19880406 TZHC Dar es Salaam2

IN THE HIGH COURT OP TANZAN:r.A AT DAR ES SAL:'L\M : '.rs:i 8-X?.:J: ;,~:i.:SC.i;l,:;:,\NEOUS CIVIL CAUSE NO• 74. OF 1987 JUMUIY,\. Yl\. WAFANY,.'\.I<i.\.Z I WA 'n.'\..NZANI:\ - ( JUWA TA) .......... ••• -....-,e:• . .Jil:S:e,oNDEN!f i\.lJ]) I,;_\k,GEII/JElifT OF HOTEL AFRIC.:\.NA TulR ES &\.IA,\.M •• n••••••H••••• Al?PL!c.un' JU:DGI'IJENT , Tl1e pe.. r<.:icG in this suit a1·e in the relation o:f employers and ,:111plo;vJcs. There is a trade dispute between them. ThiS dispute iS novr pending b8i:'ore the Permanent Labour Tribunal for determination. In this Chamber A pplice. tion the employers are chaJ.l.enging the jurisdi- ction of the TribunQl to entertain the dispute hence they are asking this court to exorcise its discretio?lP-ry power and issue an order of cei·tiol'.'9-ri against the decis:i.on-o:f the Tribunal that it has jurisdi. ction to entertain this dispute, The employees who appear under the_ 11aG.2 of thdr trade union..Jumuiya ya Wafanyakazi wa Tanzania (JUWATll.) - are represented by Mr. Kisusi while Mr. Lakhs. is appearing tor the e1i1ployers. In his submission'Mre Lakha advanced three I>Oints of argument as a basis for challenging the jurisdiction of the Tribunal. First he ai•gued thE, t sinco the dispute vms referred to the Tribunal under the provicion of Section 9-\.(1) of the Permanent Tribunal Act (No 41 o-.f 1967) henceforth referred 3.S tho ~\.ct, suet. reference ought to have been nade by the Labour CommiGsioner with the approval of the Minister·responsiole for L.'1.bour, But -contr-a.cy to tlti.S requirement, the reference was Jll3.de by the Mi~ter thereby acting ultra vires. The MiniSterfs action to re:fer the dispute under Sect:i,.on 9,i.( 1) of the Act-is tj_:,:ll and void henoe tho Tribunal hc,s no jurisdiction to entertai~. it. Secondly it is argued that as per the Memorandum of JUWATA submitted to the Tribuno.l and produced to this Court as Annexture "C" to the Application, the/dispute involves, inter a.lia, a lock-out. And according to Section 11 of the Act, lock-outs like _strikes, are crLmiml offences on wl::ich the Tribunal has no jurisdiction. For This reason, the learned cousel went on t, argue., the Tribunal has no jurisdiction to determine whether or not the €mplayers act •• ./2••,. \' 2 to close tllo !.w·col and terminate the services of the respori..d.ent n-r,;ounted to cr:.i;u~l J.ocl"""°"'• ~ · st.:1.puJ;.,. ted unAe2'" ~t1on 11 o:f tho .1.\ct •. 'rhc t~:i~cd I_)Oint o:f c.rgu.ment iil supriort of the Z\:?:?licntion is th2.t s:L,.1cc one of tlie Lmues r2.ised by JU1ih'i. 1rA in i ta memornndum. is the 10:f'~-i ty o:f t''lc tcr;-,:d.n=.tion of the employees' service and their :,e~1cfits, t:!.C ,.r:·. ttc:..~ ou1.).ri; to have beeli. referred to a Reconciliation DoanL ;__,...; ,irc.vidccl in the 8ecr.u·ity of Ein,~loyment Act~ Cap )74. In o-t:::.,.:i:r ·.vor(~s tr.e r:::'1'.'ibm:r•.l liar:; no :jurir:i1iction to entert-:,.in di.3}?ltes J~cJ.;:, t,,d to ter;;-1in:, tion of emplo,yi:a.ent of workers• • In :..~c 1 ly to the first ;tr6'UD1ent 1 Mr. Ki.susi implici tty agr8ca. ·,7 it:1 Mr. J.i3,k:_1,,. 1 s interpr:,t-:1tion of Section 91(1) of th~ Act ti:\a t it is th2 Lao our Cor:rmif,s ioner, and not tho Minister, who 1s crn-::,ower3d to refer ;::, c"i.is pute to the Tribml9-l. Hov1ever, J.1e <1oes not ngrw:? t:~1CJ.t in th:i..'3 c::i.se the di~pute in question was refer:,:·ed. to the Trihi-lTu'll by the Minister. W~1at the Minister 11id per his letter w~i:i.cJ.1 is Am1ex·i7~~re nA 11 to the Application is to give consent to the Tribun.-:.1 to 011.fortRii'l the dispute. Farthermore Mr. l<isusi invi tcq. the <1 ttentfon of the, court to the uncontroverted. :1ffid:wi t filed bJ~ t 1:1e IHbour Commissioner in rrhich, among· 0~11.er things, he deiiosed t}nt i·t was he ( the L-:..bour Commiosioncr) w.ho referred the dispute to the Tribuml. Ilut without prejudice to his stg,r,.d tl1c;t the reference was rna.de by tric J.f1bour CoiiJi.,1issioner, Mr. KiRusi went on to submit that L1 c:rno it is 1.1eld tb.2,t the dispute was referred by the Hiniwticr, J.:e is of the o~fa1ion "1:ih::.t the Minister did so after t).-~e JF,bou:>..' Co2mni~:P:Loncr l.1i:'.rl delec,iated llis power to him. Mr. Kisasi Pubmits fnrt>.cr t:'8-t Section 91\.(1) of the Act iJJ ;11.:::•c:cy ::;.1erI:1issive and rcgulc::to:cy hence its non compl:innee ha.s no :iubst'.l.ntive effect. . ..-,.,': •••/3 ·••-. , O:n tho <~uestion of l.ock~t:, .t,l.J~ Jr:a,.t::tied. oounsel s u b ~ t'::.t to ~e:·Jr:,titute a crirn.c, th" alleged looli-out must ha~ been clone .,,d t:1ou'i!r fi~t c,~ing the 1,1ariout- ..oo:ndi tions l£ljsl down undeZ' section 11 (2) of the Aot. otherwise wllere lock~ iS- .committed :·.fter ob8er'l'il1.g t:1e~13 ao:..1dition9, it does not amount to a c:rim~• - .' AI"d t:1ouf;1'I it is trt1e t;1c\t the ']riounl}.l ~ i ; i no juris-diction to ent8rt,in a disymte involv±11t:s a lock-out pel."petrated contrary to th2 provif1ions of Section 11(2) of the Act, Mr. Kisusi is arguing ~ t:1at the Tribuno,l 111:.'ss jurisdiction to determine whetklex· or not the, ,:,l:te:;erl lock-out is crii:lixia.l according to, the provisions of the .Act.. And L1 reply to the argument that th!? Tribuml has no jurisdictfon to determine diS;)utes- involving termination o! emplo/1ue.1t, tho learned counsel .sabmitted that Sect-ion 16 of the Act wlllt.ch prescribes the jurisdiction of the Tribunal does not exclud.e issue o:f termin,J,tiori of em~Jloyment :from the Tribunal, He submitted farther that th~ .9rovisions of the Security o'! Ei~1)loyment Act are not ap;Jlica.ble because that Aet only applies to a certain ca teeory of workers and in this case there is no evidence that all the involved employees fall under that category. In conc.lnsion t'.10 let:.rned counsel submitted that the applicants have failed to disc•i2.r:;e their burden of establ~hing that the Tribuml L,ck.s jurisdiction in this ED tter hence prayed for the dismissal For m;y o:nvi:1ience, I h:we decided to deal with these arguments i.l1 the 1~eve:rse order t11ey have been presented. The submission tl-:v.lt t:10 Tribunal does not bave,. jurii::diction to entertain nntters connec.ted with terrninc .tion of employment is devoid ot merit. 7 The ju:i:ir·;,:it~Lon of the Tribunal is exhaustively prescribed under Section 16 o:2 tl:e A ct. U:1der this pro.visicm the Tribu:nEl-1 is empowered. (::i) to liear and determine aey trade dispute referred to it ' ii i undel:'. the 9rovisions of this Act; ,r 4 .. (b) to re.-;ister negot.i,aj;,Q4 ~entw. -1-nd ~ntary' r-1.gre.ewents and tc> hGar- and <lGtemine J:at.t~ relatit\g to tL\c regis-t.rRtion of such agNements j ( C) to inqu;ire into any ma tte:2: refe~ to i 1;,. und.er this Act and to re 0)ort to the Minister on suoh m:,..tters; ( d) to ~i.dvise the !.Aboul" Oommi:illlilione~ <>n acy matter re:terred to it by him under S eotion 1 O; and ( e) to m~ercise .suc::1 functions and powers as are con:t'erred upon it by t~:'.lis Act or as uay be conferred. upon it by It in evident t~~a.t in this case, the Tribum.l can rightly cl.aim jurisdiction over t!:,e ,,10.tter b;r virtu~ ot both paragraphs (a) and ( c). Under p,:iragr:..>.ph (:::) the Tribun,'11 haa jurisdiction on aey trade dis;,mte :ceferred to it under the Act. And according to Section 3 o'! the Act, the ter-.1 trndo dispute is defined as .. 1 ; any clit:!pute between nn employer and employees in the employm.e:1t o:i:' tho. t employer connected with the employment or ~~3=.9.Y..!.1-!_~nt, or the terms of the employment, or with the condi tio:;.1,s of labour, of a11y of those employees. 11 ( emph':l.sis supplied)• According to this definition the subj~ct Ilk'ltter in ~his case is a trade dispute since it involves non-employment of the employees .th£lt is the controversial tew..ination of their empl.oyment. But as noted ee.rlier, pa.r.::-,;gn'l.ph ( c) of section 16 of the hot also confers jurisdiction on the Tribu1-i:-,'l.l over the ~ tter in di.s:?ute• Any .. matter referred to the Tribunal by the Minister uJ161p, the Act can be entertained. In the course of expounding his argument, M·t, L..<i.kh3. submitted th2.t since the d:J.s~,l:te is over terillination of em:.ployment which '• may also inVl)lVe terminal benefits:, the matter -.,ght to have been ref2;:rred t~, -th0 ;.,.ri 01roriate Eeconciliation Board and. delt with ,..•• .15 ••• . l - 5 - under the ,ooiris;Lon~ of the -6-csoud~ cf Em.p~n1; ~\ct.. VfJ. th resl)Oot,. I.p,m not .. pursu..'¼l.ed ~ ~ e.rgwnent. ~ .tbe provia-ioal, of thia Act, it is. clear tro:i.t ~1JJ.a.tion..J3.oa~ a r e , ~ in order to deal Yit:th dia!'lt.~ o.riaing from th.e. iJnpoai ~:loii. or intended imposit;i;c,~ ,of w pana~ 'sei:. out jJi· 'thB Di.soiplj.n;lry Code. providccl 2.s Second Schedule to the ~~~:~J.op:wz.t.Aot. This is clearly potrayed, unde.l' Seotioli 23-( 1 ) which says- 11where t'l.n employee. (a) is sununarily dismissed; or (b) is informed by his employer that the employer proposes to dismiss l1in surmmrily; or ( c) su:c:r'Grs a deduction by wD.y of a dis cipl1nary penalty i'ron tho we,gec due to him from his employer, he 'ui..,y, wi thi:1 the time specified in subsection (2), refer the nB-tt,Jr to the Bonrd 2.nd the Board shall, so far as is reaso:nably practicable, hear the reference and give its decision thereon v,i thin seven day:3 ( excludinp Sundays and ;:iublic holidays) of the re:ference being received by it." Ar:; far a:~ issues on termination of employment a.re concerned, the pow,,r o:f the J3oards is limited to awardi..--ig statutory compensa.tion to employees as :;-_>rovided under Section 3:5' o! the Security• ot Sm:_:>loyment Act. It ir3. not true as submitted by Mr. Lakha that Recm1cili::1. tion Bo2.rds have e::clusive jurisdiction over ,issuea relnted to ten1d.n:1tion of em::;iloyment •..... Farthermore I am ot· the opinion that depcndi;:1g on the decision of the aggrieved party, the Tribum.l ror:.y d'3tcrmine n12.t·ters which are covered under the Security of Enployment :let and determinable by the Reconeiliation Jloards. For e::a.mple a dispute arising from ·summary dismissal rre.y be ej_ ·\;~1.ar referred to H.econcilia tion Board or to the Tri~nai. Fo:c ·s>~ ]1ur7ose o:f tho Aet, .lock-outs are classified as per,.;~jJisibl8 :•.nd non pcrmir,sible • . .To become permissible a lock...out - 6 ... r:iust he :,:;i'ccir,i tated by a nuJrw~ of conditions ~~d under Section 11 (2) oi' th0 .,\ct. In short these· oondj.t.:ioJlS ehal't out G0m8 machinery for reconcil:i.f:l.tioJl. wh:i.c4_ has to be exha-u9.ted 'bt;a:fol"E! :.,,.n employer resorts to an act of look.-ou:t, And under Sub-section (3) of Section 11 it is an offence for anyl:tody ti) stage a locm-out without first ex 1:iriustin;__<; the reconciliator;y ro,\-Oh~ pr.escribed under Sub-section (2). Where a dispute relates to a non permissible or Criminal lock-out• snch rr:0tter canno,t be determined by the Tribun2.l for lack of jurisdiction. It is an elementary legal principle tll2.t ,x,:1lcos it is clearly provided by ~- written law, no or.=e.:,., :3e:::;ic'cs courts of lnw, is empower3d to hear crinfinal. i; .·_ 3 eo ,;_::.1. 1.:": · imcose ·pene.1 sanctions thereon. But as I he:ve :i;>ointeci out 4 not every act 'Of look out il!l · a c·ri1n-e. · Hence so 10:::1-:: o.s t;.--10 rn:,d;tcr o:-.' diGl);itc fe1.lls v,i thin its jun!~_.dietio1}. 3.E>:: prescribed. un.<'l.er Section 1 6 of -t11e Act, the Tribu:12-l can determ:Lne such matter or dispute :"lrising :from a lock-out which ha.a been staged after the employer hac1 exh:1.usted tl:e reconctli tory !:l':::.chinery provided under Section 11(2) of the Act. It is faulty to hold, as the learned counsel for tl1e applic2.nts '.'.ppears to do, tJ::ia.t the· Tribun':l-1 does i"lot ho.ve jurisdiction on matters related to loclt-out whether or not such lock-outs amount to crii-ninal conducts• And with respect to ' Hr• Le,ld12., it is even more faulty to argue tba t the Tribunal has no jurisdiction to enterw.in an issue whether a particular lock-out is permi,rnible or non permissible under the Act• In er;sence w! at it actu.:,lly involve in that issue is whether the Tribunal ins jurisdiction on the rn2.tter involving lock--Qut. ·Under such situation it is perfectly right ·to find out,-w~ther · the lock out in dispute is of a criminal nature or not. To stop the Tribunal from rraking such-deternri.n,?.tion is to repeat the arf_sUJ10nt that the Tribuml has no jurisd:fotion on rte. tters ' I • 7 - connected \\Ti,~h look ou,ts, the. nature of ~ lock-outs In this case if the ~moo. -counsel a.4 i.he • • 1 ,~ opinion tha ~ the di~piJ.te is rc].a.t.e_d to a lock~ut aS: defined 'Xnd.er Section 3 of th,J ;\ct, and tJ;..a.t. the sa.i<i J.o.ck-ou.t was a.taged i,_1. cm1t:r.~,-we;1.tion of Sub-section ( 2) of 3'8-Ction 11 , then. he llan art,ue it ::i,s :,rcliJ:1im.ry j.ssuc chnllengiog .t~ ~i&dic;l.ion .of tho J:lrirJu:.."k'1-l. In ::iAJdng s1-1ch ~m:;nt what "the learned counsel •• will be say_it,?; in fa,ct. i,CJ that. his cluw.ts. l ~ committed a crime contro_ry to S cction 11 (3) of the ,\ct and tha"t; they should be de lt with t)J .J. court of law• Ta1.:ing into account the custodial sentence a ttr~\cting conV'iction of such offence the learned counsel n1i/;(,t l':lE.Ye fo recari..f'er v1ith his ,clients before he makes such a bol<l subnussion. How let rne turn to the laEt argument that the matter was referred. to the '.L'ribunc:,l by the Minister who under Section 9A(1) of the ~·1.ct l'.i.clG Do jJower to do so, The issue here is· two limbed- first whether the Minister had no poner to refer; the matter to the Tribuncil; and secondly whetlle:i: the rnatter was in fv.ct referred to the Tribunal by the :Minister. Section 9"-\(1) of Act says .. ns,.,1.oject i;o sub,section {2), where any tr-':1.de dispute exists 01~ iu a9pre~wndod, the La.1,our Commissioner may inquire into the causes and c~:rcumr:d;ances af the trade dispute and, with the ap:;roval of the Mini,ster, refer any rro.tters appearing to h:Lm -i:;o oe connected with or :celevant to that trade dispute to the rri::,:,:L:n.EJccl c1,ri.1l the :eribuno.l shall inquire into the natters ref:cererl to it 8-ncl J'.'e::;ior-1; on tirnm to the Minister." The ,'.'orc~:i_n(s of this Subsection iS · too clear to require interpolation. To constitute a valid reference be!ot'e the Tribunal, the rrk1.tter ;,1ust be referred by ·~he I.abour Cor,1lnissioner and not the Minister• The role of the Hinister j_s . to give f1a t that the ma i.:te:r should be re:t'errecl to the Tribunal.. And ill this cas~ -the J ~ to the '-:us-·· -cion ,:::.s to who rc::i'fered the n19. ttei;- to Tribufk'\l is q_ui te cl.ear. Tl:e le-liter of the J:~inir.{ter attached to the ·criamber Applioa'tio-n as -~nnext1.1.re HA II is quite telling. In this lett-er,. which is addressed to the Chairmn.n of the ~ribunal, the Minister ·is, in no uncertain terrD., referrinr; the rr1r:i tter to the '.L'ribul'.lJ3.l for determin8. tion. TL.is fact cam1ot be clouded by the eleventh hour attempt by the Lt,bour Commissioner to swear an affidavit that h~ was the one who r~ferred the ma.tter to the Tribunal. In alteraative t'Ir. Kisusi argued that Section 9A(~) ot the :\c·i; is ;c_ reg1.-:.l:.,tory :provision and its .non compliance is of no substantive effect. Witll respect I don't subscrib~ to this view. Y/1,atever label you give it, I am quite certain that the answer to ·i:;he Ctuestion whet:1er there is a reference before the Tribunal for dote:t.n.'.lina tion depends on the strict compliance of Section 9A ( 1 ) of the Act. And unless the Tribun."1.l is properly seized with the ma ttcr in d:'s 0)ute it canD.ot exercise its jurisdiction. In this case, so long as the m,·"l tter was referred by the Minister who yurportedlx ::,,cted 1..mdGr the ;;>roYision of Section 9A.(1) ot the Aot, there i:ms nothint; before the Tribunal for determination. But the question is did tho Minister in fact refer the fil':l.tter to the Tri1:n.1.nc.l under Section 9.11.(1) of the Ac.t. According to the Act there are four distinct ways by which :matter may be referred to the Tribunal. These alternative methods -:.:::-0 :,1":.>vided under Section 4( 4) (a) ; .8( 1); g.\ ( 1) a_nd 1o. As tar as the Minister is concerned, }1e can refer matter to the Tribu.n:'11 ei ti1er under Sections 4( 4) (a) or 8( 1) of the Act. In the present c:::,,se "c:"e :::-::::l·Jva·· t provisions under which the Minister appeared to l··iwe acted is Section 4( 4) (a) of the .:',.ct which provide~- 11notwi t,~sto.nc.1ine the :i;irovis:i.ons of subsection (2) and subject to tj1c provisions of section 36, Hhere a trade dispute haa !)een :rw:ortcc1 to the Labour CoIILnissioner in accordance with •••/9 ••• - 9 subsection (1) and both the parties to such diSpute apply in writing lor the dispute to be referred to the Tribunal for Se ttloment, or where the Laoou.I"'--Oammiali-ioner,- atter consultation v,;i th p,::.;.rtiGEJ to the dispute, is of the opinion tba t the dispute should be referred to the Tribunal for se.ttlement without any conciliatory measures being f:i.rst. taken in respect thereof, he slJall report the dispute to the Minister, and the Minister shall within tv,enty-one days :from· the date ~hen the dH;pute was reported to him either- (a) re±'er the dispute to the Tribunal for settlement; or (b) refer the dispute back to the Labour Commissioner with a direction to proceed in accordance with subsection (2): Provided that the Minister may, it he is of the opinion tba t there are special circumstances which make it necessary or desirable to postpone reference to the Tribuml or reference back to tho Labour Commissioner as of'oresaid, postpone such reference for such further period or periods as he r!k'l.Y in writing allow • 11 SubsGction (1) of Section 4 of the Act provides that either employees or employer may_ report a dispute to the Labour Commissione~ by a notice in writing, What happened in this case is that the Labour Commissioner got information of the impending dispute between th:::: applicants and respondents, Admittedly, there is no evidence to show how the Labour Comrlissioner received the information and from whom, But bearing in mind the faet that it is tlle employees who are the aggrieved party in this dispute it is more likely than not that the report vvas made by the employeea through their trade Union - JUWATA. And since the repoPt was made by ,JUWATA, the same must have been in writing. In other words I am o:f the considered view that the dispute between the parties ,:ns rCJpo:cted to the I.Jc1.bour Commissioner according to the provision of Subsection (1) of Section 4 of the Act • •• ✓ 10••• 10 . \ ..;C:)::.<ii:1.; to his ::i..etter to the Minister (Annexture. 11B11 ) after bci...>-ig informed of the dispute t·h·e Labour COt!ffll..i.c;~~ner c·lllled both :.::._•·'~i::;::: i'~~--· ,.:;o:·1:_; ..~l t.:'1. tion. Consequent to the consul ta. tions, the Labour Commissioner formed an opinion that the mltter should be Tcported to the Minister for his decision to refer it to the Triburr. . 1 if he f ei t obliged to do so. Anq Within twenty-one day i'lc:d0d E!,S stipulated in subsection (4) of Section 4 of i;he Act, the Min;i.,Gter referred the dispute to the '.J;'ribunal. .In other w_o:rds all v;h2. t transpired in this ca·se from the time when the dispute ¥ias reported to the L9.bour Commissioner to the time when the :VIinis ter referred it to the Tribunal is exactly wba t is pro'V'idec:l under Subsection (4) of Section 4 of the Act. The procedure ad(?pted _irJ. referrini the dispute to the Tr:l.buml is legally sus-taimble. 'The iviinister referred t}:l.c dispute to the Tribuml under Section 4( 4) of' the Ac.t. From this discussion it is quite evident that this Application cannot be sust"'lined. Hence it is accordingly dismissed with cos1is. JUDGE 6./ 4/1988 li'or tJ.1e .r\ pplicc1.11ts: For ".;he Rcspo:o.c1cnts: Iiir. Kisusi