Steven Chambo Kivuma vs Karen General Supply, revision app. NO 215 OF 2023

This case is about the duty if employee to prove date of termination anc fairness of termination according to the laws.

It is undisputed by the parties that initially, Steven Chambo Kivuma, the herein applicant, had a written fixed term contract of employment with Karen General Supply, the herein respondent where he was employed as security guard. It is said by the applicant that the said written fixed term contract commenced on 1st April 2013, but  respondent terminated it on 31st March 2015. It is alleged by the applicant that, after termination of the said written fixed term contract, the two entered oral unspecified period contract of employment.

 It is alleged by the applicant that, on 1st April 2021, respondent terminated the said oral unspecified period contract of employment. On 9th April 2021, applicant filed Labour dispute No. CMA/DSM/KIN/2/21 before the 

Commission for Mediation and. Arbitration(CMA) at Kinondoni  complaining that respondent terminated his employment unfairly. 

In the Referral Form(CMA F1), applicant indicated that he was claiming to be 

paid TZS 6,427,589/= being terminal benefits, un-paid salaries, compensation for unfair termination, general damages and overtime pay. The basis of that claim was that, respondent did not comply with 

fair procedure of termination of employment and further that, there was no valid reason for termination of his employment Mr. Simkoko has criticized the arbitrator for holding that applicant did not prove his case. Mr. Simkoko relied on the provisions of section 39 of Cap. 366 R.E. 2019(supra) to criticize the findings of the arbitrator. 

It is my view that, in the circumstances of the application at hand, the the arbitrator deserves no criticism. I am of that view because, applicant  had a duty to prove by evidence that his employment was terminated on 1st April 2021. It has been held several times both by this Court and the 

Court of Appeal that, he who alleges must prove. See the case of Barelia Karangirangi vs Asteria Nyalambwa (Civil Appeal 237 of 

2015) [2019] TZCA 51 (1 April 2019) and Oliva James Sadatally vs Stanbic Bank Tanzania Limited (Civil Appeal 84 of 2019) [2022] TZCA 388 (17 June 2022). That is the general principle. It was the duty 

of the applicant to

 prove first, the date of termination of his employment before the burden of proving fairness of termination to shifted to the 

respondent. In other words, after proof of date of termination by the applicant, then, respondent was under duty to prove fairness of termination of the said employment as provided for ection 39 of the Employment and Labour Relations Act [Cap. 366 R.E. 2019]. The said section does not provide that an employer has a duty to prove each 

allegation raised in employment dispute with the employee. 

The duty of proof under the said section is only limited to fairness of termination. It 

is my view that, in the circumstances of this application, section 39 of Cap. 366 R.E. 2019 (supra) is inapplicable because applicant did not prove that his employment was terminated on 01st April 2021.

For all stated hereinabove, I find that this application is unmerited

and dismiss it.