By Faustine Kapama-Judiciary
THE Court of Appeal has saved Tea Processing
Industry Company, Unilever Tea Tanzania Limited, from paying her former
Environmental Compliance Manager, Mr Godfrey Oyema, over 108m/- for allegedly constructively
terminating his employment survives.
Such development comes after the Court of Appeal
ordered a fresh hearing of the labour dispute lodged by Mr Oyema, the
respondent, against the local company, the appellant, before the Commission for
Mediation and Arbitration (CMA).
Justices Shaban Lila, Ignas Kitusi and Abrahaman
Mwampashi ruled in favour of the appellant after invoking their powers of
revision bestowed on them under section 4(2) of the appellate Jurisdiction Act
to quash the CMA proceedings and award as well as that of the High Court, which
upheld the award.
“We direct the record of the CMA to be remitted back
to it, for it to hear and determine the dispute afresh. The same has to be
presided over by another arbitrator. We make no order for cost, this being a
labour matter,” they declared in their judgment delivered recently at Iringa
Court’s Registry.
The justices noted two procedural infractions
apparent on the face of the record committed by the arbitrator before the CMA
during hearing of the matter relating to receiving witnesses' evidences without
taking oath or affirmation and failure to append his signature after recording
such evidence.
They had in their mind the provisions of Rules
19(2)(a) and 25(1) of the CMA Rules, which vested the arbitrator with the power
to administer an oath or accept affirmation by the witnesses appearing before
him so as to testify.
“Administration of an oath or accepting affirmation
is, therefore, a function which the arbitrator is mandated to perform in the
conduct of his duties the abrogation of which is not proper. There was a reason
for being clothed with that authority or power,” the justice said, referring to
Rules in question.
They pointed out that in terms of Rule 25(1) of the
CMA Rules, it was a condition precedent that witnesses and parties appearing
before him to testify in a labour dispute are imperatively required to prove
their cases on oath.
Referring to such Rule, the justice said, “We cannot
avoid firmly stating here that taking an oath or being affirmed is a
precondition before one's evidence is taken before an arbitrator. The
arbitrator is obligated to comply with this requirement before recording the
evidence of witnesses who appear before him.”
The appellant had gone to the Court of Appeal to
challenge the High Court's finding in which it declined to revise the award by
the CMA on November 16, 2018. The CMA made a finding that the respondent was
constructively terminated from employment and ordered the appellant to pay him
108,322,558/28.
Before their relationships turned sour, the
appellant and the respondent were in employment relationship since March 10,
2015 when the former employed the later as Environmental Officer and was
upgraded to Environmental Compliance Manager on September 01, 2015.
However, on April 09, 2018, the respondent tendered
a resignation letter and on April 16, 2018 he initiated a labour dispute before
the CMA claiming constructive termination.
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