chang quing international investment company limited vs boniphace zacharia mgaya 2022 tzhcld 592 3 june 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 351 OF 2021 CHANG QUING INTERNATIONAL INVESTMENT COMPANY LIMITED APPLICANT VERSUS 1 * BONIPHACE ZACHARIA MGAYA........................... . RESPONDENT (From the decision of the Commission for Mediation and Arbitration at Ila la) (Kiangi: Arbitrator)^* dated 29th July, 2021 in REF: CMA/DSM/ILA/715/2020/400 JUDGEMENT 21st March & 3rd June 2022 Rwizile, J The applicant, asked this Court to call for and examine the record of the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/DSM/ILA/715/2020/400, for the purpose of: - Satisfying itself as to the correctness, legality, regularity and propriety of the decision and revise it, accordingly and to quash and set aside the mentioned Labour Dispute. i Brief History of the case is; it was alleged that the respondent was employed by the applicant on 29th July, 2017 as sales representative. He was then given a commitment agreement on 21st August, 2017. On 15th September, 2020 he was terminated and on 22nd September, 2020 the respondent filed a complaint against the applicant before CMA praying for > -A re-instatement without loss of remuneration | and payment of ::: 44,565,612.00TZS as damages for unfair termination. The award was in favour of the respondent. The applicant was ordered to re-instate the respondent without loss of remuneration or payment of compensation of twelve months and other benefits. The applicant was not pleased with the award, hence this application. The application was supported by the affidavit of Dangala Adolf Kataila, ■ ■ ■■ ■ . ' Human Resource Officer of the applicant which was opposed by the ... . Ih 3 respondent's counter affidavit. Grounds for the revision raised in the a ’ affidavit by the applicant were: - ^0 That, the honourable arbitrator has erred in law and facts by ordering the applicant to reinstate the respondent without loss of remuneration or payment of twelve months compensation and other benefits without any legal justification. 2 ii. The honourable arbitrator has erred in law by failing to exercise powers vested into him by delivering an award which is irrational and unreasonable hence resulted into material irregularity. Hi. That, the Commission erred in law and fact for making improper analysis of the respondent's documentary evidence hence resulted into irrational and unreasonable award. Both parties to this application were represented. Mr. Mkirya Julius, learned Advocate appeared for the applicant, whereas the respondent was represented by Mr. Elisaria Jastiel Mosha, learned Advocate. The hearing was by way of oral submission Mr. Mkirya submitted that Dwl at CMA stated that she does not recognize the respondent as their employee. He stated also that exhibit Pl is an engagement letter and so is not part of an employment contract. For him the respondent was not an employee of the applicant and was not entitled to be awarded a compensation of twelve months or re-instatement. The '■•■A-. applicant prayed for the application to be granted. Mr. Mosha for the respondent, submitted that the CMA award was correct as it was in accordance with Rule 27(1) and (2) of the Employment and Labour Relations (Code of Good Practice) G.N. No. 42 of 2007. He 3 continued to argue that the opening statement shows the applicant was employed by her as sales representative on permanent contract on 15th September, 2020. Further, he submitted that, he was terminated for being dishonest. It was said, he opened his own business of selling mattresses, the same business as the applicant's. He stated after that they told him to write a resignation letter. Mr. Mosha submitted that the respondent v ; terminated unfairly contrary to section 37(2) of Employment and Labour Relations Act [CAP 366 R.E. 2019] as the arbitrator held. He continued to state that the analysis of evidence in the award was perfect and exhibits Pl to P6 were tendered and the same were not objected. He continued to state that Dwl did not comply with section 39 of the ■ v-;Vv Employment and Labour Relations Act [CAP 366 R.E. 2019]-(ELRA) since it is the duty of the employer to prove fair termination. He stated that ■ Dwl told the commission that all that was presented was from the records she kept. To support his view, he also referred to section 15 of ELRA, which casts the duty of keeping records of employees to the employer. He stated that the employer did not prove, the respondent was provided with the charge before the disciplinary hearing. Mr. Mosha submitted that 4 the applicant did not prove termination of the employment. He continued to state that section 40(a) of the ELRA, provides for re-instatement when proved that there was substantive unfairness. He prayed, the application be dismissed. The dispute between the parties is whether there was employment relationship between them. % Having gone through the CMA record, it is clear that Dwl testified as hereunder; "S/J - Boniface aiikuwa nani? Ni surprise kwangu, katika wafanyakazi wangu simtambui, na S/J - Je Boniface akiieta Ushahidi kuwa aiiajHiwa kwa kudumu je utakubaii? • Kama aiikuwepo kabia yangu mimi hiio sitaiisemea" Under the law, section 61 of the Labour and Institution Act [CAP. 300 R.E. 2019] provides: - 5 "61. For the purpose of a 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 factors is present- (a) The manner in which the person works is subject to the % % control or direction of another person; (b) The person's hours of work are subject to the control or A, .. e u. W' direction of another person; (c) In the case of a person who works for an organization, the person is a part of that organization; (d) The person has worked for that person for an average of at least forty-five hours per months over the last three months; (e) The person is economically dependent on the other person for whom that person works or renders services; (f) The person is provided with tools of trade or work equipment by the other person; or (g) The person only works for or renders services to one person." Going through exhibits tendered at CMA there is a letter of engagement which was marked as exhibit Pl. The applicant, submitted that the engagement letter is not an employment contract. But did not dispute its 6 terms. The letter of engagement shows, it complied with the terms of section 61 of the law. It has the following features; - As (a) provides, manner of work. The said letter of engagement has obligations set for the employee (respondent) to do. (b) hours of work to be in control of the other person. The % respondent was supposed to work on what was assigned to him. (c) being part of the organization. The respondent was employed in the position of Sales Representative. , (d) working hours to be at the average of at least forty-five hours ::: w H per month. The respondent worked for 54 hours per week. (e) economically dependent/The said letter provides for the employee to work on full time basis. - (f) & (g) the respondent was supposed to work under the directions and tasks assigned by the applicant. V* $ The letter of engagement had the following details as shown below for - V?: easy reference; "Letter of Engagement 29/07/2017 7 • Your ordinary hours of work will be 54 hours per week, I am pleased offer morningtotime you employment in the position of Sates 8:00^12:30 Representative with us Chang qing international investment company limited... 1. Position Your start date will be 29/07/2017 Your employment will be full time. ... you will be required to perform these duties, and any other duties the employer may assign you... 4. ordinary hours of work Remuneration > You will be paid monthly at the rate of Tshs. 250,000/- per month. 7. Your obligations to the employer (3) W ... 8 (c) follow all reasonable and lawful directions given to you by the employer,..." All these aspects show that there was an employment relationship between the applicant and the respondent. In the case of Mwita Wambura v Zuri Haji, Revision Application No. 42 of 2012 at Mwanza, % LCD 2014 Part II page 182, it was held: - ''There are a number of common factors running through which can aid a decision makes in determining existence of an employment relation. These principles are among others; (a) defining employment relationship by looking at parties' roles, considering matters among others; dependency; subordination, direction, supervision and control of services rendered; (b) principle of primacy of facts looking at what was actually agreed and performed by each of the parties; and (c) use of burden of proof." * ■ ■ There is no doubt that exhibit Pl proves that the applicant and the respondent worked together as employer and employee. This relationship is as per section 61 of the law referred. The applicant complained that the CMA, did not consider and that it failed to make analysis of the evidence. I think this is not true. The decision of the CMA, has shown that the 9 applicant employed the respondent and terminated him without following the law. It clear to me that the duty was on the applicant to show termination did not occur. Simply alleging that the respondent was not her employee has been rebutted by the respondent. In the view of the 10