20140718 TZHC Dar es Salaam

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 ffJ . ·~,~~i. Aboud, l ·,~,1),. · 1~'\!. 1 <¥\-:;, . .{~~{!:,,) . "fJJ_;,_ 41 The applic~~tioltl,z\; •ii \f. iS~\~,~de ,, ... under section 57 of the Labour - Institutio Ii; ,i-~t~~ ,l~o4, section 5 of the Appellate Jurisdiction Act, (Ca[P ~ :" 1 ~1i~,;~> ~ .,,,f;· ~s,- ~, .,... ·•~} 2002), Rule 24 (2) and 54 of the Labour Court Ru1~i~,·•~it....200(,,. 91,o Rules 45 (a) and 46 {1) of the Court of Appeal :.l:wi(,W;P· Rules ·~q:~t>141 R.E 2002)_ and section 95 of the Civil Procedure . Code, 1966 and any other enabling provision of the law. The dispute revolves around an employment· relationship involving the late· Ignatus John Mwanjela and the respondent. The applicant herein is the Administrator of the Estate of the late 1 Ignatus John Mwanjela. The deceased was an employee of the respondent since 1996 as a payroll clerk trainee until September, ·, 1998 when he was terminated by one month notice. The reason for his termination was stated to be redundancy. The applicant herein filed a Labour dispute before the CMA, dis~9tisp,@d with the .-<})?/;... A~!~ ·:t~t <5:'-. award he filed an application for revision beftre"Jhe cpy~····with ground that the CMA failed to consider th~,k,6\pplic;trit{R ~~idence. Jtt~;, > Thus he prayed for payment of repatriflorf1{s;p~ts, subsistence l~;-.. _ ·f;t\~- "~<ifr?I/ allowance and payment in lieu of unt~Rea 1·agye. In the decision . '¾:JL.-; tt4~{t·, ~~-~' '. by Hon. Rweyemamu, J dat~d Q,rf-f5L2¾2Pl~3, this court agreed ,•.:..~,].':,'/ .a'."1 '/~:; ' , with the decision of CMA that; . >> ,}: lt ,_\, ,: , ,'/·, ~~\*(, 1. The Arbitrator b ':-l1evecP'1t€r(f' adduced evidence that the applicant ha,g, ~r~ "", ··.tiRrPf 56 days pending as leave. Out of --~?~~.... -~~~l1)4 ~~ that am : · ·,,~,ta};,IPPlicant had already been paid for 28 d~~.. · ·fi ~-~1t:J~maining 28 days, 19 days were deducted ).ttf1itt ·,.. -•:,t ,.· ate for the days the applicant arrived late from ~t: .. :{J':~B~t~ '(ijr, . lea~~J~nd ·for remaining 9 days leave, he had been paid . ....,,,_,_. .. 11 2. ,;e1ft1 the 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 • • -· C ,•· does not arise in this case, where the Arbitrator found (and I have decided that rightly so) the erJ]plq¥~e was not r/.fj;_t:-~► ;/i' •::f~ . /J.. entitled to repatriation. ~1f '~\t1Jr. 1 \,iAi' :!.'! '•tt?., ·,~:., On the issue of fairness of termination ,,,~ll~" , .,-~ Court~~fgnored on ~ti. . ~~ ,.:~ ground that it was a new issue which ~a~t- no ·~1:.ijJsed before the 4 "#·~~- ... ;;t;; ~{~~l- ;ri governing procedures befonlt,he de~i'sie'n maker. ,·~,r~~M" ··(. CMA. The Court held that Revision is·¾,Q~·-,rfiltlf 'rtnain, about vetting ' the correctness of the dect~il;ln facts, evidence and ~~tt. ig ~~:~ ···t-t1!~~1¥fp· The applicant still,,,d'i~aatisfiecfbelieves there is a point of law ·,?, . to be determined bf~t ~. rt of Appeal thus this application for ~tf;;;1ht~ -, rt·· leave. A the H:tann •,: "1ich proceeded ex pa rte because the \~-- ~ ·· to file Counter Affidavit, the applicant ·n and submitted the following .as such points of a. The deceased in this matter was not paid his NSSF, repatriation allowances and leave allowance for 36 days•· which were due·. 3 •. I I 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 Godw1n M&tganyizi did · A. &s also testify for the respondent at blff~\!fMA'1t1~~Jth is t '\~,ft~.~ \:~~+:~· contrary to the law. it1!t~-.. ~'\t his employment as required in law. c. The decision of CMA omitted one of the respondents that, is William A. Kiwango. 4 l 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 App Ii cant: Respondent: . ':.Jpf11,.: livered on 18/P't/2014 in .the presence of the . ·he respondent is a ::·i,~~~·~/\ . ~ . . ·;:... ':'(\'.•);:"~\ ..·:·. i'./-eif----;·•· -·· I. oJ:ifiii\Jio ·•. · JUDGE. 18/07/.2014 s