PRONA PHARMACY V

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM REVISION APPLICATION NO. 23740 OF 2024 (Arising from an Award issued on15/8/2024 by Hon. Kiangi, N, Arbitrator, in Labour Dispute No. CMA/DSM/ILA/658/2023/8/2024 at Ilala) PRONA PHARMACY …………………………..…..……….. APPLICANT

VERSUS MAGDALENA MATHEW PETER ……........................ RESPONDENT

JUDGMENT Date of Last Order: 04/11/2024 Date of Judgement: 15/11/2024 B. E. K. Mganga, J. Brief facts of this application are that, on 4th December. 202023, Magdalena Mathew peter, the abovenamed respondent, filed Labour dispute No. CMA/DSM/ ILA/658/2023/8/2024 before the Commission for Mediation and Arbitration (CMA) complaining that, on 6th November 2023, Prona Pharmacy, the abovenamed applicant, terminated her employment unfairly. In the referral form (CMA F1), respondent indicated that, the employer had no valid reason and did not follow fair procedures of termination of her employment. Based on that, respondent indicated in the said CMA F1 that, she was claiming to be paid TZS 10,492,307.69 being terminal benefits namely, (i) 24 months’ salary compensation, (ii) Notice pay, (iii) leave pay, (iv) days worked for 1 in the last month, and (v) any other relief the Commission may deem fit and just to grant. She further prayed to be issued with a certificate of service. On 15th august 2024, Hon. Kiangi N. Arbitrator, having heard evidence of the parties, issued an award that termination was unfair both substantively and procedurally and that, respondent was receiving monthly salary and not daily pay. With those findings, the arbitrator awarded respondent to be paid TZS 5,692,307/= only being notice, leave, six worked days, twelve months salary compensation and ordered respondent

be issued with a certificate of service. Displeased with the award, applicant filed this application for revision seeking the court to revise the said award. In support of the Notice of Application, applicant filed the affidavit of Najim Ilyas Kassange raising two issues namely: - 1. Whether it was legally proper for the arbitration to conclude that the respondent was under permanent employment without proof of employment contract and relying on single petty cash payment signed as monthly payment as evidence of engagement.

2. Whether it was legally proper for the arbitrator to condemn the applicant to pay TZS 5,692,307/= to the respondent without any proof of employment contract, whereas the applicant had the obligation to pay only 6 days payment of days worked for. 2 Respondent opposed the application and filed the Notice of Opposition supported by her counter affidavit. When the application was called on for hearing, Mr. Leobinus Mwebesa, learned advocate, appeared and argued for and on behalf of the applicant while Mr. Pascal Temba, personal representative, appeared for and on behalf of the respondent. Arguing in support of the 1st issue, Mr. Mwebesa submitted that, the parties had no written contract. He also submitted that, respondent was employed as store keeper though it is not stated as to when her contract started. Counsel submitted that, on 6th November 2023 applicant terminated employment of the respondent because the latter committed misconducts of dishonesty and breach of confidential information of customers of the applicant and that, she was selling property of the applicant without following procedures. He submitted further that, respondent was warned but didn't improve. He further submitted that, respondent had no unspecified period contract of employment. When probed, counsel conceded that, there is no contract that was tendered by the applicant to show that respondent had no

unspecified contract of employment. He was quick to submit that, it was just conduct of the parties namely, payment on daily basis which shows that the parties had no unspecified period contract of 3 employment. He added that, the said daily pay was payable to the respondent at the end of the month and that, respondent was not paid on the days she did not attend at work. In his submissions, counsel conceded that, there is no record that was tendered at CMA by the applicant to such effect. He further conceded that, applicant did not tender any exhibit to prove that their conduct indicated that respondent was paid on daily basis. He maintained that, respondent was not employed for unspecified period. He added that, the mere fact that respondent worked for nine (9) months is not a proof that she was employed for unspecified period. To support his submissions, he cited the case of Abel Kikoti and 5 Others v. Tropical Contractors Ltd, Revision No. 305 of 2019, HC(Unreported). on the 2nd issue relating to fairness of termination, he submitted that, since respondent was not employed for unspecified period, in terms of section 36 of the Employment and labour Relations, [Cap. 2019], provisions of fair termination cannot apply in her favour. On the relief that respondent was awarded, counsel submitted that, evidence shows that applicant worked for 9 months. He further submitted that, respondent was supposed to be paid 4 days as notice and not one month notice. To support his submissions, he cited the provisions of section 41(1)(b)(i) of the Employment and Labour 4 Relations Act[Cap. 366 R.E.

2019. He concluded that, respondent was not entitled to 12 months compensation and leave pay. With those submissions, he prayed that the application be allowed. Arguing the 1st issue on behalf of the respondent, Mr. Temba submitted that, the arbitrator was right to hold as she did based on evidence of the parties. He also submitted that, section 15 of Cap. 366 R.E. 2019(supra), requires the employer to provide the employee with written particulars mentioned in section 14 of Cap. 366 R.E. 2019(supra). He added that, section 14 of cap. 2019 (supra) provides types of contracts. He went on that, in her evidence, respondent (PW1) stated that she had unspecified period contract of employment that started on 1st February 2023 and that, the said unspecified period contract of employment was terminated on 6th November 2023 for undisclosed reasons. He further submitted that, monthly salary of the respondent was TZS 400,000/=. He disputed the allegations that respondent was paid on daily basis. He added that, exhibit P1 shows May 2023 respondent’s salary and deductions thereof, including Pay as you earn. He added that, there is no proof that respondent was paid on daily basis or that their conduct justified a conclusion that the contract was on daily basis. 5 Mr. Temba submitted further that, procedures for termination were not followed. Cementing that termination was unfair procedurally,

he submitted that, there is no evidence proving that disciplinary hearing was conducted. With those submissions, he prayed that the application be dismissed for want of merit. In rejoinder, counsel for the applicant reiterated his submisions in chief and prayed the application be allowed. I have examined evidence of the parties in the CMA record and considered rival submissions made on behalf of the parties in this application. Evidence in the CMA record shows that, Lavius Mwombeki(DW1), the only witness who testified on behalf of the applicant stated that, respondent was a probationer and that, during probation period, she comitted miscounducts. In his own words, DW1 was recorded stating:- “…Nilimuita afanye kazi kwa majaribio. Baada ya kuanza kazi watu waliniambia changamoto zake. Nilimuambia tufanyekazi…Bosi alisema hawezi kuendelea na mtu ambaye siye muadilifu pamoja na kufanya biashara nje ya ofisi ikiwemo kuchukua simu za wateja na kuwauzia dawa…Kwa kuwa alikuwa kwenye majaribio, bosi akasema tumuache. Magdalema alituma meseji kwangu na kwa bosi kuomba msamaha…Mlalamikaji hakuwahi kuwa mfanyakazi, alilipwa kwa kutwa akifanyakazi tunamlipa hela yake. Testifying under cross examination, DW1 stated inter-alia that: - 6 “…Tulikuwa tunamlipa Tsh 300,000 kwa mwezi yeye aliomba hela yake ya kutwa apokee kwa mwezi. Na pia kuna Tsh 100,00 ya nauli na chakula hivyo ukijumlisha ni

Tsh 400,000/= kwa mwezi…Hatukuwahi kumpatia mkataba kuonesha kuwa yupo kwenye majaribio…Kuna wakati alikuwa anasahini petty cash kuthibitisha malipo…Tulimwachisha kazi kwani alikuwa anafanya biashara nje ya duka, anatuibia wateja wetu…Baada ya kumsimamisha hatukumlipa chochote.” That is the only evidence that was adduced on behalf of the applicant. On the other hand, Magdalena Mathew Peter (PW1), the herein respondent testified that, she was employed for unspecified contract of employment though she was not given a contract to sign. She also testified that, the said contract started on 1st February 2023 and that, her monthly salary was TZS 400,000/=. On proof of the said monthly salary, respondent tendered cash petty (exhibit P1) without objection. Respondent also testified that; applicant terminated her employment on 6th November 2023. That, she was terminated through phone call by DW1 without being informed reasons thereof and without adhering to procedures. I have considered the above evidence of the parties and it is my considered view that, applicant did not prove that respondent was a probationer. I am of that view because, in his evidence, DW1 did not state as to when probation period of the respondent started and was 7 supposed to come to an end. Applicant had a duty to prove her allegation that respondent was a probationer but failed to discharge that duty. It has been

held several times that he who alleges must prove. See the case of Oliva James Sadatally vs Stanbic Bank Tanzania Limited (Civil Appeal 84 of 2019) [2022] TZCA 388. In addition to the foregoing, evidence by DW1 that respondent was a probationer contradicts his evidence when he testified that respondent was not employed by the applicant. Also, that contradicts his evidence when he stated that respondent was employed as a casual employee or daily worker paid on daily basis. I am of that view because, a daily worker cannot be put on probation. It is my further considered opinion that, applicant was duty bound to comply with the provisions of section 14(2) of Cap. 366 R.E. 2019(Supra) by providing written contract but she didn’t. She was also bound, under section 15(5) of Cap. 366 R.E. 2019(supra), to provide respondent with particulars mentioned in the said section but she did not. In fact, the legislature in its wisdom, foreseen circumstances where employers may not supply employees with written contract with a view of distancing themselves from employment relationship with employee, which is why, section 15(6) of cap. 366 R.E. 2019(supra) was enacted. The said section provides: - 8 “15(6) If in any legal proceedings, an employer fails to produce a written contract or the written particulars prescribed in subsection (1), the burden of proving or disproving an alleged term of

employment stipulated in subsection (1) shall be on the employer.” In my view, applicant cannot rely on absence of written contract to state that respondent was a daily or casual employee. In fact, contracts of employments known under our law as per section 14 of Cap. 366 R.E. 2019(supra) are (i) fixed term period, (ii) unspecified period and (iii) specific task only. There is no daily or casual employee. If applicant was of the view that respondent was employed for specific task employment, then, she was supposed to prove the nature of the task respondent was employed for. Unfortunately, that is wanting in evidence of the applicant. It is my considered opinion that, in absence of evidence to contradict what was testified by the respondent, the arbitrator was justified to hold that respondent was employed for unspecified period and that her monthly salary was TZS 400,000/=. It is my further considered opinion that, based on evidence of the parties, the arbitrator was justified to hold that termination was unfair both substantively and procedurally because applicant did not prove the alleged misconducts committed by the respondent. Applicant did not prove that she followed fair procedures of termination. 9 It was testified by both DW1 on behalf of the applicant and PW1, the applicant that, after termination of her employment, the latter was not paid terminal benefits. In terms

of section 40(1)(c) of Cap. 366 R.E. 2019 (supra), the arbitrator was justified to award respondent to be paid 12 months’ salary compensation for unfair termination. Respondent was further entitled, under section 44(1)(a), (b), (d) and 44(2) of Cap. 366 R.E. 2019(supra), to be paid remuneration for the days she worked for, annual leave, notice and be issued with a certificate of service respectively. For the foregoing, I uphold the CMA award and dismiss this application for want of merit. Dated at Dar es Salaam on this 15th November 2024 B. E. K. Mganga

JUDGE Judgment delivered on 15th November 2024 in chambers in presence of Leobinus Mwebesa, Advocate for the Applicant and Pascal Temba, the Personal Representative of the Respondent. B. E. K. Mganga

JUDGE 10