| dc.description | KIBOBERRY LIMITED VS. JOHN VAN DER VOOT COURT OF APPEAL OF TANZANIA
AT MOSHI (Ndika, Kitusi and Makungu, JJ.A) CIVIL APPEAL NO. 248 OF 2021
(Appeal from the judgment and decree of the High Court of Tanzania at Moshi by Mwenempazi, J dated 15th December, 2020 in Labour Revision No. 23 of 2019)
Labour law- disciplinary proceeding- investigation report- whether failure to involve an employee in the investigation process in formulating the report is a irregularity.
Labour law- procedure for terminating an employee- notice to appear at the hearing- whether the employer is carte blanche to terminate the defaulting employee who was given notice to appear without conducting a hearing proceeding
Labour law- unfair termination- remedies for unfair termination- whether a terminated employee is entitled to any compensation.
The brief background is as follows, the Respondent herein was an employee of the Appellant who after being given termination letter he filed his complaint at the Commission for Mediation and Arbitration (CMA) at Moshi. The CMA delivered it is award in favour of the Respondent herein and the appellant being aggrieved he sought for revisal of the award at the High Court of Tanzania at Moshi, but it was only party successful hence this appeal to this court.
The essential facts of the case are mostly uncontested. The respondent was initially employed as the Managing Director by Kilimanjaro Horticultural Exports Company Limited ("Kilihortex"), which grew berries at its farm near Arusha for export. The engagement was on a contract (Exhibit Rl) executed in November 2014 ending on 31st December 2017 at a monthly salary of TZS, 3,000,000.00.
Sometime in 2015, the shareholders of Kilihortex established the appellant company to operate in the same line of business from a farm in Moshi. Around that time, the two sister companies offered the respondent an additional contract (Exhibit R2) to help the appellant establish its foothold and operations in Moshi. The said tripartite contract, executed in Dutch, was an addendum or in addition to Exhibit Rl. For convenience, the parties referred to it as "the Dutch contract." As per Exhibit R2, the respondent was, therefore, working for both affiliated companies and that his monthly salary increased from TZS. 3,000,000.00 to €4,000.
After the appellant company was fully established and ready for production, it was felt that the respondent could no longer continue working for both companies as each company needed full managerial attention. Accordingly, the respondent's initial contract with Kilihortex was terminated through "End of Contract Letter" (Exhibit R3) with effect from 30th April 2017 and the respondent started working fulltime for the appellant on a separate two-year employment contract executed on 1st March 2017 (Exhibit R4) at a monthly salary of TZS. 3,300,000.00.
It was alleged, sometime in June 2018, that the Respondent had misappropriated the appellant company's funds. The appellant placed him on a three-month gardening leave vide a notice dated 24th July 2018 (Exhibit R7) to pave way for conducting investigations into the allegations. Initially, the Respondent reacted by instituting an unfair dismissal claim in the CMA but he withdrew it later. The Appellant proceeded with the investigations, which culminated in the institution of disciplinary proceedings against the Respondent. The Respondent was allegedly summoned vide Exhibit R8 to a disciplinary hearing slated for 29th August 2018 at 2:00 p.m. but he refused to appear. The appellant then went ahead terminating him from employment on 28th September 2018 through a letter of termination (Exhibit R10) for misappropriation of funds.
As hinted earlier, the respondent succeeded in the CMA, which found the termination substantively and procedurally unfair. On that basis, the arbitrator awarded the Respondent compensation aggregated to TZS. 172,320,000.00 and €67,200 being terminal benefits, subsistence allowance and repatriation expenses. Although on revision the High Court (Mwenempazi, J.) upheld the finding that the termination was unfair, both substantively and procedurally, it held that the Respondent was only entitled to terminal benefits based on his contract with the appellant (Exhibit R4), in addition to statutory compensation. It faulted the arbitrator for computing the terminal benefits in terms of both the terminated Dutch contract (Exhibit R2) and Exhibit R4. It held further that the ordered recompence of €8,000 as earned leave payment was erroneous because it had already been paid. In the end, the court confirmed the award in the Respondent's favour, hence this appeal.
Held:
(i) …the failure to involve the appellant in the investigation that led to the formulation of the report coupled with the omission to share a copy thereof with the respondent was a serious irregularity. Inevitably, we uphold the concurrent finding by the courts below that the appellant failed to demonstrate that the impugned termination was for a valid and fair reason.
(ii) In the instant case, the appellant terminated the respondent without any hearing upon recognizing that he had defaulted appearance. This course was a palpable contravention of the procedure we have just explained. In the result, we answer the second issue in the negative.
(iii) It defies dispute that the respondent in the instant case would be entitled to terminal benefits in terms of section 40 (2) of the ELRA in respect of rights that accrued under his contract of employment (Exhibit R40) at the time of his termination on 28th September 2018.
Appeal allowed partly.
Ms. Patricia Eric for the Appellant
Mr. George Njooka/Ms. Miriam Matinde for the Respondent.
Cases referred:
1. Severo Mutegeki and Another v. Mamlaka ya Maji Safi na Usafi wa Mazingira Mjini Dodoma (DUWASA), Civil Appeal No. 343 of 2019, (unreported).
2. Juma Akida Seuchago v. SBC (Tanzania) Limited, Civil Appeal No. 7 of 2019, (unreported).
JUDGMENT OF THE COURT
(Delivered 7October, 2022) | en_US |
