eliya mbuya 3 others vs mamlaka ya maji safi na usafi wa mazingira another 2023 tzhc 23311 8 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA MISC. LABOUR APPLICATION NO. 02 OF 2023 (Originating from CMA/RK/46/2017 CMA RUKWA) ELIAH MBUYA ........... ................................... ................ . 1st APPLICANT 2 REGNALD SILAYO .......... .................................................. ...... nd APPLICANT YEKONIA FESTO............ ............................. ............ ............... 3RD APPLICANT ISMAIL JUMA ...... ........................... .................. . 4 th APPLICANT VERSUS MAMLAKA YA MAJI SAFI NA USAFI WA MAZINGIRA ............... 1st RESPONDENT THE ATTORNEY GENERAL ............................. 2nd RESPONDENT 05/12/2023, 08/12/2023 RULING MWENEMPAZI/ X: The applicants herein named were employed with the first Respondent in this application at various positions such as plumbers, guard meter reader until when their employments were terminated in 2017 August for the 2nd - 4th and September 2017 for the first applicant. All of them were aggrieved by the termination of their employment that it was unfair termination. They issued notice of intention to institute claims against their employer and later i instituted ciaims in the commission for mediation and Arbitration^ herein referred to as CMA, which dispute was registered as CMA/RK/46/2017. The applicants as their claims the following: Payment in lieu of notice of termination as per section 41(1) (a) (ii) and 41(5) of the Employment and Labour Relations Act, 2004 read together with paragraph 9.1 of Employment Contract; severance pay as per section 42(1) and 44(1) (e) of the Employment and Labour Relations Act, 2004; Damages for breach of contract as per paragraph 9.2 of Employment Contract; compensation for unfair termination as per section 40(1) (c) of the Employment and Labour Relations Act, 2004; Transport to the place of domicile as per the standing orders for the public service, certificate of service and general damages. The record shows at the mediation, CMA F6 was filled that the dispute has been settled and the mediator one Geofrey Jonas on 24/01/2018 recorded as follows: - "Each Applicant to be paid Tshs. 2,000,000/= as repatriation expense payment to be made at Respondent's , - offices by 31/01/2018". 2 The record of the CMA is silent as to what transpired after mediation save for the record by mediator, Geofrey Jonas that: - "Makubaliano yamefikiwa kama inavyoonyesha kwenye Fomu CMA F6" This application has been made under Rule 56(1) of the Labour Court Rules and section 91(1) (b) of the Employment and Labour Relations Act, [Cap 6 R.E2019]. They are seeking for the orders that this Honourable court be pleased to extend time to allow the applicants present their application for revision out of statutory time and that this Honourable court hears and determine revision and decides the matter accordingly. In the joint affidavit accompanying the application, at paragraph 6 the applicants have averred that during settlement meeting it was agreed that transport allowance is paid pending the ministerial directives over other claims thereby sued therefor. They have also averred that from the time of that settlement they have been calling upon the 1st respondents offices following up to our remaining claims to be told to wait until when they discovered that the Government had released the directive for payment of the claim. 3. It can therefore be safely concluded that settlement was not for all claims. It was on one claim awaiting the remaining claims to be resolved. When the application was served to the respondents, they filed counter affidavit and a notice of preliminary objection that: - "This application for revision contravenes the law as it originates from mediation and the same is prematurely filed without CMA award" At the hearing of the application the respondents were being represented by Mr. Erasto Balua and Lweno Ndanu learned State Attorneys. The respondent was being represented by Mr. Baltazar S. Chambi, Advocate. The counsel for respondent submitted that the application contravenes section 91(1) of the Employment and Labour Relations Act, 2004. The section provides as follows: "9(1) Any party to an arbitration award made under section 88(8) who alleges a defect in any arbitration proceedings under the auspices of the cornmission may 4 apply to the Labour Court for a decision to set aside the arbitration award: - (a) Within six weeks of the date that the award was served on the applicant unless the alleged defect involves improper procurement. (b) If the alleged defect involves improper procurement within six weeks of the date that the applicant that fact" Section 86 and 87 provided for mediation of the dispute. However, where the dispute is not resolved, the commission shall appoint an arbitrator to decide the dispute under the provision of section 88(2) of Employment and Labour Relations Act. That stage was not complied with in regard: to the rest of the disputed claims. The counsel prayed for the application to be dismissed for want of merit with costs. Mr. Lweno Ndanu, State Attorney submitted in addition that even if the applicants intended to file revision under Rule 28(1) of GN. 106/2007, Labour Court Rules, that also is premature as there was in final determination by the CMA. .5 In reply to the submission in chief, the counsel for the applicants Mr. Baltazar S. Cham bi, learned advocate submitted that although he admits to the position of law, it is wrong to pray for dismissal of the application. The correct way forward is to return the original file to the CMA so that the commission appoints an arbitrator under section 88(2) (a) of the Employment and Labour Relations Act and proceed to determine it as the procedure requires. The applicants have nothing special but they want to be heard. I have read the record as I have summarized herein above. I agree to the position of law as submitted by the counsels for both sides save for the prayer to dismiss by the counsel for respondent. For the reasons, the objection is sustained and I order that the original file be returned to the CMA so that the arbitrator is appointed and the applicants are heard. It is ordered accordingly. 6 Dated and signed at Sumbawanga this 08th day of December, 2023. T.M. MWENEMPAZI JUDGE Ruling delivered in the judge's chamber in the presence of the Applicants and absence of the Respondents. T.M. MWENEMPAZI JUDGE 08/12/2023 7