agness nkwabi andanother vs ngeme maghembe 2021 tzhcld 7 26 february 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 580 OF 2019 AGNESS NKWABI AND ANOTHER APPLICANT VERSUS NGEME MAGEMBE RESPONDENT JUDGMENT Date of last Order: 22/02/2021 Date ofJudgment: 26/02/2021 Z.G.MurukeJ, Agness Nkwabi and Devota KelwFwere employed by Ngeme Magembe on 14th Septemberj2013^ahd^ March, 2014 respectively. They were terminated on 8th January, 2017 without any written notice. Being dissatisfied they filedjdispi^^tj>CMA on 30th January, 2017 claiming for. (1) in lieu of notice (2) Leavekpay one month salary <»3) Compensation of 12 months' salary (4WxCertificate of service. In her defense, Ngeme Magembe totally denied to have known applicants. She admitted to have contract with ABC school to prepare food for the student, but denied to have employed applicants. Agness Nkwabi testified as PW1 while Devotha Kelvin testified as PW2. i The two applicants, brought Muhidini Abida PW 3, who testified that he was member of Serikali ya Mtaa Mongola Ndege, in the cause of dispute he called respondent upon receiving complaints from applicant. Respondent came, but, refused to pay applicant. Equally, Janeth Joseph Mbonde PW4, a security office at ABC schools testified that, she was being given food by the applicants who were working with respondent as their boss. Further, that they used to sign in the securif^DQok tcn^Ejve that they have entered school premises and left at the>eyening upqp signing for security purpose. Both witness from PW1 tc^|PW4^id not prove that applicants were employed by the respondenWiow^ver, DW1 respondent herself admitted to have employed other^pebpk^jthout any contract and records. She said she was payi^'ther^ on® they finished their work that is being paid upon completion oTtheir daily^work. The issue for determination is whether employer employee relationship existed. Before^ansvyering, it necessary to explain in brief on contract of employr^tftb?^^ Relations Act, Act No. 6/2004 has not defined ^n^®m’|^0yment contract is. However, it is important to note that^he em^oyment contract forms the basis of the relationship between the employer and employees. This relationship was historically referred to as a 'master' and his 'servant'. The employment contract is based on the ordinary law of contract and so the same requirements as to agreement, consideration and intention apply. 2 Formation of contract of employment is governed by the general principles of the law of contract, that Is, must comply with the requirements of offer, acceptance, consideration intention to create legal relations and must be free from vitiating factors such as illegality. In general no special formalities are required for entering into a contract of employment, it might be written, or oral. Both are legal .bindjpBagreement. A written contract of employment is preferable^© anxoral one because of two main reasons. First, it is able to?incorporate®most of the terms that are necessary to define the rights aft^b^gtipns of the parties unlike an oral contract where most of the<termsjhave to be implied by the In a dispute as to whether the^e is a conpgct of employment or not, it is easily resolved by producing the written Agreement itself. The law recognizeswree types of employment contract: One, 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^afcng^erm^contract which may be terminated upon statutory notice ot^OT^^Mon or retirement as the case may be. Two, another category ofCggtract is for a specified period which is for professionals and manageriakcadre. 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 3 written, the law requires that if the contract requires the employee to work outside the United Republic of Tanzania, it must be in' writing. However, although the law permits domestic contracts to be oral, it obliges employers to keep written records of the particulars of their employees and some terms and conditions regarding their employment. The employer is obliged to keep a written recorcF ortne personal । , । . . .. . . employees personal details such as name, age, permanent address and sex of the employee. The employer is obliged to give the employee a copy of these written particulars. According to Sewn S5^)(a) Employment and Labour Relations Act, the employer is^^b^ed^o write other details such as place of recruitment, job descripHdn, datejof commencement, form and duration of the contract andthe plaseoSwork. The details enable the employee to know the categoryWthe|employment contract, i.e. for a specified time period, an ^unspecified time period or a particular task. In terms of Section 15(l)(b)(fj^^Emp!oyment and Labour Relations Act, Act No. 6/2004 the en^By^sj^feo obliged to indicate in writing the hours of work per da^^^^s^ek including rest periods. Equally important, the employer/isjoblig^Jto keep in writing details about remuneration, how it will^^e cal^iyd' and other payments to be made to the employee including, payments in kind. Finally, the employer is required to record in writing the details of other matters which the law may require such an employer to keep in writing. A copy of all these detail written by the employer must be given to the respective employee. In ensuring that the employer fulfils the requirements of keeping the required information in writing, Section 15(6) of the Employment and 4 Labour Relations Act, place the burden of proof on the employer in any legal proceeding involving alleged terms of employment. Further, the employer is obliged to keep the written records for a period of five years after termination of employment, in accordance with Rule 15(5) of Employment and Labour Relations Act. The rationale behind this requirements is that the^mployee will|know the work station, the duration of the contract, the hour5 of^work and remuneration he or she will be entitled to recei^e^to avoid%nnecessary confrontation with the employer. In order fo^nsui^that there is an harmonious relationship between the employehand^the employee, section 15(4) of the Employment and Lafepur^RlihOi^^t, obliges the employer to notify the employee in the extent that^the|information required to be in writing has changed, including remuneraiton, place of work, duration of the contract and hours of work.^ Section 16 o^^bynfep and Labour Relations Act provide for a number of rights of employees Recognizing that some employees may be unaware ofxt^?'rightsr in the law obliges the employer to inform the employee1?Q^hehtirights. In line with this obligation, the employer is required toCiJlay a statement of the employee's rights in a conspicuous place atiilnelworkplace. One of employee rights is the Total value of all payments, in money or in kind, made or owing to an employee arising from the employment is payable by the employer. It is called remuneration. The mode of payment of such remuneration is through cash payment, a cheque or direct deposit 5 into an account designated by the employee in writing. In the case of paying by cash or cheque, the employer must ensure that remuneration is given to the employee in a sealed envelope. Similarly, where an employee receives remuneration by direct deposit in an account, the employer must also give the written statement of particular relating to remuneration in a sealed envelope. Relevant to our case; is section 61 of the Labour Institotioiis<Act No. 7/2004 provide that; For the purpose of a Labour Law^cTpersoirwho works for, or renders services to, any othenperson is presumed, until the contrary is proved, to^be an employee, regardless of the form ® 1 of the contract, if any one orwnore of the following factors is present. > Thia persons'? hours of work are subject to the control or direPtionijof another person. (c) r Incase of person who works for an organization, the person is "'^Mpart of that organization. (d) The person has worked for that other person for an average of at least 45 hours per month over the last three months. (e) The person is economically dependent on the other person for whom that person works or render services; 6 (f) The person is provided with tools of trade or work equipment by other person, or (g) The person only works for or renders service to one person. From the record, respondent admitted, not to have kept records of her employee. The fact that they are paid in daily basis dgfes not mean that records should not be kept. Applicants have not'Woved®how were being, paid. The above notwithstanding the obligation is t»the employer the respondent to keep records. Applicantg-have not proved how respondent breached their contract, despite^obligation&by respondent to keep records. For the better end of justfe, be paid one month salary in liew of notice only as they weje beigg"paid on daily basis. Revision allowed to that extent only. JUDGE 26/02/2021 ^^udgmenkdelivered in the presence of Devota Kelvin one of the applicant ancPin absence of respondent. Z.G. ke JUDGE 26/02/2021 7