19990816 TZHC Tabora

/ ,..-✓ /. . IN THE ,..)IIG~ COURT ~F TANZ.ANIA A'l' TABORA .. ·....:·· .... ··.'... ,. .CIVIL APPEAL ~ 3 OF 1997' NO •. . ( ORIGIN4L CIVIL DASE NO • 10 OF ·1996 nISTRICT ~ COURT J3HINYANGA) ~ . ~- . ·"· ,. '.,;• CHAMA I SHIGELA e • • • • • O. O. 6' ~ • • O·!J •.• e • e e e e e APPELLANT VERSUS THE MANAGER SHINYANGA REGION CO~PERATIVE · UNION ( 1984) LTD • • o • " • 0 • • • .. 0 • • • • •.,•' • • • • RESPC;)NDENT .• . ·_.:.- .... · J U·D·G,M-E NT Until 23rd March, 1990, When his oontraot 0£ employment was bro\18ht .. to an end,. qhama . ..~higela. . ... . . .. . . ' . .. 1 the plain.ti.ff :was employed . by. : the Shinyanga._ Region Co-operative Union ~ (1984) Ltd. It wa~ one of the principal terms of the contract of employment that the contract could be.determined by either side after serving the other side with a tbxee months' notice -or by paying to him/it one months' salary in lieu thereof'. It is a't'ered in the pleadings when the employer commr..nicated the decision that the plaintiff's employment had been terminated without complying with the contractual requirement for a·notice. It was not until the plaintiff was claiming his terminal · benefits that those benefits included ?ne month's sallary in l~eu of notice~ 1995. This re~elation was made on 2nd January; The letter that· ·contains this ±a.formation is Annexture .. "C" to the plaint. In ._its written statement of defence the_: plaintiff raised two :Points/on which it was cont~ded that the suit-was incompetent.·· ... It,.wa.s argued that the .trial Court lacked jurisdiction because· once the termination was without notice it amoun~ad to summary ··dismissal that is govemed by .the Security of Empioyment Act, 1964. Aooord.ing to Mr. Mta.k:i, learned advocate for the defendant, such a matter is not justiciabl·e before ordinary Courts. exercising civil ·jurisdiction. Secondly, it was Mr. Mtaki. 1 s further contention that the· suit was not maintainable at law· on another. ground. He argued that ~ny suit that is founded on an employm~t dispute. must be referred to a laqour officer for conciliation first before it is lodged in court under•sections 130 to ·1~4 of the Employment Crdinanc.e 1 Cap·. 366.., .rt· is averred· 'that the appellant did not comply with this procedure. 2 .. On the other hand, Mr. K-a:tmda, lea.med advocate for 'the_ .. defendant, argued at the trial that th~ _t:e:r:mination:::·t·r -~pioyment . complained oi was n·ot swrima·cy'~di-smissal. Indeed_,.'i.t· was lea:rned defence counsel's submission that the provisions of the Employment Ordinance that were cite·d are not mandatory. So the only issue for determination before the trial court-was whether that court· ha.d jurisdiction. Ms_. Mafuru, lea.med Resident Magistrate, reached the conclusion that her court had no ju:risdiction. The suit was consequently dismis.sed. The plaintiff appealed. Only two grounds of appeal have b·een lodged, namely, that the learned Resident Magistrate erred in law and in fact When she found that the court had no jurisdiction to try a case invoiving termination without notice which is not a scheduled disciplinary code, and, secondly, that she Slipped into error when she -found that termination without notice amounts to summary dismis sa_l •... _.Mr. Boaz,. learned counsel for the appellant, bas argued that the trial court did err because it did not consider whether or not the appellant was an employee in respect of whom section 28 of the Security of Employment Act applies. It is his contention that the court merely assured that it had no jurisdiction only because the appellant was su.mma.rily dismissed. Mr. Boaz has made the point that at a monthly. ,sai~ry of Shs. 27,500.00 the appellant was not an employee :ior purposes ·of the Security of Employment Aot. ·He.cited several ·cases in support of his argument: James-Sankey-V. Caltex Oil (T),Ltd (1973) L.R.T. n.46, Walter Joqer,V.-Cordula tfa Oyi;ter Bay-Hotel, Or:& H.C.D. n.133 ••• Even assuming that the app·ell8.Il.t was an. employe_e · · . Mr. :Boaz argued that he was not summa:cily dismissed. To · · .,,.•:iearned counsel the employe£> 1 s action did not amount to · ·more than terminati~ b.eca.u.se his ·terminal. benefit included -a salary in lieu of notice. Mr.Boaz has SV,bmitted further that the trial court' e finding that Section·. 26 of the Se~:lty of Empioyn1ent Act did.· .. ·. . . not :apply to his.client because the remedy he sought was for damages arising from a breach of contract, he did riot_, seek to be re-instated. That. it . is :in. the ... . .latter. :! situatibn . that s-ecti.on 20. of the- ·seour.i.ty, .o.£~ employmentFAct .:, W(?uld ap:ply • . •,,. !. 3 Mr. Mtaki, learned advocate, acte8. for the respondento He contended, and I am persuaded that he was quite r,1.ght, that it is now beyond controversy that it is summary dismissal if employment is determined without no-:t:;i-ee,.--· So indeed, the .circumstances-- -il;l_ ~hich. ·.the·a.j;,peliariti~::.~m;loym~t. was determined constitute summary· dismissal: Kitundu Sisal E$tate § Cther-(1970) Ex 557, llish Seif- V. Masawe (1983) LaR.oT., No. 130 An offer for a month 1 s salary in 1995 did not convert tho summary dismissal imposed in 1990 to termination of employment. For What matters is ·not what ·wiil be done later~ it• is what· ·the- employer. int~d~. to do and what he actually does that constitutes summary dismissal or termination of employmento What flows £llrom this finding is the ancillary issue of whether or not the appellant was an employee under the 4 S eO"J.Xi ty I~mployment Act. The term "employee" as defined by section 2 of the Employmen,t Ordinance, Cap 366, a definition that is adopted by section 4 ·of the ·security of Employment-Act,- subJe~t. to the exceptions specified thereat, means:. "••• any person Who has entered into a contract or works under a contract of service with an employer whether by way of manual labour, clerical work, or otherwise and whether the contract is expressed or implied is oral or in writb.g 11 In my construction of these provisions everyone is an employee to who the Security of Employment Act applies unless under section 4 of that Act, a labour officer has given a. certificate that the !)articular person is a member.of the management of the employer .. ·Only the latter is not oovered by the provisions of the said Act,. It is irrelevant what the employee is earning, nor is it correct to assume that a high salary scale with automatically excei:>t anyone from the difinitiono I am satisfied, therefore, that in-the absence of such·a certi- ficate the appellant falls within th~ definition of the word {"employee" as defined by the Se.01.:1.rity of Employment Act. \Mutatis Mutandis . section 26 (1) of the said Act applies to the ::.;)~)•_ .: .1• :,appellant, it provides:- "(1) No suit or other civil r,roceeding (other than procee- dings to enforce a decision of the minister or the Board on a reference under this part) shall be entertained in any civil court with regard to the summary dismissal •.. of an employee~ 4 Mr. Mtaki contends that the provisions_ above quoted bar any employee from litigating for his rights except under the procedures as laid·do\fn under the Security of Employment Act. ~-✓ • Now, the :operative ·part of those :provisions is· this:".'".- ..·: ''No suit or other civil proceeding •o• shall be entertained in a civil court with regard to the summary dismissal •u of an em:Ployee. 11 ....,· ..... ·In my·:view the· ban· is :·on questioning· or- challenging,. the legality of a summary dismissal in a manner other than as prescribed under the Security of Employment Act. We know,· of course, that the ban is not unsialable in some other way~ For it has already been the subject of numerous civil procee- dings by way of judicial review. I would therefore uphold Mr. Boaz•s. contention that section 28 of the Security of . Employment .. . . Act . .. does not oust jurisdiction from civil courts to entertain suits which are br~ught for the recovery· of em-plci":ymerit <·· benefits such as payments to which an employee is entitled at the end of his tenure. So also is such an employee entitled to seek '- remedies through a declaratory judgment • • J Mr. Mtaki drew my attention to the applicability of sections 130 to · 134 of the Employmen ➔'. O:rdi.nanceo He emphasized that failure to comply with those :p:covisions rendered invalid the suit from which this appeal was takenG All that there is in section 130 in this conn.,9ction is that an employee may refer an employment dispute to a labour olficer. Nowhere in the entire 0 Ordinance is it made mandatory that an employee .is required to make a reference to a labour officero Actually, the need to involve labour officers origin8.-tes from the generally illiterate labour force that was in service when this law was enacted. It was aimed at protecting employees against maltreatment by their employers.. So those who were aware of Jtheir rights could chose to refer their employmant n.:isputes to a labour officer who would, in turn, intervene. And because such employees could hardly meet the cost of hiring an advocate, and considering that the largest number of employees at that time were in plantations, a labour officer who knew labour legislation was the right person_ to render assistance to the employees. It is in these circum- stances that I am not persuaded by Mr. Mtaki's contention in this behalf. / ------. - 5 - Upon the foregoing considerations the appeal is allowed with costs. It is directed that the record of the _:trial court be remitted to that court· so that the suit may be heard and be· determined inter parties. Judgment shall be delivered to the parties by the District Registrar. J.M. Macka.I?,ja. Judge 17/3/1998 COURT: .•re:..:•'"·•··-~--··•,. .• --------- .-~---· Judgme~~ ·.· .. .·: .. _d,e,._i ve·red to Mr~· B'o·az 'couris'ef :••"""•· - ·i~; the ·_appellant 15th day of March, 19991: DISTRICT REGIS~RAR I hereby certify that this a ~~J/J~!Jt of the Judgement.,'°' .•·7, I , : t !\ I) S. B. --~~ELWA DISTRICT REGISTRAR. 16/8/99