national bank of commerce vs mwinyishehe mussa 2020 tzhcld 4 30 march 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 393 OF 2019 NATIONAL BANK OF COMMERCE.................................APPLICANT VERSUS MWINYISHEHE MUSSSA..........................................RESPONDENT JUDGMENT Date of last Order: 14/02/2020 Date ofJudgment:30/03/2020 Z.G.Muruke. J. The applicant National Bank of Commerce (NBC), filed present application, seeking for revision of the decision issued by Commission for Mediation and Arbitration, (herein to be referred as CMA) on 28thOctober, 2018, in Labour dispute no. CMA/DSM/ILA/R.619/15/ by Hon. H. I. Lukeha, Arbitrator that was in favour of the respondent. Application is supported by affidavit of Sweetbert Mapolu, Employees Relation Manager of the applicant, in opposition, respondent filed a counter affidavit sworn by Elibahati Thomas Ayo, the respondent's advocate. Hearing was by way of written submission, both parties adhered to the schedule hence this judgment. The applicant was represented by the Advocates from Law front Chambers namely Evod Mushi, Godfrey Tesha, Innocent Felix and Priscus Richard. While the respondent was represented i by TUICO counsels namely Elibahati Akyoo, Noel Nchimbi, Prosper Mrerna and Jamael Ngowo. Briefly are the facts of the case.The respondent was employed by the applicant as Officer-teller Services, Corporate branch. He worked with the applicant until 30th September, 2015 where he was terminated on gross negligence, which caused loss of USD 20,000. It was alleged that, the respondent was legally invited by one Mariam Mabulla who was the teller supervisor, and responsible for counting and parking money. The respondent was asked to assist her in counting and parking the money. The respondent negligently parked less amount to the tune of USD 20,000.00 in the denomination of 100, as a result the amount received at G4S Cash Centre was USD 980,000.00 Being dissatisfied with the termination, the respondent referred the dispute to the CMA where the decision was on his favour. Aggrieved with the award, the applicant filed the present application. Submitting on the grounds of revision the applicant stated that, the arbitrator in her award held that, the applicant had no sufficient evidence to prove that the respondent committed misconduct of gross negligence during counting, verification and parking the money which resulted into loss of USD 20,000. The arbitrator failed to consider the evidence of DW1 who testified that, the applicant as a bank has control measures to ensure safety and procedure during the whole transaction, from counting, verifying, parking and transporting. Therefore, it is easy to trace the lost money if any. Applicant counsel further submitted, the most comprehensive measure is computerized system of counting money, where all the money counted by the machine is tracked in terms of its serial number, number of counted notes and its value. After counting, the machine produce the duplicate of casting rode (mikanda maalum) and receipts which shows whole details as stated above. Normally, one casting rode is used to tie the bundle of counted money and the second casting rode remains with the person who counted the money as evidence of the counted money and its value. The applicant Counsel further submitted that, after the allegation of the lost 20,000 USD, the respondent and the other persons who counted and parked the money, failed to bring the casting rode and the receipt of the said 20,000 USD. The fact that the amount of USD 20,000 were missing and the respondent failed to trace the casting rode and receipt, by implication and on the balance of probability the money was not counted. The arbitrator findings based on the CCTV cameras that, the same shows the counting and verification, but CCTV cameras did not show the negligence of the respondent and the CCTV footage was not brought as evidence at CMA was not proper. That, the CCTV camera are among the control measures, as they record the person doing, it does not mean that absence of the cameras, and the money can be lost without being traced insisted applicant counsel. When there is a dispute on the amount of money counted and transported between the counting place and the cash centre, it is simple to trace where the money lost as counting person is supposed to show 3 the casting road and receipt remained to prove that the money were real counted. Regarding procedure, the applicant submitted that, the arbitrator was wrong to hold that, the respondent was not issued with the investigation report, the issue which was not raised before CMA by the respondent. Hence deciding basing on that fact, denied the applicant right to be heard as he did not argue on the same. According to the Disciplinary Capability and Grievance policy of the applicant in exhibit NBC-6, the Chairman of the disciplinary meeting is allowed to sign the termination letter. The law does not prohibit the same, referring the guideline 4(7), 4(9) and 4 (11) of the Employment and Labour Relations (code of Good practice) Rules GN 42 of 2007. On the relief for the respondent, the applicant submitted that, the arbitrator erred in law and fact by ordering reinstating without considering thatthe employment relationship between the applicant and the respondent has become intolerable, citing Rule 32(2) b of the Labour Institution (Mediation and Arbitration) Guidelines GN 67. Applicant counsel insisted that the nature of the banking business which deals with clients money, requires the highest degree of honesty and integrity, referring the case of Twiga Bancorp (T) Ltd V Assumpta Kimwaga, Rev, No. 151 and 167 of 2016 (unreported) and the case of NBC V Justa Kyaruzi , Rev. No. 79 of 2009, HC Mwanza (unreported), thus prayed for revision and set aside of the CMA award. On the other hand, respondent counsel submitted that, it is true that the applicant had no valid reason to terminate the respondent. The respondent was unfairly terminated, because the outcome of the Disciplinary meeting held on 9th September, 2015 proved that he was not guilty for gross negligence, however he was charged with another offence of being dishonest. Respondent was informed that the disciplinary hearing will be conducted for that offence, but the same was not held, hence the applicant failed to prove the said claim. Surprisingly the respondent was issued with termination letter dated 30th September, 2015. The respondent had no duty to produce neither the casting road nor the receipts, because they belong to and employer and not employee. The respondent's duty was not counting the money but verifying the money bundles. The arbitrator was correct to base her findings on the premise that, the CCTV camera could have been brought by the applicant being the only reliable evidence to justify allegations as no any reliable security in the bank other than CCTV cameras which may justify the misconduct on an employees at the cash Centre. Regarding fairness of the procedure, the respondent submitted that the procedure were not followed by the applicant, because the respondent was not given a right to be heard on the 2nd charge as no disciplinary hearing was conducted on the same. Again, the issue of the Chairman of the disciplinary hearing to sign termination letter was just a miscellaneous one, hence of no consequence since the respondent was found not guilty on the first disciplinary hearing on the charge of gross negligence. Moreover, regarding the order of reinstatement, the arbitrator was right to order the same, since it was prayed by the respondent, and more so, the applicant failed to prove the reason for termination. Further, the respondent insisted that, the cited cases of Twiga Bancorp (T) Ltd V Assumpta Kimwaga and NBC V Justa Kyaruzi are distinguished as in this case, the respondent was not found guilty. In the case of NBC V Justa Kyaruzi, Justa was not honest and she admitted her charges, the only thing to compare in that case is deprivation of the right to be heard. Having gone through the submissions of both parties, I believe this court is called upon to determine the following issues: 1. Whether it was proper for the arbitrator to hold that, the applicant had no valid reason to terminate the respondent. 2. Whether the procedure for termination were adhered. 3. Whether it was proper for the arbitrator to order reinstatement of the respondent. It is a principle of law that, termination of employment must be on valid and fair reasons and procedure. For termination to be considered fair, it should be based on valid reasons and fair procedures. There must be substantive and procedural fairness of termination of employment as provided for in Section 37(2) of the Employment and Labour Relations Act, No. 6 of 2004 which states that:- 6 "Section 37 (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) 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." In the case of Tanzania Revenue Authority V. Andrew Mapunda, Labour Rev. No. 104 of 2014, Aboud J. held that:- "(i) It is the established principle that for the termination of employment to be considered fair it should be based on valid reason and fair procedure. In other words there must be substantive fairness and procedural fairness of termination of employment, Section 37(2) of the Act. (ii) I have no doubt that the intention of the legislature is to require employers to terminate employees only basing on valid reasons and not their will or whims." Also this court in the case of National Microfinance Bank V. Saphet Machumu, Rev. No. 710/2018 (unreported) it was stated that:- "Termination of employment must be first substantively fair with fair and valid reasons putting in regard that the concept of right to work as a component of human rights, is so fundamental...." After cautiously analysis of the evidence, from records I have observed that through exhibit NBC 1 (notice of attending disciplinary hearing), the respondent was charged for gross negligence. After disciplinary meeting has been held, according to exhibit NBC 2 at page 13 dated 9th,September,2015 the finding of the meeting were that the respondent was not guilty of the offence of gross negligence, but he will be charged for dishonest as he adduced wrong information that he did not participate in sealing bags used for repatriating money to G4S Cash Centre. I hereby produce the finding for easy reference: "Not guilty but new charge of dishonest to be issued" Again on 17th September,2015, the respondent was issued with a demand to give explanation regarding being dishonest (Exhibit M4), as the respondent denied to have involved in sealing the bags which were used in repatriation of the said sum. The same was replied by the respondent as per exhibit M5 on 21st September, 2015. From the records, I find no evidence as to the disciplinary meeting concerning the 2nd offence as it was not involved in the first hearing. What I have seen is that, the respondent was issued with a termination letter dated 30th September, 2015, where the respondent was terminated for both offences of Gross negligence and dishonest without considering that, the respondent was found not guilty in the disciplinary hearing. The respondent appeal was dismissed as the decision was upheld as per exhibit M8 dated 2nd November, 2015 8 I believe that, the disciplinary meeting that found the respondent not guilty on the 1st offence of gross negligence was a valid meeting. For the 2nd offence of dishonest, since the respondent was never afforded a right to defend regarding the same, it cannot stand as a valid reason for terminating the respondent. Basing on the above discussion, I find no need to fault with the arbitrators finding that the applicant failed to prove that he had valid reason for terminating the respondent because: One; He was not found guilty on the offence of gross negligence. Two; On the 2nd offence, there was no disciplinary hearing, therefore he was not given a right to be heard. Three; Surprisingly, on termination letter he was terminated on both offences. On the issue of fairness of the procedure, it is obvious that, the respondent was terminated without being given a right to be heard and defend himself on the second count. It a principle of law that a person shall not be condemned unheard. The right to be heard and defend in any matter before the Court, or any decision making body is so fundamental and a Constitutional one. There are various court decision insisting on the same. In case of Abbas Sherally & another vs. Abdul S.H.M Fazalboy, Civil Application No. 33 of 2002, the Court held that: - 'The right of a party to be heard before adverse action or decision is taken against such a party has been stated and emphasized by the courts in numerous decisions. That right is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of natural justice". "It has long been settled that a decision affecting the individuals rights which is arrived at by a procedure which offended against principles of natural justice, is outside jurisdiction of decision-making authority." Also in the case of Mbeya - Rukwa Auto parts andTransport Ltd. vs. Jestina Mwakyoma [2003] TLR no. 251, it was held 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 the equality before the law, and declares in part:- (a) wakati haki na wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi na Mahakama au chombo kinginecho kinachohusika, basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikilizwa kwa ukamilifu". I thus find no reason to fault with the arbitrator's finding that procedures in terminating the applicant were unfair. Arbitrator ordered reinstatement without loss of remuneration as found the respondent was unfairly terminated, both substantively and procedurally. In the CMA FI from record I have noted that, the respondent prayed for reinstatement. 10 In the case of Qatar Airways V Elizabeth M Kuzilwa, Rev. No. 218/2013 it was held that: "In practice, a decision makers 'exercise of such discretion is guided by peculiar facts of each case. Generally, where termination is adjudged unfair on procedural on procedural grounds only, and depending on the importance of flouted procedure, a decision maker will award compensation instead of reinstatement or re-engagement under Section 40(1) (a) and (b) respectively. But, there where termination is adjudged both substantively and procedurally unfair, reinstatement would be the appropriate remedy" The applicant terminated the respondent without valid reason, without considering that, the issue of termination of employment, costs someone's life. The termination denied the respondent's right to work. This court in the case of John Msigala Vs. Pan African Energy Tanzania Ltd, Lab Rev No. 688 of 2018 DSM, (Unreported), stated as follows:- "Employer should not gamble with One's right to work. To this court "A man's right to work is just as important to him as, if no more important than, his rights of property". Thus, termination of employment must be first substantively fair with fair and valid reasons putting in regards that the concept of Right to work as a component of human rights, is so fundamental and ii 12 therefore guaranteed by different international legal instruments". Similarly, the Universal Declaration of Human Rights of 1948 provides for the right to work which is to the effect that:- "Article 23 (1) ... everyone has the right to work to free choice of employment to just and favorable condition of work and to protection against unemployment..." Applicant is financial institution doing banking business, as a submitted by the applicant counsel. The Nature of the applicant work, trust worth is very vital. Once, there is mistrust whatever little it might be, it is not health for the bank (employer) to continue with such an employee. Thus, for interest of justice and view of protecting applicant, (the bank) forced to continue with employee that they don't trust any more, following orders will meet end of justice. i. Respondent to be paid his salaries he was receiving before termination to the date of this judgment. ii. Respondent be compensated by being paid 12 month salary. iii. Respondent be paid leave, if not taken before termination. iv. Certificate of service. 12 Therefore, since it is the finding of this court that, the termination was unfair both substantively and procedurally, I hereby uphold the CMA award with the above variations. Application is dismissed. JUDGE 30/03/2020 Judgment delivered in the presence of Priscus Richard for the applicant and the respondent in person. JUDGE 30/03/2020 13