janeth david humphrey vs muccobs 2021 tzhc 7569 30 november 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI LABOUR REVISION NO. 20 OF 2021 (Originating from Employment Dispute No. CMA/ARS/MOS/19/2015, Commission for Mediation and Arbitration at Moshij JANETH DAVID HUMPHREY....................................APPLICANT VERSUS MOSHI UNIVERSITY COLLEGE OF CO-OPERATIVE AND BUSINESS STUDIES (MUCCOBS).................RESPONDENT JUDGMENT MUTUNGI .J. The applicant is seeking for revision of the Award by the Commission for Mediation and Arbitration of Moshi (the Commission) in Employment Dispute No. CMA/ARB/MOS/19/2015 delivered on 8th June, 2018. Briefly, this application emanates from Labour Dispute No. CMA/ARS/MOS/19/2015 where the applicant filed her complaint against unfair termination. The Commission’s Award was in favour of the respondent hence the current application. According to the records, the applicant was employed by the respondent as the Estate Management and Environment Officer I, from 20th July, 2012 to 23rd, June Page 1 of 19 2014. It was alleged that, sometimes between 2013 and January, 2014. She solicited and received a bribe at the tune of TZS 5,000,000/= from the Director of Safeway Services claiming the same was requested by the respondent’s management so as to award the cleaning service tender in his favour. It was also alleged that the said amount was handed out in three instalments and eventually the Safeway Services Ltd was granted the tender. As though not enough, the applicant approached them again asking for yet another TZS 1,500,000/= on the pretext that, the respondent’s management needed the said amount. The Safeway Services complied but decided to inquire more from the respondent and realised that, the latter never asked for any amount prior or after the tender was awarded. This is when the respondent made investigations on the applicant only to learn she was involved in a number of misconducts including stealing paints and cleaning materials from the respondent. It also came to light, she was previously dismissed from the National Housing Corporation (NHC) for misconduct a fact that she never disclosed in her CV when applying for the job at the respondent’s institution. In the event, a Page 2 of 19 disciplinary hearing was conducted, on allegations of giving false information, receiving bribes, theft and dishonesty. After the same were proved, she was terminated forthwith. The applicant filed her complaint at the Commission claiming she was unfairly terminated once there was no sufficient proof on the allegations against her. She claimed for reinstatement or alternatively for other statutory entitlements for unfair termination and payment for damages. In her defence, the applicant claimed, she was never found with stolen properties belonging to the respondent rather she had bought her own building materials. She also denied to have solicited for bribes from Safeway Services. Regarding non discloser of her previous employment, she claimed she did but, in her Curriculum Vitae, (CV) the page showing the same had been ripped off. In the end, the Commission decided in favour of the respondent after satisfying itself, the applicant was terminated on fair reasons and by following proper procedures. Aggrieved, the applicant preferred this revision on the grounds as gathered from the 5th paragraph of her sworn affidavit that: - Page 3 of 19 a. Whether the respondent had fair reasons to terminate the applicant. b. Whether the respondent followed the procedure c. To what reliefs were the parties entitled to. During hearing of this application, the applicant was represented by Mr. August Mramba while the respondent was represented by Mr. Hassan Herith learned advocates respectively. Supporting the application Mr. Mramba submitted the Award was improperly and illegally procured as the termination against the applicant was unfair both substantively and procedurally. He argued the applicant was denied the right to legal representation as she was refused an adjournment after she had staged her legal counsel had other court engagements. He added, she was also denied the right to bring a witness during the disciplinary hearing hence she was terminated unfairly. To cement his argument, he cited the case of Arcado Ntaqazwa Vs. Buvoqera Bunvambo [19971 TLR 242 where the Court of Appeal nullified the proceeding and decision after observing, the trial judge failed to grant an adjournment when sought, on the reason that the advocate was briefed within a short period. Page 4 of 19 It was Mr. Mramba’s further submission that, denying the applicant the right to legal representation was a breach of natural justice whose effect was denial of a fair hearing. It was Mr. Mramba’s further contention, the issue of legal representation has been guaranteed under Article 13(6) (a) of the Constitution of the United Republic of Tanzania, 1977 as amended from time to time, thus, the same has to be protected. The counsel cited a number of case laws including that of Almasi Kalumbeta Vs. Republic, 119821 TLR 329 where it was emphasised, a right to legal representation is universally fundamental including in Tanzania. The same should not be deprived unless for cogent and exceptional reasons. Buttressing further, Mr. Mramba averred, the applicant was denied the right to call a witness to testify before the disciplinary committee. The same can be seen through DW2’s testimony at the Commission. She was a witness at the disciplinary committee but when she entered the meeting room, she was told she was not needed. He cited the case of Andrea Salimo Vs. Ernest Msaniila, Civil Appeal No. 1 of 2007, High Court of Tanzania at Dodoma (unreported) where it was held, refusal to give a litigant a right to call witnesses amounts to refusal of the right to be Page 5 of 19 heard. Thus, the procedure used to terminate the applicant was flawed. Mr. Mramba further submitted, the arbitrator erred in applying the wrong law i.e. Public Service Act, 2002 together with the standing orders for the Public Service, 2009. According to the cited laws, in order for a person who has been previously dismissed from public service to be re­ employed, s/he has to first seek sanction from the Chief Secretary. However, according to section 3 of the Public Service Act, Cap 298 R.E. 2019 (Public Service Act) a public servant is a person acting in a public service office. Even though a public institution established by the Act cannot fall under the meaning of public service. On the same reason in terms of the National Housing Corporation Act, Cap 295 R.E. 2002 NHC is a body corporate with perpetual succession, official seal and capable of suing or being sued, the same does not fall under the ambit of section 3 of the Public Service Act. He finally submitted, the Arbitrator ought to have applied the ELRA failure of which resulted to an erroneous decision. He prayed this Court finds the termination was unfair both procedurally and substantively. Page 6 of 19 In reply, Mr. Herith submitted that the applicant’s written submission is unfounded as the grounds submitted on are not stated in her corresponding affidavit. He cited the case of The Registered Trustees of the Archdiocese of Par es Salaam Vs. The Chairman Buniu Village Government and 11 Others (unreported) where the Court of Appeal underscored, submissions are not evidence, thus the reasons for the application have to be reflected within the body of the supporting affidavit. On the procedural irregularity, Mr. Herith submitted the applicant was dully served with a notice of the disciplinary hearing seven days prior, but she asked for an adjournment one day before hearing while all arrangements were already in place. In that regard, the respondent did not error in refusing the same. He argued, disciplinary hearing is the employer’s internal process guided by right to be assisted by a trade union representative or fellow employee, right to have reasonable time to prepare for hearing and to bring evidence at the hearing. In view of the above, being assisted by an advocate or not is not an issue, but rather whether she was heard on merit which she did. In that light, the learned counsel argued, since the applicant did not raise grounds of refusal of Page 7 of 19 adjournment, denial of representation and denial of right to bring witness in her CMA F I, she is barred to raise the same in this application for revision. In contesting the reason for termination, Mr. Herith submitted there were sufficient reasons to terminate the applicant’s employment. She was charged with offences which constituted gross misconduct as she deliberately uttered false information regarding her previous employment where she was first to get approval from the Chief Secretary to be re-engaged in public service. The learned counsel cited section D.15 (1)(3) of the Standing Orders for Public Service, 2009 which is couched in mandatory terms that, any person dismissed from public service must first seek the Chief Secretary’s sanction before re-engagement. This was not done by the applicant while it was undisputed, she was previously employed as a public servant and that the cited cases by the applicant are distinguishable. Mr. Herith finally submitted this application has no merit and the same should be dismissed with costs. In his brief rejoinder, Mr. Mramba reiterated his earlier submission and maintained the applicant’s termination was procedurally and substantively unfair. Page 8 of 19 After going through the parties' submission and the Commission’s records, I will now proceed to determine the grounds of revision raised. There is a suggestion by the respondent’s advocate that all that had been submitted by the applicant’s advocate was neither discussed or pleaded for. With all due respect, all these were submitted, canvassed and deliberated upon by the CMA and are reflected in the applicant’s Supporting Affidavit. I now proceed to venture into the merits of the application. Starting with the 1st ground on whether there were fair reasons to terminate the applicant’s employment which the applicant argues there were none. The CMA observed since she was previously employed and dismissed by the NHC a body corporate established by the government, she was duty bound to disclose that fact and seek the Chief Secretary's consent to be re-engaged as a public servant. Failure to disclose this fact amounts to dishonesty and despite other allegations levelled against her, this one ground sufficed to terminate her employment. I as well find no reason to derail from that observation. Section 3 of the Public Service Act provides for a public servant to mean a person holding or acting in the public service office. The Applicant’s counsel argued that section 3 (a) (ii) of the same Act defines a public service officer Page 9 of 19 which exempts the applicant from seeking the said sanction from the Chief Secretary. The section reads; “Public service office” for the purpose of this Act means- (a) A paid public office in the United Republic charged with the formulation of Government policy and delivery of public services other than- (i) A parliamentary office; (ii) An office of a member of a council , board panel, committee or other similar body whether or not corporate, established by or under any written law; (Hi) An office the emoluments of which are payable at an hourly rate, daily rate or term contract; (iv)An office of a judge or other judicial office; (v) An office in the police force or prisons service; (emphasis mine) Section 3 of the National Housing Corporation Act provides for the establishment of the NHC as a corporate body with powers to sue or be sued, purchase or sell land, acquire Page 10 of 19 perpetual succession etc. Section 4 of the same act provides for its functions which is to provide or facilitate the provision of houses and other buildings in Tanzania for use by members of the public for residential, business, industrial or other purposes. Also, per section 6, the Minister responsible for housing directs how the corporate should operate. For all purposes and intent the definition of a public office as per the definition, brings on board the NHC which delivers public services and the same is regulated by the Government. The fact that it is a body corporate in itself does not make it an independent department not regulated by the Public Service Act. Be as it may, section 30(1) and (2) of Act No. 18 of 2007 introduced servants working in all Government institutions be governed per the Public Service Act. The section reads; (1) Servants in the executive agencies and Government institutions shall be governed by provisions of the laws establishing the respective executive agency or institution. (2) Without prejudice to subsection (]), public servants referred to under this section shall also be governed by the provisions of this Act Page 11 of 19 More so, Order A.1 (52) of the Standing Orders established under Section 35 of the Public Service Act provides for general conditions for the Public Service in Tanzania and for the sake of clarity is reproduced hereunder: - “(52) “public service” means the system or organisation entrusted with the responsibility of overseeing the provision or directly providing the general public with what they need from their government or any other institution on behalf of the government as permissible by laws; Public service as defined in Public Service Management and Employment Policy constitutes; (a) the Political Service; (b) the Civil Service; (c) the Operational Service; (d) the Local Government Service; (e) the Health Service; ffj the Teachers Service; (g) the Judicial Service; and (h) Parliamentary Commission Service In that regard, any person working in the above- mentioned offices works on behalf of the government to Page 12 of 19 render specific services needed by the public and NHC is no different. On the same footing the Applicant’s argument that she was not a public servant by the virtue of section 3 (a) (ii) of the Public Service Act is therefore unfounded and cannot be read in isolation of other laws including the already quoted provisions. It is not disputed, the applicant was employed by NHC as a Senior Estate Officer from 1st July, 2008 to 5th March 2012. She was terminated on disciplinary grounds after using abusive/insulting language and disclosure of information prejudicial to NHC as unauthorised person. This is reflected in the NHC’s letter to the respondent which was admitted and marked as Exhibit D7. However, in her CV which was admitted as Exhibit D2 vividly shows from July 2008 to March 2012 she worked at GIMCO Africa Property Management LTD as Senior Estate Officer/Real Estate Officer In-charge. The time frame between the two jobs is the same and during hearing before the Commission she admitted to have worked with NHC. That apart, Exhibit D9, a letter from GIMCO Africa to the respondent cements the fact that, the applicant worked at their office as an Assistant Property Manager from May 2006 to October 2006 only and not in the years displayed in her CV. Page 13 of 19 It is the settled opinion of this court the above portrays the highest level of dishonesty and deceitfulness to the respondent. More so as rightly observed by the Commission, such misrepresentation and concealment of information was done purposely in order to obtain the vacancy Contrary to Order D.l 5 (1) and (3) of the Standing Orders which provides that: - “D .l5 Employment of Persons Convicted of Criminal Offence or Previously Dismissed from the Public Service; (1) A person who has been convicted of a criminal offence involving moral turpitude, or who has been dismissed from the Public Service previously shall not be engaged for employment in the Public Service without the prior sanction of the Chief Secretary. (2) N/A (3) Any such person who wishes to be reengaged in the Public Service shall be required to seek sanctions of Chief Secretary by submitting application through Permanent Secretary (Establishments).” (Emphasis mine) Page 14 of 19 In the circumstances, the applicant had a moral and professional duty, first to get the Chief Secretary’s sanction before engagement to the respondent’s Institution. Secondly, to disclose her previous work experience to the respondent, failure of which her contract of employment was in straight terms void obinitio. In the persuasive case of Director General, Regional Manager Vs. Machumu Mkama. Revision No. 38 of 2014 of which I take inspiration held inter alia that: - “For a termination to be fair then the employer must have a strong reason and a valid reason to terminate an employee from his employment.” The first issue is therefore answered in affirmative and as was properly held by the commission, despite other allegations levelled against her, this one ground on gross dishonesty contrary to Rule 12(3) of the Employment and Labour Relation (Code of Good Practice) G.N 42 of 2007 was enough for the respondent to terminate the applicant’s employment and the Commission did not error in holding so. It follows as night follows day that, in the circumstances the respondent had fair reasons to terminate the applicant. Page 15 of 19 In so far as the 2nd ground is concerned, the applicant claimed proper procedures were not adhered to. She was denied the right to legal representation during the disciplinary hearing. Again, as rightly held by the CMA and submitted by the respondent’s counsel, the applicant was given 7 days’ notice to prepare for the hearing as envisaged by rule 13 (3) of Employment and Labour Relation (Code of Good Practice) GN No. 42 of 2007 (the Code). However, she waited until the day of hearing to ask for an adjournment on the ground fhat, her advocate was engaged in the courts. However, there was no proof of the advocate’s engagement in any Court to warrant the adjournment of the disciplinary hearing. She had a right to utilize representation of the trade unions available but opted to abandon the same. I thus consider her defence as an afterthought and out of negligence on her part, she had ample time to notify the Committee or rather engage another advocate to assist her. On the side of turning down her witness, I took the liberty of perusing the Commission’s records and on page 89,90 and 91 of the typed proceedings, I noted the following; on page 89-90 during Examination in Chief PW1 stated: - Page 16 of 19 “Swali: Je ulisikia mlalamikaji kopelekwa katika disciplinary hearing? Jibu: Ndio na nilihitaji kwenda kutoa Ushahidi kwa upanda (sic) wa Janeth (mlalamikaji} nilipofika walinikataza wakidai hii kesi ya Janeth hainihusu.” However, during cross examination on page 91 it is reflected that; “Swali: Nani alikueleza huhitajiki kwenye Ushahidi? Jibu: Janeth” In that regard, it was the applicant herself that denied PW2 (Salome Komba), her witness, from testifying and not the Committee as she alleged. The foregoing notwithstanding, the applicant did not specifically elaborate which procedure was skipped, violated or ignored that prejudiced her rights. Rule 13 (1) up to 13 (10) of the Code provides for disciplinary committee hearing conditions. Rule 13(1) requires an investigation to be conducted, 13(2) requires an employee to be notified on the allegations in advance. The reasonable time period prescribed is 48 hours as per Rule 13(3), while rule 13(5) requires the employee, during the hearing, to be given an opportunity to respond to the Page 17 of 19 allegations and rule 13(8) requires the decision taken to be properly communicated to the employee. Rule 13(4) requires the disciplinary committee meeting to be chaired by a sufficiently senior management representative not involved in the circumstances giving rise to the case. The law also requires the outcome to be indicated in the hearing form and filled by the chairperson of the disciplinary committee which conducted the hearing. If the employee is dissatisfied is given room for appeal. Perusing the CMA’s record, I find all these procedures were dully complied to by the respondent and the CMA judiciously held so. Thus, as far as the fairness of the procedure is concerned, I am of the considered opinion that the requirements stipulated under Rule 13 of the Code were effected to the letter. Turning to the last issue on the remedies that the parties are entitled with. It is on record that the applicant was granted all her terminal benefits after termination on gross misconduct thus, she cannot claim to be reinstated. Those benefits included: - a. One month salary in lieu of termination notice; b. Transport from Moshi to Dar es Salaam with her belongings; Page 18 of 19 c. Payment of annual leave not taken; and d. Certificate of service. In the circumstances, I accordingly uphold the Commission’s Award which found the termination was fair substantively and procedurally. Consequently the revision application collapses and is hereby dismissed with no orders as to cost this being a labour dispute. It is so ordered. * ----------------— — o ' B. R. MUTUNGI JUDGE 30/ 11/2021 Judgment read this day of 30/11/2021 in presence of the applicant. I--------------- — B. R. MUTUNGI JUDGE 30/ 11/2021 APPEAL EXPLAINED. If ---------------------------------------------- - T B. R. MUTUNGI JUDGE 30/ 11/2021 Page 19 of 19