Macedonia Nursery & Primary School vs Franco Chacha Nyakimori (Civil Appeal No. 489 of 2022) [2025] TZCA 860 (14 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: NDIKA. J.A.. RENTE. J.A. And MANSOOR. J.A.) CIVIL APPEAL NO. 489 OF 2022 MACEDONIA NURSERY AND PRIMARY SCHOOL .............. .................APPELLANT VERSUS FRANCO CHACHA NYAKIMORI.........................................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division, at Dar es Salaam) f Rwizile, J.) dated 12thday of August, 2022 in Labour Revision No. 465 of 2021 JUDGMENT OF THE COURT 23th July & 14th August., 2025 MANSOOR. 3.A.: Franco Chacha Nyakimori, the respondent, (herein referred to as the employee) was employed by Macedonia Nursery and Primary School, the appellant, (herein referred to as the employer) as a mathematics teacher, on a fixed period of two years commencing on 1st June 2017 to 31st May 2019. Although not reflected on record, it appears that the employment contract was renewed for a further term of two years and was to end on 31st May 2021. Before the expiry of the renewed contract, on 20th August 2020, the employment was cut short by termination

following the disciplinary actions. The remaining contract period, according to the respondent, was 15 months. Aggrieved by the termination, the respondent initiated a claim at the Commission for Mediation and Arbitration, (CMA), by presenting a CMA Form No. 1, in which the nature of dispute was stated as a breach of contract. He therefore claimed to be paid salaries for the remaining period of 15 months amounting to TZS 11,400,000.00, leave pay of TZS 760,000, subsistence allowance of TZS 3,800,000.00, transport to the place of recruitment of TZS 2,000,000.00, and a Certificate of Service. The appellant who is the employer stated in its defence that the respondent's employment contract was fairly terminated both substantively and procedurally. Through DW1 and DW2, it was testified before the CMA that the respondent absconded from work for 25 consecutive days without any justification. That the disciplinary hearing was convened in accordance with section 13 (1) and (2) of the Employment and Labour Relations Act, Cap 366 (the ELRA), and he was found guilty for gross misconduct by being absent from work for 25 days without any justifiable reasons, which is contrary to Employment and Labour Relations (Code of Good Practice) Rules of 2007. The respondent's employment contract was thus terminated on 20th February 2020.

The CMA found in favour of the respondent, reasoning that there was no proof of misconduct, thus no valid reasons to terminate the respondent's contract, as the electronic register or device for recording the employees' attendance was not exhibited in court for proving that the respondent had absconded work for 25 days. The CMA also held that the procedure for termination was unfair as the respondent was not afforded hearing. It therefore awarded the respondent 13 months' salaries amounting to TZS 9,880,000.00, as compensation for unfair termination, and a Certificate of Service. The Revision before the High Court preferred by the employer was dismissed, hence the present appeal. In this appeal, the employer had the services of Mr. Peter Bana, who in his memorandum of appeal raised 9 (nine) grounds of appeal but during the hearing, dropped the third and ninth grounds, and had adopted his written submissions with regards to the remaining grounds of appeal. The hearing of the appeal, however, proceeded in the absence of the respondent/employee in terms of Rule of 112 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules), as the employee defaulted in appearance despite being duly served with the notice of hearing.

For the reasons which we shall later demonstrate, we shall start disposing the 4th and 6th ground of appeal, which we paraphrase as follows; 4. In a dispute for breach of a fixed term employment contract, principles of unfair termination do not apply; 6. In a dispute over an alleged unfair termination of employment, it is the employer who shall start to present his case to prove that the termination was fair. In support of these two grounds, Mr. Bana argues that the respondent/employee initiated the proceedings at the CMA by submitting CMA Form No.l in which his dispute was for breach of employment contract. He submits further that the CMA ought to have decided a dispute of breach of employment contract as pleaded. Instead, the CMA based its decision on a dispute of unfair termination contrary to the pleadings. Mr. Bana referred to the case of Asanterabi Mkonyi vs TANESCO, (Civil Appeal 53 of 2019) [2022] T7CA 96 (7 March 2022). Mr. Bana argues further that since the Arbitrator was determining a dispute of unfair termination, then, Rule 24 (3) of the Labour Institutions (Mediation and Arbitration) Guidelines, GN No. 67 of 2007, (GN 67 of

2007. requires the employer to begin presenting his case as he is required to prove that the termination was fair. In the present matter contrary to Rule 24 (3) of GN 67 of 2007, which requires the employer to start proving whether the termination was fair, the CMA allowed the employee, Franco Chacha Nyakimori to begin to prove his case for breach of contract. On this, Mr. Bana referred to the case of Bulyanhulu Gold Mines Limited vs Paschary Andrew Stanny (Civil Appeal No. 281 of 2021) [2022] TZCA 461 (22 July 2022), where the court while interpreting section 39 of ELRA had said: "The above section ; comes out clearly that where there are allegations o f unfair termination ; the burden o f proof that the termination complained o f was fair, lies on the employer, and that is why, in labour disputes it is the employer who starts to give evidence, though, a respondent, unlike in other civ il matters and even crim inal cases, where a party initiating the proceedings starts to adduce evidence and then a party sued comes next. Mr. Bana therefore argues that the decision of the Arbitrator was based on unfair termination while the dispute preferred by the employee was on breach of contract, and that the procedure for proof of a dispute on unfair termination was violated thereby denying the opportunity to the

employer to prove that the termination was fair, instead the employer went to the CM A armed with the defence of breach of contract only to find that the case against him was on unfair termination. Indeed, as submitted by Mir. Bana, the CMA confused the issues. The employee was employed on a fixed term contract of employment which he claims was breached by the employer, hence he filed a complaint based on a breach of contract and had claimed payment of 15 months' salaries, which he would have earned had the contract been completed to its expiry. The employee's claim was not that he was unfairly terminated or that the reasons for his termination was unfair or the procedures for his termination was unfair, and the CMA was duty bound to strictly adjudicate a case for breach of contract. The confusion of issues by the arbitrator was a serious procedural error. It is a well-established principle of law that a court or tribunal must confine its decision to the issues raised in the pleadings and evidence presented by the parties. It cannot act suo motuand decide a case on a matter not pleaded. The respondent/employee, Franco Chacha Nyakimori, initiated his claim based on a ’breach of contract' and sought specific damages, which is salaries for the remaining 15 months. The arbitrator was therefore duty bound to adjudicate a breach of contract dispute as

presented in the CMA Form No. 1. The failure to do so, and instead to convert the dispute into one of unfair termination, constitutes an illegality. This Court has, on numerous occasions, reiterated this principle. For instance, in Saulo Malima vs Petro Kingoni (Civil Appeal No. 154 of 2022) [2024] TZCA 436 (11 June 2024) we held that, not only the parties to the case, even the court is bound by the parties' pleadings. See also Maria Amandus Kavishe vs Norah Waziri Mzeru & Another (Civil Appeal No. 365 of 2019) [2023] TZCA 31 (20 February 2023) and Idrissa Ramadhann Mbondera vs Allan Mbairuku and Another (Civil Appeal 176 of 2020) [2023] TZCA 204 (27 April 2023). It is as clear as a crystal ball that, a claim over breach of contract is different from a claim of unfair termination as in breach of contract, the employee claims that the employer has failed to fulfil the terms of the fixed term contract potentially leading to financial losses or leading to entitlement of damages. On the other hand, a claim of unfair termination, the employee actually claims that there were no valid reasons for his termination and that the procedure for termination was faulted. A breach of contract occurs when either the employer or employee in a fixed term contract fails to perform the obligations agreed in the contract while unfair termination focuses on the fairness of the processes

of dismissal of the employment. The ingredients to be proved in these two types of claims differ as in a claim for breach of contract, the complainant, would be required to begin presenting his case to prove the terms of the agreement which were breached, also, to prove the special damages he has suffered as a result of the breach while in a dispute of unfair termination, it is the employer who is required under section 39 of the ELRA as well as Rule 24 (3) of GN No. 67 of 2007 to prove that, the reasons for termination were valid and fair, and that the employer had followed the fair procedures for the dismissal of the employee. The employer is only permitted under section 37 of the ELRA to terminate the employment if there are valid and fair reasons and he is strictly required to follow the procedure for termination. Section 37 provides as follows: 37.-(l) It shall be unlawful for an employer to terminate the employment of an employee unfairly. (2) A termination of employment by an employer is unfair if the employer fails to prove- (a) that the reason for the termination is valid; (b) that the reason is a fair reason- (i) related to the employee's conduct, capacity

or compatibility; or (ii) based on the operational requirements of the employer, and (c) that the employment was terminated in accordance with a fair procedure. The remedies are also different, as for breach of contract, the remedies include compensation for damages suffered as a result of the breach, specific performance or other contractual remedies while remedies for unfair termination are as stated in section 40(1) of the ELRA, which is reinstatement, reengagement or compensation. Section 40 (1), thus provides: 40.-(1) Where an arbitrator or Labour Court finds a termination is unfair, the arbitrator or Court may order the employer - (a) to reinstate the employee from the date the employee was terminated without loss of remuneration during the period that the employee was absent from work due to the unfair termination; or (b) to re-engage the employee on any terms that the arbitrator or Court may decide; or 9

(c) to pay compensation to the employee of not less than twelve months' remuneration. The burden of proof also differs as in breach of contract cases, the burden is on the complainant who alleges the breach to prove the breach as well as the damages suffered as a result of the breach while in a claim for unfair termination the burden of proof lies on the employer to prove that the termination was substantially and procedurally fair. This is in accordance to Rule 24 (3) of GN no. 67 of 2007, the proviso therein provides: "Rule 24 (3 ) .... provided that, in a dispute over an aiieged unfair termination o f employment, the employer w ill be required to start as it has to prove that the termination was fa ir." Again, the burden to prove that the termination was fair is placed on the employer under Section 39 of ELRA which provides as follows: Section 39: In any proceedings concerning unfair termination of an employee by an employer, the employer shall prove that the termination is fair. 10

The essence of the procedure for proof of a claim of unfair termination, is to give a chance of fair hearing to the employer to prove that the reasons for termination was fair and valid and the procedure for termination of the employee was strictly followed. The procedure is also to ensure that the employee is terminated in a manner that meets the requirements of Section 40 of ELRA. Under this section, the employer is required to demonstrate that there was a justifiable ground for termination and that the employee was accorded the procedural safeguards guaranteed under the law, in that, the employee was given the right of fair hearing during the disciplinary hearing including the right to representation. In the instant matter, the employer was denied the opportunity to present his case as required under the law to be able to prove that there was fair and valid reason for terminating the respondent's employment for reasons of absenteeism, and that he had followed the procedure in handling the respondent's absenteeism. Further, section 37 of the ELRA provides for procedural fairness which is applicable on a claim for unfair termination, in which the law gives the employer the right to begin presenting his case in order to prove that he has strictly followed the fair procedure for termination. 11

In the instant case, the Arbitrator treated the complaint of the respondent/employee as a breach of contract and gave the right to begin to the respondent/employee as the complainant but she ultimately decided a dispute on unfair termination contrary to the pleadings. Again, if the Arbitrator was certain that the dispute before her was on a claim for unfair termination, she ought to have observed the procedure provided under Section 39 of the ELRA as well as Rule 24 (3) of GN 67 of 2007, and she should have given the employer the right to begin so as to prove that the termination was fair both procedurally and substantively. The procedural errors committed by the arbitrator fundamentally violated the principles of natural justice and denied the appellant a fair hearing. A fair hearing is a cornerstone of our legal system, enshrined in the Constitution of the United Republic of Tanzania and protected by various statutes. The right to a fair hearing includes the right to know the case one has to meet and to be given an opportunity to present one's own case. In this matter, the employer was prepared to defend a claim of breach of contract and was consequently denied the opportunity to present its case as required under the law for an unfair termination dispute, where the burden of proof is placed on the employer. The arbitrator's failure to observe the procedure laid down in section 39 of the 12

ELRA and Rule 24 (3) of GN No. 67 of 2007 effectively stripped the appellant of its right to a fair trial. The Court has consistently held that a fundamental breach of procedure, such as the denial of a fair hearing, is an incurable irregularity that warrants the quashing of the proceedings. In Mbeya-Rukwa Autoparts & Transport Ltd. vs Jestina George Mwakyoma (Civil Appeal 45 of 2001) [2001] TZCA 14 (9 August 2001), we emphasized that the principles of natural justice, particularly the right to a fair hearing, are not mere formalities but are essential for a just and fair legal process. The CMA's actions here resulted in a gross miscarriage of justice. We therefore agree as submitted by Mr. Bana that the confusions in the proceedings have resulted in an unfair trial thereby violating the basic principle of natural justice of fair hearing, and has resulted to the miscarriage of justice to both parties. In the result, we allow the 4th and 6th grounds of appeal. For the reasons of the aforementioned irregularities, we quash and set aside the proceedings, and award of the CMA in Labour Complaint No. CMA/DSM/ILA/165/2020/95/2020, as well as the proceedings and the decision passed by the High Court, Labour Division in Labour Revision No. 13

465 of 2021. We shall not make any order as to costs since this is a labour dispute. We also wish to state that since the two grounds suffice to dispose of the appeal, we find it unnecessary to determine the remaining five grounds raised in the memorandum of appeal. DATED at DAR ES SALAAM this 14th day of August, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered this 14th day of August, 2025 in the presence of Mir. Peter A. Bana, learned counsel for the Appellant and in absence of the 14