20051108 TZHC Dar es Salaam

1 THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA {DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 41 of 2004 {Originating from Kisutu RM's Court Empl.Cause No.187 /2002) MIC TANZANIA LIMITED ..................... APPELLANT Versus ABDALLAH NYAGGA ............................ RESPONDENT JUDGMENT ORIYO,J: When the appellant terminated the services of the respondent; the Minister for Labour ordered reinstatement pursuant to the provisions of SECTION 40A(3) of the Security of Employment Act, Cap 574 as amended by Act No.1 of 1975. The Minister also ordered that the respondent be paid all his dues as well. However, the appellant was reluctant to receive the respondent back in employment and instead opted to pay him statutory compensation pursuant to the provisions of SECTION 40A(5) of Cap 574, as amended by Act No.1 of 1975. The respondent, received from the appellant shs.2,260,000/= being statutory compensation due. • - '.t 2 Thereafter the respondent initiated Employment Cause No.187/2002 in the then District Court of Ilala at Kisutu. His claims were for further and adequate terminal benefits as required by law. He claimed for a sum of money to pay for his repatriation and that of his family. He also claimed for fare to transport his luggage to his home place in Magu, Mwanza. His third claim was for subsistence allowance at shs.40,000/= from date of termination to the date the repatriation and fare to transport his luggage were paid. The trial court, learned S.E. Mallow, Resident Magistrate found for the respondent. He held that the appellant had wrongly paid statutory compensation to the respondent in lieu of reinstatement because the appellant had no such choice in law. He ordered the appellant to make additional payments to the respondent as follows:- (i) Repatriation cost for the plaintiff, his family and luggage to Magu Mwanza, shs.1,126,600/= (ii) Payment of subsistence allowance from date of termination to the date of repatriation at the equivalent rate of one month's salary (iii) Interest. The appellant was aggrieved and filed four grounds of complaints against the trial court decision:- Ground one of appeal stated:- 1. That the court erred in holding that the appellant had no option to pay statutory compensation and 3 twelve months wages as he did under Section 40A(S) of the Security of Employment Act, 1964, Cap 574, in lieu of reinstating the respondent. The Minister's decision to reinstate the respondent was made on 4/4/2002. The decision was made under SECTION 40A(3). However SECTION 40A(S) states as follows:- 'Where a reinstatement or re-engagement has been ordered under this section and the employer refuses or fails to comply with the order - (a) ---N/A (b) in the case of an order made by the Minister on a further reference to him, within fourteen days of the order being made by the Minister, the employer shall be liable to pay the employee compensation ---" ( emphasis supplied) Upon a close reading of this provision, it is plain that under the provisions of Section 40A subsection (S)(b), the employer has to comply within 14 days, that is, by 18/4/2002, the appellant should have reinstated the respondent. The appellant was taken to have refused or failed to reinstate after 18/4/2002 and immediately thereafter the appellant became liable to pay the respondent statutory compensation and twelve months wages. The appellant had f 4 an option to reinstate or pay compensation to the respondent. He exercised the option in terms of SECTION 40A(S)(b) to pay. On the basis of the law above and the Court of Appeal decisions in the cases of PAUL SOLOMON MWAIPYANA vs. NBC HOLDING CORPORATION, C/A No.68/2001 and PIUS SANGALI AND OTHERS vs. TANZANIA PORTLAND CEMENT, C/A 100/2001 (both unreported) Ground one of appeal has merit and is allowed. Ground Two of appeal stated:- 2. That the court erred in holding that even after the appellant had opted to terminate services of the respondent by paying remuneration under Section 40A(5), he was not discharged from liability over the respondent. This ground of appeal is similar to ground one. In view of the law and the decision made on Ground One of Appeal; this ground also succeeds. The appellant was discharged from liability to the respondent after exercising the option to pay compensation to the respondent in terms of SECTION 40A(S)(b) of the Security of Employment Act. Ground Two of Appeal is allowed. Ground Three of appeal stated:- 3. That the court having properly held that the respondent's place of engagement was Dar es Salaam, it erred in holding that the respondent was entitled to repatriation costs for himself and his family. 5 SECTION 53 (l)of the Employment Ordinance stipulates situations where an employer is liable for the repatriation of an employee and his family. It provides as hereunder:- "53(1) Every employee who is a party to a contract and who has been brought to the place of engagement QY the employer --- shall have the right to be repatriated at the expense of the employer to his place of engagement in the following cases:- (a) _ _ _ _ _ (e)" (emphasis supplied); that is due to expiry of contract, sickness of employee, termination of contract by consent or by a court order. For the respondent to benefit under this provision, he ought to have proved at the trial that his place of engagement was Magu - Mwanza. He failed to prove that at the trial. Evidence on this can be found at page 7 of the typed judgment of the trial court where it is stated:- "As regards the 1st issue the answer is very simple --- I have already demonstrated above that it is not disputed that the plaintiff was engaged in Dar es Salaam and therefore for this person it is clear and safe to conclude that Magu is not the place of engagement." This decision of the trial court disentitled the respondent from the claim of repatriation expenses to Magu - Mwanza because he did not meet the criteria set out in Section 53(1)(a) to (e); (See this court's 6 decision in the case of YUSUPH MFAUME MROPE AND 127 OTHERS vs. TANZANIA HARBOURS AUTHORITY, DSM Civil Appeal No.31 of 1999, unreported) Similarly for the respondents family to be entitled to repatriation expenses, SECTION 53(2) of the Employment Ordinance provides:- "(2) where the family of the employee has been brought to the place of employment by the employer or by any person acting on behalf of the employer, the family shall be repatriated at the expense of the employer whenever the employee is repatriated or in the event of his death." (3) The expenses of the repatriation shall include (a) traveling and subsistence expenses or rations during the journey, and (b) subsistence expenses --- during the period if any between the date of termination of the contract and the date of repatriation." , The respondent failed to prove at the trial that his family was brought to Dar es Salaam (place of engagement) by the appellant. Similarly, the claim for repatriation expenses for respondent's family falls for the same reason. • I 7 Ground Three of Appeal has merit and is allowed. Ground Four of appeal stated. 4. That even if the respondent is entitled to be repatriated and his family, the court erred in awarding the respondent subsistence allowance from 20/5/2002 to the date of repatriation. I have allowed ground three of appeal that the respondent is not entitled to repatriation expenses for himself and his family to Magu - Mwanza. That suffices to dispose of this ground of appeal because in terms of SECTION 53(3) above; repatriation expenses include "subsistence expenses"- The respondent is not entitled to subsistence allowance because the claim has no l§_g to stand on, as it were. The fourth ground of appeal is also allowed. In the result, the appeal is allowed. I make no order for costs due to the surrounding circumstances. K.K. ORIYO, JUDGE 8/11/2005