lucy mandara vs tanzania cigarette company limited 2021 tzhcld 62 1 april 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION PAR ES SALAAM REVISION NO. 185 OF 2020 BETWEEN LUCY MANDARA.....................................................................APPLICANT VERSUS TANZANIA CIGARETTE COMPANY LIMITED..................... RESPONDENT JUDGEMENT Date of Last Order. 09/03/2021 Date ofJudgement: 01/04/2021 Aboud, J. The applicant, LUCY MANDARA filed the present application •seeking revision of the decision of the Commission for Mediation and Arbitration (herein CMA) delivered on 01/06/2018 by Hon. M. Batenga, Arbitrator in respect of Labour Dispute No. CMA/DSM/TEM/148/2016. The application is made under section 91 (1) (a), 94 (1) (b) (i) and section 91 (2) (c) of the Employment and Labour Relations Act [CAP 366 RE 2019] (herein referred as the Act); Rule 24 (1) 24 (2) (a) (b) (c) (d) (e) (f) 24 (3) (a) (b) (c) (d) of the Labour Court Rules GN. No. 106 of 2007 (herein referred as the Labour Court Rules). i Brief facts of the dispute are, that the employment relationship between the parties started on 11/12/1979 when the applicant was employed by the respondent as a Quality Controller (Moisture Tester). Later on, the applicant was promoted to the position of Quality Supervisor in the year 1981. Again, the applicant was promoted to the position of Manager, Legal Department of the respondent until her termination on 05/09/2016. It is on record that the applicant was terminated on the ground of misconducts to wit, gross insubordination and gross negligence as reflected in the Termination letter (Exhibit TCC-7) after the Disciplinary Committee found her guilty of the mentioned misconducts. 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 substantively, however on the part of termination procedures the Arbitrator was of the view that the applicant was not afforded the right of representation. Following such finding, the Arbitrator awarded the applicant 6 months salaries as compensation for the procedurally unfair termination and a certificate of service. 2 Again, being resentful by the Arbitrator's award the applicant filed the present application for the Court to revise and set aside the Arbitrator's decision on the grounds or legal issues set forth at paragraph 13 (i-x) of the affidavit in support of the application, I quote:- (i) That the Award is illogical as it was produced by the Arbitrator's failure to appreciate the facts that the respondent's evidence did not at all match with charges levelled against the applicant hence wrongly reached a decision that the applicants' termination was substantively fair. That white the charges stated gross insubordination, the respondents' evidence was based on negligence which is a different transgression bearing a different procedure as well as sanction. (This fact is further elaborated at page 5 second paragraph from the bottom of the Award). (ii) The Honourable Arbitrator erred in law and in fact by finding the applicant guilty of a misconduct of gross insubordination in the form of refusal, whereas all the charges and evidence paraded alleged failure to act as per superiors'instructions 3 which does not only fall on the category of poor performance as opposed to gross Insubordination, but was also not sufficiently proved by the evidence presented before the Commission for Mediation andArbitration. (Hi) That the Honourable Arbitrator erroneously found the applicant guilty of misconduct without due regard and weight to the Code of Conduct of the respondent organization and the Voluntary Agreement in place guiding disciplinary matters of the respondent and its employees such as should have been in my case. (iv) That the Honourable Arbitrator arrived at a flawed, decision as she based her award on the applicants'job description, a fact that the applicant had never disputed. Further the Honourable Arbitrator improperly found that the applicants' termination was substantively fair despite the applicants' good performance that exceeded the managements' expectations. (v) That the Honourable Arbitrator reached an illogical decision by ignoring the 4 applicant's evidence that she was not given time to rectify the trademark issue with the Registrar of Trademarks. (vi) That the Honourable Arbitrator illegally fond that the applicants' termination was substantively fair without taking due regard to the fact that the alleged gross insubordination against the applicant had to be strictly proved and that the same had not been proved to the extent of costing the applicant her 37 years of employment. (vli) That the Award is illogical as it does not reflect realities between the applicants 37 years of employment form 1979, the fact that the applicant has had no disciplinary issues prior to the one that cost her employment, the fact that the applicant was not given a chance to rectify the situation on the Trademarks in question with the Registrar of Trademarks, the fact that the there was no proof of financial toss, reputational damage done to the respondent or otherwise that would justify the Arbitrator's finding that the applicant's termination was substantively lair. 5 (viii)That the award is illogical as it does not clearly state the applicant's entitlement per the Arbitrator's finding. White the award declares that the applicant is entitled to 6 months salaries, in the same tine, the award talks of 12 months salaries which is a contradiction by the Honourable Arbitrator (see page 22 of the Award). (ix) That the Arbitrator improperly reached a finding that the applicant's was denied an opportunity to have an externa! representation as it was once the case with two previous senior officers who were charged with fraud. (x) That the Honourable Arbitrator's Award is tainted with illegalities and unfairness by her failure to appreciate the fact that after 37 years of employment with the respondent, the applicant cannot just be awarded 6 months salaries and a certificate of service without proof of the charge of gross insubordination which is serious. The matter proceeded by way of written submission. Both parties were represented by Learned Counsels. Applicant enjoyed 6 the service of Mr. Ernestilla J. Bahati and Mr. Alex Mushumbusi while Mr. Pascal Kamala represented the respondent. Both parties filed their submissions as scheduled by the court. Arguing in support of the application, applicant's Counsels adopted the contents of the applicant's affidavit to form part of their submission. They submitted that, the charges raised by the respondent leading to the termination of the applicant's employment included acts of gross misconduct and insubordination. They argued that, there was no evidence presented against the applicant to prove the alleged misconducts. Regarding the misconduct of insubordination it was submitted that, there is no evidence to show that the applicant deliberately refused to perform a direct order from her supervisor. The Learned Counsels added that due to number of reasons, the applicant failed to perform in accordance with her employment standards therefore such misconduct was not proved. It was further submitted that, the charge sheet used during disciplinary hearing reads "willful refused and or failed to ....", The Learned Counsels argued that, refusing to do something and failing to do something are completely different things hence using those words interchangeably as the respondent 7 did is a pure misconception of the requirement of the law. It was submitted further that, the respondent's evidence failed to prove whether the applicant was terminated due to refusing or for failure to do certain required acts. To buttress their submission the Learned Counsels referred the Court to the cases of Multi Choice Tanzania Ltd. Vs. Felix Nyari, Rev. No. 09 of 2018 and National Microfinance Bank Vs. Victor Modest Banda, Civ. Appl. No. 29 of 2018. It was further submitted that, even if it is assumed that, the applicant was terminated for poor working performance as claimed by the respondent, such a reason was not also proved and the procedures thereto were not followed. Challenging the procedures taken by the respondent, the Learned Counsels submitted that, the Arbitrator grossly erred in law and facts by failing to take into account the respondent's Disciplinary Code of Conduct and the Voluntary Agreement in guiding disciplinary matters in relation to the Respondent's organization. They stated that the Arbitrator who issue the award ignored the fact that the respondent did not adhere to his Code and the voluntary agreement when terminating the applicant's employment. It was also submitted 8 that, the applicant was denied right to have represented during disciplinary hearing. That the respondent strictly rejected the applicant's plea of having external representative as stipulated under Rule 13 (3) of the Employment and Labour Relations (Code of Good Practice) Rules [GN. 42 of 2007] (herein refdrred as GN. 42 of 2007). The Learned Counsel further on submitted that, the Arbitrator granted the applicant compensation amounting to 6 months, however, it was later on expressed that the applicant was awarded 12 months salaries as is reflected in page 22 of the award, the anomaly which indicates the abstruseness and ambiguity of the award. The Learned Counsels urged the Court to adopt the decision in the case of Anna Mbakile Vs. DED Geita, Lab, Rev. No. 113 of 2019, so as to award the applicant financial compensation. The Learned Counsels' persuasion from the Anna Mbakile's case (supra) was a holding that, number of factors have to be considered in awarding financial compensation in labour disputes. It was also submitted that, the applicant was of 56 years of age at the time when she was terminated being left with only 4 years to the statutory retirement age, thus there was no chance for her to get another employment. Furthermore, it was submitted that, though the 9 Arbitrator has discretion in determining the amount of compensation but he/she is not empowered to award compensation of not less than 12 months according to the labour laws. Regarding the award of damages, it was submitted that, it is difficult for the applicant to quantify the mental and emotional distress that she endured after the termination. The Learned Counsels stated that, it is on' record the applicant was grieving from the loss of her husband upon termination. Therefore, she was entitled to damages for being unfairly terminated. The Learned Counsels went on to submit that, the fact that the applicant was not afforded with an opportunity to rectify the situation on the Trade Marks in question with the Registrar of Trade Marks should not result to her termination. To strengthen their submission, they cited the provision of Rule 12 (4) of GN. 42 of 2007. They added that, throughout the CMA proceedings the respondent failed to prove any financial loss and the reputational damage that was allegedly caused by the applicant. They therefore prayed for the Arbitrator's award to be revised and set aside in its entirety. Responding to the application, Mr. Kamala, the Learned Counsel for the respondent submitted among others, that the applicant's io grounds of dissatisfactions are not consistent. He stated that, during the Disciplinary Committee hearing the applicant's line of argument was that, she neither had any knowledge either explicit or implied of the alleged Trade Marks application nor had she received any order from her supervisor. He said, the applicant stated further that, the mandate and function of Trademarks portfolio and her role was to assist the supervisor upon request as the evidence is reflected at page 2 of the applicant' written defense (Exhibit TCC-7). The Learned Counsel went on to submit that, on appeal to the General Manager the applicant consistently continued to deny that she was responsible to supervise trademarks portfolio and license and make sure that they were valid according to the law. He said, the respondent produced evidence to prove that the applicant was responsible for the duties in question as provided in the Job description (exhibit TCC1) and Dialogue on Development Objectives (Exhibit TCC2) and (Exhibit TCC3). It was submitted that, during trial at the CMA the applicant changed her line of defense, that she admitted among her roles included handling of all Trademarks issues. However, in this Court the applicant came with the defense that the 11 evidence brought by the respondent was related to poor performance. It was further submitted that, the evidence brought during disciplinary proceeding and at the CMA demonstrated nothing to suggest that the applicant was charged for poor performance. The Learned Counsel added that, the applicant in her submission averred that, she was terminated for gross misconduct and insubordination while it is not true because she was terminated for gross negligence and insubordination, the misconducts which are provided under Rule 12 (3) (d) and (f) of GN. 42 of 2007. It was also submitted that, the Arbitrator was correct to confirm that the applicant was guilty of gross misconduct as she committed serious misconducts of gross negligence and gross insubordination. It was stated that, the applicant alleged she was terminated for gross insubordination without any proof while Exhibits TCC1 and TCC2 were orders of the employer; respondent to the applicant and she willful refused to obey the same. The Learned Counsel added that, the applicant's allegation that she was terminated for the offence she was not charged with is not true as the charge sheet 12 clearly stated that the applicant was charged for gross negligence and insubordination and the evidence was brought to that effect. It was further submitted that, the applicant is trying to mislead this court that she was terminated on the grounds of poor performance while it is not the position in this matter. The Learned Counsel strongly submitted that, failure of the applicant to register the trademarks created loss and damaged the respondent's property because trademark is considered as one of his properties. He went on to submit that failure by the applicant to renew export license resulted the respondent to be penalized. It was the Learned Counsel's submission that, the applicant willful refused to discharge her duties which amounted to gross negligence and insubordination thus, the respondent had valid reason to terminate her. To strengthen his submission the Learned Counsel sought support from the case of Rowena De Leon Cruz Vs. Bank of the Philippine Islands, G.R No. 173357 Feb. 13, 2013 the decision which was quoted in the case of National Microfinance Bank (NMB) Vs. David Benard Haule, Revision. No. 05 of 2013 [2014] LCCD 1. On procedural aspect it was submitted that, neither GN 42 of 2007 nor TCC Disciplinary Procedure Codes allows external 13 representatives. It was stated that, both Codes allows an employee to be accompanied by a fellow employee or a representative from a trade union therefore, the applicant was supposed to comply with that rule. It was the respondent's Counsel submission that, the applicant alleged in previous disciplinary proceedings two employees were allowed to have external representation but those employees were not brought as witnesses at the CMA to testify on the same. Furthermore, it was submitted that it was a clerical error for the Arbitrator to mention 12 months compensation instead of 6 months as ordered. The Learned Counsel was of the view that, the award of six months was reasonable and justifiable to the circumstances of the case at hand. In this aspect redress was sought from the case of Deus Wambura Vs. Mtibwa Sugar Estate Ltd., Rev. No. 03 of 2014. Also, it was submitted that, the cases cited by the applicant's Counsel are distinguishable to the circumstances of the case at hand. It was strongly further submitted that, the respondent had a valid reason to terminate the applicant and he followed all procedures thereto, hence, the applicant's claims should be dismissed. 14 In rejoinder the applicant's Counsels reiterated their submission in chief. However, they added that, the applicant was never charged with gross misconduct as found by the Arbitrator at page 19 of the award. The Learned Counsel strongly submitted that, the evidence brought was in support of the misconduct of poor performance but not the charges levelled to the applicant. He therefore prayed for the application to be allowed. After considering the rival submissions from both counsels, I find that there are only two issues to be determined by the Court. The first issue is whether the termination was substantively and procedurally fair, secondly is what reliefs are the parties entitled. Let me start by saying that I am conscious of the principle that, termination of employment at the employers will, that is the right to hire and fire is not part of the Tanzania Labour Laws. Under the labour laws of this country the employee has a legitimate right to expect that if everything remain as they are or constant he/she will be in the service thought out the contractual period. That is why the employee has remedy where such right is breached by way of special damages, compensation and reinstatement orders. In that spirit employers are required to examine the concept of unfair termination 15 on the basis of employee's conduct, capacity, compatibility and operational requirement before terminating employment of their employees. Coming back to the issues before the court, I will start with the first issue, that whether the termination was both substantively and procedurally fair. It is an established principle that, for termination of employee to be considered fair it should be based on valid reason and fair procedures. That is to say, there must be substantive fairness and procedural fairness of termination of employment. This is in accordance with section 37 of the Act which provides as follows:- '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'. (Emphasis is mine). 16 The legislature's spirit regarding the above provision is to ensure that, termination of employment in our country has to be on the basis of valid reasons and not employer's will or whims. This is the position in the- case of Maleza Security Services Ltd. Vs. Samson Andrew and Paul Makwinya [2013] LCCD 3. It is also the position of the International Labour Organization Convention (ILO) 158 of 1982 Article 4 which provides that:- 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 of services'. (Emphasis is mine). In the application at hand the applicant was terminated for two misconducts namely, gross insubordination and gross negligence as they are reflected in the termination letter (Exhibit TCC7). It is the applicant Counsels' submission that, the respondent failed to prove the misconducts levelled against the applicant. The Arbitrator in his award found that the respondent proved the allegations levied against the applicant. 17 As to the misconduct of gross insubordination the applicant Counsels argued that, there is no evidence to prove that applicant deliberately refused to obey the respondent's order. According to the respondent's evidence at the CMA and his submission in this court, is that the applicant willful refused or failed to fulfil her responsibilities through gross negligence and gross insubordination. The applicant's Counsels contention on the charges is that, they are so ambiguous because the particulars of offences reveals that she failed to do what was expected to according to the job description as well as the dialogue, which reflects the offence of poor or unsatisfactory performance and not gross negligence and gross insubordination. I consider is prudent to reproduce the relevant charges for easy of reference as follows:- '1. Willfully refused and/or failed to file with the Registrar of BRELA TCC's opposition within 60 days against the PMI application to register chevron trade mark no T/2012/287published on lEh May 2011 which trademark was similar to TCC registered Embassy product As a result of your gross negligence and Insubordination, PMI application went unopposed and ownership of the trademark was granted to PMI. 18 2. Willfully refused and/or failed to die with the Registrar of BRELA TCC's opposition within 60 days against the PMI application to register chevron trademark no. TZ/2015/1846 published on IfF February 2016. The applied trademark was similar to TCC registered Embassy product. As a result of your gross negligence and insubordination, PMI application went unopposed an act which deprived TCC the right of objection and could adversely affect superior ownership of the trademark hence loss of business. 3. Willfully refused and/or failed to file with tiie Registrar of BRELA TCC's opposition against the PMI application for registration of chevron trademark to apply to Marlboro after the Registrar publicized the application TM No. TZ/T/2013/8 on 15* March 2016. The applied trademark was similar to the trademark used and intended to be used by TCC. As a result of your gross negligence and insubordination, PMI application went unopposed and eventually ownership of the trademark was granted to PMI an act which deprived TCC the right of objection and could adversely affect superior ownership of the trademark hence loss of business. 19 4. Willfully refused and/or failed to initiate renewal process for registration of Posts man and Orange trademarks In the DR Congo which fell due for renewal on 14* June, 2016. The duty is well within the scope of your responsibilities. 5. Willfully refused and/or failed to apply and obtain the export business license for the year 2015/16 as a result your caused TCC to carry on export business for the entire year 2015/2016 within export business license. As a result TCC has been condemned to pay a tine In order to renew the license for 2016/17 business year'. This made me to ask myself, if the job description and the dialogue are the instruments which gives instruction (s) to the employer to perform his/her duties and responsibilities as per the employment contract. What are the use of those two documents, that is job description (Exhibit TCC1) and the dialogue (Exhibit TCC2 and TCC2) as they are in this matter. In my view the job description is an instrument at the work place which helps to ensure the employers expectations are established and met. Normally it establish a sold set 20 of expectations for employers to communicate to their employees. That being so, an awareness of expectation for employees also helps employers properly evaluate performance. As rightly testified by the Respondent's Director of Legal Department, Godson Moses Kiliza (DW1) and captured well in the Arbitrator's award that, a dialogue is a discussion between an employee and their immediate boss about goals to achieve which carried out annually. That was also in the testimony of DW4 on cross examination where he testified that, the dialogue is a performance appraisal which is annual. The objectives are to make sure that an employee has accomplished the agreed goals which are linked up with contract of employment that includes job description. The employers reviews the employees' dialogue yearly or in mid-year basis for the purpose of evaluation of employees' performance and ranking. This process is used for'developmental purposes by letting employees know where they stand and motivate them to improve performance in achieving their individual goals relating to work as well as institutional or organizational objectives. On record DW1 also testified that, in 2015 and 2016 years he had dialogues (Exhibit TCC2 and TCC3) with the applicant as his 21 subordinate. Therefore, it goes without saying DW1 had knowledge of the weaknesses and challenges in the performance of the applicant and her assistant DW2 before dialogue review and he evaluated, rated or ranking the applicant performance as required by the respondent policies. It is on record that, upon completion of the year 2015, DW1 who was the supervisor of the applicant gave her 3.5 as overall dialogue rating and he strongly commended for the job well- done which for easy of reference, I reproduce as follows:- ' Lucy is a solid performer and has displayed a sense of ownership of what the business expects her to do. She has constantly been supportive to the HOD during the first year to the team, going, forward she need to provide more leadership, mentoring, coaching and guidance to Goodluck and Peter in their endeavor to became better in their current positions and future carrier aspirations'. (Emphasis added). On the basis of the above discussion it is crystal clear the dialogue is normally linked with job description of the employee, and that was the position in this matter as rightly submitted by the applicant counsels that, the very strong words of DW1 in applicants' dialogue of 2015 (Exhibit TCC2) clearly reflects and prove that she 22 was a performer with excellent competencies. In my view, without hesitation I say DW1 was very satisfied with the applicant's performance in her duties and responsibilities as clearly reflected in (Exhibit TCC2), which indicates what she did in legal business support, certificates and Trade Marks objectives, where she highly achieved. Not only that but also her Manager DW1 and 2nd Reviewer, Mr. Majd Abdo, both participated in Performance Review Agreement which forms part of the Exhibit TCC2. If at all the charges that led to the applicant's termination were mismanagement of her portfolio as testified by DW4, during the dialogue with the applicant her supervisor or supervisors could have identified and found a way to rectify them before the time limit elapsed. From all what have been discussed above I am convinced that, the issue of gross negligent does not arise at all but rather if any there was unsatisfactory or poor performance on the part of the applicant. However, as I said how the superiors of applicant considered her as an excellent performer during the dialogue where they both went through the objectives and evaluated or appraised her achievement. So, what are alleged not to be done or grossly neglected to be performed? It does not make any sense to anyone, 23 unless the appraiser (DW1) did not know the objectives which the applicant was to make sure she achieved and, if there were any mischiefs he ought to have taken steps to mitigate them immediately including timely renewal of the licenses in issue and to handle properly the trademarks portfolio. And that is the reason in my considered view the applicant's supervisors have exculpated themselves by not charging the applicant for poor performance as were supposed and cushioned that supervisory weaknesses by placing the charges of gross negligence and insubordination against the applicant. It is on record, to wit the CMA proceedings and Award, that when DW1 was employed by the respondent on March, 2015 as a Director of Legal Affairs he found the Legal Department under the applicants' supervision had short comings in areas of trade marks. According to DW1 there was lack of commitment on the applicant despite the fact that the position she held was very important one. He made some effort to improve efficiency by having meetings and even budget increase of the portfolio but the situation did not change as he got surprised on 01/07/2016 when he received a report showing the respondent's trademark was successful registered by the 24 rival company (PM1). I asked myself that, if DW1 had a good management skills and systems of such department, how comes he did not discover all those anomalies and properly instruct the applicant as well as other subordinates DW2 and DW4 to mitigate them before the time limit lapsed? Those activities were among the applicant's job description as reflected in dialogues of 2015 and 2016 where she was appraised with higher achievements in both trademarks and licensing issues of the concern in this matter. I have also considered what is in Arbitrators award and proceedings, which the anomalies occurred at the respondent had chances to be remedied as testified by the applicant and not disputed by the respondent. This was also confirmed by the DW5 who testified that, there was a room to rectify them. Not only that, but also DW5 a Senior Assistant Registrar of BRELA testified that when trademark expires BRELA issue a notice to the owner, but they failed to do so in time because of problems in their registry system. So if those where the circumstances of this dispute in my view the respondent's decision to terminate the employment of the applicant would have proceeded by dialogue and reflection between the parties. This process would have given both parties in this dispute an opportunity 25 to identify the exact cause of such poor performance instead of resulting directly to an adversarial proceedings as the respondent did. As regard to the misconduct alleged to be done by the applicant in 2011, is my view that the employer cannot claim right to terminate an employee (applicant) for such misconduct if he has failed to give appropriate written warning within a reasonable period of time after he had knowledge of it. In fact the respondent failed to take such action of warning the applicant within reasonable time, hence is deemed to have waived his right to terminate the employment of the employee. Thus, I reiterate that the evidence on record does not prove the charges of gross negligence neither insubordination against the applicant as wrongly found by the Arbitrator in the challenged award. In other words the Respondent failed to meet the legal requirement to prove the allegation of gross negligence and gross insubordination to justify the applicant termination of employment on the basis of substantive fairness. This is the position in the case of Multichoice Tanzania Ltd. Vs. Felix Nyari Rev. No. 09 of 2018 at HC. Mbeya (unreported) and National Microfinance Bank Vs. Victor Modest Banda, Civil Appeal No. 29 of 2018. 26 The particulars of the offences charged, evidence on record and the whole circumstances of this matter indicates that the applicant may be could have been charged for poor performance of her duties and responsibilities, specifically the trademarks and licenses portfolios and may be if proved would have been the valid reason for the respondent to take appropriate disciplinary action as stipulated in our Labour Laws and the Respondent's Disciplinary Procedure and Code. In the event, according to the circumstances of the case, I found the employer, respondent failed to prove the charged offences against the applicant on the balance of probabilities as required in law. I therefore decide Arbitrator's award that the applicant was guilty of gross misconduct, as she committed serious misconduct of gross negligence and gross insubordination was wrongly made and is hereby faulted by the court. With regard to the procedural aspect, it is on record that, the disciplinary committee which the applicant is aggrieved was chaired by one Mr. Arbogast Mseke who was not an employee of the respondent but outsourced for that purpose. What aggrieved the applicant is the undisputed fact that the Chairman of the Committee 27 was not a Senior Management staff as provided under Rule 13 (4) of GN. 42 of 2007. The applicant wants this Court to fault the Arbitrator's award on that ground. Now the question is whether it was proper to outsource the Chairman of the Disciplinary Committee? In my view in labour matters the choice of a person to chair a disciplinary committee hearing is not an easy task to the employers. The reason behind such challenge is that, the chairperson must be or is expected to be completely neutral. The law provided the requirement of Senior Manager or Management Staff to chair the committee, also the Guidelines 4 (2) of the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedure of GN. 42 of 2007 (herein the Guidelines) which is to the effect that:- 'The chairperson of the hearing should be impartial and should not, if possible, have been involved In the issues giving rise to the hearing. In appropriate circumstances, a senior manager from a different office may serve as chairperson'. Thus, to answer whether the chairman can be outsourced, is my view the law envisaged the situation where the employer does not have the required senior manager, for instance when it is a small 28 company with no enough senior managers to handle the matter or for any other reasons. Then the employer can find someone from outside that particular office who possess the qualities to chair the committee. In this matter the argument by the applicant counsels is that, the chairman was not a senior manager of the respondent and, he had conflict of interest because being a private lawyer (advocate) was engaged to provide services and was in the payroll of the respondent. This fact was not disputed by the respondent as testified by DW2 at the CMA. I find the laws are not instructive regarding out sourcing the chairperson, so even advocate like Mr. Arbogast Mseke would have been considered to be appropriate person to chair the committee if he did not have conflict of interest as rightly submitted by the applicant counsels. Thus, I find it was not proper for him to be a chairperson of the disciplinary committee in this matter. I reiterate that the chairperson need to be completely neutral. So the question remains to be that if the internal person, that is senior manager of employers' will remain objective when facilitating such committee, because their interests may also be conflicted some may fear being victimized while other fear losing long standing 29 relationship built with their colleagues, as rightly submitted by the applicant. Therefore, in my view in this matter the respondent ought to have found the right person to be a chairperson of the disciplinary committee from different offices even outside its office so long as could be impartial. In other words someone who would have been completely neutral to avoid even the perceived biasness. From foregoing, I agree that the disciplinary committee was not properly constitute. The Court finds the Arbitrator wrongly decide at paragraph 3 of page 21 of the award when he stated the following, I quote:- 'The Commission finds no fault with the chairperson of the hearing. Just as DW4 testified, he was brought in to remove the element of bias. If Mr. Arbogast Mseke being paid by the respondent is an issue, then any other senior employee who would have chaired the hearing would not have sufficed for the complainantjust because they were in the respondent's payroll'. Here the issue is not only being in the payroll but for Mr. Arbogast Mseke was his conflict of interest and, as a private Advocate who has been providing legal service to the respondent could not be 30 impartial. It is not easy to convince the Court that he worked on proving his credibility as a neutral person under the circumstance of this case. I wish to emphasis that right to be heard is realized only if and when ones case is heard by a properly constituted forum being it a Disciplinary Hearing Committee, CMA or Court and not otherwise. Failure to do so should be considered that such right is taken away and justifies invalidation of its outcome. Coming to the issue of representation, the applicant contended that she was not given proper opportunity to be represented in the Disciplinary Committee. However, going through the records especially the charge sheet which was admitted as (Exhibit TCC7), it clearly state among others, the right for the applicant to be accompanied by the representative of her own choice from within TCC. For easy of reference I quote the relevant part of the Notice: - '... Therefore you are reminded ofyour right to be accompanied by a representative of your own choice within TCC, you have a right to call witnesses, to bring documents you intend to rely upon in your defense, to question employer's documentary evidence against you and witnesses thereof, if any'. 31 On the basis of the quoted paragraph, it goes without saying that the applicant was expressly reminded of her right to be represented and/or assisted in the disciplinary meeting. It follows therefore that the respondent complied with the procedural requirement under Rule 13 (3) of GN. No. 42/2007 read together with Guideline 4 (4) of the Guidelines as it provides:- "The employee should be informed of the right to choose another employee to present him at the hearing to provide assistance. The employee providing assistance may be a trade union representative'. The provision quoted above is also in line with paragraph 6.6.1 of the respondent's Disciplinary Procedure and Code. I have noted the applicant Counsels contention that, the respondent objected the applicant's request of having external representative as was done to some of the previously terminated senior employees. On this contention I appreciate the Arbitrators finding that, there are circumstances of some cases which need to be treated differently, and this is one of them. The applicant argued the provision of 13 (3) of GN. No. 42 of 2007 should not restrict her to have an external representative when the circumstances of the case 32 calls for, that she being in a managerial position was not a member of a trade union so was not be able to get representation from that entity. Also it was the applicant's concern that she worked with the respondent for more than 37 years where had good relationship with fellow employees in different level. However, she hesitated to engage them as representative because their interest may be conflicted and, they may fear being victimized. And for the same reason no fellow employee would have agreed willingly to represent her in the hearing. Therefore, is my view that applicant was supposed to be availed right to be represented by someone from outside the work place. Employee should be allowed to be represented by any person of her/his choice from outside the work place to ensure that there is right to be heard. It has to be noted that, right to be heard is not only to appear before the disciplinary hearing committee but also to facilitate the fair hearing in all possible manners to avoid any perception of biasness and unfair hiring. Right to be heard is a Constitutional one as per Article 13 (6) of the United Republic of Tanzania and very fundamental as is well spelt even in the African Charter on Human and People Rights, to wit Article 7 (1) (c) which states that the right to defence, including the right to be defended by counsel of his choice. 33 The court also observed that other procedures were violated, to wit the applicant was not given right to mitigation. The applicant alleged she was found guilty by the disciplinary hearing committee without putting forward the mitigation factors. This right claimed to be violated is well prescribed under Rule 13 (7) of the GN. No. 42 of 2007 read together with guideline 4 (8) of Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedures which is to the effect that:- ' Where the hearing results in the employee being found guilty of the allegation under consideration the employee shall be given the opportunity to put forward any mitigating factors before a decision is made on the sanction to be imposed'. (Emphasis is mine). In this matter it is very clear from the record the rule cited above, which is mandatory in nature was not complied with the respondent. The last issue is to what reliefs are the parties entitled to, and in deciding this I will consider that, the termination of employment contract of the applicant is found to be unfair. Under our laws the 34 general remedies for unfair termination are stipulated under section 40 of the Act. In consideration of the relevant section, in my view attention should be paid on the extent of unfairness, in other words whether the termination is unfair both substantively and procedurally. It is clear from the discussion above that, the termination of applicant was unfair both substantively and procedurally. I will also consider what is claimed by the applicant in the CMA Form No. 1, which basically sets out the relief sought by the applicant in labour disputes. Upon finding of unfair termination the remedies available are stipulated under section 40 of the Act. Which provides that:- '40 (1) if an Arbitrator or Labour Court finds a termination is unfair, the arbitrator or Court may order the employer (a) to reinstate the employee from the date the employee was terminated without loss of remuneration during the period that the employee was absent from work due to the unfair termination; or (b) to re-engage the employee on any terms that the arbitrator or Court may decide; or (c) to pay compensation to the employee of not less than twelve months' remuneration'. 35 Under the circumstances of this case, where the applicant was unfairly terminated both substantively and procedurally, in my view she should be entitled to reinstatement. However, according to what were claimed at the CMA through the applicant prayers sought in CMA Form No. 1 unfortunately the remedy of reinstatement was not among them. She prayed for the retirement benefits for 37 years of service as summaries below, I quote:- (i) Twelve months basic salary for one. year to 10 years Tshs. 91,269,420/=. (H) Eleven years and more to 37 years Tshs. 337,696,854/=. (Hi) Computation of truncated four years to compulsory retirement Tshs. 27,380,826/=. (iv) Computation of salaries for the truncated four (4) months and four (4) years to compulsory retirement Tshs. 395,500,820/=. (v) Annual salary increment at 6% per annum as custom Tshs. 35,268,733/=. (vi) Severance pay Tshs. 17,746,820/=. Which makes the grant total of Tshs. 904,863,473/=. 36 On the basis that she would have retired by the year 2020,1 find the applicant is entitled to the amount prayed in the CMA Form 1 quoted above, which was not disputed by the respondent at the CMA as per the evidence of DW6, Derick Stanley. DW6 testified on the calculations of retirement benefits as they are in CMA Form No. 1 that, are correct and are in correlation with the CBA, but applicant could not get it because was terminated on the ground of misconduct. In the result, having found that the employer had no valid reason to terminate the applicant's employment for the offences of gross misconduct, and the procedures for terminating her were not properly followed, I do not hesitate to say this application has merit. The respondent is ordered to pay the applicant the amount claimed in the CMA Form. No. 1 which its grant total is Tshs. 904,863,473/=. The applicant is also awarded the certificate of service if is not yet given to her. However, any amount of money which was paid to the applicant following her termination should be deducted accordingly. It is so ordered. 01/04/2021 37