asha abdallah vs general manager keko madawa 2007 tzhc 316 6 february 2007

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL APPEAL NO. 235 OF 2003 ASHA ABDALLAH.............. ......APPELLANT Versus GENERAL MANAGER KEKO MADAWA ........ RESPONDENT

JUDGMENT ORIYO, 3 In Employment Cause No. 2/98 in the Resident Magistrates Court at Kisutu, the appellant had sued the respondent for the following orders (a) 30 days wages in lie u o f notice. (b) W ages fo r Ju ly 1994 from 1 - 27/6/98. (c) R ent allow ance fo r June 1994 (d) Transport allow ance fo r June 1994. (e) W ages o f 28 days in lie u o f1994 leave. (f) Severance Allow ance fo r 13 years. (9) G ratuity fo r 13 years (h) Incentive fo r Long service. CO Fare from D ar es Salaam to Musom a l (j) Transpsort costs fo r 1 V2 from D ar es Salaam to Mwanza / Musoma and Tarime. On 10/10/2003 the trial court ( learned H. Kalombola, PRM) granted the plaintiff items (a), (b), (c), (e), (f) and (h) only. The plaintiff felt aggrieved by the decision and lodged this appeal; with two grounds of complaints. The first complaint was against the refusal to grant her transport and traveling costs to Tarime the place of her husbands domicile. The second complaint was against refusal to grant her salary for July 1994 and a gratuity for 13 years. The brief history of the matter was that the appellant was employed by the respondent as a laundry attendant on 1/8/81 by an oral contract of service. On 27/6/94 the appellant was on disciplinary grounds dismissed from employment. However, on 2/9/97 the Minster for Labour ordered that she be terminated instead of being dismissed. The Ministers

decision was made under Section 26 (2) of the Security of Employment Act, Cap 387 R. E. 2002; hence the Reference to the Magistrate by a Labour Officer, in Employment Cause 2/98. In the appellate court the Memorandum of Appeal was filed by a Labour Officer but the appellant appeared in person throughout the proceedings. For the respondent, initially M/S Kariwa and Co. Advocates appeared but later withdrew for lack of instructions. 2 Subsequent summons were served to the respondent at its registered offices / factory and were duly acknowledged on 28/7/2006 and 22/9/06 but the respondent defaulted appearance and appellant was granted leave to proceed and argue the appeal exparte by way of written submissions. The judgment was therefore made exparte. On the merits of the appeal; the court has to determine whether the appellants claims for Fare and transport to Tarime, salary for July 1994 and gratuity for 13 years were her entitlements either under the Oral Contract of Service of 1/8/91 or under the law; and which laws. In her submissions, the appellant argued since it was established at trial that the respondent knew that the appellant got married in 1993 to a man from Tarime; automatically the respondent was bound to pay her fare and transport to her husband's place of domicile on termination of employment. On that basis she contended that the respondent was also bound to pay

her a subsistence allowance of shs. 15,000/= per day from termination date to date of actual payment of repatriation expenses. She cited the provisions of SECTION 53 (3) (b) of the EMPLOYMENT ORDINANCE CAP 366 ( now The Employment Act, Cap 366, R.E. 2002) in support of her contention. SECTION 53 states as follows:­ " 53 (1) Every employee who is a party to a contract who has been brought to the place o f em ploym ent by the em ployer o r by any person acting on behalf o f the em ployer sh all have the right to be repatriated a t the expense o f the em ployer to his place o f engagem ent in the follow ing cases (a) -( e ) N ot relevant (2) N ot relevant. 3 (3) The expenses o f repatriation sh a ll include (a) traveling and subsistence expenses o r rations during the journey, and (b) Subsistence expenses o r rations during the period if any between the date o f term ination o f the contract and the date o f repatriation." SECTION 53 (1) above stipulates conditions for the payment of repatriation expenses to an employee who was brought by the employer from else where other than the working station. In this case the appellant was engaged in 1981 when she was resident of UKONGA, DAR ES SALAAM; according to a copy of the Record of an Oral Contract of Service between the appellant and the respondent, dated 1/8/81 admitted as Exhibit "D l" at the trial. However, for undisclosed reasons

the respondent used to pay for appellant's leave expenses to Kisasrawe, Coast Region, as per Exhibit "D3" at the trial. Although according to the record the place of domicile of the appellant was Ukonga, Dar es Salaam, the respondent had by mutual agreement agreed to pay the appellant's leave fare and allowance to Kisarawe, Coast Region. Therefore at termination, the respondent was bound to pay repatriation expenses for the appellant to Kisarawe, Coast Region. However, the appellant was duly married here in Dar es Salaam on 10/7/93 to one ISSA MAHENDE MWITA from Tarime. The marriage did not automatically change the terms of Contract of Service between the appellant and the respondent including the place of domicile of the appellant. The appellant did not ask the respondent to change her records to reflect her change of place of domicile if any. Even in her application for 1993 annual leave she applied for fare by road to the same place of domicile, that is Chole Semvula, Kisarawe. Since the appellant's contract of service remained unchanged after her marriage, the respondent's liability to pay for the appellants repatriation expenses to Kisarawe also remained unchanged. 4 According to the provisions of SECTION 53 (3) (supra) " repatriation" expenses included rations during the journey and subsistence expenses. But in view of what has been elaborated above, the appellant was not

entitled to repatriation expenses to Tarime. It follows therefore that no subsistence allowance / expenses were due either. Therefore ground one of appeal has no merit and fails. On the second ground of appeal, the complaint is against refusal to pay her a salary for July 1994 and a gratuity for 13 years. Having perused the trial record thoroughly, I still failed to get the significance of the appellant's claim for the salary for July 1994. If it was a claim for June 1994 salary, that would be relevant because she was terminated on 27/6/94, having worked almost for the entire month of June. According to the Decree of the trial court, one of the prayers granted to the appellant was under item (b), that was " Wages for July 1994 from 1 - 27/6/98." So the salary for June 1994 was granted and could not form a valid ground of complaint against the trial court decision. This head of claim also fails. On the claim for payment of gratuity for 13 years, the appellant relied on amendments of March 1993, effected to the Voluntary Agreement, paragraph 25 thereof. At page 6 of the amendments, paragraph 25 provides as follows in Kiswahili:- ” Mfanyakazi ambaye atapunauzwa kazi ( redundancy). kustaafishwa au kustaafu baada ya kukitum ikia kiwanda kwa miaka 10 au zaid i atapewa kiinua maonao maalum sawa na mshahara wake wa mwisho wa m wezi mara miaka aliyofanya kazi kiwandani." ( emphasis

supplied) The paragraph covers employees declared redundant or retired only. It does not extend to those " terminated ( kuachishwa)" or those " dismissed ( kufukuzwa)". The appellant was terminated and is not entitled to a payment of gratuity. The last head of claim also fails. 5 On the foregoing, the second ground of appeal also lacks merit and fails. In the result, the appeal is dismissed but in view of the fact that the appeal proceeded exparte, I make no order for costs. 6