Machine And Tractor (T) Limited vs Jitendra Solanki (Civil Appeal No. 210 of 2023) [2026] TZCA 505 (23 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LEVIRA, J.A., MASHAKA. 3.A. And NGWEMBE. J.A.^ CIVIL APPEAL NO. 210 OF 2023 MACHINE AND TRACTOR (T) LIMITED ........................................ APPELLANT VERSUS JITENDRA SOLAN K I ........................................................ ....... RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania, Labour Division at Dar es Salaam) (Mteule. J.T dated the 28th day of September, 2022 in Revision No. 389 of 2022 JUDGMENT OF THE COURT 13th & 23rd April, 2026 LEVIRA. J.A.: This appeal is against the decision of the High Court, Labour Division (the Labour Court) at Dar es Salaam in Labour Revision No. 389 of 2022, which quashed and set aside the award by the Commission for Mediation and Arbitration (the CMA) of Dar es Salaam granted to the appellant in a labour dispute between the parties herein. The respondent had approached the CMA claiming for unfair termination from employment and i

breach of contract by the appellant. On her part, the appellant stood firm that the respondent was terminated due to a gross misconduct (insubordination). Having heard the parties, the CMA found that the respondent's termination was proved to be substantively and procedurally fair. As a result, his claims were dismissed. Aggrieved, the respondent filed application for revision to the Labour Court seeking the decision of the CMA to be revised. The Labour Court found in favour of the respondent; hence, the present appeal. It is on record that the respondent was initially working with the appellant in the Accounts Department as a consultant effective from 1st August, 2017. Later, he was employed as an accountant from 1st November, 2018. However, on 31st January, 2019, the appellant transferred him from Accounts Department to Sales Department and he was assigned new duties. He resisted the transfer. He was suspended and ultimately charged in disciplinary proceedings for failure to respond to a lawful management instruction, an act which was referred to as insubordination and failure to discharge duties (poor performance). After hearing, the respondent was terminated from employment on 12th July, 2019. He unsuccessfully referred the matter to the CMA as intimated 2

above. He knocked the doors of the High Court on revision which was determined in his favour and he was awarded 24 months' salary as compensation for unfair termination from employment and other statutory benefits as provided for under section 44 of the Employment and Labour Relations Act, Cap 366 R.E. 2019 (the ELRA). The appellant was aggrieved by the decision of the High Court on revision. She has preferred the present appeal on the following grounds:

1. That, the Labour Court had no jurisdiction to set aside the award o f the Commission fo r Mediation and Arbitration (CMA) because there was no m isconduct on the part o f the Arbitrator nor im proper procurem ent o f the award which were fronted by the respondent as grounds for the revision in term s o f section 91 (2) (a) & (b), nor any o f the grounds for revision set out in the Employment and Labour Relations Act, Cap 366 R.E. 2019.
2. The Labour Court erred in law in treating the revision as if it was an appeal.
3. The award o f shillings 52,000,000/= as twelve m onths'salary is ille g a l because the Respondent's salary was only shillings 3

2,200,000/= per month, which would have been shillings 26,400,000/= fo r twelve months. At the hearing of the appeal, the appellant was represented by Mr. Silvester Shayo, learned advocate, whereas the respondent had the services of Mr. Lupia Abraham Augusto, also learned advocate. Both parties filed written submissions on 23rd June, 2023 and 21st July, 2023, respectively. Addressing the Court in support of the appeal, Mr. Shayo adopted the appellant's written submissions as part of his oral account before the Court. He argued the first and second grounds of appeal together as per the written submissions. In respect of these grounds, it was submitted that the jurisdiction of the Labour Court over awards of arbitrators sitting at the CMA is provided under section 91 (2) (a) (b) and (c) of the ELRA. Further that, the respondent applied to the Labour Court to set aside the award by the arbitrator on grounds that, there was misconduct on the part of the arbitrator and the award was improperly procured. However, he argued that, the respondent failed to show any misconduct of the arbitrator and or that the award was improperly procured and the Labour Court did not even consider whether those grounds existed. Instead, it

set aside the award on grounds other than those set out by the law and therefore, without jurisdiction. In addition, Mr. Shayo submitted that the appellate jurisdiction and revision jurisdiction are mutually exclusive. He cited the decision of the Supreme Court of India in The Associated Cement Co. Ltd v. Keshvanand [1997] Indian Kanoon http://indiankanoon.org/doc/1219241/; where it was stated: "W hile exercising revision powers the court has to confine to the legality and propriety o f the findings and also whether the subordinate court has kept itse lf within the bounds o f its jurisdiction vested in it." Being guided, among others, by the above authority, Mr. Shayo submitted further that, since the matter before the Labour Court was on revision, the learned Judge had no jurisdiction to make a fresh appraisal of evidence and reaching findings of facts and own conclusions on evidence that were different from those reached by the arbitrator. Hence, the findings of the Judge on pages 240 through 257 of the record of appeal that constitute the grounds for setting aside the award of the arbitrator, were made without jurisdiction. He insisted that, the learned Labour Court Judge did not consider the question whether it was 5

appropriate for the respondent's lawyer to reply to his letter directly to the management and not whether it was appropriate to seek consultation as decided. In reply, Mr. Augusto opposed the submission by Mr. Shayo regarding the reason for the appellant's termination from employment. He argued firmly that, the reason for the respondent's termination from employment was unfair, unreasonable, unrealistic and contrary to section 37 (1) of the ELRA. The said reason is found at page 165 of the record of appeal where it was held that, failure of the respondent to reply to the management regarding his performance and also, failure to perform his work was insubordination, which is justifiable act of termination as provided under Rule 12 (3) of the Employment and Labour Relations (Code of Good Practice) Rules, GN. 42 of 2007. The arbitrator observed that, the fact that the respondent's advocate replied his letters direct to the management could not be considered to be him replying to his employer. Mr. Augusto argued further that, the above award was improperly procured because the law does not prohibit the employee from engaging the service of the lawyer in the matter of employment and the response by the lawyer was the 6

response of the respondent. According to him, the argument by the appellant that the Labour Court had no jurisdiction to overturn the award because the same was not improperly procured cannot stand. As such, he said, the respondent had a legal right to be represented by an advocate and labeling this act as insubordination, tainted the award and thus the respective award was improperly procured. More so, as the decision to engage an advocate was made after a number of misunderstandings on different matters including transfer to the sales department while he had no such expertise. Besides, Mr. Augusto contended that the arbitration award was improperly procured as it was tainted with material irregularity and illegality. The award was contrary to Rule 13 (1) of GN No. 42/2007, as there was no investigation by the appellant. The arbitrator did not give weight to the respondent's evidence and did not explain why he believed the evidence of the appellant. Instead, he relied on extraneous matters in composing and delivering the award. Thus, the arbitrator's conduct on the matter amounted to misconduct and gross violation of the law, he added.

Regarding the complaint that the Labour Court treated the revision as an appeal, Mr. Augusto opposed it. He submitted that the Labour Court never treated the revision as an appeal. Instead, it set aside the award on the ground of being improperly procured under section 91 (2) (a) and (b) of the ELRA. He referred us to page 165 of the record of appeal where the arbitrator stated that: " The act o f the com plainant o f failure to reply to the letter to the management regarding h is perform ance and also failure to perform his work is termed as insubordination." He insisted that, it was not wrong for the respondent to be represented by a lawyer who responded to the appellant's letter and there was no prejudice on the part of the appellant. Having considered the submissions by the parties, grounds of appeal and the record of appeal, issues for our determination are: Whether the Labour Court considered the requirements of the law under section 91 (2) (a) and (b) of the ELRA in revising the award by the arbitrator and whether the Labour Court treated the revision as an appeal as a result arrived at a wrong decision. 8

We shall deal with both issues together as argued by the counsel for the parties. Basing on the provisions of section 91 (2) (a) and (b) of the ELRA, Mr. Shayo argued that the Labour Court had no jurisdiction in this matter and was not justified to set aside the arbitration award because there was no misconduct on the part of the arbitrator and improper procurement of the award; the arguments which were opposed by the counsel for the respondent. It has to be understood at the outset that, the revisional jurisdiction of the Labour Court in dealing with matters originating from the CMA is provided by the law. Section 91 (1) and (2) of the ELRA provides: "91. - (1) Any party to an arbitration award made under section 88 (10) who alleges a defect in any arbitration proceedings under the auspices o f the Commission may apply to the Labour Court for a decision to set aside the arbitration award- (a) within six weeks o f the date that the award was served on the applicant unless the alleged defect involves im proper procurem ent; 9

(b) if the alleged defect involves im proper procurement, within six weeks o f the date that the applicant discovers that fact. (2) The Labour Court may set aside an arbitration award made under this A ct on grounds that- (a) there was a m isconduct on the part o f the arbitrator; (b) the award was im properly procured; (c) the award is unlawful, illog ical or irrational." The above provision gives the Labour Court power to deal with allegations by any party to an arbitration award regarding a defect in any arbitration proceedings under the auspices of the CMA and to set aside the arbitration award in case it finds that, there was a misconduct on the part of the arbitrator; the award was improperly procured and the award was unlawful, illogical or irrational. It is apparent that the jurisdiction of the Labour Court is provided under subsection (1) of section 91; whereas, subsection (2) (a), (b) and (c) of section 91 of the ELRA provides for the grounds under which the award can be set aside. Therefore, with respect, we are unable to go along with Mr. Shayo's 10

argument which pegged the jurisdiction of the Labour Court on the grounds to be considered in setting aside the arbitration award. We note that, in the present appeal, the appellant's complaint about the Labour Court's decision is on grounds found under subsection (2) (a) and (b) of section 91 of the ELRA. This means that, she is challenging that decision on a finding that there was misconduct on the part of the arbitrator and that the award was improperly procured. We further note that, although there are other grounds which may lead to the setting aside of the award, like when the award was unlawful, illogical or irrational, the appellant preferred to challenge only those two. Mr. Shayo argued that the Labour Court was not justified to set aside the arbitration award because there was no misconduct on the part of the arbitrator and / or the award was improperly procured and it failed to consider those grounds. Regarding misconduct of the arbitrator, and whether the Labour Court considered this ground, we have examined the record of appeal particularly, the impugned decision at pages 250 through 254 of the record of appeal. We have observed that the Labour Court considered how the arbitrator treated the material ii

put before him in relation to the termination of the respondent from employment, both substantially and procedurally while addressing two issues; to wit, whether the applicant (the respondent herein) provided sufficient ground for the Labour Court to revise the CMA award and what reliefs the parties were entitled to. The learned Judge observed that, the respondent was charged with two offences; to wit, failure to respond to a lawful management instruction regarding his performance as detailed in the letter dated 10th June, 2019 and failure to discharge duties directed to him by the parts manager. In respect of the first offence, she observed that the letter from the management to the respondent was answered by his advocate a fact which aggrieved the appellant, hence termination of the respondent. She further observed that, the arbitrator defined the act of the respondent's counsel to reply to the letter regarding accusation of poor performance on respondent's directives as insubordination and held it as one of the basis to consider the termination reason to be fair. Nonetheless, having made thorough research regarding the nature and extent of the dispute between the parties, the reason why the respondent opted to reply through his advocate and the position of the 12

law which guides advocates, the learned Judge was of the following view: "From the fo re g o in g it is m y view that, consultation with a lawyer was not a bad measure taken by the applicant because by that tim e he needed a proper legal guidance to handle the situation which was before the parties. Whether it was legally appropriate for the law yer to reply directly to the letter, this should be another issue outside the instant realm but it does not render the applicant's legal consultation as insubordination as held by the arbitrator." The above excerpt is very clear that the Labour Court Judge found that, it was not proper for the arbitrator to hold that the reply of the respondent of his letter through an advocate amounted to insubordination justifying his termination from the employment. We perused the record of appeal and found that the performance letter subject of discussion is found at page 54 of the record ofappeal. We note that thesaid letter was dated 19th June, 2019 while the proceedings were already initiated at the CMA on 3rd April, 2019 through 13

CMA Form No. FI which was received by the appellant on 5th April, 2019. We agree with the Labour Court that, in the circumstances, engagement of an advocate could not be considered as complete failure to respond to the management letter which in the end was termed as insubordination justifying termination of the respondent from the employment as held by the arbitrator. The Labour Court went on to observe that, the arbitrator did not determine the fairness of the second charge concerning respondent's poor performance and the fairness of termination procedure, in particular, before holding the disciplinary hearing. It was further noted that, the award is silent on the issue of investigation as required under Rule 13 (1) of GN No. 42 of 2007 which reads: " The em ployer shall conduct an investigation to ascertain whether there are grounds for a hearing to be h e ld ." Instead, the arbitrator made a general statement that all the procedures were followed by the employer without addressing anything specific and considering the respondent's evidence. We have, as well, examined the record of appeal and satisfied that the observation by the Labour Court was correct and in our considered view, 14

there was procedural bias on how the matter was handled at the CMA by the administrator. Since it was established that the respondent was unfairly terminated both substantially and procedurally, the answer to the question as to whether the award was improperly procured becomes obvious, that indeed, it was so procured. This finding justified the decision of the Labour Court in revising, quashing and setting aside the award. Therefore, we are unable to agree with Mr. Shayo that the Labour Court did not consider the grounds under section 91 (2) (a) & (b) of the ELRA in arriving at its decision. As a result, we find no reason to fault the Labour Court for exercising its revisional jurisdiction in this matter which justified its decision in setting aside the CMA award. Regarding the complaint that the revision was treated as an appeal, we find the complaint untenable. We partly agree, as a general rule, with the principle stated by Mr. Shayo that while exercising appellate jurisdiction, the court re-evaluates the evidence and reaches its findings as a continuation of a trial; while in revision, normally the court has to confine to the legality and propriety of the proceedings of the subordinate court and whether the subordinate court kept itself 15

within the bounds of its jurisdiction. He supported his position with the decision of the Supreme Court of India in the case of The Associated Cement Co. LTD (supra). However, we note that, revision on labour matters by the court is wider than in other matters and the law treats it differently. Section 91 (4) of the ELRA provides: "91 - (4) Where the award is set aside, the Labour Court may- (a) determ ine the dispute in the manner it considers appropriate; (b) make any order it considers appropriate about the procedures to be follow ed to determ ine the dispute . " It is very clear from the above provision that, the Labour Court ought to have evaluated the evidence, as it correctly did. Particularly, the evidence which it said was not evaluated. The reasoning and reference to the law in that decision focused on establishing whether there was misconduct by the arbitrator and the appropriateness of the award. While dealing with an akin issue in Eric Zablon v. Offgrid Electric Tanzania LTD [2025] TZCA 135 (27 February 2025), the Court observed: 16

'W e are aware o f the fact that what was before the High Court was an application for revision ; but as alluded by the counsel fo r the parties, the envisaged revision is wider in context than provisions related to other proceedings for revision in other courts.... Being the first court after the CMA, we agree with the learned counsel that, after holding that there was an irregularity upon failure o f the CMA to properly reassess and evaluate the evidence before it, justice demands that, instead o f nullifying the proceedings and rem itting the file fo r re-hearing, the High Court should have re-evaluated and reassessed the evidence." Being guided by the above decision, we find that the Labour Court had jurisdiction and it did not treat the respondent's revision application as an appeal as alleged by the appellant. The appellant's complaint in respect of the first and second grounds of appeal is thus, without merit. The third ground of appeal is misconceived and we shall not entertain it. The record of appeal does not support the complaint that the Labour Court awarded the respondent 12 months compensation amounting to 52,000,000/=, as alleged by the appellant. The two 17

grounds of appeal discussed above disposes the appeal. We thus dismiss the appeal in its entirety with no order as to costs. DATED at DAR ES SALAAM this 22n d day of April, 2026. M. C. LEVIRA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 23rd day of April, 2026 in the presence of Ms. Benadeta Shayo, learned counsel for the Appellant, the Respondent in person and Mr. Fidelis Choka, Court clerk, is hereby certified as a true copy of the original. 18