CIVIL APPEAL NO 182 OF 2022 PAN AFRICA ENERGY TANZANIA LTD VS JACQULINE KAWISHE

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LILA, 3.A.. MAIGE. 3.A. And MURUKE. J.A.^ CIVIL APPEAL NO. 182 OF 2022 PAN AFRICA ENERGY TANZANIA LTD ........................................... APPELLANT VERSUS JACQULINE KAW ISHE............................................................... RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania Labour Division at Dar es Salaam) (Maahimbi. J.> dated the 29th day of May, 2020 in Labour Revision No. 100 of 2018 JUDGMENT OF THE COURT 11th & 19th March, 2025 MAIGE. J.A.: The respondent who had since February 2012 been in the service of the appellant in different positions, had her service terminated on 30th October, 2019, by way of retrenchment allegedly on operational requirements. Before termination, it is not in dispute, consultation between the parties was conducted. Unfortunetely, however, there was a disagreement between them as regards what should be the retrenchment parckage. That aside, the appellant proceeded to terminate the respondent's service on operational requirements. Aggrieved, the respondent referred the dispute to the Commission for Mediation and i Arbitration (the CMA) faulting the appellant for terminating her service unfairly both on reasons and procedure. The CMA rendered an award to the effect that the respondent's service was unfairly terminated both on reasons and procedure. As compensation thereof, the CMA awarded the respondent an amount equal to twelve months salaries. Being dissatisfied, the appellant commenced revision proceedings at the High Court Labour Division at Dar Es Salaam (the Labour Court). As per paragraph 8 of the affidavit in support of the application, the grounds for revision were as follows: 1. The arbitrator m isconceived the applicant's evidence hence erroneousiy held that outsourcing o f public relations to a sped Used company was a pretext because the applicant had enough works to assign the respondent but it outsourced such works to the consultant to render the respondent redundant 2. The arbitrator misapprehended the applicants evidence hence she wrongly found that the respondent was retrenched because the consultant had placed its desk office at the applicant's office. 3. The arbitrator m isconceived the applicant's evidence hence errenousiy held that the applicant failed to explain why the consultant placed its desk officer a t the applicant's offices to perform the same duties the respondent was perform ing as a result the respondent became redundant. 4. The arbitrator erred in fact in holding that the outsourcing o f public relations to the consultant amounted to a retrenchm ent o f the 2 respondent and replacem ent o f her position with a consultant im m ediately thereafter. 5. The arbitrator m isconceived the applicant's evidence by saying that the roie o f the respondent was outsourced to the consultant because o f increasing volume o f public relations m atters which the respondent alone could not handle. 6. The arbitrator m isconceived the applicants evidence by erroneously holding that the applicant had an alternative jo b to offer the respondent but it gave to the consultant instead o f the respondent. 7. The arbitrator overlooked the applicant's evidence as a result, it wrongly found that in the consultation m eetings the applicant did not address the respondent on the effort made by it to fin d an alternative jo b fo r her before resorting to the retrenchm ent 8. The arbitrator ventured into speculations by finding the change o f the respondent's position from PA/ Government Relations Coordinator to public relations liason officer was the in itia l process o f the applicant's ill m otive to get rid o f the respondent 9. The arbitrator failed to explain in the award if the amount o f compensation she awarded the respondent was inclusive to the amount p aid later by exh. D17 attached to the affidavit as annexture 10 or not 10. In exercising her pow er to compose an award, the arbitrator acted with m aterial irreguiary by not considering the written subm issions filed by counsel. In dealing with the revision, the Labour Court framed four issues. One, whether the applicant had fair reasons for retrenching the respondent; Two, whether the retrenchment of the respondent was 3 procedurally unfair because the applicant failed to consider alternative job before resorting to retrenchment; Three, whether the arbitrator denied the applicant a right to be heard by not considering its written submissions; and Four, whether the arbitrator acted with material irregularity by not considering the amount paid by the applicant in calculating the 12 months' compensation. Having reappraised the evidence in line with the submissions, the Labour Court answered the first issue against the respondent for the ground that the appellant's reason for retrenchments falls under structural need of the business in terms of rule 23(2) (c) of GN No. 42 of 2007. On the same footing, the Labour Court seemed to have agreed with the appellant that efforts to find for alternative job was made before the respondent had been retrenched. That aside, the Labour Court considered, in line with the second issue, if the retrenchment procedure was followed and concluded that it was not, as the requirements under section 38(2) of the ELRA that the matter should be referred to mediation upon failure to reach an agreement was not adhered to. The third and fourth issues were also answered against the appellant after the Labour Court had satisfied itself that the evidence was properly assessed. Since the reasons for termination was fair but only the procedure was not, the Labour Court reduced the amount of compensation to the amount equivalent to 6 month's salaries. Once again aggrieved, the appellant has preferred a second appeal to the Court which is based on six grounds. The complaint in the first ground is that the Labour Court raised and determined the issue of non- compliance with section 38(2) of the ELRA as an aspect of procedural unfairness without affording the parties a right to be heard. In the second ground, the appellant is faulting the Labour Court for incorrectly applying the provisions of section 38(2) of the ELRA and holding the appellant in breach thereof for not affording the respondent an opportunity to refer the matter to mediation after they had failed to reach an agreement. In the third ground, the Labour Court is criticized for making a finding without evidence that the appellant conducted the retrenchment negotiation with the respondent with pre-conceived mind. The assertion in the fourth ground is that the Labour Court omitted to determine the validity or otherwise of the arbitral award insofar as it did not contain parties' final arguments. In the last ground, the decision of the Labour Court has been doubted for reason of awarding the respondent six months' salaries notwithstanding that she had already been paid 5.25 months' salaries as retrenchment package. At the hearing of the appeal, Mr. Timon Vitalis, learned advocate, appeared for the appellant whereas his learned friend advocate Frank Mwalongo, appeared for the respondent. Each of the counsel had, before hearing, filed written submissions which, during hearing, they fully adopted with some clarifications. We shall start our deliberation with the complaint in the first ground that the Labour Court Judge raised and determined the issue of non- compliance with the provisions of section 38(2) of the ELRA without affording the parties a right to be heard. In support of the ground, Mr. Vitalis submitted that while the determination of the issue of procedural fairness at the CMA was based on omission of the appellant to offer the respondent an alternative job in terms of section 38(1) of the ELRA, in its decision, the Labour Court held the respondent's retrenchment procedurally unfair on non-compliance with mediation requirement under section 38(2) of the ELRA. Raising such a point suo motu and deciding it unilaterally, he submitted, amounts to violation of the parties' right to be heard which in effect renders the decision a nullity regardless of what would be the outcome had the parties been heard. To cement his argument, the counsel relied on the cases of Said Mohammed Said v. Muhsin Amir & Muharami Juma, Civil Appeal No. 110 of 2020; Kubwandumi Ndemfoo Ndossi v. Mtei Bus Service Ltd, Civil Appeal No. 257 of 2018; Christian 6 Makondoro v. Inspector General of Police and the Attorney General, Civil Appeal No. 40 of 2019 (all unreported) and Mbeya Rukwa autoparts and Transport Ltd v. Justina George Mwakyoma [2003] TLR 251, which, in our reading, support that proposition. In response, Mr. Mwalongo submitted that, the decision of the Labour Court on the issue of violation of section 38(2) of the ELRA insofar as it was founded on the facts and evidence on the proceedings of the CMA was not a new issue. Such an issue, he further contended making reference to page 370 of the record, was determined by the Labour Court based on the evidence in exhibits D2 and D3. As a revisional court, he submitted, the Labour Court was entitled as it did, to reappraise the evidence on the record and come out with its own conclusion. He concluded, therefore that, the ground has no merit. This issue, with all respects to Mr. Mwalongo, does not deserve consumption of much of our precious time. It is evident that the determination of the dispute by the CMA was based on absence of fair reasons for termination of the respondent's service and failure of the appellant to provide the respondent with an alternative employment which is an aspect of procedural fairness. In its judgment, the Labour Court in the first place found the conclusion of the CMA that there was no fair reason for termination of respondent's service, incorrect. Equally so, for the claim 7 that the appellant did not offer the respondent an alternative employment. It is a fact, however that, the Labour Court upheld the CMA's finding on procedural unfairness based on non-compliance of the requirement under section 38(2) of the ELRA. In our careful reading of the grounds of revision in paragraph 8 of the affidavit in support thereof as reproduced elsewhere in this judgment, we did not come across with any ground touching compliance or otherwise of the respective provisions, Worse still, such an issue was neither raised in the affidavit in reply nor in the parties' submissions. That being the case, therefore, and indeed it is, the mere fact that the determination of such fact was based on facts and evidence on the proceedings of the CMA does not negate the appellant's claim through her counsel that, she was denied, during hearing of revision application, a right to be heard on that particular issue, considering that the same was decisive in upholding the decision of the CMA. Much as a revisional court enjoys powers to raise an issue suo motu, it is not the law that such an issue in so long as it is likely to affect the parties' right, can be determined without them being afforded a right to be heard. Such a requirement is express in the proviso to rule 28 (1) of the Labour Court Rules, 2007. More importantly, the requirement constitutes a general binding principle of law developed from judicial precedents based on the fundamental right to be heard which is applicable in all court 8 proceedings. Non-compliance of such principle, we agree with Mr. Vitalis, renders the respective decision a nullity. There are numerous unbroken chain of decisions of the Court in support of that proposition. Some of them have been cited by Mr. Vitalis. For instance, in Shule ya Secondari Mwilamvya v. Kaemba Katumbu (Civil Appeal No. 323 of 2021) [2023] TZCA 17316 (9 June 2023, TANZLII), where the CMA in the course of composing its decision raised and determined the issue of time limitation without affording the parties a right to be heard and the decision upheld by the Labour Court on revision, on appeal, the Court held that, the approach taken by the CMA was a clear cultailment of the parties' basic right to be heard and, it, therefore, nullified the proceedings of both the CMA and the Labour Court and remitted the record to the CMA for composition of a fresh decision. In reaching to such a conclusion and having cited a number of its previous decisions, the Court argued: "As indicated earlier, in this appeal, the CMA in the course o f composing the ruling discussed the issue o f tim e lim itation and ruled that the application before it was tim e barred thus ought to be stricken out Obvously, this is a dear breach o f the p a rtis' basic rights because they were not afforded a right to be heard o f the question o f tim e bare. In that respect, having noted the violation, the High Court was supposed to revise and invalidate the decision o f the CMA." 9 In view of the foregoind discussions, therefore, we find merit in the first ground of appeal and to that extent, the appeal is hereby allowed. Guided by the principle in the decision just referred, we nullify the judgment of the Labour Court and remit the record to the Labour Court for recomposition of a fresh judgment after hearing the parties on the issue of compliance of section 38(2) of the ELRA. In the circumstances, we shall not consider the other grounds of appeal. Besides, this being a labour matter, we shall not give an order as to costs. DATED at DAR ES SALAAM this 18th day of March, 2025. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgment delivered this 19th day of March, 2025 in the presence of Mr. Tumain Michael, learned counsel for the Appellant and Ms. Halima Semanda, learned counsel for the Respondent, is hereby certified as a true