Enza Zaden Africa Limited vs Edwin Kasena (Civil Appeal No. 427 of 2021) [2023] TZCA 18037 (5 October 2023)

ENZA ZADEN AFRICA LIMITED VS EDWIN KASENA COURT OF APPEAL TANZANIA (CORAM: MWARIJA, J.A., MAKUNGU, J.A., MDEMU, J.A. ) C IVIL APPEAL NO.427 OF 2021 (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Arush dated the 14th day of September, 2020 in Labour Revision No. 70 of 2017 ) Employment Law – Termination of employment – Procedural fairness – Obligation to conduct prior investigation before disciplinary action. The appellant, Enza Zaden Africa Ltd, challenged the decision of the High Court of Tanzania at Arusha, which revised the Commission for Mediation and Arbitration (CMA) ruling in favour of the respondent, Edwin Kasena. Mr. Kasena, formerly employed as a Sec urity Supervisor, had been terminated following allegations of sexual harassment, use of abusive language, and corruption. Although the CMA found both the reason and procedure for termination to be fair, the High Court found procedural irregularities. Specifically, the High Court held that the appellant failed to conduct a prior investigation into the misconduct allegations as mandated by Rule 13(1) of the Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007. This failure denied the respondent a fair opportunity to prepare his defence. The Court of Appeal agreed with the High Court, emphasizing the mandatory nature of the investigation process as a prerequisite to any disciplinary hearing. Referring to Severo Mutegeki v. DUWASA, the Court highlighted the importance

of providing employees with access to investigation reports to ensure a fair hearing. While the Court upheld that the reasons for termination were substantively fair, it found the procedure wanting and therefore procedurally unfair. The appeal was dismissed for lack of merit. H eld: (i) The court held that the respondent's termination was not procedurally fair due to the absence of a prior investigation, which is required by rule 13(1) of the Employment and Labour Relations (Code of Good Practice) Rules, thus depriving the respondent of c rucial information necessary for his defense. (ii) The court agreed with the High Court that despite the misconduct being a fair reason for termination, the lack of procedural fairness was significant enough to render the termination unfair. (iii) The court dismissed the appellant's contention that minor procedural failings could be overlooked, affirming the significance of procedural adherence to ensure fair employment termination. The appeal was dismissed. The High Court decision was upheld. The respondent was entitled to compensation for procedural unfairness and a certificate of service. Statutory Provisions referred to: (i) Section 37(1) and (2) of the Employment and Labour Relations Act, Cap. 366 R.E. (ii) Rule 106(1) of the Tanzania Court of Appeal Rules, 2009 (iii) Rule 13(1) , Item 4(12) of the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedure of the Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007 Cases referred to:

(i) Severo Mutegeki & Another v. Mamlaka ya Maji Safi na Usafi wa Mazingira Mjini Dodoma (DUWASA), Civil Appeal No. 343 of 2019 (unreported)