juma hassan njama vs tusiime holdings t limited 2022 tzhcld 982 4 october 2022

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION APPLICATION NO. 73 OF 2022 (Arising from Labour Dispute No. CMA/DSM/ILA/20/350 before Hon. Amos, Arbitrator, Dar es Salaam Zone) JUMA HASSAN NJAMA................................................ APPLICANT

VERSUS TUSIIME HOLDINGS (T) LIMITED......................................... ..RESPONDENT

JUDGEMENT K. T. R. MTEULE, J. 14th September 2022 & 4th October 2022 This Revision application emanates from the decision of the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/DSM/ILA/20/350. JUMA HASSAN NJAMA, the Applicant herein is praying for an order that, this Court be pleased to call for the record of the CMA for revision on correctness, proprieties and legality of the CMA Arbitral award and the proceedings originated from dispute No. CMA/DSM/ILA/20/350 by Hon. Nyagaya, P. Arbitrator of the Commission. The applicant is praying for any other relief that deemed fit and just to be granted by this Court. Stated hereunder is a brief background of the dispute as gathered from i the Applicants affidavit, the Respondents counter affidavit, parties' submissions and the record of the CMA. The applicant was employed by the respondent under several yearly fixed term contracts from 2016 or 2015. The last contract commenced on 8th Day of May 2019 which was supposed to end on 7th Day of May 2020. Due to the alleged outbreak of pandemic disease (Covid 19) the applicant was notified to take unpaid leave from 24th Day of April 2020 till 29th Day of June 2020 when he was notified by the employer to resume on duty, so as to accomplish the remaining period of two months of their contract. On 29th Day of July 2020 the applicant issued a notice of intention not to

renew to the applicant's contract, hence on 5th Day of September 2020 the applicant was notified by the respondent regarding the end of his contract. Being resentful with employer's decision, the applicant filed the labour dispute in the CMA, claiming for breach of contract on the reason that his termination of employment was tainted with illegalities as the termination was both unfair in terms of reason and procedure. In the CMA the arbitrator found that the applicant's contract terminated automatically after having been expired with no expectation for renewal. The arbitrator awarded nothing to the applicant. Aggrieved by the CMA award, the applicant filed the present application 2 urging the court to determine four grounds or issues contained in the affidavit as to the correctness, propriety and legality of the arbitral award. The matter was argued by way of written submissions Mr. Hamza Rajabu, Personal Representative for the applicant while Mr. Herman Kilenzi, Learned Counsel was for the respondent. On the first ground Mr. Rajabu recalled the last contract of employment entered by the parties commenced on 8th Day of May 2019 and was supposed to end on 7th July 2020. He stated that since the applicant resumed work as per letter issued on 29th Day of June 2020 where two months were extended. Mr. Rajabu considers this extension of two months as a beginning of a new contract.

In his view, the contract was renewed by default Mr. Rajabu submitted that the arbitrator erred in law by not considering that at all times from 29th Day June 2020 to 26th August 2020 the contract of the applicant lapsed before the said unpaid leave which remained with 13 days and the applicant had the right of 28 days annual leave and in his view, that time falls within a new contract renewed by default for the applicant to work afresh after lapse of the previous contract. 3 Mr. Rajabu is of further view that since the contract of the applicant started from 8/05/2019, valid until 7/05/2020 with extension from 29/06/2020 to 29/08/2020, until 5/09/2020 when termination was affected, the applicant was on the staff duty roster even beyond the agreed time of 7/05/2020 to 29/08/2020. Further to the above, Mr. Rajabu considered the previous renewals as having created reasonable renewal expectation. According to him, since the applicant worked for a short time of four months under the new contract, this contravenes Section 14 (1) of ELRA, Cap 366 R.E 2019 and Rule 11 of G.N No. 47 of 2007 which provides that a fixed term contract shall be of a time not less than 12 months. He further submitted that the arbitrator misdirected herself in citing the provision of Rule 4 (2) of the Employment and Labour Relations (Code of Good Practices) G.N No. 42 of 2007 holding that the contract ended

after expiry. He added that since the applicants contract was extended from 29th Day of June 2020 when the applicant resumed to work after the unpaid leave, to 29th Day of August 2020 when the two months extension lapsed and the termination letter issued on 5th September 2020, it means that the applicant was still on duty 4 roster until 5th September 2020. On such basis he is of the view that applicant's contract was renewed by default and Rule 4(2) of the Employment and Labour Relations (Code of Good Practices) G.N No. 42 of 2007 comes into operation. Supporting his submission, he cited the case of Dar es Salaam Baptist Sec. School v. Enock Ogola, Revision No. 53 of 2009, High Court of Tanzania, Labour Division, at Dar es salaam, (unreported). Opposing the application, Mr. Herman Kilenzi submitted that it is undisputed facts that the employment contract between the applicant and the respondent was a fixed term contract which was supposed to end on 7th Day of May 2020 but due to COVID - 19 the parties agreed to take leave without pay with option that the remaining contractual period will be compensated after the end of the said leave without pay. He referred to Exhibit D-2 which is the letter recalling the applicant to resume back to work for the extended months in compensation to the remained period in the contract during unpaid leave. According to Mr. Kilenzi, the applicant

agreed to that arrangement and signed it and on 29th Day of July 2020 one month before expiration of the time which was compensated to the contract the respondent issued the notice of having no intention to renew the contract as per Exhibit D-3 and on 29th Day of August 2020 the respondent issued termination letter. 5 Mr. Herman submitted that nothing reveals that the respondent conduct amounts to contract renewal expectations or renewal by default, but the applicant created some nightmare that there was a renewal by default and he had reasonable expectation of renewal. It was further submitted by Mr. Kilenzi that reasonable expectation for renewal as envisioned under section 36 (a) (iii) of the Employment and Labour Relations Act, Cap 366 R.E 2019 read together with Rule 4 (4) of the Employment and Labour Relations (Code of Good Practices) G.N No. 42 of 2007 is not absolute. In his view, renewal expectation may come into operations in certain circumstances for instance if the employee continues to work with the employers' consent after the employment contract expires, which is not the case in this matter. He submitted that the moment school opened, the employer issued the extension of two months as agreed and notice of not to renew, and . nd proof that the complainant continued to work after 29th Day of August 2020. He cited the case National Oil (T) Limited v. Jaffery Dotto

Msensemi & 3 others, Revision No. 558 of 2016, High Court of Tanzania, Labour Division, at Dar es salaam, (unreported). Mr. Kilenzi stated that in the case at hand the contract between the parties was supposed to end on 7th Day of May 2020 and the contract was extended for two months after the leave without pay 6 as agreed up to 29th Day of August 2020 and in that magnitude no renewal by default and no reasonable expectation. He further cited the case of TUNAKOPESHA LTD vs, MOSES MWASIPOSYA, LABOUR REVISION NO. 17 OF 2011 and averred that in the application at hand the respondent chose to issue a notice of termination of one month that was a clear indication that the respondent had no intention to continue employing the applicant. In rejoinder the applicant reiterated his submission in chief, but he emphasized that from 26th Day of June 2020 the contract was renewed and from there to the date of termination on 05th September 2020 means that the applicant worked for more than 100 days beyond the time limit of the contract. Having considered parties submission this Court is called upon to determine as to whether the applicant adduce good ground for this Court to revise the CMA award. In addressing the above framed issue, the four grounds of revision stated in the applicant's affidavit will be considered all together in consolidation. However, in those four grounds I compress them

to form three sub issues, firstly as to whether there was termination of employment contract amongst the parties, Secondly whether there was 7 expectation of renewal of the fixed term contract and thirdly to what reliefs are parties entitled. Starting with the first issue, as to whether there was a termination, the applicant alluded that he was terminated on 5th Day of September 2020 basing on the letter informing him about the contract coming to an end which was issued on 5th September 2020. He takes this letter as a termination letter. He is of the view that his yearly contract commenced on 26th Day of June 2020 and therefore ending it on 5th Day of September amounts to termination. On the other hand, the respondent insisted that the applicant's employment come to an end after expiry of the fixed term contract and that the notice of intention not to renew was issued on 29th Day of June 2020 after accomplishment of the remained period of the applicant's employment contract which was extended for two months after the unpaid leave during the outbreak of pandemic disease (COVID -19) as agreed in the discussions held earlier. It is not disputed that there were discussions amongst the parties that taking unpaid leave was to be accompanied with compensation of the days which felt within period of unpaid leave. It is on evidence in the CMA that the letter that recalled the applicant

to resume work clearly informed him that he was coming to serve the two months of his lapsed 8 contract which were falling within the period of unpaid leave. It is apparent on evidence that the before the lapse of the two months, the respondent issued a notice of intention not to renew the contract. From this narration, I do not agree with Mr. Rajabu that the applicant's resume to work constituted another commencement of the yearly contract. It was clearly stated the applicant was resuming to office to serve the extended two months on his previous contract. In my view, there was no new contract as Mr. Rajabu tries to establish but a continuation of the previous contract for more two months. The applicant's issuance of notice on intention of non-renewal is construed by Mr. Rajabu as a termination. I disagree with this argument. Since the contract was a fixed term contract which was about to end after one month, then the notice of non-renewal intention necessary to be issued by the respondent to prepare the applicant's exit. It can not constitute to termination because a fixed term contract when expires, terminated automatically as per Rule 4 (2) of G.N No. 42 of 2007 which provides: - "Rule 4(2) - where the contract is a fixed term contract, the contract shall terminate automatically when the agreed period expires, unless the contract provided otherwise." 9 Let me emphasize that

in this matter, it is undisputed that the applicants employment contract was extended for two months as per Exhibit D-2 (notice of extension of employment contract). It is further not disputed that the respondent consulted the employees via a meeting held on 17th Day of 2020 as per Exhibit D-5 (minutes of the meeting), where the arrangement of taking unpaid leave with compensation to extend the contract was agreed. The applicant impliedly agreed for extension of time by continuing to render services to the respondent till 29th Day of August 2020 as per Exhibit D-3 (notice of intention not to renew) and his certificate of services was issued on 1st Day September 2020. The act of the respondent to notify the applicant about the nonrenewal of the contract cannot amount to termination rather it was just a matter of arrangement of ending their employment relationship in an amicable way. It has to be noted that, it is not a legal requirement under fixed term contract to be notified regarding termination, as was held in the case of TUNAKOPESHA LTD's case (supra) which was cited by the respondents Counsel. It is a courtesy to issue the notice of non-renewal intention, which the respondent duly did. Therefore, applicants allegation that he was terminated on 05th Day of September 2020 lacks legal stance on the reason. In such circumstance io one could not claim that applicant was

terminated on 5th September 2020 rather the respondent took trouble to remind the applicant that his contract ended. On second issue regarding expectation of renewal the applicable provision of law is Section 36 (a) (iii) of the ELRA No. 6/2004 and Rule 4(4) of G.N No. 42 of 2007. Section 36 (a) provides: - "Section 36 (a) Termination of employment includes:- (iii) a failure to renew a fixed term contract on the same or similar terms, if there was reasonable expectation of renewal". Rule 4 (4) of G.N No. 42 of 2007 provides: - "Rule 4-an employer and employee shall agree to terminate the contract in accordance to agreement. (4) Subject to sub-rule (3), the failure to renew a fixed-term contract in circumstance where the employee reasonably expects a renewal of the contract may be considered to be an unfair termination" It is on record that the respondent issued notice of intention not to ii renew the contract on 29th Day of July 2020 after the last contract being extended for a period of two months from 29th Day of June 2020 to 29th Day of August 2020. It is further not disputed that the applicant took unpaid leave during the pandemic disease Covid-19 with agreement to compensate the period of contract falling within the said unpaid leave. Basing on the nature of this application as the applicant's employment contract was extended purposely to compensate his period of the last

contract commenced on 8th Day of May 2019 to 7th Day of May 2020, and that the applicant agreed on such extension by continuing to serve the respondent, there could be no expectation of renewal especially when the respondent issued the notice of non- renewal. In the case of Hotel Sultan Palace Zanzibar vs. Daniel Laizer & Another, Civil. Appl. No. 104 of 2004, it was held: - "It is elementary that the employer and employee have to be guided by agreed terms governing employment. Otherwise, it would be a chaotic state of affairs if employees or employers were left to freely do as they like regarding the employment in issue." Thus, basing on above cited authority since the applicant was under 12 fixed term contract, and that they agreed to extend time of the said contract after completion of the unpaid leave, nothing was wrong for the respondent to extend time to the applicant so as to finish his remained period and this cannot be taken as commencement of a new contract as claimed by Mr. Rajabu. Since the period extended for the applicant was stated in Exhibit D-2 (notice of extension of employment contract) and notice of intention not to renew was issued on 29th July 2020 one month before expiration of extended time as per Exhibit D-3 then I am of the view that the applicant could not claim reasonable expectations of renewal, without any evidence or respondent's conduct justify

such reasonable expectation of renewal. From the above legal reasoning I am of the view that there was no reasonable expectation of renewal of the contract hence no automatic renewal of the contract as claimed by the applicant's representative. Parties are bound by their terms of contract. On such findings I have no hesitation to say that the applicant's claim regarding illegality of the award holds no water as there was no new contract but only an extension of the existed contract. Since the applicant's fixed term contract lapsed, and since the argument of reasonable expectation of renewal of the contract and the automatic renewal are held to be unfounded, then the main issue as to whether 13 there are sufficient grounds to revised and set aside the arbitrator's award is answered negatively. On reliefs, I find nothing to award to the applicant. The only remedy is to dismiss the application. It is for this reason thus I dismiss the application and uphold the Arbitrators award. I give no order as to cost of the suit. It is so ordered. Dated at Dar es salaam this 04th Day of October 2022.

KATARINA REVOCATI MTEULE

JUDGE V 04/10/2022 14