ROYAL TRINITY LIMITED

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY

AT DODOMA LABOUR REVISION NO. 23921 OF 2024 (Arising from the decision of the CMA at Dodoma in Labour Dispute No. CMA/DDM/DOM/34/2024/10/2024) ROYAL TRINITY LIMITED...................................................APPLICANT

VERSUS NURAH AMANI............................................................... RESPONDENT

JUDGMENT 14th January & 21st February, 2025 MUSOKWA, J. The applicant has filed the present revision upon being aggrieved by the award issued by the Commission for Mediation and Arbitration (CMA) at Dodoma, in Labour Dispute No. CMA/DOM/DOM/34/2024/10/2024. The matter before the CMA was instituted and successfully prosecuted by the respondent herein, who alleged constructive termination of her employment by the applicant. In the impugned award, the applicant was ordered to compensate the respondent TZS. 72,369,230.05 being terminal benefits. The present application is made under section 91 (1) (a), (b); 91 (2), (b) (c); and 94 (1), (b), (i) of the Employment and Labour Relations Act, Cap. 366 R.E 2019 (ELRA); Rule 24 (1), Rule 24 (2) (a), (b), (c), (d), (e), (f); Rule 24 i (3) (a), (b) (c) (d) and Rule 28 (1) (a) (b) (c) (d) and (e) of the Labour Court Rules, G.N. No. 106, 2007 (Labour Court Rules, 2007). The application is supported by the affidavit of Mr. Rogers Sollo, the applicant's Finance and Operations Manager. The parties prayed to argue the matter by way of written submissions. The said prayer was granted and the parties duly complied with the scheduling orders issued by this court. Before submitting in support of the application, Mr. Renatus Shiduki, counsel for the applicant prayed to adopt the affidavit deponed by Mr. Rogers Sollo in support of the application. The

applicant's counsel proceeded to submit that this application seeks to challenge the legality and propriety of the proceedings of the CMA in the aforementioned labour dispute including the corresponding award. The applicant raised nine (9) legal issues as reflected at pages 11 to 12 of the filed affidavit. In a nutshell, the legal issues are premised on failure by the CMA to prove the alleged constructive termination. Further, the applicant contends the consequential orders which awarded the respondent an amount of TZS. 72,369,230.5 as terminal benefits. Though, the applicant erroneously cited the amount of TZS. 72,693,230.5. 2 Mr. Shiduki asserted that the CMA centered its findings on the allegations that the respondent had been demoted from the post of Customer Service Manager cum Human Resources to the post of Shop Supervisor, with a salary reduction of TZS. 600,000/- following her transfer from Dodoma to Mwanza. According to the applicant's counsel, the demotion was not among the issues that were before the CMA for determination. On the contrary, the issue for determination before the CMA was whether or not there was constructive termination as alleged by the respondent. The applicant's counsel further alluded that the evidence adduced before the CMA was insufficient to justify the findings of the CMA that the acts of the applicant towards the respondent amounted to a

demotion. According to the applicant, the evidence adduced before the CMA suggests that the change of the respondent's job title was prompted by lack of the requisite qualifications to continue holding the post of Customer Service Manager cum Human Resources, and not otherwise. In emphasis thereof, the applicant submitted that the CMA introduced, and proceeded further to determine the matter before it, on the basis of extraneous matters. This being contrary to the law, it vitiates the proceedings and the entire decision of the CMA. The case of Vallel s/o Palutala vs DPP, Criminal Appeal No. 102 of 2019, 3 [2022] TZCA 52, (24th February, 2022: TanzLII) deliberated by the Court of Appeal of Tanzania (CAT) was cited by the applicant to cement on this point. In addition to the foregoing, Mr. Shiduki asserted that the CMA further relied upon logic in reaching to the impugned decision. However, it is settled law that logic must be applied within the context of the law. The CAT case of Joseph Khenani vs Nkasi District Council, Civil Appeal No. 126 of 2019 [2023] TZCA 17921, (11th December, 2023: TanzLII) was relied upon. The applicant submitted further that the onus of proving that the actions of the applicant subjected the respondent to unbearable and intolerable working conditions was borne on the respondent, who was the complainant before the CMA. However, according to the

applicant's counsel, the respondent failed to discharge this legal duty as per the requirements of the law. Instead, the CMA shifted the burden of proof to the applicant which was a serious irregularity. In support thereof, the case of Kobil Tanzania Limited vs Fabrice Ezaovi, Civil Appeal No. 134 of 2017, [2021] TZCA 485, (16th September, 2021: TanzLII) was invoked in that respect. As regards to the amount of TZS. 72,369,230.5 which was awarded to the respondent as terminal benefits, the applicant submitted that there was no 4 legal basis to justify the CMA to grant the said amount. The reason being, the applicant's failure to prove the alleged constructive termination. According to Mr. Shiduki, the reliefs provided for under section 40 (1) of the ELRA in the circumstances that unfair termination has been established, include reinstatement without loss of remuneration, re-engagement on any terms that the court or arbitrator may decide and payment of compensation to the employee of not less than twelve-month salary remuneration. However, in the present case, the respondent resigned on her own volition, thus, the reliefs awarded were unmeritorious. Mr. Shiduki further submitted that if at all the respondent was entitled to any reliefs, the CMA ought to have awarded only the appropriate reliefs in the circumstances of voluntary resignation. The appropriate reliefs

include remuneration before resignation, accrued leave if any, and certificate of service as per sections 44 (1) (a), (b) and 44 (2) of the ELRA. The applicant's counsel contended that in light of section 42 (2) (a) and (b) of the ELRA, the respondent was not entitled to severance allowance as the resignation was not prompted by the applicant. Further that the CMA ought to have provided reasons for the compensation order of 48 months' salary which formed part of the terminal benefits awarded to the respondent. The case of Swala 5 Solutions vs Ally Nasib, Labour Revision No. 8 of 2023, [2023] TZHC 22120, (26th October, 2023: TanzLII) determined by this court, and the CAT case of Stanbic Bank T. Limited vs Iddi Halfani, Civil Appeal No. 139 of 2021, [2023] TZCA 17496, (11th August, 2023: TanzLII) were cited with reference to the position that compensation must be just and equitable. Further that, the adjudicating body must exercise its discretion judiciously on the question of compensation. On the basis of the foregoing, the applicant prayed that this court should find that the proceedings and award issued by the CMA to be unlawful, irrational and illogical, and consequently quash and set them aside. The respondent was represented by Mr. Henry Njowoka, learned advocate. In his submissions in reply, the respondent's counsel at the onset prayed to adopt the counter-affidavit

deponed by the respondent herein, to form part of his submissions. The respondent's counsel first addressed the issue of demotion which the applicant alleged that it did not form part of the respondent's complaint before the CMA, and it was not proved at the trial. Mr. Njowoka submitted that the records provide that the respondent's job title was unceremoniously altered from being Customer Service Manager 6 cum Human Resources, to Shop Supervisor and her salary was reduced from TZS. 1,400,000/- to TZS. 800,000/-. Mr. Njowoka alluded that the main issue for determination before the CMA was whether or not there was constructive termination. According to the respondent's counsel, the evidence adduced by the respondent before the CMA proves that the applicant resorted to demotion as a means to force the respondent to resign. In rebuttal of the applicant's assertions, the respondent's counsel argued that the issue of demotion is prominently featured in the entire proceedings at the trial. Indeed, the respondent equated the demotion as the mode of punishment that was inflicted upon her by the applicant herein. The respondent further argued that following the written allegations of misconduct against her, a written defence was submitted thereof. If the applicant was not satisfied with the respondent's defence, the procedure was to summon the respondent before a competent Disciplinary

Committee for hearing. On the contrary, the simultaneous transfer of duty station and change of job title immediately ensued, prompted for constructive termination. As regards to the assertions by the applicant that the respondent failed to resort to available internal mechanisms in resolving the 7 matter, the respondent argued that attempts were made whereby the applicant's Finance and Operations Manager and thereafter, the Managing Director were engaged but the matter was not resolved. The respondent further argued that the duty was borne on the applicant to prove the availability of internal mechanisms of dispute resolution through the applicant's Policy. In fortifying this position, the respondent relied on the cases of Severo Mutegeki & Another vs Mamlaka ya Maji Safi na Usafi wa Mazingira Mjini Dodoma, Civil Appeal No. 343 of 2019, [2020] TZCA 310, (19th June, 2020: TanzLII); and Bayport Financial Services T. Ltd vs Cresense Mwandele, Civil Appeal No. 19 of 2017, [2020] TZCA 1876, (26th November, 2020: TanzLII). The respondent emphasized that the aforementioned acts of the applicant resulted in intolerable working relations creating unbearable working conditions for the respondent, justifying the respondent's decision to terminate the employment contract. Mr. Njowoka vehemently contended the applicant's allegations that the CMA shifted the burden of proof to

the applicant, and the fact that the applicant's evidence was disregarded. In response thereto, the respondent's counsel submitted that the decision of 8 the CMA was meritorious as it was premised on the fact that the respondent's case had been proven to the required legal standard. The applicant further alleged that parties are bound by their pleadings. Thus, the respondent contravened this celebrated principle by raising issues outside the scope of the pleadings. The respondent on his part, submitted that the CMA Fl was duly completed, indicating constructive termination as the cause of action. Further that the evidence adduced during the trial clearly indicated that the demotion of the respondent by the applicant, including other unjustifiable acts of the applicant towards the respondent, resulted to the constructive termination. To cement this point, the case of Juma vs Manager, Pbz Ltd & Others, Civil Appeal No. 7 of 2002, [2003] TZCA 4, (12th November, 2003: TanzLII) was relied upon by the respondent. In view of the foregoing, the respondent's counsel stated that the respondent is entitled to the reliefs which were prayed for and subsequently granted by the CMA. Notably, the respondent further submitted that in the event this court finds that the said reliefs are unjustifiable, it may proceed to revise the CMA award, or in the alternative, remit the court records to

the 9 CMA for necessary action. In conclusion, the respondent's counsel prayed for dismissal of the present application in its entirety for want of merit. After the above summary of the parties' submissions, this court will proceed to determine the issues of controversy in the present application. The first issue, is whether or not there was constructive termination of the respondent's employment by the applicant. The next issue for determination relates to the reliefs, which the parties will be entitled to. The provision of rule 7(1) and (2) of the Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007 (Code of Good Practice, 2007) defines constructive termination, including circumstances that may be considered as grounds for constructive termination. The provision stipulates as follows: - Rule 7(1) Where an employer makes an employment intolerable which may result to the resignation of the employee, that resignation amount to forced resignation or constructive termination. (2) Subject to sub-rule (1), the following circumstances may be considered as sufficient reasons to justify a forced resignation or constructive termination: - a) N/A io b) If an employee has been unfairly dealt with, provided that the employee has utilized the available mechanisms to deal with grievances unless there are good reasons for not doing so. [emphasis added] In light

of the above cited provision of the law, an employee who alleges constructive termination, ought to prove that the employer made the employment intolerable. In doing so, the employee must show that she was unfairly dealt with. Importantly, the provision also clearly stipulates that the employee must first utilize the available mechanisms of dealing with grievances, before resorting to resignation. The deliberation of the CAT in the case of Kobil Tanzania Limited (supra) is relevant to the present application. The cited case provides for conditions to be met in order to prove the existence of constructive termination. The CAT stated at pages 20 and 21 as follows: - "Reverting to the matter at hand, we respectfully think, in order to answer whether there was constructive dismissal in this matter, we need to answer the questions as posed in Katavi Resort (supra) and Girango Security Group (supra). These are: 11 1. Did the employee intend to bring the employment relationship to an end?

2. Had the working relationship become so unbearable objectively speaking that the employee could not fulfil his obligation to work?

3. Did the employer create an intolerable situation?

4. Was the intolerable situation likely to continue for a period thatjustified termination of the relationship by the employee?

5. Was the termination of the employment contract the only reasonable option open to the employee?" In addressing the 1st condition as to whether the respondent intended to bring the employment relationship to an end, I will refer to the letter dated 31st May, 2024 (Exhibit RE-4). The said letter was written by the respondent and addressed to the applicant's Managing Director. This letter entails the grievances of the respondent, including her decision to terminate the employment agreement. For ease of reference, the relevant part of the letter will be reproduced herein under: - "...Since I did not heed to your demands on resignation, you have decided to force the resignation. With emphasis, I cannot work under the new terms and conditions. 12 Be officially informed that I have resigned due to the forces exerted againstme. n [Emphasis added] Sincerely Sgd Nurah Amani" From the above letter, it is clear that the respondent had no voluntary intention to resign, but it is the applicant who caused the resignation. For the purpose of emphasis, and based on Exhibit RE-4, the conduct of the applicant as an employer such as demanding the respondent to resign, change of the job title and reduction of the respondent's salary from TZS. 1,400,000/- to TZS. 800,000/- were the circumstances that prompted or caused the resignation in question. Proceeding with the 2nd condition, it is on

whether the working relationship had become so unbearable objectively speaking, that the respondent could not fulfil his obligation to work. The duty to prove the objectivity of the intolerability rests on the employee. In the case of Kobil Tanzania Limited (supra) the CAT cited with approval the holding in the case of HC Heat Exchangers (Pty) Ltd vs Victor J L De Araujo & 2 Others, Case No: JR 155/16, Labour Court of South Africa whereby, it was held as follows: - 13 "The onus to prove the existence of intolerability rests squarely upon the shoulders of the employee party. The subjective view of the employee is of no consequence in discharging this onus, as the enquiry to establish whether intolerability exists is always an objective one. "[Emphasis added] Before the CMA, the respondent's claim which was instituted by CMA F.l indicated that the nature of dispute was constructive termination of employment. Further, the gist of the respondent's claim before the CMA is reflected at pages 21 to 22 of the typed proceedings. The said records of the CMA provide for the testimony of the respondent, who was the complainant before the CMA, as follows: - "Sababu ya kufungua shauri ni pale Mkurugenzi a/ipotaka ajiuzulu kazi, tarehe 22.04.2024 ambapo ahtuhumiwa uzembe kazini...shahid! aliendelea kusema kuwa ahtakiwa kujibu tuhuma ziHzomo kwa maandishi. Tarehe 30.04.2024 alijibu tuhuma

zote...baada ya kujibu tuhuma zote mwajiri hakuchukua hatua yoyote ambayo shahidi anaijua...ndipo tarehe 17.05.2024 akapokea barua ya mabadiliko ya cheo toka Customer Service Manager cum HR kuwa Shop Supervisor. Pia mshahara ulikuwa (sic) toka Tshs. 1,400,000/- hadi 14 800.000/- kwa mwezi na kituo cha kazi toka Dodoma hadi kituo cha Mwanza. [Emphasis added] In support of the respondent's assertions, she tendered several Exhibits such as a letter from the applicant on the allegations of gross negligence (notice to show cause), respondent's reply or defence thereto, and the subsequent letter from the applicant to the respondent on the change of job title, transfer and reduction of salary. The Exhibits were admitted and marked as Exhibit APE-2, Exhibit APE-3 and Exhibit APE-4 respectively. The respondent further alleged that her initial post was in Mwanza region. However, her re-location to Dodoma was prompted by the need to be close to her family. The said request was considered and granted by the applicant. In addition to the foregoing, the respondent alleged that the change of job title, change of duty station and reduction of salary, amounted to a demotion. Therefore, according to the respondent, the aforementioned cumulative acts of the applicant resulted in unbearable working conditions, justifying her decision to terminate the employment. The applicant on the other hand,

adduced evidence before the CMA to rebut the assertions of the respondent on the existence of constructive termination. The applicant further stated that the respondent failed to prove is the allegations of demotion. The testimony of the applicant before the CMA during the examination in chief, is reflected at pages 10 to 11 of the typed proceedings of the CMA as follows: - "Tume: Kimepokeiewa na kuwekwa a/ama RE4 kama kieieiezo. Shahidi katika kueiezea RE4, aya 6 aiisema kuwa 'notice to show cause'ni kuhusiana na wakaguzi wa ndani ambapo baada ya kujibiwa mwajiri aiiamua kuachana na jambo hiio...kwamba mwajiri aUm taka miaiamikaji aache kazi si kweii kwani kuna historia ndefu ya makosa na kusamehewa. Kama angetaka, toka Mwaka 2018 aiikuwa na ushahidi wa wazi wa kutosha kumuachisha kazL.madai haya hayana msingi. "[Emphasis added] Further, during cross- examination, the applicant testified as recorded at page 12 of the typed proceedings of the CMA that: - "SwaH: RE4, (notice to show cause) aiiacha kazi kwa sababu gani? Jibu: Kubadiiishwa majukumu... Swaii: Kabia ya barua ya uhamisho kwenda Mwanza miaiamikaji aiikuwa Customer Service Manager and H.R? Jibu: Ndiyo. Swaii: Ni kweii kuwa aiito/ewa kwenye nafasi hiyo na kumpeieka Mwanza akawe Shop Supervisor? Jibu: Ndiyo. 16 Swaii: Ni kweii kuwa nafasi hiyo ni ya chini ku/iko aiiyekuwa nayo Dodoma, Customer Service Manager and

HR? Jibu: Hapana, kwa sababu Mwanza hakuna nafasi ya Customer Service Manager and HR. Eiimu ya miaiamikaji ni masoko yaani Marketing. Si mtaiaam wa HR hivyo kampuni iiiamua kumpa kazi ambayo ana utaaiamu nayo... Swaii: Mshahara wa Customer Service Manager cum HR aiikuwa akiiipwa Tshs. ngapi? Jibu: Tshs. 1,400,000 kwa mwezi. Swaii: Supervisor aiiyeko Mwanza anaiipwa shiiingi ngapi? Jibu: Tshs. 800,000 kwa mwezi. Swaii: Inakuwaje mishahara yao itofautiane Hihaii umesema wanaiingana kivyeo? Jibu: Ni kwasababu ya HR part iiiyokuwa inatoka kwenye majukumu yake. Swaii: Maeiezo ya kuwa hana sifa za HR yaiisemwa kwenye barua ambayo hujaitoa mbele ya Tume? Jibu: Hapana"[Emphasis added] As indicated earlier, by the applicants letter dated 22nd April, 2024 entitled 'notice to show cause' informed the respondent on the allegations of gross negligence against her in the performance of her duties as Customer Service Manager cum Human Resources. The contents of the letter which was 17 tendered before the CMA and marked as Exhibit APE-2 shall partly be reproduced hereinafter for ease of reference: - "Your failure to address and report the above issues which are part of your day-to-day roles amounts to gross negligence on your performance and fraudulent misrepresentation of your position to the company and contrary to the company's job description, company code of conduct, rules and regulations

and your employment contract which require you to ensure the integrity of the company's cash sales are not taken or used before banked or without approval procedures. Consequently, you are required to show cause why disciplinary action should not be taken against you. You are required to respond in writing within 7 days of this notice sent to you after which the company will determine the next steps." [Emphasis added] The respondent, upon receipt of the aforementioned letter, submitted her response thereof by a letter dated 30th April, 2024 which was tendered before the CMA and marked as Exhibit APE-3. Notably, it was a span of approximately 17 days only from the date of the respondent's defence letter on allegations of gross negligence; and the applicant's letter dated 17th May, 18 2024 regarding the respondent's change of duty station, job title and reduction of salary. The testimony of the applicant before the CMA, was to the effect that; after the respondent's response on the 'notice to show cause', the applicant chose not to pursue the matter any further. However, the letter addressed to the respondent dated 22nd April, 2024 clearly indicated that the applicant would 'determine the next steps' upon receipt of the respondent's response. The respondent in her testimony before the CMA stated that after submitting her reply, no further action was taken by the

applicant. Looking at the sequence of events and the respective timeframe of their occurrence, I am of the view that the respondent was correct to consider the subsequent actions of the applicant towards her as punishment in a form of demotion for the alleged misconduct. Ordinarily, after the alleged misconduct against the respondent, and if her defence was not satisfactory, the applicant ought to have initiated the available disciplinary procedures within the Company. However, the applicant opted not to do so. Equally important, and with due respect to the applicant's learned counsel, the assertion that the issue of demotion was not among the issues before 19 the CMA is not correct. Instead, the question of demotion is clearly reflected on Exhibit APE-4, such as reduction of the respondent's salary from TZS 1,400,000/- to TZS 800,000/-, and change of her position from Customer Service Manager cum Human Resources to Shop Supervisor. Additionally, the issue of demotion was repeatedly stated in the CMA proceedings, and therefore, it was properly addressed by the CMA. There are also other important and relevant details shown on Exhibit RE-4. Being her resignation letter, the respondent clearly stated that "Since I did not heed to your demands on resignation, you have decided to force the resignation" Upon receipt of the resignation letter, the applicant did not refute the said

allegations. The respondent was also consistent with this piece of evidence whereby, she testified at the CMA that "sababu ya kufungua shauri ni pale Mkurugenzi alipotaka ajiuzulu kazi, tarehe 22.04.2024". Therefore, the respondent proved on the balance of probability that the applicant required the respondent to resign. Based on the said finding, the applicant's submission on the credibility or otherwise of the respondent's witness (APW2-Elias Biseko) regarding this evidence is baseless. 20 In view of the foregoing, I am persuaded that the acts of the applicant resulted in intolerable working conditions, resulting in the work relationship to become unbearable for the respondent. Having held so, the 2nd and 3rd conditions in determining whether there was constructive termination have been adequately addressed and both conditions are answered in affirmative. As regards to the 4th condition, the holding in the case of Kobil Tanzania Limited (supra) provides that the intolerable situation should be likely to continue for a period that justifies termination of the relationship by the employee. In addressing this issue, the applicant's letter to the respondent dated 17th May, 2024 (Exhibit APE-4) on change of duty station, job title and reduction of salary is relevant. The said letter is partly reproduced hereinafter for convenience: - "This is to inform you that, following internal changes that Management is implementing; Management has changed your job title and job description. You have been moved to a new position as Shop Supervisor with effect from 1st June, 2024 and your workplace will be at Mwanza. With these changes and the reduction of job objective, your salary will also reflect this new position.

1. N/A 21 2. Remuneration: Your basic salary will be 800,000/- and on top of that you will be receiving an airtime allowance of 30,000/- and transport allowance 40,000/- per month.

3. You are entitled to a once off house allowance amount of 600,000/- and transport cost of your goods amounting 300,000/-.

4. You are therefore required to report to your new workplace by 1st June 2024, and a new job description is enclosed in this letter, which you shall sign and return the signed copy to the Management... "[Emphasis added] It is evident from the wording of the letter, that the said letter was equivalent to the new employment contract. While the duration of the employment contract is not indicated, the said letter was an offer by the applicant to the respondent for an ongoing work relationship. Evidently, the intolerable situation was likely to continue for a longer period because the dispute involved key terms and conditions of employment such as reduction of salary from TZS 1,400,000/- to TZS 800,000/-, among other things. In addition, the applicant allowed the respondent to relocate from Mwanza to Dodoma for family matters. Surprisingly, the applicant's decision to transfer the respondent from Dodoma to Mwanza disregarded the consideration of the respondent's family matters which was approved previously. Furthermore, 22 the respondent engaged the applicant's Officers in order to resolve the matter without success. In the circumstances, I am satisfied that the intolerable situation was likely to continue for a longer period, and the respondent was forced to terminate the employment. This finding is also supported by the respondent's resignation letter which states that

her resignation was due to exerted forces. As the result, the 4th condition is also answered in the affirmative. The 5th and final condition to be considered in determining the existence of constructive termination, is whether the termination of the employment contract was the only reasonable option open to the employee. This condition is in line with Rule 7(2) (b) of the Code of Good Practice, 2007. The rule provides that constructive termination is justified if an employee has been unfairly dealt with; provided that the employee has utilized the available mechanisms to deal with grievances, unless there are good reasons for not doing so. In addressing this point, I find it necessary to refer to the applicant's testimony before the CMA as recorded at page 11 of the typed proceedings. The records provide that: - 23 Shahidi kasema, kwenye barua ya kuacha kazi mlalamikaji a/isema kuwa hakuridhika na kitendo cha mwajiri kumhamishia Mwanza...kuhusiana na kuhamishwa kwenda Mwanza mwajiri hakupokea maiaiamiko ya mfanyakazi juu ya uhamisho huo. Aiiona tu amewasiiisha barua ya kuacha kazi. [Emphasis added] According to the proceedings cited above, the applicant alleges that the respondent never expressed her grievances before tendering the resignation letter. Further, this was reiterated in the applicant's submissions before this court, whereby the applicant asserted that the

respondent did not utilize the internal mechanisms which is contrary to the requirements of the law. On that basis, the applicant stated that the respondent cannot allege constructive termination. Contending the applicant, the respondent at the CMA, testified that upon notification from the applicant on the new terms and conditions of employment, she made attempts to engage the applicant through the Finance and Operations Manager, and thereafter, she approached the Managing Director. However, the said Officers of the applicant did not cooperate. Thereafter, she tendered her letter of resignation. Regarding this 24 point, I will refer to the respondent's testimony as recorded at page 24 of the typed trial proceedings: - "Akaendeiea kusema kuwa baada ya kupewa barua ya uhamisho alikwenda kwa operations accounts manager (finance and operations manager) ambapo aiijibiwa kuwa yeye hahusiki na barua hiyo sababu Hikuwa imeandikwa na Mkurugenzi. Aiipotafutwa Mkurugenzi aiipatikana, majibu aiiyopata ni kwamba huo uiikuwa uamuzi wa bodi na hauwezi kubadilishwa. Kwa majibu hayo akaona hana nafasi tena. Isipokuwa kuandika barua ya kujiuzuiu tarehe 31.5.2024." [Emphasis added] From the above proceedings, and contrary to the applicant's assertions, it is clear that before tendering the resignation letter, the respondent made attempts to engage the applicant. In my view, the attempts made by

the respondent to engage the applicant's officers, amount to reasonable efforts by the respondent to utilize available mechanisms to deal with her grievances. For the reasons stated herein, I am of the firm view that the five conditions necessary to prove constructive termination as stipulated in the case of Kobil Tanzania Limited (supra) have been sufficiently established in the 25 present matter. Thus, the first issue on whether or not there was constructive termination of the respondent's employment has been answered in the affirmative. Having determined the first issue, I will now proceed to determine the second issue on the appropriate reliefs, the parties are entitled to. Arguing in support of the instant application, the applicant's counsel stated that there was no legal justification for the CMA to grant TZS. 72,369,230.5 as terminal benefits which was pleaded in the respondent's CMA F.l. The reason given by the applicant is that, the respondent failed to prove the alleged constructive termination. The other reason given by the applicant is that, there was no reasons given by CMA on the compensation order of 48 months remuneration which is over and above the minimum duration of twelve months remuneration. The respondent's counsel on his part, submitted that the reliefs awarded by the CMA were meritorious because constructive termination was established. The remedies for

unfair termination are provided for under section 40 (1) of the ELRA which provides that: - "40 (1) If an arbitrator or Labour Court finds a termination is unfair, the Arbitrator or Court may order the employer: - 26 (a) to reinstate the employee from the date the employee was terminated without loss of remuneration during the period that the employee was absent from work due to the unfair termination; or (b) to re-engage the employee on any terms that the arbitrator or Court may decide; or (c) to pay compensation to the employee of not less than twelve months remuneration." [Emphasis added] In this case, the CMA invoked Section 4(1) (c) of ELRAand granted to the respondent compensation of 48 months remuneration, among other remedies. Indeed, it is possible for the CMA to exercise its discretion and grant more than twelve months remuneration provided the discretion is exercised judiciously. In the CAT case of Bayport Financial Services (T) Limited vs Catherine F. Mwita, Civil Appeal No. 381 of 2022, [2024] TZCA 1229, (10th December, 2024: TanzLII) it was held that: - 'Currently, although the Law prescribes the minimum amount to be awarded as compensation for termination which is not less than twelve months' salary, it is settled law that the arbitrator or the Labour Court has discretion to decide on the appropriate award of compensation which could be over and above

the prescribed minimum. However, the discretion must be 27 exercised judiciously taking into account all factors and circumstances in arriving at a justified decision. Where discretion is not judiciously exercised certainly, it will be interfered with by the higher courts. "[Emphasis added] Similarly, in the case of Stanbic Bank T. Limited (supra), it was held at pages 31 and 32 that: - "The operative word used is "may" meaning that the arbitrator or Labour Court is not obliged, but may order the employer to pay compensation of any amount not less than twelve months' remuneration. In exercising that discretion, the arbitrator or Labour Court is required to act judiciously. In that way, the arbitrator or Labour Court is bound to consider a whole range of factors as to the quality and nature of termination and ultimately decide whether compensation is to be awarded and for what duration." [emphasis added] Coming to the matter at hand, the CMA granted to the respondent compensation of 48 months remuneration equivalent to TZS 67,200,000/-; an annual leave equivalent to one month salary (TZS 1,400,000/-) and severance pay of TZS 3,769,230.5 making a grant total of TZS 72,369,230.5. In addition, an order for clean certificate of services was granted too. 28 Upon careful examination of the CMA award, I am in agreement with the applicants learned counsel that the CMA erred in law for

failure to provide criteria and reasons for granting over and above the prescribed minimum of twelve months remuneration. According to the cited authorities above, it was necessary for the CMA to show how it arrived to 48 months remuneration in favour of the respondent. In absence of criteria and reasons for award of 48 months remuneration, the CMA exercised its discretion injudiciously and intervention of this court is inevitable. Truly, taking into account the prevailing circumstances of this matter, the amount of compensation awarded by the CMA of 48 months remuneration is colossal and violates the principles of equity and justice. In the case of Stanbic Bank T. Limited (supra), it was held further as follows: - 'We are of the view that, on summation of the circumstances of this case, the amount of compensation awarded by the High Court is exorbitantly high and at odds with the principles of equity andjustice. In the result, we reduce the award of compensation to an equivalent of twelve months' remuneration." [Emphasis added] 29 In view of the foregoing, I equally intervene and reduce the award of compensation to an equivalent of twelve months remuneration (TZS 16,800,000/-). However, other reliefs granted by CMA namely accrued annual leave equivalent to one month salary (TZS 1,400,000/-), severance pay of TZS 3,769,230.5 and clean certificate of service were appropriate

and remain unchanged. For the purpose of clarity, the applicant is ordered to pay the respondent a total of TZS 21,969,230.5 only as terminal benefits. Accordingly, the CMA award is revised only on the question of compensation which is hereby reduced to the minimum of twelve months remuneration, and therefore, the application is partly allowed to the extent stated herein. Considering that this application originates from a labour matter, I do not make an order as to costs. Order accordingly. Right of appeal in terms of section 57 of the Labour Institutions Act, Cap. 300 R.E. 2019 is fully explained. DATED at DODOMA this 21st day of February, 2025. 30 Judgment delivered this 21st day of February,2025 in the presence of the Respondent, Mr. Henry Njowoka, Learned Counsel for the Respondent and Mr. Isaya Nchimbi H/B for Rosemary Makori, Learned Counsel for the 31