Neema Mkaima Chibure vs Halmashauri ya Manispaa ya Morogoro (Civil Appeal No. 88 of 2020) [2024] TZCA 868 (5 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOROGORO fCORAM: MKUYE. J.A.. KAIRO. 3.A.. And MLACHA, J.A.^ CIVIL APPEAL NO. 88 OF 2020 NEEMA MKAIMA CHIBURE ............................................... APPELLANT VERSUS HALMASHAURI YA MANISPAA YA MOROGORO ................. ..RESPONDENT (Appeal from the Judgment and decree of the High Court of Tanzania, Labour Division at Dar es Salaam) (Wambura, J.^ dated the 27th day of February, 2020 in Revision No. 28 of 2019 JUDGMENT OF THE COURT 27th May & 5fh September, 2024 KAIRO, J.A.: The appellant in this appeal seeks to challenge the decision of the High Court of Tanzania, Labour Division in application for Revision No. 28 of 2019 dated the 27th February, 2020. In the said application, the appellant had sought to revise and set aside the whole award of the Arbitrator in the Commission for Mediation and Arbitration (the CMA) at Morogoro in Labour Dispute No. RF/CMA/MOR/335/2015 into which the CMA partly allowed her claims for unfair termination. 1

At the hearing of the appeal, the appellant enjoyed the legal services of Mr. Mwansoho Godfrey Gabriel and Ms. Kay Makame Zumo, both learned counsels. On the other hand, Miss Jenipher Kaaya and Mr. Xavier Ndalahwa, both learned Senior State Attorneys, who teamed up with Miss Emma Ambonisye, learned State Attorney, represented the respondent. To understand what culminated to this appeal, we find it apposite to recap, albeit briefly, the background of this dispute as discerned from the record of appeal. The appellant was employed as a casual employee on a three months contract from 31s t September, 2011 at an allowance of TZS. 100,000,00 per month. After the lapse of the said contract, the appellant continued working for the respondent for five years until October, 2015 when she was terminated unceremoniously as she stated to be denied to sign an attendance register and her office table and chair were removed by the Ward Executive Officer (WEO). She was aggrieved and decided to write a complaint letter to the Director of Morogoro Municipality, but no answer was received and the problem remained unsolved. She thus escalated her grievance and approached the Commission for Mediation and Arbitration (the CMA) claiming unfair termination. She beseeched the 2

CMA to order the respondent to pay her terminal benefits in accordance with the law, amounting to TZS. 21,795,338.40. The respondent vehemently refuted the appellant's claims asserting that, the appellant has neither been employed by the respondent nor has she possessed any permanent employment contract as she claimed. Instead, she was just a casual employee performing cleaning services at the Ward Office at Mazimbu at an allowance of TZS. 100,000.00 per month. The respondent further charged that, the said contract ended on 30th December, 2012 and from therefrom, the office would call her to do cleaning activities as and when the need arises. The respondent further contended that, on 18th August, 2015, the appellant wrote the WEO of Mazimbu claiming for arrears of unpaid allowances for 13 months amounting to TZS. 1,400,000.00 and she was accordingly paid. As such, she had no further claim and insisted that, the appellant was not terminated but her contract lapsed. The respondent thus prayed the CMA to dismiss her claim for want of merit. After hearing the parties, the CMA allowed a total of TZS. 107,000.00 being severance pay for the period of 4 years she had worked from October, 2011 up to October, 2015, thus, partly allowed the claim. 3

The appellant was not satisfied by the CMA award and filed an application to revise it at the High Court, Labour Division. The High Court found that, the application was meritless as the applicant was a casual labourer and thus not an employee in terms of the provision of section 35 of the Employment and Labour Relation Act, Cap 366 R.E. 2019 (the ELRA) to claim unfair termination. The High Court however awarded a compensation of TZS. 100,000.00 to the appellant as compensation for inhuman treatment. The appellant was further aggrieved hence, approached the Court to challenge the said decision raising three grounds of appeal. However, on the hearing date, the appellant sought and granted leave to abandon two grounds of appeal out of the three originally raised, and further restructured the remaining one to read as follows: "That the High CourtJudge erred in law for faffing to consider the existence of employer and employee relationship" , It was Ms. Zumo who started to amplify the ground of appeal. She submitted that, the appellant was an employee of the respondent and not a casual labourer as ruled out by the High Court. To substantiate her argument, she made reference to section 61 (a-g) of the Labour Institution Act Cap 300 R.E. 2019 (the LIA) which provides for the factors to be looked

at for a person to be presumed as an employee. In elaboration she submitted that, it is on record that the appellant worked under the control and direction of the Ward Executive Officer (WEO) of Mazimbu in all aspects, including the hours of work. She contended that, even during the WEO's vacation/leave, the appellant was placed under the control of another person she mentioned to be Grace Ngalema. On top of that, she submitted, the appellant had worked for five years continuously which she considered long enough to enable the appellant attain the status of an employee under the provisions of section 35 of the ELRA. The learned counsel went on to elaborate further that, the contract of employment the appellant entered into displayed that, the appellant was working for more than 45 hours per month, as such, falls squarely under the requisite factor as per section 61 (d) of the LIA. It was her further contention that, the appellant was also being provided with the tools of work by her employer. According to her, since the appellant's task was to register all the cases instituted at the Ward Tribunal, she was thus confident that, all the tools of work including the papers and pens were supplied to her by WEO. Besides that, the appellant depended on the salary from her employer as was evidenced by the appellant's bank statement. Above all, she worked under one employer; the WEO and she was even given leave in between. However, when asked whether the

record supports the stated grant of leave to her, she gave a negative answer. To wind up, she reiterated that, the appellant qualified to attain the status of an employee as she met all of the criterion under the provisions of section 61 (a-g) of the LIA as above shown, despite the fact that the provision does not prescribe for cumulative compliance with all of them. Thus, she argued, it was an error for the High Court to term her as a casual labourer. Ms. Zumo added that, though there was no written contract to verify that she worked for five consecutive years, but the appellant was covered under the provisions of section 14 (1) (a) of the ELRA. Mr. Mwansoho on his part submitted that, since the interpretation of the provisions of section 35 of the ELRA was the basis of the High Court's decision which he considered incorrect, he prayed the Court to interpret the said provision properly. In his view, the interpretation of the said provision was flawed. He contended that, it was not the intention of the legislature that, an employee works in several contracts of less than six months for considerable length of time, but still, remain with a status of a casual labourer as interpreted by the High Court in the matter at hand. The learned counsel lamented that, the misinterpretation of the said

provision has made the appellant to miss her other entitlements like severance pay, pay increase etc. He concluded that, the interpretation of section 35 of the ELRA was incorrect and beseeched the Court to intervene and make proper interpretation so as to deter unscrupulous employers to use it as a scapegoat or an excuse to deny the rights of the employees in similar circumstances, in future. In reply, Ms. Kaaya started by raising a legal concern that, the issue of employer and employee relationship in the restructured ground of appeal is a new one as it was neither raised nor discussed by the High Court. She contended that, it is a long-settled principle of law that, matters sought to be challenged at the Court must be those featured at the High Court judgment, otherwise if allowed, it wili turn the Court into a trial court, which is unacceptable. Besides, allowing it will contravene Article 117 (3) of the Constitution of the United Republic of Tanzania 1977 as amended which categorically provides that, the main function of the Court is to determine the decisions from the High Court. She thus prayed the Court to disregard the ground as nowhere in the appellant's pleadings had she raised a concern about her relationship with the respondent to trigger the High Court to determine it. 7

Ms. Kaaya also raised another point of law on time limitation. She submitted that, according to CMA FI appearing at page 35 of the record of appeal, the dispute ensued on 7th December, 2015. However, the evidence at page 92 showed that, the dispute arose on 26 August, 2015 when her office chair was allegedly removed. She contended that, Rule 10 (1) of GN. No. 64/2007 provides that, all disputes concerning unfair termination is to be instituted within 30 days. As such, this dispute having been ensued in August, was to be instituted by November, 2015, but the CMA received the dispute on 21s t December, 2015, thus out of the time prescribed. In the circumstance, she contended, neither the CMA nor the High Court had the jurisdiction to entertain it for being time barred. The learned State Attorney therefore implored the Court to invoke section 4 (2) of the Appellate Jurisdiction Act to nullify the proceedings of the CMA and the High Court, together with the award emanating therefrom and that appellant can, therefore, if still wishes, proceed to follow the proper procedure before instituting the dispute. Alternatively, Ms. Kaaya argued that, the referred section 61 of LIA only provides for presumption of an employee which is rebuttable. She clarified that, since there is a contract of employment entered by the appellant appearing at page 64 of the record of appeal which has stated s

the terms and conditions of her employment, the need to invoke the presumption provision to verify if the relationship existed between the appellant and her employer does not arise. She went on to submit that, among the terms in the said contract were one, the appellant was a casual labourer; and two the contract was of three months, adding that, the stated facts were not disputed by the appellant. Refuting the arguments by Ms. Zumo as regards the hours the appellant used to work and the work equipment provided for the performance of her duties in terms of section 61 (d) and (f) of LIA, Ms. Kaaya argued that, the averments are not supported by the records of appeal, as such they amount to mere statements from the bar which should be disregarded. Besides, she added; there was no attendance register tendered to verify the stated hours the appellant worked, as argued. Regarding the prayer to interpret section 35 of the ELRA, Ms. Kaaya submitted that, the Court has already done so in various cases and cited the case of Serenity on the Lake Ltd vs Dorcus Martin Nyanda, Civil Appeal No. 33 of 2018 [2019] TZCA 64 (12 April 2019) TANZLII, as an example. She thus contended that, there was no need of rei-interpreting of the provision as prayed. She contended that, if the appellant is not in 9

agreement with the interpretation made, she should take appropriate steps towards correcting the same. According to her, the High Court Judge's comment that probably it was high time the provision is re examined and reviewed, verifies the respondent's argument that, the provision has already been interpreted and there is no need to redo it at this juncture. She therefore prayed the Court to find this appeal without merit and dismiss it. In rejoinder, the learned counsel argued to be a misconception the argument by Ms. Kaaya that, the issue of employer and employee relationship was never discussed at the High Court. She referred the Court to clauses 3.1 and 3.7 of the applicant's affidavit appearing at page 14 of the record of appeal for verification. She also submitted that, the gist of the dispute at hand is centred on the said relationship, adding that to be the reason the interpretation of section 35 of ELRA came into play. According to her, the appellant would not have asked the reliefs in paragraph 3.7 of her affidavit if she would not have considered herself an employee. Rebutting the respondent's argument that, the appellant's explanation on section 61 of LIA were unsubstantiated, Ms. Zumo submitted that, all of the criterion given that connects the appellant with 10

the provision cited, was based on the appellant's contract of employment at page 64 of the record of appeal. Thus, the argument holds no water. As regards the referred case of Serenity on the Lake Ltd (supra) to fortify that section 35 of ELRA has already been interpreted by the Court, Mr. Mwansoho argued that, in the cited case, the appellant worked in seasons while in this case, the appellant worked continuously for five years. Further to that, the reason for termination in the cited case was the loss of USD 700 and disciplinary hearing conducted, but in the case at hand, the reason for termination was the request for pay rise. He contended that, the circumstances of the two cases differ as above shown, thus distinguishable. Reacting to the argument by the respondent that the claim was instituted out of time, the learned counsel argued that, the issue of time limitation cannot be applicable as the appellant was denied the status of an employee basing on section 35 of the ELRA and he was termed a casual labourer, instead. When probed by the Court what would be her position as regards time limitation, if it will be ruled out that, the appellant was an employee, Mr. Mwansoho submitted that, in that situation he would pray the Court to give appropriate orders as a consequence so as to pave way li

to the appellant to apply for orders of condonation and upon being granted, proceed to institute the claim. On the argument that the need to apply presumption clause does not arise due to presence of the contract of employment, the learned counsel submitted that, though it is true that the applicant was never given another written contract after the lapse of the first one, which was of three months, but the fact that she was allowed to work for five years continuously, denotes that she was fit and eligible to proceed. He added that, it is the absence of the subsequent contracts which justifies the applicability of section 61 of LIA. As such, he contended; the presumption cannot be rebuttable in the matter at hand. He reiterated the appellant's prayer to have the appeal allowed. Having dispassionately heard the rival arguments of the learned counsel for the parties and having gone through the record of appeal, we are now in a position to determine the merit or otherwise of the appeal. However, before doing so, we are aware with the rule of practice that, whenever there is a point of law raised, as it happened in this appeal, the Court has to entertain and determine it first before embarking to deal with the matter on merit. 12

In this appeal, the respondent has raised two observations on points of law, first, that the issue of employer/ employee relationship raised in the restructured ground of appeal has never been dealt with at the High Court. The contention was vehemently denied by the appellant and we wholly subscribe to the appellant's argument Indeed, the dispute at hand revolve around the employer/ employee relationship. As rightly stated by the Ms Kaaya, the appellant considered herself an employee of the respondent that is why she brough the claim of unfair termination. The High Court discussed the said status in terms of section 35 of the ELRA and found out that, the appellant was excluded from that status by the said provision as she was working as a casual labourer and went on to dismiss the application. However, awarded TZS. 100,000.00 as compensation for what the High Court called, inhuman treatment (pages 27-28 of the record of appeal). In the said context therefore, the respondent's point of law is without merit and we reject it. The second observation concerned time limitation as the respondent contended that, since the evidence showed that the dispute ensued in August, 2015, the institution of the claim at the CMA in December, 2015 was time barred. 13

Mr. Mwansoho on his part was of the view that, since the High Court ruled out that, the appellant was a casual labourer, the issue of time limitation is not applicable in the matter at hand. However, he contended that, should the Court find out that the appellant was an employee but the claim was instituted out of time, then appropriate orders be given as a consequence to pave way for the application of condonation by the appellant, and proceed to file fresh claim when granted. We propose to determine this point together with the ground of appeal for the reason to become apparent in the course of the analysis. Reverting to the sole ground of appeal to which, in our view, we are called to determine a narrow issue as to whether or not the appellant was an employee, in terms of section 35 of the ELRA. It is imperative to note that, the section falls under Sub-Part E of the ELRA, concerning eligibility to complain for unfair termination of employment, which was also complained of by the appellant. Our starting point therefore is the contentious provision which provide as follows: "The provisions of this Sub-Part shaii not apply to an employee with less than 6 months'employment with the same employer, whether under one or more contracts". [Emphasis added]

In the matter at hand, there is no dispute that, the appellant's contract of employment was for three months from 1s t July, 2011 renewable upon satisfaction of her performance (page 64 of the record of appeal). There is further no dispute that, the appellant was employed as a casual labourer. It was also not disputed that, there is no other written contract of employment signed by the appellant, apart from the one above referred. It was the contention of the appellant that, she has worked for five consecutive years before she was unceremoniously terminated in December, 2015, the termination which resulted to this appeal. According to her, since she worked for all that long time, without the written contract, after the lapse of the first one, then the presumption under section 61 of the LIA, that she was an employee, should come into play. She contended that, all of the prescribed criterion under the provision were met by the appellant though the provision does not prescribe for the same to be cumulatively fulfilled. We posed to ask whether long service or working for long time qualifies the worker who was otherwise a casual labourer to change her employment status under the provision of section 35 of the ELRA. With much respect to Mr. Mwansoho, the answer is in the 15

negative. Our interpretation of the provision is that, the determinant factor for a worker to attain the status of an employee eligible to invoke the provisions related to the termination of employment is having a contract term of 6 months or more. It matters not whether the appellant worked for all that length of time since the term of her contract was three months only. We are aware that the appellant submitted to have worked for five years consecutively. However, we want to put it clear that, there is no other written contract which verifies the said averment. But that apart, even if it is assumed that, the averment was the case, still, the long working period can neither rescue her situation nor change her employment status of a casual labourer which was categorically stated in her contract of employment. It is the cardinal principle of law that, the document should speak for itself. [See: Tanzania Fish Processors Ltd vs Christopher Luhanyula, Civil Appeal No. 21 of 2010 [2011] TZCA 5 (6 October, 2011) TANZLII. In other words, the provision provides that, once a casual labourer, always a casual labourer, regardless of the length of time one worked, unless and until when the length of a contract term changes to six months or more. In the case at hand, there is no evidence that the contract term was ever changed in between. It follows that, the 16

issue of time limitation cannot apply to a casual labourer, thus the respondent's argument in this regard is a misconception. It is noteworthy that, this is not the first time the Court is confronted with a similar invitation to interpret the provision of section 35 of the ELRA as correctly submitted by Ms. Kaaya. [See: Serenity on the Lake Ltd (supra) and Daudi Jeremia Magezi vs Synohydro Corporation Limited, Civil Appeal No. 309 of 2022 [2023] TZCA 17333 (13 June 2023) TANZLII] into which, the Court ruled out that, the employee who has a contract term of less than 6 months cannot sue for unfair termination. Basing on the cited cases, there is nothing to fault the High Court in its interpretation of section 35 of the ELRA with due respect to Mr. Mwansoho. We are further aware that, Ms. Zumo implored the Court to apply the presumption of employment prescribed under section 61 of LIA. However, as rightly argued by Ms. Kaaya that, since there is a written contract of employment as alluded to above, the need to apply presumption of employment does not arise. To say the least, the argument is out of context in the circumstance of this appeal with much respect to Ms. Zumo. 17

All said and done, we find the appeal meritless. We further set aside the compensation awarded by the High Court as it was not prayed for by the appellant. Appeal dismissed with no order as to costs, being a labour matter. DATED at DA ES SALAAM this 5th day of September, 2024. R. K. MKUYE JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 5th day of September, 2024 in the presence of Mr. Koheleti Julius, learned counsel for the appellant and Ms. Emma Ambonisye, learned State Attorney for the Respondent/Republic vide video link from High Court at Morogoro is he 18