pauli shao ja african a guest house vs neema gabriel maiko 2021 tzhc 6892 29 october 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MOSHI AT MOSHI LABOUR REVISION APPLICATION NO. 16 OF 2021 (C/F LABOUR DISPUTE REF. NO. CMA/KLM/MOS/ABB/08/2021 AT CMA KILIMANJARO MOSHI) PAULI SHAO J/A AFRICANA GUEST HOUSE............................................APPLICANT VERSUS NEEMA GABRIEL MAIKO...................................... RESPONDENT JUDGEMENT 31 /8/2021 , & 29 / 10/2021 MWENEMPAZI, J The applicant employed the respondent at his business premises where he trades as Africana guest House. In their agreement, the respondent was working for a monthly Salary of Tshs. 90,000/=. The respondent had worked for six (6) months and was paid only Tshs. 150,000/=. She was claiming Tshs. 450,000/=. As the applicant had refused adamantly to pay the remainder of the money claimed by the respondent, the respondent complained at the CMA. i Mediation was conducted by Hon. R. Massawe on the 9/2/2021 and it was not successful. The dispute had to be taken for the arbitration before Hon. G.P. Migire, arbitrator. Upon hearing of the dispute whereby the respondent testified alone in support of her case and the applicant testified as DW1 together with Monica Marco DW2, it was confirmed that the testimony by the respondent was truthful. The claims by the respondent were genuine and she has money still owed by the applicant to her which were supposed to be paid by the applicant. However, the CMA after reviewing the law on payment of wages, Labour Institutions Wage Order, 2013, GN. No. 196/2013, for a worker in the Guest Houses the respondent was supposed to be earning a Salary of Tshs. 130,000/=. Not Tshs. 90,000/= as agreed. For a period of six months, the respondent was supposed to be paid Tshs. 780,000/=. If we deduct the already paid sum of money (Salary) Tshs. 150,000/= the applicant still owes the respondent Tshs. 630,000/=. The arbitrator in his wisdom found, in addition to the money owed by the applicant to the respondent, that the defence in the application was unnecessary thus frivolous and or veracious. He decided to charge the respondent Tshs. 1,000,000/= under the provisions of Section 88(8) of the Employment and Labour Relations Act, Cap. 336. The said provisions read. "An arbitrator may make any appropriate award but may not make any order for costs unless a party or a person representing a party acted in a frivolous or vexatious manner." In the award, the arbitrator before issuing an order for payment of Tshs. 1,000,000/= commented as follows, I quote; "Kwa kuwa mlalamikiwa hakulipa Mshahara kwa kipindi chote tokea kesi ikiwa hatua za usuluhishi mpaka sasa iko hatua ya arbitration, hivyo amesababisha gharama na usumbufu. Pia mlalamikiwa ameonyesha tabia ya dharau kwa tume kwa namna aiivyo kuwa anabishana na kumfokea muamuzi akiwa kwenye kiti. Hivyo anatakiwa kulipa gharama kiasi cha Tshs. 1,000,000/= kwa mujibu wa kifungu cha 88(8) cha sharia, Cap. 366 RE 2019, kama Hivyorekebiwa." The respondent in her submission has submitted that this is not relevant to her case and this she could not comment as to whether it was right or an error. General observation shows that the testimony of the applicant in a way confirmed that he owed money to the respondent but he was just adamant to pay the respondent. The applicant in his testimony, shows to have paid only the December, 2020 salary to the respondent. It is the respondent who added the other Tshs. 60,000/=. Very unfortunate, the applicant, though was recording the payments for salaries to his employee, he could not justify payments made to the respondent for other months. As to the payment of Tshs. 1,000,000/= I do agree to the submission by the responden as the situation was best perceived by the arbitrator during the proceedings. Thus, I found no valid reasons to interfere with the same. 3 Under the circumstances and for the reasons, the application has no merit and is accordingly dismissed. It is ordered. Dated and delivered at Moshi this 29th October, 2021. T.M. MWENEMPAZI JUDGE Judgement delivered in the presence of the applicant and the respondent and her personal representative, Mr. Batista Kitevu. T.M. MWENEMPAZI JUDGE 4