albert p millanzi vs mic tanzania ltd tigo 2023 tzhc 19898 18 july 2023

THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA (LABOUR DIVISION) AT MTWARA REVISION NO. 1 OF 2023 (Arising from Labour Dispute No. CMA/MTW/43/2017) BETWEEN ALBERT P. MILLANZI...................................... ............... .......... APPLICANT AND MIC TANZANIA LTD (TIGO)......................... .......... ............. ...RESPONDENT RULING Date of last order: 02.05.2023 Date of Ruling: 18.07.2023 Ebrahim, J. The Applicant herein having being aggrieved by the Award delivered by the Commission for Mediation and Arbitration, has lodged an application in this court praying for this court to exercise its powers of revision and set aside the said award. The application has been preferred under the provisions of Section 94(l)(b)(i) of the Employment and Labour Relations Act, Cap 366 RE 2019 and Rule 24(1), 24(2) (a)(b)(c)(d)(e)(f), 24(3) (a)(b)(c)(d). Page 1 of 12 28(T)(a)(b)(c)(d)(e)(f) and Rule 24(2) of the Labour Court Rules, 2007, GN No. 106 published on 1May, 2007. The application is challenged by the respondent’s counter affidavit sworn by Ndanu Emmanual, the respondent's counsel. The brief facts leading to the present application as could be discerned from the records of the Tribunal are that the applicant claimed before the Tribunal that he was employed by the Respondent as a Route Supervisor from May 2007 in Mtwara Region. He said his responsibilities were to look for customers to sell TIGO products and services and general marketing. He was made Area Supervisor at Newala and Tandahimba District between 2014 to 2017 with the same responsibilities. He said, during his tenure, he was transferred to various districts within Mtwara region but he was never paid transfer expenses. He tendered the employment contract for year 2015 claiming that he was not given a copy of contract for previous years - exhibit KMT. He also tendered two identify cards which were admitted as exhibit KM2 collectively and two pages Bank Statement which was admitted as exhibit KM3. He further Page 2 of 12 tendered as exhibits motor cycle hand over form - exhibit KM4(a), motor vehicle registration card which was admitted as exhibit KM4(b) and Settlement Agreement - exhibit KM5. On the other hand, both witnesses for the respondent testified before the trial Tribunal that the applicant was working as a freelancer in the capacity of Area Supervisor and that he was paid commission for work done. They testified further that he was not an employee of the respondent as per their exhibit KM1. Upon hearing the evidence of both parties, the CMA decided in favour of the respondent and dismissed the claim by the applicant. Aggrieved, the applicant has preferred the instant application. The grounds for the application as can be gathered from paragraph 5 of the applicant's affidavit are as follows: a) That the arbitrator erred in law by giving decision basing on respondent’s evidence which was not proved on the balance of probability. b) That the arbitrator erred in law and fact by accepting termination without considering termination procedure which Page 3 of 12 were enshrined in the signed [KM1J contract between the applicant and the respondent. c) That the arbitrator erred in law by deciding in favour of respondent without evaluating strong evidence adduced by applicant. Owing to these complaints the applicant prayed for this court to revise the decision of the arbitrator and order the matter be heard on merits in ter partes. When the matter was called for hearing the applicant appeared in person and the respondent was represented by advocate Ndanu Emmanuel. Submitting in support of his application, the applicant prayed to adopt the contents of his affidavit to form part of his submission. He argued that he had a contract of employment and he was not given notice Of termination in terms of item 7(2) of exhibit 1. He argued also that he was terminated while the contract was still valid and had one more month. Referring to section 60(1) (a) to (g) of the Employment Act, he said that he deserves to be paid terminal benefits. Page 4 of 12 Responding to the applicant’s: arguments, advocate Ndanu equally prayed to adopt their counter affidavit to form part of his submission. In referring to the legal grounds, Mr. Ndanu contended that the applicant in his para 5(a)(b) and (c) of the affidavit has not shown where the arbitrator erred in law in his award or how he did not consider the evidence on the balance of probability. He insisted that according to their contract, the applicant was a freelancer and it was a one-year contract. He contended further that the contract ended automatically thus there was no need of notice. He said the evidence proves that the applicant was not an employee because he was not given leave or pay PAYE which shows that he was working on outcome: results. Hence, the application be dismissed. In rejoinder, the applicant referred to the testimony of the respondent witness who said that the Area Supervisor is assigned work from Head Office. He admitted being a freelancer but argued that he was supervised hence assigned work. He added that the arbitrator erred by saying that he had contract of employment not contract for employment. Page 5 of 12 To begin, I was intrigued by the relief sought by the applicant that this court should order the matter be heard interparies and on merits. As I understand this case was heard inferpartes at the trial Tribunal, there is nothing to suggest that the case proceeded exparte to qualify for such a prayer. Thus, the prayer is misplaced. In this case, while the applicant ciaims that there was employer- employee relationship hence he should have been availed with notice of employment and terminal benefits; the respondent on the other hand is adamant that there was no employer-employee relationship as the applicant was working as a freelancer and paid commission. Considering the nature of the complaints raised by the applicant, and the nature of impugned decision of the CMA, it is my view that this court should firstly resolve the issue of Whether there was employer employee relationship? Section 4 of the Employment and Labour Relations Act, Cap 366 RE 2019 defines as an employee to mean: “an individual who Page 6 of 12 (a) has entered into a contract of employment; or (b) has entered into any other contract under which— (i) the individual undertakes to work personally for the other party to the contract; and (ii) the other party is not a client or customer of any profession, business, or undertaking carried on by the individual; or (c) is deemed to be an employee by the Minister under section 98(3)”; Furthermore, Section 61 of the Labour Institutions Act, Cap. 300 R.E 2019 provides for a presumption of an employee that: “For the purpose of labour law, a person who works for or renders a service to other person, is presumed until the contrary is proved to be ah employee regardless of the form of contract if any, one or more of the following factors is present: a) The manner in which the person works subject to the control or directions of another person. b) The person hours of work are subject to the control or direction of another person. c) In the case of person who works for the organization, the persons form part of the organization. Page 7 of 12 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 which that person renders service. f) The person is provided with tools of trade or works equipment by the other person. g.) The person only works or renders service to one person." Therefore, for dn employer-employee relationship fo be established, at least one of the above-mentioned factors should be proved. Thus, a question as to whether there is an employer-employee relationship is factual to be determined from the availed facts and mainly the employment contract itself. I have keenly gone through exhibit 1, of interest is item 1.2 on the Relationship under Item 1.0 Scope of Agreement. The same reads: "Area Supervisor enters into this Agreement as, and shall continue to be, an independent contractor. All Services herein shall be performed only by Freelancer. Under no circumstances shall AS look his/her employer , or as partner, agent or principal. The Area Supervisor shall not be entitled to any benefits accorded to MIC’s employees, including without limitation to [emphasis added] Page 8 of 12 Another area of interest is item 3.1 of exhibit Pl which reads as follows: “In consideration of all services to be rendered by AS to MIC, MIC shall pay to said AS the Commission as detailed in Anhexure 1 attached hereto. The Commission will be paid as per targets set by MIC at its exclusive criteria according to the conditions of the market...“ [emphasis added]. item 3.5 of exhibit Pl further reads that: “The obligation to pay income Tax and any kind of Tax on such commissions paid is the responsibility of Freelancer. Freelancer is not eligible on the MIC benefits which are provided to regular employees” [emphasisadded]. To begin with, the applicant admits to have entered into the above quoted agreement with the respondent. Undoubtedly, exhibit PI clearly provides the manner in which the applicant was working and their work relationship. The applicant admits that he was a freelancer. He however, basis his argument that he was an employee because he was assigned work and supervised from Head Office, It goes without say how would he have worked without being assigned such task or reporting the same? Still it does not preclude the fact that whatever he was assigned to do, he was doing it at his own time and modus Page 9 of 12 operondi. His claim that he was availed a motorcycle, a mobile handset and a T-shirt as working tools does not change the terms and conditions of their agreement that he was a Freelancer. Even, the way he was being paid suggests so. The applicant relied heavily on the fact that he had an identity card, I hasten to state that the identity card is not a conclusive proof that the applicant was an employee of the respondent, I subscribe to the observation made by this court [Honourable Ifemba, Judge (as she then was) in the case of Prosper Makene & 2 others v. Medici Intervention & Consultant Revision No. 882 of 2019 HC. Labour Division at Dar es Salaam (unreported) that: ".....the applicants having a business card with the name of the respondent does not make them employees__ In the circumstances therefore, I find that the applicant was working independently as a freelancer where the manner of doing his work, time of work and much as he was availed with working tools were controlled by himself. He was again paid according to the set target in a form of a commission. Thus, in terms of their agreement as Page 10 of 12 intimated above, the applicant was not a respondent's employee as rightly held by the CMA. It follows therefore that there could be no termination benefits to the applicant. I am abreast to the position of the law i.e., Rule 4(1) and (2) of the Employment and Labour Relations [Code of Good Practice) G.N. No. 42 of 2007 that a fixed term contract terminates automatically when the agreed period expires - see the case of Matumba Shamte & 64 Others vs Care Santation and Suppliers, Revision No. 154 of 2010 HCT at Dar Es Salaam (unreported) which I subscribe to. Nevertheless, in reading item 7.1 of exhibit Pl, it states the term of their agreement which is one year from the execution date. Item 7.1 states further that the agreement will be renewed automatically for additional period of one year if the parties did not inform about the termination. The agreement again provides for a leeway in case of either party wishing to terminate the agreement by giving 30 days’ written notice to the other party. The applicant complains that no notice was availed to him much as he continued working even after the expiry of the termed contract. Page 11 of 12 As the agreement provided for notice during the term of the contract; and in considering that the respondent terminated the contract of the applicant after the automatic term of end of contract has passed, it implies that the respondent terminated the contract during the automatic renewal period. As such, the respondent ought to have issued a 30 days’ notice of termination or payment in lieu thereof. From the above observations therefore, I grant the application only to the extent that the Respondent should pay the applicant the equivalent of one month’ commission in lieu of 30 days' notice that he ought to have been given. Being a labor matter, I make no order as to costs. Ordered accordingly. JUDGE Mtwara 18.07.2023 Page 12 of 12