prosper makene and 2 others vsmedia international and consultant 2021 tzhcld 191 30 june 2021

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION NO. 882 OF 2019

BETWEEN PROSPER MAKENE & 2 OTHERS........................ APPLICANTS

VERSUS MEDIA INTERVENTION & CONSULTANT.......... RESPONDENT

JUDGMENT Date of Last Order: 21/06/2021 Date of Judgment: 30/06/2021 L.J. Itemba, J. Prosper Makene, Amini Nyaungo and Felix Andrew were the applicants in Labour Dispute with Ref. No. CMA/DSM/KIN/720/18/133 at Commission for Mediation and Arbitration (herein CMA), Kinondoni Office. They were employed on various dates in the year 2017 by the respondent, Media Intervention & Consultant until June 2018 where it is alleged that they were unfairly terminated. Prosper Makene was employed the Chief Editor while Felix Andrew and Amini Nyaungo were reporters. i The CMA, after hearing both parties, dismissed applicant's claims for reasons that the claims were filed pre-maturely as there was no proof that the applicants were actually terminated. Being dissatisfied, they filed present revision raising following grounds; (i) The Arbitrator erred in law and in facts by deciding that there was no termination and that the dispute is pre-mature. (ii) The Arbitrator erred in law and in fact for failure to recognize that the Applicants were terminated by the Respondent. Upon parties' requests, Hearing was conducted by way of written submissions. The applicants were represented by the 1st applicant Prosper Makene while the respondent was represented by its' Principal Officer, Habib Ramadhan Miradji. In their submissions, the applicants consolidated both grounds of Revision. They argued that on

30th of June 2018 the Respondent held a staff meeting and informed the applicants that the business will be closed as it does not comply with the Governments' requirement. The applicants 2 states that the respondent paid them their due benefit and that amounted to termination. The respondent strongly insisted that the applicant was never their employee. That the applicants were working on part time basis. That the company needed to be shut down because it was not registered as per Government requirements. That the applicants were paid on weekly basis for gathering news so that the respondent could publish the same. The respondent states that the applicants were issued identity cards to make their work of collecting news much easier. The issues to be determined by the Court are: (i) Whether there was employer and employee relationship between the applicants and the respondent. (ii) Whether there was termination of applicants' employment by the respondent. (Hi) What are the reliefs to the parties? In responding to the first issue, the Court is guided by section 61 of the Labour Institutions Act, No. 11/2004 (LIA) which explains who is an employee; the sections states- 3 '61. For the purposes of a labour law, a person who works for, or renders services to, any other person is presumed, until the contrary is proved, to be an employee, regardless of the form of the contract, 2

if any one or more of the following factors is present: a) The manner in which the person works is subject to the control or direction of another person; b) The person's hours of work are subject to the control or direction of another person; c) In the case of a person who works for an organisation, the person is a part of that organisation; d) The person has worked for that other person for an average of at least 45 hours per month over the last there months; e) The person is economically dependent on the other person for whom that person works or renders services; f) The person is provided with tools of trade or work equipment by the other person; or g) The person only works for or renders services to one person.' Therefore, the applicants were required to establish that they were employees of the Respondent by establishing at least one of the above factors. 4 Based on the available facts, the manner on which the applicants worked was not subject to the control of the Respondent. The applicants were not part of the organization and they could not establish the number of hours which they worked for the Respondent; which are supposed to be the average of 45 hours per months. There is no factor under Section 61 ILA which was established by the applicants. Based on these provisions of section 61 LIA, the applicants were not employees. They were having their own schedule and were

free to work for another person. The applicants claims that due to the fact that they had an employment contract with the Respondent then there was an employer and employee relationship. The law under Section 14 of The Employment and Labour Relations Act, [Cap 366 R.E 2019], (ELRA) provides for three types of Contracts; (a) A contract for an unspecified period of time, (b) A contract for a specified period of time for professionals and managerial cadre, 5 (c) A contract for a specific task. The case of Abel Kikoti & 5 Others V. Tropical Contractors Ltd, Rev. No. 305 of 2019 (HCLD) expounds section 14 (c) ELRA as follows: 'The third type of contract is the contract for a specific task which means once the task is performed the contract ends. It should be noted, however, that ... all three types of contracts may be oral or written.....' With regard contracts for specific tasks the case of Msambwe Shamte & 64 others v. Care Sanitation and Supplies, Revision No. 154/2010 states that: 'Principles of unfair termination under the Employment and Labour Relations Act, do not apply to specific task or fixed term contract which came to an end on the specified time or completion of specific task,...' Relying on the applicants' submission, and the testimony of PW1, Amini Alli Nyaungo before the CMA, a proof that applicants were employees is the fact the applicants signed a contract which

its' copy remained with the respondent, that the applicant had business cards in lieu of employment contracts and that upon termination, the applicants were 6 paid dues/benefits by the Respondent. The applicants disputes that they were working for a specific task. The evidence of Habib Ramadhan Miradji DW1, who is one of the directors for the Respondents stated that he knew Prosper Makene as they worked together for about six years in a different media company. DW1 later invited Prosper Makene and offered him a job of Part Time Chief Editor in the terms that he will be collecting news and the respondent will be paying him according to the news which will be collected. That Prosper is the one who later on, invited other applicants (Felix Andrew and Amin Nyaungo). He added that the applicants were paid in cash on weekly basis but they opted to receive their payment at the end of the month. The Respondent even stated that the applicants were able to submit news to other media companies like "The Guardian" and "Business Times". He tendered copies of the newspapers to support his testimony. The available evidence supports the fact that the contract of the applicant was for a specific task. That is Felix Andrew and Amini Nyaungo had duties to collect the news and Prosper Makene had a duty to edit the 7 news. The Respondent had no full control of the applicants that is why

the applicant Prosper Makene could work with other media company like "The Guardian" and "Business Times" at the same time when he was working with the respondent. In other words, the applicants were "freelancers". Based on the evidence of DW1, PW1 and submissions of both parties, there is no doubt that, the applicants and the Respondent had a contractual relationship for a specific task. The applicants having a business card with the name of the respondent does not make them employees. Likewise, the fact that the applicants received payments from the respondent, for the work done, does not create the employer and employee relationship. The applicants were being paid once a specific task is completed. Therefore, the provisions for unfair termination does not apply to the applicants. Disputes which are filed before the CMA are those which involve an employer and employee. Without establishing that there employer and employee relationship Applicants cannot complain of unfair termination. Consequently applicants 8 cannot claim for payments of Notice, Compensation, Severance pay and Unpaid leave as specified in the CMA Form No. 1 Having answered the 1st, issue in the negative, the 2nd and 3rd issues are naturally resolved. I therefore find no grounds to fault the Arbitrators' findings that the matter was filed before the CMA prematurely as the applicants had not been terminated by the Respondent. The Commission for Mediation and Arbitration's decision is upheld. Application for Revision is dismissed for lack of merits. L.J. Itemba

JUDGE 30/06/2021 9