IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(LABOUR DIVISION)

AT MUSOMA

LABOUR REVISION NO. 21 OF 2019(Arising from the decision of the Commission for Mediation and Arbitration

for Musoma in Employment Dispute No. CM A / M U S/162/2018)

MUSOMA URBAN WATER SUPPLY

AND SANITATION AUTHORITY ........

VERSUS

RAPHAEL OLOGI A N D R E A .................

JUDGEMENT

Date of Last Order: 22th April, 2020 Date of Judgement: 29th May, 2020

KISANYA, J.:

This is an application for revision of the award of the Commission for

Mediation and Arbitration (CMA) at Musoma in C M A /M U S /162/2018

It has been made by way of Chamber Summons under section 91(l)(a)(b)

and 91(2)(a) and (b)(c) and section 94(l)(b)(i) of the Employment and

Labour Relation Act No. 6/2004 as amended by section 14 (b) of the

Written Laws (Misc. Amendments) Act, 2010 and rule 24 (1),

24(2)(a)(b)(c) (d) (f), 24 (3)(a)(b)(c)(d) and rule 28(l)(c) (d)(e) of the

Labour Court Rules, 2007.

Briefly, the applicant, Musoma Urban Water and Sanitation Authority

employed the respondent, Raphael Ologi Andrea as casual labour in the

....APPLICANT

RESPONDENT

position of plumber. This was on 1/1/1997. The respondent’s personal

records (Exhibit P4) shows that he was employed on temporary basis. Ten

years later, on 30/08/2007, the respondent signed a three years contract

in the same position of plumber (Exhibit PI). The said contract was

extended for five years with effect from 1/4/2013 as per letter Ref. No.

UW SA /PF16/34 dated 10/4/2013 (Exhibit P2). However, there is

another letter Ref. No. UW SA/PF.16/44 dated 01/08/2014 (Exhibit P3)

showing that the contract was extended from 1/7/2014 to 30/6/2017.

Therefore, basing on paragraph 6 of Exhibit P2, the respondent’s

employment was expected to lapse on 31/03/2018.

However, the respondent was terminated with effect from July, 2017 as

per letter Ref. No. UW SA/PF16/58 dated 2/7/2018 (Exhibit P7) on the

ground that he had failed to submit his form four secondary academic

certificate. Prior to the said termination, he was suspended and given time

to submit the said certificates as per letter Ref. No. U W SA /PF16/58

dated 20/7/2017 (Exhibit P6). The applicant tendered the Government

Circular which required employees who were employed from

21/05/2004 to have the minimum education of form four secondary

(Exhibit P5).

In his evidence, the respondent testified that he was employed in 1999. He-

tendered the NSSF sheet, Identity Card and Salary Slip to prove that fact.

He also tendered a leave form to show that he was granted annual leave

as employee. He testified further that the Government Circular on the

minimum requirement of secondary education did not cover employee

who were in service before 20/5/2004. He therefore claimed that he was

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terminated unfairly by the respondent as he was not accorded the right to

be heard.

After full trial, the CM A decided in the favour of the respondent. The

applicant was ordered to pay the respondent Tshs. 18,360,000/= being

compensation for the remaining duration of contract of three years from

01/7/2017. Dissatisfied, the applicant has filed the present application

which is based on the grounds stated in paragraph 6 in the affidavit in

support of the application as follows:

“6.1. Whether it was proper basing on thefacts and evidence tendered before

the CMA for the Arbitrator to award the Respondent relief which he did not

plead.

6.2. Whether it was proper for the Arbitrator to entertain the said dispute

without exhausting all remedies provided under the Public Service Act, 2002

and Public Service Regulation, 2003

6.3. Whether it was proper on the side of the Arbitrator to order payment of

18,360,000 as compensation for the remaining period of contract for Unfair

Termination ”

6.4. Wl'iether it was proper for the Arbitrator to order payment of Tshs

18,360,000/- within one month from the date o f Judgement.

6.5. Wl'iether it was proper on the side of the Arbitrator to reach to an award

without responding to the framed issues raising during hearing.

6.6. Whether the evidence given was properly analyzed by the Arbitrator.

This application was disposed of by way of written submissions. Both

parties submitted their respective submissions in accordance with the

schedule fixed by the Court. The applicant’s submission in support of the

application was filed by Ms. Vicky Mbunda, learned advocate. On the

other hand, the respondent engaged Mr, Asubuhi John Yoyo, learned

advocate to prepare the submission in opposing the application. In their

submission the parties addressed the following issues or grounds:

1. That the Honorable Arbitrator had no jurisdiction to entertain the dispute.

2. That the Hon. Arbitrator misdirected himself for failure to distinguish

between unfair termination and retrenchment.

3. That the Hon. Arbitrator considered and relied on the facts which were not

pleaded by the Respondent.

4. That the Honorable Arbitrator misdirected himself for giving order for

compensation of Tsh. 18, 360,000/- to the Respondent contrary to the

requirement of the law.

Submitting in support of the first ground, Ms. Mbunda argued that the

Honourable Arbitrator had no jurisdiction to entertain the dispute. The

learned advocate stated that, the applicant’s employees are governed by

the Public Service Act, 2002 and the Public Service Regulation, 2003. For

that reason, counsel Mbunda submitted that, the respondent ought to have

exhausted the remedies available under the Public Service Act including

referring the dispute to the Public Service Commission before going to

CMA. She cited the provision of section 32A of the Public Service Act,

2002 as amended by the Written Laws (Miscellaneous. Amendments)

(No. 3) Act of 2016 to support her argument.

On the second ground, Counsel Mbunda stated that the Hon. Arbitrator

misdirected himself for failure to distinguish between unfair termination

and retrenchment. She argued that the respondent was not terminated on'

the basis of operational requirement but because he deceived the employer

that had a form four secondary education certificate. The learned advocate

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submitted further that, the applicant had no option other than terminating

the respondent because he failed to submit the original copy of certificate

of ordinary secondary education.

Ms Mbunda contended further that the respondent stated to have been

terminated unfairly under section 37(1)(2)(3)(4)(5) of the Employment

and Labour Relation Act, 2004 (ELRA) and not on the basis of al

requirement. Therefore, she argued that the Arbitrator misconceived the

termination and retrenchment.

The learned counsel argued further that the Arbitrator erred in holding

that rule 23(2) of GN No. 42 of 2007 and section 38 of the ELRA are

mandatory provisions. She cited the case of Metal Products vs Mohamed

Mweragi and Others, Revision No. 148 of 2008.

As to the third ground, Ms Mbunda submitted that, the Arbitrator

considered and relied on facts that were not pleaded by the Respondent

when he registered the dispute before CM A. Also, she argued that the

award granted by the CMA was not pleaded by the respondent.

Submitting in support of the fourth ground, Ms. Mbunda stated that, the

order of compensation to the tune of 36 months salaries, contravened

section 40(1 )(c) of the ELRA. The learned counsel was of the view that,

the Arbitrator was required to order compensation of 12 months’ salary.

She argued that, as the respondent was terminated unfairly on procedural

ground only, he was entitled to 12 months compensation as held in Amina

Ramadhan vs Staywel Apartment Ltd, Revision No. 461 of 2016, HCT,

Labour Division at DSM (unreported).

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Ms Mbunda argued further that, the award lacks the standards stipulated

under Rule 27(3) of the Labour Institutions (Mediation and Arbitration

Guidelines), 2007. That said, counsel Mbunda urged me to revise and set

the CMA award.

The respondent resisted the application. On the first ground, he submitted

that the Public Service Act applies to servants in active service which is

not a position to the case at hand. He argued further that, the objection on

jurisdiction of the CMA to entertain the labour dispute was required to be

raised during the hearing. The respondent urged the Court to consider

substantive justice and discourage use of technicalities to override justice.

On the second ground, the respondent argued that the termination

whether unfairly or by operational requirement requires stringent laid

down procedures stipulated under sections 38 and 39 of the ELRA

including, to prove that the termination is fair. He referred to Rule 8(2) (a)

(d) of GN No. 42 of 2007 which bars automatic termination in lieu of

communication to the employee and accord fairness process by hearing

both sides before termination. The respodent argued further that, arbitral

proceedings can be nullified if there is irregularities apparent on the relief

sought. He submitted further that the deception deployed by the applicant

amounts to misconduct on the part of the respondent and thus, the

procedures of terminating the employee were required to be complied with

accordingly.

The respondent went on to argue that, both termination and retrenchment

require adequate hearing and consultation to be executed fairly. He cited

the case of Tanzanite One Mining Limited vs Sham Ammo Magiwa,

Revision No 46 of 2013 to support his argument. Therefore, the'

respondent argued that, the applicant neglected to comply with

established procedure before terminating him.

On the third and fourth grounds, the respondent replied that the

compensation of Tshs. 18,360,000 was significantly minimal. The

respondent argued that, given the fact that he had been in active service of

almost 19 years but terminated unfairly and contrary to law by relying on

‘the circular which does to apply to him, the Court should find out that

injustice was occasioned to him. Thus, the respondent asked the Court to

correct the award and grant a compensation to the tune of not less than

.Tshs. 116, 280, 000 equivalent to 228 months as pleaded.

After going through the CM A proceedings, affidavit, counter affidavit,

submission by the affidavit and the relevant laws, I find that the issues to

be considered are:

1. Whether the CMA had no jurisdiction to entertain the matter filed by the

respondent.

2. Whether respondent was terminated or retrenched;

3. Whether the termination or retrenchment was substantively and

procedurally unfair; and

4. WJ'iether the CMA’s relief is justifiable.

Starting with the first issue, the applicant is of the opinion that the CMA

had no jurisdiction to entertain the matter on the ground that, the

respondent being a public servant was required to exhaust the remedy

available under the Public Service Act, 2002 as amended. On the other

hand, the respondent stated that the Public Service Act is not applicable

to him. I have read section 32A of the Public Service Act, 2002 (as

amended) which was relied upon by Ms. Mbunda. It requires the public

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servant to exhaust the remedy available under the Public Service Act

before resorting to remedies available under the lablour laws. The said

provision reads as follows:

“Public servant shall prior to seeking remedies provided for in labour laws,

exhaust all remedies as provided for under this Act. ”

The next question is whether the respondent was a public servant. Section

2 of the Public Service Act, 2002 defines the term “public servant” to mean

a person holding or acting in the public service office. This brings us to

another question on what is the “public service office”? Again, the answer

to this question is found in section 2 of the Public Service Act which

provides that:

"public service office" for the purpose of this Act means:

(a) a paid public office in the United Republic charged with the

formulation of Government policy and delivery of public services

other than

(i) a parliamentary office;

(ii) an office of a member of a council, board, panel, committee

or other similar body whether or not corporate, established by

or under any written law;

(Hi) an office the emoluments o f which are payable at an

hourly rate, daily rate or term contract;

(iv) an office of a judge or other judicial office;

(v) an office in the police force or prisons service;

(b) any office declared by or under any other written law to be a public

service office; [emphasize is mine].

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Therefore, a person whose salary or emolument is based on the term

contract is not holding or acting in the public service office. This include

a person who is employed for a specific period because his emolument or

salary depends on the term specified in the employment contact. For that

reason, I am of the considered opinion that a person employed for a

specific period and paid basing on that period is not a public servant.

In the instant case, the respondent was employed for temporary basis

‘(Exhibit P4). Further, the employment letters (Exhibits PI, P2 and P3)

suggests the term or duration of his contract of employment. Thus, he was

paid his salary basing on the term or duration of that contract. Therefore,

I find that he was not a public servant and the CMA had jurisdiction to

entertain the dispute referred to it by the respondent. For that reason, I

find no merit in the first ground.

. The second issue is whether the respondent was terminated or retrenched.

The term termination of employment is defined under section 36 of the

Employment and Labour Relation Act, 2004 (as amended) to include

failure to renew a fixed term contract on the same similar term if there was

a reasonable expectation of renewal. The said section provides that:

“For purposes of this Sub-Part-(a) termination of employment” includes-

(i) a lawful termination of employment under thecommon law;

(ii) a termination by an employee because the employer made continued employment intolerable for the employee;

(Hi) a failure to renew a fixed term contract on the same orsimilar terms if there was a reasonable expectation of renewal;

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(iv) a failure to allow an employee to resume work after taking maternity

(v) leave granted under this Act or any agreed maternity leave; and

(vi) a failure to re-employ an employee i f the employer has terminated the employment of a number of employees for the same or similar reasons and has offered to reemploy one or more of them ”

On the other hand, retrenchment is provided for under section 38 (1) of

the ELRA. This provision suggests retrenchment is termination of

employment for operational requirement on the part of employer.

I am in agreement with the Hon. Arbitrator that ,the respondent in the

case at hand was terminated due to operational requirement. It is in

evidence that, the applicant terminated the respondent in order to comply

with the Government Circular which required all employees who were

employed from 20/5/2004 to have a minimum qualification of secondary

school education. This is mirrored in Exhibit P6 (a letter which informed

the respondent to submit form four academic certificate by 14.08.2018)

and the termination letter (Exhibit P7) which is reproduced hereunder.

“Nakujulisha kuwa ajira yako imesitishwa kuanzia Julai, 2017 kutokana

na utekelezaji wa waraka kutoka kwa Katibu Mkuu Utumishi Kumb. Na.

CFC26/205/01 /06 ya tarehe 13 Aprili, 2018 uliokuwa unaelekeza

Watumishi wote walioajiriwa baada ya tarehe 20, Mei, 2004 wakiwa

hawana sifa ya kufaulu mtihani wa kidato cha nne waondole kwenye

utumishi wa umma. ”

Counsel Mbunda was of the view that the respondent was terminated

because he deceived the employer that he had a form four certificate. This

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argument is not supported with evidence. It was not stated in the

termination letter. Further, there is no evidence to prove that at one point

‘ in time the respondent informed his employer that he had form four

education. In his personal record form (Exhibit P4), the respondent stated

that he had primary secondary education.

’ The learned counsel for the applicant stated further that, the respondent

claimed to have been terminated unfairly under section 37 of the ELRA

and not basing on operation service. With respect, I have read CMA Form

• 1, the respondent did not state to have been terminated under section 37

of the ELRA. He stated that “THIS IS A TERMINATION DISPUTE”.

It is clear that the applicant did not mention whether the termination was

under section 37 of the ELRA or termination due to operational

requirement. It is the evidence given by both parties which shows that the

respondent was terminated due to operational requirement as shown

above. It is for aforesaid reasons, I find that the respondent terminated due

to operational requirement.

On the third issue, the procedure for terminating an employee on

operational requirement are specified under section 38 of the ELRA and

Rule 23(2) of GN. No. 42 of 2007. Both provisions advocate consultation

before terminating an employee for operational requirement. Section 38

of the ELRA provides:

38.-(1) In any termination for operational requirements (retrenchment), the

employer shall comply with the following principles, that is to say, he shall-

(a) give notice of any intention to retrench as soon as it is

contemplated;

l i

(b) disclose all relevant information on the intended retrenchment for

the purpose of proper consultation;

(c) consult prior to retrenchment or redundancy on -

(i) the reasons for the intended retrenchment;

(ii) any measures to avoid or minimize the intended

retrenchment;

(Hi) the method of selection of the employees to be retrenched

(iv) the timing of the retrenchments; and

(v) severance pay in respect of the retrenchments,

(d) give the notice, make the disclosure and consult, in terms of this-

subsection, with-

(i) any trade union recognized in terms of section 67;

(ii) any registered trade union which members in the

workplace not represented by a recognised trade union;

(Hi) any employees not represented by a recognized or

registered trade union

Ms Mbunda was of the view that the employer is not obliged to comply

with all principles or procedure specified under section 38 of ELRA and

rule 23(2) (2) of GN No. 42 of 2007. Even if it is considered that the

employer is not required to adhere by all items or procedures laid down in

section 38 of ELRA and rule 23 of the GN 42 OF 2007, he is duty prove

the procedure employed in lieu thereof for the Court to be satisfied

whether the same was fair or not. In the matter hand, the procedure used'

by the applicant was not stated. The only action taken by the applicant

was to inform the respondent to submit his form four certificate before

14/8/2017. However, the said letter (Exhibit P6) was written on.

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20/7/2017. It was not practicable for the respondent to have acquired the

required qualification within three weeks. For that reasons, I am in

agreement with the Hon. Arbitrator that the termination for operational

* requirement did not comply with the law due to lack of consultation on

issues related to the reasons for the intended retrenchment; measures to

avoid or minimize the intended retrenchment; the method of selection of

. the employees to be retrenched; and the timing of the retrenchments

As rightly argued by the respondent, even if it is considered that the

respondent was terminated on deceiving the employer that he have the

.form four education, the applicant was duty bound to conduct the

disciplinary proceedings against the respondent before terminating him.

This was not done thereby denying him the right to be heard. Therefore,

the third issue is answered in affirmative, the respondent was terminated

unfairly.

The last issue relates to the relief to which the parties are entitled to. Ms.

Mbunda argued that the compensation of 36 months’ salary was granted

while it was not pleaded in CMAF.l and that it contravened section

40(1 )(c) of the ELRA. On the other hand, the respondent states that the

compensation of 36 months’ salary was to minimal and that, the

Arbitrator ought to have granted compensation of 228 months’ salary.

I have examined the evidence on record, item 4 of CMAF. 1 shows that

the respondent prayed for “compensation for unfair termination.”

Therefore, the argument by Ms Mbunda that the compensation was not

pleaded by the respondent has no merit.

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Generally, compensation is one of the reliefs available to an employee

who is terminated unfairly. Other reliefs are reinstatement and re­

engagement. This is pursuant to section 40(1) of the ELRA which

provides that:

"...S. 40 (1) I f an arbitrator or Labour Court finds a termination is unfair

the arbitrator or Court may order the employer:

(a) To reinstate the employee from the date the employee was terminated

without loss of remuneration during the period that the employee was absent

from work due to the unfair termination; or

(b) To re-engage the employee on any terms that the Arbitrator or Court may

decide; or

(c) To pay compensation to the employee of not less than twelve months'

remuneration."

In my opinion, in the event the terminated employee is to be compensated,

the law provides that the compensation should not be less than 12 months’

remuneration of that employee. The maximum compensation to be

awarded by the arbitrator or the Labour Court has not been stated. It is to

be decided by the arbitrator or the Labour Court depending on the

circumstances of each case. This position was also stated in Tanzania

International Containers Terminal Services (TICTS) vs Fulgence

Steven Kalikumtima and 7 Others, Revision No. 471 of 2016, High

Court of Tanzania, Labour Division at Dar es Salaam (unreported) that:

“In line to the above, I am of the considered view that, it is the discretion of

a Judge or Arbitrator to give an award that is considered just and fair

depending on the circumstances of each case, though is restricted to comply-

by what is or are indicated in CMA F I”

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However, if an employee is on a term contract, he is entitled to

compensation for the remaining period of the contract of employment

This position was also stated in Benda Kasanda Ndasi vs Makufuli

Motors Ltd, Rev. No. 25 of 2010, HCT, Labour Division at Dar es

: Salaam (unreported) and Mbeya Cement Company Limited vs Allen

Mwinula, Revision No. 24 of 2017, HCT at Mbeya (unreported)

In the present case, the respondent requested for compensation for unfair

termination. However, he did not state the number months’ salary to be

compensated. It is in his final submission when he requested for

compensation of 228 months’ salary. The. Hon. Arbitrator ordered the

.applicant to pay the respondent compensation of 36 months’ salary which

is the remaining period of contract renewed by default for three years from

01.07.2017. The Hon. Arbitrator decision was based on the fact that, the

last employment contract ended on 30.06.2017 and thus, it was renewed

impliedly for another term of three years from 01.07.2017.

On my part, Letter U W SA /PF16/34 dated 10.04.2013 (Exhibit P2)

suggests that the respondent had a five years contract from 01.04.2013 to

31.03.2018. In this regard, unless renewed by the applicant, the

respondent employment was expected to lapse on 31.03.2018. I

understand that, in 2014 the respondent was issued with a three years

contract via letter Ref. No. UW SA/PF. 16/44 dated 01/08/2014 (Exhibit

P3). However, the 2014 letter did not revoke the previous contract dated

10th April 2013. Further, it did not even state the respondent salary which

• is an essential ingredient in employment contract.

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Therefore, as the employment contract was terminated with effect from

July, 2017, the remaining contract period for the five years contract from

2013 was 9 months. Then, the respondent was entitled to compensation

of the said 9 months’ salary (Tshs 4,590,000) and not 36 months’ salary

(Tshs 18,360,000) granted by the Hon Arbitrator or 228 months’ salary

(Tshs. 116,280,000) requested by the respondent. This is because, the

applicant had discretion of extending the contract the contract which

expired on 31st March, 2018. However, letter Ref. No. U W SA /PF16/57•

dated 20.07.2017 (Exhibit P6) was to the effect of informing the

respondent that the contract would not be extended unless he attain form

four secondary education. Therefore, basing on his last salary (510,000), I

find that the respondent was entitled to compensation for the remaining

period of contract (9 months). This is equivalent to Tshs. 4,590,000.

In view of the above, the application partly succeeds to the extent the-

award is revised on the compensation order as shown above. A party

aggrieved by this decision may appeal to the Court of Appeal in

accordance with the law.

Dated at MUSOMA this 29th day of May, 2020.

Court: Judgement delivered this 29th day of May, 2020 in the presence of Ms. Vicky Mbunda, learned advocate for the applicant, and the respondent, in person.

C U BE. S. Kisanya

JUDGE29/05/2020

E. S. KisanyaJUDGE

29/5/2020

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