final NICODEMAS MATHEW SELEMAN 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB - REGISTRY AT MOSHI LABOUR REVISION NO. 25394 OF 2023 (Arising from the decision of the Commission for Mediation and Arbitration of Kilimanjaro at Moshi dated 29th September, 2023 in Labour Dispute No CMA/KLM/MOS/ARB/71/2021) NICODEMAS MATHEW SELEMAN……………..…….………………APPLICANT VERSUS TPC LIMITED………………………………………………………….RESPONDENT JUDGMENT 17th July & 21st August 2024 A.P. KILIMI, J. The applicant in this application, Nicodemas Mathew Seleman was employed by the respondent TPC Limited as a driver in 2014. His employment was terminated on 3rd September 2021 after being subjected to a disciplinary hearing following what was termed as insubordination against his employer. Undeterred with respondent action he instituted a labour dispute claim at the Commission for Mediation and Arbitration of Kilimanjaro at Moshi (“CMA”) alleging unfair termination of his employment and claiming his employment to be restored. 1 After hearing both parties the CMA decided the matter in favour of the respondent. Aggrieved by the decision of CMA, the applicant has preferred this revision under section 91 (1) (a) (b) and 2 (a) (b) of the Employment and Labour Relations Act, No. 6 of 2004 (the ELRA) and Rule 24 (1), (2) (b), (c), (d), (e ), (f) and (3) (a) (b) (c ) (d) and Rule 28 (1) (a) (c) (d) and (e ) of the Labour Court Rules, GN No. 106 of 2007 (The Rules). In his supported affidavit to this application, he specifically pleaded in paragraph 10 items (i) – (vi) grounds which should be considered in this revision. On 17th July, 2024 when the matter was called up for hearing the applicant was represented by Mr. Manase Gideon from TASIWU as personal representative whereas the respondent enjoyed the service of Mr. David Shilatu, learned advocate. Mr. Manase arguing in support of the application commenced by adopting the applicant’s affidavit to be made part of this submission. He then faulted the decision of CMA which he said did not occasion justice to the Applicant. He argued that the Employer/Respondent made allegation to the Applicant on three matters, that first he was drunk at work, second, he 2 uttered abusive language in front of co-workers, and third he did not obey instruction of his leader, the allegations which were not true. He submitted further that according to the provision of section 39 of the Employment and Labour Relation Act “ELRA” No. 6 of 2004 requires the employer to prove allegations against his employee. It was Mr. Manase’s submission that the Respondent failed to prove the said allegations at the CMA yet the CMA agreed with the respondent allegations and made an award which according to him was unjustifiable. In respect to allegation that applicant was drunk, Mr. Manase contended that it is not true that applicant was drunk at work and that no test for alcohol was done to the applicant to prove the allegation. He also submitted that it is not true that the applicant refused to be tested considering that he was in custody of TPC Security Guards who were called by his leader on the day of incident. He further faulted the decision of CMA denying that the employer did not allege that the applicant was drunk whereas all the exhibits presented and received exhibit T2 and T3 mentioned and listed those three allegations. In respect to allegation of uttering abusive language, it was Mr. Manase’s contention that, it is not true that the applicant uttered abusive 3 language in front of his coworkers because the Respondent failed to bring those co-workers before the Disciplinary committee or before the CMA to prove that the applicant did utter those abusive languages. Therefore, it was his submission that exhibit T2 and T3 did not prove that Applicant was drunk or uttered abusive language. Addressing the issue of procedure Mr. Manase contended that the respondent did not follow the proper procedure for terminating the applicant’s employment. To prove the same, He argued that the Applicant was interdicted from work pending an inquiry which was to be done but after the inquiry, the applicant was neither given a report of the said inquiry nor copies of hearing forms of the Disciplinary Committee. In respect to Disciplinary committee Mr. Manase faulted its composition by being full of senior management leaders as stated in applicant’s affidavit at paragraph 7. He also faulted Company rules which were tendered at the CMA as exhibit T8 that they are against the ELRA. He was of the view that any regulation and rules at a work place are to be drafted in a language understood by the employees but the company rules were written in English while the appellant language is Swahili and his mother tongue is Nyiramba. 4 Contending further on above rules, Mr. Manase submitted that those rules are silent on which offence the worker will be given oral warning, written warning, and last warning. Further, he said that those rules do not indicate or show which offence when committed would amount to termination from employment or warned. He added that the said rules are silent also on whether the applicant had a previous offence and what actions for those who are recidivists. He argued that the CMA did not at all consider that during his entire employment period of 8 years the applicant never committed any offence nor was he warned for any offence. He insisted that in deciding the dispute the CMA erred by relying on TPC rules instead of the provisions of the law. In regard to terminal benefits, Mr. Manase faulted the decision of CMA that Applicant was paid all his terminal benefits by the respondent while that was not true as the applicant was not paid and that even DW3 Autonia Temba failed to prove at CMA the amount of money which was paid to the Applicant. He also challenged the evidence of DW2 Simon Wilbard Kajanja who was a representative of the Applicant’s workers union at the Disciplinary Committee but later appeared as witness at CMA, he 5 was of the view his evidence ought not be relied upon since as employee of the company he has an interest. Applicant’s representative concluded was a compromised witness. Arguing on unfair termination Mr. Manase submitted that, generally CMA did not do justice that is why in its award did not say what kind of labour laws the applicant had breached instead the CMA used TPC regulations and rules as seen on page 10 of the award which in his view denied justice to the Applicant. On the basis the above he prayed for this court to strike out the decision of the CMA, and order the Employer to reinstate the Applicant to his former position. Retaliating the above, counsel for the respondent Mr. Shilatu, began by adopting the notice of opposition filed and further said in respect to allegation that the applicant was drunk, that was an afterthought brought to this court, because the applicant was never accused of being drunk. He further said Applicant’s offence was stated on exhibit T3 which was presented at CMA. The counsel further submitted that the applicant on the fateful date was stopped by his leader he stopped and uttered abusive language which was explained in exhibit T6 paragraph 5. 6 In respect to allegations that the applicant uttered abusive language in front of his co-workers, the counsel contended that, it is not true as the applicant used abusive language to his leader Dismas Sika (DW1) and not to his coworkers. It was Mr. Shilatu’s further submission that the offence committed by the Applicant was breaching rule 11 and 20 of company rules that is not obeying valid directives or orders of his leaders and use of abusive language. The counsel added that following the said breach, applicant was suspended from work for enquiry to be conducted and after investigation was complete, the Applicant was given a letter showing his offence which was tendered at CMA as exhibit T3. The counsel continued to submit that the Applicant himself replied to the letter of his employer and that he was also called to a disciplinary committee where he and his representative filled a form, which was tendered as ‘T5’. After that the applicant was terminated through a letter which was tendered at CMA as T6. The counsel submitted further that the applicant then appealed internally as seen in exhibit T7 which is a form where he stated therein two reasons, first that he had family problems and second that on the event day he had found his wife committing adultery. 7 Replying to the composition of disciplinary committee, the counsel for respondent contended that the allegation that it was full of Management leaders was an afterthought because at CMA it was not stated in CMF 1. Also, in respect of applicant being directed by one Azore Mwanambiga to go KH 30, he did not call him as his witness at Disciplinary Committee or at CMA thus was an afterthought. In respect to allegation that he was not supplied with the proceedings, the counsel said is a new matter which was not dealt at CMA thus also an afterthought thus misplaced. Thus, the counsel prayed that the submissions by Mr. Manase be disregarded and invited me to refer the case of James Funge Gwagire vs. The Hon AG Civil Appeal No. 67 of 2001. In respect to applicant’s claim that company regulations were against labour laws, the counsel for respondent contended although regulations of the company are privately made but are consistent with the labour laws and said those rules were tendered at CMA as exhibits T8. Explaining further he said the code shows clearly that from number 1 -10 are lesser offences, but from 11-25 are serious offences and its punishment is to terminate an employee. He submitted further that the applicant committed offence under rule 10 and 20 as a result his 8 employment was terminated, thus applicant’s claim is misconceived. Further he argued that the above does not matter the years of service, when employee commits an offence, he deserves to be punished according to the rules and regulations. On the claim of terminal benefits raised by applicant, Mr. Shilatu submitted that the applicant was terminated by letter, which is exhibit T6 and that at paragraph 8 it states that he was terminated without notice, and he would be paid all his terminal benefits which included payment of his salary up to termination date but was not required to be paid severance pay in accordance with section 42(3) (a) of ELRA. Another benefit was to be given fair transport to place of recruitment. All these dues werer not paid in cash but in employee’s bank account, and all this he said was stated by DW4 at CMA and the applicant did not cross examined him on that aspect. Hence prayed this be dismissed for being frivolous and vexatious. In his brief rejoinder Mr. Manase insisted that uttering abusive language was in presence of other workers, who were not brought as witnesses at CMA or during Disciplinary Committee hearing to prove the same. In respect to confession at Disciplinary Committee, he submitted 9 that the applicant did not confess that is why the case proceeded and witnesses were called and hearing was conducted. And Lastly on the issue of payment of all terminal benefits he argued that the Applicant only admitted to have been paid his salary but nothing was paid in respect to terminal benefits and no witness stated the amount paid. Thus, they prayed his prayer of reinstatement be allowed. Having carefully gone through the records of proceedings, grounds for revision as well as the submissions, the issue before me is whether this revision application has merit. In determining as to whether this application for revision is meritorious or not. It is pertinent to understand that, the provision of the law and rules governing termination is the Employment and Labour Relations, Act, 2004 of ELRA and Employment and Labour Relations (Code of Good Practice Rules) 2007, GN No. 42 of 2007 (“The Rules”). Unfair termination has been covered under section 37 (1) and (2) (a) (b) (i) and (c) of the ELRA, whereas the procedure to be followed to effect termination has been illustratively provided for under Rule 13 (1) to 13 (13) of the Rules. 10 It is apparent from the evidence on record, the fact which was not disputed by the respondent that he was served with a letter informing him about the misconduct he committed as reflected in the document marked “T - 1”. It is also undisputed fact that the applicant was suspended from work pending investigation which was to be conducted as evidenced in the document marked “T-2”. After investigation was complete the applicant was informed of the outcome and this is also reflected in a document marked “T- 3”. In this document T- 3 which is a letter titled “disciplinary action against you” was addressed to the applicant and in it there was a statement of the alleged misconduct and also the particulars of the misconduct were described. In T-3 particulars stated that the applicant contravened the company’s disciplinary codes in particular clause 11 which is refusing to carry out the reasonable instructions of a superior which amounts to a serious insubordination and clause 20 abusive behavior, threatened assaults towards member of the management staff or other employees. According to the evidence on record it was testified by all the respondent’s witnesses that the applicant had himself admitted to the offences leveled against him during the disciplinary hearing this includes the testimony of 11 DW3 who was the applicant’s representative during the disciplinary hearing. What I gathered from the evidence on record as can be depicted on page 19 of the CMA’s typed proceedings is that, during the disciplinary hearing after the respondent’ evidence, the applicant was given a chance to cross examine the witness, but he had nothing to ask rather he requested for some time to consult his union’s representative and then he informed him that he wanted to admit to the offences charged and ask for forgiveness because he had personal problems at home. This fact is further cemented by evidence of the applicant himself through exhibit D5 which is a document containing his grounds of appeal against the disciplinary committee where the applicant listed two grounds of appeal being having family problems and being confused after he had caught his wife committing adultery. In the circumstance I find no reason to fault the CMA decision based on this ground, hence the same is dismissed for want of merit. On the other ground for revision, the applicant faulted the evidence of DW3 one Simon Kajanja arguing that his evidence should not have been relied upon as he was a compromised witness and being employed by the 12 employer, therefore he was ofthe view that he had an interest to serve. In my view every party to a case is expected to bring evidence or witnesses to prove facts relevant to his case, there is no limitation as to who should be called as a witness as long as such witness is competent. The fact that DW3 was present during the disciplinary hearing, is the fact which the applicant does not dispute, it makes him a competent and relevant witness to testify as to what transpired. However, the applicant did not tender any evidence that this witness was compromised. Moreover, as alluded above in ground one, this is the witness who stated at CMA that applicant confessed at disciplinary committee on offences alleged against him. I have scanned CMA typed proceeding at page 19 and 20, the same is reflected, nonetheless, applicant did not cross examine on that confession. It is settled law failure to cross-examine a witness on a particular point is tantamount to an acceptance of the unchallenged evidence as accurate, thus the same amounted to his acceptance of DW3’s testimony to that effect. (See Hamisi Mohamed v. Republic, Criminal Appeal No. 297 of 2011 (unreported). In the premise, I therefore find this ground devoid of merit and it is dismissed forthwith. 13 In respect to the claim by the applicant that procedure for termination was not followed as he was not given a copy of hearing forms and after inquiry, he was not given report of the said inquiry. Before I dwell the entire of this claim, I may say, in law a fair procedure of termination is governed by Rule 13 (1) to (13) of “the Rules”. According to Rule 13(2) of the Rules it requires employee to be notified on the allegations in advance. The rule provides; “Where a hearing is to be held, the employer shall notify the employee of the allegations using a form and language that the employee can reasonably understand” From the records of the proceedings of the CMA, it is clearly shown that the applicant was notified of the allegations as exhibited by exhibit T-1, T-2 and T – 3. In exhibit T- 3 the applicant was informed of the outcome of the investigation and that he was to appear before a disciplinary hearing committee. The applicant acknowledged receipt of all these documents which were written in English and Swahili language by signing them. Moreover, the respondent allowed the applicant to exhaust internal 14 remedies and filed appeal form exhibit D-5 wherein grounds of appeal was stated. In fact in those grounds the applicant did not fault any procedure denying his right but did upsurge mitigation for what he did, and said he had a family problem and also he was confused after finding his wife in flagmento delicto. Therefore, following his confession, the disciplinary committee decided to terminate his employment and this was communicated through letter of termination as exhibited by T-6. Thus, in view thereof all procedure were abided by the respondent, therefore, in the circumstance the applicant’s claim under this ground is unfounded and thus lacks merit. Coming to claims raised in ground number 4 and 5 that the applicant was not proved to be drunk. I have considered the offences charged to the applicant, this was not among the one to be proved at both disciplinary committee and CMA. It is settled law; Court will only look into matters which came up in the lower court and were decided; not on matters which were not raised nor decided by neither the Disciplinary committee nor the CMA. Therefore, I concede with Mr. Shilatu, the claims that the applicant was not proved to be drunk was an afterthought. 15 The last ground by the applicant was the respondent did not consider whether the applicant had previous convictions or warning if any. In my view each case is decided according to its circumstances, as rightly alluded by Mr. Shiratu, the applicant committed offence under rule 10 and 20 as a result his employment was terminated, therefore the issue whether his punishment depends previous conviction or warning, I think is the discretion of the Disciplinary committee after gauging the alleged misconduct. Therefore, I find also this ground devoid of merit and is dismissed in its entirety. In his rejoinder, Mr. Manase raised the claim that the applicant was not paid his terminal benefits, despite of evidence by the respondent’s counsel endeavored to show that he was paid. This claim was neither stated in the affidavit supporting this application nor set as ground for this revision, Mr. Manase did raise it during his submission. In that premise I found him misconceived in this claim, because submissions are not evidence and they cannot be used to substitute the contents of affidavit. This guidance was observed by the Court of Appeal of Tanzania in the case of Bruno Wenceslaus Nyalifa vs. Permanent Secretary, Ministry of 16 Home Affairs and the Attorney General, Civil Appeal No. 82 of 2017 where it was held that: “Submissions are not evidence submissions are generally meant to reflect the general features of a party's case. They are elaborations on evidence already tendered. They are expected to contain arguments and the applicable law. They are not intended to be a substitute for evidence.” In the circumstances I find all grounds devoid of merit. Consequently, I am settled that the procedure for termination was rightly followed, thus was fair to the applicant and I see no reason to fault the CMA decision on that aspect. For the above reasons stated hereinabove, I accordingly dismiss this application for revision with no orders as to costs. 17 It is so ordered. DATED at MOSHI this day of 21st August 2024 X JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 21st day of August, 2024 in the presence of Mr. David Shiratu for respondent, Mr. Manase Mwaungulu personal representative of the applicant and also Applicant present. Sgd; A. P. KILIMI JUDGE 21/08/2024 Court: Right of Appeal duly explained. Sgd; A. P. KILIMI JUDGE 21/08/2024 18