excellent college health and allied science vs lightness ndanshau 2022 tzhcld 182 22 april 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION APPLICATION NO. 509 OF 2021 (Originating from CMA award issued by Hon. Msina, H. H., Arbitrator, in Labour complaint No. CMA/DSM/ILA/R.1276/18/120 dated 19* November 2021) BETWEEN EXCELLENT COLLEGE HEALTH AND ALLIED SCIENCE....... APPLICANT AND LIGHTNESS NDANSHAU.................................................. RESPONDENT RULING Date of the last order: 24/03/2022 Date of the Ruling: 22/4/2022 B. E. K. Mqanqa, J. On 6th September 2018 applicant entered three years fixed term contract with the Respondent as tutor to the applicant's college. On 10th June 2020, applicant terminated employment of the respondent on reason that the later created a WhatsApp Group without formal authorization by the employer (applicant). Aggrieved with the said termination, respondent filed Labour complaint No. CMA/DSM/ILA/R. 1276/18/120 at Ilala claiming i that the applicant breached the contract. At CMA, respondent was claiming to be paid TZS 29,340,000/= being compensation for 16th months', leave pay, and severance. Having heard evidence of both sides, on 19th November 2021, Hon. Msina, H. H, arbitrator, issue an award in favour of the respondent that applicant breached the contract. The arbitrator awarded respondent to be paid a total of TZS 28,080,000/= being salary for 16 months' unexpired period of the said fixed term contract, one month salary in lieu of notice and one month salary as annual leave pay. Applicant was aggrieved with the award, as a result, she filed this application seeking the court to revise the said award. In support of the notice of application, applicant filed the affidavit sworn by Dioniz Chuku, her principal officer, who raised three grounds for determination by the court. On the other hand, respondent filed the affidavit sworn by Allen Peter Nanyaro, her learned counsel to oppose the application. When the application was called for hearing on 24th March 2022, Mr. Raphael Rwezaula, and Allen Nanyaro, learned counsels for the applicant and respondent respectively, appeared and were ready to argue grounds raised by the applicant in the affidavit in support of the notice of application. But before addressing the court on the issues raised by the 2 applicant, I asked them to address the court as whether; CMA had jurisdiction to determine the matter between the parties. I did this because in my perusal of the CMA record, I found that the dispute arose on 10th June 2020, but the dispute was filed on 27th November 2020. Responding to the issue raised by the court, Mt. Rwezaura, learned counsel submitted that it is true that CMA Fl was filed on 27th November 2020 showing that the dispute arose on 10th June 2020. He went on that, the current CMA Fl was filed after the 1st CMA Fl was withdrawn on 13th November 2020 with leave to refile within 14 days. He argued that in the CMA Fl that was withdrawn, the employee (respondent) was claiming that she was unfairly terminated. Counsel for the applicant submitted that the dispute was filed out of time and that CMA had no jurisdiction because there was neither application nor order for condonation. Counsel concluded by praying that CMA proceedings be nullified and the award arising therefrom be quashed and set aside. On the other hand, Nanyaro, learned counsel for the respondent, submitted that on 19th June 2020, respondent filed the dispute at CMA showing that she was unfairly terminated. That, she later learnt that she was supposed to file the dispute relating to breach of contract. Counsel 3 submitted that based on that, on 13th November 2020 respondent withdrew the dispute relating to unfair termination. Counsel submitted that respondent was granted leave to file a proper CMA Fl relating to breach of contract. Counsel went on that, on 27th November 2020, respondent filed another CMA Fl relating to breach of contract that is the subject of this revision. During submissions, counsel for the respondent conceded that there was no application for condonation and that the 1st CMA Fl was on unfair termination and not breach of contract. In short, the cause of action that was filed on 19th June 2020 was on unfair termination which is not the same as breach of contract. Counsel also conceded that at the time of withdrawal of the dispute relating to unfair termination, the dispute relating to breach of contract was already out of time. Counsel further conceded that for CMA to determine a dispute filed out of time, there must be an application for condonation, but none was filed by the respondent. Counsel for the respondent was quick to submit that the 14 days leave granted by the arbitrator amounted to condonation and therefore the dispute was thereafter filed within time. Counsel submitted that the 14 days leave waived application for condonation. During submissions, counsel for the 4 respondent conceded further that, in an application for condonation, the applcant is supported to file CMA F2 and an affidavit showing reasons for the delay. Counsel also conceded that, in the 14 days leave, arbitrator did not state that application for condonation was waived. Counsel for the respondent maintained that the application was filed within time and that CMA had jurisdiction. I have considered the rival argument between counsels for the applicant and the respondent. While counsel for the applicant submitted that the application was filed out of time, counsel for the respondent was of the view that it was within time. It is undisputed that respondent's employment was terminated on 10th June 2020. It is also undisputed that CMA Fl showing that the three years fixed term contract of the respondent was breached by the applicant was filed on 27th November 2020 without application for condonation. It is further undisputed that prior to filing the CMA Fl relating to breach of contract, respondent filed CMA Fl showing that the cause of action is unfair termination. It was argued by counsel for the respondent that 14 days leave was granted to the respondent to file new CMA Fl relating to breach of contract and that the dispute was filed within time. With due respect to counsel for the respondent, at the time of 5 withdrawal of the dispute relating to unfair termination, there was nothing before the arbitrator relating to breach of contract between the parties. Therefore, in no way, the arbitrator can grant leave for the matter that was not before him. The arbitrator, in the circumstances of the application at hand, had only power to grant leave to the respondent to refile a dispute relating to unfair termination. I take this stance because unfair termination is different from breach of contract. More so, the two have two distinct limitations of time. In terms of Rule 10(1) of the Labour Institutions (Mediation and Arbitration) Rules, GN. No. 64 of 2007, the person intending to file a dispute relating to unfair termination must do so within 30 days. But, in terms of Rule 10(2) of GN. No. 64 of 2007 (supra) a person intending to file a dispute other than unfair termination, breach of contract inclusive, must do so within 60 days. It is my considered view that, by the time the respondent withdrew the dispute relating to unfair termination on 13th November 2020, sixty (60) days within which to file the dispute relating to breach of contract had already expired and was out of time. She was therefore supposed to fill and file CMA F2 i.e., application for condonation and an affidavit showing reasons for the delay as required under Rule 11 of GN. No. 64 of 2007 6 (supra). It is my view therefore that, since the dispute was filed out of time and without condonation, CMA had no jurisdiction. I therefore nullify CMA proceedings, quash, and set aside the award arising therefrom. Dated at Dar es Salaam this 22nd April 2022. B.E.K. Mganga JUDGE Ruling delivered today 22nd April 2022 in the presence of Mr. Raphael Rwezaula, advocate for the applicant and Mr. Allen Nanyaro, advocate for the respondent. B.E.K. Mganga JUDGE 7