20140917 TZHC Dar es Salaam

'i IN THE HIGH COURT ·oF TANZANIA

LABOUR DIVISION r

AT DAR ES SALAAM i I i REVISION NO.19.3 OF 2013 lI I\ i ISSA ALLY MASUKUZI & 169 OTHERS ........... .. 1

VERSUS I l TAKOPA CONSTRUCTION CO. LTD ........... . I .... '¥iisr RESPONDENT SUMA JKT ••••••••••••••••••••••••••••••••••••••• I ... 2ND RESPONDENT SHINWOO & CHUNGMOO CO • ....... 3RD RESPONDENT (Original/ ~1 ·UDGEMENT ·-i~ 1· 'plication is made ~nder section 91 (1) and (2) of I the , ent and Labour Relations Act, No.6 of 2004 which will be referred as the Act in this Ju8gement and Rules 24 (1), (2) I (d) and Rule 28 (1) & (2) of the Labour Court Rules, GN.106 of 2007 and any other enabling proviton of the law. The applicant calls upon this court to revise th~ proceedings and arbitration 1 award passed by the Commission for Mediation and Arbitration (herein the CMA) with reference number CMA/DSM/KIN/803/2010 by Hon. Massay, Arbitrator on 21 st May, 2012 on two grounds as reflected in paragraphs 2 and 3 of the affidavit in support of the Chamber Summons, that; ti 1. The award of terminal benefits was p -, er ? uti4 'jjr;• it was improper for the Arbitrator to. orde :spondent to pay the applicants instead of the . ·:QsJent.

2. That, the testimony of the ··: was not recorded properly. That the ifj,i r: _. is the one who is supposed to pay the a) -lican Shortly are the of the rnatter. The applicants were employees of th ent on a contract for a specific task. nd The 1st ~- a Joint venture company with the 2 and r road construction from Bagamoyo to Msata. employment was· terminated by a letter of hich was effectively from 8/1/2010 on the basis of operation requirements of the employer. The applicants filed a dispute for unfair termination at the CMA and claiming to be paid their terminal benefits. The CMA decided that the termination claim of compensation of 12 months' salary for unfair termination 2 . i had no basis because the 1st respondent's contract with TANROADS was rescinded thus the ,1 st respondent under normal circumstances could not continue employing the applicants. He ordered the 1st respondent to pay the applicants all their entitlements according to Section 44 of the _Act, peing leave payment, severance payment, notice and rervice. The applicants came to this court prayi revise the decision and order the 2nd respond , the applicants as per the CMA award. The hearing proceed ".., cause the respondent Im defaulted appearance. The ~ti were represented by Mr. Haonga, personal re .. ~ Mr. Haonga · ~·· ·of the application submitted that the applican yea by the 1st respondent, a joint

venture y the 2nd and 3rd respondents. He submitted th ~ tants' employment came to an end when TA rescinded the contract with the 1st respondent. He said the 3rd respondent is a company incorporated abroad and to date the applicants are not paid their entitlements, therefore the second respondent as one of the founders of the 1st respondent is the one responsible to pay the applicants. He contended that the 3 . !i Ii Arbitrator misdirected himself to order the 1st respondent to pay I I; i: nd Ii the applicants instead of the 2 resp~ndent. He finally prayed for l ,I nd the court to order the 2 respondbnt (SUMA JKT) to pay the 11 applicants as provided under Sectio~ 44 of the Act and per the CMA award. Having gone through the r~cords submission with eyes of caution, I I ft , · the a plicants are I disputing as to who has to pay theirllentl 1 · ~;~' as per the CMA I award. In his decision the Ar,~ ate / the 1st respondent as an employer is the one le ally~ applicants and ord '" •~, :~ under the law to pay the the sa'1he to pay the applicants accordingly. Hes · '\. of thJ typed award first paragraph, n record whifh shows that the applicants e 2nd responderlt. i -nder section 44 (1) aTd (2) provides clear that; " : ' termination of employm~nt, an employer shall pay an ,, employee- (a) any remuneration for work rone before the termination; (b) any annual leave pay due t1 an employee

under section 31 for leave that the employre has not taken; ( c) any annual leave pay accru~d during any incomplete !I· 4 leave cycle determined in accordance with section 31(1); (d) any notice pay due under section 41(5); and (c) any severance pay due under section 42; (f) any transport allowance that may be due under section 43. I (2) On termination, the employer shall iss , a prescribed certificate of service. ! It is clear from the above provision th;. ;tmination of employment an employer is requir~d t employee the terminal benefits as illustrated abo ~.it prudent to define who is an employer and wh :s \, According to section 4 of th player means, I quote; ''employer'' including the an executive agency, who ployee." I n an employee means, I quote; I "e ,•loy eans an individual who- (a) ha littered into a contract of employment; or (b) has entered into any other contract under which- (i) the individual undertake~ to work personally for the other party to the contract; and (ii) the other party is not a client or customer of any 5 ,f I · I· 1 profession, business, or undertaking carried on by .I the individual; or ·f · ( c) is deemed to be an employ~e by the Minister under section 98(3); I1 . , Looking the records, it is not in rispute that t. applicants entered in to a contract of employ~ent wit: , ,. e 1~ who is an employer in terms of the ~bov ovisio ·,~~Ac ording to ,r '

~"tt the law, that is The Companies ·IIA · ;11. 112 R.E 2002) :I l~, ~~41 under Section 15, the 1st respon ~ - , a legal personality, being the Registered comp cooperate body with capacity to sue and be su .· . Sin ,,,, .:J e applicants entered in to "'.tW" tr, ·II contract with the 1st res ·, nd "ti-,,,il!9ording to the law, section 44 of the Act the 1st re§~ nt as a~; employer is the one legally required to -licants a~ correctly decided by the I J 1! I I; _<l , I would have hel~ otherwise if the applicants efore the court th~t the 1st respondent is a !I liquidate·· company. As long as it stfll exists the applicants should · make follow-up of their entitlemenJ through the right channel to II execute the Decree as per the CMA award. I ; 6 I! . In the circumstances I find no reason to fault the Arbitrator's award basing on the records befo~e the court. In the result application is dismissed accordingly. f I It is so ordered. I I I.D.ABOUD ,_ I JUDGE!, 17/09/2 1 7 • Date: 17/9/2014 Coram: Hon. I.D.Aboud,J Applicant: Issa Ally Masukuzi For Applicant Respondent: }Absent For Respondent: CC: G. Mushi Order: Ruling delivered on 17/9/"'.. ITTe presence of Mr. Issa Ally Masukuzi, 1st ··ffe Applicants and the Respondents are absent. . I _· I.D.Aboud I JUDGE: 11,0912J14 8