final ruling KILIMANJARO C

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB- REGISTRY AT MOSHI LABOUR REVISION NO. 4579 OF 2024 (Arising from the decision of the Commission for Mediation and Arbitration “CMA” of Kilimanjaro at Moshi dated 20th October, 2023 in Labour Dispute No. CMA/KLM/ ARB/36/2022) KILIMANJARO C.R.C.T. HOSPITAL……………............................. APPLICANT VERSUS VERONICA W. PONELA……..…………….…….……………….……RESPONDENT RULING 19th Sept & 17th Oct 2024 A.P.KILIMI, J.: KILIMANJARO C.R.C.T. HOSPITAL as applicant in this matter, is before this Court faulting the decision of Commission for Mediation and Arbitration “CMA” of Kilimanjaro at Moshi which awarded VERONICA W. PONELA “the respondent” to be paid compensation of 12 months of her salaries after CMA satisfied that her termination was unlawful. The applicant has moved this court under Section 91(1)(a) and 91(2)(b) and 94(1)(b)(i) of the Employment and Labour Relations Act; No.6 of 2004 “ ELRA” read together with Rule;24(1),24(2)(a)(b)(c)(d)(e)(f and 24(3)(a)(b)(c)(d) and 28(1)(c)(d)(e) of the Labour Court Rules,2007,G.N. No.106 of 2007 and any other enabling provision of law, 1 praying this Court be pleased to call for and examine the record and proceeding of the CMA on the grounds that the Award by Arbitrator was improperly procured and second that the Award by Arbitrator was unlawful and irrational. The brief facts as recapitulated from the CMA records are to the effect that; the respondent was permanent employed by the applicant as Pharmaceutical Technician II since 17/11/2017. The applicant informed the respondent by letter to present her practicing license as required by Health laws, the said letter gave her the deadline to present the said licence on 30/6/2022. The respondent went to the Hospital Administrative secretary and informed him that she has no practicing license since in previous professional examination she got two supplementary. She then prayed for leave and filled a leave form starting from 1st July to 14th July, 2022. Her struggle to get leave proved futile, instead on 8/7/2022 she received a letter interdicting her from work. On 13/7/2022 she received another letter informing her to give explanation why she was absconded from work without leave, and on 18/7/2022 received another letter which informed her that her absence from duty amount to termination from employment by herself. 2 The applicant through the Hospital Administrative Secretary one Leonard Raymond Sami (DW1) informed the CMA that respondent was not granted leave by then because Pharmaceutical Department was having scarcity of workers and respondent was the head of the said department keeping keys for medicines. The health administrator said the respondent was absent from work and after a follow up, they discovered that she had travelled to Mbeya and that is why they issued a letter for her to explain on that misconduct. She did not respond, thereafter on 18th July, 2022, the respondent was notified by the applicant about her conduct of absenteeism and consequence thereof by a letter. Then on 20th July 2022 the respondent referred the dispute at CMA hence this matter. When this matter was called for hearing, the applicant was represented by Mr. Exaud Mgaya whereas the respondent was represented by Mr. Gidion Manase, both being personal representatives of the parties respectively. Both complied with the schedule ordered for filing written submissions hence this ruling. Submitting in support of the application, Mr. Exaud Mgaya prayed this court to adapt applicant’s affidavit and proceeded that; first, the respondent failed to provide her defence after being served with the letter 3 to state, consequently they issued to her letter which was not termination letter as observed by CMA. Secondly, Mr. Mgaya further argued the applicant service is an essential service by the law thus, the CMA had no jurisdiction to entertain this dispute of essential service as per section 29 and 30 (a)(b) of Labour Institutions Act,2004. And, third. Mr. Mgaya contended that, there was no termination by applicant rather the respondent absconded from duty. He submitted that after receiving her notice of abscondment from her employer, she was supposed to first exhaust her claim internally before referring her dispute to CMA. Expounding the above, Mr. Mgaya argued that no termination letter was issued to respondent rather the respondent absconded from duty for failure to fulfil her responsibilities and orders. He submitted that the respondent was issued a letter by applicant to submit her professional licence (a Practicing License) with deadline dated 30th June 2022 as mandatorily requirement by the Ministry of Health for re-registration of her employer's services, but for no reasons the respondent failed to submit the same and decided to abscond from her employment. In proving that the respondent absconded from work, Mr. Mgaya said that on 12th July,2022 the applicant received a letter from the respondent 4 requesting for extension of submitting her practicing licence while her address indicated that she was in Mbeya at that time. The same was tendered as exhibit. On 13th July,2022 the applicant issued a letter to respondent demanding her to explain why she was absent from her duties without notice and deciding to travel to Mbeya region without permission. She failed to provide any explanations. Mr. Mgaya argued further that respondent prematurely referred the matter to CMA because the letter issued to her on 18th July 2022 intended to notify her on her absence from duty and consequences thereafter whereas the same letter claimed to be termination letter by respondent was not to that effect. In respect to the claims that the CMA erred in law and facts in favour of the respondent, because the oral evidences were improperly assessed and procured. He maintained as alluded above on communication by letters issued to the respondent which he stated that had the CMA assessed the same could have realized that no wrong on its part. Lastly, Mr. Mgaya concluded that CMA erred in law and facts in favour of the respondent by not considering that that respondent did not indicate in labour form CMAF1 that the applicant's service is an essential 5 service and should be dealt on its peculiar matter. Thus, he insisted the CMA award was unlawful and irrationally concluded for failure to ascertain that applicant's service is essential service and the respondent's conduct of abscondment from duty. Thus, he prayed for this court to set aside the CMA award since there was no termination by the applicant rather than the respondent had absconded herself from work. Responding to the above claim, Mr. Manase for the respondent prayed to adopt respondent’ counter affidavit, then said in the outset that the termination of the respondent did not follow proper procedure. He argued that as per the records, on 06/07/2023 the respondent was called in office and also on 4/07/2022 she followed the Hospital health administrator to claim her leave permission thus it proved that she was present on her duties since her leave claimed from 1/7/2022 to 14/7/2022 were not authorized. Thus, she was on duty until 8/7/2022 when she received interdiction letter. Later on, 13/07/2022, she received another letter of absconding from duty, and while expecting to be called at the disciplinary committee, she received a termination letter dated 18/07/2022. Contending in respect to CMAF1 Mr. Manase argued that the same was filled as per requirement of the law and both parties were given the 6 right to be heard, further maintained that according to exhibits (V- 3) (V - 4), (V -5) and (V - 6) shows clearly that applicant failed to prove the offence against the respondent, hence did not comply with section 39 of the ELRA also did not follow the procedure of termination of the respondent as envisaged in the same act as per section 39, and section 13 (1) (2) (3) (4) (5) (6) (7) (8) of code of good practice GN 42 of 2007. Mr. Manase then concluded that the amount awarded to the respondent by CMA was justified thus this court should upheld the said decision. In brief rejoinder, Mr. Mgaya reiterated that the CMA did not have jurisdiction as the applicant is doing essential services by the law, thus the CMAFl filled by the respondent was defective for being incompetent t. In replying the argument that the respondent was present, Mr. Mgaya reasoned that if she was present on duty why did she not file reasons of her abscondment in order to comply with orders of her employer. He added that her letter for extension were written while she was at Mbeya, the same was tendered in court, thus proves her absconding. Then he concluded that the respondent was not terminated by the applicant rather than she was notified on her abscondment from duty and consequences 7 thereof as per (Exh.V-6) by respondent, thus the said letter did not amount to termination letter. Now, the central issue is whether the CMA was justified for awarding the said compensation to the respondent. In the outset I wish to start with the argument raised in this revision by the applicant personal representative that the CMA had no jurisdiction since applicant is doing essential services that this matter ought to have gone at the proper forum. This matter was not raised at the CMA and not specifically pleaded by the applicant, but since it is matter of jurisdiction the same can be entertained even in this revision. (see Tanzania Revenue Authority vs. Tango Transport Company Ltd, Civil Appeal No. 84 of 2009). In my view, with respect to Mr. Mgaya, I think he misapprehended the said law in respect to essential services. It is true that the applicant is doing essential services, but according to Employment and Labour Relation Act ‘ELRA’, on disputes of interest in essential Services section 78 of the act provides that; “78.-(1) Unless a collective agreement provides otherwise – 8 (a) any party to a dispute of interest in an essential service may refer the dispute to the Commission for mediation. (b) if the mediation fails, any party to the dispute may refer the dispute to arbitration by the Commission. (2) The provisions of subsection (1) shall apply if - (a) the parties are bound by a collective agreem ent providing for m inim um services during a strike or lockout; and (b) the Essential Services Committee has approved that agreement in terms of section 79(2).” Furthermore section 4 of ELRA which is an interpretation section defines dispute to mean any dispute concerning a labour matter between any employer or registered employers’ association on the one hand, and any employee or registered trade union on the other hand and also includes an alleged dispute, whereas dispute of interest is defined as any dispute except a complaint. Moreover, the labour Institution Act provides for how disputes are conducted in labour institution. Section 29 established an Essential Services Committee within the Commission and section 30 of this act provides for the functions of the Essential Services Committee and states as follows; 9 “30. The functions of the Essential Services Committee shall be— (a) to designate essential services in terms of section 76(3) of the Employment and Labour Relations Act; and (b) to determ ine disputes about w hether or not an em ployee or em ployer is engaged in a designated essential service.” [ Emphasis supplied] From the import of the law above, it is my considered opinion the respondent had a complaint therefore was right to refer the matter to the CMA, thus this claim by the applicant is devoid of merit and consequently I proceed to dismiss. Now back home to the chamber summons which constitute prayers by the applicant to be dealt by this court; the applicant has prayed under paragraph 1 of the said chamber summons as follow; 1. That, this Court be pleased to call for and examine the record of and proceeding of the Commission for Mediation and Arbitration at Moshi in the labour Dispute NO. CMA/KLM/MO/ ARB/36/2022 with view of satisfying itself as to its legality. propriety and correctness thereof 2. That this Court be pleased to revise the records of CMA and the Award with Labour Dispute NO. CMA/KLM/MOS/ ARB/36/2022 issued and delivered 10 to the applicant on 17'h March 2023 before Hon. Batenga .M (Arbitrator) on the following grounds: (a) That the Award by Arbitrator was improperly procured. (b) That the Award by Arbitrator was unlawful and irrational. Starting with the first ground above, in the outset I must state that the proceeding at the CMA is initiated by filling CMAF1 and filing the same at CMA registry. This is a document which institutes a labour dispute and it is filed in terms of Rule 5 (1) of the Labour Institutions (Mediation and Arbitration) Rules, 2004, Government Notice No. 64 of 2007. Thus, the same is interpreted to be synonymous to a plaint. (See Security Group (T) Ltd vs Samson Yakobo and 10 Others, Civil Appeal No. 76 of 2016 (unreported). Thus, being so it determines the nature of the dispute and not the arguments of the parties as said above. I have scanned this form filed by the respondent; she claimed her grievances against the applicant by breach of contract. And since the respondent claimed on breach of contract, is the one who is supposed to prove that there was a breach of contract on part of the applicant, unlike in unfair termination where the employer is duty bound to prove that the termination was fair. 11 However, according to the issue raised at the CMA has triggered me to ascertain on whether the pleading above was complied with. The issue dealt at the CMA was whether the applicant terminated the respondent employment for valid reasons and whether the procedure for termination was properly followed. According to the evidence adduced by the respondent, she did not evidence on the breach of the contract by the applicant, but merely as envisaged at page 29 of the typed proceeding she stated that the termination by the applicant was done unfairly, in her viva voce she said; “ Naomba Tume nipewe haki zangu kwa sababu sikuondolew a kazini kw a haki, utaratibu haukuw a wa haki. Nilikuwa mfanyakazi mwenye mkataba wa kudumu, sikutendewa haki. Nilikuwa tayari kufanya mitihani ya kurudia ili nipate leseni. Kunishutumu kuwa sikuwepo kazini toka tarehe 1/7/2022 haikuwa kweli mimi nilikuwepo kazini siku hizo mpaka nilipopata barua ya tarehe 8/7/2022 ya kusimamishwa kazi mpaka niwasilishe cheti.” [ Emphasis supplied] 12 Nonetheless, I have entirely scanned the impugned decision of the CMA, indeed its decision is based on the prove of unfair termination. This is depicted in that judgment, it started at page 7 when the CMA said the way forward for its determination of the allege dispute and since that was the dispute of unlawful termination, then it is the employer (applicant) who was required to prove that the said termination was fair, and continued to evaluate the evidence of DW1. And at page 9 at first paragraph of the impugned decision, CMA maintained that the procedure of termination for respondent’s employment was not proper because the applicant was required to convene disciplinary committee. Then at page 10 the CMA observed by not doing so was contrary to the provision of section 37 (1) of ELRA which apparently provides how termination of employment is unfair. Therefore, for the foregoing above, in my view, the evidence of the respondent which then caused the basis of the decision of CMA was dispute of unfair termination. Thus, as said above, I have asked myself was the CMA properly moved in this matter. I have examined the CMA F1, it was signed by the respondent on 10th August 2022 by putting a tick on breach of contract, by so doing I think which is obvious, did not proceed to fill Part B which provides 13 mandatory to be filled if the dispute is on termination of contract. Therefore, as depicted above that the evidence at CMA was on unlawful termination that means the direction of CMA on proving the alleged was ventured from different pleading, and in my view since the pleading are there to inform the opponent party so that should not be taken by surprise on alleged claims. Therefore, since parties have the knowledge from the outset that the dispute will be only on breach of contract, and that is why respondent at CMA did not fill part B which is mandatory for disputes relating to termination, in my settled view the respondent flawed to change in her evidence and testify that the applicant unlawfully terminated her employment contract. In that regard I wish to be fortified my view by the cardinal principle that parties are bound by their own pleadings and are not allowed to depart from them. See The Registered Trustees of Islamic Propagation Centre (IPC) vs The Registered Trustees of Thaaqib Islamic Centre (TLC), Civil Appeal No. 2 of 2020 ; Yara Tanzania Limited vs Ikuwo General Enterprises Ltd, Civil Appeal No. 309 of 2019; NBC Limited & Another vs Bruno Vitus Swalo, Civil Appeal No. 331 of 2019; Barclays Bank (T) Ltd vs. Jacob Muro, Civil Appeal No. 357 of 2019 and Astepro Investment Co. Ltd v. Jawinga Company 14 Limited, Civil Appeal No. 8 of 2015, CAT ( Both unreported) , to mention justice a few. In the of The Registered Trustees of Islamic Propagation Centre (supra), at page 18 the Court of Appeal referred with approval an article by Sir Jack I.H. Jacob bearing the title, “The Present Importance of Pleadings,” which stated as follows; "As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings .... For the sake of certainty and finality, each party is bound by his ow n pleadings and cannot be allow ed to raise a different or fresh case w ithout due am endm ent properly m ade. Each party thus know s the case he has to m eet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are them selves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation.” 15 [Emphasis is mine] Nevertheless, I have considered the dispute mediated at the CMA. This is revealed through CMA F.6 filed on the record to prove that the matter was mediated, the same shows the nature of the dispute to be a breach of contract, and it was signed by both parties and mediator on 16th August, 2022 marked the mediation failed. According to the Labour Institutions (Mediation and Arbitration) rules 2007 (G.N. No. 64 of 2007) which for reference purpose I find apposite to refer rule 16 in the above concern, the same provides; “16 (1) the mediator shall issue a certificate as soon as is practicable after mediation has been finalised stating w hether the dispute has been settled or not. (2) The mediator shall, in the certificate, identify the nature of the dispute for the purpose of determ ining w hat rights the parties have in term s of the Em ploym ent and Labour R elations Act. (3) Where the dispute remains unresolved, irrespective of what was stated in the dispute 16 referral form, the mediator’s certificate shall determine the nature of a dispute.” [ Emphasis added] As alluded above the only dispute that was mediated was breach of contract and not termination. Therefore, according to the law above which is couched in mandatory terms, the disputed which was mediated is breach of contract, but the arbitration conducted at the CMA which is depicted from issues raised and evidence thereto, based on unfair termination of the respondent’ s employment contract. In my view the two are different disputes, breach of contract cannot be the same with termination of contract, therefore under the above law, I cannot hold that the said dispute discussed during arbitration was mediated at the Mediation session which is mandatory before going to arbitration. In the circumstances I am settled the procedure as to above law floated, thus prejudiced the applicant to settle the matter in the preliminaries. The next point I should consider is what is the effect of the act of the respondent to file a dispute relating to breach of contract but deviated 17 from her pleadings and gave evidence of unfair termination which was not pleaded. According to the court in The Registered Trustees of Islamic Propagation Centre (supra) at page 17 referred its earlier cases in James Funke Ngwagilo vs Attorney General [2004] TLR 161; Lawrence Surumbu Tara vs The Hon. Attorney General and 2 Others, Civil Appeal No. 56 of 2012; and Charles Richard Kombe t/a Building vs Evarani Mtungi and 3 Others, Civil Appeal No. 38 of 2012 (both unreported) and observed as follows; “it is time-honoured principle of law that parties are bound by their own pleadings and that any evidence produced by any of the parties w hich does not support the pleaded facts or is at variance w ith the pleaded facts m ust be ignored.” [ Emphasis added] I have considered that the CMA in awarding the respondent based on evidence of unfair termination which was not pleaded but also not mediated as indicated above, according to the above authority the same should be ignored or disregarded which I do so forthwith, consequently by 18 doing so, nothing remains on record to legalise the award issued to the respondent by the CMA. On the premises and from what I have endeavoured to discuss above, in upshot the proceedings that were conducted at CMA did not base on form CMA F1 filed by the respondent. Thus, I find this anomaly suffice for the disposal of this application. For the foregoing, I hereby nullify CMA proceedings, quash and set aside the award arising therefrom. In the circumstance and having considered the background of this matter, the respondent may, if still interested, pursue her rights in a proper forum legally. It is so ordered. DATED at MOSHI this 17th day of October, 2024. X JUDGE Signed by: A. P. KILIMI 19 Court: Judgment delivered today on 17th day of October, 2024 in the presence of Mr. Manase Gidion for respondent and others absent. Sgd; A. P. KILIMI JUDGE 17/10/2024 Court: Right of Appeal duly explained. Sgd; A. P. KILIMI JUDGE 17/10/2024 20