HATIBU MOHAMED SAID AND 4 OTHERS V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM LABOUR REVISION APPLICATION NO. 24118 OF 2024 (Arising from Award issued on 21/08/2024 by Hon. Mikidadi, A, Arbitrator, in Labour Dispute No. CMA/PWN/MKR/05/2024/07/2024 at Mkuranga) HATIBU MOHAMED SAID…………….…………….......................1ST APPLICANT JOHN L. MAKUNGU …………….…………….............................. 2ND APPLICANT ATHUMAN H. MJOMELAGO …………….……………...................3RD APPLICANT HEMED J. PENZA…………….……………....................................4TH APPLICANT MAULID S. MWALILE…………….…………….............................5TH APPLICANT VERSUS POWER OUTREACH (T) LIMITED…..........………………………… RESPONDENT EX-PARTE JUDGMENT Date of Last Order: 11/02/2025 Date of Judgment: 4/04/2025 B. E. K. Mganga, J. On 2nd February 2024, the abovenamed applicants filed Labour dispute No. CMA/PWN/MKR/05/2024/07/2024 before the Commission for Mediation and Arbitration (CMA) at Mkuranga complaining that Power Outreach (T) Limited, the abovenamed respondent breached their contracts of employment. In the referral form (CMA F1) applicants indicated that they were claiming each to be paid (i) seven (7) month’s salary compensation of the remaining period of their contracts of employment, (ii) one month salary in lieu of notice, (iii) be issued with a certificate of service. 1 It happened that on 5th April 2024; respondent was served to appear before the arbitrator but did not enter appearance. Having heard evidence of the parties, on 21st August 2024, Hon. Mikidadi A, Arbitrator issued an award that termination was unfair substantively and procedurally. The arbitrator further held that applicants were terminated at the time they were probationary employees. Based on the foregoing, arbitrator awarded applicants to be paid TZS 14,000/= each being four days’ notice. In Short, arbitrator awarded applicants to be paid TZs 70,000/= in total. Applicants were aggrieved with the said award hence this revision application. In their joint affidavit applicants raised five grounds namely: - 1. The arbitrator erred in law and facts in holding that applicants were probationary employees. 2. That the arbitrator erred in law and facts in holding that applicants are not entitled to compensation of seven (7) months of the remaining period of their one-year fixed term contracts of employment. 3. The arbitrator erred in law and facts in issuing the award based not on the issues that were drafted. 4. That the arbitrator erred in law and facts in holding that each applicant is entitled to be paid TZS 70,000/=. 5. The arbitrator erred in law for failure to analyse evidence adduced. 2 I should point out that, respondent was served but did not enter appearance as a result the application was heard ex-parte hence this ex- parte judgment. In arguing this application, applicants enjoyed the service of Mr. Ahmadi Omary Udugu, advocate. In his written submission in support of the 1st ground, Mr. Udugu submitted that on 1st August 2023, applicants entered fixed term contract (exhibit P, P2, P3, P4 and P5). He also submitted that, the said contracts under clause 6 provided that, applicants were under probation for six months but did not provide dates of commencement of the said probation period. Counsel further submitted that, he believes that probationary period of the applicants who were salt loaders, commenced prior to signing of contracts of employment. He further submitted that, there was conflict in contracts of the applicants. He therefore prayed the court to interpret and construe the said clause in favour of the applicants. Mr. Udugu also submitted that, the said contracts of employment were terminated on 1st August 2024. Arguing in support of the 2nd and 4th grounds, counsel for the applicants submitted that, contracts of employment (exhibits P1, P2, P3, P4 and P5) were signed on 1st August 2023 and were expected to expire on 1st August 2024 but applicants were terminated prior to that period. 3 He further submitted that, in terms of clause 10 of the said contracts, respondent was supposed, prior to termination, to serve applicants with a written notice. Counsel submitted that respondent did not comply with the said clause. He strongly submitted that respondent was bound by the terms of the contract she entered with the applicants. To support his submissions, he cited the case of Simon Kichele Chacha Vs Aveline M. Kiwale, Civil Appeal No. 160 of 2018 [2021] TZCA 43 and Miriam E. Maro Vs Bank of Tanzania, Civil Appeal No. 22 of 2017 TZCA 1789. He further submitted that arbitrator found that termination was unfair both substantively and procedurally but awarded applicants to be paid TZS 14,000/= each as notice for termination of contract. He added that the said award is contrary to the provisions of section 41(b)(i) of the Employment and labour Relations Act, cap. 366 R.E. 2019. He further submitted that applicants were entitled to be paid the remaining period of their contracts. To bolster his submissions, he cited the case of Good Samaritan vs Joseph Robert Savari Munthu, Revision No. 165/2011 HC Labour Division DSM (Unreported). In alternative, counsel for the applicants submitted that applicants were entitled to be paid the remaining period of probationary period. To support his submissions, he cited the case of Adinani Ally Sipuru & Others vs Resort World 4 T/A Palm Beach Casino, Revision Application No. 341 of 2022 (Reported at Tanzlii). Arguing in support of the 5th ground, Mr. Udugu submitted that, the arbitrator did not properly interpret the contracts of employment (exhibits P1, P2, P3, P4 and P5) specifically clause 6 and arrived at wrong conclusion that, probationary period commenced on the date of commencement of the said contracts. With those submissions, he prayed that the application be allowed, CMA award be quashed and set aside. I have examined the CMA record and find that, only Hatibu Mohamed Said (PW1) and John Lucas Makungu (PW2), the 1st and 2nd applicants respectively, testified. There is no evidence that was adduced on behalf of the respondent because the dispute was heard ex-parte. In their evidence, PW1 and PW2 testified that, all applicants had one-year fixed term contracts (exhibits P1, P2, P3, P4 and P4) and that they were terminated on 4th January 2024. I have examined the said contracts and find that employment of the applicants commenced on 1st August 2023 and was expected to expire on 1st August 2024. The said contracts provide under clause 6 that applicants will be under probation for the period of six (6) months. It was submitted by counsel for the applicants that he believes that probationary period of the applicants commenced 5 prior to signing of contracts of employment and that the arbitrator did not interpret properly the said clause. With due respect to counsel for the applicants, his belief that probation period of the applicants commenced prior to signing of the contract of employment has no back up which can be used to criticise the arbitrator. What I can say is that, the arbitrator or this court cannot decide the dispute or application based on belief by counsel. Disputes are determined based on evidence. In their evidence, both PW1 and PW2 did not state that they completed probationary period prior to signing employment contracts. More so, there is nothing on the record in support that applicants completed probationary period prior to signing their contracts of employment. It is my view that, had applicants completed probation period, clause 6 relating to probationary period would have not been drafted and inserted in contracts of the applicants. It is my further considered opinion that, in signing their contracts containing the said clause 6 relating to probation period, applicants were aware that the said started on the date the said contracts started to bind the parties. I therefore conclude that probationary period of the applicants commenced on 1st August 2023, the date they signed their one-year fixed term contracts. It is my further opinion that, applicants were terminated after they have worked for four months but prior to expiry of the probationary 6 period. I should also point out that, in their evidence, PW1 and PW2 who testified on behalf of all applicants, did not state that at the time of termination on 4th January 2024 they were already confirmed. In absence of evidence relating to confirmation, applicants remain to be probationers. See the case of David Nzaligo vs National Microfinance Bank Plc (Civil Appeal 61 of 2016) [2019] TZCA 287 (9 September 2019). Since there was no evidence proving that applicants were confirmed, I uphold the CMA award that applicants were terminated during probationary period. It was submitted by counsel for the applicants that parties are bound by their contracts based on sanctity of contracts as it was held in Chacha’s case (Supra) and Maro’s case(supra) and that respondent was bound to serve applicants with written notice of termination. With due respect to counsel, the same principle of sanctity of contract applies against the applicants in this application. Parties agreed that applicants should be under probation for six months and that the said period was subject to extension depending on performance of the applicants. Since they were terminated while under probation, it can be said that they were terminated while under practical interview and that they failed interview. See the case of Stella Temu vs Tanzania Revenue 7 Authority (Civil Appeal 72 of 2002) [2004] TZCA 55 (27 October 2004) [2005] TLR 178 CAT. It was correctly held by the arbitrator that termination was unfair both for want of valid reason and procedures. The relief that applicants were entitled to was compensation for the remaining period of probation period and not the remaining period of their contracts of employment. See. The case of Essau Amon Tegga & 4 Others vs Azania Poly Bag Industries Ltd (Application for Revision No. 10819 of 2024) [2024] TZHCLD 133 (16 August 2024) and Vivo Energy Tanzania Limited vs Omar Shareef (Revision Application No. 20964 of 2024) [2024] TZHCLD 185 (16 October 2024)and Adinani’s case (supra) cited by counsel for the applicants. Applicants were terminated while two months of probationary period remaining. It is my view that the arbitrator erred to award applicant to be paid TZS 14,000/= each being salary compensation for four days. In his evidence, PW1 stated that, their salary depended on the amount of salt they loaded in motor vehicles. PW1 stated that, sometimes they were paid 150,000/= per week and sometimes TZS 98,000/= per week. In fact, in clause 8 of the said fixed term contracts (exhibit P1, P2, P3, P4 and P5) parties agreed that applicants will be paid depending on work performed. Since there is no evidence to 8 contradict what was testified by PW1, I take the average salary of TZS 150,000/= and 98,000/= namely TZS 124,000/= to be the weekly salary of applicants. Therefore, the remaining two months’ probation period, each applicant was entitled to be paid TZS 992,000/= namely 124,000/= x 8. I therefore hold that each applicant is entitled to be paid TZS 992,000/=. For the foregoing, hereby order respondent to pay TZS 4,960,000/= in total. For the foregoing, I partly allow the application and revise the award to the extent explained. Dated at Dar es Salaam on this 4th April 2025 B. E. K. Mganga JUDGE Judgment delivered on this 4th April 2025 in Chambers in the presence of Ahmadi Udugu, Advocate for the Applicants but in the absence of the Respondent. B. E. K. Mganga JUDGE 9