world vision

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LABOUR DIVISION) MOROGORO SUB- REGISTRY AT IJC MOROGORO LABOUR REVISION NO. 14162 OF 2024 {Originating from an Award ofthe Commission for Mediation and Arbitration at Morogoro in Labour Dispute No CMA/MOR/85/2021) WORLD VISION TANZANIA APPLICANT VERSUS ELISARIA NASSARI RESPONDENT JUDGEMENT 29*^ November 2024 MANSOOR,J. The respondent herein, Eiisaria Samwel Nassari, herein shall be referred to as "the Employee" was employed by the Applicant, World Vision Tanzania, herein referred to as "the employer" as an Area Program Ministry Facilitator. The Employment Contract was In writing; It was a Fixed Term Contract of One Year. He was first employed In 2016 on a Fixed Term of One Year, but the contract was being renewed yearly. The last Employment Contract was signed 1^ October 2020, which was a Fixed Term Contract, the contract commenced on 01^ October 2020 and effectively ended on 30^^ September 2021. On 30^^ August 2021, Rage 1 of 22 one month before the expiry of the Employment Contract, the Employer issued a notice of a non-renewal of the Employment Contract to the Employee stating that the Employer would not renew the fixed term employment contract, thus the service of the employee to the employer was going to end on 30"^ September 2021. According to this letter the employee was to receive all his benefits Including salaries, payments for untaken leave, transportation of himself and his personal effects to the place of recruitment. Certificate of Office, and facilitations for payments of his Pensions. Following receipt of this letter, the employee rushed to the Commission for Mediation and Arbitration "CMA", he filed Form No. 1 In which he complained of unfair termination of the Employment contract, that procedures for termination based on operational requirements were not followed and that there was no fair and justifiable reasons for termination. The matter was arbitrated as the mediation was unsuccessful, and the Arbitrator after hearing the evidence of both parties, he gave a decision that there was a Fixed Term Contract which term expired on 30 September 2021. He however said that there were no justifiable reasons for terminating the employee's contract as Page 2 of 22 there was reasonable expectation for renewal of his contract and that his contract was unfairly terminated as the project he was working on had finished or terminated and so the employee was unfairly terminated on operational requirements with no justification. The employer was ordered to pay the employment a salary of 12 months which is equivalent of THz 29,127,384 as compensation for breach of contract. Aggrieved, the employer filed an application for Revision praying for the Court to call for records, revise and set aside the Arbitrator's Award issued on 30^^ April 2024 by Honourable Kiobya Z, the Arbitrator in Labour Dispute No. CMA/MOR/85/2021 for it has been improperly procured, unlawful, illogical and irrational. During the hearing of the application, the employer was represented by Amadeus Michael Advocate while the employee was represented by Advocate Machibya from Machibya Professional Attorneys, Dodoma. The Counsel for the Applicant argues that section 86 (1) of Employment and Labour Relation Act, Cap 366 R.E 2019 "ELRA" Page 3 of 22 there is a prescribed form for referring disputes to CMA. On record, the respondent preferred the dispute by CMA Form No. 1 and indicated under clause 3 that the nature of the dispute is termination of employment, he stated that his termination was on retrenchment. However, the applicant opening statement clearly indicated that the respondent fixed term of contract came to an end on 30^^ September 2021 by reasons of time. The Counsel refers to Rule 24 (1) of the Labour Institutions (Mediation and Arbitrations Guidelines) Rules, 2007 GN No 67, and also refers to the decision of the High Court in the Case of TM3 Hospital Ltd vs Pill Mbena (Revision No. 208 of 2019) [2020] TZHCLD 45 (22 May 2020) reported on Tanzlii. Rules 21 (1) of GN No 67 tasks the Arbitrator to narrow down the issues in dispute. Guided by the Rule, the Arbitrator framed issues for determination as contained at page 5 of Award, as follows: 1. Whether there was fixed term contract; 2. Whether there were reasons for termination; 3. Whether the procedure for termination was adhered to, 4. To what reliefs are parties entitled. Page 4 of 22 The Counsel for the applicant argues that the crucial Issues which ought to have been determined by the Arbitrator is whether the respondent was retrenched as alluded in CMA Form No. 1, and whether his contract came to an end for reasons of time. The Counsel argues that in the case of TMJ Hospital (supra), at page 13 of the judgement, the HC held that, "failure by the arbitrator to frame issues relevant to the dispute lead to confusions and to wrong Award''. The court made reference to the CAT Judgement in the case of James Gwagilo vs AG, 2004 TLR 161, in which the Court held that, "faiiure of the Arbitrator to frame issues relevant to the dispute means that the Arbitrator failed to keep the records according to the law". The Counsel continue to argue that it is uncontroverted fact that the crucial Issues relevant to the dispute were not framed by the arbitrator and that led to a wrong award as the arbitrator decided the dispute based on legitimate expectation of renewal of a fixed term contract while the same was not pleaded in CMA Form No. 1. Therefore, the Arbitrator formulated her own case. Page 5 of 22 It is trite law that parties are bound by their pleadings and on this point the Counsel refers to the case of James Funke Gwagilo vs The Attorney General (Civil Appeal 67 of 2001) [2003] TZCA 24 (4 February 2003) [2003] TZCA 24 reported on Tanzlii which stated that the general rule is that a party is bound by his pleadings and should not be allowed to succeed on a case not made out in the pleadings. The Counsel also refers to the case of Saulo Malima vs Petro Kingoni (Civil Appeal No. 154 of 2022) [2024] TZCA 436 (11 June 2024) reported on Tanzlii at page 6, where the CAT said, "not only the parties to case^ even the court is bound by the parties'pleadings. The Counsel argues further that at page 17 of the Award, the reasons given of expectation of renewal of a contract is contrary to the principles of pleadings as eluded in the above cited cases. The Counsel said, the issue of whether there was expectation for renewal of the employment contract was not an issue to be determined by the Arbitrator as it was not pleaded in CMA Form No.l, which is equivalent to a plaint. Page 6 of 22 The Counsel argues in the alternative that, on an assumption that this fact was pleaded, still the arbitrator erred in holding that the respondent had expectation for renewal of his fixed term contract which ended 30'^^ September 2021. The Counsel refers to Exhibit 'Dl', which is a fixed term contract which categorically stated that the fixed term contract ended on 30th September 2021. As if the contract was not enough, there was tendered before the Arbitrator exhibit 'D2', which is a notice of ending the contract. The notice was transmitted to the respondent a month before the contract ended notifying him that the contract was ending on 30th September 2021 and it would not be renewed. The Counsel refers to Rule 4 sub-rule 5 of Employment and Labor Relations (Code of Good Practices,) which gives a duty to an employee to prove existence of reasonable expectation of renewal. The Counsel argues that it is clear from the Award that the employee could not prove such reasonable expectations. Despite the failure of the employee to prove that there was reasonable expectation of renewal of his contract, the Arbitrator went ahead and had held that the employee had reasonable expectation of renewal as his previous contracts have been renewed and that he was given a form for renewal of his Page 7 of 22 contract before it was terminated. The counsei argues that existence of previous renewals of contracts is not sufficient reasons to estabiish reasonabie expectation for another renewai. To buttress his arguments, the Counsel for the appiicant cited the hoiding in the case of Vida Mwasala vs GIZ Deustshe Geseuschft Internationale Zusammenable(GIZ) GMBH (Civii Appeal No.317 of 2020)[2023] TZCA 17340 (14 June 2023)[2023] TZCA 17340 reported on Tanziii, which has heid that reasonable expectation of renewai is situationai in that it depends on the circumstances of each case. The Counsel submits that in the present situation, it is certain that, the applicant's/employer conduct showed her intention towards bringing the contract to an end. The test is from the contract itself which had specific date of ending the contract, and secondly,the applicant was given a prior notice of ending the contract. He submits that the two factors imply that the fixed contract would come to an end under the contract itself. He said, in TMJ case (supra) at page 4, the court made reference to the case of National Oil (T) Limited vs Jaffey Dotto Msensemi & 3 Others, Revision No. 558 of 2016, HC DSM , and the Court heid that previous renewal of employment contract is not a factor for an employee to create a reasonable expectation of renewai of his contract. He argues that, it is Page 8 of 22 clear that the Issuance of renewal form does not constitute reasons for expectation for renewal and that If such expectation exists, it was rebutted by the notification for ending the contract issued to the respondent by the applicant, which was served to the respondent in August 2021. On the position of the law,the counsel refers to the case of Remigious Scarion Muganga vs Greenlight Planet Tanzania Ltd (Labour Revision 21 of 2020)[2022]TZHC 11460(1 April 2022)[2022]TZHC 11460 reported on Tanzlii, at page 8. The Counsel argues further that the arbitrator did not notice a clear distinction between termination of employment and retrenchment vis a vis reasonable expectation of renewal. The Counsel submits that since the dispute was preferred under unfair termination based on retrenchment as in Form No. 1, the arbitrator ought to have confined herself on the validity of the said retrenchment and evaluate the retrenchment procedure under section 38 of ELRA, and Rule 23-25 of the Code of Good Practice. The Counsel submits further that at page 15 of the Award the Arbitrator premised her reasons for decision on retrenchment, astonishingly at the same time she issued the Award on the basis of legitimate expectation for renewal as seen Page 9 of 22 at page 17 of the impugned Award. The counsel submits that this is a gross error on the part of the Arbitrator as retrenchment and renewal of contract are two distinct legal concepts which should have been dealt with differently. That the two concepts require different ingredients for proving their legalities. That, whereas the onus of proving the legality of retrenchment lies to the employer, expectation of renewal of employment, the onus of proof lies on the employee. Again, the counsel refers to page 11 of TMJ Case (supra), which states that the successful arbitration requires that both the arbitrator and the parties in the dispute have common understanding of the issues in controversy. The Counsel for the applicant argues further that the Arbitrator failed to evaluate the evidence which proved the expiry of the employment of contract. He says, it is on record that the testimony of DWl and DW2 at page 7 of the Award clearly Indicates that the respondent's fixed term contract expired on 30"' September 2022, the expiry date coincided with the date the project ended. Exhibit 'Dl' and 'D2', the contract and the notice, both provided the expiry date of the contract and also the notice showed the date of the expiry of the contract. Page 10 of 22 That, at page 13 of the Award, the Arbitrator correctly ruled that the fixed term contract expired, yet she misled herself by not reckoning the evidence both oral and documentary when it Is providing Its reasons for decision as contained at page. 15 para 2 of the Award. The Counsel argues that had the Arbitrator considered the evidence, she would not have reached into a wrong Award. The Counsel refers to Rule 4 (2) of GN 42 which provides that where the contract is a fixed term contract the contract terminates automatically when the agreed period expires unless the contract provides otherwise. The Counsel for the Applicant argues also that there was biasness on arbitrator's reasoning, as it Is certain that the arbitrator did not act objectively when she was analysing the evidence. The Counsel refers on the Arbitrator's decision and said that the arbitrator Awarded the employee an Award of compensation and her reasons for decision on retrenchment and surprisingly went on to decide the case on the basis of legitimate expectations which are quite different legal concepts. He argues that the arbitrator objectivity is questionable, thus biased. Page 11 of 22 The Applicant's Counsel rounded up his submissions by urging # the Court to set aside the Award and grant any reiief deems fit and proper as the award was improperly procured. Counsel Machibya who appeared for the employee said the dispute before CMA was about termination of employment, as initiated by CMA Form No. 1 and opening statements from both sides. The applicant in its opening statement, it proposed issues. Counsel Machibya argues that the issues which were brought to the High Court by Revision were not among the proposed issues of the applicant at the CMA, and thus proposing now a new issue is an afterthought. The Counsel refers to CMA Form No. 1 specifically part B of the Form, in which the respondent referred the dispute to CMA advancing both procedural and substantive fairness. That, the decision of the Arbitrator was based on substantive fairness. That, the respondent indicated that there was no fair and justifiable reason for termination and that it was justified for CMA to draw the issues as drawn bearing in mind the opening statement of the applicant in which the issues were raised. Counsel Machibya supports the findings of the Arbitrator stating Page 12 of 22 that the first issue was properly drafted to determine if there was # a fixed term contract and the second issue also was properly founded as the CMA determined the fair reasons for termination. Counsel Machibya argues that the facts in the case of TMJ (supra) cited by the Applicant's Counsel are distinguishable with the facts of the present matter, as in TMJ case, the problem was that the CMA did not address the issues raised. He states that in the present case, the issues of fairness of termination were addressed in the Form No. 1 and the opening statements of the parties. Counsel Machibya also said that the case of Funke James Gwagile cited, also is not relevant in the present case as the Arbitrator framed the issues relevant to the pleadings and had properly addressed them except the third issue which she found it redundant. The Counsel argues that the law was complied with, and each issue was properly addressed and properly decided. Page 13 of 22 On the issue whether the respondent was retrenched. Counsel Machlbya argues that this was not the case because the applicant through the opening statement, their defence was that the contract has come to an end., but in the opinion of the employee, it was proper for the arbitrator to draw a general Issue, as she was analyzing the fairness of the reasons for termination. That, in the analysis, of the Award, the Arbitrator considered both the allegations of expiry of the fixed term contract and retrenchment, and she correctly concluded that there were no fair reasons for termination. He argues further that the reasons stated by DWl and DW2 was that, the project for which the employee was placed had ended, but the Arbitrator said the issue was not the end of the project but the end of the contract. The CMA considered the concern of the expiry of the contract and not the project as in the project there were five employees, and only the respondent's contract was not renewed. He argues that rests of the employees' contract who were working on the same project as the employee/respondent herein were renewed and were shifted to other projects. The Counsel argues that it was correct for the arbitrator to decide that there was expectation for renewal of the contract as the employee was Page 14 of 22 given a renewal form expecting that his contract would be renewed and that there has never been any explanation if they wanted to terminate his contract, why he was given the renewal form to fill and submit it. To buttress his arguments, the Counsel refers to the case of Tanzania (2000) Adventure vs Gasper Mchaki, Civil Appeal 533 of 2020, the CAT sitting at Arusha, at page 9, that the conduct of the parties prior to the end of the final contract and decided that there was high expectation of the renewal of the contract. Counsel Machibya argues that there is no confusion in the Arbitrator's decision as the arbitrator was dealing with fairness of the termination. That, in CMA Form No. 1, the reasons for termination was operational requirements (retrenchment). That, the applicant in its opening statement, and in the evidence admitted that the operational requirements are the reasons why they terminated the employee contract but also the employer argued that the contract has also ended. That, the Arbitrator had dealt with both issues and had come into conclusion that whether it Is the expiry of the contract or retrenchment, there were no fair reasons for termination. Page 15 of 22 Counsel Machibya argues that it is true that the burden of proof shifts on the employee when alleging renewal expectation, but the learned arbitrator considered it, she was aware that the burden of proof lies on the employee on an issue of reasonable expectation and on retrenchment the burden lies on the employer. He argues that In the Award, it Is stated that the applicant failed to prove that the termination of the respondent's contract on the retrenchment was justifiable. That, at page 8 of the Award para 2, the Arbitrator was clear that DWl wanted the Commission to believe him that the reasons for termination were the end of the project, and second reason was the end of contract. That, at page 13 to 14 of the Award, the Arbitrator analysed the evidence on the matter and noted that both the reasons were unfounded. The Counsel for the employee submits that the arbitrator made a brief anaiysis of the evidence of both sides, she considered both oral and documentary evidence of both parties and came up with the correct decision. That the arbitrator analysed exhibit 'Dl' and considered exhibit 'D2' plus the oral evidence of DWl and DW2 and that there cannot be any good and valid reason of faulting Page 16 of 22 the arbitrator on evaluation of evidence. He argues that the decision was founded on eloquent analysis of evidence on record and the decision was justifiable. The Counsel argues that the arbitrator was never biased in her reasoning and the argument that the arbitrator did not act objectively, is unfounded as the decision of the arbitrator is founded on analysis of evidence, thus, she cannot be said she was biased. I have heard and considered the counsels rival arguments as well as the records, and on the first issue on whether the arbitrator has framed and recorded issues which were not relevant to the dispute leading to a confusing judgement. It is true as argued by the counsel for the Employer that Rule 24 (1) of the Labour Institutions (Mediation and Arbitrations Guidelines) Rules, 2007 GN No 67, and also in. the decision of the High Court in the Case of TM] Hospital vs Pili Mbena Revision No 208 of 2019 (supra), the arbitrator is required to record issues relevant to the dispute. In Form No. 1, the employee initiated a case against the employer stating that he was unfairly terminated for Page 17 of 22 operational requirement. The employee was alleging that he was retrenched and that there were no justifiable reasons for his retrenchment. As stated in the case cited by the Counsel for the Applicant, the case of Saulo Malima vs Petro Kingoni, Civil Appeal No 154 of 2022 (supra), at page 6, where the CAT said, ''not only the parties to case, even the court is bound by the parties'pleadings," It has been alleged by the employee in Form No. 1 Part B that his employment was terminated and the reasons for his termination was operational requirements (retrenchment) and that the termination was procedurally unfair. At the last page of Form No. 1, the employee had written "procedure for termination based on operational requirements was not followed, and there was no fair andjustiHabie reasons for my termination. I agree that the arbitrator ought to have confined herself on the issues raised by the litigants in their pleadings and ought not to have travelled outside the averments of the parties in the pleadings. The arbitrator ought not to have framed issues of whether there was a fixed term contract as the employee never disputed that his contract had come to an end. He was alleging Page 18 of 22 that he was retrenched and that the procedures for retrenchment were not followed. The first Issue which were to be recorded by the arbitrator is whether the employee was terminated based on operational requirements as alleged, or In other words whether he was retrenched, and If in the analysis of evidence, he came to find that he was retrenched for reasons of operational requirements and not because his fixed term contract had come to an end, then the next Issue would have been whether the procedures for retrenchment were followed. It is true that the arbitrator had mixed the Issues leading to a confusion. Retrenchment and termination are two different concepts, while retrenchment is the process the employer uses to terminate employees to down size the number of employees, and when retrenching an employee's there are legal requirements to be carried before the retrenchment, the termination of contract Is ending the employee's contract either for the reasons that his contract has come to an end or for disciplinary reasons or any other reasons to be recorded in the termination letter. Retrenchment cannot be associated with retirement or coming to an end of a fixed term contract and reasonable expectation of renewal of a contract. Termination of service of an employee due Page 19 of 22 to the non-renewal of employment contract is not covered within f the definition of retrenchment. The arbitrator has mixed the issues of retrenchment and an issue of a non-renewai of an employment contract, and has not only mixed the two issues but also has framed and recorded the wrong issues which were not relevant to the dispute. The argument by the counsel for the employee that it is the applicant that has proposed the issues in the opening statement is not reievant, as even though issues can be framed in consultation with the parties, the finai arbiter in the recording the issues in dispute is the arbitrator. The arbitrator was required to decide on a dispute of whether the employee was retrenched, and the onus lied on the employee who had alleged that he was retrenched by producing a written notice issued by the employer proposing the retrenchment. Retrenchment and termination are two distinct actions concerning the employment status, retrenchment is not termination, it is removal of an employee from service due to economic reasons or cost cutting or ending the specific work employed for, it is not that the employment contract had expired or is terminated, it is more of an organisation or employer's Page 20 of 22 challenges. Termination, on the other hand is an end of an f employee's contract either for reasons of expiry of a fixed term contract or misconduct or performance issues. The Arbitrator cannot decide on an issue of retrenchment and mix it with an issue of termination. The arbitrator is also bound by the pleadings and ought to have strictly arbitrate on an issue of retrenchment. Thus, there were irregularities in the Arbitrator's Award as instead of deciding on an issue of retrenchment as pleaded by the employer, the arbitrator went on to decide on an issue of unfair termination of employment contract, and an issue of reasonable expectation of renewal, issues which were not pleaded by the party in CMA Form No. 1. I therefore entirely agree with the arguments of the Counsel for the applicant and I allow this application. Since the first argument raised by the applicant was enough to dispose of the application, and since an issue of unfair termination was not pleaded, it would not be proper, and this court would fall in the same trap as the arbitrator, if the court shall now discuss and determine the Issue of termination and Page 21 of 22 expectation of renewal of the contract. As held it was Irregular and not appropriate for the CMA to determine on an issue of unfair termination and reasonable expectation of renewal of the employment contract, issues which were not pleaded by the party in Form No. 1. Consequently, based on the above, the proceedings, and the Award dated 30^ April 2024 issued by the Arbitrator, Hon Kiobya Z, in Labour Dispute No. CMA/MOR/85/2021, and all consequential orders emanated from the Award are hereby quashed and set aside for the Award has been improperly procured on the reasons stated hereinabove. DATED AND DLIVERED AT MOROGORO THIS 29^" DAY OF NOVEMBER 2024 OP O c T o ■z- X > uJ •3^ K LATIFA MANSOOR JUDGE 29TH NOVEMBER 2024 Page 22 of 22