20140618 TZHC Mbeya2

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT MBEYA LABOUR REVISION NO. 40 OF 2013 TAIFA MWAIPAYA TETE .......................... ....ApPLICANT VERSUS. MKUU WA SHULE MARANATHA..WI.....I.U. RESPONDENT JUDGEMENT 1010612014 & 1810612014 Aboud,) The applicat,ion As made under section 91(1) and 94(1)(b) of the Employm1ent and Labour Relation Act, No 6 of 2004, Rule 24 (1) (11)(a) and 28(1)(b)(c),(d) and (e) of the Labour Court Rules G. N No 106cif 2007 The applicant calls upon this court to call for the recdrd and revise the proceeding and set aside the award of the Commission for Mediation and Arbitration (CMA), in the CMA/MBY/52/2010 at Mbeya dated 20/09/2010. ljTaifaMwaipaya Tete Vs M k u u wa Shule Maranatha - M b a I i z Briefly the facts led to this application are; way back in January 2006 the applicant was employed by the respondent as a security guard. Their employment relationship persisted to November, 2009 when the applicant was terminated. Applicant managed to refer his complaint at CMA claiming among others; notice Tsh. 107,698/=, leave Tsh 107,6981= gratuity Tsh 107,698/= and overtime 753,5001= The matter wasart1y settled at the CMA on mediation stage where the respondent agreed to pay the applicant all other claim save for the overtime which proceeded for arbitration. The arbitrator awarded the applicant only Tsh. 75,350/= as overtime. Such award aggrieved the applicant hence this revision. During the hearing thë applicant appeared in person while the respondent was represénted by Mr. Baraka Mbwilo, personal representivè Arguih\thé "application the applicant submitted that the respondent eriployed him as security guard for four years and he was terhilnated without being paid his terminal benefits. He submitted further that his complaint at the CMA was leave, notice, gratuity, and overtime but arbitrator failed to consider that despite the fact that he was terminated unfairly. He said his evidence of the period he worked for the respondent based on 2j Taifa Mwaipaya Tete Vs Mkuu wa Shute Maranatha - Mbalizi OB (Report Book). However during hearing at the CMA respondent tendered only OBs (Report book) of 2009 and 2010 and the three other OBs which are under his custody he refused to tender them before the CMA. Applicant said he was treated unfairly by the respondent because even his NSSF contribution were not contributed, hence he prayed this court to order the respondent to pay compensation for unfair termination In response from the applicants submission Mr. Mbwilo submitted that there was no evidence for hours the applicant claimed as overtime and the arbitratorrelied on the OB tendered at the CMA to award the applicant, so the issue of over time was not proved. As to the issue of leave, notice and salary was settled during mediation therefore the applicant cannot claim again at this level On the the issue of NSSF was not raised at the CMA so cannot be raised' 'atthis stage Hence he prayed the application be dismissed for Jack of merit I have gone through both parties submission court record as well as th relevant labour laws and I find it is undisputed by the both parties that the termination was unfair that is why they partly settled during the mediation stage at the CMA. The issue at hand is whether the arbitrator award was properly procured. Among other things the applicant claimed at the CMA save for 3i Taifa Mwaipaya Tete Vs Mkuu wa Shule Maranatha - Mbalizi what was settled is overtime and other benefits which he did not mention. The applicant strongly believes that the arbitrator erred in not awarding him overtime as claimed in his CMA FORM. 1 The term overtime is defined under section 18 (b) of the Employment and Labour Relation Act, No. 6 of 2004. to mean work over and above ordinary hours of work andihàt are ordinary hours of work are provided under section 19 (2) of the Employment and Labour Relation Act, I quoted for easy of reference; "19(2) subject to this sub part, the maximum number of ordinary days or hours that an employee may be permitted or required to work are; Six days ifl any week; 45hosinanyeek,and Nine hurs in any day" The above cited provision provide clearly that the ordinary days and \ hours that employee required to work so it apparent from the record that the applicant in our instant case worked for seven days in a week from 06:00pm to 06:00am for the year 2006 without a leave or overtime pay which is contrary to the law. It is also on record that for the rest of the years he worked without shift, leave, and resting time and was at work for more than six 41 Taifa M w a i p a y a Tete Vs M k u u wa Shule Maranatha - Mbalizi days in a week. However I find it difficult to know the exactly number of hours that the applicant worked for overtime from the year 2007 to 2009 because there is no evidence that was tendered at the CMA. It is on record that OB of 2009 alone was tendered before the CMA, therefore it difficult for this .court to get the overtime hours that the applicant is claiming to have worked to the respondent for the years 2007 and 2008. However, for 2006 is very clear as it evidenced from the_*o,rd that there were no shift because they were only two gtards as was testified by the applicant fellow security guard one Fred Gilion Mwandele In my view the applicant deserved to be paid his overtime. As to the other claims I fully agreed With Mr. Mbwilo that were settled during mediation stage at the CMA, so the applicant cannot claim again in this court The law under section 19(5) of the Employment and Labour Relation Act, No6 of 2004 provide that, An employer shall pay an employee not less than one and one / half,.times the employee's basic wage for any overtime worked". Also section 25 of the Act provide that; "If an employee works on public holiday specified in the public Holidays Ordinance, the employer shall pay the employee 1 faifa M w a i p a y a T e t e Vs M k u u wa Shule M a r a n a t h a - Mbalizi double the employee's basic wage for each hour worked on that day." Having considered the discussion above and what the laws provide for the circumstance of this case, without hesitation I find that the applicant is entitled for overtime accrued on the year 1 2006 Therefore the year 2006 comprise of 15 public holidays as indicated under the Public Holidays Ordinance(amelidment) Act, Cap 35 of 1964. Therefore the court invoke the provisions of the 1st schedule of the Employment and Labour, Relations Act that provide for the calculation of overtime on the basis of monthly wage pay and hourly rate as clearly, stipulated in table for calculation of comparable wage The applicant orked 12 hours for the whole year of 2006 as discussed ib'oc'e, therefore he worked 3 hours overtime for each dayQthichis 3 hours times 351 where the 15 days being have been excluded. The total pay for the overtimèôf the ordinary working day is of the tune of Tshs. 190,124/ =. As to the public holidays which were 15 days per year, the total pay for overtime is equivalent to the amount per hour times two times the hours that the applicant worked on that public holiday and number of holidays that he was at work 61 Taifa Mwaipaya Tete Vs Mkuu wa Shule Maranatha - Mbalizi for the whole year, which makes the total of Tshs. 65,000/=. Then the total overtime payment for the year 2006 is Tshs. 255,125/=. In the result I find the application to have no merit save for the changes made on the overtime payment for the year 2006 which the applicant is entitled to get Tshs 2551125/= ihsteád of Tshs 75,000/= awarded by the Arbitrators. F. It is so or r-K, I o7 1' kBoUD 3/06/2014 ' 18IO 7 Coram: Hon. I.D.Aboud ,Judge Applicant Present For Applicant - Respondent Absent For Respondentf C/CSubir Order: J delivered on 18/6/2014 in presence of the tot of/4I5% n an the-respondent is absent. 1' I. .ABOD JUDGE 18/06/2014 71 P a g e 02 . //t 7 , i