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V IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [MOROGORO SUB-REGISTRY] AT MOROGORO IJVSOUR REVISION NO. 1 OF 2023 (Originated from the Decision ofthe Commission for Mediation and Arbitration for Morogoro in Labour Dispute No. CMA/MOR/73/2021) JOFREY DAMIAN MWANI & 18 OTHERS APPLICANTS VERSUS KILOMBERO PLANTATIONS(UNDER RECEIVERSHIP) RESPONDENT JUDGEMENT 02/0^^/2034 Ik 29/04/2024 ■ KINYAKA, J.: Before this Court, is a Labour Revision Appiicatlon preferred by the applicants on 23/01/2023, hereinafter referred to as "the Application." The Application was made by way of a chamber summons under section 91(1)(a),(b) and (2)(b), section 94(l)(b)(i) of the Employment and Labour Relations Act, Cap. 366 R.E. 2019 "the ELRA" and Rule 24(1); 24(2)(a), (b), (c), (d), (e), (f); 24(3)(a),(b),(c) and<d); 24(11)(c); Rule 28(l)(c),(d)and (e), Rule 44(1) of the Labour Court Rules, GN. No. 106 of 2007 "the LCR" and any other enabling provisions of the law. The Application was supported by a Joint Affiaavit of the Applicants seeking the following orders; - 1. That the Honourable Court be pleased to call, examine and revise the decision of the Commission for Mediation and Arbitration in Labour Dispute No. RF/CMA/MOR/73/21 dated 11/12/2022 by Honourable Kiobya, Z., the Arbitrator in a view of satisfying itself as to the legality, propriety, rationality and correctness thereof. 2. That the Honourable Court be pleased to Issue an order quashing the said decision, award in Labour Dispute No. RF/CMA/MOR/73/21 dated 11/12/2022 by Honourable Kiobya, Z., for being illegal, improper, irrational and incorrect. 3. Cost of the application; and 4. Any other relief that this Honourable Court may deem fit and just to grant. The Respondent, upon being served with the Application and the affidavit in support thereof, on 07/03/2023, resisted the application by lodging before the Court, a notice of representation and a notice of opposition coupled with a counter affidavit. Material facts leading to the instant Application are as summarized in the proceeding paragraphs. The applicants were employed by Kilombero Plantations Ltd, the Respondent, prior to its being put under receivership. The respondent had secured a loan facility from NMB Bank PLC and that due to economic hardships and cessation of production at the plantation, defaulted in payments of the facility issued. The default by the respondent prompted NMB Bank PLC to appoint a Receiver and Manager to protect its interest during the period when a buyer was being sought to purchase the mortgaged assets. The Respondent was put under receivership sometimes on 01/07/2020. The appointment of Receiver and Manager was evidenced by Exhibit D1 (Form of Appointment of Receiver and Manager). The Receiver and Manager, as per the evidence adduced before the Commission for Mediation and Arbitration, hereinafter "the CMA", commenced his duties in August 2020. The applicants' employments were terminated by the respondent through retrenchment prior to being put under receivership on 31/01/2019, and the applicants were paid their terminal benefits as evidenced by Exhibit D20, and as confirmed by the applicants themselves, that, they had been fully paid their terminal benefits by the respondent when their employments were terminated. The termination of the employments by the respondent, KPL on t' 31/01/2019 was due to economic hardships and there being no possibility of resuming production at the plantation in the then near future. Due to the financial crisis the respondent was going through, the respondent, KPL, agreed with the applicants to enter into short-term monthly contracts in order to guard the respondent's assets at the plantation. The applicants and the respondent proceeded under the monthly contractual arrangements until July 2020 when the respondent was put under a receivership. After the applicants' employments was terminated, and after the appointment of the Receiver and Manager, the applicants aver that they were permanently employed by the respondent under receivership. Their oral contracts, in their averments, were unlawfully terminated by the respondent in July 2021. On the other hand, the respondent avers that post termination of the iiiitiai employment contracts with the applicants through retrenchment, they employed the applicants on monthly contracts for specific tasks pending securing of the purchaser of the respondent's assets. Short term contracts and applicants' applications in that regard, were produced by the respondent and admitted as Exhibits D2 to D18 by the CMA. The Applicants, however, aver that Exhibits D2 to D18, were not contracts between the applicants and the respondent under receivership, rather, they are contracts between them and KPL that was not under receivership. Before the CMA, the applicants and the respondent locked horns as to whether there were valid reasons for termination of their subsequent employments, which, in the applicants' view, they had oral permanent contracts, whereas, in the respondent's view, they were written monthly contracts for specific tasks; whether the procedure for termination of the applicants' employments was fair; and to what reliefs are the parties entitled to. Having heard the parties, reviewed the documentary and oral I testimonies, the CMA reached its verdict to the effect that:- 1. The applicants were under contracts for specific tasks. This finding was based on the circumstances of the case that the employment was subject to securing a potential buyer of the respondent and consequently, the Receiver and Manager could not provide permanent employment - see page 11 through to page 12 of the Award. 2. As the applicants' contracts were on monthly basis, and the duration of the last contracts were expiring on 31/07/2021, the termination of the contracts was by effluxion of time In accordance with the applicants contracts with the respondent - see page 12 through to page 13 of the Award. 3. The applicants' claims were without merits and consequently dismissed. It is against the above CMA's verdict, the applicants, being aggrieved with the Award, preferred the instant Application. When the Application was called for hearing on 02/04/2024, the applicants enjoyed the services Mr. Boniface Edward Basesa, Regional Secretary of DOSHUWU, whereas the Respondent was represented by Advocate Tazan Keneth Mwaiteleke of K&M (Advocates). The hearing proceeded orally and provided below are the parties' respective submissions. Submitting in support of the Application, Mr. Basesa commenced by stating the obvious that there are 19 applicants. That, the applicants' application Is against the decision of CMA made by Kiobya, Z., Arbitrator on 14^^ December 2022. He submitted that the genesis of the dispute is the applicants' termination of their employment without being paid their terminal benefits; also, that, there was no valid reason for the termination of the employment contracts. This, in his view, was contrary to section 44 of the Employment and Labour Relations Act, Cap. 366 R.E. 2019, hereinafter,"the ELRA." Mr. Basesa emphatically informed the Court that the respondent was Kilombero Plantations Limited (under Receivership). In his view therefore, the respondent was NMB PLC who was running the company since 2019. The intention of clarifying about the respondent, in Mr. Basesa's view, is that before 2019, the applicants were employed by Kilombero Plantations Limited herein referred to as "KPL". Mr. Basesa went on to submit that, when KPL failed to pay loan extended to them by NMB Bank PLC, NMB Bank PLC took KPL and started to run the same. KPL(under receivership) continued to work with the 19 workers who are the applicants herein and terminated others. He argued therefore, that, KPL (under receivership) were supposed to give the applicants written contracts as required under section 15(1) of the ELRA. The applicants were not given written contracts but had oral permanent contracts. Submitting on the written contracts produced and admitted in evidence by the CMA as Exhibit D2 to D18, Mr. Basesa argued that, the respondent, before thp CMA, tendered contracts of the former employer, KPL, as if they were the contracts for the applicants. The contracts were for the period of one month. But KPL had paid the employees who were terminated. Unfortunately, the CMA accepted the contracts as applied to the 19 applicants herein, which is contrary to law. Mr. Basesa forcefully submitted that in all the contracts that were tendered by KPL (under receivership), admitted and relied by the CMA, there is no any contract relating to KPL (under receivership), the respondent herein. It is clear that KPL (under receivership) had never issued any written contract for the applicants. The CMA erred to hold that the respondent issued written contracts in favour of the applicants. Mr. Basesa further submitted that bad enough, the CMA did not receive any evidence from the respondent to prove that the respondent had paid terminal benefits to the applicants after the letter's termination. Instead, the CMA relied on the contracts of one month employment and held that they were not entitled to any terminal benefits contrary to section 44 of the ELRA. It is also contrary to Article 23(1) and (2) of the Coristitutidn of the United Republic of Tanzania of 1977. Mr. Basesa went on to submit that the applicants had never done or engaged in any misconduct. The respondent terminated the applicants on the reasons of expiry of their contracts. To the contrary, their contracts were permanent. The applicants had their right to work as provided under Article 22 of the Constitution. Mr. Basesa prayed for the Court to reverse the decision of the CMA as it was Incorrect and was made contrary to section 44 of the ELRA and the Constitution. To substantiate his position, Mr. Basesa prayed to refer to the last paragraph of page 6 and 2"^ paragraph of page 10 of the decision of the CMA which he read to the Court. He went on submitting that from the paragraphs he had read, it is clear that DW2's testimony which was made under oath was contradictory and the CMA wrongly relied on the contradictory evidence to find the dispute in favour of the respondent. In his submission, he argued that the testimony was not true. It was wrong for the CMA to rely and decide in favour of the respondent and its failure to consider the invalid testimony of DW2. He argued that the decision was contrary to law. Mr. Basesa submitted that the applicants did not have fixed term contracts but oral permanent contracts. The CMA erred to hold that the applicants had fixed term contract. There were no expired contracts of the applicants but they were terminated without valid reasons. He stated that the applicants were not paid any terminal benefits. Mr. Basesa prayed for the Court to order the respondent to pay the applicants their claims and entitlements relating to their employment which include, notice under section 44(l)(ii) of ELRA; salaries of August 2021; severance pay from 2019 to 2021; leave pay for 2020/2021; compensation of 12 months, totaling TZS 58,381,998.47. He finalized his submissions by cementing that, the respondent erred under section 15(1) of the ELRA in not issuing written employment contracts to the applicants. Consequently, he prayed for the Court to consider section 15(6) of the ELRA in that the duty was on the respondent to prove that termination of the applicants' employments was valid. He thus submitted that; the Respondent acted contrary to section 16 of ELRA which he prayed to read. He prayed for the Court to find that the Respondent was not justified to terminate the applicants. Equally, the CMA erred to dismiss the applicants' complaint while it did not receive any evidence of valid termination of employment. ctir 10 Based on his submissions, Mr. Basesa prayed for reversal of the Award of the CMA as it was invalid, and unjustified. He further prayed for the Court to order the respondent to pay the claims preferred by the applicants. Replying to Mr. Basesa's submissions, Mr. Mwaiteleke, Counsel for the respondent, commenced by a prayer to adopt the contents of the counter affidavit sworn on 07/03/2023 by Silvanus Benedict MIola, and the notice of opposition as forming part of the respondent's reply submissions. He submitted on the onset that, the Application is unjustified and the decision of the CMA was correct in law, and prayed the Court to confirm the CMA's decision. Mr. Mwaiteleke submitted that the grounds of revision are provided for from 9^^ paragraph through to 15^^ paragraph of the applicants' joint affidavit. That, the applicants before the CMA claimed that they started to work with the respondent on 01/02/2019. However, according to the evidence before the CMA, Exhibit D1 (Form of Appointment of Receiver and Manager) was on 01/07/2020. The Receiver and Manager started his duties in August 2020 according to evidence adduced at the CMA. The evidence of DWl and DW2 clearly established that the applicants' contracts of employments were on 11 fixed short-term contracts. The contracts were admitted by CMA as Exhibit D2, D3, D4, D5, D6, D7, D8, D9, DIO, Dll, D12, D13, D14, D15, D16, D17, and D18. The contracts were the last ones running from 01/07/2021 to 31/07/2021. It was Mr. Mwaiteleke's argument that the contracts were issued by Receiver and Manager of the KPL (under receivership). The contracts were signed by all employees. The contracts provided for payment of TZS 6,000 per day. He submitted therefore that it is not true that there were oral permanent contracts. The contracts were written and were admitted by the CMA. Counsel for the respondent forcefully argued that the complaint that the contracts were not written under receivership, has no legal backing. What changes in receivership is only management but the company remains the same. When prompted by the Court, while referring to paragraph 13 of the joint affidavit in support of the Application, "what Is the legal effect of the contracts issued by KPL to the applicants, when it was under receivership", Mr. Mwaiteleke submitted that it is true that section 411(1) of the Companies Act, 2002 hereinafter referred to as "the CA" requires 12 where a Receiver and Manager of property of the company has been appointed, every invoice, order for goods or business letter issued by or on behalf of the company or the Receiver and Manager or the liquidator of the company, being a document on or in which the name of the company appears, shall contain a statement that the Receiver and Manager has been appointed. It means that, the document must show that the company is under receivership including the contracts admitted at the CMA as Exhibit D2, D3, D4, D5, D6, D7, D8, D9, DIO, Dll, D12, D13, D14, D15, D16, D17, and D18. Mr. Mwaiteleke was quick however, to point out that subsection 411(2) of the CA, provides that if a default is made, any officer of the company, receiver or manager shall be liable to a fine. He argued therefore, that by reading section 411(1) and (2) of the CA, it Is clear that in default, only fine is payable but the document cannot be vitiated because of absence of the word receivership. And taking into consideration that the applicants were aware that the company is under receivership, the contracts cannot be vitiated. He submitted that the purpose of notification was to inform the general public of its dealings with the company. Since the applicants were aware of the status of the company, they were not prejudiced. At the CMA, 13 , . . Jer i* there was no objection from the applicants to the admissibility of the contracts. He prayed the Court to consider the contracts as properly admitted and use the same in the present Application on their merit. After his attempted prayer to have the matter stand adjourned so as to give him more time to research on the issue rejected, Mr. Mwaiteleke continued to argue that if there was any issue with the contracts as admitted, the applicants were required to object to the admission of the documents in order for the CMA to determine if they were issued by KPL or KPL under receivership. He submitted that the applicants' employments contracts were fixed contracts of one month and expired on 31/07/2021 as the company was about to be sold, as such the CMA was correct to hold as it did. In respect of the ground of revision in paragraph 10 of the affidavit, Mr. Mwaiteleke submitted that the same has no merit. The applicants' CMA Form No. 1 did not contain any claim of salaries or salaries from August 2020 to July 2021. No issue that was framed at the CMA on that aspect. The applicants' claims were on notice, august salaries, severance pay, leave and compensation of 12 months. He therefore submitted that even in respect of those claims included in the applicants' claims, the CMA was correct to 14 dismiss them as there was no unfair termination. Even the August salary, the CMA was correct to dismiss the same, as their contracts expired on 31/07/2021. Regarding the ground in paragraphs 11 and 12 of the applicants' joint affidavit, Mr. Mwaiteleke submitted that the CMA was correct to hold that there was no breach of the contract of employment as the applicants were given specific tasks to secure the respondent's properties while awaiting the sale of the company. The applicants were Informed i//o'e Exhibit D19. There was no need to issue notice as the contracts were self-explanatory as to its duration. On page 11 of the decision of the CMA, the Hon. Arbitrator quoted Exhibits D2 to D18, that the applicants' contracts began in July 2021 and ended on 31/07/2021. Mr. Mwaiteleke submitted that the applicants' ground in paragraph 13 of the Affidavit is not true and has no merit. There were two respondent's witnesses, Silvanus Benedict MIola (DWl) and Josephat Edward Ngwani (DW2). DWl was a Receiver and Manager of KPL appointed by NMB as per his appointment admitted as Exhibit Dl. DW2 was the Supervisor of the KPL (under receivership) who tendered Exhibit D19. They were witnesses 4=- 15 who testified for KPL under receivership. AN docurrients from D1 to D19 related to KPL under receivership. The document that related to KPL was Exhibit D20 which showed payments to employees when they were retrenched by KPL and Exhibit D21 which was a letter addressed to KPL. All other documents, submitted Mr. Mwaiteleke, related to KPL under receivership. In respect of the ground in paragraph 14 of the Affidavit, Mr. Mwaiteleke submitted that as he has submitted in respect of paragraph 10 of the joint affidavit, there was no issue as regards to how much the employees were paid. Even the Arbitrator did not rule on that. It was evidence of DW2 on cross-examination. The CMA did not err as it did not decide on that issue. Regarding the ground in paragraph 15, Counsel for the respondent denied the truth ..of the deposition. All witnesses gave testimony under oath. On page 3 of the Award, it is shown that all witnesses gave evidence on oath. As to the applicants' prayer for the Court to grant the applicants' claims in paragraph 8 of the affidavit, Mr. Mwaiteleke opposed to the prayer on the reason that, although the dispute involves 19 people, it is only Jofrey Damian Mwani who testified before the CMA. Under the law, the Court cannot grant 16 ^ .. A, • , -. .r... ■■ ^ . I- -■ ' • ' ■■ • V.- . 'r' , ... .. .. , ^ ...I; .'..-I. • :*• claims to persons who have not testified. Even if the Court reverses the decision of the CMA, he prayed that the Court be pleased not to grant reliefs of ail 19 applicants. In his conclusion, Mr. Mwaiteleke prayed for dismissal of the revision for lack of merit. In his rejoinder, Mr. Basesa, started by praying that the contents of the applicants' joint affidavit to be adopted as forming part of the submissions. He further prayed to withdraw the applicants' ground of revision contained i • i ' in paragraph 15 of the affidavit. He then, went on to rejoin that the respondent's counsel contention that the appointment of Receiver and Manager was on 01/07/2020, was not contested by the applicants. He argued that what was the issue, was whether KPL (under receivership) had valid reason for terminating the applicants; whether the procedure of termination was valid; and the reliefs each party was entitled to. Before the appointment of Receiver and Manager on 01/07/2020, the applicants were employees of KPL (under receivership). There was no objection by respondent on the date of commencement of the applicants' employment on 01/02/2019. What was at issue, is whether there was a contract and the type of the contract. He submitted that the contract 17 was oral and not one month written contract as alleged. There was no any agreed salary of TZS 6,000 per day. The employer of the applicants was the respondent(KPL under receivership) and not KPL. He submitted that counsel for the respondent had admitted the weaknesses in the contracts of employment but argued that they were not fata! to vitiate the contracts. In his view, the respondents should have applied to rectify the contracts at the CMA. He thus prayed, that the Court be pleased to ignore the submissions as there was no proper name of the employer, and Implored the Court to refuse recognition of the contracts. Mr. Basesa went on further to rejoin that the decision of the CMA was not correct as the Applicants' termination was unfair based on reason and procedure contrary to section 41(1) (ii) of the ELRA. The period of notice was only 1 day based on the notice dated 22/07/2021. Even if the notice was issued on 22/07/2021, still the period of notice of 28 days was abrogated. He went on to state that the salary for August 2021, was supposed to be paid because the applicants continued to work for the month of August. This was not contested by the respondents. The applicants were also entitled to severance pay from 01/02/2019 to 01/07/2021 In accordance 18 with section 42 of the ELRA. They were also entitled to leave pay for the year 2021 under section 31(1) and 44(1)(b) of the ELRA. Mr. Basesa went on submitting that it is clear that the applicants were unfairly treated as they were terminated without being paid their terminal benefits. They were entitled to compensation for unfair termination under section 44 of the ELRA and Article 23(1) and (2) of the Constitution. He finally rejoined that it is not true that it was only PWl who testified in Court. He said, Jofrey gave evidence on behalf of others after he was authorized by the other applicants to testify. He argued that Counsel for the respondent had not cited any law that was violated by PWl's testifying on behalf of other applicants. He summarized his argument, that he has not seen any law that require every person in a dispute with common interest to testify. Consequently, he prayed that the applicants' Revision Application be allowed and the Court be pleased to order payment of a total TZS 58, 381,999.47. The submissions above marked the end of the parties' submissions in support for and in opposition of the Application. Having heard both parties, and having gone through the records and proceedings before the CMA, the 19 evidence tendered and admitted by the CMA, and having reviewed the applicable laws, I shall now proceed to evaluate the present Application and determine what this Court considers to be the core issue(s). In my view, the gist of the instant Application, depends on the determination as to the nature of the applicants' employment with the respondent. That is, whether, the applicants' contracts were oral permanent contracts as averred by the applicants, or fixed term written contracts as averred by the respondent. My finding on this shall inform this Court's finding on the ground of revision stated in the 9^^^ paragraph of the applicants'joint affidavit. I should state on the outset that, I had issues following up the applicants' case as discerned from their joint affidavit, as well as submissions by Mr. Baseba. My starting point is paragraphs 6 and 7 of the joint affidavit where the applicants state as follows: - ''(6) That the respondent is an employer of the applicants entered into oral agreement of employment on July 2021 when the company was under receivership (NMB PUBLIC LIMITED COMPANY). "(2) That the applicants were employees ofthe respondent until they were breached employment by their employer on 31^ July 2021 without proper notice for breach ofemployment." 20 ^ Then, in his submissions, Mr. Basesa informed the Court that the respondent was Kilombero Plantations Limited (under Receivership). In his view therefore, the respondent was NMB PLC who was running the company since 2019.1 understood from his submissions that his intention of clarifying about the respondent, is that before 2019, the applicants were employed by .' t', KPL. Mr. Basesa Went on to submit that when KPL failed to pay loan extended to them by NMB PLC, NMB PLC took KPL and started to run the same. KPL (under^ receivership) continued to work with the 19 workers who are the applicants herein and terminated others. He argued therefore, that KPL (under receivership) was supposed to give the applicants written contracts as required under section 15(1) of the ELRA. What is gathered from the applicants' joint affidavit in paragraphs 6 and 7, and Mr. Basesa's submissions, is that, the applicants' understanding is that KPL(under receivership) is a distinct entity altogether different from KPL. As such, contracts entered between the applicants and KPL, are not and should not be taken as contracts entered between KPL (under receivership). Further, I gather that as NMB Bank PLC appointed the Receiver Manager, the applicants believe that it is NMB Bank PLC who was running the company through a Receiver and Manager, who is the employer. This understanding 21 ■ •• ■--- ■ - -■ - ' •- 1— can clearly be seen from Mr. Basesa's submission to the effect that the respondent is NMB Bank PLC who was running the company since 2019. There is another glaring aspect gathered from Mr. Basesa's submissions to the effect that before the appointment of a Receiver and Manager on 01/07/2020, the applicants were employees of KPL (under receivership). He stated that there v^/as no objection by the respondent on the date of commencement of the applicants' employment on 01/02/2019. What was at issue," is.whether there was a contract and the type of the contract. He submitted that the contract was oral and not one month written contract as alleged. There was no any agreed salary of TZS 6,923 per day. The employer of the applicants wa's the respondent(KPL under receivership) and not KPL. As I understood from Mr. Basesa's submissions, all the contracts that were tendered by KPL(under receivership), admitted and relied by the CMA,there is no any contract relating to KPL (under receivership), the respondent herein. Ip his view therefore, it is clear that KPL (under receivership) had never issued any written contract for the applicants. I, think, with all due respect, Mr. Basesa's submissions are contradictory and inconceivable for the reasons that shall come out shortly. 22 While in paragraph 6 of the joint affidavit, the applicants claim that they were offered permanent oral employment contracts with the respondent (under receivership) on 01/07/2021, Mr. Basesa's submissions suggest that the oral employment contracts commenced on 01/02/2019.1 understand, as of 01/02y'2019, the respondent was not under receivership. The Receiver and Manager was appointed on 01/07/2020. Further, the applicants hold the firm belief that the contracts admitted as Exhibit D2, D3, D4, D5, D6, D7, D8, D9, DIO, Dll, D12, D13, D14, D15, D16, D17, and D18, are not those of the respondent under receivership, rather, they are those of KPL, and because they are KPL's contracts, it was not correct for the CMA to use them as contracts between the applicants and the respondent under receivership. I think, both the applicants and their representative, Mr. Basesa, had wrongly appreciated what it means by a company being under receivership. When a company is put under receivership, it does no change its legal personality, it remains to be the same company, only that the management of the company is placed under the Receiver and Manager. The employer therefore, remain to be the sarhe company though managed by the Receiver and Manager. The only issue, I think that I should address, albeit in brief, that is relevant .is- 23 to the Application, is the legal effect of the contracts not stating that the Company Is under receivership. To address this, I shall refer to section 411 of the CA, which provides as follows: - ''411.'(I) Where a receiver or manager of the property of a company has been appointed, every invoice, order for goods or business fetter issued by or on behalf of the company or the receiver or manager or the liquidator of the company, being a document on or in which the name of the company appears, shall contain a statement thata receiver or manager has been appointed. (2)Ifdefault is made in complying with the requirements ofthis section, the company and any of the following persons who knowinglyand wiUfuiiy authorizes orpermits the default, namely, any officer of the company, any liquidator of the company and any receiver or manager, shall be liable to a fine." [Emphasis added] A plain reading of section 411(1)of the CA, does not suggest that a company changes its identity merely by being placed under receivership. The proviso requires any document issued to contain a statement to the effect that a receiver or manager has been appointed. As rightly submitted by Mr. Mwalteleke, that, default thereof, does not invalidate a document, rather, ckzj" 24 imposition of a fine to any officer of the company, including the receiver as provided for under section 411(2) of the CA. Such a fine is payable at the Instance of the Registrar of the Companies, consequently, I shall not discuss this aspect of the fine. Having decided that a company under receivership does not change its personality, the distinction sought to be made by Mr. Basesa between what he termqd as KPL and KPL (Under receivership), does not have legal basis. I consequently make a finding that KPL and KPL (under receivership) has all along remained to be the same entity and contracts entered by KPL and later on adopted, whether expressly or by conduct, by KPL (under receivership), are as good as contracts entered when the respondent was under receivership. Having made the above finding, the next question is whether or not the applicants, had oral agreement with the respondent. This issue should not detain me much, as reading from the records of the CMA, documentary evidence provided, and based on my findings above, I am settled in my view that, the applicants had entered into fixed term contracts with the respondent. The CMA's finding on this aspect, based on Exhibit D2, D3, 25 D4, D5, D6, D7, D8, D9, DIO, Oil, D12, D13, D14, D15, D16, D17, and D18, cannot be faulted. The applicants' oral testimony cannot be used to contradict documentary evidence that was not objected to by the applicants at the CMA. I should hastenTo observe that, the Applicants' version of the story that they had oral permanent employment contracts that commenced on 01/07/2020 as stated in paragraph 6 of their joint affidavit, is not plausible. It is in record that, on the purported date, the respondent had already been put under receivership. Common sense has it that the Receiver and Manager could not offer permanent employment contracts while his responsibilities were to secure a potential buyer of the business and repay NMB Bank PLC's principal loans and'Interest. Again, common sense has it that KPL, whether under receivership of not, could not issue permanent employment contracts while it had retrenched Its employees including the 19 applicants due to economic hardship and after payment all their terminal benefits. Given the circumstances, I find'the Appellants' version of the story not appealing enough to discredit the documentary evidence adduced by the respondent. tiStif.,.:,;. ^ • Having ruled that the applicants had entered into written agreements for fixed term contracts for specific tasks, and not oral permanent agreement, the next issue to determine is, whether the complaints on unfair termination is maintainable. My determination on this issue addresses grounds of revision stated in paragraphs 11 and 12 of the applicants' joint affidavit. The gist of the grounds in the referred paragraphs hinges on the applicants' rights and proper notice on termination of the applicants' employment contracts. As discerned from the applicants' case that, their claims as to proper notices and employees' rights arise from their assertion that they had permanent oral contracts with the respondent, of which, I have already made my mind that, none of such oral contract was proved to exist. To the contrary, the respondent's evidence supported by documentary evidence is much weightier. It is now clear in mind that, the applicants had fixed term contracts with the respondent, the last of which were expiring on 31/07/2021. Just for purposes of clarity, the Job Application Form and key terms of these contracts are produced below as per Exhibit D3: - The job application form Is worded as follows: - 27 •- i . TAREHE 01/07/2021 Jina: Alack Mwefuka Mahaii: Mngeta Meneja: Utawaia - KPL K.K Mkuu wa Idara MAOMBI YA KAZI KWA MUDA MFUPI(SEASONAL WORK) MimiALACK MWELUKA napenda kutuma maombi ya kazi Hi nikifanikiwa nipate ajira kwenye Kampuni yako kadri ajira itakavyo kubaiiwa. Ahsante Sgn. Maon!ya Mwajiri(COMMENTS). Then, the executed contracts contain the following key term as to the duration SHOR T CONTRA CT OFEMPLO YMENT (MKA TABA WA AJIRA WA MDA MFUPI) 1 MONTH TO 3MONTHS/KUANZIA MWEZI1 MPAKA MIEZI3 ALACKPHILIPO MWELUKA COMMENCEMENT(Kuanza): This contract shall commence on 01/07/2021 and end on 31/07/2021. 28 f r '■ - 'A.. A. - "• t . t II- . « • The terms of the Exhibit D2 to D18, which are common to all, clearly provided for the commencement and expiration date of the contracts, that is, 01/07/2021 and 31/07/2021, respectively. This means, all along, the applicants were alive that their contracts would expire on 31/07/2021. The question then, hov^i does a fixed term contract come to end? Rule 4 (2), & (3) of the Employrhent ahd Labour Relation Act (Code of Good Practice), G.N. No; 42 of 2007, hereinafter "the Code Of Good Practice", provides In clear terms as follows: - "4(1) (2) where the contractis a fixed term contract, the contractshall terminate automatically where the agreed period expires, unless the contract provides otherwise. 3)subject to subrule(2), a fixed term contract may be renewed by a default Ifan employee continues to work after the expiry of the fixed term contract and circumstances warrants It." [See also Court of Appeal decisions in the cases of Serenity On The Lake Ltd V, Dorcas Martin Nyanda, Civil Appeal No. 33 of 2018, Morogoro International School v. Hongo Manyanya, Civil Appeal No. 278 of 2021 and Asanterabi Mkonyi v. TANESCO, Civil Appeal No. 53 of 2019 (all unreported) to mention a few] 29 m • V' rtC'- •- Based on the above cited Rule, It is crystal clear that the applicants' fixed term contracts expired on 31/07/2021, and therefore in terms of Rule 4(2) of the Code of Good Practice, the applicants' fixed employment contracts automatically terminated on 31/07/2021. My reading of the contracts, indicate nothing to the contrary, that is, they do not provide otherwise besides that the expiry date was 31/07/2021. Having so ruled, the question of notice does not arise as the contracts themselves were sufficient notice as when they would come to an end. That notwithstanding, the respondent took trouble to inform the applicants that their contracts v^/ould terminate on 31/07/2021 as evidenced by Exhibits D19, admitted collectively. The position that I am taking on whether notice is required for fixed term employment contracts, is not novel, not long ago, the Court of Appeal has provided its authoritative position in Civil Appeal No, 34 of 2020 between Msafiri Sobo and CRDB Bank PLC, when analyzing section 36 (a) (iii) of ELRA and Rules 3(1)(c) and 4 of the Code of Good Practice on the operation of fixed-term contracts on page 10 through to 11 of the decision, that: ''Furthermore, to emphasis two aspects, we have added emphasis to rules 4(2) and (5). First, a fixed-term contract 30 terminates automatically upon the expiration of the agreed-upon period, as per rule 4(2), unless the said contractprovides otherwise. Exceptfor situations in which a fixed-term contract is automatically renewed pursuant to rule 4(3), automatic contract renewal is not permissible. For an automatic renewal to occur without the parties'express consent would subvert the very purpose for which they entered into the fixed-term contract, thereby transforming it into an employment contract with an indefinite duration. Secondly, rule 4(5) above places the burden ofestablishing the existence ofa reasonable expectation ofcontract renewal on the employee, which must be demonstrated objectively. Two potentialjustifications forsuch an expectation are provided: prior contract renewals and the employer's commitment or undertaking to renew. Considering this, we believe it to be a basic legal principle that a fixed-term contract does not entail any anticipation of renewal, unless the employee provides evidence to support the existence ofsuch an expectation."[Emphasis added] Exhibits D2 to D18, refute Mr. Basesa's submissions that the. respondent did not supply the applicants with written contracts as required by section 15(1) as well as section 15(6) of the ELRA. Section 15(1) of the ELRA require the employer to supply, employees at the commencement of employment certain particulars in writing; viz,(a) name, age, permanent address and sex 31. ■ .• • • ; . ■ -V - ■ '.•O'voiv V.'.; .:v- u-, • ■ • ;• . V : -v..;: f-'-'. r-f of the employee; (b) place of recruitment; (c) job description; (d) date of commencement; (e) form and duration of the contract; (f) place of work; (g) hours of work; (h) remuneration, the method of its calculation, and details of any benefits or payments in kind; and (i) any other prescribed matter. I have reviewed Exhibits D2 to D18 and find them to comply with the above requirements. Further, section 15(6) of the ELRA, is to the effect that in all proceedings, if an employer fails to produce a written contract or the written particulars prescribed in section 15(1), the burden of proving or disproving an alleged term of employment stipulated therein, shall be on the employer. Again, I find this proviso does not assist the applicants as the respondent in the present Application had fully complied with the requirements of section 15(1) of the ELRA. As a result, I am not inclined to buy Mr. Basesa's line of argument. Even section 16 of the EALRA has been cited by the applicants' representative out of context. At this juncture, let me, albeit in brief, address the applicants' grounds of revision contained in paragraphs 13 and 14 of the applicants'joint affidavit. In paragraph 13, the applicants' complaint is to the effect that all evidence ^423— 32 provided by the respondent for KPL and not KPL under receivership. I think I have amply stated my position that a company being under receivership, does not altogether make it another entity. Moreover, I am aligned with Mr. Mwalteleke's submissions that there were two respondent's witnesses, Silvanus Benedict MIola (DWl) and Josephat Edward Ngwani (DW2). DWl was a Receiver and Manager of KPL appointed by NMB aS' per his appointment admitted as Exhibit Dl. DW2 was the Supervisor of the KPL (under receivership) who tendered Exhibit D19,They were witnesses who testified for KPL tinder receivership. This means, the applicants' claims are baseless and raised out of context. With regards to the ground stated in paragraph 14, I agree with the respondent's counsel that there was no issue as regards to how much the employees were paid. There was no decision made by of the Arbitrator on that aspect. As the same is not part of the decision of the Honourable Arbitrator, I find this ground unmerited [see the case of France Michael Nyoni v.;The Republic, Criminal Appeal No. 505 of 2020 on page 9 (unreported)]. ..•'o. I now turn to the applicants' claims for twelve (12) months compensation, leave pay, terminal benefits, payment in lieu of notice and payment of salaries for August 2021. These claims should not detain me much, as having held that the contracts were fixed-term contracts, claims for 12 months compensation are untenable in law as it now settled that an employer under fixed terms contract, cannot enjoy reliefs for unfair termination. This Court faced a much similar situation in the case of Isaak Olutu v, Csi Electrical Ltd, Revision No. 320 of 2019, in tackling the matter, the Court, on page 12, cited with approval the case of Mtambua Shamte & 64 others v. Care Sanitation and Suppliers, Rev. No. 154 of 2010 at Dar es Salaam, where it was underlined that:- "...the principles of unfair termination do not apply to specific tasks or fixed term contracts which come to an end on the specified time, or completion of a specific task. Under specific tasks or fixed term, the appiicabie principles apply under conditions specified under Section 36(a)(Hi) ofthe Empioyment and Labour Relations Act, No. 6/2004 read together with Rule 4(4)ofGN 42/2007." Interpreting section 36 (a) (iii) of the Employment and Labour Relations Act, and Rule 4(4) of Employment and Labour Relations (Code of • " 34 Good Practice) Rules, 2007, Government Notice No. 42 of 2007, the Court of Appeal in the case of Asanterabi Mkonyi v. TANESCO ,Civil Appeal 53 of 2019 on page 9 through to 10 observed as follows:- 'W/7^t is relevant to the present matter is section 36(a)(Hi) aix)ve to which we have deiiberateiy supplied emphasis. This provision sanctions the application of the concept of unfair termination to employment on a fixed term contract in case of failure to renew such a contract on the same or similar terms only ifit is established that there was a reasonable expectation ofrenewal. Certainly, where such expectation does not exist the concept will not apply. In the same vein, rule 4(4)of the Code, stipulates that: "(4)Subject to sub-ruie (3), the failure to renew a fixed-term contract in circumstances where the employee reasonably expects a renewal of the contract may be considered to be an unfair termination."[Emphasis added] In view of the foregoing, it is our view that the High Court was correct in its holding in this matter, premised on its earlier decision in Mtambua Shamte(supra), that the principles ofunfair termination do not apply to a fixed-term contract (or even a special task contract) unless it is established that the employee reasonably expected a renewal ofthe contract." Similarly, neither notice nor leave payments are maintainable as rightly held by the CMA. With regards to August 2021 salaries, the claims are raised out 35 ; .A.;!-., ; « of context as the applicants' contracts came to an end on 31/07/2021 and the respondent took trouble to Inform them of their last employment date. Furthermore, claims for terminal benefits are untenable in terms of section 42(3)(c) of the ELRA as the Honourable Arbitrator had correctly found in the CMA's Award. Based on my collective findings above, I find the applicants' claims are devoid of merit and consequently, I find no compelling reasons to vary the CMA's Award. Having resolved the issues key to the determination of the Application the way I have, and for purposes of clarity, I hold that, the CMA Award is correct in that:- 1. The applicants' contracts were fixed term contracts for specific tasks and come to an end on 31/07/2021 by effluxion of time. The respondent was under no legal obligation to give notice; 2. The applicants' termination of their fixed term employment contracts was by the very nature of the contracts, that, they had come to an end automatically, and consequently, thd'question of unfair termination does not arise; and I: "!.:.:'.,• ■ ■ C-' '.C "i 36 V-:.'' v' ""■•r ' • .i -y-- 'I • .t ' 1 , 3. The applicants' claims for twelve (12) months' salary, payment in lieu of notice, leave payments, terminal benefits and August 2021 salaries, are devoid of merit. In the final analysis, this Court finds the Application devoid of merits and henceforth stands dismissed in its entirety. I further order that each party should bear its own costs. It is so ordered. DATED at: MOROGORO this 29^^ day of April 2024. SGD: H.A. Kl^YAKA JUDGE 29/04/2024 37 r.rxr.. Court Judgment delivered In the presence of Advocate Ibrahim Kibanda, holding brief for Mr. Tarzan Mwaiteleke, learned advocate for the respondent and the Applicants who appeared in person. F.Y. Mbelwa DEPUTY REGISTRAR 29/04/2024 Right of Appeal explained to the parties. F.Y. Mbelwa DEPUTY REGISTRAR 29/04/2024 ft jO XJ 38 ■--i—