CIVIL APPEAL NO 270 OF 2021 THOMAS OKELLO ATITO VS UNILEVER TANZANIA LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWARIJA, J.A.. MAIGE. 3.A. And KHAMIS. 3J U CIVIL APPEAL NO. 270 OF 2021 THOMAS OKELLO ATITO....... .......... ........... ........... ........... . APPELLANT VERSUS UNILEVER TANZANIA LIMITED ........ ............................... RESPONDENT (Appeal from the decision of the High Court of Tanzania, Labour Division, at Dar es salaam) (Nanqela, 3 .} dated the 16th day of October, 2020 in Land Revision No. 256 of 2019 JUDGMENT OF THE COURT 29th April & 15th May, 2024 MAIGE. J.A:. This appeal arises out of an action for unfair termination of employment. In essence, we are called upon to determine whether the Commission for Mediation and Arbitration (the CMA) as the tribunal of the first instance and the High Court, Labour Division (the Labour Court) as the revisionai court, were correct in their concurrent findings that the appellant committed an act of absence without leave for more than five days which in law amounts to repudiatory breach of the employment contract. Equally called upon to consider is whether an allegation of forgery which is criminal in nature attracts a standard of proof that which is above the balance of probabilities used in ordinary civil proceedings. The facts giving birth to this appeal is easy to narrate. The appellant is a Kenyan national who, upon procuring Class B Resident Permit and Class C Work Permit, was on 1st October, 2015, employed by the respondent as a Legal Counsel and Business Integrity Officer. On 8th March, 2018, he received a notice from the respondent to show cause why disciplinary actions should not be taken against him. Eventually, he appeared before a disciplinary committee formed at the instance of the respondent to defend himself against two counts namely; forgery and failure to follow laid down procedures on leave application process leading to overstatement of leave liability against the respondent. The disciplinary committee found him guilty of the both counts and recommended for termination of his services maintaining in effect that, the established misconduct amounted to breach of trust. In pursuit of the recommendation, the respondent terminated the appellant's services on 5th April, 2018 on the ground of misconduct. Aggrieved, the respondent commenced a referral to the CMA alleging that the termination of his services was unfair both substantially and procedurally. On whether there was fair reasons for termination of the appellant's services, the CMA held in relation to the count of forgery that the same was not proved because the committee held him guilty of breach of trust which is a violation of duty by trustee, executor or other persons in a fiduciary position while forgery being alteration of documents. On the second count, the CMA held that: "The law under section 31(3) o f the Employment and Labour Relations Act clearly provides that the employer will determine as when the leave is to be taken. The complainant ought to have followed proper procedure and not to decide to start his leave without permission from his employer,. " As to whether the termination was fair in terms of procedure, the CMA established that the same was not fair because the Committee refused to avail the appellant with the investigation report contrary to rule 13(1) and (5) of the Employment and Labour Relations (Code of Good Practice) GN 42 and on top of that, the appellant was denied the right to call some witnesses. Finally, the CMA held that, since the appellant had no reason for the first count and failed to follow the procedure, the respondent should be reinstated to his former position without loss of remuneration or else be paid 12 months' salary in lieu thereof in addition to wages due and other benefits. The appellant was not happy with the decision. She, therefore, initiated an application for revision to the Labour Court challenging the findings of the CMA on the count of forgery and procedural fairness as well as for its omission to take into account its positive finding on the second count. The Labour Court found the complaint in relation to the count of forgery devoid of any merit as the same was not proved to the standard above the balance of probabilities, it being a criminal offence. In reaching to such a conclusion, the Labour Court relied on the authorities in R.G. Patel v. Lai Makanji [1957] E.A. 314 and Omary Yusuf v. Rahma Ahmed Abdulkadir [1987] T.L.R. 169 in support of the proposition that; where an allegation of fraud or forgery arises in civil proceedings, the same has to be proved in a standard which is above the balance of probabilities. However, it found the complaint that the CMA did not take into consideration its positive finding on the second issue with merit. It, therefore, treated the appellant's non-compliance with leave requirement and more particularly, taking leave without approval as tantamount to absence without leave and since the absence was for a period of more than five days, it amounted to a serious offence in terms of rule 11 of the Code of Good Practice which justified dismissal on disciplinary ground. On that basis, the Labour Court granted the application and reversed the arbitral award. Being aggrieved by the decision, the appellant appealed to the Court faulting the decision of the Labour Court for: One, holding him liable of absence without leave while the charge against him was failure to follow laid down leave application procedure; Two, holding that the appellant could not challenge before the Court the finding of the CMA that he took leave without following the procedure; and Three, but in the alternative, holding that, the appellant's proceeding on leave without permission justified the termination. The second ground of appeal was, however, abandoned during hearing and we marked it so. In the same way as the appellant was aggrieved by the finding of the Labour Court on the first count, the respondent was aggrieved by the finding of the same court on the second count. Therefore, she lodged a cross appeal faulting the Labour Court in holding that the standard of proof in respect to such count was to be above the balance of probability. At the hearing of the appeal, the appellant had enjoyed the services of Mr. Jackstone Koyugi and Mr. Haroon Oyugi, both learned advocates. Ms. Samah Salah, also learned advocate, appeared for the respondent. In their oral arguments, the counsel from both sides fully adopted the substances of their written submissions with some clarifications. We express our sincere appreciation to them for their useful submissions which have added a considerable value in this decision. We shall in the course of addressing the grounds of appeal and cross appeal consider the same. It was submitted for the appellant that, since the allegation in the second count was failure to follow the laid down procedure on leave application, it was wrong in law for the Labour Court to hold him liable for the count of absence without leave. It was submitted further that, in holding the appellant liable for the count which he was not charged with before the disciplinary committee, the appellant was punished without being afforded the right to be heard. Further on the same point, it was submitted that, the offence of failure to follow leave procedure is not founded in the appellant's employment manual nor in the contract of service. In any event, it was submitted, the same was not one of the serious offences which would justify termination of service. We were thus urged to allow the appeal and reverse the decision of the Labour Court. In response, it was submitted, since the CMA held at page 400 of the record of appeal that proceeding on leave without following the procedure meant absence without permission, the Labour Court was justified in holding that the appellant was found guilty of absence without leave for a period of more than five days. It was submitted further that, as the appellant confirmed, during disciplinary hearing as per page 346 of the record of appeal that, he did not produce anything to show that his leave was accepted by his Line Manager, which means that the same was not approved, he cannot be heard complaining that he was denied the right to be heard. As we said above, the second count the appellant faced before the committee was failure to follow laid down procedures on leave application process leading to overstatement of leave liability against the respondent. Before the disciplinary committee, the respondent solely relied on the evidence of her director of legal services one Alison Kariuki. At the CMA, she testified as PW1. In accordance with her testimony appearing at page 82 of the record of appeal, an application for leave should be addressed to the line manager and human resource manager for approval as per clause 18.5.2. 3 of the Human Resource Manual. Clause 18.5. 2.2. of the Manual provides that leave entitlement shall be as per the country's labour laws. Clause 18.5.2.3 requires an application for leave to be addressed to the line manager and human resource manager for approval in accordance with leave roster. The provision further provides that; "staff proceeding on leave shall be expected to prepare a written handover in accordance with the handover procedure and guidance." Though the Labour Court based its decision on this point on absence without leave, neither the charge nor the evidence both at the committee and the CMA were clear as to which specific procedure was in breach. At page 82 of the record, PW1 told the committee as follows: Thomas proposed to go for 1 month leave from 1st to 3(fh December 2017, so he was going to be away for a full month and I thought that was a very long time as the business would suffer. I wrote to Thomas asking him to reconsider his leave and makes sure he prepares a written handover prior to him going to leave. I checked with Mufindi HRBP and the MD Ashton whether they had a discussion with Thomas and approved his leave, they indicated that they had not been consulted in agreeing to the leave days." It would appear from the above piece of evidence that, whether the appellant's request for leave was addressed to the alleged line manager is not in dispute, for it is express in the evidence of PW1 that she received the leave proposal and had a concern on the duration of the same. It is, 8 however, not clear if the complaint was that such request was not finally approved or that proper handover was not made. It has also to be noted that; in accordance with the employment manual, the line manager was not the only person empowered to approve the request. The human resource manager would as well approve. He was, however, not called as a witness at the committee. The evidence at the CMA did not address the issue too. As can be seen in the extract from the evidence of PW1 at the committee above, one of the reasons why she believed that the appellant did not follow the procedure for leave is because the Mufindi Human Resource Business Partner (HRBP) and the Managing Director (MD) did not approve the same. This would suggest that the said officers were also capable of approving the appellant's leave. Neither of them were called as witnesses. In our opinion, therefore, the Labour Court was wrong in holding the appellant liable of the offence of absence without leave, the count which was neither alleged in the charge sheet nor proved in evidence. The appeal, therefore, succeeds and it is hereby allowed. In the cross appeal, we are called upon to consider whether the Labour Court was correct in holding that, the standard of proof in labour disputes where fraud is alleged, is above that of the balance of 9 probabilities. The respective finding of the Labour Court which is faulted, appears at page 745 of the record of appeal where it was observed: "However, the above finding o f the Committee fed short o f stating whether it was Mr. Thomas Atito who perpetrated it or someone eise. Consequently, such evidence feii short o f being water tight in the manner envisaged in the cases o f Omari Yusuf v Rahma Ahmed Abduikadir (supra) or R.G. Patef v Lai Makanji (supra). Consequently, since there was no other evidence relied on other than the Permit Application Letter, dated January 2015 (Exhibit PW1- C), and whose procurement and authenticity was subjected to challenge (see page 5-7 o f Exh.PWl-F, (Hearing Form, the minutes o f the Disciplinary Proceedings), I find that the offence o f forgery was not fully established\..." Before reaching to such a conclusion, the Labour Court reproduced, at the same page of the record of appeal, the following finding of the committee: "the fact that Thomas failed to explain the anomalies and signatory used in the letter and failed to produce the true copy according to his claims, but being able to submit all other documents used in the process shows that there is forgery that has been done in the process. " 10 We understand that, the Labour Court is only challenged in holding that, proof of forgery was to be in a standard above the balance of probabilities. We note, however that, the Labour Court found that the count of forgery was not proved, because of absence of evidence to link the appellant with authorship of the document in question. We also note that the committee resolved the issue against the appellant based on the appellant's failure to produce some documents in support of his defence. In our view, since the burden of proof on fairness of termination of service is on the employer, the finding of the Labour Court that the alleged forgery was not proved, would remain correct even if the standard of proof was on the balance of probabilities. The reason being that, having failed to adduce evidence linking the appellant with the forgery of the document, the weakness of his defence evidence would not be used in proof of the same as that would amount to shifting the burden of proof to the employee which is against the law. On that account and having held that the alleged forgery was not proved on the balance of probabilities either, we find it unnecessary to consider whether the standard of proof in allegation of fraud in labour dispute is or not above that of the balance of probabilities. We think, the need for deciding the cross appeal does not, in the particular circumstances of this case arise. Perhaps, the issue may be determined when an opportune situation calling for a decisive answer occurs. In the final result and for the foregoing reasons, therefore, the appellant's appeal succeeds and it is allowed to the extent of the first ground of appeal. DATED at DAR ES SALAAM this 14th day of May, 2024 A. G. MWARIJA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 15thday of May, 2024 in the presence of Mr. Haron Oyugi, learned counsel for the Applicant and Ms. Fatuma Mgunya, learned counsel for the Respondent; is hereby certified as a true copy of the original. i/V ' '\ \ ;j 0. H. KINGWELE ij DEPUTY REGISTRAR / COURT OF APPEAI vr ----------------------------- 12