john xaver mingi vs eric mlamboliquidator of tumaini comprehensive infirmary ltd 2021 tzhcld 8 26 february 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO.779 OF 2019 BETWEEN JOHN XAVER MINGI APPLICANT VERSUS ERIC MLAMBO (Liquidator of Tumaini Comprehensive infirmary LtSi^hi........ .RESPONDENT JUDGMEN Date of Last Order: 11/02/2021 W vkj Date ofJudgment: 26/02/2021 t/* Z. G, Muruke. ""a£iSi^ It is on record that^n<^^ay, 2012 the applicant was employed by the respondent onza^^^ylhrs fixed term contract. He worked with the responden^^il^z^^^, 2018, when terminated on ground of financial constraints^Beiqg dissatisfied, he referred the matter to the CMA where it wa'Sx decided^on/r^^ondent's favour. The applicant felt resentful, he filed presentsapplication raising four (4) grounds stated under clause 10 of the affidavit m^upport of the application. The application was not challenged by the respondent as he neither filed counter affidavit, nor entered appearance, hence this matter was heard exparte by way of written submission. The applicant was represented by Advocate Mwambene Adam. i Submitting on the grounds of revision, the applicant's counsel prayed for an affidavit in support of the application to form part of his submission. On the 1st ground he submitted that, arbitrator misdirected No.6/2015, LCCD Parti-. herself as she failed to hold that, respondent had no valid reason for the applicant's retrenchment. The reason for retrenchment was said to be financial difficulties which affected the hospital, thusMhe^cotopanya, was % forced to declare the accounting department redundant^fhe respondent had failed to prove the said reason as there were no disclosure of the relevant information that will establish if the<^mpany^ias suffered any loss or financial constraints to establish retrerairnent referring Rule 23 (2) of the Employment and Labour RelatiprfsWGode of Good Practice) GN.42/2007,(herein GN.42/20^7), Sedio^38(l) (b) (d)(iii) of the Employment and Labour Relatioris^rt, Gap 366 RE 2019.(herein the Act) and the case of NumetMv North Mara Gold Mines Ltd in Rev. On the 2nd ground^ifWs argued that, the arbitrator erred in law and fact of failurejto hold^that applicant's termination was procedurally unfair. Despite d^fart^thav there was a Notice to retrench dated 7th May,2018, followed byLipvitation to consultation meeting dated 9th May,2018, scheduled^’ 11th May,2018, there was no meeting held for consultation purpose. Even at the CMA, respondent had no any minutes of the meeting to prove that the same was conducted, citing Section 38(1) (C) of the Act and the case of Knight Support (T) Limited v Abraham Ngeuke 8i 11 Others, Rev. No.33/2015 where it was held that 2 'In this case there was no evidence of adequate consultation adduced by the applicant The applicant submitted that to have conducted a meeting on 11th May, 2018, however did not tender any minutes of such meeting. In the absence of the minutes to my view it leads to the conclusion that there was no meeting held to discuss the retrenchment between the applicant and respondents'. The arbitrator failed to take into account that, sinc^ther^was no meeting conducted by the respondent, then the^retrenchment agreement dated 25th May, 2018, was illegal ab Initio, insistea applicant's counsel. Mr. Mwambene further submitted that, the made no effort to minimize the intended retrenchment asTequiredJnder Section 38(1) (c) of the Act read together with Rule|S(4)%j^^42/2007. Even there was no records as to which criteria was used to|selection criteria as the applicant was the only retrenched employee. Applicant's cotinsekmaintained that the arbitrator misdirected herself onTailuge tb^findfthat, the applicant was employed in a fixed term contract of fi^e^yeai^sfarting on 12th May 2012 to May 2017, however he^was teriwia^^n May 2018 means the contract was automatically renewed fontJ?other five years in terms of Rule 4(3) of GN.42/2007. The applicant when terminated had worked for 6 years up to 22nd May,2018 as respondent breached the contract, the applicant's counsel prayed for the application be granted. 3 After carefully considerations of the applicant's submissions and the records issue for determination; is whether the applicant's termination was substantively and procedurally fair. It is a principle of law that, for termination to be valid, it must have valid reason for termination and must adhere to the procedure for & ‘O termination, as provided under Section 37 (2) of<thexAct. 'It was the applicant's allegation that the respondent had no valid reason for retrenchment and had failed to establish the saidjlason. That even at the hearing before CMA, the respondent had failed^ter^erfeny documentary evidence before CMA to prove the validif^^Njeason of retrenchment. Also as regard to the proceduregthe a^Kra^alleged that the respondent failed to adhere to the procedure of retrenchment as required by the law. There was no any consultation meetinghpence the retrenchment agreement is not valid. It was the CMAfe. finding that termination was substantively and procedurally fair and^therparties agreed for their termination. I h^e^goriev through the records and came across exhibit D3 sig^ tfe^^ment on 25th May, 2018. From the wordings of that agreement,^the parties agreed to end their employment relationship through retrenchment from 12th May, 2018. It is on record that when the applicant testified before CMA agreed to have signed the agreement fourteen (14) days after he has read it. I find worth to reproduce part of applicant evidence while being cross examined as it appears at page 14-15 of the typed proceedings:- 4 Qn: Consultation haikufanyika Ans: Haikufanyika Qn: Ulipewa retrenchment agreement ukaondoka nayo? Ans: Agreemnt sikuondoka nayo niliiacha pale, baada ya kuisoma niliielewa yaliyokuwamo kwenye agreement. Qn: Ilikuwa wewe siku ngapi hadi kusaini retrenchment (D3) Ans: Siku 14 i.e 25/5/2018 % Qn: Agreement (D3) uliisaini wapi Mr Ans: Tumaini Hospital Qn: Kuna mtu alikulazi misha kusaini Ans: Ni Managing Director Chalonde Yongolo Qn: Alitumia Kitu gani,kitisho kukulazimisha^k Ans: Ni kauli tu usiposaini hatutakulip^^^^^^^ Qn: Kwani wewe ulidai Kulipw^ Ans: Sikudai nilipwe ila niliona rnchukue kilichopo kwanza na mapungufu nitaendele^kudai. Qn: Kwani hukuelewa l^vra^greement haikuruhusu kudai mengipe^adaahk^ Ans: Hiyo ni unfair treatment sikuwa na mahali pa kwenda. xL Vk Fr^nKthat^part of applicant's testimony it is apparent that applicant was^ell acgi|hrited with the contents of the agreement including the inhibitiofix^d* file any claim after signing the agreement. The applicant was issued with the contract, he read the contract, he analysed the same for 14 days and decided to sign the agreement on 25th May, 2018. The applicant had failed to establish any kind of coercion if any used by the respondent to force him to sign the contract. The allegation that the respondent had told him that if he will not sign the agreement, then they are not going to pay him any of his entitlements, is not backed up with any evidence. This court is of the view that, the fact that the applicant had noted that the agreement was unfair, he ought not to have signed it, and refer the matter to CMA to claim over his rights. But, he (tecid^to sign the contract with its deficiency, meaning, he agreed wj.tlCthe terms of the agreement. It is the position of the contract law that parties^arePound by the terms of their agreement. This was the posihof^ofThe Court of appeal in the case of Miriam Maro v Bank cofxTanzama, Civil Appeal No,22/2017 (unreported) where it was statedLthate-^ It is the law that parties are bound okthe terms of the agreement they freely enter into. We find solace on thi^tance in the position we took in Univeier Tanzania^ Ltdf^v^Benedict Mkasa t/a Benia Enterprises, Civil App%I^No. 41 of 2009 (unreported) in which we relied on a persuasive^decision of the Supreme Court of Nigeria in Osun State (jovernment if. Dalami Nigeria Limited, Sc. 277/2002 to articulate. "Strictjirspeaking, under our laws, once parties have freely agreed on their contractuai clauses, it would not be open for the courts to change fhose^clauses which parties have agreed between themselves. It was 'xx -/X up<tpythe parties concerned to renegotiate and to freely rectify clauses which parties find to be onerous. It is not the role of the courts to re­ draft clauses in agreements but to enforce those clauses where parties are in dispute." 6 This court in the case of Hydrox Industrial Services Ltd & 1 Another v CRDB 1996 LTD & 2 Others, Civil Case No. 194/1999 Dar es Salaam District registry (unreported) held that; 'Legally If the parties have negotiated and agreed on a genuine pre estimate of the loss one would suffer if the other did not honour its part of bargain, the defaulting party cannot be heard t&complain on anything.' Despite being experte hearing applicant ha%jfaHed to prove that the retrenchment agreement is not valid, because fie^boiliBd by the terms of the agreement. Basing on the above disGl^^R^this court finds that the application is devoid of merit andJs.herlilMismjssed. JUDGE 26/02/2021 Judgment delivered' in the presence of Violet Mipawa holding brief of Adam Mv^ambene^or the Applicant, and applicant is also present JUDGE 26/02/2021 7