joseph michael marisely mallya vs ngorongoro conservation area authority ncaa 2023 tzhc 19446 26 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LABOUR DIVISION) AT ARUSHA LABOUR REVISION NO. 115 OF 2021 (C/F Original CMA/ARS/ARB/205/2015) JOSEPH MICHAEL MARISELY MALLYA.................... APPLICANT VERSUS NGORONGORO CONSERVATION AREA AUTHORITY (NCAA)................................................... RESPONDENT JUDGMENT 14/06/2023 & 26/07/2023 MWASEBA, J. Aggrieved by the decision of the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/ARS/ARB/205/2015) the applicant has filed this application calling for this court to examine the records of the proceedings of the Commission in the said dispute and satisfy itself as to the correctness, legality, and/or propriety of the award. The application is supported by his affidavit and the respondent opposed the application through the counter affidavit of one Mr. Jumanne Dede Masangwa, legal service manager for the respondent. Page 1 of 14 Essentially, the applicant was an employee of the respondent. He complained that he was unfairly forced to an early retirement by the respondent in October 2015 based on unproven misconduct. Being aggrieved, the applicant filed a dispute at CMA for being forced to retire early (Force Retirement). After hearing both parties, the Commission decided that there were fair reasons for termination but the respondent did not follow proper procedures as required by the law. It ordered the respondent to pay the applicant Tshs. 184, 298, 640/= and USD 11,400. The said decision aggrieved the applicant, hence, the present revision. In his affidavit supporting the application, the counsel for the applicant raised the following legal issues: 1. The Arbitrator erred in both facts and law by holding that the Applicant retired on fair reason but unfair procedure despite a lack of evidence suggesting that there was a substantive reason for the Applicant's termination. 2. The Arbitrator erred in both facts and law by holding that the applicant was negligent on two counts resulting in his termination white there was no evidence Page 2 of 14 suggesting the Applicant's involvement in the alleged negligence. 3. That the Arbitrator erred in both facts and law by not granting the Applicant damages for defamation of character as a result of the Respondent's acts of unfairly terminating the Applicant and publication of untrue allegations in the Gazette. On hearing of this application, the applicant was represented by Mr. Matuba Nyerembe, Learned Counsel whilst the respondent was represented by Mr. Mkama Musalama, Learned State Attorney. The application was disposed of by way of written submissions which I shall consider while determining the application. Before going to the merit of the application I will determine the issue raised by the learned state attorney for the respondent that the CMA had no jurisdiction to determine the dispute as it was filed out of the prescribed time. He submitted that the applicant was terminated on 31/08/2015 and the current application was filed on 5/10/2015. Thus, the dispute was filed and determined outside of the prescribed time. On his side, Mr. Matuba replied that the issue of time limitation was already determined at CMA by Hon. Arbitrator on page 21 of the award. He Page 3 of 14 submitted further that the CMA adopted the Communication Principle under Section 4 (3) of the Contract Act, Cap 345 R.E 2002, and found the dispute was filed within the time. This is due to the fact that the termination letter was served to the applicant on 10/09/2015 without any justification for delay to serve him, thus, the issue of jurisdiction is overtaken by event. Having revisited the records of the Commission, this court noted that it is true the applicant was terminated on 31/08/2015 and the termination letter was served to the applicant on 10/09/2015 and this dispute was filed at CMA on 5/10/2015. The question here is at what time the 30 days' time started to run? Is it when the respondent wrote the termination letter or when it was served to the applicant? The learned counsel for the applicant referred this court to Section 4 (3) of the Law of Contract Act, Cap 345 R.E 2002 which provides that: " The communication of revocation is complete - a) As against the person who makes it, when it is put into a course of transmission to the person to whom it is made, to be out of the power of the person who makes it; b) As against the person to whom it is made when it comes to his knowledge. Page 4 of 14 As per the cited provision, as it was well elaborated by Hon. Arbitrator at the CMA, time started to run when the applicant received a letter and became aware of the termination which is 10/09/2015. Thus, counting from 10/09/2015 up to 5/10/2015 When the dispute was filed at CMA, the matter was still within the prescribed time. So, I concur with the counsel for the applicant that the point of jurisdiction of the CMA has no merit. Now turning to the merit of the application, I will start with the 1st legal issue where the applicant complained that it was wrong for the Hon. Arbitrator to hold that the applicant retired on fair reasons but unfair procedure while there was no evidence supporting the substantive reasons for termination. Mr. Matuba learned counsel submitted that no material evidence was tendered at the disciplinary hearing and CMA to prove the allegations contained in the 6th up to 15th counts in the charge. He averred that as the allegation is based on an investigation report (Special Audit Report) there was a need to tender the investigation report to support the allegation. Further to that the respondent publicized the suspension and termination of the applicant in the newspaper which injured the applicant's reputation and affected his application for new vacancies. His argument was supported by the case Page 5 of 14 of Tanzania Revenue Authority vs Andrew Mapunda, Revision No. 104 of 2014 (HC-Unreported). Responding to the 1st legal issue, Mr. Mkama learned state attorney stated that the trial Arbitrator was correct to hold that the reason for the retirement of the applicant was fair because the applicant was found guilty on the 6th, 7th, 11th, 13th, and 15th counts by the disciplinary hearing out of sixteen (16) charges and it was the same holding found by the Arbitrator after hearing both parties at CMA. It was his further submission that the purpose of the investigation report as per Rule 13 (1) of the Employment and Labour Relations (Code of Good Practice) Rules, GN No. 42 of 2007 was for the employer to conduct an investigation before charging the employee and to be satisfied with the allegation and not to supply the same to the employee. He submitted further that since the termination was based on misconduct the applicant was not entitled to compensation as per Section 40 (1) (a) (b) and (c) and 42 (3) of the Employment and Labour relation Act, Cap 366 R.E 2019. Thus, the applicant was terminated based on fair reasons. Coming to the 2nd legal issue, Mr. Matuba submitted that it was wrong for the Hon. Arbitrator to hold that the applicant was negligent on two Page 6 of 14 counts resulting in termination while there was no evidence supporting the same. He argued that, as it was submitted on the 1st legal issue, no proof was submitted with regard to the allegation against the applicant as he did not act negligently in supervising the respondents work. He argued further that the applicant testified that those who are liable for all the offences were Fredy Safiel Manongi (DW1) and Asantaeli Melita as the alleged allegation falls on their line of duties, but he was found guilty vicariously. It was his further submission that it was wrong for the applicant to be liable alone for the offence committed by the subordinate employees. So, for lack of fairness reasons, the Arbitrator was required to award 12 months' compensation to the applicant. His argument was supported by the case of Abel Gama Makwasa vs E. Awadh & Co. Ltd, Labour Revision No. 506 of 2021 (Unreported). On the last legal issue, the applicant complained that it was wrong for the applicant not to awarded damages for defamation of character despite of publication of untrue allegations. Supporting this legal issue, Mr. Matuba argued that the applicant was defamed in the gazette as evidenced by Exh. P24 regarding the suspension and termination. So, his character and reputation were injured together with his family in the society. He argued further that the applicant also pleaded the issue of defamation under page 5 of the CMA Fl, however the same was not considered by the CMA. Thus, he prays for this court to award compensation to the applicant. His arguments were cemented with the case of TMJ Hospital Ltd vs Pili Mbena, Revision No. 208 of 2019 (Unreported). They prayed for the application to be allowed, to vary the decision of CMA and determine the issue of compensation, and award more than 12 months' compensation as prayed in CMA Fl. Opposing this legal issue, Mr. Mkama submitted that this issue was not raised at CMA hence it cannot be determined at this stage as the submission is not evidence. He submitted further that as the reasons for termination were fair then the information published was true and the applicant cannot claim for compensation of defamation. More to that, in defamation cases, the burden of proof shifts to the person who alleges it, and the applicant failed to discharge that duty as the news was not maliciously published against the applicant. In his rejoinder, apart from reiterating what has already been submitted in submission in chief, Mr. Matuba argued that the current application was filed by the applicant to challenge an award of the CMA, thus, if the respondent also intends to challenge an award of the CMA, he ought to Page 8 of 14 have filed another Application for revision not to raise his grounds in his reply to what was submitted by the applicant. He distinguished all the cases cited by the counsel for the respondent because they are irrelevant in this matter. He maintained his prayer for the revision to be allowed. After reading the application, parties' submissions together with the record from the CMA the main issue to be determined by this court is whether the decision of Hon. Arbitrator was justifiable in law. Starting with the 1st and 2nd legal issues, the applicant complained that it was wrong for the trial Arbitrator to hold that the termination was on fair reasons while no investigation report was submitted to prove that the investigation was conducted. On his side, the learned state attorney for the respondent submitted that the reason for early retirement of the applicant was fair and it was not mandatory to issue an investigation report to the applicant as alleged. He was of the view that the purpose of the investigation report was to help the employer to frame charges and not to supply it to the employee. Regarding the complain of fairness of the reason for termination, this court supports the holding of the CMA that the applicant was terminated based on fair reasons. Having revisited the records, it was the holding of Page 9 of 14 CMA that the applicant as a director was vicariously liable based on the 6th and 15th counts. On the 6th count, the CMA found that as the head of department he was supposed to supervise his subordinate and supervise all the projects which fall under his department. The records show that there was a camp (Masek Camp) that proceeded unregistered under the supervision of Asantanaeli Melita his subordinate, and there was a proof of payment made to the applicant's department. However, the said money was not retrieved in the official documents and the camp was not in the registered camps although it was operating. This act proves his negligence as he was aware of the alleged unregistered camp but he did not take any action against his subordinates. Thus, he cannot avoid his liability on this count. Looking at the 15th count, it was alleged that the applicant failed to supervise the construction of the Crater Ascent Road which falls under his department. The applicant's department was supposed to supervise the project and advise the respondent on the action to be taken in constructing the said road. It is on record that the constructor was given a tender by his department without complying with the procurement procedures and thereby he caused loss to the respondent. Thus, the applicant as the head of the department was liable as he ought to supervise all the projects in his department according to the law. In addition to that, the applicant being the head of the department, was supposed to supervise his subordinates to make sure no negligence is done in order to prevent loss on the part of the respondent. That being said, I concur with the trial commission that the applicant was fairly terminated. Thus, the applicant was not entitled to the compensation of 12 months as he retired based on fair reasons. Coming to the issue of the investigation report not being supplied to the applicant, I am aware that Rule 13 (1) of Employment and Labour Relations (Code of Good Practice) Rules requires an employer to conduct investigation to ascertain whether there are grounds for a hearing to be made against the employee. Further to that, the report needs to be shared with the employee too. Thus, failure to submit an investigation report during the disciplinary hearing and to CMA proved that the applicant was unfairly terminated in terms of procedures. The Court of Appeal in the case of Paschal Bandiho vs Arusha Urban Water Supply & Sewerage Authority (AUWASA), Civil Appeal no 4 of 2020 quoted with approval the case of Severo Mutegeki and Another vs Mamlaka ya Maji Safi na Usafi wa Mazingira Dodoma (DUWASA), Civil Appeal No. 343 of 2019 stated that: i Page 11 of 14 "In terms of sub-rule (1) what entails an investigation to ascertain whether there are grounds for the hearing includes as well, exhausting the prescribed internal measures in the Employment Institution regulating the operational; aspects which are binding on both the employees and employer! See also the case of Kiboberry Limited vs John Van Der Voort, Civil Appeal No. 248 of 2021 (HC - reported at Tanzlii). Therefore, being duly guided by the above position, failure to issue an investigation report to the applicant and not being tendered during the disciplinary hearing amounted to a breach of termination procedures. So, I concur with the trial Commission that there was unprocedural irregularities in terminating the applicant that is the reason the applicant was awarded Tshs. 184,298,640/= and USD 11,400 being the costs for compensation, severance, golden handshake and the amount which was unlawfully deducted to his retirement payment. Therefore the 1st and 2nd issues have no merit. On the last issue of compensation for defamation, Mr. Matuba alleged that publishing the suspension and termination on the gazette injured the reputation of the applicant and his family, thus, he is entitled to compensation. On his side, Mr. Mkama submitted that as long as the Page 12 of 14 reason for termination was fair, no act of defamation was done to the applicant as the respondent did not do it maliciously. Further to that, as it was not one of the issues at CMA the same cannot be determined at this stage. Having revisited the records of the Commission this court noted that the issue of defamation although the applicant alleged it was pleaded under CMA Fl, the same was not one of the issues raised for determination at CMA. Hence, as it was well submitted by Mr. Mkama the same cannot be raised at this stage. Further to that, with regard to the proceedings involving defamation, Rule 3 of the Media Service (Defamation Proceedings) Rule, GN No. 108 of 2019, defines the word court as follows: " Court- means the High Court, courts of resident magistrate or district court". This being the legal position, the adjudicating bodies which are vested with jurisdiction to determine defamation matters are the High court, Resident Magistrate Court and the District Court. Thus, the CMA has no jurisdiction to determine defamation cases, For the said reasons, court finds no merit on the 3rd legal issue. Page 13 of 14 Therefore, based on the reasons adduced herein, this court finds no need to disturb the award of the CMA. Thus, the application is hereby dismissed for want of merit. This being a labour dispute, each party will bear its own costs. It is so ordered. DATED at ARUSHA this 26th day of July, 2023. Page 14 of 14