REV NO 21913 OF 2024 CHRISTOPHER SAMWEL MAGEMBE VRS MAR KIM UNIPLASTIC CO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM REVISION APPLICATION NO. 21913 OF 2024 CASE REFERENCE NO. 202409041000021913

BETWEEN CHRISTOPHER SAMWEL MAGEMBE.......................................APPLICANT

VERSUS MAR - KIM UNIPLAST CO. L T D ......................................... RESPONDENT

JUDGEMENT Date of last Order: 30/ 09/2024 Date of Judgement: 11/ 10/2024 MLYAMBINA, J. When composing this decision, I was posed with a question as to; which language should I use between Swahili or English?The question is derived from the pleadings and submission available before the Court. The revision was initiated by the notice of application and the accompanied documents which are in Swahili language. The response of the application through counter affidavit was also made in Swahili language. On the other hand, the submissions were all made in English language. Under the circumstances, which language should be applied? As stated in the case of Ibrahim Pius Kagansha & Another v. Bera Karumba & Another, High Court, District Registry of Kigoma, Land Appeal No. 08 of 2022, the introduction of Kiswahili language in i our Court's was done through the Written Laws (Miscellaneous Amendments) Act No. 01 of 2021. The Act came into effect on 09/07/2021, as reflected in GN. 4961/2021 published on 30/06/2021. Part II of the Act amended the Interpretation of Laws Act [Cap 1 RE 2019] Section 4 amended Section 84 by deleting subsection (1) and substituting it with a new subsection (1) while Section 5 added a new Section 84A. Section 84(A) read: 84(A) (1) Notwithstanding any other written law, the language of Courts, tribunals and other bodies charged with duties of dispensing justice

shall be Kiswahili. (2) Without prejudice to subsection (1), Courts, tribunals and other bodies charged with a duty of dispensing justice may, where the interests of justice so require, use English language in the proceedings and decisions. (3) Where English language is used in the proceedings and decisions, such proceedings and decisions shall be translated and authenticated in Kiswahili language. (4) Where proceedings or a decision is translated in Kiswahili language and there occurs a conflict or doubt as to the meaning of any word or expression, the language which the proceeding or decision was recorded shall take precedence. (5) The Chief Justice may, in consultation with the Minister responsible for legal affairs, make rules for the better carrying out of the provisions of sub-section (2), (3) and (4). As per Section 84 A (1) the language of the Court is Kiswahili. However, under some special circumstances the English language may be used. Therefore, acting under Section 84 A (5) o f the interpretation of Laws Act (supra), the Chief Justice enacted the interpretation of laws (use of English Language in Courts) (Circumstances and conditions) Rules, GN 66/2022 published on 4/2/2022. Rule 2 defined the word "Court" to mean the Court of Appeal, High Court, subordinate Courts, tribunals and other bodies charged with the duties of dispensing justice. Rule 3 read: 3. Subject to the provisions of subsection 2 of section 84 A of the Act; Pleadings proceedings or decisions may be in English language where it relates to matters stipulated in the schedule to these rules The schedule read:

CIRCUMSTANCES AND CONDITIONS FOR THE USE OF

ENGLISH LANGUAGE IN COURTS a) either of the parties or their representatives to the proceedings are not Swahili speakers/ b) the matter is about international investments dispute/ c) the matter is about foreign trade or business d) the matter involves finance and monetary affairs e) the matter is about tax and taxation. f) the matter relates to international Reginal or sub Regional affairs/ g) the law governing the matter subject of litigation/ and the practice and procedure there to are not available in Kiswahili language; h) matter of science and technology are involved/ or i) for any other reason the interest of justice demands so English language may only be used in the above circumstances. Fortunately, in labour matters the position is settled under Rule 4 (1) of the Labour Court Rules/ GN. No. 106 o f2007. The provision read: The language of the Court shall be bi-lingual in either English or Kiswahili or both, as the case may be. The above provision empowers the Labour Court to use any of the language convenient to the proceedings. Therefore, since there is specific law governing labour matters, the same supersedes GN. 4961/2021. The principle is expressed in Latin maxim genera/ia special/a genera/ibus de/ogant (special things derogate from general things) and speciaiia generalibus derogant (special things derogate from general things). Applying such principle, in labour

matters, the law allows the use of both English or Kiswahili language. Thus, either of the two languages may apply. In this case, since the submissions were made in English the Court prefers such language. Turning to the matter at hand, the tale behind this application is that; the Applicant was employed on 3/5/2019 by the Respondent. The Applicant continued to work for the Respondent until 31/05/2022 when the Respondent decided to terminate the Contract. Aggrieved by the termination, the Applicant referred the matter to the Commission for Mediation and Arbitration (herein CMA) claiming for unfair termination both substantively and procedurally. After considering the evidence of the parties, the CMA found that the termination was fair both substantively and procedurally. Thus, the matter was dismissed. Dissatisfied by the CMA's decision, the Applicant filed the present application on the following grounds: i. That, the Honourable Arbitrator erred in iaw and fact in deciding that the Respondent did not substitute written fixed term contract with permanent orally made contract. ii. That, the Honourable Arbitrator erred in iaw and fact in deciding that the Applicant was guilty of insubordination disregarding the fact that the Applicant was claiming for his entitlements as per the law. The application proceeded by way of written submissions. Before the Court the Applicant was

represented by Ms. Isabella Alex, learned counsel. On the other hand, Ms. Asela Basil Tesha, Personal Representative appeared for the Respondent. In his submission, Counsel Alex stated that the Applicant was employed under the permanent contract. The Respondent decided to alter or change the nature of the contract from permanent contract to a fix term contract. Unfortunately, the Respondent failed to comply with the labour laws which provides for the benefit upon termination by the employer in terms of Section 40 o f the Employment and Labour relations Act) Cap 366 Revised edition 2019 (herein ELRA). It was next Counsel Alex's submission that; with evil intention, the Respondent held that he was merely changing the contract from oral contract to written contract. The very same fact which was mis contended by the CMA that the Respondent was merely changing the contract from oral to written one. However, knowingly that there were two different contract that were supposed to be ended by the employer, the permanent contract and the fixed term contract, the Applicant asked for the benefits from the permanent contract. It was further submitted by Counsel Alex that, as a matter of irregularity, the CMA itself failed to observe that the Respondent terminated the permanent contract and introduced the fixed term contract, the issue which was not observed by the CMA. Ms. Alex maintained

that the Applicant was working under a permanent contract with unspecified term. Section 14 o f ELRA (supra) provides for the types of contracts. That is (1) unspecified time contract (2) contract with specified period of time (3) contract for specific task. In support of her submission, she referred the Court to the case of C ity Square H otel v. Kassim C om pliance, Labour Revision No. 373 of 2020, High Court Labour Division at Dar es Salaam p3. She urged the Court to find that CMA failed to give a chance to discuss on the fundamental issue because of failure to distinguish between the two contracts. The Applicant was not paid his benefits as per Section 40 o f ELRA (supra). She further invited the Court to decide on; whether there was one contract or two types of contracts. The Arbitrator erred both in law and fact to hold that the Applicant committed gross disobedience while in real sense he refused to sign the new contract because the Respondent failed to pay the due benefits as per the provision of the law. He therefore urged the Court to grant the application. In response, Ms. Tesha agreed that the Applicant was their employee for dates mentioned by the Applicant's Counsel. However, he disagreed on the submission that the Applicant had permanent contract. She said, the contract was oral, there was no proof before CMA on the permanent contract. Since the contract was

oral, there was no permanent contract. What they did was to formalise the oral contract as it is directed by the law under Section 14 (2) o f the ELRA (supra). They did so under the law guidance. It was added that despite of the Respondent following all procedures, they invited TASIU and formed part of the changes that they wanted to do to their employees. It was formalising from oral contracts to written contracts to all employees. The other employees never complained. That they gave him notice twice. They also had meetings between employees, Management and Labour Association (TASIU) to make sure that there were no bias or any right being infringed between the employees and the employer. To bolster her submission, Ms. Tesha referred the Court to paragraph 1 (c) of the intended Applicant's contract. As regards to the misconduct of gross insubordination, Ms Tesha agreed to the fact that they terminated the Applicant on the reason of gross insubordination. She argued that for gross insubordination to apply, direct instruction and obligations must exist, in support of her submission, she cited Section 14 (2) o f ELRA (supra) and the case of Tanzania C igarrete Com pany Ltd v. Ruth M andala, Appeal No. 187 of 2021 Court of Appeal. She stated that in this case, the Applicant refused to obey the instruction provided by the law; and thus, he disobeyed the Respondent for want to follow

the law. In respect of terminal benefits for permanent contract, it was reiterated by Ms. Tesha that the Applicant had no permanent contract hence, there were no benefits to be paid. She added that; the Applicant has already been paid all the benefits and acknowledged receiving of that amount. She urged the Court to invoke the doctrine of estoppel under Section 122 o f the Evidence Act, Cap 6 Revised Edition o f 2016and the cases o fK ib w a n a Salehe v. R epublic, HCD 391 [1968] which states: Whenever the witness is proved to have made a statement on oath inconsistence with the statement previous made by him, the credibility of that witness is incompletely destroyed. In the upshot, Ms. Tesha notified the Court that the issue of two contracts was not raised before CMA. It is a new issue. She prayed to dismiss the application since the Applicant was fairly terminated both substantively and procedurally. Rejoining the application Ms. Asela reiterated that the Applicant had permanent contract as evidence by DW l's testimony before the CMA. That the witness stated that he knew the starting date of the contract but he was not told as to when the contract will end. That shows, it was a permanent contract. She further conceded that there is no provision of the law that restricts a contract under Section 14 (1) (a) and (b) (supra) to be in written form. The law is silent. Serve for

Section 14 (2) (supra). As a general law, a contract can be oral or written. She added that the Respondent paid terminal benefits, but they did not adhere to Section 40 of ELRA (supra). As to the issue of two contracts, she admitted that the same was raised before the CMA. After considering the rival submissions of the parties, CMA and Court records, I find the issue to be determined are; whether the Applicant was fairly terminated from employment and what reliefs are the parties entitled to. To start with the first issue, it is the laws requirement stipulated under Section 37 o f the ELRA (supra) that the employee's termination must be based on fair reason and procedures. The termination procedures vary depending on the reason for termination. In the application at hand, the Applicant was terminated for gross insubordination which falls within misconduct. As per Rule 12 (3)(f) of the Employment and Labour Relations (Code o f Good Practice) Rules, GN. No. 42 o f2007 (herein GN. No. 42/2007), the misconduct at hand is one of the serious misconducts if proved may amount to termination of an employee. The issue is; whether the misconduct at hand was proved? The misconduct at hand originates from the Applicant's refusal to sign written employment contract. It is the Applicant's strong argument that he refused to sign the permanent contract because the Respondent changed the terms

of the contract from permanent to fixed one. I have thoroughly examined the records, it is undisputed fact that the Applicant's employment contract commenced on 03/05/2019. The said contract was orally made. However, there is no evidence to prove that the contract in question was permanent as alleged by the Applicant. Counsel Alex's submission that DW1 testified that the contract was permanent is contrary to the records available. When cross examined before the CMA, DW1 stated that the contract was orally made and it was a fixed term of one year as reflected in the written proceedings before the CMA. Be as it may be, Section 15 (4) o f the ELRA (supra) allows parties to change the nature of the contract from one type to another so long as the changes are made after consultation and in writing. In effort to reduce the contract into writing, the Respondent consulted the Applicant through the trade union (TASIU). Exhibits M2, M4, M5 and M6 proves that consultation was properly done where the parties agreed that the new contract will recognize the employee's rights from when the contract commenced. Even in exhibit M l, the proposed employment contract specifically stated that the Applicant's employment commenced on 03/05/2019 the date which is recognized by the Applicant and stated in his CMA FI, opening statement and during his testimony. Clause 1 (c) of exhibit M l states as

follows: Mkataba huu unatambua makubaliano ya mdomo yaliyokuwa yakiendelea baina ya mwajiri na mwajiriwa yaliyo fanywa tarehe 03 mwezi 05 mwaka 2019. Makubaliano hayo yalikuwa ni ya kipindi cha mwaka mmoja mmoja lakini yamekuwa yakihuishwa moja kwa moja na kwamba mkataba huu hautahafdhiri haki na nafuu zozote zitokanazo na makubaliano hayo ya awali. The above quoted clause clearly recognized the previously orally made contract and the rights there to. Thus, there was nothing to be worried by the Applicant leading to the refusal to sign the new contract. When the Applicant refused to sign the written contract, the Respondent served him with a show cause letter (exhibit M8) demanding him to adduce reasons for his refusal. In his reply, exhibit M9, the Applicant asked for the increase of salary (ongezeko la ujira) but if the same was not complied with, he was ready to terminate the previously made oral contract. As stated above, there is no proof that the oral contract was permanent as alleged by the Applicant. Since the new contract recognized the parties previously made contract from its commencement, it is my view that the refusal was unreasonably made by the Applicant and the Respondent had no other choice than to terminate him from employment. The Applicant's allegation that he was supposed to be paid remedies provided under Section 40 (supra) lacks merit. The remedies

in question are payable to an employee who is terminated unfairly from employment which is not the position in the case at hand. Coming to the second issue, the Applicant prayed for one month salary in lieu of notice, twelve months salaries as compensation for unfair termination and severance pay. Notice pay was paid to the Applicant upon termination of the contract as reflected in the termination letter and petty cash voucher (M13 collectively). For the reasons stated herein above, the Applicant is also not entitled to twelve months salaries as compensation for unfair termination. Severance pays can also not be paid because the Applicant was terminated for misconduct. In the result, I dismiss the application for lack of merits. The CMA's decision is hereby upheld. It is so ordered. Y. J. MLYAMBINA

JUDGE 11/10/2024 Judgement pronounced and dated 11th October, 2024 at 14:22 hours in the absence of the Applicant and in the presence of Counsel Asela Basil Tesha for the Respondent. Right of Appeal explained.