SAID SALUM PEPE v

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM REVISION APPLICATION NO. 21343 OF 2024 (Arising from Award issued on 16/8/2024 by Hon. Nyagaya, P., Arbitrator in Labour Dispute No. CMA/DSM/ILA/468/2022/344/2022 at Ilala) SAID SALUM PEPE ……………………...…..…....……….. APPLICANT

VERSUS V. PRODUCT …………………..………........................ RESPONDENT

JUDGMENT Date of Last Order: 10/10/2024 Date of Judgment: 24/10/2024 B.E.K. Mganga, J. There is no dispute that applicant and respondent had an employment relationship that started on 21st October 2018 whereas applicant was employed as a security guard. It is also undisputed that, in later 2020 applicant filed a dispute before the Commission for Mediation and Arbitration (CMA) claiming salary arrears for the months of September, October and November 2020. It is further undisputed that, the said disputed was settled on 14th December 2020 as a result, applicant was paid his claims. 1 On 13th September 2022 applicant filed Labour dispute No. CMA/DSM/ILA/468/2022/344/2022 alleging that, on 20th August 2022, respondent verbally terminated his employment unfairly. In the referral form(CMA F1), on part of procedural fairness, applicant indicated that he was not given right to defend and on fairness of reason, he indicated he was not given reason for termination. Based on those allegations, applicant indicated in the CMA F1 that he was claiming to be paid TZS 3,279,692/= being 12 month’s salary compensation for unfair termination, one month notice, one month salary in lieu of leave, severance pay and salary for august 2022. On 16th August 2024, Hon. Nyagaya, P, arbitrator, who heard evidence of the parties issued an award dismissing the dispute on ground that it was prematurely filed. Applicant was disatisfied with the said award hence this application for revision. In the affidavit in support of the Notice of Application, applicant raised three grounds namely:- 1. That, the arbitrator erred in law and facts by dismissing the dispute on ground that it was prematurely filed prior to commencement of disciplinary actions.

2. That, the arbitrator erred in law and facts for not considering the provisions of section 15(6) of the Employment and Labour Relations Act, [Cap. 366 R.E. 2019] that requires the employer to submit record of employment.

3. That, the arbitrator erred in law and facts by misinterpreting the provisions of section 112 of the Evidence Act, [Cap. 6 R.E. 2019] while respondent 2 did not tender attendance register as proof of as to when employment was terminated. In oppossing this application, respondent filed both the Notice of Opposition together with the counter affidavit sworn by Mr. Vijay Chohan, the Managing Director of the respondent. When the application was called on for hearing, Mr. Majaliwa Mussa, the personal representative appeared and argued for and on behalf of the applicant while Mr. Rashid Hezron Kyamba, advocate appeared and argued for and on behalf of the respondent. Arguing the 1st ground, the personal representative of the applicant submitted that, none of the parties raised an issue showing that procedures for termination were underway. He added that, it was an error on part of the arbitrator to hold that the dispute was premature. He went on that, the arbitrator raised suo motu the issue as whether the dispute was premature or not. Arguing the 2nd and 3rd grounds, the personal representative of the applicant submitted that, the parties entered oral contract and termination was also done orally. He also submitted that, section 15(6) of the Employment and Labour Relations Act[Cap. 366 R.E. 2019] requires the employer to prove matters stipulated under subsection (1). He added that,

at CMA, applicant prayed to be supplied with salary slips, 3 attendance register, a letter showing that applicant prayed to resign but respondent stated that all documents were stolen and that, she had no record of the applicant. He went on that, respondent did not prove all what is stipulated under subsection(1) of section 15 of Cap. 366 (supra) hence she denied applicant to know as to when he was employed and terminated. Mr. Mussa further submitted that, applicant served respondent a notice to produce but the latter did not comply. He also submitted that, the arbitrator erred not to allow applicant to use secondary documents hence applicant was denied right to use his evidence. The personal representative of the applicant further submitted that, respondent testified that, applicant resigned in 2020 while applicant testified that he was terminated on 20th August 2022. In his submissions, Mr. Mussa conceded that, in 2020 applicant filed dispute No. CMA/DSM/ILA/898/2020 at CMA and that, the said dispute was concluded through mediation as applicant accepted to be paid TZS 492,000/=. Mr. Mussa submitted that, the said dispute was settled before Hon. Mahiza, Mediator, on 14th December 2020. He also conceded that, the settlement order shows that, the dispute was relating to termination of employment. With those submissions, he prayed the 4 dispute be allowed and applicant be awarded

as he claimimed in the CMA F1. Resisting the 1st ground of revision, Mr. Kyamba, advocate for the respondent, submitted that, there was no proof by the applicant that respondent terminated his employment. In his submissions, counsel for the respondent conceded that, on 14th December 2020 settlement between the parties was register at CMA. He further submitted that, after the said settlement, applicant stopped to appear at work hence his employment came to an end automatically. He added that, applicant disappeared as a result, respondent failed to take disciplinary actions. Mr. Kyamba further submitted that, the arbitrator was right to hold that the dispute was filed prematurely. In his submissions, counsel conceded that, the issue as to whether, the dispute was premature or not, was raised by the arbitrator at the time of composing the award hence parties were not afforded chance to submit on that issue. On the 2nd ground, counsel for the respondent submitted that, respondent did not dispute that applicant was her employee hence there was no application of section 15(6) of Cap. 366 R.E. 2019(supra). Counsel submitted that, the issue was whether, respondent terminated applicant, and not whether, applicant was an employee of the respondent. He added that, section 96 of Cap. 366 R.E. 2019(supra), 5 requires both the employer and the employee to keep documents relating to

employment. He went on that, there was no notice to produce that was served to the respondent. Responding to the 3rd issue, Mr. Kyamba submitted that, the arbitrator was right to invoke the provisions of section 112 of the Evidence Act. He added that, it was the duty of the applicant to prove that respondent terminated his employment. He added that, there is no proof that applicant was terminated on 20th August 2022. It was the duty of the applicant to prove that he was terminated on that date. To support those submissions, counsel cited the case of Genesis Tarimo v. Pius Mallya, Revision No. 456026 of 2022, HC(unreported). He concluded that the arbitrator was right to hold as she did and prayed the court to dismiss this application for want of merit. In rejoinder, Mr. Mussa, submitted that, section 96 of Cap. 366 R.E. 2019(supra) does not apply in the circumstances of this case because, respondent violated the provisions of section 15(1) of Cap. 2019(supra). He maintained that applicant was denied right to prove his case after he was denied to use secondary evidence. Mr. Mussa conceded to the settled principle of the law that, he who alleges must prove. 6 I have examined evidence of the parties in the CMA record and considered rival submissions made in this application. As a starting point, I wish to point out that the claim that applicant denied right to prove his case after

he was denied to use secondary evidence is not supported by evidence of the parties in the CMA record because there is no notice that was served to the respondent showing that he wanted to rely on secondary evidence. That complaint is unjustifiable. More so, that allegation is not one of the grounds raised by the aplicant in his affidavit rather, it was raised by the personal representative of the applicant during his submisions and no leave was sought to add it as additional ground. In absence of leave to add that complaint as addition ground, this court cannot treat that complaint as one of the grounds raised by the applicant. It seems to me that, like a drowing person, the personal representative of the applicant was trying to catch everything that was near to save life of the applicant without following procedures. That cannot be allowed. I therefore reject that ground. In dismissing the dispute, it was held by the arbitrator that the dispute was prematurely filed. It was submitted by counsel for the respondent that, the issue whether, the dispute was premature or not, was raised by the arbitrator at the time of composing the award hence parties were not afforded chance to submit on that issue. I have 7 examined the CMA record and find that, on 1st March 2023, three issues namely; (i) whether, respondent terminated employment of the complainant, (ii) whether, termination

was fair, and (iii) to what reliefs are the parties entitled to. In the award, the arbitrator held that there was no teremination of employment of the applicant and concluded that the dispute was filed prematurely. That conclusion was in relation to the 1st issue. It is my view that, submissions by counsel for the respondent that, the issue whether, the dispute was premature or not, was raised by the arbitrator at the time of composing the award and that, parties were not afforded chance to submit on that issue, cannot be valid. I am of that view because, the arbitrator held that the dispute was prematurely filed after answering the 1st issue that there was no termination of employment of the applicant. The arbitrator reached that conclusion because, in the referal form(CMA F1) applicant indicated that he was unfairly terminated. In the award, the arbitrator held:- “Kwa kuwa imethibitika hakukuwa na uachishwaji kazi na mgogoro huu umeletwa kabla ya wakati(premature) tume inakosa msingi wa kujadili hoja ya pili na ya tatu na kuamua kutupilia mbali mgogoro huu(dismissed).” The issue is whether, the arbitrator was justified to hold that, responden did not terminate employment of the applicant. I have examined evidence of the applicant(PW1) and find that he testified that 8 respondent terminated his employment hence inorder to justify that there was no termination, the arbitrator

was supposed to give reason as to why she reached that conclusion. I have ready the award and find that the reason is wanting. I am of that view because while applicant testified that he was terminated, respondent testified that there was no termination. It was the duty of the arbitrator to weigh evidence of both sides and give reason as to why she believed evidence of the respondent and not of the applicant. As pointed out shortly a while, that reasoning is wanting in the award. The follow up issue is when was he terminated and whether termination was fair or not. These issues were supposed to be answered by the arbitrator when dealing with the 2nd issue namely; whether, termination was fair. Unfortunately, the arbitrator did not analyse evidence adduced and answer the 2nd issue and the 3rd issue relating to reliefs. As pointed hereinabove, the arbitrator did not give reasons as to why she reached a conclusion that there was no termination while applicant testified that he was terminated and respondent stated that applicant’s employment was not terminated rather, absconded after settlement of the dispute that was initially filed at CMA. It is my view that, the arbitrator was duty bound to give reasons as to why she 9 believed evidence of the respondent and not of the applicant. Unfortunately, that was not done. For the foregoing, I hereby quash and set aside the award and remit back this file to CMA so that the same arbitrator can compose an award based on evidence adduced by the parties. What I have discussed hereinabove has disposed the whole application. For that reason, I will therefore not consider the remaining grounds. B. E. K. Mganga

JUDGE Judgment delivered on 24th October 2024 in chambers in presence of Said Salum Pepe, the Applicant and Rashid Hezron Kyamba, Advocate for the Respondent. B. E. K. Mganga

JUDGE 10