APPLICATION NO 17363 OF 2024 JUMANNE SALIM YUSUPH VRS MERAAS PERFUME COMPANY LIMITED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM APPLICATION NO. 17363 OF 2024 CASE REFERENCE NO. 202407191000017363 BETWEEN JUMANNE SALIM YUSUPH...... ...... ........................... ........ APPLICANT VERSUS MERAAS PERFUME COMPANY LIMITED........................... RESPONDENT JUDGEMENT Date of last Order: 27/ 08/2024 Date of Judgement: 17/ 09/2024 MLYAMBINA, J. Aggrieved with the Award of the Commission for Mediation and Arbitration (herein CMA) at Dar es Salaam Zone, which was decided in favour of the Respondent herein in Labour Dispute No. CMA/DSM/KIN/589/2023/295/2023, the Applicant filed this Revision application calling for determination of the following issues: i. Whether MERAAS PERFUME COMPANY LIMITED located in Kenya and MERAAS PERFUME COMPANY LIMITED located in Tanzania are two different companies. ii. Whether there was communication between the Applicant and the Respondent. Hi. Whether there was a misconduct committed by the Applicant. iv. Whether the Honourable Commission erred in law and facts for ignoring the arguments and evidence adduced by the Applicant herein during hearing o f arbitration about the claims o f unlawful breach o f the employment Contract. v. Whether the reasons given by the honourable Arbitrator are sufficient that there was no breach o f contract. The application was argued by way of written submission. Before the Court, the Applicant enjoyed the services of Mr. Anthony Shosha, Personal Representative and Counsel Omary Abubakar Ahmed, represented the Respondent. Commencing with the first issue, Mr. Shosha submitted that it is not correct that MERAAS PERFUME COMPANY LIMITED located in Tanzania and MERAAS PERFUME COMPANY LIMITED located in Kenya are two different companies. Mr. Shosha faulted the Arbitrator's findings that the company located in Tanzania is registered under the name of ALBAIT ALDIMASHQI PERFUME CO. LIMITED. He conceded that the company was previously registered in the mentioned name but later on changed to MERAAS PERFUME COMPANY LIMITED as evidenced by exhibit Dl. On the other side, Counsel Ahmed was of the strong position that this issue lacks merit. He stated that exhibits P3 and exhibit D1 differentiate the two companies which have two different legal entity and incorporated in two different Countries. The record shows that it is undisputed fact the Applicant was employed by the Respondent since 2022. It is the Applicant's strong position that the two companies, are one but operating in two different Countries. He was firstly employed in Tanzania and then transferred to Kenya. I had a glance on the certificates of incorporation tendered by both parties, exhibit P3 and Dl. Exhibit P3 shows it is a certificate of incorporation certifying the incorporation of the Respondent herein. It does not show if the Respondent was registered in Tanzania and Kenya. The record reveals further that the company registered in Tanzania was firstly registered as ALBAIT ALDIMASHQI PERFUME CO. LIMITED but later on changed to the name of the Respondent herein as reflected in exhibit Dl. There is no any evidence on record to prove that the company was registered to operate in Tanzania and Kenya. Furthermore, the Applicant did not tender any evidence to prove that the company operating in Tanzania and the one operating in Kenya are one. In absence of such crucial evidence, this Court join hands with the Arbitrator's findings that the companies in question are different. As to the second issue, Mr. Shosha submitted that the evidence on record proves there was communication before the Applicant left Tanzania to Kenya. He added that; exhibit P3, shows how they were communicating even though the Arbitrator did not take into consideration such evidence. In response, Counsel Ahmed maintained that exhibit D3 proves there was communication between the Applicant and MERAAS PERFUME COMPANY LIMITED incorporated in Kenya. Based on the nature of the transfer from one Country to another, it is expected that the Applicant would have a letter of transfer. But in this case, the Applicant has no such letter or any other related document proving his transfer. However, he was of the strong view that, as per exhibit P2 and D2 (WhatsApp conversation), he was transferred from Tanzania to Kenya. I have keenly looked at the alleged conversation which clearly shows that the Applicant was communicating with his new employer located in Kenya. The Applicant also negotiated his new salary to be paid. On such basis, if he was transferred as claimed, payment of salary would have been clear and stated in the transfer letter. In the messages, his new employer even warned him that; if he had high expectation of payments, he should remain in the company operating in Tanzania but he insisted on his own that the salary agreement would be settled when he arrived to Kenya. In the premises, I find no sufficient evidence to prove that the Applicant was transferred as alleged. Turning to the third issue, it was Mr. Shosha's submission that the Arbitrator did not bother herself to consider or evaluate the evidence adduced by the Applicant, something led to unfair arbitration. He maintained that the Applicant was transferred to Kenya by the Respondent but upon arriving in Kenya, did not honour their agreement, hence, breach of contract. Mr. Shosha was of the view that the Arbitrator's failure to consider his evidence amounted to breach of justice. In support of the submission, he referred the Court to the case of Hussein Idd & Another v. Republic 1994 TLR 166 where it was held inter alia that: ...It was a serious misdirection on the part of the trial Judge to deal with the prosecution evidence on its own and arrive at the conclusion that it was true and credible without considering the defence evidence ... In response, Mr. Ahmed shortly submitted that the Applicant failed to prove his transfer to Kenya. In the light of the foregoing, I find this issue has been disposed while determining the second issue. The Applicant claimed for breach of contract and it is found that he was not transferred to work in Kenya. Thus, he absconded himself from employment, as rightly found by the Arbitrator. That means the evidence on record was properly considered. Coming to the fourth issue, whether there was a misconduct committed by Applicant It was denied for the Applicant to have committed misconduct. Instead, he was transferred from Tanzania to Kenya to work for a company owned by the same shareholders, that is why, there was no any legal action taken against the Applicant for any misconduct. It was added that there is no evidence in record to prove the alleged absenteeism of three months. On procedural fairness, it was submitted by Mr. Shosha that the honourable Arbitrator failed to consider there was no disciplinary hearing, investigation or right of appeal given to the Applicant contrary to Rule 13 o f the Employment and Labour Relations (Code o f Good Practice) GN. 42 o f2007 (herein GN. No. 42 o f2007). It was Mr. Shosha's strong submission that; even if the Applicant had absconded from work for several months as alleged by the Arbitrator, the Respondent was still required to follow the proper procedures to have the Applicants’ employment terminated fairly as provided under Rule 9 (1) o f the GN. No. 42 o f 2007. To booster his stance, Mr. Shosha cited the case of Ultimate Security (1) Limited v. Abubakari Abdallah Mkupasi, Revision No. 337 of 2019, High Court, Labour Division at Dar es Salaam (Reported Tanzlii) where it was held that: ...moreover, assuming that it is true the Respondent absconded from work for more than five days as alleged, the law required the Applicant to take action against him for absenteeism ... Mr. Shosha urged the Court to revise and set aside the CMA's decision and award the Applicant reliefs claimed in the CMA FI. In opposition, Counsel Ahmed submitted that the issue of termination was not raised at the CMA. Hence, misconceived by the Applicant before this Court. After analysis of the evidence on record, I join hands with Counsel Ahmed's submission that the last ground is misconceived. It was not an issue before the CMA, thus, it cannot be brought before this Court. In the end result, upon finding that there was no breach of contract in this case, I find no justifiable reason to depart from the CMA's decision. This application is hereby dismissed for lack of merits. It is so ordered. Y J. MLYAMBINA JUDGE 17/09/2024 Judgement pronounced and dated 17th September, 2024 at 15:20 hours in the presence of Antony Shosha, Personal Representative for the Applicant and Counsel Omary Abubakary for the Respondent. Right of Appeal explained.