Council of St. Augustine University of Tanzania vs Alfred Fausitne Malugu (Civil Appeal No. 2588 of 2025) [2026] TZCA 572 (14 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: MWANDAMBO, J.A., KENTE. J.A. And MGONYA. J.A.^ CIVIL APPEAL NO. 2588 OF 2025 COUNCIL OF ST. AUGUSTINE UNIVERSITY OF TANZANIA ........ APPELLANT VERSUS ALFRED FAUSITNE MALUGU.................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) fKamana, J.) dated the 18th day of March, 2024 in Consolidated Labour Revision Nos. 70 & 71 of 2024 JUDGMENT OF THE COURT 6th & 14th May, 2026 MWANDAMBO, J.A.: At stake in this appeal relates termination of a fixed term contract. The Court is invited to answer a two-pronged question whether an employer is bound to follow the procedure applicable to indefinite duration contracts in terminating a fixed term contract, on the one hand and the relief to the employee whose contract is found to have been terminated unfairly, on the other. The appeal preferred by the disgruntled Council of St. Augustine University of Tanzania, arose from the following background. The appellant employed the respondent on three years fixed term contract in the post of Assistant Lecturer at St. Augustine University of Tanzania in Mwanza. However, midway, the appellant terminated the respondent's contract after committing a gross misconduct involving changing student's examination results in contravention of clause 10 of the employment contract. The termination followed an investigation tabled before the appellant's Staff Disciplinary Committee under the Chairmanship of Professor George Felix Masanja; Deputy Vice Chancellor for Administration and Finance who later on signed a letter terminating the respondent's employment. The appellant resented the termination through a complaint to the Commission for Mediation and Arbitration ("the CMA") vide Dispute No. CMA/MZ/NYAM/354/2020 for Mwanza alleging substantive and procedural unfairness of the termination both substantively and procedurally. The CMA found the appellant proved existence of a valid and fair reason for the termination. However, it found the appellant having flouted the procedure before terminating the respondent or several aspects, iri particular, the involvement of the Chairman of the Disciplinary Committee in the investigation, disciplinary hearing and decision. It thus held the termination procedurally unfair and awarded the respondent compensation for 12 months' salaries. Both the appellant and respondent were aggrieved by the award. They preferred separate applications for revision before the High Court (Labour Division) at Mwanza consolidated as Labour Revisions No. 70 and 71 of 2022. The High Court sustained the CMA award except as it related to the relief in the form of 12 months' salaries which it substituted with compensation in the form of payment for the remainder of the contractual term according to the correct monthly salary for 15 months subject to statutory deductions. Still dissatisfied, the appellant has appealed against that decision upon six grounds of complaint. In the course of the hearing of the appeal, Mr. Innocent John Kisigiro assisted by Mr. Innocent Bernard, both learned advocates prayed and was granted leave to abandon the 1st, 2n d , 3rd and 6th grounds. The remaining grounds fault the High Court for; one, failure to distinguish the principles involving termination of indefinite duration and fixed term contract, two, misapprehension of the evidence adduced by the parties thereby occasioning miscarriage of justice. It was Mr. Bernard who addressed the Court on the remaining grounds. The essence of the counsel's submission in ground one was that, a fixed term contract, as opposed to an open ended one is terminable 3 without theemployer having to follow the procedure applicable to indefinite duration contracts. Counsel was insistent that, what the employer is bound to do is to satisfy himself that there is a valid reason for terminating the fixed term contract. He reinforced his argument with rule 8(2) (a) and (b) of the Employment and Labour Relations (Code ofGood Practice) Rules, G.N. No. 42 of 2007 ("the Code") which provides: "(2) Compliance with the provisions o f the contract relating to termination depends on whether the contract is for a fixed term or indefinite in duration. This means that- (a) where an employer has employed an employee on a fixed term contract, the employer may only terminate the contract before the expiry of the contract period if the employee materially breaches the contract; (b) where there is no breach to terminate the contract lawfully is by getting the employee to agree to early termination / ' Armed with that rule, Mr. Bernard was astute that, since the appellant had a valid reason for terminating the fixed term contract for material breach, he had no legal obligation to do so by following any procedure in the same way it could have done had the contract been an indefinite duration one. He sought reliance on the Court's decision in 4 Asanterabi Mkonyi v. TANESCQ [2022] TZCA 96 to support his argument that a fixed term contract has no statutory protection in relation to procedure. He thus contended that, the High Court strayed into error in concurring with the CMA's finding that the respondent's termination was procedurally unfair. He too relied on Morogoro International School v. Hongo Manyanya [2023] TZCA 242 and St. Joseph Kolping Secondary School v. Alvera Kashushura [2022] TZCA 445. It is instructive that, in the former case, the Court held that the employer could not lawfully terminate a fixed term contract before its expiry without proof of material breach. The ratio in the latter-decision is that an employer is not shielded from following a fair procedure in terminating a fixed term contract. All the same, the learned advocate urged the Court to find merit in this ground and allow it. In relation to the renumbered 2n d ground, Mr. Bernard's submission was that, the award of compensation for payment of salaries for the remaining contractual period was erroneous as a result of misapprehension of evidence by the High Court. This is so, he argued, the respondent's case before the CMA was largely on breach of contract but he termed it as unfair termination thereby shouldering the appellant with burden of proof which should not have been the case as a result of which, the court arrived 5 at an erroneous finding that the termination was procedurally unfair. If we understood the learned advocate correctly, the appellant had no obligation to prove that the termination was with a fair procedure had the claim been on breach of contract in so far as there was proof of material breach which could have resulted in dismissing the claim. Replying, Mr. Reagan Charles who represented the respondent, with equal force, relentlessly argued that, the provisions on termination of employment contract apply indiscriminately to contracts with indefinite duration and fixed term ones. He reinforced his submission with the Court's decision in St. Joseph Kolping Secondary School case (supra) which involved termination of a fixed term employment contract. On the other hand, the learned advocate distinguished the Court's decision in Asanterabi's case relied upon by Mr. Bernard involving legitimate expectation for renewal on a month-to-month contract on which the employer refused to renew it after the employee had absented himself from work. Regarding the 2n d ground, the learned advocate argued that, the High Court correctly evaluated evidence on the fairness of the termination before coming to the conclusion that the termination was procedurally unfair as a result of which, it awarded the respondent compensation in the form of payment for the unexpired term of the contract. He accordingly implored the Court to dismiss the appeal for being devoid of merit. In his short rebuttal, Mr. Bernard was adamant that, fixed term contracts are not subjected to the procedural requirements applicable to indefinite duration contracts but terminable where there is a material breach by the employee. In spite of the High Court concurring with the CMA on the procedural unfairness of the termination, counsel was insistent that, that did not entitle the respondent to any relief as the appellant was not bound to adhere to any procedure before terminating the contract allegedly in pursuance of rule 8 (2) (b) of the Code. With that, we shall now turn our attention to the discussion on the merits and demerits of the appeal. The issues in the remaining grounds are one, whether a fixed term contract of employment is not subjected to statutory protection against unfair termination under section 38 (2) of the ELRA and; two, whether the High Court misapprehended the evidence in concluding that the respondent was entitled to payment for the unexpired period of his contract. It will be recalled that, while the appellant's counsel was agreeable that a fixed term contract could be terminated upon a fair and valid reason, he was adamant that the employer was not bound to follow the procedure applicable to contracts with indefinite duration. Put it differently, the learned counsel seemed to suggest that section 38 (2) of the ELRA was only applicable to the extent it relates to existence of a valid reason. However, it is our firm view that the learned advocate has misinterpreted rule 8(2) (a) and (b) of the Code. On our own reading, the rule permits the employer to terminate a fixed term contract of employment where there is a material breach or with an agreement with the employee. That means, regardless of existence of material breach, the employer cannot lawfully terminate the contract without having the employee agree to it before its expiry. Our starting point will be section 36 of the ELRA which exempts the application of Sub -Part E of the ELRA in relation to employees with less than six months. It provides: "The provisions of this sub part shall not apply to an employee with less than 6 months' employment with the same employer, whether under one or more contracts." Fortunately, we are not dealing with a novel point on the interpretation of the above provision relative to the issue under consideration. The section has been considered by the Court in various decisions remarkably, in Seet Peng Swee v. Total Tanzania Limited [2025] TZCA 978. The Court interpreted it in the light of the International Labour Organisation (ILO) Convention No. 158 of 1982 on termination of employment and held that, the only condition fortheapplication of termination protection is where an employee has not attained the qualifying period of six months. See also: Tanzania Social Action Fund & Another v. Ludovick LS. Tarimo [2026] TZCA 480. Earlier, in St. Joseph Kolping Secondary School case, the Court dealt with a similar issue involving a fixed term contract of a headmistress of a secondary school whose three years contract had been terminated for alleged misconduct. The CMA found the termination substantively and procedurally unfair which was upheld by the High Court. On appeal, one of the issues before the Court for its determination was whether a fixed term contract can be based on a contractual notice clause without complying with the requirement of fair reason and fair procedure under section 37 (2) of the ELRA before being redesignated as section 38 (2) videRevised Edition of the Laws 2023. The Court answered that issue negatively in the light of the ILO Convention No. 158 of 1982 referred to above. Interestingly, just as in this appeal, rule 8 (2) of the Code featured in that decision but the Court rejected it for the reason that, the protection against unfair termination in Sub-Part E to the ELRA applied 9 indiscriminately to both fixed and open-ended contracts. It took a view in Jordan University College v. Mark Ambrose [2024] TZCA 433 and Simba Net (T) Limited v. Helio Andare Morao Abrantes [2025] TZCA 823. It will no doubt be clear by now that the argument canvassed by Mr. Bernard fails on the face of the above settled legal position. His reliance on Asanterabi's case decided on different set of facts and issue is of no avail to the appellant. In the upshot, we find no merit in this ground and dismiss it which takes us to the second issue. The issue revolves around the alleged misapprehension of evidence resulting into an erroneous award involving payment of 15 months' salaries for the remaining unexpired period. We heard Mr. Bernard's complaint suggesting, albeit indirectly, that the High Court ought to have treated the appellant's case as one of breach of contract rather than unfair termination. With respect, we do not think the learned counsel is correct in that assertion primarily because, as demonstrated above, the respondent had a right to contest the fairness of his termination independent his right to challenging it for breach of contract. Contrary to the learned advocate, it was not upon the CMA or the High Court to convert the respondent's case from unfairness of termination to one of breach of contract. The High Court correctly agreed with the CMA that the appellant failed to discharge 10 its burden proving that it followed a fair procedure in terminating the respondent. We have seen no reason to fault the High Court in that regard neither did the appellant's counsel succeed in persuading us by any material towards that direction. He simply made a general complaint that the case should have been treated as one of breach of contract in which the respondent had a burden of proof. We see no substance in this argument and reject it. This ground is equally devoid of merit and we dismiss it. Nevertheless, we are constrained to interfere with the award made by the High Court. It seems to us that, in doing so, the High Court appears to have treated the case as one of breach of contract rather than one of unfairness of the termination on account of failure to follow a fair procedure. In our view, the award of 15 months' salaries for the unexpired term of the contract on account of unfair termination due to failure to follow a fair procedure having found that the appellant had terminated the respondent upon a fair and valid reason appears to us to have been on the high side. Guided by the provisions of section 41 (c) of the ELRA as amended by the Labour Laws (Amendments) Act, No. 4 of 2025, since the impugned termination was found to be upon valid reason but without a fair procedure, the award by the High Court is reversed to six months' salaries. In the event, the appeal stands dismissed save to the extent of the relief awarded to the respondent. As the learned counsel were agreeable on costs, we order that each party shall bear his own costs. DATED at MWANZA this 13th day of May, 2026. L. J. S. MWANDAMBO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL Judgment delivered virtually this 14th day of May, 2026 in the presence of Mr. Innocent John Kisigiro, learned counsel for the appellant who also held brief for Mr. Reagan Charles, learned counsel for the respondent and Mr. John Banene, Court Clerk; is hereby certified as a true.copy of the original. > z | \ .L KALEGEYA \ PfiyUTY REGISTRAR s/ jM U R T OF APPEAL 12