20140718 TZHC Dar es Salaam2

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM ' MISC. LABOUR APPLICATION NO.290 OF 2013 02/7/2014 &18/7/2014 Code, 1966 and any other enabling provision of the law. . The dispute revolves around an employment · relation~hip involvi~g the late Ignatus John Mwanjela and the respondent. T_he applicant herein is the Administrator of the Estate of the late ' 1 Ignatus John Mwanjela. The deceased was an employee of the respondent since f 996 as a payroll clerk trainee until September, 1998 when he was terminated by one month notice. The reason for hi_s termination was stated to be redundancy. The applicant herein filed a Labour dispute before the CMA, dis~9tistt,d with the . _,.,.-4ff:f' t&·'!" ·t! 1!~-~\ award he filed an application for revision befljffe1:Jhe qpy,ff'With ' -~}:, '/~=-tt· ground that the CMA failed to consider th~,, ~plicant{~ evidence. ·--~- -.. ii~:i Thus he prayed for payment of repa~~ii~1!~rf1 ~~jf, subsistence allowance_ and payment in lieu of u~(fe\~~~ye. In the decision by Hon. Rweyemamu, J d~S~? tf:ff1 ]¾~ij'f.3, this court agreed ...._:-,:;,-· -~?.. 4 -~, with the decision of CMA th~;d_ >::~r"};;;;i;i¾ · · 1. The Arbitrator b&]1e~~ittffl ~~t adduced evidence that the ""-... "r~l applicant hag l'te,ta.l~P! 56 days pending as leave. Out of that amitlii ?,!.f.l 'fy~, . -~pplicant had already been paid for 28 ·,·..P.. .~ . d!~~•lf0r\!t1.~{Jfj\maining 28 days, 19 days were deducted ;/::-'~. )(t)~"/:- , --.~~@Sate for the days the applicant arrived late from ef~. t. ,]."••··?. ,/,':!J~ ~~!~~ ~; . •~i.. _leat,Jnd for remaining 9 days leave, he had been paid. 2.' ?'~fthe issue of repatriation the Arbitrator found it as a fact that the applicant was not. recruited from Sumbawanga, as such, he was in law, not entitled to be repatriated to that place. That was indeed the then governing law i.e. section 59 of (Cap 366 R.E 2002). 2 • 3. Now, subsistence allowance is only payable to an employee, entitled to repatriation, for the period such repatriation is awaited. The issue of subsistence allowance does not arise in this case, where the Arbitrator found (and I have decided that rightly so) the erpplqw~e was not . - _.,lfif~· :}~~, ·}~ . ;~.. entitled to repatriation. 1t·~·:vr;.,". \ 'i,, . . , . "':!;t?.. '·:;}>"''° ,·.14,· On the issue of fairness of termination '"( Court·~iignored on ground that it was a new iss~e which t~~'4t"JR}sed before the CMA. The Court held that Revision is1~~Qn '''fi~~',trnain, about vetting -~~-i~t(-•, ,.~i,., t~ J!i), the correctness of the decj~·i0n 1~ fi~~pi~f facts, evidence and ;1,£ ~-{-;;., [i governing procedures before\j,e defiSiol, maker. tfJ:· ~tt1;,h.~fiiit .,d1?: _atisfied The applicant stili;·•?-~ . believes there is a point of . law ~e ~~;~_3rt of Appeal thus this application for ~.'),,, . to be determined,..~1t~t1 1 1 leave. A the li~ ;f~.t~~i·~h proceeded ex parte because the respond 1 ;- · to file Counter Affidavit, the applicant 'H~f 1~~ -apJJearel~ J V. '' -:ffr~ and submitted the following as such points of it•(½' \)~¢ · /fr law. - · '<l\.t~.!frfr ~:t,,1,;,,tt~ -~w-- a. The deceased in this matter was not paid his NSSF, repatriation allowances and leave allowance for 36 days which were due. 3 V b. There was no notice of retrenching the deceased from his employment as required in law. c. The decision of CMA omitted one of the respondents that, is William A. Kiwango. d. Advocate for the respondent, that is Godwjn MJ}tQanyizi did ,,,~$~' ff,;! ~-~.. also testify for the respondent at tlff~;\f MA. ~t~~9,ith is contrary to the law. ~\~ti~~\~ "i:~f· , He finalized by submission that the Ho.Q.:r¾;k!dgl!t~gjd not consider · , ,ili. ,-,,;, ''""· the some error in the CMA award a~9 P~ijyed for the court to ''.(,)\, ,. i'~:=~=(1.~¢· -~~.~..... l"·tf, grant him leave to knock the,1€10or\: of~9.'ffrf of Appeal. ~ '<{t,h,_ ;J ~,, ·~·*rm'f!r Having gone through t~~ aRJDllcant's submission and the . fl! ~t%ti$f court records, I agr~~ t)~J_th the applicant that the mentioned -~~ii~~,. >~~~{!' points of law as raised ab>~vl! need consideration by the Court of I .· ,~•:<t"~ . . -Ai~}\ Appeal n;:\mely· .. _,.,;_,. ~-~(Ji .• ' '"%..• ....' f ' ~ . · ~p a ":\1~~;i;~ased in this ·matter was not paid his· NSSF, ;~. ,:~~- ~- ~; -~ Jriation allowances and leave allowance for 36 days ~¾ ~~ibt. 'l~t~1~ ·'.iJJhich were due. ·. '",'4:l. b. There was no notice of retrenching the deceased from his employment as required in law. c. The decision of CMA omitted one of the respondents that, is William A. Kiwango. 4 . d. Advocate for the respondent, that is Godwin Muganyizi did also testify for the respondent at the CMA which is contrary to the law. In the result the applicant is granted leave to appeal to the Court of Appeal as prayed. ,,· Date: 18/07/2014 Coram: Hon. I.D. Aboud,J Applicant: Present For Applicant: Respondent: 5