Stephen Ng'ala v Vocational Education and Training Authority (VETA) (Labour Revision No. 34 of 2017) [2020] TZHC 4496; (30 November 2020)

IN THE HIGH COURT UNITED REPUBLIC OF TANZANIA

MOSHI DISTRICT REGISTRY

AT MOSHI

LABOUR REVISION NO. 34 OF 2017

STEPHEN NG'ALA......................................................... APPLICANT

VERSUS

VOCATIONAL EDUCATION AND

TRAINING AUTHORITY(VETA)................................. RESPONDENT

JUDGEMENT

MWENEMPAZI, J.

The applicant was an employee of the respondent as a lecturer and his services were terminated allegedly due to his involvement with political activities as a leader of the political party at the District level. He referred the matter in the Commission of Mediation and Arbitration where the decision was made in favour of the respondent. The applicant is aggrieved with the decision of the C.M.A. He has therefore filed this application for Revision under the provisions of section 91(l)(a) (2)(b)(c) and section 94(4)(a)(b) and 94(l)(b)(i) of the Employment and Labour Relations Act, No. 6 of 2004 and Rule 24(l)(2)(a)(b)(c)(d)( e)and (f) and (3)(a)(b)(c) (d) and Rule 28(l)(c)(d)(e ) of the Labour Court Rules, GN. 106 of 2007.

The application is supported by an affidavit sworn by Stephen Ng'ala, the applicant. In it has stated that he was employed by the respondent as a teacher for a salary of Tshs. 632,440/= per month at Salary Scale of VS7.1. But the employer was paying the applicant Tshs. 487,700/= per month which is well below the scale he was employed at according to the agreement of employment. The amount not paid to him or unlawfully withheld each month was Tshs. 144,740/=. That the employer created difficult environment to him and also alleging that the applicant was involving himself in politics with CHADEMA party. The environment was not tolerable to him. He complained to the CMA but the decision was made favouring the Respondent. The applicant has brought this matter for revision and would like this court to look at the following points: -

That, the decision by the CMA did not consider the evidence tendered by both parties; the procedure was not followed. That, the reasons for termination were based on segregation on political grounds. That, the decision did not consider that the applicant was employed at Mbeya and thus he should be payed transport allowance for himself and his family. In the applicant's view, the court should order payment of daily subsistence allowance for the period the applicant is waiting for payment of transport allowance to Mbeya for himself and his family. That the court should order payment of the difference of salary not paid according to the scale of salary of the employee that is VS.7.1. that is Tshs. 144,740/= per month since the day of his employment.

The Respondent is opposing the application and has filed a counter affidavit sworn by Neema Mkonyi, Human Resource Manager of the Respondent. In the affidavit the deponent has stated that the applicant was employed on 8/02/2010 as a teacher. The rest of averment in paragraph 2 of the affidavit by the applicant are denied. Further, the deponent in the counter affidavit has averred the applicant's employment was not terminated but he voluntarily resigned from work according to the letter dated 24^th October, 2014. The deponent has further averred that the decision of the CMA was fair and it had reasons on the position held by the CMA.

The respondent also, on the 22^nd March, 2017 filed a notice of Preliminary Objection on the point that the application is incurably defective for want of specific enabling provision of law.

At the hearing the applicant was being represented by Mr. Manase Gidieon, PR from TASIWU and the Respondent was being represented by Mr. Deogratius Nyoni, Principal State Attorney and Mr. Mkama Msalama, State Attorney. The Counsel for the Respondent made a prayer to withdraw the preliminary objection raised. According to the submission made, there is no reason to proceed with the hearing of the objection based on the fact that the applicant in the chamber summons has cited a lot of provisions together with the relevant law. That is the section 91(2) of the ELRA, and Rule 24(1) of the Labour Court Rules, G.N. 106 of 2007. Relying on the case of Alliance One Tobacco (T) Ltd and others versus Mwaiuma Hamisfadministratix of Philemon R, Kilemi) (SUPRA), though the decision is persuasive to this court, on the strength of the holding in that case, the respondent's counsel prayed to withdraw the Preliminary objection they had filed earlier so that the case proceeds with hearing on merit for the interest of Justice. That will also allow expeditious disposal of the case. The Personal Representative of the Applicant, Mr. Manase Gideon, had no objection to the prayer and this court marked the preliminary objection withdrawn as prayed.

In the hearing, Mr. Manase Gideon, Personal Representative of the applicant submitted that the case has been filed to challenge the decision of Commission of Mediation and Arbitration. The applicant was employed by the Respondent on 8/2/2010 as a teacher of Engineering Science. He did his job faithfully for the period of his employment until when his employment was terminated unfairly on 24/2/2015.

The crux of the conflict between the parties is that the employer alleged that the applicant was involved in Politics through CHADEMA. That though he is employed in the Government, he was still holding a leadership position in the CHADEMA party. The applicant was summoned now and then and warned not to assist CHADEMA party in her political missions and was advised he should do so for CCM. That went as far as involving the RC by them Mr. Lawrence Gama.

At the Commission of Mediation and Arbitration, all witnesses on the side of the employer agreed on the nature as stated above. Involvement of the applicant with CHADEMA party. When the applicant noted that he is attacked for being a CHADEMA, on 24/10/2014 the applicant wrote a letter to resign. He was forced by the circumstances. He issued a three months' notice to the employer VETA. If the employer would have agreed to the notice by replying him the same would have ended on 24/1/2015. That would be the end of his employment, however the notice was not replied to instead on 8/12/2014, the employer convened a meeting to settle the dispute (kikao cha maridhiano). Three issues were agreed by both parties. The same are as follows: -

1. Payment of arrears of salary underpaid. The contract of employment was that salary scale will be VS7.1. The applicant was being paid a salary at the scale of VS4.
2. The contributions to the provident fund - NSSF will be paid to the relevant authority.
3. The agreement on the issue of follow up on the involvement of the applicant in politics.

The meeting rendered the notice obsolete and the employer agreed to give the applicant leave. Since the conflict is politically motivated, it was questioned by those in power. On 24/2/2015 the employer resumed to the previous state and replied to his three months' notice.

The Personal Representative of the applicant admitted that the applicant was paid his salaries. Even the salary slips show that; they had no dispute. The applicant prayed that the Court should see that some of the things were not proper. The employer broke the agreement (maridhiano). If the employer had accepted that Mr. Ngala may resign, she ought to have replied to the notice issued within time.

The personal representative of the applicant submitted that in the evidence tendered in the CMA, there is nowhere it was testified that Mr. Ngala was doing politics within time scheduled for his official duties. There is no any evidence that there was any problem with his political activities. There was no any loss for the applicant's involvement with CHADEMA. The applicant prayed that this court finds that employees of VETA are members in various political parties. It should therefore see that there was no any problem for the applicant to be involved in the political activities.

The Personal Representative submitted that the applicant, Mr. Stephene Ngala was not paid his terminal benefits according to section 44 of the Employment and Labour Relations Act, No. 6 of 2004. Even transport to his place of Domicile was not paid according to S. 43 of the law. The employer contravened section 37(l)(2)(A)(b)(C) and (3)(b)(i) of Employment and Labour Relations Act No. 6 of 2004.

The applicant's personal representative admit that the applicant was involved in Political activities but he has rights under article 20(4) of the Constitution of the United Republic of Tanzania of 1977. The termination of his employment was discriminative. He prays this court to find that there was unfair termination, and the application be allowed; that he should be paid compensation of salary for 70 months; be paid the arrears of his salaries which were being underpaid to the tune of Tshs. 9, 373,808/=. The applicant prays the decision of the CMA be quashed and instead allow the application and the applicant to be paid a total of Tshs. 102,000,000/=. The details are in CMA forms. It is the applicant's view, that the termination was unfair, and even the procedure to terminate his employment was not followed. The three-month notice was not replied to within the duration of notice on the 8/12/2020 the employer convened and the agreements was breached and also no any disciplinary meeting was convened.

Mr. Deogratius Nyoni, Principal State Attorney, submitted that they have heard the submission by the personal representative of the applicant.

In reply they prayed first the counter affidavit sworn by Neema Mkonyi be adopted. He then submitted that the applicant was employed as a normal teacher. The scale of salary was VS6.1 and not VS7.1. The latter grade is for senior employees. This is according to the advert and employment. Even in his affidavit the applicant has sworn as a normal teacher. It is on second paragraph of his affidavit. His employment contract was written as VS7.1 and not VS6.1. It was explained in the Commission for Mediation and Arbitration that it was a typographical error. The applicant, for the whole period of employment, has been receiving salary at the scale of VS6.1. He never complained because it was his scale of salary. There is no record that he was employed for the salary of VS7.1 and he complained to that effect.

It is in record that the applicant never complained or demanded to be paid the arrears. More to that at page 20 of the Award the chairman saw that, at paragraph 2 that arrears of salary have never been complained. At paragraph 3 the chairman commented that the applicant ought to have filed a complaint before filing the suit for unfair termination. Demand for arrears is an afterthought. Despite the fact of not tendering any exhibit, the chairman in the CMA concluded properly.

It has been submitted that the crux of the dispute is the dispute is politically motivated. That the applicant was involved with CHADEMA party as a leader at District level. There is no employee who is not a member of a party. The problem is when an employee becomes a leader in the political party. This is according to Permanent Standing Order, item F 2(a-g). This is reflected at page 9 of the award. In the Permanent Standing Order, 2009 item f2-3 the punishment is termination of employment.

In the meeting which was convened, the employer did not punish the applicant. She just advised that the applicant should declare that he is not a leader but the applicant declared himself to be the voice of voiceless. The applicant was not fired. There is no record to that effect. He resigned on his own volition (reflected at page 8). The letter was received as R.E 9.

After the said letter was issued, it is true that there was a meeting on 8/12/201 4. That meeting and the minutes of the meeting were received as RE12. The meeting was not intended to delete the notice. The meeting was to ask the applicant if it is on his volition or somebody has forced him. (Refer page 9 last paragraph of award). The applicant said his reasons to resign. They are at page 10 of the award, the meeting advised him not to involve himself in the leadership of party (CHADEMA). He was advised to resign from the post in the party.

As to the date of a letter of reply at page 20 of the award, the employer clarified the delay. The applicant requested to go on leave. He had applied that period not to be counted in his notice. Refer RE14. His request was that he would not like that the reply will find him on leave.

It has been argued that there was constructive termination. However, in the award at page 21, para 2, he resigned because he was not paid salary at the scale of VS.7.1. and that he wanted to have freedom to practice politics.

The scale of VS7.1 was for senior vocational teachers while the applicant applied for a normal job as a teacher. Discrimination was not proved. That issue was not disputed (controverted). The explanation was to see if there was constructive termination or not.

Rule 7 of Employment and Labour Relations (code of Good practice) G.N. No 42/2007 explains what amounts to constructive termination. Particularly Rule 7(2) (b). That was read together with Rule 29(1).

Rule 7( 1). Where an employer makes an employment intolerable which may result to the resignation of the employee, that resignation amount to forced resignation or constructive termination.

(2) Subject to sub-rule (1), the following circumstances may be considered as sufficient reasons to justify a forced resignation or constructive termination-

1. sexual harassment or the failure to protect an employee from sexual harassment; and
2. If an employee has been unfairly dealt with, provided that the employee has utilized the available mechanisms to deal with grievances unless there are good reasons for not doing so.

If it would have been proved that Stephen Ngala was paid VS6.1 while he was entitled to VS7.1 that would be constructive termination. The complaint would suffice to show that.

It has been argued that since it was a constructive termination, the applicant was supposed to be taken to Mbeya and that he must be paid a subsistence allowance. That would be proper if there was constructive termination or forced registration. What is being applied for is an afterthought.

It has been submitted that evidence does not show the applicant was dealing with politics during working hours. The issue was that he was a leader not just a member. The meeting was asking him to resign in order to remain as an employee; the applicant was summoned before issuing a notice and after issuing the same. The terminal benefits are paid if one is terminated; the applicant resigned. There were no salary arrears. The compensation is not the entitlement of the applicant.

Mr. Mkama State Attorney, supplemented to the submission by the Principal State Attorney Mr. Nyoni. He submitted on the claim for the benefits by the applicant. He insisted on the claim of benefit according to section 37, 43 and 44 of the Employment and Labour Relations Act, No. 6 of 2004. These sections have a foundation at S. 40 of ELRA Cap 366. Those are remedies for unfair termination. Therefore, the arbitrator must first find there is unfair termination so that they may be applied. The present dispute was not founded on unfair termination. The applicant on his volition resigned; through that letter he stripped off his rights to Claims for benefits for unfair termination.

The applicant was a member of CHADEMA and participated in meetings at Mlimani City as a Secretary for the Party at the District level. Public servants are guided by Standing Orders 2009. Order F21 provides clearly that: -

"Notwithstanding the provisions of standing order F20. Other Public servants shall be allowed to participatd'

The applicant while still an employee, held an office as a Secretary of CHADEMA at the District level contrary to Order F21. It is obvious, that was illegal.

The learned State Attorney submitted that in the affidavit by the applicant, paragraph 8-9 introduces new issues. It is not allowed to raise new issued at this level, as we cannot bring a witness. In the case of Hotel Travertine Ltd and two others vs NBC Ltd, [2006] T.L.R 133. The matter not argued in the lower court cannot be raised in the appeal.The same position was held in the case of Fatima Isha Saturn vs Khalifa Said[20041 TLR

423

"The question of compensation was not pleaded in the lower court thus cannot be raised in an appeal"

In the argument that the applicant was not paid Tshs. 144,740/= @ month equal to Tsh. 9,373,00/= for five years. The law is open, Rule 10(2) of Labour Institutions (Mediation and Arbitration) Rules GN 64/2007. It gives time limit of 60 days for claiming at the commission. These claims were supposed to be applied 60 days from the date the applicant discovered he is not being paid. Under the circumstances the prayers are time barred.

The meeting on 8/12/2014 did not render the notice obsolete. It was a fair conduct of the employer to her employee. The employer was asking for the loyalty of the employee to his employer not otherwise. The applicant insisted on his choice in favour of freedom to work in political platforms (Ref. page 10) of an award.

The Respondent through the submission by the Mr. Nyoni Principal State Attorney, prayed the decision of CMA be upheld because it discussed the dispute and gave rights to all parties.

In rejoinder, Mr. Manase, Personal Representative of the applicant, they have not brought any new issue. All what was submitted commenced at the CMA. I have heard the counsel that the applicant was a leader and member of the CMA. He submitted that they submitted in the CMA why Stephene Ngala only while there are other public servants who are members and leaders of Political parties. There were no any separate terms other than the contract of employment. It is true the applicant wrote a notice to resign which would end on 24/1/2015. However, the employer and the applicant agreed and that made him to work. He was assigned duties as normal. The applicant's representative reiterated and insisted that if the employer would have honored the notice, he would have resigned at the end of notice. That makes the claim to be based on unfair termination.

The claim for daily subsistence allowance is a legal requirement according to S. 43(1) (c) of ELRA, Cap 36 R.E.2002. That silence means yes is not a good holding. It was intended to favour the Respondent. That is why the applicant submit that the meeting on 8/12/2014 was intended to settle the conflict. Them the applicant continued to work. When his employment was terminated that was unfair termination.

Labour disputes are handled under Employment and Labour Relations Act, 2004. This court should guide us properly on this point. The applicant disputes the use of standing order 2009.

The issue of arrears of salaries is not new. It is contained in CMF No. 1. It is part of the claim. The personal representative argued and or submitted that they have proved through the contract. It shows the scale of salary is VS7.1. There is no any evidence to apologize. The respondent planed and intended to deprive the applicant his right. Since the respondent replied to the letter three months later after the settlement; then S. 37, 43 AND 44 of the Employment and Labour Relations Act, 2004 apply to the current case as they are clear. That is unfair termination. The applicant's representative prayed the submission by the respondent be discarded and dismissed and the application be allowed.

I have read the record of in the Commission of Mediation and Arbitration and the submissions made by the parties. First, I need to satisfy myself the position, the applicant was employed with the respondent. The applicant applied to be employed for the post of Vocational Teacher in Engineering mechanics/Boiler Mechanics by a letter dated 5^th January, 2010. He was by a letter dated 8^th February, 2010 with Reference No. VETA/NZ/MS/PF.300/5(refer R.E. 16). He was appointed to be a Vocational Teacher-Engineering Science on Permanent and Pensionable terms. In the terms of employment, the letter of appointment clearly shows under Item 1 the appointee's initial salary will be Tshs. 632, 440/= per month in salary Scale Grade VS 7.1. As a condition of employment he was to work for six (6) month on probation. By the letter dated 21^st September, 2010 with Ref. No. VETA/NZ/MS/PF.307/08 the applicant was confirmed in his position as a Vocational Teacher-Engineering Science with effect from 8^th August, 2010.