20131202 TZHC Mwanza4

/ IN THE HIGH COURT OF TANZANIA i

ABOUR DIVISION

AT MWANZA REVISION NO 38 OF 2013 ADVENTINA KAJUNGU .. .. .... .. .. ... ... .. . .. .. .. .. ... . APPLICANT

VERSUS BUKUMBI HOSP ITAL .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . RESPONDENT I (Original CMAI MZAI MED/189/2009)

JUDGMENT 25/11/2013 & 2/1212013 R.M. RWEYEMAMU, J:-. i The parties in this application for revision had an employment relationship. The applicant (herein after, Kajungu) was employed by the respondent (herein after, the hospital). Their relationship went sour and their dispute was referred to labour dispute resolution institutions by Kajungu. Those facts are not disputed. What is not clear and is subject of apparent confusion, is the basis of Kajungu's arguments in this application. To . I '- help appreciate basis of my observation, I preface my decision with the following brief background history, given numerically per chronology of events:- 1. Kajungu's employment with the hospital was terminated on 18/5/2009. She filed a suit of unfair termination with the Commission for Mediation and Arbitration (CMA) on 4/6/2009. In that claim, she claimed payment of Tshs100.000.000/= and a reinstatement order. - 2. After filing the above claim, the hospital wrote a letter to Kajungu therein giving details of her benefits following termination. That was on 14/7/2009. According to 1 ' contents of that letter, Kajungu's total benefits were 1.919.729/16, but the hospital had deducted Tshs. 1,264,004/32, her outstanding ldan with Twiga Bank Corporation. Together with the benefits letter, the hospital at.tached a letter from the bank dated 8/7/2009 as evidence for the loan.

3. A few days later, that is, on 20/7/2009, the CMA issued a Mediator's Certificate of I Settlement (Statutory CMA F5) in the dispute filed by Kajungu on 4/6/2009. The Certificate (F5) was endorsed on the relevant space with the words: "Mgogoro huu umeisha mafao yake ya kuachishwa kazi yalipwe mkopo aliochukua bank". Literally translated,' dispute settled, her terminal benefits to be used to pay the bank loan'. F5 was signed by the Mediator as is the legal requirement.

4. After expiry of more than two years, on 26/11/2011 to be specific, Kajungu filed an application for execution of decree (registered in this Court ~s No. 41/2011 against the hospital. The amount of decree was indicated in the application for execution to be in the sum of Tshs. 74.102.280/=. As evidence of entitlement under the decree, I Kajungu attached CMA F5 issued on 20/712009, as explained immediately above.

5. That application for execution was scheduled for hearing before the Registrar on I 16/12/2011. The Registrar noted that "an award forwarded is practically not enforceable, as applied by D/holder, parties to go to mediator to endeavor in resolving tne matter making reference to mediated award dated 20/7/2009 as mediator is legally bound to remain un- seized till the matter is settled fully. It is so ordered".

6. Thereafter, Kajungu filed an application for review of the Mediated Award of 20/7/2009 in the CMA. In support of the application, Kajungu gave a number of reasons including that she never consented to the said mediated agreement. The 2 , ' I Arbitrator then made his decision in the ruling issued on 3/5/2012, which Kajungu now seeks to revise. I At the hearing of this application, Kajungu appeared in perso8 while the Hospital was represented by Mr. P.R.K. Rugaimukamu Advocate. Kajungu made a number of irreconcilable arguments. First she submitted that there was never a mediated agreement, which seemed to indicate that th~ dispute she referred to I the CMA on 4/6/2009 was not mediated, that the said dispute is yet to be arbitrated. She however admitted that the document in support of her application for execution of decree in I the sum of Tshs. 74.102.280/= was the disputed mediated agreement, F5. I In response, Mr. Rugaimukamu submitted that the application had no merit and should be dismissed because the dispute filed by Kajungu in the CMA was already settled i by mediation. He argued that Kajungu was havjng second thoughts - denying the obvious as evidenced by the facts. Counsel urged this Court not to permit Kajungu to have a change of position at this stage. He argued that had it been true that the dispute was not mediated as evidenced by F5, she should have gone on to,

seek arbitration of the dispute or sought its revision in time. She did neither of the two. I After evaluating the parties arguments in light of the facts itertiized earlier, I observe I and decide that:- ' I a. I find that no basis have been adduced to justify revision of the Arbitrator's decision that the dispute had been settled on 20/7/2009 as per F5. The fact is supported by I fact on record and is in accord with logic. If Kajungu believed the dispute had not I been settled then, she would have sought arbitration as prescribed under Section 87 (7) of the Employment and Labour Relations Act, 6/2004; 9s rightly noted by the Arbitrator and Counsel for the respondent in this application. 3 b. Or, if Kajungu believed F5 had been obtained improperly or. by misconduct on the I part of the Arbitrator, as she attempted to argue in this Court, she would have applied for its revision by this Court. c. I wish to add that my understanding of the Registrar's order of 16/2/2011 is different from that of the Arbitrator who issued the impugned decision on 3/5/2012, and apparently that of Kajungu. In my opinion, the order was not direction to the CMA k to review its mediated agreement. It appears to me that the Registrar was saying that there was no decree to execute despite Juliana's belief stemming from CMA F5, I that therefore, since the dispute was still 'unresolved the mediator can

continue the mediation process because under Section 86 (8) of the ELRA, the mediator remains I "... seized with the dispute until the dispute is settled ... ". For purpose bf the present decision however, do not find it necessary to decide the legal correctness of the Registrar's I direction. I d. Having discussed as I have done above, I find that the facts; that Kajungu never I sought to have the dispute arbitrated if she believed mediation had failed; that she never sought revision of the mediated agreement she believed was improperly procured; and that she used the same denounced mediated agreement as basis of her application for execution of decree, are all clear demonstration to any reasonable person, that Kajungu was either totally ignorant of all the abpve legal processes or was not sincere in bringing this application. In the end result of all the above, I find Kajungu's applicationAo h )l~ismiss it. I ,.~ ~ court 01 ,.,, -. , , _ ' . ·,j-'<:'..~ ' . ✓..❖-~~· ·. ~~~~ . ~ ~--~-'- R.M. Rweye : lf ;.;. ·: 'r. \ -~? 1 ·J JUDGE '\\.~ ·. ·~.,~~ ? ...~· / I. 25/11/2013 ', ~ '/ .\ ~ '-'~ ~ (_.., ,,. 4 bollr .,o :\' f-: / \"\'1,., .. -\ 1/ f/ · ~~ MAHA~· ~- ~~ 4 Date: 2/12/2013 Coram: Hon. R. M. Rweyemamu, J Applicant: Present in person For Applicant: Respondent: Absent For Respondent: CC: M.S. Mlandula/Christopher Court: Judgment delivered this 2/12/2013 in pre$ence of applicant alpne. Right of Appeal Explained. I I I I I, I R. M. Rweyema

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JUDGE 2/12/2013 I: 5 '

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