TANZANIA: THE Tanzania Cigarette Public Limited Company (TCC) has successfully overturned a High Court ruling in a labour dispute with former Sales Representative Msafiri Kibanga, who had sought over 164m/- in terminal benefits following his dismissal for dishonesty.
The Court of Appeal ruled in favour of TCC, reinstating the decision of the Commission for Mediation and Arbitration (CMA), which found that Kibanga’s termination was both substantively and procedurally fair.
The appellate court, in a decision led by Chief Justice Professor Ibrahim Hamis Juma, stated, “This appeal has merit and we allow it accordingly. The judgment and decree of the High Court Labour Division in Labour Revision No. 08 of 2021 are quashed and set aside.”
Justices Zephrine Galeba and Mustafa Ismail, who were part of the panel, reinstated the original award issued by the Commission for Mediation and Arbitration (CMA).
The CMA had earlier determined that TCC’s process for terminating Kibanga’s employment on the grounds of dishonesty was both substantively and procedurally fair.
During the appeal, Advocate Paschal Kamala, representing TCC, contested the Labour Court Judge’s finding that TCC had not followed proper procedures in terminating Kibanga.
The Labour Court Judge had criticised TCC for failing to provide Kibanga with the investigation report before the internal disciplinary hearing, which was deemed a violation of Regulation 13 (3) of the Code of Good Practice.
The justices disagreed with this finding, noting that TCC had provided Kibanga with notice of the hearing and a charge sheet.
On June 15, 2020, two TCC directors sent a joint letter to Kibanga with details of the charge sheet and the scheduled hearing via virtual conference on June 18, 2020.
In defence, Kibanga’s counsel, Alfred Sindato, cited the case of Severo Mutegeki, arguing that an employee must be given a copy of the investigation report before a disciplinary hearing.
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However, Advocate Kamala countered that the case related to audit reports and emphasised that employers may not always share internal investigation reports due to privacy concerns.
The justices noted that since Kibanga had admitted to dishonesty regarding false sales, the failure to provide the investigation report did not prejudice him.
Records indicated that Kibanga confessed to dishonesty during the June 18, 2020, hearing, claiming he was following his manager’s orders to meet sales targets.
On June 29, 2020, Kibanga wrote to TCC’s General Manager, admitting his guilt and requesting forgiveness.
The justices highlighted that Kibanga’s admission of guilt for gross dishonesty could not be mitigated by the investigation report.
Advocate Kamala also challenged the Labour Court Judge’s conclusion that there was insufficient evidence to prove dishonesty.
The justices concurred with Kamala, finding evidence of dishonesty and breach of company policy.
The Labour Court Judge had previously agreed with the Arbitrator’s finding that Kibanga had indeed committed dishonesty.
Kibanga was employed by TCC as a Sales Representative until his termination on July 1, 2020.
TCC had expected Kibanga to manage company assets properly, maintain and update customer information, and represent the company positively.
However, TCC claimed Kibanga acted dishonestly, breached company policies, and caused a loss of 51,262,997/- to the company.
It was further alleged that between February and June 7, 2020, Kibanga created false invoices for cigarette sales, which were recorded in the company’s account system while the actual stock remained in the warehouse.
TCC also found stock in the vehicle Kibanga used for sales.
