APPLICATION NO 17213 OF 2024 ALAWI MOHAMED HABIB VRS UNIQUE CENTRE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM APPLICATION NO. 17213 OF 2024 CASE REFERENCE NO. 202407181000017213

BETWEEN ALAWI MOHAMED HABIB .............. .... ........... ........APPLICANT

VERSUS UNIQUE CEN TR E......................... .................. .................... RESPONDENT

JUDGEMENT Date of last Order: 26/ 08/2024 Date of Judgement: 10/ 09/2024 MLYAMBINA, J. The Applicant was employed by the Respondent on a fixed term contract as storekeeper since 01/11/2014. The last contract which is the subject matter of the application at hand was a fixed term of one year commenced on 01/01/2021. It is alleged that the Applicant's employment was terminated on 30/07/2021 for the reasons which are not apparent at this juncture. Aggrieved by the termination, he referred the matter to the Commission for Mediation and Arbitration (herein CMA). When the dispute was at arbitration stage, the Respondent raised a preliminary objection to the effect that the dispute was incompetent before the CMA because the Applicant referred the dispute of unfair termination while he had fixed term contract. After considering the argument of both parties, the Arbitrator sustained the preliminary objection and proceeded to strike out the application for being incompetent. Again, being dissatisfied by the CMA's decision, the Applicant filed the present application on the following grounds: i. Whether it was proper in taw for the learned Arbitrator to hold that the dispute o f unfair termination was incompetent simply because the Applicant had a fixed term contract o f employment. n. Whether it was proper in law for the learned Arbitrator to ignore the Applicant's final submission and

authorities which were cited by the Applicant in opposition o f a preliminary objection without giving reasons. The application proceeded by way of written submissions. The Applicant was represented by Mr. Kenneth Mwangoka, Personal Representative. On the other hand, the Applicant was represented by Mr. Hamisi Katundu, learned Counsel. I appreciate the comprehensive submissions of the parties which will be dully considered herein. In this application, I find the Court is called upon to determine one issue; whether the Arbitrator properly struck out the matter for being incompetent before the CMA. It was Mr. Mwangoka's strong submission that the dispute of unfair termination was properly filed regardless of the fact that the Applicant had a fixed term employment contract. It was the representative's position that if an employee had worked for six months, then he or she is not precluded from challenging termination of contract by initiating a dispute of unfair termination. In support of his submission, Mr. Mwangoka referred the Court to the case of DRT Auto Spare Parts Limited v. Rehema Masalapa, Labour Revision No. 40 of 2023 (unreported) High Court of the United Republic of Tanzania Labour Division at Dares Salaam where it was held that: The provisions of Rule 3(3) and 4(a) and (b) (supra) proves that all dorms of contracts can be terminated. Be it fixed term contract or

permanent contract. The same may be acted fairly or unfairly. Then if it was acted unfairly, parties from both contracts be it fixed or permanent can claim for unfair termination. Furthermore, the Representative cited the case of Stella Lymo v. CFAO Motors Tanzania Limited, Civil Appeal No. 378 of 2019 (unreported) Court of Appeal of Tanzania at Dares Salaam where at page 15 paragraph 2 it was held as hereunder: First of all, we don't think the learned counsel is correct in his submission that breach of an employment contract is distinct from a complaint based on unfair termination. It is trite, we think, that unfair termination is one and the same as breach of contract by termination other than what is regarded as fair termination under section 36 {a} {/} o f the Act In response to the application, Counsel Katundu submitted that in the currently CMA Form No. 1 a labour dispute referral form introduced through The Employment and Labour Relations (Generai) Regulations Government Notice No. 47 o f 2017, has placed an option for breach of contract disputes to be filed by employees who are under fixed term contracts. Counsel Katundu maintained the position that since remedies for unfair termination are not available to fixed term employees then the Applicant ought to have properly filled CMA FI. He stated that there is an option for termination of employment and breach of contract.

In the upshot, the Counsel supported the Arbitrator's findings that the principles of unfair termination do not apply to fixed term contract. In the application hand, the filed CMA FI at page 3 as reflected from the records, the Applicant indicated that the nature of dispute was termination of employment. Again, in the opening statement at paragraph 1.4 and 1.5, the Applicant stated that he claimed for unfair termination of employment. He further claimed that the Respondent unfairly terminated him on 30/07/2021 for misconduct. On such basis, it is clear from the records that though the Applicant had fixed term contract, his complaint was for unfair termination of his contract. This Court encountered a similar case of this nature in the case of City Square Hotel v. Kassim Copriance (Revision Application No. 373 of 2022) [2023] TZHCLD 1129 (17 February 2023). In the referred case the employee filed both parts of the form, part A and B. Part A is for all disputes and part B is an addition details for termination of employment disputes only. The Court was of the position that; it is not fatal for an employee under fixed term contract to fill both part A and part B of the CMA FI. In this case, in part A and B, the Applicant pleaded unfair termination. It is my view that, the issue should not detain me since the position is settled that the principles of unfair termination also apply

to fixed term contracts. This is the Court of appeal position in the case of ST. Joseph Kolping Secondary School vs Alvera Kashushura (Civil Appeal 377 of 2021) [2022] TZCA 445 (18 July 2022) where it was held that: We also do not agree with him that, under our laws a fixed term contract of service can be prematurely terminated without assigning reasons. This is because the conditions under section 37 o f the ELRA are mandatory and therefore implicit in all employment contracts. It is only inapplicable to those contracts whose terms are shorter than 6 months. (See section 35 o f the ELRA). In the premises, it is my view that so long as the principles of unfair termination also applies to fixed term contracts, then an employee under fixed term contract can also claim for unfair termination. As analysed above, from pleadings, the Applicant claimed for unfair termination. It is my believe that it was not the intention of the legislature employees of fixed terms contracts to fill their forms differently from permanent ones when they all claim for unfair termination. As stated in numerous decisions, a distinction has to be made between employees claiming for unfair termination under fixed terms contract and the ones claiming for breach of other terms of the contract. It is therefore my view that the CMA FI was properly filled by the Applicant. In the result, I find the present application has merit. The CMA's decision is hereby revised and set aside. The matter is remitted back to the CMA to compose judgement for the remaining issues on merits. It is so ordered.

JUDGE 10/09/2024 Judgement pronounced and dated 10th September, 2024 at 14:15 hours in the presence of Keneth Mwangoka Personal representative of the Applicants and learned Counsel Hamis Katundu for the Respondent. Right of Appeal explained.