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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION MBEYA SUB - REGISTRY

AT MBEYA LABOUR REVISION NO 17002 OF 2024 (Originating from Complaint No. CMA/MBY/Mby/53/2021, Decision and Award of Hon. Ndonde, S. Arbitrator, Dated 28 June 2024) G4S SECURE SOLUTIONS (T) LTD….………………. APPLICANT

VERSUS CHRISTIAN NDENJE……………………...…………... RESPONDENT

JUDGMENT Date: 11 October 2024 & 22 November 2024 SINDA, J.: The respondent instituted a labour dispute before the Commission for Mediation and Arbitration of Mbeya (the CMA) claiming TZS 16,225,000/= plus subsistence allowance for breach of his employment contract by the applicant. At the hearing, the respondent claimed that the amount of TZS 500,000/= he was paid for repatriation was not enough to transport him and his family and his luggage from Mbeya to Arusha. The applicant claimed that it was agreed with respondent in 1 their settlement deed dated 1 June 2021 (the Deed of Settlement), that the applicant to pay the respondent TZS 500,000/= for repatriation costs and the amount was already paid to respondent by the applicant. At the end of hearing the arbitrator found that the respondent employment contract was ended due to retrenchment and all procedure for retrenchment was adhered to. However, the arbitrator ordered that the applicant to pay the respondent TZS 150,000/= for notice and TZS. 1,521,000/= for transportation of luggage from Mbeya to Arusha. Aggrieved with the CMA award, the applicant brought this application at hand under section 91 (1) (a) and (2), (a), (b) and section 94 (1) (b) (i) of the Employment and Labor Relations Act, No. 6 of 2019 and Rule 24 (1) (2), (a), (b), (c ), (e), (f), (g) (3) (a), (b), (c), (d) Rule 28 (1) (a), (b), (c), (d), (e ) and Rule 28 (2) of the Labor Court Rules, 2007 [G.N. No. 106 of 2007] and any other enabling provision of the Law. He prayed for the following orders; 1. That the honorable court may be pleased to partly call and revise the proceedings, the award and decision of the CMA dated 28 June 2022 Complaint No. CMA/MBY/Mby/53/2021 Decision and Award of Hon Ndonde, S, Arbitrator.

2. That, the honorable court may be pleased to grant any order it considers just and convenient to grant. 2 The applicant invited court to decide on the following issues: (a) Whether the Award is tainted with illegality on the face of record. (b) Whether the Arbitrator erred in law and fact by holding that the applicant should be paid notice despite the Applicant having already and agreed to terminal dues in the retrenchment agreement. (c) Whether the arbitrator erred in law and fact by holding that the 1,521,000 as payment to transfer his luggage despite the applicant having already signed a Deed of Settlement and agreed to TZS 500,000/= as the repatriation cost. (d) Whether the Arbitrator erred in law and facts for failure to assess and or analyze the evidence both oral and documentary tendered by the applicant henceforth reached on wrong final decision. The application was strongly opposed by the respondent through his counter affidavit. At the hearing of the application, the applicant was represented by Advocate Moses Kiondo and the respondent appeared in personal 3 unrepresented. The application was argued by way of written submission. Mr. Kiondo prayed to argue ground (a), (c) and (d) appeared in the affidavit together on whether the arbitrator erred in law and fact by awarding the applicant an addition of TZS 1,521,000 as luggage transfer cost, despite that parties

having executed a Deed of Settlement which provided for TZS 500,000 as full and final repatriation costs. He submitted that repatriation in the context of employment law encompasses all costs necessary for returning an employee to their place of recruitment after the cessation of Employment. He referred section 43 (1) of the Employment and Labor Relation Act Cap, 366 R.E 2019 (the ELRA), together with Rule 25 (1) of the Employment and Labor Relations (Code of Good Practice) Rules, G.N No. 42 of 2007 which define repatriation to includes travel expenses, subsistence, and transport of personal effects. He argued that the definition logically includes the transfer of luggage. He submitted that the Deed of Settlement provided for TZS 500,000/= as agreed amount for repatriation costs. Therefore, it was incorrect for the arbitrator to isolate luggage transfer as a separate cost while it was covered under the agreed amount. He submitted that it is a trite law 4 that the Deed of Settlement once executed is binding between parties. He referred to section 10 of the Law of Contract Act Cap 345 R.E 2019 (the LCA) which emphasizes on the enforceability of agreement entered freely and without duress. He stated that the principal of finality is the cornerstone of dispute resolution particular in labor dispute that once parties reach an agreement and execute a deed of settlement the matter is

closed. It was the applicant view that the arbitrator erred to awards TZS 1,521,000/= for luggage transfer. On ground (b) of whether the arbitrator erred in law and fact by awarding the applicant an additional one month’s salary as notice despite the existence of a valid and binding retrenchment agreed that explicitly included payment for one months’ notice which was already settled. He submitted that it is a principle of law that once parties enter into a retrenchment agreement voluntarily and in good faith such an agreement is binding and conclusive on the matters settled therein. He referred to section 10 of the LCA. He stated that retrenchment agreement in this matter is a contract that outlines the terminal benefits payable to the applicant including one month’s salary in lieu of notice. 5 That, the agreement was executed by both parties and the applicant accepted payment in full satisfaction of the terminal dues including notice, therefore it was incorrect for the arbitrator to award additional notice payment. The respondent on his reply submitted that the applicant retrenched him from employment services on the ground of operational requirements. After the retrenchment, the applicant paid the respondent TZS 500,000/= only, being bus fare for him and his family to the place of recruitment, Arusha. That, he was not paid money to transport his personal belongings to Arusha

as required by the law. He argued that the Arbitrator was justified to order further payment of TZS 1, 521,000/=. As regards to the payment of TZS 150,000/= as one month’s salary in lieu of notice, he submitted that the amount is also justified because the same was also not paid. He prayed this application to be dismissed in its entirety for being frivolous and vexation. I have gone through the court records and submission filed by parties. I find that this application can be disposed under the following issues. 6 1. Whether it was appropriate for CMA to award TZS 1,521,000/= as payment for luggage transportation separate from repatriation cost.

2. Whether it was appropriate for CMA to award 150000/= for one month’s salary in lieu of notice. Starting with the first issue, the applicant complained that the arbitrator erred to award TZS 1,521,000/= for luggage transportation separately from repatriation costs because repatriation cost includes travel expenses, subsistence and transport of the personal effect. He maintained that the parties executed a Deed of Settlement and TZS 500,000/= was the agreed amount for repatriation costs. Section 123 of the Evidence Act, Cap 6 R.E. 2022 (TEA) provides for doctrine of estoppel which states as follows: "123. When one person has, by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon that belief, neither he or his representative shall be allowed, in any suit or proceedings between himself and that person or his representative, to deny the truth of that thing.” Also, in the case of Trade Union Congress of Tanzania (TUKTA) v. Engineering Systems Consultants Ltd and Others, Civil Appeal No. 51 of 2016 [2020] TZCA 251, the court adopted the decision in the case 7 of Nairobi County Government v. Kenya Power and Lightning Company Limited [2018] KLR which considered the doctrine of estoppel and stated that: "... in the circumstances of this case, the doctrine of estoppel applies against the petitioner. The

petitioner is estopped by the said doctrine from turning around and reneging on what it had agreed and committed itself into and even performed its part of the agreement The respondent in reliance to the agreement and committed not only agreed to the arrangement and acted in reliance of the same" I have gone through the proceedings of the CMA (the Proceedings) and found a Deed of Settlement signed by both parties. In the Deed of Settlement, the parties agreed that the applicant will pay the respondent TZS 500,000/= as repatriation cost from Mbeya to Arusha. Also, there was no dispute that the applicant paid the respondent TZS 500,000/= for repatriation cost. This is revealed from the evidence of both parties in the records. In that Deed of settlement there was a clause that the employee shall have no claim against the employer regarding repatriation to the place of recruitment and upon execution of the Deed of Settlement the claim shall be marked settled. Based on the above authority, I find that the parties were bound by the Deed of Settlement. The respondent was not supposed to bring further 8 claims concerning cost for luggage because the same was covered under the repatriation cost which was already paid by the applicant to the respondent. The repatriation cost also included the costs for transportation of luggage. On the second issue, the applicant complained that the CMA

awarded payment of TZS 150,000/= for one month’s salary in lieu of notice to respondent while the same was already covered in the retrenchment agreement executed by both parties which outlines terminal benefits including one month’s salary in lieu of notice. In this case the records show that the applicant and the respondent entered into a retrenchment agreement (Annexure G4S - 3(d)) voluntarily and the respondent accepted payment in full satisfaction of the terminal dues including the notice. In that regard the arbitrator was not supposed to award the respondent an additional TZS 150,000/= for one month’s salary in lieu of notice. The retrenchment agreement between the parties must be adhered to. In line with the above analysis, I find that the arbitrator erred to award TZS 150,000/= as one month’s salary in lieu of notice and TZS 1,521,000/= for repatriation costs. I therefore set aside the arbitrator 9 award. The parties are obliged to honor their settlement deed as agreed. The application is allowed. Right to appeal is explained. DATED at MBEYA on this 22 day of November 2024. A. A. SINDA

JUDGE 10