joseph moroswa chacha vs tanzania railway corporation 2023 tzhc 22530 20 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA DISTRICT REGISTRY AT TABORA LABOUR REVISION NO. 02 OF 2023 (Originating from the Commission for Mediation and Arbitration in Labour Dispute No. CMA/TBR/TBR-MJN/MISC/07/2021) JOSEPH MOROSWA CHACHA....... APPLICANT VERSUS TANZANIA RAILWAY CORPORATION.... ........... RESPONDENT JUDGMENT Date of Last Order: 13/10/2023 Date ofJudgment: 20/10/2023 KADILU, J. The applicant instituted a Labour Dispute in the Commission for Mediation and Arbitration (CMA) at Tabora, claiming that he was unfairly terminated from employment by the respondent. The respondent raised a preliminary objection to the effect that the CMA had no jurisdiction to entertain the matter. After hearing both parties, the CMA decided that it has no jurisdiction to determine labour matters involving public servants. Aggrieved by the decision/ the applicant has lodged this application for revision under Rule 28 (.1) (b) (c) and (d) of the Labour Court Rules, G.N, No. 106 of 2007 and Section 91 (1) (a) and 91 (2)(b) and Section 94 (1) (b) (i) of the Employment and Labour Relations Act, [Cap. 366, R.E. 2019]. In this application, I am called to determine two main issues. First, is an issue of jurisdiction in which I am to determine whether the applicant, who was the employee of the respondent, was a Public Servant under the Public Service Act, [Cap. 298 R.E. 2019]. The answer to this issue will resolve the concern as to whether the CMA had jurisdiction to entertain a dispute by a public servant who did not exhaust remedies available under i public service laws. The second issue is whether the CMA erred in law and fact by dealing with the wrong case number of the applicant which is CMA/TAB/MJN/102/2020 instead of the proper case which is CMA/TAB/TBR/MJN/109/2020. The application consists of one prayer namely that, this honourable court be pleased to call for and revise the proceedings and the subsequent decision of the CMA in Labour Dispute No. CMA/TBR/TBR- MJN/MISC/07/2021 in which the Arbitrator denied the award to the applicant. It is supported by an affidavit of the applicant consisting of the following grounds: i. That, CMA erred in law and fact by dealing with the applicant's wrong case number, which is an illegality, and/or irregularity. The wrong number of the case is CMA/TAB/MJN/102/2020 instead of the proper one which is CMA/TAB/TBR/MJN/1 09/2020. ii That, the CMA heard the matter until final determination while knowing that it lacksjurisdiction to entertain the same. Hi. That, the CMA hadjurisdiction to entertain the matter. On the day of hearing this application, Mr. Samwel Mahuma, learned State Attorney, appeared for the respondent while the applicant appeared in person, without legal representation. I will consider the submissions of both sides in the course of writing this judgment. In doing so, I will determine the second ground first. Starting with the question of whether the applicant was a public servant or not, this point is crucial in resolving the issues regarding the CMA's jurisdiction to entertain the dispute as it did. From the outset, I have observed that the applicant's grounds for the application are contradictory as he asserts in the second ground that the 2 CMA had no jurisdiction, but in the third ground, he states that the CMA had jurisdiction to determine the case. That aside, the applicant laments that the GMA had no jurisdiction to entertain the matter. The gist of his cry is based on the assumption that the applicant was not a public servant. It is undisputed that not every public servant is subject to the Public Service Act, [Cap. 298 R.E. 2019]. See Section 3 of the Act as amended by Act No. 3 of 2016. The applicant submitted as well that Section 3 of the Public Service Act excludes certain public offices from its operation and subjects them to the relevant laws that establish them. The excluded public offices under the operations of the Public Service Act are: - /' A parliamentary office ii. An office of a member of a Council, board, panel, Committee, or other similar body whether or not corporate established by or under any written law. Hi. An office the emoluments of which are payable at an hourly rate, daily rate, or term contract. iv. An office of a Judge or other Judicial office v. An office in the Police Force or prison services. The applicant also submitted that the respondent is a corporate body under section 4 (1) (2) (a) of the Railways Act, No. 10 of 2017 capable of suing or being sued in its name. That being the case, the staff or employees of the respondent are public servants subject to the governing law that established it along with the regulations. He therefore submitted that the employee of the respondent can seek remedies under the labour laws for they are not subject to the Public Service Act. The applicant added that he exhausted the internal remedies which are within the respondent. 3 In reply, Mr, Mahuma submitted that the Arbitrator referred to the case of Jeremiah Mwandi v Tanzania Posts Corporation, Labour Revision No. 6 of 2019 in which it was held that the servant who works in the corporation is governed by the laws which establish that corporation and therefore not governed by the Public Service Act. Mr. Mahuma elaborated that when the CMA reached that decision, there was no dear position as to Whether the CMA had jurisdiction to determine labour disputes involving a public servant. According to him, the position became clear after the Court of Appeal of Tanzania in the case of Tanzania Posts Corporations v Dominic A. Kalangi, Civil Appeal 12 of 2022 where it was ruled that the CMA has no jurisdiction to determine labour matters involving public servants before they have exhausted the remedies available under Public Service Laws. The learned State Attorney submitted further that, Section 32A of the Public Service Act and Kilangi's case cited above keep the CMA away from entertaining labour disputes involving public servants, and he quoted: "... a public servant shall, before seeking remedies provided for in labour laws, exhaust all remedies as provided for under this Act." On my part, I have followed the definition of a public servant under the Public Service Act where a public servant is defined as: "... a person holding or acting in a public service office." On the other hand, public office is defined as a paid public office in the United Republic charged with the formulation of Government policy 4 and delivery of public service other than those enumerated under Section 3 of the Public Service Act. The respondent is not among the offices exempted from the operation of the Public Service Act. Thus, I am of the view that not all employees working in the Public Service are Public Servants governed by the Public Service Act. There are categories of employees, though in the Public Service, they are not Public Servants. The category includes employees who are paid hourly, daily, or on contractual terms. The applicant is not one of them. I have to comment here that such a category of employees is not bound by Section 32A of the Act. This means that, in resolving the employment disputes between them and the employers, the exempted Workers may take measures similar to those undertaken by the employees in the private sector. These include referring their employment disputes to the CMA in the first instance, which is not the case for public servants. In Joseph Khenani v Nkasi District Council, Civil Appeal No. 126 of 2019, Court of Appeal of Tanzania at Mbeya, it was held that: "...the issue on which the trained minds for the parties have locked horns is whether the CMA erred in entertaining and hearing the complaint on terminal benefits before exhausting the procedure provided for by the Public Service Act. From the look of things, the provision does not seem to be ambiguous at all. However, the section has brought about different interpretations by the High Court, bringing in two schools of thought. We would have gone: straight away into the determination of the nagging issue and addressed the confusion with a view to settling the dusk, but the provision could not apply to the present case as the moment the matter the subject of this appeal was lodged in the CMA, such provision was not in place.” 5 Based on the position: above, it is evident that with the advent of Section 32A of the Public Service Act, a public servant is not entitled to refer the employment dispute to the CMA unless he exhausts the dispute settlement machinery existing under public service laws and the remedies thereof. This is a legal requirement under Section 26 of the Written Laws (Miscellaneous Amendments) (No. 3) Act of 2016, which introduced Section 32A to the Public Service Act requiring a public service employee, before seeking remedies provided for in the labour laws, to exhaust all remedies provided for in the Public Service Act. That means, the CMA is not the initial platform for the settlement of labour disputes involving public servants. Therefore, it is undoubted that all labour matters involving public servants should pass through administrative and/or quasi-judicial bodies including the Public Service Commission whose decision is appealable to the President in case of dissatisfaction by any of the parties. In Tanzania Posts Corporations v Dominic A. Kaiangi (supra).the Court observed as follows: "... we entertain no doubt whatsoever that, the respondent in the present case was a public servant and therefore, upon termination ofhis contract ofservice and, on being aggrieved by the said termination, the provisions of section 25 (1) (a) and (b) of the Public Service Act would have come into play." The Court went further by quoting Section 25 of the Public Service Act which stipulates that where a Permanent Secretary, Head of an Independent Department, or Regional Administrative Secretary of a local 6 government authority exercises disciplinary authority by reducing the rank of a public servant who had been promoted or appointed on trial, or reduces the salary or dismisses the public servant/that public servant may appeal to the Public Service Commission against the decision of the disciplinary authority and the Commission may confirm, vary or rescind the decision of that disciplinary authority. If a public servant or the disciplinary authority is aggrieved with the decision of the Commission, that public servant or disciplinary authority is supposed to appeal to the President whose decision is final. In the present case, the records show that the applicant was employed as a public servant in Tanzania Railways Corporation through an employment letter dated 19lh May 2016. According to the letter, the employer, Tanzania Railways Limited was required to confirm the applicant at work after the completion of in-job training for not less than twelve months after which, subject to satisfactory progress, the applicant would be eligible for consideration for appointment from probation to permanent and pensionable post in the service of the Corporation. The records also show that the applicant worked during the probation period, but the employer never issued him with a letter of confirmation of the employment position. In the case of David Nzaligo v National Microfinance Bank Pic, Civil Appeal No. 61 of 2016, Court of Appeal of Tanzania at Dar es Salaam, the Court cited its previous decision in Stella Temu v Tanzania Revenue Authority, Civil Appeal No. 72 of 2002 where it was held: that: probation is a practical interview. 7 The records are clear that the applicant continued to work as a public servant and continued to receive all service entitlements such as 28 days annual leave, a free return ticket for the applicant and his family once a year, and free medical attention as provided by the company. The position of the law as held in the cases of Mtenga v University of Dar es Salaam [1971] HCD 247 is that payment of annual increments and allowances to a probationer, whether by mistake or intentionally, cannot be construed as equivalent to confirmation. Thus, the applicant was on probation: at the time of termination of his employment contract. Further, the records show that on 10th July 2017, the respondent received a circular from the Government instructing the respondent to take necessary disciplinary measures against all the employees who were employed after 20th May 2004, but have not completed ordinary secondary education. The respondent acted on the said circular and directed the applicant to submit evidence of attainment and/or completion of form four secondary education, but to the date of termination, the applicant did not present the requested evidence. These are sufficient indicators that the applicant was a public servant and was required to exhaust all remedies available under the Public Service Laws before filing the dispute to the CMA. Therefore, I hold that the applicant referred the dispute to the CMA prematurely so, there is no basis for this court to fault the ruling of the CMA which dismissed the application. All said and done, I think the analysis that I have made is sufficient to dispose of the entire application without testing the first and third grounds for the application. Doing so will amount to performing an academic exercise which is not the purpose 8 will amount to performing an academic exercise which is not the purpose of the adjudication process. Consequently, I dismiss the application in its entirety for lack of merits. Since this is a labour dispute, I make no order to the costs. The right of appeal is explained. It is so ordered. <ADILli, MJ., JUDGE 20/10/2023 9 Court;- Judgment is delivered in chamber on the 20th Day of October, 2023 10