HADIJA JUMA MAULID VS MS KOMEC LTD

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MWANZA SUB REGISTRY) AT MWANZA LABOUR REVISION NO. 2017 OF 2024 (Originating from Commission for Mediation and Arbitration Mwanza, Employment Dispute No. CMA/MZA/COND/ILEM/213/2023 Before HON. MSUWAKOLLO S. ARBITRATOR) BETWEEN HADIJA JUMA MAULIDI.............................................. APPLICANT VERSUS M/SKOMEC LIMITED................................................. RESPONDENT JUDGMENT lZh & lZh August, 2024 A. MATUMA, J. The applicant sued the respondent for termination of employment and sought reliefs for unfair termination. She instituted that suit with a condonation application because she was out of the prescribed time limit to complain about the alleged unfair termination. The condonation application was rejected by the trial commission hence this Revision. At the hearing of this application, the Applicant was represented by Mr. Slyvanus Leonard learned advocate while the Respondent enjoyed the services of Mr. Erick Tumaini Korogo learned advocate. Submitting for this application Mr. Slyvanus argued that the trial Commission erred to have not considered the,overwhelming chances of success in the matter by the Applicant;which has been one of the factors i to be considered in condonation application. To that effect he cited the case of Leonard Deus Mgeta versus G4 Security Services, Labour Division at Mwanza, Revision no. 46 of 46 of 2013. He also made citation to rule 11 (3) (c) of GN no. 64 of 2007 to the same effect that in determining the application for condonation, overwhelming chances of success has to be considered. The learned advocate also faulted the trial commission for delivering the impugned decision in the absence of both parties and argued that such was an illegality which nullifies the decision as it was held in the case of Omary Shabani Nyambu versus Dodoma Water Supply, Civil Appeal no. 303 of2020. He finally argued that the Commission did not put into consideration that the denial of condonation was detrimental to the Applicant and prayed that this application be allowed so that the main application at CMA proceed in its merits. Mr. Erick Tumaini Korogo learned advocate on his part, opposed this application and argued that overwhelming chances of success is not a ground for extension of time. To that effect he cited the case of John Sebastian Cosmas and Another versus Consolidated Tourist and 2 Hotels Investiment Limited, Labour Revision no. 15 of2020 High Court at Musoma. The learned counsel then argued that although one of the factors to be considered in a condonation application is whether or not the application is inordinate, the applicant is always required to account for each day of the delay but she did not perform such duty. Mr. Erick learned advocate further faulted the argument of the applicant that she spent some time in follow up of the matter through negotiations. He argued that negotiations has not been an execuse for the delay. To that effect he cited the case of Adam Mwaipopo versus Insignia, Civil Appeal no. 176 of2021 (CAT) at Dar es salaam. About the decision being delivered in the absence of both parties the learned advocate distinguished the Labour forum and other normal Civil forums in dispute resolutions. He finally argued that the Respondent had declared some rights to the Applicant and it was the duty of the Applicant to make follow ups of the same. In his rejoinder Mr. Ondijo argued that the follow ups which has been argued by the respondent's counsel is what actually delayed the Applicant Having heard the parties for and against this application, it is my turn to determine this application. The grounds upon which the condonation application was made at the trial Commission are: - - That the applicant had family problems to attend which contributed to her delay. - That she spent some time seeking an amicable settlement with the respondent. The commission rejected the ground of conversation between the parties to have the matter settled amicably. It cited the case of Nazar Manase versus The Headmaster Magner Secondary Schoo! and Another, Labour Revision No. 167 of 2022, (HC) Labour Division at Dar es Salaam to the effect that: "ahadiau majadiiiano siyo sababu ya msingiya kuongezewa muda." About family problems, the commission ruled that the applicant did not sufficiently state when she travelled out of Mwanza Region to attend such family problems and when she came back. On my part, I find that only one ground in this application calls for serious consideration. That is whether or not the condonation application was inordinate. __ // 4 It is an undisputed fact that the delay was only fifteen days and that is clearly seen in the commission's ruling at page 7: "Hakuna ubishi kuwa mgogoro wa mleta maombi upo nje ya muda kwa taklibani muda wa siku 15 tangu tarehe ya kutokea mgogoro tarehe 23/08/2023 hadi kufunguHwa mgogoro tarehe 06/10/2023" Since this is an employment dispute, the fifteen days delay is not inordinate more so when the applicant pleaded some efforts to have the dispute settled amicably. I am of the settled view that since the respondent had declared some entitlements to the applicant through annexure LAI dated 23rd August, 2023 and Mr. Ondijo argued that the applicant spent some time in follow up of such entitlements, any reasonable person would start in follow up of such entitlements. The declarartion of some rights in annexure LAI in my view stagnated the applicant to take any legal action because she legitimately expected to acquire such entitlements without going to court. That is different from other negotiations in which from day one, the applicant is made to believe that her entitlements are in dispute. If that would have been the case then negotiations would not help as rightly held by the arbitrator and rightly argued by Mr. Erick. But since the applicant wa£ made to believe that there was no dispute to her rights declared in the "termination letter" annexure LAI and invited to make some follow ups, the delay thereof in my view must be execused because the time lost was lost in good faith with legitimate expectation that the matter would not go beyond the normal follow ups. I thus find that the trial commission did not consider this ground in its due weight which is among the guiding rules to be considered in determining whether or not extension of time be granted. I therefore grant this application and quash the ruling of the trial commission. I grant the condonation sought and direct that the labour dispute be remitted back and determined on its merits. No orders as to costs. It is so ordered. 12/08/2024 6