feza international schools vs dorcus w nkoyi another 2020 tzhcld 147 10 july 2020

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION NO. 416 OF 2019

BETWEEN FEZA INTERNATIONAL SCHOOLS... ....... APPLICANT

VERSUS DORCUS W. NKOYI...................... 1st RESPONDENT LENJEN CO. LIMITED................... 2nd RESPONDENT

JUDGMENT Date of Last Order: 14/05/2020 Date ofJudgment: 10/07/2020 S.A.N. Wambura. J. Aggrieved by the award of the Commission for Mediation and Arbitration [herein after to be referred to as CMA] delivered on 27/03/2019, the applicant f e z a i n t e r n a t i o n a l SCHOOLS has filed this application under the provisions of Sections 91(l)(a), (2)(b)(c) and 94(l)(b)(i) of the Employment and Labour Relations Act No. 6 of 2004, Rules 24(1), (2)(a)(b)(c)(d)(e)(f), (3)(a)(b)(c)(d), (ll)(b) and 28(l)(d)(e) 1 of the Labour Court Rules, GN No. 106 of 2007 praying for following Orders (a) That this Honourable Court be pleased to call for records on proceedings for Labour Dispute No. CMA/DSM/KIN/R.1300/17/36 between Dorcus W. Nkoyi and Lenjen Co. Limited & Another decided by Hon. M.S. Mbena, Arbitrator on the 22ld March, 2019 at Dar es Salaam and revise the proceedings, orders and award, and quash the orders and award therein and or make such orders as it deems fit. (b) Any other reiief(s) that this Honourable Court may deem fit and just to grant The application was supported by a sworn affidavit of Alfred Mbago the Principal Officer of the applicant as indicated in the notice of application. The 1st respondent d o r c u s w . n k o y i challenged the application in her counter affidavit while the 2nd respondent did not file a counter affidavit. With leave of the Court, the matter

was disposed of by way of written submissions. I thank both parties for adhering to the schedule and for their submissions. Submitting on the two grounds filed for revision the applicant stated that the 1st respondent was initially employed by the applicant as a nurse. Later on the 2nd respondent took over the applicants obligations in relation .'*1 to all the employees as per Exhibit LC1. It was therefore wrong for the Arbitrator to conclude that the 1st respondent was employed by the applicant whereas there was evidence to prove the contrary. That since the 2nd respondent undertook the liability of the applicant as per their agreement, then the 2nd respondent was legally liable to pay for the award being Tshs. 9,573,808/= and not the applicant. In reply the 1st respondent averred that:- (i). She was employed by the applicant as per Exhibit D1 and that the arrangement between the applicant and the 2nd respondent was not known to her. That according to Exhibit LC1, the 2nd respondent was to be a mere managing agent and the 1st respondent was to abide to the rules and policies of the applicant. That the Arbitrator was convinced that the criteria as to who is an employee as provided for under Section 61 of the Labour Institution Act, 2007 was met so it was right for him to conclude that the applicant was the employer of the 1st respondent. Therefore she should not be left to

escape from her responsibilities. (ii). That the provisions of Section 40 of ELRA clearly provides that an employer who has caused the employment of the employee to be terminated unfairly has to be condemned for among others to pay compensation. So again the applicant cannot escape from such an obligation. In his reply to the applicant's submissions the 2nd respondent prayed to adopt the contents of the counter affidavit sworn by Jennifer Mmasi at CMA and submitted that:- 4 (i). The 1st respondent was employed by the applicant as of 01/08/2016 up to when she was terminated. That she was controlled, supervised and administered by the applicant who also provided her with work equipments as a nurse. That they were contracted by the applicant to provide support and advise the applicant in respect of legal and human resources practice. The legal position and responsibilities of the applicant as an employer never changed as per Section 61 of LIA. (ii). That the applicant has not challenged CMA's award nor the procedures followed meaning he accepts that it was well handled. Therefore the award was appropriately procured. They thus prayed for the application to be quashed and the award not to be revised. It is worth noting that the 2nd respondent's counter affidavit filed at CMA cannot be used at this Court for after being served with a copy of the application they had to file another

counter affidavit. Now having gone through the record it is obvious that I am supposed to respond to the two issues raised by the applicant as there is no dispute that the 1st respondent was unfairly terminated. The issues are:- (i) Whether it was legally proper for the Arbitrator to conclude that Dorcus (1st respondent) was employed by the School (applicant). (ii) Whether it was legally proper for the Arbitrator to Order the School (applicant) to pay Dorcus (1st respondent) the sum of Tshs. 9,573,808/=. Infact after deciding on the 1st issue then the 2nd issue is an automatic response to it. It is on record that the 1st respondent was employed by the applicant (School) on 01/08/2016 as per Exhibit Dl. The Applicant and Ishik Medical and Education Foundation entered into a contract on 01/06/2016. The specifications of the work as provided for under Item 1 includes:- 1.1. The parties agree that the general scope and results of the Services to be completed by Lenjen Company Ltd shall be and only be on the following Human Resource Related areas. 6 Transfer o f Employers Liability, Recruitment, Payroll, End Service, Final Dues and Severance processing. 1.2. Ishik Medical and Education Foundation should be informed in all cases related to Recruitment, Payroll, End Service, Final Dues and Severance processing before payments to be done to Lenjen Company Limited. 1.3. In case o f

termination of any worker the time will only be one month from first alerts from Ishik Medical and Education Foundation. As the applicant is one of the Institutions so covered the 1st respondent signed another contract of employment with the 2nd respondent on 05/10/2017 (LC1). On 06/10/2017, the applicant wrote a letter to the 2nd respondent complaining of the performance of the 1st respondent calling for her suspension. On 13/10/2017 the 2nd respondent wrote a letter to the 1st respondent notifying her to attend a disciplinary hearing. It was scheduled to take place on 18/10/2017 as per Exhibit D3. However, the said hearing was not conducted as the applicant did not enter appearance. The 1st respondent was terminated orally by the Principal of the applicant's School. She was asked to handover the office keys, which she did and left. It is on record that they had never told her that they were not satisfied with her performance nor warned. She knew of the same when served with a letter of termination which if tendered at CMA, I was not able to allocate. From the above facts it is obvious that though the 1st respondent signed another contract of employment with the 2nd respondent, the same only lasted for thirteen (13) days. That it was the 2nd respondent who was paying her salary was disclosed to the 1st respondent by the applicant. However, the 2nd respondent is disputing the

same. Be it as it may, it was the applicant who served her with letters of employment and termination, meaning that the applicant was the employer of the 1st respondent as per Section 61 of LIA. According to the record she was hardly supervised by the 2nd respondent. I thus find nothing to fault the Arbitrator on this finding. Since it was the applicant who employed and terminated the 1st respondent, then they are the ones who are supposed to pay her the 8 decretal award. If at all there are internal arrangements between the applicant and the 2nd respondent that is for them to sort out. I thus uphold CMA's award and dismiss the application for want of merit. S.A.N.fWarntWa 10/07/2020

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION NO. 416 OF 2019

BETWEEN FEZA INTERNATIONAL SCHOOLS.................. APPLICANT

VERSUS DORCUS W. NKOYI.................................1st RESPONDENT LENJEN CO. LIMITED........................... 2nd RESPONDENT Date: 10/07/2020 Coram: Hon. W.S. Ng'humbu, Deputy Registrar Applicant: Absent For Applicant:. Respondents: For Respondents: Mr. Sylvester Sebastian Advocate for the 1st respondent also holding brief for Advocate Allen Mchaki for the 2nd respondent. CC: Lwiza COURT: The Judgment delivered this 10th day of July, 2020 in the presence of Mr. Sylvester Sebastian Learned Counsel for the 1st respondent who is also holding brief for Mr. Allen Mchaki Learned Counsel for the 2nd respondent and in the absence of the applicant is certified to be the true copy of the original. W.S. Ng'humbu

DEPUTY REGISTRAR 10/07/2020