john mathias busungu vs tanzania red cross society 2023 tzhcld 1456 13 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 173 OF 2023 (Arising from Labour Dispute No. CMA/DSM/KIN/233/2022/137/2022) BETWEEN JOHN MATHIAS BUSUNGU ...................................................... APPLICANT VERSUS TANZANIA RED CROSS SOCIETY....................................... RESPONDENT JUDGEMENT Date of last Order: 09/ 10/2023 Date of Judgement: 13/ 10/2023 MLYAMBINA, J. The background of the matter is that; the Applicant was employed by the Respondent way back in 2018 through a fixed term contract of two years in the position of Internal Auditor, Compliance and Risk Management Manager. When the referred contract expired, the Applicant was again re-engaged in another fixed term contract of three years in the capacity of the Deputy General Secretary with effect from 01/11/2019. The Applicant alleges to have been unfairly terminated from employment on 30/03/202. Aggrieved by the said termination, the Applicant referred the matter to the Commission for Mediation and Arbitration (herein CMA). After considering the evidence of the parties the CMA found that the matter was prematurely filed. The complaint was therefore dismissed by the CMA. Again, being unhappy with the CMA's decision, the Applicant preferred this application before the Court on the following grounds: i. That, whether or not CMA was right to hold as it did hold that the Applicant was not terminated from his employment but was given a sabbatical leave. ii. That, whether or not CMA was right to hold as it did that the Applicant referred the labour dispute to CMA prematurely as the date for termination or expiration date was the date for expiration of the Employment contract. iii. That, whether or not CMA was right to hold as it did hold that the Applicant did not prove on balance of probabilities the termination of his employment, instead the Applicant gave evidence on the non-renewal of his contract of employment. The application proceeded by way of written submissions. Before the Court, the Applicant was represented by Mr. Alex Mashamba Balomi, Learned Counsel. Whereas Mr. Atranus M. Method, learned Counsel appeared for the Respondent. Arguing in support of the application, Mr. Mashamba argued jointly the first and second grounds. He submitted that the CMA ought to have found that the Applicant was unfairly terminated contrary to Section 37 o f the Employment and Labour Relations A ct [Cap 366 Revised Edition 2019] (herein ELRA). He stated that the Arbitrator failed to address the issues proposed. Mr. Mashamba argued that the Arbitrator errored not to hold that there was termination by failure to renew fixed term contract. He said termination by notice is one of the forms of termination provided under Rule 3(1) o f the Employment and Labour Relations (Code o f Good Practice) Rules, GN. No. 42 o f 2007 [herein GN. No. 42/2007]. He strongly submitted that exhibit D4 was a termination letter. He added that the Applicant handed over proving that he was prematurely terminated before the end of the contract. He went on to submit that exhibit D4 contain two issues, non- renewal notice and sabbatical leave. He further maintained that the termination letter is dated 30/03/2022. Regarding the last ground it was argued that in civil matters the burden of proof is on the balance of probabilities as provided under Section 110(1), (2) o f the Evidence Act, [Cap 6 R E 2022] (to be referred as TEA). In the upshot, Mr. Mashamba urged the Court to quash both the proceedings and the subsequent Award. In response to the first ground, Mr. Method submitted that the finding and decision of CMA stands unshaken because the notice issued on 30/03/2022 (exhibit D3) is clear as to its intention. That, it directed a Sabbatical leave to commence on 31/03/2021 to 31/10/2022 which is also the end of a fixed term contract. Mr. Method stated that the Sabbatical leave was given pursuant to paragraph 10.9 of the Human Resources Manual (Exhibit D4). With respect to Section 37 (supra), Mr. Method submitted that the provision has been misapplied to the circumstances of this matter. He strongly submitted that there was no termination in this matter. He further argued that failure to renew a fixed term contract may apply when the employee continues with work after the end of a fixed term contract. He added that principles of unfair termination do not apply to a fixed term contract as it was discussed in a book titled Comprehensive Issues o f Employment and Labour Laws, by Allen Ki/eo a t page 461 to 462. It was further submitted that the end of a fixed term contract between the parties was 31/10/2022. Thus, since there is neither termination letter nor dispute that the matter was filled before 31/10/2022, then the complaint was prematurely filed at the CMA. Further, justice does not depart from common sense, that a person cannot claim to be terminated while still being recognised as an employee on Sabbatical leave. He added that the Applicant was still in Respondent's payroll up to September and October, 2022 as evidenced by exhibit Dl. As regards the last ground, Mr. Method reiterated his submission in the first ground. He added that; the Applicant did not prove on the balance of probability as alleged. In conclusion, he insisted that the CMA's decision is fair and just, and the authorities cited are proper to the mutually framed issues. He maintained that the claim of unfair termination is premature since the matter was filed before the end of the contract. He therefore urged the Court to uphold the CMA's Award and dismiss the application. After dully considering the rival submissions of the parties, CMA and Court records as well as relevant laws, I find the Court is called upon to determine only one issue; whether the com plaint was prem aturely filed a t the CMA as found by the Arbitrator. In our labour laws, there is no straightforward definition as to what termination of employment is. However, the law provides the circumstances which may result to termination of employment. The same are provided for under Rule 3(1) o f GN. No. 42/2007 as rightly cited by Mr. Balomi. Termination of employment contract may be defined as an act of bringing an employment relationship to an end. Termination can be done by either of the party to the contract. The law requires employers to terminate employees on fair and valid reasons as in terms of Section 37 o f ELRA (supra). In the instant matter, it is undisputed fact that at the CMA, the Applicant instituted a complaint of unfair termination against his former employer, the Respondent herein. This is also evidenced by the referral form (CMA FI). The disputed employment contract of the parties herein commenced on 01/11/2019 and it was agreed to end on 31/10/2022 as reflected in the employment contract (exhibit D2). The Applicant strongly submitted that he was unfairly terminated from his employment basing on the content of notice of non-renewal of the contract (exhibit D3). For easy of reference, I hereunder reproduce part of the exhibit in question: John Busungu, Deputy Secretary General (DSG), Tanzania Red Cross Society, Dar es Salaam. Dear John. RE: NOTICE FOR NON RENEWAL OF SERVICES AGREEMENT Reference is made from the above subject. With reference to the National Executive Committee meeting held on 30th March, 2022. I am writing to inform you that your service agreement (employment contract) under the capacity of Depute Secretary General (DSG) that expects to end on 31st October 2022 shall not be renewed. Pursuant to your employment contract and the letter of confirmation dated 20th November 2020, I am writing to officially confirm that no new employment contract shall be offered after the expiration of your existing employment contract. In accordance with TRCS Human Resources Manual (2020) Section 10.9 I am hereby notifying you that you have been given a sabbatical leave from 31st March 2021 up to the end of your service agreement. Your salaries and other employment benefits as stipulated in your employment contract will be paid directly from TRCS HQ funds. You are required to complete your clearance and handover all office equipment/items to Secretary General - Mr. Felician Mtahengerwa before 1st April 2022. I would like to take this opportunity to thank you for your sen/ice to the Tanzania Red Cross Society and to wish you every personal and professional success in the future. Yours Sincerely, Felician Mtahengerwa SECRETARY GENERAL ACKNOWLEDGEMENT OF RECEIPT By signing herein below, I John M. Busungu the undersigned employee acknowledges receiving this notice of non-renewal of my agreement (employment contract). Date: 12/04/2022 Signature: signed. The wordings of the above notice are clear. First, the Applicant was notified of non-renewal of his employment contract upon its expiry. Second, in accordance with TRCS Human Resources Manual (2020) section 10.9, the Applicant was given Sabbatical leave from 31/03/2021 up to the end of his contract. Third, the Applicant was notified that his salaries and other employment benefits will be paid directly from TRCS HQ funds. Lastly, the Applicant was notified to complete clearance and handover all office equipment/items to Secretary General. Again, for easy of reference I hereunder reproduce Section 10.9 o f TRCS Human Resources Manual (2020) (exhibit D4): Sabbatical Leave Sabbatical leave is a period of leave in which employee does not report to job but is still employed by National Society. This type of leave is granted by Secretary General after obtaining approval from NEC. The quotation speaks loudly. As regards the leave on question, an employee is not reporting to work but he is still recognized as an employee of the Respondent. Therefore, on the basis of the foregoing analysis, it is my view that the Applicant was not terminated from employment on the basis of exhibit D3. As per the content of exhibit D3, it was only a notice of non-renewal of the contract which, in my view, does not amount to termination of the employment. Furthermore, the record proves that the Applicant was still paid his salary during the time he was on Sabbatical leave, as evidenced by exhibit D2. As stated above, the employment contract entered by the parties agreed to end on 31/10/2022, whereas CMA FI indicates that the matter was referred to the CMA on 25/04/2022. Thus, the matter was referred to the CMA prematurely before the end of the contract. The wordings of the provisions governing institution of unfair termination disputes are clear that the dispute must be filed 30 days from the date of termination or from the date the Employer made the final decision to terminate the employee. This is pursuant to the provision of Rule 10(1) o f the Labour Institutions (Mediation and Arbitration) Rules, GN. No. 64 o f2007. In the case of Teddy Njovu v. Nashera Hotel, Revision No. 34 of 2020, High Court of Tanzania Morogoro Sub Registry, the Court encountered a similar situation like the present one. The Court decided the question as to when a fixed term contract is terminated? is it the date of issuing a notice of non - renewal or the date the contract agreed to end? In the referred decision, the Court held as follows: I have considered the Respondent's counsel submission that the dispute arose when the Applicant received notification of none renewal, with due respect to Mr. Lweeka, the contract in question was a fixed term contract and its lawful termination may be effected by agreement or automatic. This is provided under Rule 3 (2) of Code of Good Practice ... Again, in the referred case, the Court went on to hold that: On the basis of the above discussion, I am of the view that proper date to start running against this kind of employment contract of the parties herein was from when employment automatically came to an end as they agreed in their fixed term contract. I subscribe to the above decision. Indeed, a fixed term contract is terminated upon expiry of the agreed period of the contract unless otherwise decided by the parties. In this application, there was no termination of employment. I therefore find the provision of Section 37 (supra) is misapplied in the circumstances of this case. I have further noted the Applicant's allegation that he was notified to handover, meaning that he was terminated. Under normal circumstances, an employee who is out of employment for sometimes is expected to handover his work to another employee. Therefore, such an act, in my view, does not amount to termination. The Applicant was clearly informed of still being the employee of the Respondent notwithstanding that he was on leave. On the allegation of failure to renew a fixed term contract, I find the same lacks legal basis. The contract was not terminated. Such could not be an issue for determination before the CMA while the contract still subsists. On the basis of the foregoing analysis, I dismiss the present application for lack of merit. The CMA was right to find the application was prematurely filed. Henceforth, the CMA's Award is hereby sustained. It is so ordered. JUDGE 13/ 10/2023 Judgement pronounced and dated 13th October, 2023 in the presence of the Applicant in person and learned Counsel Atranus Mkago Method and Amina Malela for the Respondent. JUDGE 13/ 10/2023