China Civil Engineering Constructions Corporations v

The Judiciary of Tanzania IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REDISTRY AT SHINYANGA LABOUR REVISION NO. 202408061000019019 CHINA CIVIL ENGINEERING & CONSTRUCTION CORPORATION ........ APPLICANT Versus MUSSA PIUS MUSSA & GIDION ALFRED GEORGE .......................... RESPONDENTS (Originating from the Award of the Commission for the Mediation and Arbitration of Shinyanga) (Hon. Alfred Massay - Arbitrator) Dated the 26th June 2024 in Consolidated Ref. No. CMA/SHY/10&11/2021 ----------------------------- JUDGMENT 10th October & 29th November 2024 F.H. MAHIMBALI, J The respondents in this case were employed by the applicant as casual laborers on daily basis for welding duties of SGR construction on metal works fabrication. It appears that they were recruited at Malampaka/Seke. They 1 then worked with the respondent for a period of four months, where then they were issued with a one-month notice of termination on the ground of completion of the specific task employed. The notice of termination notwithstanding, the letters of their termination stated that they were terminated on grounds of misconduct. Upon their termination, they filed labour disputes at the CMA challenging their termination as unlawful and that they were not paid their repatriation costs; whereby the CMA considered the termination of their employment as unlawful, thus ordered payment of 30 months’ salary and that they deserved the repatriation costs to the place of their recruitment as per calculations done amounting to 13,020,000 and 12, 090, 000/= respectively. Undaunted with the CMA’s awards on unlawful termination and repatriation costs, the applicant has preferred this revision application to challenge the said award by the CMA on five grounds, namely: a) That the CMA illegally and unjustifiably held the matter in the continued absence of the respondents. 2 b) That the CMA improperly shifted the burden of proof to the Applicant while the cause of action was breach of contract and not unfair termination. c) That the CMA erred in awarding repatriation costs for breach of contract while the respondents’ place of work and place of recruitment was the same. d) That the CMA erred in making a finding that the respondents’ employment was unfairly breached. e) That the CMA’s award on compensation for breach of contract was improperly arrived given the evidences as tendered by both parties. During the hearing of the appeal, the applicant was represented by Mr. Akida Majenga learned advocate while the respondents was represented by Mr. Benjamin Dotto, personal representative. In his submission Mr. Akida Majenga learned advocate, firstly, adopted the applicant's sworn affidavit to form part of his submission. On the first ground of revision (item c), his grief is on the award of the repatriation costs. That as per hearing at the CMA, the employment contracts of the respondents were not in dispute and were dully received as exhibits. The 3 said employment agreements (item 8) place of recruitment is Malampaka and Seke and the place of work was Seke. As per evidence in record by the applicant, it was clarified that it was one site. Therefore, as per site meaning, Malampaka is within Seke site and that Malampaka is just an office location but not a site work. He insisted that as per evidence adduced, a place of work is Seke/Malampaka. Both respondents, in their testimony none stated that was once shifted from Seke/Malampaka area. Neither was there any testimony or evidence of transfer from one work place to another. Therefore, the respondents worked at the same place up to the time of their termination. Repatriation costs as per law, is only applicable where an employee is terminated at a different place from the place of recruitment. Therefore, the CMA had erred on its ruling/award which was then against the law (see CMA's award at page 22). As per respondents' claims at the CMA - Form No. 1, there was no such relief sought. Thus as it was not pleaded, it was not supposed to be awarded. With the second ground of revision (item b), the grief is, the CMA had erred by shifting burden of proof to the applicants in establishing the 4 respondents' claims. According to section of 14(1) (c) of the ELRA, it has stipulated types of employment contracts. That theirs, was a contract of specific task. As per item 1, the said contract was for specific task from 27th July 2021 (for both respondents) and that it should have come to an end where the said work comes to an end or the project is completed, whichever comes first. It is this contract that forms the basis of mutual relationship between the parties. As per item 6 of the employment contract of the respondents, says payment will be on daily basis. As per these records, the respondents had a special task. At page 4 of the award, the applicant's witness explained the nature of the said project. It had three phases: Mobilisation of resources which involved house building, survey etc. the second phase is earth work. And the third phase is the electrification of the railway. Since the wording of the contract is clear as to when the said employment should come to an end (clause 11.4 of their employment contracts) read together with item no.1 of the said employment contract. The ELRA, especially section 41 lists other incidents of termination. The contract of employment (1.b) lists procedure how to terminate a specific task, it just names a requirement of notice and the issue of reasons, unless 5 there was a different agreement. It is his considered view that the applicant had complied with. He faults the CMA' s award as being contrary to the actual position that the respondents were wrongly terminated as they were on permanent basis. The CMA had grossly erred. The CMA's finding that there was unfair termination to the respondents, it was an error since the applicant had complied with the legal regime's directives as required by law. Since there was a notice of 28 days (see the letter dated 22nd Nov, 2021) as notice of termination. Therefore, it was not proper for CMA to consider it as retrenchment as their tasks had been completed as the law is clear that such a termination ought to have been preceded by a one-month notice dully done. On retrenchment, there are other reasons such as massive termination of employees. That was not the case in the current matter as it involved only two workers and not massive as ought to have been. With the third ground of revision (item a), the grief is, the CMA had developed personal interests of the matter as despite the respondents' continued absence, yet the CMA kept on holding the case. On this grief, he 6 invited this court to peruse the CMA' s record dated 28th March 2023 where these respondents had not entered appearance three times and consecutively. When he pressed for dismissal of the case pursuant to rule 28 (2) of the Labour Institutions Act, 2007, the arbitrator had granted further extension without any prayer and good reasons for doing that. Despite such an extension, yet the respondents kept dogging CMA's attendance (see the CMA's proceedings dated 16th May 2023) where again he had pressed for the dismissal but in vain. On the fourth ground of revision, the grief is, there was no legal justification of the CMA's award of 30 months’ compensation even if the said termination is unlawful as the award is so high complaining that there was no such legal justification of the 30 months' compensation award in the circumstances of this case. In his considered view that the CMA was one sided in its assessment of the evidence and so is its consideration. The public knowledge of the CMA is not known where it sourced that information. On this, he referred this Court to various court's decisions such as Sinohydro Corporation Limited Vs. mulid Mputo Omary, Labour 7 Revision No. 144 of 2023, HC Labour Division DSM at page 9 - on excessive award of compensation; Stanbic Bank (T) Limited V. Iddi Halfani, Civil Appeal No. 139 of 2021 at pages 34 and 35 (both unreported) and section 40(1) (c ) of the ELRA, for limited remedies of unfair termination being 12 months. Thus, the current award of 30 months is unjustified. Lastly, he submitted that, this dispute was filed under breach of contract. It is trite law that, he who alleges must prove. It is astonishing that, the CMA has treated this matter as unfair termination. In the case of Ahmad Abdallah Kinyokwe Vs. Zulpha Salum Makuka and 3 Others, Civil Appeal No. 127 of 2021, CAT (Unreported), it has been pressed on the principle of who alleges must prove. Looking at the current award, from page 1 - 7, that burden was shifted to the applicant. being aware of the requirement under section 39 of the ELRA that it is the employer's duty to establish that the termination was fair. In the current matter, the cause of action was breach of contract, thus the burden shifts from the employer to the employee. 8 Having submitted all this, he humbly prayed that this court be pleased to set aside and revise the CMA's award vide CMA/SHY/10 & 11 of 2021 and grant any other order as it may deem just and proper to grant. On his part, Mr. Benjamin Dotto who is the personal representative of the both respondents, too prayed to adopt the respondents’ joint affidavit. With ground *b* of the revision application, he submitted that as per rule 9 (3) of the ELR GN 42 of 2007 it provides that the burden of proof lies to the employer but it will be sufficient for the employee to prove on balance of probability. Despite the requirement of this rule, the respondents who were complainants at the CMA were the ones who had commenced giving their testimony before it. As per page 9 of the CMA's proceedings, that is very clear. Thus, this Court should disregard this as the respondents as complainants had discharged that duty perfectly. As regards to the third ground (item a), he responded that the applicant had never moved the CMA to consider the respondents' absence from CMA's proceedings as submitted here. Even the pointed out dates in consideration of his grievances, the CMA's proceedings are not reflective on what has 9 been pointed out (28th March 2023). The only date that is reflected as per CMA's record is 28th November 2023 and not otherwise. On 15th December 2023, the respondents were absent but with notice that is why the CMA further adjourned the matter. The important issue here is why the CMA adjourned the matter so often. As per rule 29(1) (a) &(b) of the Labour Institutions (Arbitration and Mediations) GN 67 of 2007 provides for postponement if there are good reasons to do so. In all the times when the respondents had not entered appearance, they had reasons to do so and the CMA was satisfied. That notwithstanding, the applicant's counsel has failed to persuade the court as to how the delivered award prejudiced the applicant by the said postponement of the hearing by the respondents. In his considered view, the CMA kept on adjourning the matter as per prevailing circumstances of the dispute and that as per page 7 of the CMA's proceedings, (23rd September 2022) even the applicant had not entered appearance before the CMA. Likewise, on 18th April 2023 and 8th April 2024. Yet, the CMA adjourned the matter. 10 On the fourth ground (item e), in his considered view, the CMA was considerate enough by the nature of the breach of contract. As per CMA's record, the compensation award was 30 months. Therefore, the award of 30 months’ compensation was satisfactory as per circumstances of this case as the SGR project was still in existence and so was the welding work. As per exhibit P.1 and P5, it is true that their contracts were for specific tasks meaning that would come to an end either at the end of SGR project or when the welding work had come to an end. As regards to the 30 months' compensation, in the case of Good Samaritan Vs. Joseph Roberth Savari Munthu, Labour Revision No. 165 of 2011, HC Lab. Division at page 6 and 7. Section 40 of ELRA is only applicable when there is unfair termination, but for breach of contract that is not the guiding provision as submitted by Mr. Akida, argued Mr. Benjamin Dotto. In regard to item (d) of the ground of revision, as per rule 8(1) (a), (b), (c),(d) of the GN 42 of 2007 (Code good practice), As per page 9 of the CMA's proceedings, there were two issues: Whether there was breach of contract (substantive and procedural) and whether the reliefs sought were 11 proper. According to exhibits P.1, P5, (P.2 and P6) notice of terminations and the termination letters (exhibit P.4 and P6), the notice of terminations and termination letters bear different reasons for their terminations. It is not clear which reasons had justified their terminations: reduced work, end of contract or misconduct. The arbitrator's award at pages 7 and 8 of the CMA's award is very clear. To justify that the applicant's unlawful termination against the respondents, that is well displayed in page 10 of the CMA's proceedings. That evidence was neither challenged nor countered by the applicant. Thus, it was unjustified termination. As regards the end of the contract, that is justified by page 10 of the CMA's proceedings, the respondents' contract life span is up to the end of the project which is 2025. This evidence is equally not opposed save that at page 25 of the CMA's proceedings, in which the duration of the contract is clarified to be May 2024. And that the respondents being VETA scholars had trade knowledge on welding. 12 The argument that the respondents were employed just for first phase - house construction is not backed up by evidence and the signed contracts (See clause v ) of their contracts. In the whole, he considered their contracts were unlawfully terminated ( see Jordan University College Vs. Mark Ambrose, Labour Revision No. 37 of 2019) at page 7, also the case of Good Samaritan Vs. Joseph Roberth Savari Munthu, Labour Revision No. 165 of 2011, HC Lab. Division at page 6 (1st paragraph). With the issue of place of recruitment and place of work he prefaced his submission first by making reference to section 43(1) a &b of the ELRA, Cap 366, R.E 2019. The important question to ask is where is the place of recruitment. Exhibits P.1 and P5 are very clear - clause 2 says, place of recruitment is Malampaka/Seke. Clause 8 says, place of work is Seke. Malampaka and Seke are not same places. The place of recruitment is Malampaka - head Office. Thus, place of work is Seke. Thus, the arbitrator was very clear and elaborative in his award from page 13 to 23. The case of Good Samaritan Vs. Joseph Roberth Savari Munthu, Labour 13 Revision No. 165 of 2011, HC Lab. Division at page 8 is very clear on the place of domicile and place of recruitment. See also the case of Pangea Minerals Limited V. Gwandu Majali, Civil Appeal No. 504 of 2020 at page 9. With CMA F.1 that there was no claim of repatriation costs and subsistence allowance, reading item 2 of part iv on outcome of mediation, there is an item of any other entitlement. Thus by any other entitlement that means subsistence allowance is also inclusive. As per opening statements, all these have been well clarified. Regarding the applicant's affidavit item 5.2, as per exhibit D.3 and D.4 in which the applicant says is a disclaimer on terminal benefits and not on claim of breach of contract. But even if it was for terminal benefits, in the case of Icea lion General Insurance Co. LTD and Another V. Fortunatus Lwanyantika Masha, Civil Appeal No. 17 of 2019, at page 14 and another case of Bulyanhulu Gold Mine LTD vs. Charles Bwanakunu, Revision No. 2 of 2016 at page 25, the issues of repatriation costs has been discussed in detail. 14 Following his submission, Mr. Dotto winded up by saying, that all the applicant’s counsel has submitted in this revision has not carried any legal or convincing grounds for this court to revise the CMA's award. He therefore, humbly prayed that this Court to dismiss the applicant's revision and confirm the CMA's award. As the applicant and the respondents’ submissions took up to 18.00hrs, for the sake of health, I had adjourned the matter and directed the applicant’s counsel if he had any rejoinder submission to do so by way of written submission and file the same by 15 th October, 2024 in which he complied. In his rejoinder submission, Mr. Akida Majenga maintained his submission in chief and added that there was no difference between Malamapaka and Seke as far as the respondents’ contract of employment is concerned. As there was no proof of transfer letter from one point of recruitment to another place of work, or from one place of work to another, the award on repatriation costs as far as the circumstances of this case is concerned, the CMA had erred in awarding so. 15 On the length of the respondents’ contract with the applicant, he rejoined that the SGR project line from Mwanza to Isaka is only for three years commencing from 15th May 2021 to 15th May 2024. Therefore, it was an error for the CMA to project the respondents’ monthly compensation on the basis of the length of project’s remaining time. Further, he rejoined on the respondents’ reply that there had been recruitment of new employees on the same tasks performed by them, as lacking basis for none-proof at CMA such as to establish job advertisement, notice of recruitment or proof of employment of other employees. He clarified further that, on site works, it is impossible to close business at one time but gradually as per reduction of work. He concluded that it was not their contract that they should work until the completion of the project or upon them becoming old. I have carefully scanned the parties’ arguments on submission for and against the revision. The vital question here for consideration is whether the revision application is merited. 16 To start with the issue of place of recruitment for consideration of repatriation costs, the facts of the case are silent as to whether Malampaka/Seke are two different places that require/attract repatriation costs pursuant to section 15(1) (b) of the ELRA. The law is, repatriation costs is only awardable where the employee’s termination is in a place other than the place of recruitment in which the employer shall take charge either to transport him or pay the transportation costs and payment of subsistence allowance pending the payment of repatriation costs (see section 43(1) (a) and (b) of the ELRA, Cap 366 R.E 2019. As the place of their recruitment is written Malampaka/Seke, and that the termination of their contract seems at the same place Malampaka/Seke, while the work place is Seke there is no good justification for the award of the said costs as done for want of establishment if the said respondents got transfer in the due course to a different place from the place of recruitment. The same is differed. On the issue whether the respondents’ contracts of employments were lawfully terminated, each party had submitted in favour of its position. 17 Whereas the applicant maintained that theirs was a specific task contract, thus it ended on reduction of work or upon completion of the project, the respondents disputed that fact. I have carefully scanned the CMA’s records. It is true that the one-month notice of the respondents’ employment termination says one thing but the letters of termination of their employments says another. Since what terminates one’s employment is not the notice of termination but a letter of termination, the latter is the authoritative document for one’s termination of employment. On that fact, it is clear that the respondents’ termination was based on misconduct which therefore was not done procedurally. On that basis, the CMA was justified to consider the termination of the respondents’ employment as unlawful as there was no evidence which led to the said proof and disciplinary proceedings of misconduct of the respondents justifying their termination. To that fact, they are entitled to compensation as well reasoned by the CMA’s Arbitrator. However, the 30 months’ compensation is of the high side. It is reduced to 24 months each (See Tanzania Saruji Corporation V. African Mable Company Limited (2004) TLR page 155) where the CAT held that: Where an employer terminates a fixed term 18 contract, the loss of salary by the employee of the remaining period of the unexpired term is a direct foreseeable and reasonable consequence of employer’s wrongful action. Equally to the case at hand, as the project’s life span is three years, by terminating their employment unlawfully on ground of unknown misconduct, the respondents were their means of income cut short. See also the case of Good Samaritan Vs. Joseph Robert Savari Munthu, Labour Revision No. 165 of 2011, Labour Division at DSM. The first two grounds of revision, after I have gone through the CMA’s records, it is clear that both parties at different times had been recorded absent for some reasons. For fairness and the Arbitrator’s wisdom, he adjourned the matter until when hearing was concluded and verdict given. In my considered view, there is no any prejudice occasioned by the said CMA’s adjournments on justified reasons. In the final results, the applicant’s revision is dismissed save to the extent explained above. It is so ordered. Right to further appeal is explained to any aggrieved party. 19 DATED at SHINYANGA this 29th November, 2024. F.H. Mahimbali Judge 20