REVISION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT ARUSHA REVISION NO 61 OF 2023 (Originating from Commission for Mediation and Arbitration Labour Dispute No CMA/ARS/128/11/2023) CHRISTINA M. MROSSO..................................... APPLICANT VERSUS STATIONERY ARTS LTD................................ RESPONDENT JUDGMENT 29th April & 03rd June, 2024 KIWONDE, J In this application, the applicant, one Christina M. Mrosso, being aggrieved by the decision of the Commission for Mediation and Arbitration (CMA) has preferred this revision by way of chamber summons supported by her affidavit praying for the reliefs below: (i) That this court be pleased to revise the proceedings and the ruling made by the Mediator/Arbitrator in Labour Dispute No. CMA/ARS/ARS/128/22/11/2023. (ii) That this court be pleased to quash the said decision for being meritless. 1 j Page (iii) Any other order as this court deems fit and just to grant. The background of the dispute is that, the applicant was employed by the respondent as a shop assistant on 01/03/2014 and was terminated from her employment on 13/12/2022. She lodged a complaint at the CMA for unfair termination of her employment on the ground that there was no valid reason for termination and claimed for payment of 12 months salary as compensation for unfair termination, payment of other terminal benefits such as notice, severance pay, annual leave, worked days and certificate of service. The matter was heard ex-parte. However, the CMA found that the applicant failed to prove her claims against the respondent hence dismissed the complaint. In her affidavit, the applicant raised two main grounds for revision. One, that the honourable Arbitrator erred in law and fact for failure to consider that the applicant had with her, the letter of termination, certificate of service and copies of salary slips from the respondent which prove the employer-employee relationship, thus arriving at an erroneous decision and two, that the honourable Arbitrator erred in law and fact by not considering the applicant's evidence that she had both reasonable and clear grounds that she was unlawfully terminated from employment by the respondent. 2 | Page On 18th March 2024 it was agreed by the counsel for the respondent and the applicant and ordered by the court that the application be argued by way of filing written submissions and each part filed them. In the submissions in-chief, the applicant argued that she and the respondent had an employer-employee relationship and during hearing at the CMA she tendered her termination letter that was prepared and signed by the respondent, the certificate of service and salary slip which documents prove her employment relationship with the respondent. But the Arbitrator did not analyse such evidence. She referred this court to the case of Leonard Mwanashoka versus Republic, Criminal Appeal No. 226 of 2014. Apart from that, the applicant submitted that exhibit Pl proved that there exited a contract of employment between the applicant and the respondent as the document speaks for itself. In support of her argument, she cited the case of Kaumu Said versus Republic, Criminal Appeal No. 391 of 2019, that this court re-evaluate the evidence on record and arrive at its own finding and grant the application. In reply, the counsel for the respondent raised a legal concern under paragraph 7 of the counter affidavit that by referring to exhibit Pl, the applicant was time barred to refer her complaint at the CMA. Under rule 3 | Pa ge 10 of the Labour Institution (Mediation and Arbitration) Rules, 2007 G.l\ No. 64 of 2007 the time limit to institute the matter before the CMA is within 30 days from the date of the termination. He cited the case ol Paul Reginald Bramely Hii versus Secretary Group Cash In Transit (T) Ltd, Revision No 21 of 2013, that since the applicant was out of time to file the complaint at the CMA without seeking for condonation, the application ought to be dismissed for being time barred. Besides that, the counsel for the respondent challenged the failure by the Arbitrator to append signatures after the witness took oath and after the end of the witness testimony. He based his position on the case of Godfrey Raymond Kashambula versus Total Tanzania Limited, Civil Appeal No. 320 of 2019. He argued that this rendered the proceedings and decision of the CMA a nullity. There was no dispute that there existed employer and employee relationship. But the counsel for the respondent insisted that the CMA award was null for failure of the CMA record to show the name of the officer who received the summons on behalf of the respondent leading to the ex parte award depriving the respondent his right to be heard hence the same be set aside. 4 | Page In her brief rejoinder submissions, the applicant reiterated her submissions in-chief and replied on the issue of time limitation that she received the termination letter on 13/12/2022 and not 30/09/2022 hence the complaint is not time barred. She said the respondent after being summoned, ever appeared to the CMA and raised the concerns that are again raised at this stage. From the pleadings, the records of the CMA and the written submissions the issue for determination is whether the application has merits or otherwise. Before going to the merit of the application, I find it imperative to determine the concerns raised by the counsel for the respondent that the complaint before the CMA was time barred. This is a matter of law which even if it is raised at this stage, it has to be resolved first as it goes to the root of the matter by as it concerns with the jurisdiction of the CMA to adjudicate the matter before it. Also, in law, the issue touching jurisdiction of the legal body can be raised at any stage even in the appellate stage. In the matter under consideration, the respondent said the complaint filed at the CMA was time barred. Whereas, the applicant averred that the complaint was lodged timely as the termination letter was received by her on 13/12/2022 and not on 30/09/2022 as claimed by the respondent. In 5 | Page the Exhibit Pl, the letter of termination, it is dated on 30/09/2022 but as to when the same was issued to the applicant remains to be a myth. There is no any other evidence showing that the same was served on the applicant early but she delayed to file her complaint. Therefore, this makes me believe that the letter was given to her on 13/12/2022 and on 14/12/2022 the complaint was filed. So, from the date of the letter of termination, 30/9/2022 to 13/12/2022, the applicant knew nothing about her termination. This means that she believed she was still employee until when she was given the said letter. Thus, the complaint could not be filed before the applicant became aware of her termination. For the above reason, I find the concern by the respondent lacking merits. As to the failure of the Arbitrator to append signature after the witness took oath and after the end of the testimony, it is apparent that the CMA proceedings dated 07/06/2023, the arbitrator did not append his signature after the witness took oath. But he appended it after hearing the whole evidence to show that what ever transpired on that material date was by his power and authority including administering the oath of the said witness. To impeach the proceedings where the Arbitrator did not sign them, it must be shown that the same occasioned into miscarriage of justice and 6 j Pa ge the respondent has been prejudiced. In North Mara Gold Mine Limited versus Khalid Abdallah Salum, Civil Appeal No.463 of 2020 [2022] TZCA 1 Tanzlii, it was stated that failure of the Arbitrator to append signature at the end of each witness's testimony did not occasion miscarriage of justice to the parties. In the matter at hand, much as the witness took oath before testifying and at the end of the proceeding, the arbitrator signed. Also, nothing suggests that the respondent was prejudiced by such omission. Thus, this sort of objection fails too. Reverting to the merits of the application, it is not disputed that the applicant was an employee of the respondent and her employment was terminated. In law, the burden of proof in labour matters lies upon the employer to establish that the employee was fairly terminated and the procedures for termination were followed. But where the case is being heard in the absence of an employer the burden shift to the employee to prove that the termination was unfair. The law has placed a burden of proof on the person who alleges existence of any facts. Under section 60(2)(a)(b) of the Labour Institutions Act, Cap 300 [R. E 2019] it is provided that in any civil proceedings concerning a contravention of a labour law, the person who alleges that a right or protection conferred by any labour law has been contravened shall prove the facts of the 7 | Page conduct said to constitute the contravention and the party who is alleged to have engaged in the conduct in question shall then prove that the conduct does not constitute a contravention. In this application, it is clear that the matter was heard ex-pa/teand the applicant adduced what she considered proof of her claims. The applicant in her evidence before the CMA contended that she was employed by the respondent as a shop keeper right from 01/03/2014 and was paid TZS 500,000/=. But she was terminated from her employment on 13/12/2023 by a letter (Exhibit Pl) on a claim of poor work performance. It is also the claim by the applicant that she was not paid any of her entitlements including terminal benefits. Therefore, the termination based on the reason of poor performance. Matters relating to termination of employment are covered by section 37(2) (a) (b) and (c) of the Employment and Labour Relations Act, 2004 which requires the employer to prove that termination is based on a valid reason and is in accordance with a fair procedure. In determining the validity and fairness of the reasons for termination of employment on reason of poor work performance, Rule 17 of the Employment and Labour Relations Act (Code of Good Practise) GN No. 42 of 2007 stipulates matters for consideration include; whether or not the employee failed to meet a performance standard, whether the 8 | Pa ge employee was aware, or could reasonably be expected to have been aware, of the required performance standard, the reasons why the employee failed to meet the standard and whether the employee was afforded a fair opportunity to meet the performance standard. In her evidence before the CMA, the applicant stated that she worked with the respondent for over 8 years without being summoned to any meeting whatsoever in respect of her poor work performance. There is no evidence showing that there were performance standards set by the employer, the respondent and there is no proof that the applicant was aware or was made aware of the existence of the said standards before she was terminated. Under Rule 17(3) of the Employment and Labour Relations (Code of Good Practice) Rules G.N No. 42/2007, the proof of poor work performance is a question of fact to be determined on balance of probabilities. Pursuant to exhibit Pl, there were no standards set by the employer (respondent) which the same have not been met by the employee (applicant). It is thus, evident that there was no fair reason for termination of the applicants' employment. Concerning procedural fairness in terminating employment, the law under Rule 18(6) and (7) of the Employment and Labour Relations Act (Code of Good Practise) GN No. 42 of 2007 requires that prior to 9 | Page finalising a decision to terminate the employment of the employee for poor work performance, the employer shall call a meeting with the employee. In the said meeting, the employer shall outline the reasons for action to be taken and allow the employee or his representative to make representation before finalising the decision. So, it is the legal requirement that prior to the issuance of termination letter, that is exhibit Pl, the applicant was to be informed on the allegations and consequence thereof and be allowed to make representation before the final decision was issued. As the same was not done, in my view, the procedures for termination contravened the law. In the final analysis, it is my conclusion that there was no valid reason for termination and the procedure for termination was not followed by the respondent. For that matter, the Arbitrator was misdirected to hold that the applicant failed to prove her claims before the CMA. The termination of applicant's employment was based on invalid reason and procedural flaws. Having found that there was unfair termination of the applicant's employment, under section 44 of the Employment and Labour Relations Act, No. 6 of 2004, upon termination, the applicant is entitled to payment in leu of notice, salary arrears (if any) and annual leave. 10 | P a g e In her evidence before the CMA, the applicant stated that she was paic TZS 500,000/= as monthly salary, the respondent is liable to pay the applicant TZS. 500,000 as one-month salary in leu of notice, TZS.500,000/= as annual leave for the year 2023, severance pay by virtual of section 42(1) of the Employment and Labour Relations Act No. 6/2004 to the tune of TZS 1,000,000/= and 12 months salary to the tune of TZS 6,000,000 making a grand total of TZS 8,000,000/= Eventually, the application for revision has merits and it is granted. The CMA award is hereby varied, quashed and set aside. This being a labour dispute, I give no order as to cost. DATED and DELIVERED at ARUSHA this 3rd June 2024. F. H. KIWONDE JUDGE 03/06/2024 Court: Judgment is delivered in the court room in the presence of Mr. Mwanry Mahimbali, counsel for the respondent, applicant and Maryciana (RMA) this 3rd June 2024 and the right of appeal is explained. F. H. KIWONDE JUDGE 03/06/2024 111 P a g e