Seet Peng Swee vs Total Tanzania Limited (Civil Appeal No. 395 of 2022) [2025] TZCA 978 (18 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MWANDAMBO. J.A., KHAMIS. J.A. And MLACHA. J.A.\ CIVIL APPEAL NO. 395 OF 2022 SEET PENG S W E E ............................................. ................................. APPELLANT VERSUS TOTAL TANZANIA LIMITED .................... ....................................... RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania, Labour Division at Dar es Salaam) (Maahimbi. J.^ dated the 9th day of March, 2022 in Labour Revision No. 500 of 2020 JUDGMENT OF THE COURT 23rd June & 18th September, 2025 MWANDAMBO, J.A.; The High Court (Labour Division) sitting at Dar es Salaam in Revision Application No. 500 of 2020 nullified the proceedings and quashed an award in favour of the appellant made by the Commission for Mediation and Arbitration ("the CMA") for Kinondoni in Labour Dispute No. CMA/DSM/KIN. /R. 478/15/1054 for lack of jurisdiction. Aggrieved, the appellant preferred the instant appeal. i

Briefly, the appellant was employed by the respondent as Chief Sales Manager on a two years' contract starting on 13 April 2015. The contract included a six-month probationary period, after which, the appellant could be confirmed upon satisfactory performance. A month before the probation ended, the respondent proposed fresh terms of employment contract, particularly, the appellant's salary. After exchanging draft proposals to the original contract, the respondent terminated the appellant’s contract on 15 October 2015, citing lack of approval from its head office in Paris, France. The appellant challenged the termination at the CMA, claiming that it was substantively and procedurally unfair. She sought compensation for 36 months' remuneration, repatriation costs, general damages, and outstanding incentive payments. The respondent countered that the termination was a result of failed renegotiations during the probationary period. The determination of the dispute was upon two issues derived from the parties' respective opening statements, to wit; whether the appellant's termination was substantively and procedurally fair and, what reliefs were the parties entitled to. At the end of the arbitration, the CMA determined the main issue in the appellant's favour and concluded that the termination was unfair. It awarded the appellant USD 88,403.00 which 2

included 14 months' remuneration as compensation, prorated leave, and incentive payments. The respondent challenged the CMA's award at the Labour Court by way of revision on three grounds contending that: one, the appellant had not been confirmed into employment; two, the CMA lacked jurisdiction to determine the dispute; and, three, the 14 months' remuneration compensation was unjustified. The Labour Court anchored it decision on the first two grounds concluding that, since the appellant had worked for less than six months and was not a confirmed employee, Section 35 of the Employment and Labour Relations Act (the Act) she was barred from filing a dispute at the CMA. This section exempts the application of the unfair termination procedure enacted under Sub-Part E of the Act to any employee with less than six months' employment with the same employer, whether under one or more contracts. The Labour Court ruled that the CMA had no jurisdiction and quashed its award. Discontented, the appellant has appealed against the Labour Court's decision on eight grounds of appeal. During the hearing, the appellant's counsel, Mr. Erick Denga, abandoned four of the grounds, namely; 1st, 2n d , 3rd and 7th grounds of appeal. The appeal now rests on the following grounds: 3

1. The High Court judge erred in law by holding that the CMA had no jurisdiction to entertain the dispute.
2. As the first appellate court,, the High Court erred by not re assessing and re-evaluating the evidence before concluding that the appellant was still on probation.
3. The High Court based its decision on new factual issues that were never decided by the CMA, and the parties were not given the right to be heard on them.
4. The learned High Court judge misinterpreted section 35 o f the Employment and Labour Relations Act and wrongly concluded that the appellant was s till on probation. At the hearing of the appeal, Messrs. Erick Denga and Ramadhani Karume, both learned advocates, appeared representing the appellant and respondent, respectively. Mr. Denga who had lodged written submissions in support of the appeal stood by the submissions but made brief oral arguments on the 4th and 8 th grounds of appeal. Unlike the appellant, the respondent opted to dispense with the lodging of her written submissions in reply reply but we heard Mr. Karume orally during the hearing. The appellant's learned advocate combined his submissions on the renumbered 1st and 4th grounds of appeal and argued that section 35 of the Employment and Labour Relations Act (the Act) did not apply to the appellant because she had worked for more than six months and was no

longer on probation contrary to the learned Judge's conclusion. The counsel contended that, her confirmation was a factual matter that should have been dealt with by the CMA and not by the Labour Court in revision proceedings. Replying, the respondent's advocate maintained that as the appellant was not yet confirmed, she had no right to file a dispute based on unfair termination, and therefore, the CMA lacked jurisdiction. In rebuttal, Mr. Denga contended that, the CMA's jurisdiction is a matter of evidence governed by rule 20 of the Labour Institutions (Mediation and Arbitration) Rules, G. N. No. 64 of 2007, henceforth the Rules, which could not have been raised in an application for revision before the Labour Court. He thus invited the Court to allow the appeal. It is common cause from our examination of the record of appeal that, the grounds upon which the Labour Court based its decision never featured and canvassed in the arbitration before the CMA. The respondent did not contest the appellant's complaint on the ground that she had less than six months with the same employer pursuant to section 35 of the Act. Neither did it do so on the ground that the appellant had not yet been confirmed into employment upon completion of six months of her probation. Had it been the case, it should have been dealt with under rule

20 of the Rules. To be sure, this rule enjoins the arbitrator to determine any jurisdictional question during the arbitration proceedings. All the same, as rightly submitted by the appellant's learned advocate, the fact that the letter terminating the appellant dated 15 October 2015 stated that the termination took effect from 12 October 2015 did not have any effect on the appellant's date of termination, that is, 15 October 2015 when she received the letter. Indeed, it is glaring from CMA F.l that the appellant was terminated on 15 October 2015. Had the learned Judge properly examined the material placed before her in the application for revision, she should have found that, the appellant had worked with the respondent for more than six months and thus she had already qualified to access the CMA on a complaint involving fairness of the termination. Consequently, since the appellant had already qualified to access the CMA pursuant to section 35 of the Act, the Labour Court strayed into error in holding that the CMA had no jurisdiction to determine the labour dispute on the fairness of the impugned termination. Having held that the appellant attained the qualifying period in the manner discussed above, the next question for our consideration and determination relates to the appellant's confirmation in relation to the CMA's jurisdiction. It will be recalled that the Labour Court's decision on CMA's jurisdiction was a result of its finding that the appellant was still

under probation and not yet confirmed on the date of the termination. It is striking that; non-confirmation was not one of the issues in the arbitration at the CMA for the determination of the dispute but was canvassed for the first time in the revision proceedings. The appellant's advocate impressed upon us to agree with him that the appellant was not under probation contrary to the reasoning by the learned Judge. He relied on the Court's decision in David Nzaligo v. National Microfinance Bank Pic [2019] T2CA 540. He distinguished its application to the appeal on several fronts: one, confirmation was specifically provided for to be by way of a letter unlike exhibit SI which had no such clause and subject to evidence to the contrary which was not the case; two, the appellant had already worked for more than six months which was not the case in Nzaligo's case; three, the decision did not set any standard mode of confirmation of employment. On that basis, the learned advocate contended that the Labour Court was not correct in holding that the CMA lacked jurisdiction due to absence of confirmation which was in any event a factual issue not canvassed before the CMA. In any case, counsel contended that, there was evidence through exhibit S3 that the appellant had been confirmed into employment. For his part, the respondents' advocate was adamant that, since the appellant had not yet been confirmed into employment, the CMA

lacked jurisdiction to entertain the dispute based on fairness of the termination. It is plain from the submissions by the appellant's advocate, both written and oral, that, the Labour Court erred for basing its decision on the CMA's jurisdiction by relying on the respondent's newly introduced ground on lack of confirmation. We understood Mr. Denga suggesting that, raising the issue on jurisdiction at the revision stage was, but an afterthought which should not have been entertained by the Labour Court. Apparently, the appeliant's learned advocate raised the same argument in the written submissions in reply but the Labour Court rejected it on the ground that, since it involved jurisdiction and therefore, it could be raised at any time. Be it as it may, in our view, since a complaint on the confirmation into employment in the manner canvassed before the Labour Court had a bearing on the CMA's jurisdiction, it should have been raised at the CMA and dealt with pursuant to rule 20 of the Mediation and Arbitration Guidelines (supra). Raising it for the first time before the High Court in an application for revision was an afterthought and that court should not have entertained it. On the other hand, had it been properly raised at the CMA, the issue for our arising for our consideration is whether probation falls in the ambit of section 35 of the Act. 8

Our starting point in our bid to answer the above question takes us to the objects in section 3 (e) and (g) of the Act, that is: "(e) to provide a framework for the resolution o f disputes by mediation , arbitration and adjudication and; (g) generally, to give effect to the core conventions o f the International Labour Organisation as well as other ratified conventions . " One of the core conventions of the International Labour Organisation ("ILO") is Convention No. 158 of 1982 dedicated to termination of employment titled: ILO Termination of Employment Convention, 1982(No.l58). Linder Article 8 paragraph 1 of the Convention signatories agreed to give right to workers to challenge termination of their employment thus: "A worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an im partial body , such as a court, labour tribunal, arbitration committee or arbitrator.: However, that right is subject to the exemption set out under paragraph 2 of Article 2 of the Convention which stipulates: 'A Member may exclude the following categories o f employed persons from a ll or some o f the provisions o f this Convention:

(a) workers engaged under a contract o f employment for a specified period o f time or a specified task; (b) w o rke rs se rv in g a p e rio d o f p ro b a tio n o r a q u a lify in g p e rio d o f em ploym ent, d e term in e d in ad van ce a n d o f reaso n a b le d u ra tio n ; (c) workers engaged on a casual basis for a short period." [bolding added for emphasis] Consistent with the objects of the Act and in line with the dictates of the ILO Convention reproduced above, Tanzania, a member of the ILO through Parliament enacted section 35 in the Act to exempt employees with less than six months from referring their complaints to the CMA challenging unfairness of termination through the procedure set out under part III sub-part E of the Act. Other than the qualifying period, we read nothing from the section exempting employees under probation to access CMA challenging fairness of termination. It is trite law of statutory interpretation that, words in a statute must be presumed to mean what the legislature meant to say except where they are ambiguous. The Court s decision in Republic v. Mwesige Geofrey & Another [2015] TZCA 264 cannot be more apt stating that: "Indeed, it is a x io m a tic th a t w hen th e w ords o f a s ta tu te a re unam biguous, ju d ic ia l in q u iry is co m p lete'. There is no need for interpolations, lest we stray into the exclusive preserve o f the legislature 10

under the cloak o f overzealous interpretation, This is all because: - 'co u rts m u st p resu m e th a t th e le g isla tu re sa y s in a sta tu te w h at it m eans a n d m eans in a sta tu te w h a t it sa ys th e re - C o n n e cticu t N a t l B a n k v. G erm ain ; 112 S. Ct. 1146, 1149(1992)."[ Bolding added for emphasis] There is a corresponding caution from the works of the learned authors of M u lla on the Code of Civil Procedure Act V of 1980 16th edition by P.M. Bakshi, on the interpretation of statutes which we consider to be useful in this appeal thus: "The goiden rule for the interpretation o f this [CPC] as well as other Acts is to consider the plain meaning o f the words used. The Court's function is not to say what the legislature meant but to ascertain what the legislature has said it meant. The Court cannot proceed on the assumption that the legislature has made a mistake. Even if there is a defect, it is not for the Court to add to or amend the words o f a statute or to supply a casus omissus. That is for the legislature. It is always dangerous to paraphrase an A ct When the language is dear , , it is the duty o f the Court to give effect to it without calling in aid outside considerations to ascertain the intentions o f the legislature..." /at page 4] ii

In its wisdom, Parliament did not want to exempt probationary employees from the application of part III sub-part E of the Act provided that they have met the qualifying period of six months. Consequently, the reasoning of the Labour Court holding that the CMA had no jurisdiction to entertain the appellant's complaint on the ground that she was still a probationary employee regardless of the fact that she had already worked with the respondent for a period exceeding six months on the date of the impugned termination was, with respect, erroneous. Contrary to the submissions by Mr. Karume, we endorse Mr. Denga's argument that Nzaligo's case is clearly distinguishable primarily because the appellant therein had not met the qualifying period. In our view, the position would have been different had the appellant been terminated before the satisfying the statutory qualifying period which is not the case in the instant appeal. It will be noted that, section 35 of the Act has been a subject of the Court's decisions in several decisions including in Mbeya Urban Water and Sewerage Authority v. Lillian Sifaeli [2024] TZCA 64 and Momole Rose Nyimbo v. Warrior Security Ltd [2024] TZCA 1202 underscoring the position on the qualifying period to access the CMA which does not include probation. Consequently, we find merit in the 4th 12

and 8 th grounds of appeal and sustain them which renders the discussion on the remaining grounds superfluous. In the event, we allow the appeal and set aside the decision of the Labour Court nullifying the proceedings before the CMA and quashing the resultant award. The CMA's award is, in consequence, restored. We make no order as to costs. DATED at DODOMA this 16th day of September, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 18 th day of September, 2025 in the presence of Mr. Godfrey Danel Hezron, learned Advocate for the appellant, Mr. Ramadhan Karume, learned advocate for the Respondent via virtual Court and Mr. Oscar Msaki, Court Clerk is hereby certified as a true copy of the original.