Frank Boman vs Vodacom Tanzania Limited Company (Civil Appeal No. 2059 of 2025) [2026] TZCA 528 (12 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM: KFREFU. J.A- MWAMPASHI.. J.A And ISMAIL-, 3-A.) CIVIL APPEAL NO. 2059 OF 2025 FRANK B O M A N ..................................... ............................................APPELLANT VERSUS VODACOM TANZANIA LIMITED COMPANY ............................... RESPONDENT [Appeal from the Decision of the High Court of Tanzania (Labour Division) at Dar es Salaam] f Mlvambina, 1,) dated 19th day of December, 2024 in Labour Revision No. 26550 of 2024 1 IID G M E N T OF THE COURT 17th April & 12th May, 2026 MWAMPASHI, J.A.: The appellant, Frank Boman, was on 01.07.2003, employed by Vodacom Tanzania Limited Company, the respondent herein, as a Payroll Assistant. As time went by, he was promoted to the position of Payroll Manager, the position he held until 27.03.2023 when he was terminated on ground of misconduct. During his annual leave in 2021, the appellant went to visit his family in Canada. When his leave came to an end on 05.01.2022, the appellant did not report back to his workstation in Dar es Salaam, Tanzania. He remained in Canada till on 28.03.2022 when he sent an email (exhibit V2) to his line manager informing him that, he was attending to his wife who had been involved in an accident. He also asserted that, he had decided to remotely work from abroad and would continue to do so for the coming 6 months in accordance with the Vodacom Tanzania Pic Remote Ways of Working Policy (the Policy). It is also worth noting that, by 28.03.2022, the appellant had already been out of his workstation for 80 days in violation of the Policy which allows remotely working from abroad for only 20 days. Despite that, and according to the email dated 03.09.2022 (exhibit V7) from the respondent's HR Business Partner, it appears the violation of the Policy was condoned and the appellant was allowed to work remotely from abroad for 6 months up to 31.08.2022 as suggested by him. By the same email, the appellant was reminded that, the period of 6 months he had requested to remotely work from abroad had expired on 30.08.2022. Most importantly, through that email (exhibit V7), the appellant was directed to physically report back to his workstation on 05.09.2022. The appellant did not return and even when time to do so was extended by his line Manager through exhibit V8, to 03.10.2022, still the appellant did not show up. Discontented with the appellant's conduct, the respondent initiated disci pi inary proceedings and investigations which culminated to the appellant being charged with three counts namely; working remotely outside the country without permission for more than 20 days contrary to the Policy, absence from work for more than 5 days without permission and gross insubordination. The Disciplinary Committee which conducted the hearing via video conference connecting the appellant from Canada, found the appellant guilty of all three counts and recommended for the appellant's dismissal. Thereafter, on 27.03.2023, the appellant was dismissed and was paid his terminal benefits, to wit, one month salary amounting to TZS. 6,300,000.00, TZS. 6,400,000.00 as notice pay and TZS. 1,707,800.00 as the accrued leave. Aggrieved and believing that he was unfairly terminated, the appellant referred the dispute to the Commission for Mediation and Arbitration for Dar es Salaam (the CMA) vide Labour Dispute No. CMA/DSM/KIN/224/2023/154/2023 which was decided in his favour. The CMA found that, the appellant was unfairly terminated both substantively and procedurally and it thus, ordered reinstatement of the appellant without loss of remuneration. Dissatisfied with the CMA award, the respondent successfully applied for revision of the award before the High Court (Labour Division) in Labour Revision No. 26550 of 2024 whereby the CMA award was upset. The High Court found that, the termination was fair both substantively and procedurally. In this appeal, the appellant faults the High Court decision on the following three grounds of appeal: 1. That, the High Court erred in iaw in holding that the respondent had fa ir reason to term inate the appellant thereby wrongly upsetting the CMA award which had conclusively found the term ination to be substantively unfair. 2. That, the High Court erred in law in holding that the procedure in term inating the appellant was fa ir thereby wrongly upsetting the CMA award. 3. That, the High Court erred in law in failin g to conduct a proper analysis o f the evidence on record leading to a m iscarriage o f justice. When the appeal came before us for hearing, Messrs. Antipas Seraphine Lakam and Luka Elingaya, both learned advocates, appeared for the appellant and respondent respectively. Upon being invited to argue the ground of appeal, Mr. Lakam abandoned the 3rd ground of appeal. He then, without more, implored upon us to allow the appeal on the basis of the written submissions he had earlier lodged on 15.12.2025 in terms of rule 106 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) together with the list of authorities filed on 13.04.2026. Likewise, Mr. Elingaya who had also lodged his written submissions in reply in terms of rule 106 (7) of the Rules on 14.01.2026 and the list of authorities on 13.04.2026, adopted the same and prayed for the appeal to be dismissed. In support of the 1st ground of appeal, it is argued in the written submissions that, the High Court failed to properly evaluate the evidence on record hence erroneously holding that, there were valid reasons for the termination. It was submitted that, absenteeism which requires strict proof was not proved. Placing reliance on the decision of the High Court in JC Gear Expo-com AB (T) Ltd v. Jumbe Karata & Another [2021] TZHC 5377, it was contended that, in terms of section 110 (1) of the Evidence Act [Cap. 6 R.E. 2022], the respondent was required to prove that the appellant was absent. It was insisted that, the appellant was actively working remotely with the approval of his line manager Mr. Robin Kimambo who was not called to testify. On that account, the Court was urged to draw an adverse inference against the respondent in terms of Simon Mugenjwa & Another v. Ibrahim S. Magembe [2023] T7CA 1 7 4 4 0 . it was further argued that, the fact that the respondent continued working with the appellant from 06.01.2022 to the date when his employment contract was terminated had no other definition but that, the appellant was not absent and was allowed to remotely work from abroad. Regarding the accusations that the appellant violated the Policy, it was submitted that, since the appellant was permitted by his line manager to remotely work from abroad, it cannot be said that the Policy was violated. On insubordination, it was contended that, there was no proof that the appellant deliberately refused to obey any lawful and reasonable instructions. It was submitted that, the appellant's failure to report back to his workstation by 03.10.2022 was not an act of deliberate defiance but was due to on-going medical necessities and procedures. The respondent's instruction was said to have lacked the test of reasonableness as it failed to accommodate the appellant's health status and medical predicaments. On the 2n d ground of appeal, it was submitted that, the termination was procedurally unfair because no evidence was led by the respondent before the Disciplinary Committee. It was expounded that, during the disciplinary hearing no witness testified and no exhibit was tendered. It was pointed out that, this fact, was conceded by DW1 who admitted in cross-examination before the CMA that, during the hearing before the Disciplinary Committee, no evidence was presented by the respondent. The fact that no evidence was presented was also proved by exhibit V I6 (a recorded disciplinary hearing proceedings). It was further argued that, a disciplinary hearing without evidence is not only against rule 13 (5) of the Employment and Labour Relations (Code of Good Practice) G.N, No. 42 of 2007 (the Code of Good Practice Rules), but it is also a violation of the right to be heard. It was insisted that, the appellant was denied the right to cross-examine witnesses and was deprived of a fair hearing contrary to the principles of natural justice. Based on the foregoing submissions, Mr. Lakam prayed for the appeal to be allowed because the appellant's termination was unfair both substantively and procedurally. Against the appeal, in the respondent's written submissions in reply, it was submitted that, the appeal is baseless because the High Court did not err in holding that the appellant's termination was both substantively and procedurally fair. Submitting on the 1st ground of appeal, it was argued that, absenteeism was proved to the required standard. That, after his annul leave came to an end, the appellant did not return to his workstation; that, the appellant's allegations that his wife and himself were sick, were not substantiated by any evidence; that, the appellant did not request for permission or apply for leave of absence before absenting himself from his workplace. It was insisted that, there is sufficient evidence on record showing that the appellant was absent from his workstation without permission or acceptable reason in violation of rule 9 (1) of the Code of Good Practice. Regarding the contravention of the Policy, it was submitted that, the appellant started working remotely from abroad without having first obtained the permission to do so and further that, he continued doing so for the period beyond 20 days allowable under the Policy. On insubordination, it was the respondent's submissions that, the appellant disobeyed several instructions including when on 22.08.2022, according to exhibit V8, he was directed by his line manager to report to his workstation by 03.10.2022. With regard the 2n d ground of appeal, it was submitted for the respondent that, in terminating the appellant, the procedure under rule 13 of the Code of Good Practice was followed to the letter. It was expounded that, on 16.02.2023, the appellant was issued with a notice of the disciplinary hearing and was notified of the three charges he was charged with. He was also notified of the hearing date, the place and time of the hearing and his right to appear with a representative and call witnesses. It was thus, concluded that, the High Court properly held that the termination was procedurally fair. The Court was urged to dismiss the appeal for being baseless. Having considered the grounds of appeal, the parties written submissions for and against the appeal together with the list of authorities relied upon by the parties, it is our considered view that, the issue calling for our determination is whether or not the appellant was fairly terminated. According to section 37 of the Employment and Labour Relations Act [Cap. 366 R.E. 2019] (the ELRA), for the termination of employment to be fair it should be based on valid reasons and fair procedure. In the instant appeal, the 1st ground of appeal canvasses the complaint on whether there were valid reasons warranting the appellant's dismissal from employment. Based on the evidence on record, it is common ground that, after his annual leave had come to an end on 05.01.2022, the appellant did not report back to his workstation in Dar es Salaam. He remained in Canada where he had gone to visit his family. On 28.03.2022, when he sent an email (exhibit V2) to his line manager requesting for a special approval to remotely work from abroad for six months up to 30.08.2022, the appellant was already in breach of Clause 4.5(b) of the Policy for not having first requested and granted the approval for him to remotely work from abroad before the expiry of his annual leave on 05.01.2022. That notwithstanding, according to an email sent to the appellant by the HR Manager dated 03.09.2022 (exhibit V8), permission for the appellant to remotely work from abroad as requested by him was acknowledged to have been given. Via the same email, the appellant was directed to report back to his workstation on 05.09.2022. He did not report and according to an email he sent to the HR Manager on 05.09.2022, the appellant could not report back to his workstation because the cyst on his neck was getting bigger necessitating the doctor s attention. Having failed to report on 05.09.2022 as directed, the appellant was again on 22.09.2022, directed to report to his workstation by 03.10.2022 but did not show up. Based on the above, we are in agreement with the High Court's holding that, with the exclusion of the period from 05.01.2022 to 30.08.2022 when the appellant was permitted to remotely work from abroad, the appellant was absent from work without permission from 01.09.2022 to the date he was terminated. We are also satisfied from the evidence on record that, reasons given by the appellant to justify his absence from work were not satisfactory. Having stayed abroad out of his workstation for more than 12 months, he failed to submit evidence 10 substantiating his claim that his wife was sick and needed him to stay with her. The seriousness of his own illness was also not substantiated to the satisfaction of his employer. It is thus, our considered view that, absenteeism which by itself constitutes a misconduct warranting termination, was proved. See- Mbezi Beach Secondary School v. Elias Naligia [2025] TZCA 949. In the same vein, it is our finding that, working remotely outside the country without permission for more than 20 days contrary to the Policy was also proved against the appellant. On insubordination, it is our considered view that, having found that the appellant was absent from work since 01.09.2022, the facts that he refused or failed to report back to his workstation on 05.09.2022 and 03.10.2022 as directed by his line manager and the HR Manager, cannot amount to disobedience hence insubordination. All the same, absenteeism and working remotely outside the country without permission contrary to the Policy were valid reasons for termination. Regarding the 2n d ground of appeal on the issue of the fairness of the procedure, the complaint is that the hearing before the Disciplinary Committee was not conducted in accordance with the procedure under rule 13 of the Code of Good Practice Rules. In particular, it was ii complained that no evidence was given to prove the charges against the appellant which is contrary to rule 13 (5) of the Code of Good Practice Rukes. On this, having gone through the recorded disciplinary hearing proceedings (exhibit V16), we are in agreement with the appellant that the procedure was flouted. Apart from the admission by DW1 that, no witness testified during the disciplinary hearing and that the evidence in support of the charges was directed to be forwarded to the Chairperson later after the hearing, it is evident from exhibit V16 that, at the beginning of the hearing, the charges were read over and explained to the appellant. When asked to respond by stating whether he admits the charges or not, the appellant refused to make any response. However, he asked the Chairperson to proceed with the hearing and make the decision she wished to make. He also complained that, to him, the on-going exercise was meaningless because the decision against him had already been made. Thereafter, without letting the employer give evidence in support of the charges, the Chairperson directed the line manager Mr. Robin Kimambo to forward to her, later after the hearing, any relevant documents containing the evidence in support of the charges. She also directed the appellant to do the same if he so wished. Having done so, she reserved her decision which she said would be made on the basis of the evidence that would be forwarded to her. 12 Based on what transpired before the Disciplinary Committee as above explained, it is our conclusion that, the procedure adopted after the appellant had refused to respond to the charges read over to him, was irregular. We are of the view that, at that point and under those circumstances, the Chairperson ought to have noted that, the appellant had denied the charges levelled against him and evidence in support of the charges was required to be given in terms of rule 13 (5) of the Code of Good Practice Rules. The omission to let witnesses testify and give evidence in support of the charges was not only fatal but also prejudicial. It denied the appellant a fair hearing. Faced with a similar predicament, the Court, in the case of Athur Mgongo v. KCB Bank Tanzania Limited [2024] TZCA 1205, stated that: "Essentially, the purpose o frule 13 (5) o f the Code o f Good Practice is to provide an em ployee a fa ir hearing o fthe allegations raised against him a t the D isciplinary Committee. Therefore, if an em ployee is denied the righ t to know the substance o f the em ployer's evidence and to examine the em ployer's witnesses or to go through docum entary evidence intended to be tendered against him, that is a fa ta l irregularity which vitiates the proceedings towards the term ination". As no witness testified and no documentary evidence was tendered at the hearing before the Disciplinary Committee as observed above, the appellant was denied a fair hearing. Further, the irregularity vitiated the disciplinary hearing proceedings. The High Court did therefore err in holding that the termination was procedurally fair. The 2n d ground of appeal has merit and it is accordingly allowed. Since the termination was substantially fair but procedurally unfair as we have found above, the pertinent question is what should be the reliefs. In resolving that issue, we are mindful of the fact that, in the CMA Form No.l, the appellant sought reinstatement without loss of remuneration and payment of his terminal benefits. We are also cognizant of rule 32 (2) of the Labour Institution (Mediation and Administration Guidelines) Rules, 2007 GN. No. 67 of 2007, under which it is stated that: "32 (2) The arbitrator sh a ll not order reinstatem ent o r re-engagem ent where- (a) the em ployee does not wish to be reinstated or re-engaged; (b) the circum stances surrounding the term ination are such that a continued employment relationship would be intolerable; 14 (c) it is not reasonably practical fo r the em ployer to reinstate or re-engage the employee, or (d) the term ination is unfair because the em ployer did not follow a fa ir procedure". Based on the above, it is our considered view that, because the termination was unfair procedurally, the appellant cannot be reinstated as sought by him. Further,reinstatement cannot be ordered because we are also not certain that the position the appellant held before the termination is still vacant. Under the circumstances, we think, the appellant is entitled to compensation. In the case of Compassion International Tanzania v. Nickson Alex [2025] TZCA 814, where the termination, as it is in the instant appeal, was substantively fair but procedurally unfair, the Court declined to reinstate the respondent. Instead, it ordered for compensation of 12 months remuneration. Also, in the case of Kenya Kazi Security T. Ltd v. Rukia Abdallah Salum [2024] TZCA 90, taking into account that, the quantum of compensation to be awarded in cases where reasons for termination are valid but the procedure is flouted is discretional dependent on the facts of each case and guided by the criteria set under rule 32 (5) of the Labour Institution (Mediation and Administration Guidelines) Rules, 2007, 15 the Court found that, the 12 months' salary compensation awarded by the High Court to the respondent was unjustifiable. It thus, replaced it with a 3 month's salary compensation. For ease of reference, it is provided under rule 32 (5) that: "32 (5) subject to sub-rule (2), an arbitrator may make an appropriate com pensation based on the circum stances o f each case considering the follow ing factors - (a) any prescribed m inima or maxima com pensation; (b) the extent to which the term ination was unfair; (c) the consequences o f the unfair term ination fo r the parties, including the extent to which the employee was able to secure alternative work or employment; (d) the am ount o f the em ployee's rem uneration; (e) the am ount o f the com pensation granted in previous sim ilar cases; (f) the parties conductduring the proceedings; and any other relevant factors Having taken into consideration the above factors, particularly the conduct of the appellant who was not cooperative during the proceedings 16 before the Disciplinary Committee, we order for him to be paid six (6) months' salary as compensation for unfair termination. All said and done, the appeal is allowed to the extent explained above. Given the nature of the matter, we make no order as to costs. DATED at DODOMA this 12th day of May, 2026. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered Virtually this 12th day of May, 2026 in the presence of Mr. Antipas Seraphine Lakam, learned counsel for the appellant and Mr. Lucas Elingaya, learned counsel for the respondent and Mr. Shafii Kassim, Court Clerk; Court is hereby certified as a true copy of the origir 17