IN THE COURT OF APPEAL OF TANZANIA
AT TANGA
(CORAM: MAKAME, J.A.,
MUNUO, J. A., AND KAJI, J. A.)
CIVIL APPEAL
NO. 127 OF 2005
THE MANAGING
DIRECTOR, ……………….. APPELLANT
TANGA CEMENT
COMPANY LIMITED
VERSUS
1. JUMANNE D. MASANGWA
2. AMOS
A. MWALWANDA ………………………….
RESPONDENTS
(Appeal from
a judgment of the High Court
of Tanzania
(M. H. C.
S. Longway J.)
Dated the 5th day of September, 2001.
in
Civil
Appeal No. 4 of 2001
JUDGMENT OF THE COURT
5 July,
2006 & 21st September,2007
KAJI,
J. A.:
In this appeal, the appellant, the
Managing Director, Tanga Cement Company Limited, is appealing against the
decision of the High Court at Tanga (Longway J.) dated 5th September,
2001 in Civil Appeal No. 4 of 2001, whereby the appellant was ordered to
reinstate and pay the respondents Jumanne D. Masangwa and Amos A. Mwalwanda
shs. 7, 087, 482= being arrears of wages and fringe benefits for the period
they were out of work.
The
respondents were employed by the appellant.
On 10/10/1999 their services were
terminated by the appellant. They were aggrieved. They successfully appealed to
the Tanga Labour Conciliatory Board (The Board) on 26/05/2000. The Board
ordered reinstatement with effect from 11/10/1999. The appellant refused to
reinstate them and opted to pay them 12 months’ salaries, statutory
compensation equivalent to severance allowance, house allowance for the notice
period, repatriation costs/ allowance, 7 days salary in lieu of leave for the
period 1/7/1999 to 11/10/1999, one month salary in lieu of notice plus 11 days
salary for the month of October 1999 (ANN AFI). The respondents were not
satisfied. Apart from the above payments they wanted to be re – instated in their
jobs as ordered by the Board and to be paid arrears of wages and fringe
benefits for the period they were under termination. The appellant was not
ready to do so. The respondents filed an application in the District Court of
Tanga under Sections 27 (1) and 25 (1) (a) of the Security of Employment Act,
Cap 574 and prayed for the following reliefs:-
1. An
order to compel the appellant to pay the respondents shs 7,087,482=, or to
issue an execution order by attachment and sale of a motor vehicle Registration
No. TZM 4714 the property of the appellant for the amount claimed.
2. Costs
of the application.
3. Any
other order(s) the court could deem fit, fair and equitable to make.
The
appellant resisted the application on the ground that he exercised his legal
option not to reinstate the respondents and instead duly paid them statutory
compensation and a sum equal to 12 months wages in addition to other terminal
benefits stated above. The trial court agreed with the appellant and dismissed
the application with costs.
The respondents were dissatisfied with
the decision. They successfully appealed to the High Court at Tanga. The High
Court, Longway J, held the view that, since the Board had ordered reinstatement,
the appellant had to reinstate the respondents and pay them all arrears of
wages/ salary from 11/10/1999 up to actual reinstatement. Each party was
ordered to bear their own costs of the appeal and of the court below.
Before
us the appellant was represented by Mr. A. J. Akaro, learned counsel who had
preferred the following grounds of appeal.
1. That
the learned High Court judge erred in law by ordering reinstatement of the
respondents whereas the respondents did not apply for such relief in the
District Court nor did they seek to enforce such order in the said court.
2. That
the learned High Court judge erred in law in ordering reinstatement of the
respondents whereas the facts of the case clearly indicate that the appellant
was unwilling to continue engaging the services of the respondents.
3. That
the learned High Court Judge erred in law by declining to hold that the
respondents having been paid statutory compensation and a sum equal to 12
months wages in accordance with the provisions of section 40 A (5) (a) of the
Security of Employment Act the appellant had an option not to pay the
respondents wages for the number of days that they did not work for the
appellant while awaiting the decision of the Conciliatory Board.
The
learned counsel elaborated on these grounds at length in his oral submission.
The respondents who were not represented
by an advocate, fended for themselves. They pointed out that, the option
whether to be reinstated or to be paid 12 months wages and statutory
compensation was upon them and not on the appellants. They further contended
that, on their part, after the Board had ordered their reinstatement, they were
ready and willing to be reinstated, even up to now. They pointed out that, the
Board’s order meant that they had been in service all the time from 11/10/1999
and that they deserved to be paid salaries and fringe benefits for all that
period, the very amount they claimed in their chamber summons in the trial
court. They complained bitterly that, by refusing to reinstate them, the
appellant had denied them, their constitutional right to work. The respondents
observed that, since the Board’s decision has not been reversed by any
competent authority, it is still in force and they are deemed to be in continuous
employment to date.
In a brief rejoinder Mr. Akaro insisted
that, after paying the respondent 12 months wages and statutory compensation
and other payments as stated above, the appellant discharged his burden under
Section 40 A (5) (a) (b) of the Employment Act and, there is no justification
for paying the respondents wages and other fringe benefits for the period they
were out of work.
On our part, we think, the crucial issue
in this case is whether the respondents are entitled to be paid arrears of
wages and fringe benefits for the period they were out of work, that is, from
11/10/1999 when their employment was purportedly terminated by the appellant
until on 26/5/2000 when the Board ordered their reinstatement. We think, a
correct answer can be found in sections 40 A (4) (a), Section 40 A (5) (a) (b)
and 36 of the Act. Section 40 A (4) (a) provides:
40
A (4): Where in the exercise of its powers under this section a Board or the
Minister orders:-
(a) re – instatement of an employee, the
employer shall re – instate the employee in his former employment, and such re
– instatement shall have effect for the purpose of the
payment of wages, entitlement to severance allowance and other retiring
benefits, and otherwise in relation to any benefits of the employment, from the
date of the termination or his summary dismissal, as the case may be, but the employer may deduct from any wages
due on or after re – instatement, the wages in respect of the number of days
during which the employee remained absent from work during (and including) the
day on which the termination or the dismissal took effect and the day on which
the re – in- statement is ordered by the Board or, in- the case of a further
reference to the Minister, the day on which re – in statement in confirmed or
ordered by the Minister (emphasis provided).
Our
understanding of this provision is that, where the Board or Minister orders re
– instatement of an employee and the employer complies, then on re –
instatement the employee will be entitled to the payment of wages, severance
allowance and other retiring benefits from the date of the termination of the
employee’s employment or dismissal, as the case may be. But the employer may
deduct the said wages in respect of the period which the employee was out of
work. As demonstrated above, this applies only where the employer has complied
with the re – instatement order. In the instant case the appellant failed or
refused to comply with the re – instatement order. In such case what is the
position? This brings us to Section 40 A (5) which provides:-
40
A (5): Where a re – instatement or re – engagement has been ordered under this
section and the employer refuses or fails to comply with the order –
(a)
in the case of an order made by a Board against which no reference has been
made to the Minister, within twenty – eight days of the order being made; or
(b)
in case of the order made by the Minister on a further reference to him, within
fourteen days of the order being made by the Minister, the employer shall be
liable to pay the employee compensation of an amount equal to the aggregate of
–
(i)
the statutory compensation computed in accordance with section 36; and
(ii)
a sum equal to twelve months’ wages at the rate of wages to which the employee
was entitled immediately before the termination of his employment, or as the
case may be, his dismissal, and such compensation shall be recoverable in the
same manner as statutory compensation, the payment of which has been ordered
under section 40.
Section
36 provides in part as follows:-
36:
The statutory compensation shall be –
(a)Such
some of money as shall be equal to the severance allowance due and payable to
the employee on the termination of his employment; or
(b)
The sum of five hundred
shillings, whichever is greater.
Computation
of severance allowance due and payable is provided by Section 5 of the
Severance Allowance Act, 1962. However for the purpose of the case at hand we do
not think we need to go into the details therein, suffice it to say that
severance allowance does not include arrears of wages for the period an
employee is absent from work. See the case of Pius Sangali & Others V Tanzania Portland Cement Company Limited,
Civil Appeal No. 100 of 2001 (Unreported). With all these in clear light,
we are of the firm view that, the learned judge on first appeal erred when she
ordered the payment of arrears of wages and fringe benefits for the period the
respondents were not at work, that is, from 11/10/1999 to 26/5/2000. The
respondents are only entitled to what is provided under section 40 A (5).
With regard to the respondents’
complaint that by refusing to
re–instate
them the appellant has denied them their constitutional right to work, we can
only say that, this right, by its very nature, cannot be absolute. It is subject
to many factors which include availability of work suitable to the person
involved. It does not mean that one can simply walk into an office, factory or
worksite and force to be given work under the pretext of Article 22 of the
Constitution as was remarked by the Court in the Case of Timoth Kaare V Mara Co – operative Union (1984) Limited, Civil Appeal
No. 42 of 1992 (Unreported).
In the end result, and for
the reasons stated above, we allow the appeal, quash the order of the court on
first appeal which ordered the appellant to re – instate and pay the
respondents arrears of wages and fringe benefits for the period they were out
of work.; and hold that the respondents are only entitled to what is provided
under Section 40 A
(5).
Due
to the circumstances of the case where the respondents have been out of work
for almost ten years, we direct that each party is to bear his own costs
DATED
at DAR ES SALAAM this 21st day of September, 2007.
L. M.
MAKAME
JUSTICE OF APPEAL
E. N.
MUNUO
JUSTICE OF APPEAL
S. N.
KAJI
JUSTICE OF APPEAL
I certify that this is a true copy of
the original.
S. M.
RUMANYIKA
DEPUTY REGISRTRAR
Delivered in Court /Chambers under my
hand and Court seal this
.......................... day of
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