REV NO 25698 OF 2023 DOMINIC JOHN BUZENGANWA VRS DONGXING INTERNATIONAL REAL ESTATE LTD

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 25698 OF 2023 CASE REFERENCE NO. 20231120000025698 BETWEEN DOMINIC JOHN BUZENGANWA.............. ....... ..... ........ APPLICANT VERSUS DONGXING INTERNATIONAL REAL ESTATE L T D .................... RESPONDENT JUDGEMENT Date of last Order: 13/ 03/2024 Date of Judgement: 05/ 04/2024 MLYAMBINA, J. Aggrieved by the decision of the Commission for Mediation and Arbitration (herein CMA) in Labour Dispute No. CMA/DSM/KIN/683/2019/2019/683, the Applicant preferred the present application on the following grounds: i. That, the Arbitrator erred in law and fact by dismissing the Applicant's complaint on the ground of separation agreement because the Applicant's employment ceased on 19/08/2019 while the purported agreement was made on 20/12/2019. ii. That, the Arbitrator erred in fact and law for failing to analyse the contradictory evidence between DW1 and DW2. iii. That, the Arbitrator erred in law and fact for failing to properly analyse the evidence adduced by parties. iv. That, the Arbitrator erred in law and fact for failing to consider that there is no any application or notice filed by the parties praying to settle the matter out of CMA so as to move the CMA to order the parties to enter into mutual agreement. The matter proceeded by way of written submissions. Mr. Steven Christopher Minder, Principal Human Resource Officer from Uhuru Labour Expert, prepared the Applicants written submissions. On the other hand, Mr. Athanas Wigan, learned Counsel appeared for the Respondent. On the first ground, it was the Applicants submission that both parties were supposed to confine themselves to the issues raised in the Referral Form (CMA FI) filled by the Applicant on 20/08/2019. He stated that the form was submitted to the CMA on 20/08/2019 where the officer of the CMA signed to have received the same on 21/08/2019. That both parties attended mediation on 16/10/2019 and signed CMA F6. The Applicant went on to submit that as per the caution statement of Mr. Alexander Bange at the Police Station, Dar es Salaam, the Applicant was accused for forgery of CMA summons in Case No. 135 o f 2021. It was stated that the Applicant and his fellow namely Emmanuel Thobias were terminated from employment for gross misconduct. The Applicant summed up his submission by maintaining that the Arbitrator erred in law deciding that there was separation agreement entered on 20/12/2019. In response, Mr. Wigan stated that the Respondent discharged his burden of proving by tendering the mutual termination agreement entered by the parties on 20/12/2019. On determination of the first ground, a critical analysis as to what entails a termination by agreement has to be done. The same has been provided under Rule 4(1) o f the Employment and Labour Relations (Code o f Good Practice) Rules, G.N. No. 42 of2007\X\3i\ - An employer and employee shall agree to terminate contract in accordance to agreement. From the above definition, an agreement must be reached between both parties, the employer and employee. In the matter at hand, the Arbitrator found that the termination of employment contract was by way of agreement between the Applicant and Respondent. The basis of his decision was on Respondent's testimony and exhibit D1 which was tendered by her. I have examined the records, when exhibit Dl, the purported termination agreement was tendered before the CMA, the Applicant strongly disputed such document by stating that the signature appended thereto is not belonging to him. Notwithstanding his objection, the CMA admitted the exhibit in question. Furthermore, even exhibits D2 (Uthibitisho wa malipo) was objected by the Applicant when tendered. The Applicant again stated that the signature appeared on that document was not his. Surprisingly, in the Award, the Arbitrator stated that exhibit Dl tendered by Respondent was not objected by the Applicant and she proceeded to use them and found that the termination of employment contract was by way of agreement. For easy reference, the Arbitrator's decision read as follows from p. 12-13 of the impugned award: Kwa kuzingatia kesi ya mahakama ya rufaa, mlalamikaji kwakuwa alisaini makubaliano akiwa na akili timamu hivyo kile kilichoandikwa hawezi kukikataa kinambana mwenyewe. Pia mlalamikaji katika utetezi wake hakupinga ushahidi wa mlalamikiwa na wala hakuongelea kabisa swala la makubaliano hayo, hivyo ni dhahiri kuwa hayo makubaliano ni halali mbele ya Tume. It is my view that since the Applicant objected exhibit D1 and D2 that the signatures therein do not belong to him, further evidence was needed to prove whether the documents in question were forged or not. In absence of any further proof, the Arbitrator was not right to rely on the contested exhibits. The record reveals that signatures on the contested exhibits resembles. The contested signature differs with the signatures appearing in the employment contracts tendered by the Applicant (exhibits PI and P2). The employment contracts were also tendered and unobjected by the Respondent regardless the facts that the signatures thereto do not resemble. This proves that he agreed that the signature which appears on it, are the Applicants' signatures. Furthermore, since such signature is totally different to the ones appeared in exhibits D1 and D2, it proves the allegation of the Applicant that those signatures are forged. Since exhibit P2 was not objected and there were no cross examinations, it means admission of each and every aspect on it on the party of the Respondent. Since it is the duty of the employer (Respondent) to prove fairness of termination as provided under Section 39 o f the ELRA, it is my view that the Respondent in this case failed to prove that there was mutual agreement between the parties as alleged by the Applicant. For that reason, I hold that the termination of employment contract of the Applicant was unfair both substantively and procedurally. The second ground is that the Arbitrator erred in fact and law for failing to analyse the contradictory evidence between DW1 and DW2. The Applicant submitted that DW1 in his testimony testified that he was the one who prepared the purported termination agreement (exhibit Dl) whereas DW2 testified that he does not know DW1 and he named Ms. Tunu or Shakila Ally as the one who prepared exhibit Dl. It was the Applicant's view that the testimony of both witnesses is not trustworthy. In response, Mr. Wigan stated that DW1 was not in the position to know all employees of Aymark Attorneys who were entrusted of drafting the purported mutual agreement. He added that DW2 was in the capacity to tender exhibit D l as he was involved. He further cleared that contradiction among witnesses cannot be avoided in certain cases. In support of his submission, the Counsel referred the Court to the case of Marando Slaa Hofu & 3 Others v. Republic, Criminal Appeal No. 246 of 2011, Court of Appeal of Tanzania. As it is found in the first ground, D l by itself was not sufficient evidence to prove that there was mutual agreement to terminate the employment contract at hand, this ground should not detain me. There is no further proof in record that the signatures appearing in the contested exhibits are of the Applicant. Thus, the documents in question cannot be relied upon. Coming to the third ground, that the Arbitrator erred in law and fact for failing to properly analyse the evidence adduced by parties. The Applicant submitted that the CMA dismissed the Applicants claim basing on exhibit Dl. He stated that Ms. Shakila Ally, the person who witnessed the purported agreement and the officer who signed on behalf of the Respondent were not brought before the CMA to testify on the same. It was the Applicant's further submission that both DW1 and DW2 did not tender a letter to prove that the Applicant intended to resign from the employment contract. In response, Counsel Wigan argued that DWl was the officer of the Respondent entrusted with the obligation of Human Resources. Therefore, he was a competent witness to testify before the CMA and tender exhibit Dl. Counsel Wigan cited Section 49(1) o f the Evidence Act, [Cap 6 Revised Edition 2019] (herein TEA) to support his argument. He also cited the Court of Appeal case of Fauzia Jamal Mohameda v. Oceanic Bay Hotel Limited, Civil Appeal No. 161 of 2018. It is my view that this issue has been determined by the first ground. Much as DW1 was a competent witness to tender exhibit Dl, the document in question cannot be relied upon by this Court for the reasons explained in the first ground. Turning to the last ground, that the Arbitrator erred in fact and law for failing to consider that there is no any application or notice filed by the parties praying to settle the matter out of CMA so as to move the CMA to order the parties to enter into mutual agreement. It was the Applicant's submission that if the parties had any intention to settle the matter out of CMA, they should have notified so the CMA. Short of that, it proves that there was no any agreement initiated by the parties. The Applicant also clarified that this matter has been before the CMA since August, 2019. In the upshot, he urged the Court to quash the CMA's decision. Responding to the last ground, Mr. Wilan stated that the same is irrelevant because it is not stated in record that parties filed a settlement deed. He said the matter was heard on merit and it was found that the parties entered into mutual agreement. On the last ground, I also join hands with Mr. Wilan's argument that the Arbitrator determined that there was a mutual agreement entered by the parties before the matter was instituted at the CMA. On that basis, the CMA records cannot reflect the parties' prayer of settling the matter out of the CMA. Thus, this ground is irrelevant. In the premises, since it has been proved that termination of employment contract of the Applicant was unfair both substantively and procedurally, I order the Applicant to be paid 12 months' salary as compensation for unfair termination as provided under Section 40(l)(c) o f ELRA, one month salary in lieu of notice as provided under Section 41 o f ELRA, severance pay for two years as provided under Section 42(2)(b) o f ELRA and one month salary as leave provided under Section 44 o f ELRA, In the result, I find the present application has merit. The CMA's award is hereby quashed and set aside. The Respondent is ordered to pay the Applicant a total of TZS 13,404,461.54 as compensation for unfair termination and the remedies stipulated above. It is so ordered. YJ. MLYAMBINA JUDGE 05/04/2024 Judgement pronounced and dated 5th April, 2024 at 02: 52pm in the presence of the Applicant in person and Athanas Wigan Advocate for the Respondent. Right of Appeal explained. YJ. MLYAMBINA JUDGE 05/04/2024