fair competition commission vs michael damian shilla 2022 tzhcld 725 5 august 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 424 OF 2021 FAIR COMPETITION COMMISSION...................... APPLICANT VERSUS MICHAEL DAMIAN SHILLA...................................... RESPONDENT (From the decision of the Commission for Mediation & Arbitration of DSM at Kinondoni) (Massav: Arbitrator) dated 3rd July, 2020 in REF: No, CMA/DSM/KIN/R.473/15 JUDGEMENT 14th February & 5th August 2022 RwizileJ. The parties have been locked into this litigation since 2015. This followed termination of the respondents employment by the applicant done on September 11, 2015. It can be recalled that the respondent was employed as a director of corporate affairs in a five-year fixed term contract on 24th i January 2007. Upon its expiry, he got a renewal of 3 years commencing from 14th February 2012 to expire on 15th January 2015. Before, this last contract came to an end, the applicant was instructed by the Permanent Secretary, president's office, Public Service Management on 22nd February 2013 to extend the respondent's contracts ,of employment after every two years until he attains the retirement age of 60 years. This directive was based on the government circular directing that, employees in the Government agencies should be employed on permanent and pensionable terms unless they were past 45 years. The respondent was in that category and was to be employed on two years contract until retirement. The applicant did not heed to the directive. On 9th January 2015, the applicant served with him a notice of termination with the effective date being 15^<January 2015. Due to operation of the staff Rules and regulations that-were currently in force, the notice extended to three months from the previously^stated in the contract of one month. It was therefore to come to an end on 14th April 2015. The respondent did not seat, he believed this notice to end his contract conflicted the directive of the government, which the applicant did not adhere to. He referred the matter to the Public Service 2 Commission (PSC) on 4th March 2015, complaining of failure of the applicant to comply with recurrent renewal of the 2 years contract as directed. On 21st August, the applicant was directed by the PSC to comply with its directives or in case not satisfied, appeal to the President. Again, the applicant did not copy the directive, and proceeded to terminate him in September 11, 2015. The respondent was now fed-up with this tag-of war between the two Commissions. He decided to file a referral to the Commission for Mediation and Arbitration. He claimed for breach of contract thereby demanding payment of the benefits arising from termination. That is an expired term of 66 months remaining to the retirement age of 60 years. After hearing the claims, the CMA found the contract was breached and ordered payment of TZS 622,050,000.00 remuneration equal to 66 months. The applicant was aggrieved hence this application. The applicant was represented by Mr. Hangi Chang'a learned Principal State Attorney from the office of the Solicitor General, being assisted by Bryton Samwel and Rose Kashamba, State Attorneys, while the respondent was represented by Loy Sehemba learned counsel of Zealmark Advocates. 3 The affidavit supporting this application contains legal issues for this court to determine as follows; (i) Hon. Alfred Massay (Arbitrator) determined a matter which is not a labour matter thus there was no employer and employee relationship. (ii) Hon. Alfred Massay (Arbitrator) wrongly interpreted and based his decision on the directives in the letter dated 22nd February, 2013. (Hi) Hon. Alfred Massay (Arbitrator) had no mandate to question implementation of administrative directives issued to the applicant by the Permanent Secretary, ’ <President Office, Public Service Management. i -The computation of salary and gratuity to the tune of f? TZS. 622,050,000/= by Hon. Alfred Massay (Arbitrator) was derived basing on the Agreement which expired on 15th February, 2015. 4 (v) That the Commission for Mediation and Arbitration has no jurisdiction to entertain this matter. Advancing oral arguments in each of the issues, Mr. Hangi apart from adopting the affidavit in support of the application, argued ground three & five together, while the rest were tackled separately. He started arguing the third & fifth grounds. In brief submission, he said, CMA had no jurisdiction to entertain the matter. It is so because the respondent, channeled his dispute through the Public Service machinery. He complained to the Public Service Commission, the President and the Permanent Secretary. According to the learned Attorney, it was directed that he should be employed in two years contract renewable until at the retirement age. It was the view of Mr. Hangi that the applicant did not re-engage. This is what led to the respondent to refer the dispute to the CMA. The CMA, he argued, had no jurisdiction. The respondent was required, as a matter of law, to apply for mandamus or certiorari before this court, to compel the applicant to execute the decree. In support, the learned Attorney referred me to the cases of Meshack L. N Kagya v TPDC, Labour Dispute No. 4 of 2018 at Page 7, 5 and TANROADS vs BRIGHTON KAZOBA AND ANOTHER Labour Revision No. 16 of 2018. Submitting on the first issue, it was argued that there was a contract of 3 years renewable. This contract, he said expired. In his view, by?the time he filed a dispute at the CMA, there was no existing employment contract. Therefore, there was no employment relation between the parties. When submitting on the second issue, Mr. Hangi argued, the arbitrator did not understand the terms of the letter from the Permanent Secretary that ordered re-engagement. The same, he argued by then, had no contract and he ought to be given a new contract. On the last point,;it was argued that, the arbitrator based his decision on the expired contract and it was wrong to do so. The learned counsel further submitted that, the amount awarded by the CMA was not proper. According to hirh/The principal is stated in the case of Dickson Saul Lutemba vs CRDB Bank Ltd, Civil Appeal No. 70 of 2008 at Pg. 19. The respondent had been paid based on the last contract. It was the learned Attorney's argument that re-engagement was a difficult thing to be done by the employer, he therefore prayed, the decision of the CMA be nullified. 6 Mr. Samuel learned State Attorney added in respect of the third and fifth ground on jurisdiction. He said, when the matter was heard by the Public Service Commission, it was left to the respondent to apply for orders of certiorari and mandamus compelling the execution of the directive of the PSC. Secondly, he said, there was no labour issue because the matter had been concluded. The matter was from the chief secretary to reengage, it was not a contract of employment but a directive to re-engage. Mr. Loy, learned counsel for the respondent, responding to the third and fifth grounds, had this to submit; that there is no decision of the President whatsoever. He said, when the respondent got a notice to terminate his contract, he wrote a letter of complaints exhibit S-5, to the Chief Secretary for the directives. On 22.02.2013, he argued, the applicant was directed to re-engage the respondent in a 2 years contract renewable until his retiremehtJHe said, it was as per exhibit A-5. This matter was filed at CMA and so therefore was no any case filed before the Public Service Commission. The respondent did what he ought to do. Exhibit A6 was another letter from the Public Service Commission with same directives when the same was 7 being heard. The respondent was therefore clear that the CMA was a proper forum. The learned counsel when arguing the first point stated that, the respondent complied with Rule 10(1) of GN 64 of 2007. It is so, he said, he filed a dispute in 30 days, because he was aggrieved by termination of contract. The commission was therefore right. On the Second ground, the counsel said, the decision of the CMA is based on exhibit D7. It was so decided in the award at pag 11-12. Based on amendment No. 18 of 2017, that amended the Public Service Act. It was his view, the applicant was bound to give the respondent contracts renewable until the date of retirement. According to him, section 8(1) of Public Service Act [ Cap. 298 RE 2019] is relevant and ought to be followed. The respondent, he submitted, got a contract and it was subject to renewal. Last ground, it was submitted that the CMA based its decision on the last contract of 2O15.The respondent was given a notice of termination of his contract as per exhibit A4. It was a notice of 3 months. It ought to end on 15th April 2015. Based on exhibit A5, he said, the contract was extended to 8 15th April 2015, which ought to end on 15th February 2015. Even if it ought to expire, the respondent was not to be terminated until the respondent got the age of retirement. He was therefore paid according to the award the remaining period before retirement. Mr. Loy further said, the arbitrator did not question the directive of the Permanent Secretary. The respondent therefore, prayed the application be dismissed because the CMA had jurisdiction to determine the application. In a rejoinder, Mr. Samwel State Attorney stated that the end of contract was on 15th February 2015. The respondent appealed to the Public Service Commission as shown at pg. 4 of the award. The decision of Public Service Commission was made on 21st August 2015 as per exhibit A6. When the decision was made, he was aggrieved and so went to CMA. He added, the chief secretary's letter is not a contract but a directive. Lastly, he said, the employer was required to comply with Fair Competition Act No. 8 of 2003, section 72(1), where all employees were to be employed on competitive terms. The applicant, he commented was duty bound to follow the government directive. 9 Considering oral arguments of the parties and upon due rumination of the pleadings and grounds, I have come to the conclusion that the entire revision rests on jurisdiction of the CMA. In my determination therefore, I will generally deal with whether the CMA had jurisdiction to entertain the matter. To start with, it is apparent that the applicant employed the respondent in a fixed term contract. It was first for five years and then extended for three years. This new contract for 3 years was entered by the parties on 16th February 2012, exhibit D5. Having this in mind, few months later, on 25th October 2012, the applicant via its letter to the Permanent Secretary, Presidents office (to be referred herein as PSPO), exhibit D6, applied for permission to employ the respondent in a fixed term contract. This is because, the respondent was among other employees who had passed the age of 45. It is a fact to note that they were doing this after they had signed a jgew contract with the respondent. It should be recalled, that the government,had directed previously, fixed term contracts should not be given to employees in the Public Service. io On 22nd February 2013, the PSOP, directed via a letter, exhibit D7, that the same be indeed given fixed term contracts of two years renewable until he attains the retirement age of 60 years. My construction of this directive from the PSOP, permission to do so was not granted. It is in record, that the applicant on 9th January 2015 issued to the respondent two documents, one an intention to issue termination of contract notice and contract of employment termination Notice, D8 and D9 respectively. In the former, the respondent was informed and reminded that he was never employed by the Civil Service Commission but by the Fair Competition commission (FCC) and so his employment was not governed by the PSA but the law that establishes the FCC in terms of section 30 of the PSA. He was as well informed that his contract of 16th February 2012 was not a renewal but,a separate contract because the first one was concluded by payment of gratuity. Before going further, I have to note here that, in D6, the applicant applied for permit to employ the respondent among others in fixed term contracts. On the second page of the letter, it was stated in clear terms that; ii Ikumbukwe kuwa hizi siyo ajira mpya na wafanyakazi hawa, wameishafanya kazi kwenye tume kwa miaka mitano sasa. Kinachoombwa ni wafanyakazi hawa kubadirishiwa masharti ya ajira kutoka ya kudumu kuwa na mkataba ambapo wanatakiwa kulipwa kiinua mgongo cha asiiimia 25%. In the latter, (that is D9, which was issued along D8 on 9th January 2015) the respondent was informed that the notice period of termination of his contract was extended to 3 months instead of one month as it was previously the case. From the two documents, it follows therefore that, the respondent's submission that the CMA banked on the none existing contract is baseless. It is plain from D8 and D9, that the respondent's contract was not terminated until the FCC held an extra-ordinary meeting on 11th December 2015 and resolved angrily that the respondent be informed that his contract had expired andbe terminated at once. It is from the same, when a resolution was passed and communicated to him. It is evidenced by exhibit DIO which is an 111th extra ordinary resolution and termination letter Dll. 12 In clear terms, a fixed contract referred was entered on 16th February 2012 to expire on January 2015 (D5) was not terminated until 11th September 2015. This court notes further that, item 3 in DIO (111th extra-ordinary resolution) and item 10 in D8 (intention to issue termination of Contract notice) that the FCC was not obliged to heed to Utumishi directive (letter), is a contradiction on part of the applicant. One would ask, if the applicant new was not bound by the same why did she apply for such a permission. I have shown before how the applicant applied for permission to employ the respondent in fixed term contract, from the permanent one in exhibit D6. I believe, this letter was not cosmetic. It is so for the reasons that are apparent. From its letter, exhibit D7, in response to D6, Utumishi did not offer an advised because it was not asked to advise. It was asked for permission. Therefore, the content in D9 and DIO that the applicant had the option to take or ignore is in my view not correct. % Under section 31 of the Public Service Act (PSA)[Cap 298 R.E 2019], servants in the executive agencies are not only bound by the laws governing those institutions, but also by the provisions of the Public Service Act. It states as hereunder; 13 31 .-(1) Servants in the executive agencies and Government institutions shaii be governed by provisions of the iaws establishing the respective executive agency or institution. (2 ) Without prejudice to subsection (lj public servants referred to under this section shall also be governed by the provisions of this Act. It is my considered view, that the applicant was not justified to ignore the directive of Utumishi in respect of the terms of the agreement with the respondent. It is therefore clear to me, that since the PSA extends its mandate to the servants in the government institutions, then the Public Service Commission has an extended arm to direct the FCC. That is way, being mindful of this, the FCC applied for permission in respect of the respondents agreement. Since jurisdiction is a creature of the statute, unless no clear provisions that the PSC has-no mandate to the servants of FCC, it cannot be said, it does not have, such jurisdiction just by implication. In my view section 9(3) of the PSA provides the answer. It states; Section 9 (1) N/A (2) N/A 14 (3) The Commission shaii cater for pubiic servants in the following services- (a) the civil service; (b) the local government service; (c) the health service; (d) the teacher's service; (e) the executive agencies and the public institutions service; and (f) the operational service. For the foregoing, I hold that the Public Service Commission has mandate over the FCC staff. Its directive therefore was binding on the applicant. Having determined that the PSA applied to the FCC, it is now pertinent to hold that there was a contract between the applicant and the respondent which was terminated on 11th September 2015. The last point to determine is if the CMA had jurisdiction to determine this matter? In the case of Meshack L. N Kagya v TPDC and TANROADS vs BRIGHTON KAZOBA AND ANOTHER (supra). This court held that the CMA had no jurisdiction to determine matters of civil servants. In the case of Meshack, if I got the ratio correctly, the employee was a public servant. In terms of section 30 of the PSA, such category of Public Servants have to exhaust remedies available in the PSA not before the CMA. While, in TANRODS' case, the court held, even before introduction of section 32A in the PSA, the category of the employees stated were barred from referring 15 the disputes to the CMA because they are public servants, I have to say, the situation in this case is quite distinguishable. In my considered view, not all, employees working the Public Service are Public Servants governed by the PSA. To begin with, under section 3 of the Public Service Act, a Public Servant is defined as: - "Public servant for the purpose of this Act means a person holding or acting in a public service office". The public service office is also defined under the same section as hereunder; "Public service office for the purpose of this Act means: a) A paid public office in the United Republic charged with the formulation of government policy and delivery of public service ; other than - * J i. a parliamentary office; ii. an office of a member of a council, board, panel, committee or other similar body whether or not corporate established by or under any written law; 16 HL an office the emoluments of which are payable at an hourly rate, daily rate or term contract; iv. an office of a judge or other judicial office; v. an office in the police force or prisons service; b. any office declared by or under any other written law to be a public service office" (emphasis added) I think, from the section, there are categories of employees, though in the Public Service they are not Public Servants. These are as stated under section 3 (a)(iii) of the PSA. This category of employees are paid hourly, daily or are in term contract. I have to comment here that such category of employees are not bound by section 32 A of the PSA. This means, they have to take measures including to filed disputes before the CMA. The respondent was no doubt in fixed term contracts. Even though, the 'T. " applicant in its exhibit D6, said, the applicant was in permanent term contract. This extract summaries it all: "... Kinachoombwa ni wafanyakazi hawa kubadirishiwa masharti ya ajira kutoka ya kudumu kuwa na mkataba ambapo wanatakiwa kulipwa kiinua mgongo cha asilimia 25%..." 17 From the above, it is clear in my mind that the applicant knew he was in a fixed term contract but yet, said he was a permanent employed staff. Second, as to whether, his contract had expired, this is not backed by evidence. As I said before, his contract was not terminated until on 11th September 2015, after an extra-ordinary meeting that came up with an extra-ordinary resolution to terminate him. The evidence to prove so was given by the respondent and the applicant did counter it. Events that existed before the termination date were not in way dealing with fairness of termination. It dealt with the applicants requests and the respondent's complaints before termination. That is why, the respondent referred his dispute with CMA in the prescribed time. In fine therefore, Lhold that the respondent was not absolved from referring his matter to the CMA. Therefore, the CMA had jurisdiction to it. Having stated so, 1 see no merit in the application. I dismiss it with no order as to costs. 0 A K.Rwizile JUDGE 05.08 2022 18