REV NO 11540 OF 2024 ESMAIL YAHAYA FUTEIN VRS ORGANIA CO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION APPLICATION NO. 11540 OF 2024 REFERENCE NO. 202405201000011540 (Arising from the decision Commission for Mediation & Arbitration o f DSM at Kinondoni) Dated 24h November 2023 in Labour Dispute No. CMA/DSM/KIN/91/2022/35/2022 ESMAIL YAHAYA FUTEIN.............................. ............................. APPLICANT VERSUS ORGANIA CO. LTD RESPONDENT JUDGEMENT J d - 0 h August 2024 OPIYO, J. This decision emanates from revision application against CMA award with reference No. CMA/DSM/KIN/91/2022/35/2022. The object is to revise and set aside the CMA award. He further prayed for this Court to make any other orders as it may deem just and equitable to grant. Historical background of the challenged matter is that on 14th February 2022 the applicant filed labour dispute no CMA/DSM/KIN/91/2022/35/2022 praying for the commission to determine the issue of the validity of the Employment Contract between the him and the respondent herein from 1st September 2015 to April 2017 which was disputed by the respondent. At arbitral stage suo motuthe issue of time limitation as to whether the matter was filed within time. This issue was raised by the arbitrator at the time he was composing the award. After hearing both sides on the issue raised the CMA ruled that the matter was filed out of time leading to the dismissal of the dispute. This triggered the present application. In the affidavit supporting this application the applicant advanced the following legal issues: - i. That, the Hon. Arbitrator erred in law and in fact by saying that the dispute instituted out of time while the matter was brought within the prescribed time. ii. That, the Hon. Arbitrator erred in law and in facts by failure to consider the evidence and Exhibits P2 tendered by the applicant which showed when the applicant came to know that there was a dispute. iii. That, the Hon. Arbitrator erred in law and in facts by saying that the applicant ought to have brought the matter before the commission for mediation and arbitration for the determination of the validity of contract before 2022 while knowing that there was no any dispute between the Applicant and Respondents during that period. The application was challenged via counter affidavit sworn by Mohamed Shekigenda, respondent's Human Resource Manager. The deponent of the counter affidavit vehemently disputed the applicant's assertion that the cause of action arose in 2022 while the same arose in 2017. He further disputed the fact that the arbitrator erred in law by holding that the matter was filed out of time. Orally the application was disposed of. In the application, the Applicant was represented by Mr. Abeli Mabula, Personal Representative, while the respondent was represented by Mr. Jackson Mgonja, Advocate. Supporting the application, Mr. Mabula submitted all grounds jointly. He argued that labour dispute in question was to ask the commission to determine validity of the contract between the applicant and respondent via CMA form No 1 filed on 14/2/2022, the same shows that the dispute arose on 31st January 2022. He stated that, at the CMA the matter was heard inter parties and was scheduled for judgement on 17/11/2023. Before that, they were called by Arbitrator informing them that she has raised the issue of time limitation suo motuand required to address him on the same. In addressing the same they brought different documents relating to proving that the matter was within time arguing that this dispute arose from the claim of applicant relating to his NSSF after being terminated unfairly on 1/11/2021 and successfully sued the respondent and executed in Execution application no 120/2021. On that basis, he is of the view that the the Arbitrator erred by saying that the application was out of time, contrary to what was revealed by exhibit P2 which showed the CMA form No 1, a letter from NSSF dated 31/1/2022 together with the employment contract signed on 1/9/2015 to April, 2017. According to exhibit P2, the dispute was in time because the same arose on 31/1/2022, that is when the applicant came to know that his employment between 1/9/2015 to April, 2017 was disputed by the respondent. That, after such knowledge is when he referred the matter to the CMA upon receiving the letter from NSSF informing him of the failure of remittance of the contributions on claim that he was not an employee at the time. He stated that, from the date the employee knew that the employer has denied him being her employee to the date he referred the matter is about 15 days only. On such basis he believes, the application was among other disputes other than unfair termination which are to be filed within 60 days as per Rule 10(2) of GN 64 of 2007 from the date when the dispute or cause of action arose. Supporting his argument, he made reference to the case of Barclays Bank v Phylsia Hussein Mchemu, Civil Appeal No. 19 of 2016, CAT at page 9 where it was held that time limit of filing labour dispute other than termination is 60 days from the date the cause of action arose. According to him, set of facts that led the applicant to file his dispute at CMA was gotten on 31/1/2022 as per exhibit P2. It has to be known that the determination of validity of contract from 2015 to 2017 came after the respondent parted ways with the respondent in the case that ended in 2021 and all along, they were living peaceful from when he started working. He added that, from 2015 to 2020 the NSSF contribution was deducted from his salary, and he had the same account at NSSF with reference No. 66340969 for the entire period he worked with the employer. After the conclusion of the dispute based on unfair termination that is when he went to make follow up on his NSSF benefits on 30/1/2022. He only found contributions of May 2017 to April 2019 as per report of NSSF of 6/Dec/ 2021. Mr. Mabula added that, in confirming the remaining balance of his contributions, it was stated that by then he had no work permit, but, he did not know that there was a dispute about his employment status. He stated that parties are bound by their own pleadings. As per Barclays Bank v Jacob Muro, Civil Appeal No 357/2019, CAT at page 11. That, their pleadings before commission were in CMA form No 1 which shows that the cause of action arose on 31 Jan 2022. In all, from the narrated facts, Mr. Mabura believes that the arbitrator failed to analyse evidence, hence erred in deciding that the matter was referred out of time. He thus prayed for the award to be quashed and set aside. Challenging the application, Mr. Mgonja arguing by staring narrating facts of the case that, the applicant was employed by the respondent from 4/4/2017 as technician, later on he was terminated on 20/4/2019 due to expiration of employment contract. Sometimes in June 2021, the complainant referred the labour dispute before CMA claiming for unfair termination. The dispute was determined, and award was in his favour. Later he filed execution application before this court. Parties reached settlement agreement in execution on 28/9/2021 (Exhibit D3). In between the time of honouring the settlement, the applicant prayed for 4 days to crosscheck his NSSF contributions. He then filed NSSF claim form, which was equally signed by the respondent. Thereafter, they received summons to appear before CMA, in which the complainant was claiming for validity of his contract with respondent from 1/9/2015 to April 2017. As to when the dispute arose, Mr. Mgonja submitted that the applicant said it arose on 31/1/2022, based on the letter he was served by NSSF, admitted as Exhibit P2. According to him the said letter was not a guarantee to divert the limitation period, the content o f ........ was to give him the direction as to where to go for checking the validity of his contract as the respondent had stated that for that period the applicant was not his employee while the applicant claims he was an employee. It was further submitted that the date of getting such knowledge is not necessarily the date the dispute arose. After all, the claim he is claiming, lapsed in April 2017. He argued that the applicant wrongly used the letter giving him directive on where to go for clarification which did not, in his view, change the fact that cause of action arose in 2017. That, all along the complainant relaxed and came to rely on the letter giving him mere directives. Regarding the definition of cause action, he said it is a situation that entitle the party to maintain an action in judiciary or tribunal as per Black Law dictionary, he fully subscribed to. He contended that, in this application the state of facts ranged from 2015 to 2017. He added that, according to section 5 of the Law of Limitation Act, cap 89 RE 2019 accrual of right of action is on the date the cause of action arose. In this matter, the cause of action arose in 2017 not on the day the letter was issued by NSSF. Mr. Mgonja further challenged admission of the report from NSSF. According to him it is new evidence that was never tendered at the CMA. He insisted that since his contributions were from 2017, then the report from NSSF should be ignored as it did not revive the accrual of cause of action's date. Supporting his position, he cited the case of Basil Gerald Mosha and 3 Others v. Ally Salim, (2004) TLR 96, it was held that, "ftis well established that, the underlining policy rationale for period o f limitation; statutory such as rule 45 (b) include that o f diligence in the speedy determination o fdispute with a reasonable rather than unreasonable or in ordinary length o f time o f fairness to the opposing party who is not to be the subject o f indefinite threat o f being drag to court on undetermined dates by an applicant who does not pursue his remedy timely" Based on the above argument, he prayed for this application to be dismissed for want of merits. In rejoinder, the applicant reiterated his submissions in chief and emphasized that, before he received a letter, he did not know that the employer will deny him being her employee for the previous contract. This dispute arose after claiming NSSF contributions, which was after signing deed of settlement resulting from labour dispute on unfair termination which had a clause that he was entitled to all statutory entitlements. Denial of a claim from NSSF for the previous contract that ended in 2017 was not in the picture at the time of settlement. From the submissions made by both parties, I formulate one issue for determination which is whether the dispute was time barred as held by the CMA. Determining limitation period in this matter entails examining the nature of the applicant's claim before CMA which was relating to the existence or validity of his employment contract. The records reveal that, indeed, from 2015 to 2017 there was no any state of facts entitling the applicant to bring such dispute in court because the parties lived peacefully, as argued by Mr. Mabula. The right to claim for NSSF contributions came after his termination and respondent denying him being his employee between the disputed period. In the circumstances, it is right to say that the cause of action could not have arisen at any time before the time of realization of non-remittance of his NSSF contributions on the ground of not being an employee. That is from the NSSF letter dated 31st January 2022, exhibit P2. That means, the accrual of the cause action is directly related to the service of the said letter to the applicant, not the time the former contract ended as the counsel for respondent insinuates, because, at that time there was no any circumstance that could make him predict that he will be denied being employee at the time. It follows therefore that, the dispute was filed within a prescribed time, making the arbitrators claim that the dispute was time barred unfounded. The arbitrator misdirected himself by not having a common understanding with the parties of the issues in controversy and instead raised irrelevant issue as to whether the matter was within time. From the above legal reasoning, I fault the Arbitrator's finding that the dispute was filed out of time. In the premises, I hereby quash and set aside the arbitrators decision. As the issue was raised suo motu by the arbitrator at the time of composing the award resulting in him not to compose award based on merits of the matter, the matter is remitted back to CMA for arbitration process before another competent arbitrator to start where it ended by composing an award addressing the disputed issues. Each party to the suit to take care of their own cost.