IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION
AT DAR ES SALAAM

REVISION APPLICATION NO. 378 OF 2020

(Originating from Labour Dispute No. CMA/DSM/ILA/406/900/266)

BETWEEN
TUSIIME HOLDINGS (T) LTD.................................................... APPLICANT
VERSUS
MARIA CHOROBI............................................................ 1st RESPONDENT
ALLEN ISA YA................................................................... 2ND RESPONDENT

JUDGMENT

Date of Last Order: 15/15/2021

Date of Judgment: 25/01/2022

I. ARUFANI, J.

The respondents herein were employed by the applicant on

different dates as teachers on fixed term contracts. The first

Respondent started her contract of employment with the applicant on

January, 2008 and the last contract was for two (2) years

commencing from 10th May, 2018 and intended to end on 10th May,

2020. The second respondent was employed under a fixed contract of

one (1) year from 2016 and his last contract was ending on August,

2019.

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 On 22nd March, 2019 the second respondent wrote to the

applicant a letter of resigning from his employment on ground that

the working condition was intolerable and the first respondent wrote

to the applicant a letter of resignation from her employment on 1st

April, 2019 basing on the same ground. On 20th May, 2019 the

respondents filed a labour dispute before the Commission for

Mediation and Arbitration at Dar es Salaam Zone (hereinafter referred

as the CMA) which was registered as CMA/DSM/ILALA/406/900/266

claiming for various reliefs basing on constructive termination of their

employment by the applicant.

The CMA determined the matter in favour of the respondents

and while the first respondent was awarded the sum of TZS

21,240,000/= being compensation for remaining salaries of twelve

(12) months, one month salary in lieu of notice and general damages,

the second respondent was awarded the sum of TZS 14,800,000/=

being compensation for remaining salaries of four months, one month

salary in lieu of notice and general damages. The applicant was

dissatisfied by the award and filed the present application in this

court seeking for the CMA award to be revised and set aside.

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 The award was challenged by the applicant basing on eight

grounds listed under paragraph 4 of the supplementary affidavit

deposed by Albert Eustadi Katagira filed in the court to support the

application. In challenging the application, the respondent's filed in

the court their supplementary counter affidavits. Hearing of the

application was conducted by way of written submission. While the

applicant was under service of Advocate Stella Modest Rweikiza, the

respondents were served by Advocate Edward Kikuli.

The counsel for the applicant argued in relation to the 1st

ground of revision that, the CMA erred in law to entertain a dispute

which was time barred. She argued that the first respondent resigned

from her employment on 1st April, 2019 and the second Respondent

resigned from his employment on 22nd March, 2019 and the dispute

was filed before the CMA on 20th May, 2019. She stated that was 50

days from the date the first respondent wrote to the applicant her

letter of resigning from her employment and 59 days from the date

the second respondent wrote to the applicant his letter of resigning

from his employment.

The counsel for the applicant submitted that, the dispute was

filed in the court out of thirty (30) days provided under Rule 10 (1) of
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the Labour Institution (Mediation and Arbitration) GN. No. 64 of 2007

and without condonation of time. To strengthen her argument, the

counsel for the applicant cited in her submission the cases of

Tanzania One Mining Ltd. v. Andre Venter, Revision No. 276 of

2009 and Shaban Abilah Okala V. Mohamed Idd Mkuro

Transport, Labour Revision No. 10 of 2019 where it was stated that,

limitation is not a procedural issue but a statutory requirement.

She argued in relation to the 2nd ground that the arbitrator

erred in law by causing the applicant to be the first person to testify,

while due to the nature of the termination being constructive, the

respondents were the one who were supposed to prove the alleged

intolerable working condition that resulted into termination of their

employment. She supported her argument with Rule 7 (3) of the

Employment and Labour Relations (Code of Good Practice) GN. No.

42 of 2007.

She argued that, it is a cardinal principle of the law as provided

under section 110 (1) and (2) read together with section 111 of the

Evidence Act, Cap 6 R.E 2019 that, he who alleges must prove. She

referred the court to the case of Kobil Tanzania Ltd. V. Fabrice

Ezaovi, Civil Appeal No. 134 of 2017 where when citing with
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approval the case of HC Heat Exchanges (Pty) Limited v. Victor

J.L. De Araujo & 2 others, Case No. JR155/16 it was stated that,

the onus to prove the existence of intolerability rests squarely upon

the shoulder of the employee. It was further submitted by the

counsel for the applicant that the arbitrator erred in law by shifting a

burden to the applicant to start giving evidence while the applicant

was to rebut the respondents evidence on the intolerable

environment of their working condition.

The counsel for the applicant jointly submitted on the 3rd, 4th,

5th, 7th, 12th and 13th to the effect that, the law under Rule 7 (1) of

GN. No. 42 of 2007 defines constructive termination to be where the

employer made an employment intolerable which may result to

resignation of the employee. She stated that, the circumstances

which may justify constructive termination are provided under Rule 7

(2) of the GN. No. 42 of 2007 to include sexual harassment and if the

employee has been unfairly dealt with, provided the employee has

utilized available mechanisms to deal with the grievances unless there

are good reason for not doing so.

She referred the court to the case of Kobil Tanzania Ltd. v.

Fabrice Ezaovi (supra) which provides for the question to be asked

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in order to prove constructive termination. She submitted that, in his

evaluation the arbitrator failed to weigh, consider and evaluate

properly the evidence as adduced by the parties. She further

submitted that, under that circumstance the arbitrator erred to award

the respondents compensation of salaries of the remaining period of

a contract.

Regarding the 6th ground it was submitted by the counsel for

the applicant that, the arbitrator erred in law and fact by finding that,

the applicant breached the employment contract while there was no

such claim from the applicant and the same was not proved by the

respondents. As for the 8th, 9th and 10th grounds of revision the

counsel for the applicant argued that, it is a trite law that for general

damages to be awarded it must be pleaded and proved. She

submitted that, in the present application the general damages were

neither pleaded by the respondent nor proved by them, hence the

award of general damages of Tshs. 10,000,000/= to each respondent

were improperly procured.

She argued in relation to the 11th ground of revision that, the

award of salaries for the remaining period of contract and general

damages was excessive. She submitted the same is not justified

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compensation as it enriches the respondent contrary to the general

rules of awarding compensation. At the end she prayed the court to

grant the application.

In response to the submission by the counsel for the applicant,

the counsel for the respondents stated in relation to the first ground

of revision that, the dispute was timely filed before the CMA, hence

the ground is misconceived. He argued that, as reflected at page 2 of

the award, on 22nd March, 2019 and 1st April, 2021 the respondents

respectively wrote their letters of intention to resign due to the

intolerable working conditions. He stated that, on 6th April, 2019 the

applicant replied the said letters by denying the allegation. He further

submitted that, the letters written to the respondents by the applicant

shows until 25th April, 2019 the respondents were still working for the

applicant and the respondents filed their dispute before the CMA on

20th May, 2019 which was within the time prescribed by the law.

The counsel for the respondents submitted further that, even if

it will be taken the dispute was time barred, but by invoking Rule 4

(1) and (2) of the Labour Institution (Meditation and Arbitration)

Rules GN. No. 67 of 2007 which provides for exclusion of the first

date and the last date, then the dispute was filed in the CMA within
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the time as required by the law. To strengthen his submission, he

referred the court to the case of Barclays Bank (T) Ltd. v. Jacob

Muro, Civil Appeal No. 357/2019.

As regard to the 2nd ground, it was submitted for the

respondents that, the law under Section 39 of Employment and

Labour Relations Act, Cap 300 RE 2019 rest the burden to prove

fairness of termination to the employer. He further submitted that the

employee who has been constructively terminated can claim for

unfair termination, except those on probation as stated in the case of

David Nzaligo v. National Microfinance Bank, Civil Appeal No.

61/2016. Since the respondent referred the dispute of constructive

termination to the CMA claiming to have been unfairly terminated

then, the CMA was correct to allow the applicant to start giving his

testimony as required by the law.

He argued in relation to the 3rd and 4th grounds that, the

respondent's termination was a last resort basing on the

circumstances that, the first respondent wrote a letter to the

applicant on 16th May, 2018 complaining about deduction of his salary

and mode of payment of his salary which resulted into loss of his

social security benefits but that letter was never replied by the
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applicant. The same applied to the second respondent who wrote his

letter to the applicant but it was never responded.

He submitted that, it is because of the above stated reason the

respondents on 1st April, 2019 and 22nd March, 2019 wrote their

letters to inform the applicant about their intention to resign from

their employment because of the intolerable working condition. He

stated that, there was also discrimination of the respondents as other

employees were prohibited by the applicant not to talk and corporate

with them, as testified by the 1st respondent that she was informed

by Jackline and James. He submitted that, basing on the stated

intolerable working conditions the respondents were constructively

terminated.

It was submitted for the respondents in relation to the 5th

ground that, there was no any proof tendered by the applicant to

substantiate that the deductions were for PAYE and NSSF. It is a

principle of law that unjustifiable reduction of salaries is one of the

intolerable working conditions and it amounts to constructive

termination. To bolster his argument the counsel for the respondents

cited the case of Vietel Tanzania Ltd. V. Edmund Kabonge,

Revision No. 816 of 2018. He added that, even if the deductions were
9
in accordance with clause 4 of their employment contract, the same

could have started from the beginning of the contract and not after

the lapse of many years.

As regards to the 7th, 8th, 9th, 10th and 11th grounds of revision it

was submitted for the respondents that, since constructive

termination was proved by the respondents then the arbitrator was

correct to award them the salaries of the remaining period as

provided in the case of Good Samaritan V. Joseph Robert Savari

Munthu, Revision No. 165 of 2011. He argued that, the arbitrator

was right to award the respondents compensation for the general

damages of Tshs. 10,000,000/=. He stated that, the Arbitrator has

discretion to award more compensation after taking into

consideration all factors and circumstances of the case and supported

his point by citing the case of Pangea Minerals Ltd V. Gwandu

Majali, Civil Appeal No. 504 of 2020.

To conclude his submission the Counsel for the respondents

submitted that, it is a principle of law in civil cases that, one with

heavy evidence must win the case. This principle was established in

the case of Hemed Said v. Mohamed Mbilu, [1984] TLR, 113

where it was held that, under the law both parties cannot tie as the
io
person with heavier evidence than the other, is the one who must

win the case. He submitted that, in this case the arbitrator considered

the evidence tendered by the parties, and decided in favour of the

respondents as the evidence was heavier than the applicant's

evidence. Basing on the above stated reasons the counsel for the

respondents prayed the application be dismissed. In rejoinder the

counsel for the applicant reiterated what she argued in her

submission in chief.

Having carefully considered the submissions from both sides

and after going through the record of the matter as well as the laws

governing the matter the court has found it is proper to determine

this application by dealing with the grounds of revision seriatim as

argued by the counsel for the parties. Starting with the first ground

which states the matter referred to the CMA was time barred the

court has found that, the said ground was vehemently disputed by

the counsel for the respondents who argued the dispute was timely

filed in the CMA. The court has found the law governing limitation of

time for referring dispute to the CMA is GN. No. 64 of 2007 which its

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Rule 10 (1) and (2) provides as fol lows:-

"Rule 10. - (1) Disputes about the fairness of an employee's

termination of employment must be referred to the
Commission within thirty days from the date of termination
or the date that the employer made a final decision to
terminate or uphold the decision to terminate.
(2) All other disputes must be referred to the Commission
within sixty days from the date when the dispute arose".

The court has found the respondents alleged their employment

was constructively terminated by the applicant. That means they

were challenging fairness of the reason caused them to terminate

their employment which is an intolerable working condition. Under

that circumstances the provision of the law which was supposed to

govern limitation of time for filing the respondents' dispute before the

CMA is Rule 10 (1) of the GN. No. 64 of 2007 quoted hereinabove

which states the dispute of that nature was supposed to be filed at

the CMA within thirty days from the date of termination of their

employment.

The court has found the CMA Fl which is in the record of the

matter shows the respondents stated thereon that, their dispute

arose on 1st May, 2019 and the dispute was filed in the CMA on 20th

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May, 2019. On the other hand, the applicant's counsel maintained

that, the dispute arose on 22nd March, 2019 and 1st April, 2019 when

the respondents wrote their respective letters of resigning from their

employment. That means the issues to determine in this ground is

when exactly the dispute arose and whether the dispute was filed in

the CMA within or out of the time prescribed by the law.

After going through the evidence adduced before the CMA the

court has found it is not disputed that, the first respondent wrote a

letter to the applicant on 1st April, 2019 requesting to resign from her

employment and prayed her request to be answered within seven

days from the date of that letter. The second respondent wrote his

letter to the applicant on 22nd March, 2019 request for the same

prayer of resigning from his employment.

The court has found it is also not disputed that the applicant

replied the said letters, on 6th April, 2019 and apart from denying the

allegation of intolerable working condition of work raised by the

respondents, he also advised the respondents that, if they wanted to

resign from their employment, they should abide to clause 8.1 of

their contract of employment. The mentioned clause of the contract

of employment of the parties provides that, if a party to the contract

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want to terminate the contract, he should give the other side one

month notice or made one month payment in lieu of notice.

The record of the matter reveals that, no notice of terminating

the contract was given by the respondents as advised by the

applicant. To the contract on 23rd April, 2019 the respondents

through A & D Law Attorneys wrote a demand note to the applicant,

demanding to be paid compensation by the applicant for being forced

by the applicant to terminate their employment.

On 29th April, 2019 the applicant replied the respondents'

counsel's demand letter and apart from denying the claims of the

respondents in toto but the applicant stated they were not against

the respondents' intention of taking legal action against them. The

record of the matter shows further that, on 10th May, 2019 the

applicant wrote another letter to the respondents demanding them to

give explanation as to why they had not attended the work from 25th

April, 2019 to the date of the letter.

That being undisputed facts of the matter the court has found it

is proper to have a look on what is provided under Rule 6 (1) of the

GN. No. 42 of 2007 which governs resignation of employees working

14
under fixed term contract like the respondents. The cited provision of

the law states as follows:-

"Ruie 6-(l) Where an employee has agreed to a fixed term

contract, that employee may only resign if the employer
materially breaches the contract. If there is no breach by the
employer the employee may lawfully terminate the contract
before the expiry of the fixed term by getting the employer
to agree to an early termination."

The court has found the wording of the above quoted provision

of the law is very plain that, an employee who is working under a

fixed term contract he may resign if the employer breaches the

contract. If the employer has not breached the contract the employee

may also lawfully terminate his employment by agreeing with his

employer for early termination of his employment. As the respondents

alleged the applicant breached their fixed term contract through

deduction of their salary and failure to pay them their full salaries

through their bank accounts which affected their social security

benefits the court has found the respondents had a right under the

above quoted rule to resign from their employment without being

required to agree with the applicant for early termination of their

contract.

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 The above finding caused the court to come to the view that, the

cause of action of the claims of the respondents is supposed to be

counted it arose on 1st April, 2019 for the first respondent and on 22nd

March, 2019 for the second respondent when they wrote their letters

of resigning from their employment as argued by the counsel for the

applicant. If it will be taken the cause of action was required to arise

from when the respondent's letters of resignation were replied by the

applicant the court has found that, limitation of time for their claims

was required to start counting from 6th April, 2019 when the applicant

replied their letters of resignation.

The court has tried to consider the argument by the counsel for

the respondents and what is stated in the CMA Fl that the cause of

action arose on 1st May, 2019 but failed to get the basis of that

assertion as to why it was stated the cause of action arose on 1st May,

2019. To the contrary the court has found the cause of action is

supposed to be taken it arose on the date when the respondents

wrote their letters of resigning from their employment or from the

date when their letters were replied by the applicant. Therefore,

counting from when the respondents wrote their letters of resigning

from their employment or from when the applicant replied their letters

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it is crystal clear that the dispute filed in the CMA on 20th May, 2019

was out of thirty days provided under Rule 10 (1) of the GN. No. 64

of 2007.

The court has considered the argument by the counsel for the

respondents about the principle of exclusion and inclusion of the days

provided under Rule 4 (1) and (2) of the GN. No. 67 of 2007 but find

that, even if the said principle is applied in the present application, it

does not establish the matters filed before the CMA by the

respondents were within the time prescribed by the law. The court

has found that, as stated hereinabove the matter was filed at the CMA

out of time and the case of Barclays Bank (T) Ltd. (supra) cannot

assist the respondents to establish the matter was filed at the CMA

within the time as argued by the respondents' counsel.

The court has also considered the further argument by the

counsel for the respondents that the respondents were still in the

employment of the applicant up to 25th April, 2019 as stated in the

letter written by the applicant on 10th May, 2019 but find that cannot

be used to establish the dispute was filed in the CMA within the time

prescribed by the law. The court has come to the above finding after

17
seeing the cause of action used by the respondent in their dispute is

constructive termination of their employment.

As provided under Rule 7 (1) of the GN. No. 42 of 2007,

constructive termination arose where the employer makes an

employee to resign from the employment because of intolerable

condition of work. That being the position of the matter the court has

found that, resignation of an employee from his or her employment is

required to be counted from when he or she presented his or her

letter of resignation to his or her employer and if he or she has stated

a specific date of his or her resignation in the letter, the specified date

will be the effective date of termination of the employment. That

means the effective date of resignation of the respondents from their

employment with the applicant was 6th April, 2019 when the applicant

replied their letters.

As a matter of procedure, the CMA had a duty before

entertaining the dispute to assess itself as if it has jurisdiction to

entertain the matter or not. As from when the applicant replied the

respondents' letters of resignation up to when the dispute was filed at

the CMA the prescribed time had already passed the respondents

were required to apply for condonation of time to file their dispute at

18
the CMA out of time, but that was never done in the present matter.

Therefore, this court is of the considered view that CMA had no

jurisdiction to entertain the matter which was time bared. As a result,

the court has found the first ground that the CMA erred in

entertaining the dispute filed therein out of time is meritorious and

deserve to be upheld.

Although the above finding would have been enough to dispose

of the matter but the court has found it is pertinent to continue to

determine the second ground of revision which states the arbitrator

erred in causing the applicant to start adducing their evidence instead

of starting with the respondents who were supposed to establish that,

they were really forced to terminate their employment. The court has

found as stated earlier in this judgment it is not disputed that the

respondents resigned from their employment as exhibited by their

letters dated 1st April, 2019 and 22nd March, 2019 respectively.

As rightly argued by the counsel for the applicant Rule 7 (3) of

the GN. No. 42 of 2007 states clearly that 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. The position of the law as stated in number

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of cases including the case of Kobil Tanzania Limited (supra) cited

in the submission of the counsel for the applicant is very clear that,

the onus to prove termination of employment by employee was due

to intolerable working condition at the place of work is casted on the

shoulder of the employee.

Since the respondents were the one terminated their

employment on allegation of intolerable condition at the place of work

caused by the applicant the respondents were required to start

adducing their evidence to prove the allegation and thereafter the

applicant would have been required to disprove what was said by the

respondents. To the contrary the court has found in the instant

application the hearing of the matter at the CMA went vice versa as

the applicant was caused to start to adduce their evidence to disprove

the allegation of the respondents before the respondents proved their

alleged which is like putting a cart before the horse.

The court has considered the argument by the counsel for the

respondent that the CMA was right to start with hearing of the

evidence of the applicant because section 39 of the ELRA requires the

employer to prove termination of contract of an employee was fair

both substantively and procedurally but find as stated in the case

20
Kobil Tanzania Limited (supra) the duty to prove constructive

termination is casted on the shoulder of an employee and not on the

shoulder of an employer. In the premises the court has found the

proceedings of the CMA is irregular as it was conducted contrary to

the required procedure.

As the first and second grounds of revision have been found are

meritorious the court has found there is no need of belabouring to

deal with the rest of the grounds of revision. In the upshot the

application filed in this court by the applicant is hereby granted. The

c
whole proceedings of the CMA are hereby nullified for being irregular

and the impugned award issued by the CMA is accordingly quashed

and set aside as the CMA had no jurisdiction to entertain the dispute

which was filed before it out of time and without an order of

condonation of time. It is so ordered.

Dated at Dar es Salaam this 25th day of January, 2022.

I. Arufani

JUDGE
25/01/2022

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Court: Judgment delivered today 25th day of January, 2022 in the

presence of Ms. Stella Rweikiza, Advocate for the Applicant and in the

presence of Mr. Godfrey Ngassa, Advocate holding brief of Mr.

Edward Kikuli, Advocate for the Respondent. Right of appeal to the

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