GEORGE MSANDI V

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM REVISION APPLICATION NO. 27199 OF 2024 (Arising from an Award issued on 24/10/2023 by Hon. Wilbard, G.M, Arbitrator, in Labour Dispute No. CMA/DSM/KIN/656/2022/19/2023 at Kinondoni) GEORGE MSANDI ........................................................................APPLICANT

VERSUS PERICANS AT LAW ........................………………………………….RESPONDENT

JUDGMENT Date of Last Order: 21/02/2025 Date of Judgment: 25/03/2025 B.E.K. Mganga, J Brief facts of this application are that, on 1st August 2021, Pelicans at Law, the abovenamed respondent, entered three years fixed term contract of employment with George Msandi, the abovenamed applicant. In the said three years fixed term contract of employment, applicant was employed as Human Resource Manager and was stationed at the respondent’s client’s office known as Princess Leisure (T) Limited. It is also undisputed by the parties that, respondent had retainer agreement with the said Princess Leisure (T) Limited for provision of both legal and human resources services. It is undisputed by the parties that, applicant worked for eight (8) months at the said Princess Leisure (T) Limited. 1 The beautiful relationship between the two, turned ugly, after the said eight (8) months of employment when applicant received a WhatsApp message from the respondent. It was alleged by the applicant that, through the said WhatsApp Message, respondent terminated his employment. Based on the said WhatsApp Message, applicant alleged that respondent breached his employment contract. Based on the foregoing, on 22nd November 2022, applicant filed Labour dispute No. CMA/DSM/KIN/656/2022/19/2023 before the Commission for Mediation and Arbitration (CMA) at Kinondoni alleging that respondent breached the

contract of employment. In the referral form (CMA F1) applicant indicated that he was claiming to be paid TZS 30,000,000/= being salary payment, damages, and compensation for breach of contract. On 24th October 2023, Hon. Wilbard, G.M, Arbitrator, having heard evidence of the parties dismissed the dispute on ground that, applicant failed to provide sufficient evidence to prove breach of contract by the respondent and that, respondent proved that there was no breach of contract of employment. Aggrieved by the said award, applicant filed this application for revision raising six (6) grounds namely: - 1. The arbitrator erred in law and facts for unreasonably failing to analyse exhibit G2. 2 2. The arbitrator erred in law and facts for unreasonably failing to analyse exhibit G3.

3. The arbitrator erred in law and facts for finding out that there was no breach of contract by the respondent.

4. The arbitrator erred in law and facts for finding out that the respondent managed to establish that there was no breach of contract.

5. The arbitrator erred in law and facts for finding out that the complainant failed to provide sufficient evidence to prove breach of contract by the respondent.

6. The arbitrator erred in law and facts for finding a screenshot of the filled cheque not delivered to the application amounted to salary payment. Respondent opposed this application by filing both the Notice of Opposition and the Counter affidavit. By consent of the parties, this application was argued by way of written submissions. In complying with the court orders of filing written submissions, applicant enjoyed the service of Mr. Paschal Mugisha Wenfurebe, advocate, while respondent enjoyed the service of Mr. Robert Peter Msuya, advocate. In his written submissions, counsel for the applicant consolidated the aforementioned grounds into two namely: - 1. That arbitrator erred in law and fact for failing to analyze exhibit G2 and G3.

2. That the arbitrator erred in law and facts holding that the there was no breach of employment contract by the respondent. 3 Submitting in relation to exhibits G2 and G3, counsel for the applicant argued that, the words used in the said exhibits amounted to termination of his employment contract hence breach of contract by the respondent. Counsel for the applicant made several references to various sources as to what amounts to breach of contract to criticize the arbitrator who found that applicant failed to prove by evidence that respondent breached his contract of employment. Counsel for the applicant strongly submitted that, the words “we will not be unable to make payment for service starting from 1st November” amounted to breach of contract of the applicant hence the latter proved his case. He added that, that sentence amounted to termination of employment contract of the applicant because, the latter stayed without being paid salary. In respect of the 2nd consolidated ground relating to breach, counsel for the applicant cited the case of Good Samaritan vs Joseph Robert SavariMunthu, revision No. 165/2011 and submit that, unlawful termination of contract of employment, which is contrary to agreement without any reason, amounts to breach of contract. He also submitted that, premature termination of fixed term contract without consent of the employee, is wrong and unlawful

unless lawfully done according to the agreement, amounts to breach of contract of 4 employment. To bolster his submissions, counsel for the applicant cited the case of Swisscontact vs Philipo Namanga Bruno and 4others, labour revision No. 16 of 2022, Mwanza, to the position that, breach of contract occurs when there is violation of the contractual obligation by failure to perform one’s obligation, repudiating it or by interfering with another party’s performance. Counsel for the applicant further submitted that, respondent did not pay applicant after the said breach. He added that, during hearing, respondent did not dispute that fact but, only defended himself by asserting that, he had difficult with bank issues, and that; he issued a cheque which was not delivered to the applicant. With those submissions, counsel for the applicant prayed that the application be allowed and that, applicant be awarded Twenty-nine million Five hundred Ninety-one thousand Two hundred Ninety-four Tanzanian Shillings (TZS. 29,591,294/=) only, being salary for the remaining period of the contract, notice of termination, unpaid leave and severance pay. Resisting the 1st consolidated ground of revision, counsel for the respondent submitted that, the words in exhibits G2 and G3 does neither amount to a termination letter nor a notice of termination to the applicant as he claims it to be. Counsel

submitted that, the abovenamed client of the respondent terminated the human resource services with 5 the respondent hence, applicant who was the Human Resource Manager, had no reason to attend his duty station to the abovementioned client of the respondent. Counsel submitted that, termination of relationship between respondent and her client led to cessation of applicant’s position at the respondent’s client. He added that, respondent was ready to accommodate applicant to other clients, but the latter refused as he had no further faith with the respondent. He added that, applicant was fully paid his salary as evidenced by the DTB bank cheque presented as evidence at the Commission. In respect of the 2nd consolidated ground of revision, counsel for the respondent submitted that, respondent did not breach the contract of employment of the applicant. Counsel for the respondent further submitted that, respondent did not violate her contractual obligation with applicant by failing to perform her obligation, repudiating it or by interfering with applicant’s performance. He added that, there was only mere misinterpretation and misconception of exhibits G2 and G3 by the applicant. With those submissions, counsel for the respondent prayed this application be dismissed for want of merit. In rejoinder, counsel for the applicant reiterated his submissions in chief that respondent breached

the contract and prayed that this application be allowed. 6 I have carefully examined the CMA record, the award arising therefrom and considered respective submissions made on behalf of the parties in this application and find that, the main issue is whether, applicant proved by evidence that respondent breached his contract of employment. In his evidence, applicant (PW1) testified that, on 1st August 2021 he entered a three-year fixed term contract of employment (exhibit G1) with the respondent and that, the said contract was expected to expire on 1st August 2024. He also stated that, his duty station was at Princess Leisure (T) Limited. Applicant further testified that, on 8th October 2023, he received a WhatsApp message (exhibit G2) directing him not to attend at office namely, at Princess Leisure (T) Limited. In his evidence, applicant stated that, exhibit G2 was a suspension from work. He also testified that, exhibit G2 was followed by an email (exhibit G3) which notified him that respondent will be unable to pay him salary due to termination of contract between the respondent and the said Princess Leisure (T) Limited hence his employment came to an end. In his evidence, applicant (PW1) did not state the amount he was claiming rather, he only prayed to be paid his entitlements that include leave pay, severance pay, salary for the remaining period of the contract,

notice pay, costs and be issued with a certificate of service. 7 While under cross examination, applicant admitted that exhibit G2 did not prohibit him to attend at work at the respondent’s offices. When referred to exhibit G3, applicant admitted that the said exhibit notified him that respondent and the said Princess Leisure (T) Limited have terminated their contract. On the other hand, Robert Msuya (DW1) testified on behalf of the respondent stating inter-alia that, applicant worked for eight months with the respondent station at Princess Leisure (T) Limited. That, on 1st October 2022, Princess Leisure (T) Limited, served respondent with the notice to terminate service (exhibit P1) and that, on 1st November 2022, Princess Leisure (T) Limited terminated service with the respondent. DW1 further testified that, applicant was notified via email explaining what transpired but did not respond. That, respondent called applicant in office to discuss the way forward. DW1 also testified that, while under discussion on how to resolve the matter, applicant filed the dispute at CMA. DW1 went on that, applicant was notified to collect cheque for payment of his salary (exhibit P3), but he did not. While under cross examination, DW1 stated that, respondent continue to pay salary to the applicant and that, Princess Leisure (T) Limited terminated contract with the respondent which could

have resulted into the latter to fail to pay salary to the applicant. 8 It is clear from evidence of the parties that, the centre of all this matter is exhibits G2 and G3 on which applicant is basing his claim to show that respondent breached the contract. I have ready the said exhibits and find that; they have nothing to do with termination or breach of contract of the applicant. In fact, exhibit G2, a WhatsApp chat reads in part: - “Kaka mambo vipi. Ebhwana kina Birol wamenirudia.. (sic) the HR service is officially terminated. We are holding a meeting on Monday na Boss..(sic) then nitakurudia, the (sic) reporting to office on Monday will need to cease first to see how we make it work.” (Emphasis is mine). On the other hand, exhibit G3 reads: - “Dear George, I believe this email finds you well, Kindly refer to our telephonic conversation and the meeting conducted with client; Princess Leisure. Please be informed about the termination of Human Resources at Princess Leisure where as they have removed our entire services as well as our agents at the working stations. This information is hereby made to your attention officially as we already have spoken about this termination. Therefore, from 1st November 2022 they will be opening without our services onwards. For the termination notice and commencement, goes along with your employment as well as will be unable to make payment

for your services starting from 1st November. As we have spoken, you have notified me 9 that you are outside the region, when you are back kindly let us have a meeting over this matter as it needs to be sorted. For anything over this, kindly contact me.” (emphasis is mine). Termination notice referred in exhibit G3 is a letter dated 1st October 2022 from Princess Leisure (T) Limited to the respondent (exhibit P1) that reads:- “RE: NOTICE OF TERMINATION OF HUMAN RESOURCES SERVICES Please refer the above captioned heading. This letter serves as a notice to terminate our Human Resources service agreement with your good office effectively from 1st November 2022. The termination of the said service is due to the reason that, the company has resolved and acquired an in-door Human Resource Officer who will be handling all the human resources activities in the company effective from the said date. We have been collaborating in both legal and human resources services for a long period of time and we appreciate all your work, but as stated earlier we would like to terminate(sic) the above-mentioned services as per the reasons stated above. Please be notified. We would like to thank you for our long-standing collaboration. Yours sincerely (Signed and stamped) Princess Leisure (Tanzania)Limited.” (Emphasis is mine) I have considered oral evidence of the applicant (PW1) and oral evidence of

DW1 together with the quoted exhibits. It is my considered opinion that, there was no breach of contract by the respondent. What 10 is clear in evidence of the parties is that, applicant was notified of termination of agreement between respondent and Princess Leisure (T) Limited. In no doubt, the said termination affected employment contract of the applicant, which is why, applicant was notified through exhibit G2 not to report to his duty station namely, at Princess Leisure (T) Limited until things are put in order. It was wrong for the applicant to term exhibit G2 as suspension because, in the said exhibit, he was clearly notified that, a meeting will be held to see what can be done. Again, according to unshaken evidence of DW1, applicant was called to attend a meeting to resolve the matter, but he rushed to file the dispute while discussions were still underway. It is my view that, any reasonable employer would have acted in the manner respondent did to ensure that contract of employment cannot be terminated. Unfortunately, applicant had a different opinion or move. It is further my considered opinion that, respondent was forced into the situation she found herself after the said Princess Leisure (T) Limited has terminated Human resources agreement as evidenced by exhibit P1 and P2. For the foregoing, I hold that, the arbitrator was justified to hold that there was no breach. I therefore hold that, both the consolidated 1st and 2nd grounds of revision argued by the applicant lacks merit and dismiss this application. 11 Dated at Dar es Salaam on this 25th March 2025. B. E. K. Mganga

JUDGE Judgment delivered on this 25th March 2025 in Chambers in the presence of George Msandi, the Applicant and Robert Msuya, Advocate for the Respondent. B. E. K. Mganga

JUDGE 12