abdallah chitanda others vstanzania ports authority 2022 tzhcld 208 29 april 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 560 OF 2020 ABDALLAH CHITANDA & 445 OTHERS APPLICANTS VERSUS TANZANIA PORTS AUTHORITY RESPONDENT (From the decision of the Commission for Mediation aqd Arbtation) (Massawe: Arbitrator) Dated 16th November 20j6 REF: CMA/DSM/LAB/16/720 JUDGEMENT 31st March & 29th April 2022 Rwizile J This applicati^^Js-fo^evision. The applicants are asking this court to call for, zfexamihe-^lnd set aside the ruling and proceedings of the Commissioner Mediation and Arbitration (CMA) in Labour Dispute No. CMA/DSM/LAB/16/720 dated 16th November, 2016. Factually, the applicants were employed by the respondent serving at its container terminal. On 6th September, 2000 they were terminated from employment for the reason of privatization of the Container department to Tanzania International Container Terminal Services (TICTS). Later, it came to their knowledge that termination was unfair and in actual fact they were to be retrenched, which was not done. Not satisfied, they filed a representative suit at the High Court Dar es SalM<R^isfry. Its was struck out for being filed out of time. Their appeal to the court of Appeal was however struck out for being defective. The applicants, then reported the dgpjL^w^g Labour Commissioner who referred it to the CMA. Tl^pspubaj/ygs not heard in merit, since it was dismissed because thegCMA belie/ed had no jurisdiction to hear a dispute filed out of time^TrtsWplication therefore, protests the ruling of the Cbmmissioi^^^^W The affi^^^^^^rting this application has been jointly sworn by Abdallah cferida, Festo Mabwai and Janath Mfuruki for and on behalf Jr of otheWfour hundred and forty-three applicants. The applicants advanced the following legal issues for determination; /. That the applicants' claims against the respondent are not subject of being time barred. 2 ii. That the applicants have never been afforded the right to be heard hence denial of the rules of naturalJustice. Hi. That it was illegal for the respondent not to have given the benefits of the applicants due to the trust deed secured by the group endowment assurance policy dated the Iff1* day of October, 1991. The hearing of this application was by way of^itten submissions. Mr. Capt. Ibrahim Mbiu Bendera, learned Advi^te^a^ued the matter for the applicants whereas for the resmn^i^^peared Salma Kitwana, learned State Attorney. % Mr. Bendera submitted th^^he applicants were employed at diverse time and so were 'p^^^nt and pensionable employees at the container<g^^£tn^^^^hen the respondent hired TICTS in container departm|^j^m^agplicants were terminated and not paid all terminal dues.\ CTb He further submitted that due to technicalities, the applicants were in corridors of justice without achieving their goals for pursuing wrong claims. He was of the view that the most probable thing to recon would have been retrenchment of the applicants and not termination. The learned advocate reinforced his submission by making reference to 3 section 36(a) (b) 37(1) and (2) of the Employment and Labour Relations Act and held the view that the applicants were unfairly terminated. Mr. Bendera submitted that the respondent established the Staff Endowment Assurance Scheme under the Trust Deed secured by the Group Endowment Assurance Policy. He stated that, the purpose of the scheme was to support each and every his beneficiaries upon retirement. But in his wordsMone of me applicants have been paid from the scheme. He states further that, the apphcan^Wnt^i^the Commissioner for Labour who referred them to tqe CMA as:.tne cited provisions of Section 86(1) of The Labour Relaf^ns Act^and Section 13(5) of the Labour Relations Act. The disputektherefore could not be time barred. Mr. Bendera ^j^^^^d^is court to revise the ruling in favour of the applicants<and^gram)this application. Opposing the^application Miss Kitwana submitted that the applicants were aggrieved by retrenchment and filed a case to the High Court and Court of Appeal. They identify themselves as Abdallah Chitanda and 379 others. She stated further that, having lost, they appeared at the Labour Commissioner and identified themselves as Festo Mabwai and 445 others. She continued to submit that, the matter from there was forwarded to the CMA but the dispute was dismissed for being time barred and hence this application. She continued to submit that, apart from other applications filed and struck out for one reason or another, Application No. 419 of 2019 was found time barred by this court but instead of being disn^ssed, it was struck out with leave to refile. It was argued furt^ekthat itougk to have been dismissed under Section 3 of Lawzof Limitation Act. In support, she cited the case of Barclays Bank Tanzania Limited v Phylisiah Hussein Mcheni, Civil Appeal^o.W) of 2016. She stated that, the applicants filed another application for extension of time. They were granted and hence thfeapplfcatiojV Miss Kitwana continued tovsubmit that the present revision was filed without a»jepjesentative suit in contravention of Rule 44(2) of the Labour CourRRules, 2007. In her view, there is a danger of the applicants whom Abdallah Chittanda, Festo Mabwai and Janeth Mfuruki representsrefuse to be bound by the decree. He then cited the case of Mhoja Mangombe & 16 others v Akida General, Labour Revision No. 8 of 2011 which was cited with approval in the case of Christopher Gasper and Others v Tanzania Ports Authority, Misc. Labour Application No. 281 of 2013. at page 6 5 Miss Kitwana further submitted that, one, the import of the Extension Notice, 2013 was to extend time for determination of disputes originating from the repealed laws which were not finalized immediately before- the commencement of Employment and Labour Relations Act (ELRA). She was of the view that, extension of time was not automatic for matter, claims are out of time. Two, paragrap! schedule to the ELRA states that disputes referred to CMware liable and subject to time limitation in the same wayj|bs vany. Labour Dispute referred to the CMA by any other person.% She continued to submit that the Labour Commissioner was not right to refer the matter to the CMA^The learned Attorney held the view that the High Court in Civil case Nok2x5 of 2002 had declared the dispute to be time barred. The ^MA^shOsadded, inferior to the High Court, could not entertain a coJriplaWWhich was held to be time barred. She continued to^submit mat^tHis court is not open to reverse CMA's ruling as the decisionWfrme limitation has already been heard by another High Court as held in the case of Mohamed Enterprises (T) Limited V. Masoud Mohamed Nasser, Civil Application No. 33 of 2012. Furthermore, she argued, the matter has already been determined by another High Court, which makes it res judicata, reference was made to the case of MM 6 World Trading Company Limited and two others v National Bank of Commerce Limited, Civil Appeal No. 258 of 2017. She finally submitted that this court is functus officio in relation to the applicants' matter and so should be dismissed with costs. In a form of a rejoinder, Mr. Bendera submitted that in the.prayer, they applicants, as there are no new claims outsidelwhat the GMA decided. Other points are reiterated from the submissiphan chiefs After considering the submissions o^St^parjjes the court has been called upon to determine whether the CMwhadJurisdiction to determine this dispute and to what re^fp^^s^e entitled to. It should be noted®that\th®dispute was referred to the CMA by the Labour issioner.Jrbr easy reference the letter stated YAH: MAEALAMIKO YA BW. FESTO MABWAI NA WENZAKE 445 YA MAMLAKA YA BANDARI TANZANIA Tafadhaii husika na kichwa cha Haban hapo juu. Nimepokea barua ya mgogoro wa kikazi kutoka kwa Bw. Festo Mabwai na wenzake 445 ambao waiiachishwa kazi na Taasisi tajwa hapo Juu biia kuiipwa mafao yao ipasavyo. Kwa mujibu wa aya 13 ya Jedwali la tatu la Sheria ya Ajira na Mahusiano Kazlni Na. 6 ya mwaka 2004 kama ilivyorekeblshwa na klfungu cha 42 cha Sheria ya Marekebisho ya Sheria mbalimbali Na. 11 ya mwaka 2010 yaklsomwa Pamoja na Tangazo la kuongeza muda lililotolewa kupitia Gazeti la Serikali Na. 149 la tarehe 31 Mei 2013 (the Employment and Labour Relation (Extension of Time for Dispute Determi^hon) Notice, 2013, nawasiiisha shauri hili kwa hatua^z^ko (the^emphasis is mine). Pamoja na barua hii naambatanisha.bar^^^^rpaelezo ya mlalamikaji kwa rejea yako. If j| KAMISHNA WA KAZI" The Labou^Cpmmissioner therefore, as a matter of law, is empowered to prefer aispbtes^to the CMA. Section 42 of the amendment Act, which the LabourzCommissioner referred states that: - "The principal Act is amended in the third schedule by deleting paragraph 13 and substituting for it the following new paragraph: 8 13(1) AH disputes originating from the repealed laws shall be determined by the substantive laws applicable immediately before the commencement of this Act. (5) The Commission shall have powers^^^diate and arbitrate all dispute originating from the repeated, iavvs^brought before the Commission and all such dilutes shal^^ deemed to have been duly Instituted under Section 86 o^heAct." The Security of Emp^^^p^Act No. 62 of 1964, was therefore applicable in displirte^bf this nature. The applicants, as stated were referred^to the CMA by the letter dated 27th May 2016. It is my view therefore that based on the law that governed the dispute which is section 23(l)(a)(b)(c) and (2) of Act No. 62 of 1964, it provides: - ”23(1) where an empioyee- 9 (a) Is summarily dismissed; or (b) Is Informed by his employer, that the employer proposes to dismiss him summarily, or (c) Suffers a deduction by way of a disciplinary penalty from the wages due to him from his employer, He may, within the time specified in subsection (2)^refer the matter to the Board and the^^ards^all^o far as is reasonably practicable, hear t^e refewjce and give its decision thereon within (excluding Sundays and public hoiidajp) of^v^^erence being received by it, (2) A reference to a Bwrc^ndgjkhis section shall be made within seven days of^^^^^/oyer, proposes to dismissed, being informed ofltnepmposai to dismiss him, or differing the deduction, as ..." As the lawtoroyides the dispute ought to be filed by the applicants on 13th September, 2000 from the day they were terminated at the Board. The applicants submitted that, they were in corridors of justice pursuing wrong claims. Further, after perusal of CMA record, there are "THE RULES OF TANZANIA HARBOURS AUTHORITY STAFF ENDOWMENT ASSURANCE SCHEME". Rule 27 states how the dispute should be handled when the same arises. It states: - "ARBITRATION Save where by the Trust Deed or the Rules the decision of the Employer or Trustees Is made conclusive, if atapy^ftie hereafter any dispute, difference or question shall arise^^o/iecjii’e/y or severally between the Employer, the Trustees, any member or other person claiming under him or toii^^^^^he effect of these presents or any clause o^thinoffT^^ncgntained or the rights or liabilities of the said P^rt^s respectively or any of them under these presents or <iofy&wise^howsoever, In relation to these premises, then ^eyer^such dispute difference or question shall be refe^^^q^^^^on for adjudication and settlement under the Tanzania Arbitration Ordinance or an statutory ^^modification or re-enactment for the time being in force." The claims are as well based on the scheme. The same as shown has the procedure through which it has to operate. I think, the applicants were supposed to referred their dispute to the stated body. Therefore, based on the dictates of the law cited, as well as the endowment scheme where the claims are based, the dispute was filed out of time. I think, disputes, whether referred to the CMA by the Labour Commission or otherwise, the law should be followed. In the case of Barclays Bank Tanzania Limited V. Phylisiah Hussein Mcheni, Civil Appeal No. 19 of 2016, Court of Appeal at Dar es Salaam, which stated: - 'We fully adopt that statement and add that, it would be inequitable if we allowed one party to an enij^Qwwwi^ict to disregard time in instituting a complaint^against the^other party. We think matters would not come to,^^^^^fequired if a party who allows grass to grow unde^h^^et^apd delays in instituting an action, would only be^given an^rder to refile it. From the foregoing, this afplicatm^ls dismissed with no order as to costs. —... JUDGE 29.04.2022