national bank of commerce nbc ltd vs mariamu mabula 2020 tzhcld 22 13 march 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO 916 OF 2018 BETWEEN NATIONAL BANK OF COMMERCE (NBC) LTD............ APPLICANT VERSUS MARIAMU MABULA........................................... RESPONDENT JUDGEMENT Date of Last Order 25/02/2020 Date of Judgement 13/03/2020 MWIPOPO J. The applicants in this Revision application is calling upon the court to examine and revise the Commission for Mediation and Arbitration (herein the CMA) award in labour dispute No. CMA/DSM/ILA/621/15/182 dated 28/09/2018 before Hon. Kyobia, L. Arbitrator. The application is preferred under Section 91 (l)(a)(b), (2) (b)(c),(4)(b)(i) and section 94 (1) (b) of the Employment and Labour Relations Act, No. 6 of 2004 (to be referred ELRA), Rule 24 (1), (2)(a)(b)(c)(d)(e)(f),(3)(a)(b)(c)(d) and Rule 28 (1) (a)(b)(c)(d)(e) of l the Labour Court Rules, GN. No. 106 of 2007 (to be referred as Labour Court Rules) and any other enabling provision of the law. The background of the dispute in brief is that, the respondent was employed by the applicant as Accounting Officer since 07/10/1989 until 18/09/2015 when she was terminated from employment. She was custodian of strong room. The respondent was condemned by the applicant for negligence after USD 20,000/= was lost during the process of counting and transporting money belonging to the applicant. The applicant charged the respondent with the offence of gross negligence where the respondent was terminated after being found guilty of the offence. Dissatisfied by the decision of the applicant, the respondent referred the dispute to the Commission for Mediation and Arbitration where the dispute was decided in favour of the respondent. At the hearing of the revision application, applicant was represented by Mr. Tesha learned counsel while respondent was represented by Mr. Akyoo learned counsel. The revision was heard orally and Mr. Tesha prayed to adopt the affidavit of Sweertbert Mapula Employees Relation Manager (Human Resource Manager) of the applicant to form part of his submissions. He 2 stated that the respondent have two legal issues to be determined by this revision. Arguing the first issue, Mr. Tesha submitted that the Hon. Arbitrator failed to put into consideration the evidence of DW2 one Mathias Mjuamungu who stated that the applicant bank have various safety control measures when the money is counted, verified ,parked and transported. He stated that the applicant have the most comprehensive system of counting money where by computer tracks all notes information including serial number of the notes, value of the note and total value of the notes and number of the notes. Further he submitted that after counting the money, the computer produce the duplicate casting ropes which one remains with the accounting officer another one is parked with the money in the case of any loss of that money it will be easy to trace where the money was lost. This evidence was undisputed even the respondent admitted it in page 12 paragraph 3 of the CMA award. There after the USD 20000 was lost. He stated that the respondent was supposed to produce the casting rope to prove that the money was counted. During the hearing at the Commission there was evidence that the respondent with her collogues 3 are the one who counted the money and they were given time to produce casting ropes but they failed to produce the same. Further Mr. Tesha argued since the CCTV camera does not show clearly how the money was lost, therefore it is a weak evidence for the respondent to rely upon. He went on by submitting that it was his opinion that the CCTV camera is among the measures of controlling the procedure of counting money. CCTV camera always record action and not each event. He added that if the respondent with her collogues decided to leave that USD$ 20000 in the strong room then CCTV camera couldn't show. The most important evidence to show where money was lost is casting ropes. Casting ropes shows if the money was counted and packed. On the second issue the learned counsel argued that the Hon. Arbitrator failed to consider appropriate relief to the respondent if the termination was unfair according to Rule 32(2)(b) of the Labour Institutions ( Mediation and Arbitration) G.N No.67 of 2007. The Hon. Arbitrator erred in law by ordering the applicant to reinstate the respondent to her position. Supporting his argument, he referred the case of Twiga Bankcorp(T) LTD Vs Assumpta Kimwanga 4 ,Revision No.151 and 167/2016,HC Lab. Division DSM Registry(unreported), where it was held that;- " .................. involved banking Industry were honest and trust are key factor an order for reinstatement is not appropriate remedy He was of the views that decisions of superior Court are directives to the CMA, therefore order for reinstatement or re-engagement is not appropriate award for bank cases. He therefore prayed for the court to revise and set aside the CMA award. In reply, Mr. Akyoo submitted in respect of the first issue that, the arbitrator was right to determine that the respondent termination was not fair substantively and procedurally. The applicant charged the respondent for failure to pack USD$ 20,000 and causing loss of the same amount to the applicant. The evidence adduced at CMA did not prove that the respondent was negligent as required by the law of evidence Act, CAP. 6 R.E .2002 under section 110(1). Furthermore Mr. kyoo argued that the applicant failed to give reason whether the termination was valid, which is contrary to Section 5 37(2) (a) of the Employment and Labour Relation Act. He went on by arguing that the arbitrator did consider all documents from the applicant. Forensic report was one of the document tendered by the applicant and admitted as Exhibit Dl. He submitted that the termination was not fair because the reason for termination purely based on the Forensic Report, exhibit D l (Barclays Affric forensic Investigation and whistle blowing). The recommendation of the report did not prove any misconduct or negligence of the respondent but the report shows that the applicant was negligent for failure to make sure that CCTV camera are performing adequately. Further, he argue that Exhbit D l shows that the review of CCTV footage from Cooperate Branch suggest that counting area was very congested and it was not fully covered by CCTV. Three staff members namely Mariam Mabula, Agatha John and Mwinyishehe Musa were properly covered by camera and the footage is properly seen. There is no evidence that the parked cash bags left the cash counting area with abnormalities as all three bags were inspected three times at the area. Therefore, the report tendered by applicant at CMA and admitted as exhibit D l has no evidence against the respondent. 6 On the issue raised by the applicant that the bank has various measures to ensure that all money are safe, Mr. Akyoo submitted that the only truth that can be traced in this scenario is CCTV camera in both sides, cash counting area and G4S cash handling area. Regarding the Casting rope, he argued that it is a property of the employer therefore is not property of the respondent. Therefore it was not respondent duty to be asked to bring it back. In respect of the second legal issue which is about the relief awarded by the CMA, Mr.Kyoo argued that the relief awarded is a discretion of an arbitrator as per Rule 32(2) (b) of G.N No. 67 of 2007. Also he faulted TWIGA'S CASE that is distinguishable as in this case there was no option to the employer to re-instate or not to re-instate the respondent. But in this matter the arbitrator gave an employer two option either to reinstate her and pay her dues or to pay respondent the amount ofTsh 52,488,506/=. In respect of the JUSTA'S CASE, he said in this case the respondent Justa Kyaruz admitted her misconduct as per page 15 paragraph (a). Therefore, these two cases are distinguishable with the present matter. 7 He further argued that the arbitrator awarding re-instatement without loss of remunerations to respondent was collect because the respondent was not proved guilty of misconduct comparing to the cited cases. He therefore prayed for application to be dismissed and uphold the CMA award. In rejoinder, the applicant's counsel reiterated his submission in chief and responded on the issue of reliefs, that the discretion power has to be exercised judiciously and according to the law. Having heard both parties, I believe that this court is called upon to resolve the following issue:- i. Whether the applicant have a valid reason for terminating the respondent employment; and ii. Whether arbitrator properly procured the award. To start with the first issue, the Employment and Labour Relations Act, 2004 in section 37 (2) provides for the duty of the employer, in dispute for termination of employment, to prove that the termination was fair. Section 37 (2) reads as follows:- "Section 37 (2) A termination of employment by an employer is unfair if the employer fails to prove- 8 (a) that the reason for the termination is valid; (b) that the reason is a fair reason - (i) related to the employee's conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer, and (c) that the employment was terminated in accordance with a fair procedure. The intention of the legislature in the above section is to require employers to terminate employees on valid reason and not on their own whims. From the above legal position, it is well established principle of law, that once there is issue of unfair termination the duty to prove the reason for termination was valid and fair lies to employer and not otherwise, (see Tiscant Limited Vs Revocatus Simba, Revision No. 8 of 2009, High Court, Labour Division, at Dar Es Salaam) In the present matter, there is no disputed from both parties concerning legality of the procedure for termination. The dispute between parties herein is validity of the reason for termination of respondent employment. 9 It's clear from the record that the Exhibit D1 (Forensic Report) was among the evidence tendered before CMA by the applicant. This is one of the evidence used by the employer to terminate the respondent employment. According to exhibit Dl, it was not against the respondent but was against the applicant. The information in exhibit D l is showing that the CCTV camera was not working properly. The applicant did not dispute the content therein as provided under page 2 of exhibit Dl. The Applicant's failed to give reason at CMA as to why CCTV camera was not working properly. The applicant is the one who responsible to maintain and make sure that CCTV cameras are working properly. CCTV camera evidence is one of the best evidence to prove the banking activity in the respective areas. Failure to maintain or to buy CCTV camera to cover all areas means that the applicant is also negligent. It will not be fair to punish the respondent because of the applicant's negligence. The evidence in record shows that the activity of counting, parking and handling money to G4S was not performed by the respondent only. There was other staff who performed some task. Further, there is no evidence as to where exactly the allegedly money was lost as the money was handled to the G4S for transporting the same. It was found at cash 10 centre after the money arrived that USD 200,000/= was lost. There is no evidence adduced which show that the money was lost in the hand of the respondent and nobody else. DW2 - Mathias Mjuamungu testified that as the investigator he found cameras have problem from Bank side and in the G4S side. Therefore the CCTV does not show what transpired in those areas. The applicant reason for terminating the respondent employment is gross negligence. The learned Counsel for Applicant submitted that the Respondent failed to produce casting rope which is proof that money was counted properly but there is no evidence adduced on the issue of casting rope at all at the CMA. What was an issue is receipt that is put in each bundle of cash. And the respondent answer concerning the receipt is that it is applicant's document thus it is in the hand of the employer. I am not sure if the casting rope and the receipt are one thing. The applicant further alleged that possibly the respondent left the lost money in the strong room, but there is no evidence to that. This is just a suspicion, and however strong, it does not prove the offence. The respondent in her testimony before CMA stated that she followed all procedure during the process of counting, parking and handling money to the G45. On the next days she was informed that 11 there are some money worth USD 20,000/= was found missing at cash center. From the above, it is my finding that there is no evidence to prove that the money was lost in the hands of the respondent hence the offence of gross negligence which the respondent was charged by the applicant during disciplinary hearing was no proved. Thus there was no valid and fair reason for terminating respondent employment. The second legal issue is whether the arbitrator properly procured the award. The respondent in CMA form number 1 prayed to the Commission for reinstatement. The Commission in its award ordered the applicant to re instate the respondent without a los of income up to the date of delivery of the award. The commission also ordered in alternative, if the applicant find it difficult to take back the respondent, to pay the respondent salaries for the months from termination of respondent employment to the date of the CMA award. Also the applicant have to pay 12 months salaries as compensation for unfair termination. The ELRA provides in section 40 the remedies available upon finding of unfair termination. Section 40 of ELRA provides that: - "40 (1) if an Arbitrator or Labour Court finds a termination is unfair, the arbitrator or Court may order the employer- 12 (a) to reinstate the employee from the date the employee was terminated without loss of remuneration during the period that the employee was absent from work due to the unfair termination; or (b) to re-engage the employee on any terms that the arbitrator or Court may decide; or (c) to pay compensation to the employee of not less than twelve months' remuneration Under the circumstances of this case, where the respondent was unfairly terminated substantively, it is my view that she was entitled to reinstatement. This was among her prayers sought in CMA Form No. 1. Therefore, the respondent is entitled to reinstatement without loss of remuneration during the period that the employee was absent from the work. The applicant have submitted that in the banking industry where honest and trust are key factor an orders for re-instatement is not 13 appropriate remedy and he cited the case of Twiga Bancorp. I agree with the submission that the position is correctly stated and this court has reiterated the position in several cases. In the case at hand, the CMA awarded the respondent with the order for re-instatement without loss of remuneration and in alternative to pay the Respondent the Compensation of salaries from the day she was unfairly terminated (02/11/2015) to the date of the CMA award which is 28/09/2018 plus a compensation of twelve months salaries for unfair termination. It is my finding that the CMA award was lawful to the extent that the applicant have to compensate the respondent for salaries from the day she was terminated 02/11/2015 to the date of CMA Award 28/09/2015 plus 12 month salaries for unfair termination. Therefore, re-instatement order is hereby set aside and the compensation order by the CMA is upheld. Thereafter, having found that the applicant had no valid reason to terminate the respondent's employment, I do not hesitate to say this application have succeeded to the extent discussed herein. A. E. Mwipop JUDGE 20/03/2020 14