CHAWAMATA V TANZANIA ROAD HAULAGE LTD LABOUR DISPUT NO

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM LABOUR COMPLAINT NO. 16761 OF 2024 CHAWAMATA ………………………………….…………………………... APPLICANT VERSUS TANZANIA ROAD HAULAGE (1980)......................................... RESPONDENT JUDGMENT Date of Last Order: 18/11/2024 Date of Judgment: 13/12/2024 B.E.K. Mganga, J. On 15th July 2024, Chama Cha Wafanyakazi wa Malori Tanzania known by its acronym as CHAWAMATA, the herein complainant, filed this Labour dispute against Tanzania Road Haulage (1980), the herein respondent. It was alleged by the complainant in the statement of complaint that, on 20th September 2023, the complainant served the respondent with a letter showing the names of the employees of the respondent who joined membership with the complainant. It was further stated by the complainant that, together with the said letter, respondent was served with a form (TUF.15) authorizing the respondent to deduct monthly, membership dues and submit to the respondent. It was also alleged by the complainant that respondent confirmed that, a total of 1 her 78 employees acquired and joined membership with the complainant. It was further stated by the complainant in the statement of complaint that, respondent has violated Labour Laws by preventing complainant to hold statutory meetings at the respondent’s workplace with employees of the respondent who are her members. It was also alleged that, that act has prevented complainant to register more members who are employees of the respondent. It was further alleged by the complainant that; respondent has refused to submit monthly dues of her employees who are members of the complainant. It was also alleged by the complainant that, in January 2024, respondent submitted TZS 549,000/= only as dues for 80 employees out of 268 employees and that, respondent has no legal justification for not submitting dues for all employees who are members of the complainant. Based on the foregoing, complainant claims to be paid by the respondent TZS 179,000,000/= as monthly dues of her employees which she has failed to submit to the complainat and 5% daily interest for the all period the said amount remained unpaid. On the other hand, in the response to the statement of compalint, respondent stated that complainant has neither provided proof nor mentioned the names of the employees who registered as her member and whose rights have been violated. She also stated that, there is no 2 any statutory notice issued by the complainant to the respondent which need to expire first before the complainant can institute a legal proceeding in court. Respondent also stated that there is no proof that the complainant is recognized as exclusive baragaining agent who can speak for her employees. In short, respondent disputed all allegeations levelled aginst her and prayed the application be dismissed for want of merit. After failure of mediation, the parties signed a non settlement order with the following issues namely (i) whether the the respondent owes the complainant’s union dues amounting to TZS 179,000,000/= plus 5% interest, (ii) whether respondent has refused to give access to the complainant to exercise organizational right, (iii) whether the respondent has reasonable grounds to comply with instructions from employees who revoked their mandate to deduct union dues. In the bid to prove her case, respondent called two witnesses namely Nuhu Iddi Mgodoka (PW1) and Dickson Joseph Kangambili(PW2). In his evidence, PW1 stated that, he is the CHAWAMATA chair person in southern part of Tanzania with duties to oversee functions of the union in Tunduma, Mbeya, Iringa, Sumbawanga and Njombe regions and comply with directives from headquarters. PW1 also testified that, he 3 sensitizes employees to join with the union, and help them to join with the union by filling forms(TUF 15). PW1 testified further that, in 2021 he discussed with employees the respondent so that they can join the union and conducted meeting with them. He testified that the said discussions were held in with the respondent's employees in Dar es Salaam and those in Tunduma after being instructed by the complainant’s head office. PW1 testified further that, complainant held a meeting with all employees of the respondent and that, a total of 268 employees of the respondent joined CHAWAMATA by filling TUF 15 forms. He added that, in the said TUF 15, employees notified the respondent that they have joined CHAWAMATA and authorised the respondent to deduct salary dues and submit to the complainant. He went on that, after filling the said forms, he sent the said forms in office and thereafter a letter(exhibit P1) was written to the respondent on 23rd September 2023 and that the same was received by the respondent. I should point out that exhibit P1 relates to 27 employees only. PW1 further testified that he also sent another letter dated 20th September 2023 (exhibi P2) to the respondent containing the list of 268 names of respondent's employees (exhibit P3) and that the said letter was received on the same date. PW1 stated further that, exhibit P2 was 4 informing the respondent that the said employees have joined with the complainant and that respondent should deduct 2% of their salary and deposit in the bank account of the complaint maintained at NMB Bank. While under cross examination, PW1 stated that, in November 2012, he was elected as chairperson of the complainant in Southern zone. He also stated that, he is unemployed since November 2021. He also stated that, at the time of his election as chairperson for southern zone he was working at state oil at Mdaula in Coastal region. He further stated that, in sensetizing respondent’s employees to be member of the complainant, he was told that there was agreement between the complainant and respondent on how employees of the respondent can exercise their rights. He also admitted that, he doesnt recall as to how many employees of the respondent signed TUF 15 form while at Tunduma and in Dar es salaam but they signed the said form from 2021 up to 2023. PW1 stated that he visited the employees of the respondent at Tunduma yard and that he used the same procedure for respondent’s employees based in Dar es salaam. He also testified that some of the respondent’s employees were filling the forms on their own but others, were leaving it to him to fill the said forms. PW1 admitted that, he was signing in those forms as witness but in some of the forms, some employees signed as witnesses. 5 In his evidence, Mr. Kangambili(PW2) the deputy charperson of the complainant stated inter-alia that, amongst his duties is to assist the secretary general including registration of new members, to receive dues, keep record of members, etc. PW2 also testified that, in recruitment of new members, they conduct meetings with employees expecting to be their members. On procedures for registration of an employee as meber of the union, PW2 stated that, employees fills TUF 15 and sign it to authorized the employer to deduct dues from their salaries. He stated. That, members’ dues are received by cheques from the employer and he is the one who keeps record to that effect. In his evidence , PW2 stated that he sent forms and wrote a letter requiring respondent to deduct dues and deposit in the same in the complaint’s bank account. He added that, a total of 268 employees of the respondent joined as members of the complainant and the latter was expecting to receive dues from the respondent. He further testified that, after reception of TUF 15 form, respondent made payment for 80 employees only. That, on 25th November 2023, he wrote a letter to the respondent reminding her to make payment with notification that she was liable to pay 5% due to delay of payment. PW2 testified further that, after the said letter, in January 2024, respondent stoped to pay even contribution of the said 80 employees without any explanation. 6 PW2 also stated that, on 8th January 2024, he wrote a letter to respondent with a view of recruiting new members. That, after the letter he wrote in January 2024 and due to lack of coopeartion, complainant filed this dispute. In his evidence, PW2 prayed the court to order (i) respondent to pay dues of 268 employees from the date the said TUF 15 forms were received, (ii) respondet to allow metings to be held at her place of work, (iii) pay costs of this complaint, (iv) respondent to pay 5% of contribution for the whole period she failed to deduct and remit dues to the complaint and (v) any other reliefs this court may grant. While under cross examination, PW2 stated that, from January 2024 to October 2024, complainant is receiving almost 56 contributions of the respondent’s employees from. PW2 also stated that, as of now, complainant is not claiming dues for 268 employees. He also testified that, in November 2020, he participated in registration of respondent’s employees by receiving TUF 15 forms and register them. He further stated that, in the meeting they clarified to the employees, the importance of joining the union, amounts deductable from their salaries, their rights to withdraw from membership etc. PW2 stated that, for a member who wants to withdraw must write a 30 days notice to the trade union and the employers. He also admitted that complainant have 7 no leadrers at respondent’s place of work because election was not done due to lack of corparation. PW2 further testified that, in 2020, they started by filling TUF 14 praying to conduct a meeting at respondent’s place of work. In further cross examination, he conceded that the said TUF 14 forms were not attached and are not part of the complainant’s documents in this dispute because, initailly respondent accepted a metting to be held as a result, a the same was held and registered members. In his evidence under cross examination, PW2 admitted that, there is no written agreement between complaintant and respondent on rights of the employees at workplace. He also admitted that he doesn’t know whether 268 employees are existing at the respondent’s place of work. He further stated that, respondent stated that some employees were unwilling their salaries to be deducted and that, some were no longer her employees and that respondent served complaint with a letter to that effect. In further cross examination, PW2 stated he cann’t recall the amount complainant is claiming in the complaint. Latter on he stated that, it is TZS 179,000,000/= and that the same relates to 184 employees plus 5% of interest after delay of payment. PW2 admitted further admitted that, in his evidence he has failed to state as to how complainat arrived at the said figure. PW2 further admitted that he doesn’t know salary of 8 each employee of the respondent complainant claims to be her members. He also stated that, respondent stated in her letter as to why she cannot make deduction to 268 employees. In re-examination, PW2 stated that, there was no collective agreement with the respondent because complainant had no learders at respondent’s workplace. On the other hand, respondent called Daudi Hanis Mlezi, (DW1), Fatuma Muhidin Hamza(DW2, Daudi Justice Mweta(DW3) and Kulwa Ally Khalfani(DW4). In his evidence in chief, DW1 stated that, on 23rd September 2023 complainat submitted documents recruiting employees of the respondent as her mebers. He also stated that the said document was received by Fatuma(DW2) on his behalf. That he directed DW2 to verify the said documents including calling individual employees and show them the forms for verification. DW1 stated that he gave DW2 that order because the said documents (forms) were signed without knowledge of the respondent that employees intend to become members of the complainant. He adeed that, he gave that order because, deductions were supposed to be made from salaries of the employees. DW1 testified further that, after verifiaction, they noted that some were no longer employees of the respondent and others have died but some were present. He added that, he directed that employees who 9 were existing should write a consent to show that they agreed to be members of the complainant. He went on that, verification took long time because some employees were outside the country. DW1 testified further that, many employees refused their salaries to be deducted and they so so indicated in the form. He added that, for those who accepted their salary to be deducted, their names were sent to account section for deductions to be made. DW1 further testified that, he signed a letter that was written to the complainant showing the names of the employees who accepted deduction to be made and those who refused. He tendered the letter with reference No. TRH/230/2023 dated 30th December 2023 with the list of 78 employees who were no longer working with the respondent and a list of 107 employees who refused deductions to be made as exhibit D1 collectively. In his evidence, DW1 stated further that, a total of 78 employees were no longer employees of the respondent as they either died or terminated employment. He added that, a total number of employees who were no longer working with the respondent and those who refused deductions to be made is 185 employees. He also stated that, for those who their employment was terminated as they absconded and others terminated employment their employment by issuing notice. DW1 tendered 52 letters relating to death or being written by variuos persons 10 including Awadhi Salum Sudi, said Azan mnete, said Yusuf Abdalah Mtwangala, Sudi Methew Milanzi, Mohamed Juma Danga, Zakaria Raphael salamala, Geofray Damson Mbafu, Salum Shomari Mgowawindi, Hussein Hassan Towo, Hassan Mohamed Zengo, Hamad Ally Shally, Seleman Shaibu Mtiko, Hassan Said Kambi, Mbaraka Rashid Mlwalale, Hassan Ramadahn Mohamed, Khalid Rashid Bendela, Christina Laurent Mtende, Mengi Shaibu Metela, Seleman Hassan Omary, Omary Hemedi Magala, Amoni Jackson Amanda, Ronjino Exzavery mduda, Hassan Ramadahni Mohamed, Juma Hussein Simba, Iddi Mstafa Murey, relating to death of Anthony Daniel Anthony, Paul Peter Mgeni, Gerald Raphael Salamala, Juma John Mbafua, Khamis Ally Magubi, Living Lyimo Mbuya, relating to death of Abdul Ally Kimote, Yasini Abdala Daudi, Martin Joseph Jingu, Jamada Twaribu Benny, Yusuph Ibrahim Mgongorwa, Makame Abdilah Rashid, Said Sultan Milongea, Peter Kakore Shabani, Mohamed Sefu Gugu, Mohmaed Nassoro Mohamed, Mussa Abdallah Gome, Mkea Simon Mwendaetela and Maneno Mawazo Lusonzo, as exhibit D2 to D53. It was further evidence of DW1 that, a total of 80 employees who accpted their salaries to be deducted as members of the complainant, their names were sent to the account section and their salaries were deducted and dues remitted to the respondent He tendered Tanzania 11 Inter banking Settlement System(TISS) exhibit D54 and 55 to prove that payment was done to the complainant. He also stated that the said payment is from january 2024 to October 2024. He also stated that, the claim by the complainant is not justifiable because, respondent has deducted and remitted membership dues for all employees who are members of the complainant and prayed that the complaint be dismissed for want of merit. While under cross examination, DW1 stated that, employees followed procedures on withdarwing from membership with the complainant because theynotified the respondent that they do not want their salaries to be deducted as contribution to membership with the complainant. DW1 stated also that they had had meetings with the complainant and informed her that some employees refused their salaries to be deducted. DW1 stated that, exhibit D55 and D54 shows that payment was done on 13th July 2024 and 12th August 2024 respectively and admitted that, membership payments are supposed to be done to a trade union as soon after deductions are made. He further stated that, it is the employees who fills the forms (TUF 15) and that the said forms authorized respondent to make deductions from employees’ salaries. He maintained that, deductions were only made from salaries of the 12 employees who consented because others refused deductions to be made by writing on the said TUF 15 form. In re-examination, DW1 stated that, contribution was paid in July 2024 because respondent was in economic difficulties because employees were not paid salaries and that, remittence was done only after payment of salary. He also stated that, the said TUF 15 forms were filled in 2021 but were submitted to the respondent in 2023 hence there was a need of verification. In her evidence, Ms. Hamza(DW2) testified that on 23rd September 2023 she received documents from the complainant relating to respondent’s employees to join as members of the complainant. That, she notified DW1 and the latter directed her to make verification. She testified further that the employees joined membership with the complainant while out of Dar es Salaam. That, when they came back in Dar es Salaam, she showed them the documents. DW2 stated further that, upon being shown the documents, most of employees declined deductions to be made. She added that, for those who did not consent deduction to be made, she directed them to write and Sign on the their respective TUF 15 forms. She also stated that respondent did want to make deduction employees’ salaries as membership dues with the complainant without their cosent. 13 DW1 tendered TUF 15 form for Agrey Henerick Mbeck, Daudi Justice Mweta, Kulwa Ally Khalfan, Hatibu Yusuph Mwinyiheri, Frenk Faustin, Issa Mohamed ally, Shabani Abdallahl Saluku, Ezekiel Muhoza, Davidi John Mwaimu, John Michael Marwa, Rajabu Hassan Omary, Juma Saidi Mndolwa, Chitende Zunda Kisabuly, Maulidi Shababi Mgeni, Zakaria Halfani Mkenga, Hemedi Mohamed Jumaa, bakari Khalfani Upanga, Omari Izdori Mwenga, Abdallah Ally Cheusi, Gaidon Francis Mpangala, Gerald Thobiasi Komba, Zuberi Salehe Rashid, Juma Ally Hassan, Kelvin James Luvakumbusa, Msafiri Ally mdoe, Ramadhan Juma Ngoma, Venansi Anthony Ndunguru, Jackson Julius Ndanga, Msafiri Jua Kabembe,Amiri Saidi Ally, Abdallah Juma Karata, Anthon Lunogelo Kihegulo, Hamadi Rajabu Rashidi, Mbarouk Omar Ally, Wahabi Iddi Athman, Ahmed Mashaka Lumelezi, Omari Hassani Iddi, Mustapha Kassim Nyomoleho, Abdullaziz Tamimi Malongwe, Salum Laini Mnally, Peter John Kalimang’as, Abdal Hamd Urari, Ally Jua Semkufu, rashid ysusph Zavala, Salehe Mohamed Kapinge, Hemed Hassan Hussein,Hija Adam Seleman, Issa Hemedi Kitange,Rashid Shadrack Ndondole, Mohamed Shaibu Bakari, Ally Juma Shekika, Brown Leonard Luponde, Kombo Zuberi Kombo,Yahaya Hashimu Nahoba, Hamad Hasani Njama, Rajabu Hemedi Yahaya, Junzar Athumani Makono, Yustin Zavery kanyika, Said Seif Said, Noah Olen Mwakihaba, David Luponde, Badi 14 Mwinyijuma Badi, Siraji Musa Shehoza, Maiko Martini Mrumba, Said Othman Pesa, Ramadhan Said Mbonde, Ramadham Abdallah Kipeke, James Mathias Samila, Abubakar Saidi, Issaya Elias Kasagala, Gerald Astanilis Luanda, Salum Shaohir Mchoru, Fedrick Protas Mjinga, Maneno Gabriel Mdota, Magao Mohamed Magao, Rashid Adamson Manoti, Kessy Selemani Singe, Omari saidi Dalla, Roy Yusuph Kasilati, Kessy Hussein Makocho, Amri kassim Nyomolelo, Boniface Kassin Francis, Dick saidi Jangalu, Shabani Mohamed Shabani, Ali Abdu Ali, Erasto John, Musa Hassani Kuchi, Mohamed Yusfu Nyagasa, Yassin Said Kihongo, Isdori Oygen Chengula, Kisailo Hamisi Ally, Christopher Joseph Hokororo, Foster John Kavafi, Ismail Fundi Ismail, Bakari Hassan Mohamed, Zakaria Dismass Ndawalewe, Nasoro Athuma Mwalimu, Rajabu Zahoro ramadhan, Juma Abdallah Shekika, Yahaya Mohamed Shekihonda, Juma Hashimu Mbawala, Massi Farahani Mahungo, Abasi Juma Kamanga, Mahmoud Abeid Mahomed, Charles Castors Luanda, and Haji Juma Mgoma who declined membership with the complainant as as exhibit D56 collectively without objection. DW2 further tendered TUF 15 forms for Issa Kubuli Kovu, Abdul Ally Kimote, Hassa Said Kambi, Said Sultan Milongea, Mohamed Nassoro Mohamed, Yusufu Abdala Mtwangala, Geogfrey Damson Mbofu, Gervas Andrea Gervas, Mohamed Ramadhan Bori, Juma John, 15 Said Azani Mnete, Mohamed seif Gugu, Jamada Twaribu Benny, Iddrisa Seleman Ally, Muhsin Juma Athuman, Sudi Mathew Milanzi, Pascal Simon Mbena, Peter Kakore, Mkea Simon Mwendwa, Yasin Abdala daudi, Ahmed Sefu Chikwaya, Iddi Mustafa Murey, Hassa. Mohamed Zengo, Juma Bakari Ruvuka, Zakaria Raphael Slamara, Khalfani Salum Rashid, Christopher Samwel Tito, Jitengeni Yahaya Mzee, Maneno Mawazo Lusonzo, Living Limo Mbuya, Hafidhi Yusph Jongo, Pailo Peter Mgerni, Hamad Ally Shally, Seleman Mwalimu Abdalah, Seleman Hassan Omary, Martin Joseph Jingu, Omary hedei Magalas, Mohamed Yusuf Nyagasa, Joseph Fedelis Mloka, Hamis Omary Seif, Patrick Esso kapoma, Chrisptopher Samwel tito, Mussa Abdallah Gome, Awazi Salim Said, Hamis Ally Makubi, Hussein Hossa. Towo, Makame Abdallah Rashid Ahuman Almasi KanikiMrisho Mbwana Mohamed, Saidi Hussein Mulagele, Mbaraka Rashid Mlwale, Juma Hussein Simba, Said Abdallah Ally, Mohamed Juma Danga, Ronjino Exzavery Mdoda, Khalidi Rashid Bendela, Antony Daniel Anthony, Salum Masoud Ndege,Hasani Ramadhan Mohamed, Octavian Renus Mhanje, fadhili Saidi Mbarouk, Salium Hamis Omary, Yusup Ibrahim Mgongolwa, Salum Waziri Salum, Amoni Jackson Nsamamba, Gerald Raphael Seleman, Rajabu Hamis Kambi, Christian Laurent Mtende, Mengi Shaibu Mbetela, Salum Shomari Mgohawindi, Selemani Shaibu Mtiko, Ally 16 Mohamed Mwamrami, Mussa Mikidadi Mpeta, Mohamed Abdul Mohamed, and Zawadi Alfred Kadege as exhibit D57 collectively showing that they consented their salaries be dedudcted. While under cross examination, DW2 maintained that she received TUF 15 forms from the complainant but she does not know the procedure for joining or withdraw from membership with a trade union. She also stated that, an employee must accept to join membership after knowing the advantages thereof. PW2 stated that she did not convince the employees to withdraw their membership with the complainant. In her evidence, DW2 admitted that, she did not advise the employees in relation to serving notice to the complainant. Mr. Mweta(DW3) testified that he his employment with the respondent as driver started in 2020. He testified furtther that, on 16th July 2023 he was in Tunduma going to the Democratic Republic og Congo. That, while at Tunduma, came Nuhu Ngodoka(PW1) who wanted to have talks with them but by that time, DW3 and others were asked to drive their vehicle to cross Tanzania boarder to Zambia. DW3 further testified that, PW1 demanded to be given full names of DW3 and others and their phone numbers of which DW3 complied. DW3 added that, when he came back in Dar es salaam from the Democratic Republic ogf Congo, while in office, he was shown a form that was filled by Mr. 17 Ngodoka(PW1). DW2 went on that he was shown the said form by Fatuma Hamza(DW2). He testified that, he found that, the said form had already a signature that is not his. That, after being shown the said form by DW2, he declined to give his consent for salary deduction to be made in favour of the complainant. DW3 identified his name in exhibit D56 and stated that the signature showing that he signed TUF.15 to join membership with the complainant does not belong to him. He stated that, his genuine signature is the one showing that he declined membership with the complanant. He also stated that he did not fill the said TUF 15 form because he was not willing to be member of the complainant. While under cross examination, DW3 maintained that he did not sign TUF. 15 form to be member of the complainant. He also maintained that he signed TUF.15 showing that he was not willing to joing membership with the complainant. In his evidence in chief, Mr. Khalfani(DW4), testified that his employment relationship with the respondent started in 2012 when he was employed as a driver. He testified further that, on 20th July 2021 at 13:00hrs, he mate Nuhu Mgodoka(PW1) who gave him a form and asked him only to write his name and sign and that he complied with the said request. DW4 added that, there was no explanation from Nuhu 18 Mgodoka(PW1) and, thereafter PW1 called another employee. That, on 25th September 2023 he mate Fatuma(DW2) and the latter showed him the form and that, upon reading the said form, he did not accept what was written therein as a result, he took the said form and wrote “siafiki”. DW4 identified his TUF. 15 bearing his name that is part of exhibit D56. He added that he wrote “siafiki” because it took long time since 20th July 2021 and feedback came in Septemebr 2023 that was almost two years back. I should point out that, DW4 was not cross examined on behalf of the complainant because those who were prosecuting the matter on behalf of the complainant had no question. Having heard evidence adduced on bealf of the parties, both Mr. Jimmy Mnkeni from CHAWAMATA, the applicant and Evans Nzowa, advocate for the respondents prayed to make final submissions as a result, I granted their prayer. In his closing submission on the 1st issue, Mr. Mnkeni submitted on behalf of the complainat that, section 60 of the Employment and labour Relations[Cap. 366 R.E. 2019] gives power an officer of the trade union to conduct meeting at place of work. He also submitted that, section 64(1) of Cap. 366 R.E. 2019(supra) provides procedures to be adhered to by a trade union seeking to exercise rights provided under the Act. Mr. Mnkeni submitted that, in the dispute at hand, complainant followed 19 all the procedures by serving respondent with the letter and TUF. 15 intending to hold a meeting. He added that, employees of the respondent joined membership as per exhibit P2. Mr. Mnkeni concluded that complainant followed procedures. On the 2nd and 3rd issues Mr. Mnkeni submitted that, section 61(1) of Cap. 366 R.E. 20219(supra) provides that an employer has a duty of deducting from employees membership fees and submit to the trade union. He added that, in October 2023, respondent submitted dues for 80 only out of 260 employees who are members of the complainant. He went on that, in January 2024, respondent stopped to pay the complainant hence respondent is supposed to pay TZS 179 Million. Mr. Mkeni submitted further that, section 61(2) of Cap. 366 R.E. 2019(supra) provides that an employer must, within 7 days from the date of salary, submit membership dues to a trade union. He added that, section 61(3) of Cap. 366(supra) provides punishment for the delay of payment of membership fee to a trade union by the employer henec respondent is supposed to 5% for each day of delay. He went on that, respondent was supposed to pay contribution from January 2024 to June 2024 for 80 employees. He also submitted that, respondent did not pay contribution for 188 employees. He further submitted that, exhibit D54 and D55 shows that respondent made contribution for 80 20 employees only leaving 188 others who were also members of the complainant. On the 4th issue Mr. Mnkeni submitted that, the court should consider section 61(1) and (4) of Cap. 366 R.E. 2019(supra) on requirement of the employer to deduct dues for a registered terade union and that, all employees of the respondent signed TUF 15 and became members of the complainant. He added that, the said section provides also that, whoever wants to cease membership must serve a notice to a trade union. He further submitted that, the notice must be served to the trade union and employer. He added that, complainant was not served with a one month notice showing that employees of the respondent have withdrawn from membership. He also submitted that, respondent was supposed to make deduction so that, if the employees were unwilling, they can serve complainant with the notice. In his submissions, Mr. Mnkeni conceded that, DW2 stated that, some employees of the wrote on TUF 15 showing that they withdrew from membership. He also conceded that, DW3 testified that he withdrew from membership on 8th September 2023 and that, TUF. 15 forms were submitted to the respondent on 23rd September 2023. He further conceded that, some exhibits shows that withdrawal from membership by employees of the respondent was done prior to 21 submissions of TUF 15 forms by the complainant. To elastrate his point, Mr. Mnkeni mentioned the form of Said Seif said, Justice kanika, Tunda Macon, Rajabu yahaya, Amhad Njama, Kombo Zuberi Kombo to mention but a few. He strongly submitted that, that creates suspicion that the said forms were just created by the respondent hence withdrawal was illegal.For the foregoing,Mr. Mnkeni prayed that, the reliefs claimed. By the complainant in the statement of complaint be granted. On the other other, Mr. Evans Nzowa, advocate for the respondent submitted on the 1st issue that, complaint did not follow procedures in seeking to exercise organisational rights. He cited section 60(1), (2), (3), 61(1) , 62 ad 63 of Cap. 366 R.E. 2019(supra) and submit that the said sections provides organisational rights. He further submitted that section 64(1) of Cap. 366 (supra)provides procedures to be followed by a trade union seeking to exercise organisational right at a place of work. Counsel submitted that, a trade union must, by a special form, namely TUF 14, notify the employer that it intends to exercise orgainzational rights. He added that, complainat did not submit TUF 14 to the respondent. Mr. Nzowa submitted that, PW1 testified that, complainant only wrote a letter to the respondent. He added that, section 64(2) of Cap. 366 (supra) provides that, after submission of TUF 14, a trade union and the employer, must hold a meeting and come up with a 22 collective agreement. He went on that, collective bargain is defined under section 4 of Cap. 366 R.E. 2019(supra) and that the same must be in writing. Counsel submitted further that, the reason behind is that, in terms of section 60(4) Cap. 366 R.E. 2019(supra), organizational rights must be exercised in the manner that does not affect business of the employer and peace at the place of work. He added that, section 64(3) and (4) of Cap. 366 R.E. 2019(supra) provides clearly that, where an employer does not want to meet a trade union or they fail to agree, a trade union must forward the matter to CMA for mediation and if not mediated, the dispute must be filed before the court. He further submitted that, without adhering to those procedures, a trade union cannot exercise organisational rights at work place. Mr. Nzowa also submitted that, section 61 of Cap. 366 R.E. 2019(supra), gives power to the representative of a trade union to hold meeting at work place. He added that, “representatives” are defined under section 59 of Cap. 366 R.E. 2019(supra). Mr. Nzowa submitted that, for union representatives to have access to work place, there must be agreement between the employer and a trade union. He added that, complainant did not follow these procedures. He went on that, DW3 testified that he was recruited at Tunduma while on journey and DW4 testified that he was recruited while going at lunch out of respondent's 23 workplace. Mr. Nzowa concluded that, recruitment of members by the complainant was done contrary to the law. On the 2nd issue, Mr. Nzowa submitted that, respondent has never refused to submit dues to the complaint. He added that, respondent submitted all dues in relation to all employees who consented. He went that, while under cross examination, DW1 testified that, contributions from June were not submitted due to economic constrain which led to none payment of salaries. On the 3rd issue, Mr. Nzowa submitted that, complainant has no claim against the respondent because, dues for those who consented has been submitted. He added that, some employees have died, resigned or terminated. He strongly submitted that, the claim of TZS 179 million was not proved because, complainant failed to justify by evidence, the principal amount and interest. He added that, PW2 did not prove that claim. On the 4th issue, Mr. Nzowa submitted that, respondent have never denied complainant access and further submitted that complaint is only required to follow the law. He added that, though complainant did not follow the law, yet, respondent deducted contributions from salaries of the employees who consented and remitted dues to the complainant. Mr. Nzowa further submitted that, section 61(4) of Cap. 366 R.E. 24 2019(Supra) requires an employee who desire to withdraw from membership to submit a notice in writing to the employer and a trade union. He further submitted that, the law does not provide the format of the notice. He added that, it is the duty of the employee to notify a trade union and that, the employer had no that duty. Counsel for the respondent further submitted that, section 61(5) Cap. 366 R.E. 2019(supra) provides that, soon after being served with the notice, employer must stop deducting salary and the employer must send a list of names of the employees whose dues have been paid and a copy of the notice. He added that, respondent complied with the said section and gave reasons. He went on that, that duty does not entail to employer to pay fine. With those submissions,counsel for the respondent prayed the complaint be dismissed for want of merit. In rejoinder, Mr. Mnkeni for the complainant submitted that, complainant complied with the law by submitting TUF 14 and the list of names of members. Mr. Mnkeni further submitted that there is no evidence showing that complainant was notified by the respondent that the latter was in economic hardship. In his submissions, Mr. Mnkeni submitted that, soon after receiving the notice from the employee, employer must stop to deduct salary of the employees’ membership 25 contributions. He maintained that respondent denied complainant to exercise organisational rights at workplace. I have considered evidence of the parties in this complaint and respective closing submissions made on behalf of the parties clarifying on evidence adduced and position of the law each belived to be on her side. In determining this complaint, the 1st issue is whether, recruitment of employees of the respondent as members of the complaint was in accordance with the law. It was testified by PW1 that, he is the one who recruited employees of the respondent while in both Dar es Salaam and Tunduma to become members of the complainat in 2021. As pointed out hereinabove, while under cross examination, PW1 admitted that, from November 2021 to the time he was testifying, he was unemployed and that, he made the said recruitmement from 2021 to 2023 when he submitted TUF 15 forms to the respondent. As pointed hereinabove, PW1 testified that he visted respondent’s workplace at Dar es Salaam and Tunduma and discussed with respondent’s employees. Two things are clear from evidence of PW1 namely, (i) he visited the respondent’s workplace both at Dar es Salaam and Tunduma and discussed or recruited members of behalf of the complainant and (ii) at that time, he was unemployed. It is my considered opinion that, between November 2021 to 2023 when PW1 entered the repondent’s offices in Dar es 26 salaam, he had no such capacity because, he was unemployed. In other words, at that time, PW1 was not an office bearer or official of a trade union or other person authorized to represent the complaint. In short, PW1 was not an authorized representative of the complainant as defined under section 59 of Cap. 366 R.E. 2019(supra). In his evidence, PW1 did not state that he was authorized by the complainant to do what he did on her behalf though he was unemployed. Since PW1 was unemployed and was not an authorized representative, he had no capacity to do what is provided for under section 60(1) of Cap. 366 R.E. 2019(supra) namely, (i) to enter respondent’s premises at Dar es Salaam, (ii) to communicate with members, meet members in dealings with the respondent, of which there is no evidence showing that he met with the respondent, (iv) to hold meetings of employees on the premises of the respondent. It is my opinion that, the alleged recruitment of repondent’s employees by PW1 as members of the complainant was illegal as it was made in violation of the law by PW1, who was not an authorized officer or office bearer of the complainant. To add salt in the wound, the said recruitment was tainted with fraud. It was evidence of DW3 that he was approcahed by PW1 while at Tunduma boarder and asked to give his details to PW1 at the time DW3 was enroute to the Democratic Republic of Congo. The unshaken 27 evidence of DW3 was that, when he came in Dar es Salaam he was surprised to see TUF 15 form already signed showing that he consented to be member of the complainat and further that he authorized respondent to deduct his salary as membership dues to the compalinant. According to DW3, since he did not give that consent, he wrote on the same form showing that he was not a member of the complainant. DW3 categorically stated that the signature on TUF 15 form showing that he consented to be a member of the complainant is not his. That evidence was not challenged by the complainant. I should point out that DW3 is one of the employees of the respondent the complaint allege or claim to be her member and peg the amount claimed herein. The leats I can say is that, with that evidence of fraud on TUF 15 forms, it cannot be said that complaint proved to have lawfully recruited employees of the respondent as her members entitling her to have the herein claim against the respondent. It was also testified by PW1 that, some of the respondent’s employees were filling the forms on their own but others, were leaving it to him to fill the said forms. That admission confirms that recruitment of respondent’s employees as members of the complainant was illegal and that there was no proper authorization by the employee to allow respondent to deduct their salaries as membership dues and submit to the complaint. I am of that view 28 because, employee instruction to employer to deduct dues of a registered trade union from employee’s wages(TUF 15 form) must be signed by the employee himself or herself. I have carefully read the said TUF 15 and find that there is no room for another person to sign the said form on behalf of the employee. It is therefore my considered view that, respondent cannot be held liable for failure to submit membership dues to the complainant while some of the TUF15 forms including that of DW3 was not signed by the employee. More so, it was not stated that Tunduma is also workplace of the respondent. The purported recruitment of DW3 was done while enroute to the Democratic Republic of Congo and not at the repondent’s workplace. The requirement of recruitment of members at workplace had its intent and meaning. It was not intended by the parliament that trade unions should hijack employees wherever they meet them and made them members. In addition to the foregoing, it was evidence of DW4 he was approcahed by PW1 while at respondent’s workplace and that, PW1 aksed him only to furnish his details and sign a form without explanation and was allowed to go. In other words, PW1 did not explain to DW4 merit and demerit of becoming member of the complaint and liability thereof. According to DW4, he decided to withdraw from membership 29 based on what I have pointed out herein. I have pointed out that DW4 was not cross examined hence is evidence is deemed to be admitted by the complainant as correct. The Court of Appeal, in several cases, had an advantage of discussing the effect of failure to cross examine a witness on important matter and concluded that, the person who failed to cross examine the witness on an important matter is estoped from asking the court to disbelieve what the witness stated. See for example the case of Issa Hassani Uki vs Republic (Criminal Appeal 129 of 2017) [2018] TZCA 361 (9 May 2018) wherein it held:- “It is settled in this jurisdiction that failure to cross-examine a witness on a relevant matter ordinarily connotes acceptance of the veracity of the testimony- See. Damian Ruhele v. Repulic, Criminal Appeal No. 501 of 2007, Nyerere Nyagua v. Republic, Criminal Appeal No. 67 of 2010 and George Maili Kemboge v. Republic, Criminal Appeal No. 327 of 2013 (all unreported). In Nyerere Nyague for instance, we relied on our previous decisions of Cyprian A. Kibogoyo v. Republic, Criminal Appeal No. 88 of 1992 and Paul Yusf Nchia v. National Executive Secretary, Chama Cha Mapinduzi & Another, Civil Appeal No. 85 of 2005 (both Unreported) to observe: “As a matter of principle, a party who fails to cross examine a witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelievewhat the witness said.” Likewise, in Damian Ruhele, again relying on the case of Cyprian Athanas Kibogoyo (supra), we underlined: "We are aware that there is a useful guidance in law that a person should not cross-examine if he/she cannot contradict. But it is also trite law that 30 failure to cross- examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness's evidence.” See also the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal 45 of 2017) [2019] TZCA 453 (11 December 2019). I therefore conclude that DW4 said nothing but the truth on what happened at the time of his recruitment as member of the complainant. It was submitted by Mr. Nzowa on behalf of the respondent that, complainant did not submit to the respondent notification t exercise organizational rights (TUF 14 forms). On the other hand, Mr. Mnkeni for the complainant submitted that, complainant complied with the law by submitting TUF 14 and the list of names of members. I have exmained evidence of the complainat and find that none of her witnesses testified that complainant submitted those forms to the respondent. More so, they said forms were not tendered as evidence. The said TUF 14 form must be submitted to the employer when a trade union intends exercise organazational rights namely, to (i) exercise organization right in terms of section 64 of Cap. 366 R.E. 2019(supra), (ii) have access to the employer’s facilities to conduct its activities at the workplace in terms of section 60(3) of Cap. 366 R.E. 2019(supra), (iii) establish a field branch at employers workplace in terms of section 60(2) of Cap. 366 R.E. 31 2019(supra), (iv) deduct union dues innterms of section 61 of Cap. 366 R.E. 2019(supra), (v) have a union representative in terms of section 62 of Cap. 366 R.E. 2019(supra), (vi) be entitled to reasonable paqid time off for representatives in terms of section 62(5) of Cap. 366 R.E. 2019(supra), (vii) employer to diclose to the trade union representative information relevant to the performance of their functions as it is provided under section 62(2) of Cap. 366 R.E. 2019(supra) and (viii) paid leave to the trade union representative as it is provided for under section 63 of Cap. 366 R.E. 2019(supra). All the foregoing were not complied with by the complainant as she did not submit to the respondent TUF 14 form as pointed hereinabove. In my view, in absence of the said TUF 14 form, complainant cannot legally claim what she is claiming from the respondent. I therefore find that the calim by the complainant that respondent denied her access, did not allow her to exercise organizational rights or that failed to submit union dues have no merit in absence of the said TUF 14 forms. It was submitted by Mr. Mnkeni on behalf of the complainant that, the court should consider section 61(1) and (4) of Cap. 366 R.E. 2019(supra) on requirement of the employer to deduct dues for a registered terade union and the requirement of the employee to serve a one month notice of revocation of deduction of dues. I have considered 32 the cited provisions and applied it to the evidence on record and I am of the considered opinion that, in the complaint at hand, some employees revoked their salaries to be deducted and some TUF 15 forms were tainted with fraud. According to evidence, some employees of the respondent revoked their membership with the complainant and the latter was so notified. In fact, in her letter with reference No. TRH/230/2023 dated 30th December 2023 (part of exhibit D1 collectively), respondent notified the complainant inter-alia that:- “ Tafadhali husika na somo tajwa hapo juu ukirejea barua pia barua yenu Kumb Na CWMT/GEN/2023/VOL90 ya tarehe 20/09/2023 mliyotuandikia mkiambatanisha Formu TUF 15 mlizowajazisha madreva 268 kujiunga ba chama chenu kabla ya maridhiano pamoja na orodha ya majina yao. Kutoka katika orodha hiyo kuu tumeorodhesha baadhi ya majina ya madereva waliokataa kukatwa kwa kutoridhia mpango huo. Hivyo basi pamoja na barua hii tumeambatanisha orodha ya majina. Ya walioridhia na tayari wameshachangia mwezi November 2023, na pia wale mliowajazisha fom hizo lakini kwa sasa hawako tena kwenye ajira ya kamapuni zetu. …” The list of employees who revoked membership(part of exhibit D1 collectively) has 107 names while the list of those were no longer working with the respondent(part of exhibit D1 collectively) has 78 names. It is undiputed according to various letters (exhibits D2 to 53) that were admitted without objection, some of the employees of the 33 respondent has died or terminated their employment upon exipry of the contrat or for any other reason prior to submission of TUF 15 forms by the complaint to the respondent. Unfortunately, all these are claimed by the complainant to be her members and prays the court to order respondent to submit their monthly dues to the complainant. That cannot be done as it is against the law because they were no longer employees of the respondent and the latter had no salary to be deducted and submit union dues to the complainant. I therefore find that claims by the complainant to be paid TZS 179 Million and 5% interest on each day of the delay is unsupported by evidence because that claim includes also employees who were, at the time of submission of TUF 15 forms, no longer employees of the respondent. Since I have held that some TUF 15 forms were tainted with fraud and that procedures for recruitment of the repondent’s employees as members of the complaint was done in violation of the law, I concludes that complaint has failed to prove the allegations against the respondent at the balance of probability. Consequently, I dismiss this complaint for want of merit. Dated at Dar es Salaam on this 13th December 2024. 34 B. E. K. Mganga JUDGE Judgment delivered on this day 13th December 2024 in chambers in the presence of Jimmy Mnkeni, advocate for the complainnt and Lucas Nyagawa, advocate for the resppondent. B. E. K. Mganga JUDGE 35