20161202 TZHC Dar es Salaam1

IN THE HIGH COURT Of TANZANIA r LABOUR DIVISION ,_ AT DAR ES SALAAM JtEVISION NO. 192 OF 2016 . BETWEEN - NASSO RO KHATAU YAHYA ................. ~ ..........................!APPLICANT ·~/.. · VERSUS ,_ '''i;: TOYOTA TANZANIA LIMITED~ ................................... R'ESPONDENT .. . . {ORIGINAL/CMA/DSM/TEM/312/2013) JUDGMENT. 27/10/2016&02/12/2016 Mipawa, J. This revision by -the applicant '.inamely Nassoro Khatibu Yahya has been filed under and initiated~""bY a notice of application "decorated" by a chamber summons supported by an affidavit of the applicant. The same is made 'under section 91 (1) (a) and (b) (2) (a) (b) and ( c) of th~ Employment and Labour Relations Act1 as amended by s~ction ~ ~ ' ~ ' 2 14 of the Written Laws Miscellaneous Amendment Act and section Ql (1) (b) (i) of the Employment and Labour Relations Act3 . Rule 24 (1) (2)! a, b, c, d, e and f and (3) a, b, c, d and Rule 28 (1) (c) (d) (e) of the Labour Court Rules 4 • 1 Act No. 6 of 2004 Cap 366 R.E. 2009 the Employment and Labour Relations Act 2 ·Act No. 17 of 2010 3 op. cit note 1 4 Government Notice (GN) No. 106. of 2007 the Rules 1 · The chamber summons was also made under section 91 (1) (a) and (b) and (2) (a) (b) (c) of the Employment and Labour Relations Act5, as amended by the Written Laws (Miscellaneous Amendment) section14 6 and section 94 (1) (b) (i) of the Employment and Labour Relations Act7, and .. · Rule 24 (1) (2) (a) (b}(c) (d) (e) (f) and (3) (a) (b) (c)(d) and Rule 28 (1) (c) (d) and (e) of the Labour Court Rules8 • The applicant's casus beli ( cause of discontent)· was that the ,':: ,;-;-::_.~ ... respondent Toyota Tanzania Ltd. terminated his,.employment unfairly both substantively and procedurally and his appeal against l~e decision of the employer to terminate him was unsuccessfully beforethe CMA9 , hereinafter referred to as the Commission th~ . .applicant.is . _-:, ,-- rrow challenging the decision .: , of the Commission in this Court. In order to l:Jnderstc1nd-the present revision a historical background of the dispute and the Wf~Y 'it pas~ed in the Commission is very necessary arbelt in in a nutshell. · Briefly the gi'st ofthe matter is that the applicant was employed by :~1~; th(:\ respc>nd_entin "the capacity of assistant accountant 10 and was stationed i,:·,· in the department .,. of credit controller ( Wadhibiti wa Madenij- 1 in the respondents Company respectfully. The applicant had his employment 5 op. cit note 1 6 op. cit note2 7 op. cit note 1 8 op. cit note 4 9 CMA refers to the Commission for Mediation and Arbitration established under section 12 of the Labour Institutions Act No. 7 of 2004 Cap. 300 10 See affidavit of the applicant paragraph 6 11 CMA arbitration award at p. 1 in made dispute CMA/DSM/TEM/312/2013 2 . Je(minated by the respondent on 01/10/2013 for alleged dishonest {~kos~fu wa uaminifu}. . C It was alleged -before the Commission that the applicant made dubious money transactions for his own· benefit knowing that the money belonged to his employer. The respondent several witnesses testified against the applicant in the Commission of which ,pne .was the._Jnt:ernal auditor of the respondent one Godfrey Werema DW1 w·h0>,told'.~the .. .. ' CMA ...... _ -· - '. . . ' that the applicant_ knew account 99992_ of the:_e·hmployer which was for receiving money payable to the respondent from clierrts, there was also account 001653 which belonged to a client-'{;ons0:~ata· ~onsultant Ltd. That on 133/03/2013 wh~'r, the intern~'I auditor conducted an audit :_'; ~ exercise in account 999902 and 'on 16/@4/2013 he discovered· that there was deficiency of money "upungufu . . . .. . wa fedha'' in the said account to the tune of 83,000,000/= Tzs other ,witnesses from the employer respondent who testified befor~ tltl.e.J:or:nniission were Julieth Kaitesa DW2 and Abdul Azizi MohameEI DW2 who testified more or less the same that in the department of the applicant they use computer which under any circumstances their pass words are not known to _anyone and, even. the computer experts at their offices are not supposed to know the password of each. . . The applicant on his part told the Commission that he worked with the respondent's company "kwa uaminifu mkubwa'' until when he was accused of dishonesty on his duties as assistant accountant and credit . 3 7 controller. He further told the Court tbat what he knew about accounts _0165? -and 99992 of the respondent was that he did make reconciliation for the- purpose of knowing if the client concerned (he did not mention the client) was still owed money or not or that the client had paid the credit. However he denied knowledge .of account 99992. He was terminated on :, --·. appeal he was not heard. ~4'- "~ i;·"\:_~.,. .•,..... ~ ' ~~ -~ ....,.,., ~,~! "ti • ... \: ~r.:~~ .,,,y .:,. ; . On use of his pin number- the applicant told the C0:fil1mission that ~-/·: ~ their pin number can be assessed by the ad.m·i:@,istration '"·also or the · ~~ ... ~~- R computer experts (IT) because ·it is them tvyho:. po malntenance of the · . .,_"f-t., computers and that · his pin number was:,. usect_ "tgy somebody on the· ~C:'::::.:_;_ ._ ',_ .,, _.:. ~ i~ 1 transaction of money complaine~;b1/ tl1§··emp~oy@f respondent. ~l ~z:~~, :~ The learned arbitrator fouria that,Jphe appli½ant ( complainant in the .~J:. ...., ,,; ~-:_,~- !';·· . . CMA) was fairly. terminated:-;1(substantive .... fairness) because he knew the ~ ~--,. important of keeping 4~is piH...,. ii~;.mber or password secretly for fear that ""{';, ~ . (lest) it could be ko8V~i(1;~~nd~,tfJed by other persons. He was duly informed by the em~)qyertd"l<eeJ•hi; number (password) and that _ar,y use of the password would be taken as done by him (applicant). .-1-~· -~- ' "7;Qe Co1mrmission held that the transaction of money which used the .•- ,:,.. password."'0f the applicant on the said accounts the employer respondent had all reasons to believe that it was the applicant employee who made the illegal transactions in the stated accounts of the employer respondent. The applicant also confessed to have made the clearance on the said accounts on the material date but only denies to allow the taking of the money 4 . · "kuchotwa kwa pesa' through the account of the client concerned. Hence the loss of employer confidence and trust to the applicant. .. On the procedural fairness the CommiS$,iOn found t~at the employer did not follow the fair procedure before he.had terminated the employment of the applicant. The applicant employee was not given the chance t0'.1depe!f!:d himself . • >:~-:~ . ....,.; and/or cross examine the witnesses of the resp9ndent ern13loyer. The arbitrator noted that the proceedings of the. d:i$~ipI'in~ry: .,,.,,, hearing showed -:-. that there were no witnesses called from.;botfo~$idei,,, . on act which de_nied . . the applicant employer hi$ rights t9 cr~;ss :ex:arniq~ -,~nd hear the witnesses the arbitrator observed that referring tci\r,ule }3 12 :- - ... Hakukuwa .na ma~hahidi toka pande zote mbili .. .. hiyo . pekee ilimiiyima nafasi m/alamikaji kuwapima kwa -t[!aswali Juu ya kile walichokiona dbidlyake na "reye kujitetea vyema na kuhojiwa plajuu ya utetezi wake1 3 ••• · Th~. arhlitrator ;granted the employee applicant fo~ month salary as compensati©n cfor the employer respondent's failure to follow a fair procedure oefore terminating him which come at 1,381,308/= t_imes four = 5,445,232/=. u . Rule 13 (1) - (13) of GN. No. 42 of 2007 Code of Good Practice 13 CMA arbitration award op. cit at p. 14 5 At the hearing- of the revision viva voce the applicant !Was represented by Mr. Mgombozi, Personal Representative of the parties pwn choice 14 • While respondent employer enjoyed the services of M/S Car~line Kivuyo, Learned Counsel. Submitting in support of the revision Mr. Mgombozi argued that the ,~- employer respondent did not prove the allegation aga:i:ristthe ... apJJlicant~and . - -;, , the grant of four month compensation was contrary to section 40(1) '{c ) · of the Employment and Labour Relations Act No .. ~6 of 2004, which requires the arbitrator to grant compensation of not less<than twelve months. The employer did not have any valid reason t6 terminate the applicant as the ' ' ' employer did not produce -any witnesses to, prove the allegation and,the arbitrator did not direct himself tl:lat there,was no evidence. Although the Learned:··"Arbitrator" in his award had found that the employer did not follow-_a fairpro.cedure before he terminated the applicant yet Mr. Mgombozi still sub171_itted on the same as if the learned arbitrator had found that the employer did follow the procedure before terminating . : ~ the applicant. Now ·.since the arbitrator had already found that procedure before t~rm.i:nating the applicant was not followed, I think it is useless to submit,:again on the same that the employer did not follow the procedure before terminating the applicant when the arbitrator had already found that the employer did not in fact follow the fair procedure. For example Mr. Mgombozi referred to this Court the case of NBC Ltd. Mwanza -Vs. 14 Personal. Representative are allowed under section 56 (1) of the Labour Institution Act No. 7 of 2007 and Rule 43 of the Labour Court Rules GN. No. 106 of 2007 6 . Justa B. Kyaruzi 15 . In which the Court d~scribed the good procedu11= to be followed by the employer. Also the case of Lucy- Kess V. NMB PLC ' . 16 · Ltd • On the impartiality of . the disciplinary ·committee chairman impartiality and the case of Sodetra V~ Meza 1~ w_hich · pu~ down· the precedent that an arbitrator may award a compensation of less than twelve months. The Learned Counsel for the respondent Ofl ~is part,;~,JJbn{itted that . ~ ' ~-- the employer respondent had valid . reason to;- terminate ·.:.-. . the applicant ;-~~,· employee because he was on duty of .the ~--~Jeria"f ,date_ and did the clearance of the debts clearance which wa~ done'.-~without following the procedure which was a misconcJ,uct. -whe':a~~n:c~:~t employee admitted to have cleared such transaction~-.in th~· a.:.~d~unts without following · the required procedure. The Gf;)mputer, ,.password was only known to · the applicant employee. The Learnect· Cou~nsel lUrther submitted that the degree of proof before the LabG>ur'. > ·Court .~-. ~- or in labour matters is . on the balance . : · of probabilities -~ as jt w~s held in Richard Mwansasu V. -Toyota Ltd 18 . _ The ,·- appJi~ant"erppl0y~e was charged with dishonest for that matter. As regards to the procedure the respondent's counsel_ s~bmitted that the employer respondent followed the fair procedure before terminating the employee and he complied to Rule ~3 of th~ Code of Good Practice _GN. 15 Revision No. 79 of 2009 Labour Court at Mwanza 16 Revision No. 123 of 2015 Labour Court at Dar Es Salaa·m 17 Rev·ision No. 207 of 2008 Labour Court Dar Es Salaam 18 Revision No. 282 of 2015 7 42 of 2007. Investigation was conducted,· the applicant was given time to prepare his defence ahd allowed to call witnesses. She further submitted that the applicant was terminated both fairly substantively and procedurally (fairness) that the arbitrator only faulted procedural fairness and granted the applicant four months' salary as compensation as clearly spelt in case of Sodetra V. ~ez~ 19 _- I have carefully an in ex-abundant caute/ii(with :- ....._,. ··-{ eye:s of caution) gone through the submission of both· ·parties ,,and read; the Commission. record from cover to cover. In my considered opiriiQn I think by and large that the employer through his witness~s D_\l'll, ,qw2 and DW3 had proved ·· · the allegations against the :~pplicarit errrployee on the balance of probabilities because the "charge -'" :de., la}pr~uve' 0 ,, (the 1burden of proof) lies to the employer. The respondE:?nt's auditor (internal auditor) DWl clearly told the Commission what -he found as illegal or: dubious transaction which the applicant committed by using his password and hence the employer charged hinJ ·of dishonest and lose of trust over his duties as assistant accoun,tant and credit controller. I entirely and respectfully agree with the learned "arbitrator that the employer lost confidence to the employee _applicant and did not trust him further hence termination. To borrow the wisdom of the Suprerne Court of the Phillippines at Manila in Rowena De 19 Revision No. 207 of 2008 op. cit 8 Leon Cruz V. Bank of the Phillippine Islands20 the Court on trust and confidence held that:- . ... On the other hand the basic premise for dismissal on the ground of Joss of confidence is that the employee concerned hold a _position of tru5-t and confidence;. .It -is the breach of tr1:1B:t that r~su/ts in the employer's Joss of cqf:ifidence in( the employee21 ••• The above Supreme Court decision which ·:i~. highl,Xpersuasive may be applied to the instant case at hand, the e.mployer ..-t_aking into account all ',,·· .. the circumstances had lost trust _and c9nfidtnc~ tM><:his assistant accountant and credit controller as. cleaply shd.w~. 'ln .the evidence before the Commission. A great degree of frusjworthiness was .required and expected from the applicant employee. This position was also reached by the Labour Appeal Court of:Sout:t;) Africa in JD Group Ltd V. De Beer22 (South Africa Labour Laws,are ip ·.~- - : parirnateria with our laws) the Court said:- 0 " . ... On the other hand we agree that a greater ..- . degree of trustworthiness is to be expected from a.-more senior employee to which may be added a greater measure of responsibility. ~he employee's senior position must therefore be regarded as having aggravated his conduct23 ••• 20 GR. No. 123357 Panel Justices Valasco, Peralta, Abad, Mendoza and Leonen Supreme Court of the Phillippines . Island 21 ibid 22 [1996] 17 ILJ 1103 LAC 23 ibid 9 · The applicant employee had worked with the respondent from! the · year 2008 to 2010 when his services were terminated and during this time the applicant was required all the time ·to act and work in good faith because:- .. .In- common law the employee must act in good faith. towards the .employer an. employee ·.who. f~ .·· guilty of misconduct breaches the cominpn law; duty to act in good faith towards <· the employer... see NMB PLC v. Aiz~ck Amos, Labour Revision No. 6 of2013 L9bourcourt at Dar Es Salaam24 ••• As the CMA record clearly, shows, thEl applicant was charged yvith dishonest. The dishonest .. resulieo to the . loss of- confidence and trust by ~ , ' '. the employer to his employee and it was difficult .for the ~mployer to continue with the. applicant·· er11ployee whom he had lost trust ~and confidence on him.~. .ln strerngthening my point here· I will once again · borrow the .wisdorn of. t,he Supreme Court of the Phillippines Islandrs! in Rowena De ·Leort'Cruz· V. Bank of the Phillippines Islands25 (supra) in which it was held that:- ... (A) s a general rule employers are allowed a wide latitude of discretion in terminating the services of employees who perform functions by which thf!ir nature require the employee's full trust and confidence... mere existence of basis for ~ . See also NMB V. David Bernard Haule Rev. No. 5 of 2013 25 op. cit 10 believing that· the · employee · has breached the · trust and .confidence of the employer is sufficient and does not require proof beyond reasonable . doubt... thus when an employee has been guilty of breach of trust or his employer has ample reason . to distrust him a /abol!r tribunal cannot. deny the empl9y.,er ,,-, the.,. ::,: authority to dismiss him... ( emphasis mine). ' I entirely and · respectfully agree with the ·commission that the employee's dishonest had. forced the employer -- ,!o ·.. lost confidence and trust . ,--. on the employee. The employer had pr:ov:ed ·on tl;l@ balance of probabilities and has ample reason to distruQthim (employee). The employer had valid .• reason therefore to terminate t,he:applicant employee as correctly found by the arbitrator in the Commission. As regards to the PEOce¢ural fairness I entirely and respectfully, agree . ' with the learned . arbitrator that the employer ··: . respondent faulted : the procedure before .he- terminated the ~mployment . of. the applitant . employee. The Commission observed that under Rule 13 (5) of the Code of Good Practice 26 where it is stated:- ... evidence in support of the allegations against the employee shall be presented at the hearing. Th_e employee . shall qe given the proper opportunity at the hearing to respon_d to the 26 GN. No. 106 of 2007 op. cit · 11 a/legations/ question and ,witness called by the employer and call witness· if necessafY7••• The Commission found that the applicant employee was _not given any chance or opportunity to make his defence or even to quest1on employer's witnesses who had prepared the written evi~ence _ against him -. ( employee applicant). However he furth~r observed:Jlci:at ~~!- , .,;.. ev~~f:,th~. •liecord · of the meeting shows that, and it was put cl_ear ~hat,~nere~:were no witnesses called from both side. This act denied t!1~ right of the employee to cross-examine the employer's witnesses of_wll9t th~Y·??W against him:- .. .Hakupewa. . nafasi ya "'-~uJ/te~ea 1,t-/7au (sic) kuwahoji masha/7idi . ..-. .. iyll ;- ·ng/i;}lam/kiWa ,.,.. waliopata kuandaa . ushah_idi -. · -w&.:. ,:. maandishi ~~ . dhidi ya rnlalamikaji-lakirit-pia ·hqta .muhtasari ·-wa- kikao · hicho umeweka wazi . kuwa hakukuwa na mashc1.hidl ·.toka •. . ·. ""·. pande .zote mbili... hiyo pekee ·, il{{77!lyirna nala5i mlalamikaji kuwapima kwa ,._., maswalijuu ya kila walic,hokiona dhidi yake na yeye kt1Jitetea vyema28 ••• . The n{ght;i;; be heard is a fundamental and extremely important aspect>et n~tural justice which when denied "chills// the procedural fairness " by and large. Although the arbitrator is not advised to treat or approach the Code of Good Practic(;_O Rules especially Rule 13 (1) - (13) in a "check list approac/i' but to make sure that the employee was given chance to 27 ibid Rule 13 (5) 28 CMA award op. cit.at p. 14 see also Rule 13 of the Code of Good Practice Rules Government Notice No. 106 of 2007 12 rebut the allegations of misconduct by being given a right to defend himself and put questions to the employer's .witnesses. I will strengthen my point here by borrowing the wisdom of Proffessor Tamara Cohen 29 in his article titled unfair dismissal a contributing article in Proffessor Du . ~- Tait et at. text book titled Labour Relations Law: A Comprehensive Guide30 2015, 6th edition that:- ... When assessing compliance with the Cede of· . Good Practice; arbitrators must. .'.guide ·agains(.i? ''check list approach'~ ..it does not'folfqw tha{an employer who failed to comply with one er more of its reco~mend;tion has ,c1i-leq ·}lltfairly. The test is whether:thefe has, bel!~·:; substantial .. -_ -:~: co,npliance with the overall obligation to . .. " . . allow an employe~ 1:Jpp<irtunity to rebut the allegations~.,oF misconduct and bringing the :attention iof · the employer any relevant information · before a final decision is takerr1 ••...{emphasis mine). Now in so ... far as the applicant employee was not given an opportunity to defend himself and cross-examine· witnesses of the . . . employer-it cannot be said that there was substantial compliance with the 29 Proffessor Tamara Cohen is a Proffessor of Law at the University of Kwazulu Natal in South Africa, Papar unfair dismissal 30 th Lexis Nexis Durban South Africa 6 Edition 2015 . 31 Professor Cohen op. cit NOTE 29 13 overall obligation to allow an employee opportunity to rebut the allegation of misconduct leveled against him (employee) 32 • In view of the foregone the arbitrator was correct to grant the employee ttle compensation of ·four months' salary for the employer's failure to follow a fair procedure before terminating the e11J-r?Joyee. The compensation the arbitrator had order was fair in the{,di~Gu~~ta~ce§_ regard ·~-· .· ,_ ·.'"·. ·:.,,_;·· being had to Rule - 32 (SO of the Labour Institutions' GMedia~"fi'on and _- .< Arbitration ___ Guideline) -GN. · No·. 67 of 2007 ,,whlc:h requires that an arbitrator may make an award of approp.riat~ conipensation based ". : on the circumstances of each case consi~ering the following -- factors:·" ,·• . (a) Any prescribed - minimum or~- ma.xii:num .-- ~- compensation. ~{·· . (b) The extent to which _,· th~<te~'mJnation . ;-~ was fair. - . __:f {c) 771e consequence;; of unfair termination for the parties including the exte11t to which the employee was able to secure _alterna~'ve wqrk-or employment. ( d) The ainqur,t:af employees remuneration. (e)_, ·- Th~ amount of compensation granted in previous similarities. (f) :v:he parties conduct during the proceeds and any other relevant factors33 ••• 32 See also Revision No. 33 of 2015 Said Kitundu and 149 others V. Chief Executive Officer TPC Ltd. where this Court held that the Code of Good Practice GN. 42 of 2007 is not a codification of law, save it is a Guide to Good Practice in which case it is not a mechanical check list of obligatory formal steps 33 Labour Institutions (Mediation and Arbitration) Guidelines GN. No. 67 of 2007 14 This Court has also. in various occasion notably in -the ·case· of Sodetra SPRL Limited V. · Njellu Mezza and another34 l:leld · that the - arbitrator rnay order a compensation of less than twelve months salary · compensation where appropriate- and the_ compensation -is fair and just in • • ♦ "' • the circumstances and -that it is not in all cases that the arbitrator may· award a twelve months salary compensation. In the finally analysis the present r~vision .· applicatiom; is unmerited ,;- - :..,~·· and consequently I proceed to dismiss it. Revisi9r1 ,€Jj_5.missed in its entirely -- ;.~• •::- C and the Commission (CMA) award is hereby-confimiJled. <•• • Appearance:- 1. Applicant: Present and Rascal Temba, TASIWU 2. Respondent: M/5 Antonia Agapiti, Advocate Court: Jyd_gment is<read today in the presence of the parties as shown in the :appearance above. \\~~\In~ LS. ~pa~a JUDGE 02/12/2016 34 op. cit note 17 15 Right of appeal explained:· · .. . ltt\h~k&) · . · 1.s. Mipa1a JUDGE _ 02/12/2016 -- 16