patricia minja vs bank of africa t limited 2022 tzhcld 646 17 june 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 316 OF 2021 PATRICIA MINJA APPLICANT VERSUS BANK OF AFRICA (T) LIMITED RESPONDENT (From the decision of the Commission for Mediation and Atpltratiomat Ilala) (Mbena: Arbitrator) Dated 30th June 2021 JUDGEMENT 28th March & 17“’ June 2022 k RwizileJ . This a ca eraafete^j^rh the decision of the Commission for Mediation^ andx^Arbitration (CMA) in Labour Dispute No revising and-sefting aside the award. The reason for so doing is that the award is legally and factually wrong, it is irrational and illogical. The brief facts of this case can be stated as follows; that the applicant was employed by the respondent on 07th June 2002 as a Corporate Officer for one year. In 2003, she worked in the loans department until 07th May 2019 when she was terminated. The reason for termination was stated as misconduct. The applicant filed a labour dispute at the CMA claiming for reinstatement without loss of remuneration due to unfair termination. Unfortunately, her application was dismissed for want of merits. Dissatisfied, this application has been preferred. Grounds for the revision as per paragraph 6 of the affidavit supporting this application were thirteen, but during the hearing, the applicant's advocate dropped the rest and remained with only two stated as hereunder: - /. That there was no reason for terminatlon^hncL ii. That the procedure for termination ^s'riQtifpHowed The application was argued ora^^Th^^^cant was represented by Mr. Jovinson Kagirwa, learned Advorate^wjjlreas the respondent enjoyed the services of Mr. Godwin Negpnory Nyaisa learned Advocate. tongue t^rranere were no witnesses at the disciplinary hearing to supp^the^llegations. To support his point, he cited Rule 13(5) of G.N. No. 42 of 2007 and the case of Alex Eriyo & 4 others v Bank of Africa, Revision No. 03 of 2020 at page 24-25 where it was held that evidence must be tabled at the disciplinary hearing. 2 He further submitted that at the CMA, investigation report was not tendered. It was his argument that only Dwl under the directives of the managing director appeared to testify. The learned counsel argued that, even reasons for termination were not stated before the CMA. In his view, there was no legal basis to arrive at the decision. This court was therefore asked to hold that the CMA decision was wrong a On the second issue, Mr. Kagirwa submitted that the afbijratdr did not rule out if the disci y hearing procedure, foiled the law. He stated that in the award, there is onlyfthe'content of evidence of D5 (disciplinary hearing summarymis proof of|admission of misconduct. In % his view, based on the cornpositioiTof)the disciplinary hearing, it was contrary to guideline 4(2), ofothe G.N. No. 42 of 2007. To support his a. submission, he citd^thfhcaslrof I & M Bank (T) Limited v Gregory Ogweno, Gonsdlidated^Revision No. 724 & 761 of 2019. The learned counsel tneniaskedThis court to grant this application thereby quashing x c> and settjrra^side the CMA award and order reinstatement. To reply, Mr. Nyaisa learned counsel submitted that three charges were blessed by the disciplinary hearing committee and the CMA. The learned counsel added, the applicant admitted a misconduct as in exhibit DI, which shows the loan was approved in assumption that there was a mortgage. The learned advocate submitted further that the applicant prepared an addendum without notifying the board, and so there was no approval of the board. He stated further that there is evidence of the minutes and proceedings showing the applicant admitted to commit errors. To support his submission, he cited the case of Bank of Africa v Karim A. Hassan, Revision No. 123 of 2020 at page 15. He submitted further that the hearing form has^itnesses^ho testified during disciplinary hearing and even at the GMA as^exhibits D5 shows. The learned counsel held the view that investigation can be done in any way. The learned counsel th|refbrd^cit|d the case of Ramadhan Masoud v Bank of Africa, Reviste^N^ 391 of 2020 at page 12. He said, the case of Alex Eriyo^swra) is distinguishable as Dwl testified and tendered documents^t^ro^e the wrong doing. On the second poinvbe submitted that the arbitrator properly made reliefs, bCalhbSlhe admission as stated in the cases of Ramadhan MasoudTsupra) and the case of Nickson Alex v Plan International, Revision No. 22 of 2014 at page 6-7. He submitted further that the constitution of the disciplinary hearing committee and presence of the chairman is a new point, because, it was not stated before as provided for under Guideline 4(2) of G.N. No. 42 of 2007. As to the issues of mortgage, he submitted that, it was supposed to be tendered at CMA and not at this stage. He stated further, that the case of I & M Bank (supra) is distinguishable here as exhibit D9 shows what the applicant did was against the job description. He then prayed for the application to be dismissed. But should not order reinstatement as the applicant was terminated in 20i£8. ^Reinstatement *\ 'V according to the learned counsel, is not a best option. Theiearned counsel then stated that the law has given an alternati^eCs^ in CMAF.l that the award can be reduced to less than 12 mont^e^was stated in Karim's case, (supra) In a rejoinder, Mr. Kagirwa submitted that reinstatement should be ’W decided by the Court. Furthest was his argument that the procedure and the presence of tb^haim^is not new, as was stated at page 12-13 of the award^here^i^as^ointed out that he had interest in the matter. He submitted furtber^that as seen in exhibit D5, the applicant disputed all allegatioQSjjTd did not admit anything. The respondent, he added, is duty bound by the law to prove the same. He continued to stated that at page 3 of the award, it shows the investigator who testified was also the prosecutor and so could not be a witness. That, on the addendum issue, it was done but not by the applicant. He said as well, that admission was not in respect of the allegations levelled against her. The mortgage documents, he said, were registered by the respondent in 2010 as a legal mortgage and so the applicant could have not asked for the documents which were already tendered. He then stated that the cases of Ramadhan Masoud & Bank of Africa and Karim Hassan (supra) are distinguishable. Mr. Kagirwa then prayed for the application to be granted. A a After going through the submissions, CMA proceedings ancfexhibits, I find W % this court has been called to determine; whethentne^spondenthad valid reason to terminate the applicant and ^hether^here was procedural fairness in terminating the applicant and that she was termiriate^^ie reasons for termination as stated by the witness are foun&irie>rtit D4. Those were deliberately uttering false informatio^^^Mn^t^ board credit committee wrong information, nQgligendsn|fepi2rfptmance of her duties and signing of the addendum of the f^HtywJiich replaced the security of the facility from a legal mortgage on leased property. As the law provides, it is the duty of the employer to prove, if termination was fair. This is provided under section 39 of the Employment and Labour Relations Act [CAP 366 R.E. 2019]-ELRA which provides: - "In any proceedings concerning unfair termination of an employee by an employer, the employer shall prove that the termination was fair.", The extent to which this proof can be done is explained under section 37(2) of ELRA stating as hereunder; "A termination ofemployment by an e yer isjl^ir^^i^nployer faits to prove- that the reason for the termination's valid, b) that the reason is a fair reason^^\^^> i. related to the employee's conduct, capacity or compatibiiitffior H. based.gn'the^perationaf requirements of the employer, c) that^t^^^/oyment was terminated in accordance with a fair This means; for termination to be fair, the employer has to demonstrate to have good reason for termination and to follow laid down procedure for termination. Rule 9(1) of the Employment and Labour Relations (Code of Good Practice) G.N. No. 42 of 2007 as well has it that: - "An employer shall follow a fair procedure before terminating an employee's employment which may depend to extent on the kind of reasons given for such termination." Therefore, in this application the respondent is bound to prove whether she had good reasons and followed procedures to terminate the applicant. In doing so, the employer has to prove at the balancgjof probabilities as under Rule 9(3) of G.N. No. 42 of 2007, thus; %. • 7/?e burden of proof lies with the empl^yerbut^sufficient for the employer to prove the reason on a 'b^n^eobprobabiiities." On tuckering the issues at hand, I havejopserved that the arbitrator delt A’"" with only one reason of negligence'oufeof the four reasons for termination listed in the exhibit D4. jW^Kwill therefore start with the same. At the hearing?the'applicant stated that she used the property of their client as securityrtda new loan application which was used in 2010, loan 'analhe said client had already finalized the payment. For clarity herfis what she stated: - "(shahidi anarejea D3) makosa manne kosa ia kwanza ni employer claimed that I informed the board that we have a registered f mortgage while it was not true kwenye hili kosa ia kwanza huyu mteja Lesvos niiimfahamu tangu 2010 aiipokuja kuomba mkopo 8 alitumia security hiyo na mkopo wa 2 million dollars na aiimaiiza kulipa; kosa ni kumtajia mteja security tofauti wakati hiyo security iiikuwepo tangu 2010 bank Hidai kuwa tuna registered lease hold property and not legal mortgage" Going further, the applicant admitted signing the offer letter without the approval of the committee. She stated that: - z# ~ ''Addendum iliandallwa na watu wa credit administration na mamlaka ya kuandaa waiipewa na localwedit-approval committee. Hivyo hapo kosa langu mimi lilikuwaikusaini hiyo offer letter baada ya kuona approval ya com/^ee^j^ When cross-examined shei^tated^that^t was not her duty to sign addendum. For easy reference^she stated as shown below; "S. <Mkopp waliokuja kuomba 2017 ullkuwa ni muendelezo wa mkopo^wa.2Qlp, Local Credit Approval Committee wallapprove nini d>Waiiapprove apewe mkopo aliomba kwa Security ya Registered Lease hold property S. Mlkopo mlkubwa kama wa Lesvos approval yake ipo stage ngapi J. Tatu; kwanza; Local Credit Approval Committee (LCAC) Pill; Group Credit Committee (GCC) 9 tatu; Board Credit Committee (BCC) - Mimi nHikuwa Local Credit Approval Committee S. Nani anatoa final approval kwenye hiyo stage 3 J. BCC anachosema au kuapprove BCC ndicho kinaandikwa kwenye facility letter S. Kama kuna kitu unataka kupunguza au kObngefza baada ya kuwa approved na BCC nani anakuwa consisted J. BCC ndio wanatoa go ahead baada fveFkuwa consulted S. Walikwambia uweke securityHpi? IL J. Legal mortgage Pamoja nffifaciiity letter ya kwanza walisema ni legal mortgage - NakubalLriilipeleka niliandika legal mortgage Ha kosa sikulikubali S. ^e'rii^'e/i'taarifa uliyoipeleka BCC ndio taarifa nlliyopewa na Local Credit Approval Committee 'V J. Ndio taarifa niliyotoa mimi Hikuwa tofauti na attachments kutoka (LCAC) S. Facility letter Hikuwa na masharti kama yaliyokuwa kwenye BCC na kama kuna marekebisho iazima yawe approved na BCC, wakati unaenda kuandaa addendum D7 kuiikuwa na approval ya BCC? J. LCAC walikubaliana yalifanyika marekebisho ya security BCC hawakutoa approval ya kufanya marekebisho..." From the above, the applicant signed the addendum when she was not supposed to do so and also, she changed the security of the said client without being authorised. I have perused the CMA records and found that the^applicant at,different time had agreed to sign the addendum without authority. Sne stated that she registered the lease hold as the legal mq^^^andMater on changed it into registered lease. This was obseiYe^kgxhibit D3 (Re; Request for explanation on the charge agaipst /77^shg|stated: - "...The allegation that 'j intendtxfto mislead the Directors Is based on human error foundtfn the email The^offePietterissued with reference to No. BCM/LO/jbb/0217/17 dated'OP^December, wrongly mentioned securities held property ■on Piot-No. 254 Toure Drive as legal mortgage while what was recommended by Group and approved by the Board, and kept in custody was leasehold on the property. As per Credit Policy section 1.4 (v) I acted to the best served long-term interests of the Bank and prudently meeting the reasonable needs of clients. There were no any security changes that required to Involve the Board. Client executed the documents without any issue since they had no Hi intentions. Such addendum has occasioned no loss this far, then securing the Bank. I only was keeping records dear..." Also, in exhibits DI on facility given to Lesvos Enterprise Limited the applicant stated that: - "... J did not intend to change Local Credit Comri^e^edsior hat I wrote in my email was purely an error^fjwhicnhapoiogize for To put the record clean, the applicanfcd,efence)was that what happened was a human error and that shewanted^toJnake the records clear. I find xs. M this as lame excuse. Her portion as«the*Assistant General Manager Credit Management and her experienCe^f working in the industry since 07th June 2002, she ought t^ know What she was supposed to do or abstain from doing. Her JobMescrjption as shown in exhibits D9, D6 (Human Resources Manual) angDl, (Facility Given to Lesvos Enterprise Limited) tells it all. From heKexperience she ought to have known the procedure and the dangers likely, when approving loans. It does not matter how good the customer may be. What is most important in the banking sector is to make sure the laid down procedures are followed and observed to the brim. Rule 12(3) (d) of G.N. No. 42 of 2007, provides that negligence merits termination. It follows from the foregoing, that the respondent had valid reasons for terminating the applicant. I hold, she acted negligently on her party and so termination was inevitable. In dealing with the second issue of whether there was procedural fairness in terminating the applicant. The advocate for the applicant stated that the cedure wk notsValid. In support he cited Guideline 4(2) of G.N. No. 4<^2007?^ As the law provides, Rule 13 of G.N. No. ^C^db^provides for the procedures for termination. But in the>drcumstances of this case, the applicant admitted to have committed^an^offence as justified by exhibit 7?) D3 (Re: Request for explanations onathe Charges Against You) a reply to show cause letter. I^^^^it^ie view that any allegation regarding disciplinary hearin^lacks/merit. Since the employee admitted the offence, this court findSThere was no dire need to proceed with the hearing. The essence oftff^iearing is to prove the allegations levelled against the On the issue of reliefs. The case of Charles Mwita Siaga v National Microfinance Bank PLC, Civil Appeal No. 112 of 2017, the Court of Appeal of Tanzania, provides the answer as shown below: - "... the appellant was employed in the banking industry in which trust and confidence were of paramount importance...It would be unrealistic to reinstats the appellant who was found by the respondent to be marred with dishonesty after having been convicted of gross misconduct and failure to perform duties to the standard required and whom the respondent had/pstconfidence... As I have stated before, there were valid reasons for terminating her employment and that the other procedure fgrHiearing was not that necessary. Based on the decision in theraase of. Charles Mwita Siaga(supra) reinstatement could not have beemayiable option even if the applicant would have been unprocejdural, terminated. I find the application to have A.K. Rwiziie JUDGE & 17.07.2022 14