JUDGMENT FREZ ADAM MWANGWALE

THE UNITED REPULIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY

AT MBEYA APPLICATION FOR REVISION NO. 1944 OF 2024 CASE REFERENCE NO. 20240202000001944 (Originating in Labour Dispute No. CMA/MBY/Mby/09/2021/ARB.04 in the commission for Mediation and Arbitration of Mbeya) FREZ ADAM MWANGWALE ........................................................ APPLICANT

VERSUS ARCH DIOCES OF MBEYA ...................................................1ST RESPONDENT PANDAHILL SECONDARY SCHOOL ................................... 2ND RESPONDENT

JUDGMENT Date of hearing:03/09/2024 Date of judgment: 24/10/2024 NONGWA, J. The applicant worked with the respondents as a teacher on a two- fixed years’ term basis. The first contract lasted from 2017 to 2019 and the second from 2019 to 2021. He was served with notice of expiration of the contract. Believing that his employment was unfairly ended on 1/2/2021, the applicant filed a labour dispute with the Commission for Mediation and Arbitration for Mbeya registered as CMA/MBY/Mby/09/2021/ARB.04. In the CMA form 1 nature of the dispute was indicated to be for application/interpretation/implementation of any law or agreement relating to employment, tort, breach of contract and unfair labour practice. In his evidence in the CMA, the applicant stated that he had subsisting contract with the respondent which was entered orally with the head master of the second respondent. He stated that he got the employment from the government but turned it down after the headmaster promised to work with the respondent until his retirement. Sometimes was called in disciplinary hearing for misconduct in which the head master said he was a good man and could not do that. Surprisingly on 4/2/2021 was served with notice of expiration of the contract. Thus, claimed compensation for unfair labour practice for 300 months, severance pay and compensation in lieu of notice. The respondent denied the claim

by the applicant, they adduced evidence that the respondent was employed on fixed term basis which ended on 1/2/2021. That out of courtesy on 29/12/1020 they served the applicant with notice of expiration of the contract. The respondents also denied existence of oral contract with the applicant, hence prayed the claim to be dismissed. Upon hearing both sides, the arbitrator was satisfied that the applicant had failed to prove his claim. The arbitrator found that the fixed term contract ended by default and there was no evidence on oral contract and the claims by applicant was dismissed. Dissatisfied, the applicant has filed this revision to set aside the award of the CMA on the follows issues; i. Whether the arbitrator rightly analysed evidence and exhibits on record and whether the award was properly procured ii. What was the nature or type of the contract at the time the employment relationship between the parties ended iii. Whether there was breach of contract, unfair practice or negligence on part of the respondents iv. Whether the applicant justified the remedies he claimed. When the application came on for hearing both parties were represented. For the applicant appeared Mr. William Mambo whereas for respondent Mr. Gerald Msegeya, both learned counsels. Parties chose to dispose the appeal by filing written submission and they conformed to scheduling order. In this

submission, Mr. Mambo acknowledge that had worked with the respondent for two years fixed term contract, the last running from 1/2/ 2019 to 1/2/2024. That applicant’s last contract was renewed by default because was served with notice three days after expiration of the contract, 4/2/2021. Further submission was that the applicant concluded oral contract with the respondent after the head Master of the second respondent had promised that he would work until he retires. The promise made the applicant down the government employment. Counsel stated further that exhibit RX2 and RX3 contained the truth on existence of oral contract and that it cannot be contradicted with other evidence. He supported the argument with the case of Lusekelo Emmenuel vs Mbeya Cement Co. Ltd, Labour Revision No. 67 of 2017, HCT at Mbeya (Unreported). Mr. Mambo went on to state that there was reasonable expectation of renewal of contract and referred to Rule 4 (5) of the Employment and Labour Relations (Code of Good Practice) Rule, 2007, G.N. No. 42 of 2007 (the Code of Good practice). To build the point it was argued that the previous contract was also signed three months after its expiration. Counsel prayed down the reason of economic problem as basis not to continue with the applicant as was not substantiated. Another submission was that there was unfair Labour practice, the argument was based on oral

contract which subsisted making it wrong to terminate the applicant before his retirement. Counsel submitted that had the applicant accepted the government employment he would retire in 2044. The argument was supported by the case of Agness B. Ruhere vs.UTT Microfinance Plc, Labour Revision No. 459 of 2015, labour Division (unreported) on what amount to unfair labour practice and sections 3(a)(b) on objective of the labour laws. On fair procedure submission was based on late service of notice of expiration of contract which he submitted, the respondents did not prove if it was served in time to the applicant. Regarding refusal to grant the remedy the applicant had claimed, counsel for the applicant submitted that the applicant had proved his claims. Finally prayed the application to be granted and the award to be quashed. Responding to the above, Mr. Msegeya submitted that the applicant was served with notice of expiration of the contract on 29/12/2020 and was paid all of his entitlement as per contract. Counsel refuted the claim that there was oral contract with the respondents, it was argued that exhibit RX2 and RX3 did not prove that there was oral contract between them. He referred to section 14(1)(a) (b) (c) of the ELRA on types of contracts. He contended that in fixed term contracts there is no necessity of notifying the other party on expiry of the contract. In support,

counsel cited the case of Mtambua Shamte & 64 Others vs Care Sanitation & Suppliers, Revision No. 154 of 2010, Labour Division (Unreported). Counsel reminded parties that written document cannot be substituted with oral accounts. Further submission was that claim in the CMA was on breach of contract and not termination of employment. Counsel stated that there was no proof that the respondent was given permanent employment and would not be proved by exhibit RX2 and RX3. All cases relied by the applicant were distinguished with the present case. On breach of contract, Mr. Msegeya submitted that there was no evidence of existence of contract which was to end in 2044 and capable of being breached by the respondents. That the issue of reasonable expectation and permanent employment was not raised in the CMA. Counsel added that per clause 3 (b) of exhibit PY1 it was the employee who had to apply for extension of contract to the respondent two months before the end of subsisting contract. On unfair labour practice, counsel submitted that it was not proved and that principles of unfair termination do not apply to fixed term contract. The court was referred to the case of Anzikal Joseph Lyimo & Others vs Wildlife Conservation Society, revision No. 27 of 2015, HCT at Iringa (Unreported). Regarding reliefs, Mr. Msegeya submitted that the applicant was paid gratuity as per agreement and

the rest claim was not grantable as the employment of the applicant came to an end on default, that is expiration of agreed time. Having considered record and rival submissions, the issue for my determination is whether this application has merits. I prefer to start with submission that the applicant had reasonable expectation. In response it was stated that it was a new issue not pleaded in CMA Form 1. It is settled that parties are bound by their pleadings, in labour disputes CMA Form No. 1 constitutes a pleading. See Pius Secondary School vs Obadia Mwambapa, Civil Appeal No. 161 of 2021 [2024] TZCA 146 (1 March 2024; TanzLII). As indicated in CMA Form No. 1, the claim was for application/interpretation/implementation of any law or agreement relating to employment, tort, breach of contract and unfair labour practice. Going by pleading of the applicant reasonable expectation was not pleaded, no evidence was led by the applicant and the arbitrator did not discuss it in the award. Hence, I agree with the respondent’s counsel that argument on reasonable expectation of renewal of contract is extraneous to the CMA Form No. 1 and has been raised at revision stage, the act which is always discouraged. Coming to oral contract, the applicant relied on exhibit RX2 (government employment offer) and exhibit RX3 (proceeding of disciplinary hearing). From the two documents the applicant

contended that there was oral contract with the head master up to his retirement that is 2044, the reason turned down the government employment. The respondent had a contrary view, first that exhibit RX2 was best known to the applicant and exhibit RX3 was statement of the applicant. Having considered the arguments of the parties, there was no foundation laid by the applicant to prove that there was oral contract or any promise to enter into permanent contract as alleged. Although it may be true that the applicant was offered employment with the government as shown in exhibit RX2 but that is not proof that he was offered contract with better terms by the respondents which made him turn down employment offer from the government. Regarding exhibit RX3 is of no assistance to the applicant because it does not constitute an offer of the contract but that the applicant was once summoned to attend disciplinary hearing. In short there is no any evidence stipulating terms and conditions upon which the allegedly oral contract was built. Even assuming that the applicant is correct, ought to have abided to the conditions set out in clause 3 of the employment contract (exhibit PY1) to be discussed in here later. Coming to late service of notice of expiry of the contract (exhibit PY4), the applicant submitted that was served on 4/2/2021 three days after expiration of the contract. He imported

experience of the previous contract which was signed three months after its expiry. On their part the respondents have submitted that notice was served to the applicant on 29/12/2020. After perusing the record, the applicant is contradicting himself, CMA Form No. 1 in item 3 on nature of dispute, when dispute arose is indicated as Monday 04th January, 2021. It shows it was filled and signed on 29/1/2021 and was presented for filing in the CMA on 1/2/2021. During hearing the applicant testified that notice was served to him on 4/2/2021. Looking CMA Form No. 1 and evidence of the applicant, one will find that the applicant was telling lies, the settled law is that a witness who tell lies his evidence cannot be acted upon. Confronted with testimony of witness which contains lies, in Pembe Abdallah Mkali vs Republic, Criminal Appeal No. 640 of 2022 [2024] TZCA 676 (1 August 2024; TanzLII) the court stated; ‘... a witness who tells clear lies, as opposed to minor acceptable inconsistencies because of lapse of time or human nature of being prone to error, is not a credible witness and no court should believe anything that the witness states in his evidence .... If a person clearly lies on one aspect, no court has ability to guarantee reliability of any other part of such witness's evidence.’ This matter is not exception to the above law, if a accept that the applicant was served with

notice of expiration of contract on 4/2/2021 while had oral contract he had entered with the head master, then common sense tell it is was impossible to file the dispute on 1/2/2021 before being served with notice of expiration of the contract. In that accord I accept evidence DW1 that applicant was served with notice on 29/12/2020 which is nearly to the information contained in CMA Form No. 1 found in record. The above discussion would automatically render submission on renewal of the contract by default worthless, however for purpose of completeness, I take trouble to look on the law vice versa evidence. It is agreed that the applicant had fixed term contract of two years which started on 1/2/2019 and was to end on 1/2/2021. On how the fixed term contract terminates, rule 4 of the Employment and Labour Relations (Code of Good Practice) G.N. No. 42 of 2007, it provides; (1) An employer and employee shall agree to terminate the contract in accordance to agreement. (2) Where the contract is a fixed term contract, the contract shall terminate automatically when the agreed period expires, unless the contract provided otherwise. (3) Subject to sub-rule (2), a fixed term contract may be renewed by default if an employee continues to work after the expiry of the fixed term contract and circumstances warrants it.’ From the above, fixed term contracts terminates automatically unless

the contract provides otherwise. Exhibit PY1 relied by both parties, particularly clause 3 parties agreed as follows; ‘3(a) the contract is valid for a period of two (2) years running from the commencement date. Accordingly, there shall not be automatic continuation after its expiry. (b) if the employer wishes to work with Pandahill secondary school after expiration of the previous one, he/she shall be required to apply for another contract in writing at least two months before the expire of this contract. such other contract may be entered into only upon mutual consent of parties.’ What I gather from the above clause is that paragraph (a) foreclosed automatic renewal of contract, unless the employer continues to work, which will amount to renewal of contract by default as provided by the law. Further that to continue working with the respondents was at the will of the applicant who had to initiate negotiation of the new contract at least two months before the subsisting contract expires. In this case, there is no iota of evidence that the applicant continued to work after 1/2/2021 nor that he applied for extension of the contract as agreed. The fact that the respondent served him with notice of expiration of contract although not provided in the contract, in my view was an eye opener to the applicant to exercise his opportunity to open negotiation and discussion of a new

contract with the respondents, he did not utilize it. In absence of evidence that the applicant continued to work after 1/2/2021, the arguments on renewal by default has no place. Leaving aside the above, I have taken time to study the record to see if there was any unfair labour practice. Under our labour laws, the phrase unfair labour practice is not defined but is any unfair act or omission that arises by the employer or labour organisation to the detriment of rights of the employee or employer. The Supreme Court of Ghana in Brown Vrs National Labour Commission and Another [2019] GHASC 43 (19 June 2019; GhanLII) outlined some acts which constitutes unfair labour practice to include discrimination, intimidation, dismissal or threatened dismissal of any worker because of his membership or holding of office of a trade union; or any act calculated to prevent a worker from joining, continuing his membership or holding office of a trade union. From the above after considering record from the CMA, I have failed to grasp any act by the respondents which can be regarded as unfair labour practice. According to evidence in record, the applicant had fixed term contract with the respondents which was to end on 1/2/2021, the day the dispute was filed in the CMA. Nothing was put in evidence by the applicant which one way or another can be regarded as unfair labour practice. The matter was

worsened by lack of facts in the CMA Form No. 1 building up the cause of action of the applicant. It seems the applicant was not sure with his claim the reason he mixed up unrelated cause of action. It is inconvincible how can a cause of action of tort be mixed with breach of contract and bad enough without giving facts which explains the cause of action. There were no such facts which was outlined by the applicant to sufficiently demonstrate nature of the dispute, thus to understand the what the applicant meant had to wait until trial which in my view was not proper. From the above discussion, I find nothing to fault the award of the arbitration as was based on proper application of the law to the evidence adduced. In the end, this the application has no merit, I hereby dismiss it in its entire. Being a labour dispute no order as to costs. V.M. NONGWA.

JUDGE 24/10/2024 Dated and Delivered at Mbeya this 24th October 2024 in presence of Mr. Gerald Msegeya counsel for Respondents and absence of the parties. V.M. NONGWA

JUDGE