tanzania fertilizers company vs ayoub omary 2020 tzhc 395 18 march 2020

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (LABOUR DIVISION) AT MBEYA LABOUR REVISION NO. 13 OF 2019 (Originate from Complaint No. CMA/MBY/87/2013) TANZANIA FERTILIZERS COMPANY.......................... APPLICANT VERSUS AYOUB OMARY....................................................... RESPONDENT JUDGMENT Date of last order: 17/03/2020 Date of Judgment: 18/03/2020 NDUNGURU, J . The applicant namely Tanzania Fertilizers Company dissatisfied with the decision of the Commission for Mediation and Arbitration award procured on 29th May, 2017 in the Complaint No. CMA/MBY/87/2013 where the learned Arbitrator confirmed the respondents claim for payment of the sum total of 181,630,000/= as Golden Hand Shake in accordance with the Collective agreement entered between Applicant and TUICO in 1998. The applicant has now filed the present revision by way of notice of application under Sections 91 (1) (a) & (b), 2 (a) (b) and (c) 94 (1) Act No. 6 of 2004 as amended by Section 14 of the Miscellaneous Amendment Act No. Page 1 of 11 17 (Amendment No. 3) of 2010, Rule 24 (1), (2) (a), (b), (c), (d) and (f), 3 (a) (b) (c), (d) and Rule 28 (1) (a), (b), (c), (d) and (e) of the Labour Court Rules G.N. No. 106 of 2007. The applicant has also filed a Chamber Summons under Section 91 (1) (as above) supported by affidavit duly sworn by one Kanjel S. Mloba the Principal Officer of the applicant. The applicants prayers are couched as follows: (i) That this honourable Court be pleased to call for and examine the records of the decision/Arbitral award of the Commission for Mediation and Arbitration at Mbeya by Honourable Boniface L. Nyambo dated 29th May, 2017 in Labour Dispute No. CMA/MBYA/87/2013 for the purpose of satisfying itself as to the correctness, legality, or propriety of the said proceedings and as to their irregularity and revise it accordingly. (ii) Any other order this court may deem fit and just to grant. The reasons/grounds for revision are setforth at paragraph 14 of the applicant's affidavit to wit: (a) That the Arbitrator erred in law and facts in holding the applicant should pay the respondent Tshs. 181,630,000/= as Golden Hand Shake in accordance with the collective agreement. (b) That the Arbitrator erred in law and facts in holding that the applicant acted for his own interest and with no reason when golden hand shake. Page 2 of 11 (c) That the Arbitrator erred in law and facts in holding that the Applicant was bound by practice in paying the Respondent the claimed golden hand shake and that it declined to implement the said agreement only when the Respondent turn came. (d) That Arbitrator erred in law and facts by holding that the act of the Applicant to decline enforcing the void agreement was as good as discriminating the Respondent. The respondent resisted the application by filing counter affidavit to that effect. The respondent has disputed all the contents contained in paragraph 7 -1 6 of the applicants affidavit and the respondent has put the applicant to strict proof thereof. When the application was before me for hearing the applicant was represented by Mr. Ndanu Emmanuel learned counsel from Law Associates Advocate Firm while the respondent enjoyed the service of Mr. Chamwai Mussa learned advocate from TUICO Legal department. Submitting in support of the application, Mr. Ndanu Emmanuel learned counsel told the court that the collective agreement in which the respondent claim is based on and the Arbitrator based on deciding the respondent be paid 181,630,000/= was not valid and binding because the same was not registered by the Labour Court as required by law. He submitted that Section 41 (1) (2) up to 47 of the Industrial Court Act, Cap 60 (Revised Edition 2002) Page 3 of 11 and Treasury Registrar (Powers & Functions) Act Cap 370 provided the procedure and conditions necessary for the collective agreement to be enforceable among others is that the agreement having been made and signed must be sent to the Labour Court for registration, he said during hearing at CMA there was no evidence to prove that the said agreement was registered. Mr. Ndanu learned advocate submitted further that it is true that some employees were paid golden hand shake before the voluntary agreement was registered, but immediately after the applicant had discovered that the voluntary agreement was not registered stopped from paying the employees who were to benefit from the voluntary agreement. He went in submitting that the denial to pay the respondent according to the Voluntary agreement was not a discrimination it was after the applicant had found that the Voluntary agreement was not enforceable, the counsel referred the case of Apia Salum & Others vs. Director General Coasco and Attorney General. Mr. Ndanu learned counsel submitted further to the effect that even if the Voluntary agreement could have been valid according to item 21.1 of the agreement the life span is 36 months thus from 1998 when the agreement was made, it was required to expire on 2001 thus it could not benefit the Page 4 of 11 respondent because the respondent retired in 2013. The counsel urged the court to set aside the arbitral award issued by the Arbitrator. In his response, Mr. Chamwai Mussa learned counsel for the respondent submitted to the effect that, the Voluntary agreement was signed by Tanzania Fertilizers Company and TUICO in 1998, the same was submitted to and registered by the Industrial Court according to Section 41 (1) (2) & (3) of Cap 60 and the decree of the court was issued on 06/02/1998. He submitted that the whole process of registering was done and approved that is why the Voluntary agreement was enforced for almost 19 years without any problem. The counsel referred to this court the case of Ibrahim Kamundi Shayo vs. Tanzania Fertilizers Company he said the case involved the same Voluntary agreement, where the question of validity of the same was at issueand the High Court, (Hon. Lady Justice Nyerere J as she was) held that the Voluntary agreement was valid thus enforceable thus ordered the complainant to be paid the golden hand shake. I had an opportunity to go through the record of CMA, the application and counter affidavit and the submissions made by both the counsel. The question is whether this appeal is meritorious. This court being the first appellate court, has the right and duty to re analyse and re evaluate evidence and come into its conclusion while being cautious that it has not witnessed the witnesses when testifying. It was the Page 5 of 11 testimony of the respondent that he was an employee of the applicant and that he retired in 2013 and having been paid his terminal benefits he was not paid golden hand shake which others were paid. That he wrote the letter to the applicant (Exhibit"!3) claiming to be paid the same but the response was that the applicant is facing severe financial crises for now is impossible to pay the golden hand shake as provided under Voluntary agreement (Exhibit"P5). The defence was that having noted that the Voluntary Agreement was not registered stopped payment. From the testimony it is not stated when did the applicant discover that the agreement was not registered whether before or after the respondent had claimed for the same. This is due to the fact that the Voluntary Agreement was signed in 1998 and some of the employees were paid under the same till 2012 and when the respondent retired in 2013 wrote to claim the same. The applicant did not tell him that he will not to be paid on the ground that the Voluntary Agreement was not registered thus illegal and un enforceable. The response of the applicant was that the company is facing financial crises (Exhibit P5) for easy of reference I reproduce it hereunder; Page 6 of 11 Ref TFC.GM.02/L.562 27, August,2013 Mr. Ayoub Oman\ c/o Zonal Manager, Tanzania Fertilizer Company Limited, P. O. Box 1767, MBEYA. Dear Sir, RE: PA YMENT OF GOLDEN HANDSHAKE Please be informed that, after thorough analysis, the TFC Board of Directors has concluded that due to severe financial crisis facing TFC for now impossible to pay the golden hand shake as provided in the Voluntary Agreement between TUICO and TFC signed in 1998. By this letter therefore, we are officially informing you that the said payments will not be paid. The TFC Board regrets to this unfortunate developments which have been caused by factors beyond control. Yours faithfully, TANZANIA FERTILIZER COMPANY LIMITED Sgd. S. K. Mkumba GENERAL MANAGER c.c. TUICO Secretary, Tanzania Fertilizer Company Limited, P. O. Box 9434, DARES SALAAM. From the above reproduced letter it is clear that the applicant was aware of the existence and enforceability of the voluntary agreement. Thus the defence raised is an afterthought. If the respondent could had been denied payment on the ground that the voluntary agreement was illegal the question before this court would be on the legality or illegality of the voluntary agreement and the same could have been reflected in the referral form No.l. Page 7 of 11 The question to ask is what action did the applicant take having found that the Voluntary Agreement was not registered to cure it while knowing that the employees have lived on such an agreement for all that time. From the evidence on record no measure was taken by the applicant to rectify the situation if at all believed that the voluntary agreement was illegal. The act of remaining silent while continued paying other employees on the same agreement implies that the agreement was valid and binding thus enforceable. In my opinion the Voluntary Agreement being made in 1998 and remained in operation for all that time till 2013, even if was not registered as required and no step was taken by the parties to register it cannot be taken as a ground or reason to punish the innocent respondent when claimed to be paid according to the said agreement. Also it is clear from the record that the Voluntary Agreement stipulated either party to notify other party concerning any modification or changes of the agreement within three months but the applicant did not communicate with TUICO concerning any defect. Again the same Voluntary Agreement was at issue as far as its validity is concerned. This court in the case of Ibrahim Kamundi Shayo vs. Tanzania Fertilizers Company, Labour Dispute No. 01 of 2014 High Court (Unreported) held that Voluntary Agreement was Page 8 of 11 valid and enforceable. I am of the same position that the said Voluntary Agreement still was valid and enforced on the eyes of law. Moreover, if other employees were paid golden hand shake based on the same Voluntary Agreement why not applied to the respondent. It is clear there some elements of the discrimination on the side of the respondent. This position is well provided under Section 7 of the Employment and Labour Relations Act, 2004, the relevant provisions provide and I quote for easy of reference: "7 (1) Every employer shall ensure that he promote an equal opportunity In employment and strives to eliminate discrimination in any employment policy or practice. 7 (4) No employer shall discriminate , directly or indirectly, against an employee, in any employment policy or practice, on any o f the following grounds: (a) colour (b) nationality (c) tribe or place o f origin (d) race (e) national extraction (f) social origin (g) political opinion or religion (h) sex (i) gender (j) pregnancy (k) marital status or family responsibility (I) disability (m) HIV/ Aids (n) Age (o) station o f life. 7 (5) Harassment of an employee shall be a form of discrimination and shall be prohibited on any one, or combination, o f the grounds prescribed in subsection (4). 7(6) It is not discrimination - (b) to distinguish ...or prefer any person on the basis of inherent requirements o f a job. 7 (9) For purpose o f this section, (a)... (b)... (c) an employment policy or practice' includes...remuneration, employment benefits and terms and conditions of employment..." Page 9 of 11 The term discrimination, is not directly defined under the Act, but its meaning can be extrapolated from the definition contained in the ILO Convention No. I ll - Discrimination (Employment and Occupation) Convention, 1958 one of the core Conventions of the ILO ratified by Tanzania, and incorporated under the Act - Section 3 (g) - of the Principal Objectives. That Convention defines discrimination to include: "Article 15 (3)........................ (b) Such other distinction, exclusion or preference which has the effect of nullifying or impairing equality o f opportunity or treatment in employment or occupation as may be determined by the member concerned after consultation with representative employers' and workers' organizations, where such exist and ; with other appropriate bodies" In my opinion therefore, the applicant has made different treatment between the respondent and other employees of similar position with similar qualification and therefore discriminated the respondent. Having so said I find the application fall short of merit. I accordingly Page 10 of 11 Date: 18/03/2020 Coram: D. B. Ndunguru, J Applicant: Absent For the Applicant: Absent Respondent: Present in person For the Respondent: B/C: M. Mihayo Court: The matter is coming for judgment today, the same is delivered in the presence of the respondent in person and in the absence of the applicant. Right of Appeal explained. Page 11 of 11