DOROTHY PHUMBWE v

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 30292 OF 2024 (Arising from the Ruling delivered on 31/10/2024 by Hon. Kiwelu, L., Arbitrator in Labour Dispute No. CMA/DSM/UBG/19/2022 at Ubungo) DOROTHY PHUMBWE ..................................................................APPLICANT VERSUS THE UNIVERSITY OF DAR ES SALAAM ………………………..1ST RESPONDENT THE ATTORNEY GENERAL ……………………….....................2ND RESPONDENT JUDGMENT Date of last Order: 14/03/2025 Date of Judgment: 03/04/2025 B.E.K. Mganga, J Dorothy Phumbwe, the abovenamed applicant was an employee of the University of Dar es Salaam, the abovenamed 1st respondent. It happened that the respondent terminated employment of the applicant. Aggrieved with termination, applicant filed labour dispute No. CMA/DSM/UBG/19/2022 before the Commission for Mediation and Arbitration (CMA) Ubungo. At CMA, respondent raised a preliminary objection that: - “The Commission has no jurisdiction to entertain the application thereof as the complainant did not exhaust the internal remedies available to respondent disciplinary machinery of appealing to the staff Appeal 1 Disciplinary Committee as provided under rule 22 of the University of Dar es Salaam Rules, 2007.” After hearing submissions of the parties, the arbitrator sustained the preliminary objection and dismissed the dispute on ground that applicant did not exhaust internal remedies. Applicant was aggrieved with the said ruling hence this application for revision. In the affidavit in support of the Notice of Application, applicant raised two grounds namely: - 1. That, arbitrator erred in law and fact for dismissing dispute No. CMA/DSM/UBG/19/2022 for being premature. 2. That, arbitrator erred in law and facts for entertained the preliminary objection without first to receive evidence. When the application was called on for hearing, Mr. Remmy Ephraim William, learned advocate appeared and argued for and on behalf of the applicant while Ms. Lightness Msuya, Senior State Attorney appeared and argued on behalf of the respondent. Arguing the 1st ground, Mr. William submitted that arbitrator erred in law for dismissing the dispute on ground that it was prematurely filed by relying on Rule 22(1) of the University of Dar es Salaam Rules, 2007. After being probed by the court learned counsel conceded that prior to filing the dispute at CMA, applicant did not file the dispute in terms of the said rule. He was quick to submit that, disciplinary hearing 2 proceeded ex-parte because applicant was absent and that, she had only five days within which to file an appeal against the said decision. Counsel further submitted that, the decision of the said Committee was never communicated to the applicant and that she became aware of the said decision on 18th January 2016. He strongly submitted that, the arbitrator wrongly applied the Court of Appeal decision in the case of Jerome Kessy vs Ardhi University, Civil Appeal No. 352 of 2021, CAT (unreported) a party cannot file the dispute at CMA before exhausting internal remedies available. He went on that; the respondent’s internal rules do not give room for a person to appeal out of time hence it was proper for the applicant to file the dispute at CMA without exhausting internal remedies as she was out of time. To support his submissions, counsel cited the case of Bay port Financial Services (T) Ltd vs Cresence Mwandele, Civil Appeal No. 19 of 2017, CAT (unreported). Counsel further submitted that, there was no room to appeal because the person who issued termination letter is the one who was supposed to handle the appeal. Arguing the 2nd ground counsel for the applicant relied on the provisions rule 23(8) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, GN. No. 67 of 2007 and submit that, 3 arbitrator was supposed first to receive evidence and arguments before making decision on the preliminary matters. To cement on his point, he further cited the case of MS. Anjari Soda Factory Limited vs Joseph Tulo Shembilu and 3 Others, Civil Appeal No.572 of 2022, CAT (unreported). It was submissions by counsel for the applicant that, the preliminary objection that was raised by the respondent attracted evidence to be adduced and that, had the arbitrator heard evidence, he would have come up with a different decision. Counsel further submitted that, this court has a room to examine evidence annexed to applicant's application and make its findings. After being probed by the court, counsel conceded that, in an application for revision similar to the one at hand, the court makes decisions only based on evidence that was adduced at CMA and that there is no evidence that was adduced at CMA. With those submissions, counsel prayed that the application be allowed, and the file be remitted to CMA so that the parties can adduce their evidence. In alternative, he prayed that, if the court finds that the decision of the arbitrator was correct, applicant be given an opportunity to pursue her appeal in accordance with the University of Dar es Salaam rules. 4 Resisting the application, Ms. Msuya submitted that, the dispute was properly dismissed by the arbitrator. Senior State Attorney submitted that, the arbitrator properly considered the university of Dar es Salaam rules that requires applicant to exhaust internal remedies prior to filing the dispute at CMA because, applicant did not appeal to the disciplinary committee. She added that, the arbitrator correctly applied the decision of the Court of Appeal in Jerome’s case (Supra) to the matter that was before him. Ms. Msuya submitted that Mwandele's case (supra) is distinguishable in the circumstances of the application at hand because, in the said case, there was no mechanism guiding parties to exercise appeal unlike to the application at hand. She added that, absence of a rule allowing an employee to appeal out of time in the said rule cannot be a ground for applicant not to comply with the said rules. She submitted further that, time started to ran against applicant from the date she was served with termination letter and not, from the date a decision to terminate her employment was reached. She went on that, submissions that the person who signed a letter is the same to whom an appeal was supposed to be filed cannot be a ground for not complying with the rules. She quickly added that, that would have been one of applicant’s grounds before the Staff Disciplinary Committee had she appeal. Ms. Cited Jerome's case(supra) and Parin A.A Jafer and 5 others vs Abdalla Ahmed Jaber and Two Others [1996] TLR 110 and Muhimbili National Hospital vs Peter Gabriel Kukayilwa, Revision Application No. 16992 of 2024, HC(unreported) and submit that it is mandatory for a party to exhaust remedies prior to filing the case. With those submissions, she prayed the 1st ground be dismissed. Regarding the 2nd ground, Senior State Attorney submitted that, the preliminary objection that was before the arbitrator was pure on point of law and did not attract evidence to be adduced. She added that, there was no need of calling the parties to adduce evidence prior to determining the said preliminary objection. Counsel submitted that Anjari's case (supra) is distinguishable because, in the said case, preliminary objection was not determined until the case went to the Court of Appeal which remitted back the file to CMA for determination. On submissions by counsel for the applicant that this court should considered annextures to the application, Ms. Msuya submitted that, this court cannot rely on those annextures because they have not been tendered as exhibits at CMA. Senior State Attorney concluded her submissions by praying that the application be dismissed for want of merit. 6 In rejoinder, Mr. William submitted that Kukayilwa's case(supra) is distinguishable in the application at hand and reiterated his submissions in chief. I have examined CMA record and considered submissions that were made by the parties in this application. It is undisputed by the parties that, rule 22 (1) and (6) of the University of Dar Es Salaam Rules, 2007 provides that an employee aggrieved with the decision of a disciplinary nature or dismissal from, and terminations of employment may appeal before the Staff Disciplinary Appeal Committee. It is also undisputed by the parties that applicant did not appeal to the said Staff Disciplinary Appeal Committee prior to filing the dispute at CMA. The said rule provides: - “22(1) There is hereby established a Committee, to be known as the Staff Disciplinary. Appeals Committee, which shall deal with appeals of members of the Academic and Administrative Staff (6) The Staff Disciplinary Appeals Committee shall have appellate power over the decisions of a disciplinary nature or dismissals from and terminations of service or employment with the University affecting officers, other than the Vice-Chancellor or a Deputy Vice- Chancellor...” I have read applicant’s submissions at CMA and find that it was not disputed that, in termination letter, she was notified that, if she was aggrieved, may appeal to the Staff Disciplinary Committee in terms of the said rule 2007. At CMA, counsel for the applicant submitted that 7 applicant was informed her right to appeal before the staff disciplinary Appeal Committee, but she received the document after the said five days. It is my views that, five days started to run from the date applicant was served with the documents hence she had a right of appeal and was supposed to state before the said staff Disciplinary Appeal Committee the date she was served with the documents. It is my view that, there is no excuse for that. It is my considered view that, it was mandatory for the applicant to exhaust internal remedies prior to filing the dispute at CMA. My conclusion is fortified by what was held by the Court of Appeal in the case of Tanzania Posts Corporation vs Jeremiah Mwandi (Civil Appeal No. 474 of 2020) [2021] TZCA 311 (16 July 2021), Jerome Kessy vs Ardhi University (Civil Appeal No. 352 of 2021) [2023] TZCA 17771 (23 October 2023), Salim O. Kabora vs TANESCO Ltd & Others (Civil Appeal No. 55 of 2014) [2020] TZCA 1812 (7 October 2020),Tanzania Revenue Authority vs Tango Transport Company Ltd (Civil Appeal No. 84 of 2009) [2016] TZCA 2131 (26 October 2016) and Muhimbili National Hospital vs Peter Gabriel Kukayilwa (Revision Application No. 16992 of 2024) [2024] TZHCLD 167 (26 September 2024). In Jerome’s case (Supra), the Court of Appeal held inter-alia that:- 8 “…Our short conclusion is that, indeed the decision by the appellant to refer his complaints right away to the CMA without exhausting the remedies available under the respondent’s dispute resolution machinery was, for all purpose and intent, procedurally improper. For it is now the stance of this Court and therefore the law that, where as in the case under review, a given law provides for a specific forum to first deal with a given dispute, resort to such forum is quite indispensable before one can have recourse to the judicial remedy…” In Mwandi’s case (supra) the Court of Appeal held inter-alia that: - “Section 32A requires a public servant to exhaust the remedies provided under the Act before seeking remedies provided for in the labour laws... On account of the position stated by the Court, we therefore agree with Mr. Rumisha that, the CMA had no jurisdiction to entertain the respondent's employment dispute... In the said ground of appeal, the High Court is faulted to have concluded that, the respondent was entitled to seek remedy by invoking the jurisdiction of the CMA without exhausting the available internal remedy of appealing to the Board of Directors. The disciplinary matters of the appellant are regulated by its staff regulations titled SHIRIKA LA POSTA TANZANIA, KANUNI ZA UTUMISHI WA SHIRIKA, TOLEO LA NNE; DESEMBA 2014... Therefore, it is our considered view, the Board of Directors being a supreme body of the appellant, it is mandated with final say on matters relating to employment disputes and that is why under PART A of the Regulations the Board of Directors is prescribed as the overall Disciplinary Authority of the Tanzania Posts Corporation... In the light of the foregoing discussion, it was incumbent on the respondent to lodge his appeal to the Board of Directors so as to exhaust the internal remedies available prior to invoking other remedies available under the law and to be precise, the Public Service Act. In other words, the CMA had no jurisdiction to entertain the respondent's case as it so held.” 9 Guided by the above case laws, I hold that arbitrator properly applied the law in dismissing the dispute by the applicant because she filed the dispute at CMA prior to exhausting internal dispute resolution mechanism. It was submitted by counsel for the applicant that, there was no room to appeal because the person who issued termination letter is the one who was supposed to handle the appeal. With due respect to counsel for the applicant, that issue was not raised at CMA hence it cannot be raised at this revision stage. Counsel for the applicant invited the court to examine annextures to this application suggesting that the said annextures are evidence and that the court may base its decision on those annextures. With due respect to counsel for the applicant, those annextures are not evidence in this application as he correctly conceded. It was correctly submitted by counsel for the respondent those annextures because they have not been tendered as exhibits at CMA hence, they cannot be considered in this application. In the 2nd ground, arbitrator was criticized for dismissing the dispute instead of allowing the parties to adduce evidence and thereafter consider the preliminary objection. With due respect to 10 counsel for the applicant, that is not a proper position of the law. The preliminary objection that was raised by the respondent was purely on point of law. It was not a preliminary objection which its determination depended on evidence of the parties. Therefore, the arbitrator was justified to dismiss the dispute. For all what I have discussed hereinabove, I find that the application is devoid of merit and dismiss it. Dated at Dar es Salaam on this 3rd April 2025 B. E. K. Mganga JUDGE Judgment delivered on this 3rd April 2025 in Chambers in the presence of Ditrick Lwambano, State Attorney of the Respondents but in the absence of the Applicant. B. E. K. Mganga JUDGE 11