Momole Rose Nyimbo vs Worrior Security Limited (Civil Appeal No. 298 of 2022) [2024] TZCA 1202 (6 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: MWANDAMBO, J.A., KAIRO, J.A., And ISSA. J.A.^ CIVIL APPEAL NO. 298 OF 2022 MOMOLE ROSE NYIMBO..............................................................APPELANT VERSUS WORRIOR SECURITY LIMITED.............................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Monqella, J.) dated the 14th day of November, 2019 in Labour Revision No. 12 of 2017 JUDGMENT OF THE COURT 2n d & 6th December, 2024 ISSA, 3.A.: The parties to this appeal have been entangled in a labour dispute for the past eight years. The following brief background facts will serve the purpose of appreciating the essence of the present appeal. On 6th May, 2016 the appellant was employed by the respondent on a permanent basis as an office administrator. Unfortunately, three months later on 9th August, 2016 she was terminated on the basis of economic constraints. The appellant was not amused. She lodged a complaint in the Commission

for Mediation and Arbitration (the CMA) at Mbeya claiming compensation for unfair termination. The CMA delivered its award on 11th May, 2017 in favour of the appellant. It held that the termination was substantively and procedurally unfair. It ordered the respondent to pay the appellant the sum of TZS. 33,600,000.00 which included one month's notice, salary compensation of 12 months' salaries, subsistence allowance for 9 months and transport cost. The respondent was dissatisfied with the decision against which she filed at the High Court (the court) an application for revision of the award vide Revision No. 12 of 2017. The court on 14th November, 2019 delivered its decision in which it found that the CMA had no jurisdiction to entertain the appellant's claim based on unfair termination as the appellant had less than six months of services with the respondent. The revision was allowed and the decision of the CMA was quashed in its entirety. This time it was the appellant who was dissatisfied. She approached this Court with the instant appeal predicated on two grounds followed by written submissions. The grounds of appeal go thus:

1. That the Application for Revision No. 12/2017 before the High Court was incompetent for being supported by a

defective affidavit which has not complied with the mandatory requirements o f Rule 24(3) (a), (b), (c), and (d) o f the Labour Court Rules No. 106 o f2007. 2. That the High Court Judge erred in law by failing to consider that the appellant had a permanent contract of employment with the respondent hence she is not the subject o f limitation under section 35 o f the Employment and Labour Relations Act No. 6 o f2004. At the hearing of the appeal, the appellant was represented by Mr. Faraja Msuya, learned advocate whereas the respondent had the services of Mr. Gasper Mwakanyemba, also learned advocate. Mr. Mwakanyemba had, earlier on, lodged a notice of preliminary objection against the appeal in terms of rule 107 (1), (2) and (3) of the Tanzania Court of Appeal Rules, 2009. The point of objection goes thus: " This Court lacks jurisdiction to entertain this appeal because it is not confined to points o f law but, rather on factual matters contrary to dictates o f section 57 o f the Labour Institutions Act No. 7 o f2004 and case law.” When Mr. Mwakanyemba was called on to amplify the point of objection, he abandoned it in favour of proceeding with the appeal on

merit. We accordingly marked the objection as abandoned and proceeded with the hearing. In his address, Mr. Msuya started with the first ground of appeal in which he submitted that the application for revision before the High Court was supported by an affidavit which did not comply with rule 24 (3) (d) of the Labour Court Rules No. 106 of 2007 (the Labour Rules) which prescribes that the affidavit should contain the reliefs sought. He argued that, in the affidavit supporting the application for revision, the part which ought to describe the reliefs sought was missing making the affidavit incurable defective. He bolstered his argument by citing the High Court decision in James Daniel v. CATS-NET Limited, Labour Revision No. 258 of 2017 High Court DSM (unreported). When the Court probed whether the appellant was prejudiced by that omission in the light of a clear stipulation of the reliefs sought in the chamber summons filed by the respondent, the learned advocate was quick to admit that there was no prejudice caused, as they knew about the reliefs sought. Upon reflection, the learned advocate changed his stance and abandoned the first ground of appeal. With respect to the second ground of appeal, Mr. Msuya submitted that, the learned High Court judge failed to consider the fact that the

appellant had a permanent contract of employment. Therefore, he argued, she was not covered by the limitation under section 35 of the Employment and Labour Relations Act, Cap. 366 (the ELRA). He buttressed the point by the Court's decision in St. Joseph Kolping Secondary School v. Alvera Kashushura [2022] TZCA 445, TANZLII. Mr. Mwakanyemba, on his part, opposed the appeal. He submitted that the CMA had no jurisdiction to entertain the instant case considering that, section 35 of the ELRA is very clear and there is no ambiguity in that provision. He added that the provision did not differentiate between a contract for a specified period and that for unspecified period. The employees under these contracts are all covered by the limitation under section 35 of the ELRA. The epi-centre of section 35 is a limitation based on the time an employee has served with the employer and not the type of contract. He concluded that, an employee who has served for less than six months can still lodge a complaint for breach of contract but not for unfair termination. He prayed for the dismissal of this appeal. In the rejoinder, Mr. Msuya had nothing to add. He left the matter to the Court. The ball is now on our court. We have been called upon to determine the implication of section 35 of the ELRA on the fate of the employees

who have been in the services for an employer for a period of less than six months. The starting point is section 35 of the ELRA which provides: "35. The provisions o f this Sub-Part shall not apply to an employee with less than 6 months' employment with the same employer, whether under one or more contracts." Section 35 of the ELRA is found in Sub-Part E titled: Unfair Termination of Employment. Therefore, the provisions contained in Sub- Part E (section 35 to 40) specifically deal with unfair termination. Section 35 of the ELRA, in particular, bars an employee from instituting a claim for unfair termination in the CMA unless he has served in that employment for a period of not less than six months. It provides a qualifying period of a minimum of six months for an employee to avail himself of the protection against unfair termination. In the instant appeal, it was common ground that the complaint of the appellant which was referred to the CMA specifically raised the issue of unfair termination. In CMA Form No. 1 (the referral form) the appellant has categorically indicated that her claim concerned termination of employment. Apparently, Mr. Msuya in his submission, had no qualms that the issue before the CMA was one on unfair termination.

The Court had an opportunity of canvassing the implication of section 35 of the ELRA with respect to the employees with less than six months of services in Serenity on the Lake Ltd v. Dorcus Martin Nyanda [2019] TZCA 64, TANZLII and Mbeya Urban Water and Sewerage Authority v. Lilian Sifael [2024] TZCA 64. In Serenity on the Lake Ltd (supra) the Court was addressing the issue of unfair termination of an employee who had her complaint determined by the CMA while she had a specified contract of three months, it stated: "Having pondered over this point, this Court is in agreement with the appellant that, the principle o f unfair termination is inapplicable in this case because the contract o f employment was for a period o f less than six months." In our recent decision in Mbeya Urban Water (supra) the Court cemented the position of law and further elaborated that, the employee could have other remedies other than for unfair termination before the CMA. It stated: that in terms o f section 35 o f the ELRA an employee with less than six months employment cannot institute in the CMA an unfair termination claim > we do not think that the dispute resolution scheme under the ELRA locks out any employee i

with less than six months services accessing the CMA even where the cause o f action is purely founded on breach o f employment contract" The position of law is, therefore, very clear that an employee with less than six months of service is barred from accessing the CMA on the claim of unfair termination. The qualifying period to access the CMA on the claim of unfair termination is six months, but such employee can still access the CMA with other claims connected with employment such as breach of contract of employment as well as other incidents of termination. Mr. Msuya urged the Court to take a different view by differentiating the contracts of employees. He submitted that, since the appellant had an unspecified term contact she did not fall under the limitation of section 35 of the ELRA. That provision, he submitted, was specifically crafted for the employees who had specified contract. With due respect to the learned advocate, we do not agree with him. We shall explain. Section 14(1) of the ELRA laid down three types of contracts. It provides: "14 (1) A contract with an employee shall be o f the following types- (a) a contract for unspecified period o f time;

(b) a contract for a specified period o f time for professionals and managerial cadre; (c) a contract for a specified task." Section 35 of the ELRA, on the other hand, does not make that distinction. It applies to all types of contracts. The section specifically provides for the qualifying period in which an employee can access the CMA with a claim for unfair termination which is six months. Therefore, the appellant being on the employment for the period between 6th May, 2016 to 9th August, 2016 which is less than six months falls under the limitation of section 35 of the ELRA and so was barred from accessing the CMA on the claim of unfair termination. Mr. Msuya relied on the case of St. Joseph Kolping Secondary School (supra) to substantiate the point, but this case is distinguishable and its findings do not apply to the instant appeal. The respondent in that case had a renewable specified contract of three years, hence, the complaint was properly before the CMA. In this case, the issue was whether the CMA had jurisdiction to hear the dispute on unfair termination of the employee who had less than six months of service which we have already answered in the negative. Therefore, we agree with the learned judge that the CMA had no jurisdiction to entertain the complaint referred to by the appellant.

In view of what we have discussed, 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 MBEYA this 5th day of December, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 6th day of December, 2024 in the presence of Mr. Faraja Msuya, learned advocate for the Appellant and also holding brief for Mr. Gasper Mwakanyemba, learned advocate for the Respondent is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL D. R. LYIMO 10