said juma mtika vs home african investment corporation 2023 tzhcld 1152 14 february 2023

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM LABOUR REVISION NO. 312 OF 2022 (Arising from Labour Dispute No. CMA/DSM/KIN/1164/18/01) SAID JUMA MTIKA................................................................ APPLICANT VERSUS HOME AFRICAN INVESTMENT CORPORATION ...................RESPONDENT EX-PARTE JUDGMENT K.T.R. Mteule, J 14th February 2023 & 14th February, 2023 This is a revision application lodged by the applicant to challenge the decision of the Commission for Mediation and Arbitration of Dar es Salaam at Kinondoni (CMA). The applicant is praying for the court to order that:- 1. The Arbitrator had erroneously determined that, the applicant was employed to work on specific task as mason while the Respondent was utilizing him to paint several buildings within Dares Salaam. 2. The Arbitrator has also erred in law and in fact to side with the Respondent that the applicant was retrenched by being paid wages of four (4) days in lieu of notice when not true at all. i 3. That the applicant to be paid gratuity by Respondent for a period of two (2) years he had worked as mason from 2015 till 2018 amounting TZS. 3,500,000.00, plus TZS. 390,000.00 as one-month salary in lieu of notice. 4. Any other relief which this honorable court may deem just and fit to grant. The application is supported by an affidavit of the applicant who deponed that he was employed by the Respondent as a mason with a task of working as a mason and painting several buildings in Dar es Salaam. He deponed further that he was getting a daily wage of TZS 15,000 for 26 days per month until 15th of September 2018 when he was unlawfully retrenched without a reason and without following the procedure. Being dissatisfied with the way he was terminated from his employment, the applicant vide CMA Form No 1, lodged a complaint in the CMA containing the following claims:- 1. Notice payment - TZS 450,000.00 2. Leave payment - TZS 450,000.00 3. Severance allowance - TZS 1,125,000.00 4. Compensation of 12 months remuneration - TZS 5,400,000.00 2 In determining the issue as to whether the applicant was employed on a contract of unspecified period, the arbitrator found that the applicant was employed on a contract of specific time for a specific task on daily payment. The arbitrator further found that there was no termination of employment as the contract ended with the lapse of time. The arbitrator awarded the applicant only 4 days' notice which is "TZS 60,000.00. This aggrieved the applicant who preferred this revision application. The Respondent was served with summons which was received by one Bernard George Nkumbi on 3 October 2022. Despite of the service, the respondent neither appeared nor filed notice of opposition as required by the law. As such, the court allowed the matter to proceed ex-parte. The application was heard ex parte where the applicant appeared in person and reiterated what is deponed in the affidavit. The applicant insisted that he worked with the respondent for a period of two years but he was terminated without any reason and without any compliance with the law. He complained that some of his fellow employees got paid but he was not. He challenged the payment of TSZ 60,000.00 by stating that this was not a terminal benefit but it was his weekly salary from which TZS 30,000 was deducted on the reason that he did not attend work for two days. 3 Having considered the record of the CMA and the contents of the affidavit and the Applicant's submissions, the issue before this court is whether the applicant has sufficient reasons to have the CMA proceedings revised and the award set aside. The arbitrator was guided by the provisions of Section 14 (1) of the Employment and Labour Relations Act, No 6 of 2004 (Cap 366 of 2019 R.E) and Rule 4 (2) of the Employment and Labour Relation (Code of Good Practice) GN No. 42 of 2007 to find the applicant's contract falling under specific period of time with specific task. For the sake of clarity, I will reproduce all the contents of Section 14 (1) supra which provides:- "14.-(1) A contract with an employee shall be of the following types- (a) a contract for an unspecified period of time; (b) a contract for a specified period of time for professionals and managerial cadre; (c) a contract for a specific task. (2) A contract with an employee shall be in writing if the contract provides that the employee is to work within or outside the United Republic of Tanzania." 4 The arbitrator chose to ascribe to the applicant the two type of contract prescribed in items (b) concerning specified period of time and item (c) concerning a contract of specific task. In my view, to ascertain whether the contract is for specified period or for a specific task, a decision maker must be guided by law and evidence. In the hearing in the CMA, there was no evidence tendered by the respondent in the CMA to substantiate that the contract was for specific period of time or for a specific task. The arbitrator did not explain which evidence was the basis of his findings and choice of the nature of contract he chose. In the CMA, DW1 one Bernard George testified that the applicant did not have a contract with the respondent. According to DW1, the applicant was a casual laborer who used to be paid TZS 15,000 monthly but the said salary was being processed weekly. The respondent appeared to indicate a retrenchment exercise but she did not tender any exhibit to show how was it a valid retrenchment as no evidence of consultation meeting. The arbitrator was influenced by this assertion evidence and agreed that the applicant was a casual laborer. The nature of employment relationship is well defined in Law. Employers cannot escape responsibility to honor the rights of employees by a claim that such employees were casual laborers. Whether there was no 5 employment relationship, the employer must prove the ingredients enumerated in Section 61 of the Labour Institutions Act, Cap 300 of 2019 R.E. It provides:- "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, if any one or more of the following factors is present-the manner in which the person works is subject to the control or direction of another person; (a) the person's hours of work are subject to the control or direction of another person; (b) in the case of a person who works for an organization, the person is a part of that organization; (c) the person has worked for that other person for an average of at least forty five hours per month over the last three months; (d) the person is economically dependent on the other person for whom that person works or renders services; (e) the person is provided with toots of trade or work equipment by the other person; or (f) the person only works for or renders services to one person. 6 The above listed factors should be used for disprove employment relationship. It is upon the employer to keep the record of the employee and to prove the type of contract in existence. The respondent had a duty to prove in the CMA that she did not have control over the working hours of the applicant, that the applicant was not a party of his organization, that the applicant was not working for an average of at least forty five hours per month over the last three months, that the applicant was not economically dependent on the employment with her, that she never provided working tools to the applicant and that the applicant had another employer. By going through the CMA these were not proved. Lack of this prove makes a presumption that the Applicant was the employee of the respondent on an unspecified period. From the above, I differ with the arbitrator's findings on the nature of the employment between the applicant and the respondent since the entire scenario suggests that the applicant was employed by the respondent on unspecified period contract. As to whether the applicant terminated the respondent, this is vivid in the CMA due to the nature of exit of the applicant from the respondent's work place. The evidence (DW1) shows that the respondent was given 4 7 days' notice and departed with a payment of only TZS 60,000 after having worked with the Respondent for two years. Even the 60,000 is not proved to be payment for such a notice as the applicant claimed it to be a payment of his weekly remuneration from which TZS 30,000 was deducted to compensate unattended days. This confirms that the applicant was terminated. It is not in dispute that there was no reason given and no procedure followed during the said termination of the applicant's employment. The arbitrator having found no employment relationship, just saw that there was no such a requirement to follow the procedure to establish reasons for termination. I differ with the arbitrator and hold that the applicant was employed by the respondent on an unspecified period of time and he was unfairly terminated without a reason and without following any procedure. From the foregoing, I find the issue as to whether the applicant established sufficient grounds to warrant revision of the CMA award is answered affirmatively. Regarding relief, it is my considered view that since the contract of employment was unfairly terminated without fair reasons and without following the procedure, the applicant is entitled to what he prayed in the CMA Form No. 1. 8 From the above reasons, I hereby revise the proceedings of the CMA and set aside the award thereof and order payment to the applicant as requested in the CMA Form No. 1 to wit:- 1. Notice payment - TZS 450,000.00 2. Leave payment - TZS 450,000.00 3. Severance allowance - TZS 1,125,000.00 4. Compensation of 12 months remuneration - TZS 5,400,000.00 The total of the above is TZS 7,425,000.000. There is no order as to cost. It is so ordered. Dated as Dar es Salaam this 14th Day of February 2023 9