janeth senga vs communication and transport workers union of tanzania 2020 tzhcld 435 27 october 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 868 OF 2019 BETWEEN JANETH SENGA..........................................................APPLICANT VERSUS COMMUNICATION AND TRANSPORT WORKERS UNION OF TANZANIA........................... RESPONDENT JUDGEMENT Date of Last Order: 30/07/2020 Date of Judgment: 27/10/2020 Aboud, J. The Applicant, JANETH SENGA filed the present application seeking revision of the decision of the Commission for Mediation and Arbitration (herein CMA) in labour dispute No. CMA/DSM/ILA/343/2017 delivered on 04/09/2019 by Hon. Wilbard, G.M, Arbitrator. The application was made under the provision of section 91(1) (a) (b) 91 (2) (a) (b), 94 (1) (b) (i) of the Employment and Labour Relations Act, [CAP 366 R.E. 2019] (herein referred as the Act) Rule 24 (1), 24 (2) (a) (b) i (c) (d) (e) and (f), 24 (3) (a) (b) (c) (d), 24 (11) (c), 28 (l)(c) (d) (e) of the Labour Court Rules, GN. No. 106 of 2007 (herein referred as Labour Court Rules). The application was supported by the applicant's affidavit. The respondent bitterly challenged the application through the counter affidavit of Musa Mwakalinga, respondent's Deputy General Secretary. The application emanates from the following background. The applicant was employed by the respondent on 20/02/1996 as an Accountant until 09/09/2016 where she was terminated from services on the ground of misconduct. After termination the parties made calculation and agreed about the total calculation of the applicant's terminal benefits. On 27/09/2016 it was agreed that the applicant is ought to be paid 82,972,848/=. It was further agreed that the amount is to be paid in six installments started from October, 2016 to March, 2016, the agreement added that the applicant would be paid her monthly salaries as usually while she was paid her benefits by installments to the date of the final installment. The respondent implemented the payment of salaries as usual but defaulted to pay the 2 applicant the terminal benefits as agreed. After unsuccessful pursuing her claims to the respondent, the applicant referred the dispute to CMA for implementation of the agreement. The CMA decided in favour of the respondent and ordered the applicant to be paid as per termination letter. Being aggrieved by the Arbitrator's decision the applicant filed the present application. The matter was argued by way of written submissions. During hearing both parties were represented by Learned Counsels. Mr. Jamal. A, appeared for the applicant while Mr. Nzowa E.R, was for the respondent. Arguing in support of the application Mr. Jamal. A submitted that, the CMA on its own motion discussed and made findings about the validity of the contract entered by the parties on 27/09/2016 which was not among the issues agreed by the parties. He added that the issues agreed by the parties were only two namely:- i. Endapo mlalamikaji anastahili kulipwa madai anayodai. ii. Nafuu ya kila pande. 3 It was further submitted that, both parties adduced evidence on the above issues and that they were not afforded the right to be heard on the new issue raised by the Arbitrator. To cement his argument he cited a number of cases on the right to be heard including the famous case of Mbeya-Rukwa Auto parts & Transport Ltd. vs. Jestina George Mwakyoma, Civ. Appl. No. 101 of 1993 TLR [2003]. The Learned Counsel strongly submitted that, the Arbitrator was wrong to assume the power to deal with interpretation on the validity of the contract which was not prayed by the applicant. Mr. Jamal went on to submit that, the Arbitrator was wrong and grossly erred in law to declare that the respondent's Chief Secretary did not have the locus to execute the contract on behalf of the respondent as stated at page 7 of the award. He added that the Arbitrator was wrong to make findings based on her personal observation and not according to section 11(1) of the Law of Contract Act, [CAP 345 RE 2019]. The Learned Counsel strongly disputed the Arbitrator's findings that the disputed contract was prepared by the applicant. 4 It was also submitted that, the contract was entered on 27/09/2016 and after seven months the respondent conducted another inquiry and disciplinary hearing against the applicant without notifying her which deprived her rights and made the decision not to pay her terminal benefits. He further argued that as the respondent started to implement terms of the contract he cannot in law at later stage refuse to implement some terms of the same contract. He added that if one of the parties were aggrieved by the disputed contract he/she had to apply to the Court to declare the contract a nullity for any of the reasons stipulated under section 19 of the Law of the contract Act, [CAP 345 RE. 2019]. He therefore prayed for the Court to order the applicant to be paid as per the agreement. Responding to the application Mr. Nzowa was very brief he submitted that, the reason for applicant's termination was a common fact and both parties had an opportunity to the same, thus the applicant's assertion that he was not given the right to be heard is a mere allegation with no of proof. He argued that in order to determine the issue of whether the applicant is entitled to the amount claimed the 5 CMA was right to consider the reasons for termination in reaching its decision. It was further submitted that, it is common fact that enforcement of any agreement depends on its validity. He argued that according to section 20 (1) of the Law of Contract Act [CAP 345 RE 2002] when it happens there is bilateral mistakes of essential fact to the agreement then the agreement becomes void ab initio as rightly held by the Arbitrator. The Learned Counsel added that, the applicant was the one who calculated and submitted a schedule of claims to the respondent. He strongly submitted that, the Arbitrator was correct in holding that the applicant was not entitled to be paid as a retired employee while he was terminated for misconduct. He therefore prayed for the application to be dismissed. In rejoinder the applicant reiterated his submission in chief and urged the Court to allow the application. Having gone through and considered the Court's records, labour laws and practice as well as submissions by both parties, it is my view that the issues for determination before the Court are whether the issue 6 of validity of the contract was rightly decided by the Arbitrator and whether the applicant is entitled to the relief claimed. On the first issue as to whether the issue of validity of the contract was rightly decided by the Arbitrator, the applicant argued that the issue of the validity of the contract was a new fact decided by the Arbitrator suo motto. From the issues raised by the parties at the CMA as reproduced above in the applicant's submission it is true that the issue of the validity of the contract was not among the issues raised by the parties as rightly submitted by the applicant's Counsel. At the CMA the applicant prayed for the implementation of the disputed contract between the parties. Under the circumstances of this case it is my view that the Arbitrator was right to determine the issue of validity of the said contract as rightly submitted by the respondent's Counsel. The record reveals that the applicant was terminated for misconduct as reflected in the termination letter (exhibit CTW-5). The respondent argued that the agreement entered by the parties in exhibit CTW-6 was wrong due to the fact that the payment agreed thereto is payable to an employee 7 who has retired but not to an employee who is terminated from employment as the applicant's position. Thus, the issue of the validity of the contract was of paramount importance in this case. Therefore the applicant's argument that the Arbitrator suo motto raised the issue of validity of the contract is wrong and baseless. As reflected in the impugned award the main issue for determination was whether the applicant was entitled to the reliefs claimed and the issue of validity of the contract was determined to know the enforceability of the said agreement. Thus the cases cited by the applicant's Counsel on the right to be heard are irrelevant to the circumstances at hand. I fully agree with the applicant's counsel submission that the Arbitrator ought to have considered the provision of section 19 (1) of the Law of Contract Act. The relevant provision is to the effect that:- "19 - (1) Where consent to an agreement is caused by coercion, undue influence, fraud, or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused". 8 The provision cited above provides for the circumstances in which an agreement becomes voidable. In the matter at hand the agreement was entered as a result of a mistake of fact. The respondent signed the said agreement believing that the applicant was retired the fact which was not true. As stated above the applicant was terminated for misconduct and her final entitlement was stipulated in the termination letter therefore the respondent had no reason to further negotiate with the applicant about her entitlements. Furthermore in the letter dated 17/05/2017 the respondent informed the applicant of the reason why she will not be entitled to the terminal benefits as agreed. The respondent invited the applicant to the office to explain to her about such decision but she refused to go and jumped to the CMA claiming for enforcement of the agreement in question. The applicant's Counsel termed the respondent's meeting which revoked their agreement as a disciplinary hearing. He argued that he was deprived the right to be heard in the said hearing. I do not find the basis of the applicant's submission as she was already terminated, thus she could have not been summoned to another disciplinary meeting. On 9 the basis of the foregoing discussion it is my view that the Ari rightly decided the issue of validity of the contract. On the second issue as to whether the applicant is entitled to the relief claimed. The applicant prayed for the implementation of the agreement entered by the respondent on 27/09/2016. As discussed above the agreement entered by the parties was voidable therefore the same cannot be enforceable by this Court. Thus, I find no hesitation to say that the applicant did not adduce any sufficient reasons for this Court to fault the Arbitrator's award. As rightly held by the Arbitrator the applicant cannot benefit from her own wrong. She was terminated for misconduct thus she cannot enjoy the terminal benefits agreed by mistake. In the result I find the present application has no merit. The applicant was fairly awarded the terminal benefits by the Arbitrator as indicated in termination letter. Thus, the Arbitrator's award is hereby upheld. It is so ordered. JUDGE 27/10/2020 10