THE REGISTED TRUSTEE OF ELIZABETH GASER PEDIATRIC AIDS FOUNDATION VS SELEMANI MIGETO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY ATTABORA LABOUR REVISION NO. 25882 OF 2023 (Originating from the decision of the CMA for Tabora in Labour Dispute No. CMA/TAB/TBR-MJN/02/2023/04) THE REGISTERED TRUSTEES OF ELIZABETH GASER PEDIATRIC AIDS FOUNDATION ....................................... APPLICANT VERSUS SELEMANI MIGETO..... ................................................. RESPONDENT RULING Date of Last Order: 18/09/2024 Date ofRuling: 24/09/2024 KA DI LU, J, A brief background to this case is that the applicant employed the respondent in the capacity of a Technical Officer - TB Services for a fixed- term contract of Twenty-two (22) months from 01/12/2021 to 30/09/2023 (Exhibit Pl). He enjoyed his employment until 01/02/2023 when he was terminated on gross misconduct caused by dishonesty and collusion with a fellow employee to obtain a kickback from a vendor (Exhibit P5). He was not satisfied with the reason for and procedure used in his termination. He successfully challenged it before the CMA and was compensated with nine (9) months' salary to the tune of TZS. 34,183,243.17/= remaining in his fixed-term contract. The decision aggrieved the applicant. She filed in this court the present application seeking the reversal of the CMA award on the ground that it is unlawful, illogical, or irrational, and it was procured improperly. During the hearing of this application, the applicant was represented by Ms. Rosemary i Makory, Advocate whereas Mr. Saikon Justin, also the learned Counsel represented the respondent. Ms. Rosemary Makory submitted that the award was improperly procured, and is illogical. To her, the CMA's finding that the applicant breached the employment contract was illegal because the respondent claimed that he was terminated from the employment unlawfully. The learned Advocate argued that the respondent was found guilty of misconduct after all disciplinary procedures were complied with so, he had a duty to prove that the applicant breached a contract of employment. Ms. Rosemary supported her contention with the case of Mbeya Water Authority v. Lillian Sifael, Civil Appeal No. 300 of 2023, Court of Appeal at Mbeya. She argued that the respondent did not show how the applicant breached the employment contract in the case at hand, but the CM A decided the case in his favour. According to Advocate Rosemary, the legality and correctness of the CMA were based on Rule 10 of G.N. No. 42 of 2007. The CMA award shows that the respondent had no duty to prove unfair termination. The termination was due to misconduct which resulted in a breach of trust. The concern was not a breach of contract as alleged by the respondent. It was the termination of employment. The CMA also relied on Section 110 of the Evidence Act wrongly. Ms. Rosemary explained that breach of contract and termination of employment contract are different causes of action with distinct elements to prove. According to her, the CMA misdirected itself in applying Section 110 of the Evidence Act and Section 39 of the ELRA at the same time. Rule 13 of 2 G.N. No. 42 of 2007 was also not applicable in the case at hand since the respondent was given 48 hours to appear to the disciplinary committee to present his defence. The learned Counsel concluded that the CMA Wrongly found that the respondent was not given sufficient time to prepare for his defence. The CMA failed to interpret the disciplinary offence which the respondent was charged with. He was charged with dishonesty as misconduct leading to a breach of trust, not theft. The CMA's order that the respondent be compensated was improper because the respondent did not prove a breach of employment contract. Responding to the applicant's submissions, Mr. Saikon argued that this court is required to be bound by CMA Form No. 1 which initiated the dispute at the CMA. The respondent alleged breach of employment contract and unlawful termination of employment. He cited the case of Stella Lymo v. CFAO Motors (T) Ltd, Civil Appeal No. 378 of 2019, Court of Appeal at Dar es Salaam, to support his stance. He asserted that breach of employment contract and unfair termination of employment are the same and cannot be separated. Mr. Saikon stated that in the case at hand, the applicant alleges that the award was improperly procured, the award was unlawful and illogical, but the applicant has not pointed out the alleged impropriety, illogical, and unlawfulness. According to the learned Advocate, the applicant indeed breached the employment contract nine months before its expiry. The respondent proved the breach by tendering exhibits in the CMA. The termination was unlawful because the respondent did not breach any term of his employment contract but the applicant did. 3 Rule 8 of G.N. No. 42 of 2007 prohibits the termination of the employment contract of a fixed term before the expiry of time unless the employee breaches a term of the employment contract. The alleged collusion was not proved as the respondent was not part of the procurement process which led to getting the tenderer who transported his luggage from Arusha to Tabora. In that situation, the applicant had a factual burden of proving that the respondent colluded with the alleged employees to commit the alleged misconduct. The applicant's rules provide for the procedure for termination of employment. Any termination of employment for disciplinary reasons needed written approval of the Deputy President of Human Resources and Administration of the applicant, but the respondent's letter of termination was signed by the Country Director. The respondent was given 48 hours to travel from Tabora to Dar es Salaam, prepare and present his defence before the disciplinary committee. Mr. Saikon concluded that there was no just cause to terminate the respondent's employment contract. The CM A was justified in deciding the case the way it did. He referred to the case of Serenity on the Lake Ltdv. Dorcus Martin Nyanda, Civil Appeal No. 33 of 2018, Court of Appeal at Mwanza in which it was held that the remedy for termination of an employment contract before its expiry is to compensate the employee for the remaining employment period. Rejoining, Ms. Rosemary reiterated that there was a valid reason for termination as shown in the termination letter. She added that procedures for termination of employment were complied with, the facts which were not disputed in the CMA. To her, the CMA was unjustified in shifting the burden 4 of proving a breach of contract to the applicant. Further, the approval of the respondent's termination is different from signing the termination letter. The applicant did not tender a written approval of the termination in the CMA but it was issued by the Deputy President. Having summarized the background, submissions, and arguments by both sides, I am now in a position to determine the grounds of application before me. The issue for determination is whether the applicant had a valid reason to terminate the respondent before the expiry of a fixed-term contract and whether she employed proper procedures in doing so. Exhibit Pl displays that the applicant employed the respondent as a Technical Officer - TB Services. The contract was to commence on 01/12/2021 and come to an end on 30/09/2023. Before the expiry of the contractual period, the respondent was terminated from employment on the ground of gross misconduct caused by dishonesty and collusion with a fellow employee to obtain a kickback from a vendor. In the case of St. Joseph Kotping Secondary Schoo! v, Alvera Kashushura, Civil Appeal No. 377 of 2021, the Court of Appeal at Bukoba stated that under our laws, a fixed term contract of service cannot be prematurely terminated Without assigning reasons. This is because the conditions under Section 37 of the ELRA are mandatory and therefore implicit in all employment contracts. Section 37 of the ELRA is only inapplicable to the contracts whose terms are shorter than 6 months. Under the ELRA, misconduct, incapacity, and operational requirements are recognized as valid reasons for the 5. termination of any employment contract. Rule 8 (2) (a) of the Employment and Labour Relations (Code of Good Practice) G.N. No. 42 of 2007 provides: "Where an employer has employed an employee on a fixed-term contract, the employer may only terminate the contract before the expiry of the contract period if the employee materially breaches the contract." In the instant application, clause 18.3.2 of the respondent's employment contract (Exhibit Pl) makes it clear that the applicant would terminate the respondent in the event he fails to comply with the terms of the employment contract or the Foundation's regulations. The latter of termination (Exhibit P5) shows that the respondent's employment was terminated due to gross misconduct to wit, dishonesty, and collusion with a fellow employee to obtain a kickback from a vendor. The records indicate that in June 2022, the respondent was transferred from Arusha to Tabora. The applicant paid Silvia Mtalo (the Vendor) the costs for transporting the respondent's luggage from Arusha to Tabora. The respondent allegedly colluded with the Vendor and Arusha Senior Finance Manager (Ronald Maro) and obtained TZS. 1,650,000/= through his CRDB account as part of the expenses for relocating him from Arusha to Tabora. He denied that the said money was associated with his relocation. He testified that the TZS. 1,650,000/= was part of the proceeds of cattle business he was conducting with the Senior Finance Manager, Ronald Maro. On cross-examination, the respondent failed to give any details about the alleged cattle business including when it started, the number of cattle that were sold, and earned him TZS. 1,650,000/=, the date of the purported sale of cattle, and the place where the said cattle were sold. Generally, he 6 failed to justify that TZS. 1,650,000/= credited to his bank account by the applicants Senior Finance Manager was not a kickback from the Vendor. He also denied this allegation evasively in his written defence to the disciplinary charge (Exhibit P3), which is why the Disciplinary Committee found him guilty of misconduct. Based on these records, this court finds that the applicant had a valid reason to terminate the employment contract of the respondent after the latter breached the agreement by engaging in gross misconduct. The other complaint by the respondent is that the applicant flouted the procedures for terminating him. He alleges that the disciplinary procedures were not complied with as he was afforded a short time to prepare for his defence and that he was not terminated by the Deputy President of the Foundation as required by the applicant's rules. Exhibit P2 displays that the respondent was served with a charge indicating the complained misconduct on 08/12/2022. He was given five (5) days to present his defence in writing which he did via Exhibit P4. It is undisputed that on 14/12/2022, the respondent was issued with notice to attend a disciplinary hearing at Dar es Salaam (Exhibit P4). The hearing was conducted during the evening on 15/12/2022. Under Rule 1.3 (3) of G.N. No. 42 of 2007, the employee is entitled to a reasonable time to prepare for the hearing. In Ade/a Damian Msanya v. Tanzania Electricity Supply Co. Ltd, Civil Appeal No. 305 of 2019, the Court of Appeal at Arusha stated that what constitutes a reasonable time depends on the circumstances and the complexity of the case, but it should not normally be less than 48 hours. 7 In the instant matter, Exhibit P4 indicates that the respondent was given an opportunity to alternative date of the disciplinary meeting if he thought he could not attend the hearing as scheduled. The respondent did not intimate that the time was too short for him to prepare for his defence. He managed to present his written defence on time and he attended the disciplinary hearing as planned without any complaint. In the circumstances, I find the concern about short notice as an afterthought which is not permissible in law. As for the approval of the respondents termination, I find this claim baseless because it is not in dispute that the respondent was terminated from employment. The applicant elaborated that the Foundation rules provide for a requirement for written approval of the Vice President, Human Resources, and Administration when the employee is terminated for disciplinary reasons. The said approval is distinct from the signing of the termination letter. The respondent alleges that the letter was wrongly signed by the Country Director instead of the Vice President hence, a violation of the applicant's regulations. Since there is no contention between the parties whether or not the termination was approved, the complaint about who signed the termination letter becomes misconceived. In the upshot, the present application is merited. It is the finding of this court that the respondent's termination was fair both substantively and procedurally. The CMA award of 9 months' salary to the respondent is legally unjustified. Accordingly, the CMA's award is hereby revised and set aside. This being a labour matter, I make no order as to costs. 8 It is so ordered. The ruling delivered in chamber on the 24th day of September, 2024 in the presence of Mr. Frank Kavishe, holding brief for Ms. Rosemary Makory, Advocate for the applicant, and Mr. Saikon Justin, Counsel for the respondent. JUDGE 24/09/2024 9