19980311 TZHC Dar es Salaam

) \ IN THE :UGH COURT OF TJ~tJ>.Al',JIA JAR 3S S/fL/,_A'iY~ DIS'i'J.ICT REGISTRI MISG2LLLl.l\JEOU S CIVIL CAUSE NO. 75 OF 1996 LABOUR COlVJ'Jil3SIOi\JER ~ ' ' RE3F0liDENT ATTORNEY GZNERAL • • • • • • • • • 0 •

RULING BUBESHI, J: This application has been filed for the order of certiorari to remove into t~1is court and quash· tlile decision of the Labour Co1 ,:Lfssioner rr.ade on 21/12/95. 1 · The applicant bar.ik wa,s represer-rcE;d b:f;,Yirs Kato, learned counsel, where as hr. Ngwemb.,-, l!?afned State Counsel . appeared for the r2s1,.;ondeLt W-i th tho. leave of court, counsel were ordered to file·v,rrit.ten sl:..:Jfl:i::;Ei:•n.s: ~ '' .,·, the applicant I s ',Tritten su:-:irnissior! to 0e filed in court on ll/12/97, the respondent to file theirs ·on 29/1?/97 2-~·"d r::;:ly, if any, to be filed by 5/1/98. 1 ' Mrs Kato for tL-2 aJYPli"a11t iilec2 h(?:cs \;imely, -that is, on 11/12/97 as orlered.. ·n12 !"'·'?S:,).:).'.::lent has not, to date of this' Ruling, filed their ·,,irit-!::,e::; .:=;uL:.ission. This court therf?iore will pr()ceel wi thou·i.; t~·,.2 respondents written submission which is, as of th:i.3 ::°'.ate, some more than; 60 d_ays out :-:,f time. :t is Pe Tb. nent ~-J observe that the learned State Attorney h2s not se-::r: it fit --co comply with this court's order or seek extension of time, had he deemed necessary in t_he circ1JJi1stances. Such a practice, coming as J.S it does from tpe Attorney G2nerals Ci1artbers/to say the least, ,., .. highly uns~tisfactory. Now back tc, the submis2ions mc:1de by l''1rs. Kato •. It was s1,1bff,i••,t2d ' th2.t on 3J.../·A/93n J

, ·c_i-1,_~ fo::.lowirn:r ·~ ' ' employees ct t:::,: ).rr,lj.c::~.' :83.dc Richard hwambete, Lucy A. KiJ.3.piJ.o, Edwin ~iwakasonda and Ezekiel I'lihami '' f • t" were vc"1:F:tari1y ·retrenched, That there v,ras ·an agreement betweer: ·~:.,.e APr-1.: '.::?,:ct and the Organi;:c~i _:;r. of Tanzania Trade 2 I ori teria to b-2 00G2c:2d by the ap1,lic2nt during the retre; nchn:e nt exercise - Annexture A, to the applicants affic]c:.··r l t. I~ ·_·,:.s ag1~eed that employ2es to be retrencih"'·~l on the basis of the agreen1s1-:· ·-,rt:1re t-o be paid 1.: on top of their staT,.1"t0ry DC?Li::fi ts ar:, ad.i tio nsl payiuent termed 'Golden Hane! . Shake'. Th2.t t~1-~-:.~e we·r:-2 exceptions, that is those who did Eat qualify for -~i1.e .:;olden hand: shake additional payn,ents o. These s1Hployees, ir.c~~ ~~~~-~ o~ half pay, interms of i tern 3.14 and 3.15 of~- agreeuient., that Jvirs. Kato has submitted/of the. four employees, two had been acquitted from CrimiJ::ial charg9s but the applicant them had not decided to reinstate/before tl1e retrenchment exet'cise began. The other two Richard an:1- Lucy were still facing Crimiri.al charges ar:..d therefc,i~e coul:i nr,t qualify for the payment of the golden qand. shak~ payn,ents. For the applicant, J\'irs. Kato ha,s C.JIFL1ined that both the Conciliation ~oard 8.L,j_ trH? L~,~)ou::-· Cc;1,missioner acted ultra vires to ordeT t:°i2 applicant

to pay the golden hand shake which is not a statutory benefit. That the employE:.2s did not qualify and the Labour Comrnission?r had r:o power·s to order ;;:·. 2 :-:,pplicant to do so" That Section 26(2) :::-f th2 ;SE:c--1rity of Employment Act does not give the Labour Conupis.sio::.:_c such powers. That the only body competent to interpret th2 voluntary agreement and the award thereon is the Industrial Court. Again Mrs. Kato has submitted thcit the Labour Commissioner failed to consider tho.t the employees r~~Orence of the dispute to the Conciliation Board was out of time by four rnorrths~ instead of the statutory period of seven days!' She submitted turther that the Labour Coiumissioner had orderec:. the applicant to terminate the employees un:ler Section 26 (2) of the Security of Employment Act, which sectio:r: deals 'JL:,~-~ sun~rriary dismissals. And that he di--l not gi vr:ci :;:oc,a.se-ns for his decision. She prayed for -this court to quash the Labour Commissioners decision. 3 cbs,,,rv2d e-:i.rlier on in my ruling, the respon:ient counc0,l ~:~,_.s not filed his submission:::-. on b,::half of the Labour Coiiu,,issione:J..~. One i.s forced t0 t::::.2-r.i.k fi1aybe the learned State Attorney saw the v1isdom of D8t corning to the defence of the Labour Cornmissione::I'. Be it as it may, I think I am inclined to grant the application. Having carefully con.sicbr,::d the fac·ts of this application and the relevant provisio:ri..s cited by Mrs_. Kato,. I have come to the conclusion that the Labour Conimissioner acted ultra vires and therefore his decision was nullity at law. His decision which was clearly against the law cannot be allowed to stand. It is hereby quashed. Delivered in A. G . BUBESHI -JT]DGJ:E presence of lVlr. Ngwembe anQ. in absence of Mrs. Kato 11/3/98