20140827 TZHC Dar es Salaam2

- IN THE HIGH COURT OF TANZANIA , __ ~ -~~~~-~~----~ .. -

LABOUR DMSION ✓

AT DAR ES SALAAM REVISION NO 2770F 2013 ABDALLAH KIDUNDA & ANOTHER.: ........................................... APPLICANT

VERSUS CM CO. LTD ............ ~ ..................................................................RESPONDENT (ORIG/NAU CMN DSM/KINI 957/111926)

JUDGEMENT 15/07/2014 & 27/08/2014 R.M.RWEYEMAMl:t J:• This c~se presents a legal -issue of significance to labour practitioners namely; the import and use of the rule on burden of proof in adjudication of employment termination cases. The rule is embodied ·in Section 15 (6) of the Employment and Labour Relations Act, 6/2004, (ELRA)) which provides that:- "lf in any legal proceedings, an employer fails to produce a written contract or written particulars prescribed in subsection (1 ); the burden of proving or disproving an alleged terms of employment stipulated in subsection ,{1) shall be on employer". • Following is the relevant background· information to this application. The two applicant$-Were employed by the respondent on_ diverse dates on oral contracts - meaning there were no written particulars of their employment. ln2009 they were receiving salaries of Tsh 3,333/= to 3,500/= per day ,respectively. Their employment ended on 7/11/2011 for reasons that were/are controverted. 1 -.,._ _,. .. .. .~~, The applicant and another unsuccessfully referred a ciil(~terrninafion to the Commission for Mediation and Arbitration (CMA). In the clai_m· form, they alleged to have ... "I; ,. been unfairly terminated by the respondent and sought payment for; 12 months salaries as ~· ~-: ,._ compensation for unfair termination; terminal benefits namely; '_ Notice, Accrued leave, Severance and

Overtime. The respondent refuted-the applicants claim and alleged that the applicants terminated themselves as they disappeared (Abscond) from work. Issues framed for determination by the CMA following receipt of parties opening statements were; a), whether the applicant's were, employed on perm.anent contract; if so, b}, whether the applicant's were terminated by the respondent and c) reliefs. In its decision, the CMA dismissed the applicants' claim after deciding that; a) the applicants wer~ .permanent employees because the respondent/employer had failed to prove that they were employed on daily basis; b) but that, the applicants' failed to prove that.they were unfairly terminated as required by section 60 (2) (a} of the Labour Institutions Act 712004.To quote the Arbitrators exact words, - u Sheria imeweka kwamba yule anayedai adhibffishe(he who alleges must prove) na kwa sababu . . · walalamikaji wanadai kuwa waliachishwa kwa mdomo, madai ~mbayo mlalamikiwa ameyapinga, basi jukumu la kudhibitisha liko kwao ... n The applicant$ now seek revision of that decision on grounds that; the Arbitrator's . conclusions that the applicants were not unfairly terminated was irrational, following his finding that the employer had failed to prove fair tern:iination; there was no proof that the · ·applicants absconded; the Arbitrator failed to properly consider the implication

that termination of employment was oral. At the hearing the appltcant was represented by Mr. . Mgombozi, a personal representa,tive. The respondent fail~~ to oppose the application · according to the prescribed procedures, (Rule 24(4) (a)" of the Labour Court Rules, GN 106/2007, consequently, hearing ot the application proceed ,~~~arte. 2 .. . . . ;\ •.r~ ' After careful consideration of facts on CMA record of proceedings including the decision and the applicants' arguments in submission, I conclude that my decision in this . application turns on the issue of burden of proof in employment termination cases,::/' particularly, the import ofSection 15 of the ELRA read together with Section 39 of the ELRA read together with Section 60 of Act 7/2004. I wish to state at the outset that; under our labour laws, the issue of burden of proof depends on what is being proved: a. If the contested issue is fairness of termination, the burden is always on the employer -Section 39 of the ELRA) b. If the contested issue is compliance with requirements of any provisions of labour law, the burden is on a person who has failed to keep a record required by any labour law -Section 15 o_f the ELRA, that burden is. on the employer. c. If the controverted-·issue is contravention of a right or protection conferred by labour law, the person who alleges the contravention has a burden to prove it -Section

60 (2) {a) of Act 7/2004 . · . . / ' In view of the above provisions, I firmly fihd that the Arbitrator's conclusion that the applicants' failed to prove that they were unfairli terminated as required by section 60 (2) (a). The law applicable to the parties dispute is Section 39 of the ELRA which Emoloyment and Labour Relation Act, No. 6 of 2004 (Act) Jrovides clearly that "... in any proceedings I concerning unfair termination of employee by an employer, the employer shall prove that the termination is fair. Since the employer had failed to keep a record of written particulars of employment ' as prescribed under Section 15 (6); the duty to prove that the applicants were employed on daily basi~ and not on permanent terms, and the duty to prove that they absconded and not 3 ........ ' c.' orally terminated was that of the employer. In absence of s~ch records, it is reasonable to believe the applicant's submission that they were(orally terminated. The respondent failed to . provide contracts of -employment to the applicants who they were engaged in a sensitive work, as security guards, detailed information abo6tthe employees and their work was vital. . . ·,, _- . . Because the re,spondent failed to prove that the appUc~nts_absconded, it was the duty of the Arbitrator to find that they were terminated and unfairly .sol because the respondent gave 1 no valid reason for their

termination. In the final result 1 I conclude· that on ·the facts adduced and relevant law, the ·Arbitrator's conclusion was irrational8nd improper. I quash it. In its stead, I order the respondent to pay each of the applicants a sum equal to 12 months salary at the rate applicable to each at the time they stopped working. Further _I order payment of unpaid 1 month-salary as Notice; 1 month- salary as leave;. and severance for the period worked. It is so ordered. R.M Rweyemamu

JUDGE 27/08/2014 Date: 27/08/2014 Coram: Hon. R. M. Rweyemamu,J Applicant: · 2·.Present For Applicant: Respondent: Absent For Respondent: CC: Kaale Court: Judgment delivered this 27/8/2014 in presence of Applicants and absence of Respondent. The parties have a right to appeal. · · Order: Respondents to be served with a copy of judgment. R.M· Rweyemamu

JUDGE .27/08/2014 4 . ·,,'• . ·,.