Ally Ahmed Mwerani vs National Microfinance Bank (NMB PLC) (Civil Appeal No. 933 of 2025) [2025] TZCA 1241 (8 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MKUYE. 3.A., GALEBA, 3,A. And AGATHO. J J U CIVIL APPEAL NO. 933 OF 2025 ALLY AHMED MWERANI ................................................................... APPELLANT VERSUS NATIONAL MICROFINANCE BANK (NMB PLC)..............................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Mbeya) (NongwaJL) dated the 5th day of March, 2025 in Labour Revision No. 22982 of 2024 JUDGMENT OF THE COURT 3rd& 8th December 2025 AGATHO. J.A.: This appeal originates from a labour dispute involving an alleged unfair termination of the appellant from employment by the respondent on grounds of insubordination and gross misconduct. The appellant challenges the judgment and decree of the High Court of Tanzania at Mbeya, in Labour Revision Application No. 22982 of 2024. The High Court upheld an arbitral award by the Commission for Mediation and Arbitration (the CMA) dated 06/08/2024 (in Labour Dispute No. CMA/MBY/Mby/71/2022/ARB.40) and dismissed the appellant's claim for unfair termination. Dissatisfied, the appellant seeks to assail that decision.

As a background, the appellant was employed by the respondent, on 12/03/2014 as a Zonal Systems Administrator on permanent and pensionable basis, primarily handling ICT issues across branches in the Southern Highlands Zone, including Chunya, Mlowo, and Mkwajuni. His role involved responding to technical calls, site visits, and remote assistance. The tension arose in August 2021 when he sent emails to the branch management that were deemed insubordination to the line manager. Among the emails was the one stating, "I think [you are] starting teaching me now on what to do in my profession" as seen on page 599 of the record of appeal. These emails, coupled with allegations of fabricating travel claims for per diems for unverified visits to branches like Mbozi and Iringa, led to his suspension on 17/08/2021 to facilitate an investigation. The investigation, conducted by DW1 (an internal investigator), uncovered discrepancies, such as the appellant's failure to sign visitor registers during claimed visits and unsubstantiated per diem claims amounting to potential fraud. He was charged under Sections 16.15 (3.3.4) and 16.15 (9.9) of NMB's Human Resource Policy for insubordination, repeated insubordination, and fraudulent travel claims. The appellant submitted a written defence (exhibit RX14) admitting to the insubordination offences, acknowledging to have 2

acted "unprofessionally out of anger" and apologizing while denying the fraud allegations. That is visible on page 347 of the record of appeal. A disciplinary hearing was held on 17/05/2022 (as evidenced by exhibit RX16), resulting in his termination on the same day for gross misconduct. Dissatisfied, he appealed internally (exhibit RX17), but the appeal was rejected on 12/07/2022, prompting him to file a complaint at the CMA, claiming substantive and procedural unfairness, including lack of mitigation opportunity, non-service of the investigation report, and curtailment of appeal rights. At the CMA, the respondent presented seven witnesses (DW1 to DW7) and 18 exhibits (FOCI to Rxl8), proving misconduct, while the appellant (as CW1) and his witness (CW2) contested. The arbitrator dismissed the complaint on 06/08/2024, finding valid reasons for termination based on the appellant's admission and fair procedure under Rule 13 of the Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007. The appellant then sought revision at the High Court, but the same was dismissed on 05/03/2025 for lacking merit, holding that the appellant was fairly terminated, procedural aspects were complied with, and terminal benefits (under Section 44 of the Employment and Labour Relations Act [Cap 366 R.E. 2023] (the ELRA)) were paid via bank transfer (Exhibit RX18), excluding severance pay due to misconduct. 3

Aggrieved, the appellant filed this appeal initially basing it on four grounds of appeal. However, at the hearing he abandoned grounds 2, 3 and 4 and retained ground 1 upon which this appeal is based:

1. That the High Court erred in iaw in holding that the Commission for Mediation and Arbitration [has] power to receive new evidence and testimonies that were not tendered at the disciplinary hearing committee resulting in [the] honourable Arbitrator to assume the powers o f [the] Chairperson o f the said committee. When the appeal was called on for hearing, the appellant was present in person and unrepresented while Ms. Esther Shoo, learned Advocate appeared for the respondent. Beginning his submission in support of the appeal, the appellant adopted his written submission on the ground of appeal. He complained that the CMA should not have received evidence or testimonies not tendered at the disciplinary hearing as required by rule 13(5) of the Code of Good Practice. He invited the Court to find merit in his appeal, allow it and quash the decision of the High Court and set aside the orders ensued. In reply, Ms. Shoo too relied on her written submission in resisting the ground of appeal and beseeched the Court to dismiss the appeal and uphold the concurrent findings of the High Court and CMA. 4

Having considered the written submissions and record of appeal, in determining the appeal, we shall focus on the above ground of appeal which revolves around the allegation o f admission o f "new evidence" at the CMA which according to appellant is contrary to rule 13(5) o f the Code o f Good Practice. We will determine whether such allegation has any merit. In doing so we will first consider rule 13 of the Code of Good Practice which provides: (1) The employer shall conduct an investigation to ascertain whether there are grounds for a hearing to be held; (2) Where a hearing is to be held, the employer shall notify the employee o f the allegations using a form and language that the employee can reasonably understand. (3) The employee shall be entitled to a reasonable to prepare for hearing and to be assisted in the hearing by a trade union representative or fellow employee. What constitutes a reasonable time shall depend on the circumstances and the complexity o f the case but shall not normally be less than 48 hours. (4) The hearing shall be held and finalized within a reasonable time and chaired by a sufficiently senior management representative who shall not have been involved in the circumstances giving rise to the case. (5) Evidence in support of the allegations against the employee shall be presented at the

hearing. The employee shall be given a proper opportunity at the hearing to respond to the allegations, question any witness called by the employer and to call witnesses if any; (6) N/A (7) Where the hearing results in the employee being found guilty o f the allegations under consideration, the employee shall be given the opportunity to put forward any mitigation factors before a decision is made on the sanction to be imposed. Our understanding of this rule is that the employer is duty bound to conduct disciplinary hearing in which the employee is given opportunity to present his evidence before termination of employment. Contrary to the appellant's complaint, we agree with the High Court that rule 13(5) of the Code of Good Practice was misunderstood. It is our settled view that a disciplinary hearing is a forum which internally deals with a matter in dispute even before termination of employment. The CMA on the other hand is a quasi-judicial body designed to hear labour disputes, which starts with an attempt to mediate the parties, usually an employer and employee. The proceedings therein were fresh hearings under Section 86 of the ELRA, not an appellate forum of disciplinary committees. According to the ELRA, labour dispute resolution begins at the CMA through mediation. In that case, the CMA cannot be bound by whatever happened at disciplinary hearing. It is for this reason that where a person is dissatisfied with the 6

termination of his employment, he refersthe dispute to the CMA as the court of first instance and not an appeal. In the case of Platinum Credit Limited v. Martin Joaqim [2023] TZCA 17740 at page 22 the Court linked the disciplinary hearing with the CMA by stating that "All that is required (at the CMA) is evidence o f the manner the disciplinary proceedings were conducted." That is all. In the case at hand, the respondent's witnesses (DW1-DW7) and exhibits (e.g., FOG, RX5, RX16 were brought to merely substantiate the disciplinary procedure under rule 13 of the Code of Good Practice, without introducing any new prejudicial facts. We wish to underline here that it is one thing to abide by the requirements of rule 13(5) of the Code of Good Practice on disciplinary hearing before disciplinary committee (which the employer must follow before terminating the employee's employment on allegation of misconduct) and quite another forum and procedure the CMA conducts its proceedings. It is unsurprising that the CMA may use the evidence adduced at the disciplinary hearing. In fact, there is no law that bars the CMA from receiving evidence which was not tendered at the disciplinary committee. The CMA is akin to a trial court, entitled to receive new evidence that may not have been presented at the disciplinary committee. We are firm that the ground of appeal is misconceived and rule 13(5) of the Code of Good Practice is 7

inapplicable in the circumstance as the appellant clearly misconceived it. Consequently, we dismiss the ground of appeal, as the CMA is free to determine the dispute afresh including admitting evidence that was not adduced at the disciplinary committee. For the foregoing reasons, the appeal is dismissed for lacking merit. This being a labour dispute, we make no order as to costs. DATED at MWANZA this 5th day of December 2025. Judgment delivered virtually this 8th day of December, 2025 in the presence of Appellant in person, Ms. Esther Shoo, learned counsel for the respondent and Mr. Fahmi Karemwa, Court Clerk; is hereby certified as a true copy of the original. R.K. MKUYE JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL 8