tanganyika estate agents limited vs raphael d nondi 2021 tzhcld 324 13 august 2021

IN THE HIGH COURT OF TANZANIA es Salaam (hencefo^h^he^CMA) issued in Labour Dispute No. LABOUR DIVISION CMA/DSM/KIN//R.<®1^3^ated November, 2019. The application 8thSALAAM AT DAR ES LABOUR REVISION NO. 938 OF 2019 BETWEEN TANGANYIKA ESTATE AGENTS LIMITED.......................... APPLICANT VERSUS RAPHAEL D. NONDI ESPONDENT JUDGMENT Date of Last Order: 27/07/2021 Date ofJudgment: 13/08/2021 !■ ARUFANL J- The applicant is beseeching the<GOu^to revise and set aside the award of the Commission for Mediatignand Arbitration for Ilala at Dar is made un^ls^tions^91 (1) (a), 91 (2) (b) and (c), 94 (1) (b) (i) of the^mployrfent and Labour Relations Act, No. 6 of 2004 (hereinafter referredl^short as the ELRA), rules 24 (1), 24 (2) (a), (b), (c), (d), (e) and (f), 24 (3) (a), (b), (c) and (d), 28 (1) (c), (d) and (e) of the Labour Court Rules, GN No. 106 of 2007 and any other enabling provision of the law. i The background of the matter as can be deduced from the record of the matter is to the effect that, the applicant is a company carrying on the business of real estate in Tanzania and its head office is at Arusha. The applicant employed the respondent to open a branch at Dar es Salaam and entered into an agreement that, from 1st January, 2014 the respondent would have independently run and operate the business of the applicant at Dar es Salaam as a Branch Manager. On 26th April, 2016 the respondent's erfi^loyrheoj? was terminated by the applicant basing on reckless driying^ancfegross negligence which resulted into occasioning serious dama<^r6| the company's vehicle with registration number T 721^BD^s^e^ as poor performance of work which caused the compamrto^sustain irreparable financial loss. The respondent was res?nted%yitermination of his employment and referred the matter to^tOcMAWhich determined the dispute in his favor. KThe applicant was aggrieved by the award of the CMA and filed in this court^the instant application imploring the court to revise and set aside the award of the CMA basing on a ground that, the award was not properly procured. When the matter came for mention before my learned sister Muruke, J on 1st March, 2021 in the presence of Mr. Michael Mihayo, learned counsel for the applicant who was also holding 2 brief of Mr. Gasper Tluway, learned counsel for the respondent, the court ordered the application to be argued by way of written submission and I commend both sides for complying with the time given by the court. The applicant prayed to adopt the affidavit supporting the application as well as all documents attached ar^uij^ the application, the applicant addressed the court <by&basing og the issues raised and determined in the impugned awardW thiF®IA. The applicant started with the issue which states w^heikther-a were valid reasons for termination of the respondents employment which was determined in x'k & affirmative by the Arbitrator Thelagglicant argued that, the Arbitrator erred in arriving to tte^t^^finding and argued that the Arbitrator misinter eted secS^^^^feie Employment and Labour Relations Act as well as rul^^^^Pthe GN No. 42 of 2007. ^Ut i^^^pplicants submission that, the evidence adduced before the CPlMpfoves without leaving a scintilla of doubt that the reasons used to terminate employment of the respondent were valid but the Arbitrator ignored the whole evidence adduced by the applicant. The applicant argued that, they presented before the CMA the evidence which shows the respondent recklessly and maliciously destroyed the 3 company's property and occasioned loss to the company and the respondent failed to disprove the said evidence of the applicant. The applicant submitted that, as provided under the GN No. 42 of 2007, causing damage to the employer's property as well as poor work performance are offences which can sufficiently warrant termination of employment of an employee. The applicant stated that, as the respondent has not disputed that he recklessl^and maliciously caused damage to the company's property that was sufficient^eason to warrant measures taken by the applicant, It was argued further w the^agplicant that, the Arbitrator's arguments lacked chronolodtcal fldwW events and leaves many crucial issues unattended. It ^s^spbmitted by the applicant that, the arguments by the^^^^^Cre based on the overview of the laws and case lawsL^lv without affording critical analysis on the weight of evidence adguped by the parties and specifically that of the applicant. It was^t^^y^nission that, laws are applied in the facts, otherwise it is an academic exercise and stated the applicant had valid reasons to terminate the respondent's employment. The applicant argued in relation to the second issue which states whether the procedures prior to termination of the respondent's 4 employment were adhered to that, the Arbitrator erred in law and in fact in holding the applicant faulted procedures of termination of the respondent's employment as set under the law. The applicant submitted that, although the Arbitrator was of the opinion that procedures set under rule 13 of the GN No. 42 of 2007 were not adhered to as there is no evidence to show the respondent was giver^h opportunity to respond to the charge laid against him but^the recor^shows the respondent was given an opportunity to stare his^case and defended himself. The applicant went or^ubrfiifflngl that, the opinion of the Arbitrator that DW3 admitted he^ls asked to chair the smooth termination of the respondent^employment was arrived out of context as DW3 stated he|chairedM;ne disciplinary committee as an ambassador of justice t^ehsuredfiarjustice is done to all. The applicant argued that, none of the|requirements set under rule 13 of the GN No. 42 of 2007 was faul^^while dealing with the respondent's disciplinary action. The applicant said the Arbitrator might have missed an opportunity to go through the notes taken by his predecessor during the hearing as he skipped a lot of things which if were put into consideration he would have arrived to an opposite decision. 5 As for the issue relating to discrimination of the respondent the applicant stated that, the finding by the Arbitrator that the respondent was discriminated by the applicant was based on hearsay and was not sufficiently proved to the standard required by the law. He submitted that, it is a known principle of the law as provided under section 110 of the Evidence Act, Cap 6 R.E 2019 that, he who alle^^^^^'ov^ The applicant went on arguing that, as the respondent faire^ to adduce evidence to prove the allegation of being denied rign^^ being heard, he denied them a chance to respond andtdjrfthd itself against the said allegation Coming to the issue of, reliefesoPght by the parties the applicant be dismissed^^^^iWf legs to stand on. It was argued further that, as fhe award stated the award was issued out of time as the heaqingjwas presided over by another Arbitrator and he could not read the proceeding properly then that alone was a sufficient miscarriage of justice and suffices to set aside the award for want of impartiality. 6 In rebuttal the respondent argued in respect of the validity of the reasons for termination of the respondent's employment that, the applicant has tried to raise a new issue which was not raised at the arbitration stage. He argued that, although the applicant argued the evidence adduced before the CMA managed to prove without leaving a scintilla of doubt that the reasons for termination^of^ft^re^rcn'dent's employment was valid but he failed to show ho^he ev®e:nce adduced by the applicant proved the case. He argt^l tna^the ev*^ence *s supposed to be weighed and the award sl^jwj^evidence adduced by both sides were deeply analy^^by^^^tor at page 3 to 10 of the award. 1 He submitted in relatidh^to the reason of poor performance used to terminate his employment?that, although the applicant brought to the CMA an a^ife^^^j&u^DWl and DW3 failed to defend it as they failed to<rQenti^^^^author and whether the author is a registered one or not. He^axgped further that, the Arbitrator considered the fact that the applicant did not deny his act of not paying the respondent monthly salary for the period of August, 2015 to the date of termination of his employment which was 26th April, 2016. 7 He stated that, no legal action was taken against the respondent's alleged poor work performance as required by rule 17 (1) (a), (b), (c), (d) and (e), (2) and (3) of GN No. 42 of 2007. He stated further that, although termination of his employment was based on conduct and incapacity but the evidence adduced before the CMA dealt with allegation of reckless and malicious destruction^^^^^^^pany's property as well as occasioning loss to the company aruknot on poor work performance. He argued that, the allegationsreckless driving and malicious damage to the con^?ny's^^^rty were dropped by DW1 during cross examination asdhe adWttea he was not at the scene of the crime and his eviden^^^^^rsay. He submitted that, neither police report was adduceooefore^ne CMA nor eye witness was called to prove the allega^ij^^^feg respondent was driving recklessly. As for the argument tWt^he Arbitrator's arguments lacked chronological flow of was supposed to be the chronological flow of events which was not properly dealt by the Arbitrator. The respondent argued in relation to the issue of occasioning loss to the employer because of poor work performance that, the Arbitrator 8 considered the same and found there was no evidence adduced to establish which target was set for the respondent to meet and failed to meet it. He submitted that, the valid award is required to comply with rule 27 (3) (a), (b), (c), (d) and (e) of the GN No. 67 of 2007 which he stated it was fully complied with by the Arbitrator. He argued in relation to the issue of fairnessfbWie procedure of terminating his employment that, the applicant fejled to cdrnply with the regulations governing fair termination of empfgyment>of an employee provided under rule 13 (1) to (10) of the GN NoK42 of 2007. He argued that, even DW1 admitted he^^ipl^^^W3 and instructed him to conduct smooth termination o^hisjemployment which shows the decision to terminate his^emplpyment had already been made before before the di^si^jywmmittee to prove the offences laid against him. ^^eC^^d?further that, the respondent was denied right to appeal within tn^ffice as he was told if he was aggrieved, he was required to appeal to the CMA and not within the office. He went on arguing that, there is nowhere in the evidence adduced by DW3 stated he was in the committee as an ambassador of justice and fair hearing of the matter as argued by the applicant. He stated that, the applicant failed to mention 9 what was skipped in the impugned award of the CMA and submitted that he is entitled to all reliefs sought as the award is supported by the law. In rejoinder the applicant argued that, there is no any new issue raised in their submission. He said the evidence adduced before the CMA ex shows the respondent was recklessly and maliciousjy'c^ed^^nage to the applicant's property. He stated that, the Arbitrator ignored the fact that the respondent failed to disprove the allegationsglaid against him. He contended it is not true that the r^^itenmas not paid his salaries as claimed and stated the Arbitrator failedra understand the nature of the remuneration which wass,between<he applicant and the respondent He submitted^fort^rthat, the relationship between the applicant and the r^ra^^was that of forming a partnership as set up under classes ^^^id 15.6. He stated the Arbitrator was required to see whett^tjpl? partnership envisaged under the mentioned clauses was formed. It is submitted further that the arbitrator erred in proceeding to order payment for relationship which had not been formulated. The applicant argued that, the finding by the Arbitrator that it owed the respondent an additional 40% is highly misconstrued as it has no basis. io The applicant argued further that, the argument that the applicant dropped the allegation of reckless driving during cross examination is not true. The applicant maintained that the respondent was terminated from his employment basing on his poor performance as well as recklessly causing damage to the company's property. The applicant stated that despite the plea of its director to ha^e^^^MeWeen repaired immediately but the evidence on record showsIfoe respondent waited until after four days is when he took thelvehicle to the garage for repair, Having carefully conside& thelwaljsubmissions from both sides the court has found propio determine this application by basing on the issues raised and det%™ned by the CMA as argued by the parties in their submission, ’^^^^e^fetermined by the CMA read as follows:- 1. ^^£^^he termination of the respondent's empioyment by m^eim/^er was substantiveiy fair, ^^W^mer the termination of the respondent's empioyment by dts empioyer was procedurai fair, 3. Whether the respondent was discriminated by the empioyer, 4 To what reliefs if any, both parties may be entitled. Starting with the first issue the court has found the applicant is arguing the Arbitrator misinterpreted section 39 of the ELRA and rule 9 li (4) of the GN No. 42 of 2007 in arriving to the finding that there was no valid reason for terminating the respondent's employment. After going through the mentioned provisions of the law the court has found section 39 of the ELRA states that, in any proceedings concerning unfair termination of an employee by an employer, the employer is required to prove that the termination was fair. As for rule 9 (4^ofThejSI^No&42 of 2007 it states the fair reasons which may, justify termination of employment of an employee by an employer<arexemployees' conduct, capacity, compatibility or the employer's operational’ requirements. The court has found thatfti defer^jne the first issue the Arbitrator referred to the above citedprovisjgr^of the law together with some decisions made by this^court^nd come to the conclusion that, the evidence adduced^^)^tb/CMA by the applicant's witnesses failed to prove the^li^^nd^stifficiency of the reasons used by the applicant to J*9 terminate tge^^ployment of the respondent. The court has considered the^^ing^rrived by the Arbitrator and after going through the record of the CMA it has found that, as stated at the outset of this judgment, termination of the respondent's employment was based on reckless driving and gross negligence which resulted into occasioning serious 12 damage to the applicant's vehicle as well as poor work performance which caused the applicant to sustain irreparable financial loss. The court has considered the stated grounds and find they are falling in the categories of the conduct and capacity of an employee provided under section 37 (2) (b) of the ELRA and rule 9 (4) of GN No. jwr Fa 42 of 2007. The court has also found that in provigg^the validity^of the paraded three witnesses before the CMA^wo^er^>Anders Fredrick Wehtje (DW1) who is the applicant's W^fe^^^sih Ahmed (DW2), the motor vehicles mechanic and Se^stiaQj^hani Inoshi (DW3) who was the chairman of the disciplinary committee. After going through the^eyidence of the mentioned witnesses the court has found that, although the applicant argued its evidence proved without te^^^^intilla of doubt that the respondent committed the disci^mry^^nces used to terminated his employment but the court has founcyiziie said argument is not supported by the evidence adduced by the mentioned witnesses. The court has arrived to the above finding after seeing that, although it was not disputed that the respondent was involved into an accident with the applicant's vehicle but there is no any scintilla of evidence adduced by the applicant to prove the said accident 13 was recklessly and maliciously caused by the respondent The court has found there is no evidence adduced before the CMA to show to what extent the vehicle was damaged by the stated accident. It is the view of this court that, a mere saying that the respondent was involved into an accident without the evidence to^ prove how recklessly and maliciously he was driving was not s^fWent to^pr;p\/e the accident was caused by his reckless drivintkgand he^yvas driving maliciously. The court has arrived to the abpfafinShg>after seeing the respondent stated in his evidence an^Jn^is^ubmission that, he was knocked from behind by andfier ^icl^and caused him to knock another vehicle which was Jp frdntt^him. As the applicant is the one alleged the respondent %a£^driving recklessly and maliciously caused damage to the veBcl^tnepftnder section 110 of the Evidence Act, the applicant waSjbounjd Wprove the stated allegations. Wte thefe'is no evidence adduced to prove the stated allegations or to rebuWfiat was said by the respondent the court has come to the view that, as rightly argued by the respondent and as provided under section 39 of the ELRA, there was a need for the applicant to produce sufficient evidence to prove the alleged reckless driving and malicious damage to property of the applicant caused by the respondent and not 14 to make a mere assertion which is not supported by sufficient evidence. The above finding of this court is being bolstered by the decision made by this court in the case of Bernard Mtaki & Another V. Williamson Diamonds Limited, [2014] LCCD 30 where it was held that:- "The proof that termination of an employee by the employer is fair, that is to say, there was valid and fair rea^^a^^^at^the procedure was followed in terminating the empioyee^ests^upon the empioyer as per section 39 of the Employment arid Labour Relations Act which stipulates clearly ^atim^iy proceedings concerning unfair termination of an emp^e^y an employer, the empioyer shall prove that the^term^tibnfi^aQ is fair." The above holding makesThe coi&rt to find that, as rightly argued by the respondent, evidence like a police report or court decision establishing the alleged^respondent's reckless driving and malicious damage his employer was important evidence to be adduced^^^^he CMA to prove the reason relied upon by the applicant tojerminate the respondent's employment was valid. As there is no sufficient evidence to prove the ground of reckless driving and malicious damage to property the court has found that ground was not valid reason for terminating employment of the respondent. 15 Coming to the reason of poor work performance the court has found that, the factors to be considered in determining whether termination of employment of an employee on ground of poor work performance is fair or not are provided under rule 17 (1) (a) to (e) of the GN No. 42 of 2007. The cited provision of the law requires any required standard and why he failed to m^^^yequired standard. After going through the^Mde^^^DWl and the respondent's contract of employment wf^h was>admitted in the case as exhibit DI the court has found th^^^^^ny standard of work performance set to the respondent b^^^plicant. To the contrary the court has found clauses 15.2^^^^6^of the contract shows the parties agreed that, responde^^^^d^have managed the business of the applicant at Dar es Salaam^^rfch and the applicant would provide USD 21,000 to cover the costs of operating the business. They also agreed that, after one year, they would have formulated a partnership company whereby they would have split all the commissions by 50%. There is nowhere stated how many deals the 16 respondent was supposed to conclude and how much revenue the respondent was required to generate per year so as to say his work performance was poor as he failed to meet the required standard. The situation in the instant case is similar to the one which was in the case of MIC Tanzania Limited V. Chris Stratham, [2015] LCCD 190 where the court held that:- ^41 % % "In the instant case the facts which are undisputedarerhere were no standards set by the employer whiie^^sess^g respondent performance rather than stressing ond^increase of revenue. In my view which also is the purvievrjof^^i^^under rule 17 (2) of the GN No. 42/2007 whic^cieariy^^vides that although the employer has the manageriai^p^agative to set performance standard, the standapd^ihail not be unreasonable; increase of revenue indeed is uprtt&mable why! Because for organization to increase its rev^ud^/h^be determined for a number of reasons or factors inciuding^emerging of competitors, economic power of the use of^ryice;Mman resources, etc to mention just a few." ^iJ^j^urt has found that, it is not only that there is no evidence adduced before the CMA to show the standard set for the respondent in performing the work which would have shown whether his working performance was poor or not, but also even the reports tendered before the CMA by DW1 to show the expenditures and revenues generated at the respondent's office which were admitted in the case as exhibit D2, 17 D3 and D4 did not manage to establish the respondent's performance of work was poor. The court has arrived to the above finding after seeing that, as argued by the respondent DW1 failed to defend what is written in the said report as he said is not the one prepared the same and he don't remember the author of the reports. their agreement nor in any other evifei^ad^fcecf before the CMA. To the contrary the court has foutf^he^espopdent rebutted the evidence of DW1 by stating that, up .to wh^n^s^employment was terminated, he had generated 57 deals^wjh^had been closed and 15 deals were on pipe line ready to ^d^d^f Sina^C^H^no evidence adduced before the CMA to establish th^^Is^^^-by the respondent is only 5 and not 57 stated by the respondeptzthe court has found it cannot be said it was proved to the required standard that the respondent failed to meet the target required by his employer. In the premises the court has found it cannot be said the reason of poor work performance used to terminate the employment 18 of the respondent was proved to the extent of making it a valid reason for termination of the respondent's employment. Having alleged arrived to cFirg^ogiSl afore the of order stated views the court has found the events. argument by the applicant that, the Arbitrator failed to analyze critically the facts of the case and misinterpreted the application of section 39 of the ELRA together with rule 9 (4) of the GN No. 42<pf^2007 inlarriying to the finding that the termination of the respondent's employrfient was not made on valid reasons has no merit as there ®no ^Ld^nce establishing a valid reason for termination of th^^^^^rjt's employment which was not considered by the A^^ato^^^ court has also found that, although the applicant attached the^ard issued by the Arbitrator by stating it lacks chrono^^^^ter of events but as rightly argued by the respondent, the a^piicaifedjd not state which events were not argued chronolog^ollCal^iiw were supposed to be argued to bring the Coning to the second issue relating to the fair procedures for termination of employment of an employee provided under rule 13 of the GN No. 42 of 2007 the court has found that, while the applicant argued the requirements provided in the cited provision of the law were properly complied with the respondent contended were not complied 19 with. The court has found the Arbitrator found the fair procedures for terminating employment of the respondent were not properly complied with. One of the procedures which the Arbitrator found was not complied with as stated at page 22 of the award is that the respondent was not given a notice to show cause why disciplinary hearing should not be taken against him. The Arbitrator found was issued with a suspension letter dated 15th April, 2016 instead of being issued with a notice provided under the law. First of all, the court has foundthierej^^^/here stated in rule 13 of the GN No. 42 of 2007 or if^iny cither Jaw that an employee whose disciplinary hearing is supped ic^befheld is supposed to be given a notice to show cause wh^a disciplinary hearing should not be conducted against him. To the contra^ the court has found the notice which the employee is^&uiredToTje given as provided under sub rule 2 of rule 13 of<ie GN 2007 is a notice of informing him the allegations laid againsRhig>and when and where the hearing will be held. For clarity purpose the referred provision of the law states as follows:- "Where a hearing is to be held, the employer shall notify the employee of the allegations using a form and language that the employee can reasonably understand." 20 The wording of the above provision of the law does not require the employer to give the employee a notice to show cause why disciplinary hearing should not be taken against him but requires the employee to be given notice of the allegations intended to be tried in a disciplinary hearing intended to be held against him. That being the requirement of respondent was issued with a notice dated 15^April, 2016 which was admitted in the matter as exhibit D6. That ntffiiceRshows it is not true that the respondent was given only a susj^^^ietter but he was also given a notice of the disciplinary^off^^^intended to be heard in the disciplinary proceedings initiated^againsphim. The court has ajso%un^he Arbitrator stated the respondent was not given a chan|e''tOxrespond to the charge laid against him. After going throug^^^record of the matter the court has found that, as rigli^^arg^^^ the applicant there is nowhere in the evidence adduced^efore the CMA stated the respondent was denied right of responding to the charge laid against him. To the contrary the court has found the respondent stated before the CMA that, after being summoned to appear before the disciplinary committee he was required to give his evidence and after giving his evidence and DW1 gave his 21 evidence they were told to go out and left DW3 and Caroline who was secretary to deliberate on the matter. Thereafter they were called and told he had been found guilty. That shows it is not true that the respondent was denied right of responding to the charge laid against him. Despite the fact that the court has found <tne^^po^^jt was given notice of hearing of the matter before th^disciplinar^ committee and he was given chance to respondent tcdtfiCchargeJlaid against him but the court has found it cannothearing before the disciplinary committee was fairlnrhe c^^^as come to the above finding aoplicani^gjjed DW3, who was the chairman seeing thatz although the applicani^gjjed of the disciplinary comnnittee said he chaired the hearing as an ambassador of ju^^^wa^ hearing for both sides but when he was questione^^^^^Arbitrator, he categorically said in his evidence thatz he&was ^^^^Snd paid by DW1 to find the smooth way for the appliclmt^Jpart with the respondent. He said he would have not arrived to a different decision than to assist the applicant to part with his employee. To quote his own words he stated as follows:- "/V/ kweti nisingeweza kutoa maamuzi mengine zaidi ya kutafuta namna nzurl ya kumsaidia mwajiri kuachana na mfanyakazi wake." 22 The above quoted words of DW3 shows clearly that, as rightly argued by the respondent and found by the Arbitrator it cannot be said the disciplinary hearing was fair as the decision to terminate the employment of the respondent had already been made and DW3 was just looking for the good way for the applicant to part with the respondent. This make the court to come to th^ cc^psioh&that termination of the employment of the respondent^was not fair procedurally as DW3 was not an impartial chaimnarr^, The court has considered the^^^^^pjicants argument that, the Arbitrator might have skived a^t^ compelling things which if were considered might have different decision but find the applicant has not disclosed which things were not considered by the the^applfca^^^Wie Arbitrator's arguments lacked chronological flow of eve^^^bund that, as rightly argued by the respondent the applicant has also not disclosed which arguments were not made by the Arbitrator in chronological flow of events. Under that circumstances the court has failed to see any merit in the alleged arguments as it has failed to see how they affected the award issued by the Arbitrator. 23 As for the third issue the court has found the Arbitrator found the respondent was discriminated by the applicant as when is compared with his subordinate he was underpaid. The court has considered the submission by the applicant that in determine that issue the Arbitrator based on hearsay as there was no evidence to prove there was that other employee and she was being remunerated^^^^^tah> the respondent but find that argument is not supported by tne|reccFd of the matter. The court has arrived to th^^^^^^jding after seeing the respondent stated clearly at paf?37 o^thSproceedings of the CMA and without being disputed b^ the^agghcant that, a foreigner namely Suzanne Kamtali was employe^by the applicant and although she was working as a suborS^fe^^the respondent but she was being paid higher th^t^Oe^ondent. To the view of this court the applicant was reqpired^^^^^^the allegation by the respondent that he was being unde^j^^hen compared with the mentioned employee and not to make a bear argument that the issue was determined on hearsay evidence. The court has also found that, discrimination in employment is prohibited by section 7 (4) of the ELRA read together with rule 29 (1) of 24 the GN No. 42 of 2007 which states that, employer shall not directly or indirectly, discriminate any employee in any employment policy or practice. Therefore, the argument by the applicant that the averred discrimination was not proved and argument that the finding of the Arbitrator was based on hearsay evidence has no legs to stand on as there is a clear evidence adduced before the CM^^tFi^^^oodent which disprove the argument made by the applicant. Coming to the last issue of reliefs the<^^ies are^entitled the court has found that, as it has found th^re^^^eni's employment was terminated on invalid reasonsifnd lC=mhof his disciplinary offences was not chaired by an impartial^chairman then termination of his employment was unfair.^aving arrived to the above finding the court has come to the 0ttleUvfej$ that, as rightly found by the Arbitrator the respondent isfentitled-fo reliefs provided under section 40 of the ELRA. Th^rauft ^^^Sd the Arbitrator based on section 40 (1) (c) of the ELRA to^ayvarded the respondent the salaries of 24 months as compensation for unfair termination. As that award was based on discretion of the Arbitrator the court has found it has no justifiable reason to alter the same. 25 The court has found the Arbitrator awarded the respondent other reliefs which were based on the agreement entered by the parties which the Arbitrator found were not paid to the respondent. After going through the award of the CMA and the employment agreement entered by the parties the court has found clause 6.2 of the agreement states that, for the year 2014 the respondent would have bel|n p<^ra0%<on all net revenue generated from the office in Dar es Salaam^|or 2015 and onward the bonus to be paid was supposed b^S&r^d by clause 15.5 of the contract which states that, if the^parti^agreed to continue the business after 31st December,^^14 ^ro^pany for the Dar es Salaam should be formed and each oar^^^^ have own 50% of the company from 1st January, 2015^^^^ commissions thereafter shall be split 50/50. For clarity pur^esylause 15.5 of the parties' agreement states as follows^j|^^^^ ^If thd p^f/esagree to continue the business after 31st December, company for the Dar es Salaam business shall be formed. Mr. Anders Wehtje and Mr. Raphael Nondi shall each own 50% of the said company and which shall be formed from 1st January, 2015." The court has found that, although the parties continued with the business after 31st December, 2014 but there is no one stated the 26 partnership company was formed as provided under clause 15,5 of the agreement. The court has considered the argument by the Arbitrator that the earning of 50% of all the commissions generated from 1st January, 2015 does not depend on formulation and ownership of the company but find that was wrong interpretation of what is provided under clauses 15.5 and 15.6 of the agreement. To the view of this court and as rightly ^argued by The applicant that earning was depending on formulation^dRthe coinpany which each party would have own 50/50 of the value^f the^Company. That makes the court to find the two ilauses^cf Jie parties' agreement are interdependent and are no^upp^sec^o be read separately as argued by the respondent. Ir^^^^^ises the court has found the Arbitrator erred in finding thOsspoQdent was entitled to get the commission of 50% of alPthe revenue generated in the applicant's business for the period ofr2Qtf!^d2016 as the company which would have entitled the respondent^ get the awarded bonus had not been formed. Coming to the relief relating to the none payment and deduction of the salaries of the respondent the court has found that, although the applicant stated the respondent was paid all of his salaries but there is no evidence adduced before the CMA to show the respondent was paid 27 all of his salaries. To the contrary the court has found the respondent stated before the CMA and is indicated in exhibits A4 that, his salaries in some of the months were deducted to the extent of getting zero to repay the loan which denied to have been given. That being the position and as there is no proof that the respondent was paid his salaries as argued by the applicant the court has failed to see^w basis|which can make it to interfere with the finding of the Arbitrator irrrelation to the said relief. In the premises the amount awarded iWty^said relief is left without being altered by the court. In the final result the co^^ha^^^ the application for revision of the award of the CMA^senze^^e partly allowed to the extent stated hereinabove, ^^^^^gture commission of TZS 29,714,951/= awarded to the resp^deht^while the partnership company had not been formed a^i^^^^iroer the agreement is hereby quashed and set aside form tne>aw§rd. The rest of the reliefs granted in the award which are USDh21<600 being the sum of 24 months salaries as a compensation for unfair termination of the respondent's employment, USD 5,400 being the sum of unpaid six months salaries from September, 2015 to March, 28 2016 and TZS 762,090 being refund of the amount unlawfully deducted from his salaries are left without alteration. It is so ordered. Dated at Dar es Salaam this 13th day of August, 2021. presence of Mr. Michael Mihayo, learned advocate for the applicant and in the presence of Mr. Gasper Tluway, learned advocate for the respondent. Right of appeal to the Court of Appeal is fully explained. I. Arufani JUDGE 13/08/2021 29