Fadhili Rahisi Kipugila vs Kioo Limited (Civil Appeal No.31 of 2021) [2023] TZCA 17554 (28 August 2023)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM f CORAM: MUGASHA. 3.A.. KITUSI. 3.A. And MDEMU. 3.A.> CIVIL APPEAL NO. 31 OF 2021 FADHILI RAHISI KIPUGILA ..................................................... APPELLANT VERSUS KIOO LIMITED..................................................................... RESPONDENT [Appeal from 3udgment and Decree of the High Court of Tanzania, (Labour Division) at Dar es Salaam] (Muruke. 3 .^ dated the 31s t day of August, 2019 in Revision No. 255 of 2019 JUDGMENT OF THE COURT 21st & 28th August, 2023 KITUSI. J.A.: The appellant was an employee of the respondent before that employment was terminated. We shall adopt the factual narration of the Commission for Mediation and Arbitration (CMA) and that of the High Court on what transpired to bring that employment to end. It is that; on 10/6/2017 while on official annual leave the appellant made a telephone call to the Secretary of the TUICO branch one Fredrick Mangera Majura to notify him that his mother Halima Juma had passed away. There was no dispute that in the event of bereavement employees of Kioo Limited, the respondent, would seek financial assistance from their employer by making applications through their Trade Union branch. Upon receipt of the information by phone, Mr. Majura who testified as DW1 adviced the appellant to meet him at the office the following morning so as to initiate the payment of money for condolences. Mr Majura was working night shift when he received the call. In the morning, DW1 met the appellant and wrote an internal memo requesting payment of TZS 530,000/= from the respondent being condolences for the death of the appellant's mother. However, in the course of inspection of records for approval of the payment, behold, the respondent's relevant department discovered that his mother had been dead long before as reflected by the appellant's official employment service data at the time of his engagement therefore, the appellant's notification of her death on 10/6/2017 could not be anything but a lie. Consequently, the respondent wrote to the appellant to demand his disclosure of the truth about his mother's alleged death but he did not respond. The employer conducted a disciplinary hearing after being satisfied that, the appellant had committed an act of dishonesty. Ultimately, the respondent terminated the appellant's employment on 28/7/2017. The appellant complained before the CMA. Both in the opening statement and testimony he did not allude to the reason for the termination but took his time to challenge the procedure. It was only when he was being cross-examined when he maintained that he did not make the alleged telephone call to DW1 nor cause the internal memo to be written. He wondered why it would take DW1 to write the internal memo while he is a holder of a university degree who could write on his own? On the procedure, the appellant stated that on 17/7/2017 he was served with a copy of summary of disciplinary hearing which he signed as per instructions given to him. These proceedings were admitted as exhibit F3 showing that only two members were in attendance. On that basis, the appellant cried foul in the procedure and moved the CMA to order payment of severance allowance, payment of salaries as compensation and general damages for breach of contract, which allegedly prompted his wife to walk out of their marriage. He also prayed for leave pay. The CMA concluded that the respondent had not proved both fair reason and procedure in terminating the appellant. It therefore ordered payment of the following in favour of the employee, appellant: Salaries for 25 months at TZS 877,716/= per month which came to a total of TZS 21,942,900/=. Payment of one month salary in lieu of notice. Severance allowance amounting to TZS 438,858/=. Inclusive of general damages of TZS 150,000,000/=, the CMA ordered payment of TZS 174,137,190/= in favour of the appellant. The respondent successfully applied for revision to the High Court, Labour Division vide Revision No. 255 of 2019 from which this appeal arises. The High Court was of the view that there was proof of fairness of reason for termination as well as the procedure. In concluding so, the learned High Court judge referred to DWl's evidence and exhibit KL-11 the summary of disciplinary hearing. She noted that the appellant signed the summary proceedings in which he admitted giving the false notice of his mother's death. The learned judge observed that if the disciplinary hearing was faulty, the appellant would not have counter signed KL-11. Finally, it allowed the revision, quashed the award and set aside all orders of compensation. The appellant was aggrieved and filed the following grounds of appeal 1, That the learnedjudge erred in law and fact by holding that termination was for good cause andjustified. 2. That the learned judge erred in law and fact in relying to the exhibits which are not tendered as evidence before the CMA, that are KL 11 and KL 12. 3. That the learnedjudge erred in law and fact in arriving to the view that counter signing the summary of disciplinary hearing and declining to appeal by the appellant amounts to admission o f the commission of the offence. 4. That the learned judge erred in law and fact in relying on the evidence of DW1 who alleged the appellant to have reported the death o f his mother to him while there was no evidence supporting such allegation. 5. That the learned judge erred in law and fact by failing to consider that the quorum of the members who conducted the disciplinary proceedings was incomplete. We wish to commence by observing that ordinarily under section 57 of the Labour Institutions Act, Cap 300 (the LIA) we only deal with issues of law. In line with that provision of the law, we shall pay little regard to complaints on factual issues. The appellant entered appearance to argue the appeal in person but in doing so he did no more than adopt the written submissions he had earlier filed. The respondent was represented by Mr. Bernard Mbakileki, learned advocate. He also adopted the written submissions he had earlier presented and made brief clarifications. The learned counsel submitted that there was evidence that the appellant had reported death of his mother who, it was discovered, had long died earlier. Mr. Mbakileki submitted so while dismissing that complaint for being a matter of fact as opposed to law. This submission by the learned advocate is, in our view, relevant to grounds 3 and 4 of the appeal which we propose to address first. In the written submissions, the appellant argued that his signing of the proceedings of the disciplinary hearing intimating that he was not going to appeal, should not be taken as proof of procedural fairness. He submitted that the employee is a weaker side who may have to comply with instructions without necessarily agreeing to the facts. As for the 4th ground of appeal, he submitted that we should not belive DW1 because his testimony is not backed up by documentary evidence. In our view, grounds 3 and 4 offend section 57 of LIA but all the same, we shall make a few observations on them in passing. First of all, we take the appellant's conduct as supporting the fact that he was actively pursuing his cunning motive to get condolences for his mother's death. This is because he did not contradict DW1 on the fact that he met him at work on 11/6/2017 although he was on official leave. The appellant's appearance at the workplace on the date and time when DW1 had summoned him to the office for processing payment could not have been a mere coincidence. Secondly, it is a known principle of law that oral evidence cannot be used to contradict documentary evidence. See Euphracie Mathew Rimisho t/a Emari Provision Store & Another v. Tema Enterprises Limited & Another, Civil Appeal No. 270 of 2018 (unreported). On that basis, the appellant cannot be heard disowning the admission made through the summary of disciplinary hearing. We have no basis for faulting the learned judge whose holding was that:- "Summary o f disciplinary hearing marked KL-11 was signed by the Chairperson on 15thJuly, 2017 and counter signed by Fadhiii Rahis (the respondent) if the proceedings were not right especially admission of commission o f the offence by respondent himself, then, he wouldn't have signed." On the reasons we have demonstrated above, we dismiss grounds 3 and 4 for want of merits. The second ground of appeal, that it was wrong to rely on documents which were not tendered is worth consideration but has no merit in our view. In his submissions, the appellant has referred to order XIII rule 4(1) and 7 (1) of the Civil Procedure Code (CPC) as well as the case of M/S SDV Transami (Tanzania) Limited v. M/S STE DATCO, Civil Appeal No. 16 of 2011 (unreported). Although in principle the appellant is correct, we cannot agree with his contention that KL-3 was not admitted as an exhibit. We agree with Mr. Mbakileki that it was formally admitted at page 98 as exhibit F3. The second ground of appeal is dismissed. We propose to deal with the 5th ground of appeal next. This is a complaint that the quorum of the disciplinary proceedings was incomplete. The appellant has not suggested what would have been the appropriate quorum and under what regulation. The respondent's submissions which we go along with are that, the quorum was according to law. Further that the summary of the proceedings was signed by the Chairperson and countersigned by the appellant, therefore the contention that the Chairperson was the only person who signed it is untrue. We dismiss this ground. Lastly, we consider the first ground of appeal, which complained that it was wrong for the High Court to conclude that termination was for good cause and justified. Submitting on this ground the appellant argued that the alleged misconduct should not have led to termination because it did not fall under rule 12 (3) of the Employment and Labour Relations (Code of Good Practice), 2007 No. 42 of 2007 (the Code). He further referred to rule 12(4) (a) of the Code which requires consideration of the seriousness of the misconduct. He submitted, we think in the alternative, that even if the appellant committed the alleged misconduct, he being a first offender, a warning instead of termination would have been quite in order. He cited the case of National Microfinance Bank v. Leila Mringo & 2 Others, Civil Appeal No. 30 of 2015 (unreported). Mr. Mbakileki's submissions did not address the rules cited by the appellant in his submissions. Having overruled the appellant on the grounds of appeal challenging proof of the misconduct, we shall proceed to determine whether it justified termination. According to the appellant, it did not justify termination. In our view, the Code is explicit and, in our reading, it cannot be in support of the appellant's contention. Under the Code, offences that may attract warning are, late arrival at work and absence from work for up to five days. "Dishonesty or any other major breach of trust", with which the appellant was charged, is cited under rule 9 (5) as a serious misconduct leading to termination. In our conclusion, the rules that we have just discussed support termination of employment for being dishonest or breach of trust and the opposite is not true. This ground is similarly without merit and stands dismissed. 9 Given our determination on the five grounds of appeal, we dismiss the entire appeal with no order as to costs, this being an appeal arising from a labour matter. DATED at DAR ES SALAAM this 28th day of August, 2023. S.E.A. MUGASHA JUSTICE OF APPEAL I.P. KITUSI JUSTICE OF APPEAL G. 1 MDEMU JUSTICE OF APPEAL The Judgment delivered this 28th day of August, 2023 in the presence of the Appellant in person and Mr. Victor Ntalula, learned Counsel for the Respondent, is hereby certified as a true copy of the original. R. W. Chaungu DEPUTY REGISTRAR COURT OF APPEAL 10