kajege masige kayage vs national microfinance bank 2021 tzhcld 298 30 july 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 163 OF 2021 BETWEEN KAJEGE MASIGE KAYAGE....................................................APPLICANT AND NATIONAL MICROFINANCE BANK.................................. RESPONDENT JUDGMENT Date of Last Order: 02/07/2021 Date of Judgment: 30/07/2021 T. Mweneqoha. The applicant filed the present application seeking revision of the decision of the Commission of Mediation and Arbitration (CMA) issued in labour dispute No. CMA/DSM/ILA/R. 108/15/597 by Hon. Igogo. M, Arbitrator on 12th March 2019. The applicant urges the court to revise and set aside the Arbitrator's award on the grounds which will be apparent hereunder. The application emanates from the following background; on 04/11/2004 the applicant was employed by the respondent as a Bank Teller at Singida Branch. Thereafter he was transferred to Dar es Salaam (Muhimbili Branch) as a Loan Officer from 2007 to 16th December, 2014 when he was terminated from the employment on the ground of gross i negligence. Aggrieved by the termination the applicant referred the dispute to the CMA claiming for unfair termination. The CMA found that, the applicant was fairly terminated both substantively and procedurally hence, his claims were dismissed. Again being dissatisfied by the CMA's findings the applicant filed the present application urging the Court to fault the Arbitrator's award on the following grounds:- i. That, the Honourable Arbitrator erred in law and fact as she failed to analyze the evidence adduced by the applicant on the reasons and procedures leading to termination, the result of which ended at faulting decision. ii. That, the Honourable Arbitrator erred in law and fact by failure to analyze and determine issues at stake. iii. That, the Honourable Arbitrator erred in law and fact by failure to properly consider the principle of 'Whistle blower' which was complained as among the accelerating factors leading to the termination of employment as there was breach of the said policy at detriment of the complainant. Arguing in support of the application the applicant's Counsel submitted that, the CMA erred in law and fact in analysing the evidence presented by witnesses. It was stated that, the applicant in his testimony 2 (as AW1) testified that his termination resulted from the act of whistle blowing against his manager who was forcing bank officers including the applicants to perform acts against bank's laid down procedures. It was further submitted that, the allegation that the applicant was issuing loans without following procedures are not true as the proper organ for approving loans at the branch level is Branch Credit Committee, hence, the applicant had no mandate to issue loans. On the issue of receiving money by M-Pesa and performing corrupt malpractices, it was submitted that, there is no evidence tendered by the respondent's witnesses to prove the alleged misconducts. Regarding the issue of termination procedures, it was submitted that, the Arbitrator did not critically analyse the evidence on record. It was argued that, if the allegations against the applicant were true he was supposed to be warned as per Rule 11 (4) (5) of the Employment and Labour Relations (Code of Good Practice) Rules, GN 42 of 2007 (herein GN 42/2007). As to the allegation of whistle blowing against his manager it was submitted that, the applicant's defence was never evaluated and taken into account and that the Arbitrator did not properly analyse the evidence on that aspect. It was further submitted that, since the applicant's place of work was Ilala his disciplinary Committee was supposed to be Dar es 3 Salaam Zone Human Resource Disciplinary Committee as per item 16.121.1.2 bullet 1 of the Human Resource Policy (exhibit D9). It was strongly submitted that, the applicant's disciplinary committee was not properly constituted. On the basis of the above submissions the applicant's Counsel urged the Court to fault the CMA's findings and reinstate the applicant to his position. Responding to the application the respondent's Counsel submitted that, the CMA correctly evaluated the evidence on record and that the applicant's submission is a mere afterthought. It was argued that, the evidence on record clearly establishes that the applicant was found guilty based on his own admission of the offences charged as decided by the CMA at page 13 and 14 of the impugned award. It was further submitted that, the evidence on record shows that the applicant admitted many of the offences charged with as evidenced by response to the allegation (exhibit D2). It was added that, the applicant admitted to sabotage the bank policies contrary to section 5.2 of MSE Loan manual (Exhibit D8). On the applicant's allegation of whistleblowing against his manager it was submitted that, the evidence on record shows that the 4 applicant was terminated for breach of bank policies and procedures hence his complaints against his manager has no merit. It was further submitted that, the applicant was also found guilty for recommending a loan of Tshs. 10,000,000/= to a fellow staff called Queen Kinyamagoha contrary to bank lending policies as testified by DW2. It was added that, the applicant admitted such misconduct as evidenced by exhibit D2. On the issue of using M-PESA account to collect money it was submitted that, the applicant admitted to have collected loan arrears from customers in cash through his M-PESA account as reflected in exhibit D2 contrary to section 10.4 of the MSE Loan product manual (exhibit D8). It was strongly submitted that, basing on the evidence on record, the applicant was properly terminated from employment. To support his submission, he referred the case of Rungwe District Council V. Daudi F. Juvenal and the case of Nickson Alex v. Plan International, Labour Revision No. 22 of 2014 (unreported). It was further argued that, termination was the proper sanction to the applicant pursuant to Rule 12 (3) (d) and 12 (4) of GN 42 of 2007. The Learned Counsel argued that, the core value of banking system is integrity, trust and confidence, however the employee at hand lacks the same. To 5 cement this submission the Learned Counsel cited range of cases which will be considered in the decision. On the issue of termination procedures it was submitted that, the respondent contended applicant's request for this Court to fault the Arbitrator's finding on the constituency of the disciplinary Committee without citing any authority, hence baseless. The respndent argued that, the Arbitrator's finding based on the decision of Shukuru Kalongo & another v. DAWASCO, Labour. Revision No. 119 of 2011 as reflected at page 15 of the impugned award. On the basis of the above submission, the Learned Counsel prayed for the application to be dismissed in total. In rejoinder, Counsel for applicant argued that, the submission by the respondent is out of context because he failed to touch the gist of the applicant's submission. He therefore reiterated his submission in chief. After reading the submissions from both sides, there are two major issues that this Court finds for determination. The issues are as follows; i) Whether applicant's termination was both procedurally and substantive fair. ii) What are the reliefs entitled to parties? 6 Termination is said to be fair if it complies to Section 37 of the Employment and Labour Relation Act, Cap 366 R.E 2019 which provides that: - "Section 37 (2) A termination of employment by an employer is unfair if the employer fails to prove- (a) that the reason for the termination is valid; (b) that the reason is a fair reason- (i) related to the employee's conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer.' Article 4 of ILO Convention also provides that: - 'Article 4: The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operation requirements of the undertaking, establishment or services.' In the case of Tanzania Revenue Authority V. Andrew Mapunda, Labour Rev. No. 104 of 2014 it was held that: - '(i) It is the established principle that for the termination of employment to be considered fair it should be based on valid reasons and fair procedure. In other words, there must be substantive fairness and procedural 7 fairness of termination of employment, Section 37(2) of the Act. (ii) I have no doubt that the intention of the legislature is to require employers to terminate employees only basing on valid reasons and not their will or whims.' The applicant was terminated for allegedly committing a misconduct that is a breached of the common law of acting in good faith and therefore becoming dishonesty and lack of code of conduct for being irresponsible and for gross negligence as stated in the termination letter. Having gone through the record I noted that it's undisputed that the applicant offered loan to some customers. It is on record that the applicant by that time was in a position of loan officer, thus it means he had a duty of supervising loans including offering loans to the customers. Closer examination of the records of this application, it is revealed in testimony of DW1 at page 16 paragraph 3 of the CMA's proceedings that the applicant failed to observe employer's rules in offering loans as he involved himself in illegal conducts including collecting money in cash through M-pesa, asking part of a loan with the promise of sharing repayment, receiving bribe before and after loans being disbursed and processing a loan of Tsh. 10, 000, 000/= without visiting or verifying the collateral as per Exhibit D-l(disciplinary charge sheet), in performing his 8 duties as evidenced by Exhibit D-l(applicant's defense) at page 4 paragraph 4. The above evidence revealed that the applicant has acted in a way contrary to Exhibit D-10 (Human Resource Policy). The applicant's acts fall under clause 7.2 of employer's policy and the proper sanctions for the same is termination. The records further reveal that the applicant failed to explain why he acted in a way, hence lacking evidence to the contrary. From the above reasoning I am of the view that the applicant committed serious misconducts. I am of the further view that applicant's allegation that he was a whistle blower and that's why he was terminated lacks merit as the same doesn't exempt him from liability established above. According to Rule 12 (3) (a) and (f) of the Employment and Labour Relations (Code of Good Practice) GN 42/2007 a misconduct is a good ground for termination. The Rule clearly provides: - 'Rule 12(3) The acts which may justify termination are- (a) gross dishonesty; (d) gross negligence.' This was so emphasized in the cases of Saganga Mussa V. Institute of Social Work, Labour Division, DSM Consolidated Labour 9 Revision No. 370 of 2013 and Institute of Social Work V. Saganga Mussa, Consolidated Labour Revision No. 430 of 2013. In the instant matter there is no doubt that the allegations against the applicant amounted to a misconduct. Therefore, the respondent had a valid reason for terminating the applicant after finding him guilty of the misconduct. Having found that the reason for termination was fair the next question is whether the respondent's termination was procedurally fair. In answering this question, the Court is revisiting the provisions of Rule 13 of the GN 42/2007 which provides for procedure to be followed for termination for misconduct. The Rule provides that: - 'Rule 13(1) The employer shall conduct an investigation to ascertain whether there are grounds for a hearing to be held.' It is clear from submission herein that procedure was conducted. What the applicant is contesting is that it was not a proper forum to entertain the matter as it was from a different department; however, the same was not proved neither the responsible authority was established in this case. Since it is undisputed that investigation was conducted and the applicant was afforded the right to be heard as per Exhibit D-l (disciplinary charge sheet), D-2 (applicant's defense against charge sheet), D-4 io (outcome of disciplinary hearing) and Exhibit D-6 (letter of appeal) as the applicant was given the right to appeal to the proper authority (Disciplinary Appeal Committee). His allegation regarding Head of Department lacks legal stance as there is evidence that the principle of fair hearing was observed as per Rule 13 of GN 42/2007. In the case of Abbas Sherally & Another v. Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 33 of2002 (unreported) it was held that; 'The right of a party to be heard before adverse action or decision is taken against such a party has been stated and emphasized by the Court in numerous decisions. That right is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of the principle of natural justice.' From the above cited case In consideration of all of the above, I am of the view that the respondent observed the procedure for termination. Hence termination was both procedurally and substantive fair. li In the result I find no reason to fault the Arbitrator's finding that the respondent exercised fair labour practice in terminating applicant and the termination was fair. Therefore, the revision application is devoid of merits and I hereby dismiss it. The Commission for Mediation and Arbitration Award is upheld. Each party to bare their own cost. It is so ordered. T. JHIWENEGOHA JUDGE 30/07/2021 12