Ruling asteria

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LABOUR REVISION NO. 39 OF 2023 (From CMA/MZA/NYAM/70/2023/32/2022 of Mwanza Commission for Mediation and Arbitration) ASTERIA LAZARO SHIHINI …………………………….…………. 1ST APPLICANT PASCHAZIA JINASA MUNGO ……………………………………… 2ND APPLICANT VERSUS EMATI ANNEX HOTEL …………………………………………..……. RESPONDENT RULING 18th & 28nd March 2024. CHUMA, J. The applicants being aggrieved by the award of the Commission for Mediation and Arbitration for Mwanza (elsewhere, CMA or Commission) in Labour Dispute number CMA/MZA/NYAM/70/2023/32/2022 preferred this application. The objective is for the Court to satisfy the correctness, legality, and propriety of the said CMA award dated 11th August 2023. The application is supported by the affidavit of the applicants herein. Their grounds for revision are pegged under paragraph 8 of the affidavit that, the CMA erred to hold that the respondent followed procedures for termination; it erred to hold that the applicant had a specific contract; and the records of CMA are tainted with errors material to the dispute. The respondent resisted the application through the counter affidavit filed electronically. 1 Briefly from the record, the applicants used to be employees of the respondent from 12.7.2021 and 14.12.2021 respectively to 28.2.2023 when the employment was terminated. Dissatisfied, the applicants filed their complaint before the CMA alleging that such termination was both substantively and procedurally unfair. They also sought to be paid TZS 2,190,000.00 and 2,135,000.00 respectively. In the end, the CMA dismissed the complaint based on the grounds that the applicant’s employment was on a specific task. When the matter was tabled for hearing, Mr. Benjamin Emmanuel, personal representative appeared for the applicants whereas Mr. Machere Mkaruka, learned advocate represented the respondent. For the application, it was the submission by Mr. Benjamini that, on page 11 of the CMA's award the arbitrator states that the applicant had no contact with the respondent. The fact that what existed was a specific task of washing clothes after being called via phone was not true. That, according to the evidence of Mr. Bele Mboje (DW1) which was captured by the CMA on pages 3 and 4 of the CMS decision, the applicant was employed under a specific task but there was no proof of that. That, failure to avail any proof of the alleged task led to proof of unfair termination. 2 According to Section 15 (6) of the Employment and Labour Relation Act, the employer should notify or consult the employee in case of any changes to the contract. that, in this matter at the end of the alleged specific task was not communicated to the applicants. Further, section 41 (a & b) of the same Act provides for the time of notice for casual labor to be four days, for a person employed on a monthly basis 28 days. The respondent never informed the applicants even if we were to agree that the applicant was working under a special task. To him, the termination was unfairly done because the employer failed to justify the termination. The nature of the claim before the CMA was the termination of employment but during the hearing, the arbitrator went wrong and accepted the evidence of the respondent on the specific contract between the parties and reached in wrong findings. The applicants worked for more than one year and eight months and were receiving Tshs. 80,000 per month each. He naturally prayed for the application to be dismissed. In reply, Mr. Mkaruka submitted that, for a person to qualify as an employer there must exist a contract, pay slip, and payment of social security funds. That, the applicants failed to prove all the criteria. On page 11 of the CMA proceedings, Mr. Belle Mboje stated that the applicants 3 were working daily only when called for one month. That it was the duty of the employer to bring the alleged contract because there was no contractual relation between them. That, the applicants were just casual laborers who were tasked only when needed. That, Section 15 (1), (2), (3) & (4) of ELRA can only be relevant if the applicant was employed by the respondents. That, the respondent had no duty to consult or notify the applicants as they were merely casual laborers. Likewise, to him, sections 41 (a) (b) and 36 are inapplicable because there was no contractual relationship between the parties. He submitted further that, the alleged receipt had a number of defects, they were copies and seemed to be not genuine. Therefore, to him, the application has no merit and he prays for its dismissal. In rejoinder, Mr. Benjamin submitted that, as long as the receipts were identified by Mr. Mboje, being copies is not an issue to curtail existed contractual relationship between the parties I have dispassionately considered the submissions for both parties. This being the second court to determine the matter at issue, it takes a form of rehearing. This court enjoys the mandate to re-appraise, re- assess, and re-analyze the evidence on the record before it arrives at its 4 conclusion. See the case of Paulina Samson Ndawavya Vs. Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017, Makubi Dogani Vs. Ngodongo Maganga, Civil Appeal No. 78 of 2019 (both unreported). Furthermore, the purpose of revision, as in the present application, was expressed in the case of I-TECH Tanzania Vs. Monica Hosea Macha, Civil Appeal No. 227 of 2020 (unreported); the Court of Appeal had the following: “The purpose of revision which is done by a superior court, is to enable that court to examine the record of the lower court in order to ascertain the legality, propriety and correctness of any finding, order or any decision made thereon and as to the regularity of the proceedings of the lower court.” All along I will be guided by the above decisions and other authorities. It is common knowledge that what brought to the height of rivalry between the parties at the CMA was unfair termination. Therefore, the duty was upon the respondent to prove that the termination was substantively and procedurally fair. The respondent denied having a contractual relationship with the applicants herein. The CMA was satisfied that there was no employment contractual relationship between the applicants and respondent, rather the applicants used to work for specific 5 tasks after being called. The issue calling for my determination therefore is whether there existed a contractual relationship. Section 61 of the Labour Institution Act provides threshold tests that must be taken into account to determine who is an employee. For easy reference, it is quoted hereunder: 61. “For the purpose of labour law, a person who works for or renders a service to other person, is presumed until the contrary is proved to be an employee regardless of the form of contract if any, one or more of the following factors is present: a) The manner in which the person works subject to the control or directions of another person. b) The person hours of work are subject to the control or direction of another person. c) In the case of person who works for the organization, the persons form part of the organization. d) The person has worked for that other person for an average of at least 45 hours per month over the last three months. e) The person is economically dependent on the other person for which that person renders service. f) The person is provided with tools of trade or works equipment by the other person. g) The person only works or renders service to one person”. 6 According to DW1, the applicants used to work on a daily basis when the need arose. The witness stated that they worked only for January 2023. On the contrary, PW1 testified that they were employed by the respondent as cleaners where they worked for 8 hours per day. The witness added that they were employed from 11.7.2021 and 14.12.2021 respectively and they were paid TZS 80,000.00 being a monthly salary. The applicants substantiated their argument by tendering exhibit P1. Having weighed the evidence on record, I am satisfied that the applicants were employees of the respondent. The evidence of DW1 that the applicants worked for only one month and paid on a daily basis is negated by exhibit P1 which demonstrates that the 1st applicant received monthly salary payments of TZS 80,000.00 on 12.11.2021, 16.12.2021, 11.8.2022 and 18.2.2023. Similarly, the second applicant received the salary on 10.4.2022 and 28.2.2023. It is crystal clear that the applicants were not only dependent on the respondent but also directly controlled by the respondent otherwise they could not have worked eight hours per day and paid monthly salary. Therefore according to section 61 of the Labour Institution Act which is couched in such a way that a person is presumed to be an employee if any one or more of about seven factors are present. In the instant case, three conditions have been established 7 such as working hours, and being dependent being controlled by the respondent apart from the issue of salary in which the record reveals that the payment was effected on a monthly basis. In addition, the argument made by the counsel for the respondent challenging the admissibility and authenticity of exhibit P1 seems to be uncalled for since the respondent did not file a revision in that respect. Even during cross-examination as reflected on pages 16, 17, and 18 of the proceedings, the counsel did not ask any question aimed at challenging the authenticity of exhibit P1. I need not cite any authority that failure to cross-examine is taken as an admission. The submission by the respondent’s advocate that the tendered exhibit P1 was just a copy not originally ought to have been raised there at not at this stage which in my considerable view is an afterthought idea. It is now clear and I will not hesitate to declare that the parties had a contractual relationship. Next is, whether termination of the employment was substantively and procedurally fair. According to rules 8(1) (c) and (d) of the Employment and Labour Relations (Code of Good Practice) Rules, 2007 read together with sections 37(2) (a) and (b) of the Employment and Labour Relations Act, for the termination of employment to be 8 substantively fair, there must be a valid and fair reason for termination of employment. In particular section 37(2) (a) and (b) of the Act reads; 37.- (2) A termination of employment by an employer is unfair if the employer fails to prove- (a) that the reason for the termination is valid; (b) that the reason is a fair reason - (i) related to the employee's conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer. In the instant application, no evidence indicates that the respondent had valid reasons for terminating the applicant’s employment. The evidence of DW1 that there was no contractual relationship and therefore the respondent did not terminate employment is inconsequential. Therefore, substantively, the termination of the applicant’s employment was unfair. Regarding the procedure applied to terminate the applicants’ employment, the record bears out nothing. Rule 9 (1) of the Code of Good Practice is couched in mandatory terms that the employer must follow a fair procedure before termination. The fair procedure involves giving notice of termination, conducting an investigation, serving charge and investigation report to the employee, hearing, right to representation, and 9 consultation. There is no evidence on record suggesting that any of such requirement was complied with. Having adjudged that the termination of the applicants’ employment was unfair, I will end my deliberation with the appropriate remedies articulated under section 40 (1) (a), (b), and (c) of the Employment and Labour Relation Act. It reads; 40.-(1) If an arbitrator or Labour Court finds a termination is unfair, the arbitrator or Court may order the employer- (a) to reinstate the employee from the date the employee was terminated without loss of remuneration during the period that the employee was absent from work due to the unfair termination; or (b) to re-engage the employee on any terms that the arbitrator or Court may decide; or (c) to pay compensation to the employee of not less than twelve months' remuneration. I therefore grant the applicants compensation of twelve months’ remuneration as prayed in the Complaint Form. In addition, they are entitled to payment of one-month salary in lieu of notice and severance pay. In the upshot, the application is accordingly allowed. this being a Labour matter, each party has to shoulder its own costs. It is so ordered. Right of Appeal fully explained to the parties. 10 DATED at MWANZA this 28th day of March 2024. W.M. CHUMA JUDGE Ruling delivered in court before Ms. Asteria Lazaro Shihini in person, and in the absence of the 2nd applicant and the respondent this 28th day of March 2024. W.M. CHUMA JUDGE 11