Court rules in favour of hotel

DAR ES SALAAM: THE Southern Sun Hotel Tanzania Limited has won its appeal challenging the compliance order given by Labour Officer for payments of salary arrears of 26 employees, who were sent home during the Covid-19 pandemic outbreak in 2021.

This follows a judgement of the Court of Appeal to quash the proceedings and ruling of the High Court, which dismissed the appeal by the hotel against the decision of the Acting Labour Commissioner, that confirmed the compliance order made by the Labour Officer.

“(…) the present appeal is merited as the compliance order issued by the Labour Officer to the appellant having been made without proper authority,” Justices Shaban Lila, Mary Levira and Zainab Mruke ruled.

They added, “The same (compliance order) was confirmed by the Acting Labour Commissioner who was not properly delegated the powers to do so on behalf of the Labour Commissioner.

At the hearing of the appeal, the Southern Sun Hotel Tanzania Limited, the appellant, was represented by Advocate Waziri Mchome, whereas the Labour Commissioner, the respondent, had the services of State Attorneys Jenipher Kaaya, Pauline Mdendemi, Lilian Machagge and Fred Nyaupumbwe.

When determining the appeal, the justices noted in their judgment delivered in Dodoma Registry recently that the provision of the law that gives the Labour Commissioner mandate to delegate his powers is section 44 (i) of the Labour Institution Act.

Such provision clearly stipulates that the delegation of the powers of the Labour Commissioner may be done in writing to the persons mentioned therein, which was not the case in the present matter.

“It follows therefore that since there was no written proof that the Acting Labour Commissioner was properly delegated the powers of the Labour Commissioner, in our considered view, legally he had no powers to confirm the compliance order,” they said.

In the circumstances, the justices pointed out that it means that the Acting Labour Commissioner acted on invalid compliance order of the labour officer while himself had no power to confirm the said order.

“Therefore, it cannot be said with certainty that while confirming the compliance order of the Labour Officer, he was discharging the duties of the Labour Commissioner,” they said.

On January 14, 2021, Southern Sun Hotel Tanzania Limited, the appellant, received a letter from the Principal Labour Officer acting for Regional Labour Officer, Dar es Salaam.

The said order required the appellant to appear to the labour office located along Bibi Titi Mohamed Road, on January 20, 2021 for questioning or explanation regarding compliance with labour laws or complaint lodged by the appellant’s employee.

It further required the appellant to appear with contract of service of that employee, payroll for month of March to December, 2020, as well as National Social Security Fund and Workers Compensation Fund returns for the said period.

Moreover, on February 2, 2020, the said Principal Labour officer issued the appellant with a compliance order and the same was received by the appellant on the same date.

The said labour officer indicated categorically that, she issued the said order in exercise of the powers conferred upon her by the provisions of section 45 of the Labour Institutions Act, requiring the appellant to pay unpaid remuneration (arrears) to 26 employees within 30 days.

Dissatisfied with that order, the appellant on February 25, 2021 lodged objection to compliance order to the Labour Commissioner on several grounds.

He stated that they closed business from the end of March, 2020 and had remained closed to the date of the objection due to the outbreak of Covid – 19 pandemic.

The appellant stated that despite that she paid her employees 20 per cent of their salaries monthly and medical cover during this period yet no employee had to attend work.

He explained that foreign tourists who were the backbone of the hotel business (the source of income) could not travel due to Covid – 19; as a result, they could not gain the expected income.

He stated that there was a labour dispute pending in the Commission for Mediation and Arbitration (the CMA) over the same claim for payment of full salaries filed by 56 employees of the appellant. Therefore, the implementation of the compliance order would adversely prejudice the proceedings.