IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION
AT DAR ES SALAAM

REVISION APPLICATION NO. 401 OF 2022

(Arising from an award issued on 21/10/2022 by Hon. Abdallah, M, Arbitrator in Labour dispute No.
CMA/DSM/ ILA/248/2021/82/21 at Ilala)

M-PESA LIMITED ………………..…..…….…………………………………. APPLICANT

VERSUS

LOUIS EPIPHANE MARO ……..…..……….…………………………….. RESPONDENT

JUDGMENT

Date of last Order: 15/2/2023

Date of Judgment: 21/3/2023

B. E. K. Mganga, J.
Facts of this application briefly are that, on 1st September 2011,

Vodacom Tanzania Limited now Vodacom Tanzania Plc, employed Louis

Epiphane Maro, the respondent for unspecified period contract as a KAM;

Electronic Recharge & Registration. On 26th June 2019, respondent’s

employment was transferred from Vodacom Tanzania plc to M-PESA

Limited, the applicant. On 11th November 2020, respondent was suspended

from work for unspecified period allegedly, due to breach of company

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Code. On 30th November 2020, respondent was served with the notice of

inquiry containing two counts namely, (i) disclosure of confidential

information to a third party i.e., Bill Trade and (ii) misuse of resources such

as handsets which were supposed to be equally distributed to other

partners. It is undisputed by the parties that investigation was conducted

and thereafter respondent was served with additional notice of inquiry. In

the additional notice of inquiry, three counts were added. In the said

additional notice of inquiry, the three counts that were added are that (i)

on 21st October 2020, the line manager of the respondent approved MPS

with the aim to acquire DSTV account but after the said approval, on 3rd

November 2020, respondent altered the document to include Bill Trade

name, (ii) that respondent was absent from work station and travelled

outside the work station without applying for work leave or permission

from line manager and (iii) that, there was relationship between the

respondent and Bill Trade, which stands in the way of company’s business

put the respondent at a conflicting position with the company’s interest

hence conflict of interest.

On 27th and 28th April 2021, the disciplinary hearing was conducted.

The disciplinary hearing committee found the respondent guilty of breach

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of confidentiality and absence from work for more than five days without

permission and recommended termination of employment of the

respondent. On 9th June 2021, applicant terminated employment of the

respondent.

Aggrieved with termination, on 8th July 2021, respondent filed labour

dispute No. CMA/DSM/ ILA/248/2021/82/21 before the Commission for

Mediation and Arbitration henceforth CMA at Ilala for unfair termination. In

the Referral Form (CMA F1), respondent indicated that he was claiming to

be paid (i) TZS 670,902,570 being 120 months' salaries from the date of

termination to the date of reinstatement and (ii) TZS 2,000,000/= being

leave pay. On validity of reason, respondent indicated in the said CMA F1

that, there was no valid reason for termination. On fairness of procedure,

he indicated that (i) he was suspended for five(5) months' from 11 th

November 2020 pending investigation, (ii) the notice of inquiry of 23rd

November 2020 was from Vodacom Tanzania Plc which is not his employer,

(iii) no investigation report was served to him, (iv) Notice of hearing was

from Vodacom (T) Plc, (v) he was denied access to information for defence

hence denial of right to be heard, (vi) the disciplinary hearing was not

3
impartial and was improperly constituted and (vii) the termination letter

does not mention the misconduct that led to termination.

On 21st October 2021, Hon. Abdallah, M, Arbitrator, having heard

evidence and submissions from the parties issued an award that

termination was unfair both substantively and procedurally. The arbitrator

therefore awarded respondent to be paid TZS 201,270,771/= being 36

months' salary compensation and TZS 13,547,071.125 being severance pay

all amounting to TZS 214,817,842.125.

Aggrieved with the award, applicant filed this application for revision.

In the affidavit of Joseph Tungaraza, applicant’s senior Legal Specialist, in

support of the Notice of Application, raised four issues to be determined by

the court namely: -

1) Whether arbitrator was justified to find that there was no valid reason for
termination.
2) Whether procedure for termination were adhered to.
3) Whether arbitrator was justified to award 36 months salaries
4) Whether severance pay was legally awarded.

In resisting the application, respondent filed both the Notice of

Opposition and the counter affidavit.

When the application was called on for hearing, applicant was

represented by Ms. Miriam Bachuba and Ms. Fatuma Mgunya, learned

4
Advocates while respondent was represented by Mr. Juventus Katikiro,

learned Advocate.

In support of the application, Ms. Bachuba submitted that,

respondent was terminated for (1) absence from work for more than 5

working days and (2) breach of confidentiality. She submitted further that;

respondent was absent from work for a total of 52 working days at

different dates. She went on that, the arbitrator held that applicant did not

act in time until investigation was conducted a sign showing that reason

was not valid. She strongly submitted that respondent was absent for five

days consecutively as testified by Alice Robert Luwis(DW1) and Kiligan

Muya Kamota(DW2) but respondent alleged that he was working from

home. She submitted further that, when working from home, respondent

was supposed to log in at the time alleged that he was working from

home. She went on that, the VPN (exhibit D20) shows that respondent was

not working from home because he did not log in. She added that, exhibit

D19 which is an email, shows that employees were supposed to log in for

them to work from home but respondent did not.

Counsel for the applicant submitted that, Section 61 and 63 of the

Evidence Act [Cap. 6 R.E. 2019] provides that evidence can be oral or

5
documentary. She submitted further that, evidence of DW1 and DW2 and

exhibits D20 and D19 proved how employees were supposed to work from

home. Counsel for the applicant submitted that, both DW1 and DW2 were

not discredited under cross examination because they were not cross

examined hence their evidence were accepted by the respondent. To

support her submissions, counsel for the applicant cited the case of Paul

Yustus Nchia v. National Executive Secretary Chama Cha

Mapinduzi & Another, Civil Appeal No. 85 of 2005 CAT (unreported) and

Bomu Mohamedi v. Hamisi Amiri, Civil Appeal No. 99 of 2018 CAT

(unreported) and concluded that the arbitrator erred to hold that there was

no valid reason for termination.

Ms. Bachuba submitted that the Arbitrator also held that applicant

discovered that respondent was absent after investigation. She argued that

the fact that the employer did not discover the misconduct at early stage,

does not exonerate the employee because the employer is only required to

prove that the misconduct was committed. She went on that, there is no

time frame within which employer can take disciplinary action against the

employee. But, in her submissions, upon being probed by the court as to

whether, the employer can wait even for three years, she conceded that it

6
will depend on circumstances of each case. She strongly submitted that

exhibit D22 proved that respondent was not only absent from work but he

was also out of his duty station. She added that, that evidence was not

disapproved. Further to that, Ms. Bachuba submitted that, in the

disciplinary hearing, respondent admitted that he was out of station but

was authorized as shown in exhibit D12. She strongly submitted that, in his

evidence, DW2 testified that respondent was never authorized to be out of

station.

It was submissions by Ms. Bachuba, learned counsel for the applicant

that Arbitrator based his decision on leave benefit policy (exhibit D21) not

to hold that respondent was not absent from work for five days because

the said exhibit was issued by Vodacom (T) PLC and not M-PESA Limited.

In her submissions, counsel for the applicant conceded that respondent

was employed by M-PESA Limited and not Vodacom (T) PLC. She was,

however, quick to submit that according to evidence of both DW1 and

DW2, the two are sister companies and share the policy that was binding

the respondent. She added that, in his evidence, while under cross

examination, respondent(PW1) admitted that he was bound by that policy.

7
 On the 2nd reason for termination namely, breach of confidentiality

Ms. Bachuba submitted that respondent shared confidential information

namely email (exhibit D25) with Bill Trade Co. She submitted further that,

some of that information was church conversation from direct to indirect

acquisition. She also submitted that, one of the witnesses who participated

in the meeting in which the said confidential information was discussed by

the applicant is DW2. She submitted further that, both DW1 and DW2

explained as to what is meant by confidential information and that they

tendered Vodacom Code of Conduct (Exhibit D18) which defines what

constitutes confidential information. She strongly submitted that, by

forwarding internal email to Bill Trade, respondent breached confidentiality.

She added that, the shared informed is shown in investigation report

(exhibit D25) under Item 1.3.1 and 3.3 and findings No. 5(1)(c), (d) and

(f). Counsel added that, during disciplinary hearing, respondent admitted

having shared the said information.

Ms. Bachuba learned counsel for the applicant criticized the arbitrator

in holding that applicant did not prove loss caused by the respondent in

sharing the said information. She submitted that, in his evidence, DW2

testified that there was potential loss. Counsel for the applicant further

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submitted that, Rule 9 of the Employment and Labour Relations (Code of

Good Practice) Rules, GN. No. 42 of 2007 only requires the employer to

prove reason for termination and that it is not necessary to prove loss. She

added that, whether loss occurred or not, it is immaterial. She cited Rule

12 of GN. No. 42 of 2007(supra) and submit that seriousness of the

offence/misconduct is based on the nature of the misconduct and not the

loss occasioned. She further cited the case of Rapoo v. Metropolitan

Botswana (PTY) Ltd, 2006(1) BLR 186 (IC) and Nassoro Khatau

Yahya V. Toyota Tanzania Ltd, Revision No. 192 of 2016 HC,

(unreported) to support her submissions that disclosure of confidential

information to the outsider amount to breach of trust and warrant

termination.

Ms. Bachuba further criticized the Arbitrator by holding that the

misconduct was not proved because witnesses to whom the information

was shared or disclosed to, were not called to testify. It was her

submissions that, there was no need to call those witnesses because

evidence adduced proved the misconduct. She cited Rule 9(3) of GN.No. 42

of 2007(supra) and submit that the said Rule only requires the employer

to prove at balance of probability and not beyond reasonable doubt. She

9
added that, the requirement to call witnesses to whom the information was

shared had the effect of changing the standard of proof from balance of

probabilities to beyond reasonable doubt. She cited the case of Paulina

Samson Ndawavya v. Theresia Thomasi Madaha, Civil Appeal No. 45

of 2017, CAT (unreported) to support her submissions that balance of

probability means evidence that is more credible than the other.

Counsel for the applicant criticized the findings of the Arbitrator that

the policy used was from Vodacom. She submitted that, after transfer from

Vodacom to the applicant, terms of employment remained the same as

testified by DW1 and DW2 and as shown in exhibit D3.

On procedural fairness, counsel for the applicant criticized the

findings of the arbitrator that termination was unfair because only part of

the investigation report was served to the respondent. She submitted that,

respondent was served only with the relevant part of the investigation

report as was testified by both DW1 and DW2 just to enable him to

prepare for his defence and that no injustice was occasioned. She argued

that, unfortunately, the arbitrator did not look it to that point. She

submitted further that, DW1 and DW2 testified that respondent was served

with only the relevant part and no injustice was occasioned. She cited the

10
case of Paschal Bandiho v. Arusha Urban Water Supply & Sewerage

Authority (AUWSA), Civil Appeal No. 4 of 2020, CAT (unreported) to

support her submissions that investigation prior to hearing is a valuable

and the central point for the employee to be afforded right to be heard

prior dismissal. She strongly submitted that the part of the investigation

report that was served to the respondent was enough to enable him to

defend against the accusations levelled against him.

Ms. Bachuba submitted that, respondent was also served with a show

cause notices (exhibits D27 and D26) and was heard in the disciplinary

hearing. She criticized the findings of the Arbitrator that respondent did not

have faith with two(2) members of the disciplinary hearing. She argued

that the same was not raised in the disciplinary minutes that he had no

faith with the two members. She submitted further that, in his evidence,

respondent(PW1) testified that he had no faith with two members because

there were allegations against them as they employed a person

subordinate to him. She further submitted that; respondent had a duty to

prove those allegations against the two members but he failed. In short,

she submitted that respondent did not prove biasness by the two

members.

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 On the 36 months salaries relief awarded to the respondent, Ms.

Bachuba, submitted that 44 years age of the respondent used by the

arbitrator and difficulty in securing another employment is not supported

by evidence. She argued that Arbitrator was supposed to grant relief based

on evidence on record. She cited the case of International Medical &

Technological University v. Eliwangu Ngowi, Revision No. 54 of 2008

to support her submissions that the only figure that is certain is 12 months'

and that in awarding any other figures/months', there must be justification

through evidence. She submitted further that; the arbitrator used post

termination effect which cannot be considered in awarding compensation.

She added that, the statement by the arbitrator was speculations without

proof.

On the award of severance pay, Counsel for the applicant submitted

that, in terms of Section 42(3) of the Employment and Labour Relations

Act[Cap. 366 R.E. 2019], severance pay is not awardable if termination is

based on misconduct. She therefore prayed that the application be

allowed.

Resisting the application, Mr. Katikiro, learned counsel for the

respondent submitted generally that DW2 admitted during hearing at CMA

12
that respondent objected at the disciplinary hearing committee as he did

not have confidence with some of the members. He concluded that the

disciplinary hearing committee was not impartial.

On breach of confidentiality and absence from work as reason for

termination, counsel for the respondent submitted that, these were not

valid reasons. He submitted further that; these misconducts were raised

after investigation report. He added that, these misconducts are not in the

investigation report that was availed to the respondent. He cited the case

of Ovadius Mwangamila & 2 Others v. Tanzania Cigarette Co. Ltd,

Consolidated Revision No. 334 & 335 of 2020, HC (unreported) to support

his submissions that failure to serve the investigation report denies the

employee right to prepare defence. He went on that; respondent was

served with part of the report and not the whole report. He further

submitted that, in his evidence, respondent(PW1) testified that the part of

the report that was served to him was not relevant and did not help him to

make his defence. Counsel for the respondent submitted further that, in

Bandiho’s case (supra), it was held that investigation report should be

served to the employee to enable him to prepare his defence and added

that, the Court did not state that part of the report must be served.

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 Counsel for the respondent submitted that there was no evidence

tendered showing that respondent attended a meeting in which the alleged

confidential information was shared. He submitted further that, DW2

testified under cross examination that the full investigation report was not

shared to the respondent.

Counsel for the respondent submitted that, in his evidence,

respondent(PW1) testified that he was not absent from work for

consecutive five days and that he has never been out of station. He added

that, VPN was part of the investigation report that was not availed to the

respondent to prepare for his defence.

On compensation of 36 months', counsel for the respondent

submitted that, based on evidence on record, the arbitrator was justified to

award the said 36-month months' salaries. He submitted further that,

respondent worked for 14 years with the applicant without record of

misconduct and was 44 years hence unable to be re-employed by any

other employer.

On severance pay, counsel for the respondent cited Rule 26(1) of

GN. No. 42 of 2007(supra) and submitted that, the same was correctly

awarded after the arbitrator has found that termination was unfair both
14
substantively and procedurally. He therefore prayed that the application be

dismissed for want of merit.

In rejoinder, Ms. Bachuba, learned counsel for the applicant

reiterated her submissions that severance was not properly awarded. She

further submitted that, Rule 26(1) of GN. No. 42 of 2007(supra) provides

only how severance pay should be calculated but does not provide

circumstances in which it should be paid. She further submitted that; no

evidence was adduced to justify the award of 36 months compensation.

On failure to serve the respondent with the full investigation report,

counsel for the applicant submitted that, that does not invalidate reason

for termination. She submitted further that; VPN was not part of

investigation report. She added that, whether there was a meeting or not,

that is not the issue, because the allegation was that respondent forwarded

confidential information to third party. She went on that; respondent did

not testify that the part of the investigation report that was availed to him

was not relevant. She maintained that respondent defended himself to the

charges and was fully heard. On impartiality, Ms. Bachuba, submitted that

there is no evidence showing that DW2 admitted that respondent raised

the issue of impartiality during hearing.

15
 I have carefully examined evidence of the parties in the CMA record

and considered respective submissions made on behalf of the parties in

this application. The main issues in my view, are whether, termination was

fair or not; and to what reliefs are the parties entitled to.

It is undisputed facts that, initially respondent was employed by

Vodacom Tanzania Limited now Vodacom Tanzania Plc but on 26th June

2019, respondent’s employment was transferred from Vodacom Tanzania

plc to M-PESA Limited, the herein applicant. It is also undisputed that, on

11th November 2020, respondent was suspended from work for unspecified

period allegedly, due to breach of company Code. It is also undisputed that

on 30th November 2020, respondent was served with the second notice of

inquiry and that on 27th and 28th April 2021 disciplinary hearing was

conducted and respondent was found guilty leading to termination of his

employment. It is further undisputed that, in the CMA F1, respondent

indicated that disciplinary proceedings were initiated by Vodacom Plc who

is not the employer. It was submitted by counsel for the applicant that

Vodacom Plc is a sister company to the applicant and that, the two shares

the Code of Conduct and Policy and that, there was valid reason for

termination. It is also undisputed that respondent was found guilty for

16
breach of confidentiality contrary to Vodafone‘s Code of Conduct and

absence from work for more than five days without permission.

I have examined evidence of Alice Robert Luwis (DW1) and find that

while testifying in chief, she stated inter-alia that, respondent was

terminated for sharing sensitive information to 3rd party that may cause

loss or damage contrary to Vodacom Code of Conduct (exhibit D18) and

for absenteeism during COVID 19 Pandemic though they agreed to work

from home according to exhibit D19. I should point out that, exhibit D18 is

Vodacom Tanzania PLC Disciplinary Policy and the Code of Conduct

of Vodafone and exhibit D19 is a directive issued by Hisham to all all

employees of Vodacom Tanzania on how they can work from home

during COVID 19 pandemic.

When under cross examination, DW1 testified that, the Notice of

inquiry dated 23rd November 2020 was issued by Vodacom and that the

Notice to appear for a disciplinary hearing (exhibit D6) referred to Vodacom

Notice and that permission to investigate the respondent (exhibit D5) was

issued by Vodacom. I should point that, exhibit D5 dated 14th January 2021

shows clearly that Vodacom Corporate Security Forensic Service sought

permission from Kilian Kamota(DW2), Epimack Mbeteni, Luis Kanijo and

17
Agapinus Tax to investigate the respondent for (i) abscondment, (ii)

alteration of an approved content in the document, (iii) favouring Bills

Trade Limited and causing the business to incur cost, (iv) sharing of

unauthorized insider information, (v) non-disclosure of potential conflict of

interest and (vi) irrational conversion of direct acquisition into indirect

acquisition that led to unnecessary increased commission costs to

Vodacom. I should also point out that the permission was granted.

In her evidence under cross examination, DW1 also testified that,

respondent was accountable to the applicant. That, respondent was served

with part of the investigation report especially the one that could have

helped him to defend but she did not recall the parts of the investigation

report that was served to the respondent. She admitted that, in the

termination letter, there were no alleged misconducts. She testified further

that, the CDR report (exhibit D22) came from investigators and suspected

that investigators retrieved it from the company system and that, she

cannot explain in detail but only experts who printed it can. She testified

further that; she cannot testify on the VPN report(exhibit D20) because

that can only be done by experts who printed it. DW1 was recorded in her

own words stating that:-

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 “CDR Report imetoka katika team ya investigator ambayo anahisi
itakuwa wamepata katika system ya company. Siwezi kuelezea kwa undani
kielelezo D22 wanaweza wataalam walio print…Siwezi kuelezea kwa undani
kielezo D20 mpaka mtaalam mtu aliye print.”

I should point albeit briefly that exhibits D19 and D20 were tendered

by DW1 who in her evidence was unable to explain its contents because

she did not participate in the process of obtaining those exhibits. In other

words, competence of DW1 to tender those exhibits were questionable. I

should also point out that those exhibits were admitted without objection.

In my view, admission is one thing and weight to be attached to the exhibit

a different.

While under cross examination, DW1 testified further that, exhibit

D19 was issued by Director of Vodacom to Vodacom employees. While

under re-examination, DW1 testified that Vodacom policy applied to the

respondent because M-PESA is subsidiary to Vodacom and the two stay in

the same building. She testified further that; respondent was bound by

Vodacom Policy because initially he was Vodacom employee.

On his part, Kiligan Muya Kamota(DW2) testified in chief that,

employees of Vodacom based in Dar es Salaam works from 08:00 to 15:00

from Monday to Friday and that CDR report (exhibit D22) shows that

19
respondent was not in Dar es Salaam. He testified further that,

email(exhibit D27) shows that respondent was not at his duty station for

52 days working and 75 days in total. In his evidence, DW2 mentioned the

dates respondent was not in Dar es Salaam and mentioned the respective

towns or City in which respondent was.

While under cross examination, DW2 testified that investigation

report was done by Vodacom and that he was not sure whether, M-PESA

Limited, the herein applicant conducted investigation. He testified further

that, the notice of inquiry (exhibit D23) that was served to the respondent

on 23rd November 2020 bears the address of Vodacom and that the notice

of inquiry is based on the Code of Conduct of Vodacom. He testified further

that, an employer in a different company cannot take disciplinary action

against an employee in a different company. He also testified that, he was

not sure whether, Vodacom had disciplinary power over the respondent or

not and that, he cannot talk in detail about that. He testified further that,

Vodacom conducted investigation for three months and that he didn’t

know if the report was served to the respondent. He admitted that the said

investigation report was prepared by Corporate Security Personnel

20
Vodacom who are the competent to explain the findings thereof because

he did not participate in preparation of the said report.

On the other hand, Louis Epiphane Maro(PW1) testified inter-alia

that, he was transferred from Vodacom to M-PESA as per exhibit D3 and

that, on 11th November 2020 he was suspended by Vodacom for

undisclosed reasons. He testified further that; the show cause (exhibit

(D23) was from Vodacom alleging that he violated Vodacom Policy. He

added that, he was not employee of Vodacom and that, on 2nd December

2020, he replied (exhibit D24) that he was not Vodacom employee hence

the charge was invalid. He testified further that, on 25th March 2021, he

was served with the charge(exhibit D26A). He added that he was not

served with the investigation report. He testified further that, during the

Disciplinary hearing, he prayed one Alice, the Human Resources Officer and

DW2 to recuse but they didn’t and that, he was not afforded right to

representation. PW1 testified further that, during COVID 19 Pandemic, he

was working from home and that there was no complaint from the

applicant that he performed poorly.

21
 While under cross examination, respondent(PW1) testified that the 1st

inquiry is from Vodacom because the address is clear and that the charges

shows that he violated Vodacom Policy.

It is my considered view that, from evidence adduced by the parties,

termination of the respondent was unfair. I am of that view because, upon

transfer of employment of the respondent from Vodacom to the applicant,

Vodacom ceased to exercise power over the respondent. I am of that view

because, employment relationship between the two ended after transfer.

In my view, all documents relating to Vodacom ceased to regulate the

conduct of respondent. In fact, the transfer of Employment Contract to M-

PESA Limited (exhibit D3) that was tendered by the applicant is loud to

that position. The said transfer of Employment Contract to M-PESA Limited

reads in part:-

“RE: transfer of Employment Contract to M-Pesa Limited.

As discussed, Vodacom intends to separate its operations of M-Pesa as part of

structural re-organization. This will involve the transfer of M-Pesa business and
resources to M-PESA Limited. As part of business and resources transfer and
since you are providing services to M-Pesa operations it was agreed that
Vodacom transfers its rights, obligations and liabilities under the
Contract to M-Pesa Limited on the terms set out below.

Upon execution of this letter(Effective date)therefore:

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 1. Vodacom’s rights and obligation under the contract will be
transferred to M-Pesa Limited under the same terms and
obligations.

2. M-PESA Limited will perform the contract and be bound by its

terms in every way as if it were the original party to it in
place of Vodacom.

3. You will perform the contract and be bound by its terms in

every way as if M-PESA were(sic) the original party to it in
place of Vodacom.

In addition, also with effect from the effective date:

1. Each of us releases and discharges the other from all

claims and demands under or in connection with the contract,
whether arising before, on, or after the effective date, and in
each case whether known or unknown to the releasing party.

2. You and M-PESA Limited will have the right to enforce the
contract and pursue any claims and demands under it against
the other with respect to matters arising before, on , or after
the Effective date, as if M-PESA Limited were(sic) the original
party to the contract instead of us.

3. The contract will, in all other respects continue on its existing terms.

4. From the Effective date, you should deal solely with M-PESA
Limited in respect of the contract.

…”

As pointed hereinabove, upon the respondent and Vodacom signing

transfer of Employment Contract to M-PESA Limited (exhibit D3) and upon

23
the applicant accepting the respondent on the terms and conditions stated

in exhibit D3 as quoted hereinabove, employment relationship between

Vodacom and respondent came to an end and new employment

relationship between applicant and respondent was established. From there

on ward, respondent became employee of the applicant and Vodacom

ceased to have power whatsoever, over the respondent because; in terms

of section 61 of the Labour Institutions Act[Cap. 300 R.E. 2019],

respondent was under control of the applicant and not Vodacom. The mere

fact that M-PESA Limited, the herein applicant is a sister company of

Vodacom, that alone did not cloth power to Vodacom to exercise powers

over the respondent. I am of that view because applicant is a legal entity

separate from Vodacom.

I have examined the suspension letter dated 11th November

2020(exhibit D4) that was tendered by DW1 and find that it bears the

address of Vodacom Tanzania Public Limited Company and not the

applicant. As I have pointed above, Vodacom had no power to suspend the

respondent because respondent was not her employee. I have further

noted that, in the said letter, it was just stated that respondent breached

the Company Code but the nature of breach was not disclosed. It is my

24
view that exhibit D4 was issued in violation of Guideline 5(3) issued under

the Employment and Labour Relations(Code of Good Practice) Rules, GN.

No. 42 of 2007 that requires a suspension letter to disclose reason for

suspension.

Further to the foregoing, the Notice of Inquiry (exhibit D23) dated

23rd November 2020, was also issued by Vodacom and not the applicant.

Exhibit D23 referred respondent as employee of Vodacom and not M-PESA

Limited, the applicant. It is my view that, it was not correct for exhibit D23

to refer the respondent as an employee of Vodacom while exhibit D3

explicitly stated that, upon transfer, respondent became employee of the

applicant and Vodacom ceased to have any right or obligation over the

respondent.

It is undisputed by the parties that, the investigation report that led

to termination of the respondent was conducted by Vodacom Corporate

Security Forensic Services as evidenced by exhibit D5 as it was also

testified by both DW1 and DW2 the only witnesses of the applicant. The

investigation report itself(exhibit D25) shows that it was conducted by

Vodacom Tanzania PLC. There is no evidence proving that applicant

outsourced Vodacom Tanzania PLC to conduct investigation on her behalf.

25
The Notices to appear to the Disciplinary hearing(exhibits D6 and D9) and

the Disciplinary hearing reports(exhibits D12.1, D12, D13) shows that

respondent was charged and found guilty for breach of confidentiality in

violation of Vodafone’s Code of Conduct. Again, Vodafone was not the

employer of the respondent, as such, it cannot be said that respondent

was bound by the said Code of Conduct hence respondent cannot be

terminated for breach of the said Code. For the foregoing, I uphold the

CMA award that the count relating to disclosure of confidential information

was not proved.

In the disciplinary hearing, respondent was also found guilty for the

count of absenteeism from duty station for more than five days without

permission. It is my considered opinion that, the said count was also not

proved. Reasons for this conclusion is not far. One; evidence that led

respondent to be found guilty for absenteeism is the investigation

report(exhibit D25), CDR report(exhibit D22), VPN report(exhibit D20) and

emails (exhibit D27) as it was testified by both DW1 and DW2. Both DW1

and DW2 testified that the investigation report, CDR report and VPN report

were prepared by Vodacom Corporate Security Forensic Services and that,

there is no evidence proving that applicant commissioned them to do so on

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her behalf. None of applicant’s witness associated himself or herself with

exhibit D27. More so, both DW1 and DW2 testified that they were not

competent persons to clarify matters contained therein because they did

not participate in preparation of those reports. In short, both DW1 and

DW2 disassociated themselves with those reports. Evidence is clear that,

makers of those reports and the emails did not testify at CMA and that

both DW1 and DW2 were ignorance of the contents therein. Their evidence

in relation to those exhibits were hearsay. It is my view that, the mere fact

that those exhibits were admitted without objection is not a guarantee for

the court not to scrutinize them as to whether they were tendered by

competent witnesses. None of the witnesses between DW1 and DW2

claimed to be competent to tender those exhibits because no foundation

was laid prior tendering those exhibits.

Two; the investigation report (exhibit D25), the CDR report (exhibit

D22), VPN report(exhibit D20) and emails (exhibit D27) were prepared by

persons who did not testify. In his evidence, DW2 admitted that he was

incompetent or ignorance of the matters stated therein. I therefore draw

adverse inference against the applicant for her failure to call makers of

those exhibits. It was open to the applicant to call makers of those exhibits

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to explain contents therein rather than allowing both DW1 and DW2 just

to rump them in the CMA record. It is my further view that, those exhibits

were prepared just to make rid of the respondent. In reaching that

conclusion, I have considered inter-alia the time when those exhibits were

prepared. It is on record that, investigation was conducted after

respondent was served with the Notice of inquiry (exhibit D23) dated 23rd

November 2020 and after respondent has served applicant with his

response to the Notice of inquiry(exhibit D24) dated 2 nd December 2020 as

clearly shown by the “permission to investigate” (exhibit D5) dated 14th

January 2021. Therefore, all other exhibits including but not limited to D5,

D20, D22, D25 and D27 to mention but a few, were prepared as an

afterthought just to make sure that respondent’s employment is

terminated. I therefore, uphold the CMA award that applicant failed to

prove that respondent absconded from work for more than five days

without permission.

For the foregoing, I hold that there was no valid reason for

termination of employment of the respondent.

On procedural fairness, it was testified by both DW1 and DW2 that

respondent was not served with the full investigation report. The argument

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that respondent was served with only the relevant part that would have

helped him to prepare for his defence cannot be said complied with the

law. The Court of Appeal had an advantage of discussing a similar issue in

the case of Severo Mutegeki & Another vs Mamlaka Ya Maji Safi Na

Usafi Wa Mazingira Mjini Dodoma (Civil Appeal 343 of 2019) [2020]

TZCA 310 wherein it held that an employee is entitled to be served with

the full report to enable him to prepare for his defence and that failure to

serve a full investigation report amounts to denial of right to be heard. I

therefore hold that respondent was denied right to be heard.

Evidence in the CMA record is clear that respondent prayed to be

supplied with his computer but the same was not done and in the last

instance, it was done on the date of hearing namely 28th April 2021 that

was not sufficient to prepare for his defence. It was testified by both DW1

and DW2 that respondent was served with the part of the relevant

investigation report to enable him to defence. The two witnesses however,

failed to explain the part of the report that respondent was served with. It

is unknown whether, respondent was served with the CDR report(exhibit

D22) or VPN report(exhibit D20) that were crucial in proving the

misconduct of absenteeism or not. I therefore hold as it was held by the

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Court of Appeal in the case of Kiboberry Limited vs John Van Der

Voort (Civil Appeal 248 of 2021) [2022] TZCA 620 that failure to serve the

respondent with the investigation report amounted to unfair termination

procedurally.

It was submitted by counsel for the applicant that, VPN was not part

of investigation report. With due respect, that submission cannot be valid.

From evidence of the applicant, it was clear that during COVID 19

Pandemic, employees were working from home. According to the evidence

of the applicant, it was discovered through VPN that respondent did not log

in during working hours or sometimes did log in for few minutes only.

Based on that, applicant formed opinion that respondent was not working.

From evidence of the applicant, VPN report was important to prove

absence of the respondent from duty, which is why, it was tendered.

Therefore, failure to serve respondent with that report was unfair

procedurally.

It was submitted by counsel for the applicant that, respondent did

not testify that the part of the investigation report that was availed to him

was not relevant. With due respect to counsel for the applicant, there is

enough evidence to support that complaint. I have read an email dated 1st

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April 2021 (exhibit D27) written by the respondent to DW2 and others and

find that respondent raised that concern. In the said email, respondent

stated inter-alia:-

“Dear Kilian Kamota… it’s(sic) important that I respondent with a truth

and fats which shall have the sufficient supporting evidence of any inquiry
allegation toward me. However; (sic)I have noted that you insist that I should
respond without seeing the documents you made reference to in the notice of
inquiry, which is difficult for me because I do not recall the contents of
documents you have referred to hence I do not want to write a guess or
respond with incorrect information…”

I should point that, exhibit D27 was tendered by the applicant hence

it is her evidence. That evidence supports the complaint by the respondent

on denial of documents that could have helped him to prepare for his

defence. For all what I have discussed herein above, I hold that

termination was also unfair procedurally.

It was submitted on behalf of the applicant that there was no

justification for the respondent to be awarded 36 months' compensation

instead of 12 months. I should point out that the 12 months' provided for

under section 40(1)(c) of the Employment and Labour Relations Act[Cap.

366 R.E. 2019 ] is the minimum and not the maximum. In awarding

compensation, arbitrator is required to consider the provisions of Rule 32

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of Labour Institutions (Mediation and Arbitration Guidelines)Rules, GN. No.

67 of 2007. The said Rules requires the arbitrator to consider inter-alia the

extent to which termination was unfair. I have held hereinabove that

termination was unfair both substantively and procedurally hence

justification for the arbitrator to award beyond the minimum of 12 months

provided under section 40(1)(c) of Cap. 366 R.E. 2019 (supra). It is my

view that, the extent of unfairness in this application was high hence a

need to carefully consider the amount respondent is entitled to. In the case

of Veneranda Maro & Another vs Arusha International Conference

Center (Civil Appeal 322 of 2020) [2022] TZCA 37 the Court of Appeal

noted that there is no clear guide on what constitutes an equitable and just

compensation due to absence of the maximum amount that can be

awarded to an employee. But, after considering the provision of Rule 32 of

GN. No. 67 of 2007(supra), the Court of Appeal confirmed the amount that

was awarded beyond the 12 months salaries compensation to the

appellant. Guided by the decision of the Court of Appeal in Maro’s case

(supra), I find that the 36 months salaries compensation was fairly

awarded to the respondent considering the circumstances of the

application.

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 It was submitted by counsel for the applicant that respondent was

not entitled to be paid severance because termination was due to

misconduct. This complaint cannot detain me. I have held hereinabove that

applicant failed to prove reasons for termination. Therefore, there is no

misconduct that was committed by the respondent for him not to be

entitled to be paid severance. I therefore hold that severance pay was

properly awarded.

For all said hereinabove, I hereby uphold the CMA award and dismiss

this application for want of merit.

Dated in Dar es Salaam on this 21st March 2023.

B. E. K. Mganga
JUDGE

Judgment delivered on this 21st March 2023 in chambers in the

presence of Ms. Miriam Bachuba and Ms. Fatuma Mgunya, Advocates, for

the Applicant and Juventus Katikiro, Advocate for the Respondent.

B. E. K. Mganga
JUDGE

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