THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA

MBEYA SUB – REGISTRY

AT MBEYA

LABOUR REVISION NO. 15 OF 2023

CASE REFERENCE NO. 20231017000534178

(Arising from the award Labour Dispute No. CMA/MBY/mby/62/2022)

COCA COLA KWANZA LIMITED ...................................................APPLICANT

VERSUS

HENRY MBALLA .......................................................................RESPONDENT

JUDGMENT

Date of hearing: 24/4/2024

Date of ruling: 16/7/2024

NONGWA, J.

The respondent, Henry Mballa succeeded in his unfair termination

claim registered as Labour Dispute No. CMA/MBY/mby/62/2022 in the

Commission for Mediation and Arbitration at Mbeya “the CMA” against the

applicant, Coca Cola Kwanza Limited, his former employer. Aggrieved by

the said outcome, the applicant has preferred this application for revision

to set aside the arbitral award. The application is made under section

91(1)(a)(b)(2)(b)(c) and 94(1)(b)(i) of the Employment and Labour

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Relation Act [Cap.366 R:E 2019] “the ELRA”, Rule

24(1)(2)(a)(b)(c)(d)(e)(f), 24(3)(a)(b)(c)(d) and rule 28(1)(c)(d) (e) of

the Labour Court Rules G.N. No. 106 of 2007, it is supported by the

affidavit of Ludwing Shayo, Human Resource Manager of the applicant.

The application is opposed by the respondent who filed notice of

opposition and counter affidavit.

Briefly, the respondent was employed by the applicant in 2006 at

the position of distribution driver in logistic department. Further the

applicant entered into Collective Bargaining Agreement of the

respondent’s trade union, Tanzania Union of Industrial and Commercial

Workers (TUICO) for, amongst others, age of voluntary and compulsory

retirement of the employees and payment of gratuity. In December 2021

during the company’s logistic department cost review, it transpired that

in November, drivers were over declaring distance travelled. This raised a

concern, the respondent formally charged and disciplinary hearing

conducted which eventually led to termination of his employment on 24th

December 2021.

Aggrieved, the respondent referred the claim of compensation for

unfair termination and other reliefs to the CMA. At the end, the CMA found

termination was both substantively and procedurally unfair. Consequently,

awarded the respondent compensation of twelve months, severance

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payment, repatriation costs, substance allowance and gratuity based on

collective bargaining agreement to the total amount of Tshs.

88,925,062/=. The award aggrieved the applicant who filed the present

application for revision on the following orders; (a) this honourable court

be pleased to call and examine the records of the proceedings of the CMA

and it award in Labour Dispute No. CMA/MBY/mby/62/2022, revise it and

set aside the award delivered by Hon. Mwalongo on 11th September 2023;

(b) any other relief the court may deem fit and just to grant. The

statement of legal issues for determination are found under paragraph 21

of the affidavit.

When the application came on for hearing, the applicant was

represented by Mr. Kennedy Alex Mgongolwa whereas for the respondent,

Mr. Isaya Zebedayo Mwanri, both learned counsels. Parties prayed and

were granted leave to argue the application by filing written submissions,

the drawn scheduling order was complied with.

The first issue was whether termination was unfair both

substantively and procedurally. Submitting on that point, counsel for the

applicant stated that there was ample evidence from the applicant that

the respondent committed the offence he was charged with through

exhibits R-11, R-12, R-13, R-14 and R-15 which indicated there was over

declaration of kilometers in the full requisition form.

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 Counsel said, the arbitrator placed the standard of proof beyond

reasonable doubt contrary to rule 9(3) of the Employment and Labour

Relations Citation (Code of Good Practice) G.N. No. 42 of 2007 which

requires to be on balance of probabilities. Further argument was that the

applicant proved misconduct on part of the respondent upon

investigation.

In the second issue whether the arbitrator properly analysed and

evaluated evidence, it was submission of Mr. Mgongolwa that the

arbitrator did not give weight to oral and documentary evidence tendered

by the applicant. With respect of salary of the respondent, counsel stated

that basic salary was Tsh. 965,116/= per exhibit R-6, transport allowance

Tsh. 100,000/=, meal allowance Tsh. 120,000/= and housing allowance

Tsh. 100,000/= as evidenced by exhibit R-9, in total Tsh. 1,285,116/= but

the arbitrator failed to appreciate documentary evidence tendered.

Counsel argued that the arbitrator awarded Tsh. 1,744,646/= based on

oral words of the respondent.

Submitting on third issue, whether reliefs were properly awarded, it

was submitted by Mr. Mgongolwa that severance pay is calculated based

on section 42 of the ELRA that is seven days basic wage of each completed

year but not above ten years. He said the formula was insisted in the case

of Neema Batchu & Another vs Absa Group Ltd (formerly Barclays

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Bank (T) Ltd, Revision Application No. 408 of 2021 [2022] TZHCLD 924

(22 August 2022; TanzLII). Counsel submitted that the respondent was

entitled to Tsh. 2,251,937 as severance pay.

On twelve months’ compensation, the argument of the applicant’s

counsel was based on salary of Tsh. 1,285,166/= discussed in ground two

and payable to the respondent which when is calculated at twelve months

brings the total Tsh. 14,421,391/=.

In respect of payment of gratuity, counsel for the applicant admitted

that Collective Bargaining Agreement, exhibit HM-1 was binding on the

applicant. Taking the argument further counsel said in terms of clause

12(1)(c)(i) of exhibit HM-1 when calculated at the basic salary of Tsh.

965,116/= with fourteen years the respondent worked with the applicant,

the respondent was entitled to Tsh. 13,511,624/=. It was stated that the

arbitrator just took what was claimed by the respondent without

justification.

From the above submission, the applicant prayed the application to

be granted and the award of the arbitrator be set aside.

In response to the above submission, Mr. Isaya started with the

cardinal law that termination of employment must be on fair reason and

burden to proof that termination was fair is upon the employer. To

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substantiate the argument, section 37(1)(2) of the ELRA and the case of

Serenity On the Lake Ltd vs Dorcas Martin Nyanda, Civil Appeal No.

33 of 2018 [2019] TZCA 64 (12 April 2019; TanzLII) were referred. He

added that termination on misconduct must be proved that there were

such rules or standards which was contravened and has been consistently

applied, reference was made to rule 12(a)(b) of the G.N. No. 42 of 2007.

Replying if the applicant proved reason for termination, counsel for

respondent stated that existence of route ride, which would have

established actual distance the respondent was supposed to travel was

not proved. Further that what was being filled in exhibits R-11 to R-15

was an estimate and not the actual distance. He added that it was not

proved if fuel was acquired for personal use.

Mr. Isaya went on to submit that during disciplinary hearing,

methodology to conduct investigation was not stated and the respondent

was never involved in the process, availed with report and it was not

tendered in evidence in the CMA. He said, failure to conduct investigation

is procedural unfairness and therefore grounds for existence of

commencing disciplinary hearing was flawed. He cited the case of Enza

Zaden Africa Limited vs Edwin Kasena, Civil Appeal No. 427 of 2021

[2023] TZCA 17733 (5 October 2023; TanzLII) to support the point.

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 Further argument was that hearing committee was biased as the

complainant constituted the panelist referring to Eric Ollotu and exhibit R-

3. Taking submission of Mr. Isaya on the first issue as the whole, it was

argued that the applicant failed to prove fair reason for termination and

procedure of termination was not followed.

On whether evidence was properly evaluated and analysed, counsel

for the respondent was in favour of the decision of the arbitrator. He

added that the arbitrator sustained evidence which was heavier than the

other. He cited the case of Hemedi Said vs Mohamed Mbilu [1984]

TLR 113. Counsel argued that there was no evidence that terminal benefit

was paid to the respondent and exhibit R-9 was not served to him.

In reliefs awarded to the respondent, Mr. Isaya stated that while

the applicant said last salary was Tsh. 1,285,116/=, the respondent said

it was Tsh. 1,744,646/= however the last slip document was not tendered

by the applicant. He referred to rule 15(1)(h) of the ELRA which imposes

duty on the employer to furnish an employee with written statement of

particulars containing remuneration and salary. It was submitted that

exhibit R-6 shown last salary was in March 2021 but when put to cross

examination said it was November, 2021. Further that RW1 through

exhibit R-9 said in March 2021 there was salary increase.

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 Concluding on what amount the respondent was to be paid, counsel

said because salary payable to the respondent was not clear and the

applicant failed to discharge burden of proof which was upon her, then

Tsh. 1,744,646/= was proper. On compensation of twelve months

awarded, counsel said it was properly awarded.

On payment of gratuity, Mr. Isaya submitted that the dispute was

on the amount awarded and according to him, taking the salary of Tsh.

1,744,646/= for fifteen years the respondent worked with the applicant

the total was to be Tsh. 15,169,690/=. With regard to payment of

severance payment, it was submitted that the amount was rightly

awarded.

Having considered the contending written submissions of the parties

and the record of application, they all boil down to one major issue

namely, whether the appellant's termination was substantively and

procedurally fair.

According to the provisions of section 37 of the ELRA termination of

an employee from employment must be for valid reason and in terms of

section 39 of the ELRA burden of proof that termination was fair is upon

the employer. The follow up question is whether the termination of the

appellant from the employment was valid.

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 Beginning with the charge which is a foundation of the disciplinary

proceedings whereby an employee must be informed about the nature of

the disciplinary offence and the contravened provision so as to enable the

employee to prepare his/her defence prior to the hearing and

determination of his/her fate. This is embraced under Rule 12(1) of the

G.N. No. 42 of 2007.

In this application the charge sheet was levelled under Rule 12(3)(a)

of the G.N. No. 42 of 2007 and Company’s Disciplinary Code Schedule 17

(j)(1) of Coca Cola Staff Handbook. The said disciplinary code was not

tendered in evidence. That however, I have gone through the evidence

adduced at the CMA, the first count was over declaration of speed in the

speedometer, to prove this RW1 stated that before a driver is given a

route, they conduct route ride to ascertain distance, road safety and

customer in that area with full purpose of establishing standard kilometre

in that route. That in November, 2021 the respondent over declared the

distance and thus acquired extra liters of diesel. To note here the said

report which revealed over declaration was not introduced in evidence.

To establish that the respondent over declared kilometers, full requisition

form was tendered as exhibit R-11 to R-15. The respondent’s counsel has

submitted that there was no proof of standard kilometers, and the

distance given was just estimated.

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 To prove that there was over declaration of kilometers, the applicant

was required to prove, the distance required to be travelled in the route

and the distance declared by the respondent and existence of rule of the

applicant which creates the offence of over declaring kilometers. Evidence

in record by the applicant did not disclose the distance the respondent

was required to travel in each route, although exhibits R-11 to R-15 relied

upon were tendered but there was no explanation given to get the full

picture of what was to be travelled and the over declaration made. In the

case of Leonard Dominic Rubuye T/A Rubuye Agrochemical

Supplies vs Yara Tanzania Limited, Civil Appeal No. 219 of 2018, CAT

at Dar es Salaam [2022] TZCA 419 (13 July 2022; TanzLII) the court held

that;

‘… documents, although tendered in court, if no explanation is

availed as to its purpose are of no assistance to the court. The
duty lied on the party relying on them to demonstrate their
significance. That said, much as we appreciate that a bunch of
documents were tendered in court (exhibit PI), there was need
for explanation as to their relevance.’

In the CMA the applicant tendered full requisition form but no

explanation was given and it is not clear how long distance the respondent

was to travel and that which exceeded. There is no oral evidence

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connecting exhibits R-11 to R-15 with the offence the respondent was

charged.

As the applicant was required to prove the actual distance and that

which was over declared but failed. In absence of the report which

triggered over declaring of kilometre by the respondent, investigation

report, rules or standard regulating conduct relating to employment of the

respondent and route ride report to establish the offences charged it

cannot be said termination was for valid reason.

On procedural aspect, the same was not followed, going through

evidence of RW1 and RW2 and exbibits tendered particularly exhibit R-1

and R-2, it is clear that the respondent was suspended from work on 18

December 2021 exhibit R-1, on the same day was given chargesheet

containing the accusation against him and the date of disciplinary hearing,

exhibit R-2. In terms of Rule 13 of the G.N. No. 42 of 2007 the employer

must conduct an investigation to ascertain whether there are grounds for

a hearing to be held. At hand, there is no evidence as to when

investigation was conducted, involvement of the respondent in the

investigation and if it was availed to the respondent rather service of

charge sheet and date of disciplinary hearing. In Severo Mutegeki &

Another vs Mamlaka Ya Maji Safi Na Usafi Wa Mazingira Mjini

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Dodoma, Civil Appeal No. 343 of 2019 [2020] TZCA 310 (19 June 2020;

TanzLII) the court stated;

‘... 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.’

Even though the respondent was given charge sheet and attended

disciplinary hearing, at the inception, the internal procedure from

discovering over declaration of distance to conducting disciplinary hearing

the procedure was flawed and therefore it cannot be said there was fair

hearing.

On evaluation of evidence in ground two, the applicant’s counsel

submission was pegged on the calculation of basic salary of the

respondent relying on exhibit R-6 and R-9 that it was Tsh. 965,116/=.

Adversely it was submitted that the applicant failed to prove that the

salary was not increased. On my part after going through evidence of

RW1 and exhibit R-6, basic salary of the respondent was Tsh. 965,116/=

plus undisputed allowances for meal, transport and housing. I agree that

the employer must have full particulars of the employee per section 15 of

the ELRA, but it is only relevant at the commencement of employment.

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 In this application the respondent was employed in 2007 and there

is evidence per exhibit R-6 that in January 2021 basic salary increased up

to Tsh. 965,116/=. The respondent said his salary was Tsh. 1,704,646/=

without distinction of basic salary and allowances he was being paid no

evidence was tendered to show that the salary was increased beyond that

scale to controvert exhibit R-6. Akin scenario was discussed in the case of

Jordan University College vs Mark Ambrose, Civil Appeal No. 267 of

2020) 2024 TZCA 433 (11 June 2024; TanzLII), the court stated;

‘... He said his salary was TZS 1,300,000.00 without tendering

any salary slip or document to verify it. The only document
showing the last salary was the 3rd employment agreement
executed on 26th November, 2015. Clause 6 therein, carry the
salary of TZS 1,151,837.00. It was thus wrong to base the
calculations on the salary of TZS 1,300,000.00 and neglect what
is provided in documentary evidence.’

I do not agree with the respondent’s counsel that the applicant

failed to prove this aspect, even the argument that RW1 said salary

increase in March 2021 is not discerned in record. By tendered salary

increase letter exhibit R-6 and salary payment form exhibit R-9 which

proves that basic salary of the respondent was Tsh. 965,116/=, the

applicant proved salary payable to the respondent. I therefore, find that

the arbitrator wrongly assessed the basic salary of the respondent.

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 As to the reliefs awarded, the respondent was awarded severance

pay, twelve month’s compensation, substance allowance, transportation

package and gratuity. It is noteworthy that subsistence allowance and

transport package is not challenged in the application. From the

submission of the applicant’s counsel the dispute was on how basic salary

of the respondent was calculated. Of importance is that the daily wage is

quantified from the salary that the respondent would have received if was

working, it does not include allowance payable to workers on work. See

Security Group (T) Limited vs Steven Gerson Kizinga, Consolidated

Appeal No. 386 of 2020 & 50 of 2021) [2024] TZCA 107 (23 February

2024; TanzLII).

On severance pay section 42 (1) of the ELRA provides;

‘42(1) For the purposes of this section, “severance pay” means

an amount at least equal to 7 days’ basic wage for each
completed year of continuous service with that employer up to
a maximum of ten years.’

The above provision requires severance pay to be calculated based

on basic salary of seven days but payment should be made for not more

than ten years. In this application the respondent worked with the

applicant for fourteen years, but severance pay must be paid at the

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maximum of ten years. Taking basic salary of Tsh. 965,116/= at daily

wage of Tsh. 32,170.53 for ten years the total is Tsh. 2,251,937.33.

Regarding compensation for unfair termination the respondent was

given twelve months which when calculated at basic salary of Tsh.

965,116/= the total is Tsh. 11,581,392/=

On payment of gratuity, it would seem the applicant was not in

dispute that the respondent was entitled to be paid gratuity based on

Collective Bargaining Agreement, exhibit HM-1 particularly as provided in

clause 12(c)(i). The dispute was in respect of the amount payable. For

purpose of clarity, I reproduced that clause;

‘12. retirement

a) An employee may retire voluntarily when the employee

reaches the age of 50 years and above. Compulsory
retirement will take place at the age of 60 years.

b) N/A

c) An employer that qualifies for retirement will be entitled

to the following benefits

i. A gratuity: Equivalent to one month’s salary for every year of

service.’ Emphasize supplied.

The Collective Bargaining Agreement had a restrictive condition on

eligibility for gratuity, one, employee attaining age of 50 and above, and
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two, upon retirement be it voluntary or compulsory. Ordinarily a worker

who is terminated from employment loses all his benefits unless the

tribunal or court overturn the dismissal order, the reason is not farfetched,

the employee would be entitled had not been unfair termination. In the

Kenyan case of Bamburi Cement Limited v William Kilonzi [2016]

eKLR, the Court of Appeal of Kenya held;

‘Turning to the award of gratuity, the first thing that we must

emphasise is that gratuity, as the name implies, is a gratuitous
payment for services rendered. It is paid to an employee or his
estate by an employer either at the end of a contract or upon
resignation or retirement or upon death of the employee, as a
lump sum amount at the discretion of an employer. The
employee does not contribute any sum or portion of his salary
towards payment of gratuity. An employer may consider the
option of gratuity in lieu of a pension scheme. Being a
gratuitions payment the contract of employment may provide
that the employer shall not pay gratuity if the termination of
employment is through dismissal arising from gross or other
misconduct. But where, like here, the dismissal is not
justified and is wrongful the employee will be awarded
gratuity if it is provided for in the contract of
employment.’ Emphasize added.

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 The above stance applies in Ghana, in the case of Acheapong and

Another Vrs Ghana Highway Authority [2019] GHASC 89 (11

December 2019; GhanLII) the Supreme court of Ghana stated;

‘We endorse and restate the legal proposition that payments of

gratuity, end of service benefits or any other package to a
worker severing relationship with the employers on any grounds
is a condition precedent on the employee leaving without
blemish and upon faithful and efficient service to the employer.
Where as in this case the basis for the severance in relationship
is on the grounds of fraud, dishonesty, breach of trust or other
serious misconduct, the employee would not be entitled to the
benefits associated with leaving the service of the employer.’

The above is good law and find it applicable in this jurisdiction. In

this application the respondent was terminated for misconduct, the course

I have held it was not for valid reason. There is proof that the respondent

has attained the age above 50 years entitling him under the Collective

Bargaining Agreement to payment of gratuity. Proved evidence is that the

respondent worked with the applicant for fourteen years. From the basic

salary of Tsh. 965,116/= X 14 years = Tsh. 13,511,624/=

In the final analysis, I order that the respondent be paid

compensation as follows;

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 1. Compensation for 12 months at the rate of Tsh. 965,116/= per

month amounting to Tsh. 11,581,392/=

2. Severance pays in the sum of Tsh. 2,251,937.33/=

3. Gratuity of Tsh. 13,511,624/=

4. Unchallenged substance allowance of Tsh. 19,302,320/= and

transportation package of Tsh. 1,000,000/= if not paid.

In conclusion, I find merit in the application and allow it partly to the

extent stated. Being labour dispute, I make no order as to costs.

V.M. NONGWA
JUDGE
16/7/2024

DATED and DELIVERED at MBEYA this 16th day of July, 2024, in

presence Mr. Isaya Mwanri for Respondent also holding brief of Mr.

Kennedy Alex Mgongolwa for Applicant.

V.M NONGWA
JUDGE

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