CIVIL APPELA NO 233 OF 2022 JOY L CHIDOSA VS DAR ES SALAAM WATER SUPPLU AND SANITATION AUTHORITY DAWASA

AT PAR ES SALAAM fCORAM: GALEBA. 3.A. FIKIRINI. J.A. And ISMAIL. J.A.^ CIVIL APPEAL NO. 233 OF 2022 JOY L. CHIDOSA.........................................................................APPELLANT VERSUS DAR ES SALAAM WATER SUPPLY AND SANITATION AUTHORITY (DAWASA)..... ..... .............. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania (Labour Division), at Dar es Salaam) fArufani. J.^ dated the 18th day of March, 2022 in Labour Revision No. 23 of 2021 JUDGMENT OF THE COURT 10tfl & 18th March, 2025 FIKIRINI. 3.A.: The controversy in this appeal revolves around whether, upon termination of employment, the appellant deserved to be paid repatriation costs to her place of recruitment, plus subsistence allowance to cover the period she spent waiting for her repatriation or transport fare to her place of domicile. However, the issue of jurisdiction arose during the hearing of the appeal, whether the Commission for Mediation and Arbitration (the CMA) had jurisdiction to arbitrate a complaint of the employee under the "voluntary or collective agreement" nature after it had failed to mediate the parties. Before answering the issues, we find it apt to give a brief background of what led to the present appeal. Joy L. Chidosa, the appellant in the present appeal, was employed by the National Urban Water Authority (NUWA), as Principal Manpower Management Officer Grade 1 under permanent and pensionable terms in July 1985. Following the restructuring of NUWA, resulting in Dar es Salaam Water and Sanitation Authority (DAWASA), hereinafter referred to as the respondent. The appellant was initially transferred to DAWASA and later to City Water Services. In 2006, her terms of employment changed from permanent and pensionable to a fixed-term contract renewable every three (3) years. This changed on 8th February, 2016 when the appellant was notified that her employment had expired on 31st December, 2013 but was renewed by default. Aggrieved by the decision to terminate her employment, she sought and was granted condonation by the High Court on 31st May, 2019, which permitted referring the complaint to the CMA on 19th June, 2019. The CMA, through Labour dispute No. CMA/DSM/KIN/R.470/19/222, heard the parties and ruled in favour of the appellant and awarded her the sum of TZS 448,387,270.40. Displeased, the respondent successfully appealed to the High Court in Labour Revision No. 23 of 2021. The High Court Judge revised and altered the CMA award to TZS 50,552, 536.00. Discontent with the High Court decision overturning the CMA award, the appellant preferred an appeal to the Court listing two grounds: 1. That, the revisiona/Judge erred in law in holding that it is a principle in law that subsistence allowance is paid to an employee who is waiting to be repatriated by the employer to the place of recruitment and not otherwise, 2. The revisionai Judge erred in law and facts in holding that the appellant was not entitled to be paid the subsistence allowance she claimed and awarded by the CMA. Before the learned advocates were to address the Court on the above grounds of appeal, Mr. Sanga raised an issue in the nature of the preliminary point of law. Admitting that the appellant took the correct step in referring her grievance to the CMA, but submitted that in the circumstances of the appellant's case, the CMA could only mediate the parties. Once mediation has failed, the CMA ceases to have jurisdiction based on the nature of the agreement "Mkataba wa Hali Bora" existed between the parties. The learned State Attorney admitted that the issue was never raised before the High Court, nor had the respondent preferred a cross-appeal; however, since it is a jurisdictional issue, which can be raised at any stage of the proceedings, he opted to bring it up in the course of arguing the appeal. Specifically addressing the issue of jurisdiction, the learned State Attorney, contended that parties under section 73 of the ELRA could enter into a "voluntary agreement", and in case of a dispute, they could refer the matter to the CMA, which had a mandate of mediating them. If the mediation fails, the aggrieved party could find recourse in the High Court under 74 of ELRA. To back up his submission, he cited to us our previous decision in Xavier F. Kissinda & Others v. Tanzania Zambia Railway Authority (TAZARA) (Civil Appeal No. 221 of 2018) [2023] TZCA 17474 (7th August, 2023; TANZLII). In that decision, the Court ruled that the CMA has no jurisdiction when it is a collective bargaining matter. Once the mediation fails, parties could resort to the High Court (Labour Division) for decision. Mr. Sanga concluded his submissions by inviting the Court to find that the appeal lacks merit and dismiss it since the proceedings stemmed from the CMA, which had no jurisdiction to arbitrate the matter. In rejoinder, Mr, Nzowa conceded and supported his colleague's submission that the CMA had no jurisdiction to arbitrate a grievance while there was a collective bargaining agreement. He, acknowledged that all the proceedings after the mediation had failed deserve to be nullified, the decision quashed, and all orders set aside. Consequently, the appeal should be dismissed, he concluded. In this appeal, our focus would be determining whether the CMA had jurisdiction to arbitrate parties after mediation failed rather than the dispute over repatriation payment, subsistence allowance, or the employer's policy on transportation fare to the appellant's domicile. It is trite law that courts and quasi-judicial bodies, which are creatures of statutes, must first satisfy themselves that they are properly clothed with jurisdiction prior to determining any issue in controversy before them. In the case of Fanuel Mantiri Ng'unda v. Herman Mantiri Ng'unda & 20 Others, [1995] T.L.R 155, we expressed ourselves that jurisdiction is a fundamental issue that goes to the root, hence, it must be ascertained first. Therefore, guided by the above principle, our task should not be strenuous. Notably counsel for the parties agreed that the CMA had no jurisdiction to arbitrate any dispute arising from a "voluntary or collective agreement" binding them. Our scrutiny of the record of appeal revealed that the respondent, to improve or alter the employment terms and conditions which are favourable to an employee as specified under sections 13 (1) and (2) (a) (b) and (c) of ELRA, had entered into a "voluntary agreement" or in Kiswahili "Mkataba wa Hali Bora" (exhibit P13) with the trade union named FIBUKA, which represented employees including the appellant at her place of work. Among the benefits provided is the right to be paid transportation fare to the place of domicile of an employee who is terminated. This benefit is provided for under Clause 9. 0 (a) (ii) of the "Mkataba wa Hali Bora," that upon termination of employment, the employer will facilitate transportation of the employee to his or her place of domicile. The appellant was paid a fare equivalent to one whose domicile is Dar es Salaam, since that is what was indicated in all her employment documents. That decision by the employer did not amuse her, contending that her place of domicile is Dodoma and that she has to be paid accordingly. How the "Mkataba wa Hali Bora", which covered the appellant, came about can be traced from section 73 (1) of the ELRA, which states that:- "73. -(1) A recognised trade union and an employer or an employers' association may conclude a collective agreement establishing a forum for workers' participation in a workplace. (2) I f a registered trade union; employer or employers' association wishes to establish a forum for workers' participation in any workplace, the union; employer or association may request the assistance o f the Commission to facilitate discussions between the union, employer or association. (3) The Commission shall facilitate any discussions concerning the establishment o f a forum for workers' participation in any workplace, taking into account any code o f good practice published by the Council on workers' participation." In anticipation of disputes, the manner of handling them has equally been provided for under section 74 of the ELRA. The provision is reproduced for ease of reference:- "74. Unless the parties to a collective agreement agree otherwise - (a) a dispute concerning the application; interpretation or impiementation o f a collective agreement shall be referred to the Commission for mediation; and (b) if the mediation fails, any patty may refer the dispute to the Labour Court for a decision." [Emphasis added] While it is appropriate for the disputes related to the application, interpretation or implementation of a collective agreement to be referred to the CMA under section 74 (a), which is what the appellant did, the CMA, as alluded to earlier in this judgment, was only mandated to mediate the parties. Before the CMA, the appellant and the respondent locked horns on what the appellant deserved as payment after her termination from employment. While she claimed her place of domicile is Dodoma, the respondent, relying on all the documents found on the record of the appellant's employment, reflected that she was recruited in Dar es Salaam and had always identified Dar es Salaam as her domicile. Nowhere in the record of appeal was the assertion refuted. Given that "Mkataba wa Hali Bora" entered between the employer and FI BUKA on behalf of the employees existed, after the CMA had failed to mediate the parties, it could not continue arbitrating them, resulting in an award dated 4th December, 2020. Section 74 (b) of ELRA clearly stipulates that after mediation has failed, the CMA's jurisdiction automatically ceases. Therefore, a party wishing to pursue justice further may opt to approach the Labour Court for adjudication of the matter. This position has been well illustrated in our previous decision, in the case of Xavier Kissinda and Others case (supra) that once the employer had entered into a "voluntary agreement" or "collective agreement" with the trade union, which represented employees at the place of work, those employees are bound by the said "voluntary or collective agreement" and could not circumvent it. The appellant, likewise, is bound by "Mkataba wa Hali Bora." After mediation had failed, the appellant's right course would have been to pursue her rights by approaching the High Court (Labour Division), which is vested with jurisdiction to adjudicate the matter. Failure to observe that, rendered all the proceedings resulting in an award dated 4th December, 2020 and the High Court proceedings that followed a nullity. Therefore, under section 4(2) of the Appellate Jurisdiction Act, Cap 141, vesting us with revisional power, we nullify the CMA proceedings in Labour Dispute No. CMA/DSM/KIN/R.470/19/222, quash the decision and set aside the award dated 4th December, 2020 and those of the High Court in Labour Revision No. 23 of 2021. Parties are at liberty to pursue their rights through a proper procedure following failure of mediation at the CMA. In light of the above, we find the appeal lacks merit and dismiss it with no order as to costs, as this is a labour matter. DATED at DAR ES SALAAM this 18th day of March, 2025. Z. N. GALEBA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 18th day of March, 2025 in the presence of the Mr. Amos Masala, learned State Attorney for the Respondent also holding brief for Mr. Evans Nzowa, learned Advocate for the Appellant, is hereby certified as a true copy of the original.