20131216 TZHC Dar es Salaam2

11,: •• I i IN THE HIGH COUR~ OF TANZANIA I LABOUR D:~v1s10N I

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AT DAR ES SALAAM I ,I I REVISION NO 272 OF 2013 I i TANZANIA REVENUE AUTHORIT~ .............................. ~PPLICANT YERS~S I · II I MALUNGUJA LUHULA ... ...........,.................... RESPONDENT r·· ' \ (CMAIDSMI ~46/10/98) I I JUDGMbNT I J l . 04/11/2013 &16/12/2013 ' I R. M. RWEYEMAMU, J. Ii I The respondent Malunguja successfully appealed his empllyer (TRA)'s termination decision to the Commission for Mediation an~ Arbitration (CMA). In its decision dated I 8/2/2012, the CMA: ,· I ► Decided that Malunguja's termination wai both substantively and procedurally unfair; ► Ordered TRA to reinstate him and also: i I ► To pay. him all his employment benefits from 21/8/2009 to 8f2/2012, the date of the CMA decision. The Arbitrator further ord~red that: I ► If TRA decides not to reinstate, it shoJld pay Malunguja an amount equal to 24 months' salary plus all entitlements from ~ate of termination; !nd that: ► TRA should pay Malunguja costs of th~I suit, such costs ~ere . ordered to be the equivalent of 5 months' salary. ; I . That decision aggrieved TRA hence this a~plication for revisidn on the following key I grounds:-. 1 .I I . '5. That the Commission erred in law andifact in awarding the ~espondent to be paid compensation of 24 months salaries instead of 12 monthf alaries in lieu of 1 reinstatement contrary to provisions of law. \. ·1 II 6. That the Commission erred in law and facts in awarding the cost of the case in favour of the Respondent which are unneceksary and non-maintainable in law.

7. That the Commission erred in law and fabt in making its decisi~n on the bases of the evidence of the Applicant's 2nd witneJs who had turned h~stile in adducing evidence despite the fact that the Applicadf had made an appliJation to recall the ~~ ! I f 8. The Commission erred in law and facts n denying the Applirnt opporlunity to recall 2nd witness without assigning any rea~on" I The parties were represented by AdvocMes, Mr. A. Arboga$t and Mr. D. Daniel for 1 the applicant and respondent respectively. Cou nsel made oral submissions in support the contending positions. I will now evaluate their a~buments in light of t~e facts on record, then give my decision in respect of each of the groun~s argued. I I I I begin with ground number 8 above. Mr ~rbogast Advocate {aulted the Arbitrator for failing to permit TRA to recall its witness who had allegedly turn d hostile. According to i 7 Counsel, the Arbitrator's refusal was sufficient ground to have the decision revised. In response, Mr. Lugaila submitted that the proced~re which TRA had lsought was to recall its witness. According to Counsel, that was un-pr+ural. What was r~uired was for TRA to apply to treat its witness as hostile then proceed to cross examine nim. The question to be answered now is whether the complaint raised Jv the TRA reveals ~ny illegal procedure or material irregularity justifying revision. My respotse is

in the negative. In my understanding of the law, the procedure explained by Mr. LJgaila represents a broper position. In the result, I find no basis for faulting the CMA on thaJ aspect of procedur~. 1 . 2 I I Counsel for TRA also elaborated on ground 7 of the affidavit. He argued that the Arbitrator erred when it relied on the evidence of TRA's 2nd witnes! to make its decision, when that witness had turned hostile. This argument has no basis in law or legal practice. In i my considered opinion, it is not the duty of the Arbitrator, and it would in fact be improper, for the Arbitrator to assume that a witness has become hostile, simply because the witness's testimony does not support the version wished for, by a iarty which had called such witness. There is another aspect to the arguments made in support of ground 7 of the affidavit. It relates to the issue whether or not, on the evidence adduped by the parties, the Arbitrator's conclusion that termination was procedurally unfair and not for a valid reason, rational/reasonable. In arriving at the impugned decision and award, the Arbitrat0r I reasoned that; TRA I did not adduce evidence to establish that Malunguja committed the '.alleged misconduct or that such misconduct resulted in any quantified loss; and that even if there had been such I evidence of loss, there was no justifiable reason for penalizing only Malunguja and

treating other employees who were similarly situated differently; further! that, in sanctioning Malunguja with the maximum penalty, TRA ignored the fact he was a first offender- having served TRA for 13 years without blemish. Both processes were contrary to recommended good practices. , I . As to procedure, the Arbitrator found that (basically on Jnopposed evidence), Malunguja was denied due process that is; he was denied a right to be heard, given un ' reasonable time to prepare defence, and denied right to have a r~presentative present during disciplinary hearing. 3 ! I I At the hearing, I have been given no reasons to differ 1with the Arbitrator's 1 · conclusion. Mr. Arbogast argued that the Arbitrator ought to have fouhd Malunguja guilty of I the misconduct charged because he had confessed to the offence i~ writing, as per letter attached to TRA's pleadings. As properly argued by Mr, Lugaila, t~e alleged confession I letter was not part of the evidence, it was not tendered by TRA during arbitration. Mr. Arbogast's submission that Arbitrator should have requested TRA to testify on that question I is legally untenable. It is not within the acceptable powers of an Arbit~ator to help one party I prosecute its case- particularly where, as was the position in this case, such a party has an I array of qualified officers to help it prosecute its cases. In conclusion, I accept and

confirm the Arbitrator's decision that Malunguja's termination was for an invalid reason as well as I being procedurally unfair. That done, I turn to consider the issue of rerpedy. I I Counsel for TRA rightly faulted the Arbitrator in his use of discretion under Section 40(1) of the Employment and Labour Relations Act, (The Act) 6/2004~ According to him, the ! Arbitrator has powers to order reinstatement, but has no powers to I also direct/order what should happen if the employer (TRA), chooses not to reinstate. What should happen is I prescribed by law. · 1 I I I agree and find that in making the two orders in the alternative, the Arbitrator exercised his jurisdiction improperly. The law sp~cifically provides th~t following a finding of ! unfair termination, the Arbitrator has discretion to order one of thel three remedies falling under Section 40 (1) (a) or (b) or (c ) of the Act Once the Arbitrator orders reinstatement I under section 40 (1) (a), he should end there. It is the employler who has discretion thereafter either to comply with the order by reinstating the employee or, choose to proceed I in terms of section 40 (3) of the Act. For that reason, The Arbitrator's two orders are I quashed. I I I ' 4 ',,,, • I.- Since I have confirmed the Arbitrator's decision that Mulu~guja's termination was substantively and procedurally unfair, but I have quashed the Arbitrktors'

orders in respect of remedy, using powers vested in this Court under Section 91 (4)I of the Act, I order the employer TRA to reinstate Malunguja in terms of Section 40 (1) (a) of the Act. , I Mr. Arbogast also faulted the issue of costs as being both contrary to law and procedure, and submitted that the order nullified the whole decisibn. Beginning with the issue of procedure, Counsel attacked the modality used by the Arbitrator to order payment of un- tax costs. He is correct in terms of Rule 31 (4) of the Laboun Institutions (Mediation I and Arbitration ·Guidelines) Rules, GN 67/2007 (the Guidelines). Since Mr. Lugaila conceded the irregularity and as I agree with them both, I need saylnothing further on that aspect of the decision save to quash it. Regarding the legal aspects of the order, I agree with Mr. Arb6gast's submission that under Tanzanian labour law and practice, costs are awarded where~ party or such party's representative acted in a "... frivolous and vexatious manner" - Section 88 (8) of the Act read together with Rule 31 of the Guidelines. Under that rule, such a mannbr is defined to include where a party behaves in a manner that does not show appropriate ~espect to the process or, if proceedings are instituted on insufficient grounds with intention of troubling the other I party. In this case, the Arbitrator did not show how the penalized party's action

was vexatious or frivolous. • I It appears to me that in defending that aspect of the award, Mrl Lugaila reasoned like ! the Arbitrator that, TRA had no justifiable reasons to terminate Malunguja, simply because one of its own witness, DW2 did not back up TRA's version of eventsl. I do not believe such interpretation to be proper- if it were so, parties who lose their case~ would invariably end . I 5 ( ' ·1 up paying costs-thereby ending the deliberate idistinction between! labour and other civil cases. In light of the above reasons, while I do not agree that the order for costs nullified the I whole decision, I find it to have been improperly rade and quash it. I I , To conclude, I find the application un-m1rited save on the Jders specified which I 1 have quashed; confirm the Arbitrator's decision that termination was unfair and order TRA 1 to reinstate Mr. Malunguja in terms of section ~0(1) (a) of the Ac\. It is so decided and ordered.

JUDGE I ' 16/12/20113 •I I Date: 16/12/2013 Coram: Hon. R.M. Rweyemamu, J. . Applicant: I For Applicant: Mr. Innocent Felix Aqvocate for Mr. Arbogast Advocate Respondent: Present in Person I For Respondent: Advocate absent CC: Kaale COURT: This matter is for judgment,l ORDER: Judgment delivered this 16/12/2013 in presence of parties indicated above. I :j Right Of Appeal Explained. I I R. M. Rwey II

JUDGE 16/12/2Q13 6