Qatar Airways vs Mafuli Hamadi Mfinanga (Civil Appeal No. 385 of 2022) [2025] TZCA 950 (9 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM rCORAM: MWANDAMBO. J.A.. KHAMIS. J.A. And MLACHA, J.A.') CIVIL APPEAL NO. 385 OF 2022 QATAR AIRW AYS........................................................................ APPELLANT VERSUS MAFULI HAMADI MFINAN6A .................................................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Dar as Salaam) f Mwipppo, 3 .^ dated the 16th day of July, 2021 in Revision No. 200 of 2020 JUDGMENT OF THE COURT 18th June & 9th September, 2025 MWANDAMBO, 3.A.: The appellant, Qatar Airways, lost her legal battle to the respondent Mafuli Hamadi Mfinanga before the High Court, Labour Division ("the Labour Court") in an application for revision against the award made by the Commission for Mediation and Arbitration ("the CMA") for Kinondoni, The CMA dealt with a dispute involving fairness of termination of employment contract between the parties and held that the termination

was substantively and procedurally unfair. Dissatisfied, the appellant instituted the instant appeal. Briefly, the facts giving rise to the appeal are largely common ground. The respondent was an employee of the appellant for about three years from 16 September 2015 to 26 September 2018 in the post of Finance Assistant. On 26 September 2018, the appellant terminated the respondent's employment contract allegedly for misconduct involving gross dishonesty, breach of trust, serious breach of the organisation's rules and policies and, fraud or misappropriation of the appellant's funds. Discontented, the respondent successfully challenged the appellant's decision before the CMA, contending that the termination was unfair both procedurally and substantively. Through CMA F.l the respondent referred her complaint before the CMA claiming, reinstatement; payment of TZS 300,000,000.00 being damages for unfair termination; unpaid meal allowances; and, payment of TZS 100,000,000.00 for other damages which the arbitrator treated it as special damages in the award. Based on the claims in the CMA F .l and the facts set out in the respective opening statements, the CMA framed three issues but in effect they roll into two of them, that is; whether the respondent's termination was upon a fair reason and with a fair procedure; and the reliefs the 2

parties were entitled to. At the end of the hearing, the CMA was satisfied that the appellant failed to discharge her burden of proving that the termination was fair both procedurally and substantively. It accordingly determined the dispute in favour of the respondent. However, it declined to order reinstatement as prayed. Instead, it granted other reliefs including; (1) 24 months' salaries compensation in pursuance of section 40(1) (c) of the Employment And Labour Relation Act (the ELRA); (2) specific damages in the sum of TZS 30,000,000.00; and (3) TZS as 200,000,000.00 general damages. Aggrieved, the appellant contested the award before the High Court (Labour Division) on seven grounds out of which, four of them are directly relevant to the appeal. These relate to the justification behind the award of specific damages which was not pleaded as such and contrary to the law; awarding colossal sums of the specific and general damages; and holding that the respondent's termination was substantively and procedurally unfair. The Labour Court sustained the CMA award that the respondent's termination was unfair for lack of evidence proving existence of a fair and valid reason for the termination. The court took the view that, the bank statement and the general ledger, the subject of the investigation report and the resultant disciplinary charges were not 3

tendered in evidence at the disciplinary hearing. Neither did the investigator of the alleged misconduct called in evidence to furnish explanation on the findings of his investigation. On the other hand, the Labour Court also concurred with the finding made by the CMA that the procedure for the respondent's termination was not fair due to, one, lack of evidence proving that notice of hearing was served on her and that the disciplinary hearing did actually take place, two the fact that the respondent was denied right to cross examine the investigator and author of the investigation report (exhibit D6), three, failure to involve the respondent in the investigation and avail the respondent the investigation report ahead of the disciplinary hearing thereby denying her the right to defend on the charges arising from the investigation report, on the authority of the Court's decision in Severo Mutegeki & Another v. Mamlaka Ya Maji Safi Na Usafi Wa Mazingira Mjini (DUWASA)[2020] TZCA 310. Regarding reliefs, except for the interference with the award of general damages which were reduced from TZS 200,000,000.00 to only TZS 20,000,000.00, the Labour Court sustained the rest of the reliefs granted by the CMA. Against the above, the appellant challenges the impugned decision in this appeal upon four grounds. Closely examined, the grounds raise two 4

main issues, to wit; correctness of the impugned decision on the fairness of the respondent's termination, subject of the 4th ground and, justification of the reliefs awarded by the CMA sustained by the Labour Court comprised in the 1st, 2n d and 3rd grounds of appeal. At the hearing of the appeal, Mr. Victor Kikwasi, learned advocate appeared to represent the appellant whereas, Mr. Edward Chuwa and Ms. Anna Lugendo, both learned advocates, teamed up to represent the respondent. While Mr. Kikwasi did not press to be heard orally in addition to the written submissions in support of the grounds of appeal lodged earlier on, Mr. Chuwa exercised that right and we heard him orally on top of the respondent's written submissions in reply lodged earlier on. In our consideration and determination of the grounds of appeal, we have found it convenient to begin with the 4th ground which raises the issue as to whether the respondent's termination for employment was fair both procedurally and substantively. Depending on our determination of the issue arising from the 4th ground, our next task will be on the 1st' 2n d and 3rd grounds which are dedicated to the justification of the reliefs granted by the CMA and sustained by the Labour Court. Naturally, if we sustain the 1s t issue, the determination of the 2n d issue will be superfluous. 5

The learned advocate for the appellant contends in his written submissions that, the Labour Court wrongly concurred with the CMA that the appellant did not prove that the respondent's termination was fair on both substantive and procedural grounds in disregard of the evidence to the contrary. It is further contended that, contrary to what the Labour Court held, the appellant discharged her burden of proof as required by section 39 of the ELRA that, the respondent committed several misconducts in the course of her employment, in particular, gross dishonesty warranting her termination from employment. Counsel pointed out that, the appellant’s decision to conduct a disciplinary hearing was a result of the investigation report (exh. D6) which revealed that the respondent relayed wrong information to the air ticketing agent (DW 2) on the deposit of cash into the appellant's account by a customer which turned out to be untrue. Mr. Kikwasi contended further that, during the disciplinary hearing, the respondent admitted that she altered original banking details and sent incorrect information to DW2 on the amount of cash available in the bank account It was further argued that, in terms of rule 12 (3) of the Employment and Labour Relations Rules G.N. No. 42 of 2007, henceforth the COGP Rules, the sanction for dishonest behaviour was termination which, upon 6

evidence proving the misconduct on which the respondent defended herself, the appellant terminated her from employment. Counsel impressed upon the Court that, termination of the respondent was upon a fair and valid reason related to employment in accordance with section 37 (2) (a) and (b) of the ELRA. On the other hand, it was submitted that, the procedure for terminating the respondent was fair in accordance with the COGP Rules that is; issue of a notice of hearing ahead of the disciplinary hearing at which she attended and defended herself having been informed of her right to give evidence and bring witnesses. It was submitted further that, in terms of rule 13(1) of the COGP Rules, the disciplinary hearing was preceded by an investigation over the allegations against respondent involving relaying wrong information on the cash deposit into the appellant's account which resulted into exhibit D6 implicating the respondent, hence the disciplinary charges. Counsel was resolute that, the respondent's contention, notwithstanding, denying having been notified of the disciplinary hearing she duly attended it and gave evidence in defence. Concluding, Mr. Kikwasi implored the Court to find merit in this ground and sustain it.

Replying, Mr. Chuwa argued that, since the appellant's reason for termination was that the respondent relayed wrong information to DW2 on the cash deposit into the account, the bank statement was crucial to prove the allegation despite which, the appellant tendered none. According to the learned advocate, without the bank statement, the investigation report by itself was insufficient to prove the charge the more so when neither was the respondent involved in the investigation nor was the author of exhibit D6 who resided in Dohar Qatar, called as a witness during the disciplinary hearing for cross-examination on the funds misappropriation charge. Besides, it was contended that, the investigation report was not made available to the respondent prior to the hearing which was fatal on the authority of the Court's decision in DUWASA's case (supra). Mr. Chuwa also took an issue with the submission by the appellant's counsel on the notice of termination and argued that, no such notice was issued to the respondent for a disciplinary hearing which trampled upon her right to a hearing. He wound his submission by inviting the Court to hold that, the respondent’s termination was without a fair and valid reason or a fair procedure as rightly held by the Labour Court when it sustained the CMA’s award. 8

Before discussing the merits in this ground and the appeal generally, we find it necessary to make a preliminary remark regarding the Court's jurisdiction to entertain appeals from the Labour Court under section 58 of the Labour Institutions Act, Cap. 300(previously section 57) before the 2023 Revised Edition of the Laws. Appeals to the Court from the decisions of the Labour Court lie on points of law only. On that account, it is beyond the jurisdiction of the Court to look at the evidence to find out whether the impugned decision is or is not correct. Consistent with the Court's decisions, amongst others, Bahari Oilfield Services EPZ Ltd v. Peter Wilson [2021] TZCA 250, assailing the findings of fact by the Labour Court is contrary to the provisions of section 58 of the Labour Institutions Act. In Ovadius Mwangamila & Others v. Tanzania Cigarette Company Limited [2025] TZCA 361, the Court reiterated that, although a challenge against the unfairness of termination premised on section 37 (2) of the ELRA is naturally one of law, it ceases to be so in situations where the Court is invited to examine and evaluate the evidence adduced before the CMA to satisfy itself whether the Labour Court's findings in revision were correct. The appellant in the instant appeal faults the Labour Court in the 4th ground allegedly for holding that the respondent's termination from

employment was unfair. However, as seen above, the submissions in support are directed at the Labour Court's failure to evaluate evidence adduced by the appellant's witnesses and documentary exhibits which proved fairness of the termination both substantive and procedural. There is no complaint whatsoever against failure by the Labour Court to consider the evidence resulting in the court wrongly sustaining the CMA's award. On the contrary, it is glaring from the submissions that, the appellant faults the decision for improper evaluation of evidence even though there is no specific complain in that regard. Be it as it may, these are matters of fact on which, the Court has no jurisdiction to consider a complaint based on concurrent findings of fact by both the CMA and the Labour Court as it were, as we said in: St. Joseph Secondary School v. Alvera Kashushura [ 2022] TZCA 445. The above notwithstanding, we are unable to agree with Mr. Kikwasi’s submission that the Labour Court made an error in holding as it did that the respondent's termination was without a fair and valid reason. On the contrary, we agree with Mr. Chuwa that the appellant did not discharge its burden of proof on the fairness of the termination both substantively and procedurally. First and foremost, like the Labour Court, we agree that, since the basis of the respondent's termination was an 10

investigation which resulted into exhibit D6, it was incumbent upon the appellant to call the investigator and author of the report as a witness during the hearing before the CMA. Needless to say, this was a material witness whose presence was indispensable. If called, he would offer explanation on the investigation and answer questions in cross- examination. Besides, the bank statement meant to prove gross dishonesty and misappropriation of funds and all manner of allegations was not tendered and admitted in evidence before the CMA. As submitted by Mr. Chuwa, the investigation report alone without the bank statement, General Ledger, as well as the emails allegedly sent by the respondent admitting manipulation of cash deposits was not sufficient to prove gross dishonesty or any of the disciplinary charges against the respondent. The above aside, closely examined, exhibit D6 is not free from difficulties. In the first place, as can be seen from page 194 through to page 208 of the record of appeal, there is no clear indication on the scope of the investigation that is; the period covered and the methodology used during the investigation resulting into the report. Neither is there any indication regarding the period when the investigation was conducted, including the people involved, nor is the date on which the investigator signed it is reflected. Above all, the investigator who is shown at page 156 1 1

of the record of appeal to have attended the disciplinary hearing on 20 September 2018 as a witness, was not called as a witness before the CMA. There is no dearth of authorities to the effect that, failure to call a key witness without any explanation attracts drawing adverse inference against the party's case in appropriate cases, in line with the Court's decision in Aziz Abdalla v. Republic [1991] T.L.R. 71. In our view, failure to call the investigator and author of exhibit D6 left a lot of unanswered questions which justified drawing adverse inference against the appellant. Our unfleeting review of the record of appeal reveals that, neither DW1 nor DW2, the appellant's only witnesses in the matter, were involved in the investigation leading to the disciplinary charges. Regarding procedural fairness, we hold the view that, despite the valiant submissions by Mr. Kikwasi, the record does not support his contention. Most importantly, after conducting an investigation and making a decision to conduct a disciplinary hearing, it was incumbent upon the appellant to notify the respondent employee of the allegations ahead of the disciplinary hearing within reasonable time to prepare for the hearing as required by rule 13(3) of the COGP Rules. The employer was equally under obligation to inform the accused employee ahead of 12

the hearing of his right to bring witnesses in defence and the right to be represented by a fellow employee or representative of a trade union. It will be recalled that, in the dispute referral from vide CMA F.l, the respondent claimed that the procedure used in terminating the respondent was unfair on two grounds; inadequate notice to prepare her defence and failure to give her the charge and notice of hearing. In the opening statement and her evidence before the CMA, the respondent maintained that, no notice of hearing was served on her but was only called by phone on 19 September 2018, few hours before the hearing, contrary rule 13(3) of the COGP Rules. She also contended that she was not afforded the right to seek a representative of a trade union or to call witnesses let alone being accorded a fair hearing. It was her case that, on 19 September 2018, she was called by DW1 who informed her of the existence of charges against her involving termination coupled with instructions barring her from visiting the office and communicating with her fellow employees until he called her. On the other hand, through paragraph 11 of her opening statement, running from pages 09 through 12 of the record of appeal, the respondent claimed that, despite her complaint against inadequate notice pleading for more time to enable her prepare for the hearing, the disciplinary committee went ahead and 13

proceeded with the hearing even though the respondent refused to record her attendance. Conversely, the appellant's case was and is still that, she complied with a fair procedure in terminating the respondent. All the same, upon our examination of the record, the fact that the respondent was called by DW1 on 19 September 2018 in connection with the charges and appeared for the hearing on 20 September 2018 was not controverted. This suggests to us that, the appellant did not discharge her burden of proving that the respondent was given reasonable notice of not less than 48 hours to appear for the hearing on the disciplinary charges against her. The employee's right to a fair hearing has been underscored in various decisions including in Michael Mabula Nzengula & Another v. Kahama Town Council & Others [2025] TZCA 357, whereby, the Court dealt with an appeal by two public servants who had made written responses to the disciplinary charges but not given adequate notices of hearing. It stated: ". . . the right to be given time to answer the charges and adequate notice of hearing are mutually exclusive. The fact that the appellants made answers to the charges well before the expiry o f 14 days did not take away their right to

adequate notice o f hearing considering the dictates o f the PSCGP. Unlike Mr. Mpogoie, there was indeed prejudice on the appellants as evidenced by the inadequate notices o f hearing to appear..." The position in the instant appeal is no better considering that the respondent attended the disciplinary hearing a day after the call from DW1, albeit in protest. Besides, although the minutes of the disciplinary hearing at page 85 of the record suggest that the respondent was asked if she had come with any representative and had none opting to defend in the absence of such representative, it is not clear to us how could the respondent have been able to come with a representative without being so informed well in advance let alone accessing one considering that DW1 barred her from communicating with any fellow employee. In Arthur Mgongo v. KCB Bank Tanzania Limited [2024] TZCA 1205, the Court underscored the employer's duty to comply with the COGP Rules in particular, rule 13(5) thus: "... Essentially, the purpose o f rule 13(5) of the Code o f Good Practice is to provide an employee a fair hearing o f the allegations raised against him at the Disciplinary Committee. Therefore, if an employee is denied a right to know the substance 15

o f the employer's evidence and to examine the employer's witnesses or to go through documentary evidence intended to be tendered against him, that is a fata! irregularity which vitiates the proceedings towards the termination. ..." From the foregoing, there can be no doubt that the appellant has not made out a case for us interfering with the impugned decision on both fronts. Consequently, the appellant's complaint in the 4th ground lacks merit and we accordingly dismiss it. Next, we shall discuss the remaining three grounds which raise one main issue, justification for awarding the respondent specific and general damages on account of unfair termination and the quantum. Mr. Kikwasi’s submission on the 1st ground was, essentially, that it was wrong for the Labour Court to sustain the CMA's award in relation to damages whose particulars were neither pleaded in CMA F. 1 nor given in the opening statement which constituted the respondent's pleadings in the circumstances. It was further submitted that, in the absence of any indication on what represented general damages and specific damages, both the CMA and Labour Court strayed into error in apportioning other damages into specific damages the more so considering that these fell 16

outside the reliefs set out under section 40 (1) of the ELRA in consequence to unlawful termination. Counsel cited the Court's decision in Makori Wassage v. Joshua Mwaikambo and Another [1987] T.L.R. 88 (obiter), to argue that, a party is bound by his own pleadings and thus, he cannot be allowed to set up a new case by way of evidence at variance with the pleaded facts. Arising from above, Mr. Kikwasi impressed upon us that, awarding the respondent TZS 30,000,000.00 as special damages for unfair termination over and above 24 month's salaries compensation on the same account was double payment which cannot be allowed to stand. On the other hand, counsel argued that, the High Court and CMA misdirected themselves on the nexus between termination and miscarriage of the respondent and place a monetary value on it. He thus invited the Court to sustain the 1st ground. In his reply, Mr. Chuwa was resolute that, the respondent properly pleaded damages in CMA F. 1 on account of unfair termination in which the claimed recompense was TZS 300,000,000.00 while TZS 100,000,000.00 was for other damages. To him, the High Court and the CMA cannot be faulted for awarding the respondent damages which were pleaded as shown above.

We have given due consideration to the rival arguments by the learned counsel on the 1s t ground which raises the issue involving justification for CMA's award of specific damages to the tune of TZS 30.000.00000 which was sustained by the Labour Court. There is no dispute that, apart from the reliefs specified under section 40 (1) of the EALRA, the CMA has power, under section 88 (b) (ii) of the same Act to deal with any claim for tortious liability or vicarious liability which, if sustained may result in the award of damages. Nevertheless, for the CMA to award damages in that regard, the complainant must have specifically pleaded in her pleadings through CMA F. 1 and made her case clear in the opening statement and issues in that regard framed. An award of general damages was a subject of the Court's decision in Godfrey Nderingo v. Stanbic Bank (T) Ltd [2025] TZCA 106 in which, the CMA awarded the appellant compensation of TZS 300.000.000.00 for loss of reputation from unfair termination of employment. The High Court reduced the amount to TZS 20,000,000.00 an amount which the Court sustained on appeal. It is significant that, in that case, there was a specific claim of TZS 500,000,00000 for loss of reputation which is not the case in the instant appeal whereby, the claimed TZS 300,000.000.00 was for unlawful termination and TZS 18

100,000,000.00 for other damages and without indicating the reason for that amount. On the other hand, in Dew Drop Co. Ltd v. Ibrahim Simwanza [2021] TZCA 527 the Court referred to its earlier decision in Security Group (T) Ltd v. Samson Yakobo 10 others [2020] TZCA 6 on the synonymity of CMA F. 1 with a plaint and held that, like in the plaint, all reliefs must be set out therein. Therefore, if the respondent intended to claim TZS 100,000, 000. 00 as damages for injury resulting into her miscarriage, she should have specifically stated so in CMA F. 1 and perhaps supported by facts in the opening statement. With respect, Mr. Chuwa is not right when he argues that it was enough for the respondent to simply insert a figure in CMA F. 1 and include it in the reliefs in the opening statement without linking it to any ground for her claim. In our view, making a specific claim incidental to the unfair termination whose reliefs are specified would have given rise to an issue on the specific claim and give parties opportunity to lead evidence thereon. Interestingly, the appellant set herself to prove fairness of the termination and closed her case unaware of the respondent's claim for mistreatment and harassment on the basis of which the Labour Court concurred on the finding except on the quantum. It will be noted that, the appellant who had closed her case, had no chance to rebut the 59

respondent's case on the nature of the other damages which, in the opinion of the CMA meant specific damages for the suffering from harassment, mistreatment and loss of her pregnancy. Significantly, in awarding the respondent 24 months' salaries as compensation which it considered to be the maxima, the CMA took into account all the circumstances behind the termination to wit; humiliation in the state of pregnancy on unsubstantiated allegations involving her profession which will make it difficult for her to secure alternative employment at the peak of globalization characterized by fast speed of information on the cause of her termination which had the effect of denying her constitutional right to alternative employment in the circumstances. Despite the appellant’s contest against the award for the reason that it was not pleaded, the Labour Court sustained it reasoning that it was indeed pleaded. With respect, we take a different view mindful that specific damages must be specifically pleaded and strictly proved regardless of the manner of pleadings in labour disputes. That being the case, the question for our consideration is whether the respondent pleaded specific damages. It is common cause, and the CMA acknowledged that the respondent sought reliefs, amongst others, TZS 100, 000, 000.00 on account of other damages. However, down the road 20

at page 491 of the record, the CMA made reference to specific damages in the sum of TZS 100,000,000.00, despite the fact that the respondent had not asked that sum as specific damages. Besides, it is glaring at page 494 of the record that, while agreeing with arguments from counsel on the principle that specific damages must be proved unlike general damages, and in the absence of any proof to substantiate the award of special damages, the CMA went ahead and awarded the respondent TZS 30,000,00000 on ground that the appellant terminated her on unjustifiable and malicious allegations of injuring her reputation. Apparently, the Arbitrator forgot that she had applied more or less the same reasons largely, speculative in awarding her 24 months' salaries compensation for unfair termination as can be seen at page 493 and 494 of the record. At the risk of making this judgment unduly long, we have found compelling to let the CMA speak for itself thus: " . . . Lakinihiyo haizuii Tume kuamua juuya hapo hasa pale inapojiridhisha kuwa uachishwaji kazi husika ulikuwa wa kikatili zaidi, kama Hivyo katika shauri hili dhidi ya PW1, kwa kuwa kila kesi huamuliwa kwa ushahidi wake, hivyo kwa mgogoro huu Tume imejiiidhisha kuwa PW1 sio tu alionewa ball ameachishwa kikatili akiwa katika kipindi cha ujauzito, tena kwa makosa yasiyokuwa 21

na uthibitisho dhidiyake, mbaya zaidi kwa tuhuma za wizi ambazo kiukweii kwa taatuma yake ni wazi itakuwa ngumu kuajirika pahala kwingine hasa wakati huu wa utandawazi ambao taarifa hufika kila sehemu kiurahisi, hivyo akiwa kama kijana wa miaka 33 ni wazi kuwa amenyimwa haki yake kikatiba ya kufanya kazipahala pengine,..." [at page 493-494 of the record] Later in the decision, the CMA awarded the respondent TZS 200.000.000.00 general damages for the same reasons it applied in awarding a higher compensation for unfair termination and specific damages. Except for the interference with the award on general damages which it reduced to TZS 20,000,000. 00, the Labour Court concurred with the CMA on the award as well as its reasoning. Regardless of Mr. Chuwa's submission to the contrary, we respectfully agree with Mr. Kikwasi that, the award of TZS 30,000,000.00 was legally and factually untenable. We thus sustain the 1st ground and allow it with the effect that, the award of special damages for TZS 30.000.000.00 is set aside. In view of our determination in the 1st ground, we need not belabor on the 2n d and 3rd grounds because they revolve around the same issues 22

involving wrongful award of general damages whose basis not given in the pleadings through CMA F.l and particulars given in the opening statement beyond the reliefs from unfair termination. In the event, the appeal stands dismissed in the 4th ground and allowed in the 1st, 2n d and 3rd grounds with the net effect that the award of TZS 30,000,000.00 on account of specific damages and TZS 20,000,000.00 for general damages are hereby set aside. Each party shall bear own costs. DATED at DODOMA this 4th day of September, 2025. The Judgment delivered this 9th day of September, 2025 in the presence of Mr. Rahim Mbwambo, learned Advocate for the appellant, Ms. Anna Lugendo, learned advocate for the respondent via virtual Court, and Mr. Oscar Msaki, Court Clerk; is hereby certified as a true copy of the L. J. S. MWANDAMBO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL L M. MLACHA JUSTICE OF APPEAL original.