ernest eliezer kapange vs a one products and bottlers ltd 2021 tzhcld 337 25 august 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 207 OF 2020 ERNEST ELIEZER KAPANGE..................................... APPLICANT A-ONE PRODUCTS AND BOTTLERSLTD................... RESPONDENT JUDGMENT Date of last Order: 16/06/2021 % % Date of Judgment: 25/08/2021 Z. G. Muruke, J f % 1 Mr. Ernest Eliezer Kapange, the applicant was the respondent's employee from 1st November,2011 as Sales Supervisor. He served the respondent until 10th October,2018 when he decided to resign from his employment after he was engaged with another company for his career growth. Following his resignation, the respondent referred a dispute of breach of contract at the Commission of Mediation and Arbitration (CMA). Upon determination, CMA decided on the respondent's favour and ordered the applicant to pay the respondent one-month salary in lieu of notice, twelve months salary as compensation for breach of contract and recovery of the alleged loss to a tune of Tshs. 5000,000/=. The applicant was aggrieved with the award hence filed the present application seeking for the revision of the award on the grounds stated at paragraph 11 (i - iv) of the applicant's affidavit. The application i was challenged by the counter affidavit affirmed by Hassan Dewji, the respondent's Principal Officer. Hearing was conducted by way of written submission; The applicant was served by Mr. Michael Mgombozi whereas the respondent was under service of Advocate Mwambene Adam A.E. Submitting in support of the application, Mr. Mgombozi prayed for the applicant's affidavit to form part of his submission. He submitted that, the arbitrator erred in law by ordering the applicant to compensate the respondent after his resignation. The arbitrator wrongly interpreted section 40 (1) of the Employment and Labour Relations Act, CAP 366 RE 2019 as he shifted the requirement of the law to the employee. He further submitted that, the arbitrator wrongly ordered the applicant to pay the respondent a sum of 5,000,000/= as alleged loss while the applicant was just a supervisor. The responsible persons were the sales man namely Hashim Ramadhan and Silimu Bakari who were reported by the respondent at Pangani Ilala Police Station through RB No. 13688/2018 and ILA/ir/2286/2018 for criminally charges. That the employment contract was clear that, any party to the contract can terminate the contract by notice or payment of one month salary in lieu of the same. Therefore, the applicant prays for the CMA's award be revised and set aside for being unfair. In contrast, the respondents counsel submitted that, the applicant's resignation letter dated 10th October,2018 was not accepted as it was contrary to the conditions agreed in the employment contract (Exhibit Pl). The same provides for payment of one month salary in lieu of notice and there was no handling over of the Company's assets by the applicant. That the resignation letter was an afterthought as the applicant was on compassionate leave which was due on 6th October, 2018. However, he was found by DW1 working in another company. As regard to the applicant's representative contention on arbitrator's order of compensation, it was submitted that the same has no merit as > A the employment contract provides for rights and obligation to each party to the contract. In case of any breach by the party, the other suffers damage. That, in this matter the applicant was under a valid subsisting contract but he decided to deceive the respondent that he is going on compassionate leave, whereas he engaged himself to another employer he thus filed a resignation letter. That prompted the employer to suffer damages. Section 40(1) of CAP 366 RE 2019 provides for remedies of unfair termination of employment contract, the present matter was for breach of contract hence it was neither wrongly interpreted nor a shifting of the requirement of the law, the other party can be compensated when the other party breaches the contract. Furthermore, it was stated that the arbitrator evaluated all the J 'a' documents tendered before making any decision. The respondent established his case with documentary evidence, for instance exhibit P3 was submitted as proof of liability to a loss of 5,000,000/= Even the issue of criminal case against Hashim Ramadhan and Salim Bakari has nothing to do with the respondent's claim against the applicant before CMA. He thus prayed for dismissal of the application for being devoid of merit. After consideration of the rival submissions of parties, records and relevant laws, here are the issues to be determined by this court: - i. Whether it was correct for the arbitrator to order the respondent be paid 5,000,000/= as alleged loss and 12 months salary as compensation for breach of contract. ii. To what relief are the parties entitled to. Starting with the 1st issue, it was the applicant's representative contention that, the arbitrator erred in law to order the applicant to pay Tshs. 5,000,000/= as alleged loss while the applicant was just the supervisor and the responsible person were the salesman. The respondent rebutted the same as he stated that, the applicant was responsible for the said loss and the respondent established his claim of proof of loss of 5,000,000/= through exhibit P3. After a keen perusal of the records, I have noted that the claim of payment of 5,000,000/= as alleged loss incurred by the respondent, is not among the reliefs claimed by the respondent in CMA Fl. Even in the disputed issues agreed by the parties on 8th February,2019 the same is not among them. Therefore, it was wrong for the arbitrator to award the respondent the relief which was not pleaded in CMA Fl which initiates proceeding. It is a general rule that, the parties are bound by their pleadings as stated in a number of cases including the case of Makori Mganga Vs. Joshua Mwaikambo & another (1987) TLR 88 where it was held that 'In general, and I think that is elementary a party is bound by his pleadings and can only succeed according to what has averred in evidence. He is not allowed to set up a new case'. On that basis, I quash and set aside the arbitrator's order of payment of Tshs.5,000,000/= As regard to the award of 12 months salary as compensation for the breach of contract, the applicant alleged that the arbitrator wrongly awarded the respondent with the same, as he wrongly interpreted Section 40 (1) Of CAP 366 RE 2019 as he shifted the requirement of the law to the employee. The respondent refuted the same as he contended that the arbitrator was correct to order compensation to the respondent as he was injured by the applicant's breach of their contract. The arbitrator neither wrongly interpreted the said provision nor a shifted the requirement of the law. I have read the impugned award between the lines, it is apparent that basis of the award of twelve months salary as compensation for breach of contract is Section 40(1) of CAP 366 RE 2019. The said provision aimed at compensating the employee against unfair termination of employment contract. Therefore, it was wrong for the lb arbitrator to invoke that Section in compensating the respondent for the breach of contract. I thus quash and set aside the order of twelve (12) months' salary as compensation for breach of contract. It is principle of law of contract that, once a party to a contract breaches the contract, the other party is entitled to relief under the law. In this matter, the respondent through CMA Fl specifically claimed the relief of Tshs.33,199,600/= for breach of contract. The law requires that specific damages must be claimed and proved as stated in case of 5 Gahizi A. Ahmed vs Mikidadi Mwambeleko Hamza (LAND CASE APPEAL NO. 24 OF 2019) [2020]. The respondent had to establish and prove the said damages with evidence. I have gone through records unfortunately I did not come across with any evidence which substantiate the payment of Tshs.33,199,600/=. On failure to prove the said damages I find the respondent is not entitled to that relief. Another relief is payment in lieu of notice. The law under Section 41 (1) (ii) of CAP 366 RE 2019 provides for termination of employment contract on Notice, to be not in less than 28 days if the employee is on monthly basis. In the present matter it is crystal clear that, the applicant is the one who terminated the employment contract and he did so without issuing the respondent with a notice of termination as required under the law, also as agreed in their employment contract. Therefore, the respondent is entitled to one month's salary in lieu of notice. As regard to the relief of the parties, basing on the above discussion, the respondent is only entitled to the payment of one (1) month salary in lieu of notice and the applicant is hereby ordered to make a proper hand over of the respondent's office property which were under his custody in cause of performing his duties. - i On the upshot, I find the application has merit, hence the CMA award is hereby revised to that extent. It is so ordered. Court of Z.G. JUDGE 25/08/2021 6