19750711 TZHC Arusha

I " - . I APPELLATE JU?ISDICTION Ic, IN THE HIGH COURT OF TANZANIA AT ARUSt-A HIGH COURT CRIMINAL APPEAL NO, 424k OF, ORIGINAL CRIMINAL CME NO. 202 OF 1974 74 OF THE DISTRICT COURT OF ARUSHA DISTRICT AT ARUSHA -• - Before J.A, Mroso, Esq., ----------------Resident Magistrate MIS BURKA COFFEE ESTATE LTD., -----------------. APPLICANT iIeSUs . T14E SENIOR LABOUR OFFICER ---- ------------------RESPONDENT • . - JUDGMENT Nyalàii;J. .. . . .. The appellant, nmely, BRKA ESTATE LTD, was charged on six counts withFailure to issue record of oral contract to employee c/s 35(2) (c) (d (e) (f) (g) (j) (0) (.p)., 3 and 4(b) of the Employment Ordinance, as -mended by the Security of Emplpyrent Act 1964 in the first, second and hird Counts • and with Failure to pay wages to. employee c/p.. 149(d) and 154 of the same Ordinance in.th fourth, fifth and si counts and was 'quitted in the frst thre,e counts but was convicted on. the remaining • tree.counts for which appellant was sentenced to a.fine'of shs. 300/- on each count and ordered to pay the waqes in question to the employees concernod. The fine totalling shs 900/- was paid and the wages totalling shs 8,799/15 was deposited in court. The appellant felt aggrieved by khe convictions, sentences and order and hence this appea] to this Court. • . .. . . , ,. , Briefly the fcts of the case which were not in dispute at the trial are that the three employees Who were the subject of the case were employed by the appellant as general farm workers but theiX employment was brought to an end, by the appellant on the 15th Octpher,. 1971. The threeemployees felt aggrieved' 1 the ation"of the appellant ..and they complained to the National Union of Tanganyika Workers, commonly known in brief as NUTA,' NUTA took up 'their bmolaiñts with the Labour c missioner. The complaints were investigated with the result that the Labour omissicner by letter dated 19th July, 1973 ordered the apellant to reinstate the three emloyè and pay €heñ their wages with effecf :orn 15th October, 1971. The appellant took back the three employees into ;:..i'ployment with effect from' 1st August 1973hut did not pay them any wages for the peiod when they. had nobeen taken back in employment-that is. 15th Octeber 1971 to 31st July, 1973, The matter of wages.for the period when the three employees were not tken 'back continued to be a bone of contention betwec?n the parties ,. By letter dated 22nd Jarivary, 1974 the Minister rCsponsiblC for labour matters confirmed the Qrder made by the Labour COmmssioner in July . 1973 and directed that its terms should be complied with by the appellant. The appellant still did not agree to pay wages for the period before the employe:?s were taken back in employment. Appellant was consequently charged as stated in the 4th 5th and 6th counts. It Was paft-of the prosecution -caseat the tial that the appellant was ordered by a conciliation board and by the Ninistr responsible for labour -matters to reinstate the three employees fff' that such order of reinstatement had the effect of making 'ernploynient of the three farm workers continuous without any interuption, and theref ore the worker's were entitled to wages throughout that continuous empièyment.' It' was also part of the prosecution ease. at the triathE point was repeated durjn.§ this appeal that the three workers were- not ' I.0 In short, the contract of serice or ernployrTent of the thee workers was terminated not by summary dismissals but by dismissals with payment or offer of payment in lieu of notice0 The second point for consideration and decision of the trial.court and by this court is whether any .orderof reinstatment was made by a conciliation board or the Minister under the Security of Employment Act 1964. Although the partles to this case appear to have acted as if such orders were made, the evidence suggests the contrary0 The letter ref. No0 LA3/724/467/9 dated 19th July 1973 addressed to the Manager of the appellant company from the Labour Commissioner, which was produced at the trial exhibit "A" contains no such order. That letter st.ted: "Mgogoro wa wafanyakazi hawa watajwao hapo juu ulifikishwa kwangu na Makamu wa Katibu:Mkuu we WUTA kwa barua yake Na. AG. 10/14/11/156 ye tarehe 10 August 1972 akinijulisha kuachishwa kazi wafanyakazi hawa na msimamo wa chama juu ye kitendo hicho wakita!;a warudishwe kazini hakuukuhali." . "Niliamuru tchunguzi ufanyike juu ya'shauri la wafanyakazi hawa. Ofisa akntibu/ wa kezi Mkoa wa Arusha akisaidiwa n'a .L.' wawili wa NUTA na mwakilishi mmoja upande we waajiri. .;alilichunguza shaui- hill kwa makini sana. Ripoti yao ilitumwakwangu naMwenyekiti wa Tume hiyo. Nimeona kuwa kitendoainbacho tajiri alifikiria kuwa wafenyakazi 1 -tawa walihusika nacho ha'kut&a kuvunahàla ye tajiri • wao hawakukit.enda. Tajiri aliwatilia mahaka tu kwa hiyo idara hil • imeamua kwarnba wafaiyakazi.wote watatu waliotajwa hapo juu walipwe mishahara yao yote tangu tarehe 15 Octobarl971 kwa - wakati wote waliokuwa nje ye kiwanda chako." 'Nimemtumia nakala ya barua hii Ofisa wa Kazi Mkoa wa Arusha na Katibu wa NUTA we Mkoa wa Arusha wahakikishe kuwa tiewuzi wangu unatekclezwa bila kuchelewa." Clearly this letter puzported to contain an order by the Labour Commissioner for reinstatement of the three. workers and it is clear also that the orde:de as a result of a report submitted to the Labour Commissioner by a committee of enquiry appointed by the Labour Commissioner to investigate the Labour dispute in question referred to him by the Deputy General. Secretary of NUTA O This order was not made Hby any conciliation board or by the'Minister hearing an appeal from a V conciittion board as provided .under sections 24 and 26 of the Security of Employment Act To my knowledge there was and still there is no law in this country which empowers the Labour Commissioner to make such order. , The order therefore had no legal force. Furthermore, the commltteóf enquiry was not a conciliation board I constituted under the Security of Employment Act for, . it were, it would flothvéibmitted a report to the Labour Comrissionor but would have made its own decision on the case and the, ppal:goes straiht to the 4 matters. Whet appears to have happened in this case is that the Deputy General Secretary of .NUTA reported atrade dispute to the Labour Commissioner as provided by Section 4(1) of the Permanent Labbur , Tribunal Act, 1967 which states: "Any trade dispute, whether existing or apprehended, if not otherwise, determined, may be reported to the Labour Commissioner by notice in writing given either by or on behalf of the employer or, on behalf of the employees, by the General Secretary of a registered trade union of which the employees are members," I Lij -5- It also appears that the Labour Commissioner upon receipt of the report by the Deputy General Secretar' of NUTA, decided ti act under Section 9(1) of the same Act which states: "Where any trade disp4te exists or is apprehended, the Labour Commissioner may, whether or not the trade dispute is reported to him under the provisions of this Act, inquire into the causes and circumstances of such trade dispute and, with the approval of the Minister, •refer any matters appearing to him to be connected with or relevant to such trade dispute to the Tribunal and the r'1' "Tribun'al shall 'tniirb into the matters referred to it and report thereon to the Minister:" The fa­BoUt Commissioner after completing his inquiries through the committee of -inquiry which he appointed, should, if he felt there was need, have referred any relevant matters to the Permanent Labour Tribunal with the approval of the Minister, ir.stead of proceeding as he did, to make an illegal order of reinstatement0' To my knowledge also, there was and there is still no law in this country which enables the Minister responsible for labour matters to nfirm such an illegal order made by the Laboir Commissioner0 What this ans in effect is that the letter by the Minister dated 22nd January, 1974 ref. No. ARU/609/11/136 purporting to confirm the Labour Commisioner's order had no legal force0 It can be argued that the Minister's letter contained a political decision, but it will still be true that such a political decision unless translated into law, cannot be the subject of law enforcement. It can of course be politically enforced. In shôt there were no order of reiñstatemnt me by"anfl.côiUathion hoard or the Minister responsible for labour in this case. On thG'ther hand, evenif there had been such an Order made, the order would hae been ultra vires - that is outid the legal powers of the Minister or. conciliation board since before Labour Laws (Miscellan'eous). Amendment Act No, 1 of 1975 was passed, the Minister and conciliation board had no legal powers to order reinstatement of employees who are not summarily dismissed as it was in the present case, • The tt-iird point, for consideration in this case is whether the appellant was legally bound to pay wages to the. three workers for the period fore appellant took them back in employment. Since the'e was no legally binding ordCr.reinstatement, the employment of those employees, for pu'poses of payment of w'ages cannot be construed to have been continuous. What this means is that the workers concerned were not in the employment ot the appellant be,teen 15th Octobcr,1971 and 1st July, 1973.. They were therefore not legally entitled to any wages for that period and, the employer w,as not legally bound to pay them . for the same period. In short it can be, said that NO EMPLOYMENT NO WAGES. The appellant was therefore wronglyconvicted on the 4, 5. and 6th counts for failure to pay wages. The convictiOns are hereby quashed, the1. sentnece and order are 'Set aside adbit is hereby' directed that the sum of shs. 900/- paid by appellant as a fine and shs. 8,799/15 deposited as wages be refunded to the appellant 9 . - F.L. Ny ali, - Ag. J. . . ' • Judgment delivered in open court this 11th day of July, 1975 at Arusha in t1e presence bf Mr. Kapoor,/Avocatefor appellant and Mr. Mwipopo, state Attor'ne'.- - . F.L. Nyalali Ag. J. 11/7/1975 VS