Kenya Kazi Security vs Kirobotoni & Others (Civil Appeal No. 234 of 2021) [2024] TZCA 821 (23 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWANPAMBO, J.A.. MAIGE. J.A. And KHAMIS. J.A/> CIVIL APPEAL NO. 234 OF 2021 KENYA KAZI SECURITY ............................... ............................... APPELLANT VERSUS KIROBOTONI ANP 71 OTHERS ........................................ RESPONPENTS (Appeal from the Judgment and Pecree of the High Court of Tanzania Land Pivision at Pares Salaam) (Muruke. 3.) dated 30th day of November, 2020 in Revision No. 132 of 2019 JUDGMENT OF THE COURT 16th & 23rd August, 2024 MAIGE. J.A.: Under section 43 (1) (a) and (b) of the Employment and Labour Relations Act, 2004 ( "the ELRA"), the employer is obliged to repatriate the employee and his personal effects to the place of recruitment upon termination of his service. Should the repatriation not be made immediately upon termination, paragraph (c) of section 43(1) imposes an obligation to the employer to provide the terminated employee with daily subsistence expenses until he is so repatriated. i

The respondents were, until on 31st January, 2014 when their services were terminated, in the services of the appellant as security guards on different terms of fixed contracts renewable from time to time with their working station being at the US Embassy in Dar es Salaam. Dissatisfied with the termination, the respondents commenced a referral to the Commission for Mediation and Arbitration ("the CMA") challenging fairness of the termination. They were claiming payment of terminal benefits, including repatriation costs for twelve employees recruited outside Dar es Salaam ("the decree holders"). At the end of the arbitration, the CMA found that their termination was fair and thus dismissed the claims associated with fairness of termination. It, however, found the decree holders' claims as to repatriation valid and awarded them accordingly. Being aggrieved, the appellant applied for revision to the High Court Labour Division ("the High Court") calling for an order to revise and set aside the award of the CMA on repatriation and daily subsistence allowances. The grounds for revision were contained in items I-VII of paragraph 7 of the affidavit in support of the application. They were as follows: 2

7. The Arbitrator erred in law and fact for failing to properly evaluate evidence adduced by the parties and final subm issions on repatriation and daily subsistence expenses. II. The Arbitrator erred in law and fact for failing to consider evidence adduced by the Applicant and the arguments raised in the fin al subm issions (dosing arguments) on repatriation and daily subsistence expenses. III. The Arbitrator erred in law and fact for failing to realize that the Respondents are not necessarily entitled to be paid money in term o f cash repatriation. IV. The Arbitrator erred in law and fact for failing to give the Applicant an option to physically repatriating the Respondents. V. The Arbitrator erred in law and fact by considering a m atter not in dispute by the Respondent a t Arbitration on Proceedings. VI. The Arbitrator erred in law and fact for issuing an award which is incom petent and incapable o f determ ining rights o f the parties. VII. That the Arbitrator erred in law and facts for arbitrating a dispute im properly brought before him . " In her written submissions in support of the application appearing at pages 256 to 270 of the record, the appellant reduced the complaints into the following three issues: One, whether the arbitrator was legally

justifiable for awarding repatriation and daily subsistence allowance to twelve respondents while they had refused the applicant's lawful order; Two, whether the arbitrator had prerogative power to order modality of repatriation for twelve respondents; and Three, whether the Arbitrator had power to determine and order his own rates of daily subsistence allowance to the twelve Respondents. In addressing the first and third issues, the High Court essentially confirmed the finding of the CMA that, since the decree holders were recruited outside Dar es Salaam, they were entitled to repatriation to the places of their recruitments. It qualified, however, that, such repatriation costs have to computed in accordance with the laws and at the rates specified by the Land Transport Regulatory Authority. It did not agree with the submission for the appellant that, the decree holders were offered transportation and refused. It also confirmed the finding of the CMA that the decree holders were entitled to subsistence allowances pending repatriation. With regards to the second issue, having noted that the CMA ordered repatriation costs and subsistence allowance without indicating how that was arrived at, the High Court varied the award with the effect that, the repatriation costs were to be computed in accordance with

applicable laws and rates provided by the Land Transport Regulatory Authority and the daily subsistence allowance to each of the decree holders be paid for six months only from the date of termination. In particular, it was stated: "Having taken into consideration o f the objectives o f Cap 366 RE 2019 which is to prom ote economic developm ent efficiency, productivity and good ends o f justice and the conditions under section 37(d) (i) o f Cap 300 RE 2019, it is hereby ordered the applicant to pay the daily subsistence allowance o f 6 month's only from the date o f termination, 31st January, 2014 and the same is ordered under Rule 55 (2) o f the Labour Court Rules, GN. 106/2007". Once again aggrieved, the appellant lodged the current appeal faulting the High Court for holding that the decree holders are entitled to repatriation costs irrespective of its findings that they were immediately employed by a successor employer and for awarding each of them six months' daily subsistence allowance. Conversely, the decree holders upon being served with the record of appeal, lodged a notice of cross appeal faulting the decision of the High Court on four grounds. In their written submissions in support of the cross appeal, however, the decree holders abandoned the first and third grounds. Consequently, the cross

appeal remained with the second ground which faults the High Court for holding that there was evidence to establish that the decree holders secured alternative employment after termination and the fourth ground which faults the High Court in reducing the quantum of subsistence allowance to 6 months only. During hearing, Ms. Neema Ndossi and Mr. Harry Mwakalasya, both learned advocates, represented the appellant and the respondents, respectively. Ahead of the hearing, they had each filed written submissions relevant to their cases which they fully adopted to form part of their oral arguments. We appreciate for their very instructive submissions which have added value to the judgment. Before we proceed further, it may be imperative to observe that, from the material facts culminating in this appeal as portrayed herein above and the grounds raised both in the appeal and cross appeal, whether the decree holders are entitled to repatriation costs or not, have never been in dispute since arbitration. The dispute had been whether the decree holders were offered repatriation and refused. Such an issue, assuming that it was raised as a ground of appeal, could not fall within the jurisdiction of the Court. The reason being that, it is a pure point of facts while under section 57 of the Labour Institutions Act, 2004 (the LIA) 6

an appeal from the High Court to this Court on labour matters is restricted to pure points of law and not fact. The Court has pronounced itself on various cases; including Jongo Mwikola v. Geita Gold Mining Limited (Civil Appeal No. 344 of 2020) [2024] TZCA 125 (23 February 2024; TANZLII) where the Court said in relation to the respective provisions as follows: "What is gathered from the above cited provision o f iaw is that the appeal against a decision o f the High Court (Labour Division) autom atically lies on points o f law only. This stance was also em phasized in the cases o f La d iu s S. N gem ela v. The T reasury R e g istra r a n d A n oth er, C ivil Appeal No. 66 o f2022, H assan M arua v, Tanzania C ig a re tte Com pany Lim ite d C ivil Application No. 338 o f 2019, G lo ria Thom pson M w am nyange v. P re ce ssio n A ir Tanzania, C ivil Appeal No. 55 o f 2021, M IC Tanzania L im ite d v. Im eid a G erald , C ivil Appeal No. 186 o f 2019 and R em ig io u s M uganga v. B a rric k B u iya n h u iu G o ld M in in g C ivil Appeal No. 47 o f 2017 (a ll unreported). It follows, therefore, that where the appeal to this Court from the High Court is brought in m atters o f facts, the Court would not have a mandate to entertain them . " 7

For those reasons, we shall not entertain any submissions purporting to fault the High Court in upholding the finding of the CMA that, since they were recruited outside Dar Es Salaam, the decree holders were entitled to be repatriated to the places of recruitment. Having said that, we proceed to consider the appeal starting with the first ground which challenges the award of repatriation costs for the alleged reason that, the decree holders were employed by a successor employer soon upon termination. Submitting on this, Ms. Ndossi contended, in the first place that, in accordance with the evidence on the record, the decree holders were offered transportation to their places of recruitment and refused. We note that, such issue was raised before the CMA and dismissed for want of merit. It was again raised in the High Court and dismissed on the same reason. Therefore, it being a pure point of fact, cannot be dealt with at this stage and we hold so. This is because, we have already held that, an appeal to the Court against a decision of the High Court on labour matters lies only on pure points of law. Still on the same ground, it was submitted that, since repatriation entails the process of returning an employee whose services have been terminated to the place of recruitment, the High Court, having held that 8

the decree holders had secured alternative employment soon after termination, was not justified to award them repatriation costs and the consequential subsistence allowances. In response, Mr. Mwakalasya submitted, with considerable force that, the observations by the High Court that there was evidence of the decree holders' subsequent employment, was an oversight. To justify his contention, he drew our attention to the finding of the CMA at page 93 of the record to the effect that such fact was not proved in evidence. In any event, he submitted, securing alternative employment does not relieve the employer from such statutory obligation. We have examined the record and established that the issue of the decree holders being employed soon after retrenchment was raised during arbitration. We further note that, having assessed the evidence, the CMA held as a point of facts at page 93 of the record that, "there is no scintilla o f evidence (contracts or like) before this Commission that the com plainants secured alternative employment with G4S Security” However, as we noted herein above, in the grounds for revision before the High Court appearing at pages 175 and 176 and the issues in the appellants' written submissions at page 258 and 259 which were the basis of the decision by the High Court as per pages 294 and 295, the 9

issue of the decree holders being employed after termination was not raised. It is was nevertheless, argued in line with the first issue which is why the High Court made the following remarks at page of the record: " Also, it is undisputed that the respondents after their contracts with the applicant came to an end, they were em ployed by G4S Security who took over the applicants at the US Embassy It is noteworthy that, the above observation, was not the basis of the High Court's confirmation of the award of the CMA that, the decree holders were entitled to repatriation costs. Rather, the observation was made so as to dismiss the relevance of the decree holders' subsequent employment in determining the decree holders' statutory entitlement to repatriation costs. To be specific, the High Court stated at page 302 of the record as follows: 7 m ust state clearly that the repatriation cost is a statutory right o f an employee who is term inated in any form as long as he was recruited in a place other than a working place. Therefore , the same is paid to the employee regardless o f whether he decides to go back to his recruitm ent area or n o t " Ms. Ndossi has suggested that the right to repatriation will not arise if the employee secures an alternative employment soon after 10

termination. In our reading, however, paragraph (a) and (b) of section 43(1) of the ELRA dearly and unambiguously imposes obligation on the employer to either "transport the employee and his personal effects to the place o f recru itm e n t'o r"pay for the transportation o f the employee to the place o f recruitm ent" We read nothing from the above provision and Ms. Ndossi was unable to show, which would justify an inference that, such right is extinguished upon the employee procuring an alternative employment. The decision of the High Court that the decree holders are entitled repatriation costs for the reason of being recruited outside the place of engagement cannot, therefore, be faulted. In any event, the High Court's remarks that, the issue of the decree holders securing alternative employment was not in dispute was, as correctly submitted for the respondents, an oversight for two main reasons. One, it was not expressly raised as a ground for revision despite the finding of the CMA that such evidence did not exist. Two, and more importantly, our examination of the record does not reveal of there being such evidence from the testimony of the three appellant's witnesses appearing at pages 101 to 106 of the record. On this, we requested Ms. Ndossi during hearing to show us any evidence to such effect but could not. On top of that, nothing was shown to us from the record suggesting ii

that such fact was alleged and admitted. In view of that, the first ground lacks merit and it is dismissed. We proceed with the second ground which in effect criticises the High Court in awarding the decree holders subsistence allowances. The finding has been challenged on two reasons. The first reason being that the decree holders secured alternative employment soon after termination. We have held in relation to the first ground that, there was no evidence to support such a proposition. On that account, we dismiss the claim. In the second place, it has been faulted for want of justification. A similar submission was made by the counsel for the respondent to the extent of reduction of the payment of subsistence allowance to 6 months, while arguing the fourth ground in the cross appeal. The relevant provision which governs subsistence allowance is section 43(1) (c). It imposes an obligation on the employer upon termination, in respect of an employee recruited from a place other than of engagement to: "(c) pay the employee an allowance for transportation to the place o f recruitm ent in accordance with subsection (2) and daily subsistence expenses during the period, if any, between the date o f term ination o f 12

the contract and the date o f transporting the employee and his fam ily to the place o f recruitm ent" In the case of Gaspar Peter v. Mtwara Urban Water Supply Authority (MTUWASA), Civil Appeal No. 35 of 2017, dealing with more or less similar issue, the Court observed: " As correctly observed by the CMA and the High Court, under section 43(1) o f the ELRA, upon term ination o f employment, an employee is entitled to inter alia, subsistence allowance during the period between term ination o f his employment and the date o f paym ent o f costs o f his transportation to the place o f recruitm ent" In this case, both the CMA and the High Court were of the concurrent opinions that from the evidence available, the decree holders were not, until the date of hearing, repatriated to their places of recruitment be it physically or by cash. Such concurrent decision was, therefore, final and conclusive in terms of section 57 of the LIA and cannot be reopened for determination on an appeal to the Court. Ms. Ndossi has also questioned correctness of the assessment of the quantum of subsistence allowance by the High Court. It was submitted that though the assessment of the quantum of subsistence allowance is within the discretion of the CMA which in this case was assumed by the High Court 13

after failure by the CMA to correctly asses, there was no basis to justify the grant of the allowances to cover a period of six months. Her contention was based on the statement in Gaspar Peter v. Mtwara Urban Water Supply Authority (supra) that: "From its wording, the section does not, in our view, have a condition tying an employee to the place o f his employment for the whole period until the date o f his transportation." Basing on the above statement, Ms. Ndossi contended that the High Court should have assigned reasons why the decree holders were entitled allowances for such a period. It is interesting that, a similar submission was made for the respondent in support of the fourth ground in the cross appeal to the extent of reduction of the subsistence allowances to six months only. In the first place, we agree with both counsel that, as the award of subsistence allowance under section 43(1) of the ELRA is in the nature of damages, its assessment is within the discretion of the tribunal of the first instance which has to be exercised judiciously and on sound judicial principles. It is apparent from the record that, after re-examining the evidence, the High Court agreed with the counsel for the appellant that, the assessment of the subsistence allowance by the CMA was not done 14

judiciously because, it did not take into account the factors set out under regulation 16(1) and (2) of the Employment and Labour Relations (General) Regulations, G.N. 47 of 2017, (the Regulations). Having taken into account the policy objective behind the ELRA which includes, among others, promotion of economic development through economic efficiency, productivity and social justice, and the condition under section 37(d) (i) of the ELRA, the High Court reduced the payment of subsistence allowances to 6 months only. Under rule 16 (12) of the Regulations, it is clear to us that, white determining subsistence allowances under section 43 (1) of the ELRA, the CMA or the High Court is required to apply, among others, the conditions under section 37 of the LIA. In this case, the High Court considered the factor set out in section 37(d) (i) of the LEA which is "the ability of the employers to carry on their business successfully" and the policy objectives behind the ELRA, which is to promote economic development through economic efficiency, productivity and social justice. It is upon consideration of those factors that, it reduced the quantum of subsistence allowance to six months. The factors taken into account by the High Court, in our view, are relevant and they are well founded in law. That being the case, the High Court cannot be faulted in exercising her description the way it did. 15

Though section 43(1) of the ELRA would plainly mean that the employee is entitled to subsistence allowance throughout the period he or she was awaiting to be repatriated, in its wisdom and in consideration of the objective behind the law and the factors under section 37 of the LIA, the High Court reduced the period to six months only. In so doing, we think, the High Court was in line with the principle in Gaspar Peter v. Mtwara Urban Water Supply Authority (supra) that, section 43(1) does not have condition "tying an employee to the place o f his employment for the whole period until the date o f his transportation." In our judgment, therefore, the second ground in the appeal as much as it is with the fourth ground in the cross appeal are devoid of any merit and they are hereby dismissed. We remain with the second ground on cross appeal which faults the High Court judge in holding that there was evidence to prove subsequent employment of the decree holders. We have nonetheless, held in relation to the first ground in the main appeal that such remark by the High Court was an oversight as no such evidence existed and that, the decision of the High Court was not based on such fact. In the circumstances, we find the ground baseless and dismiss it. 16

In the final result, both the appeal and cross appeal are without merit and are hereby dismissed. This being a labour matter, we make no order as to costs. DATED at DAR ES SALAAM this 23rd day of August, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 23rd day of August, 2024 via teleconferencing in the presence of Ms. Neema Ndossi, learned counsel for the Appellant and Mr. Herry Mwakalasya, learned counsel for the Respondents, is hereby certified as a true copy of the original.