unique financial services vs elizabeth mkopi 2021 tzhcld 34 10 march 2021

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION NO. 786 OF 2019

BETWEEN

UNIQUE FINANCIAL SERVICES APPLICANT

VERSUS

ELIZABETH MKOPI RESPONDENT Date of Last Order: 10/02/2021 Date ofJudgment: 10/03/2021 Z.G.Muruke. J. UNIQUE FINANCIALSERVICES the applicant, filed the present application seeking foAan ordePof this court to revise and set aside the Commission for Mbdid&gn^nd Arbitration (herein be referred as CMA) award deliver^I oh^S/iQZ/ZOl? by Hon. Msina, H.H - Arbitrator in favour of the resporiden^hcxitehe following grounds; ThatiG^IA exercised its jurisdiction with material irregularities. ii. '«(Q]g^ward is improperly procured. Hi. The ruling and award of the arbitrator is unlawful, irrational and in disregard of the law iv. That there are material errors to the merits of the award. 1 The affidavit of Itima Abel Stephen the applicant's Assistant Administration Officer was filed to support the application while, in opposing the application the respondent filed a counter affidavit affirmed by Mohamed Ally their representative. Hearing was by way of written submissions, the applicant was represented by Advocate PrayGod Jimmy Uiso whepfas tOitespohdent was served by Kikondo Maulid. It is on records that, the respondents was employed by the applicant as a bank teller in a one (1) year fixed ter^c^nfef^ commencing on 23rd September,2014 to 22nd Septemb^2015|^ It was alleged by the respondent that, during that pgriod s^^t^fegnant which followed by several complications as a resul^she washbea

rested. That her supervisor discriminated her for being©pregrfen.t^and she was informed that, her contract will be terminated Because they cannot keep people who are regularly sick. After^H^hi^Jj^r materninty leave she resumed her duties at the office until 22nd September,2015 when she was terminated. She had reasonable e^|ect^tiorFof renewal of their contract because, before being bejH'estedisne was trained as a bank teller for US Embassy. Agc^fc^ed wittyhe termination she referred the matter to the CMA where the awardjwas on her favour. The applicant was dissatisfied with the decision he thus filed the present application. Submitting on grounds (i) and (ii) jointly the applicant's counsel argued that, DW1 testified that the respondent had a 1 year fixed term contract which commenced on 23rd September,2014 ending on 22nd 2 September,2015 he tendered exhibit UN l(employment contract). The 1st item of the contract provides that the contract may be renewed if mutually agreed. However, the arbitrator in her finding held that, the respondent had expectation of renewal of her contract while renewal of a contract was not mandatory. The contract came to an end and the respondent was aware of the same, referring Rule 4(2) of The Emp]gf'mefft\and Labour Relations (Code of Good Practice) Rules, GN.42/20^w^^dre^>it was stated for the applicant that, another irregularity was? from

the respondent's CMA Fl as it had no respondent's^Sb, neither signed nor dated and other details were left in blan^The arWtrator ought to have dismissed the application for being defectiyej On the iii and iv grounds^Mr. Uisb^s^mitted that at page 7 of the award the arbitrator stated that th^gspondent prayed for reinstatement and other entitlements. JlWsame was incorrect as in the respondent's CMA Fl, there is no pfayenforReinstatement, hence the award is illogical as she delivered ftfie^rcferl which was not even prayed for by the respondent^g^Ul^Prayed for the award be quashed and set aside. Infwjy, tfyeSrespondent's counsel averred that it is true that the re^ndent Casern ployed in a one year fixed contract, and they have agreed fWmew the contract as testified by the respondent that, Human Resource officer was the one who told her orally that the contract is just a formality and will be renewed after expiry. The respondent had reasonable expectation of renewal as she was the only one who was trained for a teller position at the US Embassy, referring Section 36 of the Employment 3 and Labour Relations Act, Act No. 6 of 2004. Further, he submitted that it is the duty of the employer to prove that there were no reasonable expectation of renewal of a contract. The respondent was unfairly terminated, citing Rule 4(4) of Employment and Labour Relations (Code of Good Practice),

Rules.GN.42/2007. (GN.42/2007) It was Mr. Kikondo's submission that, thl^ reason fo> the respondent's termination was pregnancy. The respondentirrTierfestimony stated that her supervisor Mr. David Kweka toMjer that rollowing her pregnancy, she was about to be terminated, but|theyro§cided to wait until her contract come to an end, referring »§|cti®n7($) of the Act and the case of Feza Primary School v-Wahida>Kibarabara Rev. No.117/2013 where it was held that; '...the respondent wap-subject^ mental torture and shame by the master who^discriinmated and harassed her on ground ofpregnancydSj^ CMAvnay decide to order compensation and not reinstatement if the relationsl^gsbetween the employer and the employee will not be good, as done by the arbitrator by ordering compensation of twelve months' salary, referring Section 40(3) of Employment and Labour Relations Act, Cap 366 RE 2019. The arbitrator's award is lawful, rational with no material errors to the merits, thus prayed for the CMA's award be upheld. 4 After careful consideration of the parties submission, and records the issues for determination are; i. Whether the respondent was terminated by the applicant ii. What are the relief entitled to the parties? Concerning the 1st issue, it is a principle of law that fo'Rtermination to be considered fair, an employer must have a valltfreason for termination and must adhere to the

procedure stipulated^undenSection 37 of the Employment and Labour Relations Act, Act 2004. In the matter at hand, the respondent alleged tcgH&ve^^^unfaiHy terminated because of the two circumstances, that sheilas terminated because of her pregnancy and she had reasonable (expectati@[Fof renewal of her contract. The allegations convinced tfie^aEbitrator to decide on her favour. The circumstances were^^f^dyy the applicant as he stated that the respondent's employment,contract came to an end after upon expiry of the contract. Starana^wfthTfhe 1st allegation of termination due to pregnancy, the law prqM^ny i<ind of discrimination at work place. Section 7(4)0) of the Act provides; 'No employer shall discriminate, directly or indirectly, against an employee, in any employment policy or practice, on any of the following grounds: j. pregnancy; 5 It is on record that the applicant became pregnant and continued to work until she was bed rested. She went on maternity leave as required by the law which ended on 2nd September,2015,referring exhibit UN2 (Application for leave form) and thereafter got back to the office and resumed her daily activities until expiry of the contract on 22nd September,2015 as per Exhibit UNl(employment contract) Records proves that the respondent continued to%prk respite of her being pregnant until she was bed rested«jdue to the pregnancy difficulties. She went

on leave and came backt^^s'm^ejjier daily activities until expiry of the contract this time she was afforded with all her rights as the employee. On records thege isj no^prop.f’ that the respondent's supervisor informed her that she could^bg? terminated because of her pregnancy. Even if she was told sOxbyzter supervisor, in the eyes of law there is a need of proof of the same. If pregnancy was the reason for her termination the applicant could nave terminated her while she was on bed rest or when on leaye^heSrespondent has failed to establish how she was s^ajsplicant due to her pregnancy. This court in the case of Liliap^ishabakaki v Cartrack Tz. Ltd, Rev. No.231/2019 held 'Seriws allegation of discrimination at workplace like the one Applicant is alleging, needs evidence. Otherwise, evidence available proves that, applicantjust decided to go home on her own....' 6 Therefore basing on the above discussion, the respondent's allegation that she was terminated due to her pregnancy lacks legal stance. I thus differ with the arbitrators finding that the respondent was terminated on ground of pregnancy. In regard to the reasonable expectation of renewal, termination of a fixed term contract may be considered unfair after theriwployergS failtire to renew a contract while there was reasonable expectation 'o^eneWal. This is clearly provided under Section 36 of the Act re^^gether with

Rule 4(4) of GN.42/2007. The respondent claimed to hav^^sonable expectation of renewal of her contract because, she was tl^^l^^g who was trained for teller position at US embassy. On«gecor^^hereM§fno any evidence to prove the said facts on records, the respondent^hao failed to establish that there was vacancy, and she was purpolelyj|rair^ed to fill that vacancy. Training in any working environmentjs^ere to improve efficiency in performance of daily activities. The .feet thatlshe^train^d it is not a guarantee until it is backed up with any written evidence that, she was trained to fill the said vacancy at US embassy Alsofthe respondent contended that she was informed by Human Resc^ce Officer that a contract is just a formality, it will be reneweoWtomatically, there is no any evidence in regard to that effect. The only available evidence is the employment contract which reveals the end of contract. Thus, this court cannot rely on mere words while records speaks by themselves that the contract came to an end on 22nd September, 2015. For clarity, on duration of contract read that; 7 With reference to interview and subsequent discussion, we have pleasure in offering you employment in UFS as Bank Teller with effect from 23rd September, 2014 to 22nd September, 2015. There is no renew clause in the contract, meaning that it was one year contract that is ail. This is what parties have

agreed and signed. It is the position of the contract law that partje^re^wund by the terms of their agreement. This was the position of the Court oKafpeal in the case of Miriam Maro v Bank of Tanzania^Clvil AppS^No.22/2017 (unreported) where it was stated that:- It is the law that parties are bound by th^te/m^rf^e agreement they freely enter into. We find soiace&on ^^st^e^ff the position we took in Univeler Tanzania IM v. p^ne^fct Mkasa t/a Benia Enterprises, Civil Appeal No^&l of 2009 (unreported) in which we relied on a persuasive ^decision of^the Supreme Court of Nigeria in Osun State Govenrnient^Daiami Nigeria Limited, Sc. 277/2002 to articulate: "Strictly speaking, under our laws, once parties have freely agreed on 'x^3(r JO their co/n/ractdal'ciauses, it would not be open for the courts to change thds^c^ises^which parties have agreed between themselves. It was up toShejoprties concerned to renegotiate and to freely rectify clauses ^MchJ^ies find to be onerous. It is not the role of the courts to re­ draffclauses in agreements but to enforce those clauses where parties are in dispute." 8 This court in the case of Hydrox Industrial Services Ltd & 1 Another v CR.DB 1996 LTD & 2 Others, Civil Case No. 194/1999 Dar es Salaam District registry (unreported) held that; 'Legally if the parties have negotiated and agreed on a genuine pre estimate of the loss one would suffer if the

other did not honour its part of bargain, the defaulting party cannot be heard t&compi'ain on anything.' On the 2nd issue on relief of the parties. InjJ^tCMA Fl uie applicant prayed for reinstatement and payment of A awarded 12 months' salary compensation instead of rei^ratement. This court having found that, the respondent was noiter^^tn-and there was no any proof of reasonable expectation of renewal of^cgntract, the contract just came to an end on 22nd September, 2015^dyiereby quash the CMA's order of 12 months' compensation^^L^ On basis c^th^t^^^discussion, I hereby quash and set aside the CMA's awqrd. Applications allowed.

JUDGE 10/03/2021 9 Judgment delivered in the presence of Pray God Uiso counsel for applicant and in the absence of the respondent. 10