Charles Jackson Wanyancha vs CRDB Bank Plc (Labour Revision 16 of 2021) [2022] TZHC 13510 (19 October 2022)

Key Facts

Issues

• The court addressed whether severance pay was required under ELRA section 42. The applicant argued for 30 days' pay due to unfair termination, but the respondent countered that severance is not payable for fair terminations. The court ruled the termination was fair, rendering severance inapplicable.
• The applicant argued he faced double punishment via demotion, department change, and termination. The court rejected this, stating the change of department was a normal job rotation and the disciplinary action (termination) was the sole punishment. The court referenced CRDB's internal manual (paragraph 10.4.3) to affirm punishments are applied in alternatives.
• The court examined whether the applicant's termination on grounds of gross dishonesty was fair, focusing on the legal requirement to provide a 28-day notice under ELRA section 41(1)(b)(ii). The applicant argued the notice was not issued, while the respondent claimed one month's salary in lieu of notice was provided (Exhibit D8). The court found the termination lawful with full compliance to section 41(5) of ELRA.
• The applicant alleged the arbitrator ignored evidence, including discrepancies between the investigation report and charge sheet. The court found no evidence of circumvention, noting the arbitrator's reasoning aligned with the law (ELRA section 37(2)) and the applicant failed to prove procedural unfairness.
• The applicant claimed the CMA failed to properly address the termination issue as stated in CMA Form No.1, citing procedural breaches. The court found the CMA's handling of the issue sufficient, noting the applicant's waiver of the notice issue in pleadings (CMA F.1).

Holdings

• The court ruled that the suspension letter issued in November 2019 was lawful even though the investigation had started in October 2019. Suspension is discretionary under Rule 27(1) of GN 42/2007 and not mandatory during investigations.
• The court rejected the general claim of evidence circumvention, noting the CMA properly considered all material evidence and that the applicant failed to demonstrate procedural flaws in the arbitration process.
• The court dismissed the claim of double punishment, stating the applicant's demotion/department change was voluntary and not disciplinary. Termination was the sole punishment after disciplinary hearings, not a cumulative penalty.
• The court found that charges of 'gross dishonesty' (per charge sheet D3) and 'misappropriation of funds' (per investigation report D14) were equivalent under GN 42/2007 Rule 12(3). The CMA's use of alternative phrasing for the same offense was valid.
• The court determined that the applicant's termination was lawful due to misconduct, with proper notice payment as per section 41(5) of ELRA. The applicant admitted misappropriating client funds (TZS 8,000,000 and 3,800,000) and was paid one month's salary in lieu of notice (TZS 1,261,380.4) and leave pay (TZS 1,717,702.02).

Remedies

Legal Principles

• The court evaluated whether the termination adhered to natural justice principles. It concluded the employer followed proper procedures, including investigation, suspension, and disciplinary hearing, with no procedural flaws identified.
• The court addressed the claim of double punishment, ruling that the applicant was not subjected to double jeopardy. The applicant argued he was punished thrice (demotion, department change, termination), but the court found only termination was a valid disciplinary action, with other actions being job rotation or voluntary admissions.
• The employer was required to prove the termination was lawful. The court found the respondent met this burden by demonstrating misconduct (misappropriation of funds) and adherence to procedural fairness under the Employment and Labour Relations Act.

Precedent Name

• Knight support (T) Ltd vs Bwiko Nyamasyesei
• Charles Christopher Humphrey Richard Kombe t/a Humphrey Building Materials vs Kinondoni Municipal Council
• De Beers Consolidated Mines Ltd v CCMA and Others
• Sosthenes Bunono and Dianarose Bruno vs Frola Shauri
• Twinogone Mwambele vs Republic
• Tanzania Revenue Authority v Andrew Mapunda
• Chai Bora Ltd vs Allan Telly Mtukula

Cited Statute

• Government Notice No. 42 of 2007 (Code of Good Conduct)
• Employment and Labour Relations Act
• International Labour Organization Convention No. 158 of 1982
• Labour Relations General Notice No. 106 of 2007

Judge Name

Passage Text

• The onus is on the employer to prove the fact upon which it relies for the dismissal... if the employer does prove the fact upon which it relies, then the arbitrator must make a determination as to whether or not the dismissal is unfair and only if the arbitrator is so satisfied may he or she order a remedy.
• In essence, through exhibits D.11, D.12 and D13, the testimony of DW3, it is evidently clear that the applicant to this revision application withdrew/withheld money from client's account number 01J2050742800 (Exhibit D12 and Exhibit D13) amounting TZS: 8,000,000 and 3,800,000/= without any justifiable reasons. There was written explanation by the applicant as requested by the Bank in which the applicant admitted to have transacted with the said client's bank accounts (Exhibit D13).
• I agree with Ms Marina, that the applicant's termination was lawful... there was full compliance as per law (as per section 41 (5) of ELRA)... through exhibit D8 an amount of money TZS: 1,261,380.4 was paid to the applicant as one-month basic salary in lieu of notice and leave pay...