hjf medical fresearch inc vs mergitu ebba 2022 tzhcld 82 11 march 2022

THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION APPLICATION NO. 257 OF 2021

BETWEEN HJF MEDICAL RESEARCH INTERNATIONAL, INC.......... APPLICANT AND MERGITU EBBA........................................................... ^^2?RESPONDE

JUDGMENT Date of the last order: 7/02/2022 Date of judgment: 11/3/2022 B.E.K. Mganga, J \kJ/ On 27th June 2019^\h^ Medical Research International, Inc, the applicant, signed employment>contract with Mergitu Ebba, the respondent for two years fixed^erm .contract of employment with effect from 1st Ju iy 2019 to 30^JuQeJfe021. In the said fixed term contract of employment, it<Was shqvynrthat the respondent was employed as Outreach and Prevention Advisor and that her place of work was Dar es salaam. It was also shown that, place of recruitment of the respondent was USA. The respondent being a foreigner in Tanzania, on 17th September 2019, was issued with Residence Permit No. 118086 (exh. DI) valid for i two years up to 23rd August 2021 and allowed to stay in Dar es Salaam, Dodoma, Iringa, Lindi, Mbeya, Mtwara, Rukwa, Ruvuma, Njombe and Songwe. In the residence permit, it was stipulated that the respondent shall not engage in any employment, trade, business, or profession other than Outreach & Prevention Advisor and that her^place of work shall be in Dar es Salaam, Dodoma, Iringa, Lindi, Mbeya^ Mtwara, Rukwa, Ruvuma, Njombe and Songwe. On 23rd<\August 2019, the Labour Commissioner issued work permit NoxWF>C/12656/16 (exh. Dl) in favour of the respondent ^to^^rl^with the applicant as Outreach Program Conw/ta/ii^in^ahzania Mainland for two years from 23rd August 2019 to 22"d August

2021. After being issued with both work permit and<residence permit, respondent continued to work with the applicant tfronMst July 2019 up to early January 2021, when the relation be^^ervthe two became bad. Due to unhealthy relationship betweemthej^o, on 8th January 2021, respondent filed Labour Dispute No. CI^/E)SM/KIN/013/2021/22/21 to the Commission for Mediation and Arbitration henceforth CMA showing that there was Constructive termination of her employment. In CMA Fl, respondent showed that the employer(applicant) constructively breached material terms of 2 employment by varying fundamental aspects often without mutual consent. In the said CMA Fl, respondent claimed to be paid terminal benefits as follows; USD 31,000 being payment for remaining 7 months of the contract, USD 124,000 being compensation of 24 months on /\ expectation of renewal of contract, USD 5,166.7 bejn^payment of accrued annual leave, USD 5,166.7 being payment of one month salary in lieu of notice, USD 800,000 being payment fon^neral damages, USD A 10,000 being payment for cost of living allowances (COLA) for eight vv months, USD 12,720 being payment^forAnouse allowances for eight months, USD 51,158 being payment forsGhool fees for two dependents, , A USD 10,000 being paymenUfor health insurance for eight months (1+3 dependents), 7,000 beii^^^nt for home security, USD 10,000 being payment for

homez(ieave) (1+3) air ticket, USD 1,190 being payment for home leave five days, USD 3,000 being payment for financial year 2020 (FY20) one+ime bonus, USD 12,720 being payment for post differential allowances'for eight months, USD 184.525 being substance allowances per day accruing from 7th January 2021, USD 5,166.7 being severance payment, USD 10,000 being repatriation costs (air ticket for complainant and three dependents), from Dar es salaam to Canada, USD 3,000 being 3 payment for on transit allowance meal and accommodation for four persons, USD 25,000 being payment for transport and costs of packing and handling 3.5 tones of personal effects from Dar es Salaam to Canada all amounting to USD 1,121,658.1. On 14th June 2021, Hon. William, R, Arbitrator<^a^g\ji"eard evidence of both parties, issued an award in favour of^the respondent ordering the applicant to pay USD 31,000 beiqg^aferies for the seven months remaining period of the contract,^ySD\5^66.7 being accrued payment for leave, USD 5,166.7 being(paVment of one month salary in lieu of notice, USD 180,000 beingkpayment for general damages, USD 5,370 being payment for living costs, USD 12,720 being payment for house allowances, USD\^158 being payment for school fees for two dependents, ySD\W?000 being payment for health Insurance, USD 7,000 being payment for home security, USD 10,000 being payment for transportation costs

all amounting to USD 357,163.46. Applicant was also ordered to pay substance allowances accruing from the date of the award to the date of repatriation of the respondent and issue a certificate of service to the respondent. 4 Applicant was aggrieved by the said award hence this application for revision. The application is supported by the affidavit sworn by Jovither Mirumbe, senior administration and logistics Manager of the applicant. In the affidavit in support of the application, applicant raised eight (8) grounds of revision namely:- 1. That, the arbitrator erred in law and fact in holding that tnere was constructive termination of contract of the respondent while there was no resignation from work before institution of-the dispute at CMA.

2. That, the arbitrator granted an awapj-of^genera! damages while the same was not prayed for orw/eabed or testified to establish general damages.

3. The arbitrator erred in awarding costs^of living allowances while there was no evidence to establish that the employee was entitled to that allowance. <\ 4. The arbitrator^fedMaw and fact in determining the dispute on issues thatwere^qo^r^ant as the respondent was never terminated.

5. The arbitratorerred in law and fact in analyzing both documentary and ofakevidence tendered by the applicant's witnesses and arrived at a wrong^onclusion that the witness did not speak the truth. 6>7hgt/the arbitrator erred in law and fact in failing to appreciate that the error in the work permit had material on the respondent's employment contract.

7. That the arbitrator erred in law and fact in awarding the respondent reliefs including among others salaries, accrued payment for leave, general damages, repatriation fees and severance pay irrespective 5 of the fact that the respondent was paid her salaries up to the expiry of the employment contract.

8. The arbitrator erred in fact and law in failing to appreciate that the Employment Contract between the applicant and the respondent was a fixed term contract. The application was disposed by way of wrigten^submissions. The applicant enjoyed the service of Juvenalis NgowT^advocate from while the respondent enjoyed the service—of^isaya Zebedayo Mwanri, advocate. zP \S-Pz Submitting on the firsbground, namely; that the arbitrator erred in law and fact in holdiq^^at there was constructive termination of contract of the respondent while there was no resignation from work before institution^ the dispute at CMA, Mr. Ngowi, learned counsel for the^applic^^submitted that the finding of the arbitrator was wrong both factually and legally. Counsel for the applicant relied on section 36(a)(ii) of the Employment and Labour Relations [Cap. 366 R. E 2019] and submitted that for constructive termination to exist, an employee must have resigned after the employer has made employment 6 intolerable. Counsel went on that, there was no resignation on part of the respondent hence no constructive termination. Counsel for the applicant submitted further that, there has to be compliance with the provisions of Rule 7(2)(a) of the Employment and Labour Relations (code of Good Practice) GN. No. 42 of 2007, for constructive termination to exist. Counsel argued that, for constructive terminationx^o

exist, it must be proved that the employer made emplo^r^nt^intolerable and due to that intolerability, the employee resigns>Gounsel for applicant cited this court's decision in case of ,DavidMsangi and Another z, X)) National OH (T) Limited, Labou^Revision No. 397 of 2016 (unreported) and Victoria$pnathan z Statoil Tanzania, Labour - Revision No. 401 ofc^^^(unreported) to cement on his arguments. Counsel for the ajap^ipt submitted further that, respondent did not resign as aX^tte^whiie under cross examination and did not explore oth^op^o^of resolving work permit before filing the dispute to CMA. Counsejss^ibmitted that the arbitrator erred in law to treat a letter dated 4th January 2021 (exhibit A8) written by counsel for the respondent demanding respondent to be paid USD 1,121,658.1 within 24 hours as notice of resignation or "constructive termination noticd'. It was also 7 submitted on behalf of the applicant that, exhibit A8 cannot be regarded as resignation as it does not say that the respondent resigned. It was further submitted that, the said exhibit was written by counsel for the respondent while resignation has to be done by an employee and not by her lawyer. More so, Mr. Ngowi, counsel for the applicant insisted .that the said letter is not "constructive termination notice'^as that is unknown creature in our jurisprudence. Counsel for the applicant

submitted^further^that, there was no proof that applicant made employment ofAthe respondent intolerable. respondent as the positi^n\^ob title of the respondent in the work permit did not tally withsthe contract of employment (Exh.DI). That, due for someone to work without valid permit, which is why, applicant put the respondent in administrative leave pending determination of work permit to be issued by relevant authorities. Counsel for the applicant went on that, at all time, respondent was in possession of her work 8 permit, residence permit and contract of employment, as such she was aware of the contents thereon. Counsel for the applicant concluded that complying with the law and ensuring that respondent had valid permit, cannot be construed to be an act of creating employment intolerable and that, arbitrator erred in concluding that failure of the applicant to allow the respondent to attend at workplace made employment intolerable. Mr. Ngowi, counsel for the appliratft^ubmitted that, all claims in exhibit A8 including but not limited*^© claim of 2020 Financial year (FY20) bonus and payment of expatriate-allowance claims, in order to be paid, they were supposedfto be-included in the employment contract, but they were noJj/^Counsel for the applicant submitted that, respondent was given<^n^Won of being paid the remaining period of her contract, but st^refused. Mr.

JMgowi,Jearned counsel for the applicant submitted further that>. respondent was paid up to the end of her contract but the arbitrator disregarded salary slips (exhibit D3) which shows that respondent was paid for the whole period she was under administrative leave until expiration of her contract of employment. It was submitted that, reasons assigned by the arbitrator in not giving weight to exhibit 9 D3 is that, the same does not show the full bank account number of the respondent. Counsel for the applicant submitted that non-disclosure of the bank account number of the respondent did not invalidate the said salary slip and that the same was for confidentiality purposes. Counsel for the applicant submitted that, validity of exhibit</D3^was .not challenged by the respondent but by the arbitrator at the> time of composing the award. Counsel for the applicant^ubmitted that the arbitrator had no full knowledge of how the. said salary slips were. av Counsel submitted that, the arbitrator/erredin^holding that payment in exhibit D3 was not salary but onl^^^histrative leave pay, while DW1 testified that respondent wasfput on administrative leave for purposes of complying with the law^as^esgondent could not work without valid work permit. In concldsior^counsel for the applicant submitted that as respondent was paid for the remaining period, it cannot be said that there was

constructive termination. Mr/Mwanri, learned counsel for the respondent submitted that, the fixed term contract between the applicant and the respondent was breached by the applicant's conducts which made employment intolerable for the respondent to continue performing her obligations. 10 Counsel for the respondent submitted that, intolerable situation started in July 2020 as the respondent reported to the applicant incidences that constitutes intolerability but no action was taken. Counsel mentioned the intolerable incidences as (i) denial of expatriate status and benefits that were granted to foreign staffs hence discrimination, (ibf unexplained redundancy process that was later on withdrawn contraryxt^the law, (iii) denial of financial year staff bonus which was^granted to all staffs including local staffs hence discrimination, (iy) false and illegal work permit, (v) falsified information about4kabouc:0fficer and Immigration Department inquiry, and (vi) e^fe^^hiding at home order" and approach to buy respondent^mployment. Mr. Mwanri, counsel)for the respondent submitted that, the dispute between the parties was not unfair termination but breach of vrv-' contract and thatapplicant has missed a point by basing her submission orf^cons^yctive termination. Counsel submitted that, in CMA Fl, respondent indicated that the dispute relates to breach of contract and did not fill part

B of the said CMA Fl. Counsel for the respondent submitted further that, the contract between the parties was not executable due to unfair Labour practice of applying and obtaining illegal 11 work permit that was negligently done by the applicant. Counsel for the respondent went on that, it was constructive breach of the contract when the applicant told the respondent to hide and not to go at work due to illegal permit without proof that there was inquiry of her work permit from government officials. Counsel for respondent ^concluded 'i? that, impliedly, applicant breached covenant imposed by theslaw, which is a breach of contract. On the other limb of his submissioq^couRsePfor the respondent submitted that respondent testified at/pFwthat, she was constructively terminated from employment. \Gounsel cited the case of Kobii Tanzania Ltd v. Fabrice'Ezaovi, Civil Appeal No. 134 of 2017. CAT (unreported) andxargueo that all conditions set by the Court of Appeal to ^jwexoqsj^ctive termination were proved by the respondent based oiyintolerable incidences mentioned hereinabove. Responding to suBmission^y/counsel for the applicant that exhibit A8 was written by a lawyer and not the respondent, Mr. Mwanri, submitted that, the said exhibit was written by a lawyer after being instructed by the respondent and therefore, it is good as if it was written by the respondent herself. 12 Mr.

Mwanri strongly submitted that the relationship between the applicant and the respondent became unbearable as it was proven by the document that was received at CMA for identification as ID1 because respondent was not paid expatriate allowances and bonus as she was discriminated. Having carefully examined the CMA record and submissions made on behalf of the parties, I have opted to put clear somejfew issues that have consumed time of the parties in their<^uo^issions. It is undisputed that in the CMA Fl, respondent showe^that the dispute relates to breach of contract and did not fillx^art^B that relates to termination of employment. It is also un^tep^ed^that in the said CMA Fl respondent showed that she v\fas^ai^ingstoz be paid terminal benefits amounting to USD l,121,6587i\puring trial, applicant raised an objection when the respqpden^attempted to tender various email correspondences relating to expert Allowances, Fy20- above and beyond hard work: Employee Shout Out, Permit Query by Immigration, reference meetings with Zelma and pay out as a result the arbitrator received them for identification purposes and marked them as ID1 promising to make a decision on 13 their admissibility at the time of considering the entire evidence as per Rule 23(9) of the Labour Institutions (Mediation and Arbitrations Guideline) Rules, GN. No. 67 of 2007. In the award, the arbitrator said nothing

on admissibility or otherwise of these emails but went ahead to consider and use them. On the other hand, counsel for/the respondent has over relied on these documents to oppose the applicatiorKWith due respect to both the arbitrator and counsey^^x^the respondent, documents that has not been admitted in evidence, cannot be used as such. The arbitrator was supposed to/make aLruling on admissibility or otherwise of the said documents^LnngJtrial and not otherwise. His failure made the respondent to believe that the documents were evidence but the applicant^believing it was not. The documents that were admitted fortification has no evidential value. This is position of the lav/as^w^ propounded in the case of Rashid Amir Jaba and Anothefv^Republic, Criminal Appeal No. 204 of 2008 (unreported) whereiqttne Court of Appeal held:- "The law is settled that any physical or documentary evidence marked for identification only and not produced as an exhibit does not form part of the evidence hence have no evidential value, (see Samson Eiias @ Michael Vs. Republic, Criminal Appeal No. 283 of 2012, 14 and Udaghwenga Bayay and 16 Others ks. Halmashauri ya Kijiji cha VHima Vitatu and Another, Civil Appeal No. 77 of 2012 (both unreported)" The arbitrator relied on Rule 23(9) of GN. No. 67 of 2007, supra, that empowers the arbitrator to decide the preliminary point before going ahead with the

matter or continue with hearing oj/the^dispute^and decide the preliminary point at the time of considering/all evidence in the matter. As pointed hereinabove, the arbitrator didxnot decide on the preliminary point at the time of consideringxevidence of the parties. This is an error. IDI was therefore wrongly, relied upon by the arbitrator as the same was admitted as evidehcejor it to be regarded and relied upon as evidence. More so, reliance on IDI by counsel by the respondent to support the arbitrator's decision cannot be accepted as the said IDI is,nobevidence. Even if these documents could have been w admitted aSseviden.ce, would have been not proper to rely upon them for reasons that^they were not part of what the parties agreed in the fixed term contract of employment as I will explain hereinbelow when discussing sanctity of the contract of employment between the applicant and the respondent. 15 The heart of argument between counsel for the parties has been whether; respondent's employment was constructively terminated by the applicant or not Initially counsel for the respondent bashed counsel for the applicant that he has missed a point as the dispute did not related to constructive termination because respondent did not fill/parf^^f^MA Fl as the same was based on breach of contract. BuNa^r^on; in the same submission, counsel for the respondent submitted that

respondent was constructively terminated. It is clear in CMA Fl, respondenP^howed that the dispute was based on breach of contract, but he^prayers were based on termination, which is why, she showed^^she was claiming terminal benefits. The CMA record shows tha^^l^ March 2021, the parties drafted two issues nan^ely (1) wither there was constructive breach of contract and (ii) to what reliefsiare the parties entitled. Therefore, the matter went ahead basedxSn these two issues. It was submitted by counsel for the respondent that, there was constructive breach of contract of employment by the applicant while counsel for the applicant submitted that, there was no constructive termination. In my view, these are two different terms. 16 The term "constructive breach of contract is defined by Bryan A. Garner (editor in chief) in the Black's Law Dictionary, Eight Edition by referring to anticipatory breach. The latter is defined to mean "a breach of contract caused by a party's anticipatory repudiation i.e., Now therefore, the issue is whether respondenKproved by evidence that there was constructive breach of contractor the award to be issued in her favour. I have examined evidence of\M^itu Ebba (PW1) the respondent and find that she stated nothing relating to breach of contract. All what she stated in her evidence'rrelates to incidences she believes made employment to^be\intolerable. In

her evidence, respondent (PW1) did not testify~as to-how and what clause of the said fixed term contract of employment^was breached by the applicant. Argument by counsel for the respondent that intolerable situation started in July 2020 and that respondent reported to the applicant who took no action, is not supported by evidence. Mergitu Ebba (PW1), the respondent who is the only witness who testified at CMA to prove her case, did not so state. 17 Mr. Mwanri, advocate has therefore, advanced extraneous matters not supported by evidence. That is unacceptable. In her evidence in chief, respondent (PW1) is recorded stating:- "When I was in Tabora doing field work I received an email from my immediate supervisor Dr. Magnes that I should go back in Daries salaam as my Mbeya station has received call regarding my working pem^t\Thereafter I was advised to work from home on allegation that the titie> in / ny work permit reads Outreach Consultant while in the residerfttpermit the title reads Prevention and Outreach Advisor which is my actua^titleof-my position...It is my employer who secured the workpermit^which^ars a wrong title. It was my expectation that my employer^secure^my permit to reside in Tanzania and provide me with correc^ermit^believe my employer has breached my contract and put me intoa risk of being arrested. It is really impossible to keep on working^even from home as I

may be arrested even when I am at horned While under cross^xarnipation, respondent is recorded stating:- "According^to^th^offer fetter and fixed employment contract, my job title is prevention^and outreach advisor. I was employed as advisor. It is correct (t^t^my employer processed resident permit according to the cont^pof employment. Residence permit I think comes from Immigration. Work permit is issued by the Labour Commissioner..." From the afore quoted evidence in chief, respondent believed that the applicant breached the contract. In other words, there was no breach of contract but a mere belief by the respondent that the contract 18 was breached. Reliance of the alleged breach by the respondent is based on issuance of work permit bearing different title of the respondent from the one appearing on the Residence permit. But the issue is whether; that can amount to constructive breach as defined hereinabove. In my view, it does not. Reasons for this conclusion is.not far. It was submitted on behalf of the respondent that the contract was not executable due to unfair Labour practice of applying and obtaining illegal work permit that was negligently done^by tne applicant. With due respect to counsel for the respondent^There^is^no evidence on record showing that applicant obtained illegabwork permit of the respondent. What is clear is that the jotfftitle appearing in the work

permit differs from the one in the resident^ permit. That in itself; cannot amount to obtaining illegal pefmitW the respondent. It was argued again that, the obtaining of'the respondent's work permit was negligently done by the applicant. Once again, respondent did not prove by evidence negligence of thebapplicant. On the other hand, evidence was given by the applicant as to how this happened, and attempts made to resolve it. Respondent complained that she was at risk of being arrested for being in possession of the work permit that shows that, her tittle is 19 Outreach Program Consultant, while her tittle appearing in both the Residence permit and the fixed term contract of employment was Outreach & Prevention Advisor. It was further submitted by counsel for respondent that, after noting that there was discrepancy in work permit of the respondent, applicant took no action to remedy the^situati^^and that, applicant applied the work permit for wrong title^r^or^ to make the work intolerable. These allegations, in my view^are not backed up by evidence. Because, on 15th August 2019$^he\^xecutive Director of the applicant wrote a letter titled CHANGEOFLOB TITLE FOR MS. MERGITU FEKADU EBBA OWITH^ WORK PERMIT NO. WPC/12656/17 (part ofJsxh. A3) to the Labour Commissioner to change work permit <pf the. respondent. Reasons assigned for this change is that, initially^the respondent had a

different role from the present. The^saKyetter reads in part:- "...HJ^Medical Research Internationa! Inc (HJFMRI Inc), is writing to requespyou to renew our employee MS. Mergitu Fekadu Ebba ("Miss. Ebba") Work Permit Class C No. WPC/12656/17 issued under a job title of Outreach Program Consultant to a new job title as the Outreach & Prevention Advisor...In 2017, HJFMRI Inc applied for a work permit for Ms. Ebba on a consultancy basis which was issued under work permit no WPC/12656/17 issued under a job title of Outreach Program 20 Consultant, the work permit was renewed on the same title on 3(Th March 2019, but it was deferred on 3CP1 April 2019 due to missing documents. During the application, HJF Inc was awarded by the Tanzania People's Defence Force (TPDF) on clinical and prevention strategies with regard to the prevention of HIV/AIDS. This award has made it necessary for HJFMRI Inc to change Ms. Ebb's position as a consultant to a full time employee because of the sensitivity of the role hence new job title...TMs^roleyda^not be filled on a consultancy basis due to the sensitivities involved in tyork directly with the TPDF... HJFMRI Inc respectfully requests that you grant the permit and we thank you for your usual cooperation... ^2 On 23rd August 2019, the Labour Commissioner issued Work permit No. WPC/12656/16 (exh. DWqfavqdr of the respondent. It can be recalled that, the

said /fixed<term contract of employment between the applicant and (the respondent was signed on 27th June <xN\ 2019, and the letter f^ap^ication for renewal of work permit of the respondent (part of^5^A3) to be in line of the contract, was written on 15th Augus^x2^^and the permit was issue seven (7) days thereafter i.e., on 23^^ugust 2019. In my view, the complained of error, cannot be^attrl^buted to the applicant. It is a misdirection on part of the respondent to claim that applicant constructively breached the contract by failure to give respondent proper work permit or that applicant acted 21 negligently. The quoted part of exhibit A3 speaks louder that applicant was not negligent. Apart from the foregoing, in my view, respondent has also a share of blame to this. In her evidence, respondent testified that she received an email while in Tabora doing field work requiring her to <go^acNn^Dar es Salaam and work from home as the applicant's office at/Mbeya received a call from Immigration officer about her workSfoermit^I should point that, according to resident permit issued tort^^pondent, Tabora was not one of her place of work. In shoi^shfe violated the terms of her residence permit. Respondent testifie^^^^iile in Tabora for field work, she was told to go back in Dar^^afaam allegedly that government officials were enquiring ferJw^-kxpermit. Unfortunately, respondent did not

show the date sh^eceived the said email. Possibly, it was in 2021 because respondent* indicated in CMA Fl that the dispute arose on 7th January 2021. The permit was issued on 23rd August 2019, and in terms of section 17(2) of the Non-Citizens (Employment Regulation) Act, 2015, No. 1 of 2015 respondent was the custodian of the said work permit 22 from the date of issue, as such, she was expected to have noted the difference in her job title and report to the applicant. Respondent was not expected to wait until government officials intervenes. The said section reads:- "17(2) A work permit or certificate of exemption, as tfie^case may(bf) shall be kept by the person to whom it is issued and shall on'tfemand be produced." Respondent cannot claim that she was not ^possession of the said work permit or that she was unaware that shejsriot supposed to be in possession of the said working permitxbecause conditions on the work permit itself is clear. Condition>number<3 on the working permit reads: „ A "3. This permit shajUbe^kept by the holder and produced to any authorized perso^^^^iand." It is clear>tfi^bthe work permit, exh DI, was issued to Margitu Ebba, the responds^, as it reads:- hereby issue work permit to Mrs. Margitu Ebba of CANADA nationality with passport No. GJ670504 to work as OUTREACH PROGRAM CONSULTANT in Tanzania mainland with M/s HJF MEDICAL RESEARCH INTERNA TIONAL INC.

This permit shall be valid for the period of 2 YEARS with effect from 23rd AUGUST 2019 to 22nd AUGUST 2021 subject to conditions specified overleaf. 23 Dated23/8/2019 Rehema G, Moyo sgd For: Labour Commissioner" In my view, as the respondent was in possession of the said work permit, and, as she was also in possession of the residepceypermit, it was not open to her to wait until government officialsxfrom^ither Immigration department or the Labour Officer to m^ke inquiry. She had It was testified by the respondent^ and submitted by her counsel that, the applicant falsified^he work permit of the respondent, in alternative, that applicant^was negligent in making application for work permit of the respondent. It is my considered opinion that, that complain^^^^^^sm against applicant lacks legal support. This is because, incterms of section 10(1) of the Non-Citizens (Employment Regulation) Act, 2015, an application for working permit has to be made by the employer. But the person who an application for work permit is made on behalf, has, in terms of Part I of the First Schedule to the said Act, to fill in, his or her particulars, affix a passport size photo, job title 24 etc and sign a declaration that ail information is correct. That being the position of the law, it is the respondent and not the applicant who filled her particulars and signed the declaration that all information

including job title is correct. She cannot now distance herself from that declaration. On the other hand, the employer is duty bouncl to^ign part II of the said schedule. In my view, the claim that the error was caused by the applicant who, filled in a wrong title in the^application for work permit, cannot be valid because that was thexduty^of the respondent in terms of Part I of the First Schedule ^to^thy^Non-Citizens (Employment Regulation) Act, 2015.1 should point here-that, the said schedule is part of the law as it was made'Punder section 10(2) of the Non-Citizens (Employment Regulation)^ct^2015. As pointed out hereinabove, the herein applicant(employer) was required to fill part II of the said First Schedule. Tnere^ nowhere in part II of the aforementioned First Schedule^^^iiring the employer to show job title of the person who, a permit^being sought in favour. So longer as respondent filled the job title and signed a declaration that all information is correct, she cannot now be heard shifting blame to the applicant. 25 As pointed above, counsel for the respondent initially submitted that the dispute related to constructive breach of contract and not termination. I have also explained hereinabove that respondent indicated in CMA Fl that the dispute was on breach of contract. In her evidence, respondent did not testify on how the contrad/^^^readjed, rather, she gave

incidences she believed made employmenbintolerable. This, in my view, is not similar in proving bread^f contract, rather, constructive termination. This explains all <as\k why, she claimed terminal benefits. In short, respondent, ^departed from her own pleadings. It is a cardinal principle^l^that parties are bound by their pleadings and they are not allowed to depart as it was held by the Court of Appeal in the case^o^\Jne Registered Trustees of Islamic Propagation Cen^^flpc) v. The Registered Trustees of Thaaqib Islamic (Tic), Civil Appeal No. 2 of 2020 ,CAT (u^repor^^^> and in Astepro Investment Co. Ltd v. Jawinga Company Limitedf Civil Appeal No. 8of2015,CAV (unreported). In the IPC's case, supra, the Court of Appeal held that:- "As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules o fpleadings.... For the sake of certainty and finality, each party is bound by his own pleadings and 26 cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which

the parties themselves have raised by the pleadings. Indeed, the court would be acting'jcodtmry to its own character and nature if it were to pronounce any cjdim^or defence not made by the parties. To do so would be to enter upon therealm of speculation." Guided by the above Court of Appeal decisions and for all I have explained hereinabove, I hold that respondenbdeparted from her own ,o pleadings of which she cannot be allowecy>further hold that respondent did not prove the alleged ^each of-wntract. In short, the arbitrator erred to issue an award in'Tavour of the respondent. The afore holdiqgjs)sufficient to dispose the whole application but for comple<teh^^^) have opted to deal with other issues raised by the partfes/^^> It was argued by counsel for the applicant that respondent did not prove that her employment was constructively terminated. Respondent, on the other hand, narrated incidences which, according to her, made employment to be intolerable. I will not repeat those incidences as I 27 have briefly reproduced them in this judgment. Counsel for the respondent relied on the decision by the Court of Appeal in Kobil's case, supra, and submitted that all conditions were met and concluded that there was constructive termination of employment of the respondent. Counsel for the applicant was of the different^ewf\\ The issue of constructive termination is not novel in^ur

jurisdiction. It has been discussed and held several times byT^^hjs court and the Court of Appeal. For example, the court ofxAppeal had an advantage to ^9^ discuss the issue of constructive termination and the onus of proof thereof in the case of Kobii Tanzania Ltd vs Fabrice Ezaovi, Civil Appeal No. 134 of 2017^^eported). In the Kobil's case, (supra), the court of Appeal %uoted> and endorsed an article by Sharon Sheehan titledJC^^^jiictive Dismissal - A Last Resort Remedy that:- all-other dismissals, where an employee claims that they have been constructively dismissed the onus/burden of proof is placed upon them to prove that their resignation was justified. In effect, they are required to prove that they have exhausted all other avenues of resolution before they have resigned from their position. This would generally require them to bring their grievance to the attention of their employer, follow all the employer’s grievance procedures and industrial relations 28 procedures, as outlined in their contract or the employee handbook. Only where these procedures have not achieved an appropriate outcome or where the employer has refused to comply with or engage in these procedures, then should an employee consider resigning from their position. A failure to invoke these procedures may leave the Court or Tribunal open to rejecting a claim of constructive dismissal. " In the Kobii

case, supra, the court of Appeal subscribedy^>the South African decision in the case of Solid Doors^(P^y) Ltd v. Commissioner Theron and Others, (2004)^^1Dj2337 (LAC) at para 28 that:­ "... there are three requirements ^^^nstructive dismissal to be established. The first is that the^mployee must have terminated the contract of employment. The^second^isithat the reason for termination of the contract must be thabcontinued employment has become intolerable for the employee. The third Is^fiat^must have been the employee’s employer who had made/^condnued employment Intolerable. AH these three requirements musbbejiresent for it to be said that a constructive dismissal has beemestabb'shed. If one of them is absent constructive dismissal is not establ/shed^\y It\is^y> considered view that, constructive termination of contract of employment is by forced resignation as provided for under rule 7(1) of the Employment and Labour Relations (Code of Good Practice) Rules, GN. No. 42 of 2007. From the evidence in the CMA record, the respondent did not resign as she conceded in her evidence while on 29 cross examination. More so, while under cross examination she admitted that her employment was not terminated by the applicant. Counsel for the respondent relied on Rule 7(1), supra, and submit that there was constructive termination. The said Rule 7 is clear and provides:- "7(1) where an

employer makes an employment intolerable^which may result to the resignation of the employee, that resignationamount to forced resignation or termination. (2) subject to sub-rule (1), the following <cmjmstances may be considered as sufficient reasons to justify designation or constructive termination- sexual harassment and; (b) if an employee has beenjhfairiy deal (sic) with, provided that an employee^has utilized the available mechanisms to deal with griev^nces^unless there are god reasons for not doing so^-^s^^ (3) where it^bjestablished that the employer made employment into^rab^as^a^result of resignation of employee, it shall be legally regarded^as-termination of employment by the employer." \\In fact/for an employee to succeed in an application for unfair termination based on intolerability of employment, has proved that it is his or her employer who caused the employment intolerable in terms of section 36(a)(ii) of the Employment and Labour Relations Act [Cap.366 R.E 2019], This section provides:- 30 ”36 For purpose of this sub-part- (a)termination of employment "indudes- (0- (ii) a termination by an employee because the employer made continued employment intolerable for the employee." It was argued by counsel for the applicant that resj^ncTeot did not terminate the contract of employment as the<s8^^ed " Notice of constructive termination!' dated 8th Januar^202<b (part of

exhibit A8) was written and signed by an advocate^nd^notthe respondent. On the other hand, counsel for respondent argued that the advocate wrote and signed the said notice afterxpermission of the respondent and that it is equally that it was sigrjed^by the respondent, with due respect to counsel for the resp^dent, that proposition is not correct in law, because anything required to be done by a certain person, it must be so done and ngtjotherwise. Section 36(a)(ii) of the Employment and Labour Relations/Act, supra, requires an employee to terminate employment and not any other person to terminate employment on her behalf. In the letter titled CONSTRUCTIVE TERMINATION OF MERGITU EBBA dated 4th January 2021 signed by Isaya Z. Mwanri, advocate (that is part 31 of exhibit A8) that is regarded as "Notice of constructive terminatiori', the author narrated incidences relating to (i) denial of expatriate status and benefits, (ii) unexplained redundancy process that was later withdrawn, (iii) denial of FY20 staff bonus, (iv) false and illegal work permit, (v) false information about Tanzania^ immigration department inquiry, (vi) unexplained inquiry of the unknown labour officer, (vii) Endless hiding at home and (viiiY^ipproach to buy out contract. At the end the author wrote as follo^s:-\\ ”... from the above reasons, we ha^^riaked ora! and documentary evidence to establish constructive

/termination. It is undisputed that any reasonable member of the societyean^construe that the workplace is no longer tolerable for our dieht^Therefore, we have full instructions from our client to demand terminabbenefits of USD 1,121,658.1... Take notice that any failure to honour^the^above listed demands within 24 hours from the date of this !etter,\we have full instruction to pursue our client's right in the Regards v o*

BAISTAR ADVOCA TES Sgd ISA YA Z. MWANRI (ADVOCATE)." From where I am standing, the above quoted letter cannot, for all intent and purpose, be regarded as letter terminating employment on 32 behalf of the respondent. There is nothing said in the said letter that respondent has decided to terminate her employment after the applicant had made it intolerable. The said letter is a demand notice and not termination of employment. I therefore concluding that there is no constructive termination of employment because the^a^reme^tbned fixed term contract of employment between the partiesx^was not terminated. In short, the conditions set out in the^outh African case of Solid Doors, (supra) that was quoted with<approval by the court of w Appeal in Kobil's case, supra, for>copstructive termination to exist were not met. fP Vrx In ground 3, appIicantSargued that arbitrator awarded costs of living allowances while^thei;e was no evidence to establish that respondent was (entitled to that allowance. In ground 4, Hon. f—\ Arbitrator is^criticized that he determined the dispute on issues that were not^leyant as respondent was not terminated. In ground 7 ap^cant/argued that there were not contractual terms between the parties for the arbitrator to award the respondent to be paid reliefs that she was awarded e.g., accrued payment for leave, general damages, repatriation fees severance

etc. 33 Counsel for the respondent submitted that, respondent was entitled to all relief claimed in the schedule of claims annexed to CMA F.l that I have reproduced in the introductory part of this judgment. It was further submitted by counsel for the applicant that, when there is termination of a fixed contract of employment, an employee is awarded payment for the remaining period^the ccmract, remaining period. In rejoinder, counsel for the app^dn^ubmitted that respondent was paid up to the last date of expiry^oPher employment hence she is not entitled to be paid damages or any other relief. I have carefully read^the fixed term contract of employment between the applieantjand respondent (exh.Al) and find that it has awarded as being house allowances, (iv) USD 51,158 that was awarded as being school fees for two dependents, (v) USD 10,000 that was awarded as being payment for health insurance, (vi) USD 7,000 that 34 was awarded as being payment for home security, (vii) USD 10,000 that was awarded as being payment for air tickets, (viii) USD 2,782.06 that was awarded as being severance pay and (ix) USD 36,800 that was awarded as being transportation costs all amounting to USD 357,163.46, this is because, there is no clause in the said fixed^term's^^ntract showing that parties agreed these to be paid or that respondent was being paid these payments. As these were not p<ar^pflhe

terms in the said fixed contract (exh Al), parties are bound byxwhat they agreed in the said contract. The court of Appeal in-t^ca^of David Nzaiigo vs. National Microfinance Bank PEC^civil Appeal No, 61 of 2016 \j) (Unreported) has clearly put this clearwhen it held:- "...It is importanvtq^o^that the sanctity of the employment contract cannot be gainsaidTlm^e'present appeal the appellant and the respondent agreed to^beldound^by/the contract under the terms and conditions therein and alst^ccepte^j the rights and duties, responsibilities and obligations on either/^^^^ ^Appj^ing sanctity of employment contract between the applicant and the respondent, all what was not agreed in the said fixed term contract of employment, cannot be awarded. In the said fixed term contract of employment (exh. Al) parties agreed in clause 11.2 that any termination prior to expiry shall be by either party giving the other thirty days 35 written notice or on payment of one-month salary in lieu of notice. As held hereinabove, there is not termination of employment and therefore, it was an error on part of the arbitrator to award respondent to be paid USD 5,166.7 as payment of one-month salary in lieu of notice. As there was no termination, it was also an error for the arbitratoQto award USD 180,000 as general damages. Complaint by counsel for the applicant that arbitrator awarded the respondent

byxexceeding the remaining period of the fixed term contract has^merit^But, as there was no termination of contract of employment,^respondent cannot also be paid for the remaining period, <^1ore so, the evidence of Jovitha Gabriel Mirumbe (DW1) was not shakemwhen she testified that, respondent was put in administrative leave and continued to receive payment while trying to sorToutNier work permit issue, but she rushed and filed the dispute at^QM^ testifiecl further that, respondent was paid the said adr^mstrafive pay up to April 2021. DW1 tendered pay slip (exh D3) without objection. I have noted that, DW1 testified on 7th May 2021 and therefore, in my view, no payment could have been done in favour of the respondent as administrative leave for the remaining period i.e., 30th 36 June 2021. For all these, I hold that, respondent was not entitled to be awarded any payment. For all what I have stated hereinabove, I find that the application by the applicant has merit and hereby allow it. I therefore quash^and set aside the CMA award. Dated at Dar es Salaam this 11th March 2022 B.E.K. ^ganga^ 37