manager direcore sinza tower secondary school vs fadhili rashid ally and another 2020 tzhcld 3783 23 october 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 573 OF 2019 MANAGING DIRECORE, SINZA TOWER SECONDARY SCHOOL............................ APPLICANT VERSUS FADHILI RASHID ALLY........................... 1st RESPONDENT CHRISTOPHER GAGI................................ 2nd RESPONDENT JUDGMENT Date of last Order: 18/08/2020 Date of Judgment: 23/10/2020 Z.G.Muruke, J, Applicant managing director of Sinza Tower secondary school being dissatisfied by the decision and award of CMA in consolidated dispute number CMA/DSM/ARB/R.88/18 and number CMA/DSM/KIN/R.89/18, instituted by respondents on allegations of unfair termination. CMA decided in favour of respondent by awarding each of them 4,280,769 Tshs, Applicant filed present revision raising following issues for determination. (i) Whether based on the evidence on record the respondents were the employee of the applicant. (ii) Whether the respondents were terminated on their contract of employment came to an end by effluction of time. (iii) Whether the arbitrator properly interpreted the provisions of Section 15(6) of the Employment and Labour Relations Act 2004. 1 (iv) Whether the arbitrator was justified in awarding the remedies. On the date set for hearing advocate Odhiambo Kobas represented applicant, while respondents were unrepresented. To accommodate un represented respondents court ordered disposition of the revision by way of written submission. Same was filed hence this judgment. On issues number one as to whether respondents were employee of the applicant, Mr. Odhiambo Kobas submitted that; It was testimony of the applicant's Owner and School manager Mr. Isack Bugali Mwamasika (DW1) that a school manager in-charge of, amongst other things employment of teachers and non-teaching staff, did not employ the respondents as teachers in his school. He elaborated on a rigorous interviewing process which teachers undergo, before being employed in his school and that upon being employed they are giving one year contract of employment. He denied to have ever employed, the respondents. In his evidence contained on page 18 to 25 of the CMA typed proceedings, he testified as follows at page 19 line 14 to 18:- "Namaanisha kwamba sijawahi kutangaza nafasi ya walimu pale na wakatokeza watu kama hawa na wakafanyiwe interview na kuajiriwa kwa taratibu za shule yangu na kuwaachisha kwa taratibu za kimsingi. Sijawahi kuwaajiri wala kuwaachisha kimsingi nimekuja kukutana nao baad aya kuletewa summons." When being cross examined by the 2nd respondent Mr. Christopher Gagi regarding teachers signing attendance, he said on signing attendance it is for teachers who were employed by him and it is the headmaster who oversees the attendance register properly signed by employed teachers. 2 But the headmaster does not have powers to employ; this he said on page 21 line 4 to 6 that:- "Katika hilo nimeweka mwalimu mkuu ndiye anayefanya kazi hiyo. Lakini huyo mwalimu mkuu hana mamlaka ya kuajiri." The witness (DW1) when being cross examined on his headmaster knowing the presence of the respondents at school on a one year contract of employment; he denied and attributed the same to their personal arrangement with the headmaster which are not binding upon the school. The witness said as follows at page 22 line 16 to 17:- "Hizo ni personal arrangement za nyie na mwalimu mkuu. Hayo ni makubaliano yako na mwalimu mkuu." Respondents on the other hand submitted that, they had valid contract with applicant hearing signed with the head master of the school. More so, they performed their duties properly as assigned by head teacher, referring the evidence PW1 and PW2 who were students by the time they were employed by the applicant. Respondents insisted they had legal binding contract, thus CMA award should be uphold. From submission by both parties issues before me is whether there was legally binding agreement between the applicant and respondent. It is worth noting that Contract is an agreement enforceable by law. For a legal contract to exist, it is necessary to know the basis rules and principles of law of contract before any contract, because no contract is going to be legally binding if it is not done according to prescribed procedures and rules contained in the law of contract Act Cap 345. Making 3 of a legally binding contract is the aim of every individual or artificial person, who enters into a contract in order to have protection of his/her interest or rights. Therefore, making a mere contract, which does not conform to basic principles, rules and prescribed procedures makes a contract void, voidable or unenforceable. Thus, the maker find himself/herself, in a loss since the same cannot be enforcorced by the court of law due to its nature which is based on illegality. According to Section 10 of the Law of Contract Act Cap 345, all agreements are contract if they are made by the free consent of parties competent to contract, for lawful consideration, and with a lawful object. Consent of the parties is one of the essential of contract. There must be mutual assent of the parties involved. Meeting of the mind must be discovered by the court in the event of dispute because there is no contract if parties were not assented to the same thing. Having explained in detail position of the law, for a legal binding agreement, looking at the facts of the case before is clear that, there is dispute as to whether there exist binding agreement for lack of capacity of the parties to the employment contract. From the evidence of DW2 Eric Kalaliche headmaster of Sinza Tower Secondary School, reflected at page 35 of CMA typed proceedings as follows: S: Mamlaka ya kuajiri yapok wa nani. J: Yako kwa school manager S: Je wee umewahi kuajiri? J: Mimi nimewahi kuajiri pale ninapopata ruhusa kutoka kwa school manager. 4 Respondent argument from CMA to this court, claims to have been employed by the applicant and thus their contract is binding upon the applicant. Answer to this is found in the evidence DW2 the headmaster of the school Erick Kalaliche in examination in chief at page 28 of CMA typed proceedings as below: S: Umeeleza tume kwamba mwenye mamlaka ya kuajiri ni school manager. Je wakati wanafanya kazi kwa part time na kwa mkataba waliajiriwa na wewe au na school manger? J: Hawa kuajiriwa na school manager. S: Ulipata kibali toka kwa school manager? J: Sikupata kibali toka kwa school manager isipokuwa nilifanya hivyo baada ya kuona kuwa nahitaji na pia kwa sababu tulikuwa nao huku nyuma na tume wafahamu basi tukaona tuendelee nao. J: Hapana S: Umewahi kupewa/kusaini mkataba wa ajira na school meneja Sinza tower Secondary School J: Hapana Evidence of PW3 complainant proved that he did not sign contract with school manager DW1. Equally evidence of PW4 Fadhili Rashid Ally, while being cross - examined by the applicant counsel at page 81 of CMA proceedings, admitted that he has not been interviewed by school manage From the evidence DW1, DW2, PW3 and PW4, it is vivid clear that respondent signed contract with DW2 the head master who has no 5 capacity to enter into contract. From the evidence above it is clear that, Dw2 had no capacity to enter into contract with respondents. More so, evidence PW3 Christopher Gagi at page 67 of the typed proceedings reveals that, PW3 does not even know school manager whom he claims to have employed him. For clarity PW3 evidence while being cross - examined by applicant counsel at page 7-68 read as follows: S: Hebu ieleze tume hii uliwahi kuitwa kwenye interview pale shuleni Sinza Tower. J: Hapana, sijaitwa interview pale. Nilifanya interview binafsi. S: Hebu ieleze tume, unamfahamu school manager. J: Simfahamu There is no dispute from the evidence that, Headmaster of the school embarked a contract with two respondents in the cause respondents worked at school without any interruption by applicant, who benefited from the work done by respondent. Master is direct liable for the acts of his servant done for his benefit. Thus there exist binding contract between applicant and respondents from January, 2017 to January, 2018. Definitely applicant is vicariously liable for the act of the Headmaster of the school. Whether there was any termination, evidence from the applicant proved that there was contract of one year between applicant and respondents from January, 2017 to January, 2018. Such evidence has not been shaken even by complainants at CMA now respondent. They did not produce evidence to the contrary. The fact that applicant failed to produce contract of employment to prove that there was written contract, is not 6 sufficient in eyes of law to hold that, respondent had more than one year contract. To this court, evidence available applicant had one year contract with respondents from January, 2017 -January,2018. Thus contract come to an end upon expiray of the same. Respondents entitled to be paid their entitlements of one year contract from January, 2017 - January 2018 if not paid. Argument by applicant that there was no legal binding contract with respondent is dismissed. Revision allowed to the extent shown. A part from respondents entitlement from January, 2017 - January, 2018 if not paid, the rest of the award is quashed and set aside. Z.G.WirukesF JUDGE' < 23/10/2020 Judgment delivered in the presence of Lulu Mbiga for the applicant and in the presence of the two respondents in person. Z.G. Muruke JUDGE 23/10/2020 7