Tanga Cement Plc vs Honeywick Kalenge (Labour Revision 2 of 2022) [2022] TZHC 11069 (22 July 2022)

Key Facts

Issues

• The court evaluated if the CMA's award of 24 months' compensation (Tshs.204,229,800) and severance pay (Tshs.29,783,514) was fair and justifiable under sections 40(1)(c), 40(2), and 44(1)(d) of the Employment and Labour Relation Act, given the findings on termination fairness and procedural compliance.
• The court examined the lawfulness of termination procedures, including the disciplinary hearing's conduct (chairperson's participation, witness testimony requirements) and the appeal process (right to be heard, mitigation opportunities), against the Employment and Labour Relation Act's fair procedure requirements.
• The court assessed whether the respondent's termination was fair under section 37(2)(b)(i)(ii) and (c) of the Employment and Labour Relation Act, considering if the charges (failure to execute maintenance procedures, false information) aligned with his role as Mechanical Maintenance Superintendent at the time of the alleged offences in 2019.

Holdings

• The court confirmed that the compensation and severance pay awarded by the CMA were within the legal provisions of the Employment and Labour Relation Act.
• The court determined that the respondent's termination was both substantively and procedurally unfair due to insufficient evidence and procedural flaws.
• The court identified procedural irregularities in the appeal process, including the respondent not being afforded the right to be heard.
• The court dismissed the applicant's revision application, finding it baseless and confirming the CMA award was fair and reasonable.

Remedies

• A compensation of 24 months salaries totaling Tshs.204,229,800 awarded by the CMA for unfair termination.
• A severance pay of Tshs.29,783,514 awarded by the CMA as part of the relief for the termination.

Monetary Damages

Legal Principles

• The court found procedural violations of natural justice, including the chairperson’s absence during critical disciplinary meeting stages and the respondent’s denial of the right to be heard during the appeal process. The failure to provide sufficient evidence (e.g., minutes of planning meetings) and the absence of mitigation opportunities were key issues under this principle.
• The applicant failed to meet the evidentiary burden to prove the respondent’s misconduct. The court critiqued reliance on uncorroborated testimony (DW3) without supporting documentation (e.g., meeting minutes) and the absence of the Managing Director as a material witness. This undermined the applicant’s case for lawful termination.
• The court applied the Employment and Labour Relation Act (2004) and its associated Code of Good Practice (GN 42 of 2007) to assess the fairness of termination, procedural compliance, and the validity of the CMA award. Key provisions cited include Section 37(2) on fair termination criteria, Rule 13(1) requiring investigation for technical misconduct, and Rule 13(7) mandating mitigation. The judgment emphasized adherence to statutory and procedural requirements for lawful termination.

Precedent Name

• Tatu S. Hamis and Aisha B. Ramadhani Versus A3 Institute of Professional studies
• Michael Joseph Vs. The Republic
• Tanzania Breweries Limited V. Anthony Nyingi
• Hemed Said V. Mohamed Mbilu
• Mbaga Mkulima Vs. Republic
• Anord Adam Vs. Republic
• Mantra Tanzania Limited v Daniel Kisoka

Cited Statute

• Employment and Labour Relation Act 2004 CAP 366
• Evidence Act CAP 6 RE 2002
• Employment and Labour Relation (Code of Good Practice) G.N 42 of 2007
• Companies Act Cap 212 R.E 2019
• Labour Institution (Mediation and Arbitration Guideline) Rules 2007 G.N No.67

Judge Name

Passage Text

• Since the arbitrator gave a justifiable reason as to why he awarded the 24 months compensation, I find no reason to fault his finding.
• It is my finding that the applicant was wrong to charge him as corrective Maintenance Superintendent while by that time he was not under duty to discharge the roles and duties of the corrective Maintenance Superintendent.
• The evidence of PW1 and the missing of his signature in exhibit 10 is sufficient proof that he was not present throughout the meeting.