Grumeti Reserves vs Mary Mlay (Civil Appeal No. 137 of 2024) [2026] TZCA 563 (13 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: FIKIRINL J.A., RUMANYIKA. J.A And ISSA, 3.A^ CIVIL APPEAL NO. 137 OF 2024 GRUMETI RESERVES...................................................................... APPELLANT VERSUS MARY M LAY...............................................................................RESPONDENT Appeal from the Judgment and Decree of the High Court of Tanzania (Labour Division) at Arusha) (Tiqanqa, 3.) dated the 14th day of July, 2022 in Labour Revision No. 54 of 2020 JUDGMENT OF THE COURT 4th & 13th May, 2026 RUMANYIKA, J.A.: The respondent, Mary Mlay, was employed by the appellant on 18th July 2017, as Senior Human Resource Manager. The events giving rise to the dispute occurred on 26th January 2019 at Faru Faru Lodge, one of the appellant's luxury lodges within Serengeti National Park. The respondent had visited the lodge accompanied by her husband, their child and a friend, one Bahati Sumuni. The visit was personal, not in the respondent's capacity as employee as she paid for the services given. During that visit, the respondent expressed interest in some items found in the guest rooms, namely, bath salts, room mist, wine, shampoo game drive bags, i and a cowboy-cap. A housekeeping staff member at that time on duty, Mercyciana Kiharata Meki, picked those items from the lodge's stock and placed them in the respondent's car. The items noticed missing, the appellant initiated disciplinary proceedings that culminated into termination of the respondent's employment contract, for the offence of gross dishonesty, vide a letter dated 14th February 2019. Aggrieved, the respondent instituted a labour dispute in the Commission for Mediation and Arbitration (the CMA) which ultimately determined it in favour of the appellant, holding that the termination was substantively and procedurally fair. Dissatisfied with the outcome, the respondent approached the High Court (Labour Division) on revision. She won that battle. The decision aggrieved the appellant, hence the present appeal, with five points of grievance. They are paraphrased thus; One, the learned Judge failed to hold that the offence of gross misconduct was not proved, two, the learned Judge's failed to appreciate clear admission of the charge by the respondent, three, the learned Judge misapplied the required standard of proof in labour cases, four, the learned Judge erred in finding that the incident ought to have been reported to ordinary State Criminal Investigative Machinery; and five, the learned Judge awarded the inappropriate remedy of reinstatement of the respondent. 2 Messrs. Innocent Mushi and Nicodemus Mbugha, learned counsel represented the appellant and the respondent, respectively. Upon adopting the appellant's written submission filed on 11/12/2023 as part of his oral submission on the first and second grounds of appeal. Mr. Mushi faulted the learned Judge for his finding that the termination of the respondent's contract of employment in all aspects was unfair. He contended that, the learned Judge in his decision improperly construed rule 12(3)(a) of the Employment and Labour Relations (Code of Good Practice), GN No. 42 of 2007, read together with Rule 5 of the Guidelines for Disciplinary, Incapacity and Compatibility Policy and Procedures. That, the evidence was vividly clear against the respondent, after she had admitted liability of gross misconduct, as charged as appearing in exhibit P4 on page 79 of the record of appeal. The third ground of appeal notably faults the learned Judge, allegedly for having subjected the labour case to a degree of proof higher than is required. Mr. Mushi contended that, according to rule 4(7) of the Code of Good Practice, reliance on section 258 of the Penal Code was a serious misconception of the law and erroneous. About the fourth point of grievance, Mr. Mushi took issue with the High Court's observation on page 18 of the judgment, that the matter ought to 3 have been referred to State Investigative Machineries. Mr. Mushi considered this observation to be irregular and improper. He asserted that, commonly, employment disputes are only governed by distinct and self-sufficient statutory framework, in accordance with the Labour Institutions Act, (the LIA) the Employment and Labour Relations Act, (the ELRA) and other relevant regulations and guidelines. On the fifth ground of appeal, Mr. Mushi assails the order of reinstatement of the respondent, arguing that, the remedy was inappropriate in the circumstances of the case. That, had the learned Judge considered all the obtaining circumstances, he would have arrived at a different conclusion. Clarifying, Mr. Mushi asserted that, the employment relationship between the parties had actually become sour and of zero-tolerance. That the employer's trust with the respondent was completely lost, in light of rule 32(2)(b), (c), and (d) of the Code of Good Practice. In fine, the learned counsel accordingly urged the Court to allow the appeal in its entirety. Opposing the appeal, Mr. Mbuga began by adopting the respondent's written submission filed on 11/01/2024 as part of his oral submission. On the first ground, it was contended that the learned Judge was right and cannot be faulted. That he properly directed himself to evidence and the law applicable, arriving at a comprehensive and sound decision that the employment was unfairly terminated. Regarding the second ground of appeal, the learned counsel refuted the assertion that the respondent admitted to have committed the charged offence. He referred the Court to pages 117 and 132 of the record of appeal, to show that the plea was not of guilty. It was also maintained that, there was no admission of breach, either of the appellant's policies or work standards, but bare allegations which are inconsistent with the record. The third and fourth grounds of appeal, addressed simultaneously, Mr. Mbugha contended that, the learned Judge was right to hold that the charged offence attracted a relatively higher standard of proof than a mere balance of probabilities. That, indeed it required involvement of State Investigative Authorities in the circumstances of the case. On the fifth ground, Mr. Mbugha asserted that, the learned Judge properly applied section 40(3) of the Employment and Labour Relations Act, granting remedy of reinstatement. Mr. Mbugha in his view, the learned Judge rightly held that the disciplinary hearing was procedurally flawed, rendering the termination unfair. He therefore urged the Court to dismiss the appeal for lack of merit. We have considered the learned counsel's rival submissions and scanned the record sufficiently. The pivotal issues for our determination are; one, whether termination of the respondent's contract of employment was fair and two, whether the order of her reinstatement was an appropriate remedy under the circumstances. With regard to the first ground of appeal, essentially, the complaint calls for interpretation of the applicable labour laws, as listed above. Considering the nature and substance of the charged offence and the obtaining circumstances, it is inconceivable to us that the appellant was convicted for gross dishonesty, founding the basis of termination of her contract of employment. We shall explain later. About the second ground of appeal, we do not see basis for the finding that appearing before the Disciplinary Committee, the respondent admitted to have committed the charged offence. Our take off point is to define what amounts to gross dishonesty or gross misconduct, as it may be called at times. Its ordinary meaning is; severe deception, fraud, or misrepresentation in a professional or fiduciary context, typically creating a fatal breach of trust between employer and employee. Therefore, essential ingredients of gross dishonesty could be an act or omission made 6 by employee in ordinary course of business, adversely impacting on the employer. Notably, when the charge was read to the respondent during the disciplinary hearing on 13th February 2019 and asked to plead thereto, she explicitly denied it. A not-guilty plea was accordingly entered, as appearing on page 30 of the record of appeal. She consistently maintained, throughout the proceedings that she had got to the lodge like any other innocent guests and enjoyed supper, not as employee thereof. Indeed, on being found guilty, the respondent, in mitigation is on record at page 35 to have asserted that, she neither stole the items nor was it her intention to, but it had taught her a lesson. In fact, the charged offence required a relatively higher proof of dishonesty or unauthorised appropriation of the items in the list on the part of the respondent. However, the mere act of the respondent to have successfully requested and obtained the items from the said Meryciana, a house keeper on duty then, without more, did not satisfy the ingredients of the charged offence. This is irrespective of the respondent's remarks in mitigating that it had taught her good lesson which was bad luck. Those assertions do not, in our consider view necessarily mean revocation of her earlier denial of the charge, as correctly found and held by the learned 7 Judge. It is so because the burden to prove fairness of the termination irresistibly solely lies on the employer, in this case the appellant. Additionally, the evidence of Meryciana who undisputedly issued the items to the respondent on request, poses an incredible and unreliable version. It has to be taken with great caution because, if anything, the witness seemingly was accessory before and after the fact, with interest to serve. See- Godfrey Elisalia & Others v. R (Criminal Appeal No. 39 of 2022) [2023] TZCA 17325. This is regardless of the required degree of proof of the charged offence, which is on balance of probabilities. We have scanned the entire proceedings of the disciplinary committee (exhibit P4 appearing on pages 131 to 138 of the record of appeal) and given its due consideration. Sincerely, it does not demonstrate the respondent's alleged admission of liability and guilty. It is not forthcoming. The second complaint is dismissed. Without prejudice to the preceding deliberations, it is worth noting that, in order for the alleged guilty of the respondent to stand, one more essential fact needs be established, as previously promised to be explained. It was not proved by evidence that the respondent committed the offence while on duty as employee of the appellant. It is evident that the respondent got there accompanied by members of the household 8 including her husband, child and a friend, like any other visitors (but non residents), for super. As alluded to before, the respondent accordingly paid for the service. This is exhibited on page 182 of the record of appeal. It would have been a different scenario, which is not the case, if the evidence proved that, apart from being permanent, the respondent was also full-time employee of the appellant. Therefore, gross dishonesty was not an appropriate and fit charge in the circumstances of the case. In addition, assuming that the respondent took the items from the rooms, pretending to be resident therein, which is not the case, still the offence would not be of dishonesty. She should have been charged before a criminal court, perhaps for offences of obtaining goods by false pretences or stealing contrary to provisions of the Penal Code. That is where the degree of proof would perhaps be relatively higher, as observed by the learned Judge. Fortunately, the said Meryciana testified that the said items were taken from the Hotel stock (not the resident rooms). Therefore, now that the respondent was improperly charged, as demonstrated above, the mishap renders the proceedings vitiated and therefore, the award of the High Court set aside. The second ground of appeal is dismissed. The third ground of appeal, we recall, is about invocation by the High Court of section 258 of the Penal Code, calling for a relatively higher degree of proof, as is in criminal trials. To state the obvious, the proceedings before the CMA, subject of this appeal were wholly of civil character, whose standard of proof strictly was on balance of probabilities. See: Brian Celestine & Others v. The Salvation Army Tanzania Territory (Civil Appeal No. 372 of 2020) [2023] TZCA 17931. It was incumbent upon the appellant, in the present case to only establish on balance of probabilities, that the respondent's conduct amounted to gross dishonesty resulting to termination of the employment, which she failed. Therefore, to report the charged offence to the police first, before concluding disciplinary proceedings is and was not a legal requirement, just as the two processes are independent of another. See- CCBRT Hospital v. Daniel Celestine Kivumbi (Civil Appeal No. 437 of 2020) [2023] TZCA 17599. This ground succeeds. Ground four of appeal needs not detain us than is necessary, considering our observations on the preceding points of grievance. The charged offence and the respective proceedings, no doubt, were not those governed by criminal law and procedure. Notably, it was not a reportable case to State Investigative Authorities, but to a labour tribunal, as it was 10 done. Its proof is another aspect, as shown above. The guidelines require that resolution of labour disputes shall be regulated by the Employment and Labour Relations Act, and the Code of Good Practice made under GN No. 42 of 2007. Its legal framework obliges the employer to establish and prove that the termination was substantively and procedurally fair, in terms of the section 39 the ELRA. We need not to emphasize on this legal principle. This ground succeeds. Last but not least is the fifth ground of appeal which assails the court order giving remedy of reinstatement of the respondent. That, in arriving at it, the learned Judge did not observe all the conditions required, in line with rule 32(2)(b), (c), and (d) of the Labour Institutions (Mediation and Arbitration Guidelines), GN No. 67 of 2007. The remedies awardable, where termination is found by the court to be substantively unfair are several. It could be reinstatement, re-engagement, or compensation. However, all is subject to some considerations, a roadmap for the choice of an appropriate remedy. It depends on the circumstances of each particular case. For instance, it is common ground that reinstatement is not viable where the employee is adamant to come back or that the employment relationship has been intolerable. Equally, where it is reasonably impracticable for the employer to reinstate or re-engage the employee, the court cannot insist on the remedy. It is unfortunate, in the i i present case that the learned Judge did not demonstrate consideration of any one of the said criteria. More so, it is not said that the position previously held by the respondent was still vacant. In absence of the said analysis, it can hardly be said that the High Court properly exercised its discretion to order reinstatement. It is substituted with that of compensation. Therefore, the fifth ground of appeal is allowed. In light of the foregoing, the appeal is allowed only to the extent demonstrated above. DATED at ARU SH A this 13th May, 2026. P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL Judgment delivered this 13th day of May, 2026 via teleconferencing in the presence of Messrs. Innocent Mosha and Nicodemus Mbugha, learned counsel for the appellant and the respondent respectively and Mr. Nelson Novati, Court Clerk in person is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL 12