LETICIA MISALABA LUSHINGE V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 24022 OF 2024 (Arising from Award issued on 21/08/ 2024 by Hon. Mikidadi, A, Arbitrator, in Labour Dispute No. CMA/PWN/MKR/04/2024/04/2024 at Mkuranga) LETICIA MISALABA LUSHINGE…………….…………….................. APPLICANT VERSUS POWER OUTREACH (T) LIMITED…………..........………………... RESPONDENT EX-PARTE JUDGMENT Date of Last Order: 11/02/2025 Date of Judgment: 26/03/2025 B. E. K. Mganga, J. Facts of this application are that, on 16th August 2023, Leticia Misalaba Lushinge, the herein applicant entered a one-year fixed term contract of employment with Power outreach(T) Limited, the herein respondent. In the said fixed period contract of employment the parties agreed that the said contract will be effective from 16th August 2023 and that, will expire on 16th August 2024. The parties further agreed that applicant will be under probation for a period of six months. It was alleged by the applicant that, on 4th January 2024, respondent unfairly terminated the said fixed period contract of 1 employment. Applicant was aggrieved with the said termination. Since she had not worked for six months, on 29th January 2024, she filed Labour dispute No. CMA/PWN/MKR/04/2024/04/2024 before the Commission for Mediation and Arbitration henceforth CMA at Mkuranga complaining that respondent breached her contract of employment. In the referral form (CMA F1) applicant indicated that she was claiming (i) to be paid salary for six (6) months of the remaining period of the contract, (ii) one month in lieu of the notice, (iii) be served with termination letter and (iv) be given a certificate of service. On 21st August 2024, Hon. Mikidadi, A, arbitrator, having heard evidence of the parties issued an award that, respondent terminated employment contract of the applicant unfairly both substantively and procedurally. The arbitrator found that applicant was terminated after she had worked with the respondent for four months and further that, she was terminated while under the probationary period of six months. With those findings, the arbitrator awarded applicant to be paid TZS 28,000/= being salary for the remaining probationary period. Applicant was aggrieved with the said award hence this application for revision. In the affidavit in support of the Notice of Application, applicant raised five (5) grounds namely that: - 2 1. That, the honourable arbitrator erred in law and facts in holding that applicant was a probationary employee. 2. That, the honourable arbitrator erred both in law and facts in holding that applicant was not entitled to be paid salary for seven (7) months of the remaining period of the one-year fixed period contract of employment. 3. That, the honourable arbitrator erred in law and facts in issuing the award not based on the issues that were drafted by the parties. 4. That, the arbitrator erred in law and facts in awarding applicant TZS 28,000/= only as compensation. 5. That, the arbitrator erred in law for failure to analyse evidence. I should point out albeit briefly that, respondent neither filed the notice of opposition, the counter affidavit nor entered appearance in this application despite of being duly served through substituted service after she had refused service. Since respondent was duly served and opted not to oppose the application or enter appearance, I ordered this application to be heard ex-parte hence this ex-parte judgment. When this application was called on for hearing, Mr. Ahmed Omari Udugu, the personal representative of the applicant prayed the application be disposed by way of written submission, as a result, I issued the order to that effect. Arguing in support of the 1st ground, the personal representative of the applicant submitted that, on 16th August 2023 parties signed a one- 3 year fixed period contract of employment that was expected to expire on 16th August 2024 (exhibit P1). He added that, in the said contract, the parties agreed that applicant shall be on probation for the period of six(month) months, but they did not state as to when the said probation period will commence. Mr. Udugu further submitted that, if the respondent wanted the probationary period to commence on the date of signing exhibit P1, she could have clearly so stated. He added that, in that situation, the arbitrator erred in law and fact in holding that applicant was terminated while she was on probationary period. I have examined the CMA record and find that, respondent did not enter appearance, as a result, the dispute was heard ex-parte. In her evidence, Leticia Misalaba Lushinde (PW1), the only witness in the CMA record, stated that, she signed a one-year fixed term contract on 16th August 2023 and that, the said contract was expected to expire on 16th August 2024. PW1 further testified that, she was terminated on 4th January 2024. I have examined the said one-year fixed period contract (exhibit P1) and find that, in clause 6 it was clearly stated that, applicant shall be on probation for the period of six months. In clause 2, it was clearly stated that, the contract will commence on 16th August 2023. Counting the said six months’ probation period starting from 16th August 4 2023, I find that applicant was terminated at the time she was still a probationary employee. Submissions by Mr. Udugu faulting the finding of the arbitrator simply because exhibit did not state as to when the said probationary period commenced are devoid of merit. I am of that view because, the contract commenced on 16th August 2023 hence, in no way, the said probationary period could have commenced prior to commencement of the contract between the parties. I therefore, find that, this ground is unmerited. Arguing in support of both the 2nd and 4th grounds, Mr. Udugu submitted that, at the time of termination, respondent was, in terms of clause 10 of the said fixed term contract, supposed to serve the applicant with a written notice but that was not done. He cited the case of Simon Kichele Chacha vs Aveline M. Kilawe (Civil Appeal No. 160 of 2018) [2021] TZCA 43 (26 February 2021) to support his submissions that, parties are bound by their contracts hence respondent was bound to serve applicant with a written notice. He further submitted that, respondent had no valid reason to terminate applicant’s employment. He went on that, in awarding applicant to be paid TZS 28,000/=, the arbitrator did not properly consider clause 6 of the contract of employment. 5 I have pointed out herein above that, applicant was a probationer at the time of termination of her employment. In fact, clause 6 of the fixed period contract of employment states that, she was under probationary for the period of six months. As I have held hereinabove, the said period commenced on the date the parties signed the said contract namely, on 16th August 2023. I have also found that, in her evidence, PW1 stated that she was paid TZS 7000/- per day and that, respondent had no valid reason for termination and did not follow procedures. There is no evidence to contradict what was stated by applicant in her evidence on reason and procedures for termination. I therefore hold that; respondent had no valid reasons for termination of applicant’s employment and did not follow procedures. In short, respondent breached the contract of employment by terminating applicant. Again, as pointed out herein above, in her evidence, applicant stated that she was paid TZS 7,000/= per day. There is no evidence suggesting that she was paid more than that amount. In the award, the arbitrator held that applicant worked only for four (4) months and eight (8) days and that, she was entitled to be paid notice in terms of section 41 and 44(1)(d) of the Employment and Labour Relations Act, [Cap. 366 R.E. 2019] hence awarded her to be paid TZS 28,000/=. It is my view as I 6 have held shortly a while that, applicant was terminated while under probation. In other words, applicant was terminated while under practical training. See the case of Stella Temu vs Tanzania Revenue Authority (Civil Appeal 72 of 2002) [2004] TZCA 55 (27 October 2004) [2005] TLR 178 CAT and David Nzaligo vs National Microfinance Bank Plc (Civil Appeal 61 of 2016) [2019] TZCA 287 (9 September 2019). Termination of her employment occurred one month and fifteen days prior completion of the said probationary period. Since applicant was terminated while under probationary period or practical training, she was only entitled to be paid the remaining period of her probationary period as it was held by this Court in the case of case of Essau Amon Tegga & 4 Others vs Azania Poly Bag Industries Ltd (Application for Revision No. 10819 of 2024) [2024] TZHCLD 133 (16 August 2024) and Vivo Energy Tanzania Limited vs Omar Shareef (Revision Application No. 20964 of 2024) [2024] TZHCLD 185 (16 October 2024). I have carefully read evidence of the applicant and find that; she did not state that she was working even on Saturday and Sundays or on public holidays. In absence of that evidence, I am of the view that, in the one month that was remaining, applicant was supposed to work for 21 days and for the remaining 15 days she was supposed to work for 11 7 days after exclusion of Saturdays and Sundays. In short, the total remaining period that applicant was supposed to work was 32 days only. Since applicant was paid TZS 7,000/= per day, she is entitled to be paid TZS 224,000/=only being compensation for the remaining probationary period. I have read employment contract and find that at clause 8 it provided that; salary will be paid depending on how the employee performed duties when she entered at work. Unfortunately, there is no evidence showing monthly salary of the applicant for the whole period she worked for this court to base on in calculating monthly salary. In absence of that salary and in absence of evidence contradicting what was stated by the applicant, I take what was stated by applicant to be valid namely, that she was paid TZS 7000/=daily. It was submitted by Mr. Udugu that, applicant is entitled to the reliefs she claimed in the CMA F1 namely, (i) compensation for six months remaining period of the contract and (ii) notice pay. With due respect, that cannot be valid because, applicant was terminated while under probationary period. Applicant could only be entitled to six months’ salary compensation and one month salary in lieu of notice had termination been done while not under probationary period. I find that 8 argument advanced on behalf of the applicant on this aspect is devoid of merit. For the foregoing, I partly allow the application, revise, quash and set aside the award and award applicant to be paid TZS 224,000/= as salary compensation for the remaining probationary period. Dated at Dar es Salaam on this 26th March 2025. B. E. K. Mganga JUDGE Judgment delivered on this 26th March 2025 in Chambers in the presence of Ahmad Udugu, Advocate for the Applicant but in the absence of the Respondent. B. E. K. Mganga JUDGE 9