APPLICATION FOR REVISION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA APPLICATION FOR REVISION NO 77 OF 2023 (Originating from Labour Dispute No. CMA/ARS/ARS/89/22/51/2023) SANAA SANA DESIGN TANZANIA LTD........................................... APPLICANT VERSUS RAJUNI SELEMANI KIURE.......................................................... RESPONDENT JUDGMENT 21/08/2024 & 16/10/2024 NDUMBARO, J Dissatisfied by the decision of the Commission for Mediation and Arbitration, (CMA) the applicant has filed this application praying for this court to examine the proceedings of the Commission and thereafter revise and set aside the award of the Commission there to. The application is further supported by the affidavit of Mis. Irene Felix Mushi, the applicant's operations Manager. According to the affidavit, the applicant is challenging the decision of the Commission on the following grounds; i 1. That the Honourable arbitrator immensely error in law to deliver an award which was not grounded on evidence adduced in the trial. 2. That Honourable arbitrator erred in facts and law in deciding that there was unfair termination while the dispute was on breach of contract. 3. The arbitrator erred in law and facts in dealing with the matter instituted by incurably defective pleadings (CMA FI) which showed that the respondent was disputing breach of contract and unfair termination on the same CMA FI. 4. The arbitrator erred in law and facts by failure to note that the CMA had no jurisdiction to determine the matter on unfair termination as the respondent had less than six months in employment as he worked only for three months on his contract. 5. That based on the above grounds the arbitrator issued an award which is illegal, irrational, illogical and improperly procured. The respondent on the other hand, opposed the application through his counter affidavit. In opposing the application, the respondent stated that the disciplinary hearing was conducted and he was terminated on 27th October 2022. The applicant maintained that the Commission Award was properly procured. When the matter was called on for hearing, the applicant was represented by Advocate Evold Mushi, the respondent on the other hand enjoyed the services of Mr. Leonard David from CHODAWU. With leave of the court the application was disposed by way of written submissions which are summaries here under; On the 1st ground, the applicant argued that the evidence on record shows that the respondent was on a fixed term contract and at the time of his termination he had worked less than six months. Therefore, it was her submission that the respondent could not raise the claim of unfair termination. Moreover, it was his submission that the evidence adduced and relied by the arbitrator in reaching to his decision was on unfair termination while the respondent's claim against the applicant was on breach of contract. On the second ground, the applicant submitted that the arbitrator erred by giving his decision on unfair termination while the respondent's cause of action in his CMA FI was on breach of contract. On the third ground, the applicant submitted that the respondent erred by combining two causes of actions which are breach of contract and unfair termination in his application Form On the last ground, the applicant argued that the Commission had no jurisdiction to determine the matter on the reason that the respondent had worked for less than six months in his employment. Based on what he submitted, the counsel maintained that the award was illegal, irrational and improper. Responding to the above submission, the respondent maintained that, there was no clear evidence adduced by the applicant to justify the allegation that the respondent committed the misconduct. The respondent also submitted that his termination was not only unfair substantively, but also procedurally. It was therefore his view that the Commission properly analyzed the evidence on record. The respondent also urged this court being the 1st appellate court to analyze the evidence of the Commission based on the framed issues there at. The respondent further prayed this court to uphold the findings of the Commission. Based on the above submissions of the parties in this case, this court is enjoined to determine this matter guided by the following issues; First, whether the Hon. Arbitrator was correct to determine unfair termination on the claim of breach of contract. Second, whether the Hon. Arbitrator was justified to hold that the respondent was unfairly terminated both in substantive and procedural and therefore his employment contract was breached. On the first, issue, it is the finding of this court that this ground is misplaced on the reason that, for the Commission to arrive into a finding as to whether the respondent's employment contract was breached on justifiable reasons or not, it had to ascertain on the two aspects of reasons for termination/breach and whether proper procedures were followed in terminating or ending the respondent's employment contract. I have gone through the proceedings of the Commission, and I find no reason to fault the procedures that the Commission adopted on the reason that, the Commission first ascertained as to whether there were justifiable reasons to end the respondent's contract and second whether the procedures to end the contract/employment were adhered to. One would note through the award also that, the relief that was given to the respondent based on the breach of contract and that is why he was not issued with the reliefs stipulated under section 40 (1) of the Employment and Labour Relations Act, Cap 366 R.E 2019 but rather the respondent was issued with the award of the remaining period of the contract. The applicant has also complained that the respondent combine two reliefs in his application form (CMA FI). According to her, the respondent's application has both reliefs of unfair termination and breach of contract. With due respect, it is also my finding that this ground is also misplaced as I have read the respondent's application form and on the part of the "nature of dispute", the respondent stated clearly that it was breach of contract and on the relief, the respondent sought for the remaining period of his contract. The applicant also argued that the Commission had no jurisdiction to entertain the matter on the reason that the respondent had only worked for the applicant for only three months. I have perused the proceedings, while the respondent was testifying, he stated that he was employed on 26/07/2021 and his contract of employment was to be renewed after every year. He tendered his employment contract dated 25/07/2022 where his employment contract was extended from 26/07/2022 to 25/07/2023. The records further state that the respondent was terminated on 27/10/2022 that is three months from when his employment contract was renewed. It should be remembered that, at this time the respondent was renewing his employment contract and therefore whether the respondent was terminated only after three months of his working does not have any effect and in fact it is my view that the applicant is confusing with the time of probation which does not apply in this case. It is therefore my finding that the Commission had jurisdiction to entertain the matter. The above said, I now turn to the second issue on the breach of the employment contract of the respondent. The Hon. Arbitrator in arriving to his decision had to discussed on two aspects of whether there was valid reason and whether proper procedures were followed. It was the finding of the Commission that the applicant did not have a valid reason for ending the respondent's employment contract nor did he follow proper procedures in ending the employment contract. It is now time for this court to determine whether the Hon. Arbitrator was justified to hold as stated above. 7 To begin with whether there was a valid reason to end the respondent's employment contract. It is my finding that reading the Commission Award, the Hon. Arbitrator did not dispute that the respondent herein was the one who was to initiate the payments and the same were to be approved by DW2 Irene Mushi. According to him, despite the fact that the respondent initiated the payments but DW2 who was to approve the said payments had the opportunities to cancel the transaction. Therefore, it was his finding that all the burden should not be placed on the respondent. Reading the above, it is my view that the Hon. Arbitrator does not dispute the fact that the respondent did not commit the offence but his reasoning is based on the fact that he is not the only one to be held liable. With due respect I find that the Hon. was irrational in holding so, on the reason that given the fact that he was the one who initiated the payments, it means that he knew what he prepared for payments and even if there was someone else who was to authorize the payments yet the respondent must be held accountable to the extent of his contribution. As to whether DW2 was also liable on the reason that he authorized the payment is now left to the applicant to decide whether to held her liable or not. The above said, and as I have gone through the proceedings of this case, in the first place it should be noted that the respondent was employed as Accountant/HR meaning that he also performed some duties as an accountant and the fact advance by him during hearing that he was a human resource officer and he did not deal with payments is an afterthought. I have also gone through the audit report which shows that there were some cash discrepancies and some of the petty cash vouchers were prepared by the respondent. At this juncture I therefore wish to depart from the findings of the Commission and hold that the applicant had valid reasons to terminate the respondent's employment contract. As to whether the applicant followed procedures in ending or terminating the respondent's employment contract, the respondent lamented that he was not given a chance to defend himself nor was he given the right to be heard. I have gone through the disciplinary hearing form and actually it is my observation that he was given the chance to mitigate and the following were recorded; "Running 2 departments (HR & Account) was too much I therefore request management to forgive me." I have also noted that at page 8 of the disciplinary hearing form, the respondent was given his right to appeal where he was informed that the same should be in writing only, and should be handed to the head of HR within 5 days of the hearing and she will forward the same to the manager in a more senior position. The respondent also lamented that his representative at the disciplinary hearing was not of his choice. But again when he was cross examined he admitted to be represented by his colleague but again he stated that he was not of his choice. With due respect, I find this as an afterthought on the reason that if he was not pleased with the person appearing as his representative then he could have raised it and refuse the hearing to be conducted. But since he agreed for the hearing to be conducted while represented by his colleague I find that he consented to his representation and he could not refuse it at the hearing. In the above premises I also depart with the finding of the Hon. Arbitrator as it is my finding that the applicant followed all the proper procedures in ending/terminating the employment contract. The above said, this application is revised as above. The CMA award is hereby quashed and set aside. No order as to costs is issued. It is so ordered za ) — D Di NDUMBARO / ^ ' V , JUDGE >£ 116 / 10/2024 >«<fi* / 7/ 11