REV

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM REVISION APPLICATION NO. 21952 OF 2024 (Arising from the Ruling delivered on 19/3/2024 by Hon. Mollel, B. Arbitrator, in Labour Dispute No. CMA/DSM/KIN/534/2023 at Kinondoni) ANTONY MICHAEL BARIYET ...……………..…..……………………... APPLICANT

VERSUS K.K. SECURITY (T) LIMITED ..………....................................... RESPONDENT

JUDGMENT Date of Last Order: 17/10/2024 Date of Judgment: 31/10/2024 B. E. K. Mganga, J. This is an application for revision against the Commission for Mediation and Arbitration (CMA)’s ruling at Kinondoni delivered on 18th August 2024 by Hon. Mollel, B.L, Arbitrator, in Labour dispute No. CMA/DSM/KIN/534/2023 in which the said arbitrator dismissed an application for condonation filed by the applicant. Facts leading to this application are that, applicant was employed by the respondent as a security guard. On 13th September 2023, applicant filed the abovenamed dispute at CMA alleging that, on 1st April 2023, respondent constructively terminated his employment contract. Being out of time, applicant also filed an application for condonation(CMA F2) supported by his affidavit. In the said CMA F2, 1 applicant indicated that the dispute arose on 1st April 2023 and that, he was out of time for four months. In the affidavit in support of the application for condonation, applicant stated inter-alia that, on 16th January 2023, respondent forced him to take all his nine(9) months untaken annual leave. He also stated that, on 18th January 2023, he travelled to Babati, Manyara region to take care his sick father. That, on 1st March 2023, respondent paid him his February 2023 monthly salary through his bank account. He further stated that, respondent did not pay him his salary for the

months of March and April 2023. In the said Affidavit, applicant deponed further that, he returned in Dar es Salaam in May 2023 to make follow up of his salary but in vain. That, on 3rd August 2023, he sought legal assistance from the Tanganyika Law Society (TLS) where he was advised to write a demand letter to the respondent demanding to be paid his salary within seven days but respondent did not respond. He further stated that, due to failure of the respondent to respond, he assumed that respondent has terminated his employment, consequently, on 5th September 2023, TLS appointed Felix Fabian Mtunzi, advocate to assist him. In resisting the application for condonation, respondent filed the Notice of Opposition and the counter affidavit sworn by Daniel Mwakajila, her Assistant Human Resources Manager. In the said counter 2 affidavit, the deponent deponed inter-alia that, applicant has not been terminated rather, he absconded from work and that, disciplinary procedures were haltered awaiting applicant’s availability so as to afford him right to be heard because, initially he was untraceable. On 19th March 2024, Hon, Mollel, B.L. Arbitrator, having considered evidence of the parties in both the affidavit and counter affidavit and rival submissions made thereto, dismissed the application for condonation for want of merit. Applicant was aggrieved with the said ruling hence this application. In support of the Notice of Application, applicant filed his affidavit in which he raised five(5) grounds of revision namely:- 1. That, the arbitrator erred in law and fact by holding that the applicant did not adduce good cause for the delay.

2. The arbitrator erred in law and fact for failure to clearly examine evidence adduced and attached by the applicant as to account for each day he delayed.

3. The arbitrator erred in law and fact for holding that the applicant absconded from work but failure to examine whether there were any evidence proving complains for abscondment or any efforts from respondent’s side looking for the applicant prior to the institution of labour dispute.

4. That the arbitrator erred in law and fact for failing to properly evaluate the evidences adduced by the applicant in support of termination for grossly not considering applicant’s follow ups correspondences which was received but never replied by respondent and 3 5. That arbitrator erred in law and fact for holding that the attached proof of 2016 annual leave was proof of January 2023 annual leave. Respondent resisted this application by filing both the Notice of Opposition and the Counter affidavit sworn by Mr. Daniel Mwakajila, her Assistant Human Resource Officer. When the application was called on for hearing, Mr. Felix Mtunzi, learned advocated appeared and argued for and on behalf of the applicant while Ms. Neema Ndossi, learned advocate appeared and argued for and on behalf of the respondent. At the time of hearing, counsel for the applicant abandoned the 5th ground and consolidated the 2nd and 4th grounds to read that the arbitrator erred in law and fact for failure to clearly examine evidence adduced by the applicant. After abandonment of the 5th ground and consolidation of the 2nd and 4th grounds, applicant remained with three(3) grounds namely:- 1. That, the arbitrator erred in law and fact by holding that the applicant did not adduce good cause for the delay.

2. That the arbitrator erred in law and fact for failure to clearly examine evidence adduced and attached by the applicant.

3. The arbitrator erred in law and fact for holding that the applicant absconded from work but failure to examine whether there were any evidence proving complains for abscondment or any efforts from respondent’s side looking for the applicant prior to the institution of labour dispute. 4 Arguing the 1st ground, counsel for the applicant submitted that, applicant adduced good reason for the delay as he was constructively terminated by the respondent on 1st April 2023. He submitted that, applicant filed the dispute at CMA together with the application for condonation on 13th September 2023. He further submitted that, reasons for the delay were that, (i) applicant was on leave from 16th January 2023 to 15th September 2023 because from 2016 he didnt any leave; (ii) on 18th January 2023, immediately after obtaining leave, he went to Babati to visit his father who was sick; (iii) on 23rd May 2023, he came back from Babati and found that respondent has stoped his salary from April 2023 as a result, he continued to make physical follow up to the respondent but the later did not respond or pay salary to the applicant. Counsel submitted further that, having seen that there was no response from the respondent, on 3rd August 2023, applicant sought legal aid from Tanganyika Law society where he was advised to write a letter to respondent praying to be given his salary arrears and

his employment status. Counsel added that, respondent did not respond to to the said letter, as a result, on 5th September 2023, Tanganyika Law Society assigned Fabian Mtunzi, advocate to assist applicant to file a labour dispute at CMA. He went on that, on 13th September 2023, applicant filed the dispute and an application for condonation at CMA. 5 Mr. Mtunzi further submitted that, applicant accounted for each day of the delay as it was held in the case of Attorney General v. Mkongo Building and Civil Works and Another, Civil Application No. 266/16 of 2019, CAT(Unreported). In his submissions, Mtunzi conceded that, in the application for condonation, applicant did not attach the letter showing that he was granted leave from 16th January 2023 to 15th September 2023. Counsel was quick to submit that, applicant attached a bus ticket to Babati and not a return ticket. He further submitted that, from 23rd May 2023 to 3rd August 2023, applicant tried to call respondent and visit respondent’s office but was denied access. When probed, counsel conceded that, there is no affidavit of a person applicant met at Tanganyika Law Society and advised him to write a demand letter to the respondent. He further conceded that, there is no affidavit of the advocate who assisted applicant to file an application for condonation. Arguing the 2nd ground, Mr. Mtunzi submitted that the arbitrator erred

in law and facts for failure to examine evidence adduced by the applicant. He strongly submitted that, in annextures AB5 and AB6, applicant demonstrated his close follow up of his salary from the respondent including visiting respondent's office, making phone calls and writing letters which were not responded to by the respondent. He 6 further submitted that, in annexture AB5 and AB6, applicant explained how he ended on taking leave. In the same submsisions, counsel conceded that there is no any attachment showing that applicant made phone calls that were never picked up by the respondent. Mr.Mtunzi further submitted that, in the affidavit in support of the application, applicant explained what happened between himself and the respondent before leaving for leave. He further submitted that, in the counter affidavit, respondent alleged that applicant absconded from office from 2nd February 2023 but on 1st March 2023 respondent deposited in applicant's bank account salary for February 2023. Counsel submitted that, it was not possible for the respondent to pay applicant salary for February while the later has absconded. He concluded that, failure of the arbitrator to evaluate evidence or improperly evaluating evidence led to wrong and or biased conclusion or miscarriage of justice. To support that conclusion, Mr. Mtunzi cited the case of Joseph Athanazi v. Makene Musimu, PC Civil

Appeal No. 04 of 2023, HC(Unreported). Submitting on the 3rd ground, Mr. Mtunzi submit that, applicant has demonstrated that his follow up to the respondent including phone calls and a letter was never responded to by the respondent. He also submitted that, applicant had a valid and active postal address and 7 phone numbers but there is no proof that respondent tried to communicate with the applicant if at all he absconded from work. Counsel added that, in terms of Rule 13(1) of the Labour Institutions (Code of Good Practice) Rules, GN. 42 of 2007, respondent was supposed to conduct investigation and conduct a fair hearing. He went on that, it was a duty of the respondent to prove that applicant absconded as it was held in the case of Off Route Technologies v. Daniel Yesaya Mwaibindi, Revision No. 21 of 2017, HC(Unreported). With those submissions, Mr. utunzi prayed the court to allow the application, grant condonation and allow the parties to go back to CMA so that the dispute can be heard on merit. Resisting the 1st ground of application, Ms. Ndossi submitted that, there is no proof that applicant was on leave because leave application form AB2 attached to the affidavit in support of the application is for the year 2016 and not 2023. She added that, allegations that applicant was forced to take leave in 2023 is not true because there is no leave application form. She went on

that, applicant did not prove that he did not take leave from 2016 to 2023 as there was no leave application forms attached to the affidavit in support of the application showing that he prayed to be granted leave and that the application was rejected. She further submitted that, an applicant had a duty to apply for leave as he 8 did for the year 2016 but there is not proof that he applied for leave and the same was rejected by the respondent. She went on that, applicant was supposed to attach leave to his affidavit, application form from 2016 to 2023 that were rejected by the respondent. On the allegation that applicant was constructively terminated on 1st April 2023, Ms. Ndossi submitted that, that allegation is not true because applicant absconded from work. Counsel also submitted that, based on annexture AB3, it was submitted that applicant travelled to Babati and attached NHIF form to show that he had a sick person in hospital. Ms. Ndosssi further submitted that, NHIF forms attached to the applicant’s affidvit shows that the patient was not admitted in hospital. He aaded that, the letter from the hospital attached to the affidavit shows that the partient was not admitted in hospital. She went on that, there is no conclusive proof that the person named in NHIF forms is the parent of the applicant and further that, there is no proof that sickness of the said person prevented

applicant to file the dispute. Ms. Ndossi cited the case of Hawa Issa Nchirya v. Ramadhan Iddi Nchirya and 2 Others, Civil Application No. 27/03 of 2021, CAT(unreported) to support her submissions that, for sickness to amount to good cause, it must have a bearing on the delay and that, sickness should not be used as sympathy for the application to be granted. Counsel submitted that, 9 for sickness to amount to good cause, it must be proved by evidence that it prevented the applicant to file the dispute. She further submitted that, applicant was never mentioned in the forms attached to his affiadavit. She added that, there is no affidavit of medical doctors showing that applicant was accompanying the patient at hospital. Ms. Ndossi also submitted that, there is no proof that applicant came back from Babati in May 2023. She further submitted that, applicant failed to account for the delay from 16th May 2023 to 3rd August 2023 and the delay from 3rd August 2023 to 14th August 2023 when he wrote another letter. She added that, applicant did not also account for the delay from 14th August 2023 to 11th September 2023, the date he filed the dispute at CMA. On the requirement to account for each day of the delay counsel for the respondent cited the case of Lyamuya Construction Company Ltd v. Board of Registered Trustee of Young Women's Christian Association of Tanzania, Civil

Application No. 2 of 20210, CAT, (Unreported) and Mkongo's case (supra). She added that the delay of five(5) days is inordinate. Resisting the 2nd ground, Ms. Ndossi submitted that, the arbitrator considered evidence of the parties. She added that, annexture AB5 and AB6 were considered by the arbitrator and found that, there was no 10 proof of follow up or phone calls by the applicant to the respondent. She went on that, the said annextures does not prove whereabouts of the applicant at the time he was absent from work. On the 3rd ground, counsel for the respondent submitted that, respondent was not supposed to prove that applicant absconded because it was an application for condonation and not the main dispute. She added that, rule 13 of GN. No. 42 of 2007(supra) was not applicable at condonation application stage. With those submissions, Ms. Ndossi prayed the court to dismiss the application for want of merit. In rejoind, Mr. Mtunzi submitted that, leave form (AB2) is relevant because it shows the last leave granted to the applicant. He added that, annexture BA6 dated 14th August 2023 shows that applicant wrote a letter that was not responded to by the respondent and that, applicant was forced to go on leave for 9 months. He also submitted that, being out patient does not mean that the person was not sick. Mr. Mtunzi further submitted that, applicant failed to file

the dispute while in Babati because, he wanted to be in Dar es Salaam physically at the time of filing the dispute. He also submitted that medical report was issued in July 2023 because, normally medical reports are issued after a patient has recovered and the same can be 11 issued after a long period. He further submitted that, applicant waited for three months for the respondent to respond prior to filing the dispute at CMA. I have examined the CMA record especially, evidence of the parties in both the affidvit and the counter affidavit in support of the application for condonation and the counter affidavit in opposition thereof and considered rival submissions of the parties in this application. I should point out at this stage that, application for condonation is governed by the provisions of rule 11 and 29 both of the Labour Institutions(Mediation and Arbitration) Rules, GN. No. 64 of 2007. For the application for condonation to be granted, rule 11(3) of GN. No. 64 of 2007(supra) sets conditions inter-alia that, applicant must set out grounds for condonation, degree of lateness and reasons for lateness. In fact, rule 31 of GN. No. 64 of 2007(supra), clearly provide that, CMA may condone any failure to comply with time frame provided under the said GN upon good cause being shown. Therefore, for condonation to be granted, applicant must show good cause for the delay. This is

the settled position of the law obatined in the case of Sebastian Deogratius Kajula vs Simon Group/Shamba Africa (Civil Appeal No. 160 of 2021) [2024] TZCA 83 (22 February 2024) and Rombo 12 District Council & Another vs Hamis Haji Mfinanga (Civil Appeal No. 246 of 2022) [2024] TZCA 212 (21 March 2024) to mention but a few. In Kajula’s case (supra), the Court of Appeal held inter alia that:- “Equally important to observe here, is the settled and undisturbed position of the law for which we need not cite any supporting authority, that, a party seeking condonation is saddled with a duty to make out a case entitling it to the court's indulgence. For, otherwise, it must be trite that condonation cannot be given on a silver plate. Put in other words, a party seeking condonation is required to give a reasonable and acceptable explanation for non-compliance with the rules and the law prescribing specific timelines within which a party to a labour dispute should take the necessary legal steps.” The term good cause is not defined in GN. No. 64 of 2007(supra) but is based on the discretion of the Court which, in most cases, depends on the circumstances of the case, which are to be determined judiciously as it was held in the case of Vedastus Raphael vs Mwanza City Council & Others (Civil Application 594 of 2021) [2021] TZCA 696, Hawa Issa Nchirya vs Ramadhani Iddi Nchirya and 2 Others

(Civil Application 27 of 2021) [2021] TZCA 450 (18 August 2021) and ZET Construction Company Limited vs Kalokora Bwesha & Cecilia Boniface Shiyo (Civil Application No. 314/01 of 2022) [2024] TZCA 197 to mention just a few. Granting condonation being a discretion, the same must be done judiciously. 13 In order the court to exercise its discretion, applicant must provide sufficient reason for the delay or provide relevant materials and circumstances justifying the grant of the application. See the case of Victoria Real Estate Development Ltd vs Tanzania Investment Bank & Others (Civil Application 225 of 2014) [2015] TZCA 354, Rose Irene Mbwete vs Phoebe Martin Kyomo (Civil Application 70 of 2019) [2023] TZCA 111, and Omary Shaban Nyambu vs Dodoma Water & Sewarage Authority (Civil Application 146 of 2016) [2016] TZCA 892, to mention but a few. The issue is whether, applicant provided sufficient materals justifying the arbitrator to exercise discretion to grant the application for condonation. It was applicant’s evidence in his affidavit in support of the application that he was forced to take his 9 months untaken annual leave starting from 16th January 2023 and that on 18th January 2023, he travelled to Babati, Manyara region to take care his sick father. I have carefully examined the said affidavit and I am of the considered view that applicant did not take 9 months annual leave

because there are no supporting documents to that effect. Equally, the allegation that he travelled to Babati Manyara region to take care of his sick father were not proved because there is no proof that the person named in the 14 annextures to the applicant’s affidavit is the father of the applicant. In fact, in the said annextures, there is no name of the applicant mentioned therein. Even if assuming that the said person is the applicant’s father, that alone cannot be a justification for the grant of condonation because, (i) the person was an out patient and there is no proof that applicant was the only person to take care of him and (ii) applicant failed to prove how sickness of the said person prevent him to file the dispute within time. For sickness to be a good ground for extension of time or condonation, it must be shown how the same prevented the applicant to file the dispute within time as it was held in the case of Nyanza Roads Works Limited vs Giovanni Guidon (Civil Appeal 75 of 2020) [2021] TZCA 396 (20 August 2021) and Melchiad Peter Kimaro & Another vs Riziki Samuel (Civil Application No. 257/05 of 2023) [2023] TZCA 17691 (3 October 2023). It was submitted by counsel for the applicant that, medical report was issued in July 2023 because, normally, the same are issued after a patient has recovered and after a long period. With due respect to counsel for the

applicant, he is not an expert in that field. Assuming that he is an expert of which evidence is wanting, the same is not covered in 15 the applicant’s affidavit as such it is submissions from the bar hence not eveidence. It was deponed by the applicant that the dispute arose on 1st April 2023 and that he returned in dar es Salaam from Babati Manyara in May 2023 and made follow up of his salary from the respondent but in vain because respondent did not respond to his phone calls and that he was not granted access to office. It was also deponed by the applicant that, on 3rd August 2023, he sought legal assistance from the Tanganyika Law Society (TLS) and advised to write a demand letter to the respondent. I have examined the said affidavit and find that there is no plausible reason justifying as to why, after being aware that respondent terminated his employment constructively on 1st April 2023, he failed to file the dispute within 30 days that ended on 1st may 2023. Again, there is no justification as to why, he failed to file the dispute in May 2023 after his alleged return in Dar es salaam from Babati Manyara. It was submitted that, applicant wanted personally to make physical follow up of the matter to the respondent. In my view, that is an admission that he was not delligent. More so, that was his poor choice hence he has no one to blame. 16 In the affidavit in suport of

the application, applicant seemingly, atributes the delay to denial of access to the office by the respondent and failure of the later to respond to his phone calls and demand letter. With due respect, that cannot be a good ground to justify grant of condonation. It is my view that, whatever acts or ommission was done by the respondent and applicant succumbed to those acts or ommissions, cannot be a ground for grant of condonation. I am of that view because, in Kajula’s case (supra), the Court of Appeal held inter alia that:- “We revisit what we said albeit very briefly, in the case M/S P&O International Limited v. The Trustees of Tanzania National Parks (TANAPA) Civil Appeal No. 265 of 2020 (unreported). This case states that, pre-court action negotiations cannot form a ground for stopping the running of the limitation time…We also wish, to record our views that, given the position obtaining under our labour laws, rather than wasting time as he did, the appellant could have timely referred his grievances to the CMA and thereafter pursued a court-annexed mediation in the pre-arbitration stage of his case in terms of section 14 (1) (a) of the Labour Institutions Act.” In fact, applicant was supposed to be watchfull. Be as it may, there is no proof that applicant made phone calls to the respondent and that he was denied access to office. It was correctly submitted by counsel for

the respondent that applicant did not account for each day of the delay from 1st April 2023 to 17 3rd August 2023 and from 3rd August 2023 to 14th Auguts 2023 when he wrote a demand letter after being advised by unnamed person at the Tanganyika law Society. It was also correctly submitted on behalf of the respondent that, applicant did not account for the delay from 14th August 2023 to 11th September 2023, the date he filed the dispute at CMA. Applicant’s affidavit is silent as what prevented him to file the dispute in all these dates. It is a well settled position of the law in our jurisdiction that, in an application for condonation or extension of time, applicant must account for each day of the delay. In fact, there is a litany of case laws to that position. See the case of Bruno Wenceslaus Nyalifa vs Permanent Secretary Ministry of Home Affairs & Another (Civil Appeal 82 of 2017) [2018] TZCA 297 (13 December 2018), of Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011), of Said Nassor Zahor and Others vs. Nassor Zahor Abdallah El Nabahany and Another, Civil Application No. 278/15 of 2016, CAT, (unreported), Finca T. Limited & Another vs Boniface Mwalukisa, Civil Application No. 589 of 2018) [2019] TZCA 56, Zawadi Msemakweli vs. NMB PLC, Civil Application No.

221/18/2018 CAT (unreported)and Elias Kahimba Tibendalana vs. Inspector General of Police & Attorney General, 18 Civil Application No. 388/01 of 2020 CAT (unreported) to mention just a few. In the affidavit in support of the application, applicant stated that he went to the offices of the Tanganyika Law Society where he was advised to write a demand letter to the respondent. He also deponed that he was assisted by Felix Fabian Mtunzi, advocate, to file the dispute at CMA. The person who advised applicant to write the said demand letter and Mr. Felix Mtunzi, advocate did not file the affidavit to support what was deponed by the applicant. It is my view that, in absence of affidavits of those persons, that became hearsay that cannot be acted upon by the court or CMA. I am of that considered opinion because, an affidavit mentioning a person, that other person also must swear or affirm an affidavit otherwise the affidavit becomes hearsay worth not to be considered as it was held in the case of Sabena Techincs Dar Limited vs Michael J. Luwunzu (Civil Application 451 of 2020) [2021] TZCA 108 (14 April 2021), Power & Network Backup Ltd vs Olafsson Sequeira (Civil Application No. 307 of 2021) [2023] TZCA 80 (1 March 2023), Ester Baruti vs Seith Senyael Ayo & Another (Civil Application No. 514/17 of 2022) [2023] TZCA 17824 (13 November 2023), Elly Matiku & Another vs Mediterranean

Shipping 19 Company T. Ltd (Civil Appeal No.454 of 2020) [2023] TZCA 17461 (28 July 2023), Franconia Investment Ltd vs Tib Development Bank Ltd (Civil Application 270 of 2020) [2021] TZCA 563 (30 September 2021). It was submitted on behalf of the applicant relying on the provisions of rule Rule 13(1) of, GN. 42 of 2007(supra) that, respondent was supposed to conduct investigation and conduct a fair hearing. With due respect to counsel for the applicant, that provision is not applicable on applications for condonation rather, it is applicable when considering fairness of termination procedurally. It was also submitted by Mr. Mtunzi that respondent had a duty of proving that applicant absconded. With due respect, that is only applicable when considering validity of reason for termination when an employer terminates employment of the employee based on abscondment. Be as it may, averment by the respondent in the counter affidavit that applicant absconded was not challenged by the applicant because he did not file a reply to counter affidavit to counter that averment. For all what I have discussed herein above, I find that applicant failed to provide sufficient reason for the delay or failed to provide relevant materials and circumstances justifying the grant of the 20 application. He further failed to account for each day of the delay. In the upshot, I conclude that, the arbitrator was justified to dismiss the application for condonation. I therefore dismiss this application for want of merit. Dated at Dar es Salaam on this 31st October 2024 B. E. K. Mganga

JUDGE Judgment delivered on this 31st October 2024 in Chambers in the presence of Neema Ndossi, Advocate for the Respondent but in the absence of the Applicant. B. E. K. Mganga

JUDGE 21