PHILLIPO GORDIAN SIMON V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 27069 OF 2024 (Arising from an Award issued on 24/10/2024 by Hon. Kiangi, N, arbitrator, in Labour dispute No. CMA/DSM/ KIN/24/2024/59/2024 at Kinondoni) PHILLIPO GORDIAN SIMON ..................................................................... APPLICANT VERSUS BYTER CROP PROTECTION COMPANY TANZANIA LIMITED ................................................................................. RESPONDENT JUDGMENT Date of Last Order: 02/12/2024 Date of Judgment: 12/12/2024 B. E. K. Mganga, J. On 5th January 2024 Philipo Gordian Simon, the herein applicant, signed a fixed term contract of employment with Byter Crop protection Company Tanzania Limited, the herein respondent. The said fixed term contract was effective from 1st January 2024 and was expected to expire in July 2024. In the said fixed term contract, applicant was employed as a driver. It is undisputed by the parties that, the said fixed term contract had a clause of one month probation period. It happened that their employment did not go well as a result, on 18th January 2024 applicant filed labour dispute No. CMA/DSM/KIN/24/2024/59/2024 before the 1 Commission for Mediation and Arbitration(CMA) at Kinondoni complaining that, on 16th January 2024 respondent breached his employment contract resulting to termination. In the referal form(CMA F1), applicant indicated that he was claiming to be paid TZS 2,800,000/= being salary for the remaining period of the contract and TZS 400,000/= being one month salary in lieu of notice all amounting to TZS 3,200,000/=. On 24th October 2024, Hon. Kiangi, N, arbitrator, having heard evidence of the parties, issued an award that there was no breach of contract and dismissed the dispute. Applicant was aggrieved with the said award hence this application for revision. In his affidavit in support of the aplcation for revison, aplicant raised two issues namely:- 1. Whether the applicant managed to prove breach of contract on balance of probabilities . 2. To what reliefs are the parties entitled to. In opposing the application, respondent filed the Notice of Opposition together with the counter affidavit affirmed by Hu Jinghui, her principal officer. When the application was called on for hearing, Mr. Amon Rwiza, advocate, appeared and argued for and on behalf of the applicant while 2 Mr. Yuda Dominic, advocate, appeard and argued for and on behalf of the respondent. Arguing in support of the aplication, Mr. Rwiza submitted that, applicant had seven months fixed term contract of employment with the respndent commencing in January 2024. That, the said contract was terminated by the respondent on 16th January 2024 allegedly that, applicant stole petrol. He also submitted that, applicant filed the dispute at CMA praying to be paid salary for seven (7) remaining months of employment, one month and be issued with a certficate of service. M. Rwiza further submitted that, in the award, the arbitrator held that, applicant was not terminated because, he failed to tender termination letter. He also submitted that, based on evidence of the parties, applicant proved at balance of probabilities that he was terminated. He added that, in his evidence, applicant stated that he was not given termination letter hence the arbitrator erred to dismiss the dispute simply because applicant failed to tender termination letter. Mr. Rwiza cited the case of Off Route Technologies v. Daniel Yesaya Mwaibindi, Revision No. 21 of 2017, HC(unreported) and submitted that, it is not sufficient for the employer simply to state that an employee absconded without proof of efforts taken to trace an employee. When probed, Mr. Rwiza conceded that, there is no provision 3 requiring the employer to trace the whereabouts of the employee who is not attending at work. With those submissions, he prayed that the application be allowed as it is merited because, there was no valid reason for termination and further that, termination was done without following procedures. Resisting the application, Mr. Dominic submitted that, there is no evidence on record to show that applicant was terminated due to theft of petrol. He also submitted that, in his evidence, applicant failed to mention the person who terminated his employment. He further submitted that, respondent tried to trace the applicant using mobile phone of unnamed employee but she did not manage. Wen probed whether, the unamed employee whose phone was used to trace the applicant was called as a witness, he readily conceded that, he was not. Mr. Dominic submitted that, Mwaibindi's case (supra)is distinguishable in the circumstances of this application because, in the said case, disciplinary hearing was conducted unlike to the application at hand. With those submissions he prayed that the application be dismissed for want of merit. In rejoinder submissions, Mr. Rwiza submitted that, in his evidence, applicant stated that he was terminated by boss Chei. He concluded 4 that, applicant proved that respondent breached the contract of employment by terminating his employment. I have examined evidence of the parties in the CMA record and considered rival submissions made in this application. The issue to be answered by this court is whether, evidence proved that there was breach of contract of employment by termination or not, and the relief the parties are entitled to. It was testified by Philipo Godian Simon(PW1), the applicant that, he was ordered to supply boxes of agrovet at Keko.That, respondent also gave him TZS 50,000 to buy fuel. PW1 further stated that, he complied with what he was directed by the respondent and that, he purchased fuel and gave the receipt for fuel he purchased for TZS 50,000/= to his boss. He also testified that, few minutes later, he was called by his boss who informed him that the amount of fuel he purchased does not tally with the receipt. He went on that, based on that, he was terminated on the same day. I should point out, albeit briefly that, that evidence was not shaken during cross examination. On the other hand, Hu Jinghui(DW1), the marketing manager of the respondent, while giving evidence in chief, stated that, applicant was a driver of the respondent before he left on 16th January 2024 without saying anything. He also testified that, no one terminated employment 5 contract of the applicant. While under cross examination, DW1 admitted that applicant was terminated inter-alia due to fake oil receipt. In his own words, DW1 is recorded stating:- “ Q/A- What problem did he caused (sic)you to terminate him? - As a driver he drove our car caused accidents and fake oil receipts. Q/A – How did you notice the receipt was fake? - Because the time was not right. Q/A- can you prove the difference in time? - Time was not reasonable even the cost of petrol in Dar-es- Salaam is high. Q/A- Do you have any tangible evidence? The receipt we didn’t keep it.” (Emphasis is mine) I should point out that, only two witnesses testified at CMA namely applicant(PW1) and Hu Jinghui(DW1) the marketing manager of the respondent. It is my considered view that, the quoted evidence of DW1 while under cross examination shows that, respondent terminated employment of the applicant allegedly, due to fake oil receipt. It was admitted by DW1 as quoted hereinabove that, applicant did not tender the receipt which respondent alleged was fake. In short, the said recept was not tendered as evidence hence it is unknown the contents thereof. It is my opinion that, that was calculated because, in his evidence in chief, DW1 denied to have terminated applicant. It is unfortunate that, in the award, the arbitrator only considered evidence of DW1 in chief 6 without considering his evidence quoted hereinabove. In my view, that was an error on part of the arbitrator because, evidence of the parties must be considered in totallity namely, what was stated while in chief, cross examination and re-examination and not in isolation as it was held by the Court of Appeal in the case of Mathayo Noah Saningo vs Republic (Criminal Appeal No. 427 of 2020) [2023] TZCA 17984 (15 December 2023). I should also point out that, the quoted evidence of DW1 under cross examination corroborated evidence of the applicant that he was terminated allegedly due to fake fuel receipt. In dismissing the dispute, the arbitrator held that, there was no termination because applicant did not tender termination letter. With due respect to the arbitrator, holding that there was no termination simply because no termination letter was tendered by the applicant as proof of termination is watering down oral evidence. I am of that view because, in his evidence, applicant stated that he was terminated by the respondent but he was not served with termination. If we take the position by the arbitrator that, every termination of employment must be proved by termination letter, then, that will be against the law because, it is not a requirement of the law that a every fact must be proved by documentary evidence. In fact, that will be watering down the provisions of section 61 of the Evidence Act, Cap 6 R. E. 2019 that 7 requires every fact be proved by oral evidence. This Court(Samata J, as he then was) put it clear in the case of Julius Billie v. Republic [1981] TLR 333 that, both documentary evidence and oral evidence carries the same weight. In my view, had the arbitrator considered the provisions of section 61 of the Evidence Act, Cap. 6 R.E. 2019 and the above decided decision together with the above quoted evidence, she could have arrived at the conclusion that, respondent breached the contract of the applicant by termination and that, there was no justification for that breach by termination. I therefore hold that respondent breached the contract of the applicant. I further hold that respondent did not follow procedures at the time of terminating employment contract of the applicant. It is undisputed that, the contract was expiring in July 2024, but it was breached by termination on 16th January 2024. Therefore, applicant is entitled to be paid the remaining period of the said contract. There is also no proof that applicant was paid salary for the month of January 2024 because, DW1 only testified that applicant only stopped to attend at work. That means, applicant was not paid salary for January 2024. Therefore, applicant is entitled to be paid salary for seven (7) remaining months of the contract. According to evidence of the parties, applicant’s monthly salary was TZS 400,000/=. Applicant is therefore entitled to be 8 paid TZS 2,800,000/= being salary for the remaining seven (7) months of the said fixed term contract of employment. I further order that, applicant is entitled to be paid one month salary in lieu of notice because, that was agreement of the parties in the said fixed term contract of employment. In summary, applicant is entitled to be paid TZS. 3,200,000/=. For the foregoing, I hereby allow this application and award applicant to be paid TZS 3, 200,000/=. Dated at Dar es Salaam on this 12th December 2024 B. E. K. Mganga JUDGE Judgment delivered on this 12th December 2024 in Chambers in the Yuda Dominic, Advocate for the Respondent but in the absence of the Applicant. B. E. K. Mganga JUDGE 9