THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA

SONGEA SUB-REGISTRY

AT SONGEA

LABOUR REVISION NO. 16053 OF 2024

(Originating from Labour Dispute No. CMA/RUV/SON/11/2023/07/2023, Delivered by
Hon. Hilary N.J (Arbitrator) on 24/05/2024)
ARINEITWE MOSES …….…………………….……….………………… 1ST APPLICANT
FRENK NASHON …………………………...………….….……………… 2ND APPLICANT
VERSUS

GOVERNING BOARD OF PIHAS …….………………………………….. RESPONDENT

RULING

28th November, 2024 & 6th February 2025.

KAWISHE, J.:

The applicants herein above named have moved this court under the

provisions of rule 24(1), (2) & (3) of the Labour Court Rules, 2007 (GN. No.

106 of 2007) seeking, among others, the order that this court be pleased

to call for records and examine the proceedings of the Commission for

Mediation and Arbitration at Songea (hereafter referred as CMA)

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in Labour Dispute No. CMA/RV/SON/11/2023/07/2023, which was decided

in favour of the respondent.

The facts leading to the present application are as follows: The

applicants are medical doctors by profession possessing Diploma in Clinical

Medicine. That from 27/10/2021, the applicants worked as assistant tutors

at the respondent’s education institution known as Peramiho Institute of

Health and Allied Science (PIHAS) located at Peramiho within Songea

District. According to their employment offer, they were given a probation

period of six months, with the condition that they will be given employment

contract after the expiry of the probation period. Their probation period

expired on 27/04/2022. Nothing was done but the applicants continued

working with the respondent and they were paid their allowances until

December, 2022 when their allowances were cut off. They made some

follow ups to the respondent’s management staffs including the

respondent’s bursar without success. It was on 17th January, 2023, when

the applicants wrote a letter to the respondent’s principal asking for

clarifications as to why their December, 2022 salaries were not paid and

the same was replied on 26th January, 2023, while they resigned from their

positions on 23rd January, 2023, on the ground of constructive or forced

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termination, that the respondent who created an intolerable working

environment which necessitated the applicants to resign from their

positions.

Thereafter, on 27th January, 2023, before being served with the reply

letter from the respondent’s principal, the applicants filed a complaint

before the CMA at Songea. In their complaint they alleged that the

respondent has forced them to resign from their positions and prayed to be

paid a total of TZS 22,271,926.00 being the two months salaries, notice of

termination, severance payment, annual leave and compensation which is

equal to 12 months’ salaries. The applicants also prayed to be given

employment letter and Certificate of Service.

The CMA found that there was no constructive or forced termination.

It was found that, the applicants were only part time tutors and ordered

them to be issued with the Certificate of Service after their resignation.

Dissatisfied with the decision of the CMA the applicants have approached

this court by way of application for revision raising the following issues.

i. Whether the arbitrator was correct to uphold that there was no

constructive termination of employment contract that made the

applicants to resign.

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 ii. Whether the arbitrator was correct in ordering the applicants to be

given only the Certificate of Service on the ground that they were

part time tutors.

The applicants prayed for this court to revise and quash the arbitral

award issued by the CMA and order for the applicants to be paid their

reliefs sought before the CMA. As it was before the CMA, both parties were

represented in this application. While the applicants were represented by

Mr. Edmund Alois Nditi, the respondent was represented by Mr. Frank J.

Ngafumika, learned advocate.

By the parties’ consent, the application was argued through written

submissions. Both parties complied with the scheduled orders and filed

their submissions accordingly.

Arguing in support of the application, Mr. Nditi contended that, the

applicants were fully employed by the respondent on 27/10/2021 and on

the first six months’ probation period they were paid TZS 400,000.00 and

after the expiration of that period they were paid TZS 684,480.00 per

month. That they were paid that amount until December, 2022 when the

payments were cut off despite the fact that they were still working with the

respondent. That following the respondent’s refusal to pay salaries they

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made some efforts claiming to be paid but all proved failure as a result on

23rd January, 2023, they wrote a resignation letter due to intolerable

environment created by the respondent by refusing to pay remunerations

which was accompanied by vague statement made by the respondent’s

secretary against the applicants.

Mr. Nditi went on submitting that, the respondent’s conducts forced

the applicants to resign from their position, alleging that there was forced

termination. That following that termination they filed labour dispute

before the CMA. On 26th January, 2023, the respondent wrote an

apologizing letter to the applicants on what has happened and asked them

to send their complaints to the respondent’s bursar for the payment of

their claims. He added that, in her letter, the respondent acknowledged

that the applicants were bonafide tutors of the respondent. Since the

applicants had already resigned and referred their dispute before the CMA,

they never heeded to the request made by the respondent and the matter

proceeded before the CMA. At the end the applicants were only awarded

with the Certificate of Service and all other claims were dismissed on the

ground that the applicants were not employees of the respondent but were

part time tutors. Mr. Nditi argued that, the evidence given by the

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respondent clearly shows that the applicants had employment contract

with the respondent. He also criticized the CMA basing on the fact that, by

considering the guidelines issued by NACTE, the applicants were not

eligible to be employed on the claimed positions since those evidence were

only given by the respondent during final submission which was not a

proper avenue of presenting a new piece of evidence.

On the issue of whether there was a constructive termination, Mr.

Nditi referred to the provisions of section 36(a) of the Employment and

Labour Relations Act (Cap. 366, R.E 2019) and rule 6(4) (a & b) and 7 (1)

of the Employment and Labour Relations (Code of Good Practices) Rules,

2007 and argued that, the evidence given by the respondent proved clearly

that there was constructive termination of employment. To bolster his

argument, he cited the decision of the Court of Appeal made in the case of

Kobil Tanzania Limited vs. Fabrice Ezaovi, Civil Appeal No. 134 of

2017 in which the Court cited with approval the decision of Labour Court of

South Africa in the case of Solid Doors (Pty) Ltd vs. Commissioner

Theron & Others, (2004) ILJ 2337 (LAC). He insisted that, in the present

application, the respondent made the working environment intolerable for

the applicants to continue working with the respondent as a result, they

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were forced to resign from their positions. He prayed for the decision made

by the CMA to be revised and the applicants be awarded with the prayers

made before the CMA.

In his short and brief reply, Mr. Ngafumika argued that, this

application is misconceived and it is devoid of merits. He submitted that,

for one to allege there was constructive termination, the employee must

establish that he/she terminated an employment contract with the

employer. He added that, in this application there was no proof that there

was an employment contract between the parties and the applicants

cannot be heard to have terminated employment contract. He added that,

the applicants had no employment contract with the respondent after the

expiry of the probation period of six months but they worked as part time

tutors and they were paid allowances and not salaries. He amplified that,

the applicants were paid their allowances after filling special forms and the

two months which were not paid, they failed to fill the relevant forms for

their payment to be effected.

Mr. Ngafumika referred this court to the decision made in the case of

Edward Jonas vs. Tanzania Breweries Ltd, Civil Appeal No. 394 of

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2020 (unreported) and insisted that, this application is devoid of merit and

prayed for this court to dismiss it.

In a terse rejoinder submission, Mr. Nditi criticized the respondent’s

counsel submission that, the applicants were part time tutors and they

were paid their salaries upon filling the payment forms, something which

was not testified or made known before the CMA. In respect to the parties’

relations in this application, he averred that, the applicants had a full-time

employment contract and not part time as submitted by the respondent’s

learned counsel. He added that, after the expiry of the probation period,

the applicants remained to be full time tutors and they were paid their

salaries except for the last two months before they resigned. Mr. Nditi

insisted that, the applicant’s resignation was forced by the respondent’s act

not paying salaries to the applicants. Lastly, he reiterated his prayer made

in submission in chief.

I have carefully followed the opposed submissions made by the

applicant’s representative and the learned counsel for the respondent,

gone through the prayers made by the applicants in this application and

perused the original records from the CMA, now this court is called to

determine on the merits or otherwise of this application.

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 At the outset, I hasten to state that, the submission made by both

parties and the available records speak for themselves that the applicants

used to work with the respondent since 27th October, 2021 to the date

when they resigned that is on 23rd January, 2023. What is in dispute is

whether the applicants were employed in a full time or part time

employment contract. In respect to the circumstances of the matter at

hand and having considered the prayers made by the parties, the issue of

whether the applicants had a full time or part time employment contract

needs to be looked at. In my view, the issues which this court is asked to

address are only two. The First is whether there was constructive

termination of employment contract and the second is what are the

available reliefs.

Starting with the first issue, the term constructive termination is

provided under rule 7 (1) of the Employment and Labour Relations (Code

of Good Practice) Rules (supra) provides as follows:

“7 (1) Where employer makes an employment intolerable which may

result to the resignation of the employee, that resignation amounts
to forced resignation or constructive termination.”
In the instant application, the applicants have the view that, their

resignation in their posts was due to the respondent’s refusal to pay

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salaries which made the working environment intolerable. On that respect,

my starting point will be on section 36 (a) (ii) of the Employment and

Labour Relations Act (supra). The provision reads as follows

“For purposes of this Sub-Part-

(a) “termination of employment” includes-
(ii) a termination by an employee because the employer made
continued employment intolerable for the employee;”.
Now, the issue is whether the respondent caused the applicants to

resign? To address this question, I have to make a clear scrutiny of the

relevant law. Rule 7 (2) (i) & (ii) of the Employment and Labour Relations

(Code of Good Practice) Rules (supra) provides as follows:

“Subject to sub-rule (1), the following circumstances may be

considered as a sufficient reason to justify a forced resignation or
constructive termination.
i. Sexual harassment or the failure to protect the employee
from sexual harassment; and
ii. If an employee has been unfairly dealt with, provided that
the employee has utilized the available mechanism to deal
with grievances unless there are good reasons for not doing
so.”
Having gone through the cited provisions, to have a clear

understanding, I have been compelled to seek interpretation guidelines

from court decision in our jurisdiction and outside our jurisdiction. To be in

a position to make a rational decision, I wish to borrow the reasoning

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made in Katavi Resort vs. Munirah J. Rashid [2013] LCCD 161, where

five criteria to be considered in deciding on whether there is constructive

termination were articulated. Those criteria were approved by the Court of

Appeal in the case of Kobil Tanzania Limited vs. Fabrice Ezaovi

(supra). Those criteria are: One, did the employee intend to bring the

employment relationship to an end? Two, had the working relationship

became so unbearable objectively speaking that the employee could not

fulfill his obligations to work? Three, did the employer create an

intolerable situation? Four, Was the intolerable situation likely to continue

for a period that justified termination of the relationship by the employee?

Five, was the termination of the employment contract the only reasonable

option open to the employee?

By analogy, taking into consideration the circumstances of the

present application, I find the first criteria is answered in the affirmative. It

is clear from the records that, the applicants really wrote letters informing

the respondent that they are resigning from their positions within twenty-

four (24) hours. Reading their letters, I have no doubt that they had

intention of bringing their employment contract with respondent to an end.

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 Turning to the second criterion whether the working relationship

between the applicants and the respondent became so unbearable, that

the applicants could not fulfill their obligations, the applicants’ reason for

their resignation is said to be the respondent’s refusal to pay salary to the

applicants and the use of vague words by the respondent’s secretary

against them that they were no longer employees of the respondent. I

have made a critical scrutiny to the available evidence and found that, in

several occasions before their termination the applicants used to request

for the payment of unpaid salaries from the respondent. The claims were

for more than one month and they still worked with the respondent. Also,

it is in the records of the CMA that, apart from the salaries which the

applicants were paid, they were given residential houses whereas, water

and electricity bills were paid by the respondent. The applicants also

admitted to have received a letter written by the respondent’s principal

giving directions on how they can be paid their claims. This indicates that,

there were ongoing mechanisms and the respondent was ready to pay the

applicants’ claims. From all those facts, I find it is difficult to rule that, the

working environment was unbearable. Therefore, the second criterion is

answered in the negative.

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 Banking on the second criterion in determining this application, the

answer to the same showed that, the working environment was not

intolerable. As a result, the third and fourth questions do not arise.

Testing the fifth criterion in determining on whether there was

constructive termination the provisions of rule 7 (2) (i) & (ii) of the

Employment and Labour Relations (Code of Good Practice) Rules (supra)

are relevant. The rule sets the condition that, in order for constructive

termination to exist, the employee’s act to resign must be one of last

resort. It must be taken when there is no any other means of resolving the

dispute at the work place. Failure to exhaust the available procedures may

lead the adjudicating body to reject the claim of constructive termination.

Borrowing leaf from other jurisdictions, in the case of Foschini Group vs.

Commissioner for Conciliation, Mediation and Arbitration & Others

(2008) 29 ILJ 1515 (LC), the Labour Court of South Africa had this to state

in respect to constructive termination:

“Where an employee resigns and claims a constructive dismissal

under circumstances where he did not avail himself of an available
grievances’ procedure or the mechanisms for dispute resolution
provided for in the Labour Relations Act, he will have to show very
compelling reasons why he failed or refused to follow the procedures
available to him prior to resignation”.

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 Guided by the excerpt quoted while looking at the application at

hand, it is in the applicants’ testimonies that, they orally communicated

with the respondent’s bursar and secretary without success and finally they

wrote a letter to the respondent’s principal who replied them that they

were recognized as employees of the respondent and they must send their

claims to the bursar for the payment. Instead of following the procedures

given by the respondent’s principal, the applicants filed a complaint before

the CMA demanding that there was constructive termination. Their reason

as to why they failed to follow what was directed by the respondent’s

principal is the fact that, they had already filed labour dispute before the

CMA when they were served with the letter from the respondent’s

principal. In my view, filing a labour dispute before the CMA cannot be a

good reason making the applicants unable to follow the directives to settle

the complaint. Under such circumstance, I do not hesitate to state that,

their resignations were without a good reason. They resigned while there

was still a room for solving their dispute without resignation. Thus, this

court finds there is no cogent reason to fault the decision made by the

CMA that, constructive termination was not proved and the first issue is

answered in the negative.

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 The second issue is on the remedies available in this application.

From what has been stated herein above, there is no dispute that, the

applicants were employees of the respondent regardless of the form of

employment. Also, it is clear that, they were paid monthly allowances of

TZS 684,480.00 and the applicants were not paid two months allowances

before they resigned. As depicted above, their resignation was voluntarily

made and did not abide to the statutory requirements provided under the

law. Bearing in mind that, the applicants claim for constructive termination

failed, the only remedy is for the unpaid allowances.

Given the finding reached, what is the way forward? According to

section 41 of the Employment and Labour Relations Act (supra), the

applicants were required to give notice notifying the respondent that they

were terminating their employment stating the reasons and date of the

notice. It is a settled law that in leu of one-month notice, the party

terminating the employment has to pay a one-month salary. Analyzing the

procedures opted by the applicants, it is crystal clear that they did not

abide to the statutory requirements. This can be observed in their tendered

exhibits P6 and P5 which show that the applicants issued the notification of

forced resignation on 23rd January, 2023. The applicants’ notifications are

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replica of each other. For the sake of clarity, I wish to quote exhibit P6

which states:

“That following that Notification, I give your Office Three days to pay
my Terminal dues that will be attached with this letter hereunder as
the Termination has been constructively made by your Office.”
The available records show that the respondent replied to their

claims on 26th January, 2023. This is shown under exhibit P7 tendered

before the CMA. The respondent’s letter requested applicants on two

issues, I wish to quote:

“Gather all the relevant documents for your claims of salary and submit to the
bursar’s office for further processing your due payments. Lastly, collect all
your relevant documents to support your employment claims and submit them to
the office of the Interim Care Taker, who on behalf of the governing body (the
employer) is entrusted with all major decisions pertaining employment issues.”
[Emphasis added].
After having carefully observed the applicants’ notification and the

response from the respondent, I am of the view that, the respondent’s

requests were to be followed by the applicants in order to know their fate.

I have failed to apprehend the intention of the applicants opting for

litigation in place of following the instructions of the respondent. For a

reasonable man’s logic, litigation would have been preferred after the

outcome of the respondent’s request has been followed and proved to be

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unsuccessful. The records available show that, the applicants did not

honour the respondent’s request. The CMA’s judgment at page 19 show

that the applicants received the respondent’s letter on 26th January, 2023

and filed their claim on 27th January, 2023.

Just considering the matter deeply, it can be implied that, since the

applicants’ notifications demanded action within three days, and the

respondent replied after ten days, their patience left for vacation. In my

view, the ten days taken to respond, was reasonable time given that an

institution has procedures to respond to claims like the one at hand, this is

in line with the explanation given in the respondent’s letter. Also, it is a

considered view that, if there was an unreasonable delay in replying to

their claim, it was wise to write a reminder to the respondent.

Although, there was an option to settle the matter within the

mandate of the respondent, the applicants preferred the hard way. It is

well known that, remedies available in settling a dispute have to be

exhausted before opting for adjudication. This was well stated by the Court

of Appeal in the case of Kobil Tanzania Limited vs. Fabrice Ezaovi

(Civil Appeal 134 of 2017) [2021] TZCA 477 (16 September 2021), where

the Court stated:

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 “To recap, we find that the respondent's act of resignation was not
one of last resort. He did not prove any condition that made the
employment unbearable. He did not exhaust the dispute resolution
mechanism at his disposal. His resignation was out of the blue, so to
speak, and did not disclose the reason for taking that course. His
employer, through Mr. Segman, was ready to discuss the matter
with the respondent but the latter did not give the former the
opportunity to remedy the situation. His resignation was thus
tendered while there was still room for solving the problem without
resignation. Constructive dismissal was not proved.”
This authority cited has similar circumstance as the application at hand.

The position set by the Court of Appeal is binding on this application. The

applicants had a room to discuss the matter with the respondent instead of

resigning and institute the claim as they did. Given the approach preferred

to by the applicants, it is unfortunate that, it has proven to be futile. The

applicants claimed that they became permanent employees upon the

expiration of the probation period. A fact which was disputed by the

respondent that they were not permanent employees and were being paid

allowances upon filling in prescribed forms. That, they should fill the forms

and be paid their allowances. In my view, the respondent is not disputing

their allowances to be paid, provided that they fulfill the requirements

stated. Taking from their allegation that they were permanent employees

then, the applicants were required to follow the statutory requirement of

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giving notice as prescribed by the law before resignation. Instead, the

applicants issued a three days’ notice to the respondent. Consequently,

they did not abide to the principle that the notice was to be for one-month

before resigning. Failure of which, they were to give to their employer one-

month salary in lieu of the statutory notice. Accordingly, if it is agreed that

they were permanent employees they should have given one-month salary

to their employer in lieu of the one-month notice. Thus, since they are

claiming a two months’ salary, one-month salary should be deducted from

the unpaid salary and each applicant is entitled to be paid only one-month

salary. However, the records available do not show that they were

permanent employees as they were being paid as per assignment. The

records show that, they had to fill in forms in claiming their payments.

At this juncture, I find it imperative to define the term employee,

section 4 of the Employment and Labour Relations Act (supra) states that:

“employee” means an individual who -

a) has entered into a contract of employment; or
(b) has entered into any other contract under
which—
(i) the individual undertakes to work personally for the other party to
the contract; and
(ii) the other party is not a client or customer of any profession,
business, or undertaking carried on by the individual; or … “

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From the provisions of the Act, for a person to be recognized as an

employee should have a contract with the employer. Apart from the

respondent’s repudiation that the applicants were not permanent

employees, I think, a permanent employee should prove the following:

(1) Appointment letter.

(2) Confirmation of the employment.

(3) Contract for employment.

(4) Salary deducted for contribution to social security fund.

(5) Employer’s contribution to the social security fund.

(6) Monthly salary.

(7) Pay as you earn – tax.

The applicants tendered only the appointment letter which informed them

of their appointment with a condition that upon satisfaction at the end of

the probation period, they would be offered with a contract for permanent

employment. Both the applicants and the respondent submitted that the

contract was not issued neither signed between the applicants and the

respondent. So far, no proof to show that they signed the contract, no

confirmation letter, no evidence that contributions were submitted to the

social security fund neither proof of monthly salary paid to them. That

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being the case, I see no cogent reason to disturb the order given by the

CMA of awarding the applicants with Certificates of Service as they did not

prove that they were permanent employees and that their resignation was

a constructive one.

The records available show that, all parties agree that there are two

months allowances due to the applicants however, the respondent under

paragraph 4 of his counter affidavit and the reply to the applicants’

submission contended that, the applicants should have proved the work

they did so that they could be paid their allowances. In contradiction, the

respondent’s letter dated 26th January, 2023 admitted and marked as

exhibit P7 replying to the applicants’ claim for payment admitted and

marked as exhibit P12 required the applicants to gather relevant

documents on their claim for salaries and submit to the bursar’s office. The

wording of the respondent’s letter shows clearly that, the applicants’ claim

was recognized. If not so, the respondent could have not requested them

to submit documents to the bursar’s office for payment processing.

Instead, as the principal of the respondent/institution should told them the

reasons for paying them their allowances.

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 In the event, from what I have endeavored to discuss herein above, I

find the application is partly allowed to the extent that, the applicants are

entitled to two months’ allowances and the certificates of service. This

being an employment dispute, I make no order as to costs.

It is so ordered.

DATED and DELIVERED at SONGEA this 6th day of February,

2025.

E. L. KAWISHE

JUDGE

COURT: Ruling delivered in the presence of Mr. Edson Mbogoro

advocate holding brief for Mr. Frank Ngafumika, advocate and in the

presence of Mr. Edmund Alois Nditi, applicants’ representative.

Right of appeal explained.

E. L. KAWISHE

JUDGE

06/02/2025

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