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

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

2

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.

3

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.

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

5

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

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

7

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

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

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

10

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.

l i

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.

12

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.

13

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.

14

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

15

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

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

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.

18

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.

19

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.

20

(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

21

(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

22