IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES … · 2020-01-22 · Employment and Labour...
Transcript of IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES … · 2020-01-22 · Employment and Labour...
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IN THE HIGH COURT OF TANZANIA
LABOUR DIVISION
AT PAR ES SALAAM
REVISION NO. 412 OF 2016
HURUMA H. KIMAMBO...............................................APPLICANT
VERSUS
SECURITY GROUP (T) LTD......................... .......RESPONDENT
JUDGEMENT
Date of Last Order: 08/02/2018
Date of Judgement: 27/04/2018.
L.L.MASHAKA, 3.
The applicant Huruma H. Kimambo filed this revision application
against the award issued by the Commission for Mediation and Arbitration
[herein referred to as CMA] with Notice of Application, Chamber Summons
and supporting affidavit of the applicant himself under Section 91(l)(a),
(2) (a, b, c) of the Employment and Labour Relations Act No.6 of 2004 as
amended by Section 14 of the Written Laws (Miscellaneous Amendments)
(No.3), Act No.17 of 2010 and Rule 24 (1)(2) (a)(b)(c)(d)(e) &(f) and (3)
(a)(b)(c) & (d), 28(l)(a)(b)(c)(d) and (e) of the Labour Court Rules G.N
106 of 2007.
During hearing Mr. Elisaria Mosha, Advocate represented the
applicant and Mr. Anthony Kapinga, Administrative and Legal Officer of the
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respondent entered appearance. The hearing of the application was
conducted orally before the Court.
Learned Counsel for the applicant drew the attention of the Court to
the fact that the application for revision has 9 grounds but abandoned the
grounds No. (a)/(d)/(e)/(f)/(g),(h) & (i) and remain with grounds (b) and
(c) only. Learned Counsel commenced with grounds (c) of the revision that
Hon. Arbitrator improperly ruled that the procedure before termination was
observed as required by the law. That if one goes by the ruling and award
of Hon. Arbitrator delivered on 17th August 2016 all the pages of the ruling,
our submission is that Hon. Arbitrator erred in law to disregard the
proceedings of the CMA which clearly showed and proved that the
termination was carried in violation of fair procedure.
He submitted that the law is very clear under Rule 13(1), the
Employment and Labour Relations TCode of Good Practice] Rules, GN No.
42 of 2007 [herein referred to as G.N 42 of 2007], which provides that
before commencing a disciplinary hearing, the employer is mandatorily
required to conduct an investigation for ascertaining the grounds for taking
a disciplinary action against the concerned employee. That mandatory
procedure was never complied with as revealed through the CMA
proceedings where the 4 witnesses from the employer categorically
informed the CMA that the investigation was carried by the employer after
the disciplinary hearing was conducted. Learned Counsel further argued
that the same was revealed at page 9 of the CMA proceedings by DW1 Mr.
Steven Ntoi where on the 15th March 2015, he stated that they pursued the
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investigation after noting the discrepancies of evidence during the
Disciplinary Committee hearing. That the same was also revealed by DW2,
who stated at page 17, line 10, that the investigation was mounted after
the disciplinary hearing was done and it revealed that the applicant
unlawfully carried a motor vehicle without the Company's consent or
involvement.
That the testimony by DW3 the IT Supervisor revealed that the
investigation was conducted after a disciplinary hearing had been held.
That on the 16/05/2016 the CMA proceedings at pages 35 & 36, DW4
stated that what happened after the disciplinary hearing was that an
investigation was conducted at Kibaha which precipitated the offence
charged.
Learned Counsel for the applicant argued that the second irregularity
is related to the person who charged the applicant/employee, one Mr.
Linus Stephen Haule (Human Resources Officer) DW4, who also chaired
the Disciplinary Committee hearing contrary to Rule 13(4) & (5) of GN No.
42 of 2007. DW 4 admitted at pages 35 of the proceedings at the CMA that
there was existence of two parallel disciplinary hearing on the same
offence. Therefore it was their submission that the procedure requires a
person charged with a disciplinary offence to be conducted by one
Disciplinary hearing and in case of sparing reason to the contrary that
hearing may be extended on a future date. That the procedure is silent,
what is revealed is an ad hoc 2nd disciplinary hearing which the applicant
was never put to notice and therefore denied an opportunity to be heard,
a principle of natural justice and therefore condemned unheard.
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The other irregularity submitted by Learned Counsel for the applicant
is related to Rule 13(5) & (8) of GN No. 42 of 2007, that the applicant was
never availed any documents from the employer regarding the conduct of
the 2nd Disciplinary hearing and was never given opportunity to cross -
examine witnesses from the employer's side and the outcome on the said
hearing was not revealed to the applicant within the prescribed time of the
law.
Lastly, Learned Counsel argued that the applicant was not given an
opportunity to mitigate the verdict which was pronounced in the
Disciplinary hearing. That this Court, though the Court of Appeal of
Tanzania has not laid a foundation on the contrary, has spoken on the
investigation to be conducted and stated that failure to do so may vitiate
the award of the CMA. Learned Counsel referred this Court to the case of
Sharifa Ahmed Vs. Tanzania Road Haulage (1980) (T) Ltd, Revision
No. 299 of 2014, High Court Labour Division at Dar es Salaam (unreported)
at page 6 of the judgment, stated that every step under Rule 13 of GN No.
42 of 2007 must be adhered to. And procedure of fairness must commence
with investigation of allegations.
He referred this Court to the case of PPF Vs. Siriel Mchembe,
Revision No. 389 of 2013, High Court Labour Division at Dar Es Salaam
(unreported) at page 19, where the Court noted the requirement for a
chairman to inform the employee of the outcome of the disciplinary hearing
as soon as possible and not later than 5 (five) working days from the date
of hearing.
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Learned Counsel prayed to this Court to be guided by the same
holding at page 43 of the case of PPF Vs. Siriel Mchembe [supra]
where the Court stressed on the importance of conducting an investigation
to ascertain whether there are grounds for hearing to be held. That those
were the fundamental flaws which go to the root of the matter, because
one cannot conduct an investigation after he has charged and required the
employee to present his defence and a subsequent notice to appear before
a disciplinary hearing and make him appear, and on the contrary
commence an investigation to ascertain a ground for a hearing. Learned
Counsel stressed that, all what has been conducted as an investigation by
the employer after the disciplinary process had commenced had been
overtaken by events. It was his submission that Hon. Arbitrator taking
recognizance of such evidence, has acted outside her power i.e. on the
side of procedure.
On grounds (c) for revision, Learned Counsel submitted that Hon.
Arbitrator erred in holding that the termination of employment was valid.
That if one goes by the ruling of Hon. Arbitrator the issue appeared at
page 2 of the award of the CMA. That having framed the issues Hon.
Arbitrator wrongly held as she did that the validity of reason was proved.
That there was no valid reason to terminate the applicant because all the
witnesses DW1, DW2, DW3 & DW4 did not prove the first issue raised by
Hon. Arbitrator. That, DW1 when cross-examined stated that termination
was based on failure to follow procedure and dishonesty but at page 11 of
the CMA proceedings during cross examination by Advocate for the
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applicant and at page 12 of same proceedings, while at page 13 stated the
reasons for termination in as far as Exhibit R 7, referring page 16 of same
proceedings, he testified that the iob description of the employee has no
such procedure. That DW2 was not helpful to the CMA because he stated
that he was informed by DW3 and stated at page 17 of the same
proceedings that the reasons for termination was for gross dishonesty.
That when cross-examined to explain how gross dishonesty is related to
offence on the charges on failure to follow Company procedure; going by
his averment at page 18, line 2, of the proceedings stated that after the
Human Resources Officer visited the site it was when a discovery was
proved after the disciplinary hearing reached an end. That there was an
offence of carrying a motor vehicle without the permission of employer and
that the violation of procedure on the charge sheet, was a minor offence
but for carrying another motor vehicle it was gross dishonesty, as per page
18, lines 2-8 of proceedings. That at page 19 of proceedings when asked
to mention the disputed general procedure DW 2 stated that he was
informed by the control room, refer page 19, lines 6 and 7. Learned
Counsel argued further that at page 20, there is a contradiction which
appears on item 6 that an element of dishonesty was discovered after a
disciplinary hearing was held on account of bringing a receipt for a refund
claiming payments. That at page 21 which show Exhibit R 5 the disputed
receipt, he was asked what offence was stated on the receipt; it said it was
wrong parking and repossession fee. Lastly he told the CMA that he was
not part of the investigation team which went to Kibaha to conduct the
investigation for carrying a motor vehicle. That at page 21, he stated that
the termination was based on carrying a motor vehicle. That the Human6
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1
Resources Officer was satisfied with the carrying of the motor vehicle that
is why an investigation was mounted after disciplinary hearing had
commenced. When placed to show the distinction between a lorry and
other vehicles that carry cash in relation to the motor vehicle driven by the
applicant DW2's evidence item 4, testified that the one used by the
applicant at the particular time was unrelated and distinct to procedure
requirement that was alleged in the charge sheet. Learned Counsel argued
that if one can see the contradictions and discrepancies arising from DW1
and DW2 testimonies and the reason for termination on Exhibit R 7, that
the applicant employee was charged with different offences and terminated
based on other distinct offences without giving him an opportunity to be
heard.
For clarity, Learned Counsel argued that even DW 3 Martin Saidi
Mrekoni CIT (Cash in Transit) Supervisor a key witness at page 26 of CMA
proceedings admitted, he was not on the shift during the incident. That,
the shift was supervised by Mr. Inyasi, and stated that all his evidence was
based from Mr. Inyasi, and Mr. Inyasi was never called to testify and that
when cross -examined on the contents of the charge sheet at page 27 he
admitted that what he stated in Exhibit R 1 was unrelated to what the
applicant was doing at the particular time.
Learned Counsel contended that this Court has at one particular time
in Revision No. 106 of 2015 between Knight Support (T) Ltd Vs. Yahya
Aswed & Others, High Court at Dar Es Salaam (unreported) at pages 5 &
6, held on the right to be heard to be so basic that a decision so arrived at
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in violation of it, will be nullified. He asked the Court to be guided by that
decision [supra] and find that the contents of Exhibit R.7 are not
reflecting what was alleged in the charge sheet presented to the applicant
in the first time.
Learned Counsel prayed to the Court to be guided by the provisions
of Rule 12(l)(b)(ii) of GN No. 42 of 2007 that there was no rule
whatsoever or standard of procedure violated by the applicant to warrant
his termination from employment. That there was no such rule whatsoever
that he was made aware of it. That the CMA proceedings at page 27 are
self-explanatory, when DW3 was cross examined he stated "there is no
procedure, taratibu atiambiwa kwa mdomo na mi mi supervisor wake,"
going by this piece of evidence, there is no any other good testimony than
DW3 regarding violation of employer's procedure. That the testimony of
DW3 did not help the respondent to advance his case.
/
Learned Counsel for the applicant further submitted that for clarity,
DW4 on the 16/5/2016 while under cross-examination at the CMA
regarding procedure violated by the applicant, he testified in Swahili that
"utaratibu ni practice, miaiamikaji anaufahamW. On causing loss to the
company offence as per charge sheet, DW 4 was not able to answer the
loss but answered as seen at pages 37 & 38, that the employer did pay the
money to TANROADS. When asked why TANROADS were not called to
testify, he could not provide a reply. Learned Counsel submitted that in
regard to DW4, there was no any loss proved by the employer to warrant
the offence of causing loss to be established. That DW4 decided to tell the
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truth at page 38 that the applicant "aiipewa gari la kubeba mizigo na sio
gari la kubeba fed ha siku hiyo. Taratibu za gar! la mizigo na gari ia kubeba
fed ha chim ya CIT m vitu viwiii tofauti sio sawa. Mtumishi hajawahi
kupewa onyo ioiote."
Learned Counsel in view of their submission on 2nd ground for
revision, that Hon. Arbitrator erred in holding that the reason for
termination was proved, to be decided by this Court that there was no valid
reason.
Learned Counsel further argued that even Hon. Arbitrator failed to
appreciate that there was no substantive and procedural fairness, that
Hon. Arbitrator did not use her discretion to award, what they prayed for in
CMA Form No. 1 read together with their opening statement, which was for
reinstatement as per Section 40(l)(a). He prayed to the Court to fault the
award and find the termination of applicant's employment was unfair
substantively and procedurally.
He prayed this Court to be guided by the decision in Revision No. 201
of 2015 between 'A' One Products and Bottlers Ltd Vs. Abdallah
Almas & 25 Others, High Court at Dar Es Salaam (unreported) at pages
5 & 6 where the Court found it appropriate the relief of reinstatement. Also
in Revision No. 22 of 2011 between Fredrick J. Chacha Vs. Stemo
Security Co. Ltd, High Court (unreported) where the Court held that
reliefs not prayed for may be considered by Hon. Arbitrator but subject to
framed issues disclosed by the parties opening statement. Learned Counsel
begged the Court to take guidance to the decision in Revision No. 175 of
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2014 between Mathias Petro Vs. Jandu Construction & Plumbers,
HCLD at Dar es Salaam (unreported) where the Court stressed at page 6
the reasons for termination to be valid and at page 7 the reasons to afford
the employee's right to be heard and if substantive and procedural fairness
is not proved, reinstatement should take precedent.
Learned Counsel prayed the Court to quash and set aside the ruling
and award of the CMA and grant the relief prayed for in CMA Form No. 1
and opening statement.
In reply Mr. Kalinga for the respondent at the outset stated that
there was no any investigation done before the Disciplinary Committee
hearing by Mr. Linus Steven Haule on 03/10/2013, this was due to the fact
that the case which was before him among other things in the notice for
hearing letter, was a charge for the refund of Tshs. 110,000/= and due to
the complication which arose between the employer and the employee in
regard to the refund of said amount. That, the Chairperson saw the need
of going to Kibaha taking into consideration that having asked the
employee if he had any witnesses, he said he could not call any witness
from YONO AUCTION MART. That in order for the Chairperson to comply
with Rule 13(5) of GN No. 42/2007 which requires for a fair decision to be
done by the Chairperson that he must ensure the presence of witnesses,
therefore he had to adjourn the Disciplinary hearing and went to Kibaha for
further hearing. He submitted that there was no other date fixed for the
continuation of hearing after it was adjourned on the 03/10/2013. That
the hearing was done on the same day and the 2nd meeting was concluded
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after they returned from Kibaha, this can be seen at page 5, paragraph 2
of the CMA award where the whole team of the Disciplinary Committee
went to Kibaha as per Exhibit R 6 Chairperson, Seif Mwagala, Steven Mtoi,
Frank Simon, Francis Lituti and the applicant. That Exhibit R6, shows
clearly that there was no witness brought before the disciplinary hearing by
the applicant.
He argued that investigation was done prior to the sitting of the
Disciplinary Committee, as the offence was committed on the 22/09/2013
having been investigated between 22/09/2013 to 30/09/2013. That on the
1st October 2013, the applicant was issued a notice for hearing a letter
which is Exhibit R4 to attend disciplinary hearing. Among other issues on
the charge sheet was breach of the Code of Conduct of the employer.
That the Chairperson before reaching the decision considered the year of
service of the employee and satisfied himself that the applicant employee
was aware of the offence committed; taking into consideration that he is a
long serving employee and requested the Court to refer to Exhibit R1 the
Code of Conduct of the employer. That within the premises of the
employer there were several guidance and instructions guiding the
employees as drivers, among which is the Code of Conduct mainly termed
as job description. That the breach of conduct was well addressed to the
applicant and that he did not inform his Supervisor upon reaching
Morogoro and decided himself to return back to Dar Es Salaam without
notifying his Supervisor.
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Mr. Kalinga argued that the defence raised by the applicant before
the Disciplinary Committee that he had informed Mr. Inyasi the Controller,
was not brought to testify before the Committee. That at the CMA, the
applicant stated at page 7, paragraph 3 of the CMA award, that the
applicant gave information to Mr. Mrekoni and not Mr. Inyasi, therefore
Hon. Arbitrator held that the testimony was contradictory hence carry no
weight to be considered. That after the Chairperson and his team went to
Kibaha discovered that the applicant was penalized for carrying a motor
vehicle in the lorry, which convinced him to regard the act of dishonesty,
an element of dishonesty. That the Disciplinary Committee went to Kibaha
to visit the Yono Auction Mart Office to enquire and ask about the validity
of the receipts.
\
He requested this Court to be guided by the decision in the case of
Vedustus S. Ntulanyenka & 6 others Vs. Mohamed Trans Ltd,
Revision No. 4 of 2014, High Court at Shinyanga (unreported) at page 14
where Hon. Mipawa, J (as he then was) gave guidance that an employee
could conduct an offence associated with the other offences. Therefore
the applicant's offence of breach of Code of Conduct was associated with
the offence of gross dishonesty as stated by the applicant that he could not
give the information for departure because he did not have enough credit,
while he had enough money to pay the penalty. That this proves that the
act of the applicant not informing the Supervisor was intentionally done to
hide the fact that he had carried the motor vehicle.
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He argued further that the person who instituted the charges against
the applicant is the same person who chaired the Disciplinary Committee
hearing against the applicant,
Representative for the respondent requested the Court to be guided
by the decision in the case of Robert Juma Maziku Vs. Pangea
Minerals Ltd, Revision No. 36 of 2013, High Court at Shinyanga
(unreported), at page 13 where it held that the Chairperson could give out
a decision. The act of Mr. Linus Steven Haule being the Chairperson,
giving the decision was fair.
That the disciplinary hearing was conducted on 03/10/2013 as per
Exhibit R 6 and the decision was made on 05/10/2013 that is 2 days later
as per Exhibit R.7.
That the evidence of the employer was based on a balance of
probabilities under Rule 9(3) of GN No. 42 of 2007 and the employer had a
valid reason and followed a fair procedure in terminating the applicant thus
prayed the Court to dismiss this application for revision.
In rejoinder Learned Counsel for the applicant argued that the
Representative for the respondent failed to respond to the 2 grounds for
revision which they had raised instead he has tried to fill the gap of what
was not done by DW1 to DW4 and through the back door wants to be
DW5. That is untenable to bring new evidence which was not considered
by Trial Arbitrator.
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On the point that the employer managed to prove on balance of
probabilities on the valid reason and fair procedure, Learned Counsel
argued that it is from the bar and does not reflect what took place at the
CMA as per the CMA proceedings are concerned. He stressed that the
Representative for the respondent has not indicated at what page of the
proceedings vis a vis the ruling and award of Hon. Arbitrator for purpose of
contradicting the grounds for revision. That it goes without saying that,
what they have submitted had not been shaken by the respondent. This is
borne by the contention that on the question of failure to follow procedure
and what we submitted earlier, the employer's evidence in totality admitted
that there was no procedure which was violated stated by DW1 at page 12,
DW 2 at page 18 and DW3 at pages 26 &27. That to try to introduce and
bring the Court's attention that Exhibit R1 was the Code of Conduct as
submitted by Representative for respondent is to bring new evidence
through the back. That a Code of Conduct and job description are two
distinct items, what was tendered and admitted at the CMA as Exhibit R1
was a job description which DW3 & DW4 did not state or reflect in the
proceedings that a Code of Conduct was received at the CMA.
That the Respondent intends to bring in an email which was never
tendered at the CMA. An email within the meaning of Section 64A of the
TEA is an electronic evidence which is admissible under Electronic
Transmission Act No. 264 of 2015 accompanied by a certificate of
authentication and this not being a trial Court, it has no power to
determine issues not taken on board during the trial.
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On the Exhibit R6, Learned Counsel submitted that it is not true there
was admission by the applicant, the Court may refer page 9 of the
proceedings at the CMA. That if it was really admitted, what is before the
Court is with regard to what took place at the CMA, the gist of the
applicant's application is to challenge the proceedings and award of the
CMA on the correctness and legality of the award.
Lastly Learned Counsel prayed to reiterate submission in chief.
Having heard submissions of parties and record at hand the issues
for determination is whether or not there was valid reason for termination,
whether or not a fair procedure was followed and the reliefs entitled to the
parties.
At the outset the Court points out that this application for revision is
based on evidence adduced at the CMA only and no new evidence to be
considered at this stage.
On the first issue on valid reason for termination, the same is traced
from the record that 01/10/2013 the applicant was called for disciplinary
hearing which was schedule to be conducted on 03/10/2013 at 08.00hrs
issued by Linus Stephen, Human Resources Officer-Training Exhibit R 4.
The same discloses failure of the applicant to report that he had arrived at
Morogoro where he was sent to perform duties, and that after getting a
breakdown he did not report to his Supervisor and caused loss to the
employer of Tshs 110,000/=that was a misconduct dangerous to the
business of the employer and was terminated on the 05/10/2013. He was
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terminated because of "kuvunja taratibu za mwajiri na kumletea hasara
mwajiri wako" literal meaning the violation of employer's procedures and
causing loss thereto. That the said misconduct was dangerous to the
employer's business. The same was stated by Linus Stephen, Human
Resources Officer-Training. The applicant employee being aggrieved filed a
dispute to the CMA vide CMA Form No. 1 praying for reinstatement and
payment of all emoluments.
Hon. Arbitrator having received evidence from both parties, ruled out
that the employer had a valid reason for termination of the applicant and
procedures were adhered to hence dismissed the claims of the applicant.
The Court finds there was no valid reason because the respondent
could not state clearly the provisions of the Code of Conduct or employer's
policy which had been contravened by the applicant. It is not known
precisely which provision of the Employer's Policy or Code of Conduct was
contravened, refer Exhibit R 4 - 'Wito wa mashauri', Exhibit R 6 the
Hearing form and Exhibit R 7 termination letter.
Going through the records particularly pages 3 and 5 of the CMA
award two issues are noted, first DW2 submitted that it was during the
disciplinary hearing when the applicant employee had tendered his
explanations the respondent employer postponed the hearing and decided
to visit the place where the breakdown had taken place to satisfy
themselves of the occurrence of the same. That evidence is cemented by
DW 4 Linus Stephen Haule who added that the applicant employee had
carried a small car on the motor vehicle contrary to employer's policy.16
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Therefore what the Learned Counsel for the applicant submitted is true
from its root, contrary to what Mr. Kalinga for the respondent had
submitted. This brings out the clear picture that the employer had not
conduct an investigation to ascertain the grounds for disciplinary hearing to
hold that the applicant had commit a misconduct to warrant termination.
Rule 13(1) of G.N 42 of 2007 provides that:-
”13.-(1) The employer shall conduct an investigation to
ascertain whether there are grounds for hearing to be held.."
The respondent had not conduct investigation to ascertain whether
there were grounds for the applicant to be charged and the disciplinary
hearing to be held. Therefore even the reason for termination was not
based on the evidence from investigation conducted, following the reason
that the disciplinary hearing was postponed amidst submission by applicant
employee at the disciplinary hearing and the Disciplinary Committee
decided to visit the scene at Kibaha. And thereafter on appeal it is when
the employer confirmed the termination by relying on evidence gathered
when the Disciplinary Committee visited the scene while the employee was
terminated on 05/10/2013, this fact was never dealt with by Hon.
Arbitrator. Hon. Arbitrator at page 7 of the CMA award held that there was
enough evidence from DW1, DW2, DW3 and DW4 that the employee
committed the act he was charged with while the same evidence from
DW1 and DW2 was contradictory in itself.
' Hon. Arbitrator erred in holding that there was valid reason for
termination while the same was not proved by the employer. Hon.17
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Arbitrator relied on the reason that the employee did not follow the
procedures laid down by the employer. The said Exhibit R. 1 which is a job
description general/orders for drivers does not require the employee/driver
to inform the employer when he arrives at a destination as rightly
submitted by the applicant employee at page 5 of the CMA award but it
was just a common practice to do so. Also at the time the applicant was
not driving a Cash In Transit Motor Vehicle Hon. Arbitrator ought to have
directed herself and be mindful of the requirement of Rule 12 of GN 42 of
2007 on employer's policy which provides that:-
’72. (1) Any employer, arbitrator or judge who is required to decide
as to termination for misconduct is unfair shall consider-
a) Whether or not the employee contravened a rule or standard
regulating conduct relating to employment;
b) I f the rule or standard was contravened, whether or not-
/■ It is reasonable;
ii. it is dear and unambiguous
Hi. the employee was aware of it; or could reasonably be
expected to have been aware of it..."
iv. it has been consistently applied by the employer ; and
v. termination is an appropriate sanction for contravening
The respondent employer failed to prove the requirement of Rule
12(l)(a)(b)(ii)(iii)(iv) of GN No. 42 of 2007.
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Also the provisions of Rule 12(4) provides that, "First offence of an
employee shaii not justify termination unless it is proved that the
misconduct is so serious that it makes a continued employment relationship
intolerable;" this ought to be considered by Hon. Arbitrator. The CMA
award at pages 38 and 39 DW4 stated on whether the applicant employee
had been involved in other misconduct and how many times prior to the
alleged misconduct, that "NiHvyokagua kipindi hicho maonyo yalikuwepo,
kwa hiyo alishapewa maonyo. Swali maonyo hayo yanahusiana na kosa
hiii, jibu sikuzingatia maonyo ya nyuma. "The respondent failed to proved
before the CMA if the applicant was a habitual offender.
From the above, brings in the cardinal principle of the right to be
heard on the fairness of procedure, which Hon. Arbitrator ruled that the
same was properly availed to the employee. As earlier noted, after the first
disciplinary hearing was postponed the employee/applicant was never
given notice to attend any other disciplinary hearing. It is not know when
the 2nd Disciplinary Committee hearing was conducted and at what time.
The Exhibit R.6 shows date and time of hearing was 03/10/2013, at
2.35PM but on the 2nd page of Hearing Form shows it was signed on the
04/10/2013. There is no explanation on the discrepancy. Hon.Arbitrator
erred in law and fact to rule out that the respondent employer followed a
fair procedure before termination and wrongly applied the law. The
disciplinary hearing was chaired by Mr. Linus Stephen who initiated the
charges and also chaired the Disciplinary Committee hearing, this was not
disputed by the respondent. This contravened Rule 13(4) of GN No. 42 of
2007.
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The respondent also failed to observe and implement Rule 13(7) of
GN No. 42 of 2007, that after finding the applicant guilty, to give him an
opportunity to put forward any mitigating factors before the decision was
made on the sanction to be imposed by the Disciplinary Committee. Even
Exhibit R 6 provides no space for mitigating factors put forward by the
employee after being found guilty and before the sanction is imposed. The
respondent contravened Rule 13(7) of GN No. 42/2007, which is a
mandatory requirement.
On protection of employment rights, this Court finds it pertinent to
refer to Article 4 of ILO Convention on Termination of Employment No. 158
of 1982, which provides that the employer must have a reason for
termination of an employee and fair procedure must be followed:-
",........ the employment of a worker shall not be terminated
unless there is a valid reason for such termination connected
will the capacity or conduct of the worker or based in the
operational requirement of the undertaking, establishment or
service............."
Article 4 of ILO Convention on Termination of Employment No. 158 of
1982 clearly reflects Section 37(2) (a)(b) and (c) the Employment and
Labour Relations Act No. 6 of 2004 which provides that;
"S.37. (2) A termination of employment by an employer is unfair if the employer fails to prove
(a) That the reason for termination is valid.
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(b) That the reason is a fair reason-
(i) related to the employee's conduct; capacity or
compatibility; or
(ii) based on the operational requirements of the
employer, and
(c) That the employment was terminated in accordance with
a fair procedure"
The respondent employer had no valid reason to terminate the
applicant employee and Hon. Arbitrator erred in law holding that the
respondent employer had a valid reason and a fair procedure was followed
to terminate the applicant employee. The holding by Hon. Arbitrator is
hereby quashed and set aside. This Court finds this application for revision
with merit and the termination of employment of the applicant was
substantively and procedurally unfair.
Consequently, the relief to the parties are embodied under Section
40 of the Employment and Labour Relations Act, No. 6/2007 which
provides that:-
"...5. 40 (1) I f an arbitrator or Labour Court finds a termination is
unfair the arbitrator or Court may order the
employer:-
(a) To reinstate the employee from the date
the employee was terminated without
loss of remuneration during the period
that the employee was absent from work
due to the unfair termination; or
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(b) To re-engage the employee on any terms
that the Arbitrator or Court may decide; or
(c) To pay compensation to the employee of
not less than twelve months'
remuneration.
According to the cited provision above, this Court invokes Section
40(l)(a) of the Employment and Labour Relations Act No. 6 of 2004 and
orders the employer respondent to reinstate the applicant employee from
the date he was terminated without loss of remuneration during the period
that the employee was absent from work due to the unfair termination.
The whole of CMA proceedings with its resultant award are hereby
quashed and set aside. The present application for revision is meritious and
granted.
It is so ordered.
Right of appeal explained.
(2).(3).
JUDGE
27/04/2018
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