edna pendael tenga vs parokia ya bugando 2010 tzhc 227 19 march 2010

IN THE HIGH C ^ R T OF TANiAN&

LABOUR DIVISION 1 i AT MWANZA !" t- : REVISION NO. 19 OF 2007 ff ■ j ! I ... ■■! • j EDNA PENDAEL TENGA............. J.. APPLICANT ' ' I | i- i' j! VERSUS PAROKIA YA B U G A N D O ..................RESPONDENT 1 ; (Original CMA/MZ/292/2007) i I ( 'i Ruling : 16/3/2010 & 19/ 3/2010 I ■ & | m ** h ■ ■ '• . tR.M. Rwevemamu 3:, I; •.» ' j ^ " Hf ; The applicant/employer seejks revision of the Commission o f Mediation ^Arbitration (CMA) award dated 30/10/2007 on grounds contained in her affidavit basically that; the arbitratorjerred in not ordering the employer/respondent to pay "twenty days salary worked by the applicant before ^jgzmjnation"arid "salary payment deducted from 1992 to 2005 after deducting 10% kmentionedln 'ground 6 (iv) o f ti\e affidavits grounds contained in ground 6 (iii) |i^-: ' i S $-and .(iv) of her affidavit. She adopted the said grounds at the hearing p ^i .'.j-ji; ' j l Iwhere-she appeared in person. j •-H ;. The application was opposed by the respondeKt/emplloy4/ in /the counter affidavit filed in opposition, grounds o'f whi^n were elaborated on by Mr. Malongo, advocate who appeared for the respondent at the hearing. He ^fuimitted that the applicant! failed to substantiate her claims during fa#i VVfy- W $jp- ; v‘ ,1 1 ! 3. , ||p|:ra|ion and further that payment of salary underpayments for the i:clairried 21 years was.time barred, she could only claim

payments for 6 p In reply/ the applicant submitted that the CMA failed to conduct arbitration proceedings according to law; that there was no arbitration hearing, !i instead, she was only instructed to give a breakdown of her claims and did not know:how the final figure was arrived at. ! . t t = .a ' ■ I , .: ! I I ■ 11 have checked the CMA retord of arbitration proceedings; they indeed fall «*•. V j ; ^s h o rt^f qualifying as arbitration proceedings asrequired by rule 32 of the r;: Labour Institutions (Mediation and Arbitration) Rules, GN 64/2007 (M&A ;i; ( i ! " n ; 1rules), The record does not show how the case’"'commenced, what issues : | 'T 1■ ; | f '•!If J |,^e^|ui3;for arbitration; wl^at evidence wasjea^and the like. It would j I^^pearthe^parties were only requested to file*statements- themselves not indicated to be part of the record. In short, there was no record of proceedings properly so called. This court has given directions in a number of case/oa the necessity to I ' y ■- keep a proper record of proceedings. Fortunatel/ most such records now emanating from the CMA comply with the requirements, and I that this i decision was made way back in 2007, before the court had extensively i discussed the issue. For benefit of thej arbitrator in question however, I ""v ' i i i ,shall quote this court's • discussion I on the issue in one such decision. In that 1case;;Project

Manager Barrick Gold Mine (BuiyanhuSu) Vs. Adriano A i i • ••■ '* r.. ... I l' i- ' i | Odhiambo, Revision 290/2008, the court observed among others that: "I have checked the CMAfarbitration record' the applicant's submission that the l i arbitrator failed to keep aj record of-proceedings as prescribed under rule 32 of the Labour Institutions ('Mediation and Arbitration) Rules, GN 64/2007 (M&A, i ! i i I ■1 ; .rules) is founded.!The record bears the applicant's submission out in that the, proceedings are scanty, and mixed1 , Second, it is not clear where mediation : : 1 ended and arbitration started an issue I address hereinafter." i i "This court has stressed alnumber of times including the case cited by counsel of BIDCO OIL SOAP vs ABDU SAID AND 3 OTHERS, Revision 11/2008, where 1 Mandia J, as he then was^ made a number of observations which are applicable $ - ! i the facts of this case. The Hon. Judge noted among others that in conducting arbitration proceedings; \ "...emphasis (is) on regular and orderly progress in law and i l l f procedure \from \commencement of an action to execution of judgementlthe functions ok arbitration are quasi-judicial, so arbitrators ; v lt | I ; • ;j should insist on basic characteristics o f orderliness and regularity in ! execution o f their\ duties. Luckily the Commission has made elaborate rules of procedurej (published as GN 64/2007 and GN

67/2007)... These ^ rules o f procedure are subsidiary legislation /n d arbitrators atie bound to .. l • follow rules set therein " ; In that case, the court held that failure to keep a proper record vitiated the ; i i vy.hole proceedings including the resultant award, which it proceeded to quash. ^ j d in g ^ ^ lja t principle, this court observed in (Grace Wanna vs'All Terrain Service,^Application No 16/2007that: j :| f j " | • j ! ‘ j ■' I ' j '' "To arrive at a proper record of proceedings prescribed under rule 32 of the (M&A rules), the CMA, using its powers under section 15 (1) (f) of the of the LLabour Institutions Act 7 of\2004, issued the Labour Institutions (Mediation and ...Arbitration Guidelines) RulesI GN 67 o f ,2007, (hereinafter the Guidelines) which specifies stages and contents of arbitration proceedings and if I may add, seeks . to give arbitration proceedings attributes of legal proceedings. The stages to be ■ j : ■V] •• fevered are contained in Rule 18 to 26 o f the guidelines. Proceedings complying with the guidelines will clearly show issues to be — !■ > f arbitrated upon, evidence le$ by each side to prove or disprove the issues, which *iv-‘ ' I ' :^K l^nceys receivedsas pef Rule 25,\ it will contained arguments by way o f ^written submissions which should be indicated in the proceedings, or made part .Hit j | o f the record where\ they are received

orally, also !where the arbitrator allows closing arguments, they should be systematically included in the record. Further, ■ | I •1 where there were preliminary issues,, evidence and arguments by each side ^ | I | j should be indicated in the record. Finally proceedings should contain the award ±jwhich should indicating the\ decision and reasons thereof on each issue resized fp rK I ^and'. a summary on matters itemized under guideline 27 (a) to (f). v'X ' \ . I I i j MTo make such proceedings| orderly would by necessity require numbering the rto-H * ■ i - ! -■ j ! ‘ $ pages in the cause o f proceedings sequentially, it yvouldrequire that the .written ; ; I ’• ■ . Vv ; 'notes be kept in a retrievable form and although Rule 32 (2) of the (M&A rules) permit "legible handwritten\ notes" when the same are required by parties for their records, revision purposes etc., a typed copy certified by the arbitrator should be supplied where applied] for under\Rule 32 (4) o f the Rules. That■ in my t, is the only sure way this court can tell/understand what transpired during the arbitration process and what aspects are'faulted or supported. \ ||4 U am aware that Rule 19 of the Guidelines empowers the arbitrator to determine > ! 1 how proceedings should Zje conducted' I wish to stress that such powers deal with matters like 'which 'party should start, how the dispute is introduced, 4'

i ^whether dosing remarks will be taken, whether to adjourn proceedings and the Wike/but such power do not allow an arbitrator to jump/skip the vital stages, or ' 'fail to keep a proper record". Due to failure to keep a proper record of proceedings, I hold as it was held : -i ) in many other cases with a similar irregularity that, the mishap amounted to^:|undam ental irregularity which vitiates the whole proceedings. I accordingly revise and quash the whole of the CMA proceedings including the^award, remit the file to the CIVIA with an i order that the dispute be processed afresh according to law. It is so ordered. R.M.Rweyemaraju Judge 18/ 3/2010 5 Date: 19/03/2010 j Coram:, .■' Hon. R.tyl. Rweyemamu, J. Applicant: j H U , i For Applicant: Absent • it • , Respondent: For Respondent: Pius M&kelele Secretary to the Parish for Respondent [ T L ■' .j ‘C.C.? Josephine Mbasha ' Court: ^••^-H'his matter is for ruling.! Ruling delivered this 19th March, 2010 in presence of the parties as above. R/A Explained. Order:Applicant to pjick knew .copy of the decision at the MZA CMA are Office. R.M. Rweyemai

JUDGE 1 9 /3 /2 0 1 0 6