xavier f kissinda others vs tanzania zambia railway authority tazara 2023 tzca 17474 7 august 2023

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MUGASHA. J.A.. MWANDAMBO, J.A.. And GALEBA. 3.A.1 ) CIVIL APPEAL NO. 221 OF 2018 XAVIER F. KISSINDA AND 135 OTHERS ................... ............... APPELLANTS VERSUS TANZANIA ZAMBIA RAILWAY AUTHORITY (TAZARA).............. RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania (Labour Division) at Dar es Salaam) fMioawa. J.^ dated the 29th day of October, 2013 in Labour Dispute No. 14 of 2011 JUDGMENT OF THE COURT 4h May & 7thAugust, 2023. MWANDAMBO, 3.A.: This appeal arises from a decision of the High Court, Labour Division (the Labour Court) dismissing the appellants' complaint challenging their compulsory retirement with their employer; Tanzania Zambia Railway Authority known by its acronym as TAZARA between August and December, 2009. The Labour Court (Mipawa, J) exercised its jurisdiction to decide the dispute under section 94 (1) (e) of the Employment and Labour Relations Act (the ELRA) after the Commission for Mediation and Arbitration (the CMA) had failed to mediate a dispute referred to it by the appellants under the provisions of section 74 (a) of the ELRA. Satisfied that the appellants were compulsorily retired in accordance with a binding renewed agreement upon attaining their respective age of compulsory retirement, the Labour Court dismissed the complaint, hence this appeal. The facts from which this appeal has emanated are, by and large, not in dispute. They run as follows: The appellants were employees of the respondent owned jointly by two contracting states; The United Republic of Tanzania and the Republic of Zambia. At all material times, TA2ARA and the appellants through their trade unions from both Tanzania and Zambia entered into collective voluntary agreements providing for, amongst others, age of voluntary and compulsory retirement of the employees. Specifically, on 23rd November 2009, the appellants through their trade union, TRAWU representing Tanzania employees and WUTAZ for Zambia employees, signed a renewal of the existing collective agreement (hence forth, the renewed agreement) ending on 30th June 2009 which had prescribed the age of 55 years for compulsory retirement. The renewed agreement signed on 23/11/2009 enhanced the compulsory retirement age to 60 years in respect of Tanzania employees. It is apparent that, parallel to the signing of the renewed agreement, the parties signed a memorandum of understanding 2 whereby, the respondent undertook to seek approval of its Board of directors regarding clause 22.1 of the signed renewed agreement providing for compulsory retirement age before 31st December 2009. On 14th December, 2009, the respondent's Board approved the compulsory retirement age at 60 years commencing from 1st January, 2010. The said clause 22.1 of the renewed agreement (exhibit P2) provided for the retirement age of all employees at 60 years as provided under the rules of the pension scheme of the respondent. That agreement was to remain in force for a period of two years from 1st July 2009 to 30th June 2011. It appears, between August and December, 2009, the appellants attained their compulsory retirement ages in accordance with the agreement in force prior to the signing of exhibit P2 and approval of the agreed retirement date by the respondent's Board. The respondent compulsorily retired 135 employees by way of letters represented by letters to Xavier F. Kissinda (the 31st appellant) and one Robert Japhet which aggrieved them as inconsistent with the signed renewed agreement. Acting through Xavier F. Kissinda and Robert Japhet, the appellants preferred a dispute before the CMA in terms of the provisions of section 74 (a) of the ELRA on the implementation and interpretation of the renewed agreement in relation to the operative date of the new date for compulsory retirement; whether it was 3 1st July 2009 or 1st January 2010. The parties agreed to disagree, resulting into a non-settlement of the dispute. Subsequently, the appellants referred their dispute to the Labour Court under section 74 (b) of ELRA for its decision as alluded to earlier. It is common ground that the nature of the dispute before the Labour Court was predicated upon forced retirement at the age of 55 years contrary to the provisions of the National Social Security Fund Act (NSSF Act); the Treasury Registrar's Circular No. 1/2000; and the memorandum of understanding signed on 23rd November 2009. Essentially, the appellants' complaint before the Labour Court was that their compulsory retirement contravened not only the renewed agreement which set 60 years effective 1st July 2009, but also the NSSF Act as well as the Treasury Registrar's Circular which applied to the respondent just as it did to other employees in public service. From that complaint, the appellants sought two orders; one a declaration that the respondent's act to retire them at 55 years was illegal; and two, reinstatement into their former positions until they attain compulsory retirement age to enable them get full amount of pension from the NSSF. In its determination of the dispute, the Labour Court framed three issues namely; one commencement date of the compulsory retirement under 4 the renewed agreement; two, legality of the respondent's act of compulsorily retiring the appellants at the age of 55 years and; three, loss arising from premature retirement. After hearing the complaint involving two witnesses from the appellant's side and one from the respondent, the Labour Court determined all issues in favour of the respondent resulting into the dismissal of the appellants' complaint. In particular, it disagreed with the appellants' contention that the date of commencement of 60 years' compulsory retirement was 1st July 2009 notwithstanding the fact that, clause 22.1 of the agreement signed on 23rd November 2009 regarding enhancement of age of compulsory retirement was subject to the respondent's Board approval. Having answered the first issue against the appellants, the learned Judge rejected the appellants7complaint on the alleged contravention of s.23 of the NSSF Act. In doing so, the court reasoned that, the appellants had no cause for their complaint by reason of the collective binding agreement in force which set the compulsory retirement at 55 years before the new age of 60 was set vide exhibit P2 effective 1st January 2010. It thus dismissed the complaint. The appellants have instituted the appeal against the Labour Court decision premised on three grounds of appeal, all faulting the trial court's finding on each of the issues before it. In the course of hearing of the 5 appeal, Mr. Evans Robson Nzowa, learned advocate representing the appellants abandoned ground two in the memorandum of appeal which sought to fault the Labour Court for not holding that the commencement date on the enhanced compulsory retirement age was 1st July 2009 as opposed to 1st January 2010. After abandoning that ground, the appellants' two remaining grounds challenge the trial court for; (1) not holding that the respondent's act of retiring the appellants at the age of 55 years was not illegal and in contravention of the NSSF Act; and, (2) holding that the appellants' compulsory retirement at the age of 55 years did not cause loss to them. Mr. Nzowa made his arguments in writing and orally on the above grounds. So did Mr. Lukelo Samwel who teamed up with Ms. Mercy Chimtawi, both Principal State Attorneys in resisting the appeal. Mr. Nzowa's submission in ground one could not be briefer. He predicated his argument on the decision of the full bench of the High Court in Sylvester Dagaa & 270 Others v. Tanzania Zambia Railway Authority, Civil Appeal No. 89 of 2009 (unreported), which upheld the complaint by the appellants' fellow employees who had challenged their compulsory retirement for allegedly contravening NSSF Act ultimately holding that the respondent's act of retiring them at the age of 55 years was illegal. The learned counsel was adamant 6 that compulsory retirement was not the same as unfair termination regardless of the reliefs sought namely; reinstatement of the appellants to their respective employment positions and payment of their respective entitlements. With regard to ground three, Mr. Nzowa's submission was that since the appellants were compulsorily retired before the statutory retirement age under section 2 of the NSSF Act, the respondent's act subjected them to loss of monthly incomes by way of salaries for five years and loss of 0.5% of their monthly retirement pension in accordance with section 27 (2) of the NSSF Act. In their reply, essentially, the respondent's attorneys contended that, the Labour Court rightly held that the appellants were lawfully retired upon attaining compulsory retirement age of 55 years based on the renewed agreement in force at the time of such retirement. It was their further contention that, in so far as TAZARA was an organisation involving two contracting states, the compulsory retirement age set out under the NSSF Act cannot automatically bind the respondent. On the contrary, they argue that, the respondent was bound by the compulsory retirement age agreed upon through the renewed agreement considering that, any change in the compulsory age of retirement would impact on the respondent's wage bill and other conditions of service not approved by its Board. Placing reliance on section 12 (2) of the TAZARA Act, Mr. Samwel argued that the section vests the respondent's Board with power to make staff regulations setting retirement age and, in this case, the NSSF Act on compulsory retirement age was subject to TAZARA Act giving the Board power to approve pension schemes for the respondent's employees. After the Court had heard arguments for and against the appeal and retired for composition of the judgment, it became imperative to hear further arguments on two issues that cropped up during deliberations which appeared to have a bearing on the determination of the appeal. Accordingly, the Court re-opened the hearing and invited the learned Counsel to address it on the two issues namely; the nature of the dispute before the CMA viz a vis the dispute preferred to the Labour Court for its decision and whether pensionable age and retirement age connote the same thing. Nevertheless, upon our further consideration of the grounds of appeal and examination of the record of appeal, particularly the judgment of the trial court, we do not think the two issues we invited counsel to address are necessary anymore for the determination of this appeal. After abandoning ground two, the main issue in this appeal is anchored on ground one faulting the trial court for not holding that the respondent's act compulsorily retiring 8 the appellants at the age of 55 years was illegal and in contravention of the NSSF Act. In rejecting the appellants' claim, the learned trial Judge predicated his decision upon the collective agreement the appellants had entered through their union with the respondent and its effect in the light of the provisions of the ELRA. The learned counsel are diametrically opposed on this. Whilst the appellants' advocate contends that the respondent's act was illegal for contravening the NSSF Act, the learned Principal Attorneys support the trial court's finding that the appellants were lawfully retired on their respective dates of retirement in accordance with the collective agreement. It will be recalled that Mr. Nzowa sought refuge to a decision of the High Court in Sylvester Dagaa (supra) but we do not think that decision is helpful to the appellants in this appeal let alone the fact that the issue in that case related to the procedure for retiring the employees and failure to remit NSSF contributions. Before we engage into a discussion on the merit of this ground we wish to observe at this juncture on the approach in the interpretation of the provisions of the ELRA, subject of this appeal. Section 3 of the ELRA lays down its principal objects amongst others, being to provide a framework for voluntary collective bargaining and to give effect to the core conventions of 9 the International Labour Organisation (ILO). It is glaring in the impugned judgment that; the learned trial Judge approached the issues having regard to the principal objects of the ELRA and this is the approach we shall take in the determination of this appeal. Mindful of ILO conventions and recommendations and the ELRA on the essence of collective bargaining and the effect of agreements reached from such collective bargaining process, the learned trial judge was satisfied that the appellants had, through their recognised trade union (TRAWU), entered into a collective agreement with the respondent running from 1st July, 2009 through 30th June, 2011 agreeing on the compulsory retirement age at 60 years but deferred its commencement date pending approval of the respondent's Board which had to be done by 31st December, 2009. Although the appellants were adamant that there was an agreement on the date of the effective date on the new age of compulsory retirement as 1st July, 2009, the learned judge rejected that contention. He did so, and rightly so in our view, because there would have been no basis for the memorandum of understanding being signed on 23rd November 2009 well beyond the effective date. After the abandonment of ground two in the memorandum of appeal regarding the operative date on the agreement on the retirement date, the issue in this appeal lies in the appellants' complaint that the Labour Court 10 erred in holding as it did that the appellants were bound by the collective agreement without regard to the NSSF Act. Admittedly, as alluded to earlier, Mr. Nzowa was not forthcoming in his submissions on the binding nature of the collective agreement in view of section 71 of the ELRA. Needless to say, we are firmly of the view that, the criticism against the trial court is misconceived as we shall demonstrate shortly. Our starting point is rule 5 (3) of the Employment and Labour Relations (Code of Good Practice) Rules, GN No. 42 of 2008 (the Rules) which provides: "Unless the contract o f employment provides otherwise, a contract o f employment shall terminate automatically when the employee reaches the agreed or normal age of retirement" Rule 5 (4) of the Rules provides: "Where there is no agreed retirement age, the normal retirement age shall be implied from the employer's practice in the past and the practice in the industry." Although there was no evidence of any individualised contracts of employment before the trial court, the compulsory retirement age at 55 years was a subject of the renewed collective agreement running from 1st July, 2007 through 30th June, 2009 before the said agreement was renewed ii enhancing such age to 60 years. Apparently, that has been the case for many years notwithstanding the NSSF Act and the Treasury Registrar's Circular as evident by prior agreements. The position in this case is that the compulsory retirement age was a term agreed between the appellants' trade union and the respondent through a collective agreement consistent with Article II of ILO's Collective Bargaining Convention No. 154 of 1981 excerpted by the trial judge in his judgment at page 126 of the record of appeal thus: "Collective bargaining extends to all negotiations which take place between an employer, a group o f employers or one or more employers'organizations on the one hand and one or more worker's organizations on the other, for: - (a) Determining working conditions and terms o f employment and/or, (b) Regulating relations between employers and workers and/or, (c) Regulating relations between employers their organizations..." The learned trial judge was satisfied, and no contrary suggestion was made by the appellants' advocate that, the agreement on the retirement age was a matter not covered by the said convention. Apparently, Article II of ILO Convection No. 154 of 1981 referred to by the High Court is substantially replicated in rule 55 (1) and (2) of the Rules. Although retirement is not expressly stated in rule 55 (1) of the Rules, it is implicit in sub-rule (2) as one of the terms of employment, subject of collective bargaining matters which, upon agreement as it were, give rise to a collective agreement. Section 71 of ELRA provides in no uncertain terms the binding effect of collective agreements thus: "(2) A collective agreement shall be binding on the last signature unless the agreement states otherwise. (3) A collective agreement shall be binding on: (a) the parties to the agreement; (b) any members o f the parties to the agreement; (c) any employees who are not members o f a trade union party to the agreement o f the trade union is recognized as the exclusive bargaining agent o f those employees under section 67. (4) A collective agreement shall continue to be binding on employers or employees who were party to the agreement at the time o f its commencement and includes resigned members from that trade union or employer association. (5) A collective agreement becomes binding on employers and employees who become members o f the parties to the agreement after its commencement" 13 Like the trial judge, we are satisfied that the appellants were bound by the collective agreement resulting from a collective bargaining process. Such agreement could not have been less binding on the respondent than the appellants who sought to enforce it before the Labour Court. Logically and for all practical purposes, the appellants agreed to the supremacy of the terms of the collective agreement regarding the age of retirement notwithstanding existence of section 23 of the NSSF Act and the Treasury Registrar's Circular. In our view, this is not a case in which parties could be said to have contracted outside the law because, the agreement was legally sanctioned by the provisions of sections 68 and 71 of ELRA and rules 5 (3) and (4) and 55 (1) and (2) of the Rules. Under the circumstances, the appellants could not renege from the collective agreement and pursue a different course before the Labour Court predicated upon the alleged contravention of the NSSF Act and Treasury Registrar's Circular. The High Court rightly held that, the complaint that the respondent's act retiring the appellants at the age of 55 years was misconceived by reason of the collective agreement. The learned judge was inspired by a quotation from a book by Basson Annali titled: Essential Labour Law: Collective Labour Law, Vol. 2, Labour Law Publications Houghton South Africa, 3rd edition 2002 thus: 14 "The parties or persons bound by a collective agreement will remain bound for the period o f time that the agreement is in force if the collective agreement does not state the period o f time which it will remain in force [in other words it is for an indefinite period o f time] any party to the agreement can terminate the agreement by giving a reasonable notice o f termination to the other parties unless the agreement provides otherwise." From the above excerpt the learned judge observed: "The parties could not quickly cross the floor from fifty- five years to sixty years o f age without passing through a collective bargaining process so as to rectify the retirement age in order to be in line with other laws o f the country especially the NSSF Act which the complainants had given an example that it maintains the compulsory age to be sixty years as retirement age." We respectfully agree with the learned trial judge and like him, we hold that the appellants' complaint on the alleged contravention of the NSSF Act, the main grievance in this appeal, was a clear misconception of the law in the context of the facts. Consequently, we find no merit in ground one and we dismiss it. That will be sufficient to dispose of the appeal which spares us from discussing the 15 remaining ground as well as the issues raised by the Court as doing so will not serve any useful purpose. In fine, we dismiss the appeal in its entirety. As the appeal emanates from a labour dispute, we make no order as to costs. DATED at DAR ES SALAAM this 3rd day of August, 2023. S. E. A. MUGASHA JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL The Judgment delivered this 7th day of August, 2023 in the presence of Mr. Erasmus Mahenge 12thappellant, Mr. Mohamed Dongwara 62nd appellant, Mr. Maghubo Maghubo 1st appellant, Ms. Pauline Peter Meela 13th appellant, Mr. Andrew Lugongo 60th appellant, Ms, Sharifa Mbegu 15th appellant, Mr. Paschal Wangoma 116th appellant, Ms. Lucia Macheia 75th appellant, Mr. Hashim Kiwanga 134th appellant, Mr. Hassan Samatta 125th appellant and Mr. Samuel Mbata 108th appellant, appears in person and Mr. Daniel Nyakiha, learned State Attorney for the Respondent, is hereby certified as a true copy of tl