moses francois kwelukilwa vs aquabay merchandise limited 2021 tzhcld 271 7 july 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 39 OF 2020 BETWEEN MOSES FRANCOIS KWELUKILWA........................................... APPLICANT AND AQUABAY MERCHANDISE LIMITED......... RESPONDENT JUDGMENT Date of Last Order: 22/06/2021 Date of Judgment: 02/07/2021 Z. A. Maruma, J. Applicant Moses Francois Kwelukilwa, as the then employee of AQUABAY MERCHANDISE LIMITED, is aggrieved by the decision of the Commission for Mediation and Arbitration in Labour Dispute No. CMA/DSM/KIN/R. 192/19/88 dated 31st December 2019. He filed this application before this Court to challenge an award of CMA. The background of the dispute between applicant and his employer (respondent herein) resulting from employment relationship started in May 2016 when the applicant was employed as a sales person. The applicant worked under the respondent's company since 2016 till 22nd December 2018 when the theft allegation arose and i resulted into the dispute which ended up with the institution of a dispute before the Commission for Mediation and Arbitration on 11th March 2020. The dispute was heard and determined by the Commission on the substantive issues. The award thereof was issued and delivered on 31st December 2019. Aggrieved by the CMA decision, the applicant initiated this revision. * \ V’ This application was preceded by two preliminary objections which were withdrawn on 04th March 2021. The hearing of this application took place on 22nd June 2021 in the presence of the applicant representing himself and Mr. Paul Makang'a representing the respondent. The application was supported by affidavit of the applicant Moses Francois Kwelukilwa and counter affidavit of Faya Sun, Principal Officer of the respondent company. Both affidavit and counter affidavit were adopted and form part of the submission to this application. With due respect to the submissions made by the applicant, I will summarize his submissions and arguments raised, which centered on the following. The applicant submitted that, he was employed in May 2016 by Aquabay Merchandise Company by the director known as FEI-FEI-SUN. He submitted that, he signed a contract as a sales 2 person with a salary of 600,000/= per month. However, he was not given a copy of the said contract to date as he has been told by the director by that time they were proceeding with other formalities including NSSF and ID cards. He submitted that, his duty was to sell PVS, PPR pipes and other finishing materials bathtubs, firefighting materials and doing marketing. He said, throughout the period he worked since 2016 there was no any dispute and his salary was paid through the signed vouchers. He further submitted that from January 2018 he continued with marketing and sales to various companies. Not only that, but he was given a target of 100 ml and commission of 1% of the sales annually after reaching the target. He said that, in December 2020 there was an annual meeting to do assessment, and he was informed that his performance needed to improve. However, he submitted that by that time he had already met the target and approaching the sales of 200 ml. He pointed out that, on 22nd December, they were about to close the office for annual leave. He submitted that, he made a 3 follow-up for payment to the accountant, and he was told to wait till the end of the month that was 31st December 2018. He further submitted that on the same day, the office was closed at 12:00 pm, and they departed from the office. However, after sometimes he was called over the phone by his boss and informed that a laptop of an accountant was stolen and told not to be given salary until he returned the laptop. He winded up that, on 31st December 2018 applicant was arrested due to the alleged theft till 01/01/2019. This is when he stops to go to work as he was requested I? to report at police station every day for the alleged criminal charge . | against him. From his submission, his main arguments were that, the I decision of CMA did not consider his evidence as to why he did not attend work and the exhibits tendered at CMA. Also, he submitted that, the CMA take granted the failure to submit the termination letter which has a symbol of the company and considered only oral evidence given by the parties. He argued that, the decision of CMA erred at the last para of the decision to rule out that, the applicant was not terminated based 4 on evidence of DW1 who was a receptionist and not an administrator. Also, he submitted that, DWl's evidence shows that, she was not aware of the disputes and the letters concerned. In his conclusion, he submitted, the award of re-engagement was not properly ruled by the arbitrator without considering the employment relationship that existed between the applicant and the respondent. The applicant submitted that re- engagement will result in the loss of his previous rights such as NSSF benefits, two monthly payments, commission of 1% of sales and a false accusation due to criminal charge. Therefore, the procedure of termination against him was unfair. Responding to the argument raised, Mr. Paul for the respondent contested the application and prayer to set aside the decision of CMA. He argued that, the applicant directed to the issues which do not form part of CMA decision. He reminded this court that the decision of CMA's was based on three issues at page 2 that:- 1. Whether applicant's employment was terminated by the respondent. 2. Whether termination was fair. 3. What are the entitles. 5 According to Mr. Paul all that was stated by the applicant about salary payments, stealing of laptops and criminal case are not related with the CMA's decision. Also, he submitted that, the issues here are the fact that CMA did not consider exhibits such as opening statement and various letters. In arguing this issue, it was his submission that the CMA procedures do not require to consider the opening statement so, this ground should be disregarded. On the issue of letters as exhibit, he submitted that all these were received and marked as exhibit "A5" (A warning letter dated 11/01/2019 titled absence from work without reason), "A6" (a reply letter from applicant dated 21/01/2019) and three letters collectively marked "A7" collectively (a letter of 31/01/2019 a notice of disciplinary hearing, a letter of 06/02/2019 postponed disciplinary hearing and a letter of 08/02/2019). However, he argued that, the Commission found them with no evidential value. He also submitted that the applicant's argument that DW1 was not director or an administrator. He said that was very true as to the fact that she was only a principal officer of the company and the representative, hence, she is a competent person to testify. Mr. Paul 6 added that, the ground is baseless as applicant cannot compel respondent on who can testify before the CMA. He further argued on the issue of applicant benefit and re engagement. He said that, the fact that applicant wants only "stahiki zake na si kurudishwa kazini'. The CMA findings were that the applicant was not terminated and thus why award was re­ engagement and the terminal benefit could not apply as there was no termination. Also, he pointed out that, the CMA Form No. 1 filled by Applicants claimed for salaries for January and February, annual sales Commission and NSSF contributions. These are not terminal benefits to be awarded by the CMA as it has no jurisdiction. Also, he submitted that, the issue of compensation cannot be entertained as it was not part of the claim at CMA, and it is a new claim. He argued that, the fact that the applicant said he cannot go back to the same company, the ground is baseless as there is no evidence that he was mistreated by the company or there is any hardship to do his work. He, therefore, submitted that, there is no ground to disturb the CMA's decision and prayed for this court not to set aside the CMAs decision as it is a legal decision and if the applicant does not want re 7 -engagement he is supposed to go back to work so the termination process to follow or to be entitled to his benefits. In evaluating the arguments raised by both sides and the background of the employment relationship resulted to a dispute. It is an undisputed fact that there was an employment relationship between applicant and respondent. The issue to be determined by this Court is whether said the relation exist or not? And what will be the fate of the parties if there is no termination? This Court goes straight into the issues. Starting with the issue of termination of the employment. It is apparent that, the CMA's decision ruled that, there was no termination as the letter of '’bit termination tendered by the applicant was rejected based on the issue of evidential value. However, the Commission ordered an award of re - engagement, as seen at page 8 of the CMA's decision. This is strange. The law is clear that a remedy of re- engagement is only granted where there is a proof of an unfair termination as provided under section 40 (1) of the E&LRA No. 6 of 2004. Therefore, I find no rationale for the arbitrator to award re- engagement in the absence of proof of termination, as he ruled in his decision. 8 Also, the record shows that, the respondent recognized that the applicant as still an employee of Aquabay Merchandise Limited. This is indicated in the proceedings at page 17 and 20 on the evidence of DW1, the administrative officer who said that, she is still recognized the applicant as their fellow employee. However, she had not seen him since early January 2019. Further to that, DW1 testified that applicant was issued with a letter "A5" of absence from work without reason. She also said the applicant was summoned to appear before a disciplinary meeting, referred to a letter "A7". However, DW1 testified that apart from the referred letters, no action was taken against the applicant neither his absence from work since early January 2019 nor the failure to appear before the disciplinary meeting since 31st January 2019 till the date when she testified before the Commission that was 30th September 2019. When DW1 was questioned by the Commission whether she recognized a termination letter produced by the applicant. Her reply was that, she did not recognize the letter as it is quite different from the letters issued by the company as those marked "A7". On the question on whether they were still recognized him as an employee of their company, her reply was "ndid' and when she was asked whether they were still paying him salaries, DW1 response was that, salary is 9 paid through signed voucher, therefore you cannot be paid without your signature. On the other hand, applicant testified to be issued with a letter exhibit "A5" and his reply though letter exhibit "A6" why he was absent from work. Moreover, the disciplinary meeting was postponed more than one time, and he referred to letters of postponement marked "A7" collectively. He also testified to receive a termination letter on 26/02/2019 which was rejected by the Commission. The A record also shows the evidence of an alleged criminal case against the applicant, a Criminal Case No. 82 of 2019 which was dismissed for want of prosecution marked as exhibit "A4". All these facts above established the existence of purported employment relationship. I came to this finding based on the following reasons. First, the fact that respondent still recognized applicant as their employee is a naked fake. This is on the ground that, every institution has its own disciplinary policy and procedure to regulate employees' affairs. These instruments provide guidance and measures to take in case of any misconduct committed. It is wrong for the respondent not to take any disciplinary action against the applicant for a long period since his absence from io work. The general rule is that, if the employee is absent from work for more than five days, it is the same as he has terminated his employment. Therefore, if the respondent did not know of the whereabouts and reasons of his employee's absence, why did he not take any further step to terminate his employment? Moreover, the if respondent was able to summon applicant to appear before the disciplinary meeting for the reason of his absence from work. Why? The respondent did not call applicant to collect his salary if they still recognized him as their employee. All these questions revealed the doubts on whether there was an employment relationship between the applicant and the respondent. Further to the above ^findings, the law is very clear on procedures to be followed in case the scenario like in this dispute ' "A xagfe,. happened. The employer is duty bound to take necessary steps and action against the employee. However, in this dispute this was the respondent did neither follow those procedures nor taking any action intentionally as he has the knowledge of what is going on between them of which, in my view, was resulted from the criminal allegations as evidenced by exhibit "A4". 11 According to these findings and circumstances of this dispute, it is evident that, the respondent was aware of procedural committed by the company and therefore, they failed to take proper actions against the applicant. This is contrary to section 37 of the Employment and Labour Relations (Code of Good Practices) Rules, GN. No. 42 of 2007. Therefore, failure of the respondent to take appropriate > procedures and steps despite the applicant being absent from his work for a such long time. The evidence that they still recognized him as their employee while they did not pay his salaries and, the evidence that they do not recognize a termination letter adduced by the applicant. Taking into consideration, all these happened in this employment relation. In my view, this is a proof of an implied unfair termination^Respondent was only finding an excuse to be not accountable for his actions, which apparently amounted to unfairness of procedures to terminate the applicant. On the issues of payments of annual sales Commission and NSSF contributions. I agree with the respondent that, these are benefits which cannot to be entertained by neither the CMA nor this Court for lack of jurisdiction. 12 In view of the above findings, I am of the view that, the applicant's employment was impliedly unfairly terminated. The award of re-engagement ruled by the Arbitrator was irrational and is accordingly set aside. Instead, I order the applicant to be paid compensation for unfair termination for 12 months' salaries, unpaid 13