swala solutions vs ally nasib 2023 tzhc 22120 26 october 2023

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT-LABOUR DIVISION (MUSOMA SUB REGISTRY)

AT MUSOMA LABOUR REVISION No. 8 OF 2023 | (Arising from the Commission for Mediation andArbitration for Mara at Musoma in Labour Dispute No. CMA/MAR/MUS/44/2022) SWALA SOLUTION............................................................. .. APPLICANT Versus ALLYSALUM NASIBU .................................................RESPONDENT

RULING 18.10.2023 & 26.10.2023 Mtulya, J.: Two [earned minds, Ms. Rosemary Makori and Mr. Ernest Mhagama, learned counsels for the applicant and respondent respectively, appeared in this court contesting on interpretation of two (2) important documents, which were material to the decision of Commission for Mediation and Arbitration for Mara at Musoma i (the Commission) in Labour Dispute No. CMA/MAR/iyiUS/44/2022 (the dispute). The material documents are charging sheet which was issued by Swala Solution (the applicant) against Mr. Ally Salum Nasibu (the respondent) and hearing form produced during disciplinary hearing. Both the charging sheet and hearing form were admitted during the hearing of the dispute at the Commission as exhibit D.4 and D.5, respectively. In exhibit D.4, the count against the respondent shows that: serious/gross misconduct-offence which 1 may lead to termination of employee category-property of Swala Solution Limited Disciplinary Code. The particulars of the gross misconduct display that: That on 9h day of March 2022 at around 23:00 hours, you breached the trust the company entrusted you after being arrested and subsequently detained by the police on the allegation of being engaging into Gold Bearing Material (GBM) by stealing or assisting others to steal GBM from Gokona Cement Shed at North Mara Mine site, an act which you know or ought to have known

doing so amount to the violation of Swala Solutions Limited Disciplinary Code. (Emphasis supplied). On the other hand, the eleventh and twelfth paragraphs in exhibit D.5 shows that: The employee confirmed that the image in the CCTV camera is his image...the employee confirmed that he was present at the Cement Shade on the given date and time...employee should therefore be terminated on account of gross misconduct/ gross dishonesty and moreover the continued employment is intolerable. (Emphasis supplied). 2 Following his termination, the applicant preferred the dispute in the Commission and on 12th December 2022, the Commission, at page 11, 12 and 14 of the Award, resolved in brief thai:: ...kwa kuangalia ushahidi na kuzingatia matakwa ya sheria, mlalamlkiwa ameshindwa kuthibitisha kwa kulinganisha uwezokano iwapo kulikuwa na sababu za msingi za kumwachisha kazi miaiamikaji kwa makosa aliyokuwa anatuhumiwa nayo... uachishwaji kazi I haukuwa halali...Tume inaona kwamba utaratibu wa haukuzingatiwa kwa sababu utaratibu wa kumfukuza I mfanyakazi ni kama ulivyowekwa katika Kanuni ya 13 GN. 42/2007. Mwajiri akufuata utaratibu huo na\ kibaya zaidi hakufanya uchunguzi Hi kujiridhisha uhusika wa । miaiamikaji katika wizi huo wa mawe ya dhahabu... I miaiamikiwa amenyimwa haki ya kufanya kazi ha haki ya kujiingizia kipato kwa ajiii ya kujikimu kimaisha...na kwa kuwa miaiamikiwa ndiye

aiiyemwachisha kazi miaiamikaji isivyo halali, ni iazima awajibike katika hiio. Kwa msingi huo naamuru miaiamikaji fidia ya mishahara ya miezi 48 ambayo ni sawa na kiasi cha 48 x । 1,800,000/= 86,000,000/= kwa kumwachisha kazi kazi 3 isivyo halali. Rejea kifungu cha 40 (1) (c) cha Sheria ya AJira na Mahusiano Kazini Na. 6/2004. This Award added the third complaint of the applicant in the present application on whether the figure was judiciously considered. The learned minds of the parties were summoned in this court on 4th October 2023 to register relevant materials in favor and against the application. According to Ms. Makori, the award of the tribunal raises a number of issues, namely; First, legality and correctness of the termination as reflected at exhibit D.3, which shows that the respondent was involved in opening of the gate which allowed Mr. Hosea Walles and intruders to enter and steal GBM, which is breach of trust and assisting stealing; second, the arbitrator had resolved an issue of theft regulated by the criminal law instead of breach of trust which is part of misconduct under Rule 9(4) of the Employment and Labour Relations (Code of Good Practice) Rules, GN. No. 42 of 2007 (the Rules of Good Conduct); Third, police investigation does not affect labour disciplinary proceedings as they are two distinct charges as stated in the precedent of Peter Maghali v. Super

Meals Limited, Civil Appeal No. 279 of 2019; fourth, arbitrator had resolved an issue of investigation which was not part of the respondent's complaint and ■4 in any case is not necessary as per decision in Adams Nyagawa & Another v. Dar Es Salaam Serena Hotel, Revision No. 679 of 2018. According to Ms. Makori, the respondent admitted the fault as indicated at the eleventh paragraph in D.5 hence investigation was not necessary. In the fifth complaint, Ms. Makori submitted that the respondent had declined legal representation in his opening statement hence arbitrator was not supposed to raise the issue in resolving the complaint of the respondent. According to Ms. Makori, parties are bound by their pleadings as indicated in the case on 1 Swila Secondary School v. Japhet Petro, Civil Appeal No. 362 of 2019. i Regarding the award of forty-eight (48) months' salary payment to the respondent amounting to Tanzanian Shillings 86,850,8996/ granted to the respondent, Ms. Makori contended that the arbitrator awarded the same without considering nature and quality of the respondent's grave wrongs. In her opinion, the law in section 40 (1) (c) of the Employment and Labour Relations [Cap. 366 R.E. 2019] (the Employment Act) provides for minimum of twelve months payment of remuneration, but the same must be exercised judiciously as explained in the precedent in Stanbic Bank (T) Limited v.

Iddi Halfani, Civil Appeal No. 139 of 2021. Ms. 5 Makori finally prayed the award of the Commission be crushed by this court as the applicant had good reasons and followed all necessary steps to terminate the respondent. Replying the detailed materials registered by Ms. Makori, the respondent's learned counsel, Mr. Mhagama contended that the materials may be reduced and answered in two (2) questions only, namely: whether the termination of the respondent was substantively fair and valid; and second, whether the procedure for termination was followed. According to Mr. Mhagama, the reasons for termination of the respondent are not valid. In substantiating his arguments in reply of the first question, he contended that: First, the complained CCTV footage was admitted in the dispute as exhibit D.3 and shows that the respondent was at his duty station on the material day and time, which was not a breach of any rule and it was valid for him to be at scene and open the gate for the truck driven by Mr. Hosea Walles to enter and park in the Cement Shade. According to Mr. Mhagama, the footage shows further that it was Mr. Hosea Walles who bended beneath the vehicle and took something unknown out of the gate and later the intruders had picked it up. When the whole saga was happening, according to Mr. Mhagama, the respondent was not aware hence 6 cannot be held responsible for the actions,

which he did not participate. Second, exhibit D.4 shows that the respondent is jzharged with the offence of gross misconduct and not breach of trust. According to Mr. Mhagama, gross misconduct is broad with several categories and the applicant in the dispute had cited breach of trust after the respondent was arrested by the police on investigation1 of allegation of stealing or assisting to steal GBM. This allegation, According to Mr. Mhagama, the applicant was required to prove stealing or assist in stealing, hence the arbitrator was right is resolving the issue of stealing. Third, exhibit D.5 is the form used in disciplinary proceedings, but the exhibit is silent on who was brought to the disciplinary committee to prove the allegation of stealing .against the respondent. According to Mr. Mhagama, neither Mr. Hosea Walles or intruders were called or mentioned the respondent in the disciplinary meeting, police station or in the Commission. In the opinion of Mr. Mhagama, the link between the respondent and stealing was declined by the applicant, and in any case the issue of gate opening and closing was not part of the applicant's complaint in the disciplinary meetings. 7 Fourth, Mr. Mhagama submitted that, conduct is one of the reasons of termination. However, according to him, Rule 9 (4) of the Rules of Good Conduct must be read together with Rule 9 (5) & 12 (1) (a) of the Rules

of Good Conduct and section 37 (1) & (2) of the Employment Act, which show that reasons for terminations are key factors in resolving labour disputes. According to him, exhibit D.3 has declined the link of stealing, and the respondent hence declining the respondent constitutional right to work which attract huge penalties as it was indicated in Veneranda Maro & Another v. Arusha International Conference Centre, Civil Appeal No. 322 of 2020. Fifth, awarding of forty-eight (48) months payment of remunerations is not new as it finds the support in section 40 (1) (c) of the Employment Act and precedent in in Veneranda Maro & Another v. Arusha International Conference Centre (supra), and the respondent had prayed for hundred (100) months payment of remuneration, but were reduced to forty-eight (48) months. Regarding procedural requirements, Mr. Mhagama submitted that the procedure was faulted by the respondent since the law requires an employer to investigate the involvement of employee on the complained matter to get a picture of the dispute and save costs and resources, but in the present case the applicant had 8 declined investigation. According to Mr. Mhagama Rilile 13 (1) of the Rules of Good Conduct provides for the procedure and it is correct that if an employee concedes the alleged wrong, no need of । investigation to be employed. However, in his opinion, in the present

clispute, the respondent did not concede to stealing GBM, and protested at the disciplinary committee and police station. According to Mr. Mhagama, the applicant conceded that he was him displayed in the CCTV footage when he was at his working station, and; that there is i no link between him and stealing GBM. Mr. Mhagama contended further that Rule 13 (2) to (7) of the i Rules of Good Conduct provides several rights, including right to legal representation, right to cross examine witnesses,; and right to mitigations, but exhibit D.5 is silent on the subjects. In the opinion i of Mr. Mhagama, opening statement cannot contain each and every thing, but relief claimed as directed by Rule 24 (1) & (2) of the Rules of Good Conduct. Finally, Mhagama submitted that this application for revision is vexatious and frivolous and prone to I receive dismissal order with costs as per Rule 51 (2) of the Government Notice No. 106 of 2007. Rejoining the submission produced by Mr. Mh'agama, Ms. Makori submitted that section 37 (2) of the Empoyment Act 9 provides for termination for valid reasons, and in this case DW1 and DW2 have shown that the termination was fair and the reason was breach of trust in assisting stealing GBM. Ms. Makori insisted that the offence charged against the appellant was breach of trust, and not stealing, and the charge was proved from exhibit D.3. According to Ms.

Makori, the respondent racketed the stealing by leaving the gate open when Mr. Hosea Walles was inside and intruders used the opportunity to steal GBM, something which shows that there were conspiracies between the three sides. To the circumstances of the case, according to Mr. Makori, the respondent had breached trust to the applicant and the only available remedy is to terminate his employment. Regarding the procedure of termination, Ms. Makori submitted that Rule 13 (1) of the Rules of Good Conduct requires investigation be conducted before disciplinary proceedings are initiated against employees, but the present case is distinct as the respondent conceded involvement as exhibited in D.3. Concerning the rights of the respondent, Ms. Makori contended that they were not pleaded in opening statement and exhibit D.5 shows that the respondent had declined. Finally, Ms. Makori prayed this court to quash the award as the termination was fair in terms of reasons and procedures adopted and in alternative, if this court finds 10 violations, it may re-asses the compensation and awafti appropriate compensation judiciously I have heard submissions of the learned minds. The source of the contest is exhibited in D.3 which shows presence of the respondent at the Cement Shade, opened the gate and in his absence at the gate, Mr. Hosea Walles bends down to the vehicle and shifted unrecognized

items which later were taken by the ! intruders. It is easy to establish nexus between Mr. Hosea Walles and intruders, but difficult to establish a linkage between the respondents and Mr. Hosea Walles or the respondent and intruders. However, the respondent had left unanswered question as to why he left his duty station unclosed and unprotected. He is seen in D.3 images to let the gate open and went to the vehicle without any reasons on record as to why had left the gate open. Similarly, the record is silent why the respondent did not search or inspect Mr. Hosea Walles. The record is silent on the standard practice required to be exercised by the respondent at the gate. However, any reasonable person would have expected him to let his area of jurisdiction safe and secure. Letting the gate open while Mr. Hosea Walles was inside, and failure to conduct any search to him leaves a lot of questions unanswered. Would this court hold the respondent 11 responsible for breach of duty of care owed to him by the applicant? My reply is that he was duty bound to protect the area and breached the duty. However, there is another question to be replied: whether the indicated breach of duty on part of the respondent connects him with loss of the trust or stealing. According to Ms. Makori, the breach of duty is similar to breach of trust, whereas Mr. Mhagama thinks that there is no evidence of

breach of trust or stealing GBM. It is unfortunate that the record is silent on necessary materials which build up breach of trust. Similarly, even if it was, exhibit D.4 is confusing. At the title, it is indicated: serious/gross misconduct-offence which may lead to termination of employee whereas its contents under the title read: after being arrested and subsequently detained by the police on the allegation of being engaging into GBM stealing or assisting others to steal the GBM. Under such circumstances, it is difficult to say whether the respondent was searching for stealing or breach of trust. If it is stealing there were no materials for stealing or police investigation report or criminal record on the saga to show what has transpired after the criminal investigation on the matter. It is unfortunate that the breach of trust cites stealing which is a criminal offence without 12 any proof. I think Hon. Chairman of the Commission |was right at page 11 of the award in holding that: ...kwa kuangaiia ushahidi na kuzingatia matakwa ya sheria, mlalamikiwa ameshindwa kuthibitisha^ kwa kulinganisha uwezokano iwapo kulikuwa na saoabu za msingi za kumwachisha kazi miaiamikaji kwa makosa aliyokuwa anatuhumiwa nayo...uachishwaji kazi haukuwa halali In my considered opinion, if the complaint was based on breach of trust, it should have directed the necessary materials of the breach in

the contents in exhibit D.4. I am aware that the respondent had called Mr. Erastus Emmanuel Malimi (DW1), Logistic Manager, and Comfort Alenyo Kitula (DW2), Head of Legal Department, in the Commission to prove breach of trust based on stealing. However, it was unfortunate that the witnesses could not produce more than what is displayed in D.3, which I have already indicated that it does not display any connection between the alleged event and the respondent. The applicant is not certain in his complaint to the respondent as to what exactly he wanted to prove against the respondent, as to whether it is gross misconduct originated from breach of trust or stealing. 13 In my considered opinion, labour laws were enacted in such a way that when there is dispute, the parties must resort to amicable settlement. That is the essence of the enactment in Rule 13 (1) of the Rules of Good Conduct. They were enacted so, at certain extent, to recognize fault in reasons for termination. In certain circumstances, it is easy to detect invalidity of reasons of termination from procedural irregularities. In the present case, the eleventh paragraph in exhibit D.5 shows that: The employee confirmed that the image in the CCTV camera is his image. The employee confirmed that he was present at the Cement Shade on the given date and time. However, its conclusion is distinct as from the twelfth paragraph:

employee should therefore be terminated on account of gross misconduct/ gross dishonesty and moreover the continued employment is intolerable. The conclusion is astonishing at two levels, namely: first, the eleventh paragraph, the employee admits his presence, and not commission of the alleged stealing of GMB; and second, there are no any other relevant materials that link the respondent and the he alleged offence of stealing. For the learned minds, each has decided to take its own course. Ms. Makori says, the respondent admitted his presence hence he is responsible for the inaction whereas Mr. Mhagama 14 thinks that the respondent has been refusing the allegation from the police criminal investigation, disciplinary committee and the Commission. In such circumstances, the proper and safe course for the applicant, was to let the criminal investigation complete to the finality. | Much as I am aware the dual procedures may take their courses simultaneously, as indicated in the precedent of Peter Maghali v. Super Meals Limited (supra). However, taking the dual courses have a lot of demerits. Like in the present dispute, where the applicant claims stealing as a source of the complaint and suggested that the respondent had admitted the offence in D.5, whereas the respondent says he did not admit any the offence of stealing anywhere and no criminal record was registered in

the Disciplinary Committee and Commission. From the materials on record, and the statement in exhibit D.5 show that: The employee confirmed that the image in the CCTV camera is his image. The employee confirmed that he was present at the Cement Shade on the given date and time. However, the 1 statements, in my opinion, cannot be said that the respondent had admitted the allegation leveled against him. Having said so, it is obvious that the enactment in Rule 13 (1) of the Rules of Good Conduct was supposed to be invited and applied, and in that 15 situation, the precedent in Adams Nyagawa & Another v. Dar Es Salaam Serena Hotel (supra) is distinguished. Similarly, the record is silent on application of Rule 13 (2) to (7) of the Rules of Good Conduct. I am aware Ms. Makori had cited the rights in relation of the opening statement and pleadings, but had forgotten that opening statement are regulated by the enactment in Rule 24 (1) & (2) of the GN. No. 67 of 2007. In any case, the rights of individual persons must be vividly displayed in the disciplinary committees' meetings, not only because of cherishing Rule 13 of the Rules of Good Conduct, but because that is treasuring humanity and appreciating article 13 (6) (a) of the Constitution of the United Republic of Tanzania [Cap. 2 R.E. 2002]. The instant record is silent on abiding with section 37 (2) (c) of the Employment Act on

fair procedures, which are well interpolated in Rule 13 (2) to (7) of the Rules of Good Conduct. I am aware that labour courts or institutions may award compensation of indefinite number of salaries from twelve (12) months, under section 40(1) of the Employment Act. The enactment has already received a bunch of precedents from the Court of Appeal (see: Veneranda Maro & Another v. Arusha International Conference Centre (supra) and Stanbic Bank (T) Limited v. Iddi Halfani (supra). 16 According to Ms. Makori, the powers of labour courts or institution in interpreting section 40 (1) of the Empbyment Act, they must act judiciously. In support of her move, she cited the precedent in Stanbic Bank (T) Limited v. Iddi Halfani (supra). On the other hand, Mr. Mhagama submitted that the respondent had । prayed for hundred (100) months salaries for compensation and was awarded forty-eight (48) months only for breach of substantive right to work. In his move, he cited the precedent in Veneranda Maro & Another v. Arusha International Conference Centre I (supra) The precedent in Stanbic Bank (T) Limited v. Iddi Halfani (supra), at page 31 of the judgment shows that in exercising the discretionary powers under section 40 (1) (c) of the Employment Act, arbitrators or labour courts must exercise them judiciously. On the other hand, the decision in Veneranda Maro & Another v. Arusha International

Conference Centre (supra), at page 20 of the judgment shows that a distinction must be’drawn from substantive breach of the laws and procedural unfairness. From the two indicated precedents regulating awards of i compensations in labour disputes, it is not the number of months to be compensated, but how the award of compensation is arrived. In the present dispute, the record is silent on how the arbitrator 17 arrived at the award of forty-eight (48) months. It is fortunate that reading the two (2) indicated cases above, have produced some clues for assessment of compensation in terms of number of salaries, viz. first, whether the breach is substantive or procedural; second, nature of the offence alleged to have been committed; and third, consideration principles of equity and justice to the parties. In the present record, the hints are not reflected. However, both parties had displayed faults in the record. The applicant did not work up to the standard supposedly expected by a gate man, as displayed in exhibit D.3. Similarly, the applicant breached both substantive and procedural requirements. Having considered the cited clues, I am moved to adjust the compensation from forty­ eight (48) months to twenty-four (24) months salaries. In the end, I uphold the decision of the Commission in the dispute, save for the indicated award of compensation. The revision is partly allowed to extent stated in the alteration of the award of compensation. I do so without costs as this is a labour dispute filed in good faith in search of the rights of the parties. 18 This Ruling was delivered in Chambers under the Seal of this court in the presence of Ms. Rosemary Makori, learned counsel for the applicant, and in the presence of Mr. Ernest Mhagama, learned 19