ARUSHA INTERNATIONAL CONFERENCE CENTRE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB-REGISTRY)

AT ARUSHA MISC CIVIL APPLICATION NO. 210 OF 2023 (Arising from the order of the High Court of the United Republic of Tanzania, Arusha Sub Registry at Arusha, in PC Civil Appeal No. 53 of 2022, dated 20th June 2023 Hon. D.C. Kamuzora, originating from the decision of the District Court of Arusha in Civil Appeal No. 41 of 2021, originally from the decision of Arusha Urban Primary Court in Civil Case No. 322 of 2020) ABISAI NGAJIRO............................................................................. APPLICANT

VERSUS LULU JULIUS.................................................................................RESPONDENT

RULING 03rd April, 2024 TIGANGA, J; This is an application for re-admission of the appeal, PC Civil Appeal No. 53 of 2022 which was dismissed by this Court, Kamuzora, J. The application was made by the Chamber summons under Rule 17 of Civil Procedure (Appeals in Origination in Primary Courts) Rules G.N 312 of 1964. The application was supported by the affidavit of the applicant in which the reasons for application were advanced. The application was opposed by the Respondent by filing the counter affidavit which was also accompanied by a preliminary objection on the ground that, the application is hopelessly time barred as it was filed out of 60 days a time prescribed by law. i On the date when the preliminary objection was fixed tor hearing, the counsel for the applicant Mr. Magezi conceded to the preliminary objection raised, he asked the court to struck out the application but asked for the Court to waive the costs of the application. In reply, Ms. Jenipher John, learned Advocate for the Respondent, submitted that she has no objection to the concession made by Mr. Magezi, however, she insisted that since her client has incurred costs, then she is entitled to the costs of the application. In rejoinder, Mr. Magezi insisted that the concession wanted to serve the time of the Court and that of the parties. He also informed the Court that, the Notice itself was raised orally, and

had the same been raised in a written form, the applicant would have seen it and conceded much earlier. He prayed for the Court to waive the costs. It is a principle of law that, generally, the victorious party in Civil Proceedings or proceedings of a civil nature, must be awarded the costs he spent in either prosecuting or defending the matter before the Court. However, the general rules regarding the award of costs have exceptions geared by a number of factors, one of them is the readiness of the party against whom the costs are to be ordered to concede to the motion advanced by the other party in favour of whom the costs should be awarded. That said, in the case at hand, the applicant's counsel has conceded to the raised preliminary objection something that entitles him to the leniencies of the Court in awarding costs. The fact that the counsel has conceded does not obliviate the fact that the respondent spent some costs by hiring an Advocate to represent him. That means, it will not be just to waive costs for 100%, instead for justice's sake, the amount may be reduced. That said, I award V2 (50%) costs of the Applicant, which had already been spent up to when the application was withdrawn. In light of the above, I uphold the preliminary objection raised, dismiss the application in terms of section 3 of the Law of Limitation Act [Cap 89 R.E. 2019], and award 1/2 (50%) costs to the application as indicated hereinabove. It is accordingly ordered. DATED and delivered at ARUSHA on 03rd April 2024. 3 X i

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB - REGISTRY

AT ARUSHA LABOUR REVISION No. 48 of 2023 (C/f Labour Dispute No. CMA/ARS/ARS/126/22/76/2022) ARUSHA INTERNATIONAL CONFERENCE CENTRE....................... 1st APPLICANT THE ATTORNEY GENERAL............................ .................................2NDAPPLICANT

VERSUS DAVID LEMILIA...............................................................................RESPONDENT

JUDGMENT 22nd February & 5th April, 2024 TIGANGA, J. The applicant seeks revision of the decision from the Commission for Mediation and Arbitration of Arusha (the Commission) in Labour Dispute No. CMA/ARS/ARS/128/22/78/2022 dated on 18th July, 2023 by 0. Mwebuga, Arbitrator. The application was brought under section 91 (1) (a), (2) (c) and 94 (1) (b) (i) of the Employment and Labour Relations Act, No. 6 of 2004, R.E 2019 (the ELRA) and Rule 24 (1), (2) (a) (b) (c) (d) (f), (3) (a) (b) (c) (d) and 28 (1) (d) and (e) of the Labour Court Rules, 2007, GN. 106 of 2007 (Labour Court Rules). i Brief history of the dispute shows that, the respondent is a professional Civil Engineer and he was employed by the 1st applicant on contract in different time and post. That, he was initially employed as a Clerk of Works from 2016-2017, Estate officer in 2018 and later as a Principle Estate Officer in 2019 as seen in exhibit PI collectively. The main respondent's grievance was the fact that, he was assigned a lot of activities with low or no allowance at all, thus, he prayed to be given more allowance as seen in exhibit P2 and P4, P5 and P6. However, according to the respondent, he was given such allowances but it was too little compared to the workload given to him and as a result he failed to meet the target expected by the applicant herein. That, he requested the applicant to reduce some

duties assigned to him because once he was promoted to Principle Estate Officer, he was still doing the duties of the Estate Officer and a Project Manager at the same time, however, the same did not materialize. He thus sought help from TUICO as seen in exhibit P8 to intervene the matter but it was all to no avail. He therefore decided to resign on the ground that, the working condition became intolerable for him as the applicant was intentionally frustrating him which led to his resignation. According to CMA F.l, he prayed to be paid 84,261,769/= as specific damages and Tshs. 100,000,000/= as general damages and a Certificate of Service. The applicant's narration of event is different, according to her, the respondent was a good employee however, he did not have a good relationship with his fellow co-workers. That, he never followed hierarchical positions in pursuit of his alleged infringed rights as he always went to the Director instead of starting with supervisors or head of his department. She also challenged the fact that, when the respondent was employed as Principle Estate Officer, his position as Estate Officer ceased so he was not working both positions as claimed. Further that, the Project Manager was a short term position and the respondent was promoted due to his good performance not with intent of frustrating him, but he wanted to be paid for two or three jobs at

per which was not as per the contract agreement. According to her, the respondent is not entitled any compensation because, he resigned on his own volition. After the Commission heard both parties, it decided in favour of the respondent herein on the ground there was constructive termination as the contract was breached following intolerable working conditions. The Commission awarded him a total of Tshs. 74,066,512/=. Aggrieved by the Award, the applicant preferred this application and according to his application urging this Court to revise the Award on the following grounds as gleaned from paragraph 5 of the applicants'joint affidavit; 1. That, the Arbitrator erred in law and fact in making orders that the respondent was constructively terminated despite the fact that, there was no evidence adduced to prove grounds for constructive termination.

2. That, the Arbitrator erred in law and fact in making orders that the respondent's promotion aimed to subject him to unfair, harsh and hostile working conditions while he had a right to disagree with the promotion instead of voluntarily agreed with the same.

3. That, the Arbitrator erred in law and fact in considering that, the respondent had a legitimate expectation for contract renewal despite the fact that he voluntarily issued a notice to terminate his contract before the end of fixed contract period.

4. That, the Arbitrator erred in law and fact in failing to properly analysing the evidence adduced before reaching the correct Award. Hearing of the application was by way of written submissions, the applicants were jointly represented by Mr. Hance Mmbando, State Attorney whereas the respondent appeared in person, unrepresented. Submitting on the first ground, Mr. Mmbando submitted that, for an employer to resign on the ground of intolerable working conditions, he has to prove the same pursuant to Rule 7(2)(a) and (b) of the Employment and Labour Relations (Code of Good Practice) G.N No. 42 of 2007 (Code of Good Practice). Learned counsel also cited the cases of Girango Security Group vs Rajabu Masudi Nzige, Labour Rev. No. 164 of 2013 and David Msangi & Another vs National Oil (T) Ltd, Revision No. 397 of 2016 (both unreported) which raised five principles which must be proved to justify constructive termination. He argued that, the respondent did not meet any of the conditions. On the 2nd ground, learned counsel submitted that, the Commission erred in holding that, the respondent's promotion aimed at subjecting him into unfair, harsh and hostile working conditions while he had a right to disagree the promotion and its consideration thereof. That, the Arbitrator erred in failing to consider DW1 and DW2's testimonies that, the respondent's promotion was an incentive due to his

hard work. On the third ground, Mr. Mmbando submitted that, a reasonable expectation of renewal must be proved by a clause in the contract or if there are prior other agreement between the parties. In the matter at hand, the expectation of renewal was not proven by the respondent hence the Arbitrator erred in considering as compensate him on the same. He referred the Court to Rule 4 (2) of the Code of Good Practice and the case of National Oil T Ltd. Vs Jaffery Dotto Msensemi & Others, Revision No. 558 of 2016 [2018] TZHCLD 20 which provides that, where the contract is a fixed term contract, the contract shall terminate automatically when the agreed time expires. On the forth ground, learned counsel submitted that, the Arbritrator did not analyse the evidence brought before it thoroughly, because it did, it would have arrived to a different conclusion. That, all the contracts between the parties showed which benefits the respondent was entitled which were monthly salary, house allowance, utility and special allowance only. Also according to exhibit P2, P2 and P6 all of the respondent's claims were replied, thus, the Arbitrator erred in holding that, the respondent lacked support from the applicant. He prayed that, this application be allowed and the Commission's Award be revised and quashed in its entirety. 6 In reply the respondent submitted on the 1st ground that, the

condition stated to prove constructive termination as provided under Rule 7(2) (b) of the Code of Good Practice and Girango Security Group (supra) has been met. Starting with the first principle as to whether the respondent intended to bring the employment relationship to an end, he argued that, the evidence on record is Exh.P7 (Respondent's resignation letter dated January5, 2022). is the crucial proof in fulfilling this condition, as held in the case of Theopista E. Maziku vs. Msama Promotions Co. Ltd. Labour Revision No. 456 of 2020 (unreported). That, by the 1st applicant replying acceptance the respondent's intention to resign (Exh.P9 2022) impliedly meant that she agreed to the grievances, which forced the respondent to terminate the contract. As to the second principle, the respondent submitted that, the working relationship becomes so intolerable as the employee could not fulfill his obligation which started with applicant withholding respondent’s payment and entitlements such as which are 40% of the annual leave payment, air time allowances and gratuities. He further argued that, at the Commission, the first applicant was not been able to produce any evidence to prove that 7 the respondent was not entitled to these payments as per Section 15(6) of the ELRA therefore she is estopped from denying the same. He averred that, withholding employee's payment, which is

important for his survival, created intolerable condition of work as held in the case of Peter Rwegasira vs. Northern Engineering Works Ltd. Regarding the third principle respondent submitted that, his contract was changed without him being consulted. That, he was changed the position of EO-I to PEO-I. Also, while in the position of PEO-1, he was appointed as Project Manager. According to him, these multiple assignments influenced him to write the first applicant a letter (Exh. P5), requesting a reduction of duties as stated on page 2 of the Award; however, his letter was never replied. He also argued that, due to the multiple assignments and duties he prayed for an honorarium amounting to 10,000,000/= but his request was denied. He contended that, the first applicant acted contrary to section 15 (4) of the ELRA which requires any changes to the employment contract to be made in consultation with the employee, a duty which she did not discharge hence made his employment intolerable. On the fourth principle on whether an intolerable situation is likely to continue for a period that justifies termination, respondent submitted that the same has been covered in the second principle. He maintained that, he was subjected to harsh working condition based on an unproven allegation of insubordination, poor performance of work, and delaying to provide responses. Respondent went on

submitting that, his termination of the employment contract was the only reasonable option open to him because after seeing that, the working condition was not favourable for him, he presented his concerns to the first applicant. He also tried to make efforts to resolve the matter amicably and internally however, all efforts were futile. He lastly challenged the Commission for not awarding him air time allowances, honorarium, and salary for acting as department director. He prayed that this Court find this Revision meritless and upholding the Commission's Award. He further prayed that, this Court grant, all those reliefs which were not granted by CMA as prayed in Form No. 1, which covers a salary of 68,369,208 TZS, resulted from changing contract without consultation with the respondent, and for maliciously subjecting him to an insufferable life after employment, withholding payments and terminal benefits amounting to 46,124,152 TZS, severance pay amounting to 9 1,329,401 TZS, and a termination letter in order to facilitate the Respondent's benefits withdrawal process with PSSSF. After considering both parties' affidavits, submissions and after a thorough perusal of the records and Award of the Commission, it is undisputed that, the applicant had two-year fixed term contracts with the respondent from 2016 and the last contract was renewed from 1st June, 2020 to 30th May, 2022. However the same was cut short due to respondent's resignation on the ground that, the working condition become intolerable for him. Questions to be determined by this Court which covers all grounds of revision raised will include the following which I will answer interchangeably; 1. Whether the applicant was treated unfairly leading for his early resignation.

2. Whether the Commission wasjustified to grant his claims. According to the respondent, he decided to quit after his working environment became intolerable i.e. constructive breach of contract. Rule 7 (1) (2) and (3) of the Code of Good Practice reads; "7 (1) Where an em ployer makes an employment intolerable which m ay result in the resignation o f the employee that 10 resignation amount to forced resignation or constructive termination. (2) Subject to sub-rule (1), the follow ing circum stances may be considered as sufficient reasons to ju stify a forced resignation or constructive term ination - (a) sexual harassm ent or the failure to protect an employee from sexual harassment; and (b) if an employee has been unfairly dealt with; provided that the employee has utilized the available mechanisms to deal with grievances unless there are good reasons for not doing so. (3) where it is established that the em ployer made employment intolerable as a result o f resignations o f the employee, it sh all be legally regarded as the term ination o f employment by the em ployer." In the case of Katavi Resort vs. Munirah J. Rashid, Labour Division at Dar es Salaam; Labour Revision No. 174 of 2018 laid down principles for constructive termination as follows; 1. The em ployer should have made the employment intolerable.

2. Termination should have been prom pted or caused by the conduct o f the employer. li 3. The employee m ust establish there was no voluntary intention by the employee to resign. The em ployer m ust have caused the resignation.

4. The Arbitrator or court m ust look a t the em ployer's conduct as a whole and determ ine whether its effects, judged reasonably and sensibly, is that the employee cannot be expected to put up with it. From the above positions it is therefore important to note that in order to determine the issue of constructive termination/resignation, it has to be proved that the employer created intolerable employment conditions to the employee. In the matter at hand I honestly do not see how the applicant contract was breached constructively. I hold so because from his evidence, the respondent averred that, there were a number of reasons that made him quit to wit; he was assigned more tasks that he could handle with low to no allowances at all. Going through the evidence, exhibit P5 which id the renewal of a contract from 1st June 2020 to 30th May, 2022, showing the respondent was contracted as Principle Estate Officer. In clause 7 of the said contract the duties and responsibilities are laid down, which he gladly accepted. According to the respondent, following such position, he was assigned other 12 tasks which overwhelmed him hence, he tendered his resignation letter on 5th January, 2022. Going through the exhibits in relation to the respondent's evidence, I have realised the following; First, prior to the above latest contract was signed, the respondent had been also appointed as a

Project Manager for the construction of the OPD building at AICC Hospital in Arusha on 26th March, 2020 which was still on going. He was also engaged in preparation and establishment of a Polyclinic Project, Phamarcy shops and washrooms. He was also engaged in daily duties which included supervision of houses and office repairs as well as responding to tenancy concerns. Following all these tasks, he wrote to the applicant, exhibit P5, requesting for exemption of the latter task so that he could concentrate of the other tasks. The same was never replied. Second, on different occasion the respondent was requested by the respondent to consider him allowance such as air time and phone which other senior staff members were given, responsibility allowances and salary increment due to his outstanding work and for extra tasks that were assigned to him but the same were denied as clearly seen in exhibit P6. Third, the respondent, had prior arrears, including his allowance when he acted as Director of Estate and Projects on two different occasion. He was never paid on the ground that, the posts did not exceed fourteen days. In the case of Access Bank Tanzania Ltd vs Raphael Dismass, Labour Revision No. 53/2015 (unreported) it was held that; "Constructive term ination is based on employee term ination or voluntary resignation but this term ination or agreem ent to resign is instigated or

caused by the actions o f the em ployer." Applying the above position to the case at hand, due to the reasons above, I agree with the Commission that the applicant was the one who created intolerable working environment that led to respondent's resignation. The first issue is therefore answered in affirmative. Regarding to the 2nd issue, I agree with the Commission that, since I have maintained that the environment was no longer favourable the respondent had no choice but to resign. However, I do not agree with the Arbitrator's reasoning that, there was an expectation of renewal, considering the tense relationship that was accelerating as seen in the letters submitted as exhibit P2, P4, P5, P6 and P8 which shows that, the parties have been tried to settle the matter to no avail. Logically speaking, their relationship did not attract 14 any form of renewal of contract. This being a fixed term contract which in term of Rule 4 (2) of the Code of Good Practice the same expires automatically upon expiry of the fixed term stipulated in the contract. In the case of Dar es Salaam Baptist Sec School vs. Enock Ogala Revision No. 53 of 2009 HC Labour Division at Par es Salaam (Unreported) Rweyemamu J, (as she then was) held that; "... where the contract is a fixed term contract, the contract sh all term inate autom atically when the agreed period expires, unless the contract provided

otherwise or there were no expectation o f renewal, the contract would have expired autom atically with no need to write a term ination le tte r." Adopting the position above and applying to the present revision, the fact that the contract was of a fixed term, and the fact that the respondent failed to establish if there was expectation of contract renewal, the same ould have come to an end when the contract expires. This position was also observed in the case of National (T) Oil Limited vs. Jaffery Dotto Msensemi @3 Others, Revision No. 558 of 2016, HC at Dar es Salaam (unreported). 15 In the circumstances, since the respondent gave his notice as per the contract, the only compensation entitled to him is to be paid the salaries for the remaining months of the contract which were February, March, April and May 2022. Thus I vary quash and set aside the amount of Tshs. 74,066,512/= and in alternative orders the following; 1. Notice; Tshs. 2,848,712/= 2. Compensation of 4 months remaining in a contract. Tshs. 2,848,712 x 4 = 11,394,848 3. Leave payment Tshs. 2,848, 712/= Total Tshs. 17,092,272/ = In light of the above analysis, this application for revision is merited to the extent explained above. This being labour dispute, I give no orders as to cost. It is so ordered. DATED and delivered at ARUSHA this 5th day of April, 2024 J.C. TIGANGA

JUDGE 16