--~ff 1f.. -~~';-~ '••~.;, In view of the above I think the employer failed to establish on the balance of probabilities that there was a rule regulating conduct of employee at place of work which was contravened by the applicant 57 The charge before the disciplinary heavy committee was illegal water supply connection to Mr. Mwangalaba employer alleged that the appllcant had contravened a rule 58 Applicants written submission in support of the revision p. 1-2 .•· ·,,":!,:··· 21 employee. Nevertheless even if it could said that the applicant employee did contravene a rule the employer had practiced discrimination at place of work contrary to the Employment and Labour Relations Act'9 • The prohibition of discrimination in the work - . place. The relevant section reads:- ... Every employer shall ensure that he promotes .:afJ. equal opportunity in employment and strives · to,. ·-' eliminate discrimination in any eniploy1J7ent ·-,. policy or practice... 60 --~-, · .As rightly pointed out by the applicant._ir;,.. his:,wr_itt:en submission .. that the permit to construct water supply at,the _premises of Ibrahim Mwangalaba was issued by the Site Eng_ineer ·Mr. Buberwa

but it was only the applicant who was subjected to disciplinary action as the record showed 61 • Discriminatio·n- i[l rry~ting discipline by the employer· ·:; ··>·•·'~: I I can be seen when one~_employee is subjected to disciplinary action. l I '•:<~ ·'.:.,,:_ i,. i and the other is left;·;t!lQMi~0,standing the fact that both of them had i i ;i:Wr~~r? \:~~- t~:. . ~ ! ! contraven,ed the ~~le~~:;~<f□le'' 12 (l)(b) of the Employment and Labour i i Relations·-,;~E~(;.§.a~\;f':i;:(;Jod Practice says that if the employee has I ! ;tt,:4,.. '?::}··.~ ·:_.~-~; i contrav~n'eclt~riyi;~.ru1e or standard, then the employer must show that l -~~-- -~ ~ ,1:., (~~t~.. ... · .. ~ 62 i it has,ji.peen~i<~grnsistently·applied ·t:·~,::o. .... by the employer :- II ft /~~.. \'f;tJ!:~Any employer or arbitrator or Judge who is required to , decide as to termination for misconduct is unfair shall

I I I • i 59 Act No. 6 of 2004 Cap 366 R.E 2009 {(•:' I.I I I 60 61 62 ibid section 7 (1) op. cit note 56 at page 5 ~.r'. ' I op. cit note 45 I ri 22 ! 1i 'I , - i ! l .1-, . l ... .~ , •ii' . ,Jl J. .. , { ;.· 1 '. ! ,· ..., i;--r· ;- consider:- (a) Whether or not the employee contravened a rule or standard regulating conduct relating to employmenf3 • (b) If the rule or standard was contravened whether or not:- (i) (ii) (111) (iv) It has been consistently applied.,by the employel4 _,: : · '•.. The above rule means that the employer., ,.9t place "of work must be consistent when meting out disciplines. ::There ar-e two types of inconsistently which may arise, namely:- (aJ Contemporaneous inconsistency this is where employees who breach· the same·· rule at roughly the sametime or contemporaneously are not all disciplined by the employer but the employer disciplines one. or some employees and leave the other employe,es or employee... <£'< -:- ✓ The importan~ tfoo,g lq;,r.etkon here is that the above is based on · --1t~~-:..:-r1- t~·~ l-: ·:- a proposilion that sirtl'f!:at~tases should be treated similarly. If the .;~-~. 1;f}:{:?..,.,. ,.-'i ·:·._. \~- employer db~~ n·ot,freaf equally, the employees the inference may be dr~wn tf.{~t)i~e.f~mployer administers discipline in arbitrary and •>1:~, · ,r ·,.,f. discrh;g}natoey:.}way65 • The Employment and Labour Relations Act -~.ii:,-.

,..:i·. prohib£·~~di~crimination in work place and argues the employer to promote an equal opportunity in employment and eliminate 63 eg. illegal connection of water supply 64 op. cit note 60 rule 12 (1) (b) Iv ~ ~ See also Prof. Basson Essential Labour Law 3 2002 p. 182 23 • 66 discrimination in any employment policy or practice • The second inconsistency is:- (b) Historical inconsistency this is where the employer has in the past not proceeded against employees when they have contravened a rule The unfairness of the above inconsistency is that when th~ employer did not discipline employees who had cqrrtrav~heg :·. .., a rule or. . standard in the past, an impression would be had that><;:Ontravention .. , . of the particular rule in the past was not conslde·~ed as a misconduct. However the fact that an· employer has condoned·· certain types of misconduct in the past does not mean that action cannot be taken against empioyees in the future for such misconduct67 • · In view of the above therefore,, .. ,•·, .._the employer respondent in the '.' ._. ' ~·, present case at hand hao·::h~ establi~hed that the employee applicant : ?~)".... .·~\~:-, . had contravened the 'rt:J_le "to)vit illegal connection of water supply for :.:~;i~t?~·.,. 1~~·..,. .:·;t.:/ example, Jhe empJoye·r :wbuld have unfairly terminated the employee }i . - 1 . ~-~t- :;-~::\;;:.-;) ~-~:!.~:;-, . in view of

~~~1e)'.tf2'~.if1) (b) (iv) of the Employment and Labour 1 -~ ~ . 68 R~l,~tion,'l~~.9,,~r~t,BGood Practice] as he would have not consistently '-:!"''7?. ·l~ •••<• app-11~9. the\:1$,ai'd rule or standard· to the two employees who had •(",j,~~- ·> ;=·~ contemporaneously contravened the rule to wit the Site Engineer who issued the permit and the applicant employer who connected the I, 66 op. cit note 57 see Section 7 (1) 67 op. cit note 63 at page 182 68 Government Notice No. 42 of 2007 (GN) 24 iI I ., :I ~.._ ,. _":)_=-~•. ·,~•·"' ., I I l • water supply at Ibrahim Mwangalaba premises. The employer he would have went contrary to the ELRA69 • The disciplinary committee in convicting the applicant employee had used "recording' of the conversation between the applicant employee and the client DW3 Ibrahim Mwangalaba ov~r the issue :::: :, .... using a mobile phone. The person who recorded<the applicant was the client DW3 himself after the applicant ,v...had ref~sed. ~ tcf sign a contract "mkataba'' with the client DW3t:';over water supply . . connection 70 • The Commission also swallow.e_d fully that piece of evidence recorded by the client DW3 in· his mobile phone interalia and upheld that there was reason for the employer to terminate71 • However with respect I don't share· the same views with the • I .1 Commission and I found,,,,that .-,: the ·act of the applicant employee to··

.... refuse signing a contrack9r{water supply connection with the client •~ •--,;.~f·. 1 \,c~. • !:" (DW3) deserved support:-;p_'{ the employer because the applicant was \•• :;--: .I•, 72 not prepah~gfto,.;r.:~igp, 1;pocument illegally and out of office • The "'.~12t, ·i:~, ·. • .· . -:-~ procedut~~Qd~;Qr,9§tice was told by the witness (DW1) Khalfani Keha t", ~: ,)t~)~~i" '·'-"=!j{~-,:.- ' D/i.V/y~CO!f'l,i'.oager that a client must come at DAWASCO Offices for '\?i,.. t\r}:~· the exeri.{;i~e ·,;;<'·,, of water connection which included the preparation of\ survey and costs quotation needed for water connection 73 • It is not · known why the client DW3 had wanted the applicant to sign a 69 op. cit note 57 the Act prohibits discrimination at work place as per section 7 10 op. cit CMA award at page 11 paragraph 2 71 ibid page 18 -19 . n CMA Arbitration proceedings explains the procedure {DWl) on legal connection of water see page 7 73 ibid page 7 , .· 25 . ., ~ , ,· .:·-., ·••. , :.- contract with him while he knew that all signing of documents or contracts on water connection is done is DAWASCO Office. In my view the applicant employee was correct to refuse to a call by the client (DW3) to sign documents out of office74. The refusal of the applicant to sign fuelled the desire of the client (DW3) to use mobile phone to record the conversation between himself_ ~nd,,tli~

applicant 7 and which he used it before the disciplinary hearir{g:/and her.ore the t. !''' Commission and the two forums below dump~~L themselves· into the 5 quagmire of using electronic recording to conder;rm the applicant7 [among other evidence]. The Labour Court Rules describes electronic· as:- ...Electronic means anything .,relating to technology having electrical digital, magnetic, wireless, optical 6 electromagnetic or',similar:capabllities7 .•. ::--.,:·~.;,,. ••• : ,..__ , ...!~,~ - The recording useth;\by,(;t~e witness against the applicant in the .. ~-}.. -';::½~~ ,~;: • . disciplinary hearirt~hiom.mittee and later crossed the floor to the ·:,( .•"·. ,: •: . -~\:t?~~J·" Commissiqp ~tl~t.1:IJ~ W,\tness DW3 used his mobile phone to record ~;·:.·:. ;? ··~\..-. -~-:;=.;;:;r;-t_. the appli~rits ··conversation with him was electronic stored f '"~;~'>i,. '\\)J;;:,;;J::' info,lmat1b~:{w.~jch is a document in terms of the Tanzania Evidence 77 Act ~\,~Ihe:Ctft>0ur Court Rules also interprets a document to include . !~!->Ji~: ' any publication and any matter written expressed or described upon any substance by means of letters figures or marks or by more than one of those means which intend to be used for the purpose of 74 op. cit note 68 at page 11 paragraph 2 75 ibid page 18 - 19 : Section 2 of the Labour Court Rules Government Notice (GN) No. 106 _of 2007 Section 3 of the TEA

1967 [Cap 6 R.E. 2002] · · · .,.... 26 .·.·;~. :..:. . . .:·:,~-- , recording that matter document or record in electronic form 78 • The evidence Act gives more information on what is a document thus:- ...Any writing handwriting type writing, printing photo stat photograph and every recording upon my tangible thing any form of communication or representation by letters, figures which may b~ use(! for the purpose of recording any matter.}irovided: that such recording is reasonably permanent and\ readable by right [emphasis mine/9••• ·• :/ · ·· · · . ; _.-~.:. ,~· I don't think in my view that the L!S·e-:\-of electronic stored information as evidence in civil matters has- been a'cknowledged par- excellence by the courts80 • However as regard to criminal cases the . . ,• TEA of 1967 is clear that8 1 • The Tanzania Evidence Act reads that [provides the admissibility of electronic ·. ::· stbred information] 82 :- . ! ...In criminal proceedirjgs:- ,.... >fcj., · -' I (a) An informqdon _retrieved from computer systems, networks orse'Rt.ers ,:_.,; \~ .,.~ or (b) Tf:l-~"::;/:efco,ff/S ;~through surveillance of means of p}esent?,tiiJfi?:'·of information including facsimile ''tr<. .!J{f!!;:iJJ?1if/JinifJ, electronic transmission and "'~f~- comtfiuriication facilities. ;f,:,i:(ff"!~Q[1,j a'!dio or video reco~ding of acts or ft ,,., \\\'\,,~::-, l' r::r;:,:!s .,,w :::tff ifi"A~> behaviour

or conversation of persons admissible in evidence 78 op. cit note 74 Section 2 79 op. cit (TEA) note 75 80 I have never come across with the decision of the supreme court of this country i.e. the Court of Appeal authorizing the use of electronic stored information in civil cases as evidence that can be relied upon at a big parcentum or whatever 81 op. cit note 75 see Section 40A az E.S.I. [Electronic Stored Information] 83 · i op. 9t note 79

I I I I 27 I ! ' i· i . i,. . ·. ., .. .Jr' ,-r_. .·• . .. -~- _: ..< ~dbn:(: • On what I have attempted to discuss above I have no flicker of doubt that there was no fair and valid reasons (s) for the employer respondent to terminate the employment of the applicant employee. I come now to the issue of procedural fairness the applicant submitted in his written submissions that the respon_dent~pid not use the Public Service Regulation 84 • He therefore fe:)_i'fi~ to.: ~3t:npl_y· ·with regulation 44 ( 5) of the said regulation which provide -~f-i'at a :2h~rge or charges shall be accompanied by notice which; ,. ·, may be in the form laid . ,, . 85 down in part B of the second schedule t~ the Regulations • He argued further that the disciplinary a_ythority failed to comply with the mandatory requirement of the:,provisJ~:ms of Regulations 45 (1) of the Public Service Regulatipns 200.3';'t,JhichJ)rdvides:- ... or makes represJntatiohs Which in the opinion of th~ disciplinary autQorlty do not amount to a complete defenc~ w?iC.,.q_ the.~Ca(Jfted.:. public servant_ is charged. The dlf.flP.{'nf!lY tfluthonty shall appoint two or more rijemb.~r§to hold an inquiry into the charge I ,.' ~~tpr ,phf!.fg~/6 I.emphasis supplied by the applicant]... I ! ·- :~ -.~;t. ·~--~\~~- ·-.'i/f;_;:~;r· He.~'ittht.~lfe~g~ that the disciplinary authority instead of -0~. ,: :;;{!'f:~~\ ., ·-=t: . .

' ap~tDting~~,~;finquiry committee as required by Regulation 45 (1) '•r;• ,, .. . : I I quotecf1aJi9-ve the respondent constituted a disciplinary committee of ~> I I i ! five members to inquire into the charges. Hence the purported !i I inquiry committee or disciplinary committee was incompetent to ! I I ' I! 84 85 86 Government Notice {GN) ibid No: 168 of 2003 ! Ibid Regulation 45 (1) i ii I 28 ·~, •• t ' . . I L~ .. . . :.;,~ ......... ,,.,. inquire into the charges87 • That the recommendations and nature of punishment in the report were contrary to the provision of Regulations 48 (1) (2) (3) of the Regulations88 • I think as rightly pointed out also by the respondent in his written submission, which I share hands, the decision of the respondent to use the Employment and Labour Relations Acr and the code of good practice rules was-.,not a "sin" 9 . 90 . since the employer is at liberty to use either'·the. Publlc _Service Regulations or the Employment and Labour R~lations,.,Act in meti~g out disciplines. The use of the Employment.and ·Labour Relations Act instead of the Public Service fl.ct did not in any way prejudice the applicant. , Now as the respondent h~d opted ·to use the Employment_and ! ' Labour Relations Act and;: the code of good practice rules it is-- important here to visitth~t~rilp!oyment and Labour Relations [Code of •:·.;~$·~ "'<:::;. •, Good Practice]

Rt4les·1itQ·,~sb;qw if the fairness of the procedure entailed in the r(il~sq:~w~:S'.\,.f~Jlbwed by the employer respondent. The '",:')l;,;i . '·t~·- ._,..,..,~1 -• procedu~~h(9irn,~~~;;to be followed by the employer before terminating ,. -~- /,.,:;·_:_ :,. ·•:~;-:. arf'ep1ploy¢~ f9,r misconduct is clearly spelt under Rule 13 (1) to 1391 :- --~ ·~.;'tf;i,'.;;· ·\~4:. ,f,Investigation ",:r Notice of the charge. Employer shall notify the employee of the allegations using a form and 87 op. cit note 56 at page 3 88 op. cit note 81 Regulation 48 (1) (2) (3) provides for procedure on the conclusion of inquiry. For example Regulations 48 (3) says that the report, shall not contain my recommendations as to the form or nature of the punishment to be awarded 89 Act No. 6 of 2004 and GN No. 42 of 2007 respectively 90 op. cit note 46 91 See the Code of Good Practice Rules GN No. 42 of 2007, it provide prepare defence, state of the case, assistance ofthe employee decision, communication of the decision reasons for termination appeal etc. 29 ..... '·.,.·.··~·;' . .. :..• 111111111 •. C 2 language he understands9 • In other words the employer must inform the employee of the charge against him:- • Reasonable time to prepare defence93• {The question of whether or not the employee was give sufficient time to prepare his defence is a factual one]. • Hearing to be chaired by a Senior Management

representative not involved /n the circumstances giving rise to th~:case94:·· . • Employee entitled to state a case qpd call.,. witnesses95• ·.;,: . · 1· • Hearing may proceed -~x-parte ·ancf employee entitled to mitijating factors before the decision is made!. . · . . . • Communicate the decision·· together with briefs reasons9 1 . In his written submission· the applicant has argued that the applicant was not accorded a. fair a:nd- properly constituted inquiry committee for hearing i.e-;" a falr":hearing was not accorded to the applicant98 • He argued··f~-~h~r that there were elements of BIAS in -i~-.,. . \%~;~~ ·\~~;- violation of the prJpc-igl~~of ·matural justice, that a person should not be :t~ •t.(\~.. ·:~$_.~~-~tt~· a judge of,.~_hi~k~9~~~a~¢, and that Keha, Kasitila and Kahabuka who ·t>(-~~/ ·•;,;-:~h- ...,~!;;_ff/' were Ar~,~,- .,M_9nag~r Mlandizi, Human Resource DAWASCO and ~~~\-- ·•, .\?;•• : ._:·\5'/~l~ - Ka~pbuka -"!:.•,, f;,;Meniber ,(... ···\:t- of FIBUCA respectively participated in the -~~:t~-- ·~t~\. .~~':._ 99 purp<ift.~~d ~9:qdiry • Rule 13 (4) of GN No. 42 of 2007 only speaks _of ·l-~~!~t}~' the chairman who would chair [a Senior Management representative] 92 ibid rule 1 and 2 93 ibid rule 3 94 Ibid rule 4 95 ibid rule 5 96 ibid rule 6 and 7 97 ibid rule 7 98 op. ~it note 56 at page 3 99 Ibid .at page .,,. 4 30 o,• ·~ - J . ~~ __ ·_ ~-· -~ ~ s~~-. and who

is not involved in the circumstances giving rise to the case. I agree with the applicant that the involvement of the Senior Officials [mentioned above by the applicant] in the inquiry though they were not chair of the inquiry as per Rule 13 (4), suffice it to say here that their act of involvement may _influence the chairperson of the inquiry as in one way or another they were involved in t_he circumstances : ' giving rise to the case. It was not therefore prope(fC>_r themto form part of the decision maker on the fate ·of the ,ipplicant, the .,,. ~ . .;, .. Employment and Labour Relations [Code .of Good Practice] 100 on procedural fairness states that:- ,.. Employee 80titled to assistance·· by a trade union representative or fellow employee, during inquiry and has the right to Appea/ 01 ••• The applicant was affprded the right to appeal and he appealed- · . ·····;:; to the Commission as th@ 'i"eford shows against the decision of the ~ (~~. ---:~)\ -:: . ; employer. The pfoq~atJ.ral;fairness :_-..-: ·:~~ ~..:11:•·~= in the code of good practice at Rule 13 €4J) JaJJ<~1.. of 7exceptional circumstances for an employer to ;·{ }z" · ·~-~.. . .: . :.:I.~\~-:• . dispense .wJtfi'lhe 'g_uidelines that is to say exceptions to investigation :f~'vy• ~~i.1. ~:-.t:~,~,tr~ ,. _ . 1 anq,~r heapin~,,\ :rhis did not feature in the applicant's case because ,)(if~ '.•:.,-. _...

,:; investrg~tioif ...... , ,.,. \:Vas conducted and hearing took place 102 • However for , the bettJ? understanding of Rule 13 (11) and in what exceptional circumstances the employer may dispense with the guidelines, especially in respect of investigation and hearing, a visit to South I I I 100 GN No. 42 of 2007 I 101 Ibid rule 13 (9) (10) i 102 I Applicant was heard before the disciplinary hearing committee and defended himself i l i I I 31 ! i\ i l i

I

I I I "~ ~· . !I f Africa case law is necessary. [South Africa Labour Laws are in parimateria with our Labour Laws]. There are two categories of exceptional circumstances which have far been indentified:- . (i) The so called crises zone cases. . (ii) Where the employee waives his right to be heard or rather waives his right to a pre-termination · ,,.103... hearmy -~- A South African case law facts would help to· ·u'.nderst1nd·the .. ..-_./ ... so called crises zone cases. In Lefu and others. V. Western Areas Gold Mining Co. Ltd 104 during the .strike the(e :was . rioting in which nine employee were killed and 304 injures._ · The mine decided to dismiss 205 employees because of their alleged· misconduct during the strike. The workers were dismissec:i v'lithout first being given a hearing. The mine argued ..that it had ,;.:.: been practically impossible to ,• __ ·.-.'.-, hold hearings. There h~d<:b,een extremely tense atmosphere and to have granted approxirn~~~IY::):os employees hearing would have taken 11·,JJ;.;;~:t:;~~ ""•:~. .-~ }!·:\ several d~ys whi~fl wo,ylc:f-·•probably have led to further unrest. The '"!~';!.;. .t,l'[,~~(;:,fr ...:.;;,~ ~-:-:; court accept~,d ''fta,_f.:'rttlnes argument and said that the question of ~··~: -~-\:~..... -~di:. · w~etheqtit:me.eto:¢Jemployer was dealing with a crises zone cases was o,;l-.;.. ·;f" ..,:,;:_ 1 on~ ;bf. factlf~~~,f~Nevertheless in my view the above position is subject to a h;~vyttfiscussion and challenge vis-a-vis the right to be heard a notion which flows naturalia contractus. The situation under Rule 13 (13) suggests a cure that in case of a collective misconduct, it is 103 See also Prof. Basson Essential Labour Laws Vol. 1 [ 2002} 104 [1985j 6 ILI 307 {IC) !OS ibid 32

I II ·j i I •; not unfair to hold a collective hearing 106• The question however . remains in the case of tense atmosphere as a result of a strike can it be possible to hold a collective hearing? In my view I think it will not be reasonable and practicable. I agree with the applicant that there. was BIP,S "YiQich was in ·,. ,;·. :· . violation of one of the principles of natural justice:that nenojudex in causa sua [a person should not be a judge in his owh. case] in the disciplinary committee. Perhaps I should con.~ici,d.e here by quoting a decision of Lord Denning M.R. in Metr:o,politan Properties Company tfGC] V. Lannon and others that:- .. .In considering whether there was a likelihood of bias, the court does not look at the mind of chairman of tribunal or whoever it: may be who sits in a Judicial capacity the courtJooks at:f/J,f!:impression which would be given to tl?,r; p~ople... There must be circumstances from which.-~-:-a ··reqsonable . ij,, . ~-- man would think it likely or probable that.the justite or chairman as the case may be wou(.cfor:r!]dJ,~(q;.Y.Our one side unfairly. Suffice It that ,:½reas,onab/e ·. •-· .·~·- ·",.. •. _ 'L,,. pe'qple '. might think he did. The reason is ·1,/i,!p •eng_tig/;J,,1t/.lustice must be rooted in confidence and ., ,. cdri(jdedc.e is destroyed when right minded people go ;f~.:2lv;aY:·(!Jinking the Judge was biasecf 07••• ·~..,:'.!;;,

.. t·' ,,.-;i:. £, \!1Q,,. vielN~·i\bf the foregone it is my considered opinion that the t:t7', "-~~;' respondet1t employer did not have a fair and valid reasons to terminate the applicant's employment. The employer respondent did not also follow some of the procedural fairness guidelines before i I I ! terminating the applicant as shown above. Since the employer's i I I iI 106 op. cit note 96 Rule 13 (13) of GN No. 42 of 2007 107 i [1969] IQB 577 Per Lord Denning M.R. I I i 33 I Ii I ~-

I I I ·t ... · . sanction was unreasonable in the circumstances the Commissioner was at large to interfere with it108 • The courts have also repeatedly decided that:- ... The determination of an appropriate sanction is a matter which is largely within the discretion of the employer. ·However the discretion must be exercised fairly. A court should, therefore not lightly interfere with the sanction imposed by the employer unless the employer acted unfairly in imposing· •. the sanction. The question is not whether the·'court ··.· would have imposed the sanction imppsed by the employe'1 but whether in the circumstances of the case the sanction was reasonable1°9 [emphasis added]... .... The respondent as I have found in the case at hand acted unfairly in imposing the sanction of t~rf!tination. There was no fair and valid reasons (s) to terminate andHhe procedural fairness was not wholly followed in the Ci(c~rD,?,tanc~-s~-: ... .;_, r • ·, ·,; ~· . •::.....,\~. ''\.:,...,_ In the event'·:ahd:,'6n 1:j~~~ foregone. I allow the present revision .-~. ·\1{.. ~~ . applicatio'n\:;_qyt::<tm~'>~RPlicant, quash the arbitration award of the ~::11;{~. --~•-t.~. 'f."~.1J- Com mi~j(i)F)> for~. M,¢diation and Arbitration and set aside any other .;, '\ :•;:{ ··.t,l . •~ . order? the~~td{',,, The respondent employer is ordered to reinstate the ~!:{-':,&. ·:: i;:::(· applicantJ.;r his employment in

terms of Section 40 (1) (a) of the --::~t Employment and Labour Relations Act 6 of 2004 without loss of remuneration during the period that he was absent from work due to the unfair termination within 28 days from the date of this judgment. 108 Nampak Corrugated Wadeville V. Khosa (1999) 20 IU 578 [LAC) Labour Appeal Court of South Africa 109 ibid at 584 A - C ' 34 ;.,,....~:- .. ,· ... _,,,;1-'t,,,_·t: ~ , , • -••'"'1 ~ .:.~c4:~:~.--: ~~~ ;~:,:. - Order accordingly. r.}i~:

JUDGE 29/08/2014 Appearance:- 1. Applicant: Present and Mr. Teye, Advocate . for Applicant 2. Respondent: Elizabeth Njau Advocate for-f,lespondent -Court: Judgment is read over and expiained to the parties who are ,·; present as shown in the appea·rance above. I i iI ! i I i ; I I i I !l I l I . ~i~IJ 1 I.S. ~~a~a

JUDGE 29/08/2014 35 ·.·.·= . " ,i(,,.~ • .. ., .,. ---·- ii