Haika

THE JU D ICIAR Y OF TA N ZA N IA IN TH E HIGH C O U R T OF TA N ZA N IA AT M A N Y A R A L A B O U R REVISION NO. 000020690 O F 2024 HAIKA LO DG E LO DG E A N D M A M BA L O D G E .................................. C O M P L A IN A N T / A P PE L L A N T / A P PL IC A NT / PLAINTIFF VER SU S A N G EL INA M A T H IA S A ND 2 O T H E R S .................................. R E S P O N D E N T / D E F E N D A N T JU D G M E N T KAMUZORA, J, 19th N ovem ber & 24th D ecem ber, 2024 The respondents herein referred an em ploym ent dispute before the Com m ission for M ediation and A rbitration (CM A ) at M anyara against the applicant claim ing com pensation for unlaw ful term ination. They claim ed that they were em ployed by the applicant in different positions but w ere term inated w ithout any reason and w ithout being paid their entitlem ents including salary deductions. The applicant denied to have em ployed the respondents therefore, a general denial o f all the respondents’ claim s. The issues raised during hearing before CM A intended to assess the follow ing; w hether the respondents w ere em ployees o f the applicant, w hether, there w ere good reasons for term inating the respondents, w hether, the procedures for term ination w ere follow ed, w hether the claim for salary deduction by the respondent was justifiable and reliefs to parties. U pon hearing evidence from the parties, the A rbitrator was satisfied that the respondents were em ployees o f the applicant but they w ere term inated w ithout following term ination procedures. It was how ever held that, the respondents w ere unable to prove the claim for salary deduction but proved unlaw ful term ination hence, they were aw arded com pensation for unlawful term ination. D ispleased w ith the CM A award, the applicant brought this revision application under sections 91(l)(a), 91(2)(a)(b)(c), 9 4 (l)(b )(i) o f the Em ploym ent and Labour Relations A ct No. 6 o f 2004 Cap 366 R.E 2019 (ELRA) and Rules 24(1), (2)(a)(b)(c)(d)(e)(f), (3)(a)(b)(c)(d), 24(1 l)(c)(d ) (e) and 2 8 (l)(c )(d ) (e), o f the Labour Court Rules GN No. 106 o f 2007, praying for this court to be pleased to call for records o f the CM A and revise the proceedings and aw ard issued on 30th July, 2024. The applicant listed the follow ing as legal issues to be determ ined by this court; 1. That, the learned A rbitrator ignored the evidence o f applicant’s w itnesses proving that the respondents w ere not em ployees o f the applicant, 2. That, the learned arbitrator’s aw ard w as im proper for it was based on his own opinion w ithout considering the fixed term s contract o f the 1st respondent, 3. That, the learned arbitrator erred in disregarding the applicant’s evidence resulting to erroneous decision. W hen the m atter was called for hearing, M s. Farida Jum a, assistant m anager from the applicant’s office appeared on b eh a lf o f the applicant and the respondents appeared in person. W ith consensus from the parties, the application was argued by w ay o f w ritten subm issions and parties com plied to the subm ission schedule. Subm itting in support o f application, the applicant adopted the contents o f the affidavit and added that, the respondents w ere not term inated for they w ere never em ployees o f the applicant. That, the CM A erred in deliberating on the issue o f salary deduction together w ith issue o f unlaw ful term ination. For the applicant, salary deduction falls w ithin unfair labour practice and it cannot be adjudicated jointly with issue o f unfair term ination. The applicant also subm itted that, there was no evidence proving that the respondents were term inated by the applicant for they presented no letter for term ination. R eferring Rule 9 (3) the Em ploym ent and Labour Relations (Code o f G ood Practice) Rules GN No. 42 o f 2007, the applicant argued that, w hile the em ployer is bound to prove that there w as lawful term ination, it is the duty o f the em ployees to prove that they were term inated. That, in the m atter at hand w here the applicant denied to have term inated the respondents, the burden shifted to the respondents to prove that they w ere term inated by the applicants. To support such argum ent, the applicant referred the decision o f the High Court in the case o f Sinohydro C orporation Lim ited Vs Shelem bi Bijunges Petro and Samwel Shabani M akiya, Labour Revision No. 5 OF 2021, at A rusha (unreported). The applicant further subm itted that, the A rbitrator ignored the evidence o f DW1 and DW 2 w hich proved that the respondents w ere not em ployed by the applicant and that, there was no term ination. She prayed for this court to find m erit in this application, quash and set aside the aw ard passed by the CM A. In reply, the respondents subm itted that there was p ro o f that they w ere em ployed by the applicant and they w ere paid less than the m inim um w age approved by the governm ent. They referred the com pliance order from the labour officer as a p ro o f that they were em ployed by the applicant. They added that, they w ere orally term inated by the applicant w ithout being given reason for such term ination hence, illegal term ination in the eyes o f law. They referred section 37 (2) o f the Em ploym ent and Labour Relations Act No 6 o f 2004 and the cases o f Ngorongoro C onservation A rea A uthority Vs. V eneranda Baraza, Revision No. 72 o f 2020 and Y outh Dynamix Vs. Fatuma Lw am bo, Revision No. 427 o f 2013. The respondents further subm itted that, there were no fair procedures in their term ination as required by Rule 9 (1) o f GN No. 42 o f 2007. They also referred the decision in the case o f Samwel N dehaki Vs, Tanzanite One M ining Ltd and Rule 13 (4) and (8) o f GN No. 42 o f 2007 on the procedures to be follow ed before term inating an em ployee. They argued that, there was no well convened disciplinary hearing against them thus, their term ination did not follow the procedures. They concluded w ith the prayer for this court to dism iss the application and uphold the aw ard passed by the CM A. In a b rief rejoinder, the applicant basically reiterated the subm ission in ch ief and case laws prior cited. H aving considered the record and rival submissions from the parties, this court find it necessary to first assess if the CM A was correct to hold that the respondents were em ployees o f the applicant. There w ere no em ploym ent contracts that were adm itted as exhibits and the respondents adm itted not to have any written contracts o f em ploym ent. T heir claim s are based on oral agreem ent o f em ploym ent and oral term ination as well. W hen assessing if the respondents w ere em ployed by the applicant the Hon. A rbitrator referred the evidence o f the respondents and their w itnesses, as w ell as com pliance order from Labour O fficer to conclude that the respondents w ere em ployed by the applicant. I am also convinced to believe that such evidence proves that the respondents were em ployed by the applicant. I will dem onstrate why I agree with the CM A conclusion. In her evidence, the 1st respondent testified that she was em ployed by the applicant as office attendant since 2017 and she was paid TZS. 60,000/= as m onthly salary. That, in 2022 they were visited by the labour officer w ho directed the applicant to pay the em ployees the m inim um w ages o f TZS. 150,000/= per month. That, m anager agreed and increased their salary but he was paying her TZS. 70,000/= and prom ised to keep TZS. 60,000/= for her. That, on 15/02/2024, they w ere asked by the applicant’s m anager one Rum insia Mwanga not to go to w ork but no reason was advanced and they were not paid their entitlem ents. The 2nd respondent testified that she was em ployed as office attendant by the applicant since 2019. That she was being paid monthly salary o f TZS. 60,000/= since then until 2022 when they w ere visited by the labour officer. H er salary was then increased to TZS. 130,000 but until January 2024, she was being paid TZS. 80,000/=. L ike the first respondent, on 15/02/2024, the applicant’s m anager one Rum insia M w anga told the 2nd respondent not to go to w ork but she was not paid her entitlem ents. The 3rd respondent testified that, he was em ployed by the applicant as a security guard since 2014 for the m onthly salary o f TZS. 50,000. That, in 2021, he was assigned extra w ork o f inspection and his salary was increased to 100,000 but they agreed for the applicant to deduct TS 30,000 and keep it for the 3rd respondent. That, on 15/02/2024 he was asked not to go to w ork again but he was not paid his entitlem ents. Three w itnesses testified in favour o f the respondents. PW 4 is the husband o f the 1st respondent and he claim ed that in 2017, the applicant’s m anager one R um ininsia M w anga w ent to his hom e asking for his w ife to w ork for the applicant. That, PW 4 agreed and stood as his w ife’s surety w hen he was asked to in 2021. That, on 15/02/2024, the 1st respondent asked him to go to the applicant’s office and he was inform ed by the m anager that all em ployees were relieved pending investigation. He asked for paym ent for his wife but only TZS. 40,000/= was paid. PW5 claim ed to know the 2nd respondent as they used to w ork together for the applicant since 2019 to 2023 w hen PW3 resigned due to personal problem s. PW 6 claim ed that he was security guard near the applicant’s lodge and he used to see the 3rd respondent w orking for the applicant as a security guard. The respondents adm itted during cross exam ination that they have no w ritten em ploym ent contracts. They how ever tendered com pliance orders (exhibits P I, P2 and P3) w hich indicated that the labour officer visited the applicant and discovered that the applicant em ployed respondents w ithout issuing w ritten em ploym ent contracts and w as paying low w age to the em ployees, less than the m inim um w age prescribed under the m inim um w age order. The applicant w as ordered to com ply to the legal requirem ent by issuing w ritten em ploym ent contracts and com ply to the m inim um w age order o f not less than TZS. 130,000/= for all em ployees o f restaurants, guest house and bars and ensure that they have tim e to rest and be registered for N SSF. The nam es o f the 1st and 2nd respondents w ere m entioned in the said orders as em ployees o f the applicant w ho w ere affected. The applicant never denied being served w ith such order and no objection was raised for their adm ission. From the above evidence, I agree w ith the CM A conclusion that the respondents w ere em ployees o f the applicant. The circum stance o f this case could not accom m odate w ritten contracts because even the com pliance order show s that the applicant was not com plying to the em ploym ent procedures. Even if there is no com pliance order referring the nam e o f the 3rd applicant, this court believe that the available evidence proves that the 3rd respondent was also an em ployed by the applicant. The CM A never doubted his oral testim ony and that o f the w itness who claim ed that he used to see the 3rd respondent guarding the applicant’s prem ise. I also see no reason to doubt such evidence considering that the applicant deliberately evaded issuing w ritten em ploym ent contracts even after he was w arned and ordered to do so by the labour officer. Thus, the claim by the applicant that, the learned A rbitrator ignored the evidence o f applicant’s w itnesses proving that the respondents w ere not em ployees o f the applicant, is baseless. Sim ilarly, the applicant’s argum ent that the decision o f learned arbitrator w as based on his own opinion w ithout considering the fixed term s contract o f the 1st respondent, is unw arranted. In his evidence DW1 w ho is the applicant’s m anager testified that the applicant had never em ployed the respondents. He claim ed that he has been com plying to all em ploym ent procedures by issuing em ploym ent contracts to all em ployees. Sim ilarly, DW 2 w ho is also the m anager at the applicant’s guest house denied to have entered any contract with the respondents. The evidence from the ap p lican t’s w itnesses is in total denial o f any em ploym ent relationship w ith the respondents. H ow ever, there is undisputed evidence from the respondents; exhibits P I, P2 and P3 w hich indicated that the applicant had em ploym ent relationship w ith the 1st Page. 3 and 2nd respondent. There is also oral evidence proving so for the 3rd respondent. Thus, the evidence by DW1 and DW 2 is not convincing to conclude that the applicant had no em ploym ent relationship w ith the respondents. The applicant’s w itnesses raised a general denial based on the argum ent that no em ploym ent contract was tendered by the respondents to prove their em ploym ent. However, as well noted, non-issuance o f the written em ploym ent contract was a deliberate m ove o f the applicant to circum vent em ployer’s responsibilities and deny the respondents o f their em ployees’ rights. I therefore find that the first issue on w hether the respondents were em ployed by the applicant w as correctly answ ered by the CM A. On the second and third issues on w hether there were good reasons for term inating the respondents and the procedures for term ination w ere follow ed, I find those issues correctly answ ered by the CM A as well. From w hat was observed in the first issue, there is no doubt that the term ination was oral and no good reason was advanced. The applicant’s w itnesses only denied the respondents’ employment. Upon conclusion that the respondents w ere em ployed by the applicant, the applicant was bound to prove that the term ination w as fair. N o evidence was subm itted to justify legal term ination or com pliance to the legal procedures for term ination thus, the CM A was correct to hold that the term ination was unfair. The applicant’s argum ent that, the learned arbitrator disregarded the applicant’s evidence is unfounded. H aving gone through the CM A award, I am satisfied that, the H onourable arbitrator keenly evaluated and considered evidence from both parties before issuing an award. It also considered the claim for salary deduction and disregarded it upon finding that it contravened the law. Thus, the applicant’s argum ent that the CM A erred in deliberating on the issue o f salary deduction is unfounded because, there was no aw ard w hich was issued based on the claim for salary deduction. Turning to the am ount aw arded by CM A, the same was com puted based on m inim um w age set by the Labour Institutions W age order, GN No. 687 o f 2022. The said order prescribes m inim um w age o f TZS. 150,000/=. The com putation w as done based on the form ular set under the law therefore, I see no reason to interfere, instead, I uphold the CM A award. In the upshot, I find no merit in this application and proceed to dism iss it. In considering that this is a labour m atter, I will not m ake an order for costs. D ated a t T H E H IG H C O U R T O F T A N Z A N IA A T M A N Y A R A this 24th o f D ecem ber 2024 . Page. 4