20140619 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT MBEYA LABOUR REVISION NO. 51 OF 2913,!.. - THE HEAD TEACHER OF IGANZO......U......I. APPLICANT VERSUS. FURAHA MONGO RESPONDENT 1610612014 & 19 under section 91(1),(a) and Employment and Labour Relation Act, No. 6 of 2004, 4(1), (2) and 28(1) (c)(d) and (e) of the Labour Court Rules G.N No. 106 of 2007. The applicant calls upon this court to call for the record and revise the proceeding and set aside the award of the Commission for Mediation and Arbitration (CMA), in the CMA/MBY/143/2012 at Mbeya dated 18/12/2013. 11 P a g e This application emanated from the award delivered on 18/12/2013 by honorable Mwalongo arbitrator who awarded the respondent the total of Tsh 1,237,3341= which includes salary arrears, pension, leave and notice. Such award aggrieved the applicant hence he file this application for revision. During hearing both parties were unrepthselited Arguing this application the applicMjf submitted that the respondent ought to have sued the over cf the school who is the City Director Mbeya Council or the Schoól committee who are responsible for recruiting 1securi ga?dsnd to pay their salary. Hence he prayed his application beallowed In response from the applicant submission the respondent submitted that dunrg isservice of employment was being paid by the appj cñt inthñot the school committee The applicant submittqcI:fyrthrJhat he was recruited by the School Committee which keprpnchanging every year as there was no permanent schooIcom?nittee members So he filed his complaint against the applicant as she is the one who was paying him salary. Hence he prayed the application be dismissed. 2 1 Page In rejoinder the applicant insisted that the respondent was not his employee and he had no money to pay him. Therefore the application be allowed as she prayed. I went through the parties' submission as well as court record with the eyes of caution and I found4theoint to be determined by this court is whether there w,, epioynent relationship between the parties and if isnswereuin affirmative the second point of determination will be ètIe the respondent has any claim against the applicant In answering the first iiue siito whether there was employment relationship between the parties I find it important to explain as who is an employerãnd an employee in law. Section 4 of the Employmênt'and Labour Relation Act, No 6 of 2004 defines who ian employer, "means any person, including the Government and an executiveagèncy, who employs an employee" - AW A the ameI5ove section define who is an employee, "means an individual who has entered into a contract of employment; or has entered into any other contract under which the individual undertakes to work personally for the other party to the contract; and the other party is not a client or customer of any profession, business, or undertaking 3iPage - - carried on by the individual; or is deemed to be an employee by the Minister under section 98(3)" Section 61 of the Labour Institution Act, No.7 of 2004, provide for presumption as to who is an employee and I quote; "For the purpose of labour law, a person who orks4or, or renders service to, any other person is pre%uflied, until the' contrary is proved to be an employee, regardless of the formof the contract, if any one or more of the following lactor is present, The manner in which the person'works is subject to the control or direction of another person, The persons hour ofwork' are subjet to the control or ND direction of another person, - In the case of person's work fpran organization, the person is part of the orgizatio ; T The person has worked for that other person for an average ofat least 45 hou,s per month over the last three months \ TheersàñJsecQnomically dependent on the other person forwh 6 tbatierson works or render service, fheeris provided with tools of trade or works c. equipment by the other person, or tbejerson only works for or renders service to one person". The International Labour Organization (ILO) on Employment Relationship Recommendation, 2006 (198) in paragraphs 9 and 13 provides; 4IPage 0 1.3 "9 .......... protection for workers in an employment relationship, the determination of the existence of such a relationship should be guided primarily by the facts relating to the performance of work and remuneration of the worker, notwithstanding how the relationship is characterized in any contrary arrangement, contractual or otherwise, that may be agreed between the parties fc- 13 the specific indicators of the existence ofAn employment relationship include,.... (a) the facts that work is carried out according to the instructi6iis. and under the control of another party, involves the inegratin the worker in the organization of the enterprise, is performed solely or mainly for the benefit of anotherpèrsonfniust be carried out personally by the worlrr, is carried out within specific working hours or at a workpIce specffle$or agreed by the party requesting the work, isqf. articular duration and has a certain continuity, requires the worker's availability, or involves theprovisio'n of tools, materials and machinery by the party. requestiig the work (b) periodic payment of remune:ãtionto the worker; the fact that such remuneration I- , coOttitute"' hen workers sole or principle source of income, provisjonT of payment in kind, such as food, lodging or eranspo-I-t' recognition of entitlements such as weekly rest and annual holydays; payment by the party requesting the work for travel undertaken by the worker in order to carry out the work; or absence of financial risk for the worker." -------------------------------.-------------------------.-\..\- 5Page In our instant case the record shows that the respondent was recruited on the basis of oral contract by the School Committee. However the respondent monthly salary used to be paid by the applicant, and she is the one who terminated the service of the respondent. I asked myself did the applicant act as an agent or was a part of the school committe?J failec tqget an answer on that since there was no any written con ract which the respondent supplied to justify that. Buthã being the case the law is very clear in a situation wherecthere arèno written terms (___ of employment contract sectionl5 (1) (ë), (h), (i) and 15 (6) of the Employment and Labour Rd`latio n- s Act, No 6 of 2004 provides that - "Section 15 (1) subject to the provision of subsection (2) of section 19, an employer shall supply a employee, when the employee - commences employment, with the following ivriting namely; and duration of the contract, emuneration, the method of its calculation, and etails of any benefits or payments in kind, and (i) any other prescribed matter. Section 15(6), if in any legal proceeding an employer fails to produce a written contract or the written particulars prescribed in subsection (1), the burden of proving or 6 I Page disapproving an alleged term of employment stipulated in subsection shall be on the employer". With such position of the law and considering the evidence on record the applicant failed to discharge his duty to prove what were the terms of the employment contract perstd between the respondent her being the head of ttet1schó6L that the employed and the respondent Let us assum that the applicant wasà1iagent of the school committee, in my view she could haveek-the1ave of this court to joined the necessary party :hQtisedto remunerate or pay salary if the applicant b9E she èhd nà do so In the circumstance I find the respondent was'right toc sde the applicant following the facts that he was thesole responsible person for his payment. Therefore, from th& authorities cited above it satisfied this court to concljdé tthat there were employer-employee relationship betweenthè ities. to hr second issue that to whether the respondent has any clainiragainst the applicant it is apparent from the court record that the respondent referred a complaint at the CMA to claim among others salary arrears which the applicant deducted from the respondent's monthly salary, leave, and notice. At the CMA the respondent testified that he was employed in 2010 and age the agreeable salary was Tsh 80,000/= per month but the applicant paid him only Tsh 40,0001= per month instead of Tsh. 80,0001=. The respondent also testified that he wentj to CHODAWU to address his complaint and applicant started to pay him Tsh 60,000/= in June 2012. So the respondenLçlaimed half pay for the whole 2010, 2011 and first six mêñthsof2012 The claims which were not disputed by the applicarit-Thtbe the k -- case I find that the respondent claim aainst the applicant is genuine due to the reason that his claith is báscally a matter of right In the circumstance I fin&this application to have no merit and I find no reasons to faUlt thearbitrator award and it is hereby dismissed z LDABOUD JUDGE 19/06/2014 Date: 19/06/2014 Coram: Hon. I.D.Aboud , Judge Applicant: Present in person. For Applicant: Respondent: Present in person. For Respondent C/C Subira Order Judgement delivered on 19/6/2014 in presence of the both the applicant and respondent Who appeared in person. - JUDGE 19/06/2014 9 JPage