mahmudu mohamed mbilu vs js khambhaita ltd 2023 tzhc 21486 29 september 2023

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY HIGH COURT OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI LABOUR REVISION NO.16 OF 2022 (C/F Labour Dispute No. CMA/KLM/MOS/ARB/61/2021) MAHAMUDU MOHAMED MBILU.……………………………… APPLICANT VERSUS J.S KHAMBHAITA LTD………………………………….………RESPONDENT JUDGEMENT Date of Last Order: 22.08.2023 Date of Judgment: 29.09.2023 MONGELLA, J. The applicant has moved this court vide Section 91(1) (a), (2) (b) and (c) of the Employment and Labour Relations Act [Cap 366 R.E 2019] (ELRA) and Rule 24(1); (2), (a), (b), (c) , (d), (e), (f); 3 (a), (b), (c) (d) and; 28 (1), (c), (d) and (e) of the Labour Court Rules, 2007, GN No. 106 of 2007 seeking for this court to examine and revise the record of the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/KLM/MOS/ARB/61/2021 to satisfy itself on its correctness, legality or propriety; and to quash and set aside the award of the CMA in the said dispute delivered by the trial Arbitrator on 25.05.2022; and for this court to grant any other reliefs or orders it may deem fit and just. Page 1 of 21 The application is supported by the affidavit of one, David Mdemu, a trade union official who represented the applicant before the CMA. The respondent opposed this application vide counter affidavit sworn by one Paul Manyara Kileo, her Human Resource Officer. The brief facts of this application are: the applicant was employed by the respondent on 01.01.2011 as a driver and was terminated from employment on 01.09.2022 for reason of absconding from work. He referred the dispute to the CMA claiming his termination was substantively and procedurally unfair. He also sought for terminal benefits including; payment of 22 working days; payment of a month’s salary in lieu of notice, severance pay and compensation worth twenty-four months’ salary. To prove his claim, he gave his testimony as PW1 and tendered his contract of employment, which was admitted as Exhibit M-1, and his letter of termination from employment by the respondent, which was admitted as Exhibit M-2. He also called one witness PW2- Saidi Msiagi Mhando in support of his claims. The respondent, in an attempt to prove that the termination of the applicant was fair, furnished one witness “DW1” one, Mehil Sampath, who tendered 5 exhibits which were admitted as part of his evidence. The exhibits were: summons to the applicant to attend disciplinary hearing – Exhibit J-1; Minutes of the Disciplinary Hearing meeting – Exhibit – J-2; letter of termination from Page 2 of 21 employment- Exhibit J-3; Affidavit of Paul M. Kileo on errors made in termination letter – Exhibit J-4 and; Police Loss Report- Exhibit J-5. After hearing both parties, The CMA found the applicant’s termination fair both substantively and procedurally and dismissed the same, hence his grievance. The statement of the issue as drawn from the affidavit attached herein is to the effect that: “Whether the arbitrator immensely erred in law for failing reasonably to analyze and assess the applicant’s evidence in comparison with the respondent’s evidence and erroneously misdirected herself on reaching decision in favour of the respondent.” The application was argued by written submissions and both parties complied with the fixed schedule. The applicant was represented by Mr. Lucas Nyagawa, learned advocate while the respondent was unrepresented. Arguing on the issue for determination in this matter, Mr. Nyagawa averred that the trial Arbitrator failed to analyze the evidence before her. He contended that it was the duty of the employer to prove that the termination was substantively and procedurally fair as enshrined under section 39 of the ELRA and Rule 9(3) of the Employment and Labour Relations (Code of Conduct and Good Practice) GN. No. 42 of 2007 (the Code of Conduct and Good Practice Rules). Page 3 of 21 Arguing that the termination was procedurally unfair, Mr. Nyagawa averred that prior to the employee being called for disciplinary hearing, he should be informed of the allegation against him and that should be done through a formal charge, failure of which renders the termination procedurally unfair. He fortified his averment with the case of Dew Drop Co. Ltd vs. Ibrahim Simwanza (Civil Appeal 244 of 2020) [2021] TZCA 525 TANZLII and; Magreth Method Mapunda vs. National Museums of Tanzania (Civil Appeal 251 of 2019) [2022] TZCA 698 TANZLII. He maintained that there was no evidence that the respondent served the applicant with a formal charge and the same is proved by DW1 who testified to have only served the applicant, through a local government official, with notice to attend the disciplinary hearing. He had the stance that the respondent ought to have observed the procedure even though the applicant could not be reached. In the premises, he found the CMA to have erred in declaring that procedures were observed while the respondent failed to serve the applicant with a formal charge. Mr. Nyagawa further challenged that the applicant was never informed of the disciplinary hearing which was to be held on 08.09.2021 vide a letter dated 06.09.2021. He contended that, as alleged by DW1, the respondent believed that the said letter was served to the applicant as they served the letter through a local government official who stamped the same as evidence of service. Page 4 of 21 However, he said, the applicant denied being notified and served with notice for disciplinary hearing. That, the applicant also challenged exhibit J-1, that was claimed to have been stamped as proof of service, in the sense that the same was not stamped and the respondent did not call the local government official to prove that he had served the applicant. He was of view that the respondent was bound to prove service of notice for disciplinary hearing but failed to discharge her burden. He further averred that the respondent’s failure to call the local government official who was the key witness required the CMA to draw an adverse inference on the same as held in Augustine Ayishashe vs. Sabiah Omar Juma (Civil Appeal No. 353 of 2019) [2023] TZCA 107 TANZLII. He purported that the failure to serve the applicant notice of disciplinary hearing was contrary to Rule 13(2) of the Code of Conduct and Good Practice Rules as the applicant was unaware of the disciplinary hearing. He added that the Arbitrator erred in holding that the applicant was served with notice for hearing, but waived his right to attend the meeting. He had the view that the Hon. Arbitrator relied on assumption and extraneous matters that since the applicant was called to collect the letter for his termination, he was also called to collect the notice for disciplinary hearing. Page 5 of 21 Mr. Nyagawa averred further that the respondent should not have proceeded with the disciplinary hearing before ascertaining proof of service of the notice of disciplinary hearing to the applicant. He contended that continuing with the hearing in his absence means the applicant was condemned unheard which vitiates the whole procedure for his termination and renders the same procedurally unfair. He supported his stance with the case of Mohamed R. Mwenda and 8 Others vs. Ultimate Security, Revision No, 440/2013, High Court Labour Division referred in Nickson Alex vs. Plan International, Revision No. 22 of 2014, High Court Labour Revision at Mwanza (unreported). On the substantive aspect of the termination, Mr. Nyagawa was of view that the abscondment of the applicant for more than five days was not proved at the CMA and at the disciplinary hearing which was conducted in the applicant’s absence. He further faulted the allegations by the respondent that the evidence to prove the absenteeism of the applicant was lost since 20.09.2021 as proved by the loss report (Exhibit J-5). He was of view that even if it was true that the same was lost, there is no proof that there was evidence produced during the hearing to prove the applicant’s absenteeism from work as minutes of the disciplinary hearing (exhibit J-2) did not show that such prof was produced. That, even in his absence, the evidence substantiating the charges against the applicant ought to have been presented and a verdict reached thereafter. In support of his contention, he referred the decision in Page 6 of 21 Kiboberry Limited vs. John van der Voort (Civil Appeal 248 of 2021) [2022] TZCA 620 TANZLII. Mr. Nyagawa further averred that the respondent failed to prove abscondment as reason for the applicant’s termination. He was of view that since the attendance book was reported missing on 05.10.2021 sixteen days after the alleged loss, and reported only when the applicant had filed his complaint to the CMA and the first summons issued, then the respondent clearly tried to fabricate the evidence to use against the applicant. He further averred that the applicant’s evidence that he was at work as testified by PW2 and evident in minutes (Exhibit J2) and that there had not been an attendance register since COVID 19 season; further proves that his evidence held more weight than that of the respondent, a fact which the trial Arbitrator failed to note since she did not properly analyze the evidence before her. He finalized by holding that the respondent failed to prove that the termination of the applicant was fair both substantively and procedurally as required under section 37(2) of the ELRA and Rule 8(1) (d) of the Code of Conduct and Good Practice Rules. He thus prayed for this court to allow the revision and revise and quash the CMA award. Submitting in reply, the respondent contended that the applicant was terminated from employment due to absenteeism. That, despite knowing that the applicant’s abscondment from work is Page 7 of 21 sufficient reason to terminate the applicant, she still made efforts to locate the applicant in vain, which is why she took the legal measures to terminate the applicant by serving the summons to the local authority, but that was also unfruitful and finally they held the disciplinary hearing and terminated the applicant for absenteeism. On whether the applicant was terminated in fair procedure; the respondent averred that the law is quite clear that the employer may terminate the employee if he has valid reason and complies with proper procedure as stated under Section 37(2) of the ELRA and Rule 8(1) of the Code of Conduct and good Practice Rules; and as also held in Stanbic Bank Tanzania Ltd. vs. Peter Aloyce (Revision Application 4 of 2020) [2020] TZHC 3432 TANZLII and in Director General, Regional Manager vs. Machumu Mkama Revision No. 38 of 2014 HC (unreported). She averred that the applicant’s termination was for a fair reason as absenteeism from work for more than five days is provided under paragraph 9 of the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedures. She submitted further that PW1 proved before the CMA that the applicant was absent from work for 5 days, but the attendance book was lost as proved by the loss report and therefore the same could not be produced during hearing at the CMA. She refuted the allegations that the same was lost after hearing averring that the evidence was presented during hearing and the same was lost after the hearing. As to the attendance register not being tendered at the disciplinary hearing, she averred that the same was Page 8 of 21 farfetched since neither the applicant nor his representative attended the said hearing to prove that the same was not done. He averred that there was enough evidence tendered at the hearing to prove the applicant’s absenteeism from work. She further argued that the applicant could not prove his assertion that he was at work. Challenging the applicant’s evidence, she contended that his evidence contradicted itself since he stated that he was called by the ward executive officer to receive his letter which means he was not at work at the time. The respondent further contended that despite the absence of the attendance register, still the oral evidence of DW1, which the applicant has not advanced any reasons to discredit the same, clearly shows that the applicant was not at the work place. She found the act of the applicant challenging the loss report while he had not objected the same being an afterthought. The respondent maintained that she had proved the applicant’s absence at the work place on balance of probabilities as set under Rule 9(3) of the Code of Conduct and Good Practice Rules. That, her evidence held more weight than that of the applicant and thus the CMA justly found the applicant’s termination fair. On procedural fairness, the respondent maintained that the applicant’s whereabout were unknown which is why she opted for a different approach that is, terminating the employee without notice as he materially breached his contract as set under Rule 8(2) Page 9 of 21 (d) of the Code of Conduct and Good Practice Rules. She averred that due to the applicant’s absence, some of the procedures could not be followed, including serving him with a formal charge. However, she still made efforts to summon the applicant to attend the disciplinary hearing by serving him through a local government official and later also served him his termination letter in the same manner. That, she observed the basics of fair hearing as directed in the case of Tanzania Road Haulage (1980) Ltd. vs. Mohamed Masoud Abdallah & 46 Others (Misc. Land Application 141 of 2023) [2023] TZHC 16860 TANZLII. As to her failure to call the Local government official who was a material witness; she averred that there is no specific number of witnesses required to prove a fact. Referring to the testimony of DW1, she stated that DW1testified to have served the summons to the applicant. She contended that the applicant’s admission to have received the termination letter through a local government official sufficed to prove that there was no need to call the said witness since the summons was stamped by such witness. The respondent finalized her submissions by averring that the trial Arbitrator properly analyzed the evidence before her and found the applicant’s termination fair and just. She prayed for this court to dismiss the application and uphold the findings of the CMA. Page 10 of 21 Rejoining, Mr. Nyagawa reiterated that the respondent failed to prove that the applicant absconded from work in both the disciplinary hearing and at the CMA by failing to produce the attendance book. He maintained that the attendance register was not missing during the disciplinary hearing, hence ought to have been produced at the disciplinary hearing. That, Exhibit J-2, the evidence of what transpired in the disciplinary hearing, shows that the evidence of the applicant’s absenteeism was not produced as evidence at the disciplinary hearing. He was of the view that the absence of the applicant and his representative was immaterial. That, what was of importance was the presentation of the attendance book at the hearing which was not done. He further contented that the applicant’s presence at the place of work was not mere words but oral evidence corroborated by PW2 and the same was not challenged by the respondent. In that respect, he considered the evidence of the applicant holding more weight than that of the respondent. While Mr. Nyagawa admitted that the circumstances made serving the employee with a formal charge difficult, he contended that the respondent still had the option to serve the formal charge in the same manner he finally served the termination letter after the disciplinary hearing. He further contended that there were no contradictions in the applicant’s evidence. He argued that the termination letter and the notice to attend the disciplinary hearing are different documents and thus could not be served at once. That, if the Page 11 of 21 applicant had denied being served with notice of disciplinary hearing, then the respondent had a duty to prove that he was served with said notice since he was the one who alleged the same. I have considered the submissions of both parties, the CMA award and the record. The applicant faults the award by the trial Arbitrator on allegations that she failed to properly evaluate the evidence before her and thus found the termination both procedurally and substantively fair. In resolving the contention in this application, I will address the main question as to whether the termination was fair procedurally and substantively. It is well provided that for termination to be considered fair, it must be done for a valid reason and the procedures must have been followed. This is well provided under section 37 (2) the ELRA which states; “(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)N/A (c) that the employment was terminated in accordance with a fair procedure.” It is also settled that it is the duty of the employer to prove that the termination was done fairly. This is stated under section 39 of ELRA, as hereunder; Page 12 of 21 “39. In any proceedings concerning unfair termination of an employee by an employer, the employer shall prove that the termination is fair. It is also settled that abscondment is one of the misconducts that warrant termination of an employee. The same is well provided under paragraph 9 (1) of the Guidelines for Disciplinary Incapacity and Incompatibility Policy and Procedures found in the Code of Conduct and Good Practice Rules, which states: “Absence from work without permission or without acceptable reason for more than five working days” I am alive at the decision of this court in JC Gear Exprocom Ab (T) Ltd. vs. Jumbe Karala and Another (Labour Revision 4 of 2019) [2021] TZHC 5377 TANZLII, whereby my learned brother Tiganga J, substantiated necessary elements of the offence of abscondment. He stated: “However, for the same to be the ground of termination, it must firstly be established, that the employee actually absented himself from workplace, secondly that he gave no acceptable reasons for his absence, thirdly, that after establishing absenteeism as the ground of termination, the termination must be in accordance with the procedures, which starts by serving the employee the charge sheet through his known address or residence, containing the accusation of absenteeism.” Page 13 of 21 On substantive aspect of the termination, the applicant has averred that the respondent failed to prove that he had absconded from work since he could not produce the attendance register. He further asserted that the loss report to that effect was sought by the respondent after he had instituted his complaint before the CMA thereby creating doubts that it was possibly generated only to be used as evidence. Going through the record, I found that apart from the evidence of DW1, there is no enough evidence to prove that the applicant did abscond from work. The respondent failed to prove the work attendance register on the ground that the same was lost. She presented a loss report to that effect. However, I am of the view that the loss report on the mentioned attendance register, which could have greatly proved the absence of the applicant from work, is not of any help to the respondent’s case. This is because, the same is so doubtful rendering the respondent’s evidential value diminished. I am of that view on the ground that the register was reported missing on 20.09.2021, but the officer of police responsible signed the document on 05.10.2021 and there was no any explanation to that effect. In practice, loss reports are issued on the same day when they are sought and thus the date the same was signed is the date the report was made. Page 14 of 21 For being signed on 05.10.2021, it shows that the said document was reported missing on 05.10.2021 almost 14 days after the respondent had been served with summons of the complaint before the CMA, which was filed on 22.09.2021. This shows that the report was made as an afterthought and substantiates Mr. Nyagawa’s arguments. The respondent failed to prove the applicant’s alleged absenteeism from work. It is further strange that the respondent did not make any further efforts to call his other employees to prove the absence of the applicant at the work place for the mentioned dates from 01.09.2021 to 06.09.2021 when he was allegedly served the summons to attend the disciplinary hearing. In the circumstances and in the absence of the attendance register, it becomes hard to refute the applicant’s claims that he was at the work place on the dates the respondent alleges that he absconded. The applicant claimed to have been at work until 17.09.2021 when he received the said letter of termination. In considering the substantive reason for his termination, I took the trouble go through the 2021 Calendar to observe the days the applicant was alleged to have been absent from work. The Calendar shows that 01.09.2021 was Wednesday, 02.09.2021 Thursday, 03.09.2021 Friday, 04.09.2021 Saturday, 05.09.2021 Sunday, 06.09.2021 Monday. Exhibit J-1. A letter summoning the applicant to appear to work to attend disciplinary hearing on 08.09.2021 required the applicant to produce evidence and Page 15 of 21 reasons as to why he had failed to attend work for 5 consecutive days. Part of the letter reads: “Kwa barua hii uongozi unakutaka uje kuhudhuria kikao hicho na kujieleza sababu kuu ya kutofika kazini kwako kwa siku tano mfululizo za kazi na pia uje na vielelezo vitakavyo tosheleza kueleza sababu za kutofika kazini kama ilivyotajwa hapo juu.” As I have reproduced above, both 04.09.2021 and 05.09.2021 were weekends this means the two days were not to be computed in the 5 days. There was also no explanation that the applicant was engaged even during weekends. Thus, on 06.09.2021 when the applicant was allegedly served with Exhibit J-1, he was, if any, absent for 4 days and not 5 days as alleged. In fact, the 4th day had not yet passed. In consideration of these dates, I am of the view that abscondment as a reason for termination was substantively unfairly charged against the applicant. Addressing a similar situation where the Labour Court and CMA failed to properly compute the days in case of abscondment and finally finding the same did not amount to five days, the Court of Appeal in Costantine Victor John vs. Muhimbili National Hospital (Civil Application 188 of 2021) [2022] TZCA 646 TANZLII held: “In this regard, being guided by the above cited authority and having in mind rule 9 item 1 of the Code of Good Practice Rules, we are of the considered view that the applicant's Page 16 of 21 employment ought not to have been terminated since his absence from work without permission or without acceptable reason was not more than five working days. We are, therefore, in agreement with Mr. Mabula that had the Court been availed with this information, it would not have arrived at that conclusion.” As to the procedural aspect of the termination; Mr. Nyagawa averred that the procedures were not observed. He faulted the same on failure of the respondent to serve the applicant with a formal charge and notice of disciplinary hearing. On the other hand, the respondent maintains that the procedure was followed as the applicant was served with notice of the disciplinary hearing. As to the charge not being served, she was of view that the applicant’s unavailability rendered other procedures hard to comply with, including service of a formal charge. I am also of the finding that the procedures for termination were not observed. First, a formal charge was not issued to the applicant which was a serious omission as stated in Magret Method Mapunda vs. National Museums of Tanzania (supra) and Dew Drop Co. Ltd. vs. Ibrahim Simwanza (supra). In the later the Court of Appeal held: “Turning to the issue of whether the procedure was fair, this should not detain us much because after we have revisited the record of appeal, we failed to see any evidence suggesting that the respondent was formally charged. Failure to serve him with a formal charge was a gross violation of Rule 13 (2) of Page 17 of 21 the Employment and Labour Relations (Code of Good Conduct) Rules, 2007, Government Notice No. 42 of 2007 hence making the termination of the respondent procedurally unfair (see the case of Jimson Security Service vs. Joseph Mdegele, Civil Appeal No. 152 of 2019 (unreported)). Since the procedure in terminating the respondent was flawed, we find that the termination of the respondent was unfair.” Further, I am of the considered view that Exhibit J-1 summoning him to attend the disciplinary hearing, which is not a formal charge, was never served nor received by the applicant. This letter was alleged to have been served through a Ward Executive Officer (WEO) as purportedly evidenced through Exhibit J-3, the termination letter. However, while the termination letter which was duly received by the applicant had a stamp of the WEO and was duly signed and marked received; Exhibit J-1 had no stamp, nor signature of the ward executive officer. The copy of the same was also not addressed to the WEO. The same further appears to have a reference number whereas the termination letter had none. In the premises, without proof of service, I can reasonably conclude that the disciplinary hearing, if any, was a nullity as the applicant was not accorded the right to be heard. It is well settled in our jurisdiction that every person has the right to be heard. See: Danny Shasha vs. Samson Masoro & Others (Civil Appeal 298 of 2020) [2021] TZCA 653 TANZLII whereby the Court of Appeal stated: Page 18 of 21 “The Court has emphasized time and again that a denial of the right to be heard in any proceedings would vitiate the proceedings. Further, it is also an abrogation of the constitutional guarantee of the basic right to be heard as enshrined under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977. In Mbeya - Rukwa Auto Parts & Transport Limited vs. Jestina George Mwakyoma, Civil Appeal No. 45 of 2000 (unreported), the Court emphasized that: "In this country natural justice is not merely a principle of common law; it has become a fundamental constitutional right. Article 13 (6) (a) includes the right to be heard amongst the attributes of equality before the law and declares in part: (a) Wakati haki na wajibu wa mtu ye yote vinahitaji kufanyiwa uamuzi na Mahakama au chombo kinginecho kinachohusika, basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikilizwa kwa ukamilifu." Further, even if the applicant was duly served with the alleged notice for hearing, the hearing that proceeded ex parte under Rule 13 (6) of the Code of Conduct and Good Practice Rules, should have shown the necessary evidence proving the applicant’s unauthorized and unreasonable absence from workplace. However, as seen in the minutes of the alleged meeting “Exhibit J-2,” it is clear that no such thing was done. Instead of a proper hearing, it appears the disciplinary committee briefly Page 19 of 21 held a meeting to decide the applicant’s fate. The minutes thereof were then forwarded to the employer who simply wrote his views in their recommendation and had the applicant dismissed. This was contrary to guidance provided in Kiboberry Limited vs. John van der Voort (supra) whereby the Court of Appeal stated: “The above stipulation is couched in permissive terms. It gives the employer two options where the employee unreasonably refuses to attend the hearing after being duly served with the notice. The first option is proceeding with the disciplinary hearing in the absence of the employee with the evidence substantiating the charges against the employee being presented and a verdict reached. The second possibility is to adjourn the hearing. We are firmly of the view that the above stipulation does not give the employer a carte blanche to terminate the defaulting employee without conducting a hearing.” In the foregoing, it is thus evident that the applicant’s termination was both procedurally and substantively unfair. I therefore quash and set aside the Award of the CMA. It is well settled that substantive unfairness attracts a heavier penalty than procedural unfairness. See: Pangea Minerals Ltd. vs. Gwandu Majali (Civil Appeal 504 of 2020) [2021] TZCA 414 TANZLII. In the case at hand, the applicant’s termination was both procedurally and substantively unfair. In that regard, the applicant is herein entitled to the following reliefs: (1) payments of T.shs. 200,000/- as one month salary in lieu of notice; (2) payment of T.shs. Page 20 of 21 538,000/- as Severance Pay for 10 years; (3) payment of T.shs. 2,400,000/- as compensation for unlawful termination; and (4) payment of T.shs. 113,000/- as payment for the 17 days he worked, that is, from 01.09.2021 to 17.09.2021. In total, the respondent is to pay the applicant a sum of T.shs. 3, 251,000/-. Being a labour dispute, I make no orders as to costs. Dated and delivered at Moshi on this 29th day of September 2023. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 21 of 21