juma abdallah chakulanga vs group six international ltd 2022 tzhcld 807 18 august 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 177 OF 2022 (Arising from an Award issued on 29/4/2022 by Hon. Lucia Chrisantus Chacha, Arbitrator in Labour dispute No. CMA/DSM/KIN/391/21/139/21 at Kinondoni) JUMA ABDALLAH CHAKULANGA …………..……........................... APPLICANT VERSUS GROUP SIX INTERNATIONAL LIMITED .................................. RESPONDENT JUDGMENT Date of last Order: 09/08/2022 Date of Judgment: 18/08/2022 B. E. K. Mganga, J. This judgment is in respect of an application for revision filed by the applicant who was aggrieved with the award issued by the Commission for Mediation and Arbitration (CMA), in labour dispute No. CMA/DSM/KIN/391/21/139/21 at Kinondoni issued on 29th April 2022. At CMA, it was alleged by the applicant that he was the respondent’s employee from 2011 when he was employed as a plumber. It was also alleged by the applicant that he worked for the respondent from 2011 to 20th September 2021 when he was unfairly terminated by respondent. Due to the alleged unfair termination, applicant prayed to be paid TZS. 11, 215,384/= being Salary arrears for the month of July and August 1 2021, one month salary in lieu of Notice, Severance pay for 10 years, twelve (12) months’ salary as compensation and one month salary as annual leave pay. In addition to the foregoing, applicant prayed to be issued with a certificate of service. Having heard evidence of both sides, the Arbitrator held that employment relation between the parties ended in 2016 when applicant absconded from his employment. Again, dissatisfied with the award, applicant filed the Notice of Application supported by an affidavit seeking the court to revise the said award. In opposing the application, respondent filed both the notice of Opposition and the counter affidavit affirmed by Omary Mweta, her Principal Officer, to oppose the application. When the application was called on for hearing, Mr. Hamza Rajabu, Personal representative appeared and argued for and on behalf of the applicant while Mr. Said Ismail Hanya, Advocate appeared and argued for and on behalf of the respondent. At the hearing of the application, Mr. Rajabu, the personal representative of the applicant, upon reflection, submitted that the aforementioned five grounds raised three (3) issues namely: - 1. Whether it was proper for the arbitrator to hold that applicant resigned in 2016. 2 2. Whether it was proper for the arbitrator to shift burden to the applicant to bring evidence relating to termination of his employment and, 3. Whether it was proper for the arbitrator to hold that there was no employment relationship between the parties. In his submissions, Mr. Rajabu submitted on those issues generally that in 2011 on the date and month that applicant does not recall, was employed verbally by the respondent at monthly salary of TZS 600,000/=. That, on 20th September 2021, applicant was terminated verbally without reason and or procedure. Mr. Rajabu submitted further that, during hearing at CMA, applicant tendered NSSF Card and his contribution report and the same were admitted as exhibit P1 collectively. It was submitted by Mr. Rajabu, that Omary Mweta (DW1) admitted that exhibit P1 shows relationship between the parties. It was further submitted by Mr. Rajabu that in the award, the arbitrator held that applicant resigned in 2016 while there was no evidence to that effect. Mr. Rajabu submitted further that, respondent was duty bound to keep record of employment of the applicant in terms of section 15 and section 37(1) and (2) both of the Employment and Labour Relations Act [Cap 366. R.E. 2019. To cement on his submissions that an employer has a duty to keep records of employees and that an employee is not duty bond to tender those documents when there is a dispute, Mr. rajabu cited the case of Kundan Singh Construction Co. 3 Ltd v. Sohan Lal Singh, Revision application No. 31 of 2013, HC (unreported). It was further submitted by Mr. Rajabu on behalf of the applicant that, there was no proof that employment relationship between the parties ended in 2016. He submitted further that, there is no exhibit that was tendered by the respondent to show that applicant was casual employee and that he was paid on daily or weekly basis. He therefore prayed that the application be allowed, and applicant be grant reliefs he sought in the CMA F1 for unfair termination of the applicant. In resisting the application Mr. Hanya, counsel for the respondent submitted that there was no employment relationship between the parties and that applicant was duty bound to prove that he had employment relationship with the respondent. Counsel relied on the provisions of sections 110 and 112 of the Evidence Act [Cap. 6 R.E. 2019] and submitted that he who alleges must prove. To cement on his submissions, counsel for the respondent cited the case of Alphonce Morris Kagoma v. Joyce Samwel Msigwa , Revision No. 30 of 2021, HC(Unreported) and Durban Night Club v. Abbas Simba and another, Revision No. 475 of 2020, HC (unreported). Counsel for the respondent went on that there is no proof that applicant was employed by the respondent from 2011 to 2021. Counsel was of the view that, if 4 at all applicant was an employee of the respondent, then, he was supposed to file the dispute within time shown in exhibit P1 that he was an employee of the respondent, short of that, the dispute could have been time barred. In rejoinder, Mr. Rajabu only reiterated his submission in chief and prayed that the application be allowed. I have examined the CMA record and considered submissions of the parties in this application and find that at CMA, five issues namely (i) whether there was employment relationship between the parties, (ii) if the answer is in affirmative, then, whether there was termination of employment, (iii) whether there were reasons for termination, (iv) whether procedures for the termination were adhered to, and (v) to what relief(s) are the parties entitled to. It was the arbitrator’s findings that employment relationship between the parties ended in 2016 when applicant absconded and that, there was no termination of employment of the applicant by the respondent. The conclusion by the arbitrator is supported by evidence of Omari Mweta (DW1) who testified that the only record of the applicant available in the office of the respondent ended in 2016 when he was last seen because at that time he was working as casual labour and left but 5 did not return at work. That evidence was not shaken during cross examination. In his evidence, DW1 is recorded stating: - “Qn- Unamfahamu Mlalamikaji? Ans- Simfahamu, sijawahi kumuona, sina rekodi zake zozote za ajira tangu nimeanza kazi. Ila aliwahi kufanya kazi kwa mlalamikiwa nadhani mwisho ilikuwa ni 2016 katikati na aliondoka mwenyewe; hajawahi kurudi toka mwaka 2016 kwa mujibu wa taarifa za ajira ambazo zilibakia kwenye kompyuta. Qn- Mliwahi muwekea NSSF. Ans- Ndiyo kipindi hicho alichokuwepo na alifanyakazi kibarua”. Reliance was made by the personal representative of the applicant to the NSSF card and NSSF contributions (exh. P1 collectively) to show that applicant was an employee of the respondent. It is my considered opinion that there was erroneous overreliance on exhibit P1 that did not prove existence of employment between the parties at the time of occurrence of the dispute in September 2021. I am of that view because, in his evidence in chief, Juma Abdallah Chakulanga (PW1), the applicant, testified that his employment with the respondent commenced in 2011 and that he was terminated on 20 th September 2021 and tendered NSSF card and NSSF statements showing contributions as exhibit P1 collectively. But, while under cross examination, PW1 admitted that even a person who is not employed can still make contribution to NSSF. It is my view, that applicant’s demeanour while under cross examination as was observed by the 6 arbitrator leaves much to be desired. In his evidence under cross examination, PW1, applicant was recorded stating: - “…Swl: Ulianza kazi 2011 imekuwaje michango ya NSSF iliishia 2016 na umepata kitambulisho 2014. Jb: Kimya. Swl: Ulianza kazi 2011 na ilikuwaje 2014 haijawahi lipwa michango ya wakati mwingine ipo wapi. Jb: Kimya. Swl: undai mishahara kwa mlalamikiwa. Jb: hapana. Swl. Mkataba upo wapi. Jb: sina. Swl: kwani pesa ulokuwa walipiwa NSSF yapishana sababu ni kwa kibarua au. Jb: kimya. Swl: unajua NSSF waeza(sic) kujichangia mwenyewe hata kama si mfanyakazi. Jb: ndiyo. …”. As pointed hereinabove, the demeanour of the applicant leaves much to be desired. His silence or option not to give explanation as to why the NSSF contributions does not cover the period of 2021 he alleged he was still working with the respondent and his silence to his admission that even a person not employed can pay NSSF contribution, casts doubt as to whether, applicant was an employee of the respondent. It was evidence of applicant (PW1), under cross examination that he has no salary claim against the respondent but in 7 the CMA F1, he indicated that he was claiming salary arrears for July and August 2021. This, in my view, tells all that the whole claim including the allegation that he was unfairly terminated by the respondent is unfounded. I am of that view because the said NSSF card No. 57241988 and the NSSF contribution statement (eXh. P1) shows that the said NSSF card was issued to Juma Abdallah Chakulanga, the applicant on 12th February 2014. “Member’s statement as of June 2016” that shows contributions that was made to NSSF relied upon by the applicant to prove that he was an employee of the respondent, that is part of exh P1, shows that applicant joined the respondent on 10 th September 2012 and that his date of birth is 13th March 1985. At the time of testifying on 1st April 2022, applicant indicated that he was 32 years but if correctly he was born in 1985, he was supposed to be 37 years. I have examined the said NSSF contribution statement and find that it shows that contributions were paid from August 2012 to January 2014. There are 00 from February 2014 to January 2015. In February 2015 there is a figure of 229,200.00 but from March 2015 to April 2016 the figure appearing is 78,000.00, but there is no indication showing that the said figures were contributions as it is shown for the period running from August 2012 to January 2014. More so, the said statement ends in 2016 and there are no entries from 2016 to the date applicant 8 alleges that he was terminated namely in September 2021. It is my view that, had it been that applicant was an employee of the respondent for the period of July to September 2021, it could have been shown in the said NSSF statement. For the foregoing, I am of the view that applicant ceased to be an employee of the respondent in 2016, which is why, the said NSSF statement (part of exh. P1) doesn’t show any contributions or default for contribution. I have examined the amount allegedly applicant defaulted to make contribution to NSF and find that that amount does not include the period from 2016 to 2021. I therefore conclude as the arbitrator did, that there was no employment relationship between the parties. My above conclusion is fortified by the provisions of Section 61 of Labour Institution Act, [Cap. 300 RE 2019] that provides several factors to be considered in determining who is an employee. For sake of clarity, the said section provides that: - “61. For the purpose of labour law, a person who works for, or renders services to any other person is presumed, until the contrary is proved to be an employee, regardless of the form of contract, if any one or more of the following factors is present: - (a) the manner in which the person works is subject to the control or direction of another person; (b) the person's hours of work are subject to the control or direction of another person; 9 (c) in the case of person who works for an organization, the person is a part of that organization; (d) the person has worked for that other person for an average of at least 45 hours per month over the last three months; (e) the person is economically dependent on the other person for whom that person works and or renders services; or (g)the person is provided with tools of trade or work equipment by the other person; or (f) the person only works for or renders service to one person”. There is no evidence proving that the aforementioned ingredients existed in the application at hand. In the light of the above cited provisions, I can safely conclude that there was no employment relationship between applicant and the respondent hence there was no termination of employment. It was submitted by Mr. Rajabu, for the applicant that respondent was duty bound to keep records of employment of the applicant in terms of section 15 and section 37(1) and (2) both of the Employment and Labour Relations Act [Cap 366. R.E. 2019 and cited Singh’s case (supra) to implore the court to hold that respondent was duty bound to tender employment contract of the applicant. With due respect to Mr. Rajabu, in my view, respondent was not bound to keep record of the applicant who was not her employee and that, for the period of 2016 applicant was a casual labour. It was submitted on behalf of the applicant that no evidence was adduced to prove that applicant was a 10 casual labour. With due respect, the evidence of DW1 proved that applicant was a casual labour, and his evidence was not shaken during cross examination. I find no reason to fault the findings of the arbitrator in the application at hand. It was submitted that respondent the burden of proof was on the respondent. Yes, in some circumstances, and in my view, the employer had no burden to prove every allegation that is raised by an employee. It is my view, that it was not an intention of the legislature that whatever allegation that will be raised by an employee, the burden of proof will be on the employer. In my view, that will be unnecessarily burdening the employer and an invitation for employees to cook any allegation against an employer knowingly that the latter will have the burden of proof. That said, I join hand with my learned brother Rwizile, J in Msigwa’s case (supra) and Durban’s case (supra) that not always the burden of proof is on the employer. An employee, in some instances, has a burden of proof. It is my view, therefore that applicant was duty bound to prove that he was an employee of the respondent and that he was terminated. Had the applicant so proved, then, the burden of proof could have shifted to the respondent, the employer to prove fairness of termination of employment. In my view, section 60 of Cap. 300 R.E. 2019 (supra) requires an employee to prove existences of 11 employment between the alleged employee and the alleged employers. It is only after that proof, the burden shifts to the employer to prove fairness of termination both substantively and procedurally. In the application at hand, applicant failed to prove that there was employment relationship between himself and the respondent at the time of the alleged termination hence respondent had no duty to prove fairness of termination. That said and done, I hereby uphold the CMA award and dismiss this application for want of merit. Dated at Dar es Salaam this 18th August 2022. B. E. K. Mganga JUDGE Judgment delivered on this 18th August 2022 in the presence of Juma Abdallah Chakulanga, the applicant and Said Hanya, Advocate for the respondent. B. E. K. Mganga JUDGE NBN 12