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Tanzania Union Industrial and Commercial Workers (TUICO) vs Tanzania Breweries Public Limited Company (Revision Application No 130 of 2023) 2023 TZHCLD 1342 (30 June 2023)
Tanzania Union Industrial and Commercial Workers (TUICO) vs Tanzania Breweries Public Limited Company (Revision Application No 130 of 2023) 2023 TZHCLD 1342 (30 June 2023)
LABOUR DIVISION
AT DAR ES SALAAM
(Arising from an Award issued on /06/2023 by Hon. Mwakisopile, I.E, Arbitrator, in Labour dispute NO.
CMA/DSM/ILA/188/2023/98/2023 at Ilala)
VERSUS
JUDGMENT
B. E. K. Mganga, J.
Brief facts of this application are that, Tanzania Breweries Public
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undisputed by the parties that, applicant is the recognized agent and acts
undisputed fact that, shortly after owning the respondent in 2016, ABInBeu
applicant and others being none members. It is also undisputed fact that,
for retrenchment that was carried in July 2019 was that she was
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undisputed that in 2020, respondent retrenched 150 employees in the
supply and logistics functions on ground that she was restructuring her
Tanzania operation.
ground that she was restructuring her Tanzania operations. On 20th March
(CMA F1), respondent indicated that the nature of the dispute is failure to
respondent indicated further that, consultation with the union was done
accepted by the union hence the dispute because the Union i.e., the herein
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the dispute arose on 20th March 2023. On the outcome of the dispute,
In the said CMA F1, also respondent indicated that the matter should be
On 17th May 2023, three issues namely, (i) whether selection criteria
respondent) was fair and (iii) to what relief(s) are the parties entitled to.
On 7th June 2023, Hon. Mwakisopile, I.E, Arbitrator, having heard evidence
and submissions from the parties, held that selection criteria were a non-
issue because it was not disputed by the herein applicant who was the
(exhibit TBL6) and held that financial position of the respondent has
collapsed and that there was no evidence to the contrary. Having so held,
respondent is fair and just and ordered respondent to pay the proposed
Applicant was aggrieved with the said award, as a result, she filed
this application for revision under certificate of urgency. Applicant filed the
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affidavit affirmed by Khalid Mfaume to support the Notice of Application. In
1. That, Arbitrator erred in law and fact by acting with prejudice in entire
process of determining the dispute in question.
2. That, Arbitrator erred in law and fact by failing to correctly consider
evidence tendered/adduced by Applicant, hence reached to erroneous
decision.
3. That, the Award issued by the Arbitrator contains errors material to the
merit of the dispute occasioning injustice to the Applicant.
4. That, the Honourable Arbitrator erred in law and fact by not properly
analyzing all evidence of the parties and relied only on evidence of the
respondent hence ended up with wrong interpretation of the law and issued
an award in favour of the respondent.
5. That, the Honourable Arbitrator erred in law and fact by failing to analyze
applicant’s evidence and consequently wrongly interpreted evidence
adduced by applicant.
6. That, Honourable Arbitrator erred in law and fact by failing to analyze
Applicant’s evidence and consequently reached an erroneous decision and
yet respondent failed to prove that the reason to conduct retrenchment was
due to economic constrains that caused low purchasing power her
customers or due to Company’s need to restructure her Tanzania operation
to align with the rest of African Zone operations, Brewery of the future).
7. That, the Honourable Arbitrator erred in law and fact by failing to observe
clearly evidence adduced by the Applicant and reached an erroneous
decision despite of clear explanation given by the Applicant in her final
submissions.
8. That, Honourable Arbitrator erred in law and fact in disregarding completely
Applicant’s final submissions in support of the matter, to the contrary,
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based on unfounded fats and reasoning instead of reasoning in line with the
law and evidence in record.
9. That, Honourable Arbitrator erred in law and fact by declaring that
respondent has collapsed in her financial position hence ended up into an
erroneous decision which declared retrenchment package proposed by the
respondent as fair and just.
10. That, Honourable Arbitrator erred in law and fact by wrongly interpreting
evidence and concluded that the reason for retrenchment was economic
constraints, yet the truth and genuine reason for retrenchment was
restructuring of respondent’s operation in Tanzania.
Respondent filed both the Notice of Opposition and the Counter
represented by Jamal Ngowo and Khalid Mfaume both working with the
advocate.
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exhibit TBL3 that retrenchment was due to restructuring. He added that, in
the said meeting, the parties agreed that status quo should be maintained.
Mr. Ngowo submitted that, only one meeting was conducted in the
presence of the applicant and respondent and that, the rest of consultation
meetings in Arusha, Mbeya, Mwanza and Dar es Salaam, were done in the
did not accept the proposal of the respondent on package and proposed
(exhibit TBL3) are just and issued the award in favour of the respondent.
Employment and Labour Relations Act [Cap. 366 R.E. 2019] requires the
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employer to disclose all relevant information for the intended retrenchment
for the purpose of proper consultation. He further cited Rule 23(1) and (2)
requirements, can be due to (i) economic needs, (ii) technology needs and
restructuring and not economic needs. He went on that, from the evidence
of PW1 the only witness for the respondent, retrenchment was due to
as per exhibits TBL2 and TBL3 was restructuring but the arbitrator relied
be conducted afresh.
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testified that there was retrenchment in 2017, 2018, 2019 and 2020 based
TUICO1 which shows how employees who were previous retrenched were
respondent should adopt her practice over five years where she paid good
during that period, respondent was not performing well due to COVID 19
but she paid many employees who were retrenched better than the
Mr. Ngowo submitted that, the arbitrator erred for her failure to
(exhibit TBL 6) for the quarter that ended on 31st March 2023 is not
audited as it plainly shows. Audit report was issued after respondent had
respondent did not comply with the provisions of Section 38(1)(b) of Cap.
366 R.E. 2019 (supra) and denied the applicant and respondent’s employee
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right to engage in a proper consultation on economic constraint. He went
on that, respondent had legal obligation to establish that there was fair
reason and comply with fair procedure. He submitted further that, non-
right under Rule 23(6) of GN. No. 42 of 2007(supra). Mr. Mfaume added
Mr. Mfaume submitted that the arbitrator did not consider applicant’s
final submission. In his submissions, Mr. Mfaume conceded that cases are
Mr. Mfaume submitted further that there are errors on the award
economic needs. Mr. Mfaume abandoned the 1st ground and concluded
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submissions on behalf of the applicant praying the application be allowed,
learned counsel argued the 2nd, 4th, 5th, 6th and 7th grounds together
that, DW1 admitted in his evidence that selection criteria was not an issue
Counsel submitted further that, PW1 testified that applicant refused to sign
added that, PW1 testified that selection criteria were an issue which is why,
analyzed evidence and concluded that selection criteria was not an issue.
applicant’s demand because she was operating under loss. That, based on
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that, respondent tendered exhibit TBL1 to show that she cannot meet
the arbitrator analyzed that evidence and concluded that, that exhibit
cannot apply because their life spare had expired. Counsel for the
respondent concluded that the 2nd, 4th, 5th, 6th and 7th grounds have no
Arguing the 3rd ground, learned counsel for the respondent submitted
that, the award is based on evidence adduced and that there is no error on
TBL2 showing that costs were running high. Counsel for the respondent
Arguing the 8th ground, Mr. Nyaisa, learned counsel for the
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added that, even if they were not considered, submissions are not
Resisting the 9th ground, counsel for the respondent submitted that
Counsel argued that the arbitrator just said those words in a passing and
that it was not proper for the arbitrator to make that opinion because
sudden failure. Counsel conceded further that the reason for retrenchment
was restructuring. Counsel for the respondent was quick to submit that
PW1 testified that respondent’s business was operating under loss as per
exhibits TBL1 and TBL6 and that Arbitrator’s findings were based on those
exhibits.
Arguing the 10th ground, Mr. Nyaisa, learned counsel for the
respondent submitted that parties are bound by their own pleadings and
cited the case of Lem ington Lew a Katana v. Leopard Tours Ltd ,
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retrenchment has never been an issue. Counsel went on that, in the
process to prove why she cannot meet the offer by the applicant,
the respondent added that, the issue of economic capability just came in
the offer by the applicant. Counsel for the respondent maintained that, the
rationale for restructuring was cost serving. Counsel added that exhibits
TBL3 and TBL4 all being minutes, shows that applicant participated in all
Cap. 366 R.E. 2019(supra) and Rule 23(1) and (2) of GN. No. 42 of
23(2)(c) of GN. No. 42 of 2007 (supra) provides how structural need can
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arise. Counsel for the respondent added that structural change in the
On the prayer made by Mr. Ngowo for the court to order consultation
learned counsel for the respondent submitted that, pleadings at CMA does
not support that prayer. Counsel for the respondent added that, the said
order will prolong the process hence kill the respondent’s business. Counsel
respondent performed well last year and the year before or this year. He
argued that submissions that respondent performed well last year are only
from the bar. Mr. Nyaisa, learned counsel for the respondent strongly
submitted that the arbitrator did not error to rely on exhibit TBL1 namely a
conceded that the person who conducted the research did not testify.
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Counsel for the respondent was quick to submit that during consultation,
challenge that reason because the reason for retrenchment has never an
issue at CMA.
held between applicant and the respondent, Mr. Nyaisa, learned counsel
for the respondent submitted that consultation meeting must not be many.
Bernard Gindo & 27 Others v. ToL Gases Ltd [2013] LCD 20 to support
his submissions that consultation was properly made and that the Court
duty bound to prove the facts relating to her counter offer based on
allegation that respondent was not in economic hardship. Counsel cited the
Tanzania Co. Ltd, Civil Appeal No. 380 of 2019, CAT (unreported) to
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support his submissions that, if the dispute is not on fairness of
termination, each party has a duty to prove the issue raised. Counsel for
In rejoinder, Mr. Ngowo for the applicant submitted that, the dispute
was on package while applicant was aware that reason for retrenchment
was restructuring until when PW1 testified that retrenchment was due to
further that, applicant attended only one meeting and that exhibit TBL4
exhibit TBL3, there was no agreement which is why, it was agreed that
status quo be maintained. Mr. Ngowo argued that there was no full
parties agreed on the reason for retrenchment and that the dispute was
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further that respondent was supposed to be specific on the reason of
retrenchment.
record and find that all exhibits for the applicant i.e. TUICO 1 and TUICO 2
were tendered without a prior prayer by the witness to tender them and
further that the respondent was not asked whether she objects or not. I
noted the same omission was done to all exhibits tendered by the
respondent i.e., namely, exhibit TBL1 and TBL2, TBL3, TBL4, TBL5, TBL6
and TBL7. I noted further that exhibit TBL7 was not marked or endorsed
differentiated from other documents that were filed by the respondent but
not tendered as evidence. Not only that but also, exhibits that were
dates, the arbitrator endorsed only one document and did not show that
summoned the parties and asked them to address the Court whether
exhibits were properly tendered and admitted in evidence and the effect
thereof.
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Responding to the issue raised by the court, Mr. Ngowo submitted on
behalf of the applicant that, the procedure adopted by the arbitrator is not
proper. Mr. Ngowo submitted further that, documents that were improperly
submitted further that, it was not proper for the arbitrator to consider
documents that were improperly admitted and others that were not
admitted. For the foregoing, Mr. Ngowo prayed that CMA proceedings be
nullified, the award be quashed and set aside and order trial de novo.
counsel for the respondent submitted that, proceedings does not show that
witnesses requested to tender exhibits and further that they do not show
that the other party was given right comment whether she has objection or
not. Counsel for the respondent was quick to submit that the omission is
not fatal where the other side is not complaining to have been denied right
Counsel for the respondent submitted further that, the award has
further that, the award is not vitiated by the omission because it does not
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show that the arbitrator considered unendorsed documents. Counsel for
the respondent submitted further that, exhibit TBL7 was not considered in
the award. Counsel strongly submitted that, despite the omission, the
that, the parties should not be condemned because of the mistake of the
arbitrator and that proceedings should not be nullified. Counsel for the
respondent submitted that, in the alternative, if the Court finds that the
from the date witnesses started to testify and order trial before a different
arbitrator.
this application, I will for obvious reason, consider first the issues raised by
the court. It was correctly submitted on behalf of the parties that CMA
proceedings does not show that witnesses prayed to tender exhibits and
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that the other party was afforded right to comment by raising objection or
stating that there is no objection. CMA proceedings shows that the witness
was testifying and suddenly the arbitrator recorded that the document has
admitted as exhibit and appended her signature and then recorded that it
was admitted without objection. When Emiliana Felix Karumna (PW1), the
only witness for the respondent was testifying, at the time of admitting a
Commercial Workers –TUICO (the Union) (exhibit TBL3) dated 20th March
the document titled “internal performance report. Unaudited results for the
quarter ended 31st March 2023” exhibit TBL 6, the arbitrator recorded: -
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performance report kuonyesha hali ya uchumi wa Co. Kielelzo TBL 6
kimepokelewa (signature) 22/05/23 bila kupingwa.”
It is clear from the quoted evidence relating to exhibits TBL3 and
TBL6 that were considered and relied on by the arbitrator in deciding the
dispute between the parties that, (i) PW1 did not pray to tender those
documents as exhibits and (ii) the other party i.e., the herein applicant was
not asked to comment whether she has objection or not. What is clear is
that PW1 simply mentioned the document and the arbitrator marked it as
exhibit and appended her signature and date. It is clear that having
marked as exhibit, appended a signature and put the date, the arbitrator,
my view that the words “without objection” were inserted after the words
“it has been received” and after appending a signature and inserting the
That was not proper because the other party was denied right to comment
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When Benard Bakari Lingewe(DW1) was testifying and at the time of
Tanzania Breweries PLC (the Company) and TUICO dated 17th July 2020,
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TBL6 that were admitted in favour of the respondent on one side and
other party right to be heard. There is a litany of case law that a document
Ltd (Civil Appeal 106 of 2019) [2022] TZCA 452, M .S SDV Transam i
Lim ited vs M .S Ste Datco (Civil Appeal 16 of 2011) [2019] TZCA 565,
Transport & Logistics Tanzania Ltd (Rev. Appl 253 of 2022) [2023]
TZHCLD 1280 to mention but a few. In M hubiri’s case (supra), the court
“It is trite law that, a document which is not admitted in evidence cannot be
treated as forming part of the record even if it is found amongst the papers in
the record… Therefore it is clear that the two courts below relied on the
evidence which was not tendered and admitted in evidence as per the
requirement of the law. This omission led to miscarriage of justice because the
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appellant was adjudged on the basis of the evidence which was not properly
admitted in evidence…”
witnesses but were simply admitted as exhibits. In the afore cited cases
It was submitted by counsel for the respondent that the omission did
in the award, the arbitrator considered both exhibit TBL 3 and TBL 6 in
that arbitrator relied on exhibit TBL 6 in holding that the proposed package
collapsed and that applicant did not adduce evidence to the contrary.
It was submitted by counsel for the respondent that the parties have
behalf of the respondent that the parties should not be punished for that
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properly. However, the prayer that proceedings should not be nullified
because that will amount to punish the parties for irregularities caused by
award, the arbitrator did not consider exhibit TBL7. It is also undisputed
that, while proceedings show that exhibit TBL 7 was admitted in favour of
view that, what I have pointed hereinabove, affected integrity of the whole
evidence was illegally added by the arbitrator. It is uncalled practice for the
exhibits were received without objection while they were not. The words
hereinabove, were inserted after the arbitrator has admitted the exhibit
and has signed to show that the exhibit have been admitted. In my view,
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that was done as an afterthought. For that reason, in order to do justice to
the parties and clear doubts, the whole CMA proceedings are liable to be
nullified.
It is undisputed that the dispute was filed and heard under certificate
of urgency. It is also undisputed that, this application was filed and heard
under certificate of urgency and that the parties were not supplied with
typed proceedings. In fact, the parties noted the omissions I have pointed
applicant and respondent could have noted that exhibits were wrongly
For that reason, I will not consider submissions of the parties in relation to
For the fore going, I hereby nullify the whole CMA proceedings,
quash and set aside the award arising therefrom and order trial de novo
before a different arbitrator without delay. Since the dispute was filed
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under certificate of urgency, I director that the same should be accorded
B. E. K. Mganga
JUDGE
presence of Jamal Ngowo and Khaliid Mfaume, the Legal Officer and
B. E. K. Mganga
JUDGE
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