20130812 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 2 OF 2009 CORAM: SHANGWA, J., MGAYA, J. AND MUNISI, J. MAKAMBA MWARUKA AND 133 OTHERS .. APPELLANTS

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TANZANIA TELECOMMUNICATIONS COMPANY LTD . . . . . . . . . . . . . . . . . . . RESPONDENT Date of last order~ 30/4/2013 Date of Judgment - 12/ 8/ 2013

JUDGMENT Shangwa, J. The Appellants who are 134 in number and former employees of the Respondent were not satisfied with the judgment and decree of the Industrial Court of Tanzania in Revision No. 57 of 2008. For this reason, they have lodged this appeal. Their appeal is based on one ground only that the Industrial Court of Tanzania erred in fact in dismissing ' < I ' , 2 the Application for rev1s1on on the grounds that the Appellants are not entitled -to their terminal benefits as contained in both exhibit P2 and P3. As a whole, the court is now called upon to decide as to whether or not the Industrial Court of Tanzania erred in its finding that the Appellants are not entitled to their terminal benefits as contained in both exhibits P2 and P3. In brief, the facts of this case· are as· follows:- The Appellants were employed by the Respondent at a monthly salary of Tzs.50,000/=. They were employed as security guards. They were terminated from employment on 22 nd January, 2001. Upon termination of their contract of service, they were paid their terminal benefits as follows:- (a) One month's salary in lieu of notice. (b) One month's salary. (c) Gratuity or golden hand shake Tzs.50,000/=. (d) Other payments due to them in 1999, 2000 and 2001. ' ' I ' ' 3 They were not satisfied with these payments on grounds that they were supposed to be paid as other employees on a minimum monthly

salary ofTzs.138,000/=. Counsel for the Respondent, Mr. Msuya contended that the Appellants are not entitled to be paid like other employees on a minimum salary of Tzs.138,000/= as they were employees on oral contract. The Appellants do not dispute the fact that they were -employees on· oral contract of service receiving a monthly salary of Tzs. 50,000 / =. They contend that at the time of their termination from employment, their employment status had changed as they had worked with the Respondent Company for almost three years continuously. Mr. Semgalawe for the Appellants contended that an employee who had worked for 180 days such as the Appellants had done was supposed to be paid terminal benefits like any other employee on a monthly minimum salary of Tzs.138,000/= as per the Respondent's ' I '' 4 circular Exhibit P2 WARAKA WA UTUMISHI No. 11 of 1999. He said the Appellants were employed before the said circular. He contended that as they were employed before the said circular came into use, the Industrial Court erred on revision when it held that exhibit P2 W ARAKA WA UTUMISHI NA. 11 OF 1999 does not apply to them. · Mr. Semgalawe submitted that the circular exhibit P2 did apply to them as they had acquired the status of an employee on . - " contract of service during the 3 years of continuous employment with the Respondent. He said the problem was with the Managers and

Directors of different sections and Divisions who were instructed to change their mode of employment which they did not do. He contended that the failure by the said Managers and Directors to change their employment status should not be placed on the Appellants. He referred us to paragraph 3 of exhibit P2. He submitted that as the Appellants had acquired the status of employees on a written contract of service at the time when ' I '' 5 exhibit P2 was issued they were entitled to the m1n1mum salary and other allowances. We think Mr. Semgalawe 1s quite right 1n his submission above. At page 3 of his written submissions, counsel for the Respondent Mr. Msuya stated that exhibit P2 was issued by the Respondent in 1999 and that the Appellants were excluded. On our part, we think that the Appellants were not excluded. First, at the time when exhibit P2 was issued, the Appellants had an oral contract of employment which had not been recorded by opening the office personal files. We think that from the date when the circular exhibit P2 was issued onwards, the Respondent's policy of employment changed from what it used to be into what exhibit P2 said it should be. Exhibit P2 required that with the exception of workers on daily pay, the Managers had to fill a special employment form for all workers on oral contract of service. The words "kuanzia 6 sasa mtu yeyote atakayeajiriwa" appearing

in paragraph 1 of exhibit P2 and the words "ni lazima ajaziwe form maalum ya kumbukumbu ya mkataba wa kazi usio wa maandishi" appearing in the same paragraph did not refer to new employees only. It referred to all employees new and old such as the Appellants. In our opinion, a circular such as exhibit P2 could not · cover new employees and fail to cover existing employees such as the Appellants who had continuously worked for the Respondent for about 3 years on a meagre monthly salary of Tzs.50,000/=. Usually, circulars are issued to cater for existing situations and not non existing situations. In our view, a circular which caters for non existing situations is invalid. That is why we hold that exhibit P2 covers the Appellants. But as the question of overtime was not in issue before the Industrial Court, we hold that exhibit P3 does not apply. For many years the Appellants . - J '' 7 struggled in their lives on a small salary of Tzs.50,000/=. Thus, they deserve to be paid the difference between 50,000/= and 138,000/= which was the minimum salary per month. For these reasons, we allow this appeal with costs.

JUDGE 12/8/2013 . ' A . . . Munisi J~GE 1 12/ 2013 l. ~·;1 ~ it . ' 8 Delivered in open court this 12 th day of August, 2013 in the presence of the Appellants and Miss Grolia Kisangi for the .. Respondent. ~ A.F. Shangwa

JUDGE 12/8/2013 .i.'·