STAR MEDIA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA (LABOUR DIVISION) LABOUR REVISION NO. 18136 OF 2024 (Arising from Miscellaneous Labour Application No.16 of2023, Labour revision No. 16 of2023both of the High Court of Tanzania at Bukoba, Original CMA/KAG/BUK/32/2022/02/2022 of the Commission for Mediation and Arbitration at Bukoba) STAR MEDIA (TANZANIA) LTD............................... APPLICANT VERSUS ACACIUS ANACLET KAMARLA.................................. RESPONDENT RULING 29/10/2024 & 07/11/2024 KIWONDE, J. The applicant, Star Media (Tanzania) Ltd, filed an application by way of chamber summons supported by an affidavit of Mariam Mohamed Chamba, a Principal Officer of the applicant praying for the reliefs below: i. That this honourable court be pleased to revise the award of the Commission for Mediation and Arbitration of Bukoba in a i complaint with reference CMA/KAG/BUK/32/2022/02/2022 dated 1st day of September 2023 by Honourable G. P. Migire, Arbitrator. ii. Upon revising the CMA decision and orders thereof, this honourable court be pleased to issue an order setting aside the impugned arbitration award which has been made under an error material to the merits of labour dispute hence occasioning injustice to the applicant without any justification/ justifiable reason. iii. That upon revising, setting aside and quashing the impugned arbitration/ award, order that the contract between the parties, life span of the same automatic lapsed and upon automatic lapse of the said contract, the applicant's payment of full and final settlement and issuance of certificate of service, the applicant fully Performed her duty in the eyes of the law. iv. That upon revising, setting aside and quashing the impugned arbitration/ award, further order the following: (a) that there was no unfair termination as the respondent had no further contract than that which commenced on 01/06/2021 and ended on 31/05/2022 (b) that in lack of contract signed by both parties enforceable in the eyes of the law, no claim could arise and coach the Commission for Mediation and Arbitration to award the 2 amount of TZS 29,952,000/= (c) that unfair termination could not arise from the contract which ended automatic for the period of one year renewable at the wish of the employer if the need arises/ so requires (c) cost be provided for (d) any other relief this honourable court deems fit and just to grant. On due service on the respondent, he filed a counter affidavit refuting some facts deponed by the applicant's Principal Officer. The matter became ripe for hearing. However, by leave of the court, the application was argued by filing written submissions and both parties complied with the order. I now turn to consider them in resolving the complaint raised by the applicant. Upon going through the submissions and the records of the CMA, the main issue for determination is whether the application is meritorious or otherwise. In the first place, it is rightly decided by the arbitrator that the applicant did not prove that there existed a contract of employment with the respondent, with specific period of one year duration. This is because at the arbitration, the applicant's witness (DW1) Maria Mohamed Chamba clearly said the same got lost. The witness relied on the Human Resources Policy Manual, exhibit A5 which is to the effect that all staffs in the 3 company had contracts of one year only subject to renewal as need may arise. But when she was cross-examined, DW1 replied that the Human Resources Policy Manual is not final (Question 37). So, it was not established that the respondent was employed for only one year. Also, in the alleged contract of employment tendered by the respondent and admitted as exhibit Bl, it is shown that the respondent was employed on 16/04/2020 and the employment was to last for five (5) years up to 15/04/2025. However, the same was not signed by the employer. Thus, the arbitrator correctly held that this contract did not create and employer­ employee relation. It could not be relied upon. But all parties are not in dispute that the respondent was employed by the applicant and worked or offered services for the applicant. The records of the CMA show that the respondent started to receive payment right from 30/06/2020. The arbitrator depicted from this record that the respondent therefore, was employed on 01/06/2020. While, his employment was terminated on 31/05/2022. From this fact, it is obvious that the respondent worked for the applicant over one year. Thus, the employment was not based on one year only. Rather, it was terminated by the applicant on 31/05/2022. 4 Having found that the employment of the respondent was terminated by the applicant, the arbitrator determined if the said termination was based on valid reason and whether the procedure for the same was followed. The available evidence on record shows that the reason for termination of the respondent's employment was shortage of fund (budgetary reason). It was said that his department had no sufficient budget. This meant that it was an operational requirement that the employment of the respondent had to be ended. But for this kind of termination reason to be valid, the law provides for certain matters to be complied with by the employer. Under section 38 of the Employment and Labour Relations Act No. 6 of 2004, some of the factors include; giving notice of the intended retrenchment as soon as it is contemplated, disclose all relevant information about the intention of retrenchment, consult the employee prior to its implementation, give reason for that, provide measures to avoid or minimize it, method of selection and timing, to mention a few. In this matter, it is not shown if the applicant complied with such legal requirement. This is why the arbitrator decided that the termination was not based on valid reason. Hence, the termination is said to be substantially unfair. 5 Regarding the procedural aspect, the applicant merely issued notice of termination followed by letter of termination and the like. Ther was no prior consultation with the respondent. This implies that the respondent was terminated without being availed the right to be heard. Therefore, the procedure of termination was flawed. The effect of termination based on reason found not valid and procedural violation, is to render it unfair. The arbitrator rightly reached to the conclusion that termination of the respondent's employment was unfair. As to the remedies for unfair termination, in law, there are various options like reinstatement of the terminated employee or if it is found impracticable, the same can be compensated. The arbitrator opted to order compensation. In assessing the amount of compensation, the arbitrator applied statutory requirements. He reasoned that the respondent had worked for the applicant for the past two (2) years and the law provides for the salary times twelve months remuneration. So, the arbitrator awarded TZS 624,000/= X 48 months to get TZS 29,952,000/= as the maximum compensation. I found no reason to fault the arbitrator on his award. The application for revision, thus, has not been merited. It is hereby dismissed. This being a labour matter, I make no order as to cost. 6 Dated at Bukoba this 7th November 2024. ONDE JUDGE 07/11/2024 Court: Ruling is delivered in chamber in the presence of Mr. Ibrahim Mswadick counsel for the applicant, Mr. Gerase Reuben for the respondent and Grace Mutoka (RMA) this 7th November 2024 and the right of appeal 7