registered board of trustees of lapf dodoma vs jamal mruma 2020 tzhcld 42 15 may 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM CONSOLIDATED REVISION APPLICATION NO. 65 AND 114 OF 2019 BETWEEN REGISTERED BOARD OF TRUSTEES OF LAPF, DODOMA........................................................... APPLICANT VERSUS JAMAL MRUMA........................................................ RESPONDENT JUDGMENT Date of Last Order 5/03/2020 Date of Judgment 15/05/2020 A. E. MWIPOPO. J This consolidated Revision application arise from the decision of Hon. E. Mwidunda, Arbitrator dated 31/12/2018 in labour dispute no. CMA/DSM/DOD/467/2013 between Jamal Hemed Mruma and Registered Board of Trustees of Local Authorities Pension Fund. Jamal Hemed Mruma (employee) was employed by the Local Authorities Pension Fund (LAPF) in 2006 as Estate Officer and he was promoted to various position until he become the Project and Estates Manager in 2008. He was terminated by the employer on 10/10/2013 for alleged gross insubordination. Aggrieved by the employer's decision the employee referred the dispute to the Commission for Mediation and Arbitration which after hearing both parties did make award in favour of the employee. Both parties were aggrieved by the decision of the Arbitrator and each decided to institute Revision Application before this Court. The complainant in the CMA dispute Jamal Hemed Mruma instituted Revision Application no. 65 of 2019 whereas the Board of Trustees of Local Authorities Pension Fund (Employer) who was respondent before the CMA instituted Revision Application no. 114 of 2019. The applicant in Revision Application no. 65 of 2019 have total of three legal issues. The legal issues are as follows: i. That the Arbitrator misdirected himself for not awarding all benefits entitled for the applicant from the time he was terminated from employment to the time the decision was delivered. ii. That the reasoning of the Hon. Arbitrator was not probable and reasonable as he misdirected himself for not ordering the applicant to be re-instated to the employment hence ended in giving order which are repugnant to the law. iii. That the Arbitrator failed to give sufficient reasons in rejecting the awarding cost and other damages claimed by the applicant. 2 In Revision Application no. 114 of 2019 the Board of Trustees of the LAPF relied on six legal issues as follows: i. Whether the Hon. Arbitrator erred in law and fact in holding that the decision of the Hearing Manager was final. ii. Whether the Hon. Arbitrator erred in law and fact by quashing the proceedings held by the Board of Trustees of the Applicant and its committees. iii. Whether the applicant was condemned unheard by the Commission for Mediation and Arbitration. iv. Whether the Hon. Arbitrator erred by taking a narrow view of the word insubordination. v. Whether the Hon. Arbitrator erred in awarding compensation on the amount equal to 16 month's salary. vi. What remedies are parties entitled. When the matter came for hearing both parties were represented and the matter was heard orally. The Applicant was represented by Advocate Fred Kalonga whereas Advocate Eliad Mndeme appeared for the Respondent. Advocate Fred Kalonga submitted in respect of Revision Application No. 65 of 2019 that the applicant have three legal issues to be determined 3 by this court. The first issue is that the arbitrator misdirected himself for not awarding all benefits entitled to the applicant from the time he was terminated from employment to the time the decision was delivered. From the collection of the evidence the Applicant was terminated on the 11/10/2013 and the decision of the CMA was delivered on the 31/12/2018 which is almost six years. From the CMA Award, it was held that the applicant was illegally terminated. By that decision of the CMA, the Applicant was entitled to be paid all entitlement and benefits which includes salaries and leave pay. Out of 72 months salaries which he was terminated, the CMA Awarded the applicant the salaries for only 16 months. As a result the salaries of 58 months were not given. He argued that the decision goes against section 40(1) of the Employment and Labour Relations Act, 2004 from which the applicant was supposed to be paid for the period he was out of work. The second issue is that the Hon. Arbitrator misdirected himself for not ordering the applicant to be re-instated to the employment hence ended in giving orders which we repugnant to the law. It is applicant's contention that the reasoning of the Arbitrator found at page 75 of the Award where he refrained to re-instate the applicant to his employment for the reason that the position he was holding at the LAPF as Senior Officer would not be 4 vacant. The holding is wrong as there is no evidence adduced to prove that the position is vacant. The CMA was supposed to give the order and leave it to the respondent to find if he still have the vacancy. Further, the CMA was supposed to order the respondent to pay the Applicant with 12 months salaries compensation for unfair termination, which was not done. The decision was decided in ultra vires and the arbitrator erred in that finding. Hee prayed for the same to be set aside. The third legal issue is that the Arbitrator failed to give sufficient reasons in rejecting to award cost and other damages claimed by the applicant. Among the things that the applicant prayed to be granted by the CMA was the damage of 300,000,000/= being a compensation for being unlawful prosecuted and another 300,000,000/= million for psychological torture during the time of termination. The applicant also prayed for the cost of the suit. He was of the opinion that the reasons advanced by the arbitrator for refraining to grant the remedy were short of merits. Concerning the issue of cost, the counsel for the applicant submitted that the Arbitrator did not offer cost for the reason that it was not proved. As the matter was in progress, it was not possible for the applicant to prove the same before the CMA. On the other damages, the Arbitrator stated that those damages were solatium. The award of Tshs. 117,133,333.30 was 5 sufficient thus it was not right to grant for other damages. But those damages were justified. He invite this court to evaluate the evidence adduced that justify the claims for the damages prayed. He prayed for the court to grant the relief sought. In reply, Advocate Eliad Mndeme responded to each ground or legal issue as raised by the applicant. On the first legal issue, he submitted that Section 40 (1) of the Employment and Labour Relation Act, 2004 {ELRA} provides for three options for the arbitration or Labour Court to award a remedy for unfair termination. These remedies are re-instatement, re­ engagement or compensation and can be awarded at the discretion of the Arbitrator or the Labour Court. The Court of Appeal of Tanzania in the case of National Microfinace Bank Vs. Victor Modest Banda, Civil Appeal No. 29 of 2018, CAT at Tanga held that those three options under S. 40(1) are awarded not in conjunctive but disjunctively. As the word used between the options is "or" thus the court cannot award two of the remedies. Only one remedy can be awarded. In this case the arbitrator awarded compensation of 16 months salaries. The amount is well beyond 12 months salaries provided by the law. 6 Thus having awarded compensation the Arbitrator cannot award re­ instatement or re-engagement. He submitted further that the reason for the arbitrator to award compensation instead of re-engagement is found in page 75 of the Award. The reason for the decision of the Arbitrator is that the employer {LAPF} was no longer there. The coming of the Public Service Social Security Act No. 2 of 2018 especially Section 77 repealed the LAPF Revision Fund Act, Cap 407. This means that the employer was not there. Thus is the reason for the arbitrator to take a judicial notice of the same and find that it was not possible to order re-instatement and decided to order compensation. The arbitrator applied Section 40(1) of ELRA correctly. He was of the opinion that the Arbitrator gave reasons as to way he did not offer salary arrears in page 75 of the award. The reason is that the applicant admitted that after termination one month later he got another employment and the salary he was receiving was large than he was receiving from the respondent. The fact was not disputed. As a result the applicant did not suffer as he claims in his prayer. This is also another reason for the Arbitrator not to order re-instatement of the applicant. Salary arrears is paid or ordered in cases where the applicant was not employed during the period 7 he was under termination. If you award salary arrears at the time he have the other employment it would be double payment. On the second legal issue as submitted by the applicant, he argued that the reason for refusing to grant salary from the time of termination to the date of the award are well provided under the law. And the issue could not be left to the employer as at that time there was no LAPF {Respondent}. On the third ground/legal issue, he averred that three issue of damages for lawful prosecution or for torture are subject to proof. There was no evidence submitted to the CMA for any torture, or for any unlawful prosecution, and even when examined the applicant failed to justify how he arrived for the figure of Tsh. 350,000,000/= for unlawful prosecution and Tshs. 300,000,000/= for torture. The applicant kept changing the figure during the opening statement and during the testimony. What was claimed by the applicants are damages that have to be proved specifically. The loss of parent or parents due to strike has to be backed by the medical report to prove that the deceased had no history of that disease and that he suffered stroke not because of old age but because of what happened to the applicant. The respondent don't rejoice with the death of any person, but if was alleged that the death was caused by certain reason the same has to be proved. And those evidence are supposed to be given during hearing and not during closing submission because submissions are not evidence generally. Damages and cost are not awarded in labor matters except in special circumstances which must be proved. The arbitrator stated that in page 76 of the Award paragraph 2 the damages and cost are not awarded as there are no evidence to prove the same. Then, he was of the opinion that the application for revision have no legal grounds to stand and prayed for the same to be dismissed. The respondent proceeded to make submission for the legal issues in respect of Revision Application No. 114 of 2019. The respondent have six legal issues to be determined by this Court. He jointly argue the first, second and third legal issues for the revision. He submitted that the arbitrator in page 52 to 57 of the award discussed the issue of double jeopardy that the applicant was required to appear and answer charges before hearing Manager, later he appeared before the Board of Trustee and again he appeared before the board of trustee. The Arbitrator was of the view that by doing so the applicant was heard and punished by multiple organ. This was the one of the issue for holding that the termination was not fair. The respondent submitted that reading CMA Form No. 1, opening statement of the parties, testimony of all witnesses before the Commission, 9 closing submission by the parties the issue of double jeopardy was not an issue contested before the CMA. The parties were not afforded an opportunity to address the issue. The CMA decided a novel issue and went along to condemn the respondent. Had both parties been allowed to address the Commission on the issue the arbitrator would understood that the basic procedures of dissolving Applicant employment under his scheme of service. He argue further that the employee (the applicant in the consolidated revision applications) was terminated when he was a manager. According to the applicant's scheme of service a manager is an employee of the Board of Trustee. It is the board of trustee that can terminate manager's employment and not any other person. The applicant never complained in the proceeding before the CMA about the procedure of termination because he know who is his employer. That being the case, the CMA failed to address the same and appreciate the fact that Hearing Manager had no mandate to order whether the Applicant had to be acquitted or terminated. The mandate was with the Board of Trustees which was the one to impose penalty or acquittal to the applicant. That is the reason the applicant submitted the proceedings before the Board of Trustees even the termination letter was written on behalf of the Board of Trustee. If the CMA was aware of all this it would have come 10 with different conclusion. For that matter we believe that the employer was condemned unheard. The arbitrator on page 52 to 57 condemned the employer in several issues and even introduced the issue of bias. The Arbitrator quashed the hearing from the disciplinary committee to the decision of the board. But strangely enough he used the quashed proceedings to condemn the employer of being biased {page 62 to 63 of the award}. The award of the CMA is totally confusing as he condemn the employer and quash the proceedings that also used the same proceedings against the employer. The CMA failed to grasp what was issues before the Commission. The arbitrator raised his own issues which is a serious misdirection. He prayed for this court to nullify the proceedings because the employer was condemned unheard. The fourth legal issue is that the Arbitrator taking a narrow view of the word insubordination. During the hearing of the matter, the issue of what amount to insubordination was extensively discussed. The parties elaborated what is insubordination. The Arbitrator was of the view that insubordination is the act of the employee of not adhering to the directive of the employer. Insubordination also involves disrespect, abusive language, addressed to Senior Managers or Director or Supervisor in disrespectful manner. Thus CMA failed to grasp the fact. For that reason the Arbitrator failed to evaluate the ii evidence submitted by the employer, to show that words which was used by the employee in his report was abusive, disrespectful to his superior and thereby were not a fair comment taking in account that the employee was under investigation by the directorate of internal audit. Later on the employee authored a report to the directorate which was abusive as it questioned the competency of the Directorate. The arbitrator did not take into account by the act. The respondent prayed for the Court to revisit the whole evidence submitted and find that the CMA took a narrow view of the word insubordination and held that the termination was substantive fair. The last issue of the respondent's revision is whether the Hon. Arbitrator erred in awarding compensation on the amount equal to 16 months' salary. Respondent submitted that under Section 40(1) (c) of the ELRA the arbitrator have discretion to order compensation of less than 12 months' salary. In the present case the Arbitrator awarded to the Applicant 16 months' salary and he need further to compute the amount to be awarded. The amount came to the total of Tshs. 117,933,333.30. The salary of 5,800,000/= which was used in the calculation is a wrong one. There was no salary slip or salary letter which was submitted. There is no evidence as to the salary of the employee. The Arbitrator have not given the reason why he decided to give compensation of 16 months instead of 12 months. At the 12 same time he hold that during termination, the employee had another job with higher salary. Thus we find that the award is impeached and we pray for the court to revise the same. In rejoinder to the employer's submission, the Counsel for the applicant submitted that the employee was out of job for 74 months but the court awarded only salaries for 16 months. The discretion was not acted judiciously. It is true that the employee secured a job somewhere else. But that does not justify the illegal act done by the employee which has to be punished with payment of compensation. On the issue of re-instatement, he was of the opinion that the Arbitrator presumed that the position might not be vacant. There is no evidence to that. Also, on the issue of cost and other damages his submission was that they cannot prove the cost during hearing and that the arbitrator have never given a reason for not awarding cost. Replying to the issue of damages, he submitted that psychological torture cannot be proved. They fall under general damages and they are made under discretion of the Arbitrator or the Labour Court. He invites the court to award the same. The arbitrator stated that he was not awarding general damages and cost because he have awarded the employee enough. 13 In contention to the Employer's submission in respect of his grounds in application No. 114 of 2109, Mr. Kalonga started by replying to 5th ground of the revision on the amount awarded to the employee. He argued that the re-collection of the evidence starting from the CMA Form No. 1, opening statement and a testimony of witnesses the amount of Tshs. 5,800,000/= as Applicant salary was never contended. When the employee is terminated unfairly the remedy is payment from the time he was terminated to the date of the award. On the first, second and third issues which were jointly argued by Learned Counsel for the employer, he is of the view that when the matter was referred to the CMA it is the duty of the CMA to see whether the termination was fair. The duty of proving that the termination was fair is to the employer. From page 58 - 61 of the CMA Award the arbitrator was looking if the employer scheme of services was in accordance with law. The arbitrator did find that the employer decided to deal with the labour dispute by following Employment and Labour Relations Act, 2004. Thereafter the arbitrator found that there was double jeopardy on the part of the employer. The arbitrator exercised his power to see if the termination was fair. Regarding the submission that the Arbitrator on the issue of bias of the process where several evidence shows that the procedure was tainted 14 with biasness, he submitted that the issue is not new. The arbitrator was just overseeing if the process of the termination was fair. The staff service regulation - exhibit DIO fell short of the requirement of the law. On the fourth issue as submitted by the counsel for the respondent (the employer), he submitted that the employer failed to prove that there was insubordination. The basis of the purported insubordination is the opinion or letter of the employee which was received as exhibit Dl. The arbitrator dealing with the issue in page 32 to 45 of the proceedings. The witness of the employer was cross examined on exhibit Dl and in page 45 of the CMA award Jacob Mnyenyelwa - DW1 who was HR Manager of the employer stated that even the person who it was alleged that the insubordination was committed against was not called to testify before the disciplinary Commission. The comprehensive interpretation of the word insubordination is found in page 64 to 75 of the Commission Award. Despite of that the offence itself was never proved. The employee agree with the reasoning analysis and finding of the award save only to the amount of the compensation given to the employee. Having said so, he stated that the prayers of the employer have no basis. 15 Counsel for the employer (respondent) was given chance by the court to make a rejoinder to some of issues raised by Advocate Kalonga in his reply to the submission on legal issues in respect of Revision Application No. 114 of 2019: Starting with the issue of the amount awarded to the employee, he submitted that salary arrears and compensation under Section 40(3) are different. In regards to the submission of the Counsel for the employee on the first, second and third issues in revision application no. 114 of 2019 that the issue of double jeopardy was not an issue contested before the CMA and the parties were not afforded an opportunity to address the issue, the counsel for the employer stated that after the Arbitrator find out a new issue for determination of the labour dispute he was supposed to call the parties and ask then to submit on the issue. The parties never submitted on the issue. Parties are bound by their pleadings and the court have to work with the parties pleadings. Therefore he maintained his submissions and prayed for the CMA proceeds to be quashed and its award to be set aside. From above submissions and CMA records and Award issues for determination of the consolidated revision application are as follows: i. Whether the reason for termination of the employee was fair. 16 ii. Whether the procedure for termination was fair. iii. What remedies are entitled to parties? The employment and Labour Relations Act, 2004 provides in section 37 (1) that it shall be unlawful for an employer to terminate the employment of an employee unfairly. The same Act in section 37 (2) provides for the duty of the employer, in dispute for termination of employment, to prove that the termination was fair. The section reads as follows:- "Section 37(2) A termination of employment by an employer is unfair if the employer fails to prove- (a) that the reason for the termination is valid; (b) that the reason is a fair reason- (i) related to the employee's conduct, capacity or compatibility; or (ii) based on the operational requirements o f the employer, and (c) that the employment was terminated in accordance with a fair procedure." 17 The above section requires employers to terminate employees on valid and fair reason and on fair procedures. Failure of the employer to prove that then the termination becomes unfair. In regards to the first issue whether the reason for termination of respondent's employment was valid and fair, it is a well-established principle of law that once there is issue of unfair termination the duty to prove the reason for termination was valid and fair lies to employer and not otherwise, (see Tiscant Limited Vs. Revocatus Simba, Revision No. 8 of 2009, High Court, Labour Division, at Dar Es Salaam and Amina Ramadhani vs. Staywell Appartment Limited, Revision No. 461 of 2016, High Court Labour Division, ata Dar Es Salaam). Gross insubordination is among the misconduct which may justify termination of the employment according to rule 12 (3) (f) of Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007. Further, rule 12 (4) of the GN No. 42 of 2007 provides for the two principles that should be considered in determining whether or not to terminate the employee. The first one is the seriousness of the misconduct in the light of the nature of the job and the circumstances in which it occurred and the likelihood of repetition. The second one is the circumstances of the employee 18 such as the employee's employment record, length of service, previous disciplinary record and personal circumstances. In the present case the employee Jamal Mruma was terminated from employment for the reason of gross insubordination. The counsel for the employer (LAPF) is of the view that the Arbitrator did take a narrow view of the term insubordination in CMA Award as insubordination also involves disrespect, abusive language and addressed to Senior Managers or Director or Supervisor in disrespectful manner. The employee explanation report - Exhibit D1 was abusive as it questioned the competency of the Directorate of Internal Audit. In contention the counsel for the employee was of the view that the Commission did a comprehensive interpretation of the word insubordination in the Commission Award. The employee relied to exhibit D1 only to prove the offence. There was no witness who testified on the offence. Even the Director of Internal Audit (DIA) when testifying at the Disciplinary Committee she said nothing concerning the offence. The evidence available according to the letter of termination - Exhibit D9 dated 07/10/2013 the Board of Trustees of the Employer (LAPF) terminated Jamal Mruma (Employee) for gross insubordination from the date he received the letter. The alleged gross insubordination according to charge sheet - Exhibit D2 is that the employee demonstrated a gross 19 insubordination by insulting the Director of Internal Audit and her subordinate that they are incompetent and need to be send for training or employ audit expert or the directorate be restructured to improve efficiency. The alleged insubordination were made by the employee through explanation to the LAPF Director General - Exhibit D1 dated November, 2012. The alleged insubordination is found in clause 3.7 and clause 4.6 of Exhibit Dl. In clause 3.7 the employee Jamal Mruma is doubting the competence of DIA and all staff members in the directorate on the field of technical auditing. In clause 4.6 he advised for some measures to be taken to train DIA staff or employ an expert on the technical audit, and perhaps restructure the Directorate to improve efficiency. In clause 5.3 of the same exhibit the employee stated that his observations are honest and should in no way be misconstrued as an attempt to molest anyone. I agree with both parties that insubordination is the act of the employee of not adhering to the directive of the employer. It also involves disrespect and abusive language addressed to senior officers in disrespectful manner. In the present case the words alleged to create the offence is the act of the employee Jamal Mruma through Exhibit D l to doubt the competence of DIA and all staff members in the directorate on the field of technical auditing. And his recommendation that some measures to be taken 20 to train DIA staff or employ an expert on the technical audit, and perhaps restructure of the Directorate to improve efficiency. Reading through those words I do not see any word or phrase or a sentence amounting to be disrespectful, abusive language or disregarding to the directive of the employer. The employee was explaining his observation after his interview with DIA during the inquiry on the causes for the fund to incur unnecessary storage cost of furniture. The employee stated that his observations are honest and should in no way be misconstrued as an attempt to molest anyone. I agree that recommendation of the employee that perhaps the authority may restructure the Directorate to improve efficiency is a strong word which shows that the directorate was not efficient. But the employee made it clear in what area he was doubting the competence of the directorate. The area is on the field of technical auditing. And he gave his reasons for the doubts. It is my opinion that what was written in exhibit D1 does not amount to insubordination. Further, there is no evidence whatsoever in the record to show the seriousness of the misconduct in the light of the nature of the job, the circumstances in which it occurred and the likelihood of repetition. The circumstances of the incident shows that the reason for the employee to write his explanation to the Director General of the Fund as found in Clause 21 1.8 and 1.9 of exhibit D1 is that DIA and her subordinate told him during the interview that he mismanaged the matter due to negligence thus leading to loss incurred. Therefore, the employee decided to write the explanation - Exhibit D1 in order to defend himself as it was clear that DIA was accusing him for the mismanagement. There is no evidence in the record which dispute this testimony of the employee. Moreover, it is in record that the employee's employment record, length of service, previous disciplinary record and personal circumstances were not considered in disciplinary hearing held by ADC and the board. All of these are in contrary to rule 12(4) of the GN No. 42 of 2007. Therefore, I agree with the Trial Arbitrator findings that there was no insubordination which was committed by the employee. From above, it is my finding that the employer failed to prove that the reason for termination was fair. As a result the answer to the first issue is negative. The second issue is whether the procedure for termination was fair. The procedure for termination for misconduct is provided in rule 13 of the G.N. No. 42 of the 2007. The procedures provided includes that the employer shall conduct investigation to ascertain grounds for a hearing; where a hearing is to be held, the employer shall notify the employee of the allegations; hearing shall be held by and finalized within a reasonable time; 22 evidence from the employer and defence from employee shall be presented; after the hearing, the employer shall communicate the decision and furnish the decision to the employee and in brief the reason for the decision. The counsel for the employer LAPF submitted that the arbitrator discussed in the award the issue of double jeopardy that the applicant was required to appear and answer charges before hearing Manager, later he appeared before the Committee of Board and again he appeared before the full board of trustee. The Arbitrator was of the view that by doing so the applicant was heard and punished by multiple organ. The issue of double jeopardy was not an issue contested before the CMA as results the parties were not afforded an opportunity to address the issue. He was of the opinion that had both parties been allowed to address the Commission on the issue the arbitrator would understood that the basic procedures of dissolving Applicant employment under his scheme of service. He argue further that the employee was terminated when he was a manager and according to the applicant's scheme of service a manager is an employee of the Board of Trustee. Thus it is the board of trustee that can terminate manager's employment and not any other person. In contention the counsel for the employee was of the view that when the matter was referred to the CMA then it is the duty of the CMA to see 23 whether the termination was fair. The arbitrator also did look at the employer scheme of services if it was in accordance with law. The arbitrator did find that the employer decided to deal with the labour dispute by following Employment and Labour Relations Act, 2004. It is my opinion that the issue of double jeopardy came when the arbitrator was discussing the employer's decision to terminate the employee and the procedure which was implemented by the employer (read page 57 and 58 of the Commission award). The arbitrator did find that employer's decision was against the disciplinary committee's recommendations. The trial arbitrator stated that after disciplinary committee decision that the employee is not liable to the charge of gross insubordination then the employee was not supposed to be subjected to further disciplinary actions. I have the same position with the decision of this Court in the case of the Security Group Tanzania v. Athumani Abdallah, Revision No. 260 of 2008, High Court Labour Division at Dar Es Salaam, (unreported) where it was held that when the employee is acquitted at disciplinary enquiry he/she cannot be subject to a second disciplinary hearing on the same misconduct based on the same facts. Therefore, It is my opinion that the issue of double jeopardy was discussed when the Arbitrator was determining the procedures followed by the employer during the termination. 24 The Employment and Labour Relations Act, 2004, provides in section 39 the duty of the employer to prove that the termination is fair in any proceedings concerning the fairness of the termination. The same Act provides under section 37 (2) that the termination is not fair if the employer fails to prove that the reason for the termination is valid, the reason is a fair reason and the employment was terminated in accordance with a fair procedure. Therefore in any proceedings concerning the fairness of termination the employer has to prove that the reason and procedure for termination was fair. For that reason, the arbitrator in determining the dispute must consider if the employer have valid reason for termination and the procedure which was followed by the employer was fair. In the present case, the evidence available shows that the employee was subjected to three further disciplinary hearings before committees or Board which is contrary to the Employment and Labour Relations Act, 2004 and its rules. The committee and the Board of Trustees overturned the decision of the disciplinary hearing. As stated by the trial arbitrator, the employer (LAPF) decided to use the Employment and Labour Relations Act, 2004 in dealing with the matter. This can be seen in the disciplinary charges - Exhibit D2 which states that the charges were against rules 12 (3) (a), 12 (3) (d) and 12 (3) (f) of the GN No. 42 of 2007. Since the charges were 25 made in accordance to the Employment and Labour Relations Act, 2004, then the law and procedures to be followed in this dispute has to be in accordance with the Act. According to rule 13(7) and (8) of G.N. No. 42 of 2007 read together with paragraph 7, 8 and 9 of the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedure of the G.N. No. 42 Of 2007, where the hearing results in the employee being found guilty of the allegation under consideration he (the employee) shall be given the opportunity to put forward mitigating factors before a decision is made on the sanction to be imposed. This means that the disciplinary committee is also vested with power to convict the employee and to give sanction for the offence. The duty of the employer after the disciplinary hearing is to communicate the decision taken and preferably furnish the employee with written notification of the decision together with brief reasons. After the disciplinary hearing outcome the employee has right to appeal against the outcome according to paragraph no. 4 (12) of the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedures which is part of the Employment and Labour Relations (Code of Good Practice) G.N. No. 42 of 2007. The right for appeal of the Disciplinary Hearing Outcome is not given 26 to the employer except where the employer policy or regulations provides so. This court in the case of National Bank of Commerce v. Aprukelia Mlowe, Revision No. 888 of 2018, High Court Labour Division at Dar Es Salaam, (Unreported), cited with approval the South Africa case of AUSA obo Melville/SA Airways Technical (Pty) Ltd [2002] 6 BALR 573 (AMSSA) whereby it was held: "If an employer wishes to reserve the right to review in an appeal hearing a sanction imposed by the disciplinary committee then this must be clearly stated in the Appeal Policy Procedure. Furthermore the employee should be warned by the Chairperson of the same. The Policy must also stipulate the powers of all the disciplinary committees and not make a mockery of the first instance of the disciplinary hearing. " From the above cited cases, it is a duty of the employer to prove that the fund have such a regulation or policy allowing the employers to appeal against the decision or outcome of the disciplinary hearing. 27 In the present case, The Local Authority Pension Fund (Staff Services) Regulation, G.N. No. 35 of 2010 provides procedures for staff disciplinary proceedings which are similar to the procedures provided by GN No. 42 of 2007. In the circumstances where the disciplinary hearing outcome found the employee to be not liable for the insubordination, the employer was supposed to forward the disciplinary hearing outcome to the board, which is disciplinary authority of the employee, to communicate the outcome to the employee. The employer subjected the employee to the ADC committee where the hearing started afresh and the ADC committee recommended to the sanction, then employee was subjected to another disciplinary hearing to the Board Committee before he was charged and defended himself again before the Full Board. The procedure was against the procedure provided in the rules. Therefore, the procedure which was applied by the employer in the present case was against the law and the employee was subjected to several disciplinary hearing basing on the same facts unlawfully. Thus the arbitrator was justified to quash the hearing from the ADC meeting to the decision of the board. From above it is my finding that the procedure for termination was not adhered and the employee was subjected to several disciplinary hearings before termination. Thus, the answer to the second issue is negative. 28 The last issue is what remedies are entitled to the parties? The arbitrator awarded the employee for the compensation of Tshs. 92,800,000/= being 16 months salaries compensation for unfair termination, Tshs 11,600,000/= being two months salaries being payment for two leaves, and Tshs. 13,533,333.30 being severance payment making the total amount to be Tshs. 117, 933,333.30. In regards to the payment for the compensation for unfair termination the counsel for the employee have submitted that the arbitrator was supposed to pay compensation for total of 72 months salaries for unfair termination but the employee was awarded the salaries for only 16 months. As a result the salaries of 56 months were not given. The decision goes against section 40(1) of the Employment and Labour Relations Act, 2004 from which the applicant was supposed to be paid for the period he was out of work. In opposition the counsel for the employer submitted that under Section 40(1) (c) of the ELRA the arbitrator have power to order compensation of not less than 12 months' salary. In the present case the Arbitrator awarded to the Applicant 16 months' salary. The amount came to the total of Tshs. 117,933,333.30. The salary of 5,800,000/= which was used in the calculation was not proved. The Arbitrator have not given the reason why he decided to give compensation of 16 months instead of 12 months. 29 At the same time he hold that during termination, the employee had another job with higher salary. As it was my finding in the first and second issue the termination of the employee was not fair substantively and procedurally. And where the termination is unfair procedurally and substantively the remedy to the employee is re - instatement. In the present dispute the arbitrator decided to award 16 month's compensation instead of re-instatement for reasons that the employee was senior officer hence his employment would not be vacant during whole this period. Also as the employer Local Authority Pension Fund is no longer present following the merger of all public fund to form one Public Service Pension Fund in 2019; and the fact that the employee was employed to CRJE just one month and a half after termination where his salary is almost twice that of the LAPF. I agree with the holding of the trial arbitrator that in the circumstances discussed in the Commission Award re instatement will be unrealistic. As rightly held by the trial Arbitrator currently there is no LAPF following coming of the Public Service Social Security Act No. 2 of 2018 especially Section 77 which repealed the LAPF Pension Fund Act, Cap 407. Also the employee now is working with another employer CRJE. In such situation where re - instatement is not possible then the arbitrator is justified to order payment 30 of compensation for above 12 months' salary. Rule 32 (2) and (5) of GN. No. 67 of 2007 provides for circumstances to be taken into consideration before the arbitrator order re instatement, re engagement or award appropriate compensation and the trial arbitrator did considered all the factors. The prayer by the employee for payment of 72 months was not justified bearing in mind the fact that for more than 12 months the case was adjourned to allow the employee to find another advocate after his advocate was attending treatment out of the country. Moreover the fact that the employee was able to secure another employment soon after termination means that financial suffering encountered by the employee for losing his employment was minimized. Further, the employee in his testimony before the commission at page 111 of the typed proceeding he stated that his salary at the LAPF was Tshs. 5,800,000/=. Thus the amount which was used in the calculation was proved. In regards to severance pay and payment for two leaves which was ready the employer did not contest that payment. Thus the severance payment and two salaries payment in lieu of two leave have to be paid as ordered by the trial Arbitrator. On the payment for Tshs. 150,000,000/= for cost, Tshs. 300,000,000/= being a compensation for being unlawful prosecuted and 31 another 300,000,000/= million for psychological torture during the time of termination, I'm of the same opinion with the arbitrator that there is no evidence whatsoever to prove those specific damages and the cost of the suit. This being the labour dispute order for cost and payment of damages is provided in special circumstances. The employee have claims to be paid Tshs. 150,000,000/= for cost, but he did not prove how they arrived to that amount for the cost. The applicant submission that they cannot prove the cost during hearing has no basis since the applicant have prayed to be paid Tshs. 150,000,000/= being the cost of the suit. As the employee prayed for the specific amount of cost, the same have to be proved. I do not see any proof of the employee claims and there is no special circumstances to warranty this court to award the alleged payments. Therefore I find no reason at all to reverse the decision of the trial Arbitrator. Therefore I find both revision Applications to have no merits. The employee termination was unfair substantively and procedurally. I uphold the CMA Award. Each party to bear its own cost. A. E. MwipfcJp JUDGE 15/05/2020 32