greenlight hotel vs theresia herman katondo 2021 tzhcld 284 28 june 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 934 OF 2019 BETWEEN GREENLIGHT HOTEL APPLICANT THERESIA HERMAN KATONDO RESPONDENT JUDGMENT Date of Last Order: 21/06/2021 Date of Judgment: 28/06/2021 Z,A. MarumaJ The applicant herein Greenlight Hotel filed the present revision against the respondent one Theresia Herman Katondo to challenge the competency of the decision of the Commission for Mediation and Arbitration (CMA) in Labour dispute No. CMA/DSM/ILA/R. 1053/18/422 dated on 2nd May 2019. The applicant is represented by Mr. Keregero Keregero, Advocate while the respondent is represented by Mr. Thomas. The hearing of this application proceeded by the way of written submissions as it was ordered on 25th February 2021. All parties complied with the order hence this decision. i The application has been brought by Chamber summons supported by the affidavit of one Mr. Elisha Lyaguba, the Principal Officer for the applicant called who upon this court to revise the ruling on the preliminary objection in the above cited labour dispute. In his submission, the ground to challenge the CMA decision is that the Commission has no jurisdiction to hear and determine a labour dispute which is time barred. In Mr. Keregero's submission in support of the revision, he argued that, following the respondent's misconduct her employment was terminated on 11th September 2018 the and not 20th September 2018 as the trial arbitrator erroneously put it. Moreover, he submitted that the applicant filed the employment termination dispute on 17th October 2018 contrary to rule 10 (1) of the Labour Institutions (Mediation and Arbitration) Rules, GN. No. 64 of 2007 which requires a dispute concerning fair termination to be filed within 30 days from the date of termination of employment. Considering this preliminary objection on point of law, it was his submission that, the trial arbitrator wrongly took it as matter of factual issues and called for evidentiary proof instead of inviting the parties to argue on the legal issue. When the matter came up for hearing on the preliminary objection, the arbitrator allowed the respondent to tender CMA form 1 as an evidence of a date of 2 termination instead of Applicant's employee termination letter which indicated the correct date. The arbitrator ruled that the date indicated on CMA-F1 as the correct date of when the dispute arose without involving the counsel for the parties to argue on the legal issue raised. Mr. Keregero submitted that, arbitrator by doing that contradicted the legal requirement governing preliminary objection which has to be argued purely on point of law. The issue raised is centred on the fundamental principle of jurisdiction on time limitation which made the Commission functus officio to entertain the application. To support this, he referred to a number of authorities relevant to the issue. On the other hand, Mr. Thomas Chubwa, advocate for the respondent contested the application and filed counter affidavit of the respondent. In his submission he argued that the respondent filed the dispute within 30 days as required by the law as she received the termination letter on 20th September and instituted on the same 17th October 2018 hence the Commission found the matter filed within time required by the law. 3 I agree with Mr. Keregero that, the preliminary objection is purely a matter of law which should be considered by the Commission before dealing with the rights of the litigants. This is clearly stipulated in the case of Juma Nassir Mtubwa Versus Namera Group of Industries Ltd. Revision Application No. 251 of 2019 when the court tackled the issue of limitation of time. The court held that:- "the question of limitation of time is fundamental issue involving jurisdiction... it goes to the very root of dealing with civil claims, limitation is a mental point in the speedy administration of justice and it is there to ensure that a party does not come to court as and when he chooses". •&> Ik Having considered the above position and the record of the Commission, it is apparent and clear that the applicant raised a C, W preliminary objection on the issue of jurisdiction of the Commission to entertain the dispute which was filed out of time. The record shows that on 01/04/2019 the Commission heard the preliminary objection inter parties, the ruling thereof based on documentary evidence CMA- FI on the date when the respondent received a letter of termination which was 20/09/2021 and found that date to be the correct one. 4 Looking at MCA - Fl the letter of termination, it is apparent and clear that the letter was issued on 11/09/2018. From the above facts, the issue of determination in this court is on interpretation of the preliminary objection raised on which the termination date started to count. Is it a date when the letter of termination written or a date when the letter came into the knowledge of the respondent? According to Rule 10 (1) of the Labour and Institution % (Mediation and Arbitration) Rules GN. No. 64 of 2007 provides that, disputes about fair termination must be referred to the Commission within 30 days from the date of termination or the date that the employer made a final decision to terminate or uphold the decision to terminate. In the case of Tanzania One Mining Ltd. Versus Andrew Venter Labour Revision No. 276 of 2009 the issue of when termination is effective was discussed. The court's stand was that, the effective date of termination is the one when the letter was written and in that case it was 15/09/2008. 5 In the application in hand as stated earlier, the evidence relied upon by the CMA was only MCA -Fl a termination letter written on and dated 11/09/2018. In the second paragraph of the letter it states that, I quote "Uongozi wa Greenlight unakutaarifu kwamba umefikia uamuzi wa kukuachisha kuanzia tarehe 11/09/2018 .... However, the arbitrator ruled out the date of termination took a date 20/9/2018, the date respondent received a letter. He based on the oral evidence of the respondent and hand written below of the same letter indicated "Nimepokea barua hii tarehe 20/09/2018' and signed. By the content of the said letter and based on the principle laid down in Rule 10 (1) of GN. No. 64 of 2007, the Arbitrator had to consider the proper date based on law. Moreover, even if the arbitrator had to consider otherwise, there must be other evidence to support apart from the said letter MCA F-l. ' .. . The fact that the termination letter was written on and indicate the date of termination to be 11/09/2018, the Arbitrator wrongly interpreted the date of termination to be that of 20/09/2018 contrary to rule 10 (1) of the GN. No. 64 of 2007. Moreover, the fact that the dispute was referred to the Commission on 17th October 2018, the 6 period is beyond 30 days prescribed by the law as referred in the above provision. Based on the findings stated above, I have no reasons to consider other issues raised in the affidavits. These findings are enough to dispose of this application. I therefore, find this application has merit and is accordingly granted. Ruling and proceedings of CMA are revised and set aside. The respondent is at liberty to pursue other available remedies if she wishes to do so. It is so ordered. Z.A. Maruma JUDGE 28/06/2021 7