nmb bank plc vs hadija adam mwinyimatano 2020 tzhc 4456 24 november 2020

IN THE HIGH COURT OF TANZANIA (LABOUR DIVISION) AT DODOMA LABOUR REVISION NO. 19 OF 2019 (Arising from Labour Dispute No. CMA/DOM/35/2019 in the Commission for Mediation and Arbitration Dodoma) NMBBANKPLC.............................................................................. APPLICANT VERSUS HADIJA ADAM MWINYIMATANO.............................................. RESPONDENT RULING 21st July, 2020 & 24h November, 2020 SIYANI, J: In 1989 Hadija Adam Mwinyimatano (the respondent) was employed by the then National Bank of Commerce (NBC). Following the breakup of NBC in 1997 and establishment of the National Microfinance Bank Limited, the respondent's employment was transferred to NMB BANK PLC (the applicant) where she went on to serve in various positions. On 14th December, 2018, the respondent was charged for; failure to comply with established bank procedures, Unsatisfactory management of suspense account resulting in i loss, failure to report irregularities/malpractices against the bank and concealing information with intent to mislead the bank. The above charges were preferred under the NMB Bank Pic, Human Resources Policies Manual, 2018. According to the said document the offences with which the applicant was charged, involved indiscipline and dishonest (1st and 4th counts) and gross negligence (2nd and 3rd counts). After the disciplinary hearing, the applicant was found guilty in all four counts. She was therefore terminated from the applicant's services. Her appeal to the disciplinary appeal committee was also in vain. Believing that her termination was unfair both substantively and procedurally, the respondent then resorted to the Commission for Mediation and Arbitration Dodoma [herein after to be referred to as CMA], which upon hearing the parties the CMA decided that the respondent's termination was unfair as per section 37 (2) of the Employment and Labour Relations Act, No. 6 of 2004. Through its award dated 29th October, 2019, it was therefore ordered that she be reinstated to the service or be paid her terminal benefits. 2 Dissatisfied, NMB BANK PLC has moved this court to examine CMA's proceedings in labour Dispute No. CMA/DOM/35/2019 in order to satisfy itself as to its legality, propriety, rationality and correctness and consequently to revise and set aside the award thereof for being incorrect, improper and irrational. The application which was preferred under the provisions of Sections 91 (1) (a) (b), (2) (b) and 94 (1) (b) (i) of the Employment and Labour Relations Act No. 6 of 2004 and Rules 24 (1) (2) (a) (b) (c) (d) (e) (f), (3) (a) (b) (c) (d) and 28 (1) (c) (d) and (e) of the Labour Court Rules, 2007 GN No. 106 of 2007, has been supported by an affidavit of Ms Consolatha Resto, the applicants principal officer. At the hearing of the instant application, Mr. Ramadhan S. Wakulichombe, an official of a registered trade union (FIBUCA), represented the respondent and counsel Sabas Shayo from Vertex Law Chambers, appeared for the applicant. Submitting in support of the first ground of the application, counsel Shayo argued that evidence led at the CMA clearly indicated that the respondent failed to follow bank guidelines by processing individual payment through government suspense account No. 52010004012. It was contended that despite not being the final person who authorised the payments, the 3 respondent being an initiator of the transaction, acted against the guidelines by paying individuals through government suspense account, consequently causing a loss of Tshs 53,000,000/= to the bank. In view of the learned counsel, CMA wrongly found the respondent's termination to be unfair as being not the final person, did not exonerate her from liability. On the second ground it was submitted that, CMA erred in law and fact by not considering admission by the respondent in the disciplinary meeting and during CMA hearing. It was argued that Exhibit D7 shows that the respondent admitted her faults including the facts that the vouchers brought to her had no supportive documents and that despite being acquainted with bank procedure, she went against the same, something which was not considered by the arbitrator. It was submitted that the fact that the respondent admitted her mistakes was sufficient and it could have been even unnecessarily to conduct a disciplinary meeting. As such counsel Shayo strongly argued that CMA failed to consider and evaluate evidence before it, hence arriving to an improper conclusion which was fatal. To support such a stance, counsel Shayo referred the cases of Leonard Mwanashoka Vs 4 Republic, Criminal Appeal No. 226 of 2014 and Nixon Allex Vs Plan International, Revision No. 22 of 2014. On the third, fourth and fifth grounds, it was submitted that, CMA erred by holding that the applicant did not follow procedures in terminating the respondent. It was argued that the applicant followed the required termination procedures by conducting an investigation before the respondent was charged, heard at the disciplinary committee and given a chance to appeal. The learned counsel was of the view that such evidence on compliance in the procedure by the applicant was not considered by the arbitrator and the finding that the respondent was not accorded the investigation report, was erroneously reached because there is no such legal requirement under Rule 13 of the (Employment and Labour Relations) Code of Good Practice GN No. 42 of 2007. In his further submission, it was stated, the fact that the respondent was not given the said investigation report was not raised by the respondent, rather the same was raised by arbitrator suo motto without affording parties, a chance to be heard on it. Regarding the relief granted by CMA, the learned 5 counsel, faulted the CMA'a decision to order payment of salaries to the respondent and order her reinstatement or payment of terminal benefits as an alternative to reinstatement. In his opinion the law under section 40 (3) of the Employment and Labour Relations Act clearly indicates what should be paid in case of termination instead of reinstatement. The learned counsel argued that CMA was supposed to deal with relief claimed by the respondent which is reinstatement but the same went further to grant relief not claimed by the respondent. As noted, the respondent enjoyed representation of Mr. Ramadhani Wakulichombe, a registered trade union official. Replying the above arguments, Mr. Wakulichombe argued that the respondent was charged with offences involving disciplinary, dishonest and gross negligence but she was however convicted and terminated for gross misconduct. It was therefore submitted that the offence which the respondent was convicted with, was not among the charged offences. He went on to state that according to exhibit Dll which was the applicant's new procedure (substitution of procedure ref: FLEX-GL-017-RMP-28-079) with effect from 31 May, 2017, 6 the respondent was always receiving verbal instructions from the branch manager, complied with and later approved the transactions. With regard to investigation process and disciplinary meeting, it was submitted that indeed the same were conducted and the respondent gave her statement in relation to the offences stipulated in exhibit D7. In view of Mr. Wakulichombe, however, the disciplinary committee was improperly composed as according to the respondent's HR manual, such a committee ought to have been composed by five people who are zonal manager, two branch managers, zonal compliance officer, one facility officer and the secretary who does not form the quorum. In the instant matter, it was argued that the applicant's disciplinary Committee was composed by eight (8) members which means it included other people who were not members hence contravening the HR Manual. Further it was argued that the respondent was not heard by the applicant's appellate disciplinary committee and therefore the termination procedure was not followed. Through his rejoinder submission, it was argued by counsel Shayo that the respondent admitted her faults, she did not report irregularities and it was 7 I I therefore immaterial whether or not she used to receive verbal instructions. She was therefore found guilty of gross misconduct and no other new offence was indicated in her termination letter. It was submitted that the respondent's arguments with regard to composition of the disciplinary committee and her right to appeal to the NMB appellate board, were new facts which were not raised and determined at the CMA. Having revisited the rival submissions from the parties, it is obviously that the applicant's complaint in the instant matter lies on CMA's finding that the respondent's termination was unfair and the consequential orders that followed. In my view therefore, all that this court has to answer in the instant application, is whether the complained award was properly procured in terms of reasons and procedures. In this ruling and for the reason that will be noted shortly, I will consolidate my reasoning in response to the question above. As indicated, I had an ample time to go through the CMA's and disciplinary committee proceedings. Exhibit D4 (Disciplinary Charge Sheet) shows the offences leveled against the respondent were failure to comply with 8 established bank procedures, unsatisfactory management of suspense account resulting in loss, failure to report irregularities/maI practices against the bank and concealing information with intent to mislead the bank. Exhibit D7 (The outcome of the disciplinary hearing) the disciplinary committee found that there was serious violation of bank procedure as charged. The committee also found that the respondent failed to manage the suspense account, failed to report malpractices and concealed information with intent to defraud the bank. In essence, the committee found the respondent guilty as charged and therefore as a matter of law and practice, it was expected that the respondent would have been subjected to the penalties in respect of those offences. However, through exhibit D8 (Disciplinary Penalty-Termination from Bank Services) the applicant basing on the above findings, went on to terminate the respondent for gross misconduct. While according to exhibit D4 and DI (NMB Bank Pic, Human Resources Policies Manual, 2018), the respondent was charged for offences involving indiscipline and dishonest (1st and 4th counts) and gross negligence (2nd and 3rd counts) which are offences under paragraphs; 1.1.9, 6.6.10 and 7.7.3 found at page 94,102,101 respectively, 9 the termination was on gross misconduct which involves offences found at page 97 of the NMB Bank Pic, Human Resources Policies Manual, 2018 and covers offences under paragraphs 3.3.1 to 3.3.10. With due respect, I believe, it was wrong for the applicant to terminate the respondent for offences not charged with. According to counsel Shayo, the respondent's termination was fair because among other offences, it was established that she failed to abide with the bank guidelines by processing individual payment through government suspense accounts No. 52010004012. Failure to comply with established procedures is an offence under paragraph 1.9 of the NMB Bank Pic Human Resources Policies 2018 which is punishable for a final written warning followed by comprehensive final written warning before one is terminated. Both the disciplinary committee and CMA's proceedings, do not reveal that the respondent was repeatedly guilty of similar offence. Therefore, even if the respondent would have been properly convicted for such offence and there being no evidence tendered to prove that she was a habitual offender, termination would not have been a proper punishment. io In my opinion, the fact that the respondent was terminated for an offence not charged with as explained above suffices to determine this ground as well. I believe termination cannot be fair if a person charged for one offence is convicted with another offence. In this matter, the respondent was not charged for any offence that amounts to gross misconduct. She was therefore not heard on such offence. The right to be heard, is fundamental under the Constitution of the United Republic of Tanzania, 1977 under Article 13 (6) (a) and therefore, no person should be condemned unheard. Fair procedure demands a fair decision to arise from fair proceedings which accords both parties a right to be heard. See Dishon Mtaita Vs Director of Public Prosecutions and Abbas Sherally & Another Vs Abdul S.H. M. Fa za I boy, Civil Application No. 1 of 2007, Shomari Abdalla Vs Hussein and Another (1991) TLR 135, Ndesamburo Vs Attorney General (1997) TLR 137 and Mbeya Rukwa Auto parts & Transport Ltd Vs Jestina George Mwakyoma [2003] TLR 251 In the fine, it is a principle of law that termination of employment must be a result of a fair process and its final decision must be grounded on valid and fair reasons. Therefore, if termination of employment is to be fair in terms 12 of section 37 (2) of the Employment and Labour Relations Act, No. 6 of 2004, then fairness must be seen in the whole process (procedure) and the decision (substantive) itself. Through its award, CMA ordered reinstatement of the respondent with payment of her salaries which ought to have been paid had she not been terminated. It was further ordered that in case the applicant opts not to reinstate the respondent then the later would be entitled to payment of her terminal benefits. I find nothing wrong with that order. The law is clear under section 44 of the Employment and Labour Relations Act on what should be paid to an employee who is terminated for reasons other dismissal. The above said, this application is bankrupt of any merits and the same is dismissed accordingly. Considering that this is a labour matter, I order each party to bear its own costs. It is so ordered. DATED at DODOMA this 24th November, 2020 13