FRESTER MWOMBEKI LABOUR P

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA LABOUR REVISION NO. 03 OF 2023 FRESTER INVESTMENT COMPANY LIMITED...............APPLICANT VERSUS JULIUS MWOMBEKI…………………..…………..………RESPONDENT [Appeal from the decision of the Commission for Mediation and Arbitration for Kahama at Kahama.] (Hon. A. Massay.) dated the 6th day of June, 2022 in CMA/SHY/12/2022 ----------- JUDGMENT 4th September, 2023 & 20th March, 2024. S.M. KULITA, J. This Application has been filed by the Applicant by way of chamber summons and notice of application, in terms of the provisions of sections 91 (1) (a) (2) (b) and (c) and 94(1)(b)(i) of the Employment and Labour Relations Act (ELRA), Cap 366 RE 2019, and Rules 24 (1), 1 (2)(a)(b)(c)(d)(e) and (f), 24(3)(a)(b)(c) and (d) of the Labour Court Rules, G.N. No. 106 of 2007. In the chamber summons, the Applicant prays for this Court to revise and set aside the award of the Commission for Mediation and Arbitration (CMA) at Shinyanga in dispute No. CMA/SHY/KHM/12/2022 delivered on 6th June,2022. The application is supported with an affidavit sworn by Humphrey Joram Mungele, Principal Officer for the Applicant, on the 10th day of March, 2023. In reply thereto, the respondent raised Preliminary Objection on point of law that, this court has no jurisdiction to entertain the application at hand. As the law requires preliminary objections be argued first, on 4th September, 2023 the matter was scheduled for hearing of the Preliminary Objection. The respondent appeared in person whereas Mr. Goodluck Herman, Advocate appeared for the applicant. Submitting in support of the preliminary objection the respondent stated that, due to the non-appearance of the applicant at the CMA, the case was rightly entertained ex-parte as against him (applicant). He thus found it that this court is precluded to entertain revision application of 2 the applicant. He is of the view that the applicant was supposed to seek for the tribunal to set aside the ex-parte judgment. In the reply thereto, Mr. Herman submitted that, under section 94(1)(b)(i) of ELRA, this labour court is provided with exclusive jurisdiction to entertain this case. He stated that, apart from that, they are seeking for revision as they were not made a party at CMA, that, summons was not served to them. He said that the applicant came to know the matter during the execution process. He added that, before filing this revision, the applicant sought for extension of time and was granted on 14th February, 2023. He thus stated that, all procedures before seeking for revision were followed. He went further stating that, section 91(1)(a) and 91(2)(b) and (c) of ELRA provides for the means in which the ex-parte judgment in labour cases can be set aside after a lapse of the prescribed period of 6 (six) weeks from the date of delivery of the award. The Counsel added that, what the applicant had acquired was not an award but execution order from the Court Broker, which led the applicant to apply for stay of execution before he filed this application for revision. 3 In rejoinder, the respondent stated that, the applicant was supposed to appear before the CMA after the matter being determined ex-parte. He also reiterated his submissions in chief. I have keenly gone through the entire pleadings, submissions and the authorities cited by both parties to the case. It appears that the rival issues between parties is “whether, following the ex-parte award by the CMA, the applicant was required to lodge an application to set aside the award, or refer this revision application” Having heard the rival submissions, I am going to give a brief account on the procedure that governs labour dispute resolution by the CMA. The CMA is vested with jurisdiction to resolve disputes by way of Mediation and Arbitration through the mediators and arbitrators who are generally appointed by the CMA under section 19 of the Labour Institutions Act [CAP 300 RE 2019]. To deal with a dispute, the respective officers must have been specifically appointed thereof in terms of section 86(3)(a) of the ELRA for a mediator and section 88(2)(a) thereof, for an arbitrator. Before a referral goes for arbitration, it must first undergo compulsory mediation. Where the dispute is of right, like the instant 4 case, the mediation process has to be completed within 30 days from the date of referral or any longer period as the parties may mutually agree. Where the mediation fails because of the absence of either of the parties, section 87(3) of the ELRA, provides for the consequences in the following words: "87(3) In respect of complaint referred under this Act, the mediator may- (a) dismiss the complaint if the party who referred the complaint fails to attend a mediation hearing. (b) decide the complaint if the other party to the complaint fails to attend a mediation hearing" However, the remedy to the above consequences, that is, failure to attend mediation process is provided under the same section 87 at sub-section (5)(a) and (b) which provides; - “87(5) The Commission may reverse a decision made under this section when (a) application is made in the prescribed manner; and (b) the Commission is satisfied that there are good grounds for failing to attend the hearing”. 5 The holding in the above cited provisions, is actually the same, as provided in the Rule 14 of the The Labour Institutions (Mediations and Arbitrations Guidelines) Rules, 2007. As alluded above, when the matter fails at the mediation process, the same gets referred for Arbitration. When either party fails to attend during Arbitration process, section 88(8) of the ELRA provides that; - “88(8) Where a party fails to - (a) attend any arbitration proceedings convened by arbitrator, the matter may be heard ex-parte as provided for under rule 28 of the Labour Institutions (Mediation and Arbitration Guidelines) Rules;” When reading the proceedings as well as the arbitral award under scrutiny, the arbitrator is seen to have taken recourse under Rule 28 of the Labour Institutions (Mediation and Arbitration Guidelines) Rules after the non-appearance of the applicant. It means the case was under Arbitration process. It is unlike during the mediation process where the party who fails to attend it, has a remedy of filing an application showing course as to what had prevented his or her attendance, in arbitration process, neither in the ELRA nor in the Labour Institutions (Mediation and Arbitration 6 Guidelines) Rules, the procedure is not stating that. The law goes on stating, as submitted by the applicant’s counsel that, under section 91(1)(a) and 91(2)(b) and (c) the procedure is for the aggrieved party to file revision application as the applicant has done. In that sense, I see it that, the applicant’s application is properly filed before this court. That, this court is vested with jurisdiction to entertain it. The preliminary objection is therefore found to have no merit, hence dismissed. S.M. KULITA JUDGE 20/03/2024 DATED at SHINYANGA this 20th day of March, 2024. S.M. KULITA JUDGE 20/03/2024 7 8