ismal mussa athuman vs lake oil ltd 2020 tzhcld 18 27 march 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO 86 OF 2019 ISMAL MUSSA ATHUMAN........................................... APPLICANT VERSUS LAKE OIL LTD........................................................RESPONDENT JUDGEMENT Date of Last Order 26/02/2020 Date of Judgment 27/03/2020 A. E. MWIPOPO J This is an application for revision whereby the applicant calls upon the court to examine and revise the Commission for Mediation and Arbitration (CMA) award in dispute No. CMA/DSM/KIN/406/15/220 at Dar Es Salaam dated 19™ January 2019 before Hon. WILLIAM, R. Arbitrator. The application is made under Section 91 (l)(a)(b), (2)(a) (b) and S. 94 (l)(3)(a)(i) (b) of the Employment and Labour Relations Act, No. 6 of 2004 (ELRA), Rule 24 (1), (2) (a)(b)(c)(d)(e)(f),(3)(a)(b)(c)(d) and Rule 28 (1) (c) (d) (e) of the Labour Court Rules, GN. No. 106 of 2007 and any other enabling provision of the law. The applicant prayers are as follows;- l 1. That this Honourable Court be pleased to revise and set aside the whole award o f the arbitrator in Labour Dispute No. CMA/DSM/KIN/406/15/2020. 2. Any other relief(s) the honorable court deems fit to grant At the hearing of the application for revision the applicant was represented by Mr. Hemed Omary, Personal Representative and the respondent was represented by Mr. Heriolotu Boniface, learned Advocate. The revision was heard orally. In his submission, Mr. Hemed Omary prayed to adopt the affidavit of ISMAIL MUSSA ATHUMANI to form part of the submission. Then, he submitted that the Hon. Arbitrator erred in law to dismiss the application before CMA on the ground that the applicant was not employed by the respondent, but he was employed by the DW1. This was testified by DW1 himself and DW2 at CMA. He further submitted that DW2, the accountant of the respondent, testified that the last work of DW1 to respondent was to construct petrol station at Bunju. DW3 who is Human Resource officer of the respondent stated that the applicant was not employed by the respondent as he was not in the list of respondent employees. 2 Further Mr. Hemed argued that Section 96(2) of Employment and Labour Relation Act, No. 6 of 2004 provides for the duty of the employer to keep record of employees for five (5) years after the termination of his employment. He also argued that DW3 (Human Resource Officer) who is the key witness in the whole case as to the termination of applicants employment never tender any exhibits to prove that the termination was fair. He was of the view that DW3 was supposed to tender attendance Register or the list of respondent's employees which would have shown that the applicant was not employed by respondent (Lake Oil Ltd). He argued that the arbitrator did not consider Section 61 of the Labour Institution Act, No 7 of 2004 which provides for situation of presumption of an employee to be employed by the employer even where there is no contract of services. The letter of transfer shows that the applicant was in a direct supervision and control of the respondent. He therefore prayed for the court to quash the CMA award. In reply, Mr. Boniface Learned Advocate prayed for the counter affidavit of JOHARI LEKEY (respondent's Human Resource Officer) to form part of his submission. He submitted that the Employment and Labour Relations Act, 2004, under Section 4 define who the employer is. 3 He further argued that the applicant applied for employment to the respondent but he was not employed by the respondent. He submitted that the CMA award in page 14 paragraph 2 rightly interpreted who is employee, also in page no 4 of the award the witness DW1 testified that they were working through phone and payment were made depending on the work done. He further argued that DW1 testified that he was the one who employed the applicant and the payment was made on the basis of the work done. Therefore, the evidence show that the applicant was not an employee of the respondent. On that basis, Section 39 of Employment and Labour Relation Act is irrelevant because the applicant have never been an employee of the respondent and there is no way the respondent would have terminated the employment of the person not employed in his service. Also, Section 96 of Employment and Labour Relation Act which was cited by the Personal Representative is irrelevant to this application since the respondent could not have to keep the record of the person who is not his employee. He argued that a mere fact that the applicant was set to buy constructive materials does not amount to employment as it alleged by the applicant. He avers that the letter of transfer of the company must 4 contain a seal of the company hence it cannot be relied to be the document made by the respondent while it lacks a seal. Regarding the issue of proving the allegation by bringing record of employment, he submitted that the applicant failed to prove that he was offered an employment and since he was the one who alleged, thus it was his duty to prove the same. He further argued that the respondent was not bound to submit any contract between respondent and the DW1 because there was no dispute between them. He ended up by submitting that it is the duty of each party to call witness and not Commission in case of any dispute. He said the- applicant was employed by DW1 and not the respondent. He therefore- prayed for application to be dismissed and uphold the CMA award. In rejoinder, Mr. Hemed reiterated his earlier submission in chief but came up with the issue of the letter of transfer of the applicant - Exhibit A2 by arguing that since the letter was signed by the Human Resource officer of the respondent there was a need for the Hon. Arbitrator to call Martha Mwansasu who signed the letter of transfer to prove the validity of the letter. Having heard both parties, I believe that this court is called upon to resolve the following issues:- 5 i) Whether there was Employer-employee relationship between the applicant and the respondent. ii) Whether the applicant was unfairly terminated. iii) What are the relief entitled to parties? To start with the first issue which is whether there was Employer- employee relationship, in the cause of answering as to whether the employer - employee relationship existed, I find it proper to refer to the decision of Rweyemamu J, in the case of Mwita Wambura Vs Zuri Haji, Revision Application No. 42/2012 at Mwanza. LCD 2014 Part II page 182 where the court held that: "There are a number o f common factors running through which can aid a decision maker in determining existence of an employment relationship. These principles are among others; (a) defining employment relationship by looking at parties roles, considering matters among others; dependency; subordination, direction, supervision and control o f services rendered; (b) Principle o f prim acy o f facts looking at what was actually agreed and perform ed by each o f the parties; and (c) Use o f burden o f proof " From above decision, there are a number of common factors through which can determine existence of an employment relationship. Section 4 of the Employment and Labour Relations Act No. 6 of 2004, defines employee as an individual who has entered into a contract of employment; or (b) has entered into any other contract under which the individual undertakes to work personally for the other party to the contract; and the other party is not a client or customer of any profession, business, or undertaking carried on by the individual. The section also defines employer as any person, including the Government and an executive agency, who employs an employee. This section has to be read together with Section 61 (a), (b), (c), (d), (e), (f) and (g) of the Labour Institution Act No. 7 of 2004 which provides for the factors to be considered when presuming the existence of the employment relation. The section reads as follows; 7 "61. For the purpose o f labour law, a person who works for or renders a service to other person, is presumed until the contrary is proved to be an employee regardless o f the form o f contract if any, one or more o f the following factors is present a) The manner in which the person works subject to the control or directions o f another person. b) The person hours o f work are subject to the control or direction o f another person. c) In the case o f person who works for the organization, the persons forms part o f the organization. d) The person has worked for that other person for an average o f at least 45 hours per month over the last three months. e) The person is economically dependent on the other person for which that person renders service. f) The person is provided with tools o f trade or works equipment by the other person. 8 g) The person only works or renders service to one person. After going through the CMA record and the award, the evidence available shows that the respondent denied to have employed the applicant. This can be found in the testimony of DW1, DW2 and DW3. DW1 - Fahim Mohamed testified that he was the employer of the applicant and that the applicant employment was for specific task. DW3 Malemi Hanzi who is respondent human resources officer testified that the applicant is not among the respondent's employee and she don't know him. On the other hand the appellant alleges that he was employed by the respondent. To prove his case the applicant (AW1) testified that he was employed orally by the respondent on 1st January 2013 as a supervisor in his different petrol stations construction sites. His salary was Tshs. 1,000,000/= which was paid monthly by cashier or through mobile phone. He was employed at Dar Es Salaam and then was transferred to several regions. He tendered receipts which were admitted by the Commission as exhibit A1 which shows the applicant was purchasing tools and other construction materials for the respondent. He also tendered a transfer letter which was admitted as exhibit A2. The transfer letter which was written by Martha Mwansasu 9 (respondent Human Resources Manager) show that the applicant was transferred from Mwanza to respondent's petrol station at Bunju, Dar Es Salaam. He stated that he was terminated orally on 31st August 2015. The evidence adduced by the applicant proves that the applicant was working under control and direction of the respondent, and depended to the respondent economically. The applicant was depending on the monthly salary paid by the respondent for all the time he worked with the respondent. Moreover, exhibit A1 prove that the respondent supplied the applicant with working tools and applicant bought construction materials on behalf of the respondent. Even in his submission, the Counsel for respondent admitted that the applicant used to buy materials for the respondent. In the record there is evidence from exhibit A2 which prove that the respondent gave direction to the applicant concerning the change of the place of work. There is no evidence in the record which contradict exhibit A2 apart from the objection of the respondent counsel at the CMA when the applicant was tendering the exhibit. 10 Therefore the evidence available proves the presence of more than one factor for presumption of employment relationship as provided by section 61 of Labour Institutions Act, 2004. In my opinion the testimony by DW1 that he was the one who employed the applicant have no legal basis. DW1 did not prove that he was the one who employed the applicant as he alleges. Also there was nothing to prove that he was getting construction works to build petrol stations from the respondent and that he used to employ the applicant as the supervisor in those construction sites. The CMA Award in page 2 paragraph 3 shows that in the opening statement the respondent stated that DW1 is respondent project manager and he is the one who employed the applicant. This evidence^ is similar to that of the applicant who testified that DW1 was respondent project manager and the applicant was reporting to him. But in his testimony DW1 denies to be project manager and claims to be a contractor who get some construction works from the respondent. This means that the testimony of DW1 is contradicting respondent opening statement. In other words the testimony of DW1 cannot be relied. If the applicant have never been employed by the respondent, the question is how the applicant received the letter of transfer from Mwanza to Dar es Salaam (Bunju) where there was a construction of li another petrol station which belong to respondent. In my view I think there was an employment relation (oral contract) between the applicant and respondent. Therefore it is my finding that there was employment relationship between the applicant and the respondent whereby the applicant was employed by the respondent. The answer to the first issue is affirmative. In regards to the second issue that whether the applicant was unfairly terminated, Section 37 of the Employment and Labour Relations Act, 2004 provides about Unfair termination. Section 37 (2) of ELRA provides that:- "37 (2) A termination o f employment by an employer is unfair if the employer fails to prove (a) that the reason for the termination is valid; (b) that the reason is a fair reason- (i) related to the employee's conduct■ capacity or compatibility; or (ii) based on the operational requirements o f the employer; and (c) that the employment was terminated in accordance with a fair procedure. 12 As provided by the above provision, it is the duty of the employer to prove that the termination was fair. As the first issue was answered in affirmative that there was employment relationship between the applicant and the respondent, it is the duty of the respondent to prove that the termination was fair. The respondent evidence in this case is that the applicant was not among his employees. He did not at all provide any evidence to prove that the termination was fair. Failure to provide any evidence to prove that the termination was fair means that the only evidence available on the issue of fairness of the termination in the evidence adduced by the applicant. The applicant evidence shows that he was terminated by the respondent orally on 31st of August 2015. There was no reasons for termination which was provided and no fair procedure of termination was followed by the respondent. Further, the evidence show that no terminal benefits was paid to the applicant. From the above, it is my finding that the applicant termination of employment by the respondent was unfair. This issue in answered in affirmative. The last issue is what are the relief entitled to parties? The ELRA, 2004 provides in section 40 for the remedies for unfair terminations. Section 40 of the Act provides that:- 13 "40 (1) if an Arbitrator or Labour Court finds a termination is unfair, the arbitrator or Court may order the empioyer- (a) to reinstate the employee from the date the employee was terminated without loss o f remuneration during the period that the employee was absent from work due to the unfair termination; or (b) to re-engage the employee on any terms that the arbitrator or Court may decide; or (c) to pay compensation to the employee o f not less than twelve m onths' remuneration". Under the circumstances of this case, the applicant was unfairly terminated substantively and procedurally. The working condition between the applicant and the respondent is clearly intolerable. The applicant prayed in CMA Form No. 1 I for an order for payment of compensation. For that reason it is my opinion that the applicant is entitled to compensation for the 12 months' salary. Therefore, the CMA award is hereby quashed and I order that the respondent to pay compensation of 12 months7 salary to the applicant for unfair termination. 14 Having said so, I do not hesitate to say this application have merits and is allowed. A 27/03/2020 Pate: 27/03/2020 Coram: Hon. A. E. Mwipopo, 1 Applicant: For Applicant: Mr. Hemed Omary Personal Representative for the Applicant Respondent: For Respondent: Absent CC: Neema Court: Judgment delivered in the presence of Mr. Hemed Omary, Personal Representative for the Applicant and in absence of the respondent this 27/03/2020. A. E. Mwipopo JUDGE 27/03/2020 15