kilombero sugar company limited vs zaituni said matajiri 2022 tzhc 15693 30 november 2022

^ ■ IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY) AT MOROGORQ LABOUR REVISION NO. 3 OF 2021 (Originating from Labour Dispute No. CMA/MOR/41/2020) BETWEEN KILOMBERO SUGAR COMPANY APPLICANT VERSUS ZAITUNl SAID MATAJIRI RESPONDENT RULING 30^ Nov, 2022 CHABA,J. This is an appiication for iabour revision filed by Kilombero Sugar Company Limited, a Limited Liabiiilties Company, the applicant herein seeking to challenge the award of the Commission for Mediation and Arbitration in a Complaint No. CMA/MOR/41/2020 (the CMA) under the provisions of section 91 (1)(a), section 91 (1)(b), 91 (2)(b)and section 94 (1)(b)(i) of the Employment and Labour Relations Act [Cap. 366 R. E, 2019],(the ELRA); Rule 24 (1), Rule 24 (2)(a), (b), (c),(d)(e) & (f) and Rule 28 (1)(c),(d)&(e) of the Labour Court Rules, G.N. No. 106 of 2007. Page 1 of 14 The application is made by way of notice of application, chamber summons and the supporting affidavit sworn by Mr. Nkariziki Mallya, the Principal Officer of the applicant. The brief facts leading to the present application for revision are that, the respondent was employed by the applicant as a clerk from 4/9/2001 until 2/12/2019 when her employment contract was terminated on the ground of misconduct. The respondent believed that, she was unfairly terminated hence referred the dispute to the CMA. Before the CMA, the respondent craved for the foilowing remedies, namely, reinstatement, twelve months compensation and severance pay. After the mediation proved fruitless, the matter was arbitrated by Mr. Kayugwa, M. the Arbitrator. At the end of arbitration proceedings, the CMA held that the applicant failed to prove that, the respondent was terminated from employment without justifiable grounds and valid reasons. As to the reliefs sought by the respondent, the CMA was satisfied that the respondent was entitled to be awarded a total of TZS. 7,416,395.9/= as twelve months compensation and severance pay. It is on the basis of the decision of the CMA, the applicant was aggrieved and therefore, on 29^^ June, 2022 she preferred the present Page 2 of 14 application for Labour Revision, which is the subject of this ruling. In essence, the applicant calls upon this Court for the following orders: - 1. That, the Honourable Court may be pleased to revise the proceedings and decision of the Commission for Mediation and Arbitration at Morogoro in Complaint No. CMA/MOR/41/2020 delivered on 10/9/2021 with the view to satisfy itself as to the legality, propriety, rationality and correctness thereof due to the reasons that: - (a) The Honourable Arbitrator erred in law and facts by holding that, the applicant has failed to prove that the respondent was terminated from employment without justifiable grounds as well as valid reasons while there was proof that the respondent committed misconduct. (b) The Honourable Arbitrator erred in law and in fact by holding that the complainant didn't commit the misconduct because she was not present when the misconduct was conducted while the nature of misconduct needed no presence but involvement. (c) That, the Honourable Arbitrator erroneously misguided himself by considering and decide on matters that was not in dispute and that the applicant was condemned unheard. Page 3 of 14 (d) That, the Honourable Arbitrator erroneously misguided himself by holding that the complainant was charged on general reason while the charge shows specific reasons committed by the respondent (e) That, the Honourable Arbitrator erroneously misguided himself by holding that the investigator must attend disciplinary hearing. 2. That, this Honourable Court be pleased to make any order or orders as It may deem just and equitable to grant. At the hearing of this application, Mr. Dastan Kaijage, learned advocate entered appearance for the applicant, whereas Mr. Kitua Kinja, learned advocate appeared for the respondent. With the parties' consensus, the application was disposed of by way of written submissions. Both parties adhered to the Court's scheduling orders. The learned counsel for applicant commenced by firstly adopting the affidavit and the reply to counter affidavit to form part of his submission. Arguing in support of the first point, Mr. Dastan Kaijage highlighted that the respondent was terminated due to gross misconduct, and it is on record that she was charged and that the evidence shows that she committed the misconduct as exhibited by Exhibits DDI and DD2. Page 4 of 14 With regard to the second point, he contended that there are plenty of evidence connecting the respondent with the offence she committed. The learned counsel further asserted that, evidence of 1=*, 2"'' and 4"^ witnesses have direct connection with the respondent involvement in committing gross misconduct. On the third ground, Mr. Kaijage submitted that, it is not true that the respondent was charged and terminated on gross misconduct and not on general reason as held by the arbitrator. He explained further that. Exhibit DD3 clearly shows that the respondent was terminated on gross misconduct, consisting of 4 acts committed by the respondent which are dishonesty, negligence, failure to follow laid down procedures and falsifying documents with intent to fraud. He stressed that, the respondent was charged on each act she committed in a most clear, unmistakeable and unambiguous terms. In conclusion, the learned counsel insisted that, the applicant followed all procedures for terminating the respondent's employment contract as per Rule 13 of G.N. No. 42 of 2007. He submitted further that, since the present application for revision is justifiable and sustainable, he therefore prayed the Court to quash and set aside the whole of proceedings and awards of the CMA and declare that the respondent's Page 5 of 14 termination of employment was fair and justifiable. He finally asked this Court to allow the applicant's application. Responding to the applicant's submission starting with the first point, Mr. Kitua Kinja, learned Counsel for the respondent submitted that, the applicant terminated the respondent on four offences which were not proved on balance of probability as unveiled by Exhibits DDI and DD2 respectively. He accentuated that, these exhibits were not tendered during disciplinary hearing of which the respondent and his representative were denied their rights to cross-examine on the said exhibits and the investigator himself who conducted the investigation. On the second ground, the learned counsel argued that, both DW.l and DW.2 failed to prove how the respondent participated in conducting misconduct, and that there is no any evidence or exhibits tendered before the CMA to prove that the respondent committed the alleged misconduct. On the third ground, Mr. Kinja highlighted that, the respondent was charged on general reasons as observed by the Arbitrator at pages 8 - 9 of the typed judgment of the CMA. To end up his submission, Mr. Kinja stated that this application for revision is unjustifiable and unsustainable, and prayed for the Court to dismiss the application and declare that the respondent was unfairly Page 6 of 14 terminated by the applicant without valid reasons and without adhering to the laid down procedures under the labour laws. In his brief rejoinder, Mr. Kaijage firstly prayed to adopt his submissions In chief and argued that, the respondent has not submitted, nor elaborated and not even countered the applicant's strong submission of the application and instead, he has raised the issue of breach of natural justice and argued the same as if it is cross revision. He stressed that, the respondent cannot be heard now complaining of the breach of natural justice in the absence of cross revision. He further stated that, the respondent is misleading the Court by complaining that, the applicant did not tender exhibits to prove while there were more than 97 bags as the records speaks for itself on this area on pages 3 and 7 of the typed award. He said, in particular the evidence of the 4^^ witness of the applicant supported the Exhibits DDI and DD2. He underlined that, the procedures were followed before the termination of the respondent's contract of employment, and that the arguments put forward by the respondent's counsel are without merits and does not challenge the revision, hence prayed for this Court to find the revision meritorious and grant the prayers sought as prayed. Page 7 of 14 From the above rival submissions, I will pose a moment to just remark that, although the applicant's affidavit shows that the intended appeal will have five points, the submission of his counsel zeroed down on three grounds only i.e., the 2"" and 3'^" ground. Thus, it is presumed that he silently abandoned the remaining two grounds. Having objectively going through the affidavit, counter affidavit, submissions made by both the learned advocates for the applicant and the respondent as well, and further upon going through the proceedings and the award made by the CMA, in my opinion, the issue for determination before this Court is whether the applicant's contract employment was terminated fairly or otherwise and to what reliefs are the parties entitled to. In determining if the applicant's termination was substantially fair, I will first answer the question, whether the applicant proved the misconduct levelled against the respondent. It is an established principle of law that employers are allowed to terminate the employment of their employees only if they have fair reason to do so and follows fair procedures. This is in accordance with Rule 8(1) of G.N. No. 42 of 2007 which articulates that: - "Rule 8 (1) - An employer may terminate the employment of an employee Ifhe: - Page 8 of 14 (a)Comp/ies with the provisions ofthe contract reiating to termination; (b) Compiles with the provisions of sections 41 to 44 of the Act concerning notice, severance pay, transport to the piace ofrecruitment and payment; (c)Foiiows a fair procedure before terminating the contract; and (d)Has a fair reason to do so as defined in section 37(2)ofthe Acd". In this application, the respondent was terminated for dishonesty that, she failed to timely report the delivery of excess DAP fertilizer bags and that she participated in the arrangement to move the bags out of the stores to the fields. It is on record that, the respondent was terminated for the following misconducts as listed in the charge sheet (Exhibit DD3): - (i) Negligently endangering life, money or property, (II) Causing loss to the company due to non adherence of laid down company procedures, (ill) Dishonesty and major breach of trust, (Iv) Falsifying or changing any document with fraudulent intent or giving fraudulent statement or information. Page 9 of 14 I had ample time to read the evidence of the parties in the CMA records to see whether there was justification for termination of employment of the respondent. The applicant called or summoned five witnesses and tendered exhibits to prove the allegations levelled against the respondent. The farm Manager, Erick Mdugo (DW.l) and respondent's immediate supervisor who was on duty on the incident date testified that, after inspection of the truck, the driver one Abubakar Namele was found in possession of extra 16 bags. Andrew Mbena (DW.2), testified to the effect that, he conducted the investigation which implicated the applicant in the commission of the alleged offence and submitted the same to the chairman of the displinary committee. On his part, Oscar Mwasaga (DW.3) who chaired the Disciplinary Hearing Committee, testified that the meetings were held and the respondent was given rights and that there was no irregularity in the procedure to amount to unfair termination. Magreth Ndogoti (DW.4), the assistant clerk, testified to the effect that, she was the one who received the bags of DAP fertilizer, in the absence of the applicant and discovered there were 16 extra bags. The last witness was Mwanaidi Kaya (DW.5), the human resources officer of the applicant's company who testified that Page 10 of 14 after the termination, the respondent received all her employments benefits. Generally, the applicant wants this Court to rely on the Investigation report (Exhibit DD2) to believe that, the respondent did not report the Incident timely as contested and conceded with other employees to steal the company's properties. In my view. If the applicant wishes this Court to rely on the Exhibit DD2, such evidence should have been corroborated with other evidence. However, such an exhibit as It stands does not prove the misconduct of dishonesty as charged. Furthermore, In the disciplinary hearing committee there was no sufficient evidence tendered to prove the misconduct In question as evidenced by the Disciplinary minutes (Exhibit DD3). Under such circumstance, I join hands with the Arbitrator that, the applicant did not tender sufficient evidence to prove the misconduct In question due to the following reasons; One, there were no evidence that on 30/9/2019 the respondent Instructed the turn boys to pack the 16 bags. Two, the evidence of (DW.l) and (DW.2) apart from showing that loss was occasioned to the applicant, their evidence fell short to prove Involvement of the respondent. On cross examination, DW.2 was recorded to have recounted: - Page 11 of 14 "...aliyepokea mzigo ni msaidizi wake, yeye aliporudi aWngiza katika kumbukumbu zake... From the above excerpt of evidence, it is clear that the respondent was not present at work on the fateful date. I am of the considered view that, there is no evidence showing that the respondent participated in the alleged fraud taking into consideration that the incidence occurred in her absence. In view of the above, I am obligated to hold that the respondent was unfairly terminated as there was no valid and justifiable reasons for termination of her contract of employment. Another important question whether the termination was procedural fair, the answer is not far to fetch. Fairness of procedure for termination is stated under rule 12 of the Code of Good Practice G.N. No. 42 of 2007. The provisions of the law, can be observed fully under ruled 13. However, Rule 13(1) provides that, there must be investigation first, to establish if there is a need for conducting a disciplinary hearing. In my considered view, this stage is vital since it puts the whole disciplinary machinery process into motion. In the present dispute, the evidence available reveals that investigation was conducted. However, it is not so open or clear, if the respondent was afforded with an opportunity to interrogate or cross- examine the said report. The respondent lamented that, the investigation Page 12 of 14 report was not tendered during the disciplinary hearing hence she was not afforded with the right to cross-examine on the same. Failure to avail the employee with the Investigation report, In my considered opinion, is tantamount to denying the respective employee with her rights to defend herself from the allegations she was facing at the material time. Based on this finding, it is safe to conclude that, the procedure for termination was not fair. In the surrounding circumstance, failure to comply with with the relevant procedure, renders termination unfair. Rule 13 of the Code of Good Practices, was therefore vital to be complied with. My observation was similarly reached by this Court in the case of Tanzania Revenue Authority Vs. Andrew Mapunda, Labour Rev. No. 104 of 2014. Thus, based on the foregoing observations, it is my holding that, the termination of the respondent's contract of employment was both substantively and procedurally unfair. Now, coming to the issue as to what reliefs are the parties entitled to, frankly speaking, I do not see any plausible reason to interfere with the decision of the Arbitrator. Suffice to say that, the decision of the Arbitrator was fair and just in as much as the circumstance of this matter is concerned. In the upshot, I uphold the CMA Award and dismiss this application in its entirety with no order as to costs. I so order. Page 13 of 14 DATED at MOROGORO this 30^ day of November, 2022. M. J.C ABA OF T/4/v o JUDGE (J T X 30/11/2022 Page 14 of 14