issa ally masukuzi others vs takopa construction co ltd others 2014 tzhc 2352 17 september 2014

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION NO.193 OF 2013 ISSA ALLY MASUKUZI & 169 OTHERS......................... APPLICANTS r>X'S^"

VERSUS %gf TAKOPA CONSTRUCTION CO. LTD............<C...'^.JST RESPONDENT 4, % SUMA JKT......................................... .....2^^ RESPONDENT %, % # SHINWOO & CHUNGMOO CqvL T O ? ^ .^ .# r...... 3rd RESPONDENT fflW v.* (Original/ CMA/DSM/m/803/2010) *> , Jr

JUDGEMENT \ 5/8/2014 & 17/9/mfv \ ^ \ J f s III # V a ¥ jk V The application is made under section 91 (1) and (2) of the Employment and Labour Relations Act, No.6 of 2004 which will be referred as the Act in this Judgement and Rules 24 (1), (2) (d) and Rule 28 (1) & (2) of the Labour Court Rules, GN.106 of 2007 and any other enabling provision of the law. The applicant calls upon this court to revise the proceedings and arbitration award passed by the Commission for Mediation and Arbitration (herein the CMA) with reference number CMA/DSM/KIN/803/2010 by Hon. Massay, Arbitrator on 21st May, 2012 on two grounds as reflected in paragraphs 2 and 3 of the affidavit in support of the Chamber Summons, that; j$ fr -?j§F % % % 1. The award of terminal benefits was proper but? ut it was w improper for the Arbitrator to order the 1st respondent to pay the applicants instead of the 2n^fespondent. I 2. That, the testimony of the applicants was not recorded im­ properly. That the respondent is the one who is vh H supposed to pay the applicants'terminal benefits. Shortly are the facts of the matter. The applicants were "S&L Hfe, y . employees of the 1 respondent on a contract for a specific task. The 1st respondent % a Joint venture company with the 2nd and 3rd respondents for road construction from Bagamoyo to Msata. The applicants' employment was terminated by a letter of termination which

was effectively from 8/1/2010 on the basis of operation requirements of the employer. The applicants filed a dispute for unfair termination at the CMA and claiming to be paid their terminal benefits. The CMA decided that the termination claim of compensation of 12 months' salary for unfair termination had no basis because the 1st respondent's contract with TANROADS was rescinded thus the 1st respondent under normal circumstances could not continue employing the applicants. He ordered the 1st respondent to pay the applicants all their entitlements according to Section 44 of the Act, being leave payment, severance payment, notice and certificate of service. The applicants came to this court praying for the cpurt to revise ./VisV “ the decision and order the 2nd respondent to pay the applicants as per the CMA award. The hearing proceeded eXrparte because the respondent defaulted appearance. The applicants were represented by Mr. Haonga, personal representative;** Mr. Haonga in support of the application submitted that the applicant? were employed by the 1st respondent, a joint venture 'V ' . company formed by the 2nd and 3rd respondents. He submitted that the applicants employment came to an end when TANROADS rescinded the contract with the 1st respondent. He : . said the 3r respondent is a company incorporated abroad and to date the applicants are not paid their entitlements,

therefore the second respondent as one of the founders of the 1st respondent is the one responsible to pay the applicants. He contended that the Arbitrator misdirected himself to order the 1st respondent to pay the applicants instead of the 2nd respondent. He finally prayed for the court to order the 2nd respondent (SUMA JKT) to pay the applicants as provided under Section 44 of the Act and per the CM A award. Having gone through the records andHfhe applicants' submission with eyes of caution, I find the applicants are # disputing as to who has to pay their entitlements as per the CMA -o .. award. V > % % In his decision the Arbitrator found the 1St respondent as an employer is the one legally required under the law to pay the jf ■%#' applicants and ordered the same to pay the applicants % accordingly. He said at page 6 of the typed award first paragraph, r • w there is no evidence^on record which shows that the applicants were employed by the 2 respondent. ____ .... .. .ler section 44 (1) and (2) provides clear that; "44.-(l) On termination of employment, an employer shall pay an employee- (a) any remuneration for work done before the termination; (b) any annual leave pay due to an employee under section 31 for leave that the employee has not taken; (c) any annual leave pay accrued during any incomplete leave cycle determined in accordance with section 31(1); (d) any notice

pay due under section 41(5); and (c) any severance pay due under section 42; (f) any transport allowance that may be due under section 43. (2) On termination, the employer shall issue to aq employee : j p L % % a prescribed certificate of service. \ It is clear from the above provision that upon termination of employment an employer is required to pay the employee the terminal benefits as illustrated above, i find sit prudent to define it^ who is an employer and who is an employee? According to section 4 of the Act an employer means, I quote; % "employer" means any person, including the % Government and an executive agency, who employs an employee." On the same section an employee means, I quote; "employee" means an individual who- (a) has entered into a contract of employment; or (b) has entered into any other contract under which- (i) the individual undertakes to work personally for the other party to the contract; and (ii) the other party is not a client or customer of any profession, business, or undertaking carried on by the individual; or (c) is deemed to be an employee by the Minister under section 98(3); Looking the records, it is not in dispute that the applicants entered in to a contract of employment with the 1 respondent who is an employer in terms of the above provision. According to the law, that is The Companies Act (Cap 212 R.E 2002) under Section 15, the 1st

respondent have a legal personality, being the Registered company, which is a cooperate body with capacity to sue and be sued. Since the applicants entered in to contract with the 1st respondent* accordi ng to the law, section 44 of the Act the 1st respondent as an employer is the one legally required to pary ^pi%va|plicants as correctly decided by the i Arbitrators, 1 % % Ifle ssf I would have held otherwise if the applicants could prove before the court that the 1st respondent is a liquidated company. As long as it still exists the applicants should make follow-up of their entitlements through the right channel to execute the Decree as per the CMA award. In the circumstances I find no reason to fault the Arbitrator's award basing on the records before the court. In the result application is dismissed accordingly. It is so ordered. I.D.ABOUD

JUDGE 17/ 09/ 2(jl\ Date: 17/9/2014 Coram: Hon. I.D.Aboud,J Applicant: Issa Ally Masukuzi For Applicant Respondent: ~i Absent # w \ For Respondent: _ %. ■- w CC: G. Mushi W "% Order: Ruling delivered on 17/9/2014 in the presence of Mr. Issa Ally Masukuzi, 1st applicant for the Applicants and the Respondents are absent. % I.D.Aboud

JUDGE % % 17/09/2014 \ f * .X 8