tanzania printing sevice ltd vs suzzane mayowe 2021 tzhcld 2 23 march 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 770 OF 2019 BETWEEN TANZANIA PRINTING SERVICES LTD...... /Z... APPLICANT Xx VERSUS 'X\ VX?’ SUZZANE MAYOWE....................................... RESPONDENT JUDGMENT Date of Last Order: 23/02/2021 X\ Date ofJudgment: 23/03/2021 )V^ jmf , X\ A X// Z. G, Muruke, XX % W Suzzane Mayowe (respondent)>\yas)employed by the applicant as a binder/cleaner on 19th February, 2013, till 22nd December, 2018, under one year fixed contract:<upoh<.performance evaluation. Following poor production, applicant osiukhdb longer manage all of her employee, thus some were retrenel^ed^n^uding respondent. Their agreement to terminate th,eir empIbymenUi^jationship was signed on 29th November, 2019, as a VX A/ result, respbpdeht was paid her dues. However, respondent filed dispute - r> at CMA:-jon^g9tl1 January, 2019, claiming breach of contract, demanding payment of 9 month remained period of contract, certificate of service, leave pay and pension. After conclusion of pleading, mediation failure and hearing by both parties, CMA awarded respondent salary for remained period of 9 years, and 3 days pay leave. In total, applicant was to pay respondent 1,275,000 i Tshs. The award dissatisfied applicant (employer) thus filed present revision raising three issues for determination namely:- That, arbitrator's erred in law and fact by bias evaluation of evidence and ignoring evidence adduced by applicant without any reasons. That, whether it is a legally correct for honourable arbitrator to consider the dispute was by the complainants challenging unfair termination contrary to section<;<38(l)^’/oK the employment and labour relations Act, Act/humBer 6 of 2004. % Weather it was proper for the arbitrator to ignore^nd failed to consider documentary evidence tendered by the applicant and admitted by the commission. On the date set for hearing, Anthony^kofhbe and^Victoria Mgonja represented applicant while Zaharia Charaza Who'-was holding brief of Edward Simkoko represented respondent. By consent hearing was by way of written submission. Both parties compliedjwith the schedule hence this judgment. X// Applicant arguedxalohgdihes affidavit in support of the application, in totality argued that^^they^Jyas agreement to terminate employment following xdisGUssio’n. held between applicant and her employee's, X v '"'X'-- jt J respondentsbeing onekdfthem. So, it was wrong to claim unfair termination at<MA whil^it^wasrby consent. Applicant counsel Victoria Mgonja blamed arbitrator wheiiCconsidered Section 38(1) of the Employment and Labour Relations Actf No. 6, 2004 (RE 2019). On the other hand, respondent counsel, Edward Simkoko from TASIWU, submitted that applicant failed to prove valid and fair procedure for retrenching respondent, as Section 38(1) of Employment and Labour Relations Act and Rule 23(6) of GN 42 of 2007 were not complied with. To 2 the respondent, counsel, arbitrator correctly awarded respondent salary for remained period of contract. Having heard both parties submission, gone through CMA and this court records, issue is whether procedure for terminating respondent, on economic reason was followed. To be able to digest the issue above, reference to the letter said to have terminated respondent is reproduced below. x Susan Steven Mayowe Printing Dept. DAR ES SALAAM YAH: KUACHISHWA KAZI Rejea kichwa cha habari hapo juu Tunakufahamisha kuwa kuanzia tarehe 22/12/2018putakuwa umeachishwa kazi kutokana na ukosefu wa kazi. Kama ulivyoelezwa katika kikap?chaXareiie^29/i'l-/2018 ambayo ulihudhuria na kushiriki katika kifikia uamuzi waxkuachishwaXkaziXNa vpia kama tangazo la tarehe 1/11/2018, ilivyotangaza. ( \\ Kwa mujibu wa sheria ya ajira na mausiano kazini yanvwaka 2004 kifungu cha 41 na 43 malipo (b) Kiinua mgongo - 42*clays^ (c) Malipo yako ya likizo iSdays^ (d) Hati ya utumishi Tafadhali kabidhi mali ya^dflsi'lJlihayo kwa mkuu wako wa kazi ifikapo tarehe 22/12/2018 kabla ya.kupokea/malipo hayo.jU Tunakutakia kila^la kl^eri popote utakapokuwa. Wako, Tanzania Printing*Services Ltd Meneja Mkuu Mimi Suzzane Mayowe nathibitisha kusoma, kuelewa na kukubaliana na yaliyoandikwa katika barua hii. Saini: Sgd Tarehel/12/2018 3 From the content of the letter above, agreement to terminate contract, was duly signed by the parties, respondent has neither complained of fraud nor coercion or any intimidation. There is no any complain that he was person of unsound mind. She duly signed the contract with her fully knowledge and capacity. It is worth also revisiting evidence of PW 1 Suzzane^Maybee at:;page 17 while being cross examined by respondent now applicant'''reflect as follows: drx\ W xX S: Swala la haki ya kuachisha katika m kata ba hud<mlikubalianawipi? Ipo katika mkataba lakini sikusoma Kwani hukuuliza swali lolote wakati wa notisi? Kwa xkiihua mgongo ni sawa, siku 25 za likizo nililipwa hela nyingine nilipokuwa naenda likizo nilikuwa nalipwa chini ya hiyo siku 28 S: Tofauti yake mini? J: Kama Tshs. 10,000/= S: Madai yake? 4 : Kufanya kazi kwa miaka 7 halafu kibarua sijaajiriwa, je haki niliitaka kujua nilimuuliza Aisha. Niliuliza TUICO wakasema sio haki. S: Madai haya ya kujau ajira yangu ni haki ipo kwenye fomu ya madai? J: Sijajua. From the answer of Suzzane herself above, she does not know what she was asking at CMA. Equally so, she was paid her^ties^rgu merit that Section 38 of Employment and Labour Relations Act wasmot complied with is an after thoughts. Exhibit D2 speak loudly thatrthere wasxa meeting to discuss preceded with notice on intention to reguce^imber of employee as indicated at paragraph 1 Exhibit D-2. unce>partW to the contract have signified their consent in thejr termsjofragreefpent, then, court cannot interferer unless there was duress, misrepresentation or frauds etc. % It is the position of the contract law that parties are bound by the terms of their agreement.^This was the position of the Court of appeal in the case of Miriam Maro v>Bank of Tanzania, Civil Appeal No.22/2017 (unreported) where it was'stated that:- It is tne. iaw that-parties are bound by the terms of the agreement they ff^el^egterdntoAWe find solace on this stance in the position we took in Univeier^ Tanzania Ltd k Benedict Mkasa t/a Bema Enterprises, Civil Appeal No. 41 of 2009 (unreported) in which we relied? on a persuasive decision of the Supreme Court of Nigeria in Osun State Government v. Daiami Nigeria Limited, Sc. 277/2002 to articulate: ‘Strictly speaking, under our laws, once parties have freely agreed on their contractual clauses, it would not be open for the courts to change those clauses which parties have agreed between themselves. It was 5 up to the parties concerned to renegotiate and to freeiy rectify clauses which parties find to be onerous. It is not the role of the courts to re­ draft clauses in agreements but to enforce those clauses where parties are in dispute." This court in the case of Hydrox Industrial Services Ltd & 1 Another v CRDB 1996 LTD & 2 Others, Civil Case No. 194/1999 Dar es xx Salaam District registry (unreported) held that; A X Legally if the parties have negotiated and agreed on agenuinexprey estimate of the loss one would suffer if the othefydid not nonour its part of bargain, the defaulting party cannot .bemeardto complain on anything.' XXs Xx V% Xs, There is nothing to the-^cgntrpry^as^jaqrties agreed to end their employment relationship. Arbitrator decision^ was wrongly reached. In totality, the amount of 1275,ddOvTshs^grahted to the respondent is quashed and set aside, the'-amount of'3Jdays leave pay is upheld. Revision application allowed toThe extent-shown JUDGE 23/03/2021 Judgment delivered in the absence of all the parties Z.G.Muruke JUDGE 23/03/2021 6