20131108 TZHC Mbeya

I' ' ,· IN THE HIGH COURT OF TANZANIA LABOUR DIVISION · ATMBEYA REVISION NO.43 OF 2013 JOHNS. MWASEKE & 5 OTHERS .................... APPLICANTS VERSUS EVANGELICAL LUTHERAN CHURCH IN TANZANIA ................................ RESPONDENT (Original/ CMNMBY/172/2012) Ili ' : I JUDGEMENT 31/10/2013 &8/11/2013 Aboud, J The application is made under section 91 (1) and 94 (1) (b) i of the Employment and Labour Relations Act, No.6 of 2004, and .! Rules 24 and 28 (1) of the Labour Court Rules, GN.106 of 2007. -he applicants calls upon this court tf;) revise the Commission for Mediation and Arbitration (CMA) Ruling dated 30/5/2013. The applicants/ employees referred a labour dispute to the Commission for Mediation and Arbitration (CMA) claiming for compensation and other legal benefit to the tune of Tsh. "' 7,243,560/ "-·-after being terminated by the respondent/their 1 .·-, "--CC- ·1 I ' t!mployer. According to the CMA records, the dispute was unsuccessfully mediated and parties agreed to subject the same to arbitration. The respondent adduced his part of evidence and the date was fixed for the applicants to adduce their evidence. On ' 24th day of May 2013, a date the applicants had to adduce their evidence, neither the applicants nor their Advocate appeared before the CMA and an order was made that; "the learned counsel for complainants was aware of the date fixed for hearing as on 1tfh May 2013 he himself requested for the matter to be adjourned through his legal officer one Jackson Ngonyani, who appeared before me. Due to this I request the matter was fixed, and agreed by both parties, \ for hearing on 24th May 2013 at 10:00 hrs. For this reason 1 \ I incline to the prayers of the respondent, and I hereby dismiss this complaint in it's entirely for want of aaendance." __ ., The applicants seek for revision of that dismissal order on grounds contained in the supporting joint affidavit sworn by applicants. The gist of the application was to show that the ~rbitrator erred in dismissing the complaint because the 3pplicants had good reason for not appearing on the date set for 3rbitration. 2 ,~7-' ,, ·' , '; After considering the parties arguments and facts on record, I find this application should fail for reason of being premature before this court. When the decision is entered to dismiss the complaint by the CMA, the avenue available to the aggrieved party is to apply to restore the dismissed complaint. The CMA will set aside the order if it is satisfied that the applicants had good cause for failure to appear on the date fixed for hearing. It is after the CMA gives its decision that the applicants can apply to this court for revision of that latter decision and the award. The position of the law under the provision of Section 88 (8) of the Employment and Labour Relations Act as amended by Act No.2 of 2007 provides that; "where a party fails to attend to any arbitration proceedings convened by the Arbitrator, or fails to comply with any directions made by the presiding Arbitrator in terms of Rule 28 of· tlle Mediation and Arbitration Rules, the matter may be heard Ex- parte where the party who failed to attend is the respondent or dismissed where the party who failed to attend is the complainant, as the case may be, and the defaulting party shall not 3 be permitted to attend arbitration proceedings unless the arbitrator, on sufficient: cause I reverses the decision. " Therefore if the applicants think that they ha~e good cause, for non attendance on the scheduled date for hearing, they are required to apply before the CM~ to restore the dismissed complaint. I I ' I For the reason above, I hereby ~ismiss the application. I It is so ordered. ,· I.D.ABOUD I. JUDGE -.:J 8/11/2013 I I I 4 - . ..Iii . '/' •, ,.. Date: 8/11/2013 Coram: Hon. I.D.Aboud,J Applicant: For Applicant: Mr.Habib, P/R Respondent: For Respondent: Mr.B.Pomboma CC: J.Mbasha Order: Judgment delivered on 8/11/2013 in the presence of Mr. Habib Kamru personal representativJ for the applicants and I . Mr.B.Pomboma for the respondent. ~',~- \ , / - ~ I \\ ,/, '' C: ___,, ij LO.Aboud . JUDGE .,, 8/11/2013 \ I : I i I 5