REV NO 26550 OF 2024 VODACOM TANZANIA LIMITED COMPANY VRS FRANK BOMAN 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM LABOUR REVISION APPLICATION NO. 26550 OF 2024 CASE REFERENCE NO. 202410221000026550 BETWEEN VODACOM TANZANIA LIMITED COM PANY.............................. APPLICANT VERSUS FRANK B O M A N .................................................................. RESPONDENT JUDGEMENT Date of last Order: 02/ 12/2024 Date of Judgement: 19/ 12/2024 MLYAMBINA- J. The Applicant herein has moved this Court under the provisions of Section 91(l)(a) and (2) of the Employment and Labour Relations Act [Cap. 366 RE. 2019] (herein ELRA), Rules 24(1), 24(2) (a), (b), (c), (d), (e) and (f), 24 (a), (b), (c) and (d) and 28(1) (c), (d) and (e) of the Labour Court Rules GN No. 106 o f 2007 (herein GN. No. 106 o f 2007) seeking, among others, the orders that this Court be pleased to call for records and examine the proceedings of the Commission for Mediation and Arbitration at Dar es Salaam (hereafter referred as CMA) in Labour Dispute No. CMA/DSM/KIN/224/2023/154/2023 with a view to satisfy itself as to the legality, propriety, logic and correctness thereof and to revise and set aside the CMA Award delivered on 25th September 2024 by Honourable Wilbard G.M, Arbitrator. The dispute emanates from the following background; the Respondent was employed by the Applicant in 2003 in the position of Manager Payroll, the position he served until 27th March 2023, when his employment contract was terminated on grounds of misconduct. While in the course of employment, on 21=t December 2021, the Respondent went on annual leave that was to end on 5th January 2022 and he was required to report back to the office on 6th January 2022, but he did not return to the workstation. On 28th March 2022, through an email, the Respondent through his Line Manager informed the Applicant during his leave he flew to Canada to see his family and found his wife sick and decided to stay in Canada and work remotely as per the Applicant's Policy. The Respondent requested special approval to work remotely until 30th August 2022 and continue taking care of his allegedly sick wife. It is alleged that the Line Manager requested the Respondent to share medical reports substantiating his wife's sickness but to no avail. On 3rd September 2022, the Human Resources Business Partner directed the Respondent to report to his working station. On 5th September 2022, again he did not comply with the directives. On the same date of 5th September 2022, the Respondent wrote an email informing the Human Resources Business Partner that his wife condition had improved, and he would continue to remain in Canada to 2 undergo treatment. On the 22nd September 2022 the Line Manager wrote an email to the Respondent requiring him to return to his workplace on or before 3rd October 2022, again he did not return to his working station. The Respondent's act of not returning to the workstation necessitated the Applicant to initiate a disciplinary process against the Respondent by charging him with absenteeism and insubordination. Upon the Respondent being issued by the Applicant's letter to show cause, his response was unsatisfactory. Through the letter dated 16th February 2023, the Respondent was invited to attend the disciplinary hearing on 21st February 2023 that was conducted via video conference due to his absence in the country, and he was notified of his right to call a witness and present all evidence to support his case. After hearing, the Respondent was found guilty of the disciplinary charges levelled against him. He was afforded the opportunity to appeal to the higher authority within the Company but for the reasons best known to himself he did not do so. Consequently, on 27th March 2023, the Respondent was terminated from employment and paid terminal benefits as per the law. Being aggrieved by the Applicant's decision to terminate his employment, the Respondent referred the matter to the CMA, where he claimed to have been unfairly terminated from employment. The CMA heard and determined the dispute on 25th 3 September 2024. In its Award, the CMA held that the Respondent was unfairly terminated and ordered the Applicant to reinstate the Respondent without loss of eighteen (18) month salaries at the tune of TZS 133,304,400. Unhappy with the CMA's decision, the Applicant filed this Application for Revision which is premised on the following grounds: i. That, the Arbitrator erred in law and fact in holding that the termination was substantively unfair while the evidence by the Applicant proved that the Respondent was absent from the workstation for a long period without the Applicant's permission. ii. That, the Arbitrator erred in law and fact in holding that termination was unlawful because the Applicant has no policy imposing termination on absenteeism while the disciplinary offence committed by the Respondent is punishable by the law and the Applicant's policy by necessary implication does not allow absenteeism of employees without permission. Additionally, the Arbitrator erred in not considering breaches of Applicant's Leave Benefit Policy, employee 's contract of employment, and Remote Ways of Working Policy, as referred in the charge. iii. That, the Arbitrator erred in law and fact in failure to hold that the Respondent committed an act of insubordination and, therefore, his termination was substantively fair under the law. iv. That, the Arbitrator erred in law and in fact in failure to ascertain that employee's change of duty station without prior agreement with employer amounting to a unilateral change of the terms of his employment contract contrary to the terms of employment contract and the law. v. That, the Arbitrator erred in law and fact for failing to analyse properly the evidence submitted which proved that the Respondent committed acts of misconduct contrary to the Company's Policy and the law. vi. That, the Arbitrator erred in law and fact in holding that the termination was procedurally unfair despite of the clear evidence that termination procedures were adhered to. vii. That, the Arbitrator erred in law and fact in reinstating the Respondent without loss of remuneration while the evidence by the Applicant proved that he was fairly terminated and paid the terminal benefits as per the law. The application was argued by way of written submissions. Arguing for the application, the Applicant enjoyed the services of Mr. Juvenalis Ngowi, learned Counsel. On the other side, responding to the application, the Respondent was represented by Mr. Antipas Lakamu. I appreciate the comprehensive submissions of the parties which will be considered in the decision herein. However, for avoidance of unnecessarily making this decision long, the submissions will be summarized. To begin with the first and fourth grounds which were jointly argued, Counsel Ngowi faulted the Arbitrator's findings that the Respondent's termination was unfair substantively. As clearly captured by the Arbitrator, the Respondent was charged and found guilty of the three misconducts namely; (i) working remotely outside the country without permission for more than 20 days contrary to Vodacom Remote Ways of Working Policy; (ii) Absence from work for more than five working days without permission or acceptable reasons, (ii) Gross insubordination contrary to the terms of his employment contract, Applicant's Policy, and the Employment and Labour Relations (Code of Good Practice) GN.No. 42 o f2007 (herein GN No. 42 o f2007). To start with the first misconduct, it was Counsel Ngowi's submission that DW1 testified that the Respondent without notice or permission from the Applicant did not return to his workstation after leave. He stayed until 28th March 2022 when he wrote an email to his Line Manager informing him that upon going on leave, he flew to Canada to visit his family and upon expiry of his leave on 5th January 2022, he decided to continue working from home abroad as the Applicant's Policy allowed him to work from home out of the country for one month. He also informed him for his failure to return as he was providing care for his wife who got an accident. That, no proof was tendered to substantiate the Respondent's claim. It was Counsel Ngowi's strong submission that the Respondent did not seek permission to stay in Canada. To substantiate his submission, he made reference to exhibit V2. He added that the Respondent was reminded to submit proof of his wife's sickness several times but in vain as reflected in exhibit V5 and V6. In response, Counsel Lakamu submitted that the Respondent performed all of his responsibilities while in Canada. He stated that, via exhibit V2, the Applicant knew the whereabouts of the Respondent. That, the request to work while in Canada was approved by the Applicant via email dated 03/09/2022, exhibit V7 as well as exhibit V6. He was of the view that the Applicant is barred by the doctrine of estoppel from charging the Respondent for absenteeism. In alternative, Counsel Lakamu argued that being also bound by the doctrine of laches, it bars the Applicant from charging the Respondent with the alleged misconduct after a reasonable time has lapsed. Counsel Lakamu elaborated at length the doctrine of laches. On the allegation of submission of proof of sickness, exhibit V6 is the proof of sickness needed thus, permission to work from home was requested and granted. It was added that the investigation report, exhibit V12 acknowledge receipt of medical report. Having considered the submissions of both parties, I will begin with the first misconduct, working remotely outside the country without permission for more than 20 days contrary to Vodacom Remote Ways of Working Policy. Exhibit V3, at clause 4.5 provides as hereunder: 4.5 Working from outside of our country employment There are two situations where employee can work outside of country of employment (a) A Vodacom approved Business Trip (covered by our Travel and expense policies) (b) A personal trip where employee wish to work from outside of the country of employment. In this case, employee must have received permission in advance of travel and meet the following conditions: 4.5.1 Conditions for working outside of your of employment on a personal trip; a) The maximum time employee can spend working outside of your country of employment in one calendar year is 20 working days. 20 working days is an absolute limit and there is no line manager discretion in the number of days. Days cannot be carried over from year to year and have no monetary value. The above clause is clear, an employee wishing to work from outside of the country must first seek approval. Which means, before travelling, the employee must ask for permission and be granted. Second, the employee should not exceed 20 days of working outside of the country. In the case at hand, there is no dispute that the Respondent went to visit his wife abroad, Canada and informed the Applicant while he was already abroad. The email dated 28/03/2022 (exhibit V2) is when the Respondent firstly informed his supervisor of his whereabouts. I hereunder quote part of the email for easy of reference: Hi Robin, I started my annual leave on 21st Dec and flew to Canada to visit my family my annual leave was expired on 5th Jan and I continued to work from home while I'm in abroad, during this period CVID situation was very bad and caused flight to be cancelled. The policy allowed to work from home out of the country for one month which I suppose to come TZ on 5th Feb, I could not do so because of provide care to my wife got accident from her work she was excused to go to work for six months she develop severe lower back pain (Disk disease) I'm write this email to request special approval for six month which will end 30th Aug 2022. During this period I promised to deriver my work as per the expectations. From the wording of the above email, it is apparent that the Respondent after his annual leave expired, continued to work from Canada without permission. As he said, his annual leave expired on 05/02/2022 but he wrote the email on 28/03/2022. Thus, he informed his supervisor of his whereabouts 52 days after his leave expired. As per the policy quoted herein, it is crystal clear that the Respondent violated the same. Again, after the requested three months were granted as substantiated by the email dated 03/09/2022 (exhibit V7), the Respondent's supervisor directly stated that the leave was granted. However, after expiry of the granted period, the Respondent did not return to work. He continued to stay in Canada and came up with another of medical treatment for himself. Thus, the policy was violated, hence, the first misconduct was proved. The second misconduct will be determined in the second ground and in the third ground. On the second ground, the Applicant faulted the holding of the Arbitrator that termination was unlawful because the Applicant has no 10 policy imposing termination on absenteeism while the disciplinary offence committed by the Respondent is punishable by the law and the Applicant's policy by necessary implication does not allow absenteeism of employees without permission. I find this ground should not detain the Court. It is a trite law that parties to employment contract are governed by the terms of the contract as well as the labour laws. It is a settled position that absence from work without permission or without acceptable reason for more than five working days is a ground for termination of employment as stipulated under Guideline 9 (1) o f the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedure, GN. No. 42/2007. Therefore, whether it was provided in the Applicant's regulations or not, absenteeism is a misconduct which if proved, may lead to termination. In the matter at hand, the Applicant was charged for absenteeism for more than five working days. It is my view that the period from 28/03/2022 to 30/08/2022 should be excluded in the charge. As stated in the first ground, the Respondent sought for permission and was granted the same. However, even after the granted days expired, the Respondent continued to stay in Canada without permission from 01/09/2022 until when he was terminated on 27/03/2023. It was the Arbitrator's findings that the Respondent stayed for a justifiable reason, thus the absenteeism was not proved. It is my view that much as the Applicant knew about the Respondent's sickness, the Respondent was not supposed to make the decision on his own to continue with his treatment without obtaining permission from his employer. In employment contract, just like any other contracts, parties have to abide to the terms agreed upon. If the employer set certain rules which are agreed upon, they must be followed and honoured by all employees, otherwise, the rules will be meaningless. Furthermore, if the Respondent as an employee will be left to decide on his own affair without the employer's permission, it will attract disobediences in the work place which will definitely hinger production. Thus, absenteeism was also proved in this case. Coming to ground number three, on this ground the Applicant faulted the Arbitrator for failure to hold that the Respondent committed an act of insubordination, and therefore his termination was substantively fair under the law. Counsel Ngowi submitted that; as proved through Exhibit V5, the Respondent's Line Manager directed him to send proof of hospital report showing that his wife was sick for employer to recommend for special approval of working remotely. The Respondent did not reply until 13th May 2022 when he was forced by the Human Resource Manager in which he sent a document called Walk-In Clinic (Exhibit V6) that does not show his wife was sick. No other document was submitted and the Respondent did not report back to work. As per exhibit V7, the Respondent was ordered by his supervisor to return back to work after his permission was granted until 30/08/2022. The order directed that the Respondent should report back to the office on 05/09/2022. The Respondent replied that his wife's condition was getting better but he began treatment for himself. The Applicant refused the Respondent's request and reminded him to report back to work as per exhibit V8, the Respondent was ordered to report back to work on 03/10/2022. As stated herein earlier, since there is no permission on record for the Respondent to proceed with his treatment in Canada, his failure to report back to work as ordered amounts to insubordination. Therefore, the Respondent's allegation that he submitted medical reports to prove his treatment is of no value. The main point for consideration is that the Respondent was not supposed to stay in Canada without permission from his employer. On the basis of the above analysis, unlike the Arbitrator's findings that the termination was unfair, it is my findings that all misconducts were proved in the case at hand. The relationship in employment matters is conducted in subordination form. The employer is always the boss and the employee has to obey the order so long as it is a lawful order. In the matter at hand, since the orders were not obeyed, 13 it was justifiable for the Applicant to make the decision that the Respondent was no longer fit to be his employee. Coming to the sixth ground relating to termination procedures, it was the Arbitrator's findings that no evidence was presented to prove the misconducts in question. I went through the recorded disciplinary hearing (exhibit V16), in each and every misconduct the Respondent did not wish to state anything. He pleaded the Chairman to proceed with the decision by considering the evidence tabled before her. He even specifically mentioned the investigation report that everything concerning this case is stated therein. Thus, it was upon the Chairman to make the decision. It is my view that the Arbitrator misinterpreted the provision of Rule 13(6) o f GN. 42 o f 2007. The provision is applicable when an employee unreasonable refuses to attend the disciplinary hearing which is not the case at hand. The Respondent herein, attended the disciplinary hearing which was virtually conducted and refused to defend himself for the misconduct tabled against him. Thus, the Rule cannot apply. Observing the matter at hand, all the termination procedures as provided under Rule 13 (supra) were followed. The Respondent was afforded the right to be heard, and he consented for all the evidence tabled by the employer to be used against him. As for the Chairman's request to be sent with the documents, the same was necessary to hold her go through with them and make a justifiable decision as she clearly stated during the disciplinary hearing. Thus, in my view, no procedure was violated whatsoever. Turning to the last ground, since it is found that the termination was fair both substantively and procedurally, I join hands with the Applicant's submission that the award of reinstatement is not justifiable in the case at hand. In the end result, I find the application at hand has merit. The CMA's award is hereby quashed and set aside. JUDGE 19/12/2024 Judgement pronounced and dated 19th December, 2024 in the presence of Counsel Naumi Mzee for the Applicant and Antipas Lakamu for the Respondent. Right of Appeal fully explained. 19/12/2024