Labour Revision No 17446 of 2024 Eng

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI LABOUR REVISION NO. 17446 OF 2024 (C/F Labour Dispute No. CMA/KLM/MOS/ARB/20/2023 in the Commission for Mediation and Arbitration at Kilimanjaro) ENG. GURISHA ELLY MRUMA…………................................. APPLICANT VERSUS BUILDERS AND LIMEWORKS COMPANY LIMITED….………RESPONDENT JUDGEMENT 12th November &12th December 2024 MONGELLA, J. The Applicant has moved this Court under Section 91(1) (a) and (b); 91(2)(b) and; 94 (1) (a), (b) (i) of the Employment and Labour Relations Act, 2004 [Cap 366 R.E 2019] (ELRA) and Rule 24 (1); (2) (a), (b), (c) , (d), (e) and (f); (3) (a), (b), (c) and (d) and; 28 (1), (a), (b), (c), (d) and (e) and; Rule 55 (1), (2) of the Labour Court Rules, 2007, GN No. 106 of 2007 seeking for this Court to: one, call, inspect, revise and set aside the award issued by the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/KLM/MOS/ARB/20/2023. Two, grant any order that it considers just and fit in circumstances of this case. Page 1 of 10 The Applicant’s Application was backed by his own sworn affidavit. The Respondent expressed her opposition vide sworn counter affidavit of one, Sarah Anderson Lyimo, her secretary. The brief background of the matter as expressed in the Applicant’s affidavit is to the effect that: he was employed as a structural engineer by the Respondent on 22.09.2022. In the alleged employment, he worked in a project by the name of Tungu-Project. Sometime on 18.01.2023, the project manager required him to send daily reports on the project. On 09.02.2023, he requested to be monetarily facilitated to prepare the said reports every week. On 25.02.2023, his project manager required a report, but he informed him that he did not have any money. He was then told to go to the office and when he got back, he was terminated. He alleged that the termination took place on 17.03.2023. Subsequently, the Applicant preferred a complaint at the CMA alleging unfair termination. He also sought several reliefs including payment of 24 months’ salary as compensation; payment of accrued salary, and overtime pay. The Respondent denied the applicant’s claims on the ground that the applicant was not her employee. The Hon. Arbitrator found the Applicant had failed to establish he was the Respondent’s employee, hence his claim failed. Aggrieved, the applicant preferred this application seeking stated reliefs. He advanced several issues in his affidavit which I will not reproduce, but address in this judgement. Page 2 of 10 The revision was argued orally whereby the Applicant was unrepresented while the Respondent was represented by Mr. Joseph Peter, learned Advocate. Submitting in chief, the Applicant alleged that as he averred under paragraphs 5 and 7, that the Arbitrator refused to admit the additional exhibits the date he presented them. That, he also denied him the right to use exhibits in his submissions by allegedly stating that that was not the day for tendering the exhibits. That, after his submissions, the arbitrator allowed the opponent party to ask questions and he rejoined and wanted to tender exhibits, but he refused again for the third time. He further alleged that he was never given the opportunity to present any witnesses. To substantiate his assertion, he referred the Court to proceedings of 29.09.2023. Further referring to Article 13 (6) (a) of the Constitution of the United Republic of Tanzania of 1977 and the case of Qstek Farming Ltd vs. Saadath Idrissa (Revision Application No. 10218 of 2024) [2024] TZHCLD 125 (12 August 2024), 12 August 2024. and Pili Ernest vs. Moshi Musani (Civil Appeal No. 39 of 2019) [2021] TZCA 297 (14 July 2021). Addressing the contents of paragraph 6 of his supporting affidavit, he submitted that the Hon. Arbitrator required him to start adducing evidence in proving unfair termination, which was contrary to Rule 24 (3) of the Mediation and Arbitration Guidelines Rules GN No. 67 of 2007. Page 3 of 10 Arguing on in relation to the averments under paragraphs 8, 9,10, and 11, he accused the trial Arbitrator form communicating with both parties when preparing the award; holding meetings and having no integrity. He added that the Hon. Arbitrator also allowed parties to interfere with the process of issuing the award, which is against Rule 5 (a) (h) (i) of GN No. 66 of 2007. The Applicant finalized his submission by praying for the awarded reliefs he sought under CMA Form No. 1, which is 24 moths’ salary as compensation for unfair termination; salary arrears from October 2022 to 21.03.2023; overtime pay totalling TZS 3,640,000/- and payment in lieu of notice to be granted to him. Mr. Peter commenced his reply submission by praying to adopt the counter affidavit of one, Sara Anderson. Addressing the arguments raised under paragraph 5 and 7 of the Applicant’s affidavit, he disputed the contentions therein for being untrue. Explaining the procedure in adducing evidence, he averred that once a witness has adduced his evidence, he is cross examined and after that he presents his re-examination. Addressing what transpired in the CMA, he contended that all these procedures were observed, thus the Applicant was accorded the right to be heard. With regard to the exhibits the Applicant complained to have been denied the right to tender, he argued that the Applicant had no room to tender exhibits in cross examination as he had already closed his testimony. In the premises, he had the stance that the CMA proceedings were well conducted in accordance with Article 13 (6) (a) of the Constitution. Page 4 of 10 Addressing the complaint that it was wrong for the Applicant to start presenting his case, Mr. Peter found the argument weak basing on the issues framed during hearing to wit: “whether the complainant had been employed by the respondent” and “if the complainant was employed by the respondent, whether the complainant was terminated without good cause.” Considering the issues, he contended that the Hon. Arbitrator properly directed himself to allow the applicant to start adducing evidence as the first issue to be determined by was whether he was an employee, thus had to prove his employment status. He stressed that the procedure taken by the Hon. Arbitrator was well in accordance with Rule 24 of GN No. 67 of 2007. In addition, he argued that the applicant was not anyhow prejudiced by the Hon. Arbitrator’s choice for him to commence in adducing evidence. Concerning allegations raised under paragraphs 8, 9, 10 and 11 of the applicant’s affidavit in relation to the Hon. Arbitrator’s conduct on the case, Mr. Peter apart from denying the allegations, he countered that the same requires evidence as pleaded in their counter affidavit. He insisted that if there was any communication between him and the Arbitrator then it was for Applicant to prove the allegation. In the circumstances, he requested for this Court to dismiss the allegations for lack evidence and for being raised against a third person not a party to the present proceedings, thus incapable of defending against the assertions. Mr. Peter further contended that the applicant has other means of lodging his complaints against the Arbitrator. Page 5 of 10 With respect to reliefs claimed, he argued that the applicant does not deserve the same as he failed to state why this Court should quash the CMA award. He concluded his submission praying for the CMA findings to be maintained and for the application to be dismissed for lacking merit. Rejoining, the Applicant maintained his assertion that he was denied the right to be heard at the beginning. He alleged that it was not correct for him to start presenting his evidence at the CMA as the claim presented under CMA Form No. 1 was on unfair termination. He also maintained his position that the award issued by the unethical Arbitrator was unlawful in accordance with Rule 5 (a), (h), (i) of GN. No. 66 of 2007. In the premises, he called for the CMA Award to be quashed and for the matter to be remitted back to the CMA for another Arbitrator to re-hear the dispute. I have considered the rival submissions of the parties as well as the record of the CMA. In this application, the Applicant has advanced several complaints, which I will separately address. First, he alleged to have been denied the right to be heard as he was not allowed to call witnesses and tender exhibits. The Respondent, on the other hand, refuted the allegations alleging that the procedures were well observed. Upon observing the CMA proceedings, I found that the Applicant adduced his evidence in chief on 29.09.2023 and thereafter cross examined. The record does Page 6 of 10 not depict any procedures being flawed. In fact, the provisions of Section 147 (1) of the Evidence Act [Cap 06 RE 2022] were duly observed. The provision states: “147(1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling them so desires) re- examined.’ From the above provision, it is mandatory for the witness to adduce evidence in chief. Evidence in cross-examination and re- examination is done at the respectful party’s liberty. What is to be done on examination in chief is for a party/witness to adduce evidence on relevant facts, which include tendering of exhibits. The applicant thus ought to have tendered the alleged exhibits during examination in chief and not during cross-examination. However, as the record displays, the Applicant did not do so. Instead, when such concern was raised in cross examination, he only admitted to have filed proof of payments and not his contract of employment. The record further shows that he never requested to submit the alleged documents as exhibits or even informing the CMA on his intention to call witnesses at any time. His claim at this stage is therefore an afterthought. In addition, by claiming that the Hon. Arbitrator refused him his request to tender exhibits during examination in chief, while the assertion does not feature in the CMA proceedings, the Applicant is endeavouring to impeach the CMA record. Impeachment of the court/quasi-judicial body is a serious move that is not to be taken lightly by an appellate court. Page 7 of 10 There has to be tangible evidence on record suggesting court’s flaws in recording the evidence. See, Alex Ndendya vs. The Republic (Criminal Appeal No. 207 of 2018) [2020] TZCA 202 (6 May 2020); Halfani Sudi vs. Abieza Chichili [1998] TLR 527 and Shabir F. A. Jessa vs. Rajkumar Deogra, Civil Reference No. 12 of 1994 (unreported). I do not find anything on record to allow that. The Applicant was required to prove his employment with the Respondent, which was to be done by tendering of an employment contract. Unfortunately, he did not do that during his examination in chief. Even the documents he attached on CMA Form No. 1 do not include the employment contract. His argument is therefore found to lack merit. Second, the Applicant faulted the CMA for having his case commence and not that of the Respondent. The Respondent was of the view that, since his employment with the Respondent was in dispute, he ought to have proved his employment, thus he carried more burden. It is uncontested and well demonstrated on record that the Applicant’s case commenced first. It is also not contested that in disputes on unfair termination, the burden to prove fairness of the termination lies on the employer. This is provided under Section 39 of the ELRA. See also, the case of Paschal Bandiho vs. Arusha Urban Water Supply Sewerage Authority (AUWSA) (Civil Appeal No. 4 of 2020) 2022 TZCA 42 (21 February 2022) TANZLII, which emphasizes on his rule. Page 8 of 10 It is also not contested that where unfair termination is the question in issue, it is for the employer to commence adducing evidence. This is provided under the proviso to Rule 24 (3) fo GN No. 67 of 2007. However, such requirement is not the case in other issues. While the Applicant’s claim was on unfair termination, the Respondent, on the other hand, denied there being existed any employer- employee relationship between them. This vital detail had the effect of rendering the dispute improperly before the CMA. I find that it was at such point that the Applicant’s burden became heavier than that of the Respondent as he had to prove his employment with the Respondent, before matters of unfair termination could be dealt on. In the premises, the act of the Applicant presenting his case first was not a contravention of the mentioned law. On such reasoning and in consideration of the fact that the Applicant failed to demonstrate how he was prejudiced, I find his claim unmerited. Third, the Applicant alleged that the Hon. Arbitrator initiated communication between him and the Respondent during composition of the Award. Mr. Peter denied there ever been any communication between the Respondent and the Hon. Arbitrator. With respect to the allegation on communication with the Applicant, he contended that such fact can is best known to him. No doubt, the issue alleged raises ethical concerns which are not within this Court’s mandate in this Revision. While indeed Rule 7(1) of GN No. 66 of 2007 prohibits communication between the Arbitrator and the parties; the allegation is of serious nature Page 9 of 10 requiring the parties accused to appear and defend the same. However, the same is to be done before an appropriate authority and not this Court and at this particular stage. This argument also crumbles down. Lastly, the Applicant also claimed for several reliefs for unfair termination. However as ruled out by the CMA, he failed to prove that he was indeed an employee of the Respondent. In failing to prove his employment, subsequently all other claims fail. Upon observing the CMA record, I also found no proof submitted by him indicating that the Applicant was ever employed by the Respondent. This claim epically fails as well. If the Applicant did some work for the Respondent on some other arrangements other than under employer-employee relationship, he should have taken a different route to claim his rights. Considering the observations made hereinabove, the application is found to be wanting in merit, thus dismissed accordingly. Having been filed as a labour matter, I make no orders as to costs. Dated and delivered at Moshi on this 12th day of December, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 10 of 10