JUDGMENT OFFGRID

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [ARUSHA SUB- REGISTRY]

AT ARUSHA LABOUR REVISION NO. 79 OF 2023 (Arising from Labour Dispute No. CMA/ARS/ARS/301/21/132/21, before Hon. R. Anosisye, Arbitrator) OFFGRID ELECTRONIC TANZANIA LIMITED.............................APPLICANT

VERSUS

RENATUS RWEGUSHORA RESPONDENT

JUDGMENT 07th& 12thNovember, 2024 I.C. MUGETA, J. This revision is against the decision of the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/ARS/ARS/301/21/132/21. The CMA awarded the respondent against the applicant Tshs. 32,070,000/= as compensation for 15 months, severance pay of Tshs. 534,500/=, and one-month salary as notice of Tshs 2,138, 000/= making a total of Tshs. 34,742, 500/= for breach of Respondent's contract of employment. The brief facts of the matter are that on 25/10/2019, the respondent was employed by the applicant in the position of telesales representative. He was employed in that position for a contractual period Page 1 of 6 of one year, subject to renew, until his termination on 15/07/2021, allegedly, via a mobile phone text message. Before his termination, between 11/06/2021 and 15/07/2021 there was a simmering dispute at the parties' place of work. It was a result of new employment terms intended to be effected by the employer. The respondent was aggrieved by the CMA award. She filed this application on the following four (4) grounds of complaint: 1. That the act o f the Arbitrator to award 12 months'salary to the Respondent while the said contract was never tendered, admitted and tested in evidence was improper, considering that it was undisputed that the Respondent had a previous fixed term contract that had unexpired period o f 3 months as stated by the Arbitrator at page 6 o f the impugned award.

2. That the Honourable Arbitrator erred in law and in fact by deciding that there was a breach o f contract o f employment while the respondent absconded from work 3. That the Honourable arbitrator erred in law and in fact by awarding relief on breach o f contract while the Page 2 of 6 respondent had filed the dispute claiming he was unfairly terminated.

4. That the Honourable arbitrator erred in law and fact by considering evidence that was not tendered before the commission during the hearing. The application was argued by way of filing written submission. The applicant is represented by Kerry Stanley Mra, advocate while the respondent is represented by Dereck Andrew Kyashama, advocate. For reasons to be apparent soon, I shall not determine this case on merits. The argument of the applicant on the first issue is that the compensation, in the circumstances of this case, ought to have been limited to the unexpired 3 months of the fixed term contract and not 12 months which applies to open ended contracts. In any case, it is my view that there is no evidence upon which the respondent's entitlements, if any, can be ascertained. I have ready the CMA record, both parties did not tender the relevant contract to help the court to ascertain what were its terms for renewal, and the salary of the applicant upon which his entitlements would be calculated. The parties' evidence on those issues is very scanty. The Page 3 of 6 foregoing notwithstanding, the CMA had this to say at page 7 of the decision. "Aidha, mlalamikaji alileta ushahidi wa ujumbe wa simu wa M-Pesa kuthibitisha kuwa makubaliano baina yake na m/a/amikiwa ya/ikuwa ni kulibwa mshahara wa Tshs. 2,138,000/=" Unfortunately, there is no such evidence on record. In this case,

no documentary evidence was admitted in evidence. Attempts by the respondent to tender electronic evidence including the alleged SMS were objected to and the objections were sustained. Therefore, the above holding of the CMC is not founded in evidence on record. It is extraneous to the evidence. This makes the fourth complaint meritorious. A decision founded on extraneous issues cannot be allowed to stand. The second ground alleges abscondment. Did the respondent abscond from work? This is a pertinent allegation as far as this case is concerned but the CMA attended it perfunctorily. Mr. Barwani Ng'anzi (DW1), who is an officer of the applicant, testified and alleged that the appellant absconded from work for five days and the system automatically rejected him without stating how the employees are managed in terms Page 4 of 6 of work attendance. He even failed to state when the respondent started the abscondment. The respondent countered the argument. He said he had travelled with a team for work in Morogoro without giving evidence to prove the authorization of the travel. Under the circumstances, it can be said that the applicant failed to prove the allegation. While it was upon the applicant to prove abscondment, it was upon the respondent to prove that he was away for official duties. My assessment of the parties' evidence generally presupposes prevarication on each side.

This makes it difficult for this court to justly decide on pertinent issues of fact in this case which are relevant to the parties' rights. The issue whether the respondent absconded or was away in the course of official duties is central to the determination of the parties' rights in this case. The evidence on record is short of supporting any decision. The foregoing being the position of the evidence on record, it is the reason I felt constrained to avoid going into the merits of the case. It suffices to say that there are merits in the application by failure of the CMA to gather evidence necessary for the efficient and effective determination of the parties' rights in this case. That might be the Page 5 of 6 reason the CMA ended up resorting to extraneous matters in its decision. As a result, I allow the application on account of the fourth complaint with order that the case be reheard at the CMA for the parties to bring evidence which is necessary to decide the case effectively. The hearing shall be before another arbitrator of competent jurisdiction. It is so o r ' Court: Delivered in chambers in the presence of Kerry Mra, advocate for the applicant and the respondent in persons. Sgd: I.C. MUGETA

JUDGE 12/ 11/2024 Page 6 of 6