REVNO 275 OF 2023 AKA TRANSPORTCOMPANYLIMITED VRS HARUNA IDD KATENDA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 275 OF 2023 CASE REFERENCE NO. 20231027000536692 BETWEEN AK TRANSPORT COMPANY LIMITED .... ....... APPLICANT VERSUS HARUNA IDD KATENDA..................... ............... ......... RESPONDENT JUDGEMENT Date of last Order: 27/ 05/2024 Date of Judgement: 31/ 05/2024 MLYAMBINA. J. Under Section 14 o f the Employment and Labour Relations A ct [Chapter 366 Revised Edition 2019] (herein ELRA), the law provides the types of employment contracts which may be entered between an employer and employee. Those types of contracts are; a contract for an unspecified period of time, a contract for a specified period of time for professionals and managerial cadre and a contract for a specific task. Furthermore, under the ELRA (supra), it is a mandatory requirement for the employer to provide an employee with a written contract whether such an employee works within or outside the United Republic of Tanzania. This is in accordance with Section 14(2) o f the ELRA (supra). It is very unfortunate that most of the employers in Tanzania does not comply with the pointed provisions of the law. Therefore, failure to provide an employee with a written contract which would have clearly stated the particulars of employment as per Section 15 o f the ELRA (supra), results into disputes like the present one. The background of the instant dispute is that the Respondent alleged to have been the employee of the Applicant from 10/05/2021. It was his position that through a letter dated 19/12/2022 (exhibit HI), he was terminated from employment. Aggrieved by the alleged termination, he referred the matter to the Commission for Mediation and Arbitration (herein CMA). Upon consideration of the parties' evidence, the CMA reached to a finding that the Respondent was unfairly terminated from employment. He was therefore, awarded twelve months salaries as compensation for the alleged unfair termination. Such decision aggrieved the Applicant. He therefore filed the present application calling for determination of the following issues: i. Whether there was a permanent written contract o f employment between the Respondent and the Applicant. It is very unfortunate that most of the employers in Tanzania does not comply with the pointed provisions of the law. Therefore, failure to provide an employee with a written contract which would have clearly stated the particulars of employment as per Section 15 o f the ELRA (supra), results into disputes like the present one. The background of the instant dispute is that the Respondent alleged to have been the employee of the Applicant from 10/05/2021. It was his position that through a letter dated 19/12/2022 (exhibit HI), he was terminated from employment. Aggrieved by the alleged termination, he referred the matter to the Commission for Mediation and Arbitration (herein CMA). Upon consideration of the parties' evidence, the CMA reached to a finding that the Respondent was unfairly terminated from employment. He was therefore, awarded twelve months salaries as compensation for the alleged unfair termination. Such decision aggrieved the Applicant. He therefore filed the present application calling for determination of the following issues: i. Whether there was a permanent written contract o f employment between the Respondent and the Applicant. //' I f issue no. 1 is answered in the affirmative, then what was the terms and conditions o f the above said agreement. Hi. I f issue no. 1 and 2 are answered in the affirmative, then whether termination o f employment o f the Respondent was unfair. The application was disposed by way of written submission. In arguing for and against the application the Applicant and the Respondent were represented by Mr. Mahamud Abdallah Waziri and Mr. Sadock George Mkunzi respectively. I appreciate the comprehensive submissions of the parties which will be taken on board in due course of constructing this decision. To start with the first ground, it was Mr. Waziri's strong argument that there was no permanent contract in the present case as found by the Arbitrator. He stated that no written contract was supplied to the Respondent. That, the Respondent was only retained in a specific task agreement for making Court follow ups and correspondence as well as acting on an advisory role on behalf of the company Director. In response, it was Mr. Mkunzi's strong submission that the Respondent was the employee of the Applicant since all the conditions as to who is an employee provided under Section 61 o f the Labour Institutions A ct [Chapter 300 Revised Edition 366] were met in the present case. After examining the record, I find that, it is true no written employment contract was supplied to the Respondent. It is also found that the alleged advisory role assigned to the Respondent was not reduced into writing. As I have earlier pointed out, it is the violation of Section 14(2) (supra) which resulted to this dispute. Therefore, in absence of any written contract, the circumstances of the case will be helpful in determination of this suit. DW1 testified that, they inherited the Respondent in their company from the former human resource officer they had. In the event, they had the obligation to know the terms and conditions of inherited employment, if that was the position. The evidence of DW1 was not collaborated with any other evidence. Even the alleged former human resource officer was not brought to the CMA to prove the alleged inheritance. They have advanced just mere words for this Court to believe and act upon. In his submission, the Applicant shifted the burden of proof to the Respondent that since he is the one alleging to have been employed by the Applicant, then, he had the duty to prove his allegation. I don't disregard the established principle of law that who alleges must prove. However, the principle should not be blindly applied in labour matters. It is the employer's responsibility to supply an employee with a written contract. If the employer fails to do so, then he has to prove or disprove every alleged term of the contract. This is in terms of Section 15 (6) o f the ELRA (supra) which provides as follow: If in any legal proceedings, an employer fails to produce a written contract or the written particulars prescribed in subsection (1), the burden of proving or disproving an alleged term of employment stipulated in subsection (1) shall be on the employer. In the instant Application, as the record speaks, the Applicant did not discharge his duty as the employer. DW1 also stated that they initially paid the Respondent commission. They then changed such practice and gave him TZS 500,000/= per month as salary. Also, such term helps to prove that the Respondent was the employee who depended on the Applicant On his part, the Respondent tendered the termination letter (exhibit HI) to prove that they had an employment contract. Reading the content of exhibit H2, I find it supports the argument that the parties had unspecified period of contract. Such unspecified contract is termed as a permanent contract in labour laws, as rightly said by the Arbitrator. If the parties had no employment contract whatsoever as alleged, what was the Applicant terminating in exhibit HI? Exhibit HI specifically stated that it was terminating the Respondent's employment contract. Thus, the parties had unspecified period of contract as correctly decided by the CMA. The remaining grounds were jointly argued. With regards to the terms of the contract in question, it is already been determined on the first ground. I therefore find no need for repetition. As to whether the termination is fair, the parties' arguments should not detain the Court. The record speaks loudly no codified procedures were adhered in terminating the Respondent. He was only served with the termination letter which informed him that he was terminated due to shortage of work only. That amounts to summary dismissal which have been strictly discouraged in the current labour laws. Therefore, there was unfair termination in the matter at hand, as rightly found by the Arbitrator. I have also noted the preliminary objections raised by the Respondent that the matter is time barred and that the application contravenes the provision of Regulation 34 o f the Employment and Labour Relation (General) Regulation GN 47, 2017. The provision provides as follows: The forms set out in the Third Schedule to these regulations shall be used in all matters to which they refer. The objection in question should bot detain the Court. As rightly submitted by the Applicant, he did not follow stipulated procedures in raising the objections in question. Nevertheless, I have also examined the objection regarding the time limitation and found that the same lacks merit. The CMA's Award was delivered on 15/09/2023, whistly, the present application was filed on 26/10/2023. Therefore, counting from the date of the delivery of the Award to the date of filing the application, it is within 42 days provided under Section 91 o f the ELRA. Thus, the objection in question lacks merit and it is hereby overruled. Further, I have noted the Respondent in his reply submission raised an objection in respect of failure to file the Notice of Intention to seek Revision (CMA Form No. 10) contrary to Regulation 34 (1) o f GN No. 47 o f 2017. It is my findings that the objection on contravening Regulation 34 (1) (supra) ought to have been raised prior hearing. In the result, I find the present application has no merit. Consequently, it is hereby dismissed. The CMA's award is hereby upheld. It is so ordered. Y. J. MLYAMBINA JUDGE 31/05/2024 Judgement pronounced and dated 31/05/2024 in the presence of Ceasor Kabissa for the Applicant and the Respondent in person as well as in the presence of Sadoki George Mkunzi, Personal Representative of the Respondent. Y. J. MLYAMBINA JUDGE 31/05/2024