20190814 TZHC Mbeya

I. THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (LABOUR DIVISION) AT MBEYA APPLICATION FOR REVISION NO. 49 OF 2017 (Originating from Dispute No. CMA/MBY/50/201 7 of the Commission for Mediation and Arbitration for Mbeya at Mbeya, Hon. Mwalongo. A, Arbitrator) COSMAS PAUL MWIKOKO ....................................................... APPLICANT VERSUS KIMONDO SUPPLIES CO. LTD ................................................... RESPONDENT JUDGEMENT Date of Hearing: 23/05/2019 Date of Ruling : 14/08/2019 MONGELLA, J. The Applicant herein filed a complaint against the Respondent in the Commission for Mediation and Arbitration (CMA) claiming for terminal benefits. The matter could not be determined on merits after the CMA upheld the preliminary objection which was raised by the Respondent to the effect that the claim was filed out of time. Dissatisfied with that ruling the Applicant filed an application for revision in this Court praying for this Court to call for, examine and revise the records, proceedings and Ruling Page 1 of 6 dated 22nd day of September, 2017 delivered by Hon. Amani Mwalongo in the Labour Dispute No. CMA/MBY/50/201 7. The Applicant who represented himself submitted that he was employed by the Respondent in the position of accountant on ]st April 2012. The contract in which he was employed was renewable yearly. He worked until January 2017 when he was paid his last salary, as per annexture CFM 2. He submitted that his employer used to live in Arusha and used to delay in paying their salaries. That, he continued to work unpaid up to 24th April 2017 whereby he received a letter through an email, which was addressed to the Managers of CRDB and NMB banks informing them that the Applicant's employment contract was suspended until investigations against him were complete. At the CMA the matter was mentioned and they were told to settle. He then applied to amend his application at the CMA. The Respondent raised a preliminary objection that his application was time barred and the Arbitrator upheld the said preliminary objection. The Arbitrator agreed with the employer that the Applicant was terminated on 30 t h June 2016 while he was paid the salary until January 2017 and received the termination letter in April 2017. Replying to the Applicant's submission, Mr. Mbembelwa, learned advocate who represented the Respondent argued that the OMA determined the dispute taking into consideration the law. He submitted that the CMA properly employed the procedures whereby it first conducted mediation and then arbitration when the mediation was Page 2of6 It unsuccessful. He further argued that the Applicant was given a letter of termination on 22nd September 2016 which directed that the employment would seize on 30th October 2016. That, the letter of 24th April 2017, which the Applicant refers was directed to the managers of CRDB, NMB and VODACOM. That, the said letter stated that the Applicant was no longer authorised to deal with activities of the Respondent's company. He concluded by arguing that, basing on this the labour dispute filed by the Applicant was filed out of time for more than five months and there was no any application for extension of time as required under Regulation 10(1) of G.N. 64 of 2007. In rejoinder, the Applicant argued that the Respondent did not prove that the Applicant received the termination letter. That the letter addressed to the bank managers was also directed to him. The mediation process was not conducted properly by the CMA. He also said that it is not true that he was time barred for five months as he kept on receiving his salary up to January 2017 and continued working up to April 2017. After considering the arguments of both parties and thoroughly gone through the records of the CMA I have come up with the following findings. The Respondent claimed to have issued a letter of termination to the Applicant on 22nd September 2016 informing him that his employment will seize on 30fh October 2016 and produced the said letter Annexture KMS I. However, the records do not indicate anywhere the mode used by the Respondent to issue the said letter to the Applicant. Since the Applicant Page 3 of 6 4 ) denies being given the said letter, it was important for the CMA to make the Respondent prove that he really served the termination letter to the Applicant. For example, the Respondent should have proved if he served the said letter through email, dispatch book, etc. The absence of proof of service of the termination letter to the Applicant by the Respondent creates doubts as to whether the letter really reached the Applicant. The Applicant claimed that the Respondent continued to pay him salary up to January 2017 and he proved that by presenting the payroll for January 2017, which included his name (Annexture CPM2). The Applicant also submitted that the Respondent used to delay in paying them therefore when he did not receive the salary between February and April 2017, he did not worry. These facts were never challenged by the Respondent in either the CMA or in this Court during the hearing of the revision application and therefore I take them to be true. The fact that the Respondent continued to pay salary to the Applicant from October 2016 to January 2017 negates the allegation by the Respondent that he was terminated on 22nd October 2016. The Respondent sent the letter dated 24th April 2017 (Annexture CPM 3) via email to the managers of CRDB, NMB and VODACOM informing them that the Applicant has been suspended from work pending ongoing investigations against him. Upon reading Annexture CPM 3 I noted that the Applicant was among the people copied to receive the said letter. The said letter informed the mangers of CRDB, NMB and VODACOM that the Applicant seized to be the employee of the Respondent in September 2016, but continued to work as a casual jQbourer. However, there is no Page 4 of 6 4-, record in the CMA signifying that the Applicant continued to work as a casual labourer after being terminated on 30th October 2016. There is no any documentation or other kind of proof to that effeót. In addition, the date of termination mentioned in the letter addressed to the managers of CRDB, NMB and VODACOM differs from the one mentioned in the letter purported to be given to the Applicant. While the one given to the managers of CRDB, NMB and VODACOM mentions that the Applicant's contract was ended in September 2016; the one purported to be given to the Applicant mentions the contract ended on 30th October 2016. Under the circumstances I find there are doubts as to exact date the Applicant's employment contract was really terminated. Following the above observations it is my view that the CMA did not critically direct its mind into the facts and documentary evidence provided that led into the arouse of the labour dispute between the parties in this application. My finding therefore is that, the dispute arouse on 24th April 2017 when the Applicant received the letter informing the CRDB, NMB and VODACOM managers that he is no longer employed and not on 30th October 2016 as claimed by the Respondent and ruled by the CMA. Through the said letter, the Applicant also noted that the non- payment of the February to April Salary was done deliberately. With this finding, I order the file to be remitted back to the CMA for the dispute to be determined on merits. It is so ordered. Page 5 of6 Dated at Mbeya this 14th day Of August 2019 (A -, - ?I-, - L. M. MONGELLA JUDGE 14/08/2019 Court: Judgement delivered in Mbeya in Chambers this 141h day of August 2019 in the presence of the Applicant appearing in person and Mr. Davis Mbembelwa, learned Advocate representing the Respondent. (O!b7a- 1. M. MONGELLA JUDGE 14/08/2019 Right of app been duly explained. ~~ X - L. M. MONGELLA JUDGE 14/08/2019 Page 6 of 6 / / /