20110406 TZHC Dar es Salaam

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AT DAR ES SALLAM CIVIL APPEAL NO. 176 OF 2008 GEMA SECURITY SERVICE ........................APPELLANT

VERSUS PAUL GERVAS DUWE ...........•...........•....... RESPONDENT '._) JUDGMENT MWARIJA, J. The respondent, Paul Gervas Duwe through- the • Labour Officer, instituted in the District Court of Ilala an employment cause against the appellant, the· Director, Gema Security Services Ltd.-the claim by •;the respondent j was for payment of Shs. 89,600 / = in lieu of two years' leave and Shs. 1,227,650/= for 4,215 overtime hours. The trial District Magistrate found that the respondent was entitled to an annual leave but was not given the same for two years claimed. He was also found to have worked 1 ----- --- --- ~-- - -- ---- outside the normal working hours without being paid for the 4,215 hours worked. The trial Magistrate thus gave judgment for the respondent and ordered the appellant to pay the amounts claimed. Aggrieved by that judgment, the appellant preferred this appeal. In its Memorandum of Appeal, the appellant who appeared tho:ugh its Chief of Personnel and Administration Officer, Mr. Mohamed Ally, raised for grounds of Appeal which were to the effect that the trial District Magistrate erred in law and fact in : ~ (1). Entertaining the case which was filed under the repealed Employment Act, Cap. 366. (2) Ignoring to act on the preliminary objection filed on 13 th November, 20QZ~ (3) Basing the decision on the leave · and overtime claims which were not specific and

clear. 2 (4) Entertaining the suit which was filed in court on 12 th September, 2007 after commenceme_nt of the Employment and Labour Relations Act, 2004. When the appeal was called for hearing on 29/9/2009, I ordered that the ·same be argued by way of written submissions. According to the schedule, the appellant was required to file its written submissions on· 13/10/2009. The respondent was to file his replies on 3 / 11 / 209 · and rejoinder, if any,· by the appellant was to be field on 13/11/2011. The appellant filed what it considered to be its submissions on the scheduled date. The respondent did not file any replies thereto. I shall therefore proceed to decide ·the appeal on the basis of the submissions filed by the appellant. In its document which was intended to be written submissions, the appellant merely repeated the· four grounds of appeal . stated in · its Memorandum of Appeal. It reiterated the points which form the grounds of 3 - - -- , - - its dissatisfaction with the trial court's judgment. In grounds No. 1 and 4, the appellant's co:n-tention is that the employment cause was wrongly filed and entertained in the District Court because at the time when the case was _instituted, the Employment Act Cap. 366 had_ been repealed and replaced by the Employment and Labour (~ C) Relations Act, No. 6 of 2004. Further, in ground No. 3, it was contended that although that

point was raised as a preliminary objection, it was not decided by the trial court. To begin with ground No. 2, it is true that the appellant filed a notice of preliminary objection on 13 th November, 2007 which was to the effect that the trial court did not have jurisdiction · to entertain the suit on the··· ground that the same was instituted after the Employment and Labour Relations Act 2004 had come into force. That contention by the appellant·-·is· not correct ... According to the proceedings, that point was argued in the course of 4 ..... ; hearing and the finding was embodied in the judgment. In my considered view although the trial District Magistrate did not determine the preliminary objection first before he proceeded to hear the case the procedure which he adopted did not occasion any injustice to the parties. This is because an order overruling a preliminary objection may be S)) ·- --~•' made 'and tlie reasons thereto can later be embodied in the judgment. That . ground of appeal· is therefore without merit. Ground No. 3 of the appeal is equally without merit. According to p~agraph 3 (a) of the complaint the respondent· claimed for two years unpaid leave entitlement. In his evidence· he said that although he was entitled to be paid a fare annually when going for leave, the appellant did not pay him for the two years within which he was in the employment of the

appellant. He also claimed under paragraph. 3(b) of the complaint and in his evidence that he 5 was not paid overtime for the whole period of two years despite the fact that he worked for 4,215 hours of extra time. The appellant did not seek for further and better · particulars of those claims. It's representative did, instead, adduce evidence to the effect that the respondent was paid the claimed amount of overtime entitlement through his monthly salaries. That shows that the appellant properly understood the nature of the two claims, a claini ·for an amount payable as leave entitlement for two years, and an amount payable for overtime work for 4,215 hrs. It cannot now be heard to say that the claims were not specific and clear. Raising that point at this stage· amounts to an afterthought. Coming now to grounds No 1 and 4, it is true that the Employment Act, the Act under which the claim was brought, was repealed by the Employment and Labour 6 Relations Act No. 6 of 2004 which came into force on 20 th December, 2006. Following the repeal of the Employment Acf and after enactment of Employment and Labour Relations Act, followed by coming into force of the Labour Institutions Act, No. 7 of 2004, adjudicative jurisdiction of labour matters was exclusively vested into the High Court, <;?) ·Labour Division. That appears to _be the basis of the appellant's contention in grounds No.

1 and 4 of appeal that the trial magistrate erred 1n entertaining the respondent's claim. That point which was raised by the appellant in the District Court was rightly dismissed by the trial District Magistrate. S. 103 of the employment and (). 1 .J Labour- Relations Act which repealed, among other, the Employment Act, introduced savings and transitional -p~ovisions which were set out in the 3 rd · schedule thereto. Item 11(2) of that schedule provide~ as follows: - . 7 --~---i----- - - " Any claim arising under the repealed laws before the commencement of this Act shall be dealt with as if the· repealed laws has not been repealed. " There was no dispute that the claim arose in October, 2006. According to the labour officer's report the respondent's employment was terminated on 8/3/2006. That was before the commencement of the Employment and Labour Relations Act. As stated by the Labour officer in paragraph. 6 of the report the refore, under the above cited provision the case was to be dealt with under the Employment Act. For that reason, I find the appellant's contention that . the claim was wrongly filed and 1~-, entertained under the repealed Employment Act to have I,~) ,......,.,. been misconceived. Grounds No. 1 and 4 of appeal are · therefore found to be lacking in merit. 8 In the final analysis and on the basis of the fore going reasons, the appeal is accordingly dismissed. Since this is a labour dispute,·! niake no _order as to costs. A.Giwarija '01 ' . ..../

JUDGE 6/4/2011 06/04/2011 ·coram: Hon ·A.G. Mwarija, Judge () ·· For the Appellant - \_. ..,...,,. ) - . For ·the Respondent - ... Absent CC: Butahe Judgment delivered. 9 Order : Parties to be notified of the judgment . . a£} . A. d.1\1warij a

JUDGE 6/4/2011 -~,-.--·~.~-.-.,---r------:~- -~--, - -.,·.,,-'• ~ ,, --··7e•• -- 10