francis kidanga vskilimanjaro fast ferries ltd 2021 tzhcld 102 30 april 2021

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION NO. 668 OF 2019

BETWEEN FRANCIS KIDANGA......................... APPLICANT

VERSUS

KILIMANJARO FAST FERRIES LTD RESPONDENT

JUDGMENT Date of Last Order: 15/04/2021 Sx Date ofJudgment: 30/04/2021 NSA ' V', Z. G, Muruke, J, Francis Robert Kidanga, y^semp1oyed^jr^pondent on 1st October, 2013, on one year contract sul^gct for renewjjat the end of each term. On 6th April, 2017, he entered (into cohtractfwith respondent to terminate his service. He was paid his dde accordingly. However, he filed dispute at CMA claiming to b?e termihate^without any reason and without being XX, 'jv<> heard. After concl.usioftjof hearing, arbitrator dismissed applicant case for '% XX lack of merits* Same>dissatisfied applicant, thus filed present revision on grounds^staifed^at ^paragraph 9 of affidavit in support of the revision namey:- That arbitrator's decision and finding that termination was substantively fair is not supported by evidence on record. (ii) That, the arbitrator erred in law in using a distinguished president in arriving to a decision that the respondent had a fair reason to terminate the applicant. r 1 (iii) That, the arbitrator erred in law by not ordering compensation of twelve months even after holding applicant's termination was unfair. Hearing was conducted by way of written submission. Applicant was represented by advocate Wilson K. Magoti, while respondent was represented by her Principal Officer, Roze Peter Mtesigwa, Advocate. According to the CMA records, this court pleadings, and 'submission

by.;both advocates the issue for determination is whether there was contract to terminate applicant employment. M As » It is general principal of contract law tnat just as parties are free to enter into contracts; they are equally free,td*bringXieir contracts to an end by consensus. This principle is also applicable to-contracts of employment. The termination of a contract under the<common law requires genuine mutual agreement of botn(parties^and? neither party may unilaterally change his or her mind. Whensan employment contract ends so does the employment relati§hshipi\ Nbrrjially employer and employee agree to terminatetthefContract imaccotdance with their agreement. AcGordipgfetp the evidence of DW1 Ally Mbarouk Said respondent %. /A Human Resource'® Manager, applicant and respondent reached an Ax agreement tpjerminate their contract in terms of exhibit D7, as reflected in the CMA records. Applicant refuted exhibit D7 that he did not sign and that the signature is not his. With due respect, if signature in exhibit D7 is not of applicant as he claims, he ought to have mounted investigation of his forged signature. After investigation of the same, then, the report if any, would have been used to support his allegations of forged signature, otherwise allegation of forgery without any proof cannot be accepted. In 2 law forgeries and fraud not only is to be alleged, but need to

be seriously proved. It is vivid from the record that the said agreement was reduced into writing on 06th April 2017, which is the same day that parties signed as clearly shown in exhibit D7. The applicants claim's that was not given right to be heard before termination has no leg to standssince^he applicant himself signed, exhibit D7. For the purpose of clarity the'words read:-^ \% zx "Yah: Makubaiiano ya kumah'za Mkatabaf wa Ajira. Mnamo tarehe 06/04/2017 Mwajiri na Mwajiriwa waiiingia katika makubaiiano ya kumaiiza ajira kwatyjiaxya makubaiiano ambayo wameyaweka katika maandishi haya kwa ridhaa zao binafsi." I understand, once partiesshave agreedxon issues regarding terms of contract, court cannot interfere unlessxproved otherwise. It should be understood that a contractus ^promise (or a set of premises) that is legally X\ X % binding, the law wil^ompervthe^person making the promise to perform that promise. This court insisted on adhering to the terms of the contract in xlnvx her recent 'decision XhXthe case of Commercial Bank of Africa (Tanzania)? Limited Vs. Anganiie Mwankuga, Rev No. 758/2019 at Xk . h Vs paqeXwhereJtwas held that: XS X3\ Respondent Anganiie Mwankuga by accepting terms and conditions of employment contract, he voluntarily agreed to be vetted. He agreed that reference from the previous employer should be used to determine his suitability, for confirmation

of employment. This imply that if there is any negative reference, he will not pass the probation period. 3 Therefore it is crystal clear that there was prior discussion and free consent which was reduced into writing as wordings of exhibit D7 provides. What the applicant is trying to do is unilateral change of mind and after though as discussed in the case of Precision Air Tanzania Limited Vs. Gloria Thompson Mwamunyange, Rev. 292/2017 in which this court strictly prohibit unilateral change of mind after agreement between parties. // » Allowing the applicant to do so is to open the doonahd^allow irregularities. In short it was held that " It is general principal of contract law that, just as parties are \\ free to enter into contracts, they are e'qually,free'toJbring their contract to an end by consensus;. This principal is also % IK, applicable to contracts^of^mpioymenti^ne termination of contract under common iaw^requires genuine mutual agreement of both partiesand neitherparty may unilaterally change his or her mind." The advocate foXthe^applicant has submitted that, the respondent has also failed to prove-existence of investigation and existence of notice to attend diSc^i^a^^hear^ig as the burden of proving fairness of the terminatign JiesTo the employer (respondent) also keeping the records of em^oyment^Als^liGaht's advocate further submitted that the employer

also failedTo. tendedme outcome of the disciplinary hearing to show whether it was conducted or not. As correctly submitted by Rozi Mtesigwa respondent's counsel applicant counsel has misconceived facts of the current case as there was no need for the respondent to conduct disciplinary hearing, since parties had reached consensus agreement to terminate employment contract 4 which was existing. The consensus was reduced into writing and signed by both parties in terms of exhibit D7. Court of Appeal at Dodoma (unreported) in the case of Philipo Joseph Lukonde Vs. Faraji Ally Said, Civil Appeal number 74/2019, held at page 17 that, Z> where parties have freely entered into binding^agreements, neither courts nor parties to the agreement shpu!d\not\ interpolate anything or Interfere with the terms and conMions therein, even where binding agreements^were made by lay People. The mode of which applicant ,ahd*xrespondent ended employment contract (termination by agreement)\is regulated by Rule 3(2)(a) of Employment and Labour Relations (Code of Good Practice) Rules /'X of 2007 and not guided^by Rule l3(i)(2) and (3) GN 42/2007 as submitted by applicants advocate. To this court, applicant having signed exhibit D7 he is^bdundxby principle of estoppel that stops one form denying nis pwri^ previous deed done by his won consent. Thus, the applicantJsxbbund^by 'termination agreement signed by both parties. As correctly3decfdedW*arbitrator, this court sees nothing worth, interfering with'GM A debisiph, same is upheld. Thus, Revision application dismissed for lack df;m&its. Z.G>Muruke

JUDGE 30/04/2021 5 Judgment delivered in presence of Rozi Mtesigwa counsel for the 6