Abdallah Kinenekejo & Others vs National Microfinance Bank (NMB Bank Plc) (Civil Appeal No. 532 of 2022) [2026] TZCA 454 (29 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL. J.A.. KIHWELO, 3.A. And AGATHO. J.A.l CIVIL APPEAL NO. 532 OF 2022 ABDALLAH KINENEKEJO.........................................................1 st APPELLANT PETER MADAHA......................................................................2 nd APPELLANT KATASO SOPHRES MAGESA .................................................... 3 rd APPELLANT TUTINDIGA MWAKAJILA......................................................... 3 rd APPELLANT DANIEL JOHN..........................................................................4™ APPELLANT LODRICK MOLLEL....................................................................5™ APPELLANT BUPE MWAKINULA..................................................................6™ APPELLANT STANLEY MMANYI...................................................................7™ APPELLANT VERSUS NATONAL MICROFINANCE BANK (NMB BANK PLC) .................. RESPONDENT (Appeal from the decision of the High Court of Tanzania, Labour Division at Dar es Salaam) (Maghimbi, 3) dated the 28th day of March, 2022 in Revision No. 306 of 2020 JUDGMENT OF THE COURT 13t h & 29th April, 2026 KIHWELO. J.A.: The appellants herein, seek the reversal of the decision of the High Court of Tanzania (Labour Division) at Dar es Salaam (Maghimbi, J.) in Revision No. 306 of 2020 in which it upheld the decision of the Commission for Mediation and Arbitration ("the CMA") in Labour Dispute No. CMA/ DSM/ ILA/ R.440/ 2018/352 which dismissed the appellants' complaint for unfair termination. l Originally, the appellants were employees of the respondent in different capacities but their common denominator is that, apart from being employees of the respondent they were all representative of Financial, Industrial, Banking, Utilities, Commercial and Agro-Processing Industries (FIBUCA), an independent Tanzanian trade union established to protect workers' socioeconomic rights. The appellants were representatives in their respective offices in different branches across Tanzania. The pith and marrow in the instant appeal is the dispute between the appellants and the respondent in relation to unfair termination of the appellants' employment by the respondent for conducting an unauthorized employee opinion survey regarding the identification and selection of a medical service provider for the respondent's employees in 2018. It is alleged that, the appellants reached out to different Branch Managers and Managers for Customer Experience soliciting them to conduct the alleged unauthorized opinion survey. The appellants were initially suspended following which charges were preferred which led to their ultimate termination from employment. Since the appellants were dissatisfied they approached the CMA on the grounds of unfair termination as alluded to above, but quite unfortunate their efforts proved futile 2 as their application was dismissed. The CMA found out that the termination was fair both substantively and procedurally. Subsequently, the appellants lodged the impugned revision before the High Court of Tanzania seeking to overturn the CMA decision. The respondent gallantly opposed the revision and insistently argued that the revision was unmerited. The High Court upon thorough consideration was of the considered opinion that there was no reason to fault the decision of the CMA. The High Court was of the view that the respondent successfully proved the offences of abuse of office and violation of the bank's communication policy and therefore, the reason for termination was fair. Furthermore, the High Court found out that the termination was procedurally fair and therefore, it substantially upheld the CMA's reasoning, findings and conclusion. The appeal before us is predicated on eleven grounds of grievance as follows: 1. That, the Honourable Judge erred in law by failing to decide issues before her. 2. That, the Honourable Judge erred in law by holding that there was a fair reason for the termination o f the appellants. 3 3. That, the Honourable Judge erred in law by holding that the appellants were charged as employees o f the respondent not as leaders o f FIBUCA Trade Union. 4. That, the Honourable Judge erred by impliedly holding that the appellants were not protected by the provisions o f the Industrial and Labour Relations Act in that they were charged based on what they did as leaders o f the Trade Union contrary to the law. 5. That, the Honourable Judge erred in law by holding that the appellants' termination was done in accordance with the law. 6. That, the Honourable Judge erred in law by failure to consider and decide that the Disciplinary Committee was improperly composed and therefore vitiating its proceedings. 7. That, the Honourable Judge erred in law by failure to consider and hold that the appellants were denied their right to be heard. 8. That, the Honourable Judge erred in law by holding that the role o f the appellants as members o f Trade Union ended on 2&h January 2018. 9. That, the Honourable Judge erred in law by holding that the respondent proved the grounds for termination collectively and individually as against the appellants. 10. That, the Honourable Judge erred in law by holding that there was procedural fairness in the appellants' termination. 11. That, the Honourable Judge erred in holding that the appellants admitted to the charged offences. We heard the parties on 13th April, 2026 and Mr. Gabriel Simon Mnyele, learned counsel appeared for the appellants while Mr. Pascal Kamala, learned 4 counsel appeared representing the respondent. At the outset, Mr. Mnyele prayed and was granted leave to abandon the first and eighth grounds of appeal. We propose to determine the grounds of appeal in the order they were canvassed by the learned counsel in their respective written and oral arguments. Addressing us in support of the appeal, Mr. Mnyele undertook the submissions with the first cluster of grounds, which are grounds 2, 3, 4, 9 and 11 whose common denominator is in relation to substantive fairness of the appellants' termination. He contended that, section 40 of the Employment and Labour Relations Act, Cap 366 R.E. 2023 ("the Act") imposes duty upon the employer to prove that the termination of the employee was fair both in terms of reasons and procedure. According to him, the respondent did not meet the threshold provided under section 40 of the Act in terminating the appellants. The learned counsel described in minute details how the respondent was unable to prove fairness of the appellants'termination. Elaborating further, he referred us to the Disciplinary Charge Sheets found at pages 223 to 231 and collectively admitted as Exhibit D ll. According to the charge, the appellants were charged with two main offences abuse of office/authority and violation of the Bank's Communication Policy. 5 Submitting further on this point, Mr. Mnyele went ahead to draw our attention to various pages of the record of appeal, particularly the hearing forms found at page 312 for Tutindaga Laston Mwakajinga, page 315 for Lodrick Mollel, page 318 for Bupe Augustine Mwakanula and many others demonstrating that the evidence on record did not support the allegations in the charges. Elaborating further, he argued that none of the hearing forms implicated the appellants with the two offences they stood charged with. Mr. Mnyele further argued that, it is common ground that the appellants were interdicted, tried and dismissed from employment for the activities that they did as members of a trade union and according to him this was evident on the available evidence on record which reveals that the appellants were zonal representatives of FIBUCA which had three agreements with the respondent indicating the manner upon which they have to operate. He went ahead to mention those three agreements to be the Collective Bargaining Agreement, Recognition Agreement and Organization Right Agreement and argued that the appellants as zonal representatives were duly invited by the respondent and at the cost of the respondent hence, their termination was contrary to the provisions of section 38 (3) (iii) and (v) of the Act, which prohibits termination of employment of the employee for exercising any right conferred by agreement 6 or participating in the lawful activities of the union. To support his proposition, he paid homage to the case of Dew Drop Co. Ltd v. Ibrahim Simwanza [2021] TZCA 525 TANZLII and National Bank of Commerce v. Mariam Mabula [2022] TZHC 600 TANZLII. He stressed that, the appellants' interdiction was intertwined with their activities as members of the trade union in the process of engaging with the management to select a health care provider. In his further contention Mr. Mnyele submitted that the dismissal of the appellants was not fair since there was no valid reason on account of the fact that the termination contravened the provisions of section 61(3) of the Act which gives the employees' right to access the employer's premises and facilities including communication facilities governed by the respondent's Communication Policy which the appellants were alleged to have breached particularly clause of the 13.6 Exhibit D13. In the adversary side, Mr. Kamala had an opposing view, his submission led off with a criticism on the manner upon which Mr. Mnyele contravened the provisions of section 58 of the Labour Institutions Act, Cap 300 R.E. 2023 ("the LIA") by not limiting his grounds of appeal and the subsequent submissions on point of law only. In support of this proposition, he cited to us the case of 7 Ladislaus Ngomela v. The Treasury Registrar & Another [2022] TZCA 265 TANZLII in which we cited the case of Patrick Magologozi Mongela v. The Board of Trustees of Public Service Social Security Fund [2022] TZCA 216 TANZLII. We wish to predicate our deliberation with a little bit of exposition on the argument by Mr. Kamala in his written submissions that, the appellants grounds of appeal are purely based on facts and not law in blatant violation of section 57 now 58 of the Act. In our view, this criticism should not detain us, having abandoned some of the grounds of appeal and after consolidating the rest of the grounds into two clusters, the first cluster on fairness of termination and the second cluster on fairness of the procedure we think, this argument will be automatically absorbed as we deliberate this appeal. Now, turning to the first cluster of grounds, which relates to substantive fairness, Mr. Kamala contended that indeed the appellants did not dispute having participated in conducting employee opinion surveys regarding identification and selection of a medical service provider. The only point which Mr. Kamala parted ways with Mr. Mnyele is on the capacity upon which the appellants conducted the survey and the manner upon which the charges were brought against them and the evidence which was led to prove the charges. 8 According to Mr. Kamala the appellants did not refute the fact that they conducted the survey. In their defence they alleged that they did the survey upon the instructions from the Secretary General of FIBUCA. However, Mr. Kamala was of the view that, there was nothing on record to prove that the appellants were instructed by the Secretary General to conduct the employee opinion surveys. He was thus of the view that under those circumstances the appellants abused their authority as union leaders and as such the respondent was justified in terminating their employment. In further responding to the submission by the counsel for the appellants, Mr. Kamala further argued that the appellants were charged with an offence of use of communication tools without authority from the employer in utter disregards to the provisions of 13.6 of the Human Resource Policy Manual 2015. For that, the respondent was justified in terminating the appellants employment, he argued. After a careful consideration of the submission of the learned trained minds, in relation to the first cluster of grounds, the issue before us is a narrow one and that is whether there was fair and valid reason for the appellants' termination. Put differently, was the respondent justified in terminating the 9 appellants? The answer to this question lies in the provisions of section 40 and section 38 (3) (iii) and (v) of the Act. Starting with section 40 it reads: "In any proceedings concerning unfair termination o f an employee by an employer, the employer shall prove that the termination is fair." In its ordinary and natural meaning the provision of section 40 above makes it incumbent upon the employer to prove that the termination of an employee is fair both in terms of substance or reason and also in terms of the procedure. Failure to meet this threshold the termination of an employee will be taken to be unfair and therefore, termination will be termed unfair termination subject to be set side. Furthermore, the provisions of section 38 of the Act provides a yardstick for unfair termination and it provides as follows: 38. -(1) It shall be unlawful for an employer to terminate the employment o f an employee unfairly. (2) A termination o f employment by an employer is unfair if the employer fails to prove- (a) that the reason for the termination is valid; (b) that the reason is a fair reason- 10 (i) related to the employee's conduct, capacity or compatibility; or (ii) based on the operational requirements o f the employer; and (c) that the employment was terminated in accordance with a fair procedure. (3) It shall not be a fair reason to terminate the employment o f an employee- a) for the reason that the employee- (i) discloses information that the employee is entitled or required to disclose to another person under this Act or any other law; (ii) fails or refuses to do anything that an employer may not lawfully permit or require the employee to do; (Hi) exercises any right conferred by agreement ; this A ctor any other law; (iv) belongs, or belonged, to any trade union; or (v) participates in the lawful activities o f a trade union, including a lawful strike; b) N/A" In the instant matter before us all the appellants were representatives of the trade union in their respective offices in different branches across Tanzania 11 and were invited by the respondent to engage with the management in the selection of a health service provider for the year 2018 in line with the Collective Bargaining Agreement (exhibit P2) in particular clause 5.0 Medical. It is unfortunate that the allegations against them were connected with organizational rights of the employees at workplace. This is conspicuously clear from the wording of the identical charges that all the appellants were facing before the Disciplinary Committee which read: "RE; DISCIPLINARY CHARGE SHEET It has come to Management's attention that you ; Peter Madaha, employed by NMB as Zone Relationship Manager involved yourself in misconduct related to abuse o f office in relation to identification and selection o f a medical service provider. The particulars o f the allegations/violations against you as detailed below: • That, you Peter Madaha, in your capacity as a FIBUCA member/representative, between 25th January 2018 and 30th January 2018 involved yourself in conducting an unauthorized employee opinion survey regarding the identification and selection o f a medical service provider by calling 12 different Branch Managers/Manager Customer Experience soliciting them to perform unauthorized opinion survey to branch staff on Health Insurance Service Provider selection." Looking at the phraseology of the charges which the appellants stood, we are at one with Mr. Mnyele that the appellants were charged as representatives of the trade union and not as mere employees. We are aware that employees may be charged irrespective of the fact that they are members of a trade union in the event that the employer has reasons to believe that the employee or employees have committed any misconduct that warrants disciplinary charges. However, the matter before us presents unique circumstances given the consultation that was taking place and the manner the appellants were apprehended and charged. The High Court Judge was therefore not right to hold that none of the appellants was charged as a member of a trade union. For clarity and precision, we let the learned judge speak for herself. 7 have gone through the charge sheets and the hearing forms and contrary to what Mr. Mnyele would want the court to believe , none o f the applicants was charged as a member o f a Trade Union. They were charged as employees o f the 13 respondent I find it important to remind Mr. Mnyeie with respect that the role o f the applicants as leaders o f the trade union FIBUCA ended on the 26th January, 2018 when the consultations were marked as dosed. Therefore, anything done by them beyond that was unfortunately, done by the applicants as employees and that is why they were as such charged." Considering the circumstances surrounding this matter and in particular the consultation process between the management of the respondent and the trade union in relation to heath service provider for the year 2018, it was not right and appropriate to apprehend the union leaders, charge them and ultimately terminate them from employment while they were legitimately exercising their right conferred by the Collective Bargaining Agreement. Furthermore, this interfered their right to participate in trade union matters and with a potential to intimidate them and others. For that matter, in terms of section 38 (3) (iii) and (v) of the Act when read together with rule 8 (1) (d) and rule 9 (5) of the Employment and Labour Relations (Code of Good Practice) Rules, 2007 G.N. 42 of 2007, it is our considered view that, there was no fair and valid reason for terminating the appellants. 14 Next, we need to briefly point out on the second cluster, without making a painstaking inquiry that, the procedure for the appellant's termination was also flawed for two main reasons. One; the composition of Disciplinary Committee was improper for the reasons that it was not chaired by a Senior Manager as required by the respondent's Human Resources Guidelines, 2015, particularly clause 15.6.2, as rightly argued by the appellants' counsel and two; there was no inquiry which was conducted by the respondent before hearing. Mr. Kamala argued that, even if we assume that there were procedural irregularities, the Code of Good Practice provides for a leeway for the employer to depart from compliance depending on the circumstances. Although the argument by Mr. Kamala is seemingly attractive, but in our view, considering the serious nature of the procedural irregularities, we find his argument to be decidedly thin. For that matter, there was no procedural fairness in the appellants' termination. Having held that the termination was unfair both substantively and procedurally, in terms of section 38 of the Act, it is hardly necessary to delve into the gravity of the punishment imposed. For, we are satisfied, upon our findings on the first and the second clusters of grounds, that the appellants' termination was not fair. 15 In the final analysis, we allow the appeal and proceed to set aside the High Court's decision. Accordingly, we order that the appellants be paid twelve months' remuneration as compensation in terms of section 41 (1) (c) of the Act. We make no order as to costs bearing in mind that this is a labour dispute normally not amenable to any award of costs. DATED at DAR ES SALAAM this 29th day of April, 2026. B. M.A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 29th day of April, 2026 in the presence of Mr. Gabriel Simon Mnyele, learned counsel for the appellants also holding brief for Mr. Pascal Kamala, learned counsel for the respondent and Mr. Oscar Msaki, Court Clerk; is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 16