Judgment JOYCE JOHN ILOMO v DAR CERAMICA CENTRE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA LABOUR REVISION NO. 12846 OF 2024 (Originated from Labour dispute No. CMA/MZA/NYAM/183/87/2023 Before Hon. Doris Wandiba, Arbitrator Dated 30/04/2024) JJI………………………………………..………………………….……………APPLICANT

VERSUS DAR CERAMICA CENTRE (2001) LTD………………………..………..RESPONDENT

JUDGMENT 23rd September & 25th October, 2024. ITEMBA, J. The Applicant (name withheld) was employed by the respondent as a showroom manager, Mwanza Branch, on 2nd January 2022 at a salary of TZS 1,500,000. She had a one year contract which ended on 31st December 2022. Following non-renewal of her contract, she referred her dispute to the Commission for Mediation and Arbitration (CMA), alleging tortious liability. She prayed to be compensated with damages caused by psychological torture, following termination of her employment, amounting to TZS 30,000,000/=. When the applicant was testifying before the CMA, she explained that, when her contract ended, she kept on working up to 19th August 2023, whereas on that date, she was handed an envelope with a clearance forms, (SM3) certificate of service and a letter of non-renewal of contract. That, she 1 was told to hand over everything. That, it was Saturday and on Monday, she was reminded to return the forms. She also produced non renewal letter (SM1) and certificate of service (SM2) which were issued to her. She explained further that, she didn't understand the nature of the said documents. She communicated to her relative, and the said relative explained that the letter which she was given was a termination letter. That, following such news, she became weak. She went back home at around 1700hrs still feeling unwell, and asked her

husband to take her somewhere to refresh. They went, but her condition worsened and she found herself at ‘Salamani’ hospital. That, when she woke up, she was told that she has high blood pressure, which she has never had before. Even in her family, there's no one with high blood pressure, and she was admitted on that date of 19th, and she was released on the following day. She added further that, later on, she experienced non stop menstrual bleeding. She went to Royal Hospital, and after doing some tests, she was told that there is nothing wrong with her, but the condition can be caused by many reasons, including stress. She was given medication, but she did not have any evidence in support of that. She explained further that later, she went to Bugando Hospital in November 2023. She also produced a medical report 2 from Salamani and Bugando Hospital in support of her evidence (SM4 and SM5 respectively). She said that, she understands that it's not necessary for her to be employed, but now it can be difficult for her to get employment, and termination of employment was the cause for her health problem. Her evidence was supported by that of her husband, regarding her health condition being poor following termination, and that she was attending treatment at Royal and Bugando Hospital. On the other side, the respondent was represented by one witness named Mwasiti Omari Seif, who is

the sales officer, and she briefly stated that she knows the applicant, who was the employee, and she was reporting to her, and that the applicant once informed her that she has been given a letter terminating her employment, and that she kept on working up to the evening, but the following day she did not come. The CMA, having heard both parties, dismissed the applicants’ claims on grounds that, she did not prove her claims and that there was no breach of contract. That, the applicant could approach the Workers’ Compensation Fund (WCF) for reliefs. The applicant was aggrieved by the said decision hence this revision application. The grounds for application according to the affidavit, are that: 3 a. Whether the arbitrator was right to ignore the parties framed issues and frame her own one without according parties an opportunity to discuss on the same required Rule 22(2) (b), 24(2)(4)(5)(6) and 27(3) (b) of the Labour Institutions (Mediation and Arbitration Guidelines) GN. No. 67 of 2007. b. Whether the Hon. Arbitrator was right in denying the Applicant herein the right to remedy on the tort matter basing her arguments that the CMA has no such jurisdiction but the Workers Compensations Fund (WCF). c. Whether the arbitrator failed to consider the functions of the Commission effectively as stated in Section 14(1)(a), (b)(i)(ii) and Section 15(1)(a)(b) read together with section

51 of the Labour Institutions Act (LIA) Cap 300 R.E 2019. d. Whether the Hon. Arbitrator failed to consider and analyze evidence adduced by the Applicant which are; exhibits SM4 and SM5 as vivid scientific proof of the effects of the tortuous acts committed by the respondent and which are subject to compensation by the Respondent. When the application was scheduled for hearing, the applicant was represented by Mr. Mathias Mwilwa a personal representative while the respondent had the services of Mr. William Muyumbu learned counsel. Rolling the ball, Mr. Mwilwa presented four grounds challenging the CMA award, arguing that, it raised unagreed issues, particularly concerning a breach of contract which was not part of the issues. He emphasized that both parties 4 should have been heard according to the law, specifically rules Rule 22(2)b, Rule 24(4)(5) and 27(3) of GN 64/2007. Additionally, he contended that referring the applicant to WCF was inappropriate since it does not eliminate other civil liabilities for employers. He also pointed out that the CMA claimed it lacked jurisdiction over torturous liabilities, despite being competent as per relevant laws. Lastly, he criticized the CMA for not considering scientific evidence of injury provided by the applicant. Mr. Muyumbu countered these arguments by stating that the conflict was based on tort rather than breach of contract and

defended the CMA analysis and framing of issues in their award based on established guidelines and case law. That, based on CMA award at page one, there are only 2 issues framed; whether there is psychological torture resulting from breach of contract and what are the reliefs. That, the award must contain the background information, summary of parties’ submission and decision according to guideline 27(3) of Labour institution Act and Arbitration guideline GN. 67/2007. That, the arbitrator was narrating the historical background where following a breach of contract, the complainant instituted tort claim. That, it is obvious there was no issue raised apart from the 2 framed issues. He cited 5 the case of Tumaini Massaro v. Tanzania Ports Authority Civil Appeal No. 36/2018 CAT DSM (unreported) which states that reasoning in the judgement has to be read in a whole and not by picking a certain sentence or paragraph in isolation of other pages. He finalised by saying that, the applicant courted page 9 in isolation of the rest of the judgment because the CMA stated that ‘niongeze’, which means this was more of opinion of the arbitrator, it does not form the basis of the award and it has nothing to do with the reasoning of the award. He cited the case of Arusha Art Ltd V. Game Rock Lawyers Co Ltd PC Civil Appeal No. 25/2022 which said that obiter dictum is not part of the decision and

cannot be appealed against. On the last ground, he said that it is based on misconception because from page 2 of the award there is a detailed analysis of the applicant's medical evidence and medical reports. Therefore, the application lacks merit, all the grounds are baseless and it should be dismissed. In his brief rejoinder, the applicant's representative stated that it is true the dispute before the CMA was based on tort. In order to prove tort, there can be several elements including breach of contract. That, if these exhibits 6 were considered, the applicant was sick and had menstrual cycle following breach of contract and the breach was caused by the employer. Having gone through the claims in the CMA form no. 1, records and submission by both parties, the issues to be resolved are: i. Whether the CMA had jurisdiction to hear tortious liability. ii. Whether the CMA raised its own issues. iii. Whether there is tortious liability against the respondent following termination of the applicant’s employment. iv. Whether the evidence was properly analysed by the CMA. The Employment and Labour Relations Act, CAP 366 R.E 2019 herein the ELRA, states under section 94 (1) that: ‘Subject to the Constitution of the United Republic of Tanzania,1977, the Labour Court shall have exclusive jurisdiction over the application, interpretation and implementation of the provisions of this Act

and over any employment or labour matter falling under common law, tortious liability, vicarious liability or breach of contract and to decide- (a) appeals from the decisions of the Registrar made under Part IV; (b) n/a. Further, under Section 88 (1) (b) ii) of the same Act as follows: 88.-(1) For the purposes of this section, a dispute means— 7 (a) a dispute of interest if the parties to the dispute are engaged in an essential service; (b) a complaint over- (i) the fairness or lawfulness of an employee’s termination employment; (ii) of any other contravention of this Act or any other labour law or breach of contract or any employment or labour matter falling under common law, tortious liability and vicarious liability; (ii) any dispute referred to arbitration by the Labour Court under section 94(3)(a)(ii). Deducing from these provisions, the CMA has jurisdiction to try disputes based on tortious liability. That is why even the CMA form no. 1 which institute a case at the CMA lists ‘tort’ as one of the ‘nature of disputes’. Moving to the second issue, according to the CMA form number 1, which also works as pleading in this case, the nature of dispute is listed as tort. It is trite law that, parties and the court are bound by pleadings. Therefore, so long as the applicant claimed tort, the court had a duty to address the same. Looking at page 2 of the award, the first issue if I

can translate is ‘whether there were psychological torture to the applicant following breach of her contract’. And the second issue is the reliefs for each party. Therefore, without using many words, it's clear that, the issues raised were relating to tort or psychological torture and as rightly submitted by the 8 respondent counsel, they were addressed throughout the award and the CMA found that there is no direct relation between ending of the applicant's contract and the health issues which she encountered. I also agree with the respondent's counsel that the issue of breach of contract was addressed by the CMA at the end of the award, after the CMA has made a decision by determining the two key issues. If I can quote the Hon. Arbitrator, at page 7 of her Award, among the words she used in her decision in translation she stated that: ‘It is not the purpose of the law to open the Pandora's box by allowing every complainant who have been given a notice of termination the contract then they should claim for compensation due to the psychological effect or physical effect which they get following such notice. The law is clear that when there is a breach of contract or when there is cessation of contract or non-renewal what are the reliefs. The aim of laws is to make sure that there is a good relationship between the two parties, the employer and the employee and to raise the

country's economy and not to paralyze them economically’. And then at page 9, she finishes to analyze the first issue and stated that the first issue which was about tort was answered in the negative. She went to the second issue which was about reliefs which was also obviously answered 9 in the negative that there are no relief. And then in the next paragraph she stated that: ‘In addition to what I have stated, if the applicant had experienced health issues she could have pursued her rights through Workers Compensation Fund(WCF). So, it is clear that that comment was made after the arbitrator has answered the key two issues which were framed. Therefore, the second issue is answered in the negative that the CMA did not raise its own issues but it dealt with the issues of torturous liability The 3rd and 4th issues will be answered jointly. The CMA has dismissed the applicant's claim by stating that there was no direct relationship between the claims of tort and the termination of employment. The CMA has also stated that, the letters from the hospital are clear that the applicant was sick and she was having health issues but there was no evidence to show that, the said sickness was caused by termination of employment. I agree with the CMA’s findings because according to the applicant, when she was given a letter of termination, she became weak, collapsed and she got sick. It

means therefore, the termination news shocked her and affected her physically and mentally. In order to establish those claims which are similar to ‘nervous shock’ the applicant was supposed to show that there was legitimate expectation of her 10 employment contract to be renewed to the extent that non-renewal shocked and affected her. As regards proof of legitimate expectation, I will borrow a leaf from South African jurisdiction in the case of Armscor Dockyard vs CCMA and 2 others, case No. C853/15 where it was held: - “…that the expectation must be reasonable in the objective sense. The question that one has to ask is whether the circumstances were such that any reasonable employee would, in the circumstances, have expected the contract to be renewed …here the court has to conduct a two-stage enquiry. The first stage is to determine what the applicant’s subjective expectation actually was in relation to renewal. This is a question of fact. Once the subjective expectation has been established…the court then go on to decide the second stage, namely whether this expectation was reasonable in the circumstance…” (emphasis supplied). As stated, the applicant has not shown any evidence in support of subjective expectation of renewal of contract. Her employment contract was for one year and renewal was at the discretion of the respondent. I've gone through the employment agreement

between the parties and the terms under part 2.2 states that: ‘Continued employment with the employer shall depend on the employees demonstrating good conduct and satisfactory 11 performance at all times, failure of which may lead to disciplinary actions being taken including ending employment relationship’. And then part 10 states that: ‘termination of employment the employer may at any time terminate the engagement of the employee giving him or her 30 days notice in writing or paying him or her one month's salary in lieu of such notice the employee may at any time after the expiration of 30 days from the commencement of service terminate his or her employment by giving to the employer 30 days notice in writing or paying the employer one month's salary.’ Under the circumstances, based on the contract of employment, the applicant knew or ought to have known that continued employment with the respondent, is not automatic. It shall depend on several issues, including demonstrating good conduct and performance, and the employer may at any time terminate the engagement of the employee by serving a 30 days notice. Having stated that, I see no reason which is justifying the claims by the applicant that she was affected psychologically to the extent that she deserved compensation from the employer by ending their employment relationship. There was no legitimate expectations which can

justify such distress. The termination news to the applicant are too remote to form the basis for tort. I also find the evidence of one Mwasiti Omar officer of the respondent to be relevant that, the applicant told her that her employment has been 12 terminated. It means even when the applicant was still at work on the 19th she already knew of the termination. Therefore, she cannot claim to be shocked later after she had left the workplace. Having said that, it is my finding that the applicant did not establish her claims and the CMA correctly dismissed the application. Finally, the application for Revision is hereby dismissed. The Commission for Mediation and Arbitration’s award is upheld. It is ordered. L.K.J ITEMBA

JUDGE 25/10/2024 13