20130823 TZHC Dar es Salaam

✓, ., ! IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM 1.ABOUR.D.!§._~Urfe ~~ 25 OF 2010 ....... · ~ ~ •,) JOSEPH SYLDIOR'-& OTHERS;:·~ ............. ~ .............................-.. APPLICANT ' . ! i VERSUS TANZANIA ELECTRIC SUPPLY CO. LTD ................................ RESPONDENT RULING 3/4/2013& 23/8/2013 S. A. N. WAMBURA, J. This ruling is in respect of a preliminary objection raised by the respondent on the grounds that:- (iJ The complaint before this honourable court is time barred. (ii) The purported complaint is incompetent for not ·being signed by the appliec1nts: , ! ,..1 (iiij This honourable court has not jurisdiction to entertain the mah-er. Whereas the applicants were represented by Mr.Kombo Advocate, the respondents were represented by Ms. Upendo Mbaga Advocate. The P.O was argued by way of written submissions. I thank both counsels for adhering to the 1 1 agreed schedule. Ms.Mbaga submitted on the issue of jurisdiction of the court as a well established principle of the. law that Labour disputes on fairness of termination and ancillary issues. have. to commence at the Commission for Mediation and Arbitration (~MA) before they 9re referred to this honourable court. 1 •/ I, :, l -· / j . That this rule has no relation with the pecuniary value of the case as section 86(7)(b) of the Act provides that until mediation fails, a party to labour dispute cannot bring tli~· same complaint_ to this court citing the case of Salim . ,. ' /,jj/1 .,.~,. Kitojo Vs. Vodacom ff) Ltd Co~p1aint·No. 4/2008. That the claim at hand was never filed at CMA as the mandatory requirement of the labour law. That it . ! I is also strictly constructed to the effect that ~ven the provisions of Rule 23(1) of the Labour Court Rules, 2007 which do not exempt parties from mandatory mediation by citing the case of Hector Sequiera and Serengeti Breweries Ltd Labour dispute No. 26/2009, where the court stated Rule 23(1) of the Rules does not exemp~ the parties from CMA on mandatory mediation. ! i She further submitted that the claimants total claim amounts to TShs. 28,549,170/= being a lesser amount to that of Tshs.100 million which was the pecuniary jurisdiction of this court. But regardless of the pecuniary jurisdiction of the court, the issue of fairness of termination has no pecuniary limitations. Since sections 86 and 88 of the Act do not provide for pecuniary limit or conditions as · ;.1 regards this power, the co~pl~inants ought to have filed the mader at CMA. Thus this' court has no jurisdiction to entertain the complaint as it is below pecuniary value of the High Court and had not previously been filed at the CMA. It was Ms.Mbaga's further submission that the complaint was time barred. That the law provides for 30 days for filing disputes on fairness of an employees termination as provided for under Rule 10(1) of the Labour Institutions (Mediation and Arbitration) Rules, 2007. That the complaint shows different dates which termination had accrued. The years listed were 2000, 2004,2005, 2006,2007 and 2008 and the case was ! i . 2 , ; i filed on 23/8/2010 so this matter was hopelessly time barred. That throughout those years the complainant did not provide sufficient cause of delay nor followed the proper procedure to file complaints out of time under the labour law. She cited the )t!ase of Al-):\ll}f,!l{I Investment Ltd. Vs. Print Park ·: . . ,. ·.. l'.d'!' ,, . . Tanzania Ltd and,,.}'•1artin ~ngany~;- Misc. Civil Case No. 128/1997 (Unreported) where the application was struck out for being out of time and for affidavit not providing sufficient cause for delay in filing their appeal. Ms.Mbaga_also alleged that the ground of the complaint was incompetent for not being signed by the applicants. Under Rule 6(1)(C) of the Labour Court Rules, 2007 there is a mandatory requirement that a party initiating referral ! ! proceedings to the cou~ shall file a statement of complaint as prescribed in form No. 1 and shall be signed by the parties to the proceedings. That the complaint was improperly signed by the Counsel instead of the complainants themselves contrary to Rule 6(1)( C) of the Rules. That th~ complaint could, not be saved by Rule 7(5) of GN 10~/2007 as it ·1 )oo is inapplicable. That the stage at which Rule 7(5) of the same could be involved has already passed and the complaint could not be saved. That even section 56 of the Labour Institution Act,2004 could not ~ave the complaint as that section applies to appearances in court and representation in that regard but not in signing a vital originating process like a complaint. She thus prayed for this court \ ! , to dismiss the application. In his reply Mr.Komba submitted that all the provisions and the cited authorities were irrelevant and inconsequential in the present proceedings. That since each case must be treated on its own merit, then the present case was one which does not.fall within their ,contemplated ambit. 3 That-their contestation bears roots in the 3rd schedule of the Act specially at section 8 and 9 therefore 1;,/' the relevant provisions are Sections 8(1)&(2) and 9. 0 That deliberate intention of thB 1~j$latfire, in enacting the above '"saving and ~ ..... _:;· ';• -. ~·~-~- . :at the law was to cater for those matters preferred before transitional provision"..• 1 and were pending when this Act came into force. That the pleadings in the form of the complaint clearly shows the fact that the matter of complaints was dealt with by TUICO under the applicable law when the cause of action arose. Therefore in the view of the above provisions of the . ! I law then this matter was not one contemplated by Act No. 6/2004. In the second ground of the complaint alleged to be time barred he submitted that complainants kept quiet for arange of 2 to 10 years and went to file a complaint on 23/8/2010. That what the evidence of the pleadings portrays was that the ~omplainants were through out communicating wfrh their employer and the duly appointed bodies to have this matter settled amicably 01.1t of court. ,..1 ' . That the last groynd of objection that the complaint was incompetent for not being signed by the complainants also did not hold root. This is because the law provides that the form has to be signed by the applicant or his duly ' I. . authorized agent. That an advocate of the complainant was a duly authorized person. The absence of the signatures of the complainants was not fatal to the pleadings as to warrant dismissal of the complaint. That a discretionary direction of the court to amend the pleadings could cure such anormally without affecting interests of justice. ' I 4 Thus since the grounds of objection by the respondent were not sustainable-both in law and in fact, he prayed for the preliminary objection to be dismissed. .. i;.:. ~~ ,. ~"' _li"4 (,· , ,· ..•· - .. ::·J .• .., ' ~-.;·,, i In her rejoinder Ms.Mbaga submitted .that item 8 was in applicable in this case because it applies to references that were already in the judicial form and subjudice. The current case was a fresh one filed in this cou_rt using a complaints form. There was no reference filed by the applicants prior to this one. That the applicants filed their case into this court without filing the same at CMA or the old forums, the schedule alluded to above preserve the applicability of the old law. That the trade dispute was not filed in the old forum as mandated by item number 9. The old forum was through the union office, Labour Commissioner and thus Industrial Court or. its replacement. There was no proof that the , ! I applicants followed this mandatory procedure. That item 9 upholds the ,..1 applicability of the old law, Industrial Court Act. The Industrial Court Act did not apply to trade disputes. The dispute between 2 or more employees and employer on employment or non employment matters was called as Industrial dispute in the Industrial Court Act. ! I That section 4 of the Industrial Act established a reporting procedure that any matter failing within the definition covered by section 3 of the Industrial Court trade dispute and that items of section 4, it must be determined as per · procedures stated in section 4 that the procedures laid down in the case of Tambueni Abdallah & 89 others Vs. NSSF, Civil Appeal No .. 33/2000. ! I 5 I I That in Tambueni's case (supra) the word "may" in section 4(1) of the Industrial <;ourt Act did not give discretion as to which court to got to but that an employee had discretion of whether or not to litigate. Thus this court lacks jurisdiction t_o entertain the ~i~p~t~~~~n. the plaintiff and the defendant. 1 -. •• 1 ~. ~~-~. • ·-; That it is trite law that jurisdiction is a creature of statute as such parties even labour officers could not confer this court a jurisdiction which it lacks. That the plaintiffs case was in a wrong forum and this court could not entertain it by citing the case of Ali Haji Grandust Vs. BP (T) Ltd and Anor, Civil Revision No. 53/19991 That the relev~nt Labour Statutes provide special resolutions of Labour disputes_ like the one at hand. That good policy_ and law requires the same to be taken to the appropriate forum as was held in the case of Attorney General Vs. Cohay Acoonay and Joseph Lahary [1995] TLR 80 at Pg 96. In respect of time barred disputes, Ms.Mbaga submitted that the third , ! I . schedule referred by the applicant that deals with disputes which occurred before the new law come into force. Section 8 and 9 of the third schedule jn the ELRA 1 ,., the law provides a way forward. The mentioned provisions are supposed to be read togettier with section 13 of the same. It provides time limit for finalization of disputes which arose in the old law. The same was amended by section 42 of the Written Laws (Miscellan'eous Amendments) No.2 Act, 2010. That the applicants were terminated in different years but there was a long lapse of time .• of between two to ten years when the complaint was lodged out of time and there is no law which does not have limitation of time within which to lodge claims. ' 1 The aspect that the applicants were negotiating out of court did not hold water as there are clear principles that have been laid down by courts that the 6 I j . .,. I \\Uc<,~"'-"-•,.-;.~ •. ·t time when the parties are negotiating could not be excluded in computing the period of limitation by citing the case of Consolidated Holding Corporation · Vs. Rajani Industiries· an~ BOT, Civil Appeal No. 2/2003. · . ,__ . I .' ~-•· "'I .. ~... _l>.;.i/ ..• . -, ,l_ .,• . Ms.Mbaga further submitted that the complaint was not signed by the applicants that the complaint form must follow all its dictates as to format and contents. That t~e requirements in the provisions of the law with the word "shall" means mandatory. Now having gone through the grounds raised I will look into for the last ground. Let me briefly state that I agree with Ms.Mbaga that fairness of termination and ancillary issues have to cpmmence at the Commission for Mediation and Arbitration (CMA,) before being referred to the Labour Court. The matter at hand was not referred to CMA on the grou7d that this 1 ... matter was pending when this Act came into force. In the case ~f Salim Kitojo Vs VODACOM (T) Ltd, Complaint No. 4/2008 this court referred to section 86(1) of the Act and held that the complaint should have gone through the ! I . . Commission. for· Mediation and Arbitration. That it is only after mediation has failed that the complainant has a choice to either go for arbitration under Section 86(7)(b) or to this court under section 86(7)(b)(ii) of the Act. Section 94(2)(a) of the Employment and Labour Relation Act provides for the position of this court where .the complaint has not been • referred to the . \ I Commission and I beg to quote:- "5.94 (2) the Labour Court may refuse to hear a complaint if 7 i' 7 ,/l & (a)The complaint has not been referred to mediation by the Commission under section 86; // The m.atter at h~h'd did ;not gp tjlr'l,Ugh mediation at CM.A thus renders the •• N ~~ I·· . -:-J~ ....- ' matter to be prematur.e;ly before the courC This ground is therefore upheld. · There are other grounds requiring determination. The respondents alleged that the dispute was filed in this court out of time (two to ten years) after the dispute arose arid the same was not signed by the complainants instead it was ( i signed by their advocate. I am not going to lo.ok into these grounds since the last ground on jurisdiction is enough to dispose off the matter. In view of that and for the interest of justice, I use powers vested to the court vide Section 94(3)(b)(i) of the Employment and Labour Relation Act to order this• co~plaint be transferred to the CMA to be resolved through mediation in accordance to the law. ,..1 /\ j_l, !'', t/ ' , S.A.N}Wam6ura '-'JUDGE 23/8/2013 8 I I. I. i. Date: 23/8/2013 Coram: Hon, S.A.N.W~.r,nbura,i:J Complainants: 2 pres;ht in pers0~:... t1~ 'i , ~: -,.~ ' -~ --~ •,t~ For complainants : Respondents: For Respondents: Ms. Upendo Mbaga Advocate CC: Josephine Mbasha ! j Ms. Mbaga: Matter is for ruling on the preliminary objection that had been raised. Court: Ruiing delivered this 23 rd day of August, 2013 at the presence of the two ' ' applicants and Ms. Mbaga for the respondents. ,. r I ....J,_.J S.A.N. ~mbura ' . \lriDGE . 23/8/2013 ' ! i i i 9