VODACOM Tanzania Limited vs Elifuraha P. Mtowe & Another (Civl Appeal No. 1 of 2020) [2023] TZCA 17690 (2 October 2023)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MWARIJA. J.A.. MAKUNGU, J.A.. And MDEMU, J.A.) CIVIL APPEAL NO. 01 OF 2020 VODACOM TANZANIA LIMITED................. . .................................APPELLANT VERSUS EL1FURAHA P. MTOWE ................................................... 1 st RESPONDENT KIZUMO OMARY KIZANGO ....................... ..................... 2 nd RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, Labour Division at Arusha) (Gwae, 3.) dated the 21st day of October, 2019 in Labour Revision No. 42 of 2017 JUDGMENT OF THE COURT 20th September 8 l 2n d October, 2023 MWARIJA, J.A.: This appeal arises from the decision of the High Court of Tanzania at Arusha (Gwae, J.) in Labour Revision No. 42 of 2017. The revision arose from the award of the Commission for Mediation and Arbitration (the CMA) in complaint No. CMA/AR/MED/ARB/265/2015 instituted by the respondents, Elifuraha Paul Mtowe and Kizumo Omar Kizango (the 1st and 2n d respondents respectively) against the appellant, VODACOM Tanzania Limited. The respondents were the employees of the appellant in different positions. The 1st respondent, who was employed on 2/6/2000, was at the material time, the Regional Account Manager and his work station was i

the Northern Zone, comprising of the Regions of Arusha, Tanga, Manyara and Singida. The 2n d respondent was the Key Account Manager and his work station was Kilimanjaro Region. On 19/6/2015, both respondents were terminated from employment on account that, their work performance was poor. They were dissatisfied with termination and therefore, lodged the complaint in the CMA. They refiled it on 10/8/2015 and on 26/8/2015, the same was scheduled for mediation at 11.00 a.m. According to the respondents, the appellant was notified of the date of mediation through its head of Northern Region, one Henry G. Tzamburakis, but did not enter appearance. As a result, the Mediator decided to proceed to hear the complaint ex-parte under s. 87 (3) (b) of the Employment and Labour Relations Act, Chapter 366 of the Revised Laws (the ELRA) read together with rules 14 (1) and (2) (a) (ii) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007, G.N. No. 67 of 2007 (the Guidelines) which provides that: "14 - (1) Where a party is not present a t the commencement date and tim e set fo r m ediation ; the M ediator sh all w ait fo r a reasonable tim e to give the party an opportunity to arrive. (2) Where a party fa ils to appear a t m ediation, the M ediator m ay do the follow ing:

(a) in the case o f a com plaint the M ediator m ay postpone the hearing in accordance with rule 15 o r m ay - (i) . . . . N/A (ii) decide the com plaint if the other party to com plaint fa ils to attend a m ediation hearing." The Mediator started by the proceeding to hear the respondents' application for condonation of time in the absence of the appellant. He granted it and went ahead to hear the respondents on their complaint in which they challenged the reasons relied upon by the appellant to terminate them and the procedure used in arriving at the decision. The 1st respondent, who testified as CW1, narrated the efforts he made to promote and widen the scope of the appellant company's business despite the challenges he encountered, including the shortage of transport facilities and personnel. He tendered a number of documentary exhibits (C9-C27) to support his contention that he performed well in increasing the number of customers and due to his efforts, the set out targets were met thus making the appellant company's business a success such that the appellant's magazine, The Voice, commended him for his performance. He contended thus, that the reason for his termination was not valid and the applied procedure was unfair. 3

On his part, the 2n d respondent also disputed that his work performance was poor. He testified that, as a Regional Account Manager, he worked hard to secure customers thereby increasing the Company's sales. He added that, the decrease in his performance, which the appellant used as the cause for terminating him, was due to lack of working facilities including transport following the appellant's decision to deprive him the only motor vehicle which he used to carrying out his duties. It was his contention further that, despite the challenges, his performance was on the high side and as a result of his good performance, he said, the appellant wrote him several letters (C37-C41) congratulating and rewarding him for his good performance. Having considered the evidence tendered by the respondents, the Mediator was satisfied that the appellant did not have a valid reason for terminating the respondents' employment. He found also that, the procedure for terminating them was unfair. On those findings, he awarded the 1st and 2n d respondents compensation of 48 and 42-months' salaries respectively. They were also awarded one year's leave entitlement, severance allowance of 10 years and damages for what was termed by the Mediator as economic hardship. In addition, the appellant was ordered to pay repatriation costs and subsistence allowance to the 2n d respondent.

In effect, the 1st and the 2n d respondents were awarded a total of TZS 127,800,000.00 and 134,900,000.00 respectively. The appellant became aware of the ex-parte award on 11/7/2016 when it was served with a copy thereof. It was aggrieved and therefore, sought to set it aside. It filed an application to that effect on 15/7/2016. The application, which was preferred under inter alia rules 29 (1) (a), (4) and 30 (1) of the Guidelines was supported by an affidavit sworn on 14/7/2016 by Charles Kisoka, the then appellant's counsel. In paragraphs 5, 6, 7, and 8 of his affidavit, the deponent states as follows: "5. That , ■ on 11th Ju ly 2016, the applicant received in its head office a t Dar es Salaam a package through the courier services o f DHL which contained an award which shows that on 18th May 2016, the Commission for M ediation and Arbitration at Arusha (Hon. Kefa, M ediator) delivered an ex-parte award in favour o f the respondents and ordered the applicants to pay the sum o f Tshs. 134,900,000 to KIZUMO KIZANGO and Tshs. 127,800,000/= to EUFURAHA MTOW E... 6. That, upon follow ing up what had happened; it came to our knowledge that after the case was restored by the respondents on 10th August 2015, the m atter was called fo r condonation hearing before Hon. Kefa w ithout proper service o f notice to the applicant in accordance with the governing rules.... 5

7. That, the said application fo r condonation was heard in the absence o f the applicant and the Com mission proceeded to deliver its ruling by allow ing the respondents' application fo r condonation. The said ruling was not served to the applicant.
8. That, on 2&h August 2015, the m atter was again called for m ediation hearing before Hon. K e fa w ithout proper service o f notice to the applicant and, in the absence o f applicant on the said date, the Commission ordered the m atter to proceed ex- parte.... At the hearing of the application before the CMA on 21/11/2016, the learned counsel maintained that, the appellant was not duly notified of the date of hearing the application for condonation and mediation. He disputed the contention that, the notice of hearing signed by Mr. Henry Tzambukaris was sufficient notice. He contended that, service ought to have been effected on the appellant through the contact person shown by the respondents in their complaint forms or to its main office. To bolster his argument, he cited the case of Remco Ltd v. Mistry Jadva and Co. Ltd and Others [2002] 1EA 233. Mr. Sheck Mfinanga, the learned counsel for respondents, opposed the application. He supported the decision of the CMA of proceeding ex- parte against the appellant for its failure to appear despite having been

served through its officer, who was the head of the North Region, the said Mr. Henry Tzamburakis. The Mediator agreed with the respondents that the application was lacking in merit. He relied on the provision of s. 87 (5) (b) of the ELRA to hold that, service effected on the person who was the head of the appellant's North Region's office, was sufficient notice, particularly where there was proof of service in terms of rule 7 (1) (c) of the Labour Institutions (Mediation and Arbitration Rules) G.N. No. 64 of 2007 (the Mediation and Arbitration Rules), the notice having been signed by the above stated official of the appellant On the complaint that the appellant was not also notified of the date of delivery of the ex-parte award, the Mediator found that, the omission did not prejudice the appellant because, first, it would not help to justify the appellant's failure to appear for mediation and secondly, that notification of the date of delivery of a decision has its importance in the computation of limitation period which, for the decisions of the CMA, commences after service of the award on the parties. The appellant was aggrieved by the decision of the CMA and thus applied for revision before the High Court. The application was dismissed by the court (Gwae, J.). The learned High Court Judge agreed with the 7

CMA that the appellant was duly served. He relied on the provisions of rule 6 (2) of the Guidelines. He held that, since service was effected at the appellant's North Region's office, which was the main place of business in the area and where the dispute arose, it was properly effected. On the omission to notify the appellant of the date of delivery of the ex-parte award, the learned High Court Judge also agreed with the CMA that, the omission did not prejudice the appellant because such notification would not be relevant in establishing the reason for non- appearance at the mediation but relevant only in computation of limitation period after the decision which however, having originated from a labour dispute, started from the date of service of the award to the parties. In the end, the learned Judge dismissed the application for revision for want of merit. Aggrieved further by the decision of the High Court, the appellant preferred this appeal raising a total of five grounds of complaint. It is imperative however, to state at the outset that, in its memorandum of appeal, the appellant has included the grounds which challenge the ex- parte award on merit while the impugned decision of the High Court did not arise from revision of that award but on the procedure taken to arrive at it. As shown above, the appellant complained that, it was not served

and therefore, unsuccessfully applied to set aside the ex-parte award in the CMA. That being the position therefore, the grounds which deserve our consideration are grounds 2,4,5 and part of ground 1. In all these grounds, the appellant complains that, the learned High Court Judge erred in law in failing to find that, the CMA wrongly proceeded to hear the respondents' application for condonation and the complaint ex-parte while the appellant was not duly served. There is thus only one issue for determination in this appeal, which is; whether or not the High Court was right in holding that, the CMA was justified to proceed to hear the application for condonation and the complaint on the same day in the absence of the appellant. In our considered view, the 3rd ground of appeal, which challenges the ex-parte award on merit, is not worth consideration in this appeal because the application for revision before the High Court was not on the merits of that award, but on the refusal by the CMA to set it aside. When the appeal was called on for hearing, Mr. Luka Elingaya, learned counsel appeared for the appellant while Mr. Meinrad D'Souza who was being assisted by Mr. Samwel Madulanga, also learned advocates, appeared for the respondents. Submitting in support of the appeal, the learned counsel for the appellant argued that, the learned

High Court Judge erred in failing to find that the procedure adopted by the CMA in hearing both the application for condonation and the complaint on the same date without ensuring that the appellant was duly served, was erroneous. According to the appellant's counsel, after having decided the application for condonation, the Mediator was supposed to have adjournment the matter for mediation to another date whereupon the appellant should have been duly notified. He submitted further that, the learned High Court Judge erred in failing to find that, the CMA ought to have considered s. 87 (2) (a) of the ELRA which empowers it to extend the period of mediation where the employer fails to attend the hearing arranged by the CMA but instead, he unjustifiably decided to proceed in the absence of the appellant. We hasten to state here that this provision applies when a complaint is filed by an employer or an employers' association, not in respect of the complaint filed by an employee. In reply, the respondents' counsel supported the decision of the High Court arguing that, the CMA decided the complaint ex-parte because of the appellant's failure to appear despite having been duly served in terms of rule 7 (1) (c) of the Mediation and Arbitration Rules. He insisted that, both the CMA and the High Court properly found that service on the appellant was duly effected because the notice of hearing was received 10

on 10/8/2015 by Mr. Henry Tzamburakis who was at the material time the head of the appellant's Northern Region. He argued that, in terms of the provisions of s. 97 (1) (a) & (c) and (2) of the ELRA and rule 6 (1) of the Mediation and Arbitration Rules, the appellant was duly served. He went on to argue that, on the date of mediation, the appellant was given allowance of one hour from the time fixed for commencement of mediation, which was at 11:00 a.m. That was in accordance with rule 14 (1) of the Mediation and Arbitration Rules. After the appellant's failure to appear, hearing commenced at 12:00 noon. The learned counsel for the respondents argued thus that, the appellant was duly served and after its failure to appear despite the extension of one hour of the time of commencement of hearing, the Mediator was justified to proceed ex- parte. We have duly considered the submissions of the learned counsel for the parties. As pointed out above, the only issue for our determination is whether the Mediator was justified to hear the application for condonation and on the same day, proceed to hear the complaint in the absence of the appellant. Now to answer the posed issue, we wish to start by looking at the provisions of s. 97 (1) (a) and (c) of the ELRA and rule 6 (1) of the ii

Mediation and Arbitration Rules. Section 97 (1) (a) -(c) of the ELRA provides as follows: "97 - (1) A docum ent required to be served on a registered organization or federation in any c iv il or crim inal proceedings sh all be deemed to be duly served if it is- (a) D elivered to the registered office o f the organization or federation; (b) Delivered by registered post to its postal address; or (c) Served personally on an officer of the organization or federation. (2) For the purposes o f this section ; a " docum ent" includes any notice, referral, subm ission, application or other docum ent required to be served under this A ct." [Emphasis added]. As to rule 6 (1) of the Mediation and Arbitration Rules, the same provides that: "6 - (1) A party sh all serve a docum ent to the other party - (a) By delivering or handing a copy o f the document to (i) the person concerned; 12

(ii) a representative authorized in w riting to accept service on behalf o f the person; (Hi) - (iv ).... N/A (b) - (d ) .... N/A (2) A docum ent may also be served to - (a) a company or other body corporate by handing a copy of the document to the person in charge or acting on behalf of the person in charge at its registered office, its principal place o f business within Tanzania or its main place of business within the area in which the dispute first arose; (b) an em ployer by handing a copy o f the docum ent to the person in charge or acting on behalf o f the person in charge at the workplace where the em ployees involved in the dispute ordinarily work or worked." [Emphasis added]. On the basis of the provisions of rule 6 (2) (a) reproduced above, we are satisfied, as both the CMA and the High Court did, that service on Mr. Henry G. Tzamburakis amounted to service on the appellant because he was the head of the appellant's Northern Regional office, the main 13

place of business in the area where the dispute arose. We agree with the counsel for the appellant that the case of Remco Ltd (supra) is distinguishable because unlike in the present case, in the said case, the notice was received by an ordinary employee, a receptionist, who was not the secretary of the 1st defendant. The sub-issue in this case however, is whether the service on the appellant was sufficient. From the record at page 56, what was served to the appellant was the notice of the date of mediation. Although there was a pending notice of application for condonation, the notice served on the appellant was confined to the date of conducting mediation. The record does not show either, that a copy of the application was one of the documents which were served on the appellant. Clearly therefore, service on the appellant was not sufficient because the application, which was hurriedly heard on the same date of hearing the respondents' complaint, ought to have been served on the appellant and a notice of the date of hearing should have also been served to the appellant. The oversight is apparent from the proceedings of the CMA at page 356 whereby, on the date fixed for mediation, that is on 26/8/2015, the Mediator stated clearly that, on that date, the matter was scheduled for mediation. However, according to the proceedings, he started by inviting the learned counsel 14

for the respondents to argue the application for condonation and after, having granted it, proceeded to hear the complaint When highlighting the respondents' written reply submissions, Mr. D'Souza argued that a mediator is vested with the power of hearing and determining an application for condonation without notifying the other party. With respect, we are unable to agree with the learned counsel. In an application for condonation, the respondent has a right to be notified of a hearing date. This is in accordance with rule 29 (9) and (10) the Mediation and Arbitration Rules which states that: "29(1) - ( 8 ) ..... N/A (9) The Commission sh all allocate a date for hearing o f the application once an affidavit is delivered\ or once the tim e lim it for delivering a counter affidavit has lapsed whichever occurs firs t (10) subject to sub-rule (9), the Commission shall notify the parties of the date, time and place of the hearing of the application and the application m ay be heard by way o f m otion." [Emphasis added] On the basis of the foregoing, we are settled in our mind that, the omission to serve the appellant with a copy of the application for condonation and notice of hearing deprived it the right to be heard. With respect therefore, we hold that, the High Court erred in upholding the 15

decision of the CMA which refused to set aside the ex-parte award. In the event, we allow the appeal. As a consequence, the award of the CMA and the decision of the High Court are hereby quashed and the orders arising therefrom are set aside. The record should be returned to the CMA for the complaint to be dealt with by another Mediator from the mediation stage. DATED at ARUSHA this 2n d day of October, 2023. A. G. MWARD A JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL G. J, MDEMU JUSTICE OF APPEAL The Judgment delivered this 2n d day of October, 2023 in the presence of the Mr. Samwel Madulanga, learned counsel holding brief for Mr. Luka Elingaya, learned counsel for the Appellant and Mr. Samwel Madulanga, learned counsel for the respondents is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL