REV NO 27264 OF NURDIN MWIKONKI VRS CHINA DASHENG BANK LIMITED newf

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION APPLICATION NO. 27264 OF 2023 REF. No. 20231208000027264 (Arising from the award o f the Commission for Mediation & Arbitration ofD SM at Iiaia) L, Faraja: Arbitrator) Dated 0&h October 2023 Labour Dispute No. CMA/DSM/ILA/219/2022/137/2022) NURDIN MWIKOKI...... ..............................................................APPLICANT VERSUS CHINA DASHENG BANK LIMITED RESPONDENT JUDGEMENT OPIYO, J. Aggrieved with the award of the Commission for Mediation and Arbitration [CMA], having found that the termination was substantively fair but procedurally unfair, hence awarded to the applicant one month salary to the tune of TZS 5,3900,000/= only, as compensation. In challenging the impugned award the applicant moved this Court under Sections 91(l)(a)(b), (2)(a)(b)(c), (4)(a)(b) and 94(l)(b)(i) of the Employment and Labour Relations Act No. 6 [CAP 366 RE 2019] and Rule 24(1), (2)(a)(b)(c)(d)(e)(f), (3)(a)(b)(c)(d) and 28(l)(c)(d) and (2) of the Labour Court Rules, GN No. 106 of 2007 with the objective of revising and setting aside the CMA award. He further prayed for this court to make any other orders as it may deem just and convenient in the circumstances of the case. The brief facts of this application per the records runs as follows; the applicant was employed by the respondent on permanent basis as a Human Resource Manager from 02nd May 2018 (see Exhibit Pl(employment contract)). Their relationship turned sour after the applicant was charged with the offence of misconduct and terminated. The disciplinary action was initiated by the Disciplinary Committee against the applicant which recommended the applicant to be given either serious warning or terminated. The respondent chose to terminate him. Aggrieved with the employer's decision to terminate him, the applicant filed a dispute to the Commission. The CMA found that the termination was substantively fair, but procedurally unfair. It awarded one monthly salary to the tune of TZS 5,3900,000/= as compensation. Applicant was aggrieved by the award. He preferred this application challenging the award advancing three grounds as follows: - 1. That, the arbitrator erred in law and in facts by his failure to award the applicant the appropriate compensation regardless of being terminated unfairly and employed under permanent basis, 2. That, the arbitrator erred in law and in fact by holding that the respondent managed to prove that the termination was fair, while there was no evidence or witness in disciplinary hearing 3. That, the arbitrator erred in law and in fact by his failure to award the appropriate compensation in accordance to the law after confirming that the applicant was procedurally terminated. The application was challenged through respondent's counter affidavit in which the deponent, Frank Ntabaye, respondent's principal officer, vehemently and strongly disputed all applicant's allegations. By way of written Submissions, the parties were afforded with an opportunity of disposing this application. In the hearing of this matter, the Applicant was represented by Mr. Kaizer Msosa, Advocate, from Neptune Law Attorney, Whereas, the Respondent enjoyed services of Ms. Jamila Athuman, Advocate, from Vemma Consult Attorney. I appreciate parties' long rival submissions, the same will immensely aid in composition of this judgment. The main issues as per the grounds above is fairness of applicant's termination as per ground 2 and sufficiency of compensation a per ground 1 and 3. Starting with the 2nd ground on fairness of applicant's termination, I agree with applicant's Counsel that, It is a trite law that, in ascertaining fairness regarding termination two aspect are imperative to be measured. These are reason(s) for and procedures in termination as was addressed in the case of Tanzania Revenue Authority v. Andrew Mapunda, Labour Revision No. 104 of 2014 High Court of Tanzania, Labour Division at Dar es salaam. In our matter, the applicant agrees with the arbitrator findings on procedural aspect that it was not fairly conducted. His challenge is mainly based on the minimal amount of compensation awarded by the arbitrator after finding termination was procedurally unfair. He is disputing the finding that the reason for termination was fair as he argues that, the reason for termination was as well unfair contrary to arbitrators finding. It was asserted by the applicant that, according to Exhibit D7 the applicant was charged and found guilt with four counts. 1st and 2nd were relating to insubordination, 3rd concerned gross negligence and 4th one was about gross dishonesty. In all offences the applicant challenged that the respondent failed to bring witness or evidence to justify reason for termination contrary to section 37 of the Employment and Labour Relations Act, Cap. 366 RE 2019. On that basis, he is of the view that the reason for termination was not fair, hence more compensation was worth to be awarded. In reply, the respondent's Counsel did not object 1st and 2nd grounds by admitting that there were minor procedural lapses. However, he strongly held the conviction that, there was a valid and fair reason for termination. The counsel therefore argued that, the arbitrator had discretion to award less than minimal compensation provided for by the law. In bolstering his stand, he cited the case of Felician Rutwaza v. World Vision Tanzania, Civil Appeal No. 213 of 2019, CAT at Bukoba(unreported). it was held that: - ”...Under the circumstances, since the learned Judge found the reasons for the appellant's termination were valid and fair, she was right in exercising her discretion ordering lesser compensation than that awarded by the CMA..." Basing on the above authority, she is of the view that, there was misconception on the applicant's part in believing that the arbitrator erred in law by awarding lesser compensation to employees who are employed under permanent basis. Regarding reason for termination, Ms. Jamila insisted that the arbitrator findings is based on the fact and analysis of evidence tendered before CMA as stated at page 20 of the award. She thus, prayed for the application to be dismissed as both grounds failed to sustain revision application. The first thing to be looked into is fairness of the reasons for applicants' termination. In establishing as to whether the respondent managed to prove fairness of the reason, section 37 of the ELRA directs that a termination of employment by an employer is unfair if the employer fails to prove that the reason for the termination is valid. At CMA, the arbitrator reached a finding that the main reason for applicant's termination was insubordination based on the applicant's refusal to comply with the CEO'S instructions by not attending a meeting of Audit Committee, for which the arbitrator argued that the applicant admitted in his testimony during cross examination. This finding was challenged by the applicant on the basis that there was no evidence or witness to support the verdict. From the records, according to exhibit 7, (disciplinary Committee Report) the applicant was charged with a total of seven counts. The 1st and 2nd counts were on insubordination with the particulars that the applicant refused to act in accordance to the CEO'S instruction directing him to write letters of concern to the underperforming employee and instead and without justification he wrote the letters calling them to performance review meeting in the first count. On second count, the particulars are that, he fought and shouted to the CEO infront of other Managers and despised him alleging discrimination. He was found guilty on both counts 1 and 2. In counts 3 and 4, the charges were based on gross negligence with the particulars that, applicant approved staff loan and leave to staff under probation contrary to the law and he exercised negligence in supervising employees. He was found guilty on 3rd count and cleared on the 4th count as per the staff policy the supervision was conducted by the heads of departments. Furthermore, in 5th and 6th counts, he was charged with offence of gross dishonest. The grounds being that, he refused to attend to BARCC meeting as per his supervisor's instruction in court 5 and carrying his own business during working hours by stealing his employer's time in count 6. He was found guilty in court 5 as email concerning the meeting was circulated to all, but he was not guilt in count 6 for lack of evidence to prove the charge. The 7th count was on incapacity with the particulars that, his conduct and behavior were not compatible with the business of his employer, although he was also cleared in this charge. After committee findings, they recommended two alternative outcomes. They recommended the applicant to be given a serious warning or termination from his employment. So, in short, the applicant was found guilty on 4 counts, namely insubordination, first for refusal to act in accordance to the CEO'S instruction directing him to write letters of concern to the underperforming employee and for fighting, shouting and despising the CEO infront of other Managers, gross negligence for approving staff loans and leave for probationary employees and gross dishonest for refusal to attend to BARCC meeting. Given the nature of the offences the applicant was charged and found guilty of, one note that they all fall under gross Misconduct under rule 12 (3) of GN 42 of 2007. Like any other allegation, whoever alleges must prove as per the requirement under section 110 of the Evidence Act, Cap. 6 RE 2019. Allegation is proved by leading evidence to prove the alleged facts. It is surprising in this case that, it was not disputed that there was no evidence that was led during the disciplinary committee hearing that led to the verdict. This make it obvious that, if no witness was called, there is no way the allegations could have been proved. Although no disciplinary committee hearing form was tendered before CMA, save for what is referred to as a its report (exhibit D7), but respondent did not dispute that the said hearing was conducted without calling any witness to prove the allegations contrary to rule 13(5) of GN 42 of 2007. If at all conducted, it involved only interrogations of the applicant and brief sentence on what he replied recorded, since that is what has been reported in exhibit D 7(committee report). It follows therefore that, if it was only limited with mere interrogation of applicant, it means the committee's finding had no basis, as it is made merely out of employer's empty allegation against the respondent words in defense. That is not in line with the purpose of conducting such hearings if fairness of the reason for action was to be achieved. Furthermore, the committee hearing was supposedly held from the recommendation in the investigation report (exhibit D2), as was clearly put by the respondent's witness DW2, Zabron George Stambuli, who was the one who conducted investigation. The said investigation was based only on two counts of insubordination and on facts relating to two warning letters as he put it. The warning letters in question one concerns absenteeism (Exhibit D8 of 10/1/2022 and failure to attend BARCC meeting, Exhibit D9. What is concluded from that is the remarkable difference between the offences investigated and the 7 counts he was finally charged with and heard by the Disciplinary Committee, that resulted to his termination, 5 days from 8 April, 2022 when the hearing was conducted and exhibit D7 (the Report) made. Reading exhibit D7 between the lines, it is noted that committee's recommendation was not certain as they gave two options in dealing with applicants alleged misconduct. They recommended issuing of serious warning or termination. The two recommendations have different effects in employee employment. Serious warning has less effect than termination. Such uncertainty gives a room to the decision marker to choose between the options with reasons. In our case no reason was given for not choosing the option with less effect. The respondent jumped to termination without showing that there was alternative recommendation for serious warning. Their reliance is seemingly that there were previous warnings already in place in respect of this applicant However, the alleged previous warnings were not valid for being issued unprocedural, as per applicant's complaint. Invalid written warnings do not count as evidence in proving allegations. The procedure regarding oral and written warnings is provided under rule 2 (1) and (2) and 3(1) to (7) of the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedures, forming part of the schedule to Employment and Labour relations, (Code of Good practice) Rules, GN. No. 42 of 2007. The provision provides that: Counseling and verbal warnings 2-(l) The primary aim o f disciplinary measures is to correct employee's behaviour in order to ensure that they conduct themselves in an acceptable manner The primary means o f achieving this objective should be the counselling o f employees by supervisors or managers who should explain to employees what is expected o f them, I f this does not achieve the desired objectives, stronger action may be required. (2) I f an employee commits minor misconduct or performs poorly, the action taken should be a verbal reprimand coupled with an instruction from the employee’s manager to correct the behaviour These reprimands constitute informal corrective actions and will not be reflected on the employee's persona! file. Written warnings 3,-(l) A written warning may be issued by a supervisor or manager, if the work performance or conduct o f an employee has not improved following counseling or verbal warnings or if the misconduct or work performance requires stronger action than a verbal warning. (2) The Manager should inform the employee o f the reasons for the action, and to give the employee an opportunity to make representations. During this process, the employee may have a representative appointed to be present This process should note constituted as a formal hearing. (3) After having considered any representations made, the Manager should decide whether or not to give the employee a written warning. Any warning should be issued to an employee personally and in accordance with the prescribed form, and a copy o f the completed form should be given to the employ Therefore, a warning be it oral or written must conform to the above respective provisions. Thus, for respondent relying on warnings that did not conform to the above rules was not proper in charging and terminating the applicant for was not valid. Applicant was not heard before issuing of the said warnings as required by the law. Furthermore, closer scrutiny of the matter reveals that, the source of dispute resulted from the alleged warnings. It is the applicant's complaint about unprocedural warnings that precipitated the matter as the CEO interpreted his complaint against his warnings as insubordination. The suspension letter admitted as exhibit p5 the CEO had happened to have expressed what he considered insubordination culminating to the finding the following words:- I take your complaints to my warnings a s revenge and an act o f insubordination to me as a CEO and that your actions are not compatible at ail to the Bank tests and desire' Given the provision on how the valid warning should have been as shown above, in my view, the applicant's complaint against the unprocedural issuing of warnings were genuine as he was not at all given the right to be heard before they were issued. This was in violation of one of the important principles of natural justice in labour matters as it is in other matters the right to be heard. Such complaint against the warnings should not have amounted to insubordination as it was interpreted by the CEO, out of unjustifiable sensitivity. It follows therefore that, the alleged warnings which were issued without applicant being given the right to be heard as demanded by the above provision had no effect as they were reached without following procedure. In my view, the first valid warning would have been the outcome of the disciplinary hearing as was recommended by the committee not termination. The validity and fairness of termination is well stipulated under Section 37(2) of the Employment and Labour Relation Act, No.6 of 2004 and onus of proof is on the employer as per Section 39 of ELRA and is on a balance of probability. But it is also noticeable that, the termination letter, Exhibit DIO, was issued without specification on the reason or reasons for termination, the applicant was charged with seven counts, but the letter of termination failed to state under which offence he was terminated. It enumerates no ground for termination at all, contrary to Rule 13(10) of G.N No. 42 of 2007 which requires that, once employee is terminated shall be reason for termination and rights to appeal against employer's decision for the sake of ascertaining fairness of the termination. The rule 13 (10) of GN 42 of 2007 provides that:- " Where employment is terminated the employee shall be given reason for termination and reminded o f any rights to refer a dispute concerning the fairness o f termination under a collective agreement...." This left unknown the reason for applicants" termination, among the grounds he was charged and found guilty of. This left the applicant with dilemma as to what was the ground finally culminating to his termination. Therefore, in case of termination, the reason to do so should be clearly be stated especially where one was charged and found guilty of more than one grounds for which alternative verdict of serious warning was also available to the respondent to met on him instead of termination. In civil cases it is a well-established principle, that the standard of proof is on balance of probabilities. As was addressed in the case of Crescent Impex (T) Limited vs Mtibwa Sugar Estates Limited (Civil Appeal No.455 of 2020) the Court of Appeal on page 10 had this to say; - "It is also elementary that the standard o f proof, in civil cases, is on a balance o f probabilities which means that the court will sustain such evidence which is more credible than the other on a particular fact to be proved." General contention by applicant is that, no offence was proved against him, it is true? To start with first offence of insubordination whether it was proved; insubordination in the workplace context, generally refers to the disregard of an employer's authority or lawful and reasonable instructions. It occurs when an employee refuses to accept the authority of a person in a position of authority over him or her and, as such, is misconduct because it assumes a calculated breach by the employee of the obligation to adhere to and comply with the employer's lawful authority. It includes a willful and serious refusal by an employee to adhere to a lawful and reasonable instructions of the employer, as well as conduct which poses a deliberate and serious challenge to the employer's authority even where an instruction has not been given as was well expounded in the case Insubordination Sylvania Metals (Pty) Ltd v Mello N.O. and Others (JA83/2015) [2016] ZALAC 52 The general allegation regarding this offence was that, the applicant refused to attend the meeting as directed, but he refuted saying that generally he was not a member of the said meeting, and he had never attended such meeting since he was employed as Human Resource Manager. The applicant stated that he was employed on 2nd May, 2018 but have never been invited or attended to the said committee meeting, although notice is usually sent to all departments but each attend only the meetings to which he is a member. No counter argument was given if there was exception to this routine to make this invitation obligatory to non-statutory member like the applicant to attend. Like he believed, I also believe his side of the story, because, if he was to attend this time a special invitation was to be extended to him not general notice about the meeting as insinuated by DW1. In absence of such invitation, no non- attendance or refusal to attend can succeed against him as no reason was advanced for his refusal, if at all. If he was specifically required to attend this particular meeting, he would have been as well specifically invited. And if after specific invitation, he fails to attend, then the claim of insubordination would hold water. It is not enough to blame an officer for not attending a meeting which he was not invited to attend on the basis of having been in the circle of notice circulation. If he has been within the same circle receiving the such notices, but the meetings attended by those concerned only (members), not all who received the said notice, why make it an offence this time in absence of evidence that it was different this time and he was specifically invited to attend but refused, in which case the reason for refusal should be put on the table before insurbodation is imputed. But, in our case, no reason for applicant's refusal was evidenced or could be gauged. What I note here is a small misunderstanding resulting from mistake of facts in that, while the applicant believed as non- statutory member of that meeting, his attendance had to be procured through special invitation, the not general notice to the managerial carder which give a room to each to attend the meetings to which they are members only. In the circumstances, the misconduct for refusing to attend meeting was not at all proved. In the alternative such non attendance could have been cured, by change to make the Human Resource Manager a member of BRACC meetings, not terminating him for not attending. Non proof goes to all other counts, as no evidence was given on how any of the offence was committed. Since both parties agree with arbitrators finding that the termination was procedurally unfair, I need not dwell on examining undisputed fact. It is enough to conclude that the applicant's termination was both substantively and procedurally unfair. However, I feel compelled to say something on gravity of the alleged minor lapses, in regard to adherence to Procedure, as noted earlier, the respondent had admitted there being minor lapses that affected the fairness of the procedure as found out by CMA. This made them agree with the CMA findings and award. I agree with both on that, however, talking of minor procedural lapses is under estimation of what really transpired in relation to the hearing. The hearing involving impartiality as found by CMA which are not minor lapses. Having gone through CMA record it is clear that Guydon Chihwalo, the Disciplinary committee Chairperson, was already compromised by the fact that he was the same person who was involved in the circumstances giving rise to the case before he was made to head the committee. It is on record that he was one of those interviewed during investigation process, as per Exhibit D2 and confirmed by the testimony of DW2. This is offence establishment process. He is also the one who initiated the proceedings by signing the letter for the applicant to show cause as a chairman of a Disciplinary committee. This is irregular as the committee is to receive the charge sheet and plan for hearing. It is not the one that draws the charge sheet against the accused. Finally, he acted as Chairperson in disciplinary Hearing. The same also applied to another Member of the Committee by the name of Nasra Mohamed who was among the interviewees (witness in offense establishment) and a decision maker in regard to the same offences. This is contrary to Rule 13(4) of G.N No. 42 of 2007 which directs impartiality of the committee. The rule provides that:- "The hearing shaii be held and finalized within a reasonable time and chaired by sufficiently senior management representative who shall have not been involved in the circumstances giving rise to the case. It is also noted that, what was dealt with in investigation differs with what the applicant was charged with. The facts investigated was that the applicant had challenged the CEO in his position as and the fact that the CEO had already issued him with two warning letters as he was not satisfied with applicants' performance. The issue dealt with in finding are not in line with what the investigation was initiated for. Investigation disclosed four findings; one is insubordination as he argued with CEO for writing him warning letter for not attending the BARCC meeting. Second, the applicant coming late at work most of time. Third is in regard to applicant failure to handle some operational issues on HR Department. These are not the same facts the applicant was finally charged with. This brings a serious mismatch as what is investigated is what has to be charged with as a consequence of investigation, short of which result to injustice to the one affected, for being charged with a new facts that have not been investigated and recommendation to charge him with the same issued. After finding that the applicants employment contract termination was not as well substantively fair as above explained, the award by the CMA is worth re-examining as CMA awarded one month salary to the applicant after finding only on procedural unfairness. This was possible based on the holding in Rutwaza's case cited by Respondent's counsel where it was emphasized that when there is only procedural unfairness, but substantive fairness, allowance was given to arbitrator or judge to go below the minimum compensation provided under Section 40 of Employment and Labour Relations Act, 366 RE 2019 where necessary. Now that, this court has revised CMA finding by finding that there was both substantive and procedural unfairness, it is provision of Section 40 (l)(c) of the Employment and Labour Relations Act that comes into play. According to the section the award of compensation is not to be less than 12 months remunerations. The section provides; "where the an arbitrator or a labour court finds termination unfairt\ the arbitrator or a court may order the employer to pay compensation to the employee o f not less than twelve months remuneration" For the reasons, upon revising the CMA award the applicant is awarded 12 months' salary as compensation to the tune of 64,680,000/= (Monthly salary of 5,390,000/- x 12 months). The amount is in addition to his statutory entitlements including one month salary for leave to the tune of 5,390,000/= and amount of 385,000/- as severance pay. This brings a total of 70,455,000/=. Appeal allowed. M. P. OPIYO JUDGE