fatuma jafari mgasa vs manishi home needs ind limited 2022 tzhcld 111 28 march 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM APPLICATION FOR REVISION NO. 497 OF 2020 BETWEEN FATUMA JAFARI MGASA APPLICANT VERSUS MANISH HOME NEEDS IND. LIMITED....................... .^^..RESI^ONDE^IT (From the decision Commission for Mediation & Arbitration of DSM at (Ngwashi: Arbitrator) Dated 22nd October 2020 inXabour Dispute^). CMA/DSM/ILA/926/19/01/2020pC, JUDGEMENT K, T. R. MTEULE, J, 15th & 28th March 2022 Jafari Mgasa (tlj^^pplicant) against her employer Manish Home ^eed^^b^'m^ed (the Respondent). The Applicant is applying for th^^^^to call for the records of the proceedings of the CMA for investigation on proprieties, correctness and legality and quash the said proceedings and reverse the award thereof dated 22nd October 2020. i To give an insight of the matter, a brief background is explained hereunder. The applicant was employed by the respondent on 20th September 2011 as a machine Operator. Her relationship with the Respondent turned bitter on 07th October 2019 when the applicant was accused of unlawful use of employer's property which was alleged to be misconduct. Basing on that alleged<jn^onii^, on^8th October 2019 a warning letter was issued to>>the applicant. Being aggrieved with the same the applicant tabid Ihco^plaint before Regional Commissioner for the purpose^of resolving the dispute. The step taken to RC office failecfio bear fruits, hence the matter was filed at CMA. CMA decided thaKthe matter was filed prematurely and proceeded to dismiss it, Aggrieved by the CMA decision the present application was Til§d%e^p> this Court with a view of seeking this Court to^revisetfheysaid award. The Notice of application is supported by th^A^I^i||xaffidavit which contained the following legal issues foNdeterriWation: - ITWhether the trial Commission for Mediation and Arbitration was correct in holding that the dispute was prematurely filed before it without ordering the respondent to pay applicant's dues. 2 2. Whether the trial Commission for Mediation and Arbitration was proper in holding that the dispute before it was prematurely filed and dismiss it without keeping on its findings to the finality if there is still any existing employer/employee relationship between the parties. 3. Whether or not after the dispute was hel^^tepre^^rely filed it was proper for the commission for mediation and arbitration not to keep its findings that tne^espondent was bound legally to accept the tppTk^nt to resume on duty without any loss to t|^-em^^^on. 4. Whether at all times%i^^^ondent stopped salaries to the applicant still^there was any existing employment contract betweenjithe^parties. after the dispute held to be prematurely filed proper remedy by the honorable first trial commission for mediation and arbitration to dismiss the ^ complaint at that status without any further determination to the finality of employer/employee relationship between the parties without any observation to the illegally suspended remuneration rights by the respondent to the applicant. 3 When the application came for hearing, Mr. Rajabu, Personal Representative, appeared for the applicant, while Mr. Mlyambelele, Advocate appeared for the respondent. Arguing for the application Mr. Rajabu remarked that since it is not disputed that the applicant was terminated without payment, the commission erred in law in holding that there was absen^e^m to justify such termination while no disciplinary action waslalen by the employer to confirm that allegation. Mr. Rajabujwhile^citing the case of Amina Ramadhani versus Sta^^ft^grtment Limited Rev. No. 461 of 2016, Nyerere, j||p^ 14^s^^itted that as the applicant % was still in employment^jjer abscorid'ment without notice attracted disciplinary measures.^e dfcgied the allegation that the Applicant never reported ©t^^place. Supporting his argument, he cited more r^^^^ys4i^luding the case of Abas Sherally & Another ^ Ab^^Sultan Haji Mohamed Fazal Boy, Civil Application No. 33 of^20(^^ireported). It was further submitted by Mr. Rajabu that the CMA award do not have relevance in law in holding that the application was prematurely filed without considering that by all the time of the dispute and before and till the date of decision the rights of applicant in relation 4 to her employment was violated by the employer, including nonpayment of applicants terminal benefits. He stated that on that weakness the CMA award is supposed to be revised on the ground that there is no ascertainment of employment relationship between the applicant and the respondent. He asserted that the Applicant was denied access to the office premises and no absco^^^ceas Disputing the application Mr. Mlyambelele^Jsubmi^^^that the epicenter of this dispute at CMA was&^etta^?he applicant's employment was unfairly terminated^I^puttin^the record proper, he stated that initially the Applicant was^uggipnded for one week due to disciplinary action and th'ereafter^sle presented her claim to the entire process of suspending the applicant. Mr. Mlyambelele submitted further that on 25th October 2019 the respondent received a letter of applicant's resignation which was issued by ESS Creative & Legal Foundation basing on applicant's directives. According to him, that letter acknowledged that the dispute was already resolved at Regional Commissioner's Office. The 5 counsel averred that due to this the employer was surprised by the matter in court as the applicant acted contrary to what they agreed in resolving the dispute. He relied on Exhibit M3 (Master Roll Book) to justify the Applicant's decision of resigning by not attending and signing the office register. % On access to the workplace, Mr. Mlyambelele argM^that th^lacks merits as the applicant failed to state any oilier efforturlade after being blocked to have access to the workplacl^sw^Moy reporting to the Regional Commissioner. Regarding the right to be heard Mr. Mfyarnbelele submitted that the respondent acted fairly w being a good listener to all employees, including respondin^^^^ional Commissioner's call to resolve the applicarpt^go^^^^He challenged Amina's Case cited by the applic^^^^^^ig that it addresses the issue of unfair termination and righ®ofee heard while the matter at hand relates to applicant's sus^t$(fi and not termination. He therefore submits that on that basis CMA was right to hold that the application was prematurely filed. On procedural aspect challenging lack of disciplinary steps, Mr. Mlyambelele submitted that the respondent failed to take any further 6 legal action as the applicant opted to resign by serving the respondent with the resignation letter (Exhibit M4) on 25th October 2019 and the same has never been disputed and no complaint against Advocate (Specioza Ndunguru) who issued the resignation notice has ever been lodged to put into task the Advocate for having acted in absence of the Applicant's instructions. this letter was issued basing on applicant directives. The applicant filed a rejoinder. Its contents^ will^be taken into consideration while determining J^e^ubstantive issues in this application. S nwP Having gone through thefcMA record, this Court's record, affidavit, counter affidavit anchthe finarsubmissions by both parties the central (fxw* issue for determination is derived from the issues identified in the affidaviti^Wi|gaI issues can be condensed into 3 main issues for determinafiorpin this application. The said issues are:- "^feg^Whether the CMA was correct in holding that the dispute was prematurely filed before it without ordering the respondent to pay applicant's dues. 2. Whether the trial Commission for Mediation and Arbitration was proper in not making a finding if there is still any 7 existing employer/employee relationship between the parties at all the times when the respondent stopped salaries to the applicant. 3. To what reliefs parties are entitled to? In addressing the above issues, I find it pertinenyto ahswer the question as to whether the respondent did termi^te^thg a^hcant's employment contracts. The applicant claims to<have been terminated from the employment and therefore, the GlWerredit law in holding that there was absenteeism while therejAZas fey » action taken by the ' employer on such absenteeisi^^^^^^^ On other side the res|or^nt maintained that after applicant being accused of unlawfhl^^^of employer's property (Misconduct), warning^te^^^^^ed which prompted the applicant to table the matter^efOTfeJ<e’gional Commissioner for the purpose of resolving the dispute amicably. It is further claimed by the Respondent that the appIicaQ^pted to resign by serving employer with resignation letter on 8th October 2019 hence there was no termination at the instant of the Respondent. Having perused the CMA record especially exhibit Ml (Warning letter) it's undisputed that warning letter was issued to the applicant on 8th 8 October 2019 regarding unlawfully use of employer's property. From that date when the said warning letter was issued the applicant seems to have not attended work till 12th October 2019 as per Exhibit M3 (attendance register). What appears to have happened is the callingufrom^Regional Commissioner issued to the respondent on 09th Oftooer 2019/which led to an attempt to resolve the dispute ^Bl^OctoBer 2019. Subsequently, on 25th October 2019 the resighation letter was served to the respondent. Although the resignatipnhwas disputed by the In my view the language and tlwerfent of the said letter, impliedly show that the applican^wasxsource of the information therein. As well waswritten at the instant of the applicant. It is an established principle that the one who allege must prove. (See the case of Registered Trustees of Joy in the Harvest v. Hamza K. Sungura v. Hamza K. Sungura, Civil Appeal No. 149 of 2017, Tanzania Court of appeal (unreported). On that basis applicant's 9 allegation that the resignation letter was not issued by the applicant lacks substantiation. Since the applicant decided to resign as per Rule 6 (2) of the Employment and Labour Relation Act (Code of Good Practices) GN. No. 42 of 2007 and having found no evidence of termination adduced in the CMA, then I have no hesitation to answer the question that the applicant was not terminated yby the respondent. Having found no termination, I proceed <to fiijjd asmo whether the CMA was correct in holding that the^sputeKwas prematurely filed without ordering the respondent to^pay/applicant's dues. The CMA justified it's finding that the application was prematurely before with the ground that thelermination did not take place. What was before the CMA was^^MG^m^arising from the alleged termination of applica^L^^feymerit. The CMA's jurisdiction is confined to what is brought befprewt. It could not grant relief out of what was sought ba^ng^p^me purported termination. Since termination did not take place, the arbitrator was correct to find the matter prematurely brought with no further orders. The first issue is therefore answered in the affirmative that the CMA was correct in holding that the dispute io was prematurely filed before it without ordering the respondent to pay applicant's any dues. The finding in the first issue is sufficient to answer the second issue. Since the Arbitrator found no termination at the instant of the automatically answered in accordance^ith^e^ findings in the first issue. With regards to relief, th^^plicant^is asking for revision of the CMA Awards and quash the^oreedings and reverse the awards. Since the allegation of ^^^atiofi was not substantiated and that the Arbitrator was °^ect ^er findings, the Applicant cannot obtain the this application. In the upshot, the application is dismis^dPand the CMA award is hereby upheld. Each party to take care of their own cost. Dated at Dar es Salaam this 28th Day of March, 2022. JUDGE 28/03/2022