kafoi estates limited vs elias obadia kimaro 2023 tzhc 23334 14 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI DISTRICT REGISTRY

AT MOSHI LABOUR REVISION NO. 4 OF 2023 (Arising from the Award of the Commission for Mediation and Arbitration of Kilimanjaro at Moshi no. CMA/KLM/MOS/ARB/49/2020 dated 28th April, 2021) KAFOI ESTATES LIMITED ………………...………………. APPLICANT

VERSUS ELIAS OBADIA KIMARO ………………………………… RESPONDENT

JUDGMENT 9th September & 14th December, 2023 A.P.KILIMI, J.: This is the revision application instituted by one KAFOI ESTATE LTD challenging the award of the Commission for Mediation and Arbitration at Moshi CMA/KLM/MOS/ARB/49/2020 dated 28th April 2021 “hereinafter CMA”. The applicant has moved this court under section 91 (1) (a), 91 (2) (c), and 94 (1) (b) (i) of the Employment and Labour Relations Act, Cap. 366 R.E 2019 (“the act”) and Rule 24 (2) (a), (b), (c), (d), (e) and (f) and (3) (a), (b), (c), (d) and Rule 28 (1) (a) (c) (d) and (e) of the Labour Court Rules, GN No. 106 of 2007 (“The Rules”). The material facts giving rise to the present reference are not difficult to comprehend. Kafoi Estates Limited is a limited liability company dealing 1 in the agricultural industry within Sanya Juu at West Kilimanjaro. The applicant employed the respondent one ELIAS OBADIA KIMARO as an agricultural field officer dealing with among other things maintaining and improving the farms located at Sanya Juu. Due to financial constraints the company was unable to operate its business. As a result, the respondent was given three months leave without pay until the company could get back into good financial position. At the expiry of the three months unpaid leave the financial situation had not improved, the applicant alleges the respondent and the company agreed orally to extend the

duration of the unpaid leave to another ten months. According to the applicant the respondent later informed them that he did not wish to continue with his employment and requested for a confirmation letter from the applicant that he want to be retired so that he could follow up on his pension at the National Social Security Fund. To the applicant’s surprise after being issued with the letter as requested, the respondent filed a dispute at the Commission for Mediation and Arbitration at Moshi (CMA) alleging unlawful termination. The Commission in its award decided in favour of the respondent and ordered the applicant to pay the respondent his unpaid salaries for the period of 9 months amounting to Tshs. 3,150,000/=. The 2 applicant was aggrieved by the award of the Commission hence filed the present application before this court praying for this Court to revise and set aside an award by the Commission and grant any other relief deemed fit and just to grant. The hearing of this revision was agreed by parties to be conducted by way of written submissions. Accordingly, parties were ordered to file their submissions as scheduled by this court. In this exercise Ms. Catherine Edna Edwin learned advocate prepared and filed submission for the applicant while Mr. Ramases Reuben Personal representative prepared and filed submission for the respondent. Submissions were timely filed and

their submissions are appreciated. It was Ms. Catherine’s submission in challenging the award that there was no proof from the respondent for the CMA to award him monetary relief of Tshs. 3,150,000/=. She argued that the respondent did not produce any material evidence be it oral or documentary to justify the award. She also submitted that the Arbitrator erred by relying on documents which were not tendered as evidence during trial as basis of monetary relief to be granted to the respondent. 3 Furthering her submission Ms. Catherine stated that the respondent was the one with the burden of proof and not the applicant hence he had a duty to prove his claim. She further contended that in law the burden of proof never shifts especially when the one who is required to discharge the same has failed to do so as in this case. To support her submission, she relied on the case of Jasson Samson Rweikiza vs. Novatus Rwechungura Nkwama Civil Appeal No.305 of 2020. It was her further submission that as a matter of law it was incorrect for the Commission to rely on letters dated 8th February 2019 and 3rd February 2020 because the said letters were not admitted as exhibits. She argued that the said letters were only filed by the respondents as documents to be relied upon during hearing but they were not produced and admitted as exhibits as required by the law. She cited the case of Registered

Trustees of Vignan Education Foundation, Bangalore India & Another vs. National Development Corporation & Others, Civil Appeal No. 88 of 2020 to support her submission that it was wrong for the Arbitrator to consider the two letters and act on them to award the respondent while they were not part of the record and hence not evidence at all. It was her view that the award was unjust hence cannot stand. 4 The learned counsel further challenged the legality and validity of the Commission’s award to disregard completely the testimonies of applicant’s witnesses without stating a justifiable reason. Submitting on this ground Ms. Catherine stated that DW1 and DW2 had testified that the respondent deliberately resigned from his employment. She contended that their testimonies fully supported the applicant’s case on the account that the respondent was never forced to resign from his employment. She was of the view that the CMA failed to analyse the evidence of the applicant and accord the weight it deserved. She further argued that had the Arbitrator analysed the evidence properly he would conclude that there was an extension of unpaid leave of ten months and that the respondent had deliberately resigned from his employment therefore was not entitled to the said outstanding salaries awarded. She further faulted the arbitrator for not giving reasons in his award for disregarding the

applicant’s evidence. Concluding her submission Ms. Catherine submitted that on the strength of their submission and the cited authorities she contended that the Commission’s award was wrong, unlawful, illogical and irrational hence prayed for this court to allow the application and quash the CMA award. 5 Reacting to the above submissions, Mr. Reuben contended that procedurally and legally a party to an employment contract can terminate the contract upon showing the intention to terminate the contract by serving a notice to the other party. He cited section 41(1) (b) (ii) of the Act and submitted that the provision requires the employer to serve a 28 days’ notice to the employee on the intention to terminate the employment contract. He argued therefore that the applicant did not adhere to this requirement of the law before terminating the employment contract of the respondent. He submitted further that on 8th February 2019 without any agreement of the two parties the applicant served a letter requiring the respondent to take three months unpaid leave and that after lapse of the period and without any mutual agreement the applicant extended the period of unpaid leave to another ten months. It was to the respondents’ surprise he said on 3rd February 2020 the applicant served the respondent a letter for forceful retirement on the ground that he had turned 69 years and that such

letter was to help him collect his contribution benefits from NSSF. It was his submission that this meant that the respondent was unfairly terminated by the applicant from the date of receiving the letter. 6 He argued further that it was why the provision of section 41(1) (c) of the Act had to be applied by the commission. The learned counsel urged this court to consider the matter for the sake of justice. Furthering his submission Mr. Reuben contended that the respondent deserved a much kinder compensation than what he was awarded due to unfair termination of his employment. He argued further that during the proceedings before the Commission the applicant failed to prove that the termination was fair. It was his submission therefore that the applicant had contravened the requirement of section 39 of the Act which imposes the duty to the employer to prove that the termination of the employee was fair. In respect to the documents produced by the respondent before the CMA, Mr. Reuben a submitted that, there was no objection raised by the applicant upon their submission during the proceedings. It was his submission therefore that the applicant is not allowed to raise a new issue at this point which could have been raised before the commission. Fortifying his position, he referred this court to the case of Joseph Deus @ Sahani and Another vs. Republic. Criminal Appeal No. 564 of

2019. 7 In conclusion, Mr. Reuben avowed that the Commission’s award ordering the applicant to pay the respondent monetary relief of Tshs. 3.150,000/= being outstanding salary for nine unpaid months was legal, valid and proper. He also added that the Respondent deserved a much kinder compensation than what he was awarded due to unfair termination of his employment. Rejoining briefly Ms. Catherine responded to the issue of the applicant not issuing a notice of termination that the same is misplaced because it was never an issue during trial. She submitted that there is nowhere in the pleadings at the Commission that the respondent complained or questioned the issuance of notice. She was of the view that this is a new issue introduced by the respondent at this revision stage, hence is an afterthought. She supported her submission with the case of Singita Trading Stores (EA) Ltd vs. Commissioner General Tanzania Revenue Authority, Civil Appeal No. 57 of 2020. On the issue of the respondent deserving more reliefs than what was awarded by the Arbitrator, she submitted that this point was misconceived. She argued that if the respondent thinks he deserved more than what he was awarded he ought to have filed for revision but he is not allowed to 8 raise such a complaint through an instant application that was filed by the applicant. She maintained that given the nature of the dispute

and the issues framed for determination the respondent was the one with the evidential burden but he failed to discharge the same as required by the law. Having considered the above rival submissions. I find the issue need to be addressed is whether this application for revision deserves to be granted. In answering the same, two aspects appear to my mind to lead the way, one being the validity and fairness for the termination, and two, justification of the procedure used to reach the award at CMA. I have scanned the proceedings, affidavits and submissions above, I have come up with the following analysis which leads me to the decision. First, the record reveals that the respondent was employed by the applicant as an agricultural field officer fact which is not disputed by either party. Secondly, that sometime in 2019 the respondent was for some reasons subjected to go on unpaid leave for the period of three months. The amount awarded to the respondent at CMA is salaries of 9 months after the expire of above unpaid till the date he was given a letter 9 of his retirement. Now the next point to be considered is whether there was an extension of unpaid leave up to the issuance of retiring letter. According to the typed record of CMA at page 4 on 19/6/2020 the CMA ordered parties to bring documentary evidence on 3/7/2020, then order the hearing will be on 8/7/2020. Further the

record shows the respondent filed his evidence exactly on 3/7/2020, in that document which was titled “maelezo ya mlalamikaji” was annexed with first, a letter of appointment as exhibit 1., second, a letter of three months unpaid leave as exhibit 2, third, retirement letter issued by the applicant to the applicant as exhibit 3 and other two annextures which not material to this matter I am addressing. Later during the hearing, according to proceeding at page 9 the respondent when testifying said he was given a letter of unpaid leave for three months, after the said unpaid leave, he went to work and was told by respondent to wait until November 2019, and further said it was on 19/2/2020 he went to TPWA a workers associations. But at page 10 when he was asked to evidence the above he said all letters were filed at CMA in his case. I have also considered in this application for revision the respondent in his counter affidavit two letter stated above, one unpaid 10 leave as EOK-01 and second Retirement letter wrote by the applicant to him as EOK-2. I have considered also the testimony of one Felix Mosha who introduced himself as chief share holder and leader of the Applicant at page 14 said the respondent was in an unpaid leave since February 2019 till, he sent the case at CMA. In my view the applicant did not prove his assertion either by documentary evidence or oral evidence,

this is because, in labour matter like this, the law provides that the burden of proving that the termination is fair lies with the employer. This is clearly provided under section 39 of the Act and I quote for ease of reference; “In any proceedings concerning unfair termination of an employee by an employer, the employer shall prove that the termination is fair”. From the above, I decline to agree with the applicant submission that it was only the duty of the respondent to prove his claim, the respondent was having a duty to prove that there was fair termination. Be that as it may, the applicant did not refute the oral evidence of the applicant stated above and also did not file reply to counter affidavit to 11 refute the matter deposed and evidenced attached by the applicant in his counter affidavit which in my view he admits with the evidence by the respondent. In his testimony the applicant through Mr. Felix Mosha admitted to give unpaid leave but when was asked at page 15 and 16 seems to confuse the period of unpaid leave given to the respondent and further said the leave was issued once. In fact, in my view Mr. Felix Moshi evidence was vague and unsubstantiated, thus disputed nothing in respect to the respondent’s claims at CMA. In respect to the contention in this revision that at the CMA the said letters were not admitted as exhibits but were merely filed as document

to be relied upon. First, as said above the same was not refuted by the applicant and indeed the two necessary documents the author was the applicant himself. Second the procedure used in labour matter is not like the procedure used in normal civil suit where application of civil procedures is strictly adhered. For instance, as said above CMA ordered parties to bring exhibits before hearing and when the respondent asked where was the letter said was already filed in CMA. The above none strict application by the procedure in my view may be deductively inferred from the provision of rule 17 (i)(a) of Labour Court rules 2007 which states that; 12 “17 (i) The Court, for the purposes of dealing with any matter referred to it, shall be entitled to elicit all such information as in the circumstances may be considered necessary without being unreasonably bound by the rules of evidence in civil or crim inal proceedings, which would have the effect of interfering or defeating the good ends of justice and may by order, require any person to - (a) furnish in w riting or otherw ise such particulars in relation to any m atter as m ay be required.” [ Emphasis added] From the above, despite the document was not disputed by the applicant at the trial, I am of considered opinion the said two documents were properly relied upon by CMA, having observed as above, since the applicant issued a letter

of unpaid leave to the respondent and since no evidence that the applicant extended the said leave to another period. In my view, the applicant first has failed to prove that there was extension of the said unpaid leave, but second his act of giving the respondent letter dated 03/03/2020 and said is the respondent who faced applicant praying 13 that he want a retirement letter so that he can claim his pensions benefits, in my considered opinion this shows how the respondent suffered prolonged unjustified leave and forced indirectly to retire, this was evidence at page 14 of the typed proceeding by the applicant leader one Felix Mosha and for ease of reference I reproduce exactly words state by him hereunder; “Aliniambia anavyoona haionekani kam a atarudishw a kazini m apem a. Akaniom ba nim pe barua ya kum w ezesha kuchukua m afao NSSF. Nikaona hamna utata na umri wake ni mkubwa.” [Emphasis added] I have considered the above testimony and the fact proved above that there were no justified continuation of unpaid leave above, I am settled that the applicant did constructive termination of the respondent after the expiry of unpaid proved above, and this in my view caused the caused the respondent intolerable as a result he prayed for retire from , so that he can acquire his pension contributions for purpose of his subsistence. I wish to back up my observation by referring rule 7

(1) and 14 (3) of the Employment and Labour Relations (Code of Good Practice) Rules, 2007 GN No. 42 of 2007 which provide as follows; “7 (I) Where an employer makes an employment intolerable w hich m ay result to the resignation of the em ployee, that resignation am ount to forced resignation or constructive term ination. (3) Where it is established that the employer made employment intolerable as a result of resignation of employee, it shall be legally regarded as termination of employment by the employer.” [ Emphasis added] On the premises and from what I have endeavoured to discuss above, I am settled that the respondent deserves the award of unfair termination, but having considered the nature of this revision and the age of the respondent at his termination, the award issued by CMA is not faulted, thus, it is also my settled view the amount awarded to the respondent which is Tshs.3,150,000/= being outstanding salary for nine (9) unpaid months meets the justice of this matter. 15 For the foregoing reasons, I find this application devoid of merit, consequently, I hereby dismiss the same in its entirety. From the nature of the parties' dispute, I order each shall bear his/her own costs. It is so ordered. DATED at MOSHI this 14th day of December, 2023

X

JUDGE Signed by: A. P. KILIMI Court; Judgment delivered in the presence of Mr. Gidion Mushi holding brief of John Mushi for the Applicant, Mr. Ramases Reuben for respondent and respondent also present Sgd: A. P. KILIMI

JUDGE 14/12/2023 Court; Right of Appeal duly explained. Sgd: A. P. KILIMI

JUDGE 14/12/2023 16