cotex industries limited vs lucas malunde 171 others 2009 tzhc 22 13 march 2009

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY

AT PAR ES SALAAM (CORAM: MLAY. ORIYO. SHANGWA. ILM CIVIL APPEAL NO. 114 OF 2005 COTEX INDUSTRIES LIM ITED................... APPELLANTS

VERSUS LUCAS MALUNDE & 171 OTHERS........ RESPONDENTS

JUDGMENT MLAY. J This is an appeal from the decision of the full bench of the Industrial Court of Tanzania exercising Its revisional jurisdiction under Section 28(1) of the Industrial Court of Tanzania Act, Cap 60 R.E. 2002, in Revision No. 32 of 2004. The Appellant is COTEX INDUSTRIES LIMITED and the Respondents are LUCAS MALUNDE AND 171 OTHERS who were the ex-employees of the Appellant. Being aggrieved by the decision of the Industrial Court of Tanzania, the Appellants have appealed to this Court on three grounds, which are as follows:- l a) That the court erred in law in awarding twelve months salary as statutory compensation under Section 40 A of the Employment Ordinance as amended by Act N o.l of 1975 in the matter of termination. (b) That the Court erred at law in holding that it had stepped into the shoes of the Minister. (c) That the Court erred in law and fact where it held that the Respondents termination was unlawful. The Appellant prays that on the above grounds, this appeal be allowed, the award and order of the Industrial Court dated 8th April, 2005, be reversed and the Respondents be ordered to pay the costs of this appeal and of the proceedings in the Industrial Court. While this appeal was pending in this Court, the Appellants made an application to this Court for stay of execution of the decree of the Industrial Court. However, before this application could be

heard and determined, the Industrial Court made an order staying the execution, upon the Appellant depositing the decretal amount. This order made it 2 unnecessary for this court to consider the application for stay of execution. In this appeal, the Appellant is represented by Law Associates Advocates while the Respondents are represented by M/S M.A. Ismail and Company Advocates who, with leave of this court, argued the appeal by way of written submissions. The Appellants advocates traced the history of the case from Inquiry No. 133 of 2002 which was determined by William C.E.R. Deputy Chairman, to the decision being appealed against, Revision No. 32 of 2004, determined by the panel of the Industrial Court under the Chairmanship of his Lordship Mwipopo, J. The brief facts are that the appellant was the employer of the respondents. The employer and the employees were engaged in a dispute over salary increases and when the employer failed to offer a salary increase, the employees allegedly went on strike and the employer believing the strike was improper, purported to dismiss the employees. The dismissal of the employees found its way to the Industrial Court as Inquiry No. 32 of 2004 before Hon. WILLIAM C.E.R., Deputy Chairman. The employees claimed their dismissal was unlawful and prayed for reinstatement and payment of all their benefits. The 3 Deputy Chairman found that the

termination was unlawful because the employer had not followed the laid down procedures, and ordered termination of service in lieu of dismissal. The Court of first instance also ordered payment of a month's salary in lieu of notice, transportation costs for the employees and their families including luggage and salary increase for the months of January and February, 1999. The employees being aggrieved by the decision of the Deputy Chairman, applied for revision to the panel of the Industrial Court, pursuant to section 28(1) of the Industrial Court of Tanzania Act, Cap 60., R.E.

2002. They put out two grounds, namely:- 1. That the Vice Chairman erred in law and in fact by not ordering reinstatement after finding that the dismissal was unlawful.

2. That the Vice Chairman erred in law and in fact by not ordering that the employees be paid statutory compensation. The application came up before the full bench of the Industrial Court in Revision No. 32 of 2004. 4 In its decision dated 8/4/2005, the full bench of the Industrial Court in effect, agreed with the decision of the Deputy Chairman not to order the reinstatement of the employees. The full bench stated at page 5 of the typed decision, as follows:- Tulianza na hoja ya kwanza ya waomba Marejeo kama ilivyotolewa na Msomi wakili Busua Nzowa kwamba Mahakama ilikosea Kisheria na Kimantiki kutoamuru walalamikaji warejeshwe kazini baa da ya Mahakama kubaini kuwa kufukuzwa kwao kazi hakukuwa halali, ni wazi kwa maoni yetu hili halingewezekana kwa vile mahusiano kati ya Mwajiri na Wafanyakazi aliowafukuza hayakuwa mazuri tokea mwanzo. Nia ya Mahakama haya ni kuamua mashauri kwa kuweka kipaumbeie zaidi mahusiano kati ya Mwajiri na Wafanyakazi wake Hi kuendeleza "Industrial Harmony". Kama Mahakama ingeamuru Wafanyakazi warejeshwe kazini Physically kama Busua Nzowa anavyodai "Moto" ungelipuka Kiwandani kwa sababu Mwajiri alikosa imani kabisa na wafanyakazi wake kiasi cha kuwaambia waliharibu mali yakiwepo magari kwa fujo walizozifanya (walizodaiwa) hata hivyo mwajiri halazimishwi kisheria kumpokea Mfanyakazi aliyesigana naye kupindukia na nyongo bado ipo dhidi ya Wafanyakazi

hao." 5 In essence, the full bench of the Industrial Court rejected the first ground in which the employer challenged the decision of the Deputy Chairman of not ordering their reinstatement, although for different reasons than those put forward by the Deputy Chairman. On the second ground, which is a payment of statutory compensation, the full bench of the Industrial Court stated at page 6 of the typed decision "Ni kweli hakuna sehemu Mahakama ya Kimwanzo imeamuru Mwajiri awalipe Wafanyakazi Statutory compensation in lieu of physical reinstatement. Tunakubaliana na Msomi Wakili wa waomba Marejeo kuwa Mwajiri awalipe fidia ya kisheria kwa vile aliwaachisha kazi kinyume na sheria na haki. Tunaamuru awalipe Mishahara ya miezi 12 kwani hakufuata taratibu katika kuwafukuza hivyo kwa vile haiwezekani kuwarudisha kazini ’’ Physically" kama ilivyoona Mahakama ya Kimwanzo awape hiyo mishahara ya miezi 12 (kumi na mbili) kama Statutory Compensation kwa mujibu wa Sheria Act Na. 1 ya Mwaka 1975." 6 substituted dismissal to termination" and the full court upheld this finding, " the issue is what is the proper damage payable upon termination o f employment." They contested the award by the full Court of 12 months salary and argued that there is "nowhere in the law where it is provided that an employer should pay 12 month's salary in lieu thereof upon termination." They submitted that "the

'revision Court exceeded its jurisdiction and the finding is abuse of jurisdiction." They lamented the rejection by the Industrial Court of their argument that "where an employer is required to pay 12 months salary is only where a Board or Minister for Labour orders reinstatement and the employer desires not to reinstate." They contended that, the relevant provisions are section 40A (5) of the Security of Employment Ordinance as amended by Act No. 1 of 1975 which provides:- ... Where a reinstatement or reengagement has been ordered under this section and the employer refuses or fails to comply with the order:- (i)(a) in the case of an order made by the Board against which no reference has been made to the Minister, within twenty eight days of the order being made; or 8 (b) In the case of an order made by the Minister on a further reference to him, within fourteen days of the order being made by the Minister; The employer shall be liable to pay the employee compensation of an amount equal to aggregate of (ii) a sum equal to twelve months wages at the rate of the wages to which the employee was entitled immediately before the termination of employment or as the case may be, his dismissal. The appellant's advocates submitted that the power to order reinstatement rests with the Board and the Minister as being statutory powers, "they cannot be delegated or copied unless the statute

expressly states so..." They further submitted that "the employer will only pay 12 month's (salary) compensation if an order for reinstatement exists and he does not wish to re­ engage or reinstate the employee." Referring to the reasoning of the Industrial Court in awarding 12 month's salary (which has been quoted in full 9 earlier on in this judgment), the Appellant's advocates submitted that:- "The above conclusion is wrong in every respect The Court has never stepped into the Minister's shoes and even if it has, the Minister has no power to order compensation but reinstatement. " They contended that the Industrial Court was confused, and quoted the following passages of the decision at pages 6 and 5. From page 6 they quoted the following "Ni kweii ha kuna sehemu Mahakama ya Kimwanzo imeamuru Mwajiri awalipe Wafanyakazi Statutory Compensation in lieu of physical reinstatement. Tunakubaliana na Msomi wakili wa waomba Marejeo kuwa Mwajiri awalipe fidia ya Kisheria kwa vile aliwaachisha kazi kinyume na sheria na haki Tunaamuru awalipe Misha ha ra ya miezi 12... (emphasis theirs)" They argued that from the above, the Industrial Court had ordered payment of twelve months salary being statutory compensation in lieu of what the court called ”physical reinstatement" 10 From page 5 they quoted the following passage "/V/ wazi kwa maoni yetu hili halingewezekana kwa vile mahusiano kati

ya Mwajiri na Wafanyakazi aliowafukuza hayakuwa mazuri tokea mwanzo ........... " (the passage has been quoted in full earlier on in this judgment). From the above passage quoted in full, the Appellant's advocates contended that "the court finally held that they should be terminated/' They reiterate their submission that "statutory compensation is available as damages where reinstatement or reengagement is ordered but the employer is not able to comply..." The Appellant's advocate did not make submissions on ground (c), which is "that the Court erred in law and fact where it held that the Respondent's termination was unlawful." We would have accordingly found that the appellants abandoned ground (c) and as the result, not consider it except for the rejoinder submissions. The Respondent's advocates decided to argue grounds 1 and 2 ((a) and (b)), together. They submitted that, "...the Industrial Court has full discretion to determine appropriate reliefs and or damages awardable to li litigants... The Court has full powers to issue remedies as it considers just and fit. It can thus reinstate or reengage employees, citation or non citation o f section 40 o f Security of Employment Actr Cap 387 in justification thereof notwithstanding. On the same footing, it can order payment in lieu of reinstatement or reengagement as it consider(s) fair, just and reasonable." They contended that,

"That Court has the Ministers powers and more. The citation or non citation o f the legal provision really does not matter..." They submitted that, "...the Industrial Court only obtained inspiration from section 40A (5) o f Cap 387, but it did not apply it hence the appeal is u n j u s t i f i e d They cited two cases as examples of cases in which the Court of Appeal drew inspirations from the provisions of the Law of Limitation Act, Cap 89 R.E.

2002. These are: HALAIS PROCHEMIC vs WELLA A.G. [1996] TLR 279 and NBC HOLDING CORPORATION AND ANOTHER VS

AGRICULTURAL AND INDUSTRIAL LUBRICANTS SUPPLIES LTD. AND OTHERS, Civil Application NO. 42 of 2002. They reiterated that the full bench of the Industrial Court did not apply but was inspired by, the provisions of section 40 A of Cap 387. They therefore submitted that the appellants argument is "clearly misguided and so is the appeal itself." 12 The Respondents advocates went on to argue at length to show that the inclusion of ground NO. 3 (ground (c)) of the appeal was improper. They also cited two cases, CHISMA vs REPUBLIC (1997 TLR 140 at page 142 and IHENYA AGENCIES CO. LTD. VS BARCLAYS BANK OF KENYA LTD. AND OTHERS Civil Appeal No. 3 of 1995 from the Court of Appeal of Kenya, to the effect that a matter which did not arise in the proceedings being appealed against, should not be considered. Before proceeding further, we wish to point out here that in our perusal of the 1997 Tanzania Law Reports we have failed to find the case of CHISMA vs REPUBLIC as cited by the respondents. We therefore reject it as unfounded. However, while we subscribe to the decision in the second cited case on this point, in view of the fact that the appellant's advocates did not argue ground (c) or touch on it, we would have deemed it abandoned and for this reason, to say nothing further about that ground. However, later on, the Appellant's advocate remembered the ground in his reply to

the Respondents submissions on that ground. If anything needs to be said on this ground on account of what has been submitted in the rejoinder - submissions, is that at the bottom of page 6 of the typed decision by William D.C.; it is categorically stated as follows:- 13 "Pamoja na kwamba nakubaliana na hoja za mwajiri kwamba nyongeza ya mishahara si jambo la Mkataba lakini ushahidi uliotolewa umeonyesha kwamba mwajiri pamoja na kuwafukuza kazi hakufuata vile vile taratibu na Mahakama imeona kwamba kufukuzwa kwao kazi hakukuwa halali." The "unlawfulness" of this dismissal therefore was not a matter determined by the full bench in the exercise of the revisional powers of that court. It was a decision made by William D.C. and the appellant's advocate conceded in the rejoinder - submissions that, .../'it was not an issue in the Revision proceedings before the full bench." Since the issue of "unlawful termination" was not an issue before the full bench as conceded by the Appellants, it cannot therefore be raised as a ground of appeal in this appeal in which the decision of the full bench of the Industrial Court is being "called to question." Without wasting much time on ground (c), we would therefore agree with the Respondent's advocates that this ground has no merit. The Respondent's advocates submitted at length and cited a number of decided cases to show that damages have been awarded for unlawful dismissal. The cited cases also 14 include decisions on how such damages have been assessed by the Courts in this Country. The cases are:- 1. I. S. MSANGI VS JUMUIYA YA WAFANYAKAZI AND WORKERS DEVELOPMENT CORPORATION [1992] TLR 259.

2. TANZANIA STANDARD (NEWSPAPERS) LTD. VS. LINGA'NDE SELEMANI LINGA'NDE, Civil Appeal No. 99 of 2002 (in which the principle of restitutio integrum was stated to be the principle applicable to assessing damages).

3. JAVED K. LISSO VS THE NATIONAL MILLING C0RP09RATI0N, Civil Case No. 204 of 1994 in which Mackanja, J. ordered Tsh. 25,000,000/- as general damages for wrongful dismissal.

4. SOUTHERN HIGHLANDS TOBACCO vs THE QUEEN 1960 E.A 490.

5. AGRICULTURE AND INDUSTRIAL SUPPLIES CO. LTD. VS DAUDI SALAYYA, Civil Appeal No. 4 of 1992 (per Mackanja, J.) 6. GABAAKA vs GABORONE TOWN COUNCIL [1972] ALR 425 (Botswana) 7. THE PERMANENT SECRETARY (ESTABLISHMENT) AND ANOTHER VS HILAL RASHID AND OTHERS Civil Appeal No. 64 c/f No. 66 of 2002 (in which the Court of Appeal took into account actual anguish, shock and consternation associated with wrongful termination in assessing damages). 15 On the basis of the above decisions, the Respondent's advocates submitted that "£Aie compensation and or damages equal to 12 months salaries is illegal; is without legal basis." As we have stated earlier, the Appellants advocates filed a rejoinder to the Respondents submissions. They started with the submissions on ground (c) and proceeded on what we have found to be a wrong premise, that " there was never an issue of wrongful termination in the decision o f Hon. Deputy Chairperson William.." We have already made our decision on this ground. On the Respondents submission that the Industrial Court drew inspiration from section 40A (5) of the Security of Employment Act, as amended by Act 1 of 1975 or that it applied the principle of restitutio integrum, the Appellants advocates contended that the Respondents are trying to mislead the court. They restated that under section 40A (5) there should be an order of reinstatement or reengagement of

the employee and the employer must have refused to abide thereto. They argued that there was no justification for drawing an inspiration from section 40A (5) of the Security of Employment Act and submitted that the twelve months salary is not 16 justifiable. On restitutio intergrum the Appellant argued that there should be proof of damages and it must be pleaded as in Lingande's case, cited by the Respondents. They contended that in this case nothing has been pleaded and there was no damage to the status of the Respondents or investigation carried out on their loss. On the finding of the Industrial Court "that it has stepped into the shoes of the Minister," the appellant argued that there is no authority cited for this proposition. They contended that " where powers are countered (sic) by statute, the generai rule is that they may not be delegated unless that delegation is authorized by law". They cited the English case of BARNARD VS NATIONAL LABOUR BOARD (1953) 2QB 18 in which it was held that disciplinary powers conferred by statute to the London Dock Board delegated to the Port Manager was utra vires. The Appellant's advocates submitted that the powers under section 40A of the Security of Employment Act are only conferred to the Board and the Minister and there cannot be a question of drawing an inspiration where the statute has expressly provided. They further submitted

that "Parliament would have expressly written ” the Court" had it been its intention. 17 Although the Appellant's advocate decided to argue the grounds generally, and the Respondents grounds (a) and (b) together, we propose to dispose of each ground separately, if only to avoid the pitfall in which the Appellants advocates found themselves in, by forgetting to argue ground (c) until they were reminded by the Respondents submissions on it. The first ground which has been listed in the Memoranduum of Appeal as ground "(a)", is ” that the court erred at law in awarding twelve months salary as statutory compensation under section 40A of the Employment Ordinance as amended by Act No. 1 o f 1975" It will be noted that reference to the Employment Ordinance is an error for which the Appellant's advocates corrected themselves in the submissions, by refering to the Security of Employment Act. It has been contended by the Appellant that the full bench of the Industrial Court awarded the Respondents twelve months salary pursuant to section 40A (5) of the Act which is only applicable where the Labour Concilliation Board or the Minister for Labour has ordered the reinstatement of employees and the employer has 18 failed to reinstate the employees. On the other hand, the Respondents have argued that the Industrial Court did not apply the provisions of section 40A(5) but only obtained

inspirations from its provisions. The Respondents have further argued that since the respondents were unlawfully terminated they were entitled to compensation by damages and in effect, the Industrial Court was right to grant them 12 months salary as damages. They cited the cases we have referred to earlier. To this argument, the Appellants have retorted that section 40A(5) does not confer powers on the court to award such damages. We observed that the Deputy Chairman found that the dismissal did not follow the laid down procedures and therefore unlawful. The Deputy Chairman however declined to order reinstatement and ordered in lieu of dismissal, termination of employment, and payment of one monthly salary in lieu of notice. In the Revisional proceedings, the full bench agreed with the decision of the Deputy Chairman of not ordering the reinstatement of the Respondents. They found that to do so, would bring turmoil at the place of employment. To borrow their own words: "moto ungelipuka". The Industrial Court also found that the employer had completely lost 19 trust with the Respondents and that an employer is not compelled to receive employees with whom the employer was in a serious disagreement. Again to borrow from the court's decision: "Kama Mahakama ingeamuru Wafanyakazi warejeshwe kazini physically ... "MOTO" ungelipuka Kiwandani kwa sababu mwajiri alikosa imani kabisa na

wafanyakazi wake ... hata hivyo mwajiri halazimishwi kisheria kupokea mfanayakazi aliyesigana naye kupindukia na nyongo bado ipo..." The full bench of the Industrial Court referred to the decision of William D.C. of ordering termination in lieu of dismissal with one month's salary and stated: "Ni kweli hakuna sehemu Mahakama ya Kimwanzo imeamuru Mwajiri awalipe Wafanyakazi Statutory Compensation in lieu of physical re-instatement.Tunakubaliana na Msomi wakili wa waomba Marejeo kuwa Mwajiri awalipe fidia ya Kisheria kwa vile aliwaachisha kazi kinyume cha sheria na haki." 20 We observe that the full bench did not interfere with the decision of the Deputy Chairman of ordering termination in lieu of dismissal together with one month's salary in lieu of notice. The full bench neither stated that the decision of the Deputy Chairman was wrong nor set it aside. As it were, we find that the full bench of the Industrial Court added the payment of statutory compensation of 12 month's salary, on top of the award of the Deputy Chairman of termination and payment of one month's salary in lieu of notice. We think that, since the full bench of the Industrial Court did not find the decision of William D.C. to be an error on the merits of the decision causing injustice and revised it, it was wrong to award compensation for unlawful dismissal which wrongful dismissal had been substituted with

termination with payment of a month's salary in lieu of notice. In other words, for as long as the decision of William D.C. remained undisturbed by the full bench of the Industrial Court, it was wrong to award the Respondents statutory compensation for unlawful dismissal which had since been substituted by William D.C. by termination. This would be tantamount to ordering payment of statutory compensation or pay, damages, in a situation where there has been a proper termination of service with payment of a monthly salary in lieu of notice. We therefore agree with the Appellants that in the circumstances of this case, the full bench of the 21 Industrial Court was wrong to order payment of compensation in the form of statutory compensation of 12 month's salary. Assuming, but without agreeing, that compensation was payable in the circumstances set out above, the question is whether such compensation is statutory compensation of 12 month's salary, in terms of the Security of Employment Act. The Respondents' advocates have forcifully argued that the full bench of the Industrial Court merely obtained an inspiration from the provisions of the Act but did not apply it. With respect we do not subscribe to this argument. At page 6 of the decision the Court clearly stated:- "Ni kweli hakuna sehemu Mahakama ya Kimwanzo imeamuru Mwajiri awalipe Wafanyakazi Statutory Compensation in lieu

of physical re-instatment... Tunaamuru awalipe Mishahara ya miezi 12 kwani hakufuata taratibu katika kuwafukuza hivyo kwa vile haiwezekani kuwarudisha kazini "physically" kama ilivyoona Mahakama ya Kimwanzo awalipe hiyo mishahara ya miezi kumi na mbili kama 22 statutory compensation kwa mujibu wa Sheria Act Na. 1 ya Mwaka 1975." In the clear words used by the full bench quoted above, the Court ordered payment of statutory compensation in accordance with the provisions of Act No. 1 of 1975. Act No. 1 of 1975 amended the Security of Employment Act No. 45 of 1969 and it is the amendment which introduced the provisions of section 40A (5), which provides for payment of statutory compensation. The question which remains to be answered, is whether the Industrial Court has the power to order payment of statutory compensation in accordance with the provisions of this Security of Employment Act. [Now Cap 387 R.E. 2002]. First, there is need to clarify the confusion existing in the use of the term, "statutory compensation". The proper reference to "statutory compensation" is the compensation defined under section 35 of the Act [Now S. 36 of Cap 387 R.E. 2002] which states: The statutory compensation shall be­ ta) such sum of money as shall be equal to the severance allowance due and payable to the employee on termination of his employment; or 23 (b) the sum of five hundred shillings, whichever is the greater: The confusion arises with reference to compensation which is payable under the circumstances of section 40A of the Act, which is now section 40A(5) of Cap 387 R.E.

2002. That section provides: 40A (5) where reinstatement on re-engagement has been orderd under this section and the employer refuses or fails to comply with the order - a) in the case of an order made by the Board against which no reference has been made to the Minister, within twenty eight days of the order being made; or b) in the case of an order made by the Minister on a further reference to him, within fourteen days of the order being made by the Minister, the employer shall be liable to pay the employee compensation of the amount equal to the aggregate of - 24 (i) the statutory compensation computed in accordance with section 36, and (ii) a sum equal to twelve month's wages at the rate of the wages to which the employee was entitled immediately before the termination of her employment or, as the case may be, his dismissal, and such compensation shall be recoverable in the same manner as statutory compensation, the payment of which has been ordered under section 40. Properly used, the term "statutory compensation" only refers to the statutory compensation as defined by section 36 [35]. The compensation payable pursuant to section 40A (5) is just compensation, which includes statutory compensation and payment of "a sum equal to twelve month's w ages..." In the present case what the full bench of the Industrial Court ordered, was payment of "twelve month's wages" as

"statutory compensation" 25 according to the provisions of Act No. 1 of 1975. To us, this means the 12 month's wages payable in accordance with the provisions of section 40A(5). We say so because this is the only provision of the Security of Employment Act under which such compensation is payable. In terms of the clear provisions of section 40A and in particular, subsection (5) thereof, compensation of " twelve month's wages" under the Act, is only payable where, the Board or the Minister for Labour has ordered the reinstatement of the employee and "the employer refuses or fails to comply with the order." In the present case, the Respondents had not challenged their dismissal through the mechanism laid down by the Security of Employment Act. Indeed, they had pursued the dismissal as an Industrial dispute, pursuant to the Industrial Court of Tanzania Act, [Cap 60 R.E. 2002]. The issue is whether the Industrial Court can grant the remedies, prescribed by the Security of Employment Act. In order to conclusively answer this question, it is necessary also to consider ground (b) of the appeal, which is; " that the Court erred at law in holding that it has stepped into the shoes of the Minister" 26 When the matter was raised by the present Appellants in the Industrial Court, the Court stated:- "Kuhusu hiyo hoja ya Wakili Msomi Bwana Kitururu kwamba sheria Na. 1 ya 1975 inayosema

mfanyakazi ataiipwa mishahara ya miezi kumi na mbili na hii hutolewa tu pale Baraza au Mheshimiwa Waziri ameamuru Wafanyakazi warejeshwe. Mawazo hayo ya Msomi Kitururu si sahihi kwani Mahakama ya Kazi sasa imevaa viatu vya Mheshimiwa Waziri "has stepped into the Minister's shoes kwani Waziri sasa hatoi Tuzo kama hapo zamani bali sasa ni Mahakama pekee. (emphasis ours). The respondents advocates have argued that the Industrial Court has "powers of the Minister and more." It may well be that in a fit case and in the proper exercise of its powers under the Industrial Court of Tanzania Act Cap 60 R.E 2002, the Industrial Court can in its award order compensation amounts even greater than "twelve month's wages" which is payable under section 40A (5) of the Security of Employment Act. However, there is no provision in the Security of Employment Act or of the Industrial Court of Tanzania to order payment of the compensation payable under the Security of Employment Act. On the Contrary, 27 section 44(1) of the Security of Employment Act [S. 42] provides as follows:- "No suit or other civil proceeding other than proceedings to enforce a decision of the Minister or the Board on a reference under this part, shall be entertained in any civil court with regard to the liability of an employer to pay, or the entitlement of an employee to, any statutory compensation." It is therefore our

considered opinion that the Industrial Court has no powers to order payment of statutory compensation or the payment of twelve month's wages in terms of the provisions of the Security of Employment Act, Cap 387. It was therefore a misdirection on the part of the full bench of the Industrial Court to hold that it had "stepped into the shoes o f the Minister." The shoes of the Minister under the Security of Employment Act, are too big for the Industrial Court. For the reasons given above, we allow grounds (a) and (b) of the appeal and for the reasons we have also given above, we dismiss the 3rd ground which is ground (c). Accordingly, we set aside the decision and award of the full bench of the Industrial Court in Revision No. 32 dated 8/4/2005, in so far as it relates to payment of twelve 28 month's wages to the Respondents and restore the award of the Industrial Court as contained in the decision of Hon. C.E.R William D.C. dated 12/8/2004. In the circumstances, we make no order for costs.

JUDGE 13/3/2009

JUDGE 13/3/2009 A. SHANGWA

JUDGE 13/3/2009 5,114 words. 29