Enza Zaden Africa Limited vs Edwin Kasena (Civil Appeal No. 427 of 2021) [2023] TZCA 17733 (5 October 2023)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MWARIJA. J.A.. MAKUNGU. J.A., And MDEMU, J.AJ CIVIL APPEAL NO. 427 OF 2021 ENZA ZADEN AFRICA LIMITED.................................................APPELLANT VERSUS EDWIN KASENA ................................................................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Arusha) fGwae, J.1 dated the 14th day of September, 2020 in Labour Revision No. 70 of 2017 JUDGMENT OF THE COURT 2nd & 5th October, 2023 MWARIJA, J.A.: The appellant, Enza Zaden Africa Ltd was aggrieved by the decision of the High Court of Tanzania at Arusha (Gwae, J.) in Labour Revision No. 70 of 2017. The impugned decision arose from the award of the Commission for Mediation and Arbitration, Arusha Zone (the CMA) in Employment Dispute No. CMA/ARS/ARB/45 of 2014. The Employment Dispute was filed by the respondent, Edwin Kasena after having been dissatisfied with the appellant's decision to terminate him from employment. i

The brief background giving rise to the complaint before the CMA and ultimately this appeal, may be stated as follows: The respondent was employed by the appellant as a Security Guard and until the material time, he was in the position of a Security Supervisor. His duties included the preparation of daily work schedules and deployment of Security Guard to different sentries of the appellant's clients, provision of uniforms and boots to the Guards and dealing with security issues. In the course of the performance of his duties, a number of complaints against him were received by the appellant through its Human Resources office. Some of the Security Guards complained that the respondent was sexually harassing them, used rude language and demanded bribes from them. As the complaints against the respondent were serious, disciplinary charges were opened. The charges related to the allegations of sexual harassment, committing dishonesty, corrupt practices and use of rude and abusive language. Having heard the charges, the Disciplinary Committee found that the three charges had been proved and thus by the appellant's letter dated 19/2/2014, the respondent was informed that he had been terminated from employment. Aggrieved by the appellant's decision to terminate his employment, the respondent filed the employment dispute in the CMA. 2

Having heard the evidence of five witnesses_for the appellant and the respondent who did not have any other witness apart from himself, the CMA found that, the respondent was terminated on the basis of misconduct in that, he committed sexual harassment, used rude and abusive language to the witnesses who testified and for his corrupt acts and dishonesty. It found therefore, that the reason for his termination was fair. It found also that, the procedure for terminating the respondent was fair because he was served with a notice and participated in the hearing before the Disciplinary Committee. The respondent was dissatisfied with the decision of the CMA and thus applied for revision before the High Court. He complained that, the appellant did not conduct investigation to substantiate the allegation before it charged him with disciplinary offences, that the reason for his termination were fabricated, that none of the witnesses who complaint against him was called to testify before the Disciplinary Committee and that the Arbitrator exercised jurisdiction illegally by upholding the appellant's decision to terminate the respondent while his termination was not substantially and procedurally fair. The High Court heard the revision by way of written submissions. Having considered the parties' submissions, it was satisfied that the 3

reason for the respondent's termination was fairbecausejt was based on misconduct which was proved during the disciplinary hearing and by the CMA. With regard to the procedure, the learned High Court Judge found that the same was not fair because of failure to comply with the requisite procedure before an employee is charged with disciplinary offence, particularly rule 13 (1) of the Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007 (the Code of Good Practice). He was of the view that, the Arbitrator erred in finding that the procedure for terminating the respondent was fair. As a consequence, the learned Judge revised the decision of the CMA on that aspect and held that, the respondent's termination was not procedurally fair. He proceeded to declare that, apart from the terminal benefits awarded to the respondent, he should also be paid eight months' salary compensation amounting to TZS 105,712.00 for having been terminated on unfair procedure and be availed with a certificate of service. The decision of the High Court aggrieved the appellant hence this appeal which is predicated on the following two grounds: "1. That the learned High Court Judge grossly erred in law and fact to hold that the appellant violated the procedure for termination o f the respondent's employment; alternatively;

2. That the learned High Court Judge grossly erred in law and fact for his failure to see that the minor procedural issues raised in his judgment do not exist and even if they existed, taking into account the circumstances o f this case, they were o f serious nature to warrant unfair termination." At the hearing of the appeal, the appellant was represented by Mr. Emmanuel Shio, learned counsel while the respondent appeared in person. The appellant did not file written submissions in terms of rule 106 (1) of the Tanzania Court of Appeal Rules, 2009 and therefore, the arguments for and against the appeal were made orally. Submitting in support of the appeal, Mr. Shio argued that, the procedure for terminating the respondent's employement was not in breach of the law. He disputed the contention that the rules of procedure were violated. On rule 13 (1) of the Code of Good Practice, he argued that, the same does not require that an inquiry should be conducted before an employee is charged with a disciplinary offence or that an employer should conduct investigation and use the investigation report during the conduct of disciplinary proceedings.

The learned counsel argued also that, even if there could have been a violation of the procedure, it is trite, as observed by the High Court, that the Code of Good Conduct is not required to be applied strictly. According to the learned counsel, since the respondent was properly heard, such violation of the procedure if any, did not prejudice him. In response, the respondent insisted that, since the appellant did not conduct investigation before it charged him with disciplinary offences, his termination was not procedurally fair. He supported the decision of the High Court in which, at page 226 of the record of appeal, the learned High Court Judge held that, the appellant's failure to conduct investigation on the allegations made against him and submit the report of such investigation, was a breach of rule 13 (1) of the Code of Good Practice. He argued further that, the grounds upon which that finding may be faulted has not been explained by the learned counsel for the appellant. He added that, the unfairness of the procedure in terminating him manifests itself in the failure by the CMA to inform him of his right to appeal and the fact that, the persons who made the allegations of misconduct against him were not called before the Disciplinary Committee to testify. 6

The main issue which arises for our determination in this appeal is whether or not the termination of the respondent from employment was in accordance with a fair procedure. According to s. 37 (1) and (2) of the Employment and Labour Relations Act, Chapter 366 of the Revised Laws, termination of an employee is fair if it is based on fair reason and done in accordance with a fair procedure. The complaint by the respondent which was agreed to by the High Court was that, before the disciplinary proceedings, the investigation on the allegations of misconduct against him were not investigated and therefore, no investigation report was supplied to him so that he could properly defend himself on the charges laid against him. He complained, in the circumstances that the procedure was not fair. In his judgment at page 226 of the record of appeal, the learned High Court Judge held as follows on that issue: . . the manner the disciplinary hearing was conducted does not constitute reasonable adherence to the procedure stipulated by the labour laws, for example, his failure to submit an investigation report as required under rule 13 (1) o f the Code (supra) taking into account o f nature o f the disciplinary offences (sexual abuse, abuseve language and corrupt practices or dishonesty, failure to give an outcome in

disciplinary hearing forrn^ tendered by the respondent (E2) and respondent's failure to explain to the applicant his right o f appeal or any other remedy available." In our considered view, the omission to inform the respondent of his right to challenge, before the CMA, the decision to terminate him as required by item 4 (12) of the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedure, appearing under the Code of Good Practice, did not, as argued by Mr Shio, prejudice the respondent because he promptly referred the dispute to the CMA. This is also the position for the omission to give the outcome of the disciplinary hearing in a specified form because, in effect, the respondent was notified of the outcome in the letter dated 19/2/2014. We however, agree with the learned High Court Judge that, the failure by the appellant to conduct investigation before the disciplinary proceedings were held, rendered the termination of the respondent procedurally unfair. According to rule 13 (1) of the Code of Good Practice, investigation must be conducted to ascertain whether there are sufficient grounds to hold disciplinary hearing. The rule states as follows: "13 - (1) The employer shall conduct an investigation to ascertain whether there are grounds for a hearing to be held." 8

From the wording of the above reproduced mle, investigation must precede the disciplinary hearing. That serves two main purposes; to ascertain existence of the grounds for commencing disciplinary hearing against an employee and to enable the employee to make defence on the basis of the investigation report. In the case of Severo Mutegeki & Another v. Mamlaka ya Maji Safi na Usafi wa Mazingira Mjini Dodoma (DUWASA), Civil Appeal No. 343 of 2019 (unreported), the Court underscored the importance of availing the report of investigation to the employee facing a disciplinary charge triggered by such a report. It observed as follows: "Itis our considered view that, though the Internal Auditor's ultimate reporting responsibility ties to the Director General it is notin dispute that, those actually audited were the appellants and it is the audit report which triggered the charges against them. In that regard\ the non-involvement o f the appellants and subsequent conviction based on that report was irregular because they could not adequately prepare for the hearing before the disciplinary committee o f the respondent Instead, it is the respondent who being in possession o f the report had all the ammunition to make a stronger case which was to the

disadvantage o f the appellants which rendered what followed to be unprocedural." In the case at hand, the investigation was not carried out hence a breach of the mandatory provisions of rule 13 (1) of the Code of Good Practice. That violation denied the respondent the opportunity of having the report thereof for making his informed defence. In the circumstances, although as held by both the CMA and the High Court, the reason for the respondent's termination was fair, as held by the High Court, the procedure was not fair. For the foregoing reasons, we find this appeal to be lacking in merit. It is hereby dismissed. DATED at ARUSHA this 5th day of October, 2023. The Judgment delivered this 5th day of October, 2023 in the presence of the Mr. Emmanuel Shio, learned counsel for the Appellant and the respondents appeared in person is hereby certified as a true copy of the A. G. MWARIJA JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL original. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL 10