IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM

(CORAM: MWARIJA, J.A.. MAIGE. 3.A. And KHAMIS. 3J U

CIVIL APPEAL NO. 270 OF 2021

THOMAS OKELLO ATITO....... .......... ........... ........... ........... . APPELLANT

VERSUS
UNILEVER TANZANIA LIMITED ........ ............................... RESPONDENT

(Appeal from the decision of the High Court of Tanzania, Labour Division,
at Dar es salaam)
(Nanqela, 3 .}
dated the 16th day of October, 2020
in
Land Revision No. 256 of 2019

JUDGMENT OF THE COURT

29th April & 15th May, 2024

MAIGE. J.A:.

This appeal arises out of an action for unfair termination of

employment. In essence, we are called upon to determine whether the

Commission for Mediation and Arbitration (the CMA) as the tribunal of the

first instance and the High Court, Labour Division (the Labour Court) as

the revisionai court, were correct in their concurrent findings that the

appellant committed an act of absence without leave for more than five

days which in law amounts to repudiatory breach of the employment

contract. Equally called upon to consider is whether an allegation of

 forgery which is criminal in nature attracts a standard of proof that which

is above the balance of probabilities used in ordinary civil proceedings.

The facts giving birth to this appeal is easy to narrate. The appellant

is a Kenyan national who, upon procuring Class B Resident Permit and

Class C Work Permit, was on 1st October, 2015, employed by the

respondent as a Legal Counsel and Business Integrity Officer. On 8th

March, 2018, he received a notice from the respondent to show cause

why disciplinary actions should not be taken against him. Eventually, he

appeared before a disciplinary committee formed at the instance of the

respondent to defend himself against two counts namely; forgery and

failure to follow laid down procedures on leave application process leading

to overstatement of leave liability against the respondent. The disciplinary

committee found him guilty of the both counts and recommended for

termination of his services maintaining in effect that, the established

misconduct amounted to breach of trust.

In pursuit of the recommendation, the respondent terminated the

appellant's services on 5th April, 2018 on the ground of misconduct.

Aggrieved, the respondent commenced a referral to the CMA alleging that

the termination of his services was unfair both substantially and

procedurally.
 On whether there was fair reasons for termination of the appellant's

services, the CMA held in relation to the count of forgery that the same

was not proved because the committee held him guilty of breach of trust

which is a violation of duty by trustee, executor or other persons in a

fiduciary position while forgery being alteration of documents. On the

second count, the CMA held that:

"The law under section 31(3) o f the Employment and

Labour Relations Act clearly provides that the employer
will determine as when the leave is to be taken. The
complainant ought to have followed proper procedure
and not to decide to start his leave without permission
from his employer,. "

As to whether the termination was fair in terms of procedure, the

CMA established that the same was not fair because the Committee

refused to avail the appellant with the investigation report contrary to rule

13(1) and (5) of the Employment and Labour Relations (Code of Good

Practice) GN 42 and on top of that, the appellant was denied the right to

call some witnesses. Finally, the CMA held that, since the appellant had

no reason for the first count and failed to follow the procedure, the

respondent should be reinstated to his former position without loss of

remuneration or else be paid 12 months' salary in lieu thereof in addition

to wages due and other benefits.

 The appellant was not happy with the decision. She, therefore,

initiated an application for revision to the Labour Court challenging the

findings of the CMA on the count of forgery and procedural fairness as

well as for its omission to take into account its positive finding on the

second count.

The Labour Court found the complaint in relation to the count of

forgery devoid of any merit as the same was not proved to the standard

above the balance of probabilities, it being a criminal offence. In reaching

to such a conclusion, the Labour Court relied on the authorities in R.G.

Patel v. Lai Makanji [1957] E.A. 314 and Omary Yusuf v. Rahma

Ahmed Abdulkadir [1987] T.L.R. 169 in support of the proposition that;

where an allegation of fraud or forgery arises in civil proceedings, the

same has to be proved in a standard which is above the balance of

probabilities.

However, it found the complaint that the CMA did not take into

consideration its positive finding on the second issue with merit. It,

therefore, treated the appellant's non-compliance with leave requirement

and more particularly, taking leave without approval as tantamount to

absence without leave and since the absence was for a period of more

than five days, it amounted to a serious offence in terms of rule 11 of the

Code of Good Practice which justified dismissal on disciplinary ground. On

that basis, the Labour Court granted the application and reversed the

arbitral award.

Being aggrieved by the decision, the appellant appealed to the

Court faulting the decision of the Labour Court for: One, holding him liable

of absence without leave while the charge against him was failure to

follow laid down leave application procedure; Two, holding that the

appellant could not challenge before the Court the finding of the CMA that

he took leave without following the procedure; and Three, but in the

alternative, holding that, the appellant's proceeding on leave without

permission justified the termination. The second ground of appeal was,

however, abandoned during hearing and we marked it so.

In the same way as the appellant was aggrieved by the finding of

the Labour Court on the first count, the respondent was aggrieved by the

finding of the same court on the second count. Therefore, she lodged a

cross appeal faulting the Labour Court in holding that the standard of

proof in respect to such count was to be above the balance of probability.

At the hearing of the appeal, the appellant had enjoyed the

services of Mr. Jackstone Koyugi and Mr. Haroon Oyugi, both learned

advocates. Ms. Samah Salah, also learned advocate, appeared for the
respondent. In their oral arguments, the counsel from both sides fully

adopted the substances of their written submissions with some

clarifications. We express our sincere appreciation to them for their useful

submissions which have added a considerable value in this decision. We

shall in the course of addressing the grounds of appeal and cross appeal

consider the same.

It was submitted for the appellant that, since the allegation in the

second count was failure to follow the laid down procedure on leave

application, it was wrong in law for the Labour Court to hold him liable for

the count of absence without leave. It was submitted further that, in

holding the appellant liable for the count which he was not charged with

before the disciplinary committee, the appellant was punished without

being afforded the right to be heard. Further on the same point, it was

submitted that, the offence of failure to follow leave procedure is not

founded in the appellant's employment manual nor in the contract of

service. In any event, it was submitted, the same was not one of the

serious offences which would justify termination of service. We were thus

urged to allow the appeal and reverse the decision of the Labour Court.

In response, it was submitted, since the CMA held at page 400 of

the record of appeal that proceeding on leave without following the

 procedure meant absence without permission, the Labour Court was

justified in holding that the appellant was found guilty of absence without

leave for a period of more than five days. It was submitted further that,

as the appellant confirmed, during disciplinary hearing as per page 346 of

the record of appeal that, he did not produce anything to show that his

leave was accepted by his Line Manager, which means that the same was

not approved, he cannot be heard complaining that he was denied the

right to be heard.

As we said above, the second count the appellant faced before the

committee was failure to follow laid down procedures on leave application

process leading to overstatement of leave liability against the respondent.

Before the disciplinary committee, the respondent solely relied on the

evidence of her director of legal services one Alison Kariuki. At the CMA,

she testified as PW1. In accordance with her testimony appearing at page

82 of the record of appeal, an application for leave should be addressed

to the line manager and human resource manager for approval as per

clause 18.5.2. 3 of the Human Resource Manual.

Clause 18.5. 2.2. of the Manual provides that leave entitlement shall

be as per the country's labour laws. Clause 18.5.2.3 requires an

application for leave to be addressed to the line manager and human

 resource manager for approval in accordance with leave roster. The

provision further provides that; "staff proceeding on leave shall be

expected to prepare a written handover in accordance with the handover

procedure and guidance."

Though the Labour Court based its decision on this point on absence

without leave, neither the charge nor the evidence both at the committee

and the CMA were clear as to which specific procedure was in breach. At

page 82 of the record, PW1 told the committee as follows:

Thomas proposed to go for 1 month leave from 1st to

3(fh December 2017, so he was going to be away for a
full month and I thought that was a very long time as
the business would suffer. I wrote to Thomas asking
him to reconsider his leave and makes sure he prepares
a written handover prior to him going to leave. I
checked with Mufindi HRBP and the MD Ashton whether
they had a discussion with Thomas and approved his
leave, they indicated that they had not been consulted
in agreeing to the leave days."

It would appear from the above piece of evidence that, whether the

appellant's request for leave was addressed to the alleged line manager

is not in dispute, for it is express in the evidence of PW1 that she received

the leave proposal and had a concern on the duration of the same. It is,

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 however, not clear if the complaint was that such request was not finally

approved or that proper handover was not made. It has also to be noted

that; in accordance with the employment manual, the line manager was

not the only person empowered to approve the request. The human

resource manager would as well approve. He was, however, not called as

a witness at the committee. The evidence at the CMA did not address the

issue too. As can be seen in the extract from the evidence of PW1 at the

committee above, one of the reasons why she believed that the appellant

did not follow the procedure for leave is because the Mufindi Human

Resource Business Partner (HRBP) and the Managing Director (MD) did

not approve the same. This would suggest that the said officers were also

capable of approving the appellant's leave. Neither of them were called

as witnesses.

In our opinion, therefore, the Labour Court was wrong in holding

the appellant liable of the offence of absence without leave, the count

which was neither alleged in the charge sheet nor proved in evidence.

The appeal, therefore, succeeds and it is hereby allowed.

In the cross appeal, we are called upon to consider whether the

Labour Court was correct in holding that, the standard of proof in labour

disputes where fraud is alleged, is above that of the balance of

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probabilities. The respective finding of the Labour Court which is faulted,

appears at page 745 of the record of appeal where it was observed:

"However, the above finding o f the Committee fed short

o f stating whether it was Mr. Thomas Atito who
perpetrated it or someone eise. Consequently, such
evidence feii short o f being water tight in the manner
envisaged in the cases o f Omari Yusuf v Rahma
Ahmed Abduikadir (supra) or R.G. Patef v Lai
Makanji (supra). Consequently, since there was no
other evidence relied on other than the Permit
Application Letter, dated January 2015 (Exhibit PW1-
C), and whose procurement and authenticity was
subjected to challenge (see page 5-7 o f Exh.PWl-F,
(Hearing Form, the minutes o f the Disciplinary
Proceedings), I find that the offence o f forgery was not
fully established\..."

Before reaching to such a conclusion, the Labour Court reproduced,

at the same page of the record of appeal, the following finding of the

committee:

"the fact that Thomas failed to explain the anomalies

and signatory used in the letter and failed to produce
the true copy according to his claims, but being able to
submit all other documents used in the process shows
that there is forgery that has been done in the process. "

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 We understand that, the Labour Court is only challenged in holding

that, proof of forgery was to be in a standard above the balance of

probabilities. We note, however that, the Labour Court found that the

count of forgery was not proved, because of absence of evidence to link

the appellant with authorship of the document in question. We also note

that the committee resolved the issue against the appellant based on the

appellant's failure to produce some documents in support of his defence.

In our view, since the burden of proof on fairness of termination of service

is on the employer, the finding of the Labour Court that the alleged forgery

was not proved, would remain correct even if the standard of proof was

on the balance of probabilities. The reason being that, having failed to

adduce evidence linking the appellant with the forgery of the document,

the weakness of his defence evidence would not be used in proof of the

same as that would amount to shifting the burden of proof to the

employee which is against the law. On that account and having held that

the alleged forgery was not proved on the balance of probabilities either,

we find it unnecessary to consider whether the standard of proof in

allegation of fraud in labour dispute is or not above that of the balance of

probabilities. We think, the need for deciding the cross appeal does not,

in the particular circumstances of this case arise. Perhaps, the issue may
be determined when an opportune situation calling for a decisive answer

occurs.

In the final result and for the foregoing reasons, therefore, the

appellant's appeal succeeds and it is allowed to the extent of the first

ground of appeal.

DATED at DAR ES SALAAM this 14th day of May, 2024

A. G. MWARIJA
JUSTICE OF APPEAL

I. J. MAIGE
JUSTICE OF APPEAL

A. S. KHAMIS
JUSTICE OF APPEAL

The Judgment delivered this 15thday of May, 2024 in the presence

of Mr. Haron Oyugi, learned counsel for the Applicant and Ms. Fatuma

Mgunya, learned counsel for the Respondent; is hereby certified as a true

copy of the original.

i/V ' '\

\ ;j 0. H. KINGWELE
ij DEPUTY REGISTRAR
/ COURT OF APPEAI
vr -----------------------------

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