TANESCO V

% < IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY [AT MOROGORO] LABOUR REVISION NO. 27020 OF 2023 (Originated from CMA/MOR/73/2021) TANZANIA ELECTRIC SUPPLY CO. LTD APPLICANT VERSUS AMBERSON KALENGA RESPONDENT JUDGEMENT 30/05/2024 & 30/07/2024 KINYAKA,3.; The present revision emanates from the arbitration decision of the Commission for Mediation and Arbitration for Morogoro hereinafter the "CMA" in Labour Dispute No. CMA/MOR/73/2021 delivered on 25^^ August 2023. According to the pleadings filed and evidence adduced before the CMA, the applicant employed the respondent on l^October 2011 in the position of Gorge Attendant in the Lower Kihansi Environmental Management Project (LKEMP) after the respondent's services were transferred to the applicant from the National Environment Management Council (NEMC). The contract of employment was admitted by the CMA as Exhibit PDl. h- The record reveal that the applicant terminated the employment of the respondent on 23"^ April 2018 upon receiving a directive from the Permanent Secretary, President's Office Public Service Management and Good Governance hereinafter, the "the PS - Public Service" through the letter dated 13^^ April 2018 admitted by the CMA as Exhibit DDI, which directed the applicant to terminate employment of the employees who did not attain secondary education (form four or form six) and whose employment began on 20^^ May 2004. The respondent held standard seven certificate of education. The PS-Publlc Service's directive was Issued pursuant to the Government Circular No. CFC.26/205/01/Q/61 dated 10^^ July 2017 which eliminated all employees from the public service employed after 20^^ May, 2004 who did not attain a minimum qualification of form four education. The record reveal further that the applicant reinstated the respondent through a letter dated 17^^ May 2019 admitted In evidence as Exhibit PD4 upon a directive from the PS-Publlc Service that the respondent should further his education and obtain a form four certificate within three years from 5^^ April 2019. But through a letter dated 12^^ June 2020 admitted in evidence as Exhibit PD5, the respondent's employment was terminated by the applicant on the ground that his reinstatement was erroneously made as he lacked the qualities to be employed by the government according to the directive received from the PS-Public Service dated 19^^ July 2019 with reference number FB.26/205/" A7126. Aggrieved, the respondent filed Labour Dispute No. CMA/MOR/73/2021 at CMA to challenge the respondent's termination of employment based on lack of fairness as to reason and procedure invoked in the termination of the respondent's employment. Before the CMA, an issue arose as to whether the CMA had jurisdiction to entertain the dispute on the ground that the respondent being a public servant ought to have exhausted remedies under section 25(1)(b) of the Public Service Act Cap. 298 R.E. 2002 hereinafter the "Public Service Act" as required by section 32A of the Public Service Act introduced by section 26 of the Written Laws (Miscellaneous Amendment Act)(No. 3), Act No. 13 of 2016 hereinafter, the "Amending Act". The Hon. Arbitrator opined that the respondent's employment was independent under the Lower Kihansi Environmental Management Project (LKEMP) and therefore, the provisions of the Public Service Act were not applicable to him. The CMA proceeded with the dispute on its merit and on conclusion of the trial, it ruled in favour of the respondent holding that he was unfairly terminated and ordered for his immediate reinstatement. Aggrieved by the CMA's decision, the applicant filed the present revision challenging the CMA's award on the following grounds:- 3 (i) That, the Arbitrator erred in law in acting on a matter on which he lacked jurisdiction; (ii) That, the Arbitrator erred in law and fact by acting with prejudice in the entire process of determining the dispute in question; (iii) That, the Arbitrator misdirected himself in holding that the Respondent was working under independent project within the Applicant's company hence he was not bound by provisions of the Public Service Act; (iv) That, the Arbitrator erred in law in holding that there were no fair reasons for terminating the services of the Respondent; and (v) That, the Arbitrator erred in law in ordering re engagement of the Respondent in a sheer contravention of the government's directives relating to qualifications of employment in the public service. The application proceeded by way of written submissions. Before the Court, the applicant at different times was represented with Ms. Emma Ambonisye, Mzumbe Eliakim Machunda, Elfrida Mutashobya and Lightness Tarimo, all learned State Attorneys who were assisted by Advocate Nobert Bedder, Legal Zonal Officer of the applicant while Mr. Elibahati Akyoo, learned counsel appeared for the respondent. Arguing for the application, Mr. Bedder who drew and filed the applicant's written submissions, opted to submit only on the first, third and fourth grounds of revision. On the first ground, the learned counsel complained that the Arbitrator acted on a matter on which he lacked jurisdiction. He was fortified by section 32A of the Public Service Act which was introduced by the Amending Act. Elaborating on the ground, the learned counsel averred that the new section envisages that public servants, prior to seeking remedies provided under the labour laws, the employee must first exhaust all remedies provided for under the Public Service Act. Upon citing the definition of the word 'commission' under section 3 of the Public Service Act, Mr. Bedder expounded that section 25 of the Public Service Act envisages remedies to be exhausted by the public servants and according to him, section 25(1) b of the Public Service Act covers the remedy which could have been taken by the respondent following his termination. Cementing further on his standpoint, Mr. Bedder demonstrated that the labour law remedies which public servants used to exhaust on termination before the coming into operation of the amendment, can no longer be exhausted currently. He said, the amendment in section 32A of the Public Service Act using the verb 'shall' exhaustion of remedies under the Public Service Act is absolutely imperative. Mr. Bedder highlighted further that the respondent is a public corporation, incorporated under the Public Corporations Act of 1972. He elaborated that under section 3 of the Public Corporation Act, a public corporation is defined to mean 'any corporation established under this Act or any other law in which the Government or its agent owns51% or more ofshares'. He demonstrated further that the government of Tanzania owns 100% shares of the respondent through the office of the Secretary of Treasury and thus, it is a public corporation and all its employees are public servants and fall squarely under the spirit of the Public Service Act. Buttressed by the case of Tanzania Posts Corporation v. Dominic A. Kilangi, Civil Appeal No. 12 of 2022,[2023] TZCA 17628 (20 September 2023), Mr. Bedder, concluded that the Respondent's appeal to the CMA was a total misdirection as the CMA had no jurisdiction to entertain the dispute. On the third ground, Mr. Bedder pressed that the Arbitrator misdirected himself in holding that the respondent was working under independent project within the applicant, hence he was not bound by provisions of the 6 ^ Public Service Act. It was his submission that the respondent was working under NEMC (National Environment Management Council) project responsible for conserving rare Kihansi frogs at Kihansi which was financed by the World Bank, and in 2011 after the World Bank withdrew its financing of the project, NEMC transferred his employment to the applicant and on 19^^ September 2011, he was issued with an employment letter with the applicant in a position of Gorge Attendant. He was of the view that the respondent became an employee of the applicant and was subject to all legal requirements relating to his employment including the abrupt changes which were introduced by the amendment of the Public Service Act, Act No. 8 of 2007 through the Amending Act. In relation to the fourth ground, the learned counsel enunciated that the Government Circular which eliminated all employees employed in the public service after 20^^ May 2004 who did not attain a minimum qualification of form four education, was the core reason for the respondent's termination as he lacked qualifications for employment in the public service as articulated in the circular. As for him, the applicant proved that he had a fair reason to terminate the services of the respondent as there is no way the applicant would continue to employ him due to his lack of qualifications. 7 Closing his submissions, Mr. Bedder reiterated the prayers in the adopted affidavit for the revision of the CMA Award which was made in favour of the respondent. In response, Mr. Akyoo, learned counsel for the respondent started by adopting the counter affidavit sworn by him together with all annexure and prayed the same to form part of his submissions. It was his submission that the respondent was employed by the applicant on the October 2011 on a contract basis as a Gorge Attendant in a fixed term employment contract and not in a permanent term. He referred the Court to Exhibit PDl, the local agreement entered between the applicant and respondent and submitted that the same states clearly that the contract is a fixed term contract and either party may terminate the agreement in a 30 days' written notice to the other party, after confirmation subject to Employment and Labour Relations Act No. 6 of 2004 and Labour Institutions Act No.7 of 2007 and not the Public Service Act as stated by the applicant. Attacking the applicant's submission in relation to the CMA award, Mr. Akyoo submitted that the arbitrator was correct in substantiating that the respondent was not a public servant within the meaning of section 3 of the Public Service Act. According to him, the said circular with reference No. CFC.26/205/01/Q/61 dated 10^^ July 2017 from the PS-Public Service 8 had nothing to do with the respondent as section 32A of the Public Service Act is irrelevant to the respondent. In relation to the applicant's complaint that the CMA had no jurisdiction to entertain the dispute, he referred to the respondent's employment contract and submitted that the respondent was an independent contractor. On winding up, Mr. Akyoo attacked the applicant that she terminated the employment service of the respondent without justifiable reasons and no any procedure was adhered. He further claimed that the respondent was not given the right to be heard and thus urged the Court to dismiss the present application with costs. Having appreciated the submissions of the parties for and against the present application, my role is to decide whether the present application is merited. In doing so, I will first determine by consolidating the applicant's first and third grounds in support of the application, and if need be, I will proceed to determine the remaining grounds for revision. The first and third grounds fault the award of the CMA for being made without jurisdiction with an assumption that the employment dispute involved the respondent who was working with the applicant in an independent LKEMP project hence, the provision of the Public Service Act did not apply to the dispute. This part of the decision is found on page 6 through to 7 of the award of the CMA. I should point out at the onset that in determining the question of jurisdiction, the CMA did not hold that the applicant was not a public service office within the meaning of a 'public service office' under section 3(a) of the Public Service Act. It is clear from the definition that the applicant is a paid public office in the United Republic charged with the delivery of public services. The applicant is not one of the excluded public offices enumerated under section 3(a)(i) to (v) of the Public Service Act. In the case of Alex Gabriel Kazungu and 2 Others v. Tanzania Electric Supply Company Ltd (Labour Revision 40 of 2020) [2021] TZHC 4059(13 July 2021) on page 7, this Court in resolving the qualm as to whether TANESCO is a public office in relation to provision of section 3(a) of the Public Service Act held as follows on page 8 of its judgment:- "In the definition ofPublic office as defined above, TANESCO has not been excluded in public service office under section 3(a)(i) through (v) of the Public Service Act. It is also dear from the definition that, TANESCO is charged with delivery of public service. The fact that it is a corporate sole In Itself cannot make this Independent Department of Government deregulated by the Public Service Act. 10 In its holding, the CMA stated that the provision of the Public Service Act did not apply to the respondent hence excluding him from the definition of a 'public servant' on the sole reason that the respondent was working with the applicant in an independent LKEMP project. Now, the question worth of my determination is whether according to the nature of the contract between the applicant and the respondent, the respondent was a public servant within the meaning of a the term 'public servant' defined under section 3 of the Public Service Act. The meaning of a public servant is provided under section 3 of the Public Service Act as a person holding or acting in a public service office. I have held above that the applicant falls in and has not been excluded by the definition of a 'public office' under section 3(a) of the Public Service Act. Again, in the second paragraph of page 5 of the award of the CMA, the Hon. Arbitrator made it clear that the applicant is a public service office within the meaning of the Public Service Act. In determining the status of the respondent as to whether he was a person holding or acting in a public service office, it is necessary to scrutinize the nature, terms and conditions of the contract of employment admitted in evidence as Exhibit PDl before the CMA. In doing so, I will discuss or if necessary, reproduce some relevant clauses of Exhibit PDl to establish if the respondent was a public servant, in addition to the 11 ^ introductory part, and clause 2 that were heavily relied by CMA to hold that the respondent was an employee in the independent project. The recital to Exhibit PDl clearly provided that:- "777/5 Employment Agreement made this day of September 2011 between Tanzania Electric Supply Company Limited(TANESCO Limited) of P.O. Box 9024 Dar es Saiaam hereinafter called(the Employer)on one partand Ambason P. Kalenga of P.O. Box 185 Mufmdi, hereinafter called (the Employee)on the other part. Clauses 1 and 4 clearly provided that the respondent was employed on contract basis in the position of a Gorge Attendant and other duties assigned to him by Civil Technician. The terms of employment under clause 2 and 3 provided that the contract commenced on October 2011 which was on fixed term for unspecified contract in which the respondent was required to devote at least 40 hours per week from 8:00 am until 5:00 am. Clause 3 further specified the job site as Kihansi Hydro Power Plant but when the circumstances require, the respondent would be required to work in other places other than his work place. Clause 5 required the respondent to report to the Civil Technician. Under Clause 6, his salary was TZS 321,170 per month payable at the last working day of the month. He was entitled to bonus which depended on the profitability of the applicant, medical and PPF contribution under ctr 12 clause 7. He was under probation of 6 months and on 24^^ May 2012, his employment was confirmed under the same terms and conditions under Exhibit PDl. He was also entitled to 28 days'annual leave for every twelve months of service, sick leave, holiday leave, and maternity leave under clause 9, 10, 11 and 12, respectively. The applicant was subject to honest and professional conduct, and confidentiality requirements under clause 13 and 14, respectively, as well as termination provisions In which either party had a right to terminate the contract. It is clear from the above recital and the relevant clauses above articulated, that the respondent was an employee of the applicant, was supervised and reported to Civil Technician under the structure within the applicant. The respondent was not employed, paid or supervised by the LKEMP project. Further, apart from the respondent being employed by the applicant to work at Its site in LKEMP project, under clause 3 of Exhibit PDl, he was obliged to work in other places if the circumstances require. Even if the respondent was solely employed by the applicant to work in the LKEMP project, which Is not the case, the project was owned and/or ran by the applicant. Contrary to what was held by the CMA, the LKEMP project was neither an independent nor a separate Institution from the applicant. According to clause 3 of Exhibit PDl, the LKEMP project was a 13 site or station of the employer that the respondent was posted to work as a Gorge Technician. From the analysis above, it is clear that there existed an employer- employee relationship between the respondent and the applicant. There was no such independent or separate employment relationship between the respondent and LKEMP project. The respondent was employed and under the control of the applicant regardless of whether he was under permanent or fixed term contract. The relationship between the respondent and the applicant fell squarely under the definitions of the words 'employee', 'employer' and 'employment' under section 4 of the Employment and Labour Relations Act Cap. 366 R.E. 2019 hereinafter the "ELRA". It is my considered position based on the above facts and the law articulated above that the respondent was a public servant within the meaning of section 3 of the Public Service Act, as he held the position of Gorge Attendant in the applicant, a public service office. Working in the LKEMP project site as a work station within the applicant that the respondent was posted, does not make the LKEMP project an independent institution or an employer of the respondent. Not only that the respondent was required to work at LKEMP project, but also was under 14 the obligation to work in any other place within the applicant if circumstances require. That being the case, I have arrived at a conclusion that the respondent was a public servant employed by a public service office and hence was required to comply with section 32A of the Public Service Act before invoking the dispute settlement mechanisms under the ELRA. Section 32A of the Public Service Act provides: '>1 public servant shall, prior to seeking remedies pro vided for in labour laws, exhaust aii remedies asprovided for under this Act" As such, the respondent was bound to invoke the dispute settlement mechanisms provided by the Public Service Act. A broader interpretation of the section above has been made by the Court of Appeal in its recent decision in the case of Tanzania Posts Cooperation v, Evaristo Miho, Civil Appeal No. 87 of 2023 [2024] TZCA 443 (11 June 2024) where on page 10 of the decision, the Court underlined that:- ''The above section, as correctly argued by Ms. Lupondo, requires a public servant to exhaust aii iocai remedies available in disciplinary mechanisms system within the organization first, before approaching other institutions. This Court in several occasions, has pronounced itseif on the appiicabiiity of the above provisions on the disciplinary 15 processes to be undertaken by employees in the publicservice like the respondent herein. Unhesitantly, I proceed to hold that it was a fatal irregularity for the CMA to hold that the provisions of the Public Service Act were inapplicable to the respondent based on an erroneous finding that the respondent worked in an independent LKEMP project. I further hold that it was a material irregularity for the CMA to adjudicate the labour dispute involving a public servant on merit prior to the respondent's exhaustion of the remedies under the Public Service Act. In holding as above, I am fortified by the decision of the Court of Appeal in the case of Tanzania Posts Corporation (supra) where on page 14 of the decision, the Court held:- "7/7 this appeal, ourscrutiny ofthe record ofappeal hasshown that there was no attempt by the respondents to go through the disciplinary mechanisms within the corporation as specified in the respective Rules, nor those within the provisions of the Public Service Act, required for public servants. Therefore, ground one has substance. For the foregoing, we are ofthe view that the CMA had nojurisdiction to entertain the dispute between the respondents who are public servants and the appellant 16 In the circumstance, I find no need to address the applicant's remaining grounds for revision, as my findings in the first and third grounds are sufficient to dispose of the present application. In the upshot, the present application is allowed to the extent demonstrated above. In consequence, I quash the proceedings and set aside the award and orders made by the CMA in CMA/MOR/73/2021. This being a labour dispute, I order each party to bear its own costs. It is so ordered. Right of appeal fully explained. DATED at MOROGORO this 30^^ day of July 2024. H. A. KINYAKA JUDGE 30/07/2024 17