judgement CHOHAN TRANSPORT V

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 15416 OF 2024 (Originating from the decision of the Commission for Mediation and Arbitration in Award delivered by Hon. Igogo, arbitrator from CMA/DSM/ILA/244/2023/147/2023) CHOHAN TRANSPORT LTD...........................................................APPLICANT VERSUS IKRA MUSSA JUMA……………………..…………………………..…..RESPONDENT JUDGEMENT OPIYO, J In this matter, upon dissatisfaction with the award issued by Commission for Mediation and Arbitration in Labour Dispute No.CMA/DSM/ILA/244/2023/147/2023 in order for the court to call for records, revise the proceeding and set aside the award mentioned dated on 17th May 2024 by Hon. Igogo, Arbitrator. In her application the applicant raised 5 grounds for revision as follows: - i. That, the Honourable Arbitrator erred in law and facts for failing to give weight to the Applicant evidence. ii. That, the Honourable Arbitrator erred in law and facts by holding that, the disciplinary action was not taken while it was the Respondent who absconded from workplace. 1 iii. That, the Honourable Arbitrator erred in law and facts for failing to take consideration that the dispute was premature, the Respondent was supposed to file a complaint for unpaid salaries and not unfair termination. iv. That, the Honourable Arbitrator erred in law and facts for failing to take consideration important matters hence arriving at wrong conclusion. v. That, the Honourable Arbitrator erred in law by raising irrational and illogical issues. In this application, the applicant was represented by Mr. Michael Sheshe, advocate, whereas the respondent was represented by Mr. Charles Shipande, advocate. Supporting the application, on first ground, Mr. Sheshe submitted that, the Commission for Mediation and Arbitration misdirected itself by failing to give weight to the applicant’s evidence by concluding that, the applicant did not take any disciplinary action to the respondent who has always been causing road accidents due to car breakdowns as reflected at page 9 of an Award. Furthermore, the applicant submits that at page 6, even though cars were having breakdowns, but the applicant repaired the them and after repairs, the respondent still resisted to work. 2 He stated that, the respondent while giving evidence did not mentioned or testified in detail at the Commission as to why he absconded from work. On that basis he is of the view that, the arbitrator reasoning was contrary to applicant’s evidence, including the testimony of (DW1). According to him it is sufficient to submit that, the arbitrator’s reasoning was incorrect and unjustifiable to say that the respondent abscondment from work was due to insufficient tools of work. On second ground, Mr. Sheshe submitted that, the Commission for Mediation and Arbitration misdirected itself by stating that the applicant failed to meet the requirements of Rule 13 of GN No. 42/2007 as stated at page 10 and 11 of the Award while terminating the respondent. He contended that, the gist of the above provision depends on the nature of the case, DW1 testified that between March to April, the respondent was absent from work and after some months later, the applicant expected the respondent to resume back to work. Surprisingly, he instituted labour dispute before CMA against the applicant. In such circumstances, the applicant had no chance to comply with Rule 13 because already the respondent decided to quit the job without informing the applicant. 3 Supporting his stand regarding abscondment, he cited the case of FERUZI HANZURINI VS. SUPPER SERVICE CENTRE CO. LTD, High Court of Tanzania, Labour Division, Revision No: 125 of 2021, where it was held that;- “In terms of guideline 9(1) of the Employment and Labour Relations (Code of Good Practice), G.N No. 42 of 2007, absence from work for more than five days without permission or acceptable reasons is a serious misconduct warranting to termination. The applicant to this application was absent from work for more than five months. It is my opinion that much as employees needs protection, the same also need to be extended to employers otherwise their business will be affected by none attendance at work by employees who in turn, will demand salaries of which they have not worked for.” On third ground, Mr. Sheshe submitted that, the evidence testified at the Commission does not establish, as to whether termination was conducted but rather the respondent claimed unpaid salary and failed to testify for how long he was not paid his salary irrespective of his follow ups on his salary claims. According to him, the arbitrator failed to evaluate evidence of both parties properly while entering an award by comparing salary dispute and termination to mean one thing, contrary to Rule 10(1) of the Labour Institution (Mediation and Arbitration) GN No. 64 of 2007 which provides 4 that, disputes about fairness of an employee’s termination of employment must be referred to the Commission within 30 days. Rule 10(2) states that, all other disputes must be referred to the Commission within 60 days from the date when the dispute arose, so treating two disputes as one amounts of abuse of employer’s rights. He stated that, after all, even the remedies in termination and other remedies are treated differently. He further insisted that, even if the arbitrator considered it as constructive termination it still did not fit the criteria in the case of Kobil Tanzania Limited Vs. Fabrice Ezaovi, Civil Appeal No. 134 of 2017, CAT at Dar es Salaam, where it was held that:- “Constructive termination that; ... to recap, we find that the respondent's act of resignation was not of last resort. He did not prove any conditions that made the employment unbearable. He did not exhaust the dispute resolution mechanism at his disposal. His resignation was out of the blue, so to speak ... Constructive dismissal was not proved” From the above authority, he submitted that, the court had put the basis to meet in proving constructive termination which he argued were not met in our case, as the applicant did not prove the intolerable circumstances and he did not resign, but absconded from work. He added that, the respondent was not terminated from employment and therefore, 5 for the employee to claim for unfair termination, there should be proof under section 37(2) of the Employment and Labour Relations Act [CAP 366 Revised Edition, 2019]. On fourth ground, Mr. Sheshe submitted that, the arbitrator failed to consider the evidence of the applicant, hence reached wrong decision in favour the respondent without considering the weight of evidence adduced by both parties. On last ground, the counsel contended that, the arbitrator erred in law by raising irrational and illogical issues due to the reasons that, the respondent’s evidence was not sufficient to prove that, he was terminated from work but rather to convince the Commission to believe untrue statement made by the respondent to be true. He thus, prayed for the award to be revised and set aside. In reply to the first ground, Mr. Shipande submitted that this ground failed from its beginning as the applicant does not mention which evidence was not considered by the arbitrator. He stated that, when the matter was fixed for hearing the applicant called one witness DW1 (Operational Manager) who testified to know the respondent, but not the reason for his termination and respondent letter of application was admitted as D1. 6 He argued that, the applicant failed to prove before the Commission if disciplinary action against the respondent was taken contrary to section 39 of the ELRA which directs that the employer shall prove that the termination was fair. He referred to the case of Kaimu Said v. The Republic, Criminal Appeal No.391/2019, CAT, at Dar es salaam, to fortify his argument. He stated that, in that case it was held that analysis and evaluation of evidence must be apparent on the records. It was further submitted that the applicant had no valid reason to terminate the respondent. Mr. Shipande submitted that, the respondent was not paid his salary for more than three months and was not assigned to any work, the allegations were not refuted by the applicant. According to him failure to pay respondent’s salary for three months with no valid reason amounts to termination with no valid reason as per Rule 6(4)(a) of G.N No.42 of 2007 which states that, refusal to pay wages amount to a breach of a contract. He further added that Rule 13(1) to (10) of G.N No. 42 lays down a fair procedure to terminate employee, something that was not honoured in this application. On second ground, regarding the allegation that the arbitrator erred in law and facts in holding that disciplinary action was not taken, Mr. Shipande submitted that, as the applicant assert that termination was fair 7 including procedure, he owes duty to prove as provided under Section 110(1) and (2) of the Evidence Act Cap 6 R.E 2002. He insisted that the applicant to this case, failed to prove before the Commission if the said disciplinary action was taken, regardless of her allegation of abscondment from work. Replying on third ground that the matter was premature before the Commission, Mr. Shipande argued that, this is a total misconception of the applicant claim to this Court basing on the facts that, the respondent adduced his evidence before the Commission of being not paid his salary for more than three months and the said evidence was never challenged by the applicant. On allegation that the arbitrator failed to take consideration of the important matters, Mr. Shipande averred that, this ground lacks merits basing on the facts that, all evidence adduced before CMA were considered by the arbitrator. He further asserted that it was duty of the applicant to prove the case, however he failed to do so. On last ground that the arbitrator erred in law and facts for raising irrational and illogical issues. Mr. Shipande submitted that, the record available including the CMA proceeding, there is nowhere, the arbitrator raised no new issue on its own, however the same was proposed by the 8 parties and affirmed by the Commission. He therefore, urged for the dismissal of the application. Having considered the arguments advanced by both parties and records provided. This court will condense five grounds of revision into answering two main issues as to whether the applicant was constructively terminated and the reliefs the parties are entitled to. The gist of the respondent’s testimony at trial points out to the constructive dismissal. That, he was forced to leave employment after being unpaid salary for months and failure to be assigned work by the applicant. That, those circumstances become intolerable to continue working. This in essence is what is referred to as constructive termination as reflected under rule 7 of the Code of Good practice, GN no. 42 2007 which provides that:- “Where an employer makes unemployment intolerable, which may result to the resignation of the employee, that resignation amount to forced resignation or constructive termination.” From the above provision, there are three requirements for constructive termination to be established. One is that the employee must have terminated the contract of employment, second the reason for termination of contract must be that continued employment has become intolerable 9 for the employee, and lastly, the intolerability should have been prompted by the conduct of employer. In the case of solid doors, Solid Doors (Pty) LTD v Commissioner Theron and others (2004) 25ILJ 2337 (LAC) cited in the case of Kobil Tanzania limited visit Fabrice Enzaovi, civil appeal no. 134 of 2017 at page 17, all these three requirements must be present for it to be said that constructive termination has been established. If one of them is absent constructive termination is not established. The principle has been emphasized in the case of Kobil Tanzania limited (supra) at page 20 citing with approval the case of Katavi Resort v. Munirah J. Rashid [2013] LCCD 161 where it was held that:- “The employer should have made the employment intolerable. Termination should have been prompted or caused by the conduct o f the employer. The employee must establish there was no voluntary intention by the employee to resign the employer must have caused the resignation. The Arbitrator or court must look at the employers conduct as a whole and determine whether its effects, judged reasonably and sensibly, is such that the employee cannot be expected to put up with” Looking at the revision application before me, I am prompted to look as to whether the above criteria was met in our case. This will be done by 10 answering the question whether the three factors existed in the circumstances of our case. Starting with issue as to whether the employee brought the contract to an end, the applicant argued that, the respondent was not terminated rather he absconded from work himself denying the applicant the right to take necessary legal actions against him upon such abscondment. Through the entire proceedings, there is no resignation letter from the respondent or indication of intention to bring the employment relationship to an end that was tendered in court to have been issued to the applicant before referring the dispute to the CMA. The applicant submitted that, he was not paid monthly salary for some time, neither was he assigned any work. Upon such acts, he found situation intolerable to continue working, he then decided to refer the dispute to CMA claiming constructive termination. The above situation in my view, is a failure of the first criteria or factor in establishing constructive termination. I hold that view because, the law requires the employee upon finding or perceiving the conditions intolerable to indicate his intention to end the relationship by resigning before referring the matter to CMA. But in our case, after the alleged failure to be paid salary, the applicant filed the matter at CMA without fulfilling the requirement of indicating his intention to bring employment 11 contract to an end. This was a jump of a necessary step/procedure in establishment of constructive termination. Therefore, the question as to whether the employee (respondent in this case) resigned, is answered in negative. The following question to be answered is whether there was intolerable working condition created by the employer making the employee incapable of putting up with. In the case of Kobil Tanzania Ltd (supra) the objectivity in considering intolerability of the situation, was emphasize at page 24 of the judgment where Hon. Mwambegele JR stated that:- “We now turn to answer the second question which seeks to answer whether the working relationship had become so unbearable objectively speaking that the employee could not fulfil his obligation to work. The story is told by the respondent in his testimony that the working conditions had become unbearable. We wish to underline here that the test is objective rather than subjective. The duty to prove the objectivity of the intolerability rests on the employee.” We note from the above authority that, the onus of proof of existence of intolerability rests on the employee who is supposed to take an objective approach to the test of the situation, rather than personal sensitivity. In our case, the submission by the respondent, employee, is that the applicant created intolerable working condition after she refused to pay 12 him salary and assign him any work for up to three months. The applicant, employer challenge this assertion by stating that, respondent was involved in a number of accidents involving working tools that was entrusted to him (motor vehicles) costing applicant a lot of money in repair. And even upon making repairs, the respondent refused to work. That is when they refrained in sending respondent to long safari and fear to hand him another vehicle for some time. In all that, they did not terminate him, rather the respondent absconded from work giving them the impression that left work on his own volition. That fact was in a way not disputed by the respondent who testified to have been in a kind of lay off for a long period as a result of those accidents causing him to file the matter to the CMA claiming constructive termination. The question is now whether failure to pay salary and assignment of work, in the circumstances of this case amounted to intolerable work conditions. The arbitrator had relied on the provision of rule 6(4) of the GN 42/2007 describing refusal to pay wages as one of the conducts amounting to material breach of contract of employment that may justify the summary termination of the contract by employee. The rule provides that:- 13 “Conducts which shall amount to material breach of contract of employment and that may justify the summary termination of the contract by the employee are:- (a) The refusal to pay wages. (b) Verbal Vs Physical abuse or sexual harassment (c) Unfair discrimination or (d) Any other breach.” From the circumstances of our case, the applicant alleged the employer’s failure to pay his salaries and not assigning him tasks as situation he was not able to put up with. This, in my considered view, under the above provisions could objectively amount to intolerable situation when well applied to terminate the contract by the employee as found by the arbitrator. However, in our situation the respondent indulged on abscondment, which is an implicating conduct in his part, prior to rushing to the CMA to file a dispute, instead of showing his indication to end employment due to those circumstances right away. Based on the circumstances of this case, although the situation that existed of not being paid salary for more than a month and failure to be assigned tasks could objectively be lead to constructive termination of employment contract, but for respondent’s failure to issue a resignation letter to signify his intention to end their relationship before filing dispute 14 to the CMA, the claim of constructive termination still cannot stand. The reasons for that is, filing the dispute prematurely at CMA. Since the dispute was on unfair termination (constructive termination) it required there being indication of termination in the first place. For that matter, CMA wrongly determined the matter that was prematurely filed before it. It ought to have struck out the dispute that was preferred before them prematurely. For the reasons, the CMA award is accordingly revised. It is quashed and set aside. Being a labour matter, I make no order as to costs. M. P. OPIYO, JUDGE 7/3/2025 15