mussa andrea mtunga vs tanzania electric supply company ltd 2015 tzhc 2142 10 june 2015

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION IN THE LABOUR COURT ZONE CENTRE AT KIGOMA REVISION NO. 6 OF 2015 BETWEEN MUSSA ANDREA M TU N G A .......................... . ... APPLICANT VERSUS TANZANIA ELECTRIC SUPPLY COMPANY LTD RESPONDENT (ORIGINAL CMA/KIG/DISP/57/12) JUGDMENT 08/06/2015 & 10/06/2015 Mipawa, J This is a judgment in respect of the application for revision filed by Mr. Mussa Andrea Mtunga, the applicant as against the decision of the CMA,1 issued against him at Kigoma on 24/03/2013 in Labour disputed CMA/KIG/DISP/57/12, which upheld the decision of the employer Tanesco.2 The application was made by a Notice of application and chamber summons both under rule 24 (1), (2) (3) and (11), 28 (1) (b), (c), (d) and (e) of the Labour Court Rules G.N 106/2007, Section 91 (l)-(a) and (b), 91 (2) (a) and (b) of the Employment and Labour Relations Act, No 6/2004 1 CMA refers to the Commission for Mediation and Arbitration, established under section 12 of the Labour . Institutions Act No 7/2004. 2 Tanesco refers to Tanzania Electric Supply Company Ltd. l (herein after to be referred to as the Act); the same is supported by the affidavit sworn in by Ignatius R. Kagashe, Advocate. Before going into the merits of this application it is plausible to cushion the same with a brief and nutshell historical back ground between the parties. . The applicant Mr. Mussa Andrea Mtunga was employed by the respondent Tanesco on 17/02/1994 in the post of Supplies and Transport Officer,3 and he rose to various ranks until into Regional' Supplies and Transport Officer till when terminated by the applicant at Kigoma on 25/06/2012.The reasons for the termination originated from the fact that the respondent had had decided to sell by a public auction some of her properties namely scraps, unused materials, and obsolete items. The same was conducted at Kigoma on 19/11/2011. Ahadi company Ltd from Dar Es Salaam was appointed by the respondent's head office to conduct the same. And it is from the records that the respondent Tanesco also appointed Mr. Peter Kilasa from head office Dar es Salaam as Auction » Supervisor. And that the items to be sold were authorized by the respondent head office and the additional list was authorized by the Respondent Regional Manager Eng. Tibaijuka. i * It was after the auction had taken place when the applicant was accused of two offense, first misuse of office into which three transformers were sold without following procedures, second ubadhilifu na maamuzi mabaya (kumzunguka na kusainisha Mkurugenzi). Following that he was terminated on 21/06/2012.4 Aggrieved by that decision of the employer 3 See CMA Form no 1, filed to the CM A on 26/06/2012. 4 See Hatua za Kinidhamu dhidi yako, with reference KIG/HR/PF.G 562.Issued by Eng Cleophace Tibaijuka. respondent, the applicant filed a labour Dispute to the CMA on 26/06/2012 through CMA Form No 1, into which he prayed for reinstatement. At the CMA it was submitted by the applicant that the termination was both substantive and procedurally unfair. On substantive unfairness he submitted that his role in the whole process of auctioning the said items was so minimal because all the procedures were followed and that the first list of the items to be sold was prepared by the respondent's head office and the second list was authorized by the Respondents/Regional Manager of Kigoma. And the respondent too appointed one Kilasa to be the Supervisor of the Auction. Ahadi Auction Company was appointed to be the auctioning mart. That the applicant's role was to only process the needed items to be at the proper venue for the sell and not otherwise.5 In support of that he tendered various exhibits to the CMA. • On procedural aspect Mr. Mussa Andrea Mtunga argued that the procedures towards his termination were not followed because the disciplinary hearing was chaired by one Mr. Lucas Busunge Regional Manager of the respondent from Mara. On that he had two limbs to fault it, first since he was also the Regional Supplies and Transport officer into which he sometimes acted as Regional Manager of the respondent they were of the same rank hence ought to have brought a Senior Manager thereto. Second there was bias because the chairman was of the same rank with the one who terminated the applicant hence biased. He also argued that he was not given right to be represented by a trade union. He prayed for reinstatement. , 5 See applicant's opening statennent at the CMA filed on 23/10/2012. 3 On the side of the employer Tanesco, it was submitted that the employee had decided to pose into auction items not allowed or authorized because he presented another list of the items not authorized and made the Regional Manager to sign the same and that even the whole process of selling those items was not proper, even payment not proper.6 And that on several occasions on disciplinary hearing the applicant employee admitted the commission of those misconducts and was terminated on 20/06/2012. Evaluating and deciding on the parties' submission the Hon. Arbitrator one Mwakyusa drew three issues; whether there was valid reason for termination; procedural fairness; and reliefs to the parties. Hon Arbitrator argued that the employee sold properties not authorized contrary to those authorized as per exhibit "A" and those items were not listed. And that.the procedures for payment were done correctly except those unauthorized ones. Procedural fairness the arbitrator become partly silent on the same and did not decided on the same. At the end the Hon. Arbitrator held jointly that the Commission was satisfied by both reasons and procedures for termination and confirmed the employer's decision and the prayer for reinstatement by the employee became un successful. Pierced by that decision of the CMA, Mr. Mussa Andrea Mtunga knocked at the doors of this court, knowing that Ubi ju s ib i remedium (where there is a right there you will find a remedy), seeking revising of that award issued by the CMA against him. 6 See respondent' opening statement at the CM A filed on 12/10/2012, prepared by Kitengo cha Sheria Tanesco Makao Mkuu Ghorofa ya 6, Umeme Park Ubungo. 4 Before this Court the applicant employee Mr. Mussa Andrea Mtunga was represented by Mr. Ignatius Kagashe Advocate while the respondent employer Tanesco was represented by Mr. Nkindi Advocate. And the application went on viva voce (by live voice). Defending his submission Mr. Kagashe Learned Counsel argued that the applicant was employed by Tanesco since 1994 and was terminated in June 2912 and at that time of termination he was a Regional Supplies and Transport Officer. And that in 2011 the Board of the respondent had ordered sell of old scraps (vifaa chakavu) in various regions to be sold into which at Kigoma the Auction took place on 19/11/2011. He added that the Head office appointed Ahadi Company Ltd as Auction mart and also the Head Office appointed a supervisor one Peter Kilasa. That the applicant was a suppliers officer therefore he was only responsible to facilitate the transporting of the materials identified to the auctioning place. That it was after the auctioning of those materials the Regional Manager at Kigoma accused the applicant on ground that he used his office for selling three transformers without following the procedures hence causing a loss of Tshs 20,000,000/= to the Company. That the disciplinary hearing was formed which at the end had the decision that the applicant be terminated. Mr. Kagashe argued that despite the fact that the Commission summoned the Regional Manager at Kigoma as witness, he the Regional Manger confessed that he authorized the additional list of the material to be sold different from that was authorized by the head office of the respondent in Dar Es Salaam. Therefore *it was not true that it was the applicant who authorized and at the end sold those material. On procedural aspect it was argued that the applicant was not given time to mitigate because after the disciplinary hearing which found him i guilty there followed a termination letter. He referred this Court to the third schedule to Government Notice No 42/2007/ rule 8 on guidelines for Disciplinary Incapacity and Incompatibility, that a person is given chance to mitigate. Mr. Kagashe Learned Counsel for the applicant employee added that the constitution of the Disciplinary Hearing Committee was not properly constituted on the reasons that since the applicant was regional supplies and transport officer, a senior officer, who sometimes used to act as Regional Manager, it was not proper for the disciplinary hearing to be t chaired by a regional Manager the same rank with the applicant. That it could be proper for that disciplinary hearing committee to be chaired by a senior officer above the Regional Manager. That the minutes of the disciplinary hearing committee had a lot of falsification because, the same was held on 23/01/2012, the signature of the chairman was on 15/10/2012 .and that of the secretary on 12/10/2013. The signing of the two members took place when the applicant employee was already terminated. He added that the applicant was deny the chance of being represented by the Trade union or his fellow employee of his own choice. All those were procedural irregularities in the aspect of procedural fairness He again turned to the issue of substantive fairness of the termination where he argued that the reasons for termination was not proved at the CMA especially the purported loss of Tshs 20,000,0000/=. That all the money collected from the auction were not put into applicant's 7 Refers to the Employment and Labour Relations (Code of Good Practice) GN 42/2007. 6 pocket rather they were paid to the employer respondent Tanesco. That there was Civil Case No. 21/2011 filed by Philipo Ibrahim and Martin Damian against Tanesco into which Tshs 20,000,000/= was at dispute, because they bought materials but the respondent did not handle the same to them. And that case was dismissed hence there was no loss caused by the applicant to that effect. That case was used by the Regional Manager to terminate the applicant on that anticipated loss. , He concluded by insisting that there was no justifiable reasons for terminating that applicant because the list of the materials to be sold was authorized by head office and the additional list was authorized by the Regional Manager and that the auction was also supervised by a special person chosen from the head office. That the applicant be reinstated because he had worked for the respondent for. 17 years with a clear record, there could be an alternative sanction if so proved. In response Mr. Nkindi for the respondent employer Tanesco started by arguing that the duties of the applicant was to supervise all sells and motor vehicles in the Region. He was the only person who knew where the properties of the employer were hence he had a role in the auction mart process. That the applicant employee Musa Andrea Mtunga had the duty to identify all the items liable for the auctioning. He argued that the auctioning had three steps, first to identify all scrappers for sell (absolute materials), identifying the auctioneer to publish the absolute materials, selling of those materials. Therefore the applicant as Regional Supplies and Transport Officer knew all the materials and that he presented for sell the materials not identified for sell. The three transformers were not absolute materials as well as a cable (copper 7 material). He added that at Page 5 of the award the arbitrator made it clear that the applicant fraudently prepared an additional list of materials not for sell and adduced the Regional Manager to sign the same. That he went against the procedures of selling materials not identified and fulfilled that by making the Regional Manager to sign the same. Hence the termination. Therefore the Arbitrator held it correctiy. Mr. Nkindi Leaned Counsel further argued that while the applicant was still on employment he went to Court to give evidence against the employer in Civil Case No. 21/2011 after the respondent had refused to handle the items to those purported to buy them and the applicant. Produced the documents and that was discussed at Page 7 of the CMA AWARD and that there was valid reason for termination. He further submitted that there are offences which do not require warnings and no need o f looking to the employee's history. On procedural fairness, Mr. Nkindi was of the thinking that the disciplinary hearing committee was proper constituted as rightly held by the CMA, because the applicant committed the offence when in the post of Regional Supplies and Transport Officer and not a manager and even at termination he was still in that post, therefore the Chairman was a superior officer to the applicant;, and that on the issue of Acting into the post of Regional Manager the same did not hold water because any officer could ’ be appointed to act in that position but could not assume power as the Manager. And that the post involves rank, experience as well as education qualifications. . On the right to mitigate the offence placed before the applicant that was an aftermath because that issue was never raised neither at the 8 disciplinary hearing nor at the CMA, and it is not even in CMA Form No. 1, the applicant was given time to mitigate unless there is record against the same and the same cannot be raised at this revision stage. Stressing on the correctness of the minutes of the Disciplinary hearing Committee, Mr. Nkindi Learned Counsel for the respondent argued that the same were correct because after the meeting the minutes are signed in the following meeting, as there is "routine" of vikao vya nidhamu where the previous minutes are signed, a.nd the decision is .taken in the meeting and not after hence not correct that they were obtained fraudently. , On the loss of Tshs 20,000,000/=, Mr. Nkindi submitted that the respondent was owned the same amount into which the applicant was corroborating with the purchaser and that the act of the applicant to violate the procedures of " mnada"\Nas misuse of his office and that that act caused loss to the respondent as rightly held by the arbitrator at Page 7 of the award. And that the said civil case is on appeal at the High Court of Tanzania Tabora, before Hon. Mgonya, J.8 Mr. Nkindi concluded by saying that the CMA rightly found it that there termination was fair both substantively and procedurally'and that this, a revision application be dismissed. In rejoinder,counsel for the applicant Mr. Kagashe again argued that all what sold by the auction was proper because the said copper cable is in the list from the headquarter and the other items are in the list that the Regional Manager authorized and cannot put the luggage to the applicant. 3 Civil appeal No. 17/2012. 9 On the proof of the loss the applicant's Counsel said that the applicant was terminated even when that case was still in Court and that he was summoned to Court to come and explain all what went on in the auctioning process and not otherwise On the issue of procedure, he submitted that the Regional Suppliers and Transportation Officer was not a junior officer. Mara is in the same zonal with Kigoma and that they knew each other and were meeting in zonal meetings hence bias could not be escaped at all, because the Chairman of the meeting wanted to save his fellow Regional Manager. On the issue of mitigation, it is not an aftermath because the same is in the closing arguments of the applicant at the CMA. The disciplinary meeting was in January, termination in June 2012, signing of the minutes done in October hence there was falsification of the procedure. And that the employer was to prove that termination was fair as under section 37 and 39 of the Employment and Labour Relations Act and that the person to be prosecuted was the Regional Manager who authorized the items after the list was presented'to him. Mr. Kagashe concluded by submitting that the application for revision be merited. After hearing both Learned-Counsels submissions and going through the records of this dispute in ex-abandunt caute/a (with extreme caution) knowing that extreme caution does not harm, in limine (at the '*i ' outset), this Court is called upon to perform its noble task par excellence*, that of proclaiming a judgment, and in so doing three legal issues arise, these are 9 With eminence. 10 > Whether there were valid reasons for termination(substantive fairness) > Whether before termination procedures were followed • (procedural fairness). > Reliefs thereto. On the first issue of substantive fairness it is undisputed that there was an auction that was conducted by the respondent in her various Regional Centres, and that there was list of item to be sold at first from the respondent's head quarters and for the case of Kigoma there was an addition list thereto; and that at Kigoma the auction was supervised by one Peter Kilasa from the head quarters of the respondent. The only disputed issue is on the additional list of the items which were sold. That the applicant prepared the list of those items and presented the same to the Regional Manager of the RESPONDENT AT Kigoma who authorized the same and were placed for auctioning. ■ The immediate logical issue to be posed here so as to reach a coherent legal conclusion on this issue is whether the applicant employee misused his position as Regional Suppliers and Transport officer in auctioning the an unauthorized materials not in the list from the headquarter. The answer to this is a strong NO there. With due respect to the Holding of the Arbitrator and the submissions by Counsel for the respondent this Court is of great conclusion that the applicant neither authorized the sell of those materials no did he misuse of office. The reason is simply simple. That the applicant prepared a list of the said materials, that was his first and foremost task thereto. After that he 11 presented the list to the Regional Manager one Eng. Tibaijuka for his authorization, as Regional Manager, Eng. Tibaijuka, a Regional Counting officer of the applicant and so to speak a competent specialist on electrical engineering (hence fit for that post) had only two duties to discharge. First Saying yes as he did,10 by signing to that list; second by either refusing to sign on that list either by reducing some of the items or all. From that above one can conclude that the act of the applicant to prepare that list was not in itself final but it was placed to higher authority for further decision hence he became empty in himself on that issue and the Regional Manager was now to execute his duties in ether manner deeming fit and professional to him. . Signing o,f that additional list by the Regional Manager was the indication that he read it, understood it and satisfied himself of the correctness of the same as well as this Court thinks that he had time to make physical survey to those item before signing. Hence this Court is of firm stand that the applicant employee did not authorize the selling of the said item rather the Regional Manager Eng.Tibaijuka. The contention that the applicant used njia za kijanja kumlaghai Regional Manager to sign the additional list is a dying argument so to speak. This Court believes that the Regional Manager was a rational man, competent and professional Engineer with power to reason on what is bad or good as per his post. He was therefore in a better position to authorize the sell of those items or not. ' Apart from that, there was a supervisor appointed from the respondent's headquarter who witnessed the whole process of the 10 See exhibit "D2" 12 auctioning. And that he had also power in all the process. Had the applicant used some unknown was in the whole process the same could have been stopped at the very low stage of the process by the Regional Manager and the Supervisor One Peter Kilasa. Thus the reasoning and holding of the arbitrator that there was valid reason for termination is hereby set aside and quashed as it is unlawful, irrational and illogical in itself,11 following all the evidences tendered before him. That aspect above, was sufficient to bring the matter to and end, but on the issue of procedural fairness, which is the second issue to be decided upon two things are involved. First the Composition the Disciplinary Hearing Committee, it was alleged that the one who chaired the meeting was the Regional Manager of the applicant from Mara. Eng. Lucas Busunge Going in the submission of the parties and records and putting into consideration of the nature of the dispute it is true that the applicant was not a, junior officer at the respondent's workplace,(as submitted by Counsel for the respondent),he was a senior officer whose post attracted special procedures in conducting ■the Disciplinary Hearing thereto. I agree that the Regional Manger is a higher post to the applicant' post but the Regional Manager is Primus 1 inter pares [frequent use among people of the, more or less, the same power, rank and influence. All it means is: the first (of them) and therefore among the equals]. In(the case at hand .and for avoidance of such un procedural aspect it was not proper for the respondent to appoint a Regional Manager to chair the disciplinary hearing, of a Senior Region 11 Capable of being revised by the Court as per section 91 (2) (c) of the Employment and Labour Relations Act No. 06/2007as amended by Act No. 3/2010. 13 officer, head of unit or department at the Regional level. The respondent ought to have appointed a Manager from head quarter who leads a countrywide department. And that could also wash away the issue of biasness as the chairman of the disciplinary hearing must be impartial and so on.12 And. that it would be dangerous if the disciplinary hearing takes * place then the minutes of that meeting are released and signed almost a year after the employee had been terminated. That is so un procedural and this Court holds that the minutes of the disciplinary hearing committee must be released as soon as possible so as to make the employee get right to appeal thereto (mitigating on the same.)as per law requirement,13 therefore the holding of the Hon Arbitrator and the submission of Counsel for the Respondent that the length of the procedure were of no effect are hereby rejected and set aside in total. The other procedural issue to be given attention by this Court is on t representation of the applicant employee in the Disciplinary Committee hearing. Amongst the procedural irregularities advanced by Mr. Kagashe Counsel for the applicant is that the applicant was not given the right to be represented by the trade union or his fellow employee. The law,14 specifically makes it clear that an employee who is to go for disciplinary hearing is to be presented by other employee to provide assistance, and have the right to be present therein through out the disciplinary hearing. In the present case there is ample evidence from the 12 See para 4 (2) to the third schedule of the Employment and Labour Relation's Act [Code of Good Practice] GN 42/2007. 13 Ibid, para 4 (9), the outcom e of the disciplinary hearing must be disclosed to the employee as soon as possible and not more than five w orking days. 14 op.at note 4(4 & 5). 14 disciplinary hearing committee minutes that the applicant employee never got that opportunity. On that issue the Hon Arbitrator declined from the issue.15 This Court in the case of Moshi University College of Cooperative * Studies & Business Studies Vs Patrick John Ngwila,16 had the opportunity to speak clearly on that issue of the right of an employee to be represented in the Disciplinary Hearing Committee. In that case,17 this Court Held that:­ .... The act o f the employer applicant for example o f denying the representative o f the employee at the hearing in the disciplinary committee was a gross violation o f the guidelines and rules o f the code o f good practice GN No. 42 o f 2007. It must be noted carefully that the purpose o f assistance o f the employee o f the hearing by a representative is two i fold as rightly pointed out by Dr. Emil Strydom (the position I entirely subscribe) in his article titled ■ "dismissal for misconduct: The statutory requirements for a fair dismissal for misconduct " that:- ...The purpose of assistance is of two fold, in the first instance, the trade union representative or fellow employee must assist the employee with the presentation of the response to the charge. In the second instance, the 15 See Page 7 of the C M A award issued on 29.04.2013 before Hon. Arbitrator Mwakyusa L. L. in CMA/KIG/DISP/57/2012. . 16 Rev No. 31 of 2014, HCTLD at Moshi (Unreported), delivered on08/05/2015 before Mipawa. J. 17 ibid. 15 trade union representative or fellow employee must ensure that the procedure which is followed during the inquiry is fair. The representative must thus not merely accompany the employee to the enquiry but must play an active role during the enquiry... The above except shows the importance o f an employee to be represented by either a trade union official or a fellow employee. The act o f the applicant to deny the representative of the employee respondent in the disciplinary hearing or enquiry stained and chilled the fairness o f the procedure....18 > Reliefs to the parties: Since this Court has found that there were no any valid reasons for terminating the applicant, who had served the respondent for a couple of years since 1994, with a clear record, and that the procedures were also violated as shown above,' and being mindful of the universally acceptable legal concept that right to work is a right that cannot be taken away from anindividual, unless there are valid reasons for doing so, and fair procedures are followed, this Court makes the following orders: . 1. The employer's decision that terminated the applicant from his employment contract,19 and the CMA proceeding with its resultant award of 29/04/2013 are hereby jointly quashed, and set aside in. toto. 18 op.cit note 16 at Page 27 and 28. 19 Dated 21/06/2012. 16 2. Using powers vested in this Court,20The respondent employer Tanesco Kigoma is hereby order to reinstate the applicant employee Mussa Andrea Mtunga to his post he possessed when terminated without loss of remuneration thereto when the employee was on termination.21 It is so ordered. I.S i JUDGE 10/06/2015 20 Section 91(4) of the Employment and Labour Relations Act No. 6/2004, ready together with rules 28 (1) (e) and (2) of the Labour Court Rules GN 106/2007. See Section 40(1) (a) of the Employment and Labour Relations Act No. 6/2004. 17