LAKE CEMENT LTD V

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM REVISION APPLICATION NO. 23429 OF 2024 (Arising from an Award issued on 13/8/2024 by Hon. Mikidadi, A, Arbitrator, in Labour dispute No. CMA/DSM/TEM/570/2019/07/2022 at Temeke) LAKE CEMENT LTD ……………………………….……………………....….. APPLICANT

VERSUS RAMADHAN ATHUMAN BOFU ................................................ 1ST RESPONDENT JOSEPH CHILONGOLA …………………………………………….. 2ND RESPONDENT

JUDGMENT Date of Last Order: 04/11/2024 Date of Judgment: 25/11/2024 B. E. K. Mganga, J. There is no dispute between the parties that, both respondents were employed by the applicant for unspecified period contracts of employment. It is also undisputed that, the first respondent was employed as a packing plant supervisor and second respondent as a packer operator. Employment relationship between the applicants and the respondent turned into sour when the applicant charged the respondents with the misconduct of theft. Based on the said alleged misconduct, on 1st November 2019 applicant terminated employment contracts of the respondents. Respondents being dissatisfied with the said termination, filed Labour dispute No. CMA/DSM/TEM/570/2019/07/2022 before the Commission for Mediation 1 and Arbitration (CMA). On 13th August 2024, Hon. Mikidadi A, Arbitrator, having heard evidence of the parties, issued an award in favour of the respondents that termination was unfair both substantively and procedurally and ordered applicant to pay TZS 3,916,250/= to the 1st respondent and TZS 8,535,650/= to the 2nd respondent all amounting to TZS 12,451,900/= being compensation for unfair termination. The arbitrator further ordered that, respondents be issued with certificate of service. Aggrieved with the said award, applicant filled this application for revision supported by an affidavit sworn by

Amina Hamadi Siwa, the Human Resources Officer and Legal Officer. In the said affidavit, applicant raised three issues namely: - 1. Whether the commission was proper to decide that the employer failed to prove that respondents were on duty on 8th October 2019 because the employer did not tender an on – duty attendance register or surveillance camera footage in disregarding of the respondents’ admission of their presence on duty on a material day and without stating reasons of disregarding the available evidence.

2. Whether it was proper in law to terminate the services of an employee whose misconduct is still under investigation by criminal machinery before the institution of the criminal case. 2 3. Whether regulation 13 of the Employment and Labour Relations (Code of Good Practice) Rules, GN. N42 of 2007 must be followed as a checklist fashion. In opposing the application, respondents filed the notice of opposition supported by their joint counter affidavit stating that, applicant terminated their employment contract without valid reason and not following procedures. When the application was called on for hearing, Mr. George Vedasto, learned advocate, appeared and argued for and on behalf of the applicant while respondents appeared in person. Submitting in support of the 1st issue, Mr. Vedasto, learned counsel for the applicant, submited that, in the award, the arbitrator noted that applicants loaded cement in the vehicle contrary to the amount that was required to be loaded. Counsel submitted further that, respondents were on duty and loaded 31.6 tons of cement but recorded that they loaded 27.2 tons of cement. He added that, respondents loaded more cement that was offloaded on the way and that, it is police officers who found the said cement being offloaded in the way. He went on that, investigation that was conducted by police as per evidence of Luciana Rajabu Mziwanda(DW2), shows

that respondents loaded extra amount of cement. He further 3 submitted that, 2nd respondent was loading cement in Yapi Markez while 1st applicant was supervising. He also submitted that, the arbitrator erred to hold that there was a need of tendering CCTV footage and attendance registered because the said CCTV footage and attendance register cannot prove the alleged misconduct committed by the respondents. Mr. Vedatso further submitted that, according to the disciplinary hearing proceedings(exhibit D3), at applicant’s place of work, there was a system showing tonnage at the time of loading cement in the motor vehicle. He also submitted that, police officers found the motor vehicle offloading cement at the area that was not intended as a result, the motor vehicle was sent to the government weigh briged and it was discovered that it had more cement than reflected on documents. Counsel concluded that, applicant had a valid reason to terminate employment of the respondents. When probed by the court, counsel submited that, he is not sure as to whether, the said motor vehicle after being restrained by police officers, was weighed again at the weigh bridge of the applicant to verify the weight or amount of cement it carried. On the 2nd issue, Mr. Vedasto submitted that, the arbitrator erred to hold that termination was not fair procedurally allegely because, 4 termination was done

while a criminal case was pending in court. He further submitted that, in his evidence, DW1 did not admit that termination was done while criminal proceedings were pending in court. Counsel submitted that, respondents were terminated on 1st November 2019 but criminal charges were filed on 4th November 2019. He further submitted that, termination was done prior to filing criminal charges. He also submitted that, criminal investigations does not bar the employer to take disciplinary actions against the employee. Arguing the 3rd issue, counsel for the applicant submitted that, DW2 testified that according to their investigation, respondents participated in commission of the misconduct. He added that, in his evidence, 1st respondent (PW1) stated that he was terminated based on internal investigation which shows that he participated. He went on that, but the arbitrator held that there was no internal investigation. Counsel for the applicant also submitted that, rule 13 of the Employment and labour Relations (Cod e of Good Practice) Rules, GN. No. 42 of 2007 cannot be used in a checklist style. To cement on his submissions, Mr. Vedasto cited the case of Mantra Tanzania Limited v. Daniel Kisoka, Revision No. 267 of 2019, HC(unreported). With those submissions, counsel for the 5 applicant prayed that, the application be allowed because applicant had a valid reason for termination and

adhered to procedures of termination. Resisting the application, Mr. Bofu, the 1st respondent submitted that, in the award, the arbitrator did not rely on the attendance registered. He also submitted that respondents did not dispute that they were on duty on 8th October 2019. He added that, on the said date, at night time while at normal duty, they loaded the vehicle with cement and handled the report to their supervisor. He went on that, on 15th October 2019, they were called at Kigamboni police station allegedly that they committed a misconduct on 8th October 20219. He further submitted that, when they were called at the disciplinary hearing committee, they demanded to be given the internal investigation report but they were not given. First respondent further submitted that, at the applicant’s office there was a computerised weigh bridge and that, after loading cement in the motor vehicle, it has to be sealed with seals and when found that it had less weight, the vehicle has to be returned to office with its seal. He also submitted that, at CMA, applicant tendered exhibit D12, D13 and D15 showing different weights of the said motor vehicle for the weight while at applicants work, Kurani weigh brige and Yapi Markez weigh bridge 6 respectively. He went on that, this different weight at different stations leaves much to be desired. He submitted that, the motor vehicle

was weighed at Kurasini on 12th October 2019 and found that it had 47 tons of cement. He added that, the said motor vehicle was weighed at Yapi Markez on 15th October 2019 and that, the report is handwritten while that was done at applicant’s place of work is computerised. First respondent also submitted that, applicant based her termination on police investigation report and that there is no proof that the said motor vehicle was restrained at Mwasonga area. He further submitted that termination was based on rumours from police and Mwasonga area that they committed the alleged misconduct. He concluded that applicant had no valid reason for termination and prayed the application be dismissed for want of merit. On the 2nd issue relating to procedure of termination, 1st respondent submitted that, they were terminated on 1st November 2029 and on 4th November 2019 an economic case was filed against them. He further submitted that, applicant did not serve them with the investigation report. Mr. Chilongola, the 2nd respondent just concurred with submissions done by Mr. Bofu, the 1st respondent and had nothing to add. 7 In rejoinder, Mr. Vedasto, counsel for the applicant, submitted that, the weighing machine at applicant's work showed that respondents loaded 27.2 tons in the motor vehicle but when the said vehicle was weighed at Kurasini and YAPI Markez showed that it carried 31.6

tons of cement. He maintained that, the motor vehicle was found offloading cement illegally. When probed, he submitted that, the cement that was already offloaded was not returned into the vehicle to be weighed again to get the total weight. Counsel for the applicant also submitted that, the issue of seal was not raised at CMA. He added that, according to evidence, the said cement was being removed from a special compartment but it was not stated as to how. I have examined evidence of the parties in the CMA record and considered rival submissions made before this court. In dispossing this application, I will start with the legal requirement provided under section 37(1) and (2) of the Employment and Labour Relations Act [Cap. 366 R.E. 2019] that, it is unlawful for an employer to terminate employment of an employee unfairly. For termination to be fair, there must be valid reason, and employer must follow fair procedures of termination. In terms of section 39 of Cap. 366 R.E. 2019(supra), it is the duty of the employer to 8 prove that termination was fair. The issue is whether, applicant discharged that duty. It was alleged that; respondents committed the misconduct of theft. It was due to the said alleged misconduct applicant terminated employment contract of the respondents. In proving the said alleged misconduct, applicant called two witnesses namely, Amina Hamad Siwa (DW1)

the Human Resources office of the applicant and Luciana Rajabu Mziwanda(DW2) from the Tanzania Police Force. In her evidence, DW1 stated that, on 8th October 2019, respondents loaded 31.64 tons of cement in motor vehicle No. T308 DMB/T309 DMB while they were supposed to load only 27.2 tons. That, on 9th October 2019, the said motor vehicle was found by police officers of loading cement at Mwasonga area in Kigamboni. She also stated that the driver of the said motor vehicle ran away. In her evidence, DW1 did not state that respondents were amongst the persons who were found offloading cement at the said area or that were identified to be amongst the persons who were offloading cement at the said area or ran away after seeing police officers. In short, in her evidence, DW1 said nothing that linked the respondents with the alleged misconduct. In fact, while under cross examination, DW1 stated that, it is police officers who 9 proved the misconduct against the respondents. She also admitted that respondents were not served with the investigation report. The other witness who was called by the applicant to prove the misconduct against the respondents is Luciana Rajabu Mziwanda(DW2). DW2 is a police officer. In her evidence, DW2 did not state that she found the respondents committing the alleged misconduct. In fact, DW2 stated that she only received the file relating to offloading

cement at Mwasonga on 9th October 2019 proving that she was not at the scene. In her evidence, DW2 stated that in the investigation that was conducted by the Tanzania Police Force indicated that, on 8th October 2019, respondents participated in committing the alleged misconduct. DW2 did not explain as to how respondents participated in committing the alleged misconduct. DW2 tendered the initial police investigation report (exhibit D15). I have examined exhibit D15 and find that there is nothing proving how respondents committed the alleged misconduct. In exhibit D15, it was generally stated that findings shows that respondents participated in committing the alleged economic offence of offloading cement but without explaining how. The said general or blanket report, cannot be relied on to prove the alleged misconduct. 10 In addition to the foregoing, the allegation that respondents loaded more tons of cement in the aforementioned motor vehicle than it was required was not proved. It was testified by DW1 and DW2 that, after being restrained, the said motor vehicle was weighed at Kurasini and Yapi Markez weigh bridges, and found that it carried more cement than what was declared by the respondents at the time of laoding at applicant’s workplace. There is no evidence as counsel for the applicant submited that, he is not sure as to whether, the said motor vehicle after being

restrained by police officers, was weighed again at the weigh bridge of the applicant to verify the weight or amount of cement it carried. In my view, in absence of evidence to prove that the said motorvehicle was weighed in the same weighbrige that was used at applicant’s place at the time of loading, it cannot be said that applicant proved the allehation. I am of that view because, it is undisputed by the parties that, there was a system of showing tonnage at the time of loading cement in the motor vehicle at applicant’s place of work. It is also undisputed by the parties that, the said motor vehicle was weighed at different weigh machines and readings were different. Therefore, there might be a problem with readings in these three weigh machines. It is unfortunate that, after being suspected that 11 respondents loaded more cement than what was required and the said motor vehicle being restrained by police, it was not weighed again using the same machine at applicant’s place of work. Apart from the said readings that were used by the applicant to conclude that respondents committed the alleged misconduct, there is no evidence showing that respondents were amongst the persons who were arrested while offloading the said cement at unitended destination. It is not also stated in evidence of the applicant as to how respondents conspired or participated in the alleged theft of the

said cement. I therefore conclude that applicant did not prove the allegation. Respondents distanced themselves from the alleged misconduct stating that, on 8th October 2019, while at night shift at applicant’s place of work, they loaded 27.2 tons of cement in the aforementioned motor vehicle and reported to their senior. They maintained that they loaded the amount that was required, and the said motor vehicle was weighed before leaving the place. As pointed hereinabove, I agree with the respondents that there is no evidence proving that they participated or conspired with others to commit the alleged misconduct. I have taken note of the date respondents loaded cement in the said motor vehicle and the date police 12 officers found people offloading cement from the said motor vehicle. It was not stated how possible the said motor vehicle could have not reached the intended destination for all that period. I therefore conclude as pointed out hereinabove that, applicant did not prove the alleged misconduct. It was submitted by counsel for the applicant that, it was unnecessary for the applicant to tender CCTV camera footage or attendance register because the same proved nothing. I agree with those submissions because in their evidence, respondents did not deny to have loaded cement in the aforementioned motor vehicle. The dispute was on the amount loaded only. Therefore, CCTV

camera footage and or attendance register had nothing to do with the amount loaded in the said motor vehicle. Counsel submitted that, respondents were terminated on 1st November 2019 but criminal charges were filed on 4th November 2019. He further submitted that, termination was done prior to filing criminal charges. He also submitted that, criminal investigations does not bar the employer to take disciplinary actions against the employee. I agree with those submissions because, in their evidence, respondents stated that they were charged in court after termination of their employment. Police 13 invetsigation alone is not a bar to the employer from taking disciplinary measures including terminating employment of an employee. But termination was unfair procedurally, as it was admitted by DW1 in her evidence that respondents were not served with investigation report. I therefore find that, termination was also unfair procedurally though on different reason from the one advancede by the arbitrator. For the foregoing, I hereby hold that termination was unfair both susbtatntively and procedurally. I therefore uphold the CMA award and dismiss this application for want of merit. B. E. K. Mganga

JUDGE Judgment delivered on 25th November 2024 in Chambers in the presence of George Vedatso , Advocate for the Applicant on one hand and Ramadhani Bofu and Joseph Chilongola, the 1st and 2nd respondents respectively. B. E. K. Mganga

JUDGE 14