david jibo vs precision air service plc 2021 tzhcld 237 30 june 2021

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM CONSOLIDATED REVISION NO. 921 OF 2019

BETWEEN PRECISION AIR SERVICE PLC............................................ APPLICANT

VERSUS DAVID JIBO................................................................... RESPONDENT AND CONSOLIDATED REVISION NO. 866 OF 2019

BETWEEN DAVID JIBO.................................................................... APPLICANT

VERSUS PRECISION AIR SERVICE PLC.......................................... RESPONDENT

JUDGMENT Date of Last Order: 25/06/2021 Date ofJudgment: 30/06/2021 k. Msafiri, J. This judgment is in respect of two applications for revision namely Revision Application No. 886 of 2019 made under section 91(l)(a) (b), 91(2)(a),(b) and section 94(1),(b)(i) of the Employment and Labour Relations Act No. 6 of 2004, Rules 24(l),(2)(a),(b),(c),(d),(e) and (f) & (3)(a),(b),(c) &(d) and 28(l)(c) and (e) of the Labour Court Rules, G.N No. 106 of 2007 in which David Jibo herein referred to as employee is applying against Precision Air Service Pic, who will in this judgment be referred to as i employer, and Revision Application No. 921 of 2019 made under Rule 24(l),24(2)(a),(b),(c),(d),(e)&(f), Rule 24(3),(a),(b),(c) &(d), Rule 24(ll)(b) and Rule 28(l)(c),(d) &(e) of the Labour Court Rules, 2007,G.N. No. 106 of 2007, section 91(1) (a),91(2)(a) &(c), and 94(l)(b)(i) of the Employment And Labour Relations Act, No. 6 of 2004, as amended by section 14(b) of the Written Laws (Miscellaneous Amendments) (No.3) Act, 2010, in which Precision Air Service Plc-employer is applying against David Jibo- employee. The applicants herein call upon this Court to examine and revise the proceedings and arbitration award made by the Commission for Mediation and Arbitration (herein the CMA) at Dar es Salaam, delivered by Hon. Wilbard G.M (Arbitrator) on 16th October 2019. Briefly, the background of this

dispute is that the employee David Jibo was employed by the employer on 8th March, 2016 for three years contract period starting on 8th March, 2016 ending on 7th March, 2019. However on 12th October, 2018, the employer offered the employee with new contract of employment for which was supposed to end on 11th October, 2021. That on 12th October 2018, the employer appointed the employee to a new position of warehouse supervisor with a raise in salary 2 of TZS 2,000,000/=. On 9th November, 2018, the employee was served with a letter to show cause on various charges. On the same date of 09th November 2018, the employee was summoned to a disciplinary hearing. On 15th November 2018, the disciplinary committee hearing was conducted on which the employee was called to defend the alleged charges. Thereafter the disciplinary measures was taken against the employee, on which he was issued with a letter of termination of employment dated 23rd November 2018. Aggrieved, the employee filed a labour dispute to the CMA sometimes on 14th December, 2018, and after failure of mediation, the matter was heard by arbitration. After the proceedings, the Hon. Arbitrator made a finding that the employee was unfairly terminated, and proceed to award that since the employee had a fixed term contract, the CMA finds that he is entitled to the remaining part of the contract. And as the said contract has

remaining 4 months to expiry, the employee is entitled with 4 months' salary as compensation which is a total of 8,000,000/= only. Following that verdict, both parties were aggrieved by the decision hence they filed these applications for revision that is Application for Revision No. 886 of 2019 and Application for Revision No. 3 921 of 2019. By the order of the Court, the two revision were consolidated into Labour Revisions No. 886 of 2019 & 921 of 2019. At the hearing, the employee was represented by Ms. Magreth Kisoka, Advocate, holding brief of Armando Swenya with instructions to proceed, while the employer was represented by Mr. Migire Migire, Advocate. In support of Revision No. 886 of 2019, counsel for employee prayed that, the award delivered by the Hon. Arbitrator on 16th October 2019, be partly revised and the decision pertaining compensation for unfair termination be set aside. She contended that, the employee had previously worked for the employer on a 3 year contract which was to end on 7th March, 2019. On October, 12, 2018, the contract was renewed to another 3 years contract which was to end 11th October 2018. The employee in the current contract was a supervisor on payment of monthly salary amounting to Tshs. 2 Million. On 9th November 2018, the applicant was charged, disciplinary hearing was conducted and on 23rd November, 2018, he was terminated. The counsel

for employee submitted further that, after disciplinary hearing of 15th November 2018, the employee wrote a letter to the employer, 4 asking to be served with the decision of Disciplinary Hearing Committee (herein as DHC). , however, the employer did not respond nor did he served the employee with the proceedings and decision of DHC. The counsel maintained that this was important in order to allow the employee to appeal to that DHC decision, and one have to appeal within 5 days of decision. The counsel argued that, the employee has no dispute on the findings of the CMA that there was unfair termination, their dispute is based on award of CMA of four months compensation to the employee. She maintained that, the Arbitrator erred when he disregard the employee's three years contract which started on 12th October 2018 and was supposed to end on 11th October 2021. That, regarding the records by the CMA, the contract for employment concerning the employee which was admitted at the CMA, shows that the employee deserved to get the remaining compensation of two years and ten months and not four months only as was awarded by the Arbitrator. Arguing against the application, the counsel for employer, Mr. Migire submitted that, the counsel for employee submission that the employee had 3 years contract of employment which started on 12th October 2018 to 5 11th October 2021 has no basis and

no proof and infact, this alleged contract is not part of the record as it is not found in the proceedings of the CMA or the exhibits admitted there to. He stated further that, what is in the proceedings of the CMA as exhibit P2 is a letter of employment that promoted the employee to a higher position but did not change the duration of his contract. The exhibit P2, has a clause specifically stating that the terms and conditions of the employee's employment will remain the same. The counsel for the employer contested the damages awarded to the employee in its entirety. He stated that the employees with permanent contracts had to bring a claim for unfair termination, while employees with fixed time contracts are to bring a claim of breach of contract. He referred this Court to the case of Jordan University College vs. Flavia Joseph, Revision No. 23 of 2019 (High Court) (Unreported) which had similar nature with the matter at hand. He contended that, the employee had a fixed term contract, hence he was legally obliged to sue for a breach of contract instead of unfair termination. He argued that, the employee filed before CMA, a dispute for unfair termination as per his CMA Form No.

1. However, surprisingly, the 6 Arbitrator awarded damages of breach of contract which was not brought up by the employee before the CMA. He lastly prayed for the Court to quash the proceedings and set aside the award. Arguing in support of the application for Revision No. 921 of 2019, counsel for the employer prayed to adopt the contents of the affidavit of Migire Migire to form part of his submission. However, he abandoned 7 grounds for revision under paragraphs 20(b)-20(h) and proceed to argue on one ground only highlighted under paragraph 20(a). He stated that the Hon. Arbitrator erred in law and fact for entertaining a dispute which was prematurely filed with the CMA while being aware that the employee has not exhausted local remedies. He cited guideline 20 of the Guidelines for Disciplinary Incapacity and Incompatibility Policy and Procedures, provided under the Employment and Labour Relations (Code of Good Practice Rules, G.N. 42 of 2007). That guideline 12 of the cited Rules provides for an avenue for the employee to appeal against the outcomes of the hearing of a senior level management. He explained further that guideline 15 provide to the employee wishing to challenge the outcome of the appeal, to utilize the dispute mechanism contained under the Employment and Labour Relations Act, 7 Cap 366. He avers that in the present matter, regarding to the cited provisions, at

the CMA, the employee should have challenged the outcome of the appeal before the Managing Director (MD) and not the outcome of the DHC, because the decision of DHC was subject to appeal to MD so, the disputed claim before CMA is considered filed prematurely. He added further that the CMA was not vested with jurisdiction to entertain matter which was prematurely referred before it. He conclude his submissions by praying for this Court to revise the award and quash the proceedings. In the reply to the submissions by the employer, counsel for the employee, prayed to adopt the counter-affidavit of the employee. She submitted that the claims by the employee before the CMA were not premature or before time. She reiterated what was stated in her submission in chief in Revision Application No. 886 of 2019 and added that, when you are terminated and served with a Notice, you have to file the complaint before the CMA. She stated further that, the employee had due diligence to follow the procedures of appeal after decision of DHC, but he was terminated. She prayed that the Revision No. 921 of 2019 be dismissed because it has no merit. 8 Having considered the applications and the submissions as well as the Court record, I gather from both applications and the submissions that what is being sought is the revision of proceedings and award of CMA delivered on 16th October 2019 by Hon.

Wilbard G. Arbitrator. In Revision No. 886 of 2019 the prayer s the revision of the arbitrator award specifically on the decision pertaining compensation for unfair termination. It is claimed by the employee that he deserved more than 4 months salaries because his contract has just been renewed. Meanwhile, in Revision 921 of 2019, what is prayed is for revision of the proceedings and award and the same be quashed and set aside in its entirety. Since the applications as above mentioned have been consolidated and are to be determined together, then I will discuss and resolve the raised grounds all together. Going through the said grounds, I raised several issues which are to be determined. The issues here are; i. Whether the employee contract was one of specific period, and if yes, whether there was reasonable expectation of renewal. 9 ii. Whether the arbitrator was right in finding that the employee was unfairly terminated and his decision of awarding for breach of contract. Hi. Whether the dispute before the CMA was premature. Regarding the first issue, in her submissions, the counsel for the employee informed the Court that the employee had 3 years contract with the employer. According to the affidavit's contents, the employee was employed from 8th March, 2016 and the three year contract was expiring on 7th March 2019. The counsel submitted that, after the expiry of the

first three year contract, it was renewed into another 3 year contract that is from 12th October 2018 to 11th October 2021. From the submissions and records, it is clear that the employee had a contract of a specific period of time. Under Rule 4(2) of the Code of Good Practice G.N. No. 42 of 2007, it is provided that; ' Where the contract is a fixed term contract, the contract shall terminate automatically when the agreed period expires, unless the contract provides otherwise'. io Looking at the employee's contract which was tendered as exhibit Pl at the CMA's proceedings, clause 2 of the same state the duration of the contract to be three (3) years, starting from 08th March 2016. However, the contract provides more that both parties, may by mutual agreement, renew the contract for a further period to be agreed upon, by either party giving one month's notice. And that in the absence of intention to renew, on the expiring date, the employer's obligation will cease. By this clause, it is clear that, although the contract was of a fixed term, there was expectation of renewal on mutual agreement by both parties. Gathering from the evidence on record, as stated herein above, the employee's contract was to expire on 7th March 2019. But on 1st October 2018, about six (6) months before the expiry of his contract, the employee was appointed to a new position with salary increment that

is from TZS 1,500,000/= to 2,000,000/=. The letter of appointment to a new position (as exhibit P2 at CMA), stated that; 'all other terms and conditions remain the same as stipulated in your contract of employment'. li This got me pondering on whether this may be regarded as being a reasonable expectation of renewal of contract. There are numerous cases by this Court which elaborates on what amount to reasonable expectation of renewal. In the case of National Oil (T) Limited vs. Jaffery Dotto Msensemi & 3 Others, Revision No. 558 of 2016, the provisions of G.N. 42 of 2007 was restated where by Rule 4(3) provides; ... a fixed term contract may be renewed by default if an employed continues to work after contract and circumstances warrant it' The Court in the referred case proceed to lay down that; 'reasonable expectation is only created where the contract of employment explicit elaborate the intention of the employer to renew a fixed term contract when it comes to an end'. In present case, I find that the contract of employment exhibit Pl was clear on the duration of the contract and circumstances when it can be 'Sc., renewed as I have already quoted therein above. Since there was no any mutual agreement for renewal, the fixed term remained unchanged and there was no renewal. 12 I have gathered from the submissions of the counsel for the employee and his affidavit he believes

that his three year contract was renewed. In paragraph 3 of his affidavit he state; ' That, I was employed by the respondent on 8th March, 2016 for three years contract period starting on March 2016 ending 7/7 March, 2019. However, on 12th October 2018, the respondent offered me with new contract of employment for which was supposed to end on 11th October, 2021'. I have carefully perused the Court records but failed to see the said renewal terms of contract. The available document is exhibit P2 which is the appointment of position of warehouse supervisor. Exhibit P2, states clear that, the employee was appointed to the stated position effective 01st October 2018. It states further that; 'all other terms and conditions remain the same as stipulated in the contract of employment'. Therefore, there was no renewal of contract but appointment to a new position and that did not amount to renewal nor did it change terms of contract as to a reasonable expectation of renewal. For that, I reached to a conclusion that the employee contract would have expired automatically as there was no as yet, any shown intention to renew the same. 13 On the issue of whether the arbitrator was right in his findings and award, I went through the disputed award of 16th October, 2019. The Hon. Arbitrator find that the termination of the employee was unfair, he added that since the complainant had fixed

term contract, he is entitled to the remaining part of the contract. As correctly submitted by the counsel for the employer, the employees with permanent contract had to bring a claim for unfair termination while employees with fixed term contract are to bring a claim of breach of contract. He referred this Court to the case of Jordan University College vs. Flavia Joseph, (supra). In the referred case, it was held that there is no unfair termination in a fixed term contract. In the present matter, I find that, had similar circumstance/position with the referred case of Jordan University College vs. Flavia Joseph (supra). The employee claimed for unfair termination, (as per CMA Fl) and after evidence, arbitrator awarded the employee salary for the remained part of the contract. These are not remedies for unfair termination rather are for breach of contract. 14 As correctly submitted by counsel for the employer, arbitrator made a U-turn. CMA cannot frame new cause of action in the cause of award. The similar position was analysed in the case of Jordan University College vs. Flavia, (supra), where it was held that; 'Commission cannot frame new cause of action in the cause of award. Principle that parties are bound by their own pleadings should be adhered to'. In the same case, the case of James Funke Ngwagilo vs. Attorney General (2004) TLR, 161 was referred where it was held

that; 'in order for an issue to be decided, it ought to be brought on record and appear from the conduct of the suit to have been left to the Court for decision'. Therefore, this issue is being answered that the arbitrator was not right to award on breach of contract while the issue before him was of unfair termination. Was there a breach of contract on part of employee? As per the letter of termination (exhibit P9) dated 23rd November 2018, stated that the Disciplinary Hearing Committee, (DHC), has find the employee guilty of gross misconduct with regards to loss of property, falsification of records and gross negligence. As per the terms of contract of employment (exhibit Pl), clause 19 provide for the conditions where the employer may terminate the employee's employment without notice. One of the condition 15 is if the employee is found guilty of any acts of gross default or misconduct. In the investigation report (exhibit PIO), it was revealed that, investigation failed to detect the culprit but according to the observation, the employee is more suspected as mentioned by majority of the team members. Furthermore, I observed one crucial point on observation of the investigation team that, there was conflict of interest between Idelfonce Augustine and David Jibbo on the say that Idelfonce brought Nelson Kyobya to take Jibbo's position, hence all missing were done purposely

to sabotage Jibbo's position. The investigation report proceed to recommend that disciplinary measures to be taken to David Jibbo as a supervisor following violation of procedures and for not taking appropriate time to protect company properties. In this stance, I am inclined to believe that, the charges against the employee were not proved but rather he was indicted on a mere suspicions. Furthermore, I am inclined to agree with the arbitrator that, the evidence on record shows that the employee was still on probation period in his new position and had not been issued with a job description of his 16 new responsibilities. (This is also as per investigation Report exhibit PIO). For this analysis, I find that, the evidence on record failed to show the breach of contract on part of employee as stipulated under clause 19, to warrant his termination from his work before the expiry of the contract. Therefore, I find that there was a breach of contract on the part of the employer, for terminating the employee's contract before the expiry of the same. And for that reason, basing on the fact that the disputed contract was a fixed one, then the employee is entitled to the remaining time (months) before the expiry. On the issue of whether the dispute before the CMA was prematurely filed, the counsel for employer submitted that, the employee failed to exhaust the full remedies available to

him by staff regulations and per the Guidelines for Disciplinary Incapacity and Incompatibility Policy and Procedures provided under the Employment and Labour Relations (Code of Good Practice Rule), G.N. 42 of 2007. That the employer failed to file an appeal from the decision of DHC to the Managing Director. The employee was supposed to file the appeal within 5 days, but instead he filed the dispute to the CMA. 17 The counsel for employee, stated that after the DHC hearing, on 15th November 2018, the employee wrote a letter to the employer on 16th November 2018, asking to be served with the decision of DHC in order to file an appeal within 5 days, but the employer did not respond. However, reading the contents of exhibit Pl it stated clearly that, since the time of appeal has expired, the decision of Disciplinary Committee in regard to termination of the employment, stands. In the circumstance, the employee was right to file his dispute before the CMA challenging the termination, hence, I find that this matter was not prematurely filed before the CMA but was filed by the employee after being served with a letter of termination. The last issue is what are the relief (s) of the parties? The parties that is employer and employee, each was challenging the finding and award of the arbitrator delivered on 16th October, 2019. The nature of their grievances has already been laid herein

above. Therefore, after revising the Court records and analysed the evidence and submissions of both parties, I hereby find that the Hon. Arbitrator erred when he find that the employee was unfairly terminated, and then changed to award for breach of contract. 18 However, for justice and fairness which is the purpose of this Labour Court being a Court of equity, I find that, there was a breach of contract from the employer. Therefore, since the employee contract was a specific term contract, I find that he is entitled to remaining months' salary as per his employment contract herein as exhibit Pl. Furthermore, the employee is entitled to any other statutory benefits payments if not paid as per his employment contract. The consolidated application is hereby dismissed and CMA award upheld for the reasons explained above. No order for costs. Right of appeal explained. It is so ordered. /vtU"" - A. Msafiri |

JUDGE 30/06/2021 19