nas hauliers ltd vs mahmoud b mohamed 2022 tzhcld 116 2 march 2022

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION NO. 463 OF 2020

BETWEEN NAS HAULIERS LTD........................................................................ APPLICANT

VERSUS MAHMOUD B. MOHAMED.......................................................... RESPONDENT (From the decision of the Commission for Mediation & Arbitratiorrof DSM at TerneKe Dated 26th November 2018 in Labour Dispute No. CMA/D,SM7ILA/R. 1085/16^

JUDGEMENT K, T, R. MTEULE, J. 24th February, 2022 & 2nd March, 2022 The Applicants NAS HAULIERSi^^^ias filed the present application against the decision pf^the Commission for Mediation and Arbitration (Civy| Mn Labour Dispute No. CMA/DSM/ILA/|Ob<|5/16. The Applicant is praying for the orders of the Court^M^l^fojbvmg terms:- That ffie|Honorable Court be pleased to call for the records of the proceedings in the Commission for Mediation and Arbitration in Labour Dispute No. CMA/DSM/ILA/R. 1085/16, revise and set aside the decision of the Commission for Mediation and Arbitration dated 26th November 2018 delivered by Hon. Ng'washi, Y., Arbitrator.

2. That the Honorable Court be pleased to make such any other orders as it may deem fit. i From the parties' sworn statements in the affidavit and counter affidavit, and the contents of the record of the CMA, I have gathered the following background of the matter. The applicant was employed by the respondent as an accountant with permanent employment contract. The employment started in December 2003. By a letter with reference number NAS/MBM/01/2016 dated on 29th July 2016 served to the Respondent on 5th August, 2016 the applicant decided tolransfer the respondent to Kahama working station. In respons^^iis^nsfdfe the respondent requested adjustment of his remuneration^to^rneet life expenses at Kahama. The applicant's manage^^t offered to increase addition of Tanzania shillings 100,000.00 W^the coming months, (see exhibit NH-2) and on 18th August 2016 Q^^hialletter with reference No. NAS/MBM/02/2016 the resppnden|^s.giVen 10 days to prepare for the transfer. % On 05th September 2016 the management wrote a letter with reference no. NAS/MBM/01/201^^Qkidipg the respondent the decision of the company to transf^hifFhtp^Kahama and gave him seven (7) days to report iri^ii ^Jjation failure of which would amount to insubord^gJidn^an® gross misconduct as per exhibit NH-3. After all thfe>§ communications, the Respondent did not go to Kahama. On suchTefusal the respondent was charged with

misconduct contrary to Rule 12 (3) (f) item 2 and Rule 9 (4)(a) item 1 of the offences set out in the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedures, forming part of the schedule to the Employment and Labour Relations (Code of Good Practice) Rules, GN. No. 42 of 2007. TTie Disciplinary Committee found the respondent guilty of the offences as charged, hence he was 2 terminated on 26th October 2016 on the reasons of misconduct (absenteeism and gross insubordination). Dissatisfied with the decision the respondent filed the matter in CMA claiming that his termination was substantially and procedurally unfair hence seeking the redress to the tune of TZS 92,552,500. After the determination of the matter, the commission decided in favor of the Applicant who is the instant respondent by awarding him the sum of TZS 27,530,000/=. Aggrieved by the award the applicant filed the presentgapplication.^ The Application is supported by the affidavit ^t-Muumihi^Rajabu, the Applicants Principal Officer consisting of fiv^l^l^sues arising from material facts. The respective legal issues^^|h^ows:- That, the Honourable ArM&^ot^^d in law and fact for holding that the reason fo^termination was unfair. ii. That, the trial Arbitrltor^r^in law and fact in holding that the respondentias notarorded right to be heard. iii. That the :HonourabJe Arbitrator erred in law and

fact by holding^ffiat^th^Jprocedures to terminate the respondent ^vep^unf^^l iv. JJfe^arbitrator erred in law and fact by granting compensation for unfair termination for 24 months without providing reason to exceed the minimum statutory compensation of 12 months. v. The trial arbitrator erred in law by granting sum of Tanzania shillings 5,005,000 as leave not taken. Both parties to the application were represented. The Applicant was represented by Ms. Gema Mrina, Advocate, whereas the Respondent was represented by Dr. Mussa Muhoja, Advocate. The Court ordered 3 for the hearing of the matter to proceed by a way of written submissions following the parties' prayer. Submitting on the first legal issue that, the Honourable Arbitrator erred in law and fact for holding that the reason for termination was unfair, Ms. Gema Mrina submitted that in terminating respondent's employment on the ground of gross insubordination, the applicant complied with Section 37 (2) (b) of the Employmen^^d Labour Relations Act, Cap 366 R.E. 2019, and Rule^ll^CB) the Employment and Labour Relations (Code^of Good, Practice) Rules, GN. No. 42 of 2007. In her vie\^mfie^^fonce constitutes serious misconduct and leads to terminations employment. Supporting her stand she cited the case of VedastiisSk^lanyenka & 6 Others Vs. Mohamed Trans Ltd., R^No^^^014, HC of Tanzania Labour Div. at Shinyanga (unreported)^^^^

held that gross misconduct is among offences that may justify termination. On the second is^e%st^wh ether the respondent was afforded with the^ght to be|heafrd, Ms Gema Mrina made a submission which contaii^sir^lai^arguments with the third legal issue. What she gather frp^hersu^missions in both legal issues is her view that proper prc^dure jfrjb'mination was appropriately observed including right to be hearb^vhich was afforded to the respondent. She stated that the respondent was given notice and charge sheet on 4th October 2016 (As per Exhibit 4 and 5), and that the respondent responded to the charge sheet on 12th October 2016 (See Exhibit MB.2), and on 13th October he was informed about the hearing. According to Ms. Gema Mrina, on 18th October 2016 the disciplinary committee was convened to hear the dispute of the Respondent and defended himself against the charges 4 before the disciplinary committee where he was found guilty of the misconduct charged (as per exhibit NH-6) resulting to termination on 26th October 2016 as per exhibit NH-7. In her view, the termination was in compliance with Section 37 (2) (c ) of the Employment and Labour Relations Cap 366 R.E. 2019, which directs employee to be terminated in accordance with a fair procedure. With these events Ms Gema considered the process as a fair hearing were rightJto be heard was afforded. Regarding the third issue on

compliance w^itj) the procedure for termination, Ms. Gema Mrina submitted JtftaRthe procedure was adhered to. On fourth issue relating to coppensatida th^ counsel submitted that the arbitrator acted contrary Section^' (1) (c) of the Employment and Labour Relations Act, G^p. 360^- 2019 by awarding 24 months without adducing the of exceeding the minimum statutory compensation of 12jnb^ith upporting her submissions, she cited the case of Tanzania! Por authority vs. Tumaini Massaro, Rev. No. 177 of 201 fiC diycfi^ania Labour Div. at Dar es Salaam (unreported). Oriblast is; ether the trial arbitrator was right to grant TZS 5,005^J^^£ leave not taken, Ms. Gema Mrina submitted that no evidence was ever adduced by the respondent to show the exact period which he did not take his leave. She stated that once leave is not taken, it expires automatically unless there is a proof showing that the parties agreed otherwise. She averred that the respondent had waived demanding his leave and hence he is not entitled for the leave which he had waived. 5 Disputing the application, starting with the first issue as to whether the reason for termination was fair, Dr. Mussa Muhoja, Advocate for the Respondent submitted that the reason for termination was unfair because of the nature of the contract between respondent and the applicant. Dr. Muhoja submitted further that as stated by the Hon. Arbitrator

at page 6 and 12 of the impugned judgment, it is not disputed that the respondent entered into an oral contract/agreement with the applicant, the working station being Dar es Salaai^^^^^th^vise. In his view, in that context, all the terms and conditions contained in that agreement including remuneration andjyorking modality were Jr reflected and greatly determined by the wojp^statJQt which is Dar es Salaam. Dr. Muhoja averred that in |bsenre^fjppiicant's policy on how to transfer employees, then he is okthe view that imposing the transfer is contrary to the parties' agr^nent. He added that, page 7 of the award justifies that the respmo^r^cHd not refuse to go to Kahama but he asked for an opp6rt&m<^to^discuss new terms that reflect the new working Kahama as per Exhibit MB1, but the managemenfrefuseGl to do offer such an opportunity and instead, chose tester rh^^^Slent an additional of TZS. 100,000/= without any discuSlpn.,2^ Dr. Muhoja submitted that charging and convicting the respondent with insubordination and absenteeism was unfair, because as it was confirmed at page 10,11 and 12 of the awards, it was not disputed that when the respondent was called before the disciplinary committee, he was still attending and assigned duties at the applicant's office at Dar es Salaam. He asserted further that while waiting for the management to 6 call him for discussion the Respondent was

caught by a surprise to be supplied with the charge sheet and then dragged before the committee for the said above offences. It was further submission by Dr. Muhoja that the Vedatus' case (supra) is irrelevant in this application, as it talks about insubordination, but its ingredients is quite different from the present case and cannot apply. On issues number 2 and 3, the Dr. Muhoja supported theXfindings of ** < % the trial arbitrator in holding that the respondent WalRgot af^ied fair Relations (Code|bfWohduct and Good Practice), GN. No. 42 of avenue in defending his case and that the procedures was^not fair. He 2007, whlcfe stated that the respondent was subjected to^foi^disciplinary hearing committee, against the principles of nature committee was chaired by the H[ujBaWRbsburces Officer of the respondent while the Prosecutorof tl^case was the Human Resource Manager of the respondent fromghe same office. On that basis he is of the view that this is againstfoe principles of natural justice {Nemo Judex in Causa Sua) and of the Employment and Labour Chairperson's impartiality in conducting On th^ouljyjTssue as to whether the arbitrator was correct to grant compaction for 24 months without providing reasons in exceed minimum statutory requirements of 12 months, Dr. Muhoja submitted that the arbitrator was correct since she was satisfied that the termination was both substantively

and procedurally unfair. On last issue regarding the amount of Tshs. 5,005,000/= which was granted as a leave payment, it was argued by Dr. Muhoja that the respondent proved that he did not take leave for five and a half year as 7 the applicant wanted him to stay in the office, as he was the only accountant. The applicant filed a rejoinder which will as well be considered in determining issues of this matter substantively. Having cautiously gone through the CMA records, the facts deponed in the affidavit and counter affidavit and the submissions of the parties this Court finds that the issues for determination are:- i) Whether the Applicant has established^ufficient^grounds to warrant revising and setting aside^Rtl^^decision of the Commission for Mediation and Arbitr^|oin^nL_abour Dispute No. CMA/DSM/ILA/R. 1085/16. ii) To what reliefs partiesfare entitleofeto? I address the two issues gseri^q^^rting with the first one as to whether the Applicant disestablished sufficient grounds to warrant revising and set^^^^^^Fthe decision of the Commission for Mediation and^JwBitration in Labour Dispute No. CMA/DSM^b^R?$085/ljl. To answer this issue, legal issues raised in the affidavit'areJiere^Ber expounded to find out whether the CMA properly adclfessed and arrived at an appropriate finding. I will start with first isah^t the Honourable Arbitrator erred in law and fact in holding that

the reason for termination was unfair. I have gone through the decision of the CMA. The arbitrator found that, the applicant had no valid and fair reason to terminate the respondent herein. The first reasons on which the holding of the Arbitrator was based is the fact that the applicant had no policy of transferring employees and even their oral contract of employment did not have an issue of transfer. It was her 8 finding that although the respondent insisted on the existence of the policy, the same was not reflected either in the evidence or in the contract of employment. It was further opinion of the arbitrator that it was necessary for the employer to negotiate with the applicant on the issue of transfer. The second reasoning was based on the evidence adduced to show that the applicant was still attending the office in Dar es Salaam. It was the opinion of the Arbitrator that absenteeism could not arise in a situation where the complainant was att^ndfng%iis working place and being assigned with duties. ? The Arbitrator supported her decision by ^^^jtion 37 (2) of Employment and Labour Relations Act, 2004. This section provides:- "A termination of emp^^ie^by^an employer is unfair if the employer fails to prove:- JI (a) that the reason^^^he termination is valid; (b) that the reason is^a^ir reason; ^fi) r^^^^to the employee's conduct, capacity or ^%^^oj^^tipility; or ^^ijbaseo

on the operational requirements of the employer, V rW the employment was terminated in accordance with a fair procedure. I incline to agree with the finding of the arbitrator on this issue. Much as I agree with Ms. Gema Mrina on the principle enshrined in the case of Vedastus S. Ntulanyenka & 6 Others Vs. Mohamed Trans Ltd. that gross misconduct is one of offences to justify termination, I have not seen an issue of gross misconduct or insubordination in this matter. 9 Insubordination as a misconduct have been well defined in the case of Sylvania Metals (Pty) Ltd. V. Mello N.O. and Others (JA83/2015) [2016] ZALAC 52 where it was held that:- "Insubordination in the workplace context, generally refers to the disregard of an employer's authority or lawful and reasonable instructions. It occurs when an employee refuses to accept the authority of a person in a position of authority^oypr^him or her and, as such, is misconduct because it assunies a^calcuiated breach by the employee of the obligation^^^dhere^to^nd comply with the employer's lawful authority. ^It inc^^s a wilful and serious refusal by an employee t§^^^e to a lawful and reasonable instructions of the well as conduct which From the above decision^s^ordination involve disregard to a lawful and reasonable instfeti^^of an employer. I see no reasonable instruction in this ^^^^Ser a contractual misunderstanding between the

instan^a^lfea^anu the respondent. The issue of transfer being neither ^^|^Htten policy in the Applicant's office nor in their en^byrnent^contract, I share opinion with the trial Arbitrator as I could not see wjnf* the applicant herein never negotiated with the respondent herein to have his consent to the intended transfer. Since the Respondent attended the workplace in which he was placed by his employment contract, I see no absenteeism as alleged. From the foregoing, I find the decision of the arbitrator on this issue to be well reasoned and arrived at. 10 The second and the third legal arguments in the affidavit are jointly addressed due to their similarities. The third one is whether the trial Arbitrator erred in law and fact in holding that the respondent was not afforded right to be heard and the fourth is whether the Arbitrator erred in law and fact by holding that the procedures to terminate the respondent were unfair. In the respondent's submissions, Ms. Gema Mrinalfon^tfte applicant considered the acts of serving the respondent witnWhe disciplinary notice, the convening of the committee and the^e^Dondent%attendance therein as constituting compliance to the procedures^termination and affording of the right to be heard. On the ol^er^tend, the respondent is claiming that in the disciplinary cor^fit^^^^'e was no impartiality because the Chairperson was f|pn the^sarne

office with the person who initiated the complaint. jl The counsel for the respq^e^submitted that the chairperson was the Human Resource Qffira^/hife the prosecutor was the human Resource Manager. ^ej;es^^^^^scribed this as senior officer prosecuting a matter be^^^^rrifnittee chaired by a junior officer from Human re^urce^ffice/Whis view, this is against the principle of Nemo Judex causa&ua. I have gone through the decision of the Arbitrator. The arbitrator, having considered Rule 9 (1) of the Code, which requires the chairperson of a disciplinary committee to be impartial, held that there was no compliance with procedure for termination of the employment of the respondent. The reasons she advanced for this holding were, firstly, the fact that the chairperson of the committee which sat for the 11 respondent's disciplinary hearing was the human resource officer of the respondent therein, who communicated to the complainant vide Exhibit NH4 which was a letter stating the intention to institute the disciplinary proceedings, the same person was not an umpire from the beginning. Secondly, the arbitrator based his decision on the reason that the decision of the committee was not communicated to the respondent timely in accordance with the Code. In this kind of a situation where the chairperson was not impartial and a delayed cornmun^tipn dB the termination decision, the arbitrator

concluded thatxherew/as no compliance with the procedure for termination. At this juncture, I am inspired by the cas^of justa Kyaruzi V. NBC process of employment termination wa^de|cribed. It was held thus:- "What is important aPP^^on °f c°de checklist fashion, rather to ensure the process used adhere to the basics of fair hearing intne^labourcontext depending on the circumstances of the parties, sb^asto ensure the act to terminate is not reached arbitrarfljr^dmittedly, the procedure may be dispensed with as pe^Rdlel3^S2) of the Code." What ilnpte|from the above jurisprudence, fair hearing does not mean a mere formality but should constitute fairness in real sense to deter arbitrariness. In the instant matter, having Human resource officers chairing a meeting where the Manager of the Human Resource officer is the prosecutor create a situation of lack of impartiality. I don't see any fault in the finding of the arbitrator on the issue of fairness in the disciplinary committee. 12 The fourth legal issue raised in the affidavit is whether the arbitrator erred in law and fact in granting compensation for unfair termination for 24 months without providing reason to exceed the minimum statutory compensation of 12 months. The applicant is challenging the quantum in the payment of 24 months salary as compensation instead of the minimum of 12 months without assigning reasons for doing

so. The complainant in the CMA sought for the compensation of TZS % % 92,552,500 which included one month's salary mieu^of notice TZS 910,000/=, leave TZS 5,005,000, severance allowance of TZS 2,957,500, forty-eight months compensation i^F^u^reinstatement TZS 43,680,000/= and general damages of TZS^4Q^0(M),000. In her decision the arbitrator's Jection 40 (1) of the Employment and Labour Relations Acf^Gap; 366 RE. 2019 and Rule 32 (1) of the Labour Instituti^(Meai§dojF and Arbitration Guidelines) GN. 67 of 2007. Consequently sne found that the appropriate remedy in the circumstance is in lieu of reinstatement. And basing on Rule 32 (5) of GN(67^anMhe case of Branch Director CRDB Bank Vs. Titoh Kwarehp Revision No. 14 of 2011 at page 3 & 4, the arbitratoif^^edM sum of TZS 810,000/= as one month's salary in liei^j£inotice^ the reason that, until termination of his employment the applicant was being paid the salary to that tune of TZS 910,000/= and this could have been paid if the complainant could have moved to Kahama. The sum of TZS 5,005,000/= for the leave not taken, TZS 2,275,000/= being the severance pay for 10 years which the complainant served the Respondent and lastly compensation of 24 months salaries, 810,000 x 24 =19,440,000/=. She dismissed the claims for general damages as the same was not substantiated before the 13 Commission. In total the Respondent was ordered to

pay the sum of TZS 27,530,000/=. I share views with the arbitrator on the position of the law that where the Arbitrator finds the termination to be unfair, an order of reinstatement can be made. However, Rule 32 (2) (b) & (c) of the Rules provides that, the Arbitrator shall not give orders for reinstatement or re engagement in the circumstances where the employee>doe^not wish to Ik be reinstated, and where the circumstance of terrriinaji^n is^oh that continued employment relationship would be inferable arid that is not reasonably practical for the employer to r^s^^or re-engage the employee. In assessing the number of to be awarded as compensation, the arbitrator was legal position which gives her discretion. In exercising the^discletion, she took into account the nature of termination whicR^as coupled with unfairness. Awarding 12 months in my view is affeasonabli consideration which I don't find appropriate to interfere With regards to tfte flfthlegal issue from the affidavit, awarding leave without a iW^Mave gone through the proceedings of the CMA. It appears {lTafeOTiny®f leave was not one of the disputed matters. In that case^jjt was^ffot necessary for the arbitrator to demand evidence to prove undisputed fact. As such, I as well find no sufficient ground to interfere with the decision of the CMA. From the above analysis, it is apparent that the arbitrator was right in her

finding to hold that the termination of the Respondent was not fair in terms of procedure and substance and that what she awarded was properly guided by rules and procedure. In this respect the issue as to whether the Applicant has established sufficient grounds to warrant 14 revising and setting aside the decision of the Commission for Mediation and Arbitration in Labour Dispute No. CMA/DSM/ILA/R-1085/16 is answered in the negative. The second issue is on remedy. Having found no sufficient ground established to warrant revising of the decision the CMA, the remedy available is to dismiss this application and uphold the decision of the CMA. The application is therefore dismissed. It is so ordered. 15