Tanzania Social Action Fund & Another vs Ludovicka L.S. Tarimo (Civil Appeal No. 247 of 2024) [2026] TZCA 480 (5 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: NDIKA, J.A., MURUKE, J.A., And MGEYEKWA, J.A.) CIVIL APPEAL NO. 247 OF 2024 TANZANIA SOCIAL ACTION FUND..............................................1 st APPELLANT THE PERMANENT SECRETARY, PRESIDENT'S OFFICE................................................................2 n d APPELLANT VERSUS LUDOVICKA L.S. TARIMO........................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Dar es Salaam) (Mashaka. 3.) dated the 13th day of December, 2017 in Revision No. 217 of 2017 JUDGMENT OF THE COURT 14* April & 5th May 2026 NDIKA. J.A.: The respondent, Ludovicka L.S. Tarimo, successfully contested her employment termination at the Commission for Arbitration and Mediation ("the CMA"). She achieved success once more in the High Court, Labour Division at Dar es Salaam, where Tanzania Social Action Fund and the Permanent Secretary - the President's Office, the first and second appellants respectively, vainly sought a revision of the CMA's award. The appellants, dissatisfied with the aforesaid conclusion, now appeal to this Court. i The appeal arises from the following context: the respondent was employed by the first appellant on a two-year fixed-term contract (exhibit T l) commencing on 6th January 2014 in the post of Livelihood Enhancement Manager at a monthly remuneration of USD. 4,355. She was placed on probation for six months for the first appellant to assess and determine if she was fit for the position. On 27th August 2014, the first appellant notified her vide a letter referenced as TSF/PF/C/16/14 (exhibit T3) that the probation period had been extended from the expiry of the initial probationary period to 31s t December 2014. The extension applied to all new employees following the first appellant's decision to extend the contract of a transformation consultant responsible for revising the performance appraisal form. We should, at this point, assert a comment in accordance with rule 10 (5) of the Employment and Labour Relations (Code of Good Practice) Rules, Government Notice No. 42 of 2007 ("the Code of Good Practice Rules"), which stipulates that an employer may only extend the probationary period for an additional reasonable duration following consultation with the employee. The extension in this case was unilateral, lacking any consultation with the respondent or her similarly impacted colleagues. The CMA disregarded the matter as the respondent did not explicitly raise a complaint regarding it. 2 It is pertinent that exhibit T3 indicated that the respondent's appraisal would be conducted and accomplished within the next three months: "Within the next 3 months, your immediate supervisor wiii work closely with you to accomplish the assessment process and fill out your performance appraisal form accordingly. We would very much appreciate your cooperation on this matter so as to maximize transparency and accountability". The respondent asserted at the CMA that in November 2014, she completed Part B of her performance appraisal form (exhibit T4) and delivered it via email and in hard copy to her supervisor, Mr. Amadeus Kamagenge, the Director of Community Support, who testified as DW1. She bemoaned the absence of an appraisal following her submission and expressed astonishment at the abrupt termination of her employment on 22n d December 2014. She also lamented that she had never encountered her supervisor and that no issues regarding her performance had been communicated to her. She further stated that she had reported to the Human Resources Manager, Ms. Thecla Makundi (DW2), regarding her supervisor's failure to discuss and appraise her performance. 3 Conversely, DW1 claimed that he conferred with the respondent and evaluated her as mandated. Ultimately, he did not endorse her for confirmation due to her use of harsh language against colleagues, aggressive behaviour towards senior officers, failure to adhere to protocol, and refusal to comply with directives from superiors. During cross- examination, DW1 affirmed that he consulted with the respondent on her appraisal, which was scheduled to conclude on 22n d December 2014. He acknowledged that there was no proof of the said appraisal discussion. He also admitted that he presented his view regarding the respondent to the Executive Director on 19th December 2014. It is also in the evidence that he submitted an internal memo dated 23rd December 2014 (exhibit T5) to the Executive Director stating that he had met the respondent on 22n d December 2014. When asked about the purpose of his proposed meeting with the respondent on 22n d December 2014, despite having already recommended non-confirmation, DW1 maintained that the meeting would not have influenced or changed his decision, as he perceived no possibility for the respondent's improvement, even with an opportunity to try to do so. DW2 acknowledged that the respondent had expressed concerns over her failure to meet with her supervisor for appraisal. According to the first appellant's policy, the supervisor and supervisee are required to 4 confer prior to the supervisor assigning a grade to the supervisee, subsequently submitting the completed performance appraisal form to the Human Resources Manager before it is ultimately forwarded to the Executive Director for the final decision. She also affirmed that the respondent was recognised for her use of abrasive language towards co workers, confrontational conduct towards senior officers, non-compliance with protocols, and obstinacy in following directions from superiors. According to rule 8 (1) and (2) of the Code of Good Practice Rules, the CMA recognised that premature termination of a fixed-term contract without the employee's consent is improper and illegal unless executed in accordance with the contract's stipulations. Additionally, the CMA observed that a probationary employee is entitled to fair labour practices as stipulated in rule 10 (7), (8), and (9) of the Code of Good Practice Rules, and any violation of these provisions would warrant compensation for the employee. Ultimately, the CMA found the respondent's claim compelling on the ground that the first appellant breached the procedure. It granted her USD 52,260 as compensation for the remaining twelve months of her contract. Nonetheless, it rejected her claim for TZS 100,000,000.00 in damages due to insufficient evidence. In the revision before the High Court, the learned judge determined that the issue of contention was whether there were established procedures to be adhered to prior to the termination of the respondent as a probationary employee. The learned judge answered affirmatively to the matter, citing rule 10 (1) to (9) of the Code of Good Practice Rules. The appellant was found to have breached subrules (6) to (9) of that rule by: first, neglecting to monitor and evaluate the respondent's performance; and secondly, failing to inform the respondent of its concerns regarding her performance and provide her with an opportunity to reply or improve. Consequently, the court affirmed the CMA's verdict and dismissed the revision. Mr. Deodatus Nyoni, learned Principal State Attorney, collaborated with Ms. Grace Lupondo, learned Senior State Attorney, and Mses. Janeth Madulu and Neema Sarakikya, learned State Attorneys, to represent the appellants. The appeal was strongly contested by Mr. Godwin Nyaisa and Ms. Kavola Semu, learned counsel for the respondent. The appellants initially submitted four grounds of appeal but argued just three in their written submissions and oral argument. We shall commence with the initial grievance. It criticises the High Court: " . . . for awarding the respondent compensation while quashing the CMA's award on the reason that it wrongly held the termination was substantively and procedura/iy unfair". 6 The record of appeal shows on page 188 that the CMA, after analysing the evidence and citing pertinent statutory provisions, concluded that: "the termination o f the [respondent] was unlawful both substantively and procedurally and hence breach o f contract". [Emphasis added] The above conclusion presupposed that the claim pursued by the respondent was an unfair termination claim under Sub-Part E of Part III of the Employment and Labour Relations Act, Cap. 366 R.E. 2023 ("the ELRA"). Believing that the unfair termination procedure was, pursuant to section 36 of the ELRA, inapplicable to probationary employees, the learned judge, on page 288 of the record of appeal, quashed the CMA's finding that the impugned termination was unfair substantively and procedurally. The appellants argued that, considering the aforesaid decision by the learned judge, there was no justification for upholding the CMA's compensation award. In contrast, Mr. Nyaisa refuted this assertion, contending that the CMA's error in confusing unfair termination with breach of contract was appropriately rectified by the learned judge. He 7 insisted that the compensation was attributed to breach of contract following non-confirmation rather than unfair termination. The learned judge's assertion that the unfair termination procedure did not apply to a probationary employee was erroneous. The Court recently affirmed in Seet Peng Swee v. Total Tanzania Limited [2025] TZCA 978 that a probationary employee with a minimum of six months' service is entitled to approach the CMA and file a claim for unfair termination. The Court determined that section 36 of the ELRA should be interpreted literally: it excludes employees with fewer than six months of employment from the wrongful termination process but does not unequivocally bar employees who have completed six months only due to their probationary status. The critical factor under section 36 is the requisite six months of service, rather than simply the probationary status. Pages 287 to 288 of the appeal record explicitly demonstrate that the learned judge correctly asserted that non-compliance with rule 10 (6), (7), (8), and (9) of the Code of Good Practice Rules prior to the termination of a probationary employee constitutes a breach of the employment contract, thereby entitling the employee to compensation for the remainder of the contract term. The awarded compensation was, therefore, ascribed to a breach of contract due to non-confirmation. 8 Whether the compensation was warranted is the subject of the second ground of appeal. Consequently, the first ground of the appeal fails. The second ground of appeal contends as follows: " That the High Court erred in iaw in awarding compensation for the remaining period o f the contract to the respondent who was not confirmed after the probationary period'. Ms. Lupondo asserted that the respondent was aware that her employment was contingent upon probation, and that upon exhibiting sufficient performance, she would be confirmed in her role. She was adamant that the first appellant upheld fair labour standards by adhering to rule 10 (6), (7), (8), and (9) of the Code of Good Practice Rules prior to opting not to confirm the respondent. She specified that the respondent's supervisor (DW1) assessed the respondent's performance through various meetings. During the said encounters, he conveyed his concerns about her performance and afforded her the opportunity to respond or enhance her performance. Ultimately, DW1 advised against confirmation after concluding that she would not exhibit improvement. Ms. Lupondo based her argument on several decisions. Initially, she cited Stella Temu v. Tanzania Revenue Authority [2005] T.L.R. 178 and Mtenga v. University of Dar es Salaam (1971) HCD 247 to assert 9 that confirmation is not automatic, and that non-confirmation does not equate to termination. Additional reference was made to EFC Tanzania Microfinance Ltd v. Fatuma Mwaimu [2024] TZHCLD 60, a decision of the High Court, Labour Division at Dar es Salaam. The court determined that, while a probationary employee lacks access to all remedies afforded to a confirmed employee, they are entitled to compensation in instances of procedural violations during their termination. In contrast, Mr. Nyaisa re-examined the material on record and supported the concurrent determination by the CMA and the High Court that the first appellant violated the procedure outlined in rule 10 (6), (7), (8), and (9) of the Code of Good Practice Rules. He stated that there was no monitoring or evaluation of the respondent by DW1, and that the decision of non-confirmation was rendered suddenly without any prior discussion or counselling or opportunity to enhance performance. He, therefore, implored us to conclude that the first appellant could not have legitimately invoked rule 10 (8) of the Code of Good Practice Rules to terminate the respondent. It is instructive to quote the entirety of rule 10 from the Code of Good Practice Rules: "10. -(1) A ll employees who under probationary periods o f not less than six months, their 10 termination procedure shall be provided under these guidelines. (2) Terms o fprobation shall be made known to the employee before the employee commences employment (3) The purpose o f probation is normally to enable the employer to make an informed assessment o f whether the employee is competent to do thejob and the suitable for employment. (4) The period o f probation should be o f a reasonable length o f not more than twelve months, having regard to factors such as the nature o f the job, the standards required, the custom and practice in the sector. (5) An employer may, after consultation with the employee, extend the probationary period for a further reasonable period if the employer has not yet been able to properly assess whether the employee is competent to do thejob or suitable for employment. (6) During the period o f probation, the employer shall- (a) monitor and evaluate the employee's performance and the suitability from time to time. li (b) meet with the employee at regular intervals in order to discuss the employee's evaluation and to provide guidance, if necessary. The guidance may entail instruction, training and counselling to the employee during probation. (7) Where at any stage during the probation period, the employer is concerned that the employee is not performing to standard or may not be suitable for the position the employer shall notify the employee o f that concern and give the employee an opportunity to respond or an opportunity to improve. (8) Subject to sub-rule (1) the employment o f a probationaryemployee shall be terminated if- (a) the employee has been informed o f the employer's concerns; (b) the employee has been given an opportunity to respond to those concerns; (c) the employee has been given a reasonable time to improve performance or correct behaviour and has failed to do so. (9) A probationary employee shall be entitled to be represented in the process referred to 12 in sub-rule (7) by a fellow employee or union representative". The above rule safeguards a probationary employee against unjust labour practices. While it enables the employer to observe and assess the employee's job competency and suitability for employment, it delineates the process for monitoring, evaluating, providing performance feedback, and allowing the employee an opportunity for improvement prior to any termination decision. It is settled that failure to adhere to the procedure may entitle the employee to compensation for breach of the employment contract. Considering the above legal standpoint, we must determine whether the first appellant properly adhered to the prescribed procedure. The CMA and the High Court concurred that the procedure was blatantly violated. Clearly, the evidence indicates that DW1 neglected the opportunity to monitor and assess the respondent. He never met with her to evaluate her or convey his worries on her performance. Besides DW2 verifying that the respondent had challenges in getting hold of her supervisor, the supervisor conceded during cross-examination that he possessed no evidence corroborating any meeting with her. Subsequently, he completed the appraisal form on 19th December 2014, unilaterally and in the respondent's absence, advising against her confirmation. Remarkably, he 13 purportedly arranged a meeting with her on 22n d December 2012, fully aware that he had advocated for her termination. The internal memo dated 23r d December 2014 (exhibit T5) indicates that he communicated to the Executive Director that he informed the respondent on 22n d December 2012 of his recommendation against her confirmation. It is perplexing that the meeting, if it indeed took place, was a tardy initiative, as the respondent's job was terminated on that same day, the Executive Director having acted upon DW2's recommendation, which, as previously indicated, was provided three days earlier. This confirms that she was not afforded an opportunity to address her supervisor's performance-related complaints. She was also not provided with an opportunity to enhance her performance. Consequently, we affirm the coinciding determination of the CMA and the High Court that the procedure was violated, as we observe no misapprehension of the evidence on record. The second complaint falls by the wayside. Our determination of the second ground of appeal is also dispositive of the final ground, which contends: " That the High Court erred in iaw in awarding compensation for the remaining period o f the contract to the respondent who was not confirmed after the probationary period'. Given our finding that the first appellant violated the procedure for termination of the respondent as a probationary employee, it is ineluctable that she is entitled to compensation whose measure must be remuneration for the remainder of her term of employment. We equally dismiss the third ground of appeal. In the final analysis, we find no merit in the appeal, which we hereby dismiss. This being a labour matter not amenable to awards of costs, we order each party to bear its own costs. DATED at DAR ES SALAAM this 4th day of May, 2026. G. A. M. NDIKA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 5th day of May, 2026 in the presence of Ms. Grace Lupondo, learned Senior State for the Appellants and Mr. Kavola Semu, learned counsel for the Respondent and Mr. Ladislaus Msuba, Court clerk; is hereby certified as a true copy of the original.