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Civ. App. No. 61 of 2016, David Nzaligo vs. National Microfinance Bank PLC New PDF
Civ. App. No. 61 of 2016, David Nzaligo vs. National Microfinance Bank PLC New PDF
AT DAR ES SALAAM
VERSUS
(Appeal from the Judgment of the High Court of Tanzania, Labour Division at
Dar es Salaam)
( Rwevemamu. J.^
KOROSSO. 3.A.:
High Court, Labour Division in the above mentioned Labour revision filed
filed written submissions that were adopted upon prayer to the Court by
the counsel for the parties and became part of overall submissions for each
party respectively.
2
For better understanding of the essence of this appeal we find it
signed on 30th June 2010 by both the appellant and the respondent for the
period between 1st July, 2010 and 13th January, 2011 as seen at page 59
of the record of appeal. The substance of the said contract being that NMB
PLC Banking Company (the respondent) and David Nzaligo (the appellant)
employment was 01st July 2010, and that for the first 6 months of
positively assessed.
the appellant. Thereafter, on the 13th January, 2011 the appellant tendered
CMA entered an award in the appellant's favour being satisfied that his
which led to intolerable working conditions for the appellant, and that the
ill treatment which the appellant was subjected to was within the purview
appellant by CMA and at first filed Labour Revision No. 219 of 2012 that
was later withdrawn and then applied and was granted leave to file an
amended Labour Revision, that is, Labour Revision No. 347 of 2013 at the
High Court Labour Division, Dar es Salaam which ended with a Ruling in
favour of the respondent. The High Court (as seen at page 244 of the
On the date when this appeal came for hearing, Mr. Mashaka Ngole
learned counsel for the appellant started by submitting that he had nothing
substantive to state or amplify then, and that the filed written submissions
all the four grounds of appeal and first the 1st, 2nd and 3rd grounds of
appeal were argued jointly and then the 4th ground was dealt with
separately. The counsel contended that the said grounds of appeal raise
like the appellant, who has worked for more than six months but has not
been confirmed, is not entitled to reliefs falling under Part III, Sub-Part E
the 1st July, 2010 and was to end on the 31st December, 2010, and that the
beyond the agreed time as per Rule 10(5) of the Code of Good Practice
Rules or lawfully terminated as per Rule 10(5) of the Code of Good Practice
Rules.
Mr. Ngole contended further that the judge erred in law by holding
that merely because the appellant had not been confirmed prior to
With regard to decisions cited and considered by the judge to arrive at the
findings, the counsel sought the Court to find them distinguishable bearing
in mind that facts and circumstances in those case are different from the
Authority, [2005] TLR 178 are cases which were decided prior to the
enactment of the ELRA and the Labour Institutions Act, No. 7 of 2004 (UA)
The appellant's counsel asserted that the probation period for the
appellant ended upon expiry of the six months as outlined in the terms of
contract and that ELRA does not provide for automatic extension or
renewal of the probation period, and that the law prescribes the method
and condition for extension of probation under Rule 10(5) of Code of Good
(supra), the respondent did exercise her right to extend the probation
termination the appellant was still an employee of the respondent and that
had the judge considered this provision and the facts before her, she would
not have arrived at the finding she did, since the appellant satisfied all the
section 61 of LIA.
that even if the appellant was not an employee and it is taken that he was
still under probation as found by the judge, having worked with his
Court finding that the appellant was not covered under Part III Sub Part E
section 35 of ELRA is that it is only employees who have worked for less
than six (6) months who are not covered by the said relevant provision.
The third issue which the appellant identified for determination based
on the 4th ground of appeal is whether the judge of the High Court erred
in law and fact in raising and determining the probation status of the
applicant suo motu without affording the parties the right to submit on the
same. The appellant counsel restated the cardinal principle of law that one
principle must be adhered to and then cited the decision of this Court in
John Morris Mpaki vs NBC Ltd and Ngalagila Ngonyani, Civil Appeal
that;
High Court judge heard the appellant on the issue, she would not have
reached the conclusion she did. The appellant counsel thus implored the
Court to reverse the High Court decision in Labour Revision No. 347 of
2013 and find in the appellant's favour, and in effect uphold the decision of
The counsel conceded the fact that the appellant was an employee of the
the fact that the appellant resignation from employment was on the 13th
January 2011.
raised by the counsel, first, whether at the time of resignation, that is, 13th
question of fact and since the appellant did not dispute the fact that he
was a probationer for the first six months, arguing that this can be
discerned from the appellant's statement as found in the record of appeal
Thus the counsel argued that when these statements are considered
contract between the appellant and the respondent, found under clause 2,
stating that upon fulfilment of the conditions therein the appellant was to
meant that the contractual terms were rendered unfulfilled and leads to a
entreated the Court to hold that the appellant was a probationer and not
counsel, arguing that the appellant's counsel contentions are not supported
counsel stated that this being the position, until when one is informed of
passed the interview and that this legal position maintains stability and
confirmation in employment, that practice will not only create chaos but
The counsel for the respondent when deliberating the import of Rule
before the Court, since the respective rule requires that terms of probation
question that the appellant was made aware of the terms of probation
since it was known that it will be for six months and thereafter, an
. evaluation. Contending that any delay in confirmation of the appellant after
the date of supposed expiry of six months' probation period, up to the date
the appellant was a probationer at the time he resigned and that this being
the case, Part III Sub Part E of ELRA does not cover him thus supporting
the judge's finding on this issue as against the appellant's position. The
counsel argued that the cited section 35 of ELRA does not assist the
appellant since the provision does not state that a probationer is entitled to
remedies under Part III Subpart E Sections 35-40 of ELRA. That the
employment but eliminates all employees who have worked under the
probationers).
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Regarding the concern raised that the appellant was denied the right
to be heard, specifically, that the High Court raised the issue of the
claim has no merit. The counsel undertook to distinguish the cases referred
The NBC Ltd and Ngalagila Ngonyani (supra), and argued that the
The counsel for the respondent submitted further that the issue as
determined by the High Court was not a new matter since the respondent
and the appellant had submitted on the issue before at the CMA, and thus
the judge was justified to make a decision on it. The counsel made
General (2004) TLR 162, where the Court stated that even though the
parties are bound by their pleadings where an unpleaded matter has been
argued and left for the court's determination, the court is bound to make a
identified issues. With regard to the contention that the appellant was
counsel submissions that the disputable issue was framed during the
hearing at CMA, stating that the issue on the status of probation was never
framed as an issue and thus it was a new issue framed and decided by the
judge alone. Also reiterated that the assessment of the appellant was
conducted after the expiry of the probation period and thus the appellant
that the holding in the case of John Morris Mpaki (supra) is relevant
since the right to be heard for any party is an issue of natural justice and
written submissions.
Having heard and considered both oral and written rival submissions,
we find that there are various matters which are not contentious already
presented herein above. Such facts include; the fact that the appellant was
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. employment contract and the date of signing the contract, date of start of
. employment, the six months period of probation for the appellant and date
the terms and conditions therein and also accepted the rights and duties,
starting with the first ground of appeal, we find the relevant issue to be
already stated above, there is no doubt that for the first six months of
probation of six months, starting from the 1st July, 2010 and in effect
meant it was to end on the 31st December, 2010. There is no doubt that
the appellant took part in the assessment process, and it is also a fact that
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effect we find this clause inferring that confirmation is not automatic.
Clause 2 provides:
probation meant the probation period had expired, does not hold water
bearing in mind the fact that the appellant was still under probation (a
probationer) at the time he resigned on the 13th January, 2011, he was still
import of the decision of this Court in Stella Temu (supra), that while
interview", the position in this case is that the appellant was still under
probation.
that, being on probation after expiry of probation period does not amount
probation period. This being the position, we find no reason to depart from
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the finding of the High Court on this issue. There is no evidence that the
thus move from the status he was, that of a probationer as required by the
contract of employment.
failed to fulfil the conditions set, he was still a probationer at the time he
to the 2nd ground of appeal which we will consider together with the 3rd
ground of the appeal. The gist of contention is that the appellant seeks the
Court to consider whether the fact that he was not confirmed but having
worked for over six months with the respondent, he is entitled to reliefs
falling under Part III, Sub Part E of ELRA. We find that these 2nd and 3rd
not the appellant was entitled to reliefs falling under Part III Sub E Part E
of ELRA. As already stated, the High Court was satisfied that the appellant
termination on the part of the appellant. The High Court held that the
appellant being under probation was not entitled to claim for unfair
termination.
As stated hereinabove, the High Court judge was of the view that an
allow one to see if one enjoys working with the employer and whether the
employee matches the skills and abilities for the job recruited and thus
where resignation is before " results o f the interview are out, nor there
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employment, applying this to the current appeal, we are inclined to find
appellant was still being assessed. Though without doubt the assessment
was delayed but since results of the assessment were yet to be revealed,
the probationary status was still in effect for the appellant as found
hereinabove.
shall not apply to an employee with less than 6 months employment with
the same employer, whether under one or more contract, means that a
worker with less than 6 months of employment may not bring an unfair
prior to resigning, but since the probation period was yet to be declared to
have ended, at the time the appellant was still on probation, we are of the
view that a probationer in such a situation, cannot enjoy the rights and
circumstances of the present case, can it be said that the said provision
covers the appellant's situation, since the record of appeal reveals that the
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appellant worked for more than 6 months with the same employer. We find
employment and not the status of employment, the fact that a probationer
that can be termed unfair termination. It suffices that when assessing this
This being the case, Part III SubPart E of ELRA being a part
and enjoy the benefits of the provision under dispute, that is, being
contract of service which is not the case in the present appeal. Particular
circumstances of this case lead to only one conclusion that the appellant
was still a probationer at the time he resigned and cannot benefit from
remedies under Part III E of ELRA. The 2nd and 3rd grounds of appeal
The fourth ground under scrutiny is whether or not the High Court
Judge determined the issue of the status of probation suo motu without
according the parties the right to submit on this, that is, to be heard. The
gist of the contention is that the appellant was not accorded an opportunity
to be heard on the issue of the probation status and that had the appellant
been given that opportunity, the High Court would not have arrived at the
decision they had on the said issue, while the counsel for the respondent
asserted that, this was not a new issue for the patties to consider having
adverse action or decision is taken against him/her has been stated and
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considered to be a breach o f the principles o f
naturalju stice ."
appellant was denied the right to be heard on the issue of the status of
counter affidavit sworn by the appellant filed on 29th April, 2014 as against
respondent filed on 22nd April, 2014 at pages 118 to 121 of the record of
stated that:
Apart from the above evidence there are also final submissions on
the part of the appellant and respondent which allude to this issue. We
acknowledge that the issue was not framed as such, but the contents of
the submissions at the CMA and the affidavital averments at the High
Court, reveal that the substance of this issue was argued and responded to
by the appellant.
In effect the above cited excerpts from the record of appeal illustrate
that the issue of the status of the appellant probation was in one way or
another averred in the pleadings before the High Court and thus the judge
cannot be faulted for drawing the issue for consideration when determining
the Revision related to the current appeal. Assertions that the issue was
drawn suo motu by the Urt judge does not stand since the parties
themselves raised the issue in their pleadings before the High Court which
appeal fails.
In the event, for the reasons stated hereinabove, the appeai fails in
entirety and is hereby dismissed. This being a Labour dispute matter, let
A. G. MWARD A
JUSTICE OF APPEAL
F. L. K. WAMBALI
JUSTICE OF APPEAL
W. B. KOROSSO
JUSTICE OF APPEAL
The Judgment delivered this 9th day September 2019 in the presence
of Ms. Patricia Pius Mbasa holding brief for both Mr. Mashaka Ngole
Counsel for appellant and Prof. Cyriacus Binamungu Counsel for the
Respondent.
S. J. KAINDA '
DEPUTY REGISTRAR
COURT OF APPEAL
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