THE High Court's Labour Division, has nullified the award issued by Commission for Mediation and Arbitration (CMA) against an accountant with Billion Dollars Co. Ltd, Ms Lucy Noti, endorsing her unceremoniously dismissal from employment through a mobile phone text message.
Judge Yose Mlyambina ruled in favour of the accountant, the applicant, after allowing her application for revision she lodged to oppose the findings of the CMA, which had decided in favour of the company, the respondent, on the matter.
"I hereby quash and nullify the arbitrator's decision. I order that the applicant be paid 11 months' salary as compensation for the unlawful termination and be issued with a Certificate of Service. I thus allow the application for revision and set aside CMA's award accordingly," he declared.
During hearing of the application, the applicant's counsel had forcefully submitted that the arbitrator erred in law and in fact for failure to consider the opening statements of the respondent which was to the effect that the Applicant's employment was on the fixed period basis.
He added that failure of the respondent to produce employment contract as well as attendance register at CMA was as good as admission of the existence of fixed term contract with the applicant.
The counsel also submitted that the arbitrator erred in law and in fact for denying accepting the electronic messages as the original source (phone) was in place as per requirements of Section 18(2) of the Electronic Transactions Act of 2015.
In resisting the application, the respondent submitted that the opening statement is not evidence of the employment and there was no any admission that the applicant was their employee. He added that the said opening statement cemented that the applicant was a consultant engaged for specific task.
Furthermore, the respondent submitted that the said electronic message did not show its origin. She added that the notice of termination must be in writing to constitute as evidence of termination by the employer as provided under Section 43(3) of Employment and Labour Relation Act.
In his ruling delivered recently, the Judge noted that there are three types of employment contract which are recognised by Tanzania Labour Laws, in terms of Section 14 of the Employment and Labour Relations Act.
Such types include a contract for an unspecified period of time; a contract for a specified period of time for professionals and managerial cadre and a contract for a specific task. He also noted that both parties testified to the effect that the applicant was employed by the respondent.
"What is disputed in this case is the type of contract they engaged in. The applicant alleged to have been employed on specified period contract and he was paid his salaries on monthly basis, while the respondent claimed it was a special task contract and she was paid per task performed," the judge said.
According to him, it is a trite law that in contract law, employment contract may be written or oral and written contract is more preferable than oral contract for evidential purposes in case of any breach of the same.
In terms of Section 15 of Employment and Labour Relations Act, he said, the employer is duty bound to keep written records of the particulars of her employees and conditions regarding their employment.
After a thorough analysis of the evidence from records, the judge found that neither the Applicant nor the Respondent has tendered any employment contract.
He said that the respondent did not issue employment contract to the applicant but argued that she never had fixed term employment contract but rather a specified task contract which came to an end after one month when the task was completed.
"It is a principle of law in labour matters that when there is any dispute regarding the terms of employment in a contract, the burden of proof lies on the employer. The Respondent has failed to prove under what type of contract the applicant was employed," the judge said.
Therefore, he said, since the employer or respondent could not prove clearly on the terms of contract, the benefit of doubt must be in favour of the applicant who claimed that he was employed on oral fixed period contract or agreement with a basic salary of 2,000,000/-.
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It was his humble opinion that the arbitrator wrongly shifted the burden of proof to the applicant by deciding that she failed to prove basing on weaknesses of evidence including the alleged salary slip of the applicant.
The duty to prove the existence of fixed term employment contract, the judge said, was on the respondent but he failed to do so. He also said that the respondent did not have lawful grounds for terminating the employment contract with the applicant.
Furthermore, the judge pointed out that from the evidence tendered, the applicant's contract was to end on January 02, 2023 but the respondent prematurely ended it on February 04, 2022. Thus, he said, there was a breach of the employment contract on the part of the respondent.
The judge concluded that consideration there was a fixed term agreement between the parties and the contract was to end on January 02, 2023 and that the contract was abruptly terminated on February 04, 2022; it follows therefore that there were 11 months which remained before the expiry of the contract.
