JOHN MTANGI MBILU

IN THE HIG COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB-REGISTRY) AT ARUSHA REVISION APPLICATION NO. 38475 OF 2024 (C/F Labour Dispute No. CMA/ARS/ARS/149/153/22) BETWEEN JOHN MTANGI MBILU.....................................................................APPLICANT VERSUS CONSOLIDATED TOURISTS AND HOTEL INVESTMENT LIMITED................................................................. RESPONDENT JUDGEMENT 23/09/2024 & 04/10/2024 MWENDA, J,: The applicant, JOHN MTANGI MBILU filed the present application seeking revision of the decision of the Commission for Mediation and Arbitration (herein referred to as CMA) in respect of Labour Dispute No. CMA/ ARS/ARS/149/22/153/2022 which was delivered on 20/02/2024. It is supported by an affidavit sworn by the applicant himself. Briefly, the applicant was employed by the respondent as Laundry attendant. His employment came to an end on 31st day of January 2022 due to operation requirements (Retrenchment). Being aggrieved with the said 1 | Page retrenchment, the applicant filed a labour dispute before the CMA complaining against unfair termination. On the same footing he claimed for TZS 15,300,000/= being the repatriation costs from Ngorongoro to Arusha, subsistence allowance from the date of termination until the date of repatriation, salary arrears from June 2021 up to January 2022 and damages to the tune of TZS 10,000,000/=. After hearing the evidence tendered by both sides, the CMA adjudged in favour of the respondent. The Hon. Arbitrator was satisfied that the applicant was fairly terminated due to operational requirements. Regarding his other claims against the respondent, the CMA was satisfied that none existed. Being resentful by the Arbitrator's award, the applicant filed the present application. He is seeking this Court's pleasure to revise and set aside the Arbitrator's decision. His grounds or legal issues in support of the present application are set forth at paragraph 11 (i-iii) of his affidavit. The same read as follows and I quote: - i. That, the arbitrator's award was improper as it's based on his own opinion and views by failed to observe that there was no any other agreement between Respondent and trade union Chodawu on the issue of salary deduction since June 2021 to 31st January 2022. (sic) 2 | Page ii. That, the learned Arbitrator erred in law by ignoring the merit of the evidence adduced by the applicant, demonstrated his firsthand information on upheavals and violations, the evidence that was clearly supported and cemented by the documented dully tendered before the commission that the applicant had an accident while on his duty. iii. That, the Arbitrator erred in law by disregarding the Applicant's evidence which lead him to come up with erroneous finding which has no legal basis and properly reasoned. The hearing of the matter proceeded orally. Both parties were duly represented by learned counsels. The Applicant enjoyed the service from Mr. ALEX MICHAEL, Learned Advocate while Mr. DAVID KAHWA, also learned counsel represented the respondent. Submitting in respect of the 1st legal issue, Mr. Michael stated that the award by the CMA based on the Arbitrator's own opinion as he failed to consider exhibit DI which supports the fact that there was not any agreement between the respondent and CHODAWU regarding salary deduction. According to him, the only agreements which existed between the duo are those signed between April 2020 to June 2020 signed on 29/5/2020, July 3 | Page 2020 to August 2020 signed on 30/7/2020, September 2020 to October 20 signed on 27/11/2020 and November 2020 to November 2020 signed on 27/11/2020. The learned counsel stressed that there was no agreement signed to cover the period between June 2021 to January 2022 when the applicant was retrenched. He believed that DW1 was not challenged on that fact and failure to consider such evidence and exhibits led to an omission to award the applicant his salary from June 2021 to 31st January 2022. Responding to this legal issue, Mr. KAHWA stated that the Hon. Arbitrator considered the evidence tendered by both parties before reaching to the decision he made. He added in that it is not true that the applicant's evidence was not considered at all. He stressed in that from May 2021 there was not any single employee who was on duty including the applicant due to the outbreak of COVID pandemic. The learned counsel said that in the said circumstances there would be not any agreement between CHODAWU and the respondent to pay salary in full. That notwithstanding, the learned counsel appreciated the respondent's gesture of his continued efforts to pay stipend to the employees during that time while none of them was on duty. He then concluded by praying the present ground to be dismissed. 4 | Page I have carefully gone through the evidence on the CMA's records, particularly Exhibit D4 collectively. On the face of it, it is evident that the applicant was receiving the salary from June 2021 up to February 20222.On that note, this court finds the Arbitrator's decision justifiable as there are no unpaid up salaries due to the applicant. His claims that he never received any salary during the above stated period is baseless as he received the agreed amount (including the stipend) until the date of his retrenchment. Regarding the 2nd legal issue, Mr. Michael faulted the Hon. Arbitrator's failure to accord weight to the applicant's evidence which supports his claim that he was injured in the cause of his employment. The learned counsel stated that the applicant tendered exhibit Pl and P2 which proved that he was injured, the injury which led him request for a voluntary retirement. He referred this court to exhibits P3, P4 and P5. Moreover, Mr. Michael submitted that had the respondent considered the opinion of the doctor under exhibit P2, he would not have terminated the applicant. According to him, Exhibit P9 (the Collective bargain agreement) Article 12 (1) and (2) of the CBA ought to have benefited the applicant. On his part, Mr. KAHWA responded to the above argument in that the voluntary retirement plan is guided by the conditions set under Article 11, 5 | Page sub article 1 of the CBA. He mentioned the same to be, one, the employees age should be between 55 to 59 years which, according to him, the applicant was covered. Two, there must be a mutual agreement between the parties concerning the request for voluntary retirement, which was however, according to him, was met. The learned counsel said that in the present matter, there was no mutual agreement between the applicant and the respondent as the respondent did not consent to the applicant's request. In support to that point, he referred the court to the case of CONSOLIDATED TOURIST AND HOTEL INVESTMENT LIMITED V. HUSSEIN MUSSA KOTIWA, REVISION NO. 114 OF 2021 at page 9 to 13. The learned counsel further submitted that even if ill health was one of the conditions, which was not the case, the applicant failed to tender any proof to that effect as there was no medical card produced in support thereof. In conclusion to this part, he said that the applicant and other employees were retrenched due to the outbreak of the Covid 19 pandemic. That being the submission from both sides regarding the 2nd issue, this court wish to state that voluntary retirement plan is not concluded by the wish of one side only. The same depends on the mutual agreement between the employer and the employee where the consent by both parties is crucial. Such 6 | Page Conditions are in the CMA's records, particularly in exhibit P9 (Collective Bargaining Agreement, CBA) in which this court came across Article 11 (1). The said article read as follows, that: "Employees may retire voluntary by mutual consent between the employer and employee at the age of 55 to 59 years. Compulsorily requirement shall be the age of 60 years. At the discretion of the employer the employee can be re- employed under a fixed term contract depending on job demand or requirement after retirement" [ Emphasis is mine]. Guided by the above, this court is of the view that the applicant's request to voluntarily retire was not concluded since the respondent did not consent to it. After all, the respondents had a valid reason to refuse to grant the said consent due to the outbreak of Corona pandemic, the period during which, none of the respondent's employee was attending at work. That said, this issue if found with no merit and it hereby dismissed. Regarding the last issue, the learned counsel reiterated to what he submitted in respect of the 1st legal issue where he stressed that the evidence of the applicant was not considered at all. He also blamed the respondent for his delay to lodge the OTpensaho-* “ WCF ‘1,“ ~ 7|P a ge "It is a settled in law that a matter not raised and decided in the trial court cannot be raised or decided in an appellate court." Based on the authority above, this court, cannot decide the issue which was not dealt with by the CMA as a trial Commission. That said, this issue also fails. In the premises, this court finds that the award by the CMA justifiable. Consequently, I find this application is devoid of merit and is hereby dismissed. The decision of the CMA is left undisturbed. No order as to costs. Ordered accordingly. DATED and DELIVERED at ARUSHA this 4th day of October, 2024. 9 | Pa ge