NA TZHC Dar es Salaam 2 2

... ... • IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 382 OF 2013 ..., : 14/07/2014 & 29/08/2014 ···~.-:-· v.'1,: i. "~:;\\. ~-- :)\ ,.... ,·. .·,,· . Mipawa, J. . :·-:;,_... •_:::.- ..::. '\:v • {r~ ~ \,;l, • The applicaffit':-;i[:l:;~h!_~~}evision one James Leonidas Ngonge was employed;::,~y Jh.~tr~~pci[ldent DAWASC0 1 in 1998 as a meter reader '.1. 'i. .··;~L \;\~:-:<~~-•. . and later . ~e Wqs e!~vated to the position of customer care supervisor. -r:'. . •., . . i...... '\l:~·~:/r:.:,-:/. Th~.,f,chang~s tQ. DAWASCO led to the applicant being transferred to _ . rt£2~. --.':.\.,_,.;:-::,.'" . Kibaha\~~~._:tnen to Mlandizi where he was a commercial supervisor . until wh~~.. the employment relationship interparties had turned soar. . What "chilled' the relationship was when the respondent had accused I • : the applicant -of a misconduct to wit; illegal connection of water to a I '.. i Dar Es Sa Iaam Water and Sewerage Corporation 1 I l l . - • client:2, 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 disc~linary hearing committee which on hearing the applicant, found him guilty ·and hence the employer respondent terminated his employment. • l,<. • . ,lf;,,h ,, \,,;; _ Dissatisfied the applicant opened a trqde displl'te. before the •i-:.;4t:ffe . '~\~: · Commission for Mediation and ·Arbitration [§MA~ Vide Mgogoro wa Kikazi Na. CMA/PWN/KBH/212/104 where "t,b~~}qppji~~t's Casus be/Ii [cause of discontent] was unfair t~nntha~~~~;::based on misconduct [illegal connection of water sqpply :~~·:. 'i~· ·;:,\t~·~At] the learned arbitrator ~-•\\,A,. •h{/ (Massawe Esq.) dismissed the\p,ppliqint's claims and found that he was fairly terminated subst~ntiv:It~:b6f with few procedural flow 5 • \;;,. ··\,\::d-;,,~\::; The decision.;;-Of 'the eommission for Mediation and Arbitration ,~l;--· ·~- ~-,~.:-.;:.~. ':~--~---;;:f1./t . (CMA) crgpp~,SL. 'f~,rth~t the casus be/Ii and hence the present -·~~f;•,... -~~~-. ·--•.:: ·,.. ..-:;.:_,-;.·::~~.:->'-· . applicatioD for., rev,Lsfc5n. The applicant filed the revision application ;/ft~~---~:~ . - - <-.J.\1,,;;,~:.:-i!:-; un~!. Se'ct\f'ii~~t:"(1) (a) (c) and 94 (1) (b) (i) of the Employment and Labo'ulr~Rel~ti6hs Act as amended by Section 14 of the Written Laws ~?;:.;;,,t.i;r) (Miscellaneous Amendment) No. 3 Act No. 17 of 20106 • 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 sop. cit. note 3 at Page 19 6 Act No. 4 of 2004 · 2 . , • (2) (3), 28 (1) and 55 (1) (2) of the Labour Court Rules GN. No. 106 of 20077 • In the notice 9f 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 tberefore the -~:d,~/· -.r~,·~;l~ . ., learned arbitrator should have held that the resppnct~nt ha·.9 ncfvalid . . . . -· . . . ,. -~~t~ . . . :; . {t reason to terminate the services of the applj~ant:8. That_the(learned 'it;;?~' i:;.;• arbitrator shifted the burden of proof to tq,e''' applicant contrary to 1 -;~t\ ·tr~·:..,..<·:~- , Section 37 (2) of the Employment and Labgun~~,Relatibns Act No. 6 of . . ~ 2004 and Section 60 of the Labour Institwtiorb-Act .,.~-~. i~;~r .:~-t{), <~t~-~~~f~ ~,,. No. 7 of 2004 and ~-' not taking serious consideratigrfto th,e job~description supplied by the . ~t. '"!~-?~ •. {~: respondent to the applicant in'Jµly 2008 ~·-·He averred that:- 9 . ..,........ ":1••·' :,~- ,•,',, ... the responder,f'being ""l':Iffublic Institution to which the provision 'Ol "1:ng_ Public Servant Regulations 2003 " apply the \inquir;i>:-:1:qommittee was not properly constituf~fi~.~-'·?oo (._he evidence that the Disciplinary Author/If df{~f!·leciappiicant was the chief executive t\f!/f{,qcr4,_ th~ le~'r;ned arbitrator should have· held that the Htitnail"Viilsolirces Manager Mr. Elias Kasitila acted 1;:S:~1'fftho1:1,t.lt}risdiction to terminate ... the applicant .. 10 ✓;;:... • i= J··:r~t~►- -~,:{;r•·. . "~::~l.he ag.pMtant further in his notice of application averred that the learn~d}1a,f,ij1t~~tor seriously. erre_q in_ law and fact jn not. holding that .. . . . ' ' the participation of Khalfan Keha, Elias Kasitila and Johnson Kahabuka in the maki_ng of the decision on the issue imputes elements of bias in 7 Government Notice No. 106 of 2007 8 Applicant's notice of application ground No. 1 9 ibid ground 2 and 3 · 10 op.cit note 8 grounds 4 and 5 3 .. t • violation of one of the principles of natural justice, namely that a person should not be a judge of his/her own case 11 • 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 site Engineer Mr. Julius Buberwa who issued tfJe v_iflc{ permit for the construction of water supf/lfitfo the;~: ,:, · premises of Mr.· Ibrahim Mwangalaba was ffe_gted 't._:· ,:·;• • • - - - • • ·- 1 differently or was accorded opportunitie,~ or advantage outside disciplinary measures'-2• :r$t .. . ·,)?' ''i'¾\ ' ,, The applicant concluded that the le.ar'fu~d arbitrator seriously i- . }~>- ~--~; . .-~ erred in law and fact for holding that tn·e;. apf'.H!=aht has already been 'f:':f."-! ~- f.\: ·•.°)'~~~ . ~•{{ V paid terminal benefits in ful.!:/ln the absente of evidence of such ~? ,\~~i.. >?{ payment including repatriation\t~pens~s'to the place of domicile13 • Ih his counter reply the .respjrde;t¾~~r~~~d in the: counter affidavit that. ·6.... "~it, the applicant was ipvorv,~d\1!1 a number of malpractice . activities '-{~!-,-... ·--\....{-... ·-"t: ' I including illegal CQJine~lqgj;i~opie to the water distribution system 14 • '·\.,. (, ':.:}tit,. ~}:.; .. .,., . . . . . . In r~pl'/.Lto''.g_round three (3) of the applicant the respondent efii ~¼li.%'}, .i~~-<;:--:};-~/J . arg.~ed thajfttQ,Enfn'emo was a transfer of the applicant from Kibaha '·~~- ~(.J ~;..f:;. ~, area'lqA:,Mla'~dlzi and the same does not confer power to participate in. . . the malpractice without disciplinary measures being taken 15 • That the 11 op.cit note 8 ground 6 12 op.cit note 8 ground 7 13 op.cit note B ground 8 H Respondent's counter affidavit Paragraph 4 15 ibid Paragraph 5 4 - 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 responden~ emP.loyer it is - :~ .!.;.,.. ,· necessary to make a visit to the facts of the mattert'albeit in\9 11utshell .. • • - - --~~-~I:'° -::'! • }' (brief). The applicant who was a commercial ,.supervisor~:~ priori his termination was a sole witness in the Commi~~i~n for M~:diation and Arbitration and mediation testified that,,. b~<-~yyas:;"'.i/ ~ustomer care :'1: . -~·:::~ t~ "-t\ 'supervisor at Kibaha before · bei~g ~,¢1ey,at~,d ·to the position of • • • 1•: -::--... -~ ,- .• ~~\ "''•:,~•~:_<{' • • commercial supervisor when J;le was.tran.~ferred to Mland1z1, he was . ~--. .,. :,. ,/ , .earning a salary of 419,000/=:= per ·rrfohth 17 • He denied to· the l },.·": . _; :accusation that he illegally'J:onnedea ·water supply to a client, rather it was the site· engig~~r~~:cih~. Buberwa who· issued the permit to •).:, -~ connect water to 1Jne.{taOeggd dient~ 18 that ·they· visited the client and· · :· . t:-· ~ •others wfth~. __t.~e~g)scipJi~ary committee members and found that the ~-h -·t.;... v.;._:;_·.,~ ·. . • •- . water m~te1;_ 0f,1tpi'.;client Mr. Ibrahim Mwangalaba had a legal meter ~ ,,{.l-';._ ·;:.::: . ···· . . • . ' 3' , .. ,•• 19 ·. duly.I'>- connected . When they had finished visiting the clients the . • '~:.?t',; . - '? ~~,~: l,J • : applicant ...contended further that they went to the office of Mr.. "!t;"; . Ibrahim Mwangalaba the .client whom the applicant was alleged to : have illegally connected water supply at h!s site. The visit to the said l : client in his office was for the purpose of hearing the alleged recorded ~ op.cit note 14 Paragraph 8 ' 17 16 : Op. cit note 2 page 13 of the award 18 : ibid page 14 19 ; ibid f 5 1 i. I i ·1 i .., 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 ~fter sensing that he was not a trustworthy person 20 • When they had heard the· recording in the office of Ibrahim Mwangalaba (client) theyij:ret.unoed to the ;.:j:~~ .. ! \\.. ·.:·f;, office where the Chai(man of the disciplinary _hearTrig:__~omnil,t+,ee .read. _____ ·- -~~~f;!' '•t;,:·.,. the verdict and he (applicant) was terminated:"";:·:.<> "" \2~{~~- ... Baada ya kutoka. site... kesho yake....tlfakae,;,J/a;;· kwa mteja Ibrahim Mwangalaba ofisinh;,kwa.l(e KBC Bank Oysterbay iii kusikiliza recording r...., Jcr~-- 'l<-wenye simu ,..,t' [mobile phone recording] ba,gq~ Yc;1._ku{0f<a KBC Bank walirudi ofisini kutoiki!.amt/zi.:'.·J,:/vfwei1yekiti alisoma uamuzi wa shauri ncifshahidl;g/inuts,uu kama ifuatavyo •~.. aachishwe kazi kwa21" mujibtl'.·. 1w,f·sheria kutokana na kanuni za DAWAS~9... '\.,:. , .f 1 . . -~- ~~~ -~~i.;r. The respondent employer on the other hand called several ,. :(f;. "!,''?t~·~-• k>i:;;~;_.. . witnesses in the,_;,:s:;Cdh;lmissJon for the purpose of proving the ~.(t:·-· ..,..,,~~::.,, .'1~..~-•{,;~~ . miscondu~ aJl~ged_ly l'.9 be committed by the applicant employer. If~-...~.:~P-- F::tf(~k~!):.{f ·i.~;;~~~- They were D\V.1 Kf)alfani ~J,:~_-.: ·:,'. .·':.::.1. ?~·{ Keha, DW2 Maulid Raniadhani, DW3 Ibrahim M\IYE1nga'i~~~\'\{dr~rit)- ·and DW4 · Mwaluko·· Maroda. [security guard of ~i:~~}! ', \{.. ;Sil; . DW3jtl\ccdfcfing to DW3:Ibrahim·Mwangalaba [a client at issue], the ~~ . . applicanf\vho 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 o,o. 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 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 what.-tth~i'1J!ad agreed _:,/;;:; . •;~,. :-:;? upon, he sensed therefore that the applicant was" riot. a trd$.t.Jworthy . person and hence he decided to record him thrf,l~gh th~\mp~i:le phone . .../~~\V,-. on all what they were agreeing upon. At1:~is c:U~f'1s1Y the applicant ' '<' '"t'•, '":',:'' never gave him (DW3) the receipts frqp, 'O'ft.'fl·A,SCO that could have l' • "·=r:,: .. :-::.:.. ... shown that he paid for the COrJ~ectiprn.,pf;;WJ~fer supply legally at his site 'i.e application fee and cof~, fo~: w.at~'.r connection. He demanded ';,/ . tt~·- -~.i:".~ ·. the receipts at no ·avail. . ,/}'· . '\,;\,_.y} , ' <:-.~:~ :, -~ ;,\} . . When DAWASCQ.. em,ploy.~es -visited the site they asked to be. given receipt frorp .;([1½/4J.:-~waluko who was ·a security guard of the i >:.. I <fi~-· l-.*;j,_ .,.,)· • wit~ess (D~~~,}~~.po~:11~is failure to produce DAWPSCO receipts they ...~~.'.', ~~::, . were tolgr;,t~;~r\t..~,~;::connection of water at his site was done illegally ,v, • 'Ji ,.,{::t~-.:.'i' '"':-•.;::._··" . ' . . . . ·-· . .• . anci\ii;~itho~~·f;lfollowing the _procedure required and that they '-~~,, '-~:"~·:--:{.: . . . . disconfie~~d the water. On seeing that, the applica_nt came to re- co~nect -;he wat~r ~upply b~ ·was ~nee .again.· dis~~~nected by . . . DAWASCO Manager who summoned ·DW3 to DAWASCO office for illegal connection of water at his site 22 • 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 . . 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 witnessed his ~~:,~it- ."ii/:°:-;:~~- boss giving money to the applicant who went tffb~y ·,te"r13s_.tdr the . ~ - . -- - ... - - --- . ' -- - - --'':.:.-.,.·- --~- ....:~~·-· --· ~ ~-~- .... - - - - ' work of connecting water and that it was him . DW4\~ho','.'dug ... the .-. trench for putting the items needed for ~:~-f~f'."i;,~onnection supply. 'f, ;.::-! r-.:~,... $;}, Khalfani Keha who testified in the Commissipn ----~fs DW1 told the i~t:,, . ·•..=:: ·-:~-(-, Commission for Mediation and Arbit~~-tiorJ_ th'at. Ibrahim Mwangalaba was (DW3) not a legal DA\i\(ASCOq;~i';·;h't::,::th~t his site was illegally ' connected with_ water supp.ly be~,ausein~cre was no person who came -~ '~-~ ' _;(< '~<:·:·•·~-:, . ....~{ to DAWASCO offices for the purpose· of being connected with water . . . ~~~!.-·.. ~£--:~.' •. : . . .- . . supply as the procedure ·re_guired, where he could be provided with an •' Yi>'.: ''t•:. •; . .. ,• ·• ; expert [mtaalamq}'lrqrft~&WASCO to survey ~he area and the cost ,~- -~;·:~ 't,.1___ ' . . ' . • . • • of ' ' .- : 1 • connecting<--;~pte~i;!m~~fpf. The procedure ~f con~ecting water at _the site of Q).1\/'q_ \~a$_,tberefore n.ot' fol.lowed. However at the disci pli nary j"• :i; .,j•;:}t\✓• • .'\~~./;;, I , • • ' • - , , • he~r:Jng coq:mi'_i,ttee it was revealed that Ibrahim Mwangalaba (DW3) ·.••t~ ·\~-~--tJ:- . . . . .:· . .- : produceg_J~vidence that he -was given· the. permit of connecting water· (~~~;:: . - . ~ .. ··~ ·.· :.:·.· 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 w~s his signature.· DW1 further tqld th_e Commission that there was no evidence before the Disciplinary Committee which showed _that · 23 ibid Page 12 · ,• ·:, 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,lamik~Ji .. !f ,.'.·.~" ·:J· ~ kupewa pesa ya rushwa iii amuunganishfe l!Jfl)l mteja:;?, ·. . . Ulitumika ubaguzi katika kumuachisha kazi mfala,(!!ikaj/-,t._ ,Jr- .... _ . . .. na kumuacha Bwana Julius Buberwa aendelee na\kazi ·v· kama kulikuwepo na ushahidi wa kuiJQganisha rri~Ji ... kwa Ibrahimu taratibu zote hizo~:'ltazikufuatwa isipokuwa maJi yaliwekwa bi/a kufuat.a ;;::;:_ t/at.J1tibtihi70 ··~: ~. ... 24 . 'J!.-. ~:,~1~;- --~i:;-.. When the supply of water wa,$. di$._conn~aed the client DW3 . :~..,~-~·:,::._;,;~:.- ·.:.;;,,.;_.,.~./~ . came to DAWASCO office and/told Q)N(that·· he was ready to prove . . . ~>- -"\ ·--~!~~-~ ..~(\ . that the supply of water at his.site was', connected by a DAWASCO employee Mr. James Ngqige. "':<~fierf the applicant was require.d t~ give an explanation:. Qf ~h}\1~.. -had -connected water at DW3 without ·.;;~-- '"(1, ·,,·. following the- prq¢e~~re'1.:JM~ applicant -according .to DW1 denied to \\ ,:'~; • ~r.:;,;: haveconnecte(kwarer t0 the site of DW3 or even to know him 25 • . . g,;;:}fy,,,~)/>£• . . . . . . .. . <~- This "Yjtm,~ss·-rurther told the Commission that the applicant was ~.,(,;{·. - ~~-~ . ?/l:;1 . . . . .- ident1fi~9 bt DW4 [the Security G_uard of_ qW3] as the one who came 1 ,.,4.,,, :,J.1jv" ' .' ' . . . ·' . . ' 1 to put tRt required items . after·- they :had. dug the . trenches : . for _that ' " purpose. DW1 further said ~hat_ there W?IS a shop nearby where the applicant was said to_ hav~ sent the application form for water connection in order _that, the said _applicatio~ form could reach Ibrahim 24 Op.cit note 3 at page 6 25 ibid . ., . _,. 9 _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 usajili [application form] wa maji ambayo James aliwahi kupeleka hapo dukani iii imfikie Ibrahim [DWJ] naye mama aliweza kumtambua Jam?S kWq · kumwonyesha kwa kidole. Kwahiyo Kamati ilirlilhikafrfia"- •/, ushahidi huo na mlinzi yule alikiri ktiWii'¼.pdiyl\ _,- .__. . . a/ivechimba mtaro·na kulipwa na James.:. 26 - \\,, ·· =wr~ -- ---- ' , I •~•'.)- ;;,\l~• --~l~!!., : The witness argued that, the applicant aJfert1pted to register the . ·{1~/ "\t~ .. --~~- client DW3 to the Chines Project by using t9_e·lgrrJ1 oflegistration that • 'i·.::,;. ~:~;~:~' -~~;\i-\• :was left at the said shop. The di~c.iplfnq_ry <\~-~aring committee saw ; . . ,_ff'.:;~1..f~!'fk·., ~tt.... -,;_? ·- .'that the applicant was guilW'n o61th_e~(i;r;ri'i'§~·onduct. The applicant ; f!~- ~:"\, "!:.,} ;according to DW2 did registef~t,~£; cl_~jf,flo~m as Chines Project and f • :·. •• ,-~:tJ: -•::,."': ... :that it was himself [DW2-,tn~ rela't:ivtf of DW3] who accompanied the ' ~ ~- 'applicant to Mailimoji;J irf~%ft5qba to ou_y· the items needed for ~ater ~ '\?t-j:, "'~~¾~ ;. ••;~, • • • o I connection and h~9Wa~jJqJgfl,00O.,000/= Tzs. In spite of the fact that· • ... =l:.:.. - •;':!\ .... :the wate¥J'-'s;i;S~PR!~t~~)~A9./ resumed yet. . OAW_ASCO., came again :~md. '~'?..;·.... ·•. i,;~: •; ,,,:·.::.-, ·disconner~~d~{t~\Q,~:}~supply of water because the client Ibrahim-.· ,, _ -si .jt.~_J:, · -~r ·· • Mwa._pgalaq~f [\tW3] water supply at hi_s site was· illegally connected. ' "<i4:;,~{~~f ,;¾'.i'.?:t' •. • ~ , •: ·. • . I• . • . • .• •' .. The11iearned arbitrator after hearing the parties he was of th~_ . ;view that the applicant was fairly terr:ninated ,_ because there wa·s a . ivalid reason to terminate, however he found· that the respon.de·n_t J . . • . t •••. ]employer did not follow the fair procedure as the names of the I • • ;• • •• ·; ,• I 26 : I Op.cit note 3• at page 7 f : 10 i . ' t· J 1 f l . ! _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 making as the members of the disciplinary hearing comrl}ittee. This was contrary to Government Notice No. 42 of 2007 at page 67 concerning disciplinary hearing 27 • ·[Guidelines 4 (2) I think is the one which is referre~,Jo]:-::i'\ , · . (2)... ihe chairperson of the hearing should b'"ffmpartiaA\ ,;;-.; -, and should not if possible have been involved lftJ,,he 'lj;/ issues giving rise to the hearing, "'lfJ/J.appropriate circumstances a ,I..senior • manager 28 from ,.a;ilifferent '{• ~,,_. office may serve as a c11a1rperson ... ''{;_; ·'\>:I/ ·t1\.... -~{'(• .,. ·. ;;.;~-- . ,;:::ii, In their final written submissions ea~h'''·p9rty gave a version of ·.·_"f."~-'·::\!•. ··...:f,~ .. )} ~-- his own. The applicant subrni,tted o,n ttfe,fai'fness of the reason that : . f-, . <~-:~. -~l~ :since the permit to connect w~.ter supply-to the premises of Ibrahim i "' :-.~',. ' ... ~ :. Mwangalaba was issued Jfi ··:~.--.- the•-;;~pp:tbpriate authority i.e. Mr. Julius 'Buberwa the learned:~prBit.r,ito.t should have held that the respondent - . ,;r._-.;,, ·-;·,;:_ ,.. ; has no valid reaso.rFt0,.,_te(m.fnate:- i{ -·~;~:;. ·:-,i_·/•:· ,;._\r· 'f/!lekRe,;rpit)to cqnstrljct• the wate(_ supply -issued by fh~:.site~;f(lglheer was valid and accurate and given that "ft-tfl?":e.lJl,f?]qyer failed to produce the said permit to the - ;r. yM,&,✓ tnat tantamount [sic] to failure to discharge the ~~tt.;~~t-. ·~v.df.en of proof that the conduct to construct and ~, c/Jhnect the said water supply did not constitute a. ¾;:1ftontraventlon of any . rule . or. right.,.. . 29. _ · · ~ ~ The· applicant argued-. further that. his .post as a commercial 1 supervisor as per job description ·of . 2008 annexure 'E' to the ; 27 • 3 : page 10 op.cit note 28 '. GN No. 42 of 2007 Guidelines 4 (2} 29 ; Applicant's written submission at page 2 paragraph 1 i 11 l I ' .. 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 dowr1,,::,in part B of the :,t{lt .. \\ Zt schedul~ to these r~gulations ... ". The respontfefit~nevet\!,~su_ed to _ . ' ~ ~ the applicant the same save the respondent.,J§sued a,etter to the ~J.!j.:A~, applicant requiring .. connection of water services . to Ibrahim'":;;:Mwaogalaba 32 • him to ·provide expJ~hat1q,n,;, on the illegal . ~ - ~ That the . ,4,;:-~.~ '\'~-. ~{:::: respondent failed to comply" ~ith,;~iith~:-+~si~Hatory requirement of :-.~~-:-:':'"! --~~ -~;:. ··•::.,,. • 33 Regulations 45 (1) of the ·pu~lic SerVi~~- ~egulation , 2003 regarding . . \~~ '~ ;.:~~-~._ ..... inquiry into disciplinary char.ges·\v,bJch{provides:- . . tr· .. _·•.:~?f:. 71-:;• . ..~~~1 . 45 {1) .~.or m~kesi:representation ·:;,.·. '\'· which in the opinion of_ the disFJPlinq,,r;t':'f?!_µthqrity • (jo . not _amQunt to a complete defence ttJf 'the offence which the accused public· ~eivan,t'l's,,f;b.?iged The disciplinary authority =;_'Sfhi!ll._ap_poliit _two or. more members to_ hold an ··1qqiiiiy_!.:1;,,r.,_'!:}1:he· charge . or charges14 [emphasis .,..stlpp/iedby the applicant} . !/""~\;;,,__ •t,i~-4f!t!f . . . -l1;z~Jherefo;;t,a'ccording to the applicant the disciplinary authority ½tt?i\.,. ·~\;:'b..:.~.'\:' -· insteaff?9;tri~ppointing an inquiry committee as required by Regulation ~- . . . . ' . 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 th Government Notice No: 168 of•20 June, 2003 32 op. cit note 29 3 • op, cit note 31 !14 op. cit note 29 Regulation 45 (1) of GN 168 of 2002. The Public Service Regulatlor,s and quoted from applicanfs written submission · 12 precluded from endorsing any recommendation as to the type of punishment to be awarded. Hence the purported disciplinary 35 committee was incompetent to inquire the charges • The applicant further submitted that the learned arbitrator should have held that the Human Resources Manage~ [HR~] one Elias ".;,re.• f}.1~- '":•, Kasitila acted without jurisdiction to terminate the,·:efr1ploym~nt of the . ~ . '( . . . ,. ~~ ,/_i. 4 applicant by the letter Ref. DAWASCOlDA/CPF/20Q8 '~of 10th ... ,,t•. ... : ·t; November, 2010 annexture 'D' to the appliq;int---~,ffidavit because the . Chief Executive Officer [CEO] of the responcJ.ent 'is the disciplinary ~ ~-~ authority and th~t letter mentioned qQ9ve .~id . • . :f·•· p~~ make a reference to "i' effect that the Human ResourdtMariagel·wa~\1cting ... . . . upon instructions ~ .: :~~ t\, (,• or implementing a decision maq,~ by tbe; disciplinary authority3 6 • That . ' ~ ~\~ . .• .. .. ~,·3., .;_ there was bias because,,;i_Khalfar{~·:keha [DW1] . Elias Kasitila and . t--· J:,..:~ Johnson Kahabuka . -w~rJ\fJ_reaf~ -~-~.. ·:-; . Manager Ml~ndizi [DW1] Elias Kasitila . [Human Resourcf-~DA~A§GO] and Johnson Kahabuka [member of FIBUCA]. ~\,.~tt '.,pirtiFiH~ted in the,. discipHnary committee and thus ·-.....: -~~-. 37 Judge ot~hi~_ r.· '" o'«n .&ause .•..~ - • The applicant imputed further that there 4' ~.X:-!{•-j. l}.fJ;·· was\f ~iscipt!haJ;Y on part of the employer respondent contrary to _ ···•.f'f'' i;,'.t·,. 1 Sectiorf {~9fthe Employment and Labour Relations Act 2004 38 as the . .,:;,· 35 ibid page 3 36 ibid page 4 31 · {ELRA) Act No. 4 of 2004 38 - op. cit note 29 at page 5 . 13 ..... , . ' ~vidence revealed that the permit was issued to construct water supply by the site engineer of the respondent:- ... The permit for construction of water ?upply to the premises of Mr. Ibrahim Mwangalaba was issued by Julius Buberwa site Engineer. The said permit was not produced by th_e respondent during the disciplinary preceding [sic]. The applicant was subjected to disciplinary action whereas the site Engine.t.~l ~~f treated different or accorded opportyqffies ··· ol7 . ·,.· . 9 advantages outside disciplinary measures' •• ."' ~-':,. ___:_\ .:l ____ . ·-·. _____ _ ~- ·.;!'.-.._ ~/ .• The applicant concluded in his written s~qpmission ·'that he was not paid the cost of transportation for hin,,selt,-~hJ:~bJs family personal :.%~::-. ··;;£'>...., . effects from Mlandizi [duty station] to. h°is,;. _place of domicile i.e. i .... <:, ·,~::;,, Misenye District in Kagera Regjp.11 -~ 40 tp"lhe,.,tur.n)of ," ~- 3,500,000/= by then :in No~ember, 2010 that the·~-~ntitlerneqt\·constitute part _of terminal : ~~ .t . . 41 benefit according to SectJqn 43'',btthe ELRA and article 3:3:5 on bage 7 of Kanuni na· <t-.. M~:~hq,rti ya. Utumi~hi DAWASCO [Guidelines ·::i-~.. ~-{~.- 42 and Rules of Emplqymem,t D}t,\WASCOJ. . . : :~:;: - . ''~\.~.. ....:~<; <? .. ,;\,, •>•,. '\~,,,, '\ ·.. . . . . The re~p'oriq¢f.it:ifh his short written submission averred that ' ~~"?.:·~ ···.Ji,~i- ~t . . . ' the,re Y{,as·:~~lif"t!fient and justifiable reasons to terminate the . '\':1. :}{-'' ,,.,.~!!~. ~mpltymenl,.,Qfthe applicant. The applicant had also misconstrued i !,f,;. ' 1 the jobl:1~sfi-iption and:the involvement' in malpractice activities which . 39 ibid page 6 . j S. 43 (1) Act No. 4 of 2004 where an employee's contract of employment is termi!lated at a place other than_ . . . i where the employee was recruited, the employer shall either · · · .. 1 (a) Transport of the employee and his personal effects to the place of recruitment j (b) Pay for the transportation of the employee to the place of recruitment or i (c) ......... . i1 DAWASCO guidelines annexture 'F' Rule 3:3:S mandates the employer to the easiest type of transportation not ~ 39 the select either of the two (a) or (b) • 2 '. op. cit note 31 · ' l I· 14 I I t J 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:- ... Piocedure was fo/lowed. .. that in the award paragraph 1 of page 20 it is clearly stipulated that there is no af]y prejudice for the application of other /aw~.:.?uch~:Yils1• Employment and Labour Relations Act No. 61,of2004 to· • ·- be used on matters of disciplinary hearing.· As it[is],.the ·:t~-- - --·- -- ·---·· -· same law the applicant lodged the app([Cf/ion to-·'tlJ.,_~ CMA. If the Public Regulations cou,lcl;';t,have been ,&'), ··-:~~.. involved... th~ applicant could appealt,.;r to,,:[l}e Public 0 _ 44 Service Commission instead to refer(sic)Vt to CMA ... "?'.:'/, '• ·, •. . ~t'-': ·~.:.k:i "-\·.:··· Hence according to the respondenf'lhe ·invocation of the Public -~/J·~-:.. ·.!:: .j:f., -~~:.~--:-. .. Service Regulations as_ grouncgof revi?jon)9oes not serve the purpose t • • • ' ' • ~1.- . •-:~~>{;t_.z/$ . • land wholly taken, there is nottJing _shown on how the award was ! . . .. ... [{2,, ;;~~~\~t.f..{{..( . ~ . . .. :erroneously_ obt~iried at_._CMf on whether there was discrimination on j • . I • • . J' t : '- ---~>': ~·:"' ~ .. • ~ • ' • • . • _, I "' • '\ • _taking disciplinary m~_a;b\@~;~c:by° the respondent . The respond~nt on ,v.•,•;'1.:,,.-."" •· .. \~.· .'{;~.'~ ; ·• I ,concluded that of terminal benefit it is clearly tqe·,✓,~1 pa'yment ~ ·t.•l • • }{.~. _, • • • ,•; •~).-,, ~ff~•;,, stipulated ·in.. ftne·\_9wan:1'.that the terminal benefits. were paid· except •t~ ~:;; ·t~e one ,p,bi]l~;n9tfte which the commission ordered·to be paid within· . ·~ ~- . , ~,.;· ~'.;,,,. ~~ _1fi;a9ys. =-i•-. Tb~refo~e-there · .. are .no grounds for revision to attract this· ::._,.,.:i '.~ou~- $~,;~vise the _a_rbitration: -award on· any· material •irregularities· in·_ the award ... 45 I . > • J- ... • 1I - I 3 ~ ~ Respondentwritten submission .. at page 2 . , ibid page 3 · · · ·' · ;5 Revision No. 382 of 2013 James Leonidas Ngonge Vs. DAWASCO I ! • ! - 15 . 4 i ..•·. .,. - I - ··- -- - - - - --· -- - , . 1 - - . - -- - l f I .·" - 4 t. / ..... . 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 revision 46 • I will . on the issues that futured in the Commission for · also confine myself Mediation and Arbitration. The first question to be determined in this revision is whether or not there was fairness of,. --:;d·:· the•'\reasons -.•;. in ·-::-,::t "i:. -";;-". terminati~g the appli5=ant employee. The. Empldyme,:Rt an;~:t:;Labour Relations [Code of Good Practice] requires that:1~- ,·:,.\,: <, .../:?f·:1, .. .Any employer arbitrator or Judge w/Jq is ·requfred to decide as to termination for miscondiidtJs unfair shall consider:- ,. , ''~\.. -,,<::;"' (a) Whether or not 'the .~rnployee'/contravened a rule or standar;d,reg'fj/atihg 'conduct relating to employmenf1~~r. ';\ ,· ~.", : ~-~·::,.~'.;~.\~!!/' .. Under the above rule the;J,are ...t¼o things. to ":~.·~·:·:Y',c • ' . be considered, first /... t -. •, ·<-· . it must be determined-d("there is .a rule existed second if the .rule existed it must be. ,.cleter~:iD~~d'-'ff .the employee contravened it. There ·· . . :•t:.;J.i;··:",f.~- '-:.:;"' <;: ~- . . are seV(;(al impgrtartt, <sdurces of rules regulating conduct of t,.._~ft~. Q.}il\J.:ii:-:;.·:/,t,,y,._:~:.; :J:: · . -. .: . . employees 1ny~mptQtn'lent or work place some of them are:- 1t~1;.~=~ ~- ~;·;-., ;.:.;':, {(. ,,.}(i} ··',}'1)/sciplinary code this. is a important source of rules. fr;,,~,"' f· 0-t1,aJ/ there is a cocJ.e at work place then it must be '-t\~{. :,'\1;.// determined whether the rule which the employee '"\y/[:•· contravened existed.. or · is.. cont~ined . in the ,.. disciplinary code. Under the above source it can be sa·id that if the disciplinary· · . code does not include the rule which the employee contravened, then 46 Government Notice No. 42 of 2007 47 ibid 48 ibid 16 ll ... 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 b~ taken as a "knee jerK' response that an employee's termination is unfair because there ~.re gtper sources .:r-.· .r/- ·._:_ . where such rules may be contained for example:-:·,~\'.~-\. ·\ , -~ 't)1/::~:- . ·:·::~:- -., 1 (a) The rule may be contained in the employg~s ·-,~ written contract of employment. '\:i'" ,~~ :~"- '·:: (b) The rule may also be inc/ucled,::/in •'.·'a: . policy or personnel manual or in the nqtl~'s placec(on the notice boards where the employee·Tivorks. (c) Registration '.-';···:, ::: .. · ·'!: Rules regulating.:.::-;_,.-.;the -·t·:c6nd1.1ct•'iO(;:employees . . ;. at place of work m:ar ·1.,1.·-1::-:·· be fqund}!J various respective legislations. . ··;l:1, ·<~,,:,:(3i (d) Common law. _·":\,,.. ,, This is another source···ot rules regulating the conduct plem,ployees at place of work because in 1 comrr,pn •·1a;i:,/t~f! employee must. work or act in good faith tBwcJids the employer. · · . · ·- . t('' ·\::1~'::\s.._,!)~ !, . . · . ' The,:r~sp~,[l9e,r1t ·-·-i:·- '?:, ei:1:Jployer had charged the applicant employee ··•.:~>- ~-~,- . _. !_\~; . . . before th~,,pf~~J,pll~r/hearing committee with two counts (offences) ;!J~ -\~;~;r.;~~:;-;-· . . ·•:·:•fr.. .:' . . . . . . which are·-,/·i!_. ·•-~·-· . •~;;,'k~,, I { ,.. ._,,..':;> . , .• • . . '~:tL ([/"·' Kuunganisha wateja. kinyume na .. taratibu za _ ::\,)~-- 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. D 3 17 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 JDAWASCO RULES AND CONDITION OF EMPLOYMENT] JULY 2005 either as annexure or exhibit to show the Rule which the applicalJt· e[iployee. had _.J/-'.:,-~:... I "•\:. •\.·:;, contraven_ed but to _my surprise, it was the applicant.empl~y~e _who_ •t"l·~'., ~?' had annexed the DAWASCO rules and conditiop.,,of employment in his . .~\;.f affidavit for the purpose showin·g the termirff~l -,he.nefits he was not • ;J ·,_~:ii/ _..,;/,, -"~,.~}-,. ~- paid by the employer respondent as eQshri8ed~-J_n the said rules and -..-::\.. :..{\.:.,,. '·;·• condition of employment note bien'iltem, QJ(;article 3:3 at page 7 which reads:- ;,-::;::2<:i:;. ~.;, .:,;·~ ir -,\ . , ~.:;~. ". . . i·.-. ~.i;_t- . 0,.,, . 1 ... Malipo wakati wa kuachJsh1i!fl kazi [payments upon termination] · ·/ · ..._; /·: · 3:J;·J Ms,/iahara wa ·mfanyakazi hadi siku ya dJ7wisl)r;i":yq, kuachishwa kazi [salary of the · :, . emplo'f.,ee to the last date of termination] ,fo, ·,.,,,. ., 3 it:i! <½i\;:~J .;J:.:,,..,_J.'8;,.3 ••.~~ .< '•;;.;_i\/&·~t,~·@/~:.,~t}· .. c;J.:,<:;,,_ '·'i:;i: 3:3}5 Gharama za usafiri [lransportation costs]:- ·~1 {ff ,)\_;·,, ·:-~'.)/-' (i) ... . . . .. ··~t. \t~~: ,}:_~. (iij. :::::e;:an;:k::~i:ri;:ey~:sa;:~r:!:e~! ·,7;\I,,f' kusafilisha _miztgo tsiyozidi tani ti/tu hadi sehemu · alikozaliwa [trans/JOrt 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 translation minef 1 so Rules and condition of employment July 2005 DAWASCO [Kanuni na Masharti ya Utumishi DAWASCO July; 2005] annexture 'F' to the applicant employee affidavit Revision No, 382 of 2013 51 ibid page 7 of the DAWASCO Rules ... 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 m.engineyo [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 t~Hjnin 81"'~pene~ts by the empl9yer respondent5 2 • I did not see the eig~:f k:p9rt bf.:ttJ~ ,.rules . ~:•f.. ' '·.·· which has the types of offences:- "-::··:(~ ·::\r 8:2 Aina ya makosa yanayoangµ,ki~'Jatika_ (,,.~,··· ,,._ . kundi '\;,. la makosa ya kawaida [type§°"( offences falls under ordinary offences]. :.- ~; '.)\_;, 8:3 Makosa yanayoan,gµi<ifr:,. katfk,a·, kundi la makosa maf(u.f;wa,j}!ype.i;bf:}Jffences which fall under serious :.-;:k bff.encesj -~_..,,., ,.., . 8:4 Adhabu kwc1 kushintlwa kutii kanuni na mashartf. fa:-"· u[umishi [penalty for contra;~{hing tHe':'.-:'rules . and .FOndition of emplg_yin~nt/3 :. . • -.:..:·: . .•!:: . . .,· . -'.\t· ·~i...\:. ;·-r~. . . . . . . Chapter eigbt1'.,~of{ tge DAWASCO rules and condition 1, of :1 .'t\, ,·~•,:'.;:. . employmeq~ H~pte.9 aq_ove in party, shows· that there are rules and 0 -~trf' ·--~:'/;.. •,; ~-:·:"';'t_?/.'-~ ~ .. . . penalty fpr._ ·cqptr~yening and· they appear· at page 15 which· the ~f- "-~·{,:'- :~ · _:!f,~r :f~,;,\,.,, . apR.licant h~tl\n,ofattached. He attached only page one and seven as 't\,,11 . '.:- . ,.,.? : - . . . .. well ast~the_;cbntents from article 1 :0 to 10:0 [pages shown as 1 - 18]. ~~;;ii . .. . . . . . . . .' < Be that as it may even if we could say that th~ 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' DAWASCO Rules and condition of employment · 53 Part eight of the DAWASCO rules Ibid page ii of the contents of the DAWASCO rules 19 0 the client and that the said rule contravened existed, 54 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 pern:iit "kibali" .to construct the water supply issued by the Site Engineer one Julius : Buberwa 55 that according to the evidence of the,;;em_pJoyer in the : ~:-~l:\. .~ ·~. :.: ~ commissi9n__ Jhe__ ir:tyestigation _made by_ the discipH8,ary _cprr,mittee _· _ --~..... ':_, i •where three clients had testified including Mr1.,.~~.?ibrahim\Mwangalaba ,.,, -( · [whom the applicant is accused of illegal cqp'h~°ifipn ,of water supply 1 ~t~;;, "'':J::.·~-~::. 'to him] this one testified that he was_,giVen'lh,e permit by the site "'\;; ·Ji\.. -:;., ] Er,gineer Mr. Julius Buberwa WQ_ich perQJj~'::,w,g~··shown to the said site ' ' (-::'~! \:,, . ~t,. .. ; : Engineer at the disciplinary(\ hearing .9,gd he [the Site Engineer] : '; ... ~.\ ',,;,; \',t~=,::· . ii confirmed that : -' the signatur~ oneij!h~,.~ermit to construct water supply ., . "' ::t~~:- :-\· · . ~~~- 1 i at Ibrahim Mwangalaba'/w·as,.his signature:- ! "\:.':". ';,,,L·.. • ·• ... Bwailii ibrcjhim '\Myiangalaba a/itoa ushahidi kwamba , •. ,-~- , ·o'.H. · , alipewa;j,1/ibal{c~«Jf}Junganishiwa maji na Bwana Julius . Buberwa"' ''A'qing ' Site Engineer"~ Kiba/i hicho 't /fi/i(})'fiy~i_liV(a_,,. f}a Bwana · Buberwa alikifi kuwa sahihi 1 iriak_oode/f.ar/a'kwenye kibali ni sahihi yake...56 . i;;/~;11\b ,''\1;;,ir~:-:-I,½~· . . '~\0 The '1Jit~:~ss above was testifying on behalf of the employer ; ~.l~•:,,. ';,~:~i_;,~( , . • ' 1 responq§nt1;[DWl] Khalifa.ni Keha DAWPSCO Manager of Mlandizi. ; ·. ·,~:~7-~•:~ . .. . . ' .. .. . .; Unfortunately the employer respondent did. not call Mr. Julius . ' j Buberwa the Site Engine(;r· to testify before the Commission and· I II l ! -------- !55 Rule 12 (1) of the Employment and La hour Relations [Code of Good Practice) Government Notice 54 ; CMA arbitration award at page 4 56 ' ibid page 4 20 ,. 1 1 j ! ~ I ! ,·. 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 Mwang~laba 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. W.hatJ~tthink went ,(~.;.• . ~h. ~ ":. wrong in .my view wa_s the procedure before thel1~irmit tdi;~gn~truct water· supply had been issued. The permit tQ.c."~gonneci\wat;~ supply . _.:.;~:~t . . was however issued as the record show~Jalthoµg_h the e,mployer ti:.:. --t~:~-~;.- . -::.-;~r:( respondent did not want to produce .it or\~a1h._Jhe Site Engineer to 1,·: -~( ·.. \.,-,'.•• testify and give a challenge • to ..,-,.,.r.-: th.e .. p~rm.ii'h~;'~lknowledged before the ~ .,,I,( ':!t ···•··· .. disciplinary hearing a perm(~hith,,~}s produced by the client Ibrahim Mwang·alaba . whom . -;~:/,· _:·~tr.......n~.,/i:t/;}t::.,·.a_pplicant -is accused of illegal connecting water suppl½ at(his. pre~ises57 • I entirely and respectfully . ·\\r.. -t~-~-:~.- agree with the applicant th'at:->,, . .:' ' , .'gi~~~f:.._ ' =' -,~'f},l;,_ ' - }f;j.. ·- . -. .. ... The p_ermlt'Jjo·iconstruct water supply-to the premises ii'.itol ;.Qr,_t;__ ,,r;MD 113.rahim. Mwangalaba was issued by the ,'4-,-.. ,;.,:,o ,,r,,, "~?., -.!...,•, • • ilffj)j_ropri~le·"<aOthority i.e. Mr. Julius Buberwa the Site ,J?-.!/f,pglnflerJ~nd that permit was not produced by the ·f'. ··~· ·-,·!;'-'.';.:;,:4-· ,.. . ·~ 1;esppttdent as such the learned arbitrator should have ~~~- ffi-1.l~<i;,tbat the respondent had no valid reason to ~1~-. tillfhinate...58 - .· · · . . · . ~......); .;,,;!\};J· :r~7 _~n ~ie\1\1 of the above I think the employ~r fa_iled to establish on . the bal~nce of probabilities th_at there was a rule regulating conduo:..~f . . 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. Mwangai~ba employer alleged that the applicant had contravened a rule ss Applicants written submission in s~pport of the revision p. 1·2 · 21 .. - ' I . ... I! 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 discriminati~:m in the work place. The relevant section reads:- ... Every employer shall ensure that he pronJptes//ifJ, equal opportunity in employment and _,sf/1.y_es·,, to:_2, _ eliminate .. discrimination in any __ employment'.;;,,,:~; _ ··-- policy or practice... 60 ·--,~~';\ ··"" _)if. < As rightly pointed out by the applicant:Jtf his:,VJrJtten submission I .>,/ •~•Ii~._ r/;~1;-r that the permit to construct water supply'·a~;JhEtPremises of Ibrahim Mwangalaba was issued by the Site;~En~i,nee,;:}~t ..,Buberwa but it was . :)~/tr: :.t~ ·,-_:-~ ····~~~-:>:'· only the applicant who was :~~ubject~.9,, . disciplinary action as the l'J-_{:~ t9 "'t,;:~'._. . . . record showed 61 • Discrimin 9tiott;Jn r:!)~ting disdpline by the employer . . . t~.:· -~:-:~_/J~i· can be seen when omt.e~ployee is subjected to disciplinary action "i;:-, '•"!/, and the other· is left 't10Mith~tanding the fact that both of them had I ~Ji;~•.:;. 1•,,;:t~~?,; :~J\~;. • • contraven_ed the t~le:'\~ulef-12 -(1)(b) of the Employment and Labour • ~-.)-1 • (,...j~• .:~ ~~) • Relations •tr,c;&cJe~-,~of··12Gbod 1!,.,.; ...... Practice· says that 1f the.· employee has contrav~l@~~~,;~·y;Rrdle or standard, then the employer must show that \~:·.. (. {f. d~:-;:~:. ·. . . ' : . 62 it ha\_i~peeril'.Ggfi§istently applied by the employer :- ··f~;,_ /JC,.. I I 7t:';:,:,!f/F:':Any employer or arbitrator or judge who is required-to· . j ' ·,·. decide as to termination for misconduct is unfair shall ; ! . j I i i 59 Act No, 6 of 2004 Cap 366 R.E 2009 60 ibid section 7 (1) 61 op, cit note 56 at page 5 62 op. cit note 45 22 ·;·.,:,. . '• ... .II, I • i' .. ·I consider:- I (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:- •1 (i) I (ii) Ii (iii) I (iv) It has been consistently applied:i/iy I the employe/4 ,1:r?".>,, ·. ., I I ·:,~~.\ . ~t .]'>~ -- i I ; The above rule means that the employet;}!t place;..:0( work must {:.r>:... i I be consistent when meting out disciplines. :Jfhefr@ ~re two types of ! '";.... .. ·"·-<~ i inconsistently which may arise, namely::. '"-·; •.,,,,'.\t:., 1 ·· II ', ~: . ,'; .'. ! (a) Contemporaneous incon.sisf~ritr,,.... l[Jis is where employees who £leach :;/he sa(l1e'""lule at roughly the sametime or1 contert1p9(~1Jeously are not all disciplined by tfie, );; employer"r .., but the employer disciplines on~ . or SOf11?__employees and leave the other. employe,.es or employee... · ~;~- . . ~ ·:. . . . -~' ,.:s:~:-. >=-1. ~'!'1_ ' The important_ th'ing tcbretkon here is that the above is based on • ~~4r':f~(j- ·.;1-'t•:~ . ;;.~ -~ , a proposit~on that sirtiH:af1tases should be treated similarly. If the •~-½~:~. l{iX~tf..:~ ._.~\~; ~t . I employer do-~} not:Jreat equally, the ·employees the inference may be Ii .-J'.'~ -.,:;;·., ",t, I i. dr~wn rj" tna~it'thei\:-:~tnployer .fr' 'tfr --~:~ • .,._/ administers discipline in arbitrary and 1fj" discfl~J}_nat6ry:'}way65 • . The Employment and Labour Relations Act 4 prohibit }~cnf~rin,ination 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 65 rd See also Prof. Sasson Essential Labour Law 3 2002 p. 182 23 discrimination in any employment policy or practice66 • The second . inconsistency is:- (b) Historical inconsistency this is where the · employer has in the past not proceeded against -employees when they helve contravened a rule . The unfairness of the above inconsistency is that when the '. . .-~~:. . iJf;.t:~ ! employer did not discipline employees who had cqpttaveheg a rqle or I ~~:,-''" :•r1i,, ~:~ •~?":. ~ standard· in the past,-an impression would be had tha'ttfOntifa\tention -- -- -- -- - : of the particular rule in the past was not cons,fee.'ted as ;\?nisconduct. 0 : However the fact that an employer has ,,c:ohdo~~tt<certain types of ; ··~'_:,._ ~~(.•.., ; misconduct in the past does not mean>that :~ffion cannot be taken . ,.;~.:lt:1~:~ "¼>.. ·/ <::- : against employees in the futu~eJor $\Jcff1mfsc6nduct67 • ..,. ,.,,.,. . .. ·"'~---:'' ·.·;,• ' ;,. ' ' ~ ·~~~ . . il In view of the aboveJhel~tQr<;,.~he employer respondent in the :,~tt· ~-.•/..,t~:•.-:· . ! present case at hand hao ·t,~ established· that the employee applicant I 'I-~ • :~ ' ' ~~ ·~~ ; had contravened the'''f"u,Je 'tq.)vit·illegai connection of water supply for j • {~~?-~iti~t:;·,, -t\.;:;; '. _).t·:_:·. i example, Jhe employe·i\wduld have unfairly terminated the employee ; . "i~~·- ,;.;~:~.' .. . ·-"~~/.. ~{·· l in view of-\®:Uie½:1l2'{~(1) (b) (iv) of the Employment and Labour : .~;•./.1::--·.- ,:;;;..! '{;: . 1 68 : R~lation~ (~q.9~~qf<{,ood Practice] as he would have not consistently 'l.~r ;~~ :.~, i appll~g. th~\:~$~fd rule or standard· to the two employees who. had 1 •(~1/? ll}!. . : contemp?maneously contravened the rule to wit the Site Engineer who i issued the permit and the applicant employer who connected the j ' i lj _ _ _ _ _ _ __ ; 66 ' - l op. cit note 57 see Section 7 (1) . l I : 67 • , ·1 op. cit note 63 at page 182 68 ' : Government Notice No. 42 of 2007 (GN) J 1 24 . ~ i .,. --- - --· ·---. j·. 'I .I water supply at Ibrahim Mwangalaba premises. The employer he I - I .would have went contrary to the ELRA69 • ' i I I The disciplinary committee in convicting the applicant emplqyee ! !' had used ·"recording"- of the conversation between the applicant '' employee and the client DW3 Ibrahim Mwarigalab~ ov~r the issue ; ,,.ff/· <f/'\~ : using a mobile phone. The person who recordep!itpe ·app!,icqnt· was ~ . - . . '\;)~:;- ~;,~<~-/:-~- :the client DW3 himself after the applicant ,,had ref1..iSE;P t'd sign a ' ~» ~ 'contract "mkataba" with the client DW.3:i1i1gyer water supply "l};j . :I:;i{. ~ I. 70 : connection • The Commission also swaltoV{fgq Fct11y· that piece of I ,:·•}1,, "'(·.:.:.~~.-. ---~:1~<;-. !i '. evidence recorded by the client D\JV3,,,Irf\p_js ''ltipbile phone interalia : .,. ?/:1 -. ~-:~'.J/~- :1\~;; :--=~ .-\ • I · and upheld that there -was r:.~~ion j!fpr t~,e '·employer to terminate71 • I I !i_ . _,;.;,~~-1,.-i.t~f However with respect I doh[t share r;,;the same views with the i Commission and I found<t;that the'•ratt of the applicant employee to p~- :".,~~tf:;••:';ti; . . I I . ':-~ ·;-'t'·-:;. . Ir • ' " I . refuse signing a cont_racr:;,:qrf,'1Y-ater supply connection with the client i ! • .' • ..,i't,,r, "·\p; :r .. . .' • .. . • • ,. i ! (DW3) deserved $up'p,Qrtkbylhe employer because the applicant was ~ • • • • '"' ,. '"\;_ • .. - - ~ ; ( , ; ~-(.. '. _, • ,· • ' • f • ' i: nof prepah~~fte\)~i~Q,l~ocument • •~~~\,_ •¥~•, ••: illegally and. out of office • The ' • • I > 72 ,. ; '. Pro.cedu~~rra.rdtg,r~Jiice was told. by the witness (DW1) Khalfani Keha ; .~. ~ ~r- ,J.tJ~"[;. '. •t;~?.t("·(.~ .. '. • . ' ~ .. • ., DAW.l~.SCO {fla'.j;rager that a client. must come at DAWASCO Qffices for : . ~j). ~:~:r1tP·: • • , .· ·· · · .· · . - ! the exe~,~ig=i '·'°1:/i' of water _ conneo:ion •' .which included the preparation of I••' 1 • • ' • • • • 73 :j survey and - ,. costs quotation ' ' needed . for water . . .' ' connection '. . . ' • . • · It •is riot i known why the client DW3 had wanted the applicant to sign a I 1-------- 69 .•,.op. cit note 57 the Act prohibits discrimination at work place as per section 7 70 : op. cit CMA award at page 11 paragraph 2 71 l ibid page 18 -19 ! CMA Arbitration proceedings explains the procedure (DWl) on legal connection of water see page 7 72 73 ; ibid page 7 · _ . · ! 1· 25 .j l ' ! I' '! ,I j l .. 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 c~rrect to refuse to a call by the client (DW3) to sign documents out of office74. The refl!sal of the applicant to sign fuelled the desire of the client (DW3) to use mobile phone to record the conversation between himself,.J1ndJh~ appljcant ..:i~;:r -~~ .,\, and which he used . " . it- before .. . the disciplinary . -. - heciffri'g~,-~nd o,~t.ore the -· . . . -· . .ri/r,. ·- -- i.:·Y . - - - --- -· -- -· - Commission and the two forums below dump~g:; thems"€1'{es into the quagmire of using electronic recording to ;J:pt~aen,11 the applicant75 ~~~~ ~~r,~t ·'-·.!.~.r;: .[among other evidence]. The Labour Co_urt';8Lile$ describes electronic as:- ... Electronic means :i~ythi,;g"\j1(,~l~{jng to technology '"''" l''~'::\~,v;r,, having electrical diglta,t mag/ietit, wireless, optical 6 electromagnetic or:$imilar.;t;~PJ:JQl!ities7 ·r~:~· .·:"' ,/4:"'!}/t• •.• t;,~i: . . .. The recording uset:h1oy~t~e witness against the applicant in the . ,;;,.b_ :t_~."-. ~ .·- -~~~~ . . . . . disciplinary ·heari!)9\-:;~~0f12fll_!ltee and later crossed the floor to the . . ?~ ··-~·:·:. ·-•-:it{ . . . . . . . Commissiqp !tuat,~tq_t.-~~('.~~~~:?;:.w;_!tn·ess DW3 used his. mobile phone to record ;:~~r~ 6:\,:_ . . the appUc~nts ·•:conversation with him was electronic stored ~trtl~~}\!,. ..~\-,,_ ~;J,1;:._:-'<~;;.:: infoilmatib~ttW0J¢h . is a document- iri terms of the Tanzania Evidence Act77:~\~Ihe.~:t.iboui Court Rules also 'interprets a document to include· . ·'?:::v~l~?- . . . _any publication and any ·matter written expressed or described upon any substance by me.ans ·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 76 Section 2 of the Labour Court Rules Government Notice (GN} No. 106 of 2007 77 Section 3 of ~he TEA 1967 [Cap 6 R.E. 2002) . 26 'j . ' . _; ~ I I • ·1 .i recording that matter document or record in electronic Ii form 78 • The evidence Act gives more information on what is a II 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~ USJJf/, for the purpose of recording any matter{/!Jrovided;., ··\ that such recording is reasonably permahent.. and~;~ ';:',· · readable by right [emphasfs mine/9... -~4;~, '1;:/> ;j ·~. C ••..,2!:- ,"<~~:',it' ··~ I don't think in my view that the .~J;t\qf elect~~nic stored information as evidence in civil matters has.~:~~lP ;tf<~owledged par- . ,,·,,"' ;;•\:1>-. );~'.:. 80 excellence by the courts • However., ,as\:n~ga,r9 to criminal cases the ......-.... /}/." h•~''.(f.\., ~~~:l~t:;.~-!J:', 1 TEA of 1967 is clear that8 • ~The Tqnzar,ia -~Evidence Act reads that t-~;. ~:. _ "f','!/il ·!:-- [provides the admissibility of eie;~-troni<:;:-§tored information] 82 :- ,;.~.>... ·{{~)..:..: ~~-/~ :~.. .. .In criminal proceediJJps:- · '· :. ,,,.. (a) An inforrn_gtltin.retrieved from computer systems, · networks cltse'rvers or · . (b) Tf?fkIJ:ic°"r//fth/ough surveil(ance of means of p/;,ese"htationtlof information· including · facsimile \tt~.- .t;f:.'?r.JllJ'1¢binJl electronic .transmission and -~i. ebri}ifitf~tcation facilities. - ,tf~t:(cf\.,Th.t:1 audio or video recording of acts or ·· ~- ,,-!At,;, "461fhaviour . or conversation : of persons ~\;,,½,.}«f" r:;r,t:is ::::;Je admissible In evidence "<!.f" . 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 Le. 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 82 E.S.I. [Electronic Stored Information] 83 · op. cit note 79 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 respondente._did not use ' . A,~~?: ~,rJ/; ;~:_ . 84 the Public Service Regulation He therefore fajJed,, to cdU)pJy>-with • " "' ,.~~it. -:.;. ;,~-J~1· regulation 44 (5) of the said regulation which prqvide tHaJ a tharge- or - --- ·•;'_~:~~i~· -~k charges shall be accompanied by notice whicq;;rnay be in the form laid · down in part B of the second schedule:·.;it~i1 ~tbe';,Ft~~ulations85 • He argued further that the disciplinary ayt_b~ortt/lai_~a to comply with the .-,~•.;• 4/rh•~f~i;,;: ·. '•,'t-.'J~:'.•~:fJt}/ mandatory requir~ment of t_h~fprovfsJsms\gf Regulations 45 {l) of the rt:. -~·=ti.-; - .. ,:i.~i Public Service Regulations 200'3-~~hich,,ip'rdvides:- . ,_:;:~ '${~i', :·.> ,ti;? .. .or makes repre~W1tations· 1Which in the opinion of the disciplinary authority do not amount to a complete defence whiq,_~- the;,jtS(!,sed..~ public servant is charged. The d~f;f!~(ini!,[l ]~uthority. shafI a!'point two or more l1J_embtJrs'to hold an 1nqu11y into the charge ,fc_,V:,r p'1,11l!if#.i16 £emphasis supplied by the applicant]... . --~"',¥t ~1\:t, ·:J.~i,,;~JV . He,f·em,a,lfe,Qg.~d that the disciplinary authority instead of . ,,, ?. )'-""·h ·-,-.;:, app'a,t~ing \~~~{~~inquiry committee as required by Reg~lation 45 (1) quoted~a,gg~e the respondenfconstituted a. disciplinary committee. of ~ five me~bers ·to inquire_ into the charges. Hence the purported inquiry committee or disciplinary committee was incompetent to 84 Government Notice (GN) No. 168 of 2003 85 ibid 85 Ibid Regulation 45 (1) 28. iI - -j, • ... I 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 r~spondent in his wr!tten submission, which I share hands, the : decision of the respondent to use the Employment and Labour Relations Act89 and the code of good practice rule~;S.- w,c:1s+not a. "sin 11 ! : ~' . '. ~ : since the employer is at liberty to use either09th'e\_,Publifl}(Service .. ' . -~r,..s.. '.(,:·- : Regulations or the Employment and Labour ~~lations 'Act in meting : .i7~~ '. out disciplines. The use of the Employment~,,and'l~etbQur Relations Act : , . •\'" _1\~_;_ ---=r-~·r:r· i instead of the Public Service Act did nof'1iQ. attY way prejudice the ':"··~.:. :t~(i; ·:·.•· 1 \ applicant. :}' I~ '('"\:-,s.~. ':\,;i;,i'.f ;, I . ;~~{:f·. "~.:.= • .··. . ~t- i~. · ";·: :-:\. _:~,:}/ 1 Now as the respondent h~p op~~d'to use the Employment and 1 ~'i~,. :~~-~-~--~,.- -.~/:. Labour Relations Act· an~t·· the ·code of good practice rules it is -.~~:!', ·:;1•~ important here to visit_thet~mptoyment and Labour Relations [Code of ; :,· .. - . '\:~>... ~. ,"·~~)~.- ,•, : Good Practice] R~les)tg'~sl;iJ~W if the ·fairness of the procedure entailed I -~·- \Pl. -~~; j in the r'illg;~f'W~r\tf9JJPwed by the employer respondent. The I '1-''- •.. , . .; procedu~ehf:~i'rhl~:~:#iito be followed by the employer before termina~ing --~ J;l.'.::.. '.':i;_:- 1arf?~uiploy~~ for misconduct is clearly spelt under Rule_ 13 (1) to 1391 :- -,,~ ~ '•,.~/sf# ·,,_.:~, ._,.~:.Investigation ~~ . ":r'· · Notice of the charge. Employer shall notify the i , ...... employee of the allegations using a form and · ., ,87 - - - - - - - - 1 op. cit note 56 at page 3 l 88 op. cit note 81 Regulation 48 (1) (2) (3) provides for procedure on the conclusion of inquiry. For example I { 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 i Act No. 6 of 2004 and GN No. 42 of 2007 respectively . 90 : op. cit note 46 !~ . . ; See the Code of ~ood Practice Rules GN No. 42 of 2007, it provide prepare defence, state of the case, assistance of the employee decision, communication of the decision reasons for termination appeal etc. '• 29 - .. - language he understands92• 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 /JJ the circumstances giving rise to th~ .cas(/1/\ • Employee entitled to state a cas~?~!Jd call\ . -Witnesses95• '\\ \,.-f • Hearing may proceed ,;ex;parte •;.~nd ,. employee ent~t~ed . to mit/pat(ng factot's before the deCJs1on ,s madef;1 • . '~t, . . • Communicate the decisioif·:.togefHtir with briefs reasons97• \,,\~-· ~\.· -<~ ~ ·<tr:~~ ·? ~~;t_ ;~r{~, In his written submission\; . thif applica'fit has argued that the applicant wa·s not accorded ;~\ fair ,,Jl,di~roperly constituted inquiry committee for hearing Le·;,: ,a iJW. 1h<:iaring was not accorded to the applicant98 • He argued,;f:~h~r that there were ·elements of BIAS in '·l:r . t~\~.· ·: .;.:(;. violation of the prjJJ.Ciprt9f foatural justice, that a person should not be t. -1'~(· . ~;::_t-~t~•:·. . a judge otiri_~.;~8.1~-;,~E~i~, and that Keha, Kasitila and Kahabuka who were Ar~.9,~•';M.£1n;g~r . " Miandizi,. Human Resource DAWASCO and .~ifY· :.,l;?i:i :-.;~;,:/{f ~ Ka~,abuka iJMe.niber of FIBUCA respectively participated in the ,. ~~? - - . purpcfrt*'p !i:C1diry99 • Rule 13 (4) of GN No. 42 of 2007 only speaks of ·•·<•~«J:-r the chairman who would chair [a Senior Management representative] i . ! 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 I 98 I I ,. 99 op. cit note 56 at page 3 _Ibid at page 4 · iI I 30 II i I 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 pf 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 tJ'<le fir¢:umstances .idii~~:. .r i~.. ",~- giVi ng rise to' the , cas~. . It was not therefore proper'\f~r '('!,~ thei11+to ~~;, .. form part of the decision maker on the fate -,;.pf; the applicant, the Employment and Labour Relations [Code ·t-Pl~tqod Practice] 100 on f ••· -~:~t- .· -~ti~?;.,~~} procedural fairness states that:- <-:.. ;-.•-:r";\/>S\t I i I I I •.. Employee entitled to assis_tan.c.~;::/).y j~-- trade union .! ! .• :J,.. representative or felldw erriployee., . di.ifihg inquiry and 0 : -~' '"' /,,~,:•-'· has the right to Appeif01 ••• ··\·,~-·-.,,,ii "~½;,{ . _: ~-- ·:.<,,,r.- . The applicant was a.f.f@rdeci:~theJright to. appeal and he appealed . ,., . :,~~~ to the Commission as th~ '"re.,ford shows against the decision of -the ~ ~~~½:- ~~t: ~. . ··\,:; . employer. The P.fO<:f!cl4r,ai§fairness ·in the code of good practice at :x . ·•:;.:~ 0::7::= . :~~~~ Rule 13 €lJ)JqJJ<s 1.,of '§xceptional circumstance·s for an employer to -~·:·,+:.){' ,-~~1t~ :'\~~;)i·~' ·.' dispense ,,w.J,th:the ~:g. uidelines that is to say exceptions to investigation i};%"'rt-.~i;'.;.., ~;)l::;:-,;•;:,t:¥.-ri I ang~r h'eapfn'~;,\""::zrhis did not ·feature in the applicant's case because inve;tig.9tiq~,::,:ias conducted· and hearing took place 102 • However for :..:~! ..,~/};~ the betteF understanding of Rule ·13 (11) and in- what exceptional circums~nces the employer may dispense with the guidelines, . . . especially in respect of investigation and hearing, a visit to South 100 GN No. 42 of 2007 101 Ibid rule 13 (9) (10) 102 Applicant was heard before the disciplinary hearing committee and defended himself 31 . ... 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 ,. ',i-. \ ./li:• ,'., A South . African case law facts ·- - .. - would help tc:>" uhgerstar1~t-the ..... - - -·· - - 1;,. •··;:r, - - so - - & - • called crises zone cases. In Lefu and othersi "f":: V. We'st~rn ,. Areas Gold Mining Co. Ltd 104 during the strike tb.~re'\,~ask_ rioting in which . . ;;,~ . •'.\~;:,. . ·~s~f:~r- nin e employee were killed and 304 if1jureij;!, ;,,.. .. ~';.-~ '::t<'.-,._.i,n.,e mine decided to dismiss 205 employees because_ of t9eir\~ileg~¢\·misconduct during the . :g).}JL, ~.¼. '~\- <',. :" strike. The workers were :_qismissep_ W,ithout first being given a A;i:· . ..:-i:t:.~>~~/-· i hearing. The mine argued_ thakdt. ha.q been practically impossible to ! . . ~ -~;; ·.f.i,:\,: ::1-.::: . i ! hold hearings. There b~d\t>een extremely tense atmosphere and to l i have granted appr;xihJ~~~IY::::2osemployees hearing would have ta.ken i I . . f.IJ~;:·~{t ..7.. ..,.?:~t:t: . -~~ :\:. . . . I several days which wovld--:probably have led to further unrest. The '"!\~~ -~•(.::{(;,.-.. -<.::-::...: ~ :··\ ~ ·. ·. : . . . 1 court accept¢d ' tb_¢· m'ihes _argument and said that the question of · 1 . ~ ~ . . . . i \ whether.~fmgtrt0.~lemployer it:.. JF., --~{>;;. ~'(. . . . was dealing .with a crises zone cases was. ! one\af factl~:~~iFNevertheless in my view the above position is subject i I iI to a h~~vy?~Hscussion and· challenge ~is-a-vis the right Jo be he~rd a I .. I I notion which flows naturalia contractus. The situation under Rule i 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 (1985] 6 IU 307 (IC) 105 ibid . 32 " 'J ,, -- - --- --- -- ··- -·--·- .~ - - •·-· ·- --- - .. • i ,. •i I .. not unfair to hold a collective hearing 106 • The question however i I remains in the case of tense atmosphere as a result of a strike can it I '· Ii be possible to hold a collective hearing? In my view I think it will n9t be reasona,ble and practicable. I agree with the applicant that there was BI~ "'ltlich was in ,--i:f:/,: -.=.tiff,~·:. -~- violation of one of the principles of natural justice.~tffl·et_ nen~jl.!/lex in v.,/'.';-~·-, ''~;:.t causa si.Ja [a person should not be a judge)n his own:1;;,,case] in the ·:;7~. t.._-./{ "\_.- disciplinary committee. Perhaps I should con.¢1ucte here by quoting a ' ;~~1.{ '"f~;.*_,..__ I'":.;> decision of Lord Denning M.R. in Mettopolitan Properties .·.,.i. :. {,"''~it <ff~\i~~- Com pany [FGC] V. Lannon and ~!h,~rs,Jhat:r · .-.~.",:; ·~ •{/f,i :_ry~.t>- <,ti.: ::;.;.<f :..In considering whether thet;e was; fl likelihood of bias, the court does not lbpk at th~.,J;!i/nd of chairman of tribunal or whoever it~~y b~ "''who sits in a judicial capacity the court,rtooks at~t!J,~Ympression which would be given to t~~ p~qple... There must be circumstances from which;t,,a rea,$i:fncJble -.i~, "·"·'- man would· think· it likely or probable_ .f~at:jheJJJJtice or chairman as the case may be woulitor::%(di::(f!J~6ur one side unfairly. _Suffice it that ,:1-[ea~9,,rzaq{e pe9,ple might think he did. . The reason is "j:J,{ef.l!i"e1r1glig!J..iOustice must be rooted in confidence -and ;,/r,£iff-r(lcjeii~~ is destroyed when right minded people go t"-·~:~py't(qftiking the Judge was biasecf07... I I _ I I ! i ,'.1.\~ t';· . -i~- ~- . i ',\~'.-. vi~}:'1iof the foregone it is my considered opinion· that the I fet\~~f,P' ~ . . '. . i I I ,. . respondent employer did not· have a· fair- arid valid reasons to I !I terminate the applicant's employment.· The: employer ·respondent did I i not a·lso • follow some of the p·rocedural fairness guidelines before I II terminating the applicant as shown above. Since the employer's I I j 105 I I op. cit note 96 Rule 13 (13) of GN No. 42 of 2007 107 I (1969] IQB 577 Per Lord Denning M.R. II 33 iI I iI l i I ... 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 lig/7,,tfy interfere with the sanction imposed by the_.,etnployer~ unless the employer acted unfairly infirfippsing\ _.:·. · · the sanction. The question is not whether the"Cpurt >? would have imposed the sanction imAg~ed by lh@ employer, but whether in the circum,ffii,:,£eS of the 9 case the sanction was reasonab/e1° ~- · "[emphasis ~ . . added]... '\, :!::,.·\:~\ The respondent as I have fo.und .· frLttie· case at hand acted : ,;)i':: 1}. ~·1:1~=- ,., .,~ _;:-~ · unfairly in imposing the sanq_ion of{t~~njJnation .. There was no fair I ~ ~~- I: and valid reasons (s) to ter!Jli~-1t~_.9,ng.fith-~ :,/·~ ··"•·:.W<J,:'r· procedural fairness was not . ; wholly followed in the -ci_n:ufa1stances. · . . I ·.. t . . •'.<;;:?i,·.f,•,·,•••:?\\. :7: .·<-J~, , In the event;a'ni.6oi.th'~ foregone. I allow the present revision l •·" . "1:· \:~ ...,....• . . :. i applicatlofi'::\~,t~\t.~~i>~~9.JS!icant, quash the arbitration award of the l . ··l.-i. -~~-~I ; Commls~i0n,J6n,. M,ediation and Arbitration and ·set aside any other ·'=? ·•::•, ·.~:-~.~J'? . ; orde,r? therr_ftd{\ the respondent employer is ordered to reinstate the 1 appli~Jnt.J~·>l~:is employment in terms of Section 40 (1) (a) of the I -~ . . : Employment and Labour. Relations Act 6 of 2004 without loss of t • • • . . • l l remuneration during the per:od that he was absent from work due to . 1 ' . t the unfair termination within 28 days from the date of this judgment. I I I I 108 ; Nampak Corrugated Wadeville V. Khosa (1999] 20 IU 578 (LAC) Labour Appe-31 Court of South Africa ; lO!I ibid at 584 A - C . . . 34 l ' .l I