REV NO 26420 OF 2023 AMIR ABDUL MAFTAR VRS MAR KIM UNIPLAST CO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 26420 OF 2023 CASE REFERENCE NO. 20231129000026420 BETWEEN AMIR ABDUL MAFTAR......................................................... 1st APPLICANT SALIM M. BAKARI..............................................................2nd APPLICANT VERSUS MAR - KIM UNIPLAST CO. L T D ........................................ RESPONDENT JUDGEMENT Date of last Order: 13/ 03/2024 Date of Judgement: 05/ 04/2024 MLYAMBINA, J. The Applicants were aggrieved by breach of contract of employment. Both Applicants concluded an employment contract with the Respondent. The 1st Applicant signed a contract on 27/04/2022. The Contract was expected to end on 27/04/2023. Likewise, the 2nd Applicant signed the Contract on 14/04/2022. The contract was expected to end on 14/04/2023. Unfortunately, the contracts of employment of both Applicants were breached on 26/08/2022 by the Respondent without valid reasons. It is alleged that the breach was both procedurally and substantively. Aggrieved by the said breach the Applicants referred the matter to the Commission for Mediation and Arbitration (herein CMA) where their complaints were dismissed for lack of merit. Again, being resentful with the CMA's decision, the Applicants filed the present application on the following grounds: i. That, the Arbitrator erred in law and in fact by deciding that the Respondent had valid reason to terminate the Applicants' employment contracts. ii. That, the Arbitrator erred in law and fact for not considering the requirement of the law that any transfer of employment must be in conformity with the procedures provided by the law and not otherwise. iii. That, the Arbitrator erred in law and facts to decide that the Applicants were dully paid their final entitlements and that they had no further claims to the Respondent. The application was argued orally. Before the Court, Ms. Issabella Alex, Legal Secretary from TASIU Trade Union appeared for the Applicants. On the other hand, Ms. Asela Basil Tesha, Personal Representative appeared for the Respondent. To start with the first issue, it was Ms. Isabella's submission that the Respondent relied on the reasons that the Applicants absconded from work. It was on 02/08/2022, 03/08/2022, 04/08/2022, 06/08/2022 and 09/08/2022. She submitted that the recruitment place for both Applicants was Markim Uniplast Co. Ltd P.O. Box 75488 Mbezi Beach Dar es Salaam. While the contract it was in continuation, the Respondent forced both Applicants to report at Kigamboni Branch which is not the place of recruitment as per the contract. Ms. Isabella submitted that the Applicants tried their best to report to Kigamboni Branch, however, they found it impossible due to financial constraints. Thus, it is a long journey from where they live to Kigamboni and it costs a lot of money comparing to their income. In fortifying such argument, Ms. Isabella submitted that the 2nd Applicant was paid TZs 260,000/=. The 1st Applicant was paid TZs 200,000/=. Both of them were living at Boko Dar es Salaam. There was impossibility of Contract Performance. The Applicants went back to the place of recruitment where they were still forced to report at Kigamboni. It was Ms. Isabella's submission that the Applicants through a letter, explained the travel costs difficulties, the letter which was tendered and admitted at the CMA. They even attached their salary slip to show what they earn and what they spent as travel costs to the area of work. It proved that the contract could not be performed, (impossibility of contract performance). Section 56(1) (2) and (3) o f the Law o f Contract Cap 345 R.E. 2019, makes the contract void if it is impossible by itself. In reply, Ms. Tesha submitted that the Applicants were charged with two misconducts of insubordination and habitual absenteeism. Based on Rule 12(2) o f the Code o f Good Conduct, gross insubordination and habitual absenteeism is a gross misconduct. He submitted that as per clause 3 o f the employment contracts, the Applicants were employed at Dar es Salaam with disregard of their ethnicity or residence of their families. He stated that both Applicants were given letter of transfer to Kigamboni Branch on the reason that they were employed in Dar es Salaam. They could work at any part of Dar es Salaam. It is the Company culture that all the employees can work in either of their four Branches in Dar es Salaam depending on the scarcity of employees. As rightly submitted by Ms. Tesha, the Applicants were terminated for two misconducts namely absenteeism and gross insubordination. The charge sheet (exhibit M4) indicates that the first Applicant did not attend at work on 02/08/2022, 03/08/2022, 04/08/2022, 05/08/2022, 06/08/2022 and 09/08/2022. On the other hand, the second Applicant did not attend at work on 25/07/2022, 29/07/2022, 30/07/2022, 01/08/2022, 02/08/2022, 03/08/2022, 04/08/2022, 05/08/2022, 06/08/2022 and 09/08/2022. In his testimony before the CMA, the second Applicant admitted that they did not report to work for more than six days as charged by the Respondent. It is the Court's findings that absence from work without permission or without acceptable reason for more than five working days is one of the offences which may constitute termination of employment provided in the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedures under GN. No. 42/2007. In the matter at hand, it is undisputed fact that the Applicants absconded from work for more than five working days. I have dully considered the Applicants arguments that they were employed at Mbezi Beach Branch, thus they were illegally transferred to Kigamboni Branch. The issue as to; whether the transfer was illegal or not w ill be determined in the second ground. With letters dated 30/07/2022 and 23/07/2022 (exhibit M2 collectively), the Applicants were transferred from Mbezi Beach Branch to Kigamboni Branch. Again, with letters dated 01/08/2022 (exhibit M3), the Applicants were reminded of their transfer to Kigamboni Branch. The record shows that they disregarded the Respondent's order and alleges to continue to report to work at Mbezi Beach Branch. It is my view that the Applicants were supposed to report to new branch where they are transferred to notwithstanding their financial difficulties as alleged. Their financial difficulties would have stance if they reported to work to their transferred branch and not otherwise. With regard to the misconduct of insubordination, the same may also constitute a fair reason which may attract termination of the employee's employment as per Rule 12(3)(f) o f GN. No. 42/2007. The supreme Court of Appeal of South Africa in the case of National Union of Public Service 7 Allied Worker's Union (NUPSAWA) Obo Mani and 9 Others v. National Loitteries Board, Labour Case No. 576 of 2012, quoted with approval in the case of Yohana Karanja v. Mbeya City Council, Revision No .10 of 2014, the offence of insubordination was defined to mean: Unfair labour practices occurring when an employee refuses to accept the authority of his or her employer or of a person in a position of authority over an employee. In line with the above definition, insubordination occurs when an employee refuses a lawful order of the employer. In the matter at hand, as discussed above, the Applicants refused the order of transfer of their working station. It is my view that disobedience of the lawful order from the employer amounts to insubordination, as rightly found by the Arbitrator. The second ground is; whether the Arbitrator erred in law and fact for not considering the requirement o f the law that any transfer o f employment must be in conformity with the procedures provided by the law and not otherwise. It was Ms. Alex's strong submission that the Respondent breached Section 3 o f the Employment Contract. That section required a separate agreement/arrangement for a transfer from the place of recruitment. She maintained that the area of recruitment was Mbezi Beach. As indicated above, Ms. Tesha was of the strong position that the Applicants were employed at Dar es Salaam with disregard of their ethnicity or residence of their families. That is as per Clause 3 o f their contract o f employment She also explained that when they want to transfer an employee, they write a letter to such employee especially when the transfer is temporally. She added that the Applicants refused to sign the letter of assignment to another branch (Kigamboni Branch). Ms. Tesha further submitted that the 1st Applicant lives at Mbezi Juu Kinondoni. The 2nd Applicant lives at Boko Bunju Kinondoni Dar es Salaam. Thus, they could afford the travelling costs. The contested Clause 3 o f the employment contract (exhibit M l) states as follows in both contracts: Mahali alipoajiriwa na Kituo cha Kazi ni Dar es Salaam - Tanzania bila kujali kabila la mfanyakazi au mahali ambapo familia ya Mafanyakazi anapoishi. Hata hivyo mfanyakazi anatakiwa kufanya kazi katika Mikoa yote ya Tanzania na nje ya Nchi kwa makubaliano maalumu. The above quotation can be loosely translated as follows: The place of employment is Dar es Salaam - Tanzania regardless of the worker's ethnicity or where his family risides. Even by special agreement the employee is required to work in all Regions of Tanzania and abroad. As quoted above, the contested provision is self-explanatory. The Applicants place of employment was stated to be Dar es Salaam regardless of their ethnicity or where their family resides. From the arguments of both parties, it is not disputed as to whether Kigamboni Branch is in Dar es Salaam or not. That being the position, the Applicants were supposed to honour the terms of their contracts. With the above clause, they agreed to work at any station in Dar es Salaam. Special agreement was required if the Applicants were transferred out of Dar es Salaam. Thus, they are bound by the terms of the agreed contracts. This is the Court's position in the case of Salkaiya Khamis v. 8 JMD Travel Services (SATGURU), Revision No. 658 of 2018 which took the position in the case of Univeler Tanzania Ltd v. Benedict Mkasa Bema Enterprises, Civ. Appl. No. 41 of 2009. In the latter case it was held that: Parties are bound by the agreements they freely entered into. No party would therefore be permitted to go outside of that agreement for remedy. Again, in the case of Hotel Sultan Palace Zanzibar v. Daniel Laizer and Another, Civ. Appl. No. 104 of 2004 (unreported), it was held that: It is elementary that the employer and employee have to be guided by agreed terms governing employment. Otherwise, it would be a chaotic state of affair if employees or employers were left to freely do as they like regarding the employment in issue. On the basis of the above analysis, I find the second ground lacks merit, the Respondent properly followed procedures in transferring the Applicants by notifying them through a letter. As stated in the first ground, the issue of financial constrains was a matter of discussion and separate agreement by both parties. The Applicants had no mandate to decide by themselves to disobey the Respondents transfer. Thus, the issue of impossibility of the contract is an afterthought and has no legal stance. Turning to the last issue, Ms. Alex submitted that in a very strange manner, the Respondent made an arrangement of paying both Applicants. It was on 01/09/2022, the Respondent drafted unlawful contract with no lawful object with unlawful consideration among the parties. The Title of the Contract read "UTAMBUZIWA KUPOKEA PESA" The 1st Applicant was paid TZs 440,000/= and the 2nd Applicant was paid TZS 906,000/=. She stated that along all the process, the matter was reported to Trade Union from the beginning. The Traded Union attended from the Disciplinary hearing stage. Unfortunately, the Trade Union was not called as a Party to this agreement. She invited this Court to examine the validity of the two contract and prayed to nullify the Award of the CMA for illegality and material irregularity. She also prayed for the Applicants be granted with their respective rights. In response, Ms. Tesha submitted that the second contract was not a contract. It was an acknowledgment of receiving money and that they have no claim. It was not acknowledgement of unfair termination. He further stated that the Applicants signed and acknowledged that they had no any claims against the Respondent. I have examined the record. The alleged contract was admitted as exhibit M7. As rightly argued by Ms. Tesha, it was not a separate contract as claimed by the Applicants. It was an acknowledgement of receiving their final entitlements. The Applicants also signed the acknowledgment in question. They have not established in this Court any inducement, or illegal conducts initiated by the Respondent to force them to sign exhibit M7. Thus, they were dully paid their final entitlements as rightly found by the Arbitrator. Therefore, so long as the Respondent had valid reasons and followed procedures, he rightly terminated the Applicants from their employment as explained above. In the result, I find the present application has no merit. It is dismissed accordingly. The CMA's award is hereby upheld. It is so ordered. JUDGE 05/04/2024 Judgement pronounced and dated 5th April, 2024 at 12:45pm in the presence of Isabella Alex, Legal Secretary of TASIU for the Applicant and Asela Basil Tesha, Personal Representative for the Respondent. Right of Appeal explained. JUDGE 05/04/2024