miraji hemed majaliwa another vs deutch geslischft fur technische zusammenardeit 2020 tzhcld 84 3 april 2020

THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR-ES-SALAAM CONSOLIDATED REVISION NO. 09 AND 59 OF 2019 MIRAJI HEMED MAJALIWA................................... I st APPLICANT GERALD BONIFACE KWINGWE (NEXT KIN AND ESTATE ADMINSTRATION OF ANDREW BONIFACE KINGWE)............................................................. 2nd APPLICANT VERSUS DEUTCH GESLISCHFT FUR TECHYNISCHE ZUSAMMENARDEIT (GTZ)-GMBH-TECHNICAL COOPERATION-FEDERAL REPUBLIC OF GERMANYG TZ.................................................. RESPONDENT JUDGEMENT Date of Last Order 27/02/2020 Date of Judgment 03/04/2020 MWIPOPO. J This is consolidated revision application filed in this Court against the decision of the Commission for Mediation and Arbitration (CMA) which was delivered on 28/12/2018 by Hon. Massawe, Arbitrator. Miraji Hemed Mjaliwa and Gerald Boniface Kwingwe (Next Kin and Estate Administrator Of Andrew Boniface Kingwe) who were plaintiffs at the CMA and Deutch Geslischft Fur Techynische Zusammenardeit (Gtz) -Gmbh - Technical Cooperation - Federal Republic Of Germany - Gtz, who was respondent at the CMA, filled Revision application before this court against the decision of the CMA in labour dispute no. CMA/DSM/LAB/15/17/708. Miraji Hemed Mjaliwa and Gerald Boniface Kwingwe (Next Kin and Estate Administrator of Andrew Boniface Kingwe) instituted Revision no. 9 of 2019, whereas the Deutch Geslischft Fur Techynische Zusammenardeit (Gtz) - Gmbh - Technical Cooperation - Federal Republic Of Germany - Gtz instituted Revision no. 59 of 2019. Both Revision application were preferred under section 91(1) (a) (b), (2) (a) (b) (c) and section 94 (1) (b) (i) of the Employment and Labour Relations Act, No. 6 of 2004 and Rule 24 (1), (2) (a) (b) (c) (d) (e) (f), (3) (a) (b) (c) (d) and Rule 28 (1) (c) (d) (e) of the Labour Court Rules, GN No. 106 of 2007. The grounds for revision in Revision no. 9 of 2019 were as follows; i. That the Arbitrator erred in law and fact in awarding only ten months arbitral award that is Tshs. 1,463,000/= without justification of the said minimal amount. [2 ] ii. That the Arbitrator erred in law and fact after holding that the procedure was not followed yet he did not re-instate the applicant or order for payment in lieu thereof. iii. That the award of the trial arbitrator is otherwise faulty and bad in law. iv. That the arbitrator erred to hold the applicants' suspension from the work that there was a substantive reason to suspend the applicants' employment; and that the respondent had no evidence tendered to prove the said allegation. v. That the arbitrator erred to hold that the respondent used a fair procedure that the applicant who was terminated from employment did not prove at all and that the applicants was never called upon to defend himself against the allegations levelled against. vi.That the arbitrator erred in law and fact for failing to properly evaluate evidence adduced by parties for general damages as compensation claimed by the applicants for injury as mental torture. In Revision no. 59 of 2019, the grounds for revision were; i. That the honourable Arbitrator immensely erred in law to entertain the matter while the commission had no jurisdiction and it was already decided so by the same CMA. ii. That honourable Arbitrator erred in fact and law by departing from the decision of another arbitrator on the same matter without power to do so. iii. The Arbitrator erred in law by departing from the binding decision of the Court of Appeal without giving reasons for doing so. The sequence of events leading to the present application were that, Miraji Hemed Mjaliwa and Andrew Boniface Kingwe were employed by respondent as a Finance officers on divers' dates. They were terminated on 31st October 1992 for no reason. Their salary payment were withheld in full pending settlement of their charges in court. After being acquitted by the court, they referred the matter to the CMA and prayed for compensation for unfair termination. CMA in its decision awarded applicants Tsh 1,463,000/= from remained months of their fixed term contract. The CMA award aggrieved both parties and each filed Revision application in this court. Miraji Hemed Mjaliwa and Gerald Boniface Kwingwe (Next Kin and Estate Administrator of Andrew Boniface Kingwe) [4 ] instituted Revision no. 9 of 2019, whereas the Deutch Geslischft Fur Techynische Zusammenardeit (Gtz) - Gmbh - Technical Cooperation - Federal Republic Of Germany - Gtz filed Revision No. 59/2019. The said two applications were consolidated by Order of this Court dated 21th August, 2017 after parties agreed to the said consolidation. At the hearing of the consolidated revision applications applicant (Miraji Hemed Majaliwa and Gerald Boniface Kwingwe) was represented by Mr. Michael Mgombozi Personal Representative whereas the respondent (GTZ) was represented by Mr. Evold Mushi learned counsel and hearing was proceeded orally. Mr. Mgombozi prayed to adopt the affidavit of Miraji Hemed Mjaliwa and Gerald Boniface Kwingwe (applicants in Revision no. 9 of 2019) to form part of his submission. He then submitted that the arbitrator erred in law by awarding applicants with benefits not pleaded at the CMA in which the total amount awarded was shilling 1,463,000/=. He submitted further that the respondent terminated the applicants with unfair reason while having a pending criminal case which is contrary to Section 37(5) of ELRA. [5 ] He argued that since the applicants were acquitted for the criminal case on 31/07/1997 that is the time for the employer to start disciplinary proceeding against applicants. He further argued that the right to be heard was not observed by terminating the applicants without giving them an opportunity of defending themselves. To support his argumentation he referred the case of Bidco Oil and Soap Ltd vs. Robert Matonya & 2 Others, Revision No. 70 of 2009, HC at DSM (Unreported); and Abdallah Singano vs Stanbic Bank (T) Ltd, Revision No. 358 of 2015, High Court, Labour Division, at Dar Es Salaam (Unreported). He argued further that the respondent did not adduce any evidence to prove his termination against applicants contrary to Section 39 of ELRA. He was of the view that the respondent did not adhere to the required procedures for termination to justify procedural fairness. Thus, he prayed for the court to quash and set aside the CMA award. In reply, regarding the issue of fairness of termination, Mr. Mushi submitted that the Hon. Arbitrator found the termination of applicant's employment was unfair, hence awarded applicants 8 months' salary each which were the period remaining in their fixed contract. He further argued [6 ] that the applicant to be paid from the time of termination till this time has no legal basis on the ground that applicants were employed on fixed term contract. On the issue of reason for termination, Mr. Mushi submitted that according to the law applicable at that time of their termination, the employer had a right to terminate employee's employment without giving reasons of termination for employees with a contract of specific period of time. To support his submission he cited the case of Joseph Mutashobya Vs. Kibo Match Group Ltd, [2004], TLR pg 242. Regarding the issue of award, Mr. Mushi argued that on his opinion that the award of CMA for the respondent to pay the applicants 8 months was not lawfully as the respondent followed all procedure according to the labour laws applicable at the time of applicant's termination. He argued that even if the CMA decision was valid, the CMA award which was given to the applicant was what they deserve. On the submission that the applicants were punished twice for the same offence, he argued that the respondent is not a criminal machinery [7 ] therefore he is not the one who punish the applicants for the criminal charges. Thereafter Mr. Mushi proceeded to submit on the grounds of revision in revision No. 59 of 2019. First, he prayed to adopt his affidavit to form part of his submission. Then he submitted on the first issue that the Hon. Arbitrator erred in law to entertain the matter while the commission had no jurisdiction. He argued that the same case was already decided by the same CMA in the labour dispute no. CMA/DSM/ILA/R333/15. He argued further that according to Written Laws (Misc. Amendment) Act No.2 of 2010 which amend the 3rd schedule of the Employment and Labour Relation Act, 2004, the labour dispute that arouse before 2007 must be brought through reference by labour commissioner. The labour dispute no. CMA/DSM/ILA/R333/15 between the parties was struck out for being filed at CMA without being referred to the commission by the Labour commissioner. He was of opinion that the only option available for the applicants was either to send their dispute to the Labour Commissioner so that the [8 ] Commissioner can make reference of the same to the CMA or to challenge the same by way of revision, but the applicants decided to re-institute the same in the CMA contrary to the law. On the his second ground of revision that the honourable Arbitrator erred in fact and law by departing from the decision of another arbitrator on the same matter, he submitted that the Hon. Arbitrator erred in law and facts by departing from the decision of another arbitrator on the same matter without having power to do so by allowing applicants to refile the labour dispute No. CMA/DSM/ILA/LV\B/15/17. Despite the preliminary objection raised regarding the same dispute, the Hon. Arbitrator hold that CMA had jurisdiction and proceeded to hear the matter. On his 3rd ground of revision he submitted that the Hon. Arbitrator erred in law by departing from binding decision of the court of appeal without giving a reason of doing so. He argued that the respondent submitted on position of the law by referring to the KIBO'S CASE, the case of Court of Appeal where by its decision was binding the arbitrator and in case of departure the arbitrator has to give reasons to the same. He prayed for the applicant's application to be dismissed. [9 ] In rejoinder, Mr. Mgombozi submitted in respect of the first issue that the dispute No. CMA/DSM/ILA/R.333/15 is different case from the dispute No. CMA/DSM/ILA/LAB/15/17. Therefore it is not true that the prayers was struck out. Even this court did find that there was labour dispute and it was ordered the same to be instituted at CMA. He went on by replying that when the case was struck out the only option is to bring the matter before CMA. On second issue that the matter arouse before 2007 hence it were to be decided by the CMA after reference is made by Labour Commissioner, Mr. Mgombozi maintained that Commission was supposed to follow Rule 8 (l)(c)(d) of G.N 42 of 2007. And on the other issue, third one, Mr. Mgombozi reiterated his submission in chief. After carefully examined parties submission and considering CMA records of proceeding the main issues to be determined are as follows; a) Whether CMA has jurisdiction to entertain the matter. b) Whether termination of Miraji Hemed Mjaliwa and Andrew Boniface Kingwe employment was fair. c) Whether CMA award was properly procured. [10 ] Starting with the determination of the first issue whether CMA has jurisdiction to entertain the matter, Mr. Mushi submitted that the Hon. Arbitrator erred in law to entertain the matter while the commission had no jurisdiction. He was of the view that the same case was already decided by the same CMA in the labour dispute no. CMA/DSM/ILA/R333/15. He relied on Written Laws (Miscellaneous Amendment) Act No.2 of 2010 which amend the 3rd schedule of the Employment and Labour Relation Act, 2004. The amendment provides that labour dispute that arouse before 2007 must be brought through reference by labour commissioner. The labour dispute no. CMA/DSM/ILA/R333/15 between the parties was struck out for being filed at CMA without being referred to the commission by the Labour commissioner. On the other hand, Mr. Mgombozi submitted that the dispute No. CMA/DSM/ILA/R.333/15 is different case from the dispute no. CMA/DSM/ILA/LAB/15/17. Therefore it is not true that the prayers was struck out. I agree with the submission by Mr. Mgombozi that the labour dispute no. CMA/DSM/ILA/R.333/15 before the CMA is different from the labour dispute no. CMA/DSM/ILA/LAB/15/17. In labour dispute no. CMA/DSM/ILA/LAB/15/17 the matter was no struck out but was held on mi merits. Therefore the arbitrator in labour dispute no. CMA/DSM/IU\/LAB/15/17 was not bound by the decision of another arbitrator in another labour dispute which is dispute no. CMA/DSM/ILA/R.333/15. Mr. Mushi relied on Section 42 of the Written Laws (Miscellaneous Amendment) Act No. 2 of 2010, paragraph 13(1) and (5) as amended in the Third Schedule of the Principal Act, 2004 which provided that the labour dispute that arouse before 2007 must be brought through reference by labour commissioner. The section Provides that;- 42. The principal Act is amended in the Third Schedule by deleting paragraph 13 and substituting for it the following new paragraph: 13.- ( 1) A ll disputes originating from the repealed laws shall be determined by the repealed substantive laws applicable immediately before the commencement o f this Act. (2) A ll disputes pending and all applications for executions filed arising from the decision o f the Minister in the subordinate courts prior to 'the commencement o f this Act shall proceed to be determined by such courts. [12 ] (3) A ll disputes pending - (a) revision o f the defunct Industrial Court o f Tanzania shall be determined by a panel o f three Judges o f the Labour Court; and (b) hearing before the Industrial Court o f Tanzania shall be determined by the Labour Court. (4) A ll appeals and applications for judicial review originating from the Industrial Court o f Tanzania pending in the High Court shall be determined by the High Court. 5) The Commission shall have powers to mediate and arbitrate all disputes originating from the repealed laws brought before the Commission by the Labour Commissioner and all such disputes shall be deemed to have been duly instituted under section 86 o f the Act. However the paragraph 13(5) of the third schedule to the Employment and Labour Relations Act, Cap. 366, was amended again by Written Laws (Miscellaneous Amendments) (Act No. 2) of 2016 in Section 24 by deleting the word "by Labour Commissioner" that appears in the sub [13 ] paragraph (5). After the amendment, now the paragraph 13(5) of the Third schedule to cap. 366 reads: (5J The Commission shall have powers to mediate and arbitrate all disputes originating from the repealed laws brought before the Commission and all such disputes shall be deemed to have been duly instituted under section 86 o f the Act. From the above amendments it is clear that the Commission have powers to mediate and arbitrate all disputes originating from the repealed laws brought before the Commission and the disputes shall be deemed to have been duly instituted. Therefore, the present application respondent was terminated on 31st October 1992 while the repealed laws were operational. The applicants referred the dispute to the CMA on 30/01/2017 when the 2016 amendment was operational. For that reasons the dispute was properly instituted in the CMA. Therefore the answer to the first issue is negative. In regards to the second issue whether termination of Miraji Hemed Majaliwa and Andrew Boniface Kingwe employment was fair, the evidence available in the record (Extension of contract - exhibit D3) shows that Miraji Hemed Majaliwa and Andrew Boniface Kingwe contract was [14 ] extended for one year from 1st of July, 1992 till 30th of June, 1993. However, the termination letter - exhibit D5 shows that their contracts were terminated on 31st October 1992 for no reason. The exhibit D5 stated that salary payment were withheld in full pending settlement of their charges in court. Mr. Mgombozi was of the opinion that the respondent did not adduce any evidence to prove his termination against employers was fair. He submitted further that the employer did not adhere to the required procedures for termination to justify procedural fairness including the right to be heard. The right to be heard was not observed by the employer for terminating the employees without giving them an opportunity of defending themselves. It is clear from the evidence that the employer terminated the employees' contract without giving the reason for termination and without giving them right to be heard. The right to be heard is among the principle of natural right that has to be adhered in any proceeding especially in such circumstances where it appears that the termination was caused by the charges facing the employees. Exhibit D5 shows that employees' salary payment were withheld pending settlement of their court charges. Thus [15 ] the employees were condemned and punished by the employer without being heard. On the other hand Mr. Mushi submitted that according to the law applicable at that time of their termination, the employer had a right to terminate employee's employment without giving reasons of termination for employees with a contract of specific period of time. To support his submission he cited the case of Joseph Mutashobya Vs. Kibo Match Group Ltd, [2004], TLR pg 242. I agree with Mushi's submission that according to the law applicable at that time of their termination, the employer had a right to terminate employee's employment without giving reasons of termination for employees with a contract of specific period of time. Paragraph 4 of Contract of employment - exhibit D1 provides that the employment may be terminated by either of the contracting parties by giving a month's written notice in advance to that effect. The exhibit D1 provides further in paragraph 6 that the employer shall pay to the employee at the end of each calendar month of his service. The argument that the employer had a right to terminate employee's employment without giving reasons of termination for employees with a [16 ] contract of specific period of time, does not mean that the employer was not supposed to follow procedure of terminating the contract according to its terms. In Joseph Mutashobya Vs. Kibo Match Group Ltd case Court of appeal held that there was no breach terms of fixed contract for the reason that employer gave the employee three months' notice as per requirement of the contract. Therefore, failure of the employer to adhere to the term of contract amount to breach of contract of employment. In the present case, the letter of termination of contract of employment shows that the employees were given one month notice of termination of their employment as provided in paragraph 4 but were denied payment of their salaries for the period coming to the date of termination contrary to paragraph 6 of the contract. According to Exhibit D5, the employees remaining salaries were withheld in full until charges against them are settled in court. It is my opinion that the reason for terminating employees contract is the charges they were facing in Court. The charges which the employer is condemning that they have to settle in court without giving them right to be heard. Therefore there was a breach of contract on the part of the employer. [17 ] From the above, It is my finding that there was a breach of contract by withholding salaries of Miraji Hemed Mjaliwa and Andrew Boniface Kingwe after giving them one month notice of the termination of contract of employment. The employer was supposed to pay for their salaries up to the time the termination was effective. Further, there was a breach of contract by the act of the employer to terminate employees' contract of employment on allegation of criminal charges without availing them right of hearing. From the above, I agree with the Arbitrator's holding that the contract was broken, and the employees suffered from such a breach. Therefore the answer to the second issue is that there was breach of contract of service hence the termination did not follow the procedure. The last issue is whether CMA award was properly procured. The CMA awarded each of the employees (Miraji Hemed Mjaliwa and Andrew Boniface Kingwe) payment of 10 months that remains in their contract of employment which was breached by the employer. As I have held in the second issue that the contract of employment has been broken, then the party who suffers by such a breach is entitled to receive, from the party who has broken the contract, compensations for [18 ] any loss or damage caused to him thereby. The evidence available shows that the employees' contract was renewed for one year on 1st of July, 1992 until 30th June, 1993. Unfortunately they were terminated on 28th of September, 1992 before the employment contract came to an end. Therefore 10 months was still remaining from their contract of employment. The CMA awarded each of the employee payment of 10 months salaries for the breach of contract. This was the remaining salaries for the remaining period of their contract service. It is my finding that the CMA award was justified. Thus the answer to this issue is positive. From the above, I find consolidated revision applications no. 09 of 2019 and no. 59 of 2019 have no merits and they are dismissed. The CMA award is hereby upheld. A.E. Mwipop JUDGE 03/04/2020 [19 ]