fabcast schools vs agness mathew hape 2021 tzhcld 6 26 february 2021

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION NO. 34 OF 2019

BETWEEN FABCAST SCHOOLS........................ APPLICANT

VERSUS AGNES MATHEW HAPE................. 3RESPOi?DENT

JUDGMENT Date of Last Order: 18/11/2020 Date of Mention: 26/02/2021 Z. G, Muruke, J. Respondent, Agnes Matheift, wasvemplbyed by applicant as primary % A 2 school teacher on contractuakbasistsjjjg^ 1 January, 2013. Last contract was from 1st January, December, 2018. While the contract is still subsisting, respondent r^questechfor maternity leave from 1st March, 2018 to 1 May, 2018. Her letterwasmot responded by school administration, despite Head Teacherdjpcommendatidns. Without permission respondent proceeded with her l^ave^)f*8®ciays. While on leave, she was called by head teacher tha^ljgr lea^^s been refused for lack of Doctors report to prove that, she was pregnantfend that she was due for delivery. Respondent proceeded with her leave until elapse of her maternity leave (84 days). On her return, she was not being given any work. She continued until 24th August, 2018, when she was told that she is not wanted at applicant premises. All this time, from 1st March to August, 2018, she was not paid salary, she then filed dispute at i CMA Kibaha on 31st August, 2018 claiming for:- (l) Salaries from 1st March - 30th August, (ii) Maternity leave pay (iii) Repatriation costs, (iv) Terminal benefits for 5 years (v) 12 months' salary for unfair termination Upon hearing, CMA ordered respondent to be paid as follows (i) Six months' salary from March to August, 2018 l,200,00/=K (ii)

2,400,000 being salary for 24 months being damage for unfair termination (iii) One month salary in lieu of annual leave. (iv) 269,230 Tshs. being terminal benefit for SyearsK. (v) 200,000 Tshs. in lieu of notice (vi) 330,000 Tshs. as cost of -transporti^^^^language from Kibaha to Singida. The award dissatisfied applicant, nenceZbresent revision, raising following issue for determination (0 Whether respondent absconded from work place for 6 months (ii) Whether applicant terminated respondent. (iv) zWhether compensation of 2,400,000 being respondent 2 years' salary was justified while the contract was for one year, Heamg|>was by way of written submission. Applicant counsel submitted on issue number one and two that; For the employee to enjoy the right of maternity leave, must give the employer three months' notice, attached with medical certificate. These conditions are provided under Section 33(1) of the Employment and Labour Relations Act, No. 6 of 2004. In her testimony, respondent did not tender any medical report contrary to requirement of the 2 law. The law is coached in a mandatory manner, it is not an option at all. The respondent just left the job, in other words the respondent absconded from job and later came with the reason that she was on maternity leave. Thus, is the respondent who absconded from job but the applicant never terminated the respondent. Through

proceedings there is no evidence that shows how the applicant terminated the respondent. It is on record that, the respondent absconded from job, she stayed for sometimes, and later on applicant was served with the summons. Suffice to say thaj/the trial commission did not act properly, the award be^bashed and set aside, insisted applicant counsel. On ground three the trial arbitrator enjedln^w and fact for ordering payment of Tshs. 330,000/= beiMStran^^hyst^whlle in fact there was no evidence to prove the said transport cosbsAt is the duty of the party to prove the case before the court. Thts^uty is provided for in Section 110 (1) and (2) of the Evidence AttCap 6 R.E 2002 of the laws of Tanzania to the effect that it is the duty otthelperson to prove his case before a court of law. It underlines the pr^c^l^^tt he who alleges must prove. Trial commission awarded the‘'*respondeht^Tshs. 330,000/= as transport costs without any proof, Or^roffn®’ four it was submitted that trial arbitrator erred in law and fact for ordering compensation for unfair termination amounting to Tshs. 2,400,000/= while in fact, the law requires compensation of the remaining months if the contract is on annual basis. It is the principle of labour laws that, in the contract of specific period, in case the commission finds that the employee was unfairly terminated, then the employee will be paid compensation

of the remaining months, but it should not exceed 12 months. 3 It is very unfortunately the trial arbitrator proceeded to grant the Tshs. 2,400,000/=, complained applicant counsel. Despite order dated 18th November to 2020 requiring respondent to file submission on by 4th December, 2020, same was not filed as ordered. After several adjournment, respondent changed her representation, in which Shafii Ahmed appeared on 11st February, 2021, holding M^Jmdi Said and requested extension of one week time to file submission. CourUgranted extension. Submission was filed as requested !and ordere^ Respondent representative, submitted in brief and generall^that^arbitrator found that procedure was not followed as reflected at pag^^jto^4iof the award that; "Kuhusiana na utaratibu uliofuatwa wakati^a-kusitisha ajira ambao hakuwa sawa." It was insisted that respondertwas not given opportunity to give evidence, there was no disdpfnary hearing, she was not even given right of representation. Mr. Muhindi’S^^respondent personal representative argued Two^Whether the Applicant has been legally terminated or not. Respondent representative argued the court to find that applicant unfairly terminated respondent, thus award' delivered on 24th December, 2018 should be allowed to be executed. Having heard both parties in their submission, it is worth revisiting Section 331 & 2 of employment and Labour

Relations Act, Act No. 6/2004 that provides as follows:- 33(1) an employee shall give notice to the employer of her intention to take maternity leave at least 3 months before the expected date of birth and such notice shall be supported by a medical certificate. (2) An employee may commence maternity leave (a) At any time from four weeks before the expected<dat^pf& confinement; (b) On an earlier date if a medical practitioner certificateThat iris' necessary for the employee's health or th&t.pf her unbonj, child. z As clearly stipulated above, notice of three^onthslFrequired. More so, medical certificate is mandatory. The woi^^s^^s^iall means mandatory. When respondent signed contractor one yealj, on 1st January, 2018, it was the period that, she was to notify^tjer em^oyer that, she will be expecting to have her new born. Exhibit Pt’is a lette'Pfrom respondent Agnes M. Hape to Headmaster of the app^icanV^^me is dated 8th February, 2018, in which leave sought is from<CMarc^2018, being 21 days before commencement of the maternityjeave. Assuming without believing that notice of 21 day issued is satisraltor^wfiioi is not the case, yet there is no medical certificate attached. tThiS^^fbit P2 did not comply with requirement of the law that wanted>90 daysJhotice. Equally exhibit P3 respondent leave form, dated first March, 2018ns not accompanied by medical certificate as required by

Section 33(1) of Employment and Labour Relations Act, Act No. 6 of 2004. It is trite law that he who alleges is the one responsible to prove his allegations as it was held in Abdul - Karim Haji Ifc. Raymond Nchimbi Alois and Joseph Sita [2006] TLR 420. Further, the provisions of Section 110 (2) of the Evidence Act [Cap 6.R.E 2019] required that whoever desires 5 n any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist. As a general rule in labour matters, the burden of proof lies with the employer to prove on the balance of probabilities as per Rule 9 (3) employment and Labour Relations (Code of Good Practice) GN 42/2007. Applicant discharged this duty sufficiently, by adducincj^vidence that the respondent was not terminated from employmen^ather he\abscbnded from work for three months. Even these facts Mjre not cross ^examined upon. Furthermore, respondent did not state^ho terminated her and whether that person has the authority to termiriareL Since it is the respondent who alleg^to rfave been terminated from employment, while throughout the hean^rothe matter it was proved that the applicant did not terminate:'\the employment of the respondent the respondent's contention that^Jhe was^terminated remains a mere allegation not supported by any evidfflge^gjjrther, the position of the law is

clear that under this circumstance^ifwa^he respondent (employee) who had a duty to Vs. ManenoNdahje& another Revision No. 205 of 2015 High Court (Labpur Division) at Dar es Salaam (unreported) on page 7 the court IL held trtat; "Looking at the evidence in the record I find the respondent's contention remains to be a mere allegation not supported by any evidence there is no evidence which proves that the respondents were terminated from employment and the applicant denies to have terminated them, I find the respondents had the duty to establish 6 termination by evidence. This is the position of the law as provided under S. 112 of the law of Evidence Act [Cap 6 R.E2002]," Since the respondent did not avail the arbitrator with requisite evidence of the termination of his employment contract as required by law, it is clear that applicant never terminated respondent employment contract. To the contrary, it is apparent that the respondent materially breached the contract of employment by absconding from work for a period of three months without any notice or explanation from his superiors as^tox hisixcontinued absence from work. & Rationale behind three months' notice is^foWthe school to be able to continue with activities as scheduled and abide, toschool curriculum. Looking at Exhibit P3 tendered by respondent, ifflackstauthentic on account of clarity, as shown below;- On a place

written typebf work it is written Joseph Ndunguru. On name thaWGidcFJoseph has accepted to take over respondent work, signatur^|hnot there to signify consent. To this court, exhibit P3 raises dpu^^onjt{s authenticity. More so, leave sought by respondent,,, did nofejollow procedure laid down by Section 33(1) of the Employment aqd Labour-Relations Act, Act No. 6 of 2004. Respondent on her^peniQgJstaterneht at CMA admitted that, she did neither give notice withlri^ffi da^jpr did she tendered medical certificate to justify request for maternity-leave. It was expected that letter exhibit Pl be respondent by the Head Master of the applicant, following head teacher forwarding the same for approval. There is no evidence to proves, that respondent leave request was approved. By proceeding on leave without approval, amounts to absconding 7 from employment. In employer and employee relationship rules and law applicable has to be adhered, to avoid chaos on industrial relations. From the content of exhibit P2 and P3 tendered by respondent herself, it is crystal clear that she absented herself from work for more than 5 days without permission from her employer, thus she cannot be said to have been terminated by applicant. There is nothing like constructive^termination as claimed by respondent, who received her salary until 20^^ Ground number one has been answered in the affirmative that

respondent absconded, while ground number two has beerJan'swered in the negative that, respondent was not terminated, by applican^^ Having found that respondent abscorn^d^orti her employment as she was not allowed to proceed on le'ave byl^regi ployer, then, CMA award was not properly issued. (i) She absented ^&elf for six months thus, cannot benefit from her own wrongs^ Amount of 1,200,000 granted being salaries for 6/mohth^is!>guSshed and set aside. (iiik Amount of 200,000 in lieu of notice is not justified as there is no unfair termination, thus quashed and set aside. (iv) Amount of 330,000 as costs of transporting language from Kibaha to Singida, is not justified, not backed up by evidence, thus quashed and set aside. (v) Amount of 269,230 being terminal benefit to be paid by applicant. If not paid by respective social security fund if any. (vi) One month salary in lieu of annual leave is also unjustified. Leave pay is after 12 month. Respondent only worked for 2 months from January to February 2018. Leave pay is after completion of 12 month contract in terms of paragraph 10 of employment contract between applicant and respondent dated 01/01/2018 that provides as follows "The employee is entitled to 28 consecutive days paid ex leave during each leave aged. ThesdFdays shall be inclusive of any public holidays failing withmMie leave period. A leave cycle for the purpose of

annual leave means a period of 12 months consecutix^^mployment from the commencement da^e/of^mployment or completion of the last Ieav^wclte/^W The wording of the provision abox^^^k clearly. Respondent worked only for 2 months. Thus not entitle^tcHdave pay, the amount of one month salary being leave pay is quaffed and set aside. Before windin^^^^^nbted serious issues to be discussed by this court as found on the court rctords. Applicant contract with respondent does not show respondent address. Address intended to show where respondent is recruited for the purpose of repatriation if any. This is not proper. It is designed to evade repatriation costs incase contract came to an end or in case of dispute like the present one. Parties to the employment contract should be keen when signing a contract. Equally employer should be honest not to put clause that takes employee rights technically. 9 Two: Director of Fab cast schools Mr. Joseph J. Runyoro, in his defense filed on 24th October, 2018 titled Maelezo ya utetezi at paragraph 2 he spoke serious discriminatory words on women when he said. Mdai (Mwajiriwa) amekua na tabla ya kutofika mara kwa mara, na kutoa taarifa mara baada ya kurudi kazinl. Hata hivyo kitendo cha kuomba Ukizo ya uzazi bila kufuata sharia kulisabatiisha/ofisi lone kuwa ni kawaida ya wafanyakazi wanawake ^kuacha\kazi baada ya kupokea mshahara. Ikumbukwe^mwisho

"^^mwe^^wa kwanza wafanyakazi wa kike watatu (rafikilzake) waiiacha kazi kwa kuaga Mwaiimu Mkuu baada ya kupok^^mshahara wa mwezi. Ofisi Hiridhika kuwa mdai anaqa^sudrya^kuacha kazi baada ya kuamisha mtoto wake wa primaryz^kuacf^kdeni la shule la TZS 85,000/=. The above words were^spoken^negligently by Director of applicant. This is not proper, It is gearec^at Discriminating woman at work. I believe both women teachers fhey w^re^not employed because they were women, but rather teachers^On'ce^h'iy commit any misconduct, they do so as any other employe^ffif^tja? women. Threef^^^Respondent first contract dated 1st January, 2013 salary was 200,000 Tshs. After five years in a contract dated 1st January, 2018 to 31st December, 2018 salary was still the same. This is not right. The amount of 200,000 Tshs. remained for 5 years without even light increment. Despite being a private institutions salary cannot be static for five years. Four: According to defense raised at CM A by Director Fa beast Schools, titled maelezo ya utetezi at paragraph 5.8 raised counter claim to the respondent, as follows. (i) Areas of school fees Tshs. 85,000 for respondent child (ii) Areas of rent of the room respondent was using at Fa beast school to the June of 100,000 Tshs per months until respondent removal all her belongings from the room. Of interesting here is rent rate for one room used by respondent

at school premises. Issue of house is not reflected in coniract.^^sumiriig it is reflected. The amount of 100,000 per room is imagi^NeJ^KiM^area located outside the city of Dar es Salaam. Respondent salary nbt disputed is 200,000. Then half of the salary is to be retuwdXothe employer as rent per month. Issue of rent not only ^^parc^f the contract, but employer is making teachers at school/yJOrlcforhim for almost for free. The little salary of 200,000 per months Stolaw. Yet half of it i.e. 100,000 be returned to employer as houseVent fofeone room it is astonishing. It is high time employer recognizeiteacherscontribution to the school, society and country at large. ^e^low^alary to the teachers in private schools not only discourag^ea^ijsJpbt it is dangerous for the student whom their parenfeJhaye^highexpectations as they pay school fees, contrary to Fives^Most (gj^ployee, just sign contract because of pressing need (Njaa kali) withczutSreading in details each clause of a contract. Failure to do so, they are exposed to high risk of loosing not only their job but, their dues in case of dispute. Six: Employee Association should design standard contract for each group of employee, including Teachers working in private sector. They pay contribution to organization for them to be represented not only in case of ii dispute, but also in the formation of contract to avoid disputes. This is the duty of Employees associations. They should not only pocket workers contributions, but should be pro-active to guide them in their contract formations. In totality, Revision application allowed to the extent shown. 12