Domina Qam Ara vs Nature Discovery (Civil Appeal No. 958 of 2025) [2026] TZCA 531 (12 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: FIKIRINI, J.A., RUMANYIKA. J.A.. And ISSA. 3.A.^ CIVIL APPEAL NO. 958 OF 2025 DOMINA QAM ARA...................................................................... APPELANT VERSUS NATURE DISCOVERY.................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) fMwenda, J.l dated the 28th day of March, 2025 in Revision No. 18551 of 2023 JUDGMENT OF THE COURT 5th & 12th May, 2026 ISSA, 3.A.: This is the second appeal in which the appellant is challenging the judgment and decree of the High Court of Tanzania at Arusha (the first appellate court) which set aside the decision of the Commission for Mediation and Arbitration (the CMA). The following brief background facts will serve the purpose of appreciating the essence of the present appeal. The appellant was employed by the respondent as assistant accountant on 1st February, 2014 and their relationship came to an end in a strange manner on 19th July, 2023. The appellant stopped going to work, claiming

she was constructively terminated while the respondent insisted that she absconded from work. The appellant lodged Dispute No. CMA/ARB/ARS/243/2023 at the CMA claiming that, she had been subjected to workplace discrimination and constructive termination by the respondent. The genesis of the dispute is the employer's decision to change the route of the staff bus. The appellant's allegation was that, the staff bus used to pick her and another staff at Njiro round-about in the city of Arusha, but upon the retirement of the other staff, the respondent changed the route of the bus and she had to catch it at Philips which was far from where she was residing. This event forced her out of employment. On 14th June, 2024, the CMA delivered its award in favour of the appellant. It ordered the respondent to compensate the appellant 24 months salaries totaling TZS. 46,680,000.00 for unfair termination. The respondent also had to pay her other terminal benefits, including notice, leave, severance and a clean certificate of service. Aggrieved, the respondent lodged an application for revision at the 1st appellate court challenging the decision of the CMA. The 1st appellate court evaluated the evidence on record and reversed the decision of the

CMA. It came to the conclusion that, the appellant was not discriminated and there was no constructive termination. This time it was the appellant who was aggrieved; she filed the instant appeal armed with five grounds of appeal which go thus:

1. That, the High Court Judge grossly erred in law and fact as went on analysing and deciding an issue which had not been an issue before the Commission fo r M ediation and Arbitration during the Arbitration hearing.
2. That, the High Court Judge grossly erred in law and fact by not finding and holding that, the change o f bus route affecting only one person among a ll com pany em ployees was a discrim inatory act targeting only the com plainant
3. That, the High Court Judge grossly erred in law and fact by not finding and holding that, the change o f bus route due to cost cutting/operational requirem ent and denying the com plainant the fa cility did not follow proper procedure as required by law.
4. That, the High Court Judge grossly erred in law and fact by not finding and holding that, the transport was issued to a ll em ployees as stipulated in contract o f em ploym ent o f the com plainant and action o f denying the use o f fa cility is discrim inatory act.
5. That, the High Court Judge erred in fact and in law by granting application fo r revision w ithout properly analyzing the evidence and testim onies o f parties as

subm itted before the Commission o f M ediation and Arbitration. When the appeal was called on for hearing, the appellant was represented by Mr. Allen Godian, learned advocate while the respondent had the services of Ms. Miriam Nitume, also learned advocate. Before the hearing could commence in earnest, Mr. Godian abandoned the 1st and 5th grounds of appeal. With respect to the remaining grounds of appeal, he clustered them into two issues: breach of contract of employment and discrimination of the appellant Submitting on the issue of breach of contract of employment, which appeared on page 28 of the record of appeal and admitted at CMA as exhibit PI, Mr. Godian submitted that, the issue of transport was a term of the contract of employment and he took us to Clause 5 (ii) of the exhibit PI. He submitted that, the respondent was providing bus transport from 2021 and was picking the appellant at Njiro round-about until 14th July, 2023, when the bus route was changed and it no longer passed at Njiro round-about. Instead, the appellant was asked to catch the bus at Philips, which was far from her house. He concluded that, this change of route increased the appellant's expenditure as she had to pay TZS. 104,000.00 per month in order to reach Philips and when she complained to the

respondent, the letter promised to pay her only TZS. 75,000.00 per month to assist her to reach the pickup point. Taking this argument further, Mr. Godian argued that the payment of TZS. 75,000.00 per month contravened the contract of employment which provides that, she will be paid TZS. 5,000.00 a day totaling TZS. 150,000.00 a month. Therefore, there was a breach of contract. Furthermore, he submitted that according to the contract of employment the designated route was Njiro round-about, hence, the change of route was also a breach of contract. Responding to the issue of breach of contract, Ms. Nitume was adamant that, this issue is new as it was not discussed at the CMA or the first appellate court. The appellant was mixing the issue of breach of contract and discrimination. She argued that the contract of employment was intact and in the alternative, at the most the appellant should have claimed unpaid wages of TZS. 5,000.00 a day. In addition, Ms. Nitume argued that the designated route was explained at page 80 of the record of appeal; it was a route fixed by the employer. Further, she clarified that the respondent discussed the change of route with the appellant before the change was affected and she was offered TZS. 75,000.00 to enable her to reach the pickup point at Philips.

Furthermore, another meeting was scheduled on 19th July, 2023, but the appellant did not come to work and in fact, by that day she had already lodged her complaint to the CMA. She concluded that the bus was there and the appellant was just required to catch it at the pickup point. There was no breach of contract. On our part, we will take the same route in determining the grounds of appeal. We perused the CMA F.l which instituted the dispute at the CMA and our finding is that, the nature of dispute as filed by the appellant was not a breach of contract. According to page 10 to 11 of the record of appeal, the nature of dispute is discrimination and constructive termination. Further, we perused the CMA proceedings and we found that, breach of contract was not framed as an issue and was not specifically discussed. The first appellate court also had the same approach. It is trite law that the parties are bound by their pleadings, but as we stated in James Funke Ngwalilo v. Attorney General (2004) T.L.R. 165 that, even though the parties are bound by their pleadings where unpleaded matter has been argued and left for the Court's determination, the Court is bound to make a decision thereon. In the instant case, although the CMA did not discuss breach of contract, it

discussed the contract of employment in the context of discrimination at page 99 of the record of appeal and we let the award speaks for itself: 7 have passed through Exhibit PI , em ploym ent contract is not in dispute. The respondent under item 5 (ii) o f contract o f em ploym ent offered transport to com plainant via sta ff bus to and from work place and if the bus is not being used a transport allowance o f Tsh 5,000/= w ill be paid p er day. The q u e stio n th is C om m ission a sk s its e if is/ w h e th e r th e re sp o n d e n t co m p iie d to th e re q u ire m e n ts o f ite m 5 ( ii) o f th e c o n tra c t a fte r sh e m ade ch an g es o f th e ro u te ? The a n sw e r is no, I sa y so b ecau se ite m 5 ( ii) o f th e c o n tra c t is s e lf- e x p la n a to ry th a t co m p la in a n t w as su p p o se d to be p ic k e d up fro m h e r hom e (N jiro ) to h e r w o rk p la ce . The re sp o n d e n t's change o f ro u te a u to m a tic a lly m ade co m p la in a n t to in c u r c o st to tra v e l fro m N jiro to P h ilip s 's b u s sto p to ca tch a tra n sp o rt to w o rk p la ce . The re sp o n d e n t th rou gh DW 1 in h is te stim o n y h e s ta te d th a t he o ffe re d Tsh 7 5 ,0 0 0 /= a s a tra n sp o rt b u t a s p e r ite m 5 ( ii) th a t w as n o t an a g re e m e n t betw een th ese tw o p a rtie s. The facts that the bus was not again passing the route which com plainant was involved the respondent was required to offer com plainant the sum o f Tsh 5000 per day which m athem atically per month equals to Tsh 150,000/= and

not Tsh 75,000/= which was offered by respondent" (Emphasis supplied) Since, the issue of contract of employment was pivotal in the discussion of whether the appellant was discriminated or not, we will make it our starting point. The contract of employment (exhibit PI) which was signed on 19th August, 2021 appears at page 28 of the record of appeal and Clause 5 titled remuneration provides: "(i) N/A (ii) Transport on the sta ff bus to and from work as per designated route. I f the bus is not being used as a transport allowance o f Tzs 5,000 w ill be paid per day. (iii) N/A ..." The above clause stipulates two things: one, that the respondent will provide a transport by means of a staff bus for employees to and from work through a designated route. Two, if the bus is not used as a transport, allowance of TZS. 5,000.00 will be paid per day. In the instant case, the staff bus was there and there was a designated route. The pickup point for employees was at Philips station. If earlier, the pickup point was at Njiro round-about, as claimed by the appellant, it was a discretion of the employer to provide a designated route. Clause 5 (ii) 8

does not stipulate a particular route which will be used as the designated route. Therefore, there was no contractual obligation to pick up the appellant at her home at Njiro. The designated station was fixed at Philips and all employees were required to wait at that point. Therefore, there was no breach of contract. Further, clause 5 (ii) provides that, if the staff bus is not there or is not provided as a means of transport to and from work, the respondent will pay the appellant a transport allowance of TZS. 5,000.00 per day. The total amount of transport allowance will depend on the number of days the appellant was working per month. Therefore, the issue of transport allowance only kicks in when the staff bus is not used as a means of transport to and from work. In the present case, the staff bus was there and it carried employees from Philips to place of work. The payment of transport allowance does not arise at all. Despite that, the respondent offered to pay the appellant TZS. 75,000.00 per month which was not in the contract. Therefore, on this front as well we are firm in our finding that, there was no breach of contract. Therefore, this issue is dismissed for lack of merit. The second issue argued by Mr. Godian is discrimination. He amplified the point by arguing that the change of route amounted to

discrimination. The appellant was alone; hence she was discriminated which is against section 7 (8) of the Employment and Labour Relations Act, Cap. 366 (the ELRA). He added that, the discrimination caused constructive termination. To support his argument, he cited the case of Kobil Tanzania Limited v. Fabrice Ezaovi [2021] TZCA 477 where the Court laid down three conditions for constructive termination to be established, namely: the termination has to be done by employee, there must be intolerable reasons and the employer should be the one who make the work intolerable. He argued that the respondent was the one who quit the job, the conditions of work were intolerable as there was breach of contract and discrimination and it was the employer who caused the intolerable conditions. He prayed for the Court to quash the decision of the first appellate court and sustain the decision of the CMA. Responding to the issue of discrimination, Ms. Nitume submitted that on the previous route there were two employees. One of them was a chief accountant whose duties made him remain at work for long hours and could not catch the bus. Hence, he was given a fuel voucher. She argued that in accordance with section 7(6)(b) of the ELRA, the appellant was not discriminated. Further, she argued that the appellant did not write a letter or give a notice of termination of contract of employment and she 10

did not resign either. She just stopped coming to work on 14th July, 2023 and on 19th July, 2023 the employer was called at the CMA. She added that, the appellant absconded from work and the length of abscondment was five days. Therefore, it cannot be argued that the situation was intolerable. She concluded that, the respondent did not cause the situation, hence, she prayed for the dismissal of the appeal. In rejoinder, Mr. Godian admitted that the appellant did not terminate the employment. She just went to the CMA after waiting for five days alleging that the respondent had shown her stance that, she will only pay her TZS. 75,000.00 to take her to the pickup point. He concluded that it was the employee who terminated the contract and prayed for the appeal to be allowed. Against that backdrop, the Court has been called upon to determine two issues: whether there was discrimination and whether the discrimination led to constructive termination. Starting with the issue of discrimination, the complaints of the appellant in the 2n d and 4th grounds of appeal are to the effect that, the change of bus route affected only one person among all company employees, hence, was a discriminatory act targeting only the respondent. Further, in the 4th ground the complaint is that, the transport was provided

to all employees as stipulated in the contract of employment of the appellant and the action of denying her the use of facility is a discriminatory act. The issue of discrimination needs not detain us, the contract of employment, as alluded to above, is very clear. It provides transport to and from work to all employees through a pickup point in the designated route. The designated route was not mentioned in the contract; as it was the prerogative of the employer to provide it. In that context, the pickup point of the designated route was at Philips. This means all employees irrespective of where they are residing had to catch the staff bus at Philips. This arrangement was not a discrimination against the appellant, as there was no proof that all employees were living at Philips. Each employee had to find his or her own means to reach the designated pickup point. Further, this arrangement did not deny the appellant the use of the staff bus. In fact, the main complaint of the appellant was that, she was incurring additional cost to reach the pickup point and she specifically mentioned the amount to be TZS. 104,000.00 a month. The respondent, in fact, heard her grievance and promised to pay her TZS. 75,000.00 per month to cover the cost of reaching the pickup point at Philips. Further, the discussion was on going as the difference from what she claimed and 12

what was provided was only TZS. 29,000.00, but the appellant took a unilateral action of not attending office. This is not discrimination by any standard and this ground is dismissed for lack of merit. The second issue concerns whether there was constructive termination. Section 37 (a)(ii) of The Employment and Labour Relations Act, Cap. 366 (the ELRA) and Rule 7(1) of the Employment and Labour Relations (Code of Good Practice) (G.N. No. 42 of 2007) laid down the law regarding constructive termination. Section 37(a)(ii) of the ELRA provides: "(a) "term ination o f em ploym ent" includes 0) N/A (ii) a term ination by an em ployee because the em ployer made continued em ploym ent intolerable fo r the employee ..." While Rule 7(1) of the G.N. No. 42 of 2007 provides: "(1) Where the em ployer makes an em ploym ent intolerable which m ay resuit to resignation o f the employee, that resignation am ounts to a forced resignation or constructive term ination. 13

(2) Subject to sub-rule (1), the follow ing circum stances may be considered as sufficient reasons to ju stify a forced resignation or constructive term ination - (a) sexual harassm ent or the failure to protect an em ployee from sexual harassm ent; and (b )ifa n employee has been unfairly dealt with, provided that the employee has utilised the available mechanisms to deal with grievances unless there are good reasons fo r not doing so. (3) Where it is established that the em ployer made em ploym ent intolerable as a result o f resignation o f employee, it sh all be legally regarded as term ination o f em ploym ent by the employer." In addition, the Court in Kobil Tanzania Limited (supra) while citing a South African case of Solid Doors (Pty) Ltd v. Commissioner Theron and Others, (2004) 25 IU 2337 (LAC) laid down three requirements for constructive termination to be established: nThe first is that the employee m ust have term inated the contract o f em ploym ent The second is that the reason fo r term ination o f the contract m ust be that continued em ploym ent has become intolerable fo r the employee. The third is 14

that it m ust have been the em ployee's em ployer who had made continued em ploym ent intolerable. AH th e se th re e re q u ire m e n ts m u st b e p re se n t fo r it to b e s a id th a t a co n stru ctiv e d is m is s a l h a s been e s ta b lis h e d I f one o f them is ab se n t, co n stru ctiv e d ism issa l is n o t e sta b lish e d ... /'(Emphasis Supplied) Reading the testimony of the appellant at the CMA appearing at pages 95 to 96 of the record of appeal, there is nowhere the appellant claimed to have resigned or terminated the contract of employment. Her claim was that she was discriminated. Therefore, we are firm in our minds that, the first requirement to establish constructive termination was not established as the respondent did not terminate the contract. She did neither give notice nor letter of termination nor resignation letter. What is evident is that, she stayed home for five consecutive days without communicating with the respondent. Staying home could be attributed to various reasons, and not necessarily connected with the work. It was on the fifth day that the respondent was summoned to appear at the CMA. Therefore, by any stretch of imagination it cannot be said that the appellant complied with the first requirement for constructive termination. Therefore, as the first requirement is missing, discussing other requirements to establish constructive termination would be purely

academic and we refrain from that pursuit. Therefore, the issues in the 2n d , 3rd and 4th grounds of appeal are found meritless and we dismiss them. All in all, we are satisfied that the appeal has no merit and we dismiss it. We make no order as to costs as this is a labour matter. DATED at ARUSHA this 12th day of May, 2026. P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL Judgment delivered this 12th day of May, 2026 via teleconferencing in the presence of Mr. Allen Godian, learned counsel for the appellant, Ms. Miriam Nitume, learned counsel for the respondent and Mr. Nelson Novati, Court Clerk in person is hereby certified as a true copy of the original. X J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL 16