By FAUSTINE KAPAMA-Judiciary
THE Court of Appeal has nullified all proceedings
surrounding labour dispute involving Data Entry Assistant with National Social
Security Fund (NSSF) Gabriel Nkakatisi who was dismissed from employment
services for fraudulent transactions.
Justices Stella Mugasha, Mary Levira and Patricia
Fikirini reached into such a decision when determining an appeal lodged by Nkakatisi,
the appellant, to oppose findings of the High Court, which reversed the
decision of the Commission for Mediation and Arbitration (CMA) that ruled in
his favour.
“We hereby invoke the powers bestowed on us in terms
of section 4 (2) of the Appellate Jurisdiction Act and nullify the proceedings,
quash the CMA and High Court decisions, set aside the CMA's award and the High
Court order which revised the award,” they declared.
The justices noted before the CMA that during
hearing of the matter witnesses summoned by the parties testified without being
sworn or affirmed, which is contrary to the requirement under rule 19 (2) (a)
read together with rule 25 (1) of the Labour Institutions (Mediation and
Arbitration) Rules.
According to them, it is trite law that witnesses are
required to take oath before they give evidence and that such obligation is
also provided by section 4(a) of the Oaths and Statutory Declarations Act as a
mandatory requirement.
They noted further that besides the requirement
under section 4 (a) of the Act, Arbitrators at the CMA in the exercise of their
duties have been vested with powers to administer oaths or accept affirmations
under rule 19(2)(a) of GN No. 67 of 2007.
“It thus goes without saying that it is a mandatory
requirement that any person who appears in court as a witness has to be sworn
or affirmed before giving testimony,” the justices said.
They added that the CMA is a court within section
4(a) of the Act as the term "court" under section 2 of the Act is
defined to include every person or body of persons having authority to receive
evidence upon oath or affirmation.
The justices observed having gone through the
records of appeal that it was evident four witnesses gave evidence without
taking an oath or being affirmed and what was found were their particulars including
their religions but without any indication that they took oath before
testifying.
“In our view, mentioning their religion is not a
proof that they were sworn or affirmed. The record must speak for itself loud
and clear by indicating that witnesses were sworn or affirmed before giving
their testimonies,” the justices said.
The appellant was previously employed by Said Salim
Bakhresa & Co. Limited until he resigned on October 31, 2013. He was then
employed and stationed at Dodoma by NSSF on November 1, 2012, as data entry
assistant, initially on temporary basis and eventually in 2014 got permanent employment.
During his employment on a temporary basis, the
appellant personally and voluntarily paid contributions to NSSF, which
qualified him to become a member of the Fund’s retirement benefits fund.
Following the resignation from his employment with previous
employer, at the time he was with NSSF, studying for his Master's Degree and
doing his research in Singida, the appellant applied for his benefits in
Morogoro, for the contributions he made while with his former employer and was
paid 4,024,464/21.
In the meantime, the appellant also applied for the
same NSSF benefits while in Singida. The NSSF detected fraud in the benefits
claims made and conducted investigations.
Upon completion of the investigations, the appellant
was served with a letter to show cause why disciplinary measures should not be
taken against him. He appeared before the Disciplinary Hearing Committee on November
24, 2016, at the NSSF Head Office in Dar es Salaam.
The appellant was found guilty and ultimately his
employment was terminated on December 15, 2016 for being involved in fraudulent
transactions in Morogoro and Singida. The appellant admitted to having
committed the two fraudulent transactions.
Consequent to the termination, the appellant
approached the CMA claiming unfair termination. After hearing the parties, the
Arbitrator ruled that the termination of the appellant was substantively fair
but unprocedural as the investigation report was not availed to him, thus he
was not afforded a fair hearing.
The CMA ordered the NSSF to pay the appellant 12
months' salaries under section 40 (1) (c) of the Employment and Labour
Relations Act. Upset by the decision, the NSSF successfully preferred a
revision before the High Court, which revised, quashed and set aside the CMA
award.
It concluded that the principles of natural justice
were observed by the employer and the Disciplinary Committee and that the termination
was thus substantially and procedurally fair. It was at that point in time when
the appellant decided to take the matter to the Court of Appeal for further determination.
Hakuna maoni:
Chapisha Maoni