muhidini mohamed khalid vs kioo limited 2023 tzhcld 1470 20 october 2023

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM LABOUR DISPUTE NO. 04 OF 2023 MUHIDINI MOHAMED KHALID ….....................................…. COMPLAINANT

VERSUS KIOO LIMITED ........................................................................ RESPONDENT

JUDGMENT Date of last Order: 18/10/2023 Date of Judgment: 20/10/2023 B. E. K. Mganga, J. Brief facts of this dispute are that, Muhidini Mohamed Khalid, the abovenamed complainant, was an employee of Kioo Limited, the above- named respondent. It is undisputed that on 10th May 2020, the Tanzania Union of Industrial and Commercial Workers (TUICO) as the exclusive bargain agent of employee of the respondent, signed the Collective Bargain Agreement (CBA) with the respondent. The said Collective Bargain Agreement was operative from 1st January 2020 to 31st December 2022 unless replaced by a new Collective Bargain Agreement. In the said agreement, the parties agreed inter-alia on conditions for 1 payment of voluntary retirement benefits and calculations thereof. In august 2022, complainant, having worked with the respondent since 2009 and believing that he is covered by the said Collective Bargain Agreement, wrote a letter requesting to retire voluntarily by November 2022. In October 2022, respondent accepted the said request but informed complainant that the latter cannot be paid retirement benefits because he has not worked with the respondent for ten (10) years under unspecified period contract. Complainant was aggrieved by the decision of the respondent for not paying him retirement benefits as a result, on 18th April 2023, he filed this Labour dispute complaining that respondent

has breached the terms of the Collective Bargain Agreement. In the Complaint, complainant is praying the court to order the respondent to pay him voluntary retirement benefits as provided for in the Collective Bargain Agreement. On her part, respondent filed the reply to the complaint disputing to have breached the terms of the Collective Bargain Agreement. On 13th September 2023, after failure of mediation, and, in compliance with Rule 10(4) of the Labour Court Rules, GN. No. 106 of 2007, the parties signed and filed in this court the Non-Settlement Order. In the said non-settlement order, only two issues were drafted 2 namely, (i) whether the acts of the respondent to agree on the request of the complainant to retire voluntarily and then, deny complainant retirement benefits amounted to breach of clause 4, 19.1(a), (b) and 19.3 of the Collective Bargain Agreement and, (ii) to what reliefs are the parties entitled to. In the bid to prove his case, Muhidini Mohamed Khalid (PW1), the complainant, testified that, in April 2009, he entered a nine (9) months fixed term contract with the respondent and that, after expiry of the said contract, he signed another new contract. He testified further that, in November 2013, respondent served him with a letter that changed his employment contract from fixed term to unspecified period. He also testified that, on 01st May 2018, respondent

served him with a certificate of long service award after he had worked for 10 years with the respondent (exhibit P1) and was awarded TZS 400,000/=. PW1 testified further that, he continued to work with respondent until August 2022 when he had family problems and approached Mr. Roy Tomas, his immediate boss for advice. It was evidence of PW1 that, the said Roy advised him to request for voluntary retirement so that he can be paid his retirement benefits. PW1 went on that, based on that advice, he served respondent with a 3 months’ notice and retired in November 2022 expecting to be paid retirement benefit. 3 PW1 testified further that, on 17th October 2022, respondent accepted his request for voluntary retirement only. He went on that respondent refused to pay retirement benefits alleging that he (PW1) is not entitled. PW1 testified further that, he was issued with a certificate of service showing that his employment commenced on 01st April 2009 and ended on 17th October 2022 (exhibit P2) and paid TZS 3,810,367/=only based on his (PW1’s) good performance (exhibit P3). It was evidence of PW1 that he worked since 2009 and that, the Collective Bargain Agreement (exhibit P4) provides that an employee on unspecified contract who has worked continuous for unbroken ten (10) years is eligible to be paid retirement benefits. He prayed the Court to interpret exhibit P4 and order

respondent to pay him retirement benefits according to calculations provided for in the said Collective Bargain Agreement. While under cross examination, PW1 testified inter-alia that, his employment contract changed from fixed term to unspecified period on 01st November 2013 and that on 01st August 2022 he requested to retire voluntarily with effect from 02nd November 2022. Still under cross examination by Ms. Pancras, advocate for the respondent, PW1 testified that from 01st November 2013 to 02nd November 2022 it is nine (9) yearstestified further that, he worked with respondent for nine (9) years 4 while under unspecified period contract. PW1 clarified that he worked with the respondent for a total of thirteen (13) years namely, (i) four (4) years under fixed term contract and (ii) nine (9) years for unspecified period. While under further cross examination, PW1 stated that, under clause 19.1(a) of the Collective Bargain Agreement (exhibit P4), for the employee to be eligible to be paid retirement benefits, must have worked for ten (10) unbroken years, and added that, he worked with the respondent for thirteen (13) unbroken years. PW1 further stated that, clause 4.1 of of the Collective Bargain Agreement (exhibit P4) provides that it applies only to permanent employees. While under re-examination, PW1 testified that any employee who is under unspecified period is entitled to

benefit from the Collective Bargain Agreement (exhibit P4) and closed his case. On the other hand, Athuman Jumanne Said (DW1) the only witness for the respondent testified that, in 2009 respondent employed the complainant for a fixed term contract (exhibit D1) but on 30th October 2013, the said contract changed into unspecified period (exhibit D2). DW1 testified further that, on 05th August 2022 complainant wrote a letter praying to retire voluntarily with effect from 02nd November 2022 (exhibit D3) and that respondent accepted the request (exhibit D4). 5 It was evidence of DW1 that, complainant worked with the respondent for four (4) years under fixed term contract and nine (9) years only under unspecified period. DW1 further testified that, only an employee who has worked under unspecified period for ten (10) unbroken years is entitled to be paid retirement benefit under the Collective Bargain Agreement. While under cross examination, DW1 stated that, the collective Bargain Agreement (exhibit P4) is applicable only to employees with unspecified period and that clause 19.1(a) and 4 of exhibit P4 should be read together. While under re-examination, DW1 stated that for the employee to benefit on voluntary retirement benefits under clause 19.1(a) of exhibit P4, must be working under unspecified period contract and has worked for ten (10) unbroken years. After conclusion of

evidence, the parties prayed to file written submission and the prayer was granted. In his written submissions, Mr. Kigosi, from TUICO on behalf of the complainant, submitted that, clause 4.1 of the Collective Bargain Agreement (exhibit P4) clearly provides that exhibit P4 applies only to employees with unspecified period. He further submitted that; complainant worked for more than ten years hence is entitled to be paid retirement benefits. 6 On the other hand, Bernard Mbakileki, learned advocate for the respondent briefly submitted that, complainant did not qualify to be a beneficiary of the claimed retirement benefits and prayed the complaint be dismissed. I have examined evidence of the parties as pointed herein in above and find that, it is undisputed that on 16th April 2009, complainant and respondent entered a fixed term contract that expired on 31st December 2009 (exhibit D1). It is further undisputed that, after expiry of exhibit D1, complainant continued to work with the respondent under the fixed term contract until in November 2013 when the said contract changed into unspecified period. I have examined a letter dated 31st October 2013 titled “congratulation” written by the respondent to the complainant (exhibit D2) and find that, employment of the complainant changed from fixed term contract to unspecified period with effect from 1st November 2013. It is further

undisputed that, the respondent and TUICO, as the exclusive bargain agent of employee of the respondent signed the Collective Bargain Agreement (exhibit P4) that expired on 31st December 2022. It is also undisputed that on 5th August 2022, complainant requested to retire voluntarily with effect from 2nd November 2022 (exhibit D3) and that on 17th October 2022, respondent accepted that 7 request (exhibit P3). It is undisputed by the parties that in exhibit P3, respondent informed applicant that the latter was not eligible for retirement benefits because he has not completed ten years under permanent/unspecified period contract. With that evidence of the parties, I am bound to answer the two issues namely (i) whether the acts of the respondent to agree on the request of the complainant to retire voluntarily and then, deny complainant retirement benefits amounted to breach of clause 4, 19.1(a), (b) and 19.3 of the Collective Bargain Agreement and, (ii) to what reliefs are the parties entitled to. I will start with the 1st issue. In order to be focused, I find it important to navigate in the provisions of the Collective Bargain Agreement (exhibit P4) that is the core stone in deciding this dispute. Clause 4.0 of exhibit P4 relates to application of the said Collective Bargain Agreement. It provides as hereunder: - “4.0 APPLICATION 4.1 This agreement shall apply only to permanent

employees. 4.2 An employee who has been terminated for misconduct or on disciplinary ground shall not be entitled to the benefits under this Agreement.” 8 It is clear from the quoted clause 4.0, 4.1 and 4.2 of the Collective Bargain Agreement (exhibit P4) that, as a condition, for the employee to benefit from the provisions of the exhibit P4, must (i) be working under unspecified period and (ii) his/her employment must not be terminated for misconduct or on disciplinary ground. There is no doubt that complainant (PW1) was working for unspecified period and his employment was not terminated for misconduct or on disciplinary ground, rather, voluntarily. Therefore, complainant met the first criteria that is general on the application of the said Collective Bargain Agreement (exhibit P4). Apart from clause 4.0, 4.1 and 4.2 of the said Collective Bargain Agreement (exhibit P4) quoted above which provides general conditions for application of exhibit P4, the employee must meet conditions in clause 19.0 and 19.1(a) and (b) or 19.2 for calculations to be made in terms of clause 19.3(a), (b), (c), (d) and (e). In other words, clause 4.1 of exhibit P4 that provides general conditions, must be read together with clause 19.1(a) of exhibit P4 relating to voluntary retirement benefits. As specific conditions, for an employee to be paid voluntary retirement benefits under exhibit P4, must

have worked ten (10) years 9 continuously with the respondent. In fact, clause 19.0 and 19.1(a) and (b) of exhibit P4 provides: - 19.0 RETIREMENT 19.1 (a) The Company may accept a request of an employee to retire voluntarily after ten (10) years of continuous unbroken service or when the employee reaches the age of fifty (50) years. (b) An employee will be paid his/her retirement benefits within one month from the date of his /her request for voluntary retirement is received by the Company. From the quoted clause 19.1(a) of the Collective Bargain Agreement (exhibit P4), in order the employee to be paid voluntary retirement benefits, four conditions must be met namely; (i) the employee must have worked with the respondent for unbroken period of ten years of service, as alternative to (i) must, (ii) have attained the age of fifty years, (iii) the employee must request for voluntary retirement and (iv) the employer must accept that request. In the dispute at hand, complainant (PW1) (i) is aged 35 years, (ii) requested for voluntary retirement as evidenced by his letter dated 5th August 2022 titled “Re: Request for the Retirement” (exhibit D3) and (iii) the respondent accepted the said request as evidenced by a letter dated 17th October 2022 titled “RETIREMENT” (exhibit D4). Since PW1 has not attended the age of fifty years, in order to be paid voluntary 10 retirement benefits,

must have worked with the respondent for unbroken period of ten (10) years with the respondent. The period of ten years mentioned in clause 19.1(a) is subject to the general condition in clause 4.1 relating to application of the said Collective Bargain Agreement. In other words, the employee must have worked for the period of unbroken or continuous ten (10) years with the respondent. As pointed out herein above, employment contract of the complainant (PW1) changed from fixed term contract to unspecified period on 1st November 2013. Therefore, eligibility of the complainant started on 1st November 2013 and not on 1st April 2009 when he entered the first fixed contract of employment with the respondent. More so, certificate of long service awarded to the applicant to showing that for the year 2018/2019 he successfully completed ten (10) years with the respondent cannot be a base of eligibility to be paid voluntary retirement benefits under the Collective Bargain Agreement (exhibit P4) because prior to 1st November 2013, respondent’s contract was for fixed term. In fact, evidence of the parties including PW1 himself, proved that he worked only for nine (9) years with the respondent under unspecified period contract. With that evidence, I find that, complainant did not 11 qualify to be paid voluntary retirement benefits under clause 19.3(a), (b), (c), (d) and (e) of the Collective

Bargain Agreement (exhibit P4). In terms of section 71(3) of the Employment and Labour Relations Act [Cap. 366 R.E. 2019] complainant is bound by the terms of the said Collective Bargain Agreement (exhibit P4). The principle that parties are bound by the terms of the contract as it was held in the case of Kilanya General Suppliers Ltd & Another vs CRDB Bank Ltd & Others (Civil Appeal 1 of 2018) [2021] TZCA 3529 applies also in Collective Bargain Agreements. In fact, the Court of Appeal had an advantage of discussing bindingness of the Collective Bargain Agreement to the parties in the case of Xavier F. Kissinda & Others vs Tanzania Zambia Railway Authority (TAZARA) (Civil Appeal No.221 of 2018) [2023] TZCA 17474. In Kissinda’s case (supra) the parties were bound by their Collective Bargain Agreement they entered. In the application at hand, the parties are bound by the terms of the Collective Bargain Agreement (exhibit P4). This court is bound to interpret the terms of the said Collective Bargain Agreement (exhibit P4) according to its language the parties intended to be bound. The language of the said Collective Bargain Agreement (exhibit P4) is plain and expressly that, the parties intended 12 exhibit P4 to apply only in favour of employees with unspecified contract who, has worked with the respondent for the period of ten (10) years continuously. Unfortunately, the

complainant did not meet that condition. I further hold that; respondent did not breach the terms of the said Collective Bargain Agreement (exhibit P4). Since I have answered the 1st issue in favour of the respondent, I hereby hold that the complainant is not entitled to reliefs he prayed for in the complaint. For all said hereinabove, I dismiss this dispute for want of merit. Dated at Dar es salaam this 20th October 2023 B. E. K. Mganga

JUDGE Judgment delivered on 20th October 2023 in chambers in the presence of Boniface Kigosi, TUICO Secretary and Muhidini Mohamed Khalid, the complainant on one hand and Ms. Mary Pancras, advocate for the Respondent. B. E. K. Mganga

JUDGE 13