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.
Court of Appeal building.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.
Justice Stella Mugasha.
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.
Justice Dr. Mary Levira.
“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.
Justice Patricia Fikirini.
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.
Court hammer.
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.