tanzania cigarretes company ltd vs rehema said abdallah and omary idd madenge as administratrix and administrator of the estate of hussein madenge 2022 tzhcld 862 31 a

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 440 OF 2020 TANZANIA CIGARRETES COMPANY LTD...................................... APPLICANT VERSUS REHEMA SAID ABDALLAH AND OMARY IDD MADENGE (As Administratrix and Administrator of the estate of HUSSEIN MADENGE)....................................... RESPONDENT (From the decision of the Commission for Mediation and Arbitration of DSM at Temeke) (Amos: Arbitrator) dated 28th November, 2017 in REF: CMA/DSM/TEM/266/2014 JUDGEMENT 09th August 2022 & 31st August 2022 Rwizile, J This application emanates from the decision of the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/DSM/TEM/266/2014. TANZANIA CIGARRETES COMPANY LTD, the Applicant herein is praying for an order in the following terms: - 1. That this Honorable Court be pleased to revise, quash and set aside the award delivered by Hon. Amos H. Arbitrator in CMA/DSM/TEM/266/2014 on 28th Day of November 2017 and served on 06th Day of December 2017. 2. Any other relief this Honourable Court may deem fit and just to grant. Stated hereunder is a brief background of the dispute. The late hussein madenge was employed by the applicant on 05th September 2005. He was terminated on 13th August, 2014, for an alleged misconduct stated as gross negligence. He held the position of Finance Manager. In protest of the employer's decision, he successfully filed a dispute at the CMA. Having found that his termination was unfair, the CMA ordered compensation of remuneration equal to 36 months, the sum of TZS 302,148,000.00. He unfortunately died before this court made its decision. Being dissatisfied by the CMA award, the applicant filed the present application urging the court to determine six grounds or issues in its totality as they are reflected in the affidavit and supplementary affidavit in support of the application. However, at the hearing the applicant's Counsel consolidated all grounds and remained with three grounds which are as follows: I) Whether there as a valid reason for termination. ii) Whether it is fatal to mediating a dispute out of time. iii) Whether change of an arbitrator without adducing reasons for the change amounts to material irregularity. Mr. Pascal Kamala, learned Counsel appeared for the applicant while Mr. Hamza Mahongo, learned Counsel was for the respondent. Making oral arguments before me, on the first ground, Mr. Kamala submitted that the respondent was proved negligent as justified by exhibit TCC5 which is an Investigation Report. He argued there was an admission of the offence, that approval had to come from other departments as at page 95 of the proceedings. On such basis, he was of the view that the CMA ought to rule in favour of the respondent as was held in the case of Ovadius Mwangamila and Others v. Tanzania Cigarette Co. Ltd, Consolidated Revision No.334/335 of 2020, High Court of Tanzania, Labour Division, at Dar es salaam, (unreported). On the second ground, it was submitted that failure to mediate in time is fatal. He stated that the mediation was done out of 30 days which is a legal requirement provided under Section 86(4) of ELRA. He said, this is evident in the CMA record which shows that 1st mediation was done on 01st October 2014, it was concluded on 16th December 2014. That means, he said, it took 75 days, contrary to the law. It was further submitted that the same could be legal, if parties agreed in extending time for mediation which was not done. For that reason, he was of the view that the mediation process was null. In bolstering his position, he cited the case of Barclays Bank (T) Limited v Avvam Matesa, Civil Appel No. 481 of 2020, Court of Appeal of Tanzania, at Dar es salaam, (unreported). On the third ground regarding change or assignment of the arbitrator, it was submitted that no reason was stated, in the CMA proceedings and parties were not informed on why the Hon. Amosi took over the matter from Hon. Kiangi. The record revealed that the same happened on 18th May 2015 and on 10th March 2017, contrary to Section 88(2) of ELRA and Regulation 18(1) of GN 67 of 2007. He alluded that such irregularity nullifies the proceedings. Supporting his assertion, he cited the case of Kinondoni Municipal Council v. Q -Consult Limited, Civil Appeal No. 70 of 2016, Court of Appeal of Tanzania, at Dar es salaam, (unreported). He thus prayed for the proceedings to be nullified and retrial to be ordered. Replying, Mr. Hamza submitted that, negligence stated by the applicant had not been proved. The alleged Exhibit TCC5 (investigation report) did not show how the respondent caused such loss leading to termination of employment. Therefore, the CMA was right in its findings. The respondent admitted to have committed common mistakes that are rectifiable as the procedure showed. Mr. Hamza argued further that the evidence of Pwl and Dwl could not be used to terminate the employment. He said, there is evidence that even though the respondent was an accountant, he was not the sole 4 approving authority of the documents and they were examined by others. Therefore, the CMA was clear on exhibit TCC5 and it was not mandatory for the respondent to sign. He further added that the respondent was to approve other budgets even without seeking consultation from others. Regarding mediation, it was argued that the process was not done within a time. Mr. Hamza submitted that the same resulted from adjournment as evidenced in the CMA proceedings shows especially at mediation stage. He went further by challenging the case of Barclays Bank (supra). He said, it was different from the matter at hand because in Barclays the decision was issued expert while in this matter, it was not the case. On such basis, he was of the view that this ground lacks merit. On the last ground relating to taking over the matter by another arbitrator Mr. Hamza submitted that section 88(2) of ELRA does not require, if any change of an arbitrator occurs, reason must be given. He stated that the case cited by the applicant dealt with the matter under the Civil Procedure Code. It was his view that it does not have application before CMA, since the CMA is not bound by Civil Procedure Code. He said, the CMA has its own laws governing the procedure in mediation and arbitration process. He thus prayed for the application to be dismissed. Having considered parties submission, I have to start with the 3rd ground which is whether change of an arbitrator without adducing reasons for the change amounts to materia! irregularity. In determining this question, it is record that from the beginning, the matter was before Hon. Kiangi. On 24th August 2015, he recorded the evidence of Dwl. On 23rd January 2016, the matter was taken over by Hon. Amos who recorded the evidence of Dw2. That means there was a change for the reasons which are not apparent in the CMA proceedings as justified at page 9 and 58 of the proceedings. Thereafter Hon. Amos proceeded with hearing of the matter and delivered an award, under section 88(2) of the ELRA and rule 18(1) of GN No. 67 of 2007, it is provided that; Where the parties fail to resolve a dispute referred to mediation under section 86, the Commission shall— (a) appoint an arbitrator to decide the dispute; (b) determine the time, date and place of the arbitration hearing; and (c) advise the parties to the dispute of the details stipulated in paragraph(a) or (b). Further, rule 18(1) states; An arbitration is a process in which a person appointed as an arbitrator for resolving a dispute determines the dispute for the parties'process 6 The provisions referred by Mr. Kamala are in my view dear and plain such that they need no further construction. Their plain and even deep meaning if any do not suggest when one arbitrator who started the arbitration cannot finish it another one should not take over. In actual fact, these provisions do not suggest such a proposition. I am alive that the submission on the point is insinuated by the decision of the Court of Appeal in the case of Kinondoni Municipal Council v. Q -Consult Limited (supra). In it a decision was nullified by reason of the trial court failure to comply with XVIII, Rule 10(1) of the Civil Procedure Code, in that case, the trial succeeding judge did not assign reasons for taking over the matter. In as much as I agree with Mr. Kamala that it was perhaps wise for the arbitrator to record why he took over, but there is no specific provision in the Labour Laws and Rules, that wants it so. But still, the Civil Procedure Code does not apply in the proceedings before the CMA. The case cited was not in any way dealing with the labour matter. It was dealing with a land matter which has no specific law governing proceedings in the Land Court. I think, it should be clearly stated here that CMA is a special tribunal that deals with labour matters. Labour matters in themselves are not like other civil cases. That is why, the application of the CPC and other laws of the general nature should be applied with limitation. 7 The same should be applied when and only when a lacuna created in the laws governing the CMA proceedings create or occasions failure of justice. In this application, Mr. Kamala did not endeavor to show how injustice was occasioned. He did not claim that the evidence by the succeeding arbitrator was inaccurate or wanting in any way. To hold in line of Mr. Kamala is defeating the purpose for which this Commission was established. I desist the deliberate effort of the learned counsel to wish CMA be turned into a civil court. From the forgoing, this ground has no merit. It is dismissed. The second ground is whether it is fatal to mediating dispute out of time. Mr. Kamala was clear that mediation was done after 30 days contrary to section 86(4) of ELRA. According to cited law, the mediator has been required to resolve the dispute within thirty days of the referral or any longer period to which the parties agree in writing. In this application, it is clear that mediation was conducted from 01st October 2014 and it was concluded on 16th December 2014. By any stretch, it was after 30 days stated under the law. As submitted, this was also under discussed by the Court of Appeal in the Case of Barclays Bank (T) Limited v Ayyam Matesa (supra). Looking at the words of the statute, despite providing for 30 days to call for mediation or any longer period, subject of agreement by parties. The law does not provide for the remedy in case the mediation is conducted after expiration of the stated period. 8 Section 86(4), in my view, is similar to 88(10) of the same Act. When the former limits mediation to 30 days, the latter limits delivery of judgement by the arbitrator to 30 days too. The provisions are under Part VIII of the Act, which deals with dispute resolution. Based on the nature and spirit of the labour laws, it was meant that trial be conducted in a more friendly way and in a timely manner. That is why, I think, the same provisions provide for timelines which best suit speedy delivery of justice. Taking an example of the judgement that was delayed. The arbitrator does not in my view, even without sounding reasons, cease to have jurisdiction to write the judgement after expiry of 30 days assigned for the judgement. It wouldn't be proper to nullify the same merely because it was delivered after 30 days given to the arbitrator to do so. This, in my opinion applies to the mediation done after 30 days in conflict with the law. In the case referred, Barclay Bank (supra) by the applicant in this matter, as I have shown before, the Court of Appeal, even though it was explicit that the law was infringed by the arbitrator to proceed with mediation after the time specified without written consent of the parties, still, the court did not nullify the proceeding based on the same issue. All what the court did, it disposed of the appeal based on the 1st and the 2nd grounds of appeal. My close look on the two grounds that were the basis of nullifying the decision, were on, first, failure to give a proper 9 interpretation to the provisions of section 87(3)(b) of the Labour Institutions Act and rule 14(2)(a)(ii) of GN 67 of 2007 and second, the mediator turned himself into an arbitrator which is a fatal irregularity. To be precise, at page 21 of the judgement, the court held; "In the circumstance and for the reasons as afore stated, we allow the appeal on account of the first and second grounds". Based on these findings, I am of the considered view, that this ground too, has no merit, it is dismissed. Lastly, is the 1st issue, whether there were valid reasons for termination. Mr. Kamala on this issue submitted that based on the investigation report exhibit TCC5, the respondent admitted to have been negligent in approving the vouchers. I have gone through the proceedings and exhibits tendered, it is crystal clear that at page 95 of the proceeding, Madenge admitted to have approved the same. But it is not true that he was admitting to have committed a misconduct of negligence. Since, it is always the duty of an employer to prove that termination was not only grounded on valid reason but also on valid and fair procedure as under section 37 of the Employment and Labour Relations Act. This court finds it that the applicant did not prove that there was misconduct on part of Madenge. The evidence of Pwl and Dwl was far clear that Pwl did not unlawfully approve the vouchers. The same were approved in the normal process 10 and in any case, there was a kind of loss stated, but it did not amount to a misconduct. In normal, accounting, he said such discrepancies are always present. In all, it was to be proved that the first two offences of gross negligence were whole and sorely for the same to blame. On the 3rd count, of Company policy abuse, the applicant had to prove that the policy and procedure were not followed. On procedural fairness, it was alleged and rightly so that the terms of rule 13 (4), (5) and (7) of the Code of Good Practice were contravened. First, the hearing was chaired by a stranger. He was not a member of the same office and there was no reason why he was hired. Second, it is this same person who denied enough time for the Madenge's lawyer to prepare the defence on cross-examination and third, there is no record all the same was complied with. I therefore hold that termination was not fair in terms of reason and procedure. Lastly, the CMA awarded 36 months as compensation. The reasons stated for such a high amount is that Madenge was not proved to have committed the said misconduct. In law, that I think was not an aggravated form of mistreatment to warrant such as huge compensation. Since the law provides for at least 12 months. To deviate from it, in the high side ii or otherwise would depend on the circumstances of the entire case. This does not warrant so. Therefore, when I dismiss the application on reasons already explained. I quash the amount of compensation of 36 months and substitute for it 12 months. This therefore brings the total of 8,393,000 X 12 which is the sum of TZS 100,716,000. A.K. Rwizile JUDGE 31.08.2022 12