george kariuki kimuyu vs crown secondary school 2022 tzhcld 826 26 august 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 409 OF 2021 GEORGE KARIUKI KIMUYU........... ...................... APPLICANT VERSUS CROWN SECONDARY SCHOOL...... . .RESPONDENT (From the decision of the Commission for Mediation and Arbitration of [)SM^t liaia) (Wilbard, Arbitrator) Dated 09th September, 202.1^^ in REF: CMA/DSM/ILAA@B9^02t)> JUDGEMENT 14th July & 26th August, 2022 Rwizile J This application en^n^s.<Trom the decision of the Commission for Mediation ^and wVrbitration (CMA) in Labour Dispute No. CMA/DSM/IW^9/2O2O. This court is Ccilled upon to make the following orders? i. To call for records and examine CMA proceedings, ii. To revise the order and issue appropriate remedies and iii. Grant any other relief that appears just. i It has been alleged that the applicant was employed by the respondent under a fixed term contract that commenced on 17th July, 2019 to end on 17th July 2022. The applicant's contrad: was terminated on 28th August, 2020. Not satisfied with termination, the applicant filed a labour dispute at CMA claiming for breach of employment contract. Before the CMA, the dispute proceeded exparte due to non- pearance ofztlie re^randenfe The award was in favour of the applicant) Aggrieved with the amount of compensation awarded, this application has be^pre,^ed. The application is supported by an lai^^Qfj. the applicant, stating grounds for revision as hereunder: - MJ i. Whether it was proper^fbr the^commission to rule out that the applicant is not^enh^^to the benefits claimed in his remaining period of extract of employ nt despite the fact that the mW commission ruied out that the respondent did breach the contract ^%pf empjwment with the applicant. ii. Whether it was proper for the commission for mediation and arbitration to deny the applicant some of his prayed reliefs despite the fact that the commission ruled out that the respondent did breach the contract of employment with the applicant; dean certificate of service. The hearing proceeded orally. Both parties were represented. MS Miriam Moses appeared to hold briefs of Mr. Pater Kubaja for the applicant and Johnstone Fulgence was for the respondent. Miss Miriam submitted that the applicant was employed on 17th July, 2019 for a contract of 3 years with salary of TZS. 1,700,000,00. He was terminated on 06th July, 2020 and that marked theSremaining^o^riod of the contract to be 24 months. She continued to argue that the permit expired^on 29th June, 2020 and the employer did not apply for^nojfiefeo'ne.jshe stated that due to outbreak of covid-19, schools were crosed'from 17th March, 2020 and when the applicant came to ^ob on 29th June, 2020, he was not allowed to enter the schj^^rtiises. The applicant filed a dispute at CMA claiming fQr^im^^^^riod of contract, salary arears, notice, the total amount be^nc^l5^9J00,000.00 Miss ^nrowWomitted that the CMA held, there was termination due to expiry of the contract for want of work permit as the same needed a permit from the employer. In her view, tie applicant was supposed to be paid the 24 months remaining in his contract. She then prayed for the award to be set aside and order payment of 24 months. Mr. Fulgence in reply, submitted that the applicant as a Kenyan citizen needed to have permit to work in Tanzania. He continued to argue that, the respondent's managing director died due to covid-19 and he was the custodian of all documents. Due to outbreak of covid-19, the school did not have capacity to do other developments, except paying salaries only. The learned counseUfurther argue that the applicant did not receive any salai$>until June. According to him, before the CMA, there was no evidence^tharh^was terminated. He was then granted salaries for the periOT^theiSfhool was closed, leave and notice. In his view, the CM^awarded thp applicant what was due and reasonable. g> \x 11 In a rejoinder, Miss^^ferpSeitera what was submitted in the submission^mcljidf^^^ After goih^throughssubmissions of the parties, it is important to consider Whether the contract was breached or ended due to expiry of work permit and to what reliefs are parties entitled to. On dealing with the first issue, there is no dispute that the applicant was the employee of the respondent. The employment contract was of three years. That the applicant was of the Kenyan nationality working in Tanzania. The law governing non-citizens to work in Tanzania, provides that the foreigners should not work in Tanzania without a residence and work permit. Exhibit G2 as collectively admitted show that the applicant had a Business Pass having three months permit from 16th March 2020. The applicant was permitted to work temporarily as a consultant wifh^CrowmSecondary School. He also had a license to work in Tanzanians a teacher from 04th November, 2019 to 04th November, 2C21.^hile exhibit G3 shows the contract between the applicant and thg^ppndenr commenced on 17th Based on those facts, section 27(5)'"b: the National Employment and Promotion Service ActMr/^2^3 R.E. 2002] provides that: "A vloQkfpermitjecommended under this section shall be in such for^a§Jha)&be prescribed and shall be for such duration and '■subjectto such conditions as may be stated in the work permit." This shows, the foreigner can work in Tanzania if he holds a permit. Exhibit G2 which is the business pass permitted the applicant to work in Tanzania with the respondent only for three months from 16th March, 5 2020 until 12th June, 2020. It was also plain under clause 3 that it was strictly non expendable or renewable. The question is, did the parties have authority to sign employment contract contrary based on the permit provided. First, the duration of the permit was different from the employment contract entered^and also the business was different from the one permitted. Whilelie waS|permitted Exhibit G2 shows, there was a permit given lay. the Ministry of Education, 04th November, 2019 to 04th November^2021. Section 27(1) of the Act, states that: - d? "Every appiica^^^fgrtwork permit shall be made either by the the^fbteign^to the commissioner and shall be in such form as may fye p^s^bed." This shows that the person mandated to issue permits to work in Tanzania is the Commissioner. Section 2 of the Ad: states; The Commissioner "Means the Commissioner for Labour and includes a person to whom the Commissioner has delegated his power to perform any of his function under this Act" In absence of the permit legally issued by the competent authority, it is apparent that the applicant had no valid permit and so was not competent to work in Tanzania. For that matter, the contract entered etweerelhe applicant and the respondent was void. Section 2(l)(g) of the^Law^pf Contract Act, clearly states that: -An agreement not erforcebbiefayjaw is said to be void." I think, since the parties entered into a contract that was proved conrravenea me law. i^m^view, it cannot be enforced under the Employment and Lgbo^^^tions Act oi any other laws of Tanzania. On the allegatiorrthatathe respondent did not provide the permit to the applicant:7 expiry. The law does not absolve any party. Both, the emplo^e^iaemployee are under obligation to apply for the permit. This has been clearly stated under section 27(1), as shown before. Further, section 27(2) criminalizes such acts as it provides; (2) Any person who contravenes the provisions of this section commits an offence and is liable on conviction, to a fine not less than one million shillings or to imprisonment for a term not less than six months or both such fine and imprisonment." Based on the above findings, I hold that the applicant was not mandated to work in Tanzania. As the first issue dsposes of the matter, I find no reason to deal with other issues. In the premises therefore, the CMA award is quashed. Each party to bear its own costs A.K. Rwizile JUDGE 26.08.2022 8