Judgement Labour Revision No

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MOSHI SUB-REGISTRY AT MOSHI LABOUR REVISION NO. 14 OF 2023 (C/F Labour Dispute No. CMA/MOS/ARB/13/2022 at Commission for Mediation and Arbitration) JAMES A. NGOTIKO AFRICAN B. SANGWE HADSON W. URASSA ……….……….………… APPLICANTS ANTHONY R. MREMA GODLISTEN S. KITOMARI EVARIST R. SHAO VERSUS MGANGA MKUU MFAWIDHI HOSPITALI YA RUFAA MAWENZI...….…………………..1ST RESPONDENT MWANASHERIA MKUU WA SERIKALI...………………...2ND RESPONDENT JUDGEMENT Date of Last Order: 16.07.2024 Date of Judgement: 06.08.2024 MONGELLA, J. The applicants have moved this Court vide Section 91(1)(a) and 94(1)(b)(i); Section 94 (1)(b)(i) of the Employment and Labour Relations Act, 2004 (ELRA) and Rule 24 (1), (2) (a), (b), (c), (d), (e), (f) and (3) and; 28 (1)(c), (d), (e) of the Labour Court Rules, 2007, Page 1 of 14 GN No. 106 of 2007. They are seeking for this Court to call, examine and revise the proceedings of the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/KLM/MOS/ARB/13/2022 in order to satisfy itself as to the correctness, legality, propriety and correctness thereof; and to, revise the records of the CMA and its award on two grounds being: (a) That the Award by the Arbitrator was improperly procured; and (b) That the Award by the Arbitrator was unlawful and irrational. The application was duly supported by the applicants’ jointly sworn affidavit. The respondents contested the application as reflected in their own joint counter affidavit sworn by one, Yohana Marco, learned State attorney from the Office of the Solicitor General, who also took conduct of the matter at the CMA. Before proceeding with deliberation of the issues, let me provide the brief facts of the case as follows: the applicants were employed by the 1st respondent as security guards. Their employment was for a fixed term of 3 months which was consecutively renewed from 2014 to 2021. Their last 3 months’ fixed term contracts were set to end on 30.09.2021. However, on 04.10.2021 and 05.10.2021 the 1st respondent issued them notice to end their contracts. Aggrieved, the applicants filed a dispute in the CMA pleading unfairness of their termination. They claimed expectation of renewal of their contracts and prayed for the reliefs being: one Page 2 of 14 month salary in lieu of notice; salary for 4 working days in October 2021; leave pay; severance pay; 12 months’ salary as compensation and certificate of service. The total monetary value was equivalent to 32,189,000/-. Upon failure of mediation, the matter proceeded to arbitration whereby each party was accorded the right to furnish evidence. The respondents had one witness and tendered 14 exhibits which were all admitted and marked as M-1, M-2, M-3, M-4, M-5, M-6, M- 7, M-8, M-9, M-10, M-11, M-12, M-13 and M-14. All applicants testified and tendered 10 exhibits admitted as J-1, J-2, J-3, J-4, J-5, J-6, J-7, J-8, J-9 and J-10. Upon hearing the evidence of both parties, the CMA found the applicants not unfairly terminated as they failed to prove their allegedly expectation for renewal. The CMA found their contracts had expired rendering them not being unfairly terminated. It however awarded them leave payment. Aggrieved, they have filed this application for revision on two grounds as advanced in their supporting affidavit: (a) The Honourable Arbitrator erred in laws and facts in favour of the respondent, since the documentary evidences were improperly assessed and procured by Arbitrator. [sic] (b) The Honourable Arbitrator erred in laws and facts in favour of the respondent, since the Applicants' contract of employment was unlawfully terminated. [sic] Page 3 of 14 The application was argued by written submissions whereby the applicants were represented by Mr. Exaud Michael Mgaya, their personal representative, while the respondents were represented by Mr. Yohana Marco, learned State attorney. Mr. Mgaya started by adopting the applicants’ supporting affidavit. In his arguments, he averred that the applicants were all employed by the 1st respondent at different periods. That, they all had a 3- months’ fixed term contract that was consecutively renewed for over five (5) years. He explained the years of first employment for each of them whereby he said that the 1st applicant was employed on 01.03.2016; the 2nd, 4th, 5th and 6th applicants on 01.02.2014 and the third applicant on 01.03.2015. Regarding the end of the contracts, he said that the last contract was supposed to end on 30.09.2021. However, he said, on 04.10.2021 and 05.10.2021 the respondent suddenly terminated the applicants’ employment. Arguing on unfairness of the termination, he alleged that the 1st respondent failed to prove how the said notices of termination were issued by the respondents as they failed to furnish the dispatch book recording the date when the notices were issued; and the attendance book and electronic punching attendance records. He contended that, on the other hand, the applicants presented their notices which displayed the date on which they received the notices for termination, which happened to be issued later than the date their contracts expired. In the premises, he held the view that the applicants had expectation for renewal of their fixed-term contracts. Page 4 of 14 With respect to the 1st ground for determination as set out in the applicants’ supporting affidavit, Mr. Mgaya referred to the documentary evidence which he considered clearly showing that the applicants were unfairly terminated. He held that stance on the ground that the documentary evidence manifested that the applicants were issued the notice to end their contracts after their contracts had expired on 30.09.2021. He alleged that the applicants proved that the notices were issued late vide exhibits J- 2, J-4, J-6, J-8, the testimony of the 6th applicant and the testimony of the 4th applicant. Still maintaining that the respondents failed to prove fairness of termination, Mr. Mgaya further argued that the Arbitrator noted that the 1st respondent had failed to tender a dispatch book showing when exactly the applicants received their notices of termination. He contended that the 1st respondent’s lack of records on the applicants’ last attendances serves to prove expectation for renewal by the applicants, rendering their termination unfair as per Rule 4 (3), (4) of the Employment and Labour Relations (Code of Good Practice) Rules GN. No. 42 of 2007. He condemned the 1st respondent’s failure to keep records and produce the attendance book, dispatch book and the electronic attendance printout to prove the applicants’ last day of work. In his view, that was a clear violation of Section 15(5) and (6) of the ELRA. Addressing the 2nd ground, Mr. Mgaya alleged that the applicants’ contracts were unlawfully issued and terminated. He submitted that the applicants’ employment contracts were due on 30.09.2021 and Page 5 of 14 they continued to work to 04.10.2021and 05.10.2021 whereby the employer emerged with a backdated notice to end the contracts. In the premises, he maintained that the applicants had expected that their contracts would be renewed as done in the past years. To bolster his argument, he referred the case of Asanterabi Mkonyi vs. TANESCO (Civil Appeal 53 of 2019) [2022] TZCA 96 (7 March 2022). Mr. Mgaya finalized his submissions by praying for the applicants to be granted their reliefs as claimed in the CMA F1 filed in the CMA and any reliefs that this Court considers just and fit to grant. The respondents opposed the application. In his reply submissions, Mr. Marco reduced the applicants’ grounds for revision into one main issue to wit; “whether the applicants and their nature of contract for employment are covered under Sub-Part E of Part III of the ELRA which covers Sections 35 to 40 of the same Act.” He then proceeded to first address the question of unfair termination. He contended that GN No. 42 of 2007 is read together with the ELRA as stated under Section 99(3) of the ELRA. In that regard, he held the view that Rule 4(3) and (4) of GN No. 42 of 2007 is non-binding. While agreeing that the failure to renew a fixed term contract in circumstances of expectation of renewal amounts to unfair termination, he was at contest in respect of the rule of fixed term contract covered by the provision. In his stance, GN. No. 42 of 2007 could not be interpreted to defeat the spirit of the ELRA as per Section 36 of the Interpretation of Laws Act [Cap 1 RE 2019]. Hence, Page 6 of 14 he argued that Rules 4(3) and (4) of GN No. 42 of 2007 giving effect to the spirit of Section 35 of the ELRA is inapplicable in the circumstances of the case at hand whereby the applicants were employed in less than six months. He fortified his argument with the case of Serenity on the Lake Ltd vs. Dorcas Martin Nyanda (Civil Appeal No. 33 of 2018) [2019] TZCA 64 (12 April 2019) and St. Joseph Kolping Secondary School vs. Alvera Kashushura (Civil Appeal No. 377 of 2021) [2022] TZCA 445 (18 July 2022). Mr. Marco emphasized that regardless of Rule 4(3) and (4) of GN 42 of 2007 appearing to include all fixed term contracts, employments for less than 6 months are not covered under the said rules, regardless of how many times the contracts have been renewed. He maintained that, since the applicants were under a fixed term contract of 3 months, their claim for unfair termination could not stand. In the premises, he found the CMA being correct in dismissing the claim. Arguing on reliefs awarded by the CMA, he contended that since the applicants had failed to establish their claim, the Arbitrator ought to have dismissed the entire claim and not to award remedies consistent with the substance of the claim. In his view, such relief on leave pay would have only been appropriately granted if the complaint was on breach of contract. He pointed out that the arbitrator ought to have dismissed the claim entirely as was the case in Serenity on the Lake Ltd (supra). The learned State attorney further asked the Court to draw inspiration from the case of Rajendra Bajoria and Others vs. Hemant Kumar Jalan and Others, Page 7 of 14 Civil Appeal Nos. 5819-5822 of 2021, Supreme Court of India, in which it was held that the reliefs claimed in a plaint flow from and are a culmination of the cause of action pleaded in the plaint and that cause of action pleaded and prayers made are intertwined. He further asserted that since the applicants chose not to pursue a cause of action on breach of contact then the entire complaint ought to have been dismissed. In that respect, he found the Arbitrator to have erred in awarding them leave payment while dismissing the substance of the only cause of action brought before her. Mr. Marco finalized his submissions by praying for this Court to: declare that the Arbitrator was right to dismiss the applicants’ claim on unfair termination; declare that the Arbitrator erred in awarding the applicants reliefs arising from unfair termination while the same cause was dismissed by the tribunal. The applicants opted not to rejoin despite being duly served and read the respondent’s submission in which the legal question of jurisdiction of the CMA in entertaining the matter before it, was raised. In that respect, the court takes note that they have forfeited their right to be heard on this legal issue, which in law can be raised at any stage of proceedings. See, R.S.A. Limited vs. Hanspaul Automechs Limited & Another (Civil Appeal No. 179 of 2016) [2021] TZCA 96 (6 April 2021). Page 8 of 14 I have keenly considered the submissions of both parties and the record from the CMA. As I have indicated earlier, the complaint in this matter is grounded on unfair termination of employment resulting from failure to renew employments contracts where there was such expectation. The applicants claimed that they were employed for a fixed term contract of 3 months and their contracts had been renewed over the years. Their last contract was meant to expire on 30.09.2021. They however received notices ending their contracts and the 1st respondent’s intention not to receive any requests for contractual employment on 04.10.2021 and 05.10.202. They further alleged that they had expectation for renewal of their contracts as it was the case in the former years since 2014, 2015 and 2016 when they signed their first contracts. The respondents, on the other hand, insisted on serving them notice on time. They as well challenged the applicant’s allegedly expectation for renewal saying there was nothing of that sort in their relationship. In this revision, Mr. Mgaya maintained the argument that the applicants had expected their contracts to be renewed. He claimed that the fact that the notices were served while they had already worked for 4 or 5 days after their contracts expired, amounted to default renewal of their contract pursuant to Rule 4(3) of GN No. 42 of 2007. On the other hand, the respondent contended that being under fixed term contract of 3 months rendered the CMA without jurisdiction to determine the dispute. To this point, I am of the considered view that there are two issues for determination in this matter. First, whether the CMA had Page 9 of 14 jurisdiction to determine the matter; and second, whether the applicant’s termination was fair. It is imperative to note that the question of Jurisdiction was never raised in the CMA, nor did Mr. Marco ever question the jurisdiction of the CMA in his counter affidavit. This matter is being raised for the 1st time. Nevertheless, it is trite law that the question of jurisdiction being a crucial point of law can be raised at any stage of proceedings so long as the parties are accorded the opportunity to address the court on the issue. See; Tanzania Posts Cooperation vs. Evaristo Miho (Civil Appeal No 87 of 2023) 2024 TZCA 443 (11 June 2024). However, like I noted earlier, the applicants opted not to rejoin and address this issue. Mr. Marco has challenged the jurisdiction of the CMA due to the applicants’ contract being of a fixed term of 3 months and not more than six months. This argument falls on the requirement of Section 35 of the ELRA which states: “35. The provisions of this Sub-Part shall not apply to an employee with less than 6 months’ employment with the same employer, whether under one or more contracts.” The above cited provision provides guidance on applicability of the provisions under Part III Sub-Part E of the ELRA which provides for unfair termination. It is within the same part, specifically under Section 36 (a) (iii) that expectation for renewal is termed as termination of employment. The provision states: Page 10 of 14 “36. For purposes of this Sub-Part- (a) (iii) “termination of employment” includes a failure to renew a fixed term contract on the same or similar terms if there was a reasonable expectation of renewal;” Section 36 (a) (iii) of the ELRA is also read together with Rule 4(3) and (4) of GN No. 42 of 2007 which state: “3) 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 it. (4) Subject to sub-rule (3), the failure to renew a fixed-term contract in circumstance where the employee reasonably expects a renewal of the contract may be considered to be an unfair termination.” It is undisputed that the applicants were employed for a fixed term contract of 3 months. It is also undisputed that failure to renew a fixed term contract may be considered amounting to unfair termination when an employee expects renewal. It is further undisputed that a fixed-term contract may be renewed by default if an employee continues to work after expiry of the contract. The question here therefore is whether at all termination of a 3 months fixed term contract falls within the ambits of unfair termination as per Section 35 of the ELRA. Page 11 of 14 This issue was well addressed in the case of Serenity in the Lake Ltd vs. Dorcas Martin Nyanda (supra) whereby the Court of Appeal entertained a similar issue. In this case, the respondent was found to have been in a 3 months fixed term contract renewed over several years. The Court found her dispute unqualified in terms of Section 35 of the ELRA. The Court stated: “Having pondered over this point, this Court is in agreement with the appellant that, the principle of unfair termination is inapplicable in this case because the contract of employment was for a period of less than six months ... The foregoing proves that the respondent did not have cause to complain that she was unfairly terminated because she was not covered by the law on that.” In Stella Lyimo vs. CFAO Motors Tanzania Limited (Civil Appeal 378 of 2019) [2022] TZCA 742 (24 November 2022), addressing a similar issue whereby the applicant pleaded breach of contract on unfair termination while her employment was under 6 months, the Court, invoking the provisions of Section 35 of the ELRA held: “It is beyond peradventure that her case before the CMA was breach of contract of employment by unfair termination. That was regardless of the fact that the respondent denied that the appellant had never been her employee as no contract of employment came into existence following revocation of the offer. Whatever the merits in the appellant's case, in so far as it was founded on unfair termination, it was expressly barred by section 35 of the Act. We had occasion to pronounce ourselves on this aspect in Serenity on the Lake Ltd v. Dorcus Martin Nyanda, Civil Appeal No. 33 of 2018 (unreported) and held Page 12 of 14 that challenge on unfair termination is not available to an employee with less than six months' contract and we reiterate that stance here.” See also; St. Joseph Kolping Secondary School vs. Alvera Kashushura (supra) On the strength of the above referred to authorities, it is evident that the CMA plainly lacked jurisdiction to determine the dispute based on unfair termination as the applicants’ contracts were for a fixed term of 3 months. The provisions regarding unfair termination under Section 35 of the ELRA were not applicable to them. In my considered view, this issue alone suffices to dispose this matter, thus I shall not delve into determining the 2nd issue. Mr. Marco challenged the CMA orders pertaining payment of leave days to the applicants while it lacked jurisdiction. I am in fact at one with his arguments that the CMA should not have granted the said reliefs. Since the CMA lacked jurisdiction, it lacked the basis to proceed with determining the question of reliefs as the court is barred from entertaining any issues in dispute put before it without jurisdiction to do so. See, CRDB Bank PLC vs. Lusekelo Mwakapala (Civil Appeal No. 143 of 2021) [2023] TZCA 17637 (22 September 2023), in which it was stated: “It is worth noting that, the question of jurisdiction is crucial and must be determined by the court/tribunal at the earliest opportunity, jurisdiction is everything without which a Court has no power to determine the dispute before it. Where a Court has no jurisdiction there would be Page 13 of 14 no basis for a continuation of proceedings. Generally, a Court is barred to entertain a matter which it has no jurisdiction.” Thus, for lack of jurisdiction, the proceedings and resulting award and orders of the CMA are rendered a nullity. Consequently, I nullify the entire proceedings of the CMA and set aside the award and any orders issued thereto. This being a labour matter, I make no orders as to costs. Dated and delivered at Moshi on this 06th day of August, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 14 of 14