Mbezi Beach Secondary School vs Elias Naligia (Civil Appeal No. 385 of 2022) [2025] TZCA 949 (9 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWANDAMBO. J.A., KHAMIS. J.A. And MLACHA, J.A/1 CIVIL APPEAL NO. 385 OF 2022 MBEZI BEACH SECONDARY SCHOOL .......................................... APPELLANT VERSUS ELIAS NALIGIA............................................................ ........ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Dar es Salaam) (Maahimbi, J.) dated the 1st day of April, 2022 in Revision No. 206 of 2020 JUDGMENT OF THE COURT 2n d July & 9th September, 2025 MWANDAMBO. J.A.: The appellant in this appeal challenges the correctness of the decision of the High Court (Labour Division) quashing the award of the Commission for Mediation and Arbitration (the CMA) for Kinondoni in CMA/DSM/KIN/303/19 made on 27 April 2020 which dismissed the respondent's Labour complaint involving fairness of his termination. The facts from which the appeal has arisen reveal the following: The respondent; a teacher by profession, entered into an employment l

contract with the appellant as a teacher for one year commencing on 1 January 2018 which ended on 31 December 2018. That contract was renewed for another term beginning 1 January to 31 December 2019. Two months later after the renewed period a dispute arose between the parties in relation to the respondent's conduct involving unauthorised absence from work for six consecutive days between 6 and 12 March 2019. The alleged absence resulted in the appellant's Headmaster requiring an explanation from the respondent through a letter dated 12 March 2019 to which, the respondent replied on the same date. Since the appellant was not satisfied with the respondent's explanation of his absence, it commenced a disciplinary hearing through a letter dated 19 March 2019 inviting the respondent to appear before the disciplinary committee on 22 March 2019. It is common ground that, during the disciplinary hearing, the respondent faced not only the offence in convection with his unauthorised absence which notice was served on him ahead of the hearing but also a new charge involving dishonesty. Particulars on the additional charge alleged that the respondent had, without any authorisation from the school management, collected money from Form One D students for purchase of mathematics books which he failed to deliver.

In the aftermath, the disciplinary hearing ended with a finding of guilty on both charges with a recommendation for the respondent's termination from employment. By way of a letter dated 28 March 2019 admitted as exhibit M7 before the CMA, the appellant's Headmaster terminated the appellant's employment for both charges. The respondent was naturally dissatisfied with the termination. He referred at the CMA challenging the fairness of the termination both procedurally and substantively praying for several reliefs including, payment of nine months' salaries for the remaining period of the contract and ten months' salaries as compensation for unfair termination. In his opening statement before the CMA, the respondent faulted his termination on the ground that, his absence was with prior permission from the Headmaster, Second Master and the Academic Master despite which, the Second Master refused to recognise the massages and went ahead to lay the disciplinary charge. He disputed the number of days he was allegedly absent without permission and argued that the absence did not attract termination since he had not been given any prior warning. In addition, he contended that, the second charge involving dishonesty was fabricated on the day he 3

appeared for a disciplinary hearing to justify his termination despite the fact that the purchase of books for Form One students was brought up by the Second Master to him in his capacity as Head of Mathematics Department and Form One class teacher. For the appellant, it was contended that, the respondent absented from work without prior permission for six consecutive days and upon being asked to explain it, he gave different versions on the absence which necessitated conducting a disciplinary hearing. Similarly, it was contended that, on the date of the disciplinary hearing, the appellant received complaints from various students on the money the respondent improperly collected for procurement of books for the students failed to deliver such books. From the respective opening statements, the CMA framed two issues for determination of the dispute namely; whether the termination of the respondent's employment was fair substantively and proceduraily and, the reliefs the parties were entitled to. At the end of the arbitration, the CMA was satisfied that the appellant who had the burden of proof in terms of section 39 of the Employment And Labour Relations Act ("the ELRA") that the termination was fair, successfully discharged that burden through its three witnesses

who also tendered a number of documentary exhibits. In the end, the CMA dismissed the complaint. Dissatisfied, the respondent preferred an application for revision before the Labour Court vide Revision No. 206 of 2020 upon several provisions, remarkably, rule 28 (1) (d) of the Labour Court Rules, G.N. No. 106 of 2007 ("the Rules") alleging existence of an error material to the merits of the subject matter before the CMA involving injustice. His main complaint was that the appellant terminated him for being absent for six consecutive days including Saturday and Sunday which were not working days. Besides, he contended that, his absence for three working days was with prior permission from the appellant's administration and thus, there was no valid reason for termination contrary to the findings of the CMA. The Labour Court was satisfied that the CMA's award was erroneous on two fronts. One, absenteeism which was the basis of the termination is not defined under the law and so it could not have been a fair and valid reason for terminating the employment contract. Two, even if there was a valid reason for termination on account of absence from work, it was wrong to terminate the respondent considering that, his absence related to socio-economic problems he was facing at the

time which impacted on his psychological well-being having a bearing on his performance. Guided by rule 12 (2) of the Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007 ("the Code of Good Practice Rules"), the Labour Court reasoned that, notwithstanding the fact that absenteeism was not a valid reason for termination, had it been one, it did not attract termination it being a first contravention. According to the Labour Court, a warning or another punishment could have been an appropriate sanction in the circumstances. Having so reasoned, the Labour Court concluded that, the termination was without a fair and valid reason and set aside the CMA's award. Consequently, the Labour Court awarded the respondent TZS 7,200,000.00 as compensation for nine months' salaries for the remainder of the contract period. The appellant was aggrieved by that decision hence, the instant appeal on four grounds on which, Ms. Eliaicha Ndowo, learned advocate for the appellant lodged her written submissions urging the Court to allow the appeal. At the hearing of the appeal, Ms. Ndowo, abandoned the 2n d ground which had sought to fault the Labour Court for holding

that termination was not an appropriate sanction. The remaining grounds may be conveniently paraphrased as follows:

1. Error in holding that absenteeism is not a misconduct defined under the law as a ground for termination o f employment
2. Failure to properly evaluate evidence resulting in unfair and unjust decision.
3. Error in holding that the termination was without reasonable and probable cause, On the date of hearing, the learned advocate stood by the written submission she had already lodged but prayed to highlight on some aspects in the submissions. The respondent appeared in person, unrepresented, to resist the appeal. Although he claimed to have lodged his written submissions in reply, none was found in the record. Nevertheless, we heard him orally in reply to the appellant's submissions urging us to dismiss the appeal for lack of merit. The learned advocate for the appellant argued the 1st and 4th grounds conjointly. The substance of the submissions by the learned advocate for the appellant in the 1s t ground was directed against the learned judge's conclusion that absenteeism could not have constituted a valid reason for termination since it is not one of the legally recognised reasons under the law in Tanzania. Counsel drew our attention to the 7

disciplinary offences set out under the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedures annexed to the Code of Good Practice Rules. She submitted that, absence from work without permission or acceptable reason for more than five working days is one of the offences which constitutes serious misconduct warranting termination from employment. Counsel criticised the reasoning by the learned judge for disregarding the provisions of the Guidelines mentioned shortly. The appellant's submission on the 4th ground was that, it was wrong for the learned judge in concluding, as she did that, the appellant had not proved existence of a valid reason to terminate the respondent contrary to the evidence that he was absent for more than five working days from 6th to 12th March 2019 without permission from the employer or upon acceptable reason. At any rate, counsel argued, the respondent was terminated not only on absenteeism but also on gross dishonesty which was a serious offence attracting termination. While conceding that the disciplinary charge against him subject of the notice of disciplinary hearing related to absenteeism for more than five working days, Ms. Ndowo justified the introduction of a new charge on dishonesty in the

course of the disciplinary hearing with the management's right to depart from the Guidelines depending on the circumstances of each case. Resisting the appeal, the respondent urged the Court to dismiss it because his termination was not in accordance with the law. He pointed out that, whereas by its letter dated 12 March 2019 (at page 103 of the record) the appellant alleged that he was absent for six consecutive days from 6 to 12 March 2019, the letter inviting him for hearing at page 124 of the record shows that he was absent from 6 to 11 March 2019. At any rate, the respondent argued that the days he was allegedly absent without permission included Saturday and Sunday which were not working days leaving only three working days which could not have justified termination. He insisted that, the appellant had not issued any warning to him at any time during the life of the employment contract and therefore the severe sanction by termination could not be justified. In rebuttal, Ms. Ndowo stuck to her guns arguing that, despite the fact that the actual absence involved three working days, termination was an appropriate sanction because the respondent had been given warnings earlier on which were not controverted. She thus implored the Court to sustain the 1s t and 4th grounds. 9

For a start, we agree with Ms. Ndowo that the learned judge's reasoning that absenteeism is not legally recognised as a ground for termination is flawed. It is plain from the Code of Good Practice Rules referred to us that, absence from work for more than five working days constitutes a misconduct punishable by termination. It seems to us that the learned judge was pre-occupied more on the terminology used; absenteeism rather than absence used in the Code of Good Practice Rules. The Oxford Advanced Learners Dictionary of Current English, 10th edition, defines the words thus: "absence - the fact o f somebody being away from a peace where they are usually expected to be; the occasion or period o f time when somebody is away... absenteeism: the fact o f being frequently away from work or school especially without good reasons"[At page 4] It will be clear from the above definition that, whereas absence refers to a specific period, absenteeism refers to habitual or frequent absence from work which appears to be more serious than absence. At any rate, despite the manner in which the appellant preferred the charge, read in context, the respondent was charged with absence from 10

work for six days running from 6th to 12th March 2019. That being the case, the issue that turns for our consideration is whether the absence for 6 consecutive days was the same as absence from work for more than five working days in terms of item 1 of the Guidelines to the Code of Good Practice Rules. Before doing that, we wish to state at this juncture that the relevant contract of employment, subject of the dispute commenced on 1 January ending on 31 December 2019. This is relevant in view of the argument by Ms. Ndowo on the existence of prior warnings to the respondent justifying the sanction of termination once it was proved that the disputed absence was less than five working days. Back to the issue, to constitute a misconduct attracting termination the employee must have been absent from work for more than five working days without permission or acceptable reason. It is not the same as absence from work for more than five consecutive days reflected in the disciplinary charge and letter of termination. In other words, the working days of absence need not be consecutive. It is common ground that two days of the appellant's absence from work fell on a weekend which were not working days. The respondent admitted having been absent from work for three working days which he notified the Head Master, Second Master and Academic

Master. However, the said officers denied having received any such notification through SMS. All things being equal, the respondent' absence was for three working days without permission or acceptable reason. Under rule 12(2) of the Code of Good Practice Rules, the appropriate sanction for unauthorised absence from work is termination where such absence exceeds five working days. The appropriate sanction for absence involving less than five working days is warning in accordance with item 1 to the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedures incorporated under the Code of Good Practice Rules. As stated earlier, section 39 of the Employment and Labour Relations Act imposes burden of proof of misconduct on the employer. In this case, it was upon the appellant proving that the respondent was absent from work without permission for more than five working days thereby justifying termination. Despite insisting that the respondent was absent from work for six consecutive days, the appellant did not prove that the days of absence were more than five working days. As rightly held by the Labour Court, in the absence of such evidence, there was no fair and valid reason for the termination. Like the Labour Court, the

unauthorised absence of less than five working days attracted a warning or any lesser penalty than termination. Ms. Ndowo submitted vehemently that at any rate, termination was not an appropriate sanction in view of the fact that the appellant had, prior to the impugned termination, issued warning letters to the respondent. With respect, the said warning letters were quite irrelevant to the contract on the dispute giving rise to the appeal. On the other hand, the learned advocate sought to impress us that the respondent's termination was not just a result of absence from work rather, due to a proven dishonesty. It will be recalled that the charge on dishonesty was introduced in the course of the hearing and the respondent was not afforded adequate to respond as he did in respect of the other count Ms. Ndowo sought to justify the introduction of the new charge by rule of the Code of Good Practice Rules which allows a departure. Apparently, the Labour Court did not address itself on the respondent's challenge against CMA's award on dishonesty despite it being one of the grounds in the application for revision. Nevertheless, we think we can still deal with the issue. Admittedly, gross dishonesty is one of the grounds constituting misconduct warranting termination

consistent with Rule 12 (2) and (3) of the Code of Good Practice Rules. In terms of rule 13 (1) of the Rules, an employer is enjoined to conduct an investigation before a disciplinary hearing is held but none was done and thus the respondent was taken by surprise during the hearing in contravention of rule 13 (3) of the Rules. Under the circumstances, with or without evidence proving gross dishonesty, the appellant flouted the basic procedure for initiating a disciplinary hearing and the hearing itself. By the appellant's own admission, termination was procedurally unfair as it relates to gross dishonesty. It is pertinent that, fair hearing is guaranteed by Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977 which requires adequate notice of hearing before an adverse decision is made against a person. In our view, this right could not have been jettisoned to the altar of the appellant's right to depart from the Code of Good Practice Rules as urged by Ms. Ndowo. The upshot of the foregoing is that the respondent's termination was unfair in both cases and so the Labour Court rightly quashed the CMA's award. Having so held, we need not discuss the 3rd ground which, apart from failure to meet the threshold under section 58 of the Labour Institutions Act, Cap. 300 of 14

the 2023 Revised Edition of the laws, a discussion on it has been rendered superfluous. In the event, the appeal stands dismissed. Since there is no indication that the appeal was frivolous, we make no order as to costs. DATED at DODOMA this 4th day of September, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 9th day of September, 2025 in the presence of Ms. Eliaicha Ndowo, learned Advocate for the appellant, the respondent in person - unrepresented via virtual Court, and Mr. Oscar Msaki, Court Clerk; is hereby certified as a true copy of the original. 15