yusra jagna vs kuku food tanzania limited 2022 tzhcld 681 30 june 2022

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION NO. 108 OF 2021

YUSRA JAGNA APPLICANT

VERSUS

KU KU FOOD TANZANIA LIMITED RESPONDENT (From the decision of the Commission for Mediatiomand Arbitration at Ilala) (Chuwa; Arbitrator) Dated 26th August 202?%, REF: CMA/DSM/II

JUDGEMENT 10th May & 30th June 2022 Rwizile J W This appl^ation^ema^gates from the decision of the Commission for Mediatiorr:%a^a*f^rbitration (CMA) in Labour Dispute No. CMA/DS^^?1046/18/461. This Court has been asked to call for the records of the CMA so as to revise the proceedings and the award Brief facts to this case can be stated that; the applicant was the employee of the respondent from 2013 to 2018 when she was terminated for allegations of gross misconduct. Being aggrieved by termination, she filed a labour dispute at CMA, claiming for terminal benefits due to unfair termination as the following; payment of unpaid one month salary, notice of termination, unpaid leave cycle, severance allowance and twelve months salary compensation. After a hearing, she was awarded a notice, 23 days salary and unpaid leave. Other claims were dismissed for the reason that she waffairty^erminated. She was again aggrieved and filed Revision No^g99 df2(^0 which was struck out on 09th March, 2021 for technical^reasonsglnd was granted leave of 14 days to refile. The said«.^h^^^^ rise to resent application. IT J| The application was supposed byule applicant's affidavit which was opposed by filing of th^a^feSWfidavit sworn by Marco Frank Mkumbo, Principal Officer offthe respondent. Grounds for revision are: - i. The^fton^^rbitrator erred in law and facts for holding that the termination were

justified while the entire body of evidence adduced by the respondent was completely different from what Is stated in the termination letter as reasons for termination. ii. The Hon. Arbitrator erred in law when she deliberately declined to consider the provision of Rule 12(2), (3) (a, b,c,d,e and f) and (4) 2 (a and b) of the Employment and Labour Relations (Code of Good Practice) G.N. No. 42 of2007. Hi. The Hon. Arbitrator erred in law and facts by retying on mere words that the applicant committed the alleged misconduct without taking trouble to order production of the CCTV footage that would otherwise show the applicant committing mt^ondtfqt as asserted by the respondent's witness. iv. The Hon. Arbitrator erred in law when s&refiedpn the answers of the applicant during cross examinatibh^oniy to hold that the applicant had admitted to^^ c^^^^^^the records do not show anywhere that the appiicantjiad Admitted to the charges as stated in the termination letter^ k The Hon. Arbitratoriprred in law by holding that the procedures for termfnadn^^th^^p/icant were fair while there is nowhere in the CMAsr^cord-showing the respondent complied with the Guidelines iq^D^ipiinary, Incapacity and Incompatibility Policy and Procedure as well as Part I of the Schedule to G.N. No. 42 of2007. The application was heard by way of written submissions. The applicant was represented by George Kawemba

Mwiga, learned Advocate whereas 3 the respondent was represented by Kennedy Steven Sangawe, learned Advocate. Mr. Mwiga submitted on the issue of reasons for termination that what was testified by Dwl and Dw2 was different from the reasons stated in the termination letter. He stated further that the reasons for termination presented by the respondent was basing on failure^to^compiy with the Standard Operating Procedure policy (SOP), i^iEh is exhibit D2 and conducting personal business at the place q^l^^Wthen stated that Dwl and Dw2 did not show which sw^^x|i§y in the SOP was not complied by the applicant. tF V j in the termination letter were not proved and never existed at all. On fail^reWobserve the provisions of the law, rule 12(1), (3) (a)- (f) and (4) of G.N. No. 42 of 2007, it was submitted that what was proved at the trial was contrary to what formed basis for termination. He argued that Dwl, and Dw2 testified on something different from the reasons for termination as stated in the termination letter. He stated further that there 4 was no proof of a serious misconduct to render the work place intolerable as per rule 12(2) of the rules. Mr. Mwiga continued to submit that, the respondent did no prove gross dishonest as under rule 12(3)(a), wilful damage to property as per rule 12(3)(b), wilful endangering the safety of others as under rule 13(c), gross negligence which is

as per rule 12(3)(d), assatfffon a co%mpToyee, supplier, customer or a member of the family afitd^ny person associated with in accordance with rule 12(3)(e)) and g,rpss’insubo.rdination contrary to rule 12(3)(f) of G.N. No.42 of 2007. In his view, the arbitrator failedjtp comply^ith rule 12(l)(a) and (b)(i) - (v) and also failed to consiaer thatW=! alleged misconduct though not proved could not wari^r^^^hation as per rule 12(4) (a) and (b) of the rules. He stated thc^th^ppncant was not seen dealing with the customer or do personal business at work place. It was also stated that at disciblinaryCh^rinq, she denied charges placed against her. The proceeding’s, however was turned on the applicant giving a meal package to the security guard. Arguing further, he said, that the arbitrator's decision based on mere words while Dw2 stated that he saw the applicant in a CCTV video footage giving a meal without a receipt. He said, the CCTV video footage was not 5 tendered as evidence since it was the only evidence which led to termination. In his view, failure by the respondent to tender the only proof, a CCTV video footage renders the testimony baseless. The award, the learned counsel held the view, was founded on mere words and beliefs. He supported his submission by citing the case of Christina Thomas v Joyce Justo Shimbo PC. Civil Appeal alpage 7-8 (unreported) in which the High Court

faulted the triaFCourt: findings which did not consider proper tendering of the^flectrogic evidence. On the issue of admission of the chargesjfe^ubmitted that the applicant did not admit the charges during crossvexapiination. He stated that the A applicant only admitted to give a meg^package to the security guard after being requested to dojscFby her colleague, one Christina which was not among the charges preferred’against her. On fairness^Rproredure, Mr. Mwiga commented that Guideline 9 of the Guidelines ferfDisciplinary, Incapacity and Incompatibility Policy and Procedurefread together with Parti of the Schedule to G.N No. 42 of 2007, was not followed. He stated, that the purported hearing was not supported by a complete form filled by the manager. In his view, it was impossible to the CMA to ascertain whether the purported hearing was indeed conducted by the people required to constitute the coram. He 6 stated further that the arbitrator did not substantiate as to how rule 13(1)- (13) of G.N. No. 42 of 2007 was observed. He continued to argue that the applicant was summoned to attend a hearing without due procedure such as availing her with enough time to prepare her defence. He stated further that the arbitrator failed to consider the fact that the applicant was suspended ’l^roreta^ formally charged. Furthermore, he submitted that the procedflre for termination has to

be fair but this was not proved. To sypporFhisJubmission, he cited the case of Edwin Kasena v Enza Zadqn AfricaLtd, Labour Revision No. 70 of 2017 at page 5 which quoted the Hign Court's holding in NBC Co. Ltd Mwanza v Justa B. Kyaruzi. Eabour Revision No. 79 of 2009 and in the case of Mtunga v Tanesco, Labour Revision No. 6 of 2015. He^^^^s^d this court to grant the application. In r^i|v MrCslngawe submitted that, it was testified that the applicant was terminated for gross misconduct which is failure to comply with SOP (exhibit D2). He stated further that the applicant's letter of suspension and of termination stipulated the reason for termination as gross misconduct. He supported his submission by citing cases of Tanzania Revenue Authority v Andrew Mapunda, Revision No. 104 of 2014 7 [2015] LCCD 1 at page 1 and Tarcis Kakwesigaho v North Mara Gold Mine Ltd, Revision No. 6 of 2014 [2015] LCCD 1 page 66. On the second ground, the learned counsel argued that the applicant's actions were both gross negligence and insubordination for failure to adhere to the SOP and choose to listen to a fellow employee. He stated that, when food is distributed without following S@PM endangers the respondent's relationship with the customer. We submitted that the applicant failed to act in good faith. To ceme^^^^Wbeen submitted, he cited the case of National Microfin^c^J?ank v David

Bernard Haule, Revision No. 5 of 2®3, H.^La^our Court at Sumbawanga (unreported). > Mr. Sangawe submittdclomtbeMiird ground that the applicant admitted to have given food, to the security guard and the CCTV video footage would onhkjhow The fact which was not disputed. To support the subrqission®gGited section 60 of the Evidence Act, [CAP 6 R.E. 2019]. On the fourth ground, he stated that it is the general principle of law that failure to challenge an important fact amounts to admission. To support the point, he cited the case of Damian Ruhele v R, Criminal Appeal No. 501 of 2007 (CAT) unreported. He submitted that the advocate for the applicant failed to challenge the fact during re-examination. It means 8 therefore, that fact is true, as held in the case of Freight in time (T) Limited & Another v Rahabu Njeri Wanga, Revision Application No. 92 of 2018 H.C Labour court at Arusha. Mr. Sangawe, submitted on the fifth ground that the applicant was fairly terminated. The procedure followed the Guidelines for ^Disciplinary, Incapacity and Incompatibly Policy and Procedure as^well as Parti of the Schedule to the ELRA (Code of Good PracticS^^ supported by the decision of the court in the case of National faicrofihance Bank Pic v Alzack Amos Mwampukule, LabyDj^^^gvision No. 6 of 2013 [2015] LCCD 1. Mr. Sangawe Rafted tnaWie applicant failed to avail her with a chance for defence. The

applicant, finally prayed, the application to be dismissed for want ofkrrerit In a rejoinder, Mr. Mwiga reiterated his submission in chie^^^^^^ After oofo^^^^^the pleadings and records, I find, the cour d upoiMp dewyne following: - i. Whether there were valid reasons to terminate the applicant ii. Whether there was procedural fairness in terminating the applicant, and 9 Dealing with the first issue, the law under section 37(2) of the Employment and Labour Relations Act [CAP 366 R.E. 2019] provides that there must be fairness in terminating the employment. It states as hereunder: - A termination of employment by an employer is unfair if the employer falls to prove- a) that the reason for the termination^^^^; b)that the reason is a fair reason-\*\^_ i. related to tfip ^i^^ee^conduct, capacity or compatibiiityftpr H. based onShe operational requirements of the employer, and^^^^^ c^^^^^^^oyment was terminated in accordance with a lair In tnBCMA proceeding, the first witness of the respondent stated that the applicant gave the product without following the laws set at her workplace. It is evident at page 10 and 16 of the typed proceedings, that; "S. Sasa hebu ieiezee tume nini ambacho miaiamikaji aiifanya akavunja procedure. io J. Mlalamikaji aiitoa bidhaa ya kampuni biia kufuata sheria ya kazi zake. S. Kwenye SOP kuna sehemu gani iliyoeleza kosa hill kwenye barua ya kuachishwa

kazi J. Haiwezi kuwepo kwasababu inaeiezeA, procedure inavyoto/ewa ' S. Kwahiyo unakubaiiana na mimi^i^rribaYusra kafukuzwa kazi kwa general breach of §p^pa^iyo specific? Kwell au sikweli 0* J. Hapana S. Nitajie hf^JMbgeach J^Hii^^^^pivu/i uiiotoiew kampuni inaoeleza "how to td^hgjgb". Hatuelezi "how not to do the Job". Neverthelesyl have to say that, Rule 12(3) of the Employment and Labour Relations (Code of Good Practice) [G.N. No. 42 of 2007] provides: "(3) The acts which may Justify termination are; a) gross dishonest; b) wilful damage to property ii c) wilful endangering the safety of others; d) gross negligence; e) assault on a co-employee, supplier, customer or a member of the family of, and any person associated with, the employer; and f) gross insubordination" According to exhibit D8, it shows the reasons for term^atio^l^J^liilure to comply with SOP policy and conducting persofaabbusir^shat a place of work. In her testimony, the applicant stateq^ra^sre^Efave food to their security guard and was asked to do s^^^ojprker (Christina). On cross examination the applicant stated at page 65 of the typed proceeding: - <Jt "5. Je kumDalmlinzi,chakula ni moja ya kazi zako? Hapaha" wffi^mea^y.was not her duty to supply food to the security guard. „ ■■ . , .. . ■■ . Based offigxnibit D2, it does not show anything relating to the reason used to terminate the applicant. But in

exhibit DI which is an employment contract under clause 2.1 and 2.1.2.2.7, it states: 2.1 "The conditions contained in this agreement will come into effect on 1st July 2016 and it is specified that this Agreement 12 shall terminate on either party giving the other the required written notice" 2.1.2.2.7 "the Employee commits or on reasonable and sufficient grounds is suspected ofhaving committed a criminal offence against or to the substantial detriment of the Employer or the Employer's property." By looking at the employment contract, the respondent business is food stuff. The reason for termination was doifig^ere^^ business at the workplace, which is not allowed by t^Frfes^ji^nt. Again, the record at page 66 of the typed proceed! n^^hasiKhal - "S. Pale ofisii^M^ra mmeajiriwa nani? J. Na sSe kukurood aliwaruhusu mtoe chakula kwa mlinzi? y^gjapana... S. Ilikuwaje ukafuata maagizo ya Christina na si Kuku Food? J. Kwa sababu chakula ni cha Christina S. Sehemu lilipofanyika hilo tukio ilikuwa ni eneo la kazi au sio eneo la kazi? 13 J. Eneo la kazi" It follows therefore that the food she gave to the security guard was for her own personal gain and not the employer's. In order to justify the applicant's action of terminating the respondent, I have to consult the law. Thus, Rule 12(4) of G.N. No. 42 of 2007 provides thus:: "In determining whether or not termination is^fie

appropriate sanction, the employer should consider- a) the seriousness of the miscondua^i^he^iight of the nature of the Job and the circ^nsta^^^^^h it occurred, health and safety, and the likelihood ofiSnerepetition; or b) the circumstances of the employee such as the employee's emoioymemitecdrd, length of service, previous disciplinary ^cdMagd persona! circumstances." It Js not? disputed that the respondent does food business and the applicanthaafood at the work place which is forbidden. For that reason and what has been stated in the employment contract the employer proved that the termination was for valid reasons as provided for under section 39 of ELRA. It is held, therefore that the arbitrator's finding on the presence of the reason for termination was justified. 14 In dealing with the second issue of whether there was procedural fairness in terminating the applicant. Rule 13 of G.N. No. 42 of 2007 provides for the procedures, for termination. Rule 13(1) of the G.N. 42 OF 2007 states clearly that 'the employer shall conduct an investigation to ascertain whether there are grounds for a hearing to be held." But the law does not state how should investigationfbe^dpne it is enough to look at the evidence of the emp^er to see&if it is clear and followed the law. The evidence by the fiisSwneshiSf the respondent was that he conducted an investigatioriMfeTsgid the CCTV cameras showed the act was done. Theiapplicabt admitted to have supplied food me that the evidence was'sufficierit to show that the procedure was done as per the law. Asithe*GMA^®find no fault in the action of the respondent. The application is therefore dismissed. No order as to costs.

JUDGE 30.06.2022 15