Justin Tineishemo vs Standard Chartered Bank Tanzania Limited (Civil Appeal No. 45 of 2023) [2025] TZCA 1160 (20 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCO RAM: LEVIRA. 3.A.. MGONYA. J.A. And MDEMU, J.A.^ CIVIL APPEAL NO. 45 OF 2023 JUSTIN TINEISHEMO........................................................... 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 Salaam) ( Mganqa, J.l Dated the 15th day of November, 2022 in Labour Revision No. 184 of 2022 JUDGMENT OF THE COURT 7th & 20th October, 2025 LEVIRA, 3.A.: Justine Tineishemo, the appellant was employed by the respondent as Associate Director, Financial Markets Sales for unspecified period. Eventually, the appellant was promoted to a position of Principal, Financial Markets Sales on 1st April, 2017. However, his employment did not last long as it was terminated by the respondent following what was alleged to be operational requirements within Financial Markets Department. Aggrieved, he successfully lodged a complaint with the Commission for Mediation and Arbitration (the CMA). The respondent was not amused by the decision of the CMA. As a result, she successfully challenged it before i the High Court in Labour Revision No. 184 of 2022, subject of the present appeal. It is on record that, prior to his termination, the appellant was issued with a notice of redundancy (exhibit D2) which he signed with reservation together with redundancy package. As intimated above, the appellant was not satisfied with the reasons and procedure of retrenchment followed by the respondent. Before the CMA, the appellant's main complaint was that the respondent neither issued general notice nor conducted consultations prior to the said retrenchment. Upon hearing the evidence of both parties, the CMA delivered its award in favour of the appellant, holding that the respondent had no valid reason for effecting the retrenchment. Consequently, the appellant was awarded TZS.430,632,542.88 being the equivalent of thirty-six (36) months' salary for unfair termination and TZS.48,458,243.00 as a bonus for the year 2020, making a total of TZS.479,090,785.88. The CMA ordered further that the amount of TZS.54,733,857.38 which the appellant was already paid by the respondent as redundancy package (exhibit D4) be deducted from the total amount which the appellant was entitled. 2 The respondent was not satisfied with the award of the CMA and thus lodged revision application to the High Court. Having heard the parties on revision, the High Court found that the appellant consented to the retrenchment notice and received the retrenchment package, hence, his termination was fair. On that basis, he was of the firm view that, the appellant was estopped from denying the truth that he consented to the retrenchment. Therefore, the learned Judge overturned the CMA award and entered judgment in favour of the respondent. The appellant was not happy with the decision of the High Court and thus, he preferred the instant appeal on the following grounds: 1. That the High Court erred in law for failure to dwell on the arguments pleaded by both parties for termination by operational requirement, rather it based on termination by agreement. 2. That the High Court erred in law for failure to determine whether the appellant's retrenchment was substantially and procedurally fair. 3. That the High Court erred in law by embarking on analysis o f fairness o f the procedures for retrenchment in absence o f valid and fair reasons. 4. That the High Court erred in law for ruling that there was retrenchment agreement subsisting between the parties and applied the purported retrenchment agreement to quash and set aside the CMA award. 3 5. That the High Court erred in law to reiy on acceptance o f service o f the notice o f redundancy as consent to retrenchment agreement 6. That the High Court erred in law for challenging appellants evidence which was admitted without objection. At the hearing of the appeal, Messrs. Mwang'enza Mapembe and Tazan Mwaiteleke, learned advocates represented the appellant and respondent, respectively. Before commencement of the hearing of the appeal could take place in earnest, Mr. Mapembe abandoned the 6th ground of appeal and adopted the appellant's written submissions as part of his oral account before the Court. He informed the Court that, he will argue the 4th and 5t h grounds of appeal together, as well as, the 2n d and 3r d grounds and the 1st ground of appeal separately. Regarding the 4th and 5th grounds of appeal, Mr. Mapembe argued that it was not proper for the High Court to rule out that there was a retrenchment agreement subsisting between the parties herein and rely on it to quash and set aside the CMA award. He argued further that it was equally wrong for the High Court to treat acceptance of service of the notice of redundancy as consent to retrenchment agreement. He referred us to pages 492, 496 and 497 of the record of appeal where the High Court Judge reasoned that, the reply by the appellant that he signed the 4 said notice (exhibit D2) because of lack of knowledge that it was not mandatory, is baseless because the signature signifies that he agreed with the terms thereof save for clauses 3, 8(a) and 8(b) of the notice. As a result, the appellant was estopped from denying the truth that he agreed to the retrenchment. Mr. Mapembe insisted that, the purported agreement titled "Notice o f R ed u n d a n ces not an agreement. Instead, a notice of redundancy, a notification of termination that the employment will be terminated. He referred us to page 123 of the record of appeal where the notice of redundancy is found specifically, to the first paragraph to show that it was a notice of redundancy. The same was proved to be so by DW1 at page 296 of the record of appeal. Besides, the notice of redundancy was prepared by the respondent as per the evidence of DW1 at page 305 of the record of appeal, therefore, it cannot be said that it was an agreement, he insisted. The learned counsel argued further that, the signing of exhibit D2 did not absorb the requirements of section 38 of the Employment and Labour Relations Act, Cap 366 (the ELRA), currently, section 39 of the 2023 Revised Edition. He supported his argument with the decision of the Court in Thomas Somme v. Tujijenge Tanzania Limited (Civil 5 Appeal No. 277 of 2021) [2025] TZCA 383 (30th April 2025). Finally, Mr. Mapembe urged us to find merit in these grounds of appeal and quash the decision of the High Court. In reply, having adopted the respondent's written submissions as part of his oral account, Mr. Mwaiteleke submitted that the High Court Judge was right to hold that since the appellant signed the retrenchment notice (exhibit D2) and the redundancy package (exhibit D4) he was estopped from denying the truth that, he agreed to retrenchment and that he would have no further claims as it can be seen at pages 492 through 493 of the record of appeal. Elaborating more, Mr. Mwaiteleke referred us to page 123 of the record of appeal with a view of showing that exhibit D2 was an agreement which stated how much the appellant will be paid as a redundancy package and at page 131, the redundancy package (exhibit D4) which he signed on 14th December, 2020. He insisted that those two documents (exhibits D1 and D4) were agreements and TZS.23,000,000.00 were deposited in the appellant's bank account as per his evidence at page 330 of the record of appeal. Mr. Mwaiteleke went on to state that, in terms of section 38 (2) of the ELRA if there was no agreement, the matter could be referred to mediation which is not the case herein because the appellant signed the redundancy notice (exhibit D2), the agreement for retrenchment as submitted before the High Court at page 464 of the record of appeal. It was his firm argument that a mere fact that the appellant was not involved in preparation of exhibit D2, does not render it not to be a contract because, what is relevant is the content of that document which he signed. As such, he said, the High Court Judge was correct to say that the appellant was estopped to deny the truth that he agreed to retrenchment. According to him, the case of Thomas Somme (supra) referred by the counsel for the appellant is distinguishable from the circumstances of the present case because it is not talking about agreement and payment; while in the case at hand, there are exhibits D2 and D4, the agreement and payment package. He urged us to find that the principle of estoppel was correctly applied by the High Court while making reference to the case of Muhimbili National Hospital v. Linus Leonce, (Civil Appeal No. 190 of 2018 [2022] TZC 223 (28 April 2022). He urged us to find the 4th and 5th grounds of appeal without merit and dismiss them. We have carefully considered arguments by the counsel for the parties, the grounds and record of appeal. We observe that, the pertinent 7 issue for our determination in the two grounds of appeal under consideration is, whether there was retrenchment agreement between the parties to this matter which justified application of the principle of estoppel as it was decided by the High Court. We wish to state at the outset that, retrenchment being a process of termination from employment of an employee or group of employees due to operational requirement of the business, in our country, is governed by law, the ELRA. Section 39 (1), (2) and (3) of the ELRA provides for legal requirements for retrenchment as follows: "39 - (1) In any termination for operational requirements (retrenchment), the employer shaii comply with the following principles, that is to say he shall - (a) Give notice o f any intention to retrench as soon as it is contemplated; (b) Disclose all relevant information on the intended retrenchment for the purpose o fproper consultation; (c) Consult prior to retrenchment or redundancy on - i) The reasons for the intended retrenchment; 8 ii) Any measures to avoid or minimise the intended retrenchment; iii) The method o f selection o f the employees to be retrenched; iv) The timing o f the retrenchment; and v) Severance pay in respect o f the retrenchment; and (d) give the notice, make the disclosure and consult, in terms o f this subsection with i) any trade union recognized in terms o f section 68; ii) any registered trade union which members in the workplace not represented by a recognized trade union; iii) any employee not represented by a recognized or registered trade union. (2) Where in the consultations held in terms o f subsection (1) no agreementis reached between the parties, the matter shall be referred to mediation under Part VIII o f this Act. (3) Where the mediation has failed, the dispute shall be referred to arbitration which shall be concluded within thirty days during which period no retrenchment shall take effect and, where the employees are dissatisfied with the award and are desirous to proceed with revision to the Labour Court undersection 92 (2), the employermayproceed with their retrenchment" The above provision sets mandatory conditions to be observed for proper retrenchment. In the present case, as part of compliance to the said stipulated conditions, among others, the redundancy notice was issued to the appellant. Nonetheless, the contentious issue between the parties is in respect of the acceptance of service of the notice of redundancy to the appellant, whether it amounted to acceptance of retrenchment agreement, hence binding to the parties herein. The notice of redundancy (exhibit D2) found at pages 102 through 107 of the record of appeal is clear evidence that, the appellant did not accept to all the terms of the said notice despite the fact that he signed it. We observe that after signing it, he indicated clearly that, he was not satisfied with clauses 3, 8 (a) and 8 (b) of the said notice. For clarity the objected clauses read: "3. Variable Compensation Pay Eligibility You will remain eligible for consideration for a discretionary variable compensation award for the performance year 2020. Any awards under the 10 discretionary Group Regulation o f Variable Compensation Award will depend on a number o f factors including your own performancer the performance o f your team, the business and the Group. There is no entitlement to or guarantee o f an award and you should not expect an award to be similar to any award you have received in previous years. Any award will be subject to the Group Regulation o f Variable Compensation A ward as amended from time to time. Should any award be made, this will be payable on the Bank's normal payment date in or around March, 2021. 8 . Release and Discharge a) By your signature to this Notice o fRedundancy, you accept its terms in full and final settlement of, and agree to release and discharge that Bank from, any and all claims, costs, expenses or rights o f action o f any kind, whether contractual (including any claim in respect o f any profit-sharing, bonus or incentive or share option arrangements), statutory or otherwise, whether or not they are or could be in the contemplation o f the parties at the date o f this Notice o f Redundancy, and whether having already occurred or arising in the future in any other country in the world, which you have or may have against the Bank and/or the Group 11 or any o f its officers or employees from time to time arising out or in connection with your contract or employment, your employment or any office or appointment held with the Bank and/or the Group and/or termination thereof. You further agree to waive all and any right to institute any action, both nowand in the future, o f any nature, in any administrative or judicial forum, in any jurisdiction against the Bank and/or the Group. b) You agree that, without prejudice to any other rights or remedies o f the Bank and/or the Group arising from such action, if you institute or continue any action or proceedings against the Bank and/of the Group, you shall repay to the Bank immediately upon demand such amount o f the Severance Payment as is equivalent to the total amount o f the compensation or damages (including interest) awarded to you as a result o fsuch proceedings. You agree that such sum will be repayable as a debt Anypart o f the Severance Payment which remains outstanding shall cease to be payable under this Notice o f Redundancy with effect from the date o f commencement o f such proceedings." 12 In our considered view, since the appellant disagreed with other clauses of the Notice of Redundancy, it cannot be said with certitude that by signing it, he had agreed or consented to the retrenchment. We take note that, the opening statement in paragraph 8 (a) indicated that by signing the Notice of Redundancy, the appellant would be accepting its terms in full and final settlement of, and agree to release and discharge the Bank form any and all claims, etc. We further note that, although the appellant signed to acknowledge receipt of the Notice of Redundancy, he had some reservations when he marked "I agree to this notice o f redundancy, except for clauses 3, 8 (a) and 8 (b)." It is elementary knowledge that, for an agreement to be binding upon the parties, each of them must consent to its terms and conditions. As it can be observed from the record of appeal, the Notice of Redundancy was prepared by the respondent unilaterally and that it is why having acknowledged its receipt, the appellant indicated his dissatisfaction. Had it been that the employer disclosed all relevant information of retrenchment as per the requirement under section 39 (1) (b) of the ELRA, the appellant's reservations could have been cleared beforehand. We are unable to agree with the High Court's decision that by mere signing of the notice of redundancy, the appellant consented to all the terms and 13 conditions stated therein notwithstanding that, he expressed his dissatisfaction to some of the terms and conditions. Having said so, we find that under the prevailing circumstances of this matter, the principle of estoppel was not properly applied by the High Court because the purported retrenchment agreement between the parties herein was not an agreement so to speak as demonstrated above. We therefore find merit and allow the 4th and 5th grounds of appeal. As far as the 2n d and 3r d grounds of appeal are concerned/ Mr. Mapembe submitted that these grounds intend to challenge the validity and fairness of the reasons of termination and whether the respondent complied with the procedure for termination. His arguments were based on the decision of the Court in Stanbic Bank (T) Limited v. Iddi Halfan (Civil Appeal No. 139 of 2021 [2023] TZCA 17496 (11th August, 2023), in which the guidance was provided on what amounts to substantive fairness and procedural fairness. In the present case, he submitted that, the reasons for termination were mentioned to be re-organization, performance, effect of Covid 19 and productivity. Though he said, those reasons were not valid due to the following; one, through the evidence of DW1, the respondent failed to tell the CMA how the new arrangement could improve productivity of 14 the respondent; two, DW1 failed to prove how the purported retrenchment was done globally and the reference was made at page 299 of the record of appeal; three, it was not true that retrenchment was necessary due to the effects of COVID 19 because exhibit P3 stated clearly that, no one will be redundant as a result of the pandemic (COVID 19). Thus, there was no justification of the appellant's termination; four, the respondents services were doing well. Besides, Mr. Mapembe argued that the procedure for retrenchment was not followed as the respondent failed to issue notice of retrenchment to the employees. Instead, the issued notice was private to the appellant. This, he argued, showed that the respondent intended to terminate the appellant and the notice informed him so. He cited the case of Emmanuel Shio & 8 Others v. Resolution Insurance Limited (Civil Appeal No. 495 of 2020 [2024] TZCA 151 (29 February 2024). He added that, there was no consultation before the appellant's termination from employment as it was clearly stated in exhibit D3 (private and confidential) letter to the appellant. Finally, he prayed for these grounds of appeal to be allowed. Replying to the 2n d and 3r d grounds of appeal, Mr. Mwaiteleke argued that, these grounds are new and they were not decided by the 15 High Court. Therefore, the Court is estopped from entertaining them. He maintained that the appellant's termination was fair and the procedure was followed. The notice was issued to the appellant Exhibit D3, which is the notice of risk of redundancy. The appellant was given an opportunity to find another job within the bank and apply for re employment, but he did not apply. It was his further submission that, the retrenchment was for the whole bank and the reasons were stated. He referred us to page 295 of the record of appeal where DW1 stated that, there was a meeting of all the employees and not specifically the appellant. He thus urged us to dismiss these grounds of appeal and the entire appeal. In the above discussed grounds of appeal, the appellant invites the Court to determine whether his termination from employment by the respondent was valid and fair. We have already discussed at length that, although the respondent claimed that the appellant's retrenchment was based on operational requirements, the procedure followed and the reasons advanced proved otherwise. In the circumstances, we think, it will be superfluous for us to burn a lot of energy discussing these grounds of appeal having established that, the appellant's termination was not based on any retrenchment agreement. Instead, he was unfairly 16 terminated from employment as the reasons for termination advanced by the respondent as per exhibit D3, were not justified. The issue we raised is thus, answered in the negative. Submitting in respect of the 1st ground of appeal, Mr. Mapembe faulted the High Court for failure to consider that the appellant's termination from employment was based on operational requirements as clearly stated in CMA Form No. 1 and 2 found from pages 12 through 18 of the record of appeal. Instead, his termination was treated as termination by agreement. As a result, the High Court quashed the CMA decision erroneously. He argued further that, the document relied upon by the High Court, exhibit D2 could not stand without mutual agreement between the parties. In the circumstances, he invited the Court to make a finding that, the High Court erroneously concluded that the termination was by agreement and applied the principle of estoppel. Regarding this ground of appeal, Mr. Mwaiteleke replied that, the High Court Judge did not change the nature of dispute as claimed by the appellant. According to him, the decision of the High Court based on the evidence presented before it. He argued that, the issue of redundancy notice was presented before the CMA as per the proceedings at page 25 of the record of appeal and the decision of the CMA directed that the 17 money paid to the appellant should be deducted. He added that, the decision of the High Court relied on the requirements of the law under section 38 (2) of the ELRA and it is clear that, the appellant was paid. Therefore, he concluded, this ground of appeal is baseless. Having heard the parties in respect of the first ground of appeal, we shall determine what was the nature of the appellant's termination from employment. The answer to the question is not farfetched. It is apparent on the record of appeal that, the appellant's termination based on operational requirements as stated in CMA Form No. 1 at page 17 of the record of appeal. We have already discussed the requirements of the law under the circumstances while dealing with the 4th and 5th grounds of appeal. However, the decision of the High Court erroneously based on the Notice of Redundancy which was treated as a binding agreement between the parties herein; hence, changed the nature of termination of the appellant from employment. All in all, be it retrenchment or termination through agreement, nothing in the record of appeal shows that proper procedures were followed to effect the appellant's termination. We have already determined on one hand that, the Notice of Redundancy couid not stand as an agreement because the appellant was 18 not involved in setting the terms and he disputed some of them as shown earlier on. On the other hand, even if we have to agree that the appellant's termination was necessitated by operational requirements following the outcome of COVID 19, an Email from the CEO of the respondent titled: "Offering a Helping hand "(exhibit P3) was very categorical that, no one would be made redundant as a result of the pandemic. In the circumstances, it is inevitable to avoid a conclusion that, the appellant's termination was unfair. We agree with Mr. Mwaiteleke that the CMA directed the money paid to the appellant to be deducted from his entitlements. We note that, the CMA ordered the appellant to be paid 36 months' salary basing on section 40 (1) (c) of the ELRA as a compensation for unfair termination having considered that, he was a permanent employee with family responsibilities. We note further that, the above provision requires the compensation to be not less than twelve months' remuneration. However, having considered circumstances of this matter, we are of the considered opinion that, the 36 months' salary awarded to the appellant by the CMA was of the higher side. Therefore, in exercise of our revisional powers under section 6 (2) of the Appellate Jurisdiction Cap. 141, we reduce the number of months to a minimum of 12 months' remuneration as 19 compensation to the appellant for unfair termination. The first ground of appeal is allowed to that extent. Basing on what we have endeavoured to discuss above, we find merit in this appeal and allow it. We quash the decision of the High Court and uphold the decision of the CMA, save for the compensation awarded to the appellant which we have reduced to 12 months remuneration. Since this is a labour matter, we make no order as to costs. DATED at DAR ES SALAAM this 18th day of October, 2025. M. C. LEVIRA JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL Judgment delivered this 20th day of October, 2025 in the presence of Ms. Maureen Mwakimenya, learned counsel for the Appellant, Mr. Tazan Mwaiteleke, learned counsel for the respondent and Ms. Nise Mwasalemba, Court Clerk; is hereby certified as a true copy of the original. 20