National Bank of Commerce Limited vs Roselyn Kakolo (Civil Appeal No. 419 of 2023) [2025] TZCA 1202 (18 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MKUYE. 3.A.. MAIGE. 3.A. And KHAMIS. J.A.^ CIVIL APPEAL NO. 419 OF 2023 NATIONAL BANK OF COMMERCE LIMITED ............................. APPELLANT VERSUS ROSELYN KAKOLO .............. ......................................... RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania Labour Division at Dar es Salaam) (Mqanga, J.) dated the 31s t day of May, 2023 in Revision No. 60 of 2023 JUDGMENT OF THE COURT 12th& 18th November, 2025 MAIGE. J.A.: The respondent's contract of service with the appellant as the card support officer from October 1986, was, on 27th March, 2019 terminated for the reason of absence from work for more than five working days without permission or acceptable reasons. As the absence was associated with her medical condition which was well known to the appellant, the respondent believed that she was unfairly dismissed. In pursuit of her right, she approached the Commission for Mediation and Arbitration (the CMA) by way of a referral and the result was that, her termination was unfair both in substance and procedure. She was awarded 24 months' remuneration as l compensation for unfair termination of service. The appellant challenged the arbitral award to the High Court, Labour Division (the High Court) without a success. Once again aggrieved, the appellant has preferred the current appeal challenging the decision of the High Court in several grounds. At the hearing, however, the appellant abandoned all grounds of appeal save for the second ground which reads as follows: "2. The High Court erred in iaw by failing to consider the iegai effect o f being absent from work for more than five working days without permission ." In address of the respective ground, Ms. Josephinne Safiel, learned advocate who prosecuted the appeal on behalf of the appellant submitted that, as the respondent's absence for a five concecutive days was without justification, the High Court misdirected itself on the effect of such absence. She submitted that as per item 9 (1) of the Guidelines for the Disciplinary, Incapacity and Incampatability Policy and Procedure which is incorporated in the Employment and Labour Relations (Code of Good Practice) Rules, G.N. No 42 of 2007, absence from work without leave or acceptable reasons for more than five working days constitutes a serious misconduct which justifies termination of service of an employee. In refutation, Mr. Mwang'enza Mapembe, learned advocate, who appered for the respondent as of the contention that the respective 2 complaint raises a pure point of fact which as per section 57 of the Labour Institutions Act, 2007, cannot be the basis for an appeal to the Court. In the alternative, he submitted, there is irrefutable evidence in the record, including that of the respondent's immediate supervisor (DW2) to the effect that the respondent's absence in the said period was due to sickness. We subsribe to Mr. Mapembe's submission that, as per section 57(1) of the Labour Institutions Act, the right to appeal to the Court from a decision of the Labour Court is only limited on points of law. Dealing with a similar requirement under the Tax Revenue Appeals Act, the Court construed the expression "points of law'' in Atlas Copco Tanzania Ltd v. Commissioner General, Tanzania Revenue Authority (Civil Appeal No. 167 of 2019) [2020] TZCA 317, TANZLII, to mean any of the followings: "First, an issue on the interpretation o f a provision o f the Constitution■ , a statute , subsidiary legislation, or any legal doctrine on tax revenue administration. Secondly, a question on the application by the Tribunal o f a provision o f the Constitution , a statute, subsidiary legislation or any legal doctrine to the evidence on record. Finally, a question on a conclusion arrived at by the Tribunal where there is failure to evaluate the evidence or if there was no evidence to support it or that it is so perverse or so illegal that no reasonable tribunal would arrive at i t " 3 The principle in the authority just referred, as held from time to time, is applicable with reasonable modifications, when considering whether an appeal to the Court arising from a decision of the Labour Court constitutes a pure point of law. See for instance, Regina Herman v. Ando Roofing Products Ltd (Civil Appeal No. 146 of 2020) and Impala Warehousing and Logistic (T) Ltd v. Samwel Kayombo and others (Civil Appeal No. 18 of 2022). As per page 191 of the record, the termination of the respondent's service was for the reason of absence from work without permission or without acceptable reasons for more than five (5) working days, the decision which was challenged to the CMA. Upon being persuaded by the testimony of the respondent (PW1) as validated by that of her immediate supervisor, Steven Frank Kangoma (DW1) as well a text message in exhibit D1 and a medical report in exhibit A2, the CMA took the view that, the respondent's absence from work for the said period of time was a result of her sickness. It concluded, therefore that, her absence from work was not without an acceptable reason. That was confirmed by the High Court which at page 313 of the record, observed: "7T is my view that the evidence o f both DW1 and DW2 corroborated the evidence o f the respondent (PW1) that she was sick and that she reported to the appeiiant In my view, even in the absence of 4 the exemption from duty (ED) forms, respondent proved her case in balance o f probabiiities." The above notwithstanding, the complaint in this appeal is that, since the respondent's absence from work for more than five days was not in dispute and, in as much as there was no proof of permission from the employer or proof that she was unable to report at work due to sickness, that constituted a serious misconduct which could be a valid reason for termination. The complaint, in our view, presupposes of there being a finding by the High Court that the absence in question was without any acceptable reasons while, as we have observed elsewhere in this judgment, the decision of both the CMA and High Court that the termination was unfair in substance was based on the proposition that the respondent's absence was caused by sickness which is an acceptable reason. To that extent, we find the ground of appeal misconceived and thus without merit. In her further submission, Ms. Sifiei contended in effect that, there was no sufficient evidence to establish that the respondent was sick to the extent of being unable to attend at work. In her contention, the respondent ought to, which was not, produce an exempt from duty certificate (ED) from the relevant hospital. In our view, whether that is correct or not is a pure point of fact. It does not raise any point of law. It does, therefore, not fall under the scope of an appeal to the Court set out in section 57(1) of the 5 Labour Institutions Act. Therefore, to the extent that it is not premised on a pure point of law, we would agree with Mr. Mapembe that, the complaint is not within the purview of an appeal to the Court and, we therefore, decline to entertain the same. The cumulative effect of the above discussions is that the appeal is devoid of any merit. It is accordingly dismissed. DATED at DAR ES SALAAM this 14th day of November, 2025. R. K. MKUYE JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 18th day of November, 2025 in the presence of Mr. Joseph Ndazi, learned counsel for the Appellant and Mr. Mwang'enza Mapembe, learned counsel for the Respondent through Video Link at Dar es Salaam, Mr. Ladislaus Msuba, Court Clerk; is hereby certified as a true copy of the original. N r . A. U DEPU' ________ RAR COURT OF APPEAL 6