20140910 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DARES SALAAM REVISION NO 417 OF 2013 " 0 ,<; ;ff\,, ,,. KINONDONI MUNICIPAL COUNCIL. ............................. ,....... dt;\._, APPLl~ANr:~, VERSUS - - - -~::,,,\,•-- 'l:;~#;>~:, ~:\t.\;. RUPIA SAID & 107 OTHERS ..............................................,._.,..RESPONDENT . :t'- (ORJG/NAU CMIV DSMIILAhQ3!2Q09) '\;r. 19/6/2014 & 10/9/2014 ··/: . . '.$f;~\ ;:;~·~- R.M.RWEYEMAMU, J:- In this matter, the resp~g,~fAttRupia Said and 107 others were employees of the 12~i, ""t;~{f:· - ~-:..1r\1,; Kinondoni Municipal Council1'.r,. ' · /~tritJ They were employed way back 2002 as Village 1 ~~ -~; Executive O~ficer and ',,,,; ',t -- n different stations/office within Kinondoni Municipality. tM._-; ,".'.;fC~<,';.'.~.( •~;~~ ~A: . 1 It is interesting'.~tftn df$ttfftit:i;Sfnce the respondents were employed to date, none of them . ~- ~ . were paid ~is1/her a~:r;~~,g~1basic wage. After a long demand however, the applicant paid Tsh ,:•_\, ;,; : .. : ~ ~-:~\ 660':~QO/= toe 'erming it 'golden hand shake hand' in labour parlance, 'mkono wa heri'. ··;~~~;-~, The res~~, d s pocketed the said amount; after that they referred an employment dispute to the Commission for Mediation and Arbitration (CMA} claiming among others, unpaid salaries, accrued and unpaid leave, notice, overtime, severance and NSSF Contribution. [1] , •· Issues framed at the CMA wer~ thcit:- 1; lwapo walalamikaji waliajiriwa na · mlalamikiwa au hapana 2. lwapo wanastahili kulipwa madai yao: mishahara wanayodai katika kipindi chote toka kuachishwa kazi hadi sasa, overtime kwa kipindi walichokuwa ., kazini, likizo ambayo hawakupewa kipindi chote walichokuwa kazini, NSSF, fidia kwa kuachishwa kazi visivyo halali.3. Nafuu ya kila upande. .,t~. Loosely translated:- 1 Whether or not there was an employmentrei~tiori;hlp:.betw~~n the parties.2 whether or not the respondents were entitled to benefits '.clai~e~,~- i~liefs' parties '·.). are entitled to. The arbitrator's reasoning and decisioo"::1w..~~):~:1tlat):;,<,1) · In accordance with the ~-,; -~,_,\ t~r~-..- •,:.· '. ;:t(_t, \: :.;_~ ·;:.. ::/ ./ definition under section 4 of the Employment ahd Lab.ourRelation Act, No. 6 of 2004, the 1 respondents were employees of th~Jf;tapplica~t:b:s(2f' The employee's termination was --~~'.{\. . . -l~) procedurally unfair (3) The respon~ents wete1:;ahtitled to; unpaid salaries, accrued leave, . ~@:, . notice, severance pay and 5-ltrodnt~~ salaries' as remedy for unfair termination. The ':'.~S-h ..,;~)::.. I applicant now seeks rexL~idft,;gf tH'~td~cision reasons articulated on paragraph 6 of the ;5<h~:~,~---,:;\'.\~;-.. .· t\t.f:, , .. }-< . · supporting affidavit. Th~?,e afEik ·-•c;, .·,:1::il;\\. i(#'A\\\;,h'~{i~?().,,:,,·;iNt a) That lnlttlis d~ij!§iortthe Arbitrator did not properly consider the contents of the agreement ~~ft' ·,,~, Je,i~ ' Wt. Wt}d Development Committee and the respondents. The agreement which ·l-.?-J,;.i:,. l ,,1&,:, spegfi'c~Uy, s lated the entitlements of the respondents. ·?~t; JP~·> ,,~~@f('rbitrator misdirected himself in ordering the applicant to pay salaries as alleged to be "a· . rs without taking regard that the respondents, for the whole period of their service were fully paid through the mode expressed in the agreement. c) That it was irrational illogical, wrong and improper for the Arbitrator to have reached a conclusion that the agreement for Mkono wa Kwaheri entered between the applicant and the respondents was not binding. d) That the Arbitrator failed miserably to grasp the fact that the respondents were removed at the instance of the Circular from the P~esident's Office Reginal Administration and Local [2] ., Government which required their posts to be filled in by people whose levels of education are form six or Diploma, the respondents did not meet the requirements. e) That it was illogical, irrational, wrong and improper for toe Arbitrator to admit exhibit P1 on his own motion without even affording an opportunity to the applicant to scrutinize it. f) That arbitrator improperly recorded the evidence of DW2 and came up with words which were not uttered by the said witness. ·":t . .::': --"\:>>. \\ -.i;};,. In this court parties were represented as follows; , Mr. MahengiK~~r~9vod~fe assisted by Ms. Flora Advocate for the applicant, and Mr. Ch_~fst'dpher mu~~hyi, a personal representative for the respondents. The application was hearJ'.by ;~y:of,written submission. "\t . . ·. -;• Faulting the Arbitrator's decision, ~@~~sel:?i~rt~J:1~pplica~t submitted that the decision to pay uniform rate to all respondents :l~bpred cl;~ni:ms of the agreements between the respondents and ward developme,rif;com~iit~~s:1;Jh one hand, and between the respondent and applicants on the other. Th6sef:l~rms were, and I quote for easy of reference:- -,,1,""' ~:;_~~~(;, '·,t:\t;,;,'\\f, . , • Kulipwa mshahar1fi\vatit;~1m~r~g,~1 ·chini cha mshahara wa serikali iwapo nitatimiza lengo la mak~~~,.) • Kulip;tf,>- t,g~ra [n:,bao ni chini ya kima cha chini cha mshahara iwapo nitashindwa kutimiza '};) '''.\;}J,/J:' . <1r;,'.it\. lerigo .. <~/.:;.. . .·.: - ,-' . • Kttlipy.,a,;tn,s ahara ambao unalingana na asilimia ya mapato niliyokusanya ikilinganishwa na lengo 'W)-:,X~:-~' la mwezi husika niliopewa na halmashauri ya manispa;:i ya Kinondoni. • Kulipwa na halimashauri ya manispaa_ ya Kinondoni asilimia kumi ya mapato zaidi ya lengo niliyopewa na halmashauri katika mwezi husika. [3] I - From the above, the respondents' payment was to be based on an individual performance hence their entitlement cannot b,e uniform as per Arbitrator's finding. He further submitted that after the respondents signed a "Mkono wa heri," the terms were clearly that they don't have any claim against the applicant. May be more important, Counsel submitted that the respondents were not employed by the applicant but by the Ward Development Committee· which operated under Chief executive officer and councilors. ·-..~\.>··. In opposition; Mr. Mumanyi submitted that; the r~~pbbgent's employment by the .. ~t~}--,' --~·- ·. ( .. applicant was confirmed by the letter dated 20/07 /2Q02;\.?nd that by the letter dated 10/10/2002, the Kinondoni Municipal Director directed_;,all warp executive officers to allocate ·':; the respondents their respective places_t,ijfrwor~fli'~s-i~.;lly}thk representative was stressing .. , :~ ...-:,· ·,;·\: ·· ..:,. that; _-~~L ~'" ;}'' 1 • the respondents were worlsj_m,~ un~':i~1ffe?a~bucants' instruction •t11~:'1t,1~';;,,_ • that they were paid b¼. the'"~gplitt:~{lts; and hence were employees of the applicant as 'llt-c '\\i;\,. ,., decided by the .~MAtt\rbitfpt~Y!' \ji~-, ,.-~f\\(, ·;:;f\!.'.'Y ,~?:Jf/c;l)p:,if¾t,;:\,.,,,;;f) r:,,, Aft~~!l/ilfin~J.} •. ;:~ies' arguments, the evidence on record including the reasons .,fE.iY ":\~ti -,.: for d~iJ~ion '"'Jk a~lGµ,J~t:ed . ,,_,~,;,-'-' in the award, in light of the relevant law, I am of the view that the decisive'i!"s:ueif~!':~. -.'.:~\if 1) Whether the Arbitrator's finding that there was an employment relationship between the parties was illegal. 14) •- I wish to commence by repeating a general .observation I made in a case where an ~ issue of determination of employment relationship arose. I~ that case of, Mwita Wambura v. Zuri Haji, Reviosion No. 45/2012 LC (Mwanza Sub Registry) I stated that: "The issue of determination of existence of employment relationships is a complex one, particularly now, given an increase in flexible work arrangements which invariably, also increases incidents of disguised employment relationships. For that reason, the issue was giverfspeqfir/:focus by,the ILO, in the 95th Session of the International Labour Conference- (2006 R13pbrfVO). '(,/? ,_ , The report gives a comparative analysis of legislation on defibiiion otemployment relationships and . ' ·.\?t '\"'::f~;- ,·.· ..y.:·· principles governing determination of existence of em_ploy'm~~t 'fe!@tionship developed by case law, ,-,ft:;:-, .·:::;~:.; ···t·:;.- from different ILO member states ~hich fung~,m.enta.!lY ap'#ly similar ILO standards. Clearly .. ;fffJ,!,·,-.;f.-i:\::S-~-. -~?%·: .. ,,,,'!:.}~ demonstrated in the Report is that, gJ{fe$rent qQpntiel\pave(,aifferent definitions and there are no ~#i ---\\. . t\'.: hard and fast rules regarding how to o.~termine ·t~\- eXi$!~n~.~- .,...~,·/,,;. of .employment relationship but, there are a number of common factors running'\hrough ,. ,, . ,.. ' which can aid a decision maker in determining ~ existence of an employment rela,_t!~~ship. '•-< ;.,: "t\;,.'•.::1i{~.;.,-·. A\t;;,_,_.·._,_-_-._ ~-W> ••,_;~'}}~-- i·._,_·t-_ ~~ ·1 ~_•_::,._ ,_ These principles .,. ··1i \{;~. -.. . ~t~'7,;ah;i;~9~t~tj:;1, a) defining employment relationship by looking at parties roles, ''t:gpsiq~fi89 ln1;;1tters ~mong others; dependency, subordination, direction, supervision and ~1:~h: M! -,;:\t:k~ ., ·'._:).fa);tr;t~~r- . . control ofsirxfces',$qderea; (page 19 to 23 of the report) b) principle of primacy of facts- looking at .:ttl.i!Vit!~i-' '\\~t., \\~ wha~}was;,~ ··ny;fagreed and performed by each of the parties' c) use of burden of proof, (From ·, •~ff' ''>':.,r • _age 2 · -!J •·.. , .,. 8 of the Report respectively}. I will indicate below how the principles above are 1,?i ~PP,J[pa~J~t,in ., •,.,·,it· "this case. The purpose of the discussion above is show that in determining the issue, the c'd&h or CMA can legitimately seek help in interpreting national law, by looking at relevant ILO Convention and Recommendation, opinion of the ILO Committee of experts on the i~sue, and judicial practice of Courts in comparable jurisdictions. [S] In Tanzania, ... an employment relationship in terms of the national law? An employment relationship is defined in terms of who is an employer, and who is an employee under Section 4 of the Employment and Labour Relation Act, No. 6 of 2004 (ELRA). That section has to be read j together with Section 61 of the Labour Institution Act, No.7 of 2004, which provide factors to be considered in presuming existence of employment relationship. The Section provides, and I quote:- "For the purpose o{ labour law, a person who works for, or renders service to,J:li1J other person is presumed, until the contrary is proved to be an employee, f~~a,rdles;· of \m;e f9,r/tiiof the '••·.:-:· ,; . ·-:y; >.f))/' contract, if any one or more of the following factor is present; "'· '}· ~.- . ' "~\:-·_.,_._, .. --~t.-,:-::/{~ . (a) The manner in which the person works is . slibj~ct to the control or direction of another person; .:/lt ··' (b) The persons hour of work are subjecfttQ,th~<~.1:>ntr~l-or direction of another person; · · · ,,_ ,,~J.\::::<~·:-:-' ;;\:~,,~ ,/:: . (c) In the case of persgJJ#.;; wogf for'fan. 8rgariization, the person is part of the organization; mr '\t;:. •:~\ ·t/ , I , (d) The person has worke~Jor that gth~r'person for an average of at least 45 hours per month over,, the i?~·-- last three morilhs. ""~:;~i}Jf~;.. -~~- ' (e) The person.:i§ eco.pomically dependent on the other person for who that person works oi rencf~r,__seN:i~e; ·/\?{¼::s •:\t~;{t.. .,.(~;: (D TQ,i;~;p~f "''-\· ,Erqil'l1ed with tools of trade or works equipment by the other person; ttt, . . {'!t%~f1iil:;i, , 'it ,-:;_(\X3' . • -- ''ft11i~f--'"1Qy,J'~~§itf/6nly works for or renders service to one person". The .&Pe,i '""'fi\, -r ''{f)~e tailored along principles contained in the ILO Employment Relationship ., t{~? ,~ .. · RecdmnJ~ c:;;, '~ 98 of 2006, which provide in paragraphs 9 and 13 that; ,. \t";,,.. -~:$_ 'N' 'f:~t~ ~, "._+\tjt·~~~( 11 ' 91,"'. ·.:&fbprotection for workers in an employment relationship, the determination of th;·s~f·;';tence of such a relationship should be guided primarily by the facts relating to the performance of work and remuneration of the worker, notwithstanding how the relationship is characterized in any contrary arrangement, contractual or otherwise, that may be agreed between the parties. [6] 13 ....... the specific indicators of the existence of an employment relationship include,, ... (a) the facts that the work is carried out according to the instructions and under the control of another party; involves the integration of the worker in the organization of the enterprise; is performed solely or mainly for the benefit of another person; must be carried out personally by the worker; is carried out within specific working hours or at a workplace specified or agreed by the party requesting the work; is of a particular duration and has a certain continuity; requires the wor~e.fs avajl~6)Hty; or involves the provision of tools, materials and machinery by thefp{rt~ifequesu~b tti~-' work ..... (b) periodic payment ~f remuneration to the ".'Orker; the fi£bthat ll~h remuneration constitutes the workers sole or principle sourc~lo()ncome; proJfsion of payment in kind, .... " Turning to this case, the primary.facts att€'.th~tt,,a'}'-:thef~ was no evidence of payment f.}fl?. '~\:\ \i\ of salary but there was evidence thaij:the resptlqq;~pJs were paid "Mkono wa heri" by the -i:'•;~-- .:. .,,~-:,.-•. applicants; b) the applicant did not;:,resi;l\lo,,th v, , e~minated the res ondents service; c) it .-!,-~.. \i.t' '·'if{ _,.' was undisputed that the applicpri't'.?M(as providing the respondents with tools and materials required for work. Accordin:§J~,h~-~'~:!neral principles above, among primary facts to be considered in dete~111Wi'tllY·;~~tfexi}fJl1ce of employment relationship are economic . ,, . \\\ -~--~ft. .. ,., ' dependency,(feiJ!un,~ratien)\§ubo!dination, direction, supervision and control of manner of services ·,-:;/\,:.-/Ji. .'·-:?/~., .···'\th.'.;;-i]t:' rendered. In t~r,r:n§i'.¾?fthoS°e ina1cators, the applicant was an employer of the respondents beqf_:,~se; ,Wt?it{;t',::;.: ;;''\1,:i:,:t:'r ~ ff{ r~\;;_. \l>t];~,'- .I \?:>,-,1tf?;° ► ·11n·, r ·§n'§'i conclusion to be derived from the fact that the respondents were term1 ated by the applicant is that, the respondents were worked under instruction and control of the applicant. t ► The respondents were paid/ remuneration by the applicant. ► The respondents were supplied work tools and materials by the applicant. [7] The fact that the respondents qualification were not in conformity with the later set requirement, did not in my view, absolve the applicant from liability as an employer. Rather, that fact would be relevant in deciding the issue of validity of termination not otherwise. And even if qualification was an issue, that would not absolve the employer from the requirement to follow due procedure in terminating the respondents. After considering the above facts in light of the general _indicators\,@)(amfhed earlier above, I have found no basis to fault the Arbitrator decisioo}h~(there was';n employment ~-, < 1 ·:;:. ·, relationship between the parties; that the respondents' !~rhiifij,c:itioi;wa"s procedurally unfair; confirm the remedy grated of 5 months' salary aS'i:\G.P;'pef!;;Jtion for unfair termination; I • ...:i?,g•.•i::,.•:. '·-'i?~\ . ·.~?··:::<'; month salary as notice, and severanc~~alypowi~efQwpsh\the Arbitrator's order for payment of unpaid salary for reason that such ail;im w~~'tlrne:-~6arred. Such claims have to be made ,,i - \h".::-. ' · ,. _~,: ?,/:_:- '.X" 0 . within a period of 60 days (See rule)O (2J\'QfJr~,,~abour Institution Mediation and Arbitration C tlf"'. . .• .:-tr}j){:f~~~-' • Rules, GN 64/2007. For that r~as'Ot!h,, the respondents are entitled to payment of 2 months '\~~};, i·,\t;~.. of unpaid salary each, plu$,,sal~ry dfr~ month as accrued leave which was wrongly not granted. For avoidanc~iYafs\~:~bbt,,t,: rate of salary to be used in calculating the above benefits is 75\0oQOl7r~rtti~i! 9~t,~!ta~rate. 't\;;\. ··,<:ik '•,wr;;,:;;· Save for thl'c'f.1'9:~,~~~;j,;@)-i~e, I find this application unmerit_~g.AQgjismiss it. z,· iil''''~\~tl;,, "'' . , 9'..~ ~ 'f .4~'7?t"-~,. 'ii?. --t: -· ~ • u11 ilnta/, _ t:..,~ ''''/2\%:f' · · ~ ·<=>-:}' s'.·- ,- ~/a,; -Y ,. . .. ~ ,;_, {{\S'f;:!i,7°.t/J,\.. 'f \ ~ '&. (§/~ . '•, . ~ :(]"t13\ ~ .·. ·~ - .✓ -..,,...-..--~&;._,~l'l'n•-;;_•·\. '" R.M Rweye ~- _ -·.l~ jUGDE '~~~ ,·1:t)~~tt~ ~~~~J.?,?,· 10/09/2014 [8] . , Date: 10/9/2014 Coram: Hon. R.M. Rweyemamu,J .. Applicant: For Applicant: Absent without notice Respondent: Christopher Mumanyi - Personal Representative For Respondent: C.C. Kaale COURT: .. ·. [9]