20131204 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT MWANZA REVISION NO 35 OF 2011 GEOFREY MLUNDILWA................................................................ APPLICANT VERSUS THE GENERAL SECRETARY EAST LAKE VICTORIA DIOCESE ............................................. RESPONDENT (Original CMAIMZA/401/2011) JUDGMENT 4/9/2013 & 4/1212013 R. M. RWEYEMAMU, J On 18/10/2010, the applicant referred a dispute of unfair termination to the Commission for Mediation and Arbitration (CMA), against the respondent, his former employer. In that dispute, the applicant sought the following reliefs:- • 1 months' salary in lieu of notice- Shs 270,000/= • Accrued leave for 3 years 2007 - 2009 ... Shs.810,000/= • Severance for the 3 years period of service - Shs.189 ,000/= ... • Payment of 12 months' salary as compensation for unfair termination Total- 4.509,000/=. In its decision issued on 15/8/2011, the CMA reached a finding that on the evidence adduced, the employment contract between the parties was for a fixed term; that such contracts, "... terminate automatically when the agreed period expires, unless the contract provide otherwise", and that; the contract between the parties in the dispute was not terminated, rather, it expired at the end of the six months as agreed by the parties. It therefore concluded that under such circumstances, the pleaded issue of unfair termination and consequent reliefs did not arise in law, citing Rule 4 (2) of the Employment and Labour Relations (Code of Good Practice) Rules, GN 42 /2007. Consequently, the CMA dismissed .. the applicant's claim. 1 Aggrieved, the applicant filed this application seeking revision of that decision. The key ground for seeking the said revision was averred to in paragraph 6 of the supporting. affidavit. It states:- "That the arbitrator acted illegally when he failed to grant the application the reliefs claimed without giving reasons and or observing the principle of awarding the reliefs claimed. I hasten to point out at this early stage of this decision that; in law and practice, reliefs are not awarded because they are claimed by a party, as the applicant seems to suggest in the above paragraph. Reliefs are awarded when legally deserved. It is therefore improper to fault an Arbitrator for "observing the principle of awarding the reliefs claimed". For reasons soon to become obvious, I will not discuss the second aspect of the applicant's complaint. In this matter, the applicant was represented by Mr. Magabe, a personal representative while the respondent/employer was represented by Mr. Banturaki Advocate. Hearing proceeded by way of written submission. After going through the CMA record of proceedings, I realized that the decision in this case has to turn on different grounds other than those pleaded and argued by the parties. The grounds involve the issue of the CMA's jurisdiction in the matter. Basically, they arise from the following questions; whether the dispute was timely filed, and if not; whether there was application for condonation of delay, ... and if yes; whether such application was properly decided by the CMA. I will begin with the last question. The record reveals that, together with the referral form, the applicant filed an application for condonation of delay. The period of delay was indicated by the applicant to be 16 months, counting from 26/5/2009, the date the dispute was indicated to have arisen, to 18/10/2010 when the referral was made. That condonation application was heard and 2 '· .... granted by the CMA on 12/4/2011. It is the manner that the application was handled and the conclusion reached, that I find disconcerting and worth of evaluation by t,his Court- a court with inherent powers of revision over CMA decisions. ... To make grounds for my apprehension obvious, I have quoted the larger part of the relevant proceedings and decision of 12/4/2011- at page 2 to 3 of the CMA proceedings. The condonation application proceedings went thus: Mlalarnikaji " ... mh mlalamikaji aliachishwa kazi tarehe 26/5/2009 na mlalamikiwa na baada ya hapo aliugua ugonjwa wa mayo, alianza matibabu 1/6/2009 na aliendelea na hali hiyo ya matibabu mpaka alipokuja kupata nafuu tarehe 18/10/2010 na baada ya hapo akaleta shauri mbele ya Turne na cheti cha matibabu . kimeambatanishwa kwenye form no. 7 na tunaomba ipokelewe kama kielelezo muhimu cheti cha tarehe 2/7/2010. Hivyo kwa kuangalia ugonjwa wa mayo aliokuwa nao mlalamikaji na ndio sababu iliyopelekea asilete mgogoro kwa muda muafaka. Tunaomba ombi letu likubaliwe. Hivyo tunaomba kuwasilisha. M/rnlalarnikiwa - sisi kuhusu maombi yao pamoja na kiapo chake kuonyesha alikua na shida, sisi hatuna pingamizi kuhusiana na maombi ya mlalamikaji kwani kimsingi maombi yake hayata ingilia mantiki ya shauri hili na kwa vile tunataka kila mtu apate haki, pamoja nina maswali mengi ya kuhoji kuhusu sababu za kuchelewa kwake lakini tunakubaliana na maombi ya mlalamikaji naomba kuwasilisha na tunaomba Turne ikubali maombi ya mlalamikaji.. Turne: baada ya kusikiliza maombi ya mlalamikaji pamoja na mlalamikiwa Turne haioni kwanini isikubaliane na ornbi la mlalamikaji kwani hata rnlalarnikiwa hapingi sababu ya mlalamikaji kuchelewa kwa kuzingatia kanuni 29 GN 64/200. Turne inakubaliana na ombi la mlalamikaji kusikiliza mgogoro nje ya muda. The above proceedings indicate a number of anomalies whose consequence I will now discuss. These are:- 3 ... .. ... '• 1. As the record shows, the Arbitrator decided to grant the application for condonation, not because the applicant had showed good cause for delay, as prescribed by law- Rule 31 of GN 64 of 2007, the Labour Institutions and (mediation and Arbitration) Rules. According to that provision, the CMA may condone delay only if the applicant shows good cause, not because the other party has not objected the application. 2. There is another legal problem with granting an application to extend prescribed time, only because the respondent does not object. The problem arises because it is a well established principle of law, reiterated by this Court and the CAT in a number of cases where the following has been stressed that; ".. .the question of limitation of time is statutory and fundamental involving the question of .. .jurisdiction. It goes to the root of justice in dealing with civil claims and .. .. it is a material point in the speedy administration of justice". "... Limitation is there to ensure that a party does not come to court as and when he chooses.," Given that position, it is clear the issue of limitation of time, has implications far beyond the interests of the parties immediately involved in a dispute. That being the law,"... the parties cannot compromise to contravene the law ... ". 3. I could have ignored the anomaly, if on the facts adduced by the applicant, good cause for delay had been shown such that, the CMA would have granted the application, without relying of the fact of the other party's consent. In my considered opinion however, such was not the position. Why do I say so? The applicant merely made general submission that he was sick and was attending hospital. That was not enough. The applicant did not explain how that sickness (where he was not bed ridden/hospitalized) prevented him from taking necessary action- and for all the period of May 2009 to 18/10/2010,- a period of more than a- 4 year. In deciding such applications, it is a principle of law, that in adducing reasons for delay, the applicant must explain specifically how such reasons prevented action for each day of the delay. ... 4. There is yet another aspect. On the facts adduced and undisputed during arbitration, the applicants' employer stopped paying salary from April 2008. The period of limitation for claiming such salary underpayments in law, started to count 60 days from the day of the last salary payment. Yet the application for condonation was applied for only the period of May, 2009 to 2010. The implication is that the CMA wrongly entertained claims for the period April 2008 to May 2009, claims which were time barred, but entertained without jurisdiction. Due to all the above reasons, I find that in reaching its decision in the application for condonation, the Arbitrator exercised jurisdiction with material irregularity. I also decide that in entertaining the applicants' claims for the period June 2008 to May 2009, the CMA acted without jurisdiction. The two grounds are sufficient to have the impugned decision revised by this Court under the Employment and Labour Relations Act, 6/2004, read together with rule 28 (1) ( c )and (1) (a) (respectively) of the Labour Court Rules, GN 106/2007. To conclude, it is my decision that the CMA had no jurisdiction to entertain the applicant's dispute. For that reason, the impugned decision is quashed although not for reasons advanced by the applicant. The parties have a right to appeal this decision to the ... Court~of.Aep_~al on a point or points of law. It is so ordered. · .,,.-/~YATA~'- (~'?- ~'l)J'l of )'~ <1~ /fr:~\ ~. ~i~,-z~~~ ~ R. M. Rwe mu ((.f/S ,'4 ~':I ~ * JUDGE \\ f!. \.,,. ,, " ~ 3/12/2013 "' ~ Q,t:· ~~'\-'f.~"!;f' ,,- IOUT V i~;,~.€~ ~~ 5 Date: 4/12/2013 Coram: Hon. R. M. Rweyemamu, J Applicant: Present in person For Applicant: Absent without notice Respondent: Mr. Banturaki Advocated For Respondent: CC: M.S. Mlandula/Christopher Court: This matter is for Judgment. Judgment read this 4/12/2013. Right of Appeal Explained. R. M. Rweyema JUDGE 4/12/2013 ... 6