erolink tanzania ltd vs gerald sinyangwe others 2020 tzhcld 1815 13 august 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAAM REVISION NO. 277 OF 2019 BETWEEN EROLINK TANZANIA LIMITED......................... APPLICANT VERSUS GERALD SINYANGWE & 16 OTHERS............... RESPONDENT JUDGMENT Date of Last Order: 16/06/2020 Date of Judgment: 13/08/2020 Z.G. Muruke. 3. EROLINK TANZANIA LIMITED the applicant, being disatisfied by the award of the Commission*of Mediation and Arbitration [herein to be referred as CMA] in the labour Dispute No. CMA/DSM/ILA/R.311/16/395 dated 6th August, 2017 Before Hon. Massay A - Arbitrator, which was in favour of the respondents GERALD SINYANGWE & 16 OTHERS, the applicant has filed this application seeking for revision of the award. The application was supported by the affidavit of the applicant's Human Resources Manager, Ahmad John. Challenging the application, the respondents filed the counter affidavit sworn by Gerald Sinyangwe on behalf of the other respondents. The applicant was served by Advocate Evod Mushi from Lawfront Advocates, while the respondent enjoyed the service of Advocate Sosten Mbedule from HESL Attorneys. Hearing was by way of written submission, I thank both parties for adhering to the schedule and for their submissions. The brief facts of the case are that, the respondents were employed by the applicant in various job positions in a one year term contract from 1st April, 2015 to 31st March,2016. On 23rd March, 2016 the applicant wrote a letter to inform the respondents that," he has no intention to 8 % ■* renew upon expiry of their contracts. The respondents were dissatisfied, hence referred the complaint before CMA where decision was on their favour. The applicant was aggrieved by the award and filed the present application. I support of the application, the applicant's counsel prayed to adopt affidavit in support of the application and submitted that the arbitrator erred in law bv determining’a matter without jurisdiction. That the parties in their employment 'contract at clause 11 agreed that incase of any % * dispute which may arise during contract. Shall be referred to arbitration, and 'the arbitration Act shall apply referring Section 93(1), (2) of the Employment and Labour Relations Act, Cap 366 RE 2002(Cap 366) Again it was stated that CMA has no jurisdiction to entertain the issues in regard to the underpayment of minimum wage. The jurisdiction for determination is on the District and Resident Magistrate courts as per Section 41(3) of the Labour Institution Act. Further, the applicant's Counsel stated that the applicant is not falling under the communication Sector. It was the applicant who employed the respondents and not Vodacom Tanzania as evidenced by the Employment contracts which were made by Erolink. Having found that the applicant was not falling under communication industry, the arbitrator contradicted himself by holding that the respondents were under paid without considering *the evidence before him and without proof of how much they were paid and what they were entitled. Moreover it was submitted that through CMA FI the applicant referred the dispute for unfair termination and not under payment. That •9.< the issue of under payment was raised by the respondent when testifying in arbitration stage hence it was a new issue to the applicant. Applicant's * counsel submitted that the arbitrator erred in law an fact by determining the dispute when there was no notice of representation as required under Rule 5 of the Labour Institution '/Mediation and Arbitration) Rules. He thus, prayed for revision of the award due to the explained irregularities. In reply, to”' the applicant's averment, the respondent's counsel started by raising'a preliminary objection that the matter is incompetent as the notice of application contravened Rule 24 (2), (f) of the Labour Court Rules GN 106/2007. The notice of application was not accompanied with a list and attachment of the documents that are material and relevant to the application. He thus prayed for dismissal of the application. On the grounds for revision it was averred that on the issue of jurisdiction the submission is misconceived and shall be disregarded because Cap 366 gives jurisdiction to CMA to entertain all labour matters, referring Section 2 of Cap 366. Respondent counsel went on arguing that its undisputed that the respondents were employed by the applicant but they were working with Vodacom Tanzania which falls under communication sector. In regard to the issue of underpayment it was contended that it was correct for the arbitrator to ,..decide that, the f respondent were under paid as well as the evidence was properly analyzed. That the arbitrator was right to award 65,375,312/= as it was proved through contracts and through the LaDour Institution Act Wage order GN.196/2013. He thus prayed for dismissal if the application. Having carefully considered the contesting submission of the parties, this court is called upon to determine" the following issues: i. Whether CMA had jurisdiction to entertain the dispute. ii. Whether the respondents were underpaid? iii. Relief of the parties. Before addressing the issues for determination, I find worth to deal with the preliminary objection raised by the respondent in cause of replying the,applicant's submission. That the matter is incompetent as the notice of application contravened Rule 24 (2), (f) of the Labour Court Rules GN 106/2007.- The notice of application was not accompanied with a list and attachment of the documents that are material and relevant to the application. It is worth noting that respondent was wrong to raise preliminary objection in cause of submissions. This amounts taking applicant by surprise. Preliminary objections being points of law need to be raised at earliest opportunity to enable not only applicant to be able to defend, but, also court to be aware and control proceedings for smooth administration of justice. I have carefully perused the notice of application, I found that the f ^ notice has been attached with an award, annexures Notice of expiration of Contract and the order dated 26th March,2019. I believe these are the materials which are relevant to the applicant, what is missing is a list of the attached documents. It is my view that lack of tfie same is not fatal so long as the documents have been attached to the notice of the application. I thus overrule the objection for speedy dispensation of justice. In answering the first issue. Jurisdiction refers to limit of a legal authority granted by the jaw to the courts to rule on legal matters. Jurisdiction should be one of the first things to establish in any litigation. It warrants title to determine the matter. The applicant alleged that CMA had no jurisdiction tQ determine the matter since, the parties in their contract agreed to settle tneir dispute through arbitration and the arbitration laws shall apply. From| CMA FI, which institutes claims before CMA the respondents claims included 18 months' salary Compensation, Notice, severance pay and other pending claims of which I believe they include the underpaid wages. It is my view that CMA had jurisdiction to determine only the claim for unfair termination and the statutory entitlements resulting from termination. 5 In regard to the claim of underpaid salaries, it is my opinion that the same were brought before CMA prematurely taking note that the cause of action arose while they were still in employment, as it is observed from records that the claims are from July-2013 to March 2016. It was agreed in Clause 11 of their employment contract on dispute settlement that; "Any dispute that may arise during the course of employment which has not been able to be solved amicably between the parties shall be referred to arbitration and the rules of the Arbitration Act, Tanzania shall apply^Failure to follow amicable dispute settlement procedure shall lead to disciplinary measures against the party /parties involved" From the wording of clause 11 abovejit is apparent that the parties had agreed to settle their dispute amicably through arbitration, in dispute which arouse when they had employment relationship. In the % v circumstances of this casClthere is no proof that from the time they were underpaid they had referred,their claims to arbitration as agreed in their contracts. v‘%. V In the case "of Travel port International Ltd Vs. Precise Systems Ltd,.Misc. Commercial Application No. 359 of 2017, it was held that:- *■ : I "It is the courts position that where there is in existence an agreement between the parties for them to refer the dispute to arbitration, regardless of the nature of the complaint the parties have to go before the Tribunal and not before the court. Therefore, the arbitration clause stands on its own and thus the principle of reparability is applicable." 6 In the matter at hand, the parties agreed to go for arbitration in case of dispute. Therefore, it was wrong for the applicant to file dispute at the CMA. Thus, the arbitrator wrongly determined the claim for unpaid wages as CMA had no jurisdiction. Basing on the above finding, I won't labour on determining the remaining issues, I hereby quash and set aside the arbitrator's order in regard to underpaid salary claims. The, application allowed. JUDGE 13/08/202CL Judgment delivered in the presence ’of Godfrey Nyangasa for the applicant and in the presence <of three*" respondents namely Gerald Shinyangwe, Amin Nyago and'Aniel Setumbi for the respondents. 1 ' ruke JUDGE 13/08/2020