RULING Arineitwe Moses Another vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY AT SONGEA LABOUR REVISION NO. 16053 OF 2024 (Originating from Labour Dispute No. CMA/RUV/SON/11/2023/07/2023, Delivered by Hon. Hilary N.J (Arbitrator) on 24/05/2024) ARINEITWE MOSES …….…………………….……….………………… 1ST APPLICANT FRENK NASHON …………………………...………….….……………… 2ND APPLICANT VERSUS GOVERNING BOARD OF PIHAS …….………………………………….. RESPONDENT RULING 28th November, 2024 & 6th February 2025. KAWISHE, J.: The applicants herein above named have moved this court under the provisions of rule 24(1), (2) & (3) of the Labour Court Rules, 2007 (GN. No. 106 of 2007) seeking, among others, the order that this court be pleased to call for records and examine the proceedings of the Commission for Mediation and Arbitration at Songea (hereafter referred as CMA) 1 in Labour Dispute No. CMA/RV/SON/11/2023/07/2023, which was decided in favour of the respondent. The facts leading to the present application are as follows: The applicants are medical doctors by profession possessing Diploma in Clinical Medicine. That from 27/10/2021, the applicants worked as assistant tutors at the respondent’s education institution known as Peramiho Institute of Health and Allied Science (PIHAS) located at Peramiho within Songea District. According to their employment offer, they were given a probation period of six months, with the condition that they will be given employment contract after the expiry of the probation period. Their probation period expired on 27/04/2022. Nothing was done but the applicants continued working with the respondent and they were paid their allowances until December, 2022 when their allowances were cut off. They made some follow ups to the respondent’s management staffs including the respondent’s bursar without success. It was on 17th January, 2023, when the applicants wrote a letter to the respondent’s principal asking for clarifications as to why their December, 2022 salaries were not paid and the same was replied on 26th January, 2023, while they resigned from their positions on 23rd January, 2023, on the ground of constructive or forced 2 termination, that the respondent who created an intolerable working environment which necessitated the applicants to resign from their positions. Thereafter, on 27th January, 2023, before being served with the reply letter from the respondent’s principal, the applicants filed a complaint before the CMA at Songea. In their complaint they alleged that the respondent has forced them to resign from their positions and prayed to be paid a total of TZS 22,271,926.00 being the two months salaries, notice of termination, severance payment, annual leave and compensation which is equal to 12 months’ salaries. The applicants also prayed to be given employment letter and Certificate of Service. The CMA found that there was no constructive or forced termination. It was found that, the applicants were only part time tutors and ordered them to be issued with the Certificate of Service after their resignation. Dissatisfied with the decision of the CMA the applicants have approached this court by way of application for revision raising the following issues. i. Whether the arbitrator was correct to uphold that there was no constructive termination of employment contract that made the applicants to resign. 3 ii. Whether the arbitrator was correct in ordering the applicants to be given only the Certificate of Service on the ground that they were part time tutors. The applicants prayed for this court to revise and quash the arbitral award issued by the CMA and order for the applicants to be paid their reliefs sought before the CMA. As it was before the CMA, both parties were represented in this application. While the applicants were represented by Mr. Edmund Alois Nditi, the respondent was represented by Mr. Frank J. Ngafumika, learned advocate. By the parties’ consent, the application was argued through written submissions. Both parties complied with the scheduled orders and filed their submissions accordingly. Arguing in support of the application, Mr. Nditi contended that, the applicants were fully employed by the respondent on 27/10/2021 and on the first six months’ probation period they were paid TZS 400,000.00 and after the expiration of that period they were paid TZS 684,480.00 per month. That they were paid that amount until December, 2022 when the payments were cut off despite the fact that they were still working with the respondent. That following the respondent’s refusal to pay salaries they 4 made some efforts claiming to be paid but all proved failure as a result on 23rd January, 2023, they wrote a resignation letter due to intolerable environment created by the respondent by refusing to pay remunerations which was accompanied by vague statement made by the respondent’s secretary against the applicants. Mr. Nditi went on submitting that, the respondent’s conducts forced the applicants to resign from their position, alleging that there was forced termination. That following that termination they filed labour dispute before the CMA. On 26th January, 2023, the respondent wrote an apologizing letter to the applicants on what has happened and asked them to send their complaints to the respondent’s bursar for the payment of their claims. He added that, in her letter, the respondent acknowledged that the applicants were bonafide tutors of the respondent. Since the applicants had already resigned and referred their dispute before the CMA, they never heeded to the request made by the respondent and the matter proceeded before the CMA. At the end the applicants were only awarded with the Certificate of Service and all other claims were dismissed on the ground that the applicants were not employees of the respondent but were part time tutors. Mr. Nditi argued that, the evidence given by the 5 respondent clearly shows that the applicants had employment contract with the respondent. He also criticized the CMA basing on the fact that, by considering the guidelines issued by NACTE, the applicants were not eligible to be employed on the claimed positions since those evidence were only given by the respondent during final submission which was not a proper avenue of presenting a new piece of evidence. On the issue of whether there was a constructive termination, Mr. Nditi referred to the provisions of section 36(a) of the Employment and Labour Relations Act (Cap. 366, R.E 2019) and rule 6(4) (a & b) and 7 (1) of the Employment and Labour Relations (Code of Good Practices) Rules, 2007 and argued that, the evidence given by the respondent proved clearly that there was constructive termination of employment. To bolster his argument, he cited the decision of the Court of Appeal made in the case of Kobil Tanzania Limited vs. Fabrice Ezaovi, Civil Appeal No. 134 of 2017 in which the Court cited with approval the decision of Labour Court of South Africa in the case of Solid Doors (Pty) Ltd vs. Commissioner Theron & Others, (2004) ILJ 2337 (LAC). He insisted that, in the present application, the respondent made the working environment intolerable for the applicants to continue working with the respondent as a result, they 6 were forced to resign from their positions. He prayed for the decision made by the CMA to be revised and the applicants be awarded with the prayers made before the CMA. In his short and brief reply, Mr. Ngafumika argued that, this application is misconceived and it is devoid of merits. He submitted that, for one to allege there was constructive termination, the employee must establish that he/she terminated an employment contract with the employer. He added that, in this application there was no proof that there was an employment contract between the parties and the applicants cannot be heard to have terminated employment contract. He added that, the applicants had no employment contract with the respondent after the expiry of the probation period of six months but they worked as part time tutors and they were paid allowances and not salaries. He amplified that, the applicants were paid their allowances after filling special forms and the two months which were not paid, they failed to fill the relevant forms for their payment to be effected. Mr. Ngafumika referred this court to the decision made in the case of Edward Jonas vs. Tanzania Breweries Ltd, Civil Appeal No. 394 of 7 2020 (unreported) and insisted that, this application is devoid of merit and prayed for this court to dismiss it. In a terse rejoinder submission, Mr. Nditi criticized the respondent’s counsel submission that, the applicants were part time tutors and they were paid their salaries upon filling the payment forms, something which was not testified or made known before the CMA. In respect to the parties’ relations in this application, he averred that, the applicants had a full-time employment contract and not part time as submitted by the respondent’s learned counsel. He added that, after the expiry of the probation period, the applicants remained to be full time tutors and they were paid their salaries except for the last two months before they resigned. Mr. Nditi insisted that, the applicant’s resignation was forced by the respondent’s act not paying salaries to the applicants. Lastly, he reiterated his prayer made in submission in chief. I have carefully followed the opposed submissions made by the applicant’s representative and the learned counsel for the respondent, gone through the prayers made by the applicants in this application and perused the original records from the CMA, now this court is called to determine on the merits or otherwise of this application. 8 At the outset, I hasten to state that, the submission made by both parties and the available records speak for themselves that the applicants used to work with the respondent since 27th October, 2021 to the date when they resigned that is on 23rd January, 2023. What is in dispute is whether the applicants were employed in a full time or part time employment contract. In respect to the circumstances of the matter at hand and having considered the prayers made by the parties, the issue of whether the applicants had a full time or part time employment contract needs to be looked at. In my view, the issues which this court is asked to address are only two. The First is whether there was constructive termination of employment contract and the second is what are the available reliefs. Starting with the first issue, the term constructive termination is provided under rule 7 (1) of the Employment and Labour Relations (Code of Good Practice) Rules (supra) provides as follows: “7 (1) Where employer makes an employment intolerable which may result to the resignation of the employee, that resignation amounts to forced resignation or constructive termination.” In the instant application, the applicants have the view that, their resignation in their posts was due to the respondent’s refusal to pay 9 salaries which made the working environment intolerable. On that respect, my starting point will be on section 36 (a) (ii) of the Employment and Labour Relations Act (supra). The provision reads as follows “For purposes of this Sub-Part- (a) “termination of employment” includes- (ii) a termination by an employee because the employer made continued employment intolerable for the employee;”. Now, the issue is whether the respondent caused the applicants to resign? To address this question, I have to make a clear scrutiny of the relevant law. Rule 7 (2) (i) & (ii) of the Employment and Labour Relations (Code of Good Practice) Rules (supra) provides as follows: “Subject to sub-rule (1), the following circumstances may be considered as a sufficient reason to justify a forced resignation or constructive termination. i. Sexual harassment or the failure to protect the employee from sexual harassment; and ii. If an employee has been unfairly dealt with, provided that the employee has utilized the available mechanism to deal with grievances unless there are good reasons for not doing so.” Having gone through the cited provisions, to have a clear understanding, I have been compelled to seek interpretation guidelines from court decision in our jurisdiction and outside our jurisdiction. To be in a position to make a rational decision, I wish to borrow the reasoning 10 made in Katavi Resort vs. Munirah J. Rashid [2013] LCCD 161, where five criteria to be considered in deciding on whether there is constructive termination were articulated. Those criteria were approved by the Court of Appeal in the case of Kobil Tanzania Limited vs. Fabrice Ezaovi (supra). Those criteria are: One, did the employee intend to bring the employment relationship to an end? Two, had the working relationship became so unbearable objectively speaking that the employee could not fulfill his obligations to work? Three, did the employer create an intolerable situation? Four, Was the intolerable situation likely to continue for a period that justified termination of the relationship by the employee? Five, was the termination of the employment contract the only reasonable option open to the employee? By analogy, taking into consideration the circumstances of the present application, I find the first criteria is answered in the affirmative. It is clear from the records that, the applicants really wrote letters informing the respondent that they are resigning from their positions within twenty- four (24) hours. Reading their letters, I have no doubt that they had intention of bringing their employment contract with respondent to an end. 11 Turning to the second criterion whether the working relationship between the applicants and the respondent became so unbearable, that the applicants could not fulfill their obligations, the applicants’ reason for their resignation is said to be the respondent’s refusal to pay salary to the applicants and the use of vague words by the respondent’s secretary against them that they were no longer employees of the respondent. I have made a critical scrutiny to the available evidence and found that, in several occasions before their termination the applicants used to request for the payment of unpaid salaries from the respondent. The claims were for more than one month and they still worked with the respondent. Also, it is in the records of the CMA that, apart from the salaries which the applicants were paid, they were given residential houses whereas, water and electricity bills were paid by the respondent. The applicants also admitted to have received a letter written by the respondent’s principal giving directions on how they can be paid their claims. This indicates that, there were ongoing mechanisms and the respondent was ready to pay the applicants’ claims. From all those facts, I find it is difficult to rule that, the working environment was unbearable. Therefore, the second criterion is answered in the negative. 12 Banking on the second criterion in determining this application, the answer to the same showed that, the working environment was not intolerable. As a result, the third and fourth questions do not arise. Testing the fifth criterion in determining on whether there was constructive termination the provisions of rule 7 (2) (i) & (ii) of the Employment and Labour Relations (Code of Good Practice) Rules (supra) are relevant. The rule sets the condition that, in order for constructive termination to exist, the employee’s act to resign must be one of last resort. It must be taken when there is no any other means of resolving the dispute at the work place. Failure to exhaust the available procedures may lead the adjudicating body to reject the claim of constructive termination. Borrowing leaf from other jurisdictions, in the case of Foschini Group vs. Commissioner for Conciliation, Mediation and Arbitration & Others (2008) 29 ILJ 1515 (LC), the Labour Court of South Africa had this to state in respect to constructive termination: “Where an employee resigns and claims a constructive dismissal under circumstances where he did not avail himself of an available grievances’ procedure or the mechanisms for dispute resolution provided for in the Labour Relations Act, he will have to show very compelling reasons why he failed or refused to follow the procedures available to him prior to resignation”. 13 Guided by the excerpt quoted while looking at the application at hand, it is in the applicants’ testimonies that, they orally communicated with the respondent’s bursar and secretary without success and finally they wrote a letter to the respondent’s principal who replied them that they were recognized as employees of the respondent and they must send their claims to the bursar for the payment. Instead of following the procedures given by the respondent’s principal, the applicants filed a complaint before the CMA demanding that there was constructive termination. Their reason as to why they failed to follow what was directed by the respondent’s principal is the fact that, they had already filed labour dispute before the CMA when they were served with the letter from the respondent’s principal. In my view, filing a labour dispute before the CMA cannot be a good reason making the applicants unable to follow the directives to settle the complaint. Under such circumstance, I do not hesitate to state that, their resignations were without a good reason. They resigned while there was still a room for solving their dispute without resignation. Thus, this court finds there is no cogent reason to fault the decision made by the CMA that, constructive termination was not proved and the first issue is answered in the negative. 14 The second issue is on the remedies available in this application. From what has been stated herein above, there is no dispute that, the applicants were employees of the respondent regardless of the form of employment. Also, it is clear that, they were paid monthly allowances of TZS 684,480.00 and the applicants were not paid two months allowances before they resigned. As depicted above, their resignation was voluntarily made and did not abide to the statutory requirements provided under the law. Bearing in mind that, the applicants claim for constructive termination failed, the only remedy is for the unpaid allowances. Given the finding reached, what is the way forward? According to section 41 of the Employment and Labour Relations Act (supra), the applicants were required to give notice notifying the respondent that they were terminating their employment stating the reasons and date of the notice. It is a settled law that in leu of one-month notice, the party terminating the employment has to pay a one-month salary. Analyzing the procedures opted by the applicants, it is crystal clear that they did not abide to the statutory requirements. This can be observed in their tendered exhibits P6 and P5 which show that the applicants issued the notification of forced resignation on 23rd January, 2023. The applicants’ notifications are 15 replica of each other. For the sake of clarity, I wish to quote exhibit P6 which states: “That following that Notification, I give your Office Three days to pay my Terminal dues that will be attached with this letter hereunder as the Termination has been constructively made by your Office.” The available records show that the respondent replied to their claims on 26th January, 2023. This is shown under exhibit P7 tendered before the CMA. The respondent’s letter requested applicants on two issues, I wish to quote: “Gather all the relevant documents for your claims of salary and submit to the bursar’s office for further processing your due payments. Lastly, collect all your relevant documents to support your employment claims and submit them to the office of the Interim Care Taker, who on behalf of the governing body (the employer) is entrusted with all major decisions pertaining employment issues.” [Emphasis added]. After having carefully observed the applicants’ notification and the response from the respondent, I am of the view that, the respondent’s requests were to be followed by the applicants in order to know their fate. I have failed to apprehend the intention of the applicants opting for litigation in place of following the instructions of the respondent. For a reasonable man’s logic, litigation would have been preferred after the outcome of the respondent’s request has been followed and proved to be 16 unsuccessful. The records available show that, the applicants did not honour the respondent’s request. The CMA’s judgment at page 19 show that the applicants received the respondent’s letter on 26th January, 2023 and filed their claim on 27th January, 2023. Just considering the matter deeply, it can be implied that, since the applicants’ notifications demanded action within three days, and the respondent replied after ten days, their patience left for vacation. In my view, the ten days taken to respond, was reasonable time given that an institution has procedures to respond to claims like the one at hand, this is in line with the explanation given in the respondent’s letter. Also, it is a considered view that, if there was an unreasonable delay in replying to their claim, it was wise to write a reminder to the respondent. Although, there was an option to settle the matter within the mandate of the respondent, the applicants preferred the hard way. It is well known that, remedies available in settling a dispute have to be exhausted before opting for adjudication. This was well stated by the Court of Appeal in the case of Kobil Tanzania Limited vs. Fabrice Ezaovi (Civil Appeal 134 of 2017) [2021] TZCA 477 (16 September 2021), where the Court stated: 17 “To recap, we find that the respondent's act of resignation was not one of last resort. He did not prove any condition that made the employment unbearable. He did not exhaust the dispute resolution mechanism at his disposal. His resignation was out of the blue, so to speak, and did not disclose the reason for taking that course. His employer, through Mr. Segman, was ready to discuss the matter with the respondent but the latter did not give the former the opportunity to remedy the situation. His resignation was thus tendered while there was still room for solving the problem without resignation. Constructive dismissal was not proved.” This authority cited has similar circumstance as the application at hand. The position set by the Court of Appeal is binding on this application. The applicants had a room to discuss the matter with the respondent instead of resigning and institute the claim as they did. Given the approach preferred to by the applicants, it is unfortunate that, it has proven to be futile. The applicants claimed that they became permanent employees upon the expiration of the probation period. A fact which was disputed by the respondent that they were not permanent employees and were being paid allowances upon filling in prescribed forms. That, they should fill the forms and be paid their allowances. In my view, the respondent is not disputing their allowances to be paid, provided that they fulfill the requirements stated. Taking from their allegation that they were permanent employees then, the applicants were required to follow the statutory requirement of 18 giving notice as prescribed by the law before resignation. Instead, the applicants issued a three days’ notice to the respondent. Consequently, they did not abide to the principle that the notice was to be for one-month before resigning. Failure of which, they were to give to their employer one- month salary in lieu of the statutory notice. Accordingly, if it is agreed that they were permanent employees they should have given one-month salary to their employer in lieu of the one-month notice. Thus, since they are claiming a two months’ salary, one-month salary should be deducted from the unpaid salary and each applicant is entitled to be paid only one-month salary. However, the records available do not show that they were permanent employees as they were being paid as per assignment. The records show that, they had to fill in forms in claiming their payments. At this juncture, I find it imperative to define the term employee, section 4 of the Employment and Labour Relations Act (supra) states that: “employee” means an individual who - 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 … “ 19 From the provisions of the Act, for a person to be recognized as an employee should have a contract with the employer. Apart from the respondent’s repudiation that the applicants were not permanent employees, I think, a permanent employee should prove the following: (1) Appointment letter. (2) Confirmation of the employment. (3) Contract for employment. (4) Salary deducted for contribution to social security fund. (5) Employer’s contribution to the social security fund. (6) Monthly salary. (7) Pay as you earn – tax. The applicants tendered only the appointment letter which informed them of their appointment with a condition that upon satisfaction at the end of the probation period, they would be offered with a contract for permanent employment. Both the applicants and the respondent submitted that the contract was not issued neither signed between the applicants and the respondent. So far, no proof to show that they signed the contract, no confirmation letter, no evidence that contributions were submitted to the social security fund neither proof of monthly salary paid to them. That 20 being the case, I see no cogent reason to disturb the order given by the CMA of awarding the applicants with Certificates of Service as they did not prove that they were permanent employees and that their resignation was a constructive one. The records available show that, all parties agree that there are two months allowances due to the applicants however, the respondent under paragraph 4 of his counter affidavit and the reply to the applicants’ submission contended that, the applicants should have proved the work they did so that they could be paid their allowances. In contradiction, the respondent’s letter dated 26th January, 2023 admitted and marked as exhibit P7 replying to the applicants’ claim for payment admitted and marked as exhibit P12 required the applicants to gather relevant documents on their claim for salaries and submit to the bursar’s office. The wording of the respondent’s letter shows clearly that, the applicants’ claim was recognized. If not so, the respondent could have not requested them to submit documents to the bursar’s office for payment processing. Instead, as the principal of the respondent/institution should told them the reasons for paying them their allowances. 21 In the event, from what I have endeavored to discuss herein above, I find the application is partly allowed to the extent that, the applicants are entitled to two months’ allowances and the certificates of service. This being an employment dispute, I make no order as to costs. It is so ordered. DATED and DELIVERED at SONGEA this 6th day of February, 2025. E. L. KAWISHE JUDGE COURT: Ruling delivered in the presence of Mr. Edson Mbogoro advocate holding brief for Mr. Frank Ngafumika, advocate and in the presence of Mr. Edmund Alois Nditi, applicants’ representative. Right of appeal explained. E. L. KAWISHE JUDGE 06/02/2025 22