Issa vs Services Computer Industries (Misc. Civil Application 101 of 1999) [1999] TZHC 13 (3 December 1999)

IN THE HIGB: COUnT OF TANtII.NIA AT TILT{ ES SALMJ'tI , """'. __ '."~ ..•••••. _ ..• ", .' ••. " .••... -' __ . .L •. ,<0- .•• ..~ IvIISC.CIVIL AP1'LICATIO:N101/99 AD;,]1 ITMJl..ZYO 13811. •• 0 ••••• ATl)LICAlJT This is a chamber SWlliuons filed by one Adamu Italazyo Issa under Section 40 A (4) (5) and 41 of the Securit3 T of Employment Act p Cap.574 as amended by Act No. 1/1975, Order JDcr of the Civil Procedure Code p 1966 for the follo\v.ingordersg (a) That this court may cnt:orce the clecision made en 27.3.1999 by the linister for Labour as a decree of this court to have the al)plicant be reinstated in r..is former employment •.. ,ith the respondent •.. lith full wages and fringe benefits from 1st August1996 to the date the decree is fully satisfied. (b) In the event the respondent fails or refuses to comply with the order of Specific performance, the court may be pleased to order that the responeJ.entpay sevemnce allowance~ troe months salaJ in lieu of notice, Statutory compensation, twelve TClonth I s salary and damages to the applicant. This Chamber Swmnons is supp~rted by an affidavit of the applicant, ..... lho deponed in his 1st paragraph of the 8£fidcLVit that he h:J.d been in the service of the respondent since 7/4/1986 to 31/7/96 when his services were terminated. He is an engineer by profession. 111at he was dissatisfied with the tennination so he refferod the dispute to the concilliation Board under the provisions of the Security of Employment Act, Cap 574 and the said concilliation Board after hearing the reference, the Board ordered that he should be reinstated. On a further reference to the 11inister, the Minister confirmed the reinstatement order of the concilliation Board. However, the responlent did not comply with irrespect of the notification made to hin.· Hence the applicant filed this chamber SUITlinons for the execution of the I1inisters decision.

The respondent reacted by filing a counter affidvit insisting that he is not ready to reinstate the applicant and if need be, he would opt, for paying him his statutory allOwance and one years salary as per section 40A(4)(5) of the Security of hr:lploymentAct, 1966 as amended by Act No. 1/1975. However, the learned counsel for the respondent, Mr, Ivllcongi'fa filed a notice for prelininary objection on point of law, which after the vitten submissions filed, 1 am delivering the ruling. TIle point of preliminary objection raised on a point of law is thiD-tb ..: Itc. rncongwa, learned counsel subnuttcd tnat the Minister's decision was a confirfJ'ltionof the order of the eonciliation Board. to reinstate the respondent/applicant and tha,t both decisions were made under the provisions of the Security of }'laployGlenth.ct, 1966 Section 40A as aoended by Act No. 1 of 1975, Labour Laws (fuscellanious .Amendment. Section 40A is the enabling section of the law for the Concilliation Board or the J'Unister to order re""instEtterJ8nt or re enga- gement. Conditions are set in Section 40A(1)(a) to (f) Subsection (d) is the relevant point in tho issue before this court. Tho law provictes that when a tennination or dismissal has been refered to Board, the Board may, if is satisfied , \ (d) That the e;;lployee has not 8.cce}Jtecl any statutory cOElpasetion to Vlhich .: "he may be entitled under this Act, - Order the employer to reilstate or re-engage the employee,;' Thus an employee who is entitled/ginstdem-(mt is the dne who has not accepted C:L"YJ.y st.-:LtutOry compensation to which he Gay be entitlecl to under the security of Nnploymont Act, 1996 and the sttutory compensation is defined by section 35 of the Security of Employment Act, 1996 as being u.n amount oCJ.ul to severu.nce allowance due to the employee on his ter'lination. termination, of his eElploynent on 30/7/1966 the applicant was paid and received •.• /3-

(I) Three months salary in lieu of notice shs', 474, 375/- (2) Severance allowance shs, 979,110/- (3) Transportation of one ancl a half tons of persoTh'J.,l effects shs, 500,000/ •• (4) Transport for self and f1ily - 'shs, 75,0001- (5) Accmnulated leave shs. 298,182/- (6) Return fare shs, 150,0/-. The total amount of p2yaent was shs', 2,020,360/ •. , TIle learned counsel for the respondent f~~her subnitted that the Concilliation Board and the Minister's powers of Ordering the re-instatement of the applic&t had been abrogated by the applicant's decision to receive the statutery compensaton from the respondent and they were to refuse to order the re-instatement of the applicant. On the other mnd, the applicant replied. in his submissions that it is true that he was paid and received severance allowance to the tune .f shs, 979,110/ together with other payments as stated by the counsel for the respondent and quoted above. However, he submitted that severance allowance and statutory compCllsation are two different things, governed by two different legistations. That is very trele, as the severance allowance is governed by Severance iUlowance Act, 1962 Cap. 487 while Statutory Compensation is governed by the Security of Eoploncnt Act, 1966, Cap.574 of the Laws. The applicant further and strongly submitted that the respondent 11iln is still liable to pay . . his statutory compensaticJll. (ie equal to severance allowance) and twelve months wages, ~lich one equal to shs, 1,248,000/- and 1,920,OCO/~ respectively, There is only one iI'lportantissue on the question of the preliminary objection rrdRGd. The issue is >vhether tho applicant wc,s paid statutory compensation stated under section 40A(I)(d) .30 the both the con'Gilliation precluded determinin~ Board and the 1-1inisterare '. '.; ... fron .. ~ 'the issue of wrongful ternination or not, Both parties agree that the applicant was paid severance allo\vance, which Mr, I:llmn{S"'Ta submittecl that it GT10untS to statutory compensation under the Security of Employment Act, 1966 while the applicant is contending that severance allowance is different from statutory compensation, only tb2,t they all have the StlLie fonnul,::.r in calculating those allow,1llce~~d compensation. It is true that there are two legislations govering payments of Severce allowance and statutory compensation, It is not only the different legis18ions, but even the circUL1stancGs under ~lich such payruents are ~"de are different. The two mea,..'1.S different from each other and there is no mistake in calling one severance allowance 8.l1.d the other statutory compensation. The money paid to the applic&'1.t was Severance allowance and if it was ment to be statutory compensation undor the Security Of :Eb.ploYI'lent .£I:t1t, 1966 that is something hielden in the minds of the respondent Itlhich

cannot be saicl to clay that severance allo'vanco means the same thing with statutory compensation. Having said S09 I an of the opinion that both the 6onci.lliation Board and the IIinister were right in acljudicatil1gon the Llatter before them as tho cc})plicantwas not paid statutory compensation, under the Security of J.:bploymentAct91966 vl11ich they vlere dealing vii tll but that tho a.9plicant viaS paid severance allowance under severance Allowance Act9 1962 Cap. 487 of the Laws. IInving ruled so, I now move to the rights of each party. Under the Security of lllployment Act, 1966 as ended by Act No. 1/1975 Section 40A(5)9 (b) sooe 14 clays have ellapsed from the date when theT1.inister confirLlod tho Order of the Concilliation Board for the re-instatement of the applicant. The respondent have not complied with the order of the plinister, which at 020untS to refusal to re-instate the applicant into his fOrLler employment. The employer, respondent is therefore duty ?Oto pay the applicant statutory cOLlpensation uncler section 35 of the Security of Ebployment Act, 1966 and twelve months wages at a rate of \vaged to v,hieh the enployee was entitled irnrledio.toly before the termination of his employnont. I really dorrb know the basis under which the n.,pplicantwas paid severance allcMJx!_ce,but I believe the eloyer know why he paid the applicant severance allowance instead of as statutory compensation. Save/to what I have said, the preliminary objection is disuissed and the TIain application is granted to the extent stated above. All other claims by the applicant th~t 118 deserves damages, interests have no legal basis in the execution of the llinisters decision. The application is therefore granted with costs to the extent stclted above. A • R Q T/Ui.NL:NTO, J 3/12/99 Coron - Manento,J Present in person - For the Applicant Ti[r. I'lli:olliS"Wa - For the Respondent