CIVIL APPEAL NO 311 OF 2023 WIBIRO MITWANGO KERENGE VERSUS THE TRUSTEES OF TANZANIA NATIONL PARKS

IN THE COURT OF APPEAL OF TANZANIA ATIRINGA (CORAM: KEREFU, 3.A., MGONYA, J.A And MLACHA. 3A.^ CIVIL APPEAL NO. 311 OF 2023 WIBIRO MITWANGO KERENGE .... ........ ................ APPELLANT VERSUS THE TRUSTEES OF TANZANIA NATIONAL PARKS.......... ...... RESPONDENT (Appeal from the Decision of the High Court of Tanzania, Labour Division at Iringa) (Mugeta, 3.) dated the 24th day of February, 2023 in Revision Application No. 6 of 2022 JUDGMENT OF THE COURT 2ffh & 27th March, 2025 MGONYA, 3.A.: The appellant, one WIBIRO MITWANGO KERENGE was employed by the respondent, The Trustees of the Tanzania National Parks as an Assistant Park Ranger. His employment was terminated on 14/12/2015. Believing that he was unlawfully terminated, he filed a complaint at the Commission for Mediation and Arbitration (the CMA), at Iringa vide Labour complaint No. CMA/IR/84/2015/02/2019. The Commission decided in favour of the appellant by ordering the respondent to compensate the appellant 12 months salaries, which was equivalent to Tshs. 16,954,704/= for unfair termination; particularly on respondent's failure to follow the proper procedure in terminating the appellant. It is in record, particularly in the CMA's award that, the Arbitrator held that, the reasons for termination of the respondent was reasonable and fair, serve for the procedure for termination of which was not proper; on the ground that the Chairman of the Disciplinary Committee was not supposed to decide on termination of the appellant's employment. The respondent was aggrieved by the CMA's award. As a result, she moved the matter to the High Court at Iringa vide Revision Application No. 6 of 2022 to revise and set aside the CMA award for being partly improperly procured, illogical and irrational and for containing an error material to the merits of the subject matter. At the High Court, the matter was revised and decided in favour of the respondent herein. The decision of the learned Judge overturned the CMA's award by declaring that, the organ with power to terminate the appellant's employment is the Disciplinary Committee. Further that, the Arbitrator of the Commission did not misapprehend the evidence, but misapplied the law and reached to a wrong conclusion that, the Disciplinary Committee had no power to terminate the appellant's employment. The above decision did not amuse the appellant. He therefore decided to knock the door of this Court having two grounds of appeal; The same can be paraphrased as: First, that the High Court Judge erred to equate the Disciplinary Committee formed under the Code of Good Practice holding that the Chairman's decision to terminate the appellant's employment was justified: Second, that the High Court Judge erred for failure to take into account the Code of Good Practice in violation of section 37 (4) of the Employment and Labour Relations Act, [Cap. 366 R. E. 2019]. When the appeal was called on for hearing, Mr. Evance Nzuwa, the learned advocate appeared for the appellant, whereas, the respondent was represented by Mr. Allan Shija assisted by Ms. Ansila Makiyao, both learned Senior State Attorneys. Submitting for the 1st ground of appeal, it was Mr. Nzuwa's submission that, the complaint in this ground, is laid down in pages 202 to 204 of the record of appeal, of which the learned High Court Judge in his judgment declared that, there was a misapplication of law by the CMA by relying its decision on the Code of Good Practice GN. No. 42 of 2007 ( the Code of Good Practice); while the governing law to terminate the appellant's employment was The National Parks Staff Regulations, 2011, GN. No. 337 of 30/9/2011, herein to be referred as "The Staff Regulations". Further, it was the High Court Judge's finding that, had the Chairperson of the Commission considered the correct law, he would have not concluded that, the Disciplinary Committee Chairman had no power to terminate the appellant's employment. It is from the above complaint that, the learned counsel referred us to regulation 3 of the Regulations, where he argued that, at the CMA, the Arbitrator was right to rule out that the Disciplinary Committee Chairman had no power to terminate the appellant's employment, as the right authority to do so is the respondent's Disciplinary Authority. According to Mr. Nzuwa, the Chairman of the Disciplinary Committee, after the conduct of the disciplinary hearing, he only had a mandate to recommend to the relevant and appropriate legal action to be taken by the employer, who is the Director General of the respondent. It was the learned counsel's further argument that, the appropriate law to be applied in termination of the appellant's employment was the Code of Good Practice. Submitting on the second ground of appeal, the learned counsel averred that, the High Court Judge erred in considering the revision before the court as an appeal in place of the revision. Responding to the 1st ground of appeal, it was Mr. Shija's assertion that, the High Court Judge was right to rule out that the Disciplinary Committee Chairman, had full mandate to terminate the appellant's employment. He said, the powers of the Chairman to terminate any respondent's employee after the hearing, is bestowed under regulation 77 of the respondent's Staff Regulations. He averred that, as the respondent has its own internal Staff Regulations which provides and regulates its Staff disciplinary affairs, therefore, it was right for the Disciplinary Committee Chairman to terminate the appellant's employment under regulation 77 of the Staff Regulations. In the event therefore, it was Mr. Shija's averment that, the High Court Judge decision which overturned the CMA's award cannot be faulted. Responding on the 2nd ground, it was the learned Senior State Attorney's contention that, the learned advocate failed to submit on the same, as he came up with absolutely a new ground which is not featured in the appellant's memorandum of appeal. He therefore prayed the Court to consider that, the 2nd ground was abandoned. He urged us to find the appeal is barren of merit. In his brief rejoinder, Mr. Nzuwa reiterated his submission in chief and prayed the Court to allow the appeal. Having heard and carefully considered submissions from the appellant and respondent counsel, on our part, we find the main issue for our determination is, whether the Chairman of the Disciplinary Committee had powers to terminate the appellant's employment. We are in agreement with both counsel that, in our jurisdiction, it is the Code of Good Practice that regulates the employees' disciplinary matters. However, the law does not prohibit employers to have their own interna! Staff Regulations in handfing their employees' disciplinary affairs and other matters in connection with their employment. These Regulations in essence, are crucial for establishing a fair, efficient, and ethical workplace by outlining fundamental conditions of service, staff rights, duties, and obligations, ensuring a structured and transparent environment. The Regulations are meant to ensure that, the employees are handled fairly in accordance to their employment environment. This is in line with regulation 11 (1) of the Code of Good Practice, The same provides: "AHemployers shall implement disciplinarypolicies and procedures that establish the standard of conduct required o f their employees." In the instant appeal, it is noted that, the respondent in dealing with the appellant's disciplinary proceedings, relied on its internal Staff Regulations to reach to the appellant's verdict. The only nagging issue before us, is whether the Chairman of the Disciplinary Committee had powers to terminate the appellant's employment. Regulation 3 of the respondent's Staff Regulations, defines the disciplinary authority as per the National Park Act, to be the Board of Trustees or a body, or organ or person empowered by the Board to take disciplinary measures. Equally, regulation 77 of the said Regulations, bestowed the disciplinary powers over the employees to the Trustees, although for practical implementation, the Trustees have delegated such powers to the Management. The same provides: "77 - Disciplinary authority over all employees shall be the Trustees but for practical implementation the trustees have delegated some o f such authority to the management in the following manner- (a) in respect o f holders o f posts whose salary scale is G.7 and above, the appointing and disciplinary authority shall be the Board o f Trustees; (b) The Managements Appointments and Disciplinary Committee is delegated power by the Board of Trustees to act on its behalf as the appointing and disciplinary authority in respect of all employees holding posts whose salary scale is G .l to G.6 and TAN 01 to TAN 05." [Emphasis Added]. We have combed the record and came across a letter dated 16/7/2012 as found at page 391 of the record of appeal, which is related to the appellant's promotion to the rank of Park Ranger III with salary scale TAN 02. That being the case, we join hands with the learned High Court Judge that, the appellant fails within the employees whose disciplinary authority is the Management's Appointment and Disciplinary Committee. In that case, the Chairman of the Committee had a full mandate in determining the appellant's disciplinary proceedings and ultimate decision. As the Chairman has been vested with those powers, we are of the firm view that, he was also mandated to terminate the appellant's employment. That being a fact, the above issue is therefore responded in the affirmative. In the event, we find this ground lacks merit. As the second ground was abandoned by the appellant's counsel, we are equally persuaded that, there is no need for us to determine the same. In the end, we find the appeal lacks merit and we do hereby dismiss it. DATED at IRINGA this 27th day of March, 2025. R. J. KEREFU JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 27th day of March, 2025 in the presence of the Mr. Desdery Kishiwa, holding brief for Mr. Evance Nzowa, learned counsel for the Appellant and Mr. Bryson Ngulo, learned State Attorney for the Respondent; is hereby certified as a true copy of the original. X E. FOVO DEPUTY REGISTRAR COURT OF APPEAL