Fedelis Mwebesa vs Standard Chartered Bank Tanzania Limited (Civil Appeal No. 289 of 2023) [2026] TZCA 402 (13 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: SEHEL. 3.A., RUMANYIKA, 3.A. And ISMAIL, J.A.^ CIVIL APPEAL NO. 289 OF 2023 FEDELIS MWEBESA ..................... . ............................................... APPELLANT VERSUS STANDARD CHARTERED BANK TANZANIA LIMITED ........... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division, at Dar-es-Saiaam) f Mteule, J.^ dated the 10th March, 2023 in Labour Revision No. 239 of 2022 JUDGMENT OF THE COURT 11th Novem ber, 2025 & 13th April, 2026 SEHEL. J.A In this appeal, the appellant, Fedelis Mwebesa, is challenging the decision of the High Court of Tanzania, Labour Division at Dar es Salaam (the High Court) in Labour Revision No. 239 of 2022. In that revision, the High Court partly allowed the respondent's application for revision by holding that the termination of the appellant was substantially fair but procedurally unfair. Consequently, it set aside the order of reinstatement without loss of renumeration issued by the Commission for Mediation and Arbitration (the CMA) and reduced the awarded compensation of i twelve (12) months to three (3) months. Aggrieved by the decision of the High Court, the appellant lodged the present appeal. In order to appreciate the context in which the labour dispute arose and later culminated to the present appeal, we find it apposite to briefly, provide the material facts of the matter as obtained from the record of appeal. The appellant was employed by the Standard Chartered Bank Tanzania Limited, the respondent, in the capacity of Senior Manager Digital banking with effect from 20th October, 2019. On 28th January, 2020, he was issued with a suspension letter pending investigation on the allegation of sexual harassment which was brought to the attention of the management. On 27th March, 2020, he was issued with a notice of holding a disciplinary meeting on three allegations, namely; one, touching the rib of his colleague in a manner which the colleague deemed inappropriate and contrary to his cultural values; two, touching his colleague's beard whilst looking at him in a manner which could be perceived as sexual and three, touching his colleague's manhood which infuriated the colleague and caused his distress. The allegations were said to be contrary to the Group Code of Conduct, Group Diversity and Inclusion Standard and the Rules for Prevention of Harassment. During the disciplinary hearing, the appellant admitted to have touched his colleague's rib and manhood. Nonetheless, it was his view that his actions were normal and familiar among gentlemen colleagues and that he accidently touched his colleague's manhood when he tried to tap the colleague's stomach. Following the disciplinary meeting, on 6th June, 2020, the appellant was terminated on grounds of gross misconduct (sexual harassment). Aggrieved by termination, the appellant instituted a dispute in the CMA alleging that there was no valid reason for his termination and the procedure was flawed. He prayed to be reinstated to his previous position without loss of renumeration. The respondent denied liability and countered that, after investigation and having duly conducted disciplinary hearing, the appellant was found guilty of gross misconduct which attracts termination. Having heard the parties, the CMA found that the appellant was unfairly terminated, both substantially and procedurally. Accordingly, the respondent was ordered to reinstate the appellant without loss of his renumeration of TZS. 228,000,000.00 or pay him compensation amounting to TZS. 342,000,000.00. As stated herein, the respondent's 3 application for revision before the High Court was partly allowed hence, the present appeal. In the memorandum of appeal, the appellant advanced the following five grounds: "(1) That High Court erred in law by making reference to an investigation report which was never served to the appellant prior to the disciplinary hearing. 2) That the High Court erred in law when it held that the appellant confessed to have sexually harassed the victim keeping in mind that there was no any confession. 3) That the High Court erred in law when it declared that there were valid reasons for termination o f the appellant's employment 4) That the High Court erred in law by declaring that only two procedures were violated without considering other procedural violations. 5) That the High Court erred in law when it reduced the compensation to less than twelve months without considering that the procedures were violated by the respondent" When the appeal was placed before us for hearing, the appellant was represented by Mr. Nehemiah Geofrey Nkoko, learned advocate, whereas, the respondent had the legal services of Messrs. Cornelius Kariwa and Michael Kariwa, learned advocates. At the outset, Mr. Nkoko abandoned the first ground of appeal. With the remaining four grounds, he informed the Court that he would conjunctively argue the second, third and fourth grounds as they boil down to the issue whether there was substantive reason for the appellants termination. The fifth ground was argued separately. Starting with the issue whether there was substantive reason for the appellants termination, Mr. Nkoko took us through page 307 of the record of appeal where the learned trial Judge found that the procedural mishap on failure to prepare charge sheet and failure to give the appellant the outcome of the disciplinary committee did not vitiate the evidence given by the witness, particularly the admission made by the appellant. He faulted such finding arguing that the charge sheet being a foundation of any criminal liability, the entire trial court proceedings were vitiated including the evidence of the witnesses, he added that the charge sheet, Exhibit D3, was defective as it varied with the evidence. He pointed out that Exhibit D3 and the suspension letter, Exhibit D6, suggested the appellant assaulted three different persons, whereas, only one victim, DW2, appeared before the CMA and claimed to have been 5 assaulted by the appellant at three different times. To bolster his submission, he referred us to the case of Yassin Abdallah v. The Republic [2025] TZCA 1169 for the proposition that, where there is a variance between the charge and the evidence, and no amendment to the charge was made, the allegation contained in the charge sheet remained unproven. Relying on the authority in the case of Thomas Okello Atito v. Unilever Tanzania Limited [2024] TZCA 358, Mr. Nkoko further submitted that the appellant had no obligation to prove his innocence but rather the respondent bore the duty to prove the allegation contained in the charge sheet against the appellant. He pointed out the disciplinary committee was initiated following the report on sexual harassment, Exhibit D4, but according to the report, there was no any evidence of sexua! harassment at the work place. On the fifth ground of appeal, Mr. Nkoko argued that the High Court was not supposed to vary the CMA's Award as the amount awarded was the minimum threshold postulated by the then section 41 (1) (c) of the Employment Labour Relations Act (the ELRA) prior to its amendment through the Labour Laws (Amendments) Act No. 4 of 2025. He pointed out that the High Court relied on the case of Felician Rutwaza v. World Vision Tanzania [2021] TZCA 2 whereas, he asserted, in the present appeal, the respondent failed to discharged its duty to prove that the dismissal of the appellant was both substantially and procedurally fair. With the above submissions, Mr. Nkoko urged the Court to allow the appellant's appeal. On the other hand, Mr. Kariwa opposed the appeal. He outrightly conceded that the procedure for terminating the appellant was flouted. Nonetheless, he argued that the substantive reason was proved as correctly held by the CMA and the High Court that the appellant admitted to the allegations. To cement his position, he took us through Exhibit D5, specifically at pages 71-72 of the record of appeal where the appellant admitted and prayed for mercy. He added that, the appellant in this appeal had no qualm as to what transpired before the disciplinary committee. Neither did he challenge the validity of the proceedings of the disciplinary committee. Responding on the number of the victims, Mr. Kariwa briefly submitted that, in labour matters unlike in criminal cases, there are no templates on how should a charge look like. He added that, even if, the 7 charge was defective, the appellant was able to mount his defence as he never raised any complaint before the disciplinary committee. He distinguished the cited case of Yassin Abdallah v. The Republic (supra) that the Court was dealing with a criminal charge while in the appeal before us, the dispute was on labour matter. He stressed that sexual harassment was admitted by the appellant during the disciplinary committee thus did not necessitate for calling witnesses. Mr. Kariwa took issue with Mr. Nkoko's submission. He contended that the learned counsel for the appellant mixed on substantive and procedural fairness while the two are not one and the same. He pointed out that there are circumstances where the procedure is unfair but substantively fair, as it was in the present matter. Replying on the complaint that the High Court erred in varying the CMA's award, Mr. Kariwa supported the award of three months' compensation, contending that after the High Court had found the termination of the appellant was substantively fair but procedurally unfair, it properly reduced the award which was based on unfairness of the termination of both substantive and procedure. He asserted that the High Court in exercise of its revisional power had to correct the CMA's Award in order to do justice for both parties. It was his submission that, 8 it is settled law, where termination is found to be substantively fair, it attracts a heavier penalty as opposed to procedural unfairness which attracts lesser penalty. In rejoinder, Mr. Nkoko reiterated that the High Court failed to judiciously exercise its discretion and beseeched us to interfere with the High Court's decision as it was done in the case of Jacquiline Mushi v. Stanbic Bank Tanzania Limited (supra). We have carefully gone through the record of appeal, reviewed the grounds of appeal and heard the submissions from the counsel for the parties and observed, from the submission, the appellant was not challenging the findings of the High Court on procedural irregularity. The main contention on the second, third and fourth grounds of appeal was whether the employer was able to establish a substantive reason to terminate the appellant Mr. Nkoko argued that since the procedure was flawed then there could be no substantive reason. With respect, with such a submission, in labour disputes, in terms of section 38 (2) of ELRA, the employer is required to prove two separate issues, one, whether there was valid and fair reason to terminate the employee and two, whether the due process in terminating an employee was 9 observed. For ease of reference, we reproduce hereunder section 38 (2) of ELRA that reads: "(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- (i) related to the employee's conduct, capacity or com patibility; or (ii) based on the operational requirements o f the employer, and (c) that the employment was terminated in accordance with a fair procedure . " In the appeal before us, the appellant was terminated on the ground of gross misconduct (sexual harassment) at a work place. In terms of section 38 (2) of the ELRA, the respondent had the burden to prove that the appellant committed that offence of gross misconduct (sexual harassment) and the procedure of his termination was adhered to the letter. Having received a complaint from the victim, the respondent initiated an investigation to assess whether there was any justifiable reason to proceed with the complaint. The investigating team interviewed three different complainants, namely staff A, B and C and its 10 findings, as per the investigation report (exhibit D4), there was evidence that the appellant on three occasions subjected Staff A to acts which might impliedly be termed as sexual harassment but the team could not sufficiently prove the allegations by Staff B. At the same time, it failed to verify the allegations fronted by Staff C. In the end, the investigative team recommended for disciplinary action to be initiated against the appellant. It was therefore not true that the investigative report did not find any evidence on the allegation of sexual harassment as submitted by Mr. Nkoko. It is on record, as correctly submitted by Mr. Kariwa that the appellant admitted to have touched the victim in an unfriendly manner and he was well aware that the three allegations concerned one single person. Hereunder, we reproduce the extract of the proceedings of the disciplinary committee as appear at page 71 of the record of appeal: " Patrick: D id yo u touch s ta ff A in th e rib s a s a lle g e d ? [Appellant]: Yes, he did not show that he was not happy and did not say anything. Patrick: On allegation number 2 you touched sta ff A his beard. 11 [Appellant]: In absence o f the complainant as you have advised that he has to be anonymous, I w o u ld lik e to co n firm th a t a il 3 a lle g a tio n s a re fo r the sam e co lle ag u e a n d n o t a se p a ra te one as indicated in the letter inviting me to the hearing. "[Emphasis added] Again, on incident number 3, he admitted that: 7 remember the incidence; we were having a discussion on the products and vendors. As I was standing up, I wanted to touch his stomach (tapping the stomach), unfortunately, instead o f touching his stomach, I to u ch e d /g ra b b e d h is m a n h o o d ... "[Emphasis added] From the above extracts, the appellant knew and was well aware of the charges he was facing and was able to mount his defence. Therefore, the charge sheet, Exhibit D3, and the suspension letter, Exhibit D6, which Mr. Nkoko claimed that they suggested there were three different victims did not, in any way, prejudice the appellant. The appellant was well informed and he knew very well who was the victim as he vividly recalled all three different incidents in terms of place, month and year. We are increasingly of the firm view that it was an afterthought to bring such complaint at this stage of appeal. 12 Now back, to the issue as to whether the respondent proved that there was valid and fair reason in terminating the appellant, before the CMA, the respondent called the victim (DW2) to testify on allegations of sexual harassment. Regarding the first incident, DW2 told the CMA that: "In December, 2019... when I was standing, he came [the appellant] and touched my ribs.... [The appellant] touched my ribs in a sexually manner which made me uncomfortable . " On the second incident, he recalled that: "The second scenario happened in January, 2020 where we were in the digital room, I was standing at that moment, and he came again to me and touched my beard sexually." On the third scenario, DW2 testified that: "The third scenario happened when I was seated on the office chair, [the appellant] came to me, m y legs were dosed/tight, and he touched my right leg and slapped the other leg to make them open, [he then] touched m y manhood..." Given the above evidence on record, we find that the High Court rightly ruled that, there was a valid and fair reason to terminate the appellant on ground of gross misconduct (sexual harassment) in terms 13 of section 38 (2) (b) (i) and (ii) of the ELRA. We therefore dismiss the second, third and fourth grounds of appeal. We now turn to the fifth ground of appeal where the appellant complained that High Court erred in varying the CMA's Award. We have stated herein that the CMA awarded the appellant twelve months' compensation after being satisfied that the termination was both substantially and procedurally unfair. However, on appeal, the High Court found that the appellant's termination was substantially fair but procedurally unfair. Subsequent to such a finding, it reduced the award of twelve months' compensation to three months. The ensuing question is whether the High Court judiciously exercised its discretion in reducing the awarded twelve months' compensation to three months. In order to understand as to how the High Court reached to its decision, we revert back to its judgment and found the following reason: 7 have already found that the termination was unfair only on some procedural aspects. Under [the then] section 40 (1) (c) o f the Employment and Labour Relations Act, Cap. 366 R.E. 2019 an employee who is terminated unfairly is entitled to compensation o f not less than 12 months. The 14 provision does not provide for a situation when the unfairness is only on procedural aspects. In the case o f F e licia n R u tw aza versu s W orld V isio n Tanzania, Civil Appeal No. 213 o f 2019, the Court o f Appeal categorically was o f the view that when there is only procedural unfairness with substantive fairness, then an amount lesser than the minimum prescribed in section 40 (1) (c) o f Cap. 366 can be awarded. Guided by the same principle, since in this case, the unfairness is found only on some few aspects o f procedure, I w iii allow 3 months renumeration as compensation to the respondent". Since the appellant's termination was found to be procedurally unfair but substantially fair and such finding is not disputed by the appellant, we find nothing to fault the High Court's decision which was premised on proper logic that the law abhors substantive unfairness more than procedural unfairness -see the case of Felician Rutwaza v. World Vision Tanzania (supra). Thus, it would be an absurdity for this Court to uphold the CMA's award which was reached on a finding that the termination was both substantially and procedurally unfair. That said, we dismiss this ground of appeal. 15 In the upshot, we find that the present appeal lacks merit. It is therefore dismissed with no order as to costs as it arose from a labour dispute. DATED at DODOMA this 9th day of April, 2026. B. M. A. SEHEL JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered virtually this 13th day of April, 2026 in the presence of the appellant in person - unrepresented, Mr. Cornelius Kariwa, learned counsel for the Respondent and Ms. Christina Mwanandenje, Court Clerk is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 16