tanzania electric supply company limited vs innocent shirima 43 others 2022 tzhcld 131 28 march 2022

THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION APPLICATION NO. 323 OF 2020 BETWEEN . TANZANIA ELECTRIC SUPPLY COMPANY LIMITED ......APPLICANT AND INNOCENT SHIRIMA &43 OTHERS.... ................... RESPONDENTS JUDGMENT ; k '• - ' Date of last order: 08/03/2022 ' . - ,’ Date of Judgment: 28/3/2022 ' ‘‘ ' B. E. K. Mqanqa, J <\ < On 26th May/2017;Jn terms of Rule 34(1) of the Employment and Labour Relations?(Cocle of Good Practice) Rules, GN. No. 47 of 2007, Israel Alfedx'MbukWa/^Haji Salum Aga, Omari Alfan Ahmad, Said Shamte Mwangai,'- Lemburis Ole-Lombo,Mussa Ismail Kamunde, Hassan A. Kipembe, Robert A. Sambu, Raymond Curthbert Kuziwa, Abdallah Mussa, Hamis Hamis Runje, Rashid Kimbale, Mila Yasin Meek, Eradius Justine Wesimaba, Joel Ambonisye Mwabamba, yahya Shaban Nyang'undu, 1 Emmanuel Lusekelo Maloboko, Edward Dismas Dismas, Fredrick Aidan Mapunda, Alhadhir Wazir Lulimo, Nyange Ahmed Kiboko, Yasin Salum Hemed, Evodius Gerevas,Athuman Hassan, Kabaka Ninde Ninde, Japhet John John, Mustafa Omary, Marijan Sawa, Antony Sammy Simon, Angelous Litula Expedite, Ramadhan Said Zame, ^Shamte Abdallah, / Y ’ Benedict Philemon Eriyo, Ally Salehe Mkali, SultanJuma .Chuma, Omari '? ■ Mganga, Bakari Saad Mateso, Daniel Frank Likoko, Innocent Shirima, *1,41 X? ‘ ‘ X Wilson Alex Shauli, Hamis Koso Rashid, Shamte: Magoga,Siraji Shaweji, Kassim Mustapha and Mdimu Stanley all in total’being 45 appended their signature and authorized Innocent Shirima to file the dispute before the Commission for Mediation and Arbitration henceforth CMA on their behalf. On the same date, Innocent^Shirima filed the dispute at CMA. In the CMA ■*-»**» ^ u><-r . Fl, it was shown that the dispute arose on 30th April 2017 and that the respondents .were^claiming to be paid notice pay, severance pay, leave and compensation.for unfair termination. In the said CMA Fl it was not shown as to wheri^ respondents started to work with the applicant and the amount they are claiming. On 6th September 2019, M. Batenga, arbitrator, having heard evidence of both sides delivered the award that according to contracts 2 tendered by the parties, respondents were employed for one-month specific task renewable, but that applicant failed to prove that contracts of the respondents were not continuous. The arbitrator went on that, respondents had legitimate expectation of renewal of their contracts and that termination was unfair. The arbitrator ordered the respondent be paid notice pay, severance pay and 12 months’ compensation. \ ■ Applicant was aggrieved by the said the said award as a result she filed this application seeking the court to revise j,t. the applicant filed both the notice of application and an affidavit affirmed by Farid Adam Sued, her principal officer. Applicant raised four ground namely: - 1. That the arbitrator erred:in taw and facts for entertaining the matter while it had no jurisdiction. < 2. That the arbitrator erred in law and fact by arriving at a decision basing on the evidence offdutwitness purporting to acton behalf of others. 3. That-the arbitrator erred in law and fact when she held that the r s complainants' were employed under permanent contracts based on ' speculations and in disregard of the law while there was ample evidence to prove'that they were working under specific task Contracts. 4. That the arbitrator grossly failed to analyze and evaluate the evidence and testimonies of die witnesses hence leading to unfair award. On 23rd August 2021, in Misc. Application No. 113 of 2021, this court granted leave to Benedict Philemon Eriyo to appear on his behalf and 3 represent other 43 respondents. With that leave, on 29th August 2021, Benedict Philemon Eriyo filed the counter affidavit opposing the application. When the application was called for hearing, the applicant was represented by Musa Mbula, Principal State Attorney, Deodatus Nyoni, PSA, Adelaida Ernest, State Attorney, Farida Swed, State Attorney and Fahika Mamuya, State Attorney. The respondents were represented^ by Sothenes ■ Mdeule, advocate. .5 . In arguing the application for the applicant, lyir/Mbula, Principal state Attorney and Farida Sued, State (Attorney,, dropped the 1st and 2nd grounds \ \ r *. ‘ J''. and argued the 3rd and 4th grounds only. It was submitted by Ms. Sued, State Attorney that respondents were employed at specific performance % L contracts and not permanent contracts as evidenced by exhibit SHI that \\ ■ J; was tendered:;by PWyl,- exhibit SH4 that was tendered by PW3 and exhibit X-. '' TAN . 1 that/wasxtendered by DW1. State Attorney submitted that each contract was; ranging for three months from 1st April 2017 to 30th April "x * .*■’ 2017. Ms. Sued, State Attorney submitted that the Arbitrator erred in holding that respondents were unfairly terminated because applicant did not renew 4 the contract while there was legitimate expectation for renewal in terms of section 36 of the employment and Labour Relations [ Cap. 366 R. E. 2019]. She submitted that respondents were not employed on fixed term contract but for specific task. She submitted further that, in CMA Fl, respondents were claiming to be paid notice, severance and compensation for unfair termination and showed that the dispute arose on 30th April 2017. State Attorney submitted further that the CMA Fl did notxshow that the dispute included also other persons whose names areSipt’frhthe said CMA Fl. ..- >f- State Attorney submitted also,that respondents were not covered under section 35 of Cap. 366 R.E. 2019-‘;(supra) because their employment was for less than six months' therefore there cannot be unlawful termination. She argued further thaC'the mere fact that respondents worked for a long //"X\ time with the ^applicant/ at different time for specific task, does not "V'.: I -■* automaticaily^change the nature of their employment. She cited the case G. i1-' , . of Group Six International v. Musa Mauiid ano another, revision No, 428 of 2015, High Court(unreported), Hussein Juma Ngobeio v. China Railway Jiang Chang Co. Ltd, Revision No. 67 of 2015, High Court(unreported) to bolster her argument. She concluded that arbitrator 5 assumed wrongly that several specific task contracts created legitimate expectation for renewal of contracts of the respondents. Ms. Sued, State Attorney submitted further that Arbitrator disregarded the notice dated 22nd March 2017 (exh.TAN2) that was issued by the applicant to the respondents informing them that there wiir’be/no .renewal when their contracts expires. She submitted, that contracts of the respondents were terminated on 30th April 2017 fpn'the, date the contracts expired and that, there was no room for legitimate expectation to exist. ’ X. lrC> State Attorney submitted further that Arbitrator awarded reliefs to the respondents as if they were ^employed' for permanent terms while they were not. She submitted, ' that respondents were awarded notice, severance, and 12/months''.salary compensation. She concluded that in ’ .« *. j terms of section ’13sdf Gap. 366 R.E (supra) the arbitrator erred. ./ Ih--.ppposing\,the application, Mbedule, advocate for the respondents, submitted:that employment of the respondents started in 2002 although no contract was tendered ta CMA to that effect. He argued that respondents were paid salaries continuously (exh. SH5) hence a proof that they were employed on permanent terms. Counsel submitted that Group six's case 6 (supra) and Ngobelo's case (supra) are distinguishable and not applicable to the application at hand. Counsel for the respondents submitted further that respondents were paid on monthly basis though calculations were made on daily basis and that respondents worked for more than ten years therefore they cannot be \Vz regarded that they were employed for a specific taskx. During his submissions counsel for the respondents conceded that the law does not provide time limit within which an employee cah\be»employed for specific task. \\ J Counsel for the respondents cited-Rule 4(3) of the Employment and Labour Relations (Code of'GoodPractice) Rules, GN. Nos 42 of 2007 as the basis of renewing of the contracts of the respondents. He however, further ... )) conceded that/ contracts" of the respondents were for specific task and not fixed term period''and that their contract does not fall under section 36 ''xx [t Cap. 366^R,/E. 2019 (supra). In relation to the notice, counsel for the respondent submitted that the notice did not give reasons as to why there will be no renewal of contracts of the respondents. He argued that this violated the provisions of section 7 41(3) of Cap. 366 R. E. 2019 (supra) that requires a notice to give reasons. He submitted that the notice therefore violated the principle of natural justice for failure to give reasons and right to be heard. Therefore, there was no justification for the applicant to terminate employment of the respondents. Counsel for the respondents argued further? that; procedures for termination were not followed because the notice (exh. TAN 2) was issued prior to the parties entering the contract. \ ** ’ 1 ’ /•» Counsel for the respondents were paid ^severance by the applicant and that the arbitrator properly awarded respondents to be paid 12 months' compensation but that it was not; proper for them to be awarded notice pay. In rejoinder, Ms. Sued State Attorney submitted that respondents were employed for:;spedfic:-task and none of their contracts exceeded three months' contract. ^She concluded that the contract between the parties expired-automatically. Responding on the argument by counsel for the respondents that the notice violated the principle of natural justice, Mr. Mbula, Principal State Attorney submitted that the principle of natural justice was not violated by the applicant. 8 Having heard submissions by both sides and examined evidence on the CMA record, I have opted to start with the complaint that the CMA Fl does not show that the dispute included also other persons whose names are not in the said CMA Fl. I have examined the CMA Fl and find that Innocent Shirima indicated that the dispute was filed by himself and 43 CZ'"\K. others. In fact there is an annexture to the said CMA Fl. showing that Innocent Shirima was appointed other applicantswho appended their signatures on the document appointing him iriterrrissof Rule 34(1) of the ’X \s Employment and Labour Relations.. (General''Regulations) GN. No. 47 of 2007 to file the dispute on behalf of, 44 others who appended their ’X .{J signature. The Form referred .to in Rule 34(1) of GN. 47 of 2007 (supra) relates to notification to exercise organizational rights and it is supposed to be filled by ..a Trade-Union to notify the employer that they are seeking to ' 'X * exercise their rights.1 In short, the said section has nothing to do with filing the dispute before CMA. But so long as they signed the form indicating that they are appointing Innocent Shirima to file the dispute at CMA on their behalf, in the interest of justice, I hold that the dispute was properly filed and heard. I therefore dismiss that complaint as it lacks merit. 9 It was submitted by the State Attorney that respondents were employed for specific task but counsel for the respondents was of the contrary view. Evidence of the parties at CMA gives the answer to this issue. In his evidence Benedict Philemon Eriyo (PW1), testified that he was employed in 1998 for the contract of three months'';andrthat later on himself and others were issued a one-month contract. He. went on that they were paid TZS 15,000/= dally but the money was paid at the end of each month. While under cross examination,'PWixadmitted that he didn't have evidence showing that his employment started in 1998. He admitted further that he was not employed on permanent terms and that at the end of his contract he was paid..1 On his part, Mr,. Siraji Omari Shaweji (PW2) testified that they had three to six / fixed.\-rter'm contracts renewable. While under cross examinatiph/:PW2 testified that they had six months' fixed term contracts and hot.,permanent contracts. He admitted that the last contract was for one month at TZS 15,000/= daily. PW2 testified that he was not employed at permanent terms and that he was not terminated but the contract expired automatically. When under re-examination, PW2 testified that their io contracts showed that payment were on daily basis, but they were paid monthly. Omari Mustafa Omari (PW3) testified that he was employed for specific task contract at the contract of one-month renewable. While under cross examination admitted that he was employed at a contract'of one month renewable and that a notice that there will be no renewal, was issued. Eradius Justine Rwesimba (PW4) testified that,every.month was signing a contract and that they had expectation to jen'ew the contract, but they received termination letter. ■ • . ’ These were the only-witnesses/who testified on behalf of the respondents. \ . On the other' hand,' Bruno Novart Tarimo (DW1) testified that, respondents were employed for specific task contracts as evidenced by their< contracts)/(Exh. TAN1) and that they had a one-month contract renewable./He testified further that; respondents were issued with a notice informing them that there will be no renewal of contrcats (exh. TAN2 ) because applicant had no work for them to perform. While under cross examination DW1 testified that respondents were paid severance pay 11 wrongly because they were not entitled because they had a three months' contracts. From the evidence of the parties, there is no doubt that respondents were not employed on permanent basis. I have examined contracts of the respondent and finds that their employments werejor'specific task. Contracts of the respondents (exh. TAN 1) .reads "MKATABA WA \ f' MFANYAKAZI WA KAZI YA MUDA MAALUM (SPECIFIC TASK) " With that evidence, the argument by counsel-for'the respondents that • I .- respondents were employed on. permanent terms dies a natural death. Whatever the case, the mere fact .that "respondents worked continuously f ' " with the applicant, that did ' not change the nature of their contract as it was held in Group six's case, (supra) and Ngobeio's case (supra). Since evidence shows that respondents had employment contracts of one month, I hold that-they were not covered by the provisions of section 35 of Cap. ■ \ J1J 366 R.-.E. 2019 (supra) relating to unfair termination. It was submitted by counsel for the respondent that there was unfair termination, but State Attorney submitted that contracts of the respondents expired automatically and that they were informed through exhibit TAN 2 that there will be no renewal of their contracts upon expiry. 12 Counsel for the respondent argued that the said notice violated section 41(3) of Cap. 366 R. E. 366 (supra) and the principles of natural justice. With due respect to counsel for the respondent, unfair termination cannot apply to an employee whose contract is less than six months as per section 35 of Cap. 366 R. E. 2019 (supra). zj The argument by counsel for the respondent that respondents were issued notice of termination in violation of the.ilWis.not correct. In my f 'u *' '*'k view, and as it was testified by DW1, there is no> notice of termination rather an information to the respondent that, there will be no renewal upon expiry of the contract. I have examined/the said notice and find that even reasons for non-renewal was given namely that the contract is coming to an end. Contracts of. the respondents expired automatically. t L \ \ It wak\held<by-the arbitrator that respondents had legitimate expectation ,of?renews I of their contract. A similar view was taken by *'• /f” counsel for/the respondents. That view is not correct in my opinion, X,/’ because the notice is dated 22nd March 2017 and states that the contracts entered on 1st April 2017 but expiring on 30th April 2017 will not be renewed. In my view, this was an advance notice to the respondent that the contracts they will enter on 1st April 2017 will not be renewed upon 13 expiration on 30th 2017. This eliminates the argument of legitimate expectation. Arbitrator therefore erred in holding that respondents had legitimate expectation for their contracts to be renewed. Since the contracts expired automatically, the arbitrator erred to award the respondents to be paid 12 months’ salary compensation. I hold also that both notice and severance pay were 4.wrongly *' awarded */ to the N z , s. respondents. . ! ‘ \ a For all said hereinabove, I hereby ..allow the, application, quash, and Dated at Dar es Salaam’this 28th March 2022. B.E.K. Mganga JUDGE 14