20131202 TZHC Mwanza

'I IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT MWANZA REVISION NO '.3 OF 2013 EMMANUEL BONAVENTURE MAHULULU & 12 OTHERS .............. APPLICANTS VERS~S . I · •i I INTERNATIONAL HEALTH PARTNERS ........................................... RESPONDENT I (Original CMA!MZA/226/2013) ;1 I JUDGMENT 26/11/2013 & 2/12/2013 R.M. RWEYEMAMU, J:- This is an application for revision of the: Commission for Mldiation and Arbitration.. I (CMA) decision issued on 31/11/2012. In : that decision the CMA dismissed the applicanUemployees' claim, on ground that, the. same was not filed in compliance with the order and direction of this Court issued on 13/6/2012. The employees are represented by Mr. H. Mrimi, a personal representative. The employer i~ represented Mr. Banturaki Advocat~. After considering lnd comparing the.facts J on the CMA record and that of Court togethef with the parties' rief submissions at the hearing, the following facts emerge undisputed: ; 1 The employees' claim was filed in the CMA on 4/10/2012 fdllowing an order of thiS Court issued on 13/6/2012. At the risk of making this decisio~ unduly long, I find it . . . I necessary, for ease of appreciation of the basis of the impugned CMA decision, to quote a 1 substantial part of the Court decision in question·. That part reads: 1 i ! ... Court Judgment of 13/6/2012 I "... In a decision delivered on 6/9/2011, the Commission for Mediation and Arbitration (CMA) ,· dismissed both the applicants' dispute filed out of time, together with the accompanying application for condonation of delay, which was filed by one of the applicants 6mmanuel Bonaventura on behalf of 13 others. Aggrieved by the decision, the applicants filed an application subject matter of this ruling for its revision. In this court and at the CMA, parties were represented by Mr. Hamis Mrimi (a personal representative by virtue of section 56(b) of the Labour Institutions Act, 712004.) and Mr. Banturaki advocate for the applicants and respondent respectively. ... I The applicants' had two complaints against the CMA (decision) both of which I found confusing in view of some of the undisputed facts. For example, they faulted the arbitrator's decision to dismiss the applicants' case as time barred (although they had filed an application for condonation). In the second ground, they faulted the arbitrator for dismissing their claims although the dispute was never heard on merit. In this court, Mr. H. Mrimi adopted the said grounds and elaborated further that: 1. The applicants were terminated on 9/4/2010 and timely filed their disputes with the CMA on 22/4/2010. 2. The applicants' dispute was registered as CMA dispute No. 158/2010; that the said dispute was partly settled by mediation and a Certificate of Settlement (CMA F. No 5~ issued; that the issue of unfair termination and compensation thereof had not been mediated on, and decided to amend the complaint by adding overtime claims;_that both claims were subject matter of the dispute dismissed in the impugned ruling of 6/9/2011. ! 3. The CMA erred by treating their said claims as new ones thus handling them in dispute No. 342/2010 In response, Mr. Banturaki submitted that the application had! no merit and should be dismissed because: 1. Dispute No 158 was settled and the applicants filed a new dispute which was time barred, a fact acknowledged by the applicants' action of filing CMA Form 7 -an application for condonation of delay which is an admission that there was delay. 2. The application for condonation was made by Emmanuel o'n behalf of others without following prescribed procedures for consolidation of suits and filing a representative suit. Irr view of that, their application was properly dismissed by the CMA. 2 3. The complaint regarding dismissal of the!claims was baseless as the dispute was never heard on merit. I I .. I found the parties' submission somehow confusing in view of the record of proceedings in the CMA dispute case file 158/2010, (referred to by Mr. Mrimi); dispute 342/2010 whose ; proceedings form basis of the impugned decision and the arbitrator's relasoning in that decision. After considering all the above, I make the following observation and deci~ion: I I I 1. The impugned decision shows that it related to the application· for condonation of delay which the arbitrator dismissed two grou~ds; one, that the applicants had filed separate complaints in the CMA by each duly completing CMA Form No'. 1 but the application for condonation however was jointly present!d as if the applicants disputes had been ordered consolidated which was improper and twb; that the joint applica~ion supported by affidavit was filed by one of the applicants - Em~anuel on behalf of others without following the procedure prescribed for filing a repres~ntative suit in the CMA. I should point out that there is no rational explanation why the applicants submitted that the application was not time barred despite filing Form 7, save that the same stems from some irregularity in the CMA proceedings which was confusing to the parties. That leads I me to the next point but I for now, The arbitrator's decision on both questions was so/und in law and I confirm it. 2. The proceedings in the two files show sqme material irregularity which resulted in a mix up revealed by the parties pleadings and submissions in this application. One such irregularity/confusion is relaled by the fact that the impugned decision I indicates to have been given in complai,nt No. 172/2010, which; is unexplainable in view ot I the fact that the two files in the matter have different numbers that is number 158 and 342. I I 3. The other evidence of confusion is that both parties' pleadings namely; the notice of application and response thereto, indicates that the application originated from disputes numbers 158 and 342. And, may (be) not surprising, the resp9ndent's notice of objection I where the issue of time bar is raised, has no CMA dispute case; number, but the applicants reply indicates the relevant file as 342/2010 and not 158- contradicting the applicant's I ! submission that the latter dispute was still continuing. 3 4 The proceedings in file No. 342 of 2010 ending with the order for delivery of ruling, and this is the ruling attached to the application by the applicant. Further, the said proceedings clearly indicate that the issue whether the applicants claims were a fresh dispute or a continuation of dispute No 158/2010 was raised and the CMA indicated it would decided on whether the applicants claim was a new one and whether the alleged added amendments, amounted to a fresh claim or were a continuation of the partly mediated .. dispute No.158/2010. Unfortunately, that decision was never made by the CMA; that was improper and a source of confusion to the parties. i Such a decision would have answered the question whether an abplication for condonation was necessary or not and the applicants' argument that the dis~ute before the CMA was not time barred would not have arisen. Instead of deciding that issue on 15/7/2011 as scheduled, the arbitrator said he would deal with that issue including those of joinder of plaintiffs and filing' of a representative suits among others, hearing was then scheduled for 17/8/2011. On that date, the record shows briefly presence of parties and admission by complainants that they had worked for 3 months only, followed by an order for ruling (subject matter of this application) on 6/9/2011~ 5, The balded part was in my opinion, not only vague and imprc!iper but also the source of confusion. It explains the applicant's otherwise absurd submis~ion that their claims were ! not time barred but a continuation of dispute 158/2010. ' 6. Further, I have noted that all the CMA Form No 1 in dispute 342/2010 indicate that the said complainants were filed on 22/4/2010, similar to the same forms found in dispute 158/2010, and were both in time. That seems to support the applicant's submission that after the respondents paid the applicants based on the mediated settlement, they believed they were entitled to other claims, and raised the same as advised by the mediator in dispute 158. .. If the applicants believed the above however, their application for condonation dated 12/7/2010 in file 342/2010 remains inexplicable. 4 .. ... In view of all the observation above, and despite my decision in point number 1, I believe it is in the interest of substantive justice including that of expedftious disposal of this case, using powers vested in this court by section 91 (4) (b ) of the Employment and Labour Relations Act, I 6/2004 read together with rule 28 (1) (e) of the Labour Court Rules, G:N 106/2007 to issue the I i following orders: a. I suo mottu order the applicants dispute (relating to claims for which they had filed the condonation application referred to in this ruling in July), consolidated. b. The applicants' personal representative in the CMA and this court Mr. Mrimi, is directed to properly file another application for condonation in the dispute I have ordered consolidated, and containing reasons similar to those given in the application earlier filed and serve the. respondent in the usual manner. c. The CMA is ordered to hear that application for condonation as if the same had been properly filed in July, and I direct that in deciding that application, the CMA should among others, take into consideration the undecided issue of whether the applicants claims were a continuation of dispute number 158/2010 and how the me~iator's comments in the certificate of mediated settlement in that case contributed to the qonfusion leading to delay. I i d. The orders above do not bar the CMA or the parties from reaching a mediated settlement on the claims. R.M.RWEYEMAMU J. JUDGE 12/6//2012 ... COURT: This ruling is delivered in presence of both parties' representa ives this 13th day of June, 2012. Right of appeal explained .... " / Such was the order and directions of this Court referred to by the Arbitrator in the now impugned decision. After receiving the same, the parties had :two options, to appeal that decision or to comply with it. ... 5 . I The decision was not appealed. Instead, the employees through the same ' representative Mr. H. Mrimi refilled the claim in the: CMA. Unexplainably, they did not file the ' same in accordance with directions of the Court - they did not fil e the application fey. 1 condonation as directed. They filed the claim afresh and argued that thie same was not time barred. It is in that background of non compliance with the Court order that I reach a decision ' I that Hon. Arbitrator rightly dismissed the em'ployees' claim on : 30/11/2012. As the employees have adduced no other ground to supiort their application that the said decision I should be revised, I find it unmerited and dismiss it. I ,....,,,...., . ~ - - . \(.J\~I'_ KtJu ~ , . R. M. Rweyemamu ,.. ., ~ Court ,.i "\ • '/ > ', -- JUDGE .t, ✓-.. "'1-~\ ,-'_ \ 7 ,,,, f,,... '°.. y.,.-· ',' 30/11/2013 ,i Date: 2/12/2013 ~ Coram: Hon. R. M. Rweyemamu, J 'Ji ~ Applicants: Mr. H. Mrimi - Personal Representative t\>-/qol/r Div·,~_io ~t-., For Applicant: '¾..• "rf4HAl(AtJI' ;,_, ~ ~ - / Respondent: Mr. Banturaki Advocate for For Respondent: CC: M.S. Mlandula/Christopher I I Court: Judgment delivered to the parties present as above, this 2/12/2013. I ! 1 Right of Appeal explained. R. M. Rweyemamu JUDGE 2/12/2013 6 ...