head techear of iganzo vs furaha mongo mwanzomba 2014 tzhc 2374 19 june 2014

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT MBEYA LABOUR REVISION NO. 51 OF 2013 THE HEAD TEACHER OF IGANZO............ APPLICANT "vrtL. X " VERSUS. FURAHA MONGO MWANZOMBA...%.Siu...^ f RESPONDENT JUDGEMENT 16/06/2014 & 19/06/2Q14 Aboud. 3 % V * 'ft- Sat< - The^ pflicaflbn is made under section 91(1),(a) and <s % 94(4)(b)(i)i^ fl|tte Employment and Labour Relation Act, No. 6 of 2004,'% R^?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. 1 |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 1,237,334/= 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 unrepresented. Arguing this application the applicant' submitted that the ■dti * respondent ought to have sued the owiier of the school who is the City Director Mbeya Council or the Stbobl committee who are responsible for recruiting security gtiardsaand to pay their salary. Hence he prayed his application be allowed. In response froij| the applicant submission the respondent ■*jt. submitted that duriro^nfSaservice of employment was being paid by the a^ li^ nt^ ali^ lfet the school committee. The applicant submitte^further.Jthat he was recruited by the School Committee wli%|) kepl^^changing every year as there was no permanent school^QjgSmittee members. So he filed his complaint against the '’y F applicant as she is the one who was paying him salary. Hence he prayed the application be dismissed. 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 found^hejfjpint to be determined by this court is whether there wgs employment relationship between the parties and if is<ai^wered l%affirmative the second point of determination will bgpvHStjjer the respondent has any claim against the applicant, In answering the fiest i;Ssue%a^«b whether there was employment relationship %etweet%th§ parties I find it important to explain as who is ar£empfeygr«ind ^'Ti "** an employee in law. Section 4 of the Employmentvand Labour Relation Act, No. 6 of 2004 defines wfcjg i^gjp’%^ip^ye*r; "mjan|; lin y person, including the Government and an exicuj^^ggency, who employs an employee" A the samesabove 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 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 works afor, or renders service to, any other person is presjjjfiyed, unnl the% contrary is proved to be an employee, regardless of^Jje foitjj*of the contract, if any one or more of th%j£>Jlowing factor is present; &$%,. ■> (a) The manner in which the person %<pr^is subject to the control or direction of another person; (b) The persons hour oj^worl# are^ubjeiet to the control or '•4- direction of another person; % (c) In the case of person'£|work for an organization, the person is part of the orgsjnSzationf-^ (d) The person has.woj'ked for that other person for an average of at least 4&houirs per month over the last three months. (e) Th erWFsofr,iseconomicaIly dependent on the other person fof^hd^tbat person works or render service; (ft The^parsoii is provided with tools of trade or works ♦^equipment by the other person; or (fl) ^|yi$erson 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; 4 |P a g e "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. 4- * % < 13.......the specific indicators of the existence o ^ a n employment relationship include,.... (a) the Q|cts that the work is carried out according to the instruments and under the control of another party; involves the jnlegratiofiiof the worker . in the organization of the enterprise; 1^ performed solely or . -HI*. mainly for the benefit of anotjtiqft p€t§on;|must be carried out personally by the worker;1s carried out within specific working hours or at a workplace specffi$dt or agreed by the party requesting the work; is of a particular duration and has a T'»'- certain continuity;! requires the worker's availability; or involves the prowsioifipf tools, materials and machinery by the party , r^jjestliig the work..... (b) periodic payment of ’v%t%’ ^ remuneration'to tne worker; the fact that such remuneration constit^tes the workers sole or principle source of income; provi^lbniof payment in kind, such as food, lodging or *!t\ nspoTt; recognition of entitlements such as weekly rest and il 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." 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^I failed to det an answer on that since there was no any written contract which the r% respondent supplied to justify that. But being the case the law is very clear in a situation wherei.there are^fio written terms of employment contract section 15I t ) (e)». {h), (i) and 15 (6) of the Employment and Lab|@P Ref|tio%/©:, No 6 of 2004 provides that:- % X n Section 15 (1) iijbject to the provision of subsection (2) of section 19, j?n employer shall supply a employee, when the empl^ye^^onimences employment, with the following partici^sqrs in W ittng namely; -v>,, sflf r- form and duration of the contract, remuneration, the method of its calculation, and details 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 the agreeable salary was Tsh 80,000/= per month but the applicant paid him only Tsh 40,000/= per month instead of Tsh. 80,000/=. The respondent also testified that he went to CHODAWU to address his complaint and applicant started to pay him Tsh 60,000/= in June 2012. So the respondent jgjaimed half pay for the whole 2010, 2011 and first six rpp%is of%01^sThe claims which were not disputed by the applicanft%Jh!lf be the case I find that the respondent claim a fiin s t the applicant is genuine due to the reason that his cteirh% baSiCally a matter of ri9ht j w -“t;.N j ' S' In the circumstances I findc:tbis Application to have no merit and I find no reasons to faffltthe^rbitrator award and it is hereby Kis^°<J$grN: W* V-^4P O I.D.ABOUD €% * 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: 4 C/C Subira %i|>: •ft* Order: Judgement delivered on rrepffisence of the both the applicant and re Who appeared in person. I.D.ABOUD JUDGE yi s#‘ 19/06/2014