zawadi h rajabu 20 others vs mmi steel ltd 2022 tzhcld 596 27 may 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 226 OF 2021 ZAWADI H. RAJABU............................................ Ist APPLICANT STEVEN VITUS..................................................... 2NDAPPLICANT MUSA BAKARI ZIBUA.......................................... 3RDAPPLICANT OMARY ABEID..................................................... 4th APPLICANT MICHAEL MAGUBILA 5™APPLICANT FLORIAN KAPANGA 6THAPPLICANT JUMA SHABAN 7™APPLICANT YASIN MOHAMMED ..8™APPLICANT ALEX CONRAD 9™APPLICANT DOTTO MRISHO ... 10™APPLICANT KILO GOBELE 11™ APPLICANT BAHATI RAMADHANI......... 12th APPLICANT BAKARI ALI.................................. ..13th APPLICANT EMMANUEL MICHAEL................. 14th APPLICANT JIMMY LKINGA.................................................. 15™ APPLICANT HAMADI MOHAMMED .16™APPLICANT VENANCE FLORIAN.... .17™ APPLICANT JOHN DAUDI.............. 18™ APPLICANT AMINA FUNGO.................................................. 19™ APPLICANT ZAWADI H. RAJABU......................................... 20™APPLICANT RASHID OMARY................................................ 21STAPPLICANT VERSUS MMI STEEL LTD.................................................... RESPONDENT (From the decision of the Commission for Mediation and Arbitration at Kinondoni) (Mbena: Arbitrator) dated 04th October, 2019 in REF: CMA/DSM/KIN/1015/18/326 EXPARTE JUDGEMENT 06th May & 27* May 2022 Rwizile, J This application emanates from the decision of the Commission for (CMA) in Labour Dispute No. CMA/DSM/KIN/1015/18/326. This Court has been asked to call for, revise and quash the award. The brief history behind this case is that, the applicants were employed by the respondent on different dates. Some of them dealt with cargoes processes, while others were painters. They were terminated from their jobs. Termination as usual, did not please them. They filed a dispute claiming for terminal benefits and compensation for unfair termination, as well as certificates of service. Grace Vitus and Ramadhani Rajabu were reinstated when the dispute was pending at the CMA. The applicants were not successful at that the CMA and felt there was improper conduct on 2 party on party of the CMA. Aggrieved by which, they have filed this application. The application was supported by the affidavit of Steven Vitus and Kilo Gobele, for other applicants and raised the following issues; /. That, the arbitrator erred in law and in fact for failure to consider the testimony and exhibits tendered by the compiainants/appiicants herein. //. That, the arbitrator erred in law and in fact for not assigning the reasons for the award delivered in favour of the respondent herein. Hi. That, the arbitrator erred in law and in fact for improper analysis of the evidence tendered by the respondent herein. iv. That, the honourable arbitrator grossly erred in law and in fact in dismissing the complaint in its entirety. The applicants enjoyed the service of Mr.Emmanuel Richard Machibya, learned advocate, whereas the respondent was represented by Mr. Mussa Rashid (Company Secretary). On the hearing date, neither the respondent nor her representative appeared. The application was therefore heard exparte orally. Mr. Emmanuel submitted that the applicants tendered evidence proving they were employees of the respondent, and the same was not controverted. He continued to argue that, the applicants worked in two sections, which are colour section and steel technicians. He stated that, the applicants were under unspecified term contracts and had no written contracts as governed by section 14(1) of the Employment and Labour Relations Act [CAP. 366 R.E. 2019]. < .. Mr. Emmanuel submitted further that Gobele was employed in 1992. That at the time they had no written agreement and there was no contract of f V. 1 specific duty until he was terminated. He continued to state that the applicants were paid on weekly basis. Thus, he argued, they were under contract of service. In his view, the applicants were required to be given the terminal benefits as per the law and prayed for the award to be set aside. Upon hearing of the submissions, I think this court is asked to determine whether there was employment relationship between the parties and to what reliefs are the parties entitled to. To start with, I have to cite section 14(1) and (2) of the Employment and Labour Relations Act [CAP. 366 R.E. 2019] which provides that: 4 "14(1) A contract with an employee shall be of the following types- (a) a contract for an unspecified period of time; (b) a contract for a specified period of time for professionals and managerial cadre; (c) a contract for a specific task." Whereas subsection 2 further states that; "(2) A contract with an employee shall be in writing if the contract provides that the employee is to work within or outside the United Republic of Tanzania. Before the CMA, it was testified by applicants that they did not have written contracts with the respondent. Pwl for instance testified that, the applicants did not have evidence proving they were employed save for tendering identity cards. He tendered, two of them, his and that of Musa - Bakari Zibua collectively admitted as exhibits Pl. Il Pwl further, said, they were as well, paid weekly. He tendered a counter book to prove they were signing before getting their salaries, which were marked as exhibit P3. As seen here below: - J. MMI Steel Hikuwa inatupa vifaa vya kazi, tulikuwa tunalipwa kwa wiki Ha kwa kila siku tulikuwa tunalipwa 5,300/=. Tulikuwa tunalipwa kwa kujaza kwenye counter book/daftari na ushahidi wa kitabu hicho naomba kitumike kwenye ushahidi huu wangu" In law employment relationship is governed by section 61 of the Employment and Labour Relations Act, which provides: - "61. For the purposes of a labour law, a person who works for, or *t % renders services to, any other person is presumed, until the contrary is proved, to be an employee, regardless of the form of the contract, if any one or more of the following factors is present- V Ik (a) the manner in which the person works is subject to the control or direction of another person; (b) the person's hours of works are subject to the control or direction (c) in the case of a person who works for an organisation, the person is a part of that organization; (d) the person has worked for that other person for an average of at least forty-five hours per months over the last three months; (e) the person is economically dependent on the other person for whom that person works or renders services; (f) the person is provided with toots of trade or work equipment by the other person; or 6 (g) the person only works for or renders services to one person." In the case of Mwita Wambura v Zuri Haji, Revision Application No. 42 of 2012 at Mwanza. LCD 2014 Pert 11 page 182 it was held: - "There are a number of common factors running through which can aid a decision maker in determining existence of an employment relationship. These principles are among others; (a) defining employment relationship by looking at parties' roles, considering 'T.-T .<'<■ matters among others; dependency; subordination, direction, supervision and control of services rendered; (b) principle of i ‘f - primacy of facts looking at what was actually agreed and performed by each of the parties; and (c) use of burden of proof" On perusal the evidence tendered are identity cards of two people, names, A CV* calculations and papers written stating the work done. What is apparent in their identity cards, is that the applicants were casual workers as evidenced by exhibits Pl. In my view, casual labourer's employment lasts as long as it lasts. The respondent testified and showed did not employ the applicants. Dwl and Dw2, Abdullahim Abdallah and Ibrahim Said Gereza respectively were of that evidence. The evidence by the applicants is that they were working 7 and paid weekly, but did not show how long they worked. For the applicants to benefit from section 61 of ELRA, they had to prove they wholly and entirely worked for the respondent and worked for at least 45 hours per month. These factors and other stated under the referred section must be proved at the required standard. Therefore, in the absence of evidence proving any of the stated matters as per section 61 of ELRA, the applicants could not have been terminated y-?"T,. within the meaning of the Law of Employment and Labour Relations Act. In the case of Godson Bernad, Pasence Paul and Haidali Yasini v Stanley Engineering Co. Ltd, Revision No. 22 of 2020, (HC), it was held that: - "In the end, I uphold the arbitrator's decision that the applicants of s .5 were casual workers for that reason, they were not unfairly terminated. Their employment came to an end upon expiry of the duration of their contract. It was a day's contract; consequently, I dismiss the application for revision." The first issue therefore is answered in the affirmative. Dealing with the second issue, it is evident that the applicants had no written contract with the respondent. There was no evidence to prove 8 existence of the same. The identity cards of the respondent identified them as casual workers. They therefore could not be terminated and claim for unfair termination. For the foregoing reasons, I find no merit in this application. It is therefore dismissed. As this is a labour matter, I make no order as to costs.