charles petro vs st carol institution 2014 tzhc 2324 28 july 2014

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT MWANZA REVISION NO 4 OF 2014 (ORIGINAL/ CMA/ MZA/26/2011) CHARLES PETRO................................................................ ,#APRE1^ANT VERSUS ST. CAROL INSTITUTION......................................... RESPONDENT JUDGEMENT 22/7/2014 & 28/7/2014 R.M.RWEYEMAMU, J:- This decision is made in an apffication fer^re^ ion of a Commission for Mediation and Arbitration (CMA) Mediator’s C e rtificl^p f Settlement. The immediate issue for decision is whether or not circumstances ^ tify in g revision of a Mediated agreement exist in this application. Before doing that however, I find it opportune to address two fundamental questions often encountered iH^altifce. The first question is whether or not a Mediated Agreement issuedJ)v the CMA is revisable by this Court; second, if the answer is in the - ; .. positive, what cifcumstarices justify revision of such agreement. rv ym The following background facts are undisputed. The applicant/employee referred an unfair termination dispute against the respondent to the CMA. The referral was made on 20/1/2011. In the dispute referral form (CMA F1), the applicant’s claim was not well articulated. He alleged unfair termination; that he had not been given written contract of employment for the 10 years period he had worked for the respondent; and sought payment [i] f of Tshs. 7,510,863/= as compensation in accordance with Section 40(c) of the Employment and Labour Relations Act, 6/2004 (ELRA). According to the CMA record; the parties appeared before a mediator on 11/2/2011; the respondent denied terminating the applicant; explained the applicant decided to stop work; that they then paid him all his benefits being, Severance pay, Notice, and 21 days unpaid up salary. The applicant is recorded to have admitted to have bee%>aid terminal benefits, and to have stated that he referred the dispute at the Cm A because he*didn’t know if he was paid all that he was entitled to. % It is further indicated that during mediation, thSli^pliQant agreed to withdraw the dispute on condition of being given assistanc^^^-JlV^i^pShiElent. The Mediator indicated that the dispute was amicably resolvedjby^he p ^rtie s ^d issued a Certificate of Settlement (CMA F5), signed by both parties. It wa^not indipateoon the said Certificate what kind of assistance the respondent was gqircj to prouder!?was also undisputed that the respondent thereafter assisted the a p p lic ^ B fto in g him 20 iron sheets. That offer aggrieved the applicant. He filed this a g g icit^n revision on two grounds: “1% Thattfeig_ni^tor not put into writings what we agreed on, instead in the form No. 5 he just w t e that the employer has decided to help me. <(&!>* fife 2. That-,the mediator forced me to sign the agreement which is not right as far as labour laws . Ft? .•_ % :■ . are concerned." * At th e ’hearing the applicant appeared in person, while Mr. Banyikila, personal representative represented the respondent. The applicant gave contradictory version of what transpired between the parties. First, he admitted signing the MA but submitted that he had understood the terms of the agreement differently; that he believed the respondent had agreed to assist him build a house, instead, he was only given iron sheets. He however also [2] 1 submitted that the mediator forced him to sign the agreement. That was opposed by the respondent who submitted that; they had paid the applicant all his entitlement, but had agreed to assist the applicant in recognition of his long period of service, and that; they made good their promise by giving him 20 iron sheets. After considering the parties’ submission, facts on the CMA of proceedings including on F5,1 find that a decision in this matter calls for determination of 1 |# o ll# 1 rtg points, 1. Whether or not a Mediated Agreement issued by the CMA can be revised by ffits Court: 2. If the answer is in the positive, what circumstances ju s t i^ ^ K ^ n of such agreements? . 3. Whether or not circumstances justifying revision^flhyeBiated agreement exist in this application, specifically, a. Whether the applicant was forcecS&y the o sign the Mediated Agreement, b. Whether both parties understood the terms of the amicable settlement My response to the f^ u e s % p is in the affirmative. A mediated agreement issued by the CMA can be refeed byi?ithe^!ourt, Why? Sections 94(1) (b) (1) and 91(1), (2) of the Employment andlaSdar Relation Act, 6/20Q4, (herein, the Act) read together with Rule 28 (1) of the Labour,Court-fltiles GN 106/ 2007 (herein, the Rules), empowers the Court, on its owifinotion o | on application by any party or interested person, to call and revise any proceedings. g|$mong others, a body vested with powers to implement provisions of the Acts, In my view, the CMA is one of the bodies implementing provisions of the Act, and a Mediated Agreement is part of the proceedings of the CMA. What circumstances justify such revision? In my considered opinion, factors justifying revision of a CMA mediated Agreement are similar to those justifying revision of a [3] CMA award. They are specified under Section 91 (2) (a) (b) and(c) read together with Rule 28 (1) (a) to (e) of the rules. Under the Rules, the Court is empowered to revise among others, proceedings where the CMA appears:- “a. To have exercised jurisdiction not vested in it by law; or b. To have failed to exercise jurisdiction so vested in it by law; or c. To have acted in the exercise o f its jurisdiction illegally or with niaterial irre g u la rity or d. That there has been an error material to the merits of tlwsutyjaqt matter, before such responsible person or body involving injustice, e. The Court may revise the proceedings and make such o r d e r s it deems fit: if* % Turning to the facts of this case, the question to % answered is whether any facts A % have been adduced justifying revision. The a ^ ^ 'f ^ u i j N s s i o n has two aspects. The first was that he was forced to sign th^f)ediat%agre'%nent. The other was that he did not understand what was agreed. If the first version is belietel/T^gt would be sufficient reason for revision because the Mediated Agreement- ^would h$ve $ben procured following misconduct on the part of the Mediator, themediatoi%/ould%.ave uacted in the exercise o f its ju risdictio n illegally". I cannot ; ~ ... .•? however, act o ^ lth e 'fi^ f^ fs io n because for one, it is unbelievable as the applicant contradictediii^ef% ^:earlier explained. Second, he signed F5 which had words, "....... nitaondoa kesi yangy^jcwa ridhaa yangu bila kushawishiwa na mtu yeyote”. The other reason and the major o n e }^ l# th e story of being forced cannot be acted on is that it was not among the grounds raised by the applicant in the supporting affidavit, it was just raised from the bar at the hearing. It would be unfair to the respondent and improper, to rely on such statement made from the bar. [4] My reaction and decision in respect of the applicant’s second complaint against the Mediated Agreement is different. On the facts, the question whether the Mediator acted properly comes to mind and my answer is in the negative. Why? Section 86 of the Act, read together with Rule 13 (2) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, GN. No. 67 of 2007 requires that; "Where the parties have settled the dispute, the mediator shall draft a settlement agreement". The record shows that the Mediator jjJ[d n| f | ^ aft a settlement agreement. The mediator simply recorded that:- “ Mlalamikaji a m e ku ip 'kto nd o a mt § 9 J $ ^ uu *wa kuwa mwajiri wake ana nia ya kumsaidia na haya makubaliano yaheshimiwe". ofcact terms of the Mediated Agreement were not indicated on F5. No wonder the applicant submitted that he h ^ a differerrftunderstanding of what was agreed- terms of the agreement; he bgij^yed^e re^pbhd^nt would assist him to build a house, but he was given iron sheet onlf|The respQn^gpl on .the other hand, understood that since they had paid the applicant all his they were agreeing to an ex-gratia help of their own choice. This, a ^ a l^ a d y demonstrated, is the source of the applicant’s dissatisfaction hence th is ^ p p Iic a tiJ ^ The complaint arose because the Mediated Agreement was not precfSS-^itl/^jssued contrary to requirements of sub-rule (a), (b) and (c) of rule 13|§) of the Guidelines which stipulates that; “the settlement agreement shall ensure that it; % ■' (a) Is clearly understood by all parties; % (b) Does not create further disputes; (c) Is clear and concise; (d) Includes a procedure for dealing with any dispute that may arise from application or interpretation of the agreement; (e) Caters for any ratification process required; and (f) Is signed by all parties to the dispute.” (Emphasis mine) [5] Clearly indicated in this case, is the fact that the Mediated Agreement was not clear and concise. It leaves room to further disputes, because it gives opportunity to a party to make a reasonable claim that what was agreed was not understood or to put a different construction to what was agreed, as appears to have been the situation in this case. In light of all the above, I find the application merited on grjyynd Ibat the Mediator acted in the exercise o f ju risd ictio n ...w ith material irregularity. Consequently, I ftp dispute unmediated; quash the impugned mediated Agreement andjnyoking p c ^ r s 91 (4) of the Act, order the same Mediator, (who under Section 86 (8) o y p § U ct remains “ remains seized with the dispute until the dispute is settled and may convene m e ^ 0 f e e t w e e M 3 parties to the dispute in order to settle the dispute at any time before or ....a rb itra tio n adjudication”) to summon the parties and commence mediation afresh. In tha. iIs, parties would be free to proceed with the dispute in the m anne® /escrib^:;undS Section 86 (7) (b) of the Act. It is so ordered / 'V ' ' V !$• A P a te: 2 8 /g 7 /2 ( ^ 4 % C o ra m : H o n ." A p p lic a n t: ~ ..present iri^p For A p p lic a n t : '^ . R e sp o n d e n t: f F or' R Reie s p o n d e n ts M r. B a n y ik ila , P ersonal R e p re s e n ta tiv e ■ CC: L I w izn a ^ jr i a 11 “t C o u rt: T h is m a tte r is fo r ju d g e m e n t. J u d g e m e n t d e liv e re d th is 2 8 /0 7 /2 0 1 4 in p re se n ce o f p a rtie s a b o ve . ' ‘ / R ig h t o f A p p e a l E x p la in e d . l.M Rweyemar i ' • JUDGE Vi‘ ‘ 28/07/2014 [6]