angel twins organisation vs issa hezron 3 others 2022 tzhcld 741 29 july 2022

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION NO. 338 OF 2021 (From the award of Commission for Mediation & Arbitration) in Labour Dispute No. CMA/DSM/ILA/762/20/389

BETWEEN ANGEL TWINS ORGANISATION...................................... ........ APPLICANT

VERSUS ISSA HEZRON & 3 OTHERS.......... . ./RESPONDENTS

JUDGEMENT K. T- R. MTEULE, J, 12/07/2022 & 29/07/2022 The applicant Angel Twins Organization fjled the present application challenging the decision of the p6mmission for Mediation and Arbitration (CMA) decided^ favour of the respondents Issa Hezron and 3 Others. The dispute 'arose out of what the Respondent called "legal binOJng^s&rvice agreement" according to their opening J statement"produced in the CMA. The Respondent lodged the matter iri^the CMA vide CMA Form No. 1 claiming breach of contract by the Applicant where the Respondents demanded payment of TZS 51,800,000.00. In the CMA, vide the opening statement, the applicant herein disputed existence of a contract which attained maturity. The applicants claims in the alternative that shall the contract be i considered to be a valid, it was based on a fixed term and subject to availability of funds. The respondents believed that they had fixed term contract of six months which started in August 2020 and ended on 10th September 2020 upon the breach by the Applicant. The CMA found that there was a breach of contract, hence awarded six months compensation for the breach of contracMfrhifch^tailed TZS 46,725,000. Aggrieved by the CMA's award the applicants filed M the present application for revision. In her affidavit, the Application has th^e^gro'Unds of revision which are:- i. Whether the failure to pay one month's salary amounts

to the breach oHcontract of employment and hence unfair termination?^ ii. Whether J arbitrator's private opinion surpass provisions of ^law; iii^That to order any other reliefs as may deem fit to grant. The application was argued by way of written submissions. The applicant was represented by Ms. Neema Mwasongwe, Advocate from a law firm styled as Cornerstone Mwasongwe whereas Mr. Jeston Mzihwi, Advocate from Crestone Attorneys appeared for the 2 respondent. Arguing in support of the Application, Ms. Neema Mwasongwe formulated 4 grounds of revision. The grounds allege firstly, an error on arbitrator's substitution of labour dispute from a breach of contract to unfair termination, secondly, issuance of an awards based on arbitrators' own opinion, thirdly, lack of r^arsdnslfor the decision and fourthly, issuance of an award which^^ unlawful, illogical and irrational. .. Af ;%. ■ y Arguing for the first ground on substitudon^pf a claim of breach of contract with a claim of unfair ,termination, Ms. Neema is of the view J / that the decision of the arbitratbr^in awarding remedies based on unfair termination whilesthe? Respondents filled part B of the CMA award concerning^'Breach of contract, rendered the form defective. In her viev^theSentire matter is confusing as to what exactly the applicatidhgsrall about. Neema cited the case of Bosco Stephen versus Ng'amba Secondary School,

Rev. No. 38 of 2017, Mongela, J. where a form wrongly filled was rendered defective. According to Ms. Neema, this issue was raised by the applicant while defending the matter in the CMA but the arbitrator ignored her submission. 3 Ms. Neema further challenged the arbitrator's finding to confirm unfair termination in a matter whose employment was for a period of less than 6 months which contravenes Section 35 of the Employment and Labour Relations Act. On the second ground of revision concerning application of Arbitrator's own opinion in deciding the matter, making^'refeferfce to Rule 10 (2) of GN. No. 64 of 2007, Ms. Neema submitted that the w arbitrator applied her own opinion to conclude^jat the applicant ■ failed to pay that one month salary without taking into account the fact that there was still time available for tlie parties to settle. With regard to the third ground bn lack of proof and without a reason for the decision, Ms. Neema questions the appropriateness of the arbitrator's finding that none of the applicant in the CMA was able to prove the^greafh of contract and yet concluding that there was a breach Of a contract. She placed the burden of prove upon the Respondents who had to prove what they alleged in the CMA with reference to Section 110 (1) and (2) of the Evidence Act, Cap 6, RE.

2019. She was surprised that even one of the Applicants (Issa Hezron) whose contract was disqualified to form any admissible contract got awarded as the others. 4 On the fourth ground, Ms. Neema reiterated the previous three grounds and summed that the errors arising from these grounds are indication of unlawful, illogical and irrational findings of the arbitrator. In reply to the Applicants submissions, Jeston Justin Mzihwi refuted the assertion that the arbitrator based his decision on termination of contract and not breach of contract. In his view, the arrearsds based IJ on breach of contract. He referred to the following-6oncluding words of the arbitrator:- "Kwa kuwa mlalamikiwa ;kOshindwa kuwalipa walalamikaji mshahara wa mwezi mmoja kiny:urh^na makubaliano, ni J? sawa na kuvunja sharti kuu la mkata^a’^Hivy^ Tume inaona mkataba KJ umevunjwa. Mr. Jeston considered these words as presenting breach of contract and not termination. They disputed any substitution of claim in the award since .even the issues were framed to focus on breach of contract Hc|challenged the relevance of the case of Sosco versus Ng'amb^Sec. School cited by the applicant. He asserted that inj^at casfe there was a complete departure from breach of contract to termination, which is not the case in this matter which strictly focused on breach of contract. Challenging the applicants assertion of

arbitrator's application of own opinion in ground 2 of the revision, Mr. Jeston is of the view that the breach of contract emerged when the Respondents ought to have 5 been paid their salaries which was 1st September 2020. He considered 19th October where the salaries were still unpaid to be the contract was in serious breach and the matter was instituted within the 60 days provided by the law. With regards to the third issue asserting the arbitrator's award not supported by reasons Mr. Jeston cited page 8 of the award<w|erd the points of arguments are accounted for where the arbitrator indicated that her award is based on parties' evidence. f Mr. Jeston refuted all the assertion reggrdtpgrthe arbitrator's award being illogical, irrational and unlawful./In his view, this argument lack justification from the applicant. Having gone through.the submission of the parties, I have seen that the arbitrator decidecllon breach of contract. The words quoted by Mr. Jeston^from.The award, connotes such focus by the arbitrator. It was not disputed that the Respondents worked with the Applicant on a contract term of six months and that by the end of the first month, no salary was paid. It is expected that every end of month a salary must be paid. Staying without such payment to 10th day of next month is apparent that there is a breach of contract in terms salary payments. I will address the

issue of remedies, but at this time, it 6 suffices to state that the arbitrator was right to find a breach on contract on the part of the employer. With regards to application of arbitrators' own opinion in deciding this matter as asserted in the second ground of revision, in the award, I noticed that the arbitrator referred to various evidence provided during hearing. She cited several provisions of law and tektbboks to guide her decision. The applicant's assertion that she applied her own opinion, in my view, is baseless. •- This also applies to the 3rd issue there^a^peither proof nor reason k j given to support the arbitrator's decisipnrAs stated in ground No 2,1 Ik J noticed reference and analysis of evidence given in the decision with law citation which indicates that the arbitrator was guided not by her own opinion by wasjpersuaded by the evidence and the law she K >■ cited. 'kJ k With regards' to rationality of the award, it is not disputed that the Zk .J applicants worked with the Respondent on a project which did not materialise. It is apparent that by the time the Respondent thought or discovered to have no capacity to keep them, they had already served him for one month. It is my opinion that the applicants ought to have been paid for this one month. Failure to pay this one month 7 amounts to breach of contract. It was on this basis the arbitrator awarded 6 months

payment which was the remuneration of the entire term of contract including the time the Respondents never served. At this point, I agree with the Applicant on the irrationality of the award. I will differ with the arbitrator on this aspect. I order that the applicants are entitled to that one-montn. salary which remained unpaid. Taking into account the reasonsigiven by the s' employer which led to that termination of confect/ which was the sponsor's withdrawal of support, I think there^shbuld not be a severe punitive damage to the applicant. Irr m0 view, another one-month salary suffices to compensate the Respondents for that breach of contract. St In this regard I I'eVise the award of the CMA and vary the reliefs W- / A granted by 'substituting it with payment of unpaid one month salary 4 /A f plus one month remuneration as damages to the Respondents. No A;. order as to costs. It is so ordered. Dated at Dar es Salaam this 29th day of July, 2022.

KATARINA REVOCATI MTEULE

JUDGE 29/07/2022 8