irene boniface ngowi vs delfina eco tourism promotions ltd 2023 tzhcld 1289 31 may 2023

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION NO.66 OF 2023 (From the decision of the Commission for Mediation and Arbitration at Kinondoni Labour Dispute No. CMA/DSM/KIN/80/22/44/2022, Nyagaya, P.: Arbitrator, Dated 17h February, 2023)

BETWEEN IRENE BONIFACE NGOWI.............................................. APPLICANT

VERSUS DELFINA ECO TOURISM PROMOTIONS LTD............. RESPONDENT

JUDGEMENT 10th-31st May, 2023 OPIYO, J. This application is seeking for the court to call for and revise, quash and set aside the award of the Commission for Mediation and Arbitration (CMA) No. CMA/DSM/KIN/80/22/44/2022, Hon. Nyagaya, P. (Arbitrator) dated 17th February, 2023. Brief facts of the case is that the applicant was employed by the respondent in a one year contract on 04th January, 2021. The contract was terminated on 04th January, 2022. Disatsfied the applicant filed for a labour dispute at CMA claiming for breach of contract. The matter was heard and i the decision thereto was infavour of the respondent, aggrieved the applicant preferred this application. The affidavit in support of the application states the ground stated for revision is whether it was correct for arbitrator erred to decide that the respondent did not breach the employment contract unfairly and that it was proper for the respondent to terminate the employment of the applicant because of the loss in the business of the respondent. Both parties were represented. Mr. Juma Yahaya Kondo, Personal Representative represented the applicant while Mr. Shabani Yusuph, advocate appeared for the respondent. For the application Mr. Kondo submitted that unfaire termiation in fixed term contract is defined under Section 36(a)(iii) Employment and Labour Relations Act [CAP. 366 R.E. 2019] as failure by the employer

to renew a fixed term contract where there is a reasonable expection of renewal. He contended that the applicant was employed as embrodary mashine operator on fixed term contract renewalbe since 11th April, 2011 and his last contract was from 4th January, 2021 to 4th January 2022. He submitted 2 that although expectation of renewal has not been defined by CAP. 366 R.E. 2019, but Hon. Kente, JR. provided the same in Civil Appeal No. 476 of 2020, Ibrahim S/o Mgunga and 3 others Vs. African Muslim Agency Pg. 11 He then argued that as there was annual renewals from 2011 to 2022 means that there was ten previously renewal of applicant's employment contract. He added that, those ten renewals justify the reasonable expectation for renewal. He continued that fixed term contract do cease automatically but when there is a reason provided by employer also shows that the employer is aware that there was reasonable expectation for renewal, therefore termiation in the circumstances is unfair. Again Mr. Kondo submitted that usually the expiry reason for the contract is stated in the contract and that the reason given by the employer in this case is not one of them. He continued that, there is no evidence showing that the employees served with notice of termiation of contract as per rule 4 of GN 42 of 2007). For him, the contract of this nature can only came to an end if it is in accordance to

the terms of contract. 3 He submitted further that the charasteristic of work for which the applicant was employed is there to stay and some one took over immediately the applicant left. In his view, such work character does not pass the fixed term contract characteristic and this brings reasonable expectation of renewal. To support his point he cited the case of Sikitu Masail Vs. Registered Trustees of Tanzania parents Association and another Rev. No. 7 of 2017 Hon. Ndunguru, J. where it was held that, if the employer terminates the contract where there was expectation of renewal then the termiation is unfair both substatively and procedurally. Therefore, the the award by CMA that the applicant's contract was supposed to expire was unjustifiable and by it being both procedurally and substatively unfair it brought mental anquish, tourture and distress to the employee calling for maximum monthly compensation under Section 40(3) of CAP. 366 R.E.

2019. He cemented his point by referring to the case of Veneranda Maro Vs. AICC, Civil Appeal No. 322 of 2020 Pg 11 which also set quantum of compesation under Rule 32(l)(ii) and (iv) of Mediation and Arbitraiton Rules. 4 He then prayed to this court under the power vested in Section 91 of CAP 366 R.E. 2019 for 48 months compesation. He continued that the unfair termiation lead to suffering of applicant and unfringement of her right to work and so for him she is entitled to general damages amounting to TZS. 30 million. He supported his point by referring the case of TRA Vs. Elias Joseph Huruma Rev. NO 572 OF 2016. He added that the applicant also prays for one months salary in liew of notice. Against the application Mr. Yusuph submitted that the personal representative of the applicant did not explain what he is praying for the court to revise from the CMA award. He stated that the contract was not breached, but it came to an end automatically and even the applicant admitted under paragraph 3 of opening statement before CMA that formed part of her pleadings. He argued that parties are bound by their pleadings referring to the case of Yara Tanzania Ltd Vs. Charles Aloyce Msemwa and 20 others Comm Case No. 5/2013 to substantiate his argument. He added that, when this matter was at CMA the applicant through opening statement addmitted expiry of her contract. She also 5 admitted

being notified of termination of contract. Thus, she cannot claim otherwise now. He went on to state that that expectation for renewal explained is not part of applicants affidavit therefore the award cannot be revise based on what was not part of his pleadings. In continuing Mr, Yusuph submitted that, the personal representative for the applicant raised new facts on damages and reliefs when he was submitting, things which were also not discussed in the CMA or filled in CMA form No.

1. He stated the CMA award states applicants claims the total of TZS. 2,844,811, and so the claim of damages of 30 million or 48 months compesation are both new facts. He then prayed for this prayer to be ignored. On Exhibit D2, he submitted that the notice of non renewal which shows it was issued 30 days before expiry of the contact. That the notice was admitted by CMA unobjected. He submitted further that the contract between the parties was a fixed term from 4th January, 2021 to 4th November, 2022. Therefore, what the respondent gave the applicant was 6 a the notice for non renewal not termination due to operational reasons. Thus their contract ended automatically upon expiry of the term. To support his point he cited the case of Guzuye Yavan Athman Vs. Impala Groupo of Hotels, Labour Revision No. 112 of 2017 Grace J. Pg. 4 para 2 in which it was stated that the contract stipulated date of ending, so no termiantion as the applicant worked to the date of termination. He submitted further that the notice is not termiation, it just stated the reason for declining renewal. Thus no breach of contract can be claimed as the contrat was not ended before expiration of the fixed term. He added that no order of reinstatement has ever been awarded to justify any compesation upon failure to reinstate. He then prayed for the application to be dismissed. In rejoinder Mr. Kondo submitted

that the affidavit explains clearly that the dispute was unfair termination not breach of contract and that is what he has explained. For him, that is the reason he requested the court to revise CMA award and give proper relief in cases of unfair termiation which could not be seen in CMA award which did not determine unfair termiation. 7 He continued that the contract that ends automatically is the one that is ending silently, there is no need of notice. In determining the matter at hand basing on CMA records, exhibits tendered and submission of the parties, seemingly this court has been called upon to tuckle issues of whether the employment contract of the applicant was fairly terminated. There is no dispute that the applicant was the employee of the respondent and that her employment contract was for a fixed term contract (exhibit DI) which started from 04th January, 2021 and was supposed to end on 04th January, 2022. The applicant through her testimony in CMA did not dispute on the dates indicated in the contract as they are the ones which she agreed at the time of signing her employment contract. She does not dispute either that she was given a notice of non renewal of employment contract one month before the end of the contract (exhibit D2). Her dispute is that the contract was supposed to end one day earlier and not on 04th January, 2022. 8 In fixed term contracts, rule

4(2) of the Employment and Labour Relations (Code of Good Practice) G.N. No. 42 of 2007 provides that the contract shall terminate automatically when the agreed period expires, unless the contract provides otherwise. Based in this provision the applicant's contracts was supposed to end after on the expiry date indicated in the employment contract. Records shows that, even though fixed term contract terminates when the agreed period expires, the respondent in this application went further by giving the applicant a non renewal notice one month prior out of courtesy. The personal representative of the applicant stated that the applicant had reasonable expectation for renewal since she had so many newals before the last contract which was terminated. With due respect the argument is misconceives as the number of previus renewal does not matter when the notice for non renewal is served by the employer. Expectation for renewal is provided under rule 4(3) of G.N. No. 42 of 2007 that: - "Subject to sub-rule (2), a fixed term contract may be renewed by default if an employee continues to work after the expiry of the fixed term contract and circumstances warrants if " 9 Records shows that the applicant's employment contract was supposed to end on 04th January, 2022 and exhibit D2 openly shows that she was informed of intention of non renewal. This proves that there was no extra day that

the applicant worked to amount to have worked after the expiry of the fixed term contract to qualify for renewal by default provided in the above provision. The applicant stated at CMA that, by working until 04th January, 2022 she exceeded one day at work. Exhibit DI shows that the date the applicant is complaining about is the one indicated in her employment contract. This means when signing the employment contract she knew what she was agreeing to. Parties to the contract are bound to want they have agreed upon as was held in the case of Hotel Sultan Palace Zanzibar vs Daniel Laizer & Another, Civil Application No. 104 of 2004 referred to in the case of Higher Education Student's Loan Board vs George Nyatega, Labour Revision No. 846 of 2018, High Court at Dar es Salaam ata page 12. In that case it was held that: - "It is elementary that the emeployer and employee have to be guided by agreed terms governing employment. Otherwise, it wouid be a io chaotic state of affairs if employees or employers were left to freely do as they like regarding the employment in issue." As the applicant knew what employment contract stated, by signing it she agreed that, that is exactly what it meant and can not alleg otherwise now. For the reason, I find the arbitrator's findings logical. Therefore, this application has no merits. It is hereby dismissed. CMA award is upheld. No order as to costs as this is the labour matter. M. P. OPIYO,

JUDGE 31/05/2023 11