Walter Jager v. Cordura Ltd. t/a Tanganyika Tourist Hotels and Oyster Bay Hotel, Civ. Case 120-DSM-71, 1/6/72, Onyiuke, J.

Walter Jager v. Cordura Ltd. t/a Tanganyika Tourist Hotels and Oyster Bay Hotel, Civ. Case 120-DSM-71, 1/6/72, Onyiuke, J.

The plaintiff is an Austrian national residing in Dar es Salaam. The defendant is a limited liability company incorporated in Bermuda but registered as a foreign company in Tanzania. I carries on business in Tanzania and runs a hotel in Dar es Salaam in the name of Oyster Bay Hotel. The plaintiff was employed as a Restaurant Manager of the Oyster Bay Hotel. He brings this action against the defendant claiming special and general damages for wrongful dismissal. Mr. Jussa, Counsel for the defendant, submitted that the defendant’s action was for summary dismissal, and section 28 of the Security of Employment Act Cap. 574 oust the jurisdiction of this Court to entertain the suit. The plaintiffs’ remedy, he submitted, was to refer the matter to a conciliation board under section 23 of the Act. Mr. Versi, Counsel for the plaintiff, in reply made two submissions, namely: (a) that section 28 did not apply in as much as the present claim was not based on summary dismissal but was based on the wrongful termination of a contract. The contract of service was for two years and the defendant had committed a breach of that contract by terminating it before the two years had expired. The claim, he maintained, was based on contract and should not be put in the category of summary dismissal which was a tort. (b) He submitted, in the alternative, that section 28 did not apply because the plaintiff did not come within the definition of employee as used in that Act.

            Held: (1) “I accept Mr. Jussa’s submission that this case has to be decided according to the laws of Tanzania. Although the contract of service was between a foreign national and a foreign company, it was made in Tanzania to be performed in Tanzania and the alleged breach occurred in Tanzania. The jurisdiction of this court to entertain this suit is governed by the laws of Tanzania.” (2) “I am unable to accept the first arm of

Mr. Versi’s submission, namely, that section 28 did not apply because the present action was based on contract for wrongful dismissal and was not an action for summary dismissal as contemplated by the Security of Employment Act. The term ‘summary dismissal’ is not defined by the Act but has been judicially defined. I refer to the case of Kitundu Sisal Estate v. Shingo and Others, (1970) E. A. 557 …………. See also the decision of this Court in Mohamedi and Others v. The Manager, Kunduchi Sisal Estate, (1971) H.C.D. n. 430. The decision of the Court of Appeal referred to above established that dismissal without notice was summary dismissal. Does the fact that the plaintiff in the instant case was alleging, not that the contract was terminated without notice, but that it was terminated before the two years had run out, make any difference? In may view it does not. To terminate a contract of service before it has run out its course is as much a summary dismissal as to terminate a contract of service without notice when notice was provided or in the contract. The complaint in both cases is the breach of contract. The argument which sought to distinguish the present case from the case of summary dismissal on the ground that the latter case the remedy was only to sue for wages in lieu of notice is unsound. The remedy for summary dismissal is an action for damages which may be general and/or special. The important thing is the cause of action and not the remedy sought. Finally, to argue that summary dismissal is based on tort and not on contract is equally unsound. Every action for summary dismissal is based on a contract of service expressed or implied. An action for summary dismissal is not and action in tort but is an action for breach of contract of service.” (3) “I accept the argument that section 28 of the Security of Employment Act does not apply to this case if the plaintiff does not fall within the category of employees to which the Act applies. Section 4(2) of the Act provides that the Act shall be read as on with the Employment Ordinance, Cap. 336. Section 4(1) of the Act provides that the term ‘employee’ shall have the meaning assigned to it by the Employment Ordinance subject to certain exceptions ……. Section 2 of the Employment Ordinance defines an employee as “any person who has enterer into or works under a contract of service with an employer whether by way of manual labour, clerical work or otherwise and whether the contract is expressed or implied or is oral or in writing.” Section 1(3) of the Employment Ordinance provides that the President may by order in the Gazette exempt any person or class of persons from the operation of the Employment Ordinance or any provision thereof or of any regulation or order made there under. By Government Notice Number 26 of 1961 the provisions of the Employment Ordinance including section 37 which governs summary dismissal were made inapplicable to persons in receipt of wages exceeding 80,000/= per annum or the equivalent  monthly rate. This means that a person in receipt of such wages is not an employee for the purposes of Section 28 of the Security of Employment Act …… The attention of this Court has

However, been directed to an amendment to [section 4] introduced by the Security of Employment (Amendment) Act 1969 No. 45 of 1969. It adds a new sub-section 4(e). The effect of this amendment is that the amount of wage received is not now the criterion. Section 4 (e) provides that “Any employee who, in the opinion of the labour officer, is employed in the management of the business of his employer,” is not an employee for the purposes of the Security of Employment Act. This amendment has introduced some uncertainty in this case because the question whether the plaintiff, as the Restaurant Manager of the Oyster Bay Hotel comes under section 28 of the Security of Employment Act does not now depend on any objective standard but on the subjective opinion of the labour officer ….. This can hardly be regarded as a healthy or satisfactory state for the law to be in. The jurisdiction of this court to entertain the present suit has been put in issue and in view of the present state of the law remains in issue. I think the proper order to make in the circumstances is to stay the suit leaving it open to either party to obtain the opinion of the labour officer under section 4 (e) of the Security of Employment Act as amended by the Security of Employment (Amendment) Act, No. 45 of 1969.” (4) Suit stayed until the opinion of the labour officer is obtained.