20131108 TZHC Mbeya5

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

ATMBEYA REVISION NO.42 OF 2013 ELIZABETH N.NG'MARYO ................................ APPLICANT

VERSUS RUNGWE DISTRICT COUNCIL ...................... RESPONDENT (Original/ CMA/MBY/70/2011)

JUDGEMENT 4/11/2013 &8/11/2013 Aboud, J The application is made under section 91 (1) (a) (2) (b) (c) of the Employment and Labour Relations Act, No.6 of 2004, Rule l' f 24 (1), (2) and 28 (1) (d) of the Labour Court Rules, GN.106 of !' i 2007. The applicant calls upon ~bis 5ourt to revise the arbitration award passed by the Commission for Mediation and Arbitration I,. (herein the CMA) at Mbeya on 28/5/2012. i' 1' Shortly are the facts of the matter. The applicant was an employee of the respondent since 1978. She retired on medical grounds on 01/02/2008. After retirement the respondent paid the I· 1 I I I applicant Tshs. 1,792,000/= as she claimed in her letter of 20/2/2008. Letter on the applicant claimed another payment from the respondent which the respondent refused to pay. The applicant filed a complaint at CMA da'iming for Terminal benefits of Tshs. 32,019,000/= in total, being the daily subsistence allowance during the date of termination to the date of intended transporting the applicant from Tukllyu to Kitongoria Village, subsistence allowance while being on journey, Luggage transport, I l Severance allowance and Fare allowance. In his decision the arbitrator dismissed the applicant's claims for reasons that the I applicant had been paid all her entitlements by the respondent, therefore she has no claims against the respondent. Dissatisfied I the applicant filed the

present application. At the hearing the applicant appeared in person while Mr. Amon Nyingi, Advocate accompanied by Glory Mnyemba, legal fficer appeared for the respondent. I Arguing the application the applicant submitted that she filed the present application for the court to revise the Arbitrator's award who failed to award repatriation allowance for her family I \ which was supposed to be paid by the respondent. She submitted that she received Tshs. 1,792,000/= as repatriation allowance when she returned from Dar es Salaam where she went for 2 j treatment. The applicant said the amount she received, if was j meant to be for repatriation allowance, it was not enough for her and her family considering the distance from Tukuyu, Mbeya to ,, ; Rambo in Kilimanjaro Region. The applicant further submitted \l i) that, she claimed Tshs. 32,019,000/= to the CMA being the daily I subsistence allowance during the date of termination to the date of her actual repatriation from Tukuyu ·to Kitongoria Village, subsistence allowance while being on journey, luggage transport, ,j Severance allowance and fare allowance which the Arbitrator did :1 ,I not award to the applicant despite the evidence to justify the : ' I .I i I claims against the respondent. She finally prayed for the court to revise and set aside the award and order the respondent to pay the amount claimed by the

applicant. Resisting the application Mr. Amon Nyingi submitted that fter retirement the applicant wrote a letter to the respondent ,. J dated 20/2/2008, claiming for repatriat1ion allowance to the tune of Tshs.1,792,000/= being transport allowance Tshs.39,000/=, from Tukuyu to Mbeya Tshs.306,000/=, from Mbeya to Moshi ;i I i I Tshs.935,000/= and from Moshi to Rambo Tshs.512,000/= which I ' ' ! ' the respondent paid to the respondent the fact which was t disputed by the applicant. Mr. Amon submitted further that on 3 ,.. -• 19/7/2010 wrote to the respondent claiming allowance from Tukuyu to Rambo since the amount which she was paid for that purpose was not sufficient as she is entitled for the luggage allowance of 5 tones. He said the resRondent replied by the letter dated 26/8/2010 that basing on her salary scale which is TGTS E3 according to Public Service Regulation her entitlement for luggage allowance was 3 tones equal to Tshs. 5,400,000/=. He further submitted that according to Standing Orders of 1994 which were applicable at that time the respondent had I I I : i discretion either to pay the luggage transport allowance in cash or to provide the transport. So the respondent asked the applicant through the letter dated 26/8/2010 to report to the respondent's office for the repatriation process· but the applicant did not appear or report to the respondent's office. He

finally prayed for the application to be dismissed since ne applicant did not want to perus.e ~r right accordingly. In rejoinder the applicant admitted to have received the letter dated 26/8/2010 and she went to see the District Executive Director but he was not present and she met the acting District Executive Director who denied to effect payment as per the letter. She said when the District Executive Director came back he did 4 j \ '' \ not pay the applicant the luggage allowance hence she decided to refer the matter to CMA. Having gone through the records and parties submissions I find the issue to be determined is whether the Arbitrator rightly held that the applicant is not entitled to the claims as shown in I her CMA form. ' ; I From the court records it is not disputed that the applicant . )aimed for repatriation allowance to the tune of Ths. I I I 1,792,000/= which she was paid by the respondent. It is also not disputed that the applicant claimed through her letter of I ' 19/7/2010 -luggage allowance from Tukuyu to Rombo since the amount which she was paid for that purpose was not sufficient. It is clear from the respondent's letter of 26/08/2010 that the ! : respondent decided to repatriate the applicant by providing her and her family 3 tons Motor Vehicle together with the bus fare 'I I i _ bm Tukuyu to Rambo the fact which ,. .,. was not disputed by the I I ,

I I , I applicant. Basing on the discussion above and parties arguments, I am of the view that the respondent did not refuse or dispute to repatriate the applicant from Tukuyu to Rombo. The applicant was supposed to make follow up as per the letter from the 5 respondent of 26/08/2010. Therefore l agree with the Arbitrator that the claims by· the applicant at CMA had no merit since the i applicant did not adduce any evidence to establish ·her claims. In I that regard I am of the view that the applicant may make follow up to the respondent regarding the repatriation process as she was advised by the respondent the letter dated 26/08/10 if he I wishes to do so. 1 I ,1 ,. :1 ( In the result I find nothing to fauJt the Arbitrator's award. ''' The application is hereby dismissed. I It is so ordered. I>•~~~,.,_ f",. I.D.ABOUD

JUDGE I I : I 8/11/ZOl.) ~'~if4~;:fQ~~~J;:;~~' ! ~, ? Date: 8/11/2013 Coram: Hon. I.D.Aboud,J Applicant: Present For Applicant Respondent: For Respondent: Absent i I CC: J. Mbasha ,i I I i'

I I I l Order: Judgement delivered on 8/11/i013 in the presence of the Applicant and the respo:dent is ~b: ,-,, '7r. ") 1 f nt. ~ · JUDGE / !I 8/11/2013 Right to appeal explained. -- ,i7. Applicant: I intended to appeal. LO.Aboud

JUDGE 8/11/2013 7 i , I i .I