stanbic bank tanzania ltd vs euzebius sanga 2019 tzhc 15793 17 october 2019

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (LABOUR DIVISION) AT MBEYA REVISION NO. 17 OF 2018 (Originating from Complaint No. CMA/MBY/79/2012 of the Commission for Mediation and Arbitration for Mbeya at Mbeya) STANBIC BANK TANZANIA LIMITED....................................................... APPLICANT VERSUS EUZEBIUS SANGA................................................................................... RESPONDENT JUDGEMENT Date of Last Order: 21 /08/2019 Date of Judgment: 17/10/2019 MONGELLA, J. The Respondent was employed by the Applicant as a bank teller and later promoted to Team Leader Customer Service at its branch in Mbeya. His employment was terminated by the Applicant on 2nd April 2012 on allegations of gross misconduct. The Respondent then filed a complaint at the Commission for Mediation and Arbitration (CMA) whereby in the end the CMA decided that the Respondent was unfairly terminated by the Applicant. The CMA ordered the Applicant to pay the Respondent twelve months salary as compensation for unfair termination, severanc^^a^jgnd Page 1 of 11 payment in lieu of leave. Unsatisfied with this decision the Applicant has applied to this Court for the CMA decision and proceedings to be revised. The Applicant who was represented by Ms. Neema Ndosi from Arbogast Mseke Advocates raised five issues for determination by this Court. However, in the written submission which parties were ordered to file by this Court two of them were abandoned and the first and second issues were merged. Thus the issues to be determined are as follows: 1. Whether the Arbitrator erred in law and fact in holding that the termination was unfair despite the fact that the Respondent never prosecuted his case and no evidence was tendered by the Respondent to the contrary. 2. Whether the Arbitrator grossly erred in law and in fact in awarding 12 month salary compensation to the tune of T.shs. 24,051,571 /- and T.shs. 1,532,678/- in lieu of leave without any sufficient proof. On the first issue, Ms. Ndossi submitted that the Applicant prosecuted his case, brought witnesses and evidences and thereafter closed his case. The Respondent on the other hand never entered appearance even after being availed with series of opportunities to prosecute his case. The Respondent kept giving unjustifiable reasons for his absence. On 16th December 2016 when the matter came for hearing, the Applicant was represented by Counsel Damasi Mwagange and the Respondent had a personal representative named Benedict. The said Benedict informed the Commission that the witness Euzebius Sanga was at work and that he was Page 2 of 11 unable to attend his case. Since that was the last adjournment, the counsel for the Applicant moved the Commission to use the power conferred upon the Arbitrator under Rule 28(1) (a) of the Labour Institutions (Mediation and Arbitration Guidelines) G.N. 67 of 2007 and prayed for the dismissal of the matter. However, the Arbitrator ordered for the Respondent’s case to be closed and he proceeded to issue an award thereto. Rule 28(1) (a) of G.N. 67 of 2007 provides: “Rule 28(1) When a party fails to attend an arbitration hearing, an Arbitrator may do the following: (a) Where a party who referred the dispute to the Commission fails to attend the hearing, the Arbitrator may dismiss the matter or postpone the hearing." Ms. Ndossi argued that bearing in mind the above provision and the fact that the matter was adjourned for several times, the Respondent (Complainant in CMA) did not prosecute his case. The Arbitrator ought to have dismissed the case for want of prosecution and not to determine the matter on merits. She argued that it is not clear as to what the Arbitrator’s award amounts to. Whether it is an ex parte or inter-parties it is not clear. She said it can also not be an ex parte as the same is awarded when the Respondent fails to appear which, is not the case as the Applicant (Respondent in CMA) appeared and prosecuted his case. She was of the view that the award was the most irrational, frivolous and vexatious. Ms. Ndossi referred to section 39 of the Employment and Labour Relations Act, Act No. 6 of 2004 which provides that: “ /n any proceeding concerning unfair termination of an employment by an employer, the Page 3 of 11 employer shall prove that the termination is fa ir" She argued that there is no dispute that the employer has a duty to prove that the termination was fair and the Applicant being the employer in the case at hand proved fair termination, but the Respondent neglected to prove his claim when given the chance. She argued further that this provision was misconstrued by the Arbitrator. As much as the law requires the employer to prove that the termination is fair, it does not exclude the employee from defending his complaint and proving that the termination is unfair. She also referred to section 110(1) of the Evidence Act, Cap 6 R.E. 2002 which provides: “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” From the above provision, Ms. Ndossi argued that since the Respondent as an employee wanted the Commission to believe that the termination of his employment was unfairly done substantially and procedurally so that he can be entitled to the reliefs sought, then he was supposed to prosecute his case to prove how unfair the termination was. Ms. Ndossi cited the case of Mohamed Ramadhani Kibwana v. Ultimate Security (T) Ltd, LCCD [2013] 56 in which this Court (Munisi, J.) held: “The A pplicant who alleged that the procedure to be heard was not observed, did not lead any evidence to prove that...It should be borne in mind that the duty to prove this fact was on the Applicant on the balance of probabilities and not on the Respondent as observed by the Commission. I therefore vacate that award for the reason that it is not su p p o rte d h v evidence. Page 4 of 11 She concluded that in view of the above authority, the Arbitrator misdirected himself in holding that the termination was unfair despite the fact that the Respondent never prosecuted his case and no evidence was tendered by the Respondent to the contrary. Responding to Ms. Ndossi’s submissions, Mr. Gerald Msegeya who represented the Respondent herein argued that the Hon. Arbitrator was quite right in holding that the termination was unfair. He argued so saying that the Applicant brought witnesses to testify against the Respondent’s case and the Applicant’s witnesses were cross examined by the Respondent’s personal representative duly appointed to represent him in the case. Upon closure of the Applicant’s case even without the Respondent’s evidence the Commission found out that the employee’s termination was unfair. He also relied on section 39 of the ELRA and Rule 24(3) which place the obligation to prove that the employee’s termination is unfair upon the employer. Mr. Msegeya argued that in labour matters just like in criminal cases the burden of proof lies on the employer and not on the employee. It does not shift as the counsel for the Applicant is trying to suggest. He argued that this is an exception to section 110 of the Evidence Act cited by Ms. Ndossi and urged this Court to disregard the section. Mr. Msegeya also distinguished the case of Mohamed Ramadhani Kibwana (supra) cited by Ms. Ndossi and argued that in this cited case the employer was duly served to appear for hearing but he did not enter appearance, so the matter proceeded ex parte against him, but in the case at hand the Respondent was represented by his personal Page 5 of 11 representative and on the hearing date he entered appearance. Mr. Msegeya argued further that upon testing the evidence adduced by the Applicant’s witnesses the Commission rightly came to the conclusion that the Respondent was unfairly terminated. The Commission based its decision on Exhibit N0 .P8 which showed that the employer, the Applicant herein, did not call any witnesses to prove allegations laid against the Respondent at the disciplinary hearing committee meeting. This piece of evidence was also corroborated by the Applicant’s witness DW2 at the hearing who admitted that there was no witness who came to testify at the disciplinary hearing meeting against the Respondent. Mr. Msegeya concluded that in the premises the allegations against the Respondent of which were the bases of his termination were not proved as required under the law. I have considered the rival submissions of both counsels and observe as follows. Ms. Ndossi pegged her argument on the provision of Rule 28(1)(a) of G.N. 67 of 2007. For certainty I wish to re-quote the provision as hereunder. “Rule 28(1) When a party fails to attend an arbitration hearing, an Arbitrator may do the following: (a) Where a party who referred the dispute to the Commission fails to attend the hearing, the Arbitrator may dismiss the matter or postpone the hearing My understanding of the above provision is that the Arbitrator may dismiss or postpone the hearing when a party fails to attend. The provision does not require the party to prove his case, but only to attend. Attendance in the CMA in arbitration matters is provided under section 88 (7) ( the Page 6 of 11 ELRA as amended by the Written Laws (Miscellaneous Amendments) Act No. 8 of 2006 in which a party can be represented by a member or official of that party’s trade union, his advocate or a personal representative of the party’s own choice. The records of the CMA and as submitted by both Counsels show that one Mr. Kennedy Makafu and Mr. Benedict Sahwi used to represent the Respondent and on the date complained of by the Applicant Mr. Sahwi attended to represent the Respondent. I therefore do not agree with Ms. Ndossi’s argument that Rule 28(1) of G.N. 67 of 2007 charges a party filing a complaint with a responsibility to appear and prove the case. Under the circumstances, I also find the case of Mohamed Ramadhani Kibwana (supra) cited by Ms. Ndossi irrelevant to the matter at hand whereby there was appearance through a personal representative. As stated by the Hon. Arbitrator in his Award, the evidential burden of proof on cases regarding fairness of termination of employment lies on the employer. Ms. Ndossi argued that there has been a misconception of section 39 of the ELRA which charges the responsibility to prove fair termination on the employer in the sense that the provision as misunderstood by some does not exclude the employee from defending his complaint and prove that the termination was fair. I do not totally agree with her argument. I also find that section 110(1) of the Evidence Act as relied upon by Ms. Ndossi in requiring the employee to prove his case is misconceived. Proof of allegations of unfair termination in labour matters is not on the same balance as in other matters. ^ Page 7 of 11 In my considered view, the employee makes allegations of unfair termination in the CMA F I; he also makes further allegations in the opening statements. After that it remains the duty of the employer to prove that the termination is fair. If the employer adduces evidence to prove and convince the Arbitrator that the termination was fair and the employee does not give any evidence to the contrary that shall be at the detriment of the employee. In my considered view, in determining whether the employer has proved fair termination or not, the CMA or this Court is governed by the law. The law provides for fair reasons and fair procedures to be adhered for termination to be termed fair. Therefore, the CMA or this Court highly relies on the evidence adduced by the employer vis a vis what the law provides. Going through the CMA award, the Hon. Arbitrator made his findings basing on two major aspects. One that there were no any witnesses called as indicated in Exhibit P8 and two, there is nowhere indicated that the employee admitted the allegations. I have gone through the CMA records, particularly Exhibit P8 which is the disciplinary discussion form and found that no witnesses were really called. The one who conducted the investigations was as well the prosecutor of the case. The Respondent being accused of misconduct was never accorded any chance to ask questions to the one who conducted the investigation and whom one would have expected to have been called as witness. Rule 13(5) of the Employment and Labour Relations (Code of Good Practice) Rules, 2007, G.N. 42 of 2007 specifically states: ' Page 8 of 11 “Evidence in support of the allegations against the employee shall be presented at the hearing. The employee shall be given a proper opportunity at the hearing to respond to the allegations, question any witnesses called by the employer and to call witnesses if necessary." In my considered view, evidence is produced by witnesses. Looking at Exhibit P8, it has been clearly written that there were no witnesses. What was presented was allegations and not evidence. The Respondent was only given the right to have a representative and a translator, but it is nowhere indicated that the he was given the right to call any witnesses on his side. Exhibit P8 also shows that the Respondent was only being required to respond to questions asked but was not given a chance to ask questions as provided under the law. The Applicant’s witnesses testified that the Respondent confessed to the misconduct, apologized and prayed for a lesser punishment. However, just like the Hon. Arbitrator observed, I have also not found any confession in Exhibit P8 which contains the proceedings of the disciplinary meeting. To this point it is also my finding that the termination was unfair for not adhering to fair procedures as provided under G.N. 42 of 2007. On the second issue, Ms. Ndossi challenged the award of T.shs. 24,051,571/- as compensation amounting to 12 month salary and T.shs. 1,532,678/- for payment in lieu of notice. She argued that the amount was unjustifiable considering the fact that the Respondent never prosecuted his case. She argued further that under section 40(1) of ELRA, the Arbitrator is supposed to award compensation after finding that the termination was unfair however, since the claim by the Respondent was never prosecuted and proved it was unjustifiable to award tf ne. Page 9 of 11 Responding to this submission, Mr. Msegeya argued shortly that in labour jurisprudence the duty to prove whether the employee’s termination was fair lies on the employer. Thus in these premises it was quite right for the arbitrator to have held the way he did and order the Applicant to pay the 12 month salary as compensation for unfair termination as per section 40(1) of ELRA. From the findings I have made on the first issue, I do not think I will be having much to say on this issue. The termination was procedurally unfair and thus the Respondent is entitled to at least minimum statutory benefits for unfair termination as awarded by the Hon. Arbitrator. The Applicant’s witnesses testified that the Respondent was paid his terminal benefits particularly the one month salary in lieu of notice. The same is indicated as well in the termination letter. I have thoroughly gone through the records however, and I have found no evidence of effecting such payment to the Respondent. Therefore in the absence of evidence of payment in lieu of notice I am made to believe that no such payment was in fact effected. Following the observations I have made above I do not find any reason to fault the Award of the Hon. Arbitrator. I thus uphold the same accordingly and dismiss the Applicant’s application for lack of merits. Dated at Mbeya on this 17th of October 2019. ■ '''' L. M. MONGELLA JUDGE 17/10/201? Page 10 of 11 Right of Appeal duly explained L. M. MONGELLA JUDGE 17/10/2019 Court: Judgment delivered in Mbeya in Chambers on this 17th day of October 2019 in the presence of Mr. Gerald Msegeya, learned Advocate representing the Respondent and also holding brief for Ms. Neema Ndossi for the Applicant. L. M. MONGELLA JUDGE 17/10/2019 Page 11 of 11