IN THE HIGH COURT OF THE UNITED REPUBLIC OF

TANZANIA LABOUR COURT

AT PAR ES SALAAM

[FULL BENCH: R.E.S. MZIRAY, J., I.S. MIPAWA, J., L.L. MASHAKA, J.)

REVISION NO. 25 OF 2010

BETWEEN

FELICIA MIGOMBA..................................................... APPLICANT

VERSUS

CRDB BANK...................................................... ....... RESPONDENT

(From the original decision of the Industrial Court, Hon. C.E.R. William, Deputy Chairman,
dated 15/12/2009Trade Enquiry No. 45 o f2006)

JUDGMENT
03/03/2015 & 09/02/2016

Mipawa, J.

Felicia Migomba hereinafter referred to as the applicant was

dissatisfied by the decision of the Industry Court of Tanzania1 (ICT which is

now defunct) in Labour Dispute No. 45 of 2006 the applicant had filed a

trade dispute against her erstwhile employer namely CRDB Bank Limited2

(herein nomenclature as respondents). Dismissing the trade dispute Hon.

William Deputy Chairman of the then Industry Court of Tanzania stated

that the applicant was neither terminated, dismissed or retrenched and no

steps were taken by the employer, that is to say, no disciplinary action was

Established by section 16 of the Industrial Court of Tanzania Act Cap. 60 RE. 2002 Principal Legislation [1st
December, 1967] now repealed
2 CRDB refers to Cooperative and Rural Developm ent Bank
leveled against her. The applicant was not entitled for the payments she

had claimed before the Court3 (Industrial Court of Tanzania).

The above decision sparked and fuelled the applicant's desire to

challenge the same and hence this revision application filed by the

applicant under, section 20 (1) and (2) of the Industrial Court Act Cap.60
R.E 2002.

In order to understand or comprehend the background of this matter

we. are contrived, albeit in a nutshell to state the facts.

The applicant had transferred her services from the National Bank of

Commerce to the Respondent Bank in 1984 after the later Bank started

commercial banking services. She joined as a Bank Clerk and elevated to

various position till to the position-of Departmental Manager in 19944.

In the year 1998 December 18th the applicant applied for a one year

study leave which was responded by the respondent's letter of 31/12/1998

that the applicant was at liberty to go for her studies5, with the

consequences on her employment that she would be retrenched effective

from 01/01/19996 and that upon finalization of her studies she would have
needed to apply for employment with the respondent7.

3 Industrial Court Ruling and Aw.ard at p. 6

4 Applicant's w ritten subm ission before this Court at p. 1 paragraph 1
5 Respondent's w ritten subm ission before the Court at p. 2 paragraph 3
6 ibid p. 2
7 ibid
2
 The letter of respondent to retrench the applicant caused her to

change the trend of her education plan and took unrelated course with the

respondent's Business, as she knew that she was no longer the employee

of the respondent. However in April 9, 1999 the applicant received a letter

from the respondent to the effect that her employment was restored. The

applicant wrote to the respondent thanking it for restoring her to the-

payroll. She also informed the respondent that because of the

retrenchment she had to change her planned studies which would end in

20018.

The applicant after completing her studies of Master of Business

Administration in International Banking and Finance, she returned to

Tanzania. The respondent then require her to undergo an interview for the

Post of Bank Officer. Nevertheless the applicant refused to undergo the

interview allegedly because the Bank Officer position was lower in grade

than the departmental manager the post she had reached9. Hence the

beginning of the dispute.

The dispute finally reached the Labour Commissioner who by his

letter of March 28, 2006 issued under section 8 (a) of the Industrial Court

Act Cap. 6010 required the Court to investigation and reach on the decision

of the issues framed by the Labour Commissioner. The framed issues went

sop. cit note 5 at p. 1

9 op. cit note 5 at p. 1
S. 8 (a) of Cap. 60 "the Labour Com m issioner may, w here any dispute exists or is apprehended, w heth er or not
the trade dispute is referred to him under the provision of this Act (a) inquire into the cause and circum stances
of the dispute and refer to the Court any m atter appearing to him to be connected with or relevant to the
dispute"
3
into Kiswahili language like this:-
(a) Kama mlalamikaji aliachishwa/alifukuzwa/alipunguzwa kazi
kihalali. If the complainant was terminated,
dismissed or retrenched legaily.
(b) Kama taratibu za kisheria zilikiukwa kaitka
kumfukuza/kumwachisha/kumpunguza kazi. Whether
procedures, according to law were not follow ed in
dism issing/term inating/retrenching the employee.
(c) Kama madai yake anayodai ni ya msingi. I f her claim s are
basic.
(d) Mambo mengine yatakayojitokeza katika shauri hili kadri
Mahakama itakavyoona inafaa. Any other re lie f (s) the
Court may give in the award (bolded words our
translation).

In answering the first issue the Learned Deputy Chairman ruled th

the act of the applicant to continue with her studies from 1998 - 20(

without the employer's permission’ was a breach of the contract. Tf

applicant had applied for a study leave of one year and not six years.
Therefore the applicant complainant was not terminated, dismissed or

retrenched and that there were procedure faulted because no steps were

taken against her (disciplinary steps)

...Hadidu rejea ya kwanza ni kwamba mlalamikaji
hakuachish wa/hakufukuzwa/hakupunguzwa kazi.
Hadidu ya rejea ya piii (b) kama taratibu za kisheria
 zilikiukwa katika kumfukuza kazt\
kumwachisha/kumpunguza kazi. Nimeshaamua hapo
juu kwamba mlalamikaji hakuchukuliwa hatua zozote na
mwajiri hivyo hakuna kilichokiukwa11

Deciding the last issue whether the applicant's claims in the Court

were tenable and basic one, the Learned Deputy Chairman dismissed as no

sense the complainant/applicant claims before the Industrial Court. The

complainant applicant had requested the Courts to order the employer

Respondent pay her the following:-

(i) Mishahara yake yote toka alipoondolewa kwenye payroll
na aende/ee kupokea mishahara na marupurupu yote
kwa viwango vya sasa. (To be paid her salaries due
from when she was removed in the payroll in the
current payment).
(ii) 50,000,000/= Tzs kwa usumbufu alioupata.
(50,000,000/= as disturbance he got since).
(Hi) 100,000,000/= kwa ajili ya maumivu na mateso
kisaikolojia aliyoyapata. (To be paid 100,000,000/=
Tzs fo r psychological torture he got).
(iv) Fidia Tzs 20,000,000/=. (Punitive damages Tzs
20, 000, 000/=).

(v) Riba ya viwango vya Mahakama12. (Interest at the

Court's rate).

Act ruling op. cit note 3 at p. 6 per W illiam Deputy Chairm an

Complainant's claims before the Industrial Court of Tanzania against the Respondent as quoted from the ruling
of the Industrial Court p. 6
 The hearing of this revision before us was by written submissions.

The applicant was represented by Mr. Mhango, Learned Counsel while the

respondent-enjoyed the services of Mr. Lyimo, Learned Advocate. In his

submission the applicant's counsel submitted that the applicant had applied

for a one year leave to enable her to go for further studies. The

Respondent retrenched her instead by his letter of December 31st 1998,

exhibit FM413. The applicant knew therefore that she was free to pursue
her studies unrelated to what she had originally intended to pursue since

was no longer an employee of the Respondent14.

However soon after she had started her studies the Respondent
wrote to her restoring her to the payroll in employment parlance by his

letter of April 9, 1999 the Respondent now approved the applicant's leave

with pay. The Respondent letter of April 9, 1999 made the applicant to

study related studies to the banking business15.

According to. the applicant, the respondent had withdrawn his letter
of retrenchment, and*instead been granted leave with pay until she

finished her studies. She submitted that the claim by Mr. Kingazi that the

applicant had been given leave up to December 31, 1999 is not supported

by any evidence from the Respondent.

The applicant further submitted that being deleted from payroll is

capable of many interpretation but not dismissal, it may mean also leave

13 Applicant's written subm ission Revision No. 25 of 2010 at p. 2 para 6

14 ibid
15 ibid p. 2 para 7
6
without pay. An employer must state specifically whether an employee is

being retrenched terminated or dismissed16. She submitted that the

Learned Deputy Chairman relied heavily on what Mr. Kingazi had said

despite the fact that at no time did the respondent dismissed or terminated

the services of the applicant, and to say that the applicant should be taken

to have caused her own dismissal by not returning to work on December

31, 1999 is to express’an opinion17.

In conclusion the applicant submitted that the Deputy Chairman did

not explain why she came to the conclusion that the applicant was the

cause of her own misery18.

That the respondent's letter of January 20, 2000 deleting her from

the payroll had the effect of either granting her leave without pay or

retrenching her from January!., 2000. The applicant was therefore entitled
to her terminal benefits.

The respondent in his written submissions argued that the revision

filed by the applicant was time barred because there had passed 56 days

from the date of judgment to when the revision was filed on 19/05/2010,
contrary to the relevant provision of the law which require that a revision’

against the decision of the Court be filed within 14 days from the date of

the decision or the date the proceedings are ready for collection. He

submitted that the record shows that the proceedings were certified on

16 ibid at p. 3 para 8
17 ibid at p. 3 para 9
18
ibid para 10
7
22/03/2010 ready for collection, but for reasons best known to the

applicant, the proceedings were not collected until on 05/05/2010. The

respondent was able to collect them on 12/04/2010.

Submitting further, the respondent argued that they support the

decision of the Learned Deputy Chairman of the Industrial Court that the

applicant wa.s neither terminated, dismissed and or retrenched by the

respondent, but due to her acts and omission dismissed herself from the
Respondent's employment.

That the Applicant vide her letter dated 18/12/1998 applied

for one year study leave. The application was responded to by the

respondent vide his letter dated 31/12/1998 to the effect that the applicant
was at liberty to go for her -studieswith the consequences on her

employment that she would have been retrenched effective from

01/01/1999 and that upon finalization of her studies she would have

needed to apply for employment with the respondent.

The applicant did not respond to the respondent's letter aforesaid

but proceeded with her studies abroad. Since the applicant's initial

application of 18/12/1998 was for a study leave with salary payment, and

as.there was no response from the applicant to accept the respondent's

terms contained in the letter dated 31/12/1998, the respondent out of

respect and consideration for the applicant's request, revisited his decision

to retrench the applicant and on 09/04/1999 the respondent wrote a letter

to the applicant, withdrawing his letter of 31/12/1998 and allowed the

applicant to proceed with her one year study leave. She was also

restored to the payroll and requested to return back to the office

upon completion of her studies as initially requested. The applicant

continued to be the employee of the respondent and received her salary

from the respondent.

The respondent further submitted that the applicant's acceptance of

the respondent's terms and conditions of the respondent as contained in

the respondent's letter dated 09/04/1999 read together with the applicant's

letter dated 18/12/1998 essentially meant that the applicant was required

to return to his employer after her one year study leave which expired on

31/12/1999. But the applicant arrogantly and without any explanation did

not report to the respondent's office on '01/01/2000. The applicant's

request to have her study leave extended for one year was refused by the

respondent vide his letter of 20/01/2010. There is nowhere the applicant

had applied for five year study leave which would have justified the

applicant's absence from his employment up to March, 2004.

Submitting further the respondent argued that when the applicant

attempted to return to the respondent vide her letter of 02/03/2004, she

indicated that she was referring to the respondent's letter dated

02/04/1999, that she was reporting back to the office after completing her

studies as per the letter referred to above (respondent's letter dated

09/04/1999).

9
 The respondent's letter referred to above allowed the applicant to

undertake her one year study leave and report back to the office onf

01/01/2000, it did not permit the applicant to be absent from the

Respondent's office from 01/01/2000 to 02/03/2004.

The applicant has never explained as who permitted her to be out of

her employment from 01/01/2000 to 02/03/2004. It was under such

circumstances that the respondent considered the applicant long absence

without permission as an act of absconding and hence the applicant has
therefore dismissed herself from the respondent's employment.

In conclusion the respondent submitted that the applicant in her

submission has dwelt much on what transpired from 18/12/1998 when the

applicant applied for a one year study leave to 31/12/2000 when the leave

of absence granted had expired. The applicant has not explained what

transpired from 01/01/2000 to 02/03/2004 when she returned and

reported back to the Respondent.

That therefore the respondent strongly object the applicant final

prayers in the sense that there is no legal justification for the Court to

consider the applicant as having been terminated or retrenched on

01/01/2000 because on the said date the applicant was required to report

back to the office but absconded without any notice. The applicant has

abandoned the employment for about four years and consequently

dismissed herself from the respondent's employment and as such she is

not entitled to any terminal or retrenchment benefits.

10
 In rejoinder the applicant submitted that, as regard to the alleged

time barred of the revision, it is the duty of the Court to inform an

intending appellant or applicant when the documents are ready for

collection. The practice is that once the documents are ready the applicant

is informed in writing and the date on which the applicant received the said

letter is noted. The certificate of delay is issued by the Registrar. The

applicant herein was issued with the documents on May 5, 2000. She

signed for then. The application itself was filed on May 19, 2010. That

was 14 days from the date the documents were collected.

The applicant further rejoined that the letter of December 31, 1998

informed the applicant that she was free to go for studies and that she was

retrenched. She therefore had no reason to reply to that letter. The fact

that she left the office for the last time on December 31, 1998 meant that

she agreed with what the respondent said. The reason for the decision

contained in its letter of April 9, 1999 was no act of respect but realization

by the respondent that it had made an error in retrenching her. It restored

the applicant from January 1st, 1999 to date the applicant completed her
studies (ie. in the year 2004).

She argued further that the respondent meant to frustrate her. (The

applicant) on December 18, 1998 she applied for one year's study leave.

On December 31, 1998 the respondent replied by retrenching her from

that date. When the applicant left the office on December 31, 1998 she
was a free agent and yet on April 9, 1999 the respondent restored her to

li
the payroll. The respondent did not have the courtesy of finding out what

she had been doing between January 1, 1999 and the date in April 1999

when she received the respondent's letter. When she told the respondent

the date she intended to complete her studies, she ended up being

removed from the payroll.

And when she finally showed up at the respondent's office she was

being forced to undergo an interview for a post that was below the one she

had held before she went for studies. At no time the respondent ever

wrote to the applicant that she was dismissed.

f

The two Gentleman Assessors of the Court opined as follows,

assessor from the Association of Tanzania Employers opined that the

decision of the Industrial Court was made on 24/12/2009 and the revision

was filed on 19/05/2010 without any explanation of the delay of 56 days

which is contrary with the provisions of the existing laws therefore the
revision is time barred.
.4

On the merit of the revision, the Gentleman Assessor went on to

opine that the record indicates that the applicant requested a permission

for a one year study leave in the United States of America from 01/01/1999

to 31/12/1999 but intentionally, the applicant overstayed for another four

years until March 2004 with no sufficient reasons and explanations about

her whereabouts. Therefore she absconded herself from duty and in that

sense dismissed herself from respondent's employment. He continued

thus:-

12
 ...The Respondent initially had made a mistake after
retrenching the applicant on 31/12/1998 while he had
already given the employee a permission for a one year
study leave in the USA but later the respondent
withdraw the letter for retrenching the applicant from
01/01/1999 and allowed the applicant to'proceed with
her one year study leave up to 31/12/1999 ...the
applicant's demand to be paid terminal or retrenchment
benefits has been proved to be fruitless and unrealistic
because she absconded from the respondent's
employment herself...

He concluded therefore that the applicant's revision be dismissed for

lack of merits.

" Mshauri Muungwana" (Gentlemen Assessor), from TUCTA - Trade

Union Confederation of Tanzania Mr. Mwakyembe opined more or less like

Mr. Mgomba from ATE, Association of Tanzania Employers that the

applicant deserted the employer for a period which she decided herself

from the year 2000 to 2004 and denied the employer his right to what Mr.
Mwakyembe called "control test on the point of hours of work".

That since the applicant decided to overstay contrary to the time she

had agreed with the employer for a permission of one year which ended in

December 1999, then the applicant was acting or attempting to put herself

in the position of "an independent contractor" because she was leading

herself instead of being led by her employer. The revision has no merit.

13
 We have carefully read the submission of both parties in ex-

abandunt cauteia (with eyes of caution or extreme caution) and duly

considered the opinion of the two Gentlemen Assessors of this Court. In

lim ine (at the outset), we entirely and respectfully agree with the two

gentlemen assessors that the applicant had a b -in itio n (from the

beginning) requested a permission for a one year study leave, as the

record shows, in the United States of America from 01/01/1999 to

31/12/1999. The applicant overstayed for another four years until March

2004 without prior permission of the employer respondent and with no

reasons whatsoever from the applicant for the overstay.

We agree also that the respondent did make a mistake after

retrenching the applicant on 31/12/1998 without due regard to the fact

that he (employer respondent) had initially permitted theapplicant a one

year study leave. However we have observed that the respondent

employer realized the mistake of retrenching the applicant and hence the*
withdrawal of the retrenchment letter by the employer in respect of the

applicant form 01/01/1999 and permitted the employee applicant to

proceed with her one year study leave up to 31/12/1999. On this aspect

we do not agree with the applicant that after the respondent employer had
withdrawn the letter of retrenchment, then the applicant was allowed or
granted leave with pay until she finished her studies in the year 2004. The
record is clear that the applicant was allowed to proceed with her one year

study leave which ended on 31 December 1999 according to the

respondent's witness one Mr. Kingazi.

. ■ 14
 The applicant decided on her own volition to extend her study leave

up to the year 2004 instead of the agreed year of study which ended in

‘December 1999. Indeed the applicant did not give any reason for being on

"study leavd' beyond the agreed terms of one year only and overstayed for

four years! We agree and share hands with the wise Gentlemen assessors

and the Learned Deputy Chairman of the Industrial Court that the applicant

act was tantamount to absenteeism. The wise Gentlemen Assessor from

the Association of Tanzania Employers (ATE) put it that the applicant had

absconded herself from duty while the wise Gentlemen Assessor from the

Trade Union Confederation of Tanzania (TUCTA) Labeled the applicant's

Act as desertion. That the applicant deserted the employer for a period

which she decided herself ie. from the year 2000 to 2004 and denied the

employer his right to what the wise Gentlemen Assessor termed "control

test on the point of hours of work". That the applicant.employee was

acting or had put herself in the position of "an independent contractor"

because she was leading herself instead of being led by her employer. The

two wise Gentlemen Assessors called upon this Court to dismiss the

application for want of merit.

We entirely and respectfully agree with the wise Gentlemen

Assessors that the applicant had deserted the employer id e st (that is)
there was a clear act of desertion by the applicant from her emolover
respondent.

15
 The concept of desertion of an employee from the employer and

the concept of absence from work by an employee are terms which need

some clarification by " trekkingf on various jurisprudence.

According to Longman Dictionary of Contemporary English desertion

means: "the act o f leaving one's duty, one's family or military service

without permission!'. While absence means "the state or a period o f being

away eg. leave o f absence". .

Now since the applicant employee in this case deserted the

employer respondent for about four years without permission from the

year 2000 to 2004 that is, after' the leave of absence for studies which

commenced from 01/01/1999 to 31/12/1999 was finished (one year study

leave) and because the employer did not permit her to overstay from the
year 2000 to 2004 the applicant employee had breached the contract c'e st
a dire that is to say the act of the applicant to overstay for four years

without the permission of the employer would amount to a break of

employment contract. This position was also reached by the Labour Court

of South Africa in the case of Sibeko V. Tshoced [1996] 3 BLLR 369

(LC)19. The South Africa Labour Laws Cases are persuasive and have great
assistance to our Labour Law Jurisprudence.

Commenting further on the concept of desertion Dr. Carl Mischke a

distinguished scholar of Labour Law in South Africa writes in his paper

19 Sibeko V. Tshoced [1996] 3 BLLF1 369 (LC) as quoted by Dr. Carl M ischke, BA, LLB (wits) LLM (Heidelberg) LLD
(UNISA) in his paper the definition identification and form ation of the em ploym ent contract
16
titled "the definition; identification and formation o f the employment
contract" that:-
...In the recent decision of South Africa Broadcasting
Corporation V. CCMA and others [2001] 4 BLLR 449
(LC) the Labour Court distinguished between 'desertion
and absence 'from work and came to the conclusion that
"...although a desertion constitutes a breach of
contract, this by itself did not necessarily bring the
contract of employment to an end. Only when the
employer accepted the repudiation of the contract could
be said that there was a dismissal...20

There was therefore in our view a breach of the fundamental term of

the contract on part of the employee whose duty is to provideservice to

the employer (as a common law duty also) the applicant cannot hide under
the " covef that she was permitted to continue with her study leave in the

USA beyond the period of one year given by the employer respondent.

Perhaps in this connection if we may be excused once again to quote a

decision of the Labour Appeal Court of South Africa to cement our views.
In SACTWU V. Dyas21 the appellate Court for Labour matters held
...If a party to a contract breaches a fundamental term
(of the contract) thereof or repudiates it; the other part
can elect to hold the first to the contract, or cancel it.
In the case of desertion by employee, the choice is in
fact not always real... the employer has no practical

20 Dr. Carl M ischke ibid as quoted in Essential Labour Law (editions) Labour Law Publications Houghton 3rd Edition
2002 at p. 126
21 SACTWU (a trade union) V. Dyas [2001] 7 BLLR 731 (LAC) at para 20 -22 as quoted by Dr. Carl M ischke
17
 choice other than to accept repudiation... where there is
no real choice\ it can probably be argued that the
employer did not terminate the contract..'.22

Indeed in the case at hand the employee applicant did breach a

fundamental term of the contract, the act of leaving one's duty for about

for years from 2000 to 2004 without permission and therefore providing no

service to the employer for that period. The employer respondent in this

case had put his choice to cancel the contract with the employee applicant,

and as rightly pointed also by the two wise Gentlemen Assessors. The

applicant employee has to blame herself.

We come now to the concept o f " control test!" and "an independent

contractor" which were put to us by the wise Gentleman Assessor from

TUCTA Mr. Mwakyembe. In the course of his opinion Mr. Mwakyembe

•opined that since the employee had deserted the employer from the year

2000 to 2004, she (the employee) denied the employer his right to " control

test on point o f hours o f worK’\ To put it clear Mr. Mwakyembe's opinion

on "control test' meant that the employee applicant denied the employer

respondent his right to supervising and controlling the employee under

contract with her. For example the control on the duration of stay in the
United States. In which the employee applicant exceeded the duration of
stay without prior permission from the employer and hence denying the

employer the right to control and supervise the employee " control test.

That means that the applicant employee was by and large controlling

22 Dr. Carl M ischke ibid

herself as if she were "an independent contractor" a rightly pointed out

by the wise Gentleman Assessor Mr. Mwakyembe from TUCTA.

The concept of " control test put found by the wise Gentleman

Assessor is among the three tests which are used in drawing the distinction

between an employee and an independent contractor. The other tests are

"the Organization Test" and "the Dominant Impression Test". We

will trek on these concepts. Suffice to say here that we agree with the

wise Gentleman Assessor that since the employee applicant was not "an

independent contractor1' but a worker and an employee of the respondent,

she was supposed to follow the orders and instructions of the employer

who is vested with the right to control and supervise him "the control

test' concept.

The appellate Division of South Africa formulated the concept of

"control test" in the case of Colonial Mutual Life Assurance Ltd. V.

Macdonald23 1931 AD 412 at 434 - 435 in the following words:-
...One thing appears to me beyond dispute and that is
that the relation o f master and servant cannot
. exist where there is a total absence o f the right
supervising and controlling the workman under
the contract In other words, unless the master not
only has the right to prescribe to the work place what

23 See Dr. Carl M ischke op. cit note 18 w here he quoted the case of Colonial M utual Life A ssurance Ltd. V.
Macdonald [1931] AD 412 in his paper "the definition of identification and form ation of the em ploym ent
contract" in Essential Labour Law Vol. third edition [2002]
 work has to be done but also the manner in which such
work has to be done...24

We think therefore rightly that since there was the relation of master

and servant between the applicant employee and the respondent

employer, the employer had the right to supervise and control the

employee applicant because in the absence of controlling and supervising

the employee applicant, the master and servant relationship cannot be said

to exist. As correctly pointed out by the wise'assessor, the applicant

denied the respondent the right to control and supervise her and therefore

putting herself in the shoes of an independent contract.

Apart from "the control test another test which determines the

relationship between an employee and an independent contractor is "the

Organization Test'. The concept o f " Organization Test is based upon an

assumption that the test of being a servant does not rest on a submission

to orders, as clearly put by Dr. Carl Mischke, in his paper titled "the

definition; identification and formation o f the Employment Contract25". That

it depends upon whether the person is part and parcel of the organization.

In other words, one looks here at the extent to which a person (worker) is

integrated (made a part) into the organization of the other person

employer26.

24 ibid
25 Dr. Carl M ischke op cit note 21
26 ibid
20
 The applicant employee in the case at hand was part and parcel of

the respondent's organization and integrated thereto. She was therefore

supposed to follow the instructions of the employer for example to stay in

the United States for only one year study leave instead of four years as she

did.

The applicant employee overstayed in the United States for four

years from 2000 to 2004 without permission of the master or employer and

as correctly pointed out by the wise Gentleman Assessor the applicant

employee had put herself not as a servant of the respondent employer, but

an independent contractor. "The Organizational Test" provides the

distinction between an employee (like the applicant) and an independent

contractor. The South Africa Labour Appeal Court recently summarized this

test (the Organization Test) in the following terms (we entirely and

respectfully subscribe to the persuasive decision:-

... The second (test) is the organization test A person is
an employee or he is "part and parcel of the
organization" (Bank Voor Hundel en Scheepuaart Nv. V.
Slatford[1953] 1 QB (CA) at 295... whereas the work of
an independent contractor although done for the
business is not integrated into it, but only accessory to
it... (see the case of Stevenson Jordan and Harrison
Ltd. V. Macdonald and Evans.,.27

27 See Article titled "the definition, identification and formation of the em ploym ent contract" by Dr. Carl M ischke
in Essential Labour Law Vol. one third Edition Labour Law Publications 2002 Houghton at p. 29
21
 The work of the applicant employee was integrated to the business

of the employer respondent, and the record also clearly shows that the

applicant was an employee of the respondent within the meaning of an

employee in the Industrial Court Act Cap 60 RE 2002 which reads and for

easy of reference; we quote the section

'...Employee means any person who has entered into or
works under a contract o f service within an employer
whether by way of manual, clerical work or otherwise,
and whether the contract is expressed or implied or is
oral or in writing...2S

On the other hand the contract of the independent contractor is

characterized by the fact that (to borrow the words of Dr. Carl Mischke):-
... One person hires another person to do a specific job
or a specific piece of work. The person letting out the
work is seen as the principal and the person doing the
work is seen as the agent...29

We have resorted to the meaning of an employee as spelt out in the

Industrial Court Act (repealed) because under section 42 of Act No. I l f

Written Laws Miscellaneous Amendments (No. 2) Act 2010 we are allowed,

to use the law a p rio ri the section speaks that:-
42. The Principal Act is amended in the third
schedule by deleting paragraph 13 and

28 S. 3 Industrial Court Act Cap. 60 RE. 2002 (now repealed)

29 Dr. Carl M ischke op. cit note 25
22
 substituting for it the following new
paragraph:-
13. (1) AH disputes originating from
the repealed laws shall be determined
by the substantive laws applicable
immediately before the
commencement of this A ct..30

It is our settled opinion therefore that the applicant was under a

contract of service within an employer the respondent in our case and

not under the contract for service. The overstay of the applicant in the

USA for four years without prior leave or permission of employer was a
breach of the contract of service by the applicant employee.' We reject the

applicant's reason for the overstay in the USA as devoid of merit. She

failed to report at her place or work after the agreed one year study leave

had expired. Dr. Carl Mischke correctly pointed out that:-

... Failure to report for duty... would be regarded as
abscondment or desertion. The Labour Appeal Court of
South Africa held that the employer had terminated the
contract; it was not the employee who had ended the
relationship in doing so the employer had in fact
exercised the common law choice (see Dr. .Mischke
article "the definition; identification and formation of the
employment contract")

30 The W ritten Laws (M iscellaneous A m endm ents )(No. 2) Act 2010 No. 1 L
23
 We subscribe to the above excerpt from the South Africa

distinguished Labour Law expert and author. We add also by borrowing

the words of the Justice of Appeal Horns J. A. of the Appellate Division of

South Africa to cement our stand when he affirmed the importance of trust

and confidence in the employment contract in the case of Council for

scientific and Industrial Research V. Fijen [1996] 17 ID 18 at 26 D -

E:-
...It is well established that the relationship between
employer and employee is in essence one of trust and
confidence and that at common law, conduct clearly in
consistent therewith entitle the "innocent party" to
cancel agreement

The last test in this context is to look at concept known as "the

dominant impression test" to fortify our argument that the applicant was

an employee and not an independent contractor. The applicant as an

employee was by and large "tied up"-within the business of the respondent

or hence was required or supposed to submit and adhere to the orders

and instruction or directives of the respondent employer who had the duty

and right to supervise and control the applicant employee.

In " the dominant impression test' the Court (as correctly pointed out
by Dr. Carl Mischke):-
...Considers all the factors (or indication or indicia)
together.and weighs all the relevant factors and decides
m
whether or not it obtains the dominant impression that

24
 the person performing the duties is an
worker/employer or not...31

The factors which the Court should consider and weigh in order to

decide if the person performing the duties is a worker/employee are such

as the following factors (in teralia):-

(a) ...The right to supervision whether the employer
has the right to supervise the other person.
(b) ...Whether the employer has the right to
discipline the worker.
(c) ... Whether the worker is obliged to perform his or
her duties personally.
(d) ... Whether the worker is paid according to a fixed
rate or by Commission...32

We have gone through the record and we are of the settled view that
the above in d icia (indication) or factors weighed together proves the fact

that the applicant falls squarely within the ambit of a worker of the
respondent. The applicant therefore being the worker of the respondent

employer who was elevated to the position of Departmental Manager, the

position in which she was expected to act as directed or required by the

employer i.e. to complete her studies for the given period of one year,

going contrary to the employer was an act not expected to come from the

seniorofficial of the managerial position like the applicant, who on

her own volition decided to extend the study leave for four years contrary

31 op. cit note 25

32 ibid p. 31
25
have attempted to show above. We reject the submission by the counsel

for the applicant as nothing but mere kicks of a dying horse in articu lo

m ortis (at the point of death).

The ruling and award of the Industrial Court (William Deputy

Chairman) is hereby upheld to the extent explained in the Judgment

above. The application for revision is dismissed therefore in toto (entirely).

■
-* N/'
1 >?'■ \ 1 i ‘ "-V

\ \ 1 .

R.E.S. Mziray, ^ '

JUDGE ^
09/ 02/2016

1.5. Mipawa
JUDGE
09/ 02/2016

L.L. Mashaka
JUDGE
09/02/2016

Court: Judgment is read in the presence of both parties today the

11/02/2016 Mr. Mwezi Mhango, Advocate for the Applicant and holding

briefs of Mr. Lyimo, Advocate for the •Respondent. The Applicant is also

present. I 1 i,
HJi^
1.5. Mipavya
JUDGE
11/ 02/2016
27