TANALEC Limited vs Gilbert Alfred Sangali (Civil Appeal No. 144 of 2024) [2026] TZCA 616 (2 June 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA f CORAM: FIKIRINI. 3.A.. RUMANYIKA J.A. And ISSA, J.A.) CIVIL APPEAL NO. 144 OF 2024 TAN ALEC LIMITED.......................................................... ........... APPELLANT VERSUS GILBERT ALFRED SANGALI ..................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, (Labour Division) at Arusha) fMwaseba. J.1 dated the 9th day of November, 2022 in Revision Application No. 124 of 2021 JUDGMENT OF THE COURT 11th May & 2n d June, 2026 RUMANYIKA, 3.A.: The appellant, Tanalec Limited is a private company registered in Tanzania, manufacturing and selling electrical transformers. On 01/04/2005, she contracted and employed the respondent as an Assembler-Repair Shop Technician. However, about fourteen years later the respondent was accused of gross misconduct for the acts allegedly done by him on 23/09/2019 at night. Consequently, he was arraigned before the Disciplinary Committee and found liable as charged. His employment was terminated on 27th November 2019. It was alleged that, the respondent while at work and aware that the six built cores were already glued and dry, ready for electrical assembly, yet he reglued them. That, the reapplication of glue unnecessarily delayed production because it required an additional six to eight hours for the built cores to dry before electrical assembly could be done. It was also alleged that the respondent deliberately dismantled and destroyed another built core by pulling it apart and disassembled it. The appellant's case relied heavily on CCTV footage tendered (exhibit Dl). Initially, the respondent was served with a show cause letter on 27th September 2019, for disciplinary proceedings scheduled for 1s t October 2019. The Disciplinary Committee subsequently found the respondent liable. Accordingly, his conduct was found to have sabotaged the production thus, recommended for a summary dismissal. He appealed internally against that decision vainly. Aggrieved, the respondent instituted a Labour Dispute No. CMA/ARS/679/2019/39/2020 to the Commission for Mediation and Arbitration at Arusha (the CMA). On 10th November 2021, the respondent won the battle, as the termination was found to be unfair procedurally and substantively. Consequently, the respondent got an order of reinstatement, without loss of remuneration. Dissatisfied with that award, the appellant approached the High Court of Tanzania (Mwaseba, J.) on revision, unsuccessfully, as the CMA award was upheld on 09/11/2022. In protest against the liability, the appellant is before us seeking to assail the concurrent factual findings above, fronting one point of grievance. It is reproduced thus/ "...the High Court Judge erred in law by failing to analyse and evaluate evidence... The appellant and the respondent at the scheduled hearing of the appeal had the services of Messrs. Aggrey Kamazima and David Kahwa, learned counsel, respectively. To start with, Mr. Kamazima segmented the ground of appeal into two sub- complaints, namely; strength and reliability of the respective CCTV footage and the testimonies of DW2 and DW3 being ignored by the High Court. Similarly raised are the issues of investigation and the propriety of the remedy of reinstatement. The learned counsel contended that, the High Court misapprehended and or ignored the evidence on record. He cited it to be a set of CCTV footage and two video clips (collectively admitted as exhibit Dl) but only one of them was considered. That, had the learned Judge considered contents of both video clips where the respondent was reapplying glue and in the other one dismantling and pulling a built core which ultimately fell apart, she would have arrived at a different conclusion. Further, Mr. Kamazima contended that, in arriving at her decision, the learned Judge improperly considered the expert evidence of DW3, Anayaza Makiala, who testified that reapplying glue was not part of the respondent's duties and that pulling it would inevitably lead to destruction of the built core. In addition, Mr. Kamazima faulted the learned Judge for holding that the respondent was not supplied with copy of the investigation report. Much as, it was asserted, the corresponding daily shift report and the show cause letter suggested that investigations were carried out. ITie learned counsel relied on our decision in Ovadius Mwangamila & Others v. Tanzania Cigarette Company Limited (Civil Appeal No. 90 of 2022) [2025] TZCA 361 for the position that under the appellant was not required to furnish the respondent with copy of the investigation report. Also aggrieving the appellant was the learned Judges' finding that the internal disciplinary appeal process lacked impartiality. That, it was presided over by the same Chief Executive Officer of the appellant who subsequently signed the termination letter, thereby violating the rule against bias. Finally, and in the alternative, Mr. Kamazima urged the Court, should it find that the respondent was unfairly terminated, to substitute the remedy of reinstatement with one of compensation. In the whole, we were implored to allow the appeal. In reply, Mr. Kahwa opposed the appeal with zeal and vigour, supporting the decision of the High Court, that indeed the termination was unfair. Much as, the tribunals below failed to decide on such other remedies pleaded in the CMA Form No. 1, for which issues had not been framed for determination. We were implored to dismiss the appeal for being unmerited. We have considered the rival submissions of the learned counsel, and the authorities cited, along with the record of appeal. Essentially, we are called upon to answer two pertinent questions, namely; whether the appellant's employment contract was fairly terminated and the deserving terminal benefits. The first complaint it is recalled, concerns evidential value to be accorded to the CCTV footage/video clips (exhibit Dl), on alleged appellant's conduct of the day. It is reapplication of glue and dismantling of a built core. Our careful scrutiny of the record does not depict any explicit prior identification or differentiation of the video clips by file names. They were neither separated nor specific reference made by the appellant individually at the hearing. It looks like the CMA was left to hunt for the intended evidence or rather reduced to an investigator, which amounts to overstretching the adjudicatory function of the CMA. Therefore, without specifically distinguishing the said CCTV footage, which later were described as CH14-20190923223300 and CH14- 20190924004125, the learned Judge cannot be faulted, allegedly for having ignored the purported piece of documentary evidence. We note, clearly that the CCTV material tendered was admitted collectively as "exhibit Dl". Much as the Arbitrator's analysis at pages 108 to 110 of the record of appeal considered the video footage by concluding that, it did not show what exactly the complainant was doing to the built core. The High Court, on revision, similarly observed it and upheld the CMA findings, that indeed, the said CCTV footage did not establish, with sufficient clarity the alleged misconduct of the respondent. Therefore, we reiterate our position. That, in the absence of any express and detailed account clearly separating the said two evidentiary segments for analysis, judicial consideration and determination, the learned Judge cannot be blamed for the alleged inaction. Put in other words, unless a piece of evidence is specifically spotted by a party in his favour and the court's attention drawn to it for judicial consideration and duly tested but skipped, which is not the case here, it cannot be said that that evidence was ignored. Therefore, this ground is dismissed. For the second complaint, the High Court is faulted for alleged improper consideration of the testimony of Anayaza Makiala, who is a senior employee of the appellant (DW3). She is said to have worked in the production section for more than three decades. Her testimony, seemingly was key and technical. It concerns transformer production process as against the misconduct attributed to the respondent. On whether or not the learned Judge considered that evidence, we have her findings appearing at pages 192 to 197 of the record. As such, there is no specific judicial reference made to the evidence of DW3. Let alone specific analysis. We are mindful of the legal position that, where there is a denial of the right to be heard that, it is immaterial, in this case that the resultant decision would be the same, had the learned Judge done what was required of her. However, the hard fact remains that, the evidence of DW3 was insufficient for proof of the charges laid on the respondent's door. We shall explain. According to DW3, the respondent reapplied glue to the built cores which were dry and ready for the next stage of production, which was not one of the latter's dully assigned duties. However, the DW3 admitted that, on that day the respondent acted under instructions of supervisor, as per the former's testimony as appearing at pages 52 to 54 of the record of appeal. Over all, the corner-stone issue as observed earlier on was whether the respondent's act of reapplying glue and the other accompanying acts fell within the scope of work in the eye of any reasonable tribunal. Much as the issue is no longer whether the respondent acted under authority of the appellant. Therefore, it cannot be said that the respondent acted beyond the scope. After all no copy of the respective job description was produced in evidence, in attempt to fault the respondent. The appellant knew the reason for that failure. We consider that copy to be a crucial piece of evidence from which conclusion could be drawn. Among others, whether reapplication of glue to the said built core was the respondent's duty, as part of assembling process. It would have been a different scenario, therefore, if the evidence adduced had demonstrated any 8 degree of defiance of established instructions by the said supervisor. DW3's testimony did not address that possibility. There is yet another complaint that the High Court Judge ignored evidence of Anna T. Nyahonyo (DW2) on damage, allegedly occasioned to the appellant through the respondent's acts. Equally, this complaint is devoid of merit for two reasons; Firstly, the evidence did not disclose any attempted quantification of the alleged loss, save for a general remark that the respondent delayed production and the appellant missed her targets. Secondly, even if loss was demonstrated and proved, the evidence would not by itself suffice lawfulness of the contested termination. It is so because, under section 37(2) (now section 38) of the Employment and Labour Relations Act (the EALRA), the burden lies upon the employer to prove that the termination was fair, which she failed. Also for our determination is the fourth complaint that investigation was omitted, as no copy of the report was supplied to the respondent. Notably, rule 13 of Government Notice No. 42 of 2007 provides guidance. It requires that investigations have to be conducted to determine whether grounds exist for the intended disciplinary action. Equally noted, the law does not expressly mandate preparation of or formal sharing of a written investigation report. However, the principles of fair hearing and prudence demand that the accused be supplied with copy of the report. With respect, Mr. Kamazima may wish to remember that, with all fairness, serving a copy of investigations report on the accused, in this case the respondent prior cannot be a favour or optional. We don't think application of ruie 13 of GN. No. 42 of 2007 is so strict that it was intended by the drafter that the employee during disciplinary hearing be ambushed or attacked from the back. As to whether or not the appellant carried out investigations, we refer to the testimony of DW2, Anna Nyahonyo who was Human Resource Officer thereof. That, the respective daily shift report (exhibit D2), rightly in our view, triggered the disciplinary process, due to the documented events of 23r dSeptember 2019 which exhibited sabotage in the production process. The testimony of DW1, Sajjad Ladha, who served as the Information Technology Technician and Security Coordinator corroborated the evidence of DW2, on this aspect. That, upon being requested by the Production Manager in September 2019, he retrieved the CCTV footage relating to the material night shift. In addition, that, the relevant surveillance video footage was retrieved, with the view to examining and ascertain what caused delay in production. Consequently, DW1 prepared a certificate authenticating a flash disk containing the video 10 footage. Page 31 of the record of appeal refers. Consequently, that the respondent was served with a show-cause letter (exhibit D3). On our part, therefore, we are satisfied that the cumulative effect of the preceding steps taken by the two defence witnesses sufficiently demonstrate that, indeed the appellant carried out investigation, as required under rule 13(1) of GN No. 42 of 2007. However, the above referred rule apart, its sub-rule (5) imposes yet some additional procedural safeguards for a subsequent disciplinary hearing. That, any supporting evidence has to be presented, for the interest of a fair hearing, if need be, one to cross examine adverse witnesses and call the defence witnesses. See- Ovadius Mwangamila & Others v. Tanzania Cigarette Company Limited (Civil Appeal No. 90 of 2022) [2025] TZCA. We note that, although evidence was gathered during the said investigations, the appellant failed to properly present CCTV footage in full during the disciplinary and before the CMA, as observed above. More significantly, as is gleaned from the proceedings, there is no indication that the CCTV footages were produced, displayed, or played in full during the hearing. May be, some questions would be put to witnesses also with ii respect to the skipped CCTV footage. Who knows? The respondent, for instance was denied an opportunity, if he wished, to cross-examine the persons responsible for retrieving the skipped CCTV footage, authenticating it, or reporting the alleged misconduct. The mishap, no doubt fundamentally undermined the fairness of the process. Furthermore, we agree with the respondent's learned counsel that the respondent was not accorded a proper opportunity to present mitigation at the disciplinary hearing. We note that, the disciplinary hearing form (exhibit D4) is silent on that essential aspect. The record does not depict that the respondent was invited to mitigate the prospective penalty/sanctions. The committee's own notes simply shows that the respondent did not ask for clemency. This observation, in our considered view suggests that the respondent was reasonably expected to have requested for mercy of the committee, rather than being formally invited to present mitigation. This, by all standard cannot be a proper mitigation process. With those shortfalls, it cannot be said that the procedure for termination of the respondent was not flawed. As regards the fifth complaint on the alleged bias in the CMA proceedings due to the involvement of the appellant's Chief Executive Officer (the CEO) in the initial termination process and at a later stage in 12 the internal appellate avenues, we shall say little. Mr. Kamazima argued that, the CEO actually did not sit in the disciplinary committee and therefore, the issue of impartiality was misconceived. We have closely examined exhibit D4 and satisfied that the CEO did not actually constitute the disciplinary panel. However, the CEO initiated the disciplinary process by signing the show-cause letter and later the termination letter, having also participated at the internal appeal stage. In our considered view, this conduct constituted a daylight breach of the rule against bias. Confirmed, the CEO did not sit as an adjudicator in the disciplinary committee, as observed above, however, given his managerial post, who later on signed the termination letter, the CEO's influence to the other panel members during the hearing of appeal internally cannot be under rated. To that extent, the complaint lacks merit as bias was likely. Having found, as the learned Judge correctly did that the termination was totally unfair, we now turn to the deserving remedy. We recall, the learned appellant's counsel urged us, in the alternative, to substitute reinstatement with compensation. In events where the termination of employment if found to be unfair, section 40(1) of the EALRA provides for orders of reinstatement, re engagement, or compensation. Although reinstatement is generally the 13 primary remedy, it is always not automatically awarded. The Court, in its various decisions has declined to order reinstatement where, for instance; one, the employment relationship has broken down irretrievably, two, where there is loss of trust and confidence between the parties, and three, where it would not be practicable to require the employer and employee to work together again. See-Majaliwa Mussa Kagoma v. K, K. Security Co. Ltd (Civil Appeal No. 188 of 2022) [2026] TZCA 388. Fortunately, in the present case, all of the criteria for grant of reinstatement are ruled out. In its findings the Disciplinary Committee recorded in exhibit D4, in explicit terms as appearing at page 41 of the record of appeal, that the relationship between the parties was irreparable and the trust irredeemable. Given the nature of the charged offence, which is wilful destruction of the employer's property and deliberate sabotage of production is such that, once lost, the trust could not easily and practicably be restored. In other words, fundamentally the employment relationship between the parties is no doubt destroyed irretrievably. Therefore, reinstatement of the respondent would not be an appropriate remedy, as the respondent cannot be forced back into a workplace where he is not wanted any more. We are therefore satisfied 14 that only compensation is a convenient and practical remedy under the circumstances. The fifth ground of appeal succeeds. Consequently, the appeal is merited only to the extent demonstrated above. DATED at DODOMA this 2n d day of June, 2026. P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL Judgment delivered this 2n d day of June, 2026 in the presence of Mr. Aggrey C. Kamazima, learned counsel for the appellant and Mr. David Kahwa, learned counsel for the respondent via Teleconferencing and Mr. Nelson Novati, the Court Clerk present in Court, is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL 15