abel kikoti others vs tropical contractors ltd 2020 tzhcld 76 20 april 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 305 OF 2019 ABEL KIKOTI AND 5 OTHERS............................. APPLICANTS VERSUS TROPICAL CONTRACTORS LTD.......................... RESPONDENT JUDGMENT Date o f last Order: 16/03/2020 Date o f Judgment: 20/04/2020 Z.G.Muruke, J. Abel Kikoti and six others were employed by respondent on different dates, though were both terminated on 10th August, 2015. They were dissatisfied, them filed dispute at the Commission for Mediation and Arbitration (CMA), for it to determine (i) type of the contract, (ii) whether termination was fair (iii) reliefs. After having both parties, honourable arbitrator were satisfied that applicant were causal labourers therefore not covered by Section 37 of Employment and Labour Relations Act No. 6/2004. Thus ordered, respondent to pay each of them, four days salary as notice in terms of Section 39 Employment and Labour Relations Act (ELRA). Applicants were dissatisfied, thus preferred present revision. While being represented by Mr. Sammy Katerega personal representative, argued that; (i) Arbitrator erred by overlooking the evidence that procedure before the commission for Mediation and Arbitration in regard to their contract thus arrived at wrong condition . (ii) Terms of contract were construed to be specific tusk instead of unspecified period. (iii) Applicants had no direct relationship with TPCC, thus TPCC and respondent contract has nothing to do with applicant. (iv) Respondent failed to prove that, the applicant who were engaged in 2008 were employment because of TPCC contract with respondent dated 01/04/2014. (v) Arbitrator ignored the duty of the respondent (Employer) to keep records of Employees, as applicant were being paid through bank on monthly basis. (vi) Respondent failed to produce evidence for applicant to be regarded as casual labourers, more so, there is no reasons for respondent to retain applicant salaries if were daily labourers, while salaries were paid monthly in terms of exhibit AK/02. (vii) Respondent has failed to produce evidence live, attendance and payroll to prove that applicants were daily employees. In totality Mr. Sammy Katerega, applicants personal representative, insisted that arbitrator had wrongly applied the principals in Revision number 154/2010 Msambwe Shamte and 64 others Vs. Care Sanitation and Supplies, because in this case respondent has failed to prove fairness of termination in terms of Section 37 of employment and Labour Relations Act, Act No. 6/2004. Respondent being represented by Loi Sehemba learned advocate apart from adopting counter affidavit sworn, by Rose Mgallah, she submitted that; (i) Applicants were employed and paid per days worked and not for unspecified period of time. They were given identity card for them to enter the factory, and not that they were permanently employed. (ii) Contract for outsourced services from TPCC to the respondent was based on tender process effected after every specific time according to the client's needs (TPCC). Thus employment between the applicant and respondent depended on the availability of the contract between the respondent and TPCC. (iii) There was no uniformity on the salary as depended on days worked in terms of evidence of both sides. DW1 evidence and Bank Statement tendered prove the same. Applicant were daily worker being paid on daily basis but were accumulating and paid twice in a month. (iv) Respondent counsel referred this court case of Idd Pazi & 128 others Vs. SSB & Limited revision number 2312015 in which applicants worked for 27 years as causal labourers being paid on daily basis, regardless of the number of years. (v) Evidence were properly evaluated. Applicant were daily worker paid 6,000 Tshs, contract ended when day ends. Records cannot be kept on those basis, as when the day end, contract end, next morning is another day with it's contract. Thus, 3 section 38 of ELRA 6/2004 not applicable referring this court case of Omari Makere & 20 Others Vs. Ms Shiping Freight Consultancy Revision No. 6/2008, and Group Six International Vs. Musa Maulid & another revision number 128/2015. In totality respondent argued this court to dismiss revision for lack of merits. In rejoinder, applicant representative insisted that; (i) Applicant were given identity card, (ii) Salary was being paid at the end of the months (iii) Isa Chakupewa (5th applicant) was being paidsalary since 2013, no evidence brought, to refute. (iv) Applicant employment with respondent were ofpermanent terms, therefore procedure for termination not correct. Having heard both parties submission, it worth defining typed of employment contract to be able to apprehend the facts of this case, and grade them accordingly. The law recognizes three types of employment contract: Firstly, a contract for an unspecified period of time, which means that the contract does not specify the date when the contract comes to an end. This kind of a contract is a long-term contract which may be terminated upon statutory notice of termination or retirement as the case may be. Secondly, another category of contract is for a specified period which is for professionals and managerial cadre. As distinct from unspecified time contracts, specific time contracts have an expiry date on which case the contract ends immediately after the expiry of the contract period although the parties may enter into new contracts. The third type of contract is the contract for a specific task which means once the task is performed the contract ends. It should be noted, however, that although all three types of contract may be oral or written, the law requires that if the contract requires the employee to work outside the United Republic of Tanzania, it must be in writing. Before grading case at hand, lets visit evidence of both applicants and respondent at CMA. Emanuel Mhecha DW1, testified at page 4 of typed proceeds that, S: Unawahafamu walalamikaji, mfumo wao wa ajira ulikuaje. 3: Sisi tunapokea taarifa kuwa clients wanahitaji watu. Sisi kazi yetu ni kutafuta vijana na kuwakabidhi TPCC ambapo wao ndiyo wanawapangia kazi. Lakini kipindi wanakabidhiwa TPCC wanakuwa wameshaambiwa kuwa ninyi mnaenda kufanya kazi za malipo kwa siku kwa sababu sisi tropical ndiyo tunaowalipa wanapokuwa huko. S: Malipo yao wanalipwaje? J: Hawa kuna walianza na rate ya 3200 ikaja 5000 na baadae 6000 ambapo walilipa mpaka wakiwa wanaondoka na zinatofautiana kulingana na terms za mkataba kati ya tropical contractors na Twiga Cement- kwa sababu wanalipwa kwa siku. Vibarua waliomba zile pesa ziwe accumulated wawe wanalipwa kwa mwezi, katikati ya mwezi (Advance) mwisho wa mwezi inamaliziwa amefanya kazi. Kunasiku hawaji kazni hawalipwi, malipo yanakuwa counted siku ambazo mtu amefanya kazi." 5 The above evidence in chief has not been shaken by applicants even during cross examination. On further account evidence of applicants, while being cross examined, PW1 Meshack Lucas who gave evidence on behalf of his six applicants is quoted to have replied at page 18 of CMA typed proceedings as follows:- Mimi na mwenzangu moja vitambulisho vyetu tulinyang'anywa. Hao wengine vitambulisho vyao vilkuwa vinawaeleza kama casual laborer. Sisi tunalipwa mshahara na tropical na mmiliki wa kiwandani Tropical contractors Ltd. Akili yangu yote najua tropical contractors ndiyo mmiliki. Mimi sijui maana ya casual laborer naomba nifahamishwe. Sisi tulikuwa tunakitumia kitambulisho kuingia na kutoka kazini. Hatujui maana ya casual labour. Hakuna nguvu iliyotumika katika kuvichukua vitambulisho vyetu. Bank Statement nimetoa ya watu wanne. Zile zingine zilizuiliwa bank lakini sina ushahidi juu ya hilo. Sina uelewa juu ya Bank Statement, kama kuna mtaalamu wa mambo haya anaweza kutusaidia. From the quoted evidence of DW1 Meshack Lucas, the only witness for the applicants and DW1 Emmanuel Mhecha, it is cristal clear employee of daily task.(specific task). All the evidence adduced proved that, applicants used to work for the respondent for the specific task. They were being paid once employment relationship ends at the completion of task given. Thus, applicants are not covered under the unfair termination provisions. Equally applicants cannot claim compensation under Section 6 40(l)(c) of the Employment and Labour Relations Act (ELRA) because they are not covered under unfair termination. The position was as correctly submitted by Loi Sehemba respondent counsel in the case of Group Six Inernational Vs. Musa Maulid & another, Revision No. 428/2015 where Nyerere, J held that: "Basically the law does not provide that if an employee worked for a long period of time under one kind of the employment contract it automatically changed the kind of the employment relationship, changed from a contract for a specific task to a contract of an unspecified period of time." The same position was also discussed in the case of Mtambua Shamte and 64 others Vs. Care Sanitation and Suppliers where Rweyemamu, J held at page 8 that, now, principles of unfair termination under the Act, do not apply to specific task or fixed term contract which come to an end on the specified time or completion of a specific task. Under the latter, such principles apply under conditions specified under Section 36(a)(iii) read together with Rule 4(4) o the Code. From the evidence of DW1 and DW1 there is no doubt that, applicants were under specific task of which contract once task is completed and payments is done accordingly. Legally agreement between applicant and respondent to consolidate daily payment at mid and end of the month does not change the status of the specific task contract. 7 I therefore confirm the arbitrator findings and award of four days wages to each applicant as notice pay for employer's failure to issue a prior notice before terminated their employment contract. Thus, Commission for Mediation and Arbitration decision and award is upheld. Application, for revision is dismissed for lack of merits. Z.G.M^. JUDGE 20/04/2020 Judgment delivered in the presence of Sammy Katerega applicant's personal representative and in the presence of Ramadhani Msangi, Human Resource Officer, of the respondent. Z. G. Muruke JUDGE 20/04/2020 8