Kiboberry Limited vs John Van Der Voot (Civil Appeal No. 248 of 2021) [2022] TZCA 3052 (7 October 2022)

KIBOBERRY LIMITED v. JOHN VAN DER VOOT COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: NDIKA, KITUSI AND MAKUNGU, JJ.A) CIVIL APPEAL NO. 248 OF 2021 (Appeal from the judgment and decree of the High Court of Tanzania at Moshi by dated 15 th December, 2020 in Labour Revision No. 23 of 2019) Labour law- disciplinary proceeding- investigation report- whether failure to involve an employee in the investigation process in formulating the report is an irregularity. Labour law- procedure for terminating an employee- notice to appear at the hearing- whether the employer is carte blanche to terminate the defaulting employee who was given notice to appear without conducting a hearing proceeding Labour law- unfair termination- remedies for unfair termination- whether a terminated employee is entitled to any compensation. The respondent was employed by Kilimanjaro Horticultural Exports Company Limited (“Kilihortex”) as Managing Director under a contract from November 2014 to December 2017, with a monthly salary of TZS 3,000,000. In 2015, after the establishment of the appellant company in Moshi, the respondent was engaged under an additional “Dutch contract” to assist in setting up the new company, increasing his salary to €4,000 per month.

Following the termination of his initial contract with Kilihortex, the respondent continued full-time with the appellant under a separate two-year contract from March 2017 at TZS 3,300,000 per month. In 2018, allegations of misappropriation of funds led the appellant to place him on leave and later terminate his employment for refusal to attend a disciplinary hearing. The respondent challenged the termination at the CMA, which found it substantively and procedurally unfair, awarding compensation of TZS 172,320,000 and €67,200. On revision, the High Court upheld the finding of unfair termination but adjusted the compensation to reflect only the appellant’s contract and statutory entitlements. Held: (i) The Court upheld the findings of the CMA and High Court, noting that the appellant committed a serious procedural irregularity by failing to involve the respondent in the investigation and by terminating him without a proper hearing. (ii) The termination was therefore neither substantively nor procedurally fair. (iii) The Court confirmed that the respondent was entitled to terminal benefits under Section 40(2) of the Employment and Labour Relations Act for rights accrued under his contract at the time of termination on 28 September 2018. The Appeal was allowed partly. Statutory Provisions referred to: (i) Section 40(2) of the Employment and Labour Relations Act.

Cases referred to: (i) Severo Mutegeki and Another v. Mamlaka ya Maji Safi na Usafi wa Mazingira Mjini Dodoma (DUWASA), Civil Appeal No. 343 of 2019, (unreported). (ii) Juma Akida Seuchago v. SBC (Tanzania) Limited, Civil Appeal No. 7 of 2019, (unreported). Ms. Patricia Eric for the Appellant Mr. George Njooka/Ms. Miriam Matinde for the Respondent.