AFRICA SAFARI GLAMPING vs YOHANA ATHUMANI SAID 4 OTHERS

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA LABOUR REVISION NO. 72 OF 2023 AFRICA SAFARI G LAM PIN G ................................COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS YOHANA ATHUMANI SAID & 4 O TH ER S............................... RESPONDENT / DEFENDANT JUDGMENT I. C. MUGETA, J, This application emanates from the decision of the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/ARS/MED/190/20/01/2023. The facts of the case arc that the respondents were employed by the applicant on diverse dates between 1/1/2016 and 8/10/2018 and held different position and worked mainly in respondent’s compound and vegetable garden. On 18/03/2020, the applicant ordered the respondents to stop going to work due to the outbreak of the corona pandemic. From this date and as the pandemic ended, the respondents were not called back to work nor were given termination letters as the applicant identifies them as casual labourers. It is undisputed that they worked without employment contracts. The respondents successful filed an application before CMA praying for reinstatement, and payments of salaries under the provision of Section 37 (2)(c) of the Employment and Labour Relations Act Cap. 366. The CMA found that the respondents were not terminated from employment but were stopped from attending work due to Corana pandemic. However, sincc they were not reinstated after the situation normalized they are deemed to have been terminated. For that reason, the CMA held that they ought to be paid a 12 months compensation in lieu of reinstatement, one month’s salary in lieu of termination letter, severance allowance, unpaid salaries for days worked without salary and and service certificate. The Applicant was dissatisfied with the decision, hence, this application for the court to consider the following matters: 1. Whether it was proper for the Honourable Mediator o f the Commission fo r Mediation and Arbitration to pronounce judgment and order award while the issue fram ed were not established. 2. Whether the Commission fo r Mediation and Arbitration was proper to order reinstatement, payment o f twelve-month salaries and notice as per Regulation, and while Respondents never compromised with Ride .... o f the G.N 64 regulating the unfair termination. 3. The trial Honourable Mediator failed to observe and violated basic principle o f giving reason for decision (ratio decidindii (sic)) while compiling its judgment in the due process o f the law. 4. The trial Honourable Mediator failed to scrutinize evidences adduced during the hearing o f the matter and reached to unjust decision hence this application. The application was heard by oral submissions. The applicant was represented by Mr. Kessy Ngau, learned Advocate, whereas the respondents were represented by Mr. Lawrence Mollel, from CHODAWU. As the grounds of complaint are somewhat unclear, I shall consider them jointly under one issue whether the CMA was right to decide in favour o f the respondents. In doing so, I shall be guided by the arguments of counsel for the appellant in his oral submissions. Mr. Kessy Ngau, adopted an affidavit to form part of his submission. According to him, the decision of the CMA has illegalities because the CMA agreed that the framed issue of whether the respondents were terminated was answered in the negative but proceeded to decide in the respondent’s favour which is illegal. I agree with Mr. Mgau that the CMA answered the issue in the negative. I also agree with him that despite the negative answer, the CMA ordered their reinstatement which resulted into orders of compensation. However, I do not agree with him that such action was illegal. In my view the CMA took a view, and I think rightly so, that as the respondents were stopped from working for valid reasons, that cannot be termed as termination. However, they were constructively terminated when the situation normalized but they were not called back. Therefore, the CMA was justified to find there was no termination except for failure to reinstate which amounts to constructive termination. Compensation in lieu of reinstatement was ordered because the evidence on record shows that their vacancy has been filled up by other people. The complaint has no merits. One of the applicant's witnesses Mr. Patrick Salum (DW1) testified that the respondents were offered to be reinsasted by rejected the offer. Unfortunately, this evidence came in defence. It was not put to the respondents prior to hearing nor it was intimated to them during cross examination to hear their side of the story. I consider it as an afterthought. Mr. Ngau also submitted that the CMA did not give reasons for its decision which make its orders against the applicant to be arbitrary considering the holding that there was no termination. Unfortunately, this argument was not expounded. In response, the respondents’ representative did not also make meaningful reply. It is the same with other complaint above. It is my view that the CMA decision may be missing some clarity but reasons for the decision are there. The CMA held that there was no termination because there were no termination letters. CMA also held thatthe applicant alleged that the respondents were sent on leave without pay after proper consultation but there is no such evidence from the applicant nor did the applicant provide evidence that such long leave was paid for after the business recovered. This complaint has no merits. Going by the evidence on record, I find no reason or justification to fault the decision o f CMA. It is hereby upheld. This application is without merits. I dismiss it. Each party to bear own costs as this is a labour matter. Dated at ARUSHA ZONE this 21st o f October 2024. I. C. MUGETA, J JUDGE OF THE HIGH COURT