tanganyika estate agents limited vs raphael d nondi 2021 tzhcld 300 13 august 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM LABOUR REVISION NO. 938 OF 2019 BETWEEN TANGANYIKA ESTATE AGENTS LIMITED..................................... APPLICANT VERSUS RAPHAEL D. NONDI................................................................ RESPONDENT JUDGMENT Date of Last Order: 27/07/2021 Date of Judgment: 13/08/2021 I, ARUFANI, J, The applicant is beseeching the court to revise and set aside the award of the Commission for Mediation and Arbitration for Ilala at Dar es Salaam (henceforth, the CMA) issued in Labour Dispute No. CMA/DSM/KIN//R.450/16/53 dated 8th November, 2019. The application is made under sections 91 (1) (a), 91 (2) (b) and (c), 94 (1) (b) (i) of the Employment and Labour Relations Act, No. 6 of 2004 (hereinafter referred in 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 employment was terminated by the applicant basing on reckless driving and gross negligence which resulted into occasioning serious damage to the company's vehicle with registration number T 721 BDJ as well as poor performance of work which caused the company to sustain irreparable financial loss. The respondent was resented by termination of his employment and referred the matter to the CMA which determined the dispute in his favor. jl The 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 thereto. In arguing the application, the applicant addressed the court by basing on the issues raised and determined in the impugned award of the CMA. The applicant started with the issue which states whether there were valid reasons for termination of the respondent's employment which was determined in % > affirmative by the Arbitrator. The applicant argued that, the Arbitrator erred in arriving to the stated finding and argued that the Arbitrator misinterpreted section 39 of the Employment and Labour Relations Act as well as rule 9 (4) of the GN No. 42 of 2007. It is the applicant's submission that, the evidence adduced before the CMA proves 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 recklessly and maliciously caused damage to the company's property that was sufficient reason to warrant measures taken by the applicant. It was argued further by the applicant that, the Arbitrator's arguments lacked chronological flow of events and leaves many crucial issues unattended. It was submitted by the applicant that, the arguments by the Arbitrator are based on the overview of the laws and case laws only without affording critical analysis on the weight of evidence adduced by the parties and specifically that of the applicant. It was his submission 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 given an opportunity to respond to the charge laid against him but the record shows the respondent was given an opportunity to state his case and defended himself. The applicant went on submitting that, the opinion of the Arbitrator that DW3 admitted he was asked to chair the smooth termination of the respondent's employment was arrived out of context as DW3 stated he chaired the disciplinary committee as an ambassador of justice to ensure that justice is done to all. The applicant argued that, none of the requirements set under rule 13 of the GN No. 42 of 2007 was faulted 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 alleges must prove. The applicant went on arguing that, as the respondent failed to adduce .. evidence to prove the allegation of being denied right of being heard, he denied them a chance to respond and defend itself against the said allegation. Coming to the issue of reliefs sought by the parties the applicant argued that, as none of the issues raised before the CMA would have been answered in affirmative, the respondent's dispute was supposed to be dismissed for want of legs to stand on. It was argued further that, as the composer of the award stated the award was issued out of time as the hearing was 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 the respondent's employment was valid but he failed to show how the evidence adduced by the applicant proved the case. He argued that, the evidence is supposed to be weighed and the award shows the evidence adduced by both sides were deeply analyzed by Arbitrator at page 3 to 10 of the award. He submitted in relation to the reason of poor performance used to terminate his employment that, although the applicant brought to the CMA an audit report but DW1 and DW3 failed to defend it as they failed to mention the author and whether the author is a registered one or not. He argued 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 of the company's property as well as occasioning loss to the company and not on poor work performance. He argued that, the allegations in respect of reckless driving and malicious damage to the company's property were dropped by DW1 during cross examination as he admitted he was not at the scene of the crime and his evidence was hearsay. He submitted that, neither police report was adduced before the CMA nor eye witness was called to prove a* w the allegations that the respondent was driving recklessly. As for the argument that the Arbitrator's arguments lacked chronological flow of events the respondent argued that, the applicant failed to show what 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 fairness of the procedure of terminating his employment that, the applicant failed to comply with the regulations governing fair termination of employment of an employee provided under rule 13 (1) to (10) of the GN No. 42 of 2007. He argued that, even DW1 admitted he employed DW3 and instructed him to conduct smooth termination of his employment which shows the decision to terminate his employment had already been made before going to disciplinary hearing. He stated that, no witness was called before the disciplinary committee to prove the offences laid against him. He argued further that, the respondent was denied right to appeal within the office 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 shows the respondent was recklessly and maliciously caused damage to the applicant's property. He stated that, the Arbitrator ignored the fact that the respondent failed to disprove the allegations laid against him. He contended it is not true that the respondent was not paid his salaries as claimed and stated the Arbitrator failed to understand the nature of the remuneration which was between the applicant and the respondent and submitted the respondent was paid all of his salaries. He submitted further that, the relationship between the applicant and the respondent was that of forming a partnership as set up under clauses 15.5 and 15.6. He stated the Arbitrator was required to see whether the 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 have the vehicle been repaired immediately but the evidence on record shows the respondent waited until after four days is when he took the vehicle to the garage for repair. Having carefully considered the rival submissions from both sides the court has found proper to determine this application by basing on the issues raised and determined by the CMA as argued by the parties in their submission. The issues determined by the CMA read as follows:- 1. Whether the termination of the respondent's employment by the employer was substantively fair, 2. Whether the termination of the respondent's employment by the employer was procedural fair, 3. Whether the respondent was discriminated by the employer, 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 respondents 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) of the GN No. 42 of 2007 it states the fair reasons which may justify termination of employment of an employee by an employer are employees' conduct, capacity, compatibility or the employer's operational requirements. The court has found that, in determine the first issue the Arbitrator referred to the above cited provisions of the law together with some decisions made by this court and come to the conclusion that, the evidence adduced before the CMA by the applicant's witnesses failed to prove the validity and sufficiency of the reasons used by the applicant to terminate the employment of the respondent. The court has considered the finding arrived 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. 42 of 2007. The court has also found that in proving the validity of the reasons used to terminate the respondent's employment the applicant paraded three witnesses before the CMA who were Anders Fredrick Wehtje (DW1) who is the applicant's Director, Wasin Ahmed (DW2), the motor vehicles mechanic and Sebastian Ndahani Inoshi (DW3) who was the chairman of the disciplinary committee. After going through the evidence of the mentioned witnesses the court has found that, although the applicant argued its evidence proved without leaving a scintilla of doubt that the respondent committed the disciplinary offences used to terminated his employment but the court has found the 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 sufficient to prove the accident was caused by his reckless driving and he was driving maliciously. The court has arrived to the above finding after seeing the respondent stated in his evidence and in his submission that, he was knocked from behind by another vehicle and caused him to knock another vehicle which was in front of him. As the applicant is the one alleged the respondent was driving recklessly and maliciously caused damage to the vehicle then under section 110 of the Evidence Act, the applicant was bound to prove the stated allegations. As there is no evidence adduced to prove the stated allegations or to rebut what 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 reason and that the procedure was followed in terminating the employee, rests upon the employer as per section 39 of the Employment and Labour Relations Act which stipulates clearly that in any proceedings concerning unfair termination of an employee by an employer, the employer shall prove that the termination [was] is fair." The above holding makes the court 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 to the vehicle of his employer was important evidence to be adduced before the CMA to prove the reason relied upon by the applicant to terminate 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 employer, arbitrator or judge to see among other things that, whether there is a performance standard set by the employer or the employee was aware or could have reasonably be expected to be aware of the required standard and why he failed to meet the required standard. After going through the evidence of DW1 and the respondents contract of employment which was admitted in the case as exhibit DI the court has found there is no any standard of work performance set to the respondent by the applicant. To the contrary the court has found clauses 15.2 to 15.6 of the contract shows the parties agreed that, respondent would have managed the business of the applicant at Dar es Salaam branch 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:- "Z/7 the instant case the facts which are undisputed are there were no standards set by the employer while assessing respondent performance rather than stressing on the increase of revenue. In my view which also is the purview of the law under rule 17 (2) of the GN No. 42/2007 which clearly provides that although the employer has the managerial prerogative to set performance standard, the standard shall not be unreasonable; increase of revenue indeed is unreasonable why! Because for organization to increase its revenue can be determined for a number of reasons or factors including emerging of competitors, economic power of the use of service, human resources, etc to mention just a few." The court 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 respondents 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. The court has also found that, although it was said by DW1 that the respondent was assigned to make 7J deals per year and he managed to make only 5 deals but the stated target is neither stated in their agreement nor in any other evidence adduced before the CMA. To the contrary the court has found the respondent rebutted the evidence A of DW1 by stating that, up to when his employment was terminated, he had generated 57 deals which had been closed and 15 deals were on pipe line ready to be closed. Since there is no evidence adduced before the CMA to establish the deals made by the respondent is only 5 and not 57 stated by the respondent the 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 arrived to the afore stated views the court has found the 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 of 2007 in arriving to the finding that the termination of the respondent's employment was not made on valid reasons has no merit as there is no evidence establishing a valid reason for termination of the respondent's employment which was not considered by the Arbitrator. The court has also found that, although the applicant attacked the award issued by the Arbitrator by stating it lacks chronological order of events but as rightly argued by the respondent, the applicant did not state which events were not argued chronologically and how were supposed to be argued to bring the alleged chronological order of events. Coming 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 the respondent 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 found there is nowhere stated in rule 13 of the GN No. 42 of 2007 or in any other law that an employee whose disciplinary hearing is supposed to be held is supposed to be given a notice to show cause why a disciplinary hearing should not be conducted against him. To the contrary the court has found the notice which the employee is required to be given as provided under sub rule 2 of rule 13 of the GN No. 42 of 2007 is a notice of informing him the allegations laid against him 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 the law the court has gone through the record of the CMA and find the respondent was issued with a notice dated 15th April, 2016 which was admitted in the matter as exhibit D6. That notice shows it is not true that the respondent was given only a suspension letter but he was also given a notice of the disciplinary offences intended to be heard in the disciplinary proceedings initiated against him. The court has also found the Arbitrator stated the respondent was not given a chance to respond to the charge laid against him. After going through the record of the matter the court has found that, as rightly argued by the applicant there is nowhere in the evidence adduced before 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 the respondent was given notice of hearing of the matter before the disciplinary committee and he was given chance to respondent to the charge laid against him but the court has found it cannot be said the hearing before the disciplinary committee was fair. The court has come to the above finding seeing that, although the applicant argued DW3, who was the chairman A 'W;- of the disciplinary committee said he chaired the hearing as an ambassador of justice and fair hearing for both sides but when he was questioned by the Arbitrator, he categorically said in his evidence that, he was engaged and paid by DW1 to find the smooth way for the applicant to part 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/ kweli nisingeweza kutoa maamuzi mengine zaidi ya kutafuta namna nzuri 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 the conclusion that termination of the employment of the respondent was not fair procedurally as DW3 was not an impartial chairman. The court has considered the further applicant's argument that, the Arbitrator might have skipped a lot of compelling things which if were considered might have made a different decision but find the applicant has not disclosed which things were not considered by the Arbitrator which if were considered would have caused a different decision to be arrived. The court has also considered the argument by the applicant that the Arbitrator's arguments lacked chronological flow of events but found 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 higher than the respondent but find that argument is not supported by the record of the matter. The court has arrived to the above finding after seeing the respondent stated clearly at page 37 of the proceedings of the CMA and without being disputed by the applicant that, a foreigner namely Suzanne Kamtali was employed by the applicant and although she was working as a subordinate of the respondent but she was being paid higher than the respondent. To the view of this court the applicant was required to disprove the allegation by the respondent that he was being underpaid when 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 CMA by the respondent which disprove the argument made by the applicant. Coming to the last issue of reliefs the parties are entitled the court has found that, as it has found the respondent's employment was terminated on invalid reasons and hearing of his disciplinary offences was not chaired by an impartial chairman then termination of his employment was unfair. Having arrived to the above finding the court has come to the settled view that, as rightly found by the Arbitrator the respondent is entitled to reliefs provided under section 40 of the ELRA. The court has found the Arbitrator based on section 40 (1) (c) of the ELRA to awarded 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 been paid 10% on all net revenue generated from the office in Dar es Salaam. For 2015 and onward the bonus to be paid was supposed be governed by clause 15.5 of the contract which states that, if the parties agreed to continue the business after 31st December, 2014 a company for the Dar es Salaam should be formed and each party would have own 50% of the company from 1st January, 2015 and all commissions thereafter shall be split 50/50. For clarity purposes clause 15.5 of the parties' agreement states as follows:- "If the parties agree to continue the business after 31st December, 2014, a company for the Dar es Saiaam 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 I that earning was depending on formulation of the company which each party would have own 50/50 of the value of the company. That makes the court to find the two clauses of the parties' agreement are interdependent and are not supposed to be read separately as argued by the respondent. In the premises the court has found the Arbitrator erred in finding the respondent was entitled to get the commission of 50% of all the revenue generated in the applicant's business for the period of 2015 and 2016 as the company which would have entitled the respondent to 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 any basis which can make it to interfere with the finding of the Arbitrator in relation to the said relief. In the premises the amount awarded in the said relief is left without being altered by the court. In the final result the court has found the application for revision of the award of the CMA deserve to be partly allowed to the extent stated hereinabove. The premature commission of TZS 29,714,951/= awarded to the respondent while the partnership company had not been formed as provided under the agreement is hereby quashed and set aside form the award. The rest of the reliefs granted in the award which are USD 21,600 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. I. Arufani JUDGE 13/08/2021 Court: Judgement delivered today 13th day of August, 2021 in the 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