tanzania revenue authority vs elias joseph huruma 2018 tzhcld 40 18 may 2018

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 572 OF 2016 BETWEEN TANZANIA REVENUE AUTHORITY....................................APPLICANT VERSUS ELIAS JOSEPH HURUMA.............................................. RESPONDENT JUDGEMENT Date o f Last O rdfr: 02/03/2018 Date o f Judgment: 18/05/2018 L.L.Mashaka) 3 This judgement is in respect of the application for revision filed by the applicant [Tanzania Revenue Authority [to be referred herein as TRA] against the avyard issued by the Commission for Mediation and Arbitration [to be referred herein as CMA]. The application is made by Notice of Application, Chamber Summons under Rule 24(1), (2)(a)(b)(c)(d)(e) and (f) (3) (a)(b)(c) & (d), Rule 28(l)(a)(c) (d) & (e) of the Labour Court Rules, GN 10q of 2007 and Section 91(1) (a) (2)(c) & (4)(a) & (b), Section 94 (l)(b)(i) ofl the Employment and Labour Relations Act, No. 6 of 2004 as amended froni time to time and supporting affidavit of one Bilal S. Mshoro. During Uhe hearing of this application, Ms Bertha Kitambi, Advocate represented tfie applicant and Mr.Evold Mushi, Advocate represented the respondent, I LearnedlCounsel submitted that, before the Court was an application for revision filid by the applicant, containing notice of application, chamber summons and|affidavit, brought under Rule 24 (1) (2) (a) - (f) (3) (a)- (d), Rule 28 (1) O ) (c) (d) and (e) of the Labour Court Rules, GN No. 106 of 2007, Section |91 (1) (a) (2) (c), (4) (a) (b) and Section 94 (1) (b) (i) of the Employment a|nd Labour Relations Act 2004 and supported by affidavit of one Bilal A. Mshoro and prayed to adopt the same to form part of her submission an{j prayers were contained in chamber summons. Learned irounsel gave a brief background of the labour dispute that the respondent was employed by the applicant as a Tax Officer on the 3rd August, 1998 in d at the time of termination of employment the respondent was the In Charge of Samora Motor Vehicle Registration Unit in Dar es Salaam. That] sometime in August 2012 the applicant discovered misconducts implicating the respondent hence the applicant charged the respondent w|th 3 counts. First count was abuse of office facilities, secondly to facilitate customers directly caused revenue loss and thirdly behaving contjrary to TRA Ethical and Core Values. That the applicant followed procedures for termination and the respondent was terminated from employment. That beiijig aggrieved with the decision of the Disciplinary Committee, the respondent referred the dispute to the CMA and was decided in his favour. That c|t the CMA, they aw d the same position he held at th< f remuneration £nd secondly grantee i hat this revision is based on 7 grounds provided under paragraph 13 of supporting affidavit. Lebrned| Counsel submitted starting with the 1st ground at paragraph 13 (1) of affidavit, that when the cause of action is unfair termination the law has already provided for the remedies under Section 40 (1) of Act No. 6 of 2004, tholugh there are other circumstances where employee pleaded for general damages. That the law directs the said employee to prove the damage he sijffered out of the cause of action of unfair termination. She submitted that when one pleads damages, must prove what damage and how much thel damage. That during hearing of the dispute at the CMA, the respondent failed to prove what and how much damage. It was their submission t h it one cannot grant damages if the respondent has failed to prove or quantify the damage. That Hon. Arbitrator assumed that the respondent n^s suffered by making the following assumptions, contained at pages 22 a fid 23 of the CMA award and paragraph 13 (6) and (7) of our affidavit, assuming that the respondent has suffered, his family and society also suffered land children and mother of the respondent also suffered, iAihile there w^s no evidence tendered before the CMA. Leprnedl Counsel further submitted that, it was wrong for Hon. Arbitrator to Extend the relationship of the applicant and respondent to his family, society, and children and mother because this was an employment relationship a|nd limited to the employer and employee. That basing on these assumptions, Hon. Arbitrator proceeded to award general damages amounting to|Tshs. 75,000,000/=. It was the applicant's submission that damages cann|ot be assumed, must be proved. That there should have been tangible Evidence and not assumptions. In supporting her arguments, Learned Counsel referred this Court to the case of cake of Marine Services Co. Ltd. Vs. Willibard R. Kilenzi, Revision No. Ej of 2014, HCLD at Mwanza (unreported) at pages 7 and 8 by Hon. Nyereire, 1 She prayed to put emphasis at pages 22 and 23 of the CMA award a£ there was no any evidence to prove but assumption as stipulated at said pages 22 and 23. That Hon. Arbitrator award of Tshs. 75,000,000/= is unjustifiable. Also in the case of Abubakar Haji Yakub Vs. Air Tanzania Co. Ltd, Revision |No. 162 of 2011, HCLD at Dar es Salaam (unreported) at pages 6, 7 arja 8. Learned Counsel emphasized that on mere allegations, proof of damages must be clear and accompanied with clear evidence and not mere allegations for example that his mother suffered, his children suffered or the society looks down on him as a thief, these are mere allegations. Tjiey must be accompanied by clear evidence of proof. On the| 2nd ground for revision at paragraph 13 (5) of affidavit, Learned Counsel submitted that there was no necessity to order the reinstatement) of the respondent as the law itself provides, where there is a broken down| relationship between employer and employee, the employer can compensate the employee instead. That under Section 40(3) of Act No. 6 of 2004, ttte relationship between employer and employee is based on trust, when i : is broken there is no way the employer can take back the employee. Tpat Hon. Arbitrator was supposed to see this and order compensation!. She insisted that it was wrong to order reinstatement of the respondent irh the same position he was, because there was hostility between applicant and respondent such a long time had passed where that position could| not have remained vacant, i.e. from 2013 to 2015. Also, that the law was (tlear under Rule 32 (2) of the Labour Institutions (Mediation and Arbitratioln Guidelines) GN. No. 67 of 2007 under the said Rule 32 (2) (b) and (c) oft GN. No. 67 of 2007, the relationship between employee and employer basled on trust had been broken; the continued relationship to work together would be intolerable. That the basis is noted on the counts of the charg|es against the respondent and it was not reasonable or practicable fdr the applicant to work with the respondent on the same position, was| already covered or taken by another person due to the fact that the position could not be left vacant since 2013 - 2015 waiting for the decision of H^n. Arbitrator. On the| 3rd ground for revision contained at paragraph 13 (2) of affidavit as sipDmitted earlier Hon. Arbitrator awarded general damages of Tshs. 75,000j000/= while there was no evidence admitted or tendered to quantify the (damages Learned Counsel submitted that there should have been tangible evidence to justify the injury suffered by the respondent. Rather Hon. [Arbitrator in absence of any tangible evidence continued to assume ana laward Tshs. 75 million. It was their submission that it was wrong for H<bn. Arbitrator to award the said amount in absence of any evidence tendered before the CMA. Learned Counsel submitted that she would be proper in her submissions if there was tangible evidence to justify the injury a(id not the sympathy of Hon. Arbitrator assuming family, mother, and Society had suffered out of the termination of the respondent. On the |4th ground as contained at paragraph 13 (3) and (4) of affidavit, Learjned Counsel argued that she combines the same and submit as on£ ground that the law provides for the procedure to be followed a termination of employment. That the respondent before termination, tlhe applicant did abide to the procedure for termination. Disciplinary independent authority was formed to conduct preliminary investigations] charges were framed and served to the respondent and was given time 14| days to respond to the charges. That the response of the respondent dild not clear him from the charges, the applicant went ahead and formed a Idisciplinary committee. That the procedures are contained in their affidavit |at paragraphs 6, 7 and 8. Learned] Counsel submitted that, basing on those procedures which were followed Dy the applicant to terminate the respondent, it was wrong for Hon. Arbitrator to hold that the misconduct was not proved and procedure wa|s not followed. Learned Counsel further submitted that, on the grounds stipulated and paragraph 13 (6) and (7) of affidavit have been argued to during "round 1 aftelr paragraph 13 (1) of affidavit. She finhlized by saying that, basing on her submission, laws and authorities, iH was their humble prayer that the CMA award be revised and set aside as Iwell as any other orders this Hon. Court will deem just and equitable to (jrant. In response Learned Counsel for the respondent prayed to adopt their counter Affidavit to form part of their submission. Starting] with ground 1 on general damages, Learned Counsel for the respondent supmitted that it was their submission that the respondent was entitled to th|e said damages as pleaded in CMA Form No. 1 and he adduced evidence on how he was affected and injured. It is in record as he adduced Evidence how he was affected and injured as per evidence adduced at pa|ge 73 of the typed proceedings of the CMA and that, the said evidence was Idisputed by the applicant employer. That it was not correct that every (act has to be proved by documentary evidence, eg psychological!^, torture; mental torture cannot be proved by documentary evidence. Th£ respondent was seriously injured during the process of termination, Whereas he was suspended for more than 6 months after completion ofj investigation and that even after the disciplinary hearing the respondent was under suspension for 7 months without being given the outcome of thje disciplinary hearing. Referririq the case of Marine Services Co. Ltd (supra), Learned Counsel for t|he respondent argued that it is distinguishable because the respondent did not plead in CMA Form No. 1 for general damages and there was nd evidence and the same was granted by Hon. Arbitrator suo m otuand he| submitted that he agreed to that, that it was wrong. That in their case, it was pleaded and the respondent proved, as per page 8 paragraph 2 bf the CMA award which is very clear. Also or| the 2nd case of Abubakari Yakub Vs. Air Tanzania Co. Ltd (supra|), Learned Counsel for the respondent thanked Learned Counsel for thfe applicant bringing the cited case because it shows CMA can award damages and at page 5, paragraph 5th of the case the Court held that general dlamages can be awarded together with reinstatement without loss of remuneration and at the same page paragraph 6, the CMA has jurisdiction to|award general damages. Learnedl Counsel submitted that this Hon. Court has awarded general damages basilnq on the circumstances of the case as per the cases of Feza Primary School Vs. Wahid Kibarabasa, Revision No. 117 of 2013 (2014) Part 1 lLabour Court Case Digest 34 and PPF Vs. Siriel Mchembe, Revision No. |389 of 2013 (2014) Part 1 Labour Court Case Digest 105. That, general damages must be distinguished from specific damages because spetific damages require quantification and specific proof. Therefore the|re was no assumption by Hon. Arbitrator but based on proof by the respondent and not challenged by the applicant. On grojind 2 for reinstatement, Learned Counsel for the respondent submitted that Hon. Arbitrator was correct to order so after finding that termination v\|as unfair both on reason and procedure and that even on the submission tj>y Learned Counsel did not submit on the fairness of termination, th a t it is very clear under the law, Rule 32 (2) of GN. No. 67 of 2007, the |respondent prayed for reinstatement and still wishes to be reinstated and it was their submission that there was no evidence adduced at the CMA that the relationship between employer and employee was intolerable. And that, after all those working with the applicant and who terminated tile respondent are nor longer there. Learned Counsel further submitted that, after ali the law is clear that if they do not|want the respondent, Section 40 (3) of Act No. 6 of 2004 is clear and tlie applicant has that option to pay the respondent compensation pr 12 months and salary arrears from the date of termination to date of fin£l payment. On the reinstatement to the same position as awarded by th|e CMA, Learned Counsel submitted that the applicant had an opportunity tc| tell the respondent the available position and if there is no suitable position for the respondent then the applicant has the option of Section 40 (3) of the Act No. 6 of 2004. " Learnedl Counsel further submitted that, the evidence of DW1 was clear and thfe respondent tendered a number of exhibits. That the evidence of 0>W1 at page 24 of the CMA typed proceedings provides the behavior and| the hard working spirit of the respondent and Exhibit A3 (collectively).| Learned Counsel prayed, referred this court to the case of TPA Vs. Thqophil Kimaro, Consolidated, Revision No. 21 of 2016 and Revision No.l 27/2016, High Court Labour Division at Dar es Salaam (unreported)J held that appropriate remedy for unfair termination both substantively|and procedurally, it is reinstatement. On thelissue of trust, Learned Counsel submitted that the same does not apply because the respondent was not terminated on mistrust or dishonesty a£ the records of the CMA have shown there is no evidence to prove that jthere was hostility and the respondent still insists to be reinstated. On grourld 3, Learned Counsel argued that he was confused because what is written! in affidavit at paragraph 13 (2) and what was submitted by Learned counsel is not the same as on the fact deponed in affidavit. That it was their humtpiy submission, that their counter affidavit made it clear that the deponent cfid not mention which document the Arbitrator based on his decision. Ther^rore this ground 3 is misconceived, Hon. Arbitrator based her decision orH evidence adduced by the parties and no document which was considered by Hon. Arbitrator and was not tendered and admitted during hearing^ On grourid 4 combined issues contained at paragraph 13 (3) & (4) of affidavit, whicr) covers procedures and reason for termination as earlier submitted, Learned Counsel there was no submission by Learned Counsel that there was| a valid reason for termination. That Exhibit D2 collectively show the acculsations/charges against the respondent. Exhibit D7 is the termination letter with reasons for termination. Reading these 2 exhibits, the respondent was charged with 3 counts. But the Exhibit 7 shows different reasons which he had never been charges with DW2 mentioned very clear. In itxhibit DIO the and it trail shows clearly where the said motor vehicles|were registered and who registered the motor vehicles, it is not the respondent, at page 8, last paragraph of the typed CMA proceedings titiey admitted that there was no investigation conducted against the respondent. DW2 mentioned very clearly that when you say a motor vehicle lis registered and registration card is issued, it means all taxes and duties have been paid, refer at pages 28 and 29, last sentence of the typed cNlA proceedings, shows the process of registration who registered andlat what point. 10 On pag$ 40, 3rd paragraph and page 41; how comes the applicant charged the respondent for registering the motor vehicle with registration no. T 794 IBVP without following procedures. It is difficult for the respondent tct understand this as the one who did the misconduct was known, charqled and terminated. There was no evidence of conspiracy between the respondent and the officer at Moshi who did the misconduct. Learned Counsel for respondent submitted on the procedural aspect that ,the procedures were grossly violated by the applicant towards the respondent. jThe respondent was suspended for more than 6 months after investigation,| as per Exhibit D1 and was terminated after 7 months after disciplinary hlearing, while the law requires outcome of the disciplinary hearing to be| issued after 5 days and there was no reason given for such delay as Exhibit D6 show very clearly the Disciplinary Committee hearing was adjournejd and when it convened after 7 months the respondent was not informed] That the Committee had never informed the respondent on the verdict or the disciplinary hearing so the Disciplinary Committee (DC) never found the respondent guilty of the charges against him. He insisted that, that Disciplinary Committee hearing had no complainant as the chair person playe|d the role of chairperson and the complainant at the same time. That before the CMA, the only witness DW2 testified that he adduced evidence befhre Disciplinary Committee in the absence of the respondent as the respondent was told to go outside/ as per page 34 of typed CMA proceedings.i ii Learnedl Counsel further submitted that, another gross violation of procedure is tfiat the investigation report was never given the respondent. That at the l MA, they made a formal application to request for the investigation ri^oort and the response is seen at page 8, last paragraph and page 9, 1st paragraph, there was no investigation conducted and its report against the respondent. That reading the charges leveled against the respondent, tmere is no way the respondent could make a proper defence that is why It was very difficult for the applicant to prove that the respondent cojnmitted the offence. Another Iprocedure violated as per submissions by Learned Counsel is that the reso6ndent was terminated on reasons which were not on the charges refer lExhibit D7 termination letter and D2 collectively disciplinary charges. Thelother procedure violated is that the person who suspended, charged and tbrminated the respondent was one person Mr. Victor Kimaro Director of Huhian Resources and Administration. That the respondent was not given an I opportunity for mitigation because when the Disciplinary Committee m*t- after 7 months, they reconvened without giving notice to the respondent to enter appearance and there was no room for mitigation because the Respondent was never found guilty. That there was no evidence tendered at the Disciplinary Committee hearing. Learnedl Counsel argued that, based on his submission and since everything is | on record this termination was very unfair and it was accompanied t>y series of mistreatment without any valid reason and made the respondent to be out of work since 2012 to date for offences committed bylanother person and known by the applicant. He prayed that 12 the CMA awar|d to be confirmed and order reinstatement of the respondent without loss J)f remuneration being the only remedy that can help the respondent td return back to his normal life. That the general damages cannot cure tffe injuries suffered but can mitigate the injuries and get relief as all the violations were done deliberately. He lastly prayed the application for revision to be dismissed for lack of merit. In rebutltaL Learned Counsel submitted that regarding to the proof on general damahes, she prayed to reiterate submission in chief and maintain the position |in the case of Abubakari H. Yakub Vs. Air Tanzania (supra) that] it should not be based on mere allegations. It was her submission that if general damages were to be award without any proof it would have t(een an injustice, and that the basic principle of who alleges injury or damages must prove. That justice should not only be done but seen to be ddne. On the| 2nd ground for revision, Learned Counsel rejoined that her emphasis is 4>n the charges against the respondent. That the counts in its nature, it breaks the trust between employer and employee. That there was no investiaation report tendered at the CMA against the respondent. On thel relief for reinstatement, Learned Counsel submitted that the respondent Hiad a duty to make sure the procedures are followed before reissuing any| registration cards. The said cards are contained at paragraph 6 of their affidavit, T 794 BVP, T 446 BVU, T 461 BVU and T 676 BQZ. At the CMA evidence was only adduced in relation to registration of T 794 BVP 13 together withl audit trail of the same vehicle with registration No. T 794 BVP. Lastly [learned Counsel for the applicant prayed to reiterate the prayers in submission in chief. Having |heard submissions by both parties and gone through Court records, therd are 3 issues for determination, firstly whether or not there was a valid rdason for termination, secondly whether or not fair procedures were followed and lastly the reliefs entitled to the parties. Starting| with the first issue on the valid of reason for termination, the applicant faulted the decision of Hon. Arbitrator that there was no valid reason for termination while the applicant employer had a valid reason for termination. In order to see as to whether there was valid reason for termination o|r not which is also connected with the procedural aspect of the dispute, a| historical background is necessary. The resbondent was charged on 15 August 2012, and served with a Notice registered as REF: TRA/HQ/DRD/ES/PF/0512 issued by one Victor Kimaro for Director of Human Resources and Administration with three counts, first ^buse of Office facilities contrary to Schedule 2(1) of TRA Staff Regulation revised edition 2010 and the particulars of the offence were that, "Mr. Elia Joseph you are charged that between 21stMarch 2011 and 08th Octobei\ 2011 being the in-charge o f the Samora Motor Vehicle Registration \jnit with the right to issue m otor vehicle registration cards using the Celytral M otor Vehicle Registration System did take advantage o f your official position to abuse the Motor Vehicle Registration System for 14 you unlawfully and fraudulently issued new registration cards for m otor vehicle with Registration number T 794 BVP, T 446 BVU,T 461 BVU and T 676 BQZ Wfiich were registered without following the laid down procedures." The second count the statement of the offence was "facilitate customers diriectly to cause loss contrary to Schedule 2(18)of TRA Staff Regulation 2Q09 and the particulars of the offence was that "Mr. Elias Joseph you dfe charged that between 21st March, 2011 and 0£fh October, 2011 you fraudulently and unlawfully issued registration cards for motor vehicles with Registration number T 794 BVP, T 446 B V U T 461 BVU and T 676 BQZ that were illegally registered a t Moshi by one A/phonce Ikandiio without following registration procedures as a result, you facilitated unscrupulous tax payers to evade paym ent o f duties and other import taxes attached to the m otor vehicles before its registration". The third count, statement of the offence was ”Demonstrating behavior whifch is against TRA ethical and core values contrary to Schedule 2 (24) o f TRA S ta ff Regulation revised edition o f 2010" and the particulars of the offencfe was that, "Mr. Eiias Joseph you are charged that between 21st March, A O il and 08th October, 2011 being a TRA employee entrusted with duties a)s the in-charge o f the Samora Motor Vehicle Registration Unit with the rio iit to issue m otor vehicle registration cards using the Central Motor Vehiclk Registration System, you unlawfully and fraudulently issued registration (\ards for m otor vehicles with Registration number T 794 BVP, T 446 BVU alpd T 676 BQZ which were registered without following the laid down procedures, the act which is against TRA ethical and core values". 15 The respondent was served the charge sheet on 16/08/2012 and respondent replied thereto on 31 August 2012. On 5th March 2013, the applicant summoned the respondent to appear before a disciplinary hearing on 201th March 2013 at Morogoro, and the applicant was terminated on 23/10/201(3 where the termination letter quoted at length speaks that:- "Following ytfur appearance before 27th Management Disciplinary Sub­ committee meeting held at The Kingsway Park Company Lim ited in Morogoro on \2Cfh March 2013 the Committee deliberated at length on your defence. The committee decided to seek more clarification from m otor vehicle registration dffice following your defence that what you did was ju st a reprint and i\ot registration. However after long time search o f the said details there ho evidence found to support your contention .... The respondent employee was terminated through that process. From tfie evidence on record the respondent employee refuted making registration of the New Motor Vehicle Cards with their respective numbers as 3hown above. But it is undisputed by the applicant employer the motor vehicles were illegally registered in Moshi and the employees concerned wlere terminated as per employer's termination letter. The defence raiseb by the respondent from when given the charge sheet and at the CMA W3<t that he issued registration cards using the Motor Vehicle Registration |System and he did not registered the same through a fraudulent prbcess. The said motor vehicle with registration number T 794 BVP was reyipcered at Moshi on the 30th September 2011 according to the 16 Motor vehici^ Audit Traii; Motor vehicle with registration number T 446 BVU was registered at Moshi on the 8th October 2011; Motor vehicle with registration number T461 BVU was registered at Moshi on the 8th October 2011; and Mlotor vehicle with registration number T 676 BQZ was registered at |Moshi on 21st March 2011. All the said motor vehicles were not registered at Samora Motor Vehicle Registration Unit and the respondent v\)as not involved in the first initial stage of registration. The defence of thle respondent at the disciplinary hearing forced the applicant employer to Suspend the disciplinary hearing for almost six months and thereon decided to terminate the employment of the respondent without calling the respondent to attend the 2nd Disciplinary Hearing which reached the decision to terminate. Learned Counsel for the applicant submitted that no investigation report was tendered at the CMA against the respondent. Amongst all the reasons advanced for termination, the applicant employer failed to adduce evidence on the same and to connect the employee respondent with the misconduct on how the respondent employee unlawfully and fraudently took advantage of his official position to abuse the IMotor Vehicle Registration System and the violation of TRA Regulation Revised Edition 2010 Schedule 2(1), 2(18) of 2009 and Schedule 2(2ft) of 2010. The two documents are not in the records of the CMA and the|employer never tendered them hence not clear whether such regulations oif policy had met the requirement of the law, under Rule 12 of Employment £nd Labour Relations [Code of Good PracticeJRules G.N 42 of 2007 that: 17 "12. (l\ Any employer, arbitrator o r judge who is required to decide as to termination for m isconduct is unfair shall consider- a) Whether or not the employee contravened a rule or standard regulating conduct relating to employment; b) If the rule or standard was contravened, whether or not- It is reasonable; /<. it is dear and unambiguous; i/L the employee was aware o f it, or could reasonably be expected to have been aware o f it; Of. it has been consistently applied by the em ployer ; and termination is an appropriate sanction for contravening." S e c t i c - i i a n d (2) of the Employment and Labour Relations Act No. 6/2004 p tovides that:- "5. 37\ (1) It shall be unlawful for an employer to terminate the erhnloyment o f an employee unfairly. (2) A termination o f the employment by an employer is unfair if the Employer fails to prove- 3) That the reason for termination is valid b) That the reason is a fair reason i. Related to the employee's conduct capacity or com patibility; or //■ dased on the operational requirements o f the employer, aYid c) That the employer was terminated in accordance with a fair procedure." 18 On protection of employment rights, this Court finds it pertinent to refer to Article 4 |of ILQ Convention No. 158 of 1982 on Termination of Employment, which provides that the employer must have a reason for termination cf an employee and a fair procedure must be followed. The Article 4 stipulates that: the employment o f a worker shall not be term inated unless there i. a valid reason for such termination connected with the capacity or conduct o f the worker or based on the operational requirem ent o f the undertaking, establishm ent or se rvice ................ " This Co|urt finds that there was no valid reason for terminating the respondent efnployee. Hon. Arbitrator as per evidence adduced before him arrived at a rjght decision that there was no valid reason for termination of employment.. On the prcjcedurally aspect as noted from the provisions cited above the termination o|f employment must be in accordance with a fair procedure. It is noted from the records that the respondent was suspended from employment I on the 15/08/2012,summoned to appear before the Disciplinary (Committee for disciplinary hearing which took place on the 20/03/2013, tend it is during the disciplinary hearing when he tendered his defence and Ithe same was postponed to pave way for the employer to make furtheri investigations on the same. It was on 23/10/2013 when he was notified |of the decision of the Disciplinary Committee following the investigation^ conducted after the disciplinary hearing was postponed. It is not known wriat was uncovered during the said investigations. 19 It is crvlstal clear that the respondent's defence during the disciplinary hearing challenged the charges brought by the employer applicant though the applicant! employer alleged to have conduct investigation to ascertain the grounds fjor the disciplinary hearing. There were some evidence lacking on part of applicant employer. The law under Rule 13 of G.N 42 of 2007 provides thatl- " 13.-(H) The em ployer s h a ll conduct an investigation to ascertain whether thefe are grounds for hearing to be held.." The respohdent was suspended from work on 15/08/2012, and called for disciplinary nearing on 20/03/2013. And from 20/03/2013 the decision to terminate Iwas made on 23/10/2013. The hearing and decision of the disciplinary hearing has to be definite, as provided under Rule 13(4) of G.N 42/2007 whi(|h provides " The hearing shall be held and fin a liz e d w ith in re a so n a b le \ tim e , and chaired by a sufficient senior management representati'Je who sh all not have been involved in the circumstance giving rise to the ca$e." [ E m p h a sis is m in e ] The lengtjhy and indefinite suspension till disciplinary hearing was conducted ar|d decisions thereto, defeats the intention of Rule 13(4) of GN No. 42 of 2007. After termination the employer issued a press release that the responddnt was terminated from his employment with the TRA and was nor longer her employee. The conduct of the employer in the whole process amdunted to unfair labour practices which are not acceptable under the labour parlance. There was procedural unfairness in the termination drocess of the employee, which also, contravened the right for 20 mitigation ancj even to cross examine witnesses during the 2nQ Disciplinary hearing. The third Issue is on the reliefs entitled to the parties. This issue has two limbs, fi^st on remedies for unfair termination and the award of damages which are embodied under ground one of this revision application. Under the first limb, Section 40(1) of the Employment and Labour Relations Act No 6/2004 provides; "S. 40 (\1) I f an arbitrator or Labour Court finds a termination is unfair the arbitrator or Court m ay order the employer:- (a) To reinstate the employee from the date the employee was term inated without loss o f remuneration during the period that the employee was absent from work due to the unfair termination; or (b) To re-engage the employee on any terms that the Arbitrator or Court m ay decide; or (c) To pay compensation to the employee o f not less than twelve m onths' rem uneration." Since thisl Court has arrived to the decision that termination was unfair both substantively and procedurally, thus the appropriate remedy is to order the applicant employer Tanzania Revenue Authority reinstates the respondent Employee Elias Joseph Huruma to his post he held when he was unfairlvl terminated from employment as per Section 40(1) (a) of the 21 Employment |and Labour Relations Act No. 6 of 2004 without loss of remuneration!. The contention by Learned Counsel for the applicant that Hon. Arbitratpr could not order reinstatement cannot hold water following the finding of unfair termination. The law, as rightly submitted by Learned Counsel for t}he respondent gives opportunity to the employer where he decides not t|o reinstate to invoke the provisions of Section 40(3) of the Employment ^nd Labour Relations Act No. 6 of 2004 which provides that:- "Where alp order o f reinstatem ent or re-engagem ent is made by an arbitrator or \:ourt and the em ployer decides not to reinstate or re-engage the em ployed the employer shall pay compensation o f twelve months wages in addition to wages due and other benefits from the date o f unfair termination the date o f final paym ent." Therefore the applicant's contention on that aspect is dismissed for lack of merit tend Hon. Arbitrator's finding is confirmed. This Coijrt has in its various decisions held that where there is unfair termination b|oth substantively and procedurally, the appropriate remedy is reinstatement. See the cases of National Bank of Commerce Vs. Aliamin Mbleo, Revision No. 55 of 2013 HCLD at Dar Es Salaam, [unreportedj at page 4; Tanzania Revenue Authority Vs Godfrey Kajetani Dimoso, Revision No. 62 of 2015 HCLD at Dar Es Salaam, [U n reported], Mi pa wa,J; Mussa Andrea Mtunga Vs Tanzania Electric Suplply Company Ltd, Revision No 6 of 2015,HCLD at Kigoma, [unreported],^lipawa,J. The appropriate remedy is reinstatement of the respondent back to his post held when he was terminated without loss of remunerationi as provided for under Section 40(l)(a) of Act No. 6 of 2004. 22 On the gifant of general damages Learned Counsel for the applicant argued that tnere was no proof tendered that after being terminated the respondent employee suffered torture and other related family and societal problems. Th|at if general damages were to be awarded then it could be unjust to the Iparties. While Learned Counsel for the respondent contended that only spebific damages need to be proved and not general damages. That general damages cannot cure the injuries but can help to mitigate the injuries and g|et relief. This Court having gone through the records at hand and particulars the order made on the reliefs of being reinstated to his position withcbut loss of remuneration from when he was terminated till reinstatement} this restores the employee to his position. However, |it is worthy to note that the respondent adduced before the' CMA how hel was psychologically tortured and humilated by the unfair labour practices of the applicant employer. It is not in dispute that the respondent w|as unfairly terminated both substantively and procedurally; suspended foif more than 7 months after conclusion of the investigation, late delivery bf the decision by the employer after 8 months, also the respondent h^d been a good performing employee promoted and received letters for commendable performance see Exhibits A l, A2 and A3 collectively, trjis did affect the respondent. A monetary compensation is perceived to t|>e a 'solatium7, a way of comfort and solace for the loss of human dignity and infringement of his right to work caused by the applicant's unfair labour practices against the respondent. Though the respondent dijd suffer personal injury due to the unfair termination, he failed to showjproof of the same. In view of that he is entitled to payment 23 of nominal damages as solatium. This was held in the case of Abubakari Haji YakubU Vs. Air Tanzania Co. Ltd (supra) which was referred to by both Learned Counsel for the applicant and the respondent. Using powers vested in this Court under Section 91(4)(a) of the Employment land Labour Relations Act No. 6 of 2004 read together with Rule 28 of th(e Labour Court Rules 2007, I order the applicant to pay to the respondent nominal damages at the tune of Tshs. 30,000,000/=. This revision application partly succeed to the extent explained above on the award|of general damages, that part of Hon. Arbitrator's decision is quashed ana|set aside, the rest of Hon. Arbitrator's findings and decision are confirmeq. It is so otioered. Right to Appeal explained. -^ v v . L.L. Mashaka JUDGE 18/05/2018 24