jones rugakingira vs hubert kairuki memorial university 2022 tzhcld 692 27 june 2022

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM LABOUR REVISION NO. 247 OF 2021 (From the award of Commission for Mediation & Arbitration of DSM at Ilala Dated 21st May 2021 in Labour Dispute No. CMA/DSM/KIN/748/20/366)

BETWEEN

JONES RUGAKINGIRA APPLICANT

VERSUS HUBERT KAIRUKI MEMORIAL UNIVERSITY. RESPONDENT

JUDGEMENT 20th June 2022 & 27th June 2022 K. T, R. MTEULE, !■ This Revision application arisesTr^pn^the award of the Commission for Mediation and Arbitration'Which was delivered by Hon. Mbena, S. Arbitrator, dated of May 2021 in Labour Dispute No. CMA/DSM/IWRJ539717/655 at Ilala. The Application is instituted by the empl(^^^^ Applicant) against the employer (the Respondent). Th^AppHeant is praying for the following orders of the Court:- 1. That, this Honorable Court be pleased to call for, revise the proceedings and set aside the award of the Commission for Mediation and Arbitration at Dar es salaam Zone in Labour Dispute No. CMA/DSM/KIN/748/20/366. i 2. Any other relief(s) this Honorable Court deems fit and just to grant thereof. The background facts of this application is traced from CMA record, affidavit and counter affidavit filed by the parties. The applicant was employed by the respondent as Human Resources and Admjr|stragon Manager in different dates under 3 years fixed tef^r^ontract His contract was renewed several times and the last/contrad started on 1st September 2017 and ended on 30th AugusR^)20. On 25th August 2020 the respondent decided to noth on her intention of non-renewal of their contract. Dissatisfied with the decision, the applicant filed the Labour Dispute'No. CMA/DSM/KIN/748/20/366 at the CMA where the ^^^^?as decided against the Applicant. The arbitrator

found that^here was no employees expectation for renewal of the contraband therefore no termination, but the contract ended byztime wife/no automatic renewal clause in the said contract. This decisiop'friggered this application for revision. Along with the Chamber summons, the applicant filed an affidavit sworn by himself, in which after expounding the chronological events leading to this application, alleged to have been unfairly terminated after being issued with a notice of intention not to renew just 5 days 2 before the contract came to an end. The applicant is of the view that there was a reasonable expectation of renewal. The application was challenged through a counter affidavit sworn by Mr. Sima Kairuki. The deponent in the counter affidavit vehemently and strongly disputed applicants allegation regarding rea'sonajDle expectation of renewal. The application was disposed of by a way of wrfttiaSubmissions. The Applicant was represented by Ms. Shaely Richard Onesi Advocate, from Ntanga Attorneys whereastfag impendent was represented by Mr. Mohammed TlbanyenderaiAdvocate, from a firm styled as Star Chambers Advocates. I appreciate their rival submissions which will be considered in draftingjhis Judgement. Having gone^hraugh the parties' submissions and their sworn statements/tpgether with the record of the CMA, I am inclined to address .two issues. The first issue is

whether the applicant has adduced sufficient grounds for this Court to revise the CMA award issued in Labour Dispute No. CMA/DSM/KIN/748/20/366 and secondly, to what reliefs are parties are entitled? 3 In addressing the issue as to whether the applicant has adduced sufficient grounds for this Court to revise the CMA award, I will start to expound on the nature and status of the respondent's notice of intention not to renew the contract. Does it amount to termination? Was there an expectation of renewal on the part of the applicant which should have rendered the said notice si Beginning with the status of the notice, the^Applicant's counsel averred that the applicant was unlawfully^^^pated according to clause 3 paragraph 2 of the employmer^cbntract after notice of intention not to renew being issued 5|ddys before the date when the contract was supposed ^o expire. On the other hand, the Respondent's CounseLa^^lhat the applicant failed to comply with clause 3 paragraph 2^of the employment contract which directs an employee tcMpotjfy the employer of his intention to renew the contract iriyhree months before the expiry of the contract. The Respondent is of the view that the applicant was fairly terminated as his contract come to an end. In addressing these questions, the relevant provisions of law are; Rule 4 (2) of GN. No. 42 of 2007 and Section 36 (a) (iii) of 4 the Employment and

Labour Relation Act, Cap 366 R.E 2002 which provide:- "Rule 4 (2) - Where the contract is a fixed term contract, the contract shaii terminate automatically when the agreed period expires, unless the contract provided otherwise." I have gone through the record especially clause 3 paragraph ®of the employment contract (Exhibit D-l). It requires the employee to issue __ ..__ c . , . . . ' notice of intention to renew the contract in^^ee^months before the end of the contract. I will quote the worcjs^paragraph 3 of the said contract hereunder: 'The employee will remain in Service of the Hubert Kairuki Memorial Unive^^^^a period of three years commencing on 1 Septembef2ui7, and terminating on 30 August, 2020. Thre^monfhs before the expiry of this contact the employee must notify the employer in writing of his intention to renew the contract for another period. Upon receipt of the request the employer shall have an option to accept or reject the request taking into consideration the prevailing financial position and the employee's performance assessment during the running contractual period." 5 From the evidence in the CMA, it appears that the Applicant did not observe this contractual requirement of indicating the intention to renew the contract 3 months before the expiration. The evidence available in CMA record indicates that nothing from the Applicant was done, till 25th

August 2020 when the notice of intention not to renew was issued. In such circumstance, I am of the viev^hat ape averment regarding short notice by the Respondent cannprsupersede the terms agreed by the parties in their cotf^t^In the case of Hotel Sultan Palace Zanzibar vs. DajiieldLaizer & Another, Civil. Appl. No. 104 of 2004, wher^it vyag.held that:- "It is elementary that tn^ejgployer and employee have to be guided by the agr^^^rm governing employment Otherwise, it would be a^chabtic state of affairs if employees or employers were-leffftbffmely do as they like regarding the employment in issuer4' Basingjon the above cited authority since parties agreed to terminate their employment contract by agreement as per Exhibit D-l (Employment contract), then it is unwise for this Court to interfere parties' agreement. Therefore, the respondent's notice of intention of not renewing the contract issued on 25th August 2020 and the 6 purpose of the same is just to inform applicant that she had no intention of initiating a new contract with the applicant. Basing on Rule 4 (2) of the Employment and Labour Relations (Code of Good Practice) GN. No. 42 of 2007 the act of respondent to notify the Applicant cannot amount to termination since termination is automatic for a contract with a specified period of tinie The contract agreed by the parties speaks byWtself that it was to come to an end

on 30th August 2020. Ope^annot claim that the notice issued amounted to terminatiop^r^arcHess of the date it was issued. Regarding the expectatiopjpf renewal, the applicable provisions are Section 36 (a) (iii)^^e ELRA No. 6/2004 and Rule 4 (4) of GN. No. 42 of^(C^ Section 36 provides:- U, ^(iii)& failure to renew a fixed term contract on the same or imiiar terms, if there was reasonable expectation of renewal". 7 As well, Rule 4 (4) of GN. No. 42 of 2007 is quoted hereunder:- "Rule 4 - An employer and employee shall agree to terminate the contract in accordance with their agreement (4) Subject to sub-rule (3), the failure to renew a fixed- term contract in circumstance /I whereyfthe employee reasonably expects a renewal of the contract may be considered to be an unfair terminatio^%J It is on record that the respondent issuecrnotice of intention not to renew the contract on 25th Aug^^O^^nd not notice of termination as the contract come to an^end orf30th August 2020. Section 41 of the Employment and^baoour Relation Act, Cap 366 R.E 2019 as contested respondent's Counsel is inapplicable in this matter. It couldlhave been relevant if the employer decided to terminate Jan operative or existing contract and not an expired contract; According to Rule 4 (2) the contract under fixed term terminates automatically when the agreed period expires. In this matter, clause 3 of the employment

contract places a duty to the employee to demonstrate the renewal expectation. The Applicant's 8 failure to demonstrate the renewal expectation is an indication that there was no such expectation. In this application at hand the applicant failed to prove a reasonable expectation of renewal. In such circumstance I have to say that there was no any reasonable expectation of renewal subject tc^jrevious renewal as was held in the case of National Oil (T^lCl. v. Oaffery Dotto Mseseni & 3 others. Revision No. 558 o|^16 (unreported). It was stated that:- "I must say the question of prev^us&renewal of employment contract is not an absoiu^^ac^rror an employee to create a reasonable expectation, reS^nabie expectation is only created where the co/^^^^of employment explicit elaborate the intention of^^employer to renew a fixed term contract when it co^^oan end." From thejabove authority the reasonable expectation of renewal of an employment contract, must be proved by an employee to show employer's conduct through statements, directions or any other act which makes it clear that there is expectation to continue with the contract. The Applicant can not claim any expectation which was not indicated previously. 9 From the foregoing the answers to the two questions are thus, there has been no termination of employment contract and that there was no proved renewal expectation on the part of the

applicant. The answers to the two questions renders the first issue framed in this application to be answered in the negative that the Applicant jhas not demonstrated sufficient reasons to justify. settin^aside^ the CMA award. Having found that the first issue is answerea negatively, I find nothing to award to the applicant. Thelonly relief available is to dismiss the application. On that basis this Cgrf^^pds that the application filed by the applicant has no mei^The said application is dismissed. The CMA award is hete^^pfield. Each party to take care of its own cost. It is so ordered/! Dated^Dar es Salaam this 27th day of June, 2022.

TARINA REVOCATI MTEULE

JUDGE 27/06/2022 io