Stanley Nyakunga and 4 Others vs Mofed Tanzania Ltd (Civil Appeal No. 421 of 2023) [2026] TZCA 602 (22 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LEVIRA. J.A., MASHAKA. J.A. And NGWEMBE. J J U CIVIL APPEAL NO. 421 OF 2023 STANLEY NYAKUNGA.........................................................1 S T APPELLANT DORIS MALYA.................................................................. 2 nd APPELLANT MWANTUMU SAGUTI........................................................3 rd APPELLANT DAVID KIPINGA ............................................................... 4 th APPELLANT ATHUMANI SALEHE...........................................................5™ APPELLANT VERSUS MOFED TANZANIA LTD ....................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania, Labour Division at Dar es Salaam) (Maahimbi. J.1 dated the 13th day of October, 2022 in Consolidated Revisions Nos. 135 & 148 of 2022 JUDGMENT OF THE COURT 30thApril & 22nd May, 2026 LEVIRA, J.A.: This appeal is against the decision of the High Court of Tanzania, Labour Division (the Labour Court) in Consolidated Revisions Nos. 135 and 148 of 2022, which decision dismissed both revisions. In the said revisions, the parties in this appeal were challenging the award and subsequent orders by the Commission for Mediation and Arbitration (the i CMA) in Labour Dispute No. CMA/DSM/TEM/228/2013 preferred by the appellants and their fellows (not parties to this appeal) against the respondent. It is on record that the appellants were employed by the respondent but were terminated on 16th July, 2013 on ground that they participated in an illegal strike. Aggrieved by the termination, they referred the matter to the CMA seeking for reinstatement. The CMA delivered its award on 25th September, 2015 where it ordered the appellants to be re-engaged by the respondent instead of being reinstated as they prayed. Both parties were dissatisfied with the award by the CMA. The appellants preferred revision at the Labour Court and the respondent decided not to re-engage the appellants. Instead, she opted to compensate them in lieu of re-engagement with no more. The appellants were not pleased by that decision of the respondent. As a result, they unsuccessfully challenged it through revision at the Labour Court. Finally, they decided to execute the CMA award of re-engagement via Application No. 81 of 2021. Since the respondent had shown an interest to pay them instead of re-engagement, they calculated the amount which they thought they were entitled apart from 12 months, compensation which the respondent was ready to pay. The said execution application was struck out and they were advised to go back to the CMA for computation of their entitlements which were 12 months compensation and accrued salaries from the date of termination to 2015 when the respondent indicated his wishes not to re-engage them. Again, that decision aggrieved both parties, they both went to the Labour Court for revision against the CMA award; whereas, the appellants filed Revision No. 148 of 2022 and the respondent filed Revision No. 135 of 2022. The Labour Court consolidated those revisions and the outcome of the same is subject of the present appeal. In this appeal the appellants have advanced two grounds as follows: 1. That, Hon. Trial Judge erred in iaw and facts by deciding that the Commission for Mediation and Arbitration (the CMA) was correct on computation o f compensation from date o f termination to the date when the employer showed her intention not to re-engaged the employees contrary to section 40 (3) o f the Employment and Labour Relations Act, No. 6 o f2004. 2. That, Hon. Trial Judge erred in iaw by holding that employees are the ones who have been filing endless litigations at the High Court, thus they cannot eat their cake and have it, without considering the right to seek revision as a fundamental right to either party who is aggrieved by the decision o f the Commission for Mediation and Arbitration (the CMA). At the hearing of the appeal, the appellants were represented by Mr. Remmy Ephraim William, learned advocate, whereas the respondent had the services of Ms. Romana Gervas, also learned advocate. Submitting in support of the appeal, having adopted the appellants' written submissions as part of his oral account before the Court, Mr. William faulted the Judge of the Labour Court for upholding the CMA award. It was his argument in respect of the first ground of appeal that, the learned Judge was not right to say that section 40 (3) (now section 41 (3)) of the Employment and Labour Relations Act, Cap 366 R. E. 2023 (the ELRA) was properly applied by the CMA. He referred us to page 291 of the record of appeal where the Judge agreed that where the employer fails to re-engage the employee has to pay compensation of 12 months in addition to wages due and other benefits. He argued further that, having said so, it was not proper for the Judge to say again that, ordering the employer (respondent) herein to pay the appellants from when they were terminated to the time of the decision not to re-engage them is to punish the employer. According to him, what the Judge said is contrary to section 41 (3) of the ELRA. According to him, the respondent is supposed to pay the appellants from the date of termination to the date of full payments and 4 not up to when she showed the intention to pay in lieu of re-engagement. He insisted that, showing intention by itself is not sufficient, what is required is payment which includes other benefits as section 41 (3) of the ELRA provides for reinstatement, re-engagement or compensation. Regarding the second ground of appeal, he submitted that it was wrong for the Judge to hold that the appellants are supposed to be paid up to the time the respondent showed the intention to pay them because they are the ones entertaining endless litigations. He submitted further that the appellants have the right to challenge the decision of the CMA under the Constitution and section 91 of the ELRA. In addition, he said, the appellants filed revision at the Labour Court seeking proper interpretation of Section 41 (3) of the ELRA because they prayed for reinstatement not re-engagement under section 41 (1) (b) of same Act. He insisted that, the appellants are supposed to be paid from the date of termination to the date of full payment as the respondent opted not to re engage them. He thus prayed for the appeal to be allowed and the appellants to be paid in accordance with section 41 (3) of the ELRA. In reply, Ms. Gervas, having abandoned the respondent's written submissions, submitted that the first ground of appeal is baseless. This, she said, is due to the fact that the law allows the employer who does not wish to re-engage the employee as per the court order, to show the intention to that effect and pay compensation in terms of section 41 (3) of the ELRA. She referred us to pages 194 through 198 of the record of appeal where the employer's (respondent's) letters to the appellants showing the intention not to re-engage them but to pay 12 months compensation are found. However, she said when the appellants received those letters, they were not satisfied. As a result, they went to the Labour Court for revision. The employer showed that she was ready to pay them and take away the debts they owed her. After various attempts to challenge the CMA award, the appellants were advised to file execution application. They went to the CMA for calculations but they were not satisfied. Their application for reinstatement was dismissed by the CMA. as it can be observed at page 84 of the record of appeal. The CMA ordered that they should be re-engaged under section 41 (1) (b) of the ELRA. She thus prayed that, since the labour dispute started on 16th July, 2013 when the appellants were terminated, the award of the CMA was of 25th September 2015 and the respondent showed the intention to pay them on 28th October, 2015, the decision of the Labour Court be upheld as a correct position of section 41 (3) of the ELRA. She urged us to dismiss the appeal on this ground. Responding on the second ground of appeal, Ms. Gervas submitted that, the record of appeal bears evidence that the appellants were filing endless litigations despite the fact that the employer (the respondent) was ready to pay them compensation. Therefore, she said, the Labour Court was right in its decision because the appellants cannot benefit from their own actions of prolonging time of payment; otherwise, it is unfair to punish the employer. According to her, the appellants had no justification to prolong litigations and if they were not satisfied with the payment, they could use the same letters from the respondent to apply for execution and the court could give proper calculations. Finally, she prayed for the decision of the Labour Court to be upheld and the CMA award be declared correct. Mr. Willliam made a brief rejoinder asserting that the appellants are supposed to be paid from the date of termination to the date of payment of compensation and other entitlements. He insisted that, it is not proper to pay for 12 months compensation only. He elaborated that execution of the requirements under section 41 (3) of the ELRA is not under the employer's direction. Therefore, he argued, if the employer will fail to interpret that provision, then the employee has a right to come to court as the appellants did. After all, he said, both parties came to court after the award by the CMA and thus the appellants are not the only ones to be blamed for the alleged prolonged litigation. He urged us to give proper interpretation of section 41 (3) of the ELRA. We have dispassionately considered the submissions by the parties, grounds of appeal and the entire record of appeal, the main issue calling for our determination is whether the Labour Court gave proper interpretation of section 41 (3) of the ELRA, when saying that the appellants who were not re-engaged as per the order of the CMA were supposed to be paid on top of 12 months compensation, wages due from the date of termination (16th July, 2013) to the date when the respondent showed the intention not to re-engage them, that is on 28th October, 2015. It is important, at this juncture, to reproduce what the law provides under section 41 (3) of the ELRA. It reads: "Where an order o f reinstatement or re engagement is made by an arbitrator or court and the employer decides not to reinstate or re engage the employee , the employer shall pay compensation o f twelve months wages in addition to wages due and other benefits from the date o f unfair termination to the date o f final payment [Emphasis added] The above provision gives the employer discretion, upon being ordered to reinstate or re-engage the employee, to comply with the order as it is or to pay compensation as a mandatory requirement and other entitlements in lieu thereof depending on the circumstances. We say so because there is a difference between reinstatement and re-engagement. When an employee is reinstated after termination, it means taking the employee back to the previous position of employment with all his rights before and after the unfair termination. This is different when the CMA or court orders re-engagement; it means that, an employee loses the rights from the date of termination to the date of re-engagement and assumes a status of a new employee whose rights will depend on the terms of his new engagement as the arbitrator or the Labour Court may decide. We are persuaded by the decision of the Labour Court of South Africa, Johannesburg in Caiphus Sibusiso Mashaba v. Citibank N. A. SA Branch & 2 Others, Case No. JR 1294/13 of 29th May 2019, where the distinction between reinstatement and re-engagement (re-employment) was well stated as follows: "The ordinary meaning o f the word \reinstate' is to put the employee back into the same job or position he or she occupied before the dismissal\ on the same terms and conditions ....It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers' employment by restoring the employment contract.... Reinstatement means restoration o f the status quo ante. It is as if the employee was never dismissed. .... Re-employment [re-engagement] does not require the restoration o f the status quo ante as if a dismissal has not happened. Re employment is relief that in effect affords the employer greater flexibility where it comes to taking the employee back to work. .... Also, re employmentm , as opposed to reinstatement, can have conditions and/ or terms attached to taking the employee back to work, not contemplated by the employee's original employment and / or employment terms. As said in Tshogweni v. Ekurhuleni Metropolitan Municipality: Re employment implies termination o f a previously existing employment relationship and the creation o f a new employment relationship, possibly on different terms both as to period and the content o f the obligations undertaken. "[Emphasis added]. In terms of section 41 (1) (b) of the ELRA, just as stated in the excerpt above that the re-engagement is a creation of new employment 10 relationship, in re-engagement, the arbitrator or court may decide the terms. It provides: "41 (1) where an arbitrator or Labour Court finds a termination is unfair the arbitrator or Court may order employer: (a) N/A (b) To re-engage the employee on any terms that the arbitrator or Court may decide: or (c) To pay compensation to the employee o f not less than twelve months remuneration". It is plain from the above provision that in implementation of the order of the CMA or the Labour Court of re-engagement of an employee, the employer has an option of either re-engaging the employee as per the direction on any terms that may be set by the arbitrator or court or pay compensation of not less than twelve months remuneration. It is important to note that the arbitrator or court has discretion to give order of re-engagement with or without other directives. Also, subsection (3) of section 41 of the same Act provides as follows: "(3) Where an order o f reinstatement or re engagement is made by an arbitrator or Court and the employer decides not to reinstate or re- li engage the employee, the employer shall pay compensation o f twelve months wages in addition to wages due and other benefits from the date o f unfair termination to the date o f final payment "[Em'phtts added]. In the matter at hand, having found that there were valid reasons for termination of the appellants from the employment by the respondent, the CMA refused to grant them the relief for reinstatement. Instead, it ordered the respondent to re-engage them without further directions, save for time limitation of 14 days to comply with the order. We shall let part of the award of the CMA speak for itself: "Katika mgogoro huu imethibitika katika hoja ya kwanza kuwa waiaiamikaji wa/itenda kosa kubwa ia kugoma kazi na katika hoja ya piii kuwa mwajiri hakufuata utaratibu. Kwa kuwa pia waiaiamikaji walitenda kosa kubwa ambalo hata kama ni kosa la kwanza ambalo linahalalisha uachishwaji kazi; basi ni uamuzi wa Tume maombi ya kuwarudisha kazini waiaiamikaji pasipo kupoteza haki zao yanatupwa. Kwa kuwa mlalamikiwa hakufuata utaratibu kabla ya kuwaachisha kazi waiaiamikaji, ni uamuzi wa Tume kuwa mlalamikiwa awaajiri upya waiaiamikaji kwa mujibu wa kifungu cha 40 12 (1) (b) cha Sheria ya Ajira na Mahusiano Kazini Na. 6/2004. Uamuzi huu utekelezwe ndani ya siku 14 tangu tarehe ya kupoke/ewa. Haki ya mapitio/marejeo imeelezwa." [Emphasis added] In an unofficial translation, the underlined part of excerpt above means that the CMA refused the appellants' prayer of reinstatement without loss of their rights due to the fact that, their termination from employment was with valid reasons or substantially fair. Also, that the respondent was ordered to re-engage them in terms of section 41 (1) (b) of the ELRA as the procedure to terminate them was flawed. It is, therefore, clear that the respondent was ordered to comply with section 41 (1) (b) of the ELRA within 14 days of the date of the order and also the parties were informed of the right to revision available for them. As we stated earlier, the order for re-engagement presupposes that the employment starts afresh and this tells why the arbitrator refused the appellants' prayer for reinstatement without loss of remuneration having established that, the termination was substantially fair. Nonetheless, we have already indicated that the law provides for an alternative incase the employer does not wish to re-engage the employee under section 41 (1) (b) of the ELRA. The alternative provides for a mandatory minimum compensation of twelve months wages in addition to wages due and other 13 • benefits from the date of unfair termination to the date of final payment. It is pertinent to consider as we have already indicated that, re engagement order takes the employee back as if he was never employed. For that matter, it is not expected to have wages due and other benefits. This is clear from section 41 (3) of the ELRA which states categorically that, wages due and other benefits are considered from the date of unfair termination to the date of final payment. The Black's Law Dictionary, 11th Edition defines the terms wages due as: "Compensation paid to an employee for services rendered that are presently owed, matured, and payable. This generally means compensation that has been fully earned by the employee, the payment deadline has passed, and the employer is legally obliged to pay it immediately Being guided by the above definition, it is plain that the wages due and other benefits envisaged under section 41 (3) of the ELRA are those which the terminated employee deserves, which covers the whole period of time which he was supposed to work but unfairly terminated or a compensation that has been fully earned by the employee. In our considered view, if the order by the arbitrator or court does not state that the terminated employee should not lose remuneration, it means the employee deserves what is ordered. The logic behind is simple, as the 14 provision indicates, time starts to count from the date of unfair termination to the date of final payment; particularly if the termination is unfair both substantially and procedurally, which is not the case herein. This position was stated by the Court in Victor W. Meena and Another v. Arusha Technical College, Civil Appeal No. 515 of 2020 [2024] TZCA 111 (21 February 2024) in the following terms: 'We cannot fault the High Court Judge who exercised his power under section 40 (1) (c) [now section 41 (1) (c)J o f the ELRA by ordering compensation o f 12 months remuneration. However, we disagree with the learned Judge's findings and Mr. Nyoni's contention for awarding the appellants the relief o f compensation only. Mr. Nyoni's submission collapsed in the face o f the law because, in accordance with section 40 (2) [now 41 (2)] o f the ELRA,, the relief o f compensation o f 12 months remuneration does not stand alone; it is an addition to other entitlements in terms o f any law or agreement. Therefore, the High Court's reversal order was improper because it failed to include other basic benefits. "[Emphasis added]. The above excerpt indicates that an automatic payment of other entitlements is offered following an order for reinstatement in accordance with the law or agreement since the employee is taken back to the previous position before termination. The appellants in the present case applied for reinstatement without loss of remuneration but the arbitrator rejected the prayer. Instead, he ordered re-engagement which the respondent decided not to execute as it was and opted compensation in lieu thereof. Therefore, we find that it was a misdirection on the part of the Labour Court to go beyond what the law provides and order that the respondent was supposed to pay the appellants from the date of termination to the date of showing intention to pay them compensation. Section 41 (3) of the ELRA relied upon by the Labour Court is very clear and as we have already said, when an employee who was terminated is re-engaged, it means he/she starts afresh the employment. Therefore, under the circumstances, it is not expected that he/she will be paid wages due and other benefits like the employee who is reinstated unless, he earned them before termination and thus a genuine claim or the new agreement terms provide otherwise. We note that the appellants were not employed on the same date and they had varied duties and responsibilities. Thus, each employee had own wage and entitlements which the respondent ought to have considered in case there were wages due and benefits in accordance with the law and agreement because, payment of compensation to the appellants was preferred in lieu of re engagement. It is our considered view that, in absence of proof of wages due and benefits claims as per the agreements from the appellants against the respondent in the present case, and being fully aware that compensation is made in addition to, and not a substitute for, any other amount to which the employee may be entitled in terms of any law or agreement, we find and hold that the respondent was justified to pay them compensation only having deducted the amount she owed them. Having so determined, we find no reason to deal with the second ground of appeal for the first one disposes of the appeal. We, therefore, allow the appeal to the extent explained above. We order the appellants to be paid, in lieu of re-engagement, a mandatory compensation of 12 months wages since no claim of wages due before termination was established. Further, we set aside the order by the Labour Court requiring the respondent to pay the appellants wages due which never existed within that fixed period of time (from 16th July, 2013 to 28th October, 2015). This is a labour matter; therefore, we make no order as to costs. DATED at DAR ES SALAAM this 22n d day of May, 2026. M. C. LEVIRA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 22n d day of May, 2026 in the presence of Ms. Romana Gervas, learned counsel for the Respondent, also holding brief for Mr. Remmy Ephraim William, learned counsel for the Appellants and Ms. Janekissa Bukuku, Court clerk, is hereby certified as a true copy of the original. 18