20150527 TZHC Mbeya2

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT MBEYA CONSOLIDATED REVISION NO 19, 20 OF 2014 NOAH MUSANGILE........................... APPLICANT 4 if VERSUS TANZANIA BREWERIES LTDSS.S............. RESPONDENT JUDGEMENT IoIr%AIIrtI lJdL UI LdSL jiuei £OJ U'tj £Ui. Date of Judgement 27/05/2Ô15 NYERERE,) This is a consolidateddecision in respect of revision No 19 and 20 all of 2014 filed ath çMA.and in this court separately and was heard at the CMA and in fhS c 'parately but in the course of writing judgement I find the tworeion is similar but maybe was construed differently by the CMAapd I decide to consolidate them together. In Rvision No. 19/2014 Arbitrator framed the following issues for decision: a) Whether there was a valid contract both between the complainant and respondent. El' It' ) Whether the termination was fair on grounds, valid reasons and procedure. What are reliefs to the parties And in Revision No. 20/2014 arbitrator framed the following issues: Whether the complainant was discriminated Whether there are reliefs to the parties. From the above framed issues by arbitrator his decisiOn in both applications was that there was no employment relationships persisted between the two parties and dismiss both aiplications. Such a decision aggrieved applicant who is seeking' évsio of the CMA decisions on ground that it was procured wfth matErial Jeregularities which occasion's injustice to him. During hearing of tills àpIication applicant appeared in person while respondent was represerIted by Mr. Mika T. Mbise learned counsel Hearing proceed orally whei-e both parties submitted what they believe to be their positions. , Faulting thCMA decision applicant submitted that CMA award was procuThd with' material irregularities as it contravene section 88(9) of the Employment and Labour Relations Act, No. 6/2004 (Act) which direct CMA award to be delivered within 30 days from the date CMA proceedings concluded. [2] A l~ I- He further submitted that he was terminated by respondent on 28/03/2013 and the advanced reasons for termination was discrimination but Arbitrator erred not to consider that reason and decided that there was no employment relation between the parties. Also arbitrator failed to consider the facts that he was not paid his salaries for three months. In responding to applicant submission Mr. Mbise learnd counsel submitted that TBL has never employed applicant in anpost within its organisation but he was employed by Kanyota Com5ny, a company which supply TBL with casual employees; That TBLhã.s contract with Kanyota Company and not applicant. He further sUbnjittéd.h't applicant was once applied for employment at the.;.T13L.onr19/0772012 but he failed the interview. He said following the.ppIicbehavior TBL instructed Kanyota Company to stop bringingapplicant ..at TBL and TBL management instructed his guard to stoaipiicant to enter TBL premises. He further submittedJ:htCMA Arbitrator failed to decide the issue of fairness of term iihiationh,, after dully finding out that there was no \.. •1 -\ employment rtiÔhship between applicant and respondent. Hence he prays thi itÔ ifsmiss this application as it lacks merit. cQCIO, Nft.e r going through both parties' submissions courts records as well relevant applicable laws the key issues for determinations in this case are: a) Whether or not the CMA award was delivered contrary to section 88(9) of the Act. [3] ,kN 14 "For the purpose of labour law, a person who works for, or renders service to, any other person is presumed, until the contrary is proved to be an employee, regardless of the form of the contract, if any one or more of the following factor is present; The manner in which the person works is subject to the control or direction of another person; The persons hour of work are subject to thontol A direion of another person, In the case of person's work for an o?ganization, thperson is part of the organization; The person has worked for thatotheperson for an average of at least 45 hours per month over \th last three months The person is economicaJl dep'dnbôn the other person for who that person works6frendér séyic& The person is pr&4ded with 'tools of trade or works equipment by the other person, or The person ôn!y works fr or renders service to one person". In strengthening the emove of the complexity in determine existence of emplo'mentcélationship, ILO Employment Relationship Recommendation 18ofOO6, provide in paragraphs 9 that; 11 9 for workers in an employment relationship, the )i\ • deterp\inaion of the existence of such a relationship should be guided frimari$' by the facts relating to the performance of work and reniÜneration of the worker, notwithstanding how the relationship is characterized in any contrary arrangement, contractual or otherwise, that may be agreed between the parties. [6] In our instant case it evidenced that applicant was not paid by respondent despite the facts that he rendered service to the respondent also it is evidenced from the records that applicant was employed by Kanyota Company, a company which has contractual relationship with respondent to supply casual labourers when needs arises a testimony which were never disproved by applicant In the circumstance therefore following the relevant essential element as stipulated under section 61 of the 'aLour Institutions Act, No 7/2004 and wisdom from the ILO EmploypieI* Recommendation 198 of 2006 it is clearly that applicant ias.notemployeé of respondent due to; he was not paid salary by respdndent, he •ws not under the control of respondent thus why when aplicant behavior changed respondent instructed Kanyota Company. to act, he was not part of respondent's organisation as he wai not getting anything from respondent like, ID card, NSSF contributions,'Salary, Medical or any allowances That b théae I find no need to fault the CMA decision that there was io empioy.frient relationship between the parties. And following these findings i' fid the rest of the issues to be answered in negative. kkl"\ [7] I In the end result I find this application lacks merit and I dismiss it. It is so ordered. ACNyerere JUDGE 27/05/2015 Order This signed Judgment is submitted to the Deputy Registrar, with instructions that parties to be summoned and judgment to be delivered to them A.0 Nè'rere JUDGE 27/05/2015 a