LABOUR REVISION NO 4 OF 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA {KIGOMA SUB-REGISTRY) AT KIGOMA LABOUR REVISION NO. 4 OF 2023 RE HEMA STEPHANO APPLICANT VERSUS BARAKI COMPANY LIMITED RESPONDENT (Arising from the award of the Commission for Mediation and Arbitration for Kigoma in Labour Dispute No. CMA/KIG/DISP/272/2021) (Migire G. P. Arbitrator) JUDGMENT Date: 07/05 & 12/07/2024 NKWABI, J.: The applicant was employed by the respondent under a fixed term employment contract for customer service position. The employment contract commenced on 06/03/2020 and would end on 05/03/2021. Her employer suspended her from employment due to loss (upotevu) of T.shs 17,553,000/= to pave way for inquiry (uchunguzi). She was ultimately charged and convicted in the District Court of Kibondo for stealing by servant. The conviction and sentence were quashed and set aside by the High Court on 08/11/2021 on the ground that, ''. .. there was no evidence to 1 prove the case. "See page 10 of the typed judgment. Thus, the applicant was cleared of any wrong doing. After having been cleared of any wrong doing, the applicant went to the office to have her employment restored, or even to have the contract renewed but was turned away. In his testimony, Thomas Marwa Erasto (DW- 1) stated thus: ''Ni mimi Mkurugenzi ndio nilimuajiri na kumpatia mkataba wa ajira. Ni mimi ndio ningekuwa na Jukumu la kumfukuza kazi. Sikumfukuza kazl na wala hajawahi kufika ofisini kwangu wala sijawahi kumzungusha. Sijawahi kumtamkia kumfukuza kazi tarehe 18/12/2021. Pia mkataba wake ulikuwa umeshaisha kabla ya hajahukumiwa. " In cross-examination, the respondent claimed that the applicant was paid her wages cash in hand but when probed about proof of payment, the witness said had no any proof. He replied, the applicant ought to have reported. I prefer to quote the witness' words: 13. Je. mlalamikaji kama ameripoti kwa meneja wake kule Kibondo, wewe uliyopo. Kasulu utajuaje? 2 - ''Alipaswa kuripoti Makao Makuu. // The above answer by the witness of the respondent, clearly shows that the respondent had some responsibility after the applicant was acquitted. That responsibility, was to either renew the employment contract, or in case, she did not wish to renew the contract, avail her with her terminal benefits. That was not done. On her side, she testified that after having been acquitted on 08/11/2021, she went to the office on 17/12/2021 where the director was absent. She went again to the office on 18/12/2021 where she was told that the director had said she was not needed at the office. Despite the above evidence, in the award, the learned arbitrator dismissed the matter for the ground that it was filed on 29/12/2021 outside the 30 days prescribed under Rule 10(1) of the Labour Institutions (Mediation and Arbitration) Rules, G.N. No. 64 of 2007. When this revision application was called up for hearing, the applicant was represented by Mr. Ignatus Kagashe, learned counsel while the respondent 3 was duly represented by Mr. Michael Mwangati, also learned counsel. I am thankful for their powerful submissions. Expounding the revision application in submission in chief, Mr. Kagashe contended that the award of the Commission for Mediation and Arbitration is criticized on basis of limitation. The limitation was raised by the respondent at earliest time prior to hearing of the dispute and the Commission for Mediation and Arbitration decided at page 6 of the proceedings. The limitation was rejected as the employer had not proved termination by a letter. The arbitration was heard on merit. In its decision, the Commission for Mediation and Arbitration used limitation to dismiss the Arbitration. He further stated that the complaint in this revision is that the labour contract of the applicant which was of one-year fixed term contract from 6/3 /2020 had to come to an end on 05/03/2021 automatically lapsed. But, exhibit Pl the employment contract had two parts, which are the term of employment and the 2nd one, termination of the contract. It was Mr. Kagashe's stance on the duration of the contract, that there ought, at the end, a notice of one month (30 days) or payment of salary of one month given. So, parties had to give notice of 30 days or one-month salary, 4 elaborated Mr. Kagashe and relied on rule 4 (1) - (4) of the Employment and Labour Relations (Code of good practice) Rules GN No. 42 of 2007. Mr. Kagashe beefed up that, the term of the contract came to an end when the applicant had been imprisoned by Kasulu district court for allegations of stealing from the employer. She appealed and in November 2021 she was acquitted. When she was acquitted, the applicant supplied the respondent with the acquittal document. When she made follow-up on 18/12/2022, the employer told her she was not needed by word of mouth. She filed the complaint with the Commission for Mediation and Arbitration on 29/12/2022 within the 30 days required. The Commission for Mediation and Arbitration said the employment ended when she was in prison. The employer was required to issue the notice of termination which she did not. The employer did not tender the letter of termination. There was only the word of mouth about the decision to terminate the employment, insisted Mr. Kagashe. Mr. Kagashe finally maintained that it is the employer who keeps the record of attendance of the employee, it was the duty of the employer to prove that the applicant did not report. He prayed the decision of the Commission for 5 Mediation and Arbitration be revised and set aside. Then, the applicant be availed the reliefs prayed at Commission for Mediation and Arbitration. Mr. Mwangati responded in reply submission that, the application for revision is misconceived and prayed it be dismissed. He elucidated his stand view that the time limit as stated on paragraph 10 in the affidavit that the issues were framed in the matter, and one of the issues was time limit. The applicant was cross-examined about time limit. He also stated that they also discussed the issue as to whether the applicant was terminated from employment or his contract of employment had come to an end. He firmly said that, the Commission for Mediation and Arbitration stated that the contract came to an end and was not terminated. It was a further argument of Mr. Mwangati that the contract had the duration of 12 months and when she was still in employment, the applicant was charged for stealing from an employment and convicted by the district court. Even the arbitrator stated that any anomaly ought to have been brought within 30 days from the date the contract came to an end. That case was not filed in respect of termination of contract without notice or payment of salary of one month. Mr. Mwangati pressed that, it was correct for the 6 arbitrator to have decided that the complaint was filed outside the prescribed time. It was further submission by Mr. Mwangati that the applicant was not terminated from employment when she was acquitted by the High Court. That has no any relationship because the contract had come to an end. He added there is no proof that the applicant was terminated on 8th December 2021. He pressed that the term of contract of employment came to an end and she was not terminated. Mr. Mwangati prayed the revision be dismissed for lack of merit. In a short rejoinder, Mr. Kagashe maintained that the counsel did not reply about regulation 4 (1) and (2) of GN No. 42 of 2007. He emphasized that the manner of terminating the contract of employment ought to have been complied with. He also added that when the term of employment came to an end, the employer ought to have complied with the terms of the contract of employment. There is no automatic termination, Mr. Kagashe impressed upon me. Concerning limitation, Mr. Kagashe asserted that the P.O. was raised and it was decided at page 6 of the proceedings, but the employer did not bring 7 the letter of termination as was directed in the ruling. Mr. Kagashe reiterated his stand view that, as the respondent had not terminated the applicant, that is why the applicant complained for unfair termination. He also stated that, it is the employer who has to prove the termination and added that when she reported at work, it was the manager because the director was not present. Finally, he prayed the revision be allowed. In this revision application, I find that the applicant is calling upon me to consider and determine the following issues, and of course, in her favour: 1. Whether the applicant's complaint in the Commission for Mediation and Arbitration was lodged within the prescribed time. 2. Whether the award of the Commission for Mediation and Arbitration was unjustifiable in law. 3. What reliefs both parties entitled to? I have gone through the submissions of both parties, I have also examined the affidavits in support and in opposition of the application. Further, I have carefully examined the evidence that is available in the CMA record. Yet, I think that the law puts it clear and in unambiguous under Section 36 (a) (iii) of the Employment and Labour Relations Act, Cap. 366 R.E. 2019 provides: 8 "Termination of employment includes:- failure to renew a fixed term contract on the same or similar terms ''if there was a reasonable expectation of renewal. // In this revision, while there was a letter suspending the applicant from employment pending inquiry, how could the respondent expect the applicant to go to the work place to ask the employer for renewal of the employment contract. It should be borne in mind that all that time the applicant was too embroiled in the criminal litigation not knowing the outcome. Further, it should be borne in mind that the suspension letter had not been withdrawn at all the material time. Only when she was acquitted by the High Court when she could for sure know her fate about the employment. I have had an ample time to revisit some authorities on this matter, I confess, I saw only a few but they are all distinguishable to the matter I am under consideration. One of them is the case of CRDB Bank Ltd v. Lusekelo Mwakapala, Civil Appeal No. 143 of 2021, CAT. In this case, there was a notice of non-renewal which was served on the respondent therein on 20/11/2013 while in the present case no such notice was served to the applicant. 9 In the same vein, period for filing the complaint with the Commission for Mediation and Arbitration started to run when she was told that the Director had said she was not needed at the office. That was on 18/12/2021. So, her complaint that was filed in the Commission for Mediation and Arbitration on 29/12/2021 was not time barred. It should also be noted that Rule 9(3) of the Employment and Labour Relations (Code of Good Practice) G.N. 42/2007 provides that: ·~.. the burden of proof lies with the employer but it is sufficient for employer to prove reason on balance of probabilities ... // But, it is trite law, which I need not cite an authority, that where in civil litigation, the party who alleged a civil wrong which imputes a criminal wrong, the party making the allegation has to a higher standard of proof that allegation and not the ordinary balance of probabilities in civil suits. Did the respondent prove in the arbitration the allegations of theft by the applicant on the higher standard than balance of probabilities? She did not. Then, failure to renew the employment contract amounted to unfair 10 termination in terms of section 36 (a) (iii) of the Employment and Labour Relations Act, Cap. 366 R.E. 2019. Thus, the respondent is legally bound to compensate the applicant 12 months salary for wrongful termination of the employment contract. If she was in criminal litigation, how would she engage her employer to renew the contract. She could only do that after the litigation concluded and acquittal order handed down. Innocent as she was, the applicant did not deserve the treatment she got at that office. When, was the non-renewal of the contract, communicated to the applicant? It is clear in the evidence of the respondent. In actual sense, the applicant's (desire) avenue of renewal of the employment contract was blocked by the acts of the respondent. Who was to blame here, definitely it is not the applicant. The respondent argues that the term contract had come to an end. That could be true. But the employer had to go further, had it not been for the wrongful imprisonment over her (respondent's) brazen allegations of theft, would the applicant have not expected to have her employment contract extended? Put it otherwise. The applicant was cleared and declared not the thief, thus innocent, had it not been for the wrongful imprisonment would 11 : both parties not have expected the renewal of the employment contract? Since the applicant was innocent, she verily expected that on her return to the work, her employment contract extended or renewed. Now it was for the employer to say that she would not renew it and, giver her rights over terminal benefits. Consequently, the application for revision is allowed for it is merited. The award handed down by the Commission for Mediation and Arbitration is hereby quashed and its orders set aside I since there was unfair termination, I order that the respondent to pay the applicant compensation of twelve months salary together with other terminal benefits in accordance with the law. For avoidance of doubt, the 1st and 2nd issues raised above are answered in the affirmative. The reliefs entitled to the partes are as provided in this judgment. I make no order as to costs as this is a labour matter. It is so ordered. DATED at KIGOMA this 12th day of July, 2024 Wk,-1~' J. F. NKWABI JUDGE 12