CHINA ENGINEERING LUCAS LABOUR REVISION

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF SHINYANGA AT SHINYANGA LABOUR REVISION REF. NO. 20231212000027423 CHINA CIVIL ENGINEERING CONSTRUCTION CORPORATION ...............................APPLICANT VERSUS LUCAS VENANCY MNUBI……..…………...…..….……RESPONDENT [Application from the decision of the Commission for Mediation and Arbitration for Shinyanga at Shinyanga.] (Hon. Massay.) dated the 8th day of November, 2023 in CMA/SHY/06/2023 ----------- JUDGMENT 3rd & 24th September, 2024. S.M. KULITA, J. This application has been filed by way of chamber summons and notice of application. The Applicant herein prays for this Court to call for the records of the Commission for Mediation and Arbitration for Shinyanga (CMA) in the Labour Dispute No. CMA/SHY/06/2023, revise it 1 and set aside its award dated 8th November, 2023. The application is supported with an affidavit sworn by the applicant’s Human Resource Manager, one Salum Samson Nzally on the 8th day of December, 2023. In a nut shell, as it can be gathered from the applicant’s affidavit is that, the respondent has been working for the applicant as Mobile Crane Operator on daily bases payment of Tshs. 20,000/= which was payable after 30 days of accumulation. The information goes on providing that, in addition to that, the respondent used to be cut/deducted from his salary the NSSF and PAYE. He was also a member in the respective Trade Union, namely TAMICO, and that he used to be paid overtime. However, it is alleged that the respondent has been escaping from signing employment contract with the applicant even after he was issued with final instructional letter on 10th September, 2022. The affidavit goes on providing that, due to that respondent’s behavior, the applicant decided to refer the respondent to the disciplinary committee whereby the respondent firstly neglected to sign the letter that summoned him to the committee and disappeared to unknown place. The applicant’s affidavit shows that the respondent was later on seen when he appeared for the payment of January, 2023 salary. 2 The information further shows that, soon after he was paid the said salary, the respondent filed a dispute before the CMA at Shinyanga, claiming for unfair termination and other terminal benefits. That, the Respondent herein, actually won the said case. For those circumstances, the applicant herein decided to file this revision case relying on the following grounds; one, that the Arbitrator wrongly analyzed the evidence before him thereby reaching into a wrong conclusion, two, the Arbitrator wrongly issued awards for some claims which were neither pleaded in the application form (CMA F1) nor argued by the parties, and three, the Arbitrator wrongly proceeded to arbitrate the matter which was prematurely referred to the CMA. On 13th August, 2024 the matter was scheduled for hearing through written submissions. Both parties complied with. Mr. Shaban Mvungi, Advocate, represented the Applicant whereas the Respondent was in person. Submitting in support of the application Mr. Mvungi prayed for the applicant’s affidavit to be adopted and form part of his submissions. In addition to what is contained in the applicant’s affidavit, Mr. Mvungi added that, the respondent claimed to have reported the dispute to the Labour Officer, who in return, through a phone, talked with employer 3 who gave no cooperation. It is Mr. Mvungi’s assertion that, this testimony by the Respondent herein is doubtful as the respondent did not mention the date that he had gone to the Labour Officer. He also never mentioned the name of the employer’s officer whom the said Labour Officer contacted with. Concerning the issue of unfair termination Mr. Mvungi stated that, respondent’s claim is unfounded as the same did not meet the criteria set under section 36(a) of Employment and Labour Relation Act [Cap 366 RE 2019], hereinafter referred to as ELRA. Further, Mr. Mvungi stated that, the respondent had never been terminated by the applicant, rather, the applicant just initiated disciplinary process which did not materialize, as the respondent rejected to appear. On another move, Mr. Mvungi faulted the Arbitrator for taking into consideration of the employment contract which was neither tendered nor admitted at the Commission. To him, this is fatal. Further, Mr. Mvungi submitted that, it is not true that the respondent was transferred from Dar es Salaam to Mwanza. On this, he averred that, the respondent has been working with the applicant in other projects including this one. Submitting on this project, Mr. Mvungi stated that the respondent had been recruited afresh. 4 Mr. Mvungi asserted further that, during trial at the CMA the respondent never claimed for the subsistence allowance. He wondered as to why he was awarded the same. With this, he was of the views that, the applicant was condemned unheard. In his reply submissions, the respondent did not offer anything helpful to this court than disputing all what the applicant has offered to submit herein. I have keenly gone through the entire pleadings, the CMA records and the parties’ submissions as well. From those things, I find the issue for determination is whether this application is meritorious. According to the records, the respondent’s dispute at the CMA based on the following claims; unfair termination, salary areas, notice pay, overtime pay, rest day pay, leave, severance pay and repatriation to Dar es Salaam pay. The CMA decision/award shows to have rejected to award the respondent on the following; salary areas, overtime and rest day pay. On that account, as there was no cross application by the Respondent, my discussion on this application for revision, as it has been brought by the applicant, will base on the applicant’s claims only, particularly on the awards which were awarded to the respondent by the CMA of which the Applicant herein challenges. 5 As for the issue of whether the respondent was unfairly terminated from his employment, my analysis is as follows; the respondent was of the views that, he was unfairly terminated by the applicant, for the reason that he rejected to sign another contract while there was an existing contract, and that, that was done orally. On her side, the applicant rejected to have terminated the respondent’s employment. She stated that, when she was on process of taking the respondent to the disciplinary committee for rejecting to sign the employment contract, the respondent absconded from job. She added that, the letter for that matter, as an initiation of disciplinary action was issued on 13th January, 2023. The applicant added that, that is also the time when the respondent instituted this dispute at the CMA. From these two stories of the parties, the court should find the side which its story has a high probability of having been real happened as compared to the other. If at all the respondent absconded himself from job station, it follows therefore that, disciplinary actions must have been taken against him. According to the applicant’s submissions, there is no disciplinary action that was taken against the respondent. The applicant, however stated that, she initiated disciplinary measures by issuing a letter to the respondent on 13th January, 2023, but the respondent refused not only 6 to sign it but also to appear before the said committee to show cause. If at all, the Applicant herein had initiated such disciplinary processes against the respondent, as the respondent had filed his dispute at CMA on 30th January, 2023, then, this court ought to have at least seen the information on some progress for such disciplinary measures against the respondent. As the applicant has failed to show such progress on disciplinary measures against the respondent, it follows therefore that, the trial Arbitrator was correct to hold that, the respondent was terminated orally by the applicant, which is un-procedural. As the issue of termination has been proved that the respondent was terminated by the applicant, then, the next move is to determine as to whether the said termination was valid, substantively and procedurally done. Under section 37 of the ELRA, the employer is put into obligation of proving that termination was valid substantively and procedurally. The said section provides; “(1) It shall be unlawful for an employer to terminate the employment of an employee unfairly. (2) A termination of employment by an employer is unfair if the employer fails to prove- (a) that the reason for the termination is valid; (b) that the reason is a fair reason- 7 (i) related conduct, to the employee’s capacity compatibility; or (ii) based on the or operational requirements of the employer, and (c) that the employment was terminated in accordance with a fair procedure” As according to the circumstances of our present case, as the applicant does not agree to have terminated the respondent, he was thus obliged to offer proof that she substantively and procedurally terminated the respondent fairly. For that matter, it only remains that, the applicant terminated the respondent without a valid reason and without following fair procedures. On that account, I see no fault on the trial Arbitrator to award a 12 (twelve) months’ compensation to the respondent as prayed. As the applicant was terminated without notice by the applicant, then, as per section 41(5) and 44(1)(d) of the ELRA the respondent is entitled to be paid the same by the applicant. The same provides, as I hereunder quote; - 8 “44.-(1)(d) On termination of employment, an employer shall pay an employee any notice pay due under section 41(5)” “41(5) Instead of giving an employee notice of termination, an employer may pay the employee the remuneration that the employee would have received if the employee had worked during the notice period.” According to section 44(1)(e) and 42(1) and (2) of the ELRA, the respondent is also entitled to severance pay after termination by the applicant being proved to have been unfair. The said provisions provide as follows; “44.-(1)(e) On termination of employment, an employer shall pay an employee any severance pay due under section 42” “42.-(1) For the purposes of this section, “severance pay” means an amount at least equal to 7 days’ basic wage for each completed year of continuous service with that employer up to a maximum of ten years. 9 (2) An employer shall pay severance pay on termination of employment if – (a) the employee has completed 12 months’ continuous service with an employer; and (b) subject to the provisions of subsection (3), the employer terminates the employment”. As the record shows that the respondent worked with the applicant for more than 12 (twelve) months before his termination, and as long as it has been proved, as shown above, that the applicant terminated the respondent’s employment unfairly, it therefore goes that, the trial Arbitrator properly awarded the severance pay to the respondent as it can be seen in the impugned CMA award. As for the issue of repatriation pay, section 43(1) of the ELRA provides; - “43.-(1) Where an employee’s contract of employment is terminated at a place other than where the employee was recruited, the employer shall either- (a) transport the employee and his personal effects to the place of recruitment; 10 (b) pay for the transportation of the employee to the place of recruitment; or (c) pay the employee an allowance for transportation to the place of recruitment in accordance with subsection (2) and daily subsistence expenses during the period, if any, between the date of termination of the contract and the date of transporting the employee and his family to the place of recruitment”. Taking into consideration that, the evidence provides that, the respondent was recruited at Dar es Salaam, the Respondent was right to deny to sign another contract at the place where he was then shifted to, that is, Seke - Kishapu SGR project. It thus follows that, as per the above cited provision, upon termination of his employment, the respondent was correctly awarded the repatriation pay to a place where he was recruited. However, as long as the Legislature in the cited provision had knowledge that, repatriation pay may unnecessarily be delayed by the employer, it discouraged such employers’ habit by inserting therein the requirement for subsistence allowance from the date of termination to the date of repatriation of the terminated employee. As such, there is no 11 way that the trial Arbitrator wronged by awarding subsistence allowance to the respondent, even if the same was not argued by the parties. The reason behind is that, whenever repatriation pay is proved and thus awarded, then subsistence allowance follows. Concerning the annual leave pay, my perusal in the CMA proceedings revealed that, there is nowhere the respondent testified on it. This means that, the trial Arbitrator wronged to award on it. On that account, the said annual leave pay amounting Tsh. 540,000/= should be deducted from the total amount that the applicant has been ordered to pay the respondent. For the discussion that I have endeavored to give herein above, save for the said issue of annual leave pay amounting Tsh. 540,000/=, which should be deducted from the total amount that the applicant has been ordered to pay the respondent, I find the applicant’s application unmeritorious, hence dismissed. Each party to bear its own costs. S.M. Kulita JUDGE 24/09/2024 DATED at SHINYANGA this 24th day of September, 2024. 12 S.M. Kulita JUDGE 24/09/2024 13