abdnego swamila vs masasi construction coltd 2020 tzhcld 3859 4 march 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM REVISION APPLICATION NO. 382 OF 2020

BETWEEN ABEDNENGO SWA MI LA......................................................... APPLICANT

VERSUS

MASASI CONSTRUCTION Date of Last Hearing: 02/12/20. Date ofJudgment: 04/03/2022 I, ARUFANI, J. The applicant filed the instant application in this court to challenge the decision of the Commission for Mediation and Arbitration (CMA) in CMA/DSM/ILA/950/2019 delivered on 19/08/2020 by Hon. Abdallah, M, Arbitrator. The record shows that the applicant had several employment contracts with the respondent which commenced from 1987. The last contract between the parties which is the gist of the application at hand started on 01/11/2011 and it was for unspecified period of time. On 01/12/2019 the applicant was terminated from his employment. i Having been aggrieved by the termination the applicant referred the dispute to the CMA praying for unpaid severance allowance and leave allowance. After considering the evidence from both sides the Arbitrator dismissed the applicant's claims on ground that the applicant failed to substantiate the same. Upon being aggrieved by the CMA award the applicant filed the present IBr application in this court basing on the following grounds:- /. That the honourable Arbitrator erred in law and facts by refusing to award benefits prayed for within the applicant's referral form. > //. That the Honourable Arbitrator erred in law and facts by holding that the applicant was not entitled to be paid severance pay for the reason of retirement age Hi. That the

Arbitrator made a finding generally that the termination procedures were not followed without going into detail of each procedure and no document was tendered to show that before the termination the applicant was paid any benefit. iv. That the applicant is aggrieved by the award of the Commission hence this application. When the application came for hearing the applicant was represented by Mr. Saulo Kusakalah, Learned Advocate and the respondent was represented by Mr. Sammy Katerega, Personal 2 Representative. The court directed the parties' representatives to argue the application by way of written submission and I commend them for complying with the schedule given by the court. The counsel for the applicant consolidated the above grounds and argued them together in the issue which states, whether the Honourable arbitrator was correct to decide that termination of employment of the applicant was fair. The counsel for the applicant % argued that, according to section 39 of the Employment and Labour Relations Act, [CAP 366 RE 2019] (ELRA) the duty to prove fairness of termination of employment of an employee lies to the employer. He stated that, in this case the respondent being the employer had an obligation to prove that the applicant's termination was both substantively and procedurally fair. The counsel submitted that in his opening statement at the CMA the respondent stated

that he terminated the applicant from his employment on the reason of operational requirement as indicated at page 2 of the opening statement. He argued that, termination of employment on operational requirement is governed by section 38 of the ELRA. He added that, the termination procedures on the ground 3 of retrenchment are provided under Rule 23 of the Employment and Labour Relations (Code of Good Practice) Rules, GN. No. 42 of 2007. Mr. Kusakalah further argued that contrary to what is stated in the respondents opening statement, during trial of the matter the respondent's witness testified that the applicant retired on ground of age. He argued that the stated contradiction lowers credibility of the said witness. The learned counsel went on arguing that, the normal retirement age is 60 years unless there is agreement between the parties. He argued that since the applicant continued to work even after attaining the age of retirement the respondent was required to ...JI terminate him from his employment by following normal termination procedures as provided under Rule 5 (5) of GN. No. 42 of 2007. Mr. Kusakalah submitted that, in the case at hand there was no agreement of termination neither by retirement nor retrenchment as <&, ’'5 alleged by the respondent. He insisted that the respondent had the obligation to follow retrenchment procedures. In his conclusion he stated that

the applicant's termination was unfair both substantively and procedurally and urged the court to quash the CMA's award and grant the applicant the reliefs claimed in the referral form. 4 Responding to the submission by the counsel for the applicant Mr. Katerega contended that, the issue framed and submitted by the applicants counsel is a new issue which was not the aim of the revision at hand. He stated that the basis of the application at hand is non payment of terminal or retirement benefits as deposed in the applicants affidavit supporting the application. He further submitted that, the evidence and exhibits produced at the CMA based on the claim of unpaid benefits and rights which on his view were correctly analysed by the Arbitrator. He added that the applicant did not complain about substantive and procedural unfairness of termination of his employment in the CMA Fl as his claim was only about payment of severance allowance and annual leave which he alleged were not paid to him As for the merit of the application, Mr. Katerega submitted that, the applicant attained compulsory retirement age of 60 years in the Agfc - * year 2012 therefore in the circumstance there was valid termination on 2019 since he was of 67 years of age. He stated that the parties had prior discussion which led to the service of notice of termination and the termination of employment. 5 Mr. Katerega

went on to submit that, in his CMA Fl the applicant had only two claims being payment of the unpaid severance allowance and unpaid annual leave. He stated that during the trial at the CMA the applicant added the list of his claims and the Arbitrator fairly considered them and determined them accordingly. He added that, the claim of overtime was not proved and was out of time. Regarding the claim of severance allowance Mr. Katerega submitted that the applicant was not awarded the same because he attained the compulsory retirement age hence, he was not entitled to the same pursuant to section 42 (2) (c) of the ELRA. He urged the court to dismiss the application for lack of merit. After considering the rival submissions from the parties the ' ' • •• court has found it is called upon to determine the following issues; firstly, whether the issue of correctness of the Arbitrator to decide termination of employment of the applicant was fair is a new issue ’W. . ' out of the issues aimed in the revision at hand; secondly, whether the applicant was fairly terminated from his employment both substantively and procedurally and thirdly, to what reliefs are the parties entitled. 6 I will start with the first issue which emanates from the issue framed by the counsel for the applicant after consolidating the four issues raised in the affidavit of the applicant. The court has considered the

argument by Mr. Katerega that the said issue is a new issue which was not aimed for the revision at hand but failed to agree with his argument. The court has arrived to the above finding after seeing that, the issues raised in the affidavit of the applicant for determination in the matter at hand and the impugned award shows the basis of the revision at hand is to see whether the arbitrator was right or erred in finding termination of employment of the applicant was fair to the extent of refusing to grant what the applicant was seeking before the CMA. The court has found that, the basis of the Arbitrator to refuse to ... grant the applicant the reliefs he was claiming in the referral form together with the reliefs he added during hearing of the matter which is the gist of the first, second and third issues raised in the affidavit of the applicant is that the Arbitrator found termination of employment was both substantively and procedurally fair. The court has also found that, it is true that the applicant was claiming for unpaid severance allowance and unpaid annual leave in the CMA Fl and 7 there is nowhere in the said referral form is indicated the applicant was alleging termination of his employment was unfair. However, the court has found that, among the issues framed for determination of the matter by the CMA were whether termination of employment of the applicant was fair

substantively and procedurally. That can be seeing in the second and third issues frmaed by the CMA which states that; (2) Endapo kulikuwa na sababu za msingi; and (3) Endapo utaratibu ulifuatwa (literally means; (2) whether there was fair reason and (3) whether procedure was followed). The court has also found the said issues were dealt with and determined by the CMA as appearing at pages seven, eight and nine of the impugned award. That being the position of the matter the court has found it cannot be said the consolidated issue argued JI by the counsel for the applicant is a new issue which is not the aim of the revision at hand. Coming to the second issue which states whether the applicant was fairly terminated from his employment both substantively and procedurally, the Arbitrator found the termination of employment of the applicant in the case at hand was fairly terminated on the ground of retirement by age. The Arbitrator stated that was automatic 8 termination pursuant to Rule 3 (2) (a) of GN No. 42 of 2007. I have carefully gone through the record of the matter and find the termination letter served to the applicant shows the applicant was terminated from his employment due to insufficiency of work at the respondent's company. For easy of reference, I hereunder reproduce the relevant part of the words of the termination letter: - "Tunapenda kukujuHsha kuwa, kuanzia leo

tarehe 01/12/2019 tunakuachisha kazi uliyokuwa unafanya kama FOREMAN kutokana na upungufu wa kazi hiyo." As stated in the above clause, the reason of age retirement I ■ : alleged by the respondent was the reason for terminating employment of the applicant was not stated in the termination letter. The allegation that the applicant was terminated by reason of age was raised by the respondent's witness during trial but it is not backed up with any evidence. The evidence in the record of the matter shows, the applicant was terminated from his employment due to the operational requirement and not otherwise. As rightly argued by the counsel for the applicant, the termination procedures on the ground of operational requirement or retrenchment are provided under section 38 of the ELRA reading 9 together with Rule 23 and 24 of the GN. No. 42 of 2007. The above cited provisions of the law requires the employer to consult with their employees and agreed on how the reason caused retrenchment of the employees should be handled and how the employees should be paid. Looking into the matter at hand the court has found the procedures provided in the above cited provisions of the law were not followed and the respondent did not prove that there was insufficiency of work in the applicant's position. That makes the court to find termination of the applicant was both substantively and % M

' procedurally unfair. The court has considered the argument by the respondent's representative that the respondent consulted with the applicant about their proposal of terminating his employment and after the said consultation they agreed to terminate the contract of employment of the applicant on the reason of age but find that, as rightly found by the Arbitrator there is no evidence adduced before the CMA to prove existence of the alleged consultation and agreement by the parties. In the premises, the court has found there is no any other option than to rely on the evidence on the record which show there was no io fair and valid reason which was proved for termination of employment of the applicant. Coming to the third issue which states what reliefs are the parties entitled, the court has found that, as stated earlier the applicant prayed for payment of severance allowance, unpaid leave, JI % % overtime for seven years, extra duty and NSSF. He did not claim compensation for unfair termination of hie employment. However, despite the fact that he did not claim for the said compensation but the court has found that, as it was proved he was unfairly terminated from employment, he is entitled under section 40 (1) (c) of the ELRA a remedy of compensation for the stated unfair termination of his S - employment. % % As termination of employment of the applicant has been found was

both substantively and procedurally unfair, the court has found he is entitled to a compensation of twelve months remuneration provided in the above referred provision of the law. The applicant also prayed for severance allowance and unpaid annual leave. The court has found that, as the letter of termination of his employment admitted in the matter as exhibit MC4 states he would be entitled to the said reliefs the court is directing the same be paid to him if he 11 has not been paid. As for the claims of overtime, extra duty for seven years and NSSF payment the court has found that, as rightly found by the Arbitrator they were not proved to the extent of being granted. Consequently, the court has found the application of the applicant deserve to be partly granted. Therefore, the award of the CMA is hereby revised, set aside and altered to the extent stated hereinabove. As exhibit MCI shows the salary of the applicant was Tshs. 200,000/= he is awarded Tshs. 2,400,000/= being twelve months salaries compensation for unfair termination of his employment. The applicant is also entitled to be paid severance pay z and unpaid leave as stated in the letter of terminating his employment (exhibit MC4) if he has not been paid the same. It is so ordered )ated at Dar es Salaam this 04th day of March, 2022. I. Arufani

JUDGE 04/03/2022 12 Court: Judgment delivered today 04th day of March, 2022 in the absence of the applicant but in the presence of Kanthan John, Legal Officer from the office of the advocate for the applicant and in the presence of Mr. Sammy Katerega, Personal Representative for the Respondent. Right of appeal to the Court of Appeal is fully explained. 13