secretary general researchers academicians allied workers union vs chairman 2020 tzhcld 96 28 april 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM LABOUR DISPUTE NO. 03 OF 2019 BETWEEN SECRETARY GENERAL, RESEARCHERS, ACADEMICIANS & ALLIED WORKERS UNION .......COMPLAINANT VERSUS CHAIRMAN, RESEARCHERS, ACADEMICIANS & ALLIED WORKERS UNION .......................................RESPONDENT RULING Date of Last Order: 16/03/2019 Date of Ruling: 28/04/2020 S.A.N. Wambura. J. This ruling is in respect of a preliminary objection raised by the respondent ch a ir m a n , researchers, a c a d em icia n s and a llied w orkers u n io n in respect of an application filed by the s e c r e t a r y , r e s e a r c h e r s , a c a d e m ic ia n s a n d a l l ie d w o r k e r s u n io n to the effect that:- (i). This Court lacksjurisdiction to hear the complaint. (ii). Absence of legal personality. (iii). Matter is resjudicata. (iv). Failure to exhaust internal remedies. (v). Breach of the law. In all the grounds I decided to look into ground No. (iv) on failure to exhaust the internal remedies. It was submitted by the respondent that the applicant has not even attached to the complaint the Constitution from which the Court would have seen the internal machinery available and to see whether they have been exhausted, which is a step necessary for the court to pass before exercising its jurisdiction under Section 53(1). It was submitted that the complainant had left behind a mandatory requirement for sustainability of the complaint. The complaint should therefore be dismissed as it is contrary to Rule 53(2) of the Labour Court Rules, 2007 which provides that:- "Rule 53(2) Before the Labour Court hears an application prescribed in Section (1), it shall satisfy itself that- (a) the organization's or federation's internal procedures have been exhausted; or (b) it is in the best interests of the organization... that the application be heard notwithstanding that any internal procedures have not been." In response the applicant argued that the Constitution of RAAWU gives powers to the respondent to Chair each organ of the trade union. He is the Chairman of the Executive Committee of the General Council of the Congress and of the Ethics Committee. The complainant could not take his case to any of the said organs and get justice because of the involvement of the respondent. That the law under Section 53(2)(b) of the Employment and Labour Relations Act, 2004, recognizes this factor hence gives powers to the Court to hear the dispute even when the internal remedies have not been exhausted. In response the respondent has submitted that the above quoted admission is beyond any doubt that the complainant knew of the available internal organs under the RAAWU Constitution. He has failed to tell the Court if at all he made such an attempt even for the sake of complying with the law and failed. He decided to file the matter prematurely before this Court knowing he had omitted the mandatory internal procedures. 3 They thus reiterated their submissions in chief and prayed that the court finds the matter prematurely filed before this Court and dismiss the same. That the complainant has submitted in the alternative that Section 53(2)(b) of Act No. 6/2004 allows the Court to hear the dispute when internal remedies have not been exhausted. This submission is wanting in merit for at least two main reasons; one, the present application was brought relying on Section 53(1) and therefore it cannot invoke the said provisions under paragraph (b) of Section 52(2); secondly, even if it could invoke the exception stated under Section 52(2)(b) the same is only applicable if it in the interest of the organization to do so. The complainant has not stated how it is for the interest of the organization to do so. It was there allegation that in fact it will jeopardize the interests of the organization because the threats advanced are against the Chairman who is the top leader in the organization. Therefore such exception cannot apply. It is not disputed that the internal machinery has not been exhausted. If all the Committees are Chaired by the respondent, I believe he could be asked to leave the Chairmanship to another person as the complaint is made against him. He could not be a Judge of his own cause. If the applicant would have been aggrieved by the said decision that is when the doors of this Court would be opened by the law for him to launch the complaint. As this is an issue of jurisdiction and the applicant has admitted that it is not purely a labour dispute but on issues to do with the daily activities of RAAWU, then the matter cannot be filed in Court before exhausting the internal mechanisms that have been put in place. I thus hold that this Court lacks jurisdiction to entertain the matter. Having found that this Court lacks jurisdiction I believe I do not have to labour on the other grounds. Preliminary objection is herein upheld and matter is struck out for being prematurely filed before this Court. MDGE 28/04/2020