FRED EPIMACK MVUNGI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [ARUSHA SUB REGISTRY] AT ARUSHA APPLICATION FOR REVISION NO. 69 OF 2023 FRED EPIMACK MVUNGI............................................................. ..APPLICANT VERSUS AVCO INVESTMENT LIMITED...................................................... RESPONDENT JUDGMENT 04/11/2024 & 13/12/2024 MWENDA J.: The Applicant, FRED EPIMACK MVUNGI filed the present application seeking revision of the decision of the Commission for Mediation and Arbitration (herein CMA) in labour dispute No. CMA/ARS/ARS/161/2023/76/2023. The applicant is praying for the following orders: - 1. That this honourable court may be pleased to invoke its revisionary powers to call upon the records of the Commission for mediation and arbitration in Labour Dispute No. CMA/ARS/ARS/161/2023/76/2023 between FRED EPIMACK MVUNGI V. AVCO INVESTMENT LIMITED and to vary the decision of Honourabe Arbitrator thereof and give such order as it may consider necessary. 1 | Page 2. Any other relief this Honourable Court may deem fit and just to grant. The Applicant's legal issues arising from the material facts are found in paragraph 5 of the Applicant's affidavit in support of the application. The legal issues are as follows:- a) That, the Honourable Arbitrator erred in law and in fact by delivering the award after prescribed time limit of the law which is thirty days from the date of closing submissions without any justification while knowingly that the application was placed under special session for imposing the backlog and other cases. b) The Arbitrator erred in law and fact for neither showing a good cause for delay nor considering a party prejudiced by the said delay of the Award. c) The Arbitrator erred in law and fact by failing to comprehend the delay to deliver the award shall prejudiced the applicant's right to salary for over six months (sic). d) The Arbitrator failed to give proper orders to the status of the parties upon the dismissal of the application. e) The Arbitrator erred in law and fact by relying on unsubstantiated piece of evidence. 2 | Page f) That the Honourable Arbitrator erred in law and fact by failing to uphold that there was procedural irregularity in regard to the suspension process as there was no any letter proving or informing the Applicant how long the suspension shall last and what were his rights and or obligations during the suspension periods. g) That the decision reached by the Arbitrator on the award illustrates material irregularity thus the award was improperly procured. This application was argued by way of written submissions. Both parties to this application were represented. Ms. Stella Simkoko, learned Counsel, appeared for the applicant, while, Ms. Hellen Ngelime, learned Counsel represented the respondent. Submitting in support of the Application, Mr. MWAIMU, and Learned Advocate firstly prayed for the affidavit supporting this application to be adopted as part of his submission. Regarding the first to third legal issues, Mr. Mwaimu complained over the Hon. Arbitrator is failure to issue an award within the time prescribed by the law which is thirty days without showeth a good cause for delay. He added that the said act deprived the applicant's right to the salary for more than six months. He referred this court to Section 88 (11) of the Employment and Labour Relations Act, Cap 366 R.E 2019 and 3 | P a ge GN No. 67 of 2007 and added in that the intention of the legislature was not to nullify the proceedings but to speed up the deliverance of the awards so that the parties. In respect of the remaining legal issues, Mr. Mwaimu submitted that the Hon. Arbitrator failed to inform the applicant of his rights including the right to receive full month salary after the dismissal of the application while he was not represented and not acquaintance with the law. In conclusion he prayed for this court to invoke its powers by quash and set aside the Arbitral award delivered on 13/10/2023 so as the applicant can be paid his salaries and restore back to his position. In reply, Mr. Silayo, the Respondent's learned Counsel submitted that it is true that the award of the CMA needs to be delivered within thirty days as per Section 88 (1) of Cap 366 R.E 2019 and Regulation 27 (1) of GN No. 67 of 2004. However, he said the said provisions of the law do not provide any remedy when the award is delivered out of the prescribed time. He referred this court to number of case including the case of AMON MOLLEL V. SUNY SAFARIS LTD, LABOUR APPLICATION NO. 09 OF 2021 (HC AT Arusha) where Barthy, J held that CMA's award cannot be faulted simply because it was delivered out of the prescribed time because that will even necessitate more 4 | Page delay and cause inconvenience to parties. He was of the view that the deliverance of the award prematurely cannot remove the facts that the application was prematurely filed. As for the complain that the Hon. Arbitrator did not inform the applicant of his rights to receive full monthly payment, Mr. Silayo submitted that at the CMA, the applicant claimed that he was unfairly terminated, thus the argument of being paid full salary during the suspension period is unfounded. He added in that as the applicant did abscond from work, he rushed to CMA to avoid any consequence regarding the allegation of theft which occurred at his working place. He said this application is devoid of merit and the same deserve nothing than dismissal with costs for being frivolous and felicitous and the decision of the CMA to be upheld. In his rejoinder, Mr. Mwaimu apart from reiterating to what he submitted in his submission in chief, he also explained the types of suspension as per the law which was not among the legal issues raised in this application. Having carefully examined the parties’ submissions, and considering CMA's records, I find the issues for determination before the Court to be as follows; 5 1 Page (i) Whether the Arbitrator was justified to dismiss the dispute for being prematurely filed. (ii) Whether there was sufficiently reasons for the award to be delivered out of the prescribed time. Starting with the 1st issue of whether the Arbitrator was justified to dismiss the dispute for being prematurely filed, in his award, the Hon. Arbitrator while dismissing the application held that: "Kwa ufanuzi niiioutoa hapo juu, Tume imebaini ya kwamba mlalamikaji hakuachishwa kazi, baii a/isimamishwa kaz/' The said facts is supported with the evidence adduced by the applicant himself at CMA where he testified that: "Niiiajiriwa tarehe 1/6/217. Tarehe 14/04/2023 ni/isimamishwa kazi na baada ya wiki moja niiirudi nikaambiwa nirudi hadi nitakapoitwa iiipofika mwisho wa mwezi tarehe 6/05/2023 kuwa bado nimesimamishwa kazi na baada ya kuambiwa hivyo ndipo nikaamua kuja CMA kuwasiiisha madai ya mshahara yangu ambao kwa mweizi uiikuwa Tshs 300,000/=" 6 1 Page From the cited paragraph, the applicant admitted that he was yet to be terminated from his work by the time he went at CMA to claim for his salaries during the suspension period. However, his CMA Form No. 1 he stated otherwise in that he was terminated from employment. On that basis this court is of the view that Hon. Arbitrator was correct to dismiss the dispute for being prematurely filed. This court also agrees with Mr. Silayo in that as the applicant claimed for termination of employment and not his benefits during the suspension period, then the Hon. Arbitrator was not bound to explain his rights during the suspension period as the same was not part of the claim at the Commission. Regarding the 2nd issue, section 88 (11) of the Employment and Labour Relations Act, provides that the award of the CMA must be delivered within 30 days. The section reads as follows, I quote: - " Within thirty days of the conclusion of the arbitration proceedings, the arbitrator shall issue an award with reasons signed by the arbitration." 7 | Page The take from the cited provision of the law is that the arbitrator must issue an arbitration award within 30 days of closing the record or after the parties submitted their final submission. In this application the hearing of the dispute at CMA was conducted on 3/6/2023 and on the same date Hon. Arbitrator ordered that an award will be delivered on 10/7/2024. However, the same was delivered on 13/10/2024 without assigning any reasons for the delay. The question here is whether the said delay prejudiced the parties herein. It was held in the case of the case of TANZANIA BREWERIES LIMITED V. LEO KOBELO, [2015] LCCD 49 that: - "In the case of2000 Industries Ltd. Vs. Ha/ima Z. Giteta & 7 Others, Rev. No. 9 of2009, High Court at Dar es Salaam (unreported), the Court held that the award delivered outside of the required 30 days but the same did not cause any miscarriage ofjustice to the applicants as they failed to adduce any facts to show that they were unduly prejudiced as a result of non-delivery of the award within 30 days!. Being persuade by the cited authority, I am inclined to agree with Mr. Silayo that since the applicant has not shown that he has been prejudiced by the 8 | P 3ge delay in delivery of the said award, then the alleged delay in delivery of the award is not fatal and is curable under the principle of overriding objective which requires this Court to concentrate on substantive justice. See Section 3A and 3B of the Civil Procedure Code, Cap 33 R.E 2019. In the upshot, the present application is found with no merit and is hereby dismissed. This being a labour case, each party will bear his own costs. Ordered accordingly. DATED at ARUSHA this 13th day of December, 2024 9 | P a ge