Omary Rishael Kitomari vs Kuringe Real Estate Co. Ltd (Civil Appeal 250 of 2022) [2024] TZCA 799 (22 August 2024)

IN THE COURT OF APPEAL OF TANZANIA ATMOSHI f CORAM: LEVIRA, J.A.. GALE BA, J.A. And ISMAIL. 3.A.Y CIVIL APPEAL NO. 250 OF 2022 OMARY RISHAEL KITOMARI ...... ............. ........APPELLANT VERSUS KURINGE REAL ESTATE CO. LTD ...... ....... ................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Moshi) dated 16th day of July, 2021 in Labour Revision No. 36 of 2020 JUDGMENT OF THE COURT 16* & 22n d August, 2024 ISMAIL, J.A.: This is an appeal against the decision of the High Court arising from revisional proceedings in Revision Application No. 36 of 2020. The revisional proceedings were commenced at the instance of the respondent, a loser in the arbitral proceedings, instituted in the Commission for Mediation and Arbitration (CMA) as Labour Dispute No. CMA/KLM/ARB/80/2020, in which the appellant alleged that his employment had been construct!veiy terminated. He claimed, as a result, a sum to the tune of TZS. 14,851,923.00, being compensation for the alleged constructive termination.

Prior to his tribulations with the respondent, the appellant served as the respondent's employee, having been employed on 8th November, 2015, initially as a house keeper. He was subsequently re-assigned to a new role of a store keeper and pool table master. On 13t h March, 2020, the appellant was suspended from employment, to allow an investigation into the veracity of an allegation that he indulged in homosexuality. As the appellant was serving his suspension, an outbreak of Covid 19 came to hit the business, prompting a layoff of employees who included the appellant. Feeling aggrieved by the decision, the appellant challenged the decision vide Dispute No. CMA/KLM/MOS/ARB/71/2020. This dispute was mediated upon and settled amicably when a decision was made that the appellant should be reinstated, on 19th June, 2020. As part of the settlement, the appellant was to be paid the sum of TZS. 450,000.00. The certificate of settlement issued subsequently (CMA F.6) carried the mediator's remarks that the dispute had been settled. On reinstatement, the appellant was re-assigned to serve as a gardener, not so much to his liking. In the subsistence of all this, on 22n d June, 2020, the appellant was served with a demand notice for payment of rental arrears to the tune of TZS. 1,675,000.00. The appellant felt enraged by the respondent's successive actions that he considered to be toxic and hostile to smooth rendering of services. He, as a result, served a

twenty-four-hour notice of termination of employment. He cited the incidents that he construed as amounting to constructive termination. This was followed by the institution of a complaint in the CMA i.e. Dispute No. CMA/KLM/ARB/80/2020 in which claim of TZS. 14,851,923.00 was raised, constituting a compensation for unfair termination. The CMA found merit in the appellant's complaint and, as a result, found that the respondent was culpable of the alleged constructive termination. It ordered that the sum claimed as compensation be paid to the appellant. The decision by the CMA bemused the respondent. It precipitated an action which saw the respondent filing an Application for Revision No. 36 of 2020 in which six grounds of opposition were raised. By a decision dated 16thJuly, 2021, the High Court took the view that the application for revision was meritorious and, in consequence, quashed and set aside the CMA decision. It further ordered that the appellant, whose resignation was through 24 hours' notice, should pay the respondent a sum of TZS. 150,000.00 in lieu of a notice. Not unexpectedly, the appellant took his battle a scale higher. He instituted the instant appeal to this Court, raising two grounds of appeal, as follows:

1. That, the High CourtJudge erred both in law and in fact in holding that the appellant was not constructively terminated or forced to resign from employment 3

2. That, the High CourtJudge erred both in law and in fact to incline on the labour dispute No. CMA/KLM/MOS/ARB/71/2020 which was not subject [the] o f labour revision lodged in the High Court. It is to be noted that, subsequent to the filing of the memorandum of appeal and, consistent with rule 106 (1) of the Tanzania Court of Appeal Rules, 2009, the appellant filed written submissions in support of the appeal, while the respondent filed none. At the hearing of the appeal, the appellant was represented by Mr. Alfred Sindato, learned counsel, while the respondent enlisted the services of Mr. Engleberth Boniface, learned advocate. In his submission in respect of ground one, Mr. Sindato leapt to the defence of the CMA's arbitrator who rightly, in the learned counsel's view, held that no reasonable employee could put up with the working environment in which the appellant operated. Mr. Sindato contended that the learned Judge of the High Court erred when she failed to draw an adverse inference against the respondent, following the iatter's failure to bring a witness to lead in evidence to disprove allegations of homosexuality and forgery. He maintained that the environment in which he operated was intolerable, and he cited the incidents that rendered the environment toxic. These were: One, the allegations of homosexuality which started on 19th November, 2019, culminating in a report which was issued on 23r d June,

2020* two, suspension of salary between April and June, 2020; three, fabrication of a rent issue and concealment of its existence until after the settlement in the first dispute; and four, demotion from a pool table master to a gardener. On the outstanding rental sum, Mr. Sindato contended that the amount allegedly due was far bigger than the sum that the respondent owed the appellant, suggesting that this was intended to consume the entire award sum in Labour Dispute No. CMA/KLM/MOS/ARB/71/2020. The learned counsel conceded though, that the alleged demotion did not affect his remuneration. Mr. Sindato argued that the allegation of indulgence in homosexuality started on 13th March, 2020 but it became the height of intolerability on 30th June, 2020, when he felt he could put up no more, arguing that, termination of employment was the only feasible option, in the circumstances. The learned counsel urged us to stick to our decision in Kobil Tanzania Limited v. Fabrice Ezaovi, Civil Case No. 134 of 2017 [2021] TZCA 485 (16 September 2021, TANZLII), and hold that circumstances in this case required that constructive termination be invoked. He threw blemishes at the respondent for not inviting the appellant for further discussion when he served the notice of termination. He felt that the employer ought to have given more cooperation on the matter, adding that, presence of a human resource officer as the

respondent's witness would help to answer issues on whether circumstances in the case were similar to what was obtaining in Kobil Tanzania Limited (supra). Mr. Boniface began his rebuttal submissions on ground one by relying on the Kobil Tanzania Limited (supra) and argued that the three elements for triggering the remedy of constructive termination operate cumulatively, and that proof of their existence must come from the employee. He argued that the grounds raised by the appellant do not fall in the realm of intolerability. The learned counsel submitted that, issues revolving around homosexuality were settled in the previous matter, while the question of rental arrears was agreed way back in 2019. He contended that the notice for payment of rent was quite a polite reminder which would not strain his relationship with the respondent, whereas the change of position to a gardener had no bearing on the decision that the appellant took. On the intolerability, Mr. Boniface was firmly of the contention that the appellant did not do anything to mitigate the difficulties through resort to other remedies. We wish to state, for a start, that our employment and labour relations regime recognizes what has now become a household principle through which an employee may exit from employment and found an action against his employer, blaming him for making the working 6

environment hostile, thereby rendering the resignation an enforced departure. This principle is known as constructive termination which is prescribed in rule 7 (1) of the Employment and Labour Relations (Code of Good Practice) Rules, 2007 (GN. No. 42 of 2007). It provides as hereunder: "Where an employer makes an employment Intolerable which may result to resignation o f the employee, that resignation amounts to forced resignation or constructive termination." From the substance of the quoted provision, it follows that, an employee's decision to resign from employment can only be considered to be forced resignation or constructive termination if the employment or working environment that he operates in are intolerable. It is notable, however, that the intolerable nature of the employment would not be enough if the same was to operate in isolation. Two other conditions must compliment the intolerability of the employment to constitute three cumulative conditions that must be proved to exist if an employee is to invoke constructive termination as a remedy. This requirement was underscored by the South African case of Solid Doors (Pty) Ltd v. Commissioner Theron and Others (2004) 25 ID 2337 (LAC) which was quoted with approval in Kobil Tanzania Limited (supra). It was held: " ... there are three requirements for constructive dismissal to be established. The first is that the employee must have

terminated the contract o f employment The second is that the reason for termination o f the contract must be that the continued employment has become intolerable for the employee. The third is that it must have been the employee's employer who had made continued employmentintolerable. AH these three requirements must be present for it to be said that a constructive dismissal has been established. I f one o f them is absent, constructive dismissal is not established ... * Noteworthy, as well, is the fact that prevalence of these requirements must be proved by the employee,,and in arriving at a position that such conditions existed, some questions must be posed and answered. These questions and answers thereto were illustrated in the High Court's decision in Katavi Resort v. Munirah J. Rashid [2013] LCCD 161, cited in Kobil Tanzania Limited (supra) in which it was observed: "The employer should have made the employment intolerable. Termination should have been prompted or caused by the conduct o f the employer. The employee must establish there was no voluntary intention by the employee to resignf the employer must have caused the resignation. The Arbitrator or court must look at the employer's conduct as a whole and determine whether the effects, judged reasonably and sensibly, is such that the employee cannot be expected to put up with It." s

Reverting to the case at hand, the question that follows is whether conditions of employment that existed at the employee's work place reveals any intolerability and, if so, whether such other requirements for constructive termination were in existence. Mr. Sindato has strenuously contended that such conditions were prevalent. He has singled out a couple of issues to justify his contention. These issues arise from the correspondences shared between the appellant and his employer, the respondent These are: one, allegations of indulgence in homosexuality which started on 19th November, 2019, culminating in a report served on the appellant on 23r d June, 2020; two, fabrication of the claim of rent which was concealed during the settlement; three, suspension without salary between April and June, 2020; and four, demotion from a Pool table master to a mere gardener. Mr. Boniface has shrugged off the contention by his counterpart, contending that none of them falls in the realm of intolerability. He argued that the issues revolving around homosexuality were settled in Dispute No. CMA/KLM/MOS/ARB/71/2020 which was settled on 19th June 2020, while the claim of rent was a separate issue that arose from the agreement that the appellant and the respondent agreed in 2019. We have reviewed the arguments by the learned counsel. In our considered view, the contention by Mr. Boniface is more plausible and

represents the correct position of the law. None of the issues, singly or cumulatively, presents anything that can be considered to be an intolerable environment that can justify the appellant's decision to terminate his employment with the respondent. We say so because conditions for such termination, as was held in Katavi Resort (supra), appear to be elusive in the instant matter, as, one, nothing can be said that the environment was intolerable and that the appellant's resignation was at the instance of the respondent; and two, that the appellant has not established, by evidence, that the appellant did not have a voluntary intention to resign, and that his decision to resign was caused by the respondent. Looking at the conduct of the respondent in its wholistic way, nothing brings any impression that the respondent committed any acts which the appellant was not expected to put up with as to justify his decision to saver his relationship with the respondent. But assuming, just for the sake of argument and convenience, that the conditions cited above existed in their cumulative sense, the applicant would still have an issue or two to surmount before he could invoke constructive termination as a remedy. This requires an employee to ensure that he does not act in a haste or rush. He must first attempt to discuss the points of divergence with his employer, meaning that there should be an attempt to exhaust all avenues of dispute resolution before the 10

employee walks out on his employer, citing constructive termination. We underscored this position at page 28 of the Kobil Tanzania Limited (supra) wherein we held as follows: "In the matter before us, we are o f the considered view that the respondent acted in a rush. He did not make any attempt to discuss the matter as proposed by the appellant. According to his testimony he arrived on Sunday and drafted the resignation letter over the night and the following day. That course o f action was not a last resort remedy. It was not exercised after all other avenues o f dispute resolution had been exhausted. That rush, in our view, cannot make the constructive dismissal stand. We thus agree with Mr. Mayenga that the respondentresigned on his own volition. The employer is not to blame for his resignation. As far as we are aware, for constructive dismissal to stand, an employee must show that the course o f action taken by him was a last resort. Constructive dismissal cannot stand where an employee had an alternative avenue to resolve the problem. "[Emphasis supplied] Instructively, our reasoning in the cited case was persuaded by the decision of Labour Court of South Africa in HC Heat Exchangers (Pty) Ltd v. Victor 3 L De Araujo & 2 Others, Case No. 3R 155/16 in which it was held: ii

" ... where there is a grievance process in the employer available to the employee which would, if applied, resolve the cause o f complaint, the employee must follow it. I f the employee does not follow, the employee cannot as a matter o fprinciple claim constructive dismissal, unless the employee proves that there exist truly exceptional circumstances that may serve to absolve the employee from this obligation, and for the employee to subjectively claim that he or she has no confidence in the grievance outcome or that the employer would not reform, cannot suffice as such exceptional circumstances.' At page 30, the Court concluded by holding as follows; "As if the above was not enough, the respondent tendered his resignation letters without disclosing the reasons why such resignation. No information was disclosed showing that he was resigning at the instance o f the appellant's actions which made employment unbearable. In the circumstances constructive termination, again, cannot stand. To recap, we find that the respondent's act o f resignation was not one o f last resort. He did not prove any condition that made the employment unbearable. He did not exhaust the dispute resolution mechanism at his disposal. His resignation was out o f the blue, so to speak, and did not disclose the reason for taking that course. His employer, through Mr. Segman, was ready to discuss the 12

matter with the respondent but the latter did not give the former the opportunity to remedy the situation." We can state, with no fear of contradiction that at all, up until the closure of the parties' case in CMA and in ail subsequent proceedings, including his counsel's submission before us, nothing was adduced to prove that the appellant's decision was preceded by any semblance of amicable dispute resolution attempt. Clearly, the respondent, the employer, was not given an opportunity to remedy the situation (if any), prior to the appellant's sudden decision. We are constrained to hold that the appellant's stranglehold on constructive termination as the basis for the action that bred the instant appeal is, with respect, untenable. We, accordingly, find this ground of appeal destitute of merit and we dismiss it. The appellant's contention in ground two of appeal is that there existed two distinct labour disputes which had no bearing on one another. Whereas Dispute No. CMA/KLM/MOS/ARB/71/2020 was in respect of reinstatement following what was alleged to be a retrenchment, Dispute No. CMA/KLM/MOS/ARB/80/2020, challenged what the appellant considered to be constructive termination. Mr. Sindato argued that, it was erroneous to relate the two while none of the two had a bearing on the other. He took an exception to the learned first appellate Judge's position

that the right course of action was for the appellant to prefer execution proceedings in respect of Dispute No. CMA/KLM/MOS/ARB/71/2020. Mr. Boniface was critical of his counterpart's contention. He argued that it was difficult to discuss matters pertaining to Dispute No. CMA/KLM/MOS/ARB/80/2020 without making reference to Dispute No. CMA/KLM/MOS/ARB/71/2020. In any case, the learned counsel contended, matters relating to the latter were also part of the grounds of appeal. While finding nothing blemished in the holding of the High Court, Mr. Boniface valiantly argued that this ground of appeal is lacking in merit. The parties' respective contentions bring out a singular question which is whether the learned Judge of the High Court strayed when she invoked matters relating to Dispute No. CMA/KLM/MOS/ARB/71/2020 in proceedings that emanated from Dispute No. CMA/KLM/MOS/ARB/80/2020. In resolving this question, we are guided by a salutary principle which is to the effect that issues raised by parties to a case should be addressed and resolved. Failure to do so has the effect of rendering the decision bred out of the failure flawed. In Alnoor Shariff Jamal v. Bahadir Ebrahim Shamji, Civil Appeal No. 25 of 2006 (unreported), the Court quoted with approval, a Kenyan decision in Kukal Properties Development Ltd. v. Maloo and Others (1990) E.A. 281, in which the duty of a Judge to decide

on each and every issue framed was accentuated, holding that failure to do so constitutes a serious breach of procedure. It is common knowledge that issues in a case are derived or framed from the pleadings filed by the parties, and these include the documents that are instituted on appeal. This is where points constituting the dispute between the parties are drawn from. It follows that settlement of the issues in dispute entails determination of ali points of contestation by the parties

• see: Alisum Properties Limited v. Salum Selenda Msangi (As Administrator o f the Estate of the fate Selenda Ramadhani Msangi), Civil Appeal No. 39 of 2018 [2022] TZCA 389 (24 June 2022, TANZLII). In the instant case, the question relating to the proceedings in Dispute No. CMA/KLM/MOS/ARB/71/2020 were not invented by the 1s t appellate Judge. It is a matter that featured in the pleadings which founded the revision application filed by the respondent. In the counter-affidavit which was filed by the appellant as can be seen at page 122 of the record of appeal, this contention was brought up in the averment deposed in paragraph 11 in which he stated as follows: "That the contents o f paragraph 12 (i) o f the Applicant's Affidavit are disputed and vehemently denied, the respondent avers that, the Arbitrator was absolutely [correct] in facts and in law, the respondent worked 15

through intolerable working environment before settlement agreement and after settlement [the] agreement grounded from Labour Dispute No. CMA/KLM/MOS/ARB/71/2020, hence Respondent's intolerable working environment was the basis o f Constructive Termination. " The obvious fact is that, since this was one of the issues framed for determination and both counsel addressed the court on it, it was not a wayward action for the learned Judge to pronounce itself on the issue. It is no wonder that at page 208 of the record the learned Judge held as follows: "On the other hand, under labour dispute No. CMA/KLM/MOS/ARB/80/2020 which is the subject o f the instant Revision was filed after the respondent was reinstated but decided to resign on 24 Hours'notice on the ground that the working environment became intolerable hence constructive termination. In the circumstances, the Commission did not [err] in entertaining CMA/KLM/MOS/ARB/80/2020. On the same note, the Commission's record also stated that, the current dispute went through mediation process referenced CMA/KLM/MOS/M/138/2020 before Hon. Massawe, and the same was marked unsuccessful, hence the dispute was referred to Arbitration on 3rd August, 2020 and CMA F. 6 was filed and signed to that effect [These] two grounds are therefore meritless and are hereby dismissed." 16

We, in view thereof, find nothing unusual or erroneous in the learned Judge's stance of the matter. It was in keeping with the duty that the court had in the matter. In consequence, we find this ground of appeal hollow and we dismiss it. Overall, we find nothing meritorious in this appeal. Accordingly, we dismiss it with no order as to costs. DATED at MOSHI this 22n d day of August, 2024. The Judgment delivered this 22n dday of August, 2024 in the presence of Ms. Faygrace Sadallah, learned Counsel holding brief for Mr. Alfred Sindato, learned Counsel for the Appellant also for Mr. Engleberth Boniface, learned Counsel for the Respondent is hereby certified as a true copy of the original. M. C. LEVIRA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL p R _ LYIM0 DEPUTY REGISTRAR ^A COURT OF APPEAL