Masu Intertrade Limted vs Abas Nuhu Mbosa revision

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT IRINGA LABOUR REVISION NO, 2375 OF 2024 (Original Labour Dispute No. CMA/NJ/AUG/25/2017 of the Commission of Mediation and Arbitration for Njombe before Hon. A. Singo, Arbitrator.) MASU INTERTRADE LIMITED ............... ............ .......... . APPLICANT VERSUS ABAS NUHU MB OSA ............. .......................... . RESPONDENT JUDGMENT 4h Oct, 2024 & 5й Feb, 2025 D.B. NDUNGURU, J: This matter has a chequered history, I find it pertinent to briefly outline the facts. The respondent was employed by the applicant as a gardener on 1st February 2017. The employment contract was for a period of two years starting from 1st February 2017 to 1st February 2019. He was stationed at NMB Bank, Makete District and his monthly salary was Tshs. 300,000/=. Unfortunately, their employment relationship turned sour as the respondent claims that the applicant has not paid him his monthly salary for seven months, that is from February 2017 to August, 2017. He referred a labour dispute to the Commission for Mediation and Arbitration (CMA) Njombe (the Commission) claiming a total of Tshs. 6,980,769/= i being unpaid monthly salary from February, 2017 to August, 2017, leave payment and monthly salary of the remaining months in his employment contract which is 15 months. The Commission was satisfied that the respondent was unlawfully terminated. It awarded the respondent a total of Tshs. 15,685,769/= being unpaid salary for work done, payment in lieu of notice, compensation for the remaining months in his employment contract, repatriation costs to his place of recruitment and subsistence allowance. In the course of executing the said award, the respondent sought execution of the award at Tshs. 71,665,769/=. The Deputy Registrar only ordered execution of the awarded amount of Tshs. 15,685,769/= and not Tshs. 71,665,769/= as prayed by the respondent. Being aggrieved the respondent and prompted the filed of Labour Revision No. 19/2020 challenging the decision of the Deputy Registrar. In his ruling dated 1st October 2021, Justice Matogolo (as he then was) ordered the matter be remitted back to the Commission so that the arbitrator could clear the contradictions in the award. Again, on 18th November 2021 the arbitrator rectified the award and awarded the respondent a total of Tshs. 79,495,769/=. The applicant was unsatisfied 2 thus, filed Labour Revision No. 18/2022 where Justice Mugeta in his ruling dated 11th August 2023, ordered the Commission to clarify the issue of payable subsistence allowance after hearing the parties, but the tribunal came up with a new award of Tshs. 111,760,769/= dated 7th December 2023. Which is now the subject of this application. The applicants grounds, thus, based on the following grounds: i. The arbitrator erred in computing subsistence allowance based oh the law of public servants while the respondent was not a public servant. ii. The arbitrator erred in computing a new figure instead of following the orders in Labour Revision No. 18/2022 Hi. The arbitrator erred in computing days for subsistence allowance including the days the matter was in court. iv. The arbitrator erred in adjudicating the same matter three times. Before this court the applicant was represented by Moses Ambindwile, learned advocate whereas the respondent was represented by Edmund Mkwata, learned advocates. з The parties agreed to argue this application by way of written submissions. In supporting the application, counsel for the applicant argued on the 1st ground that it was wrong for the arbitrator to award the respondent Tshs. 45,0.00/= per day as subsistence allowance while his salary was Tshs. 300,000/=. In his view, the subsistence allowance of the respondent ought to have been Tshs. 10,000/= per day. On the 2nd ground, he argued that the matter was remitted back to the CMA by this court for the arbitrator to clarify on the award of Tshs. 79,495,769/=. However, the arbitrator came up with a new figure which is Tshs. 111,760,769. Therefore, in his view, the arbitrator acted contrary to the orders of this court. On the third ground, the applicant's counsel submitted that section 43(l)(a), (b), (c) and (2) of the Employment and Labour Relations Act, Cap. 366 R.E 2029 (ELRA) provide for payment of daily subsistence allowance from the date of termination of employment to the date of repatriation. In his view, there is a lacuna as the law has not provided for a scenario where after termination either party has refereed a dispute in labour courts. He submitted further that section 94(1) (b)(1) of the ELRA 4 empowers labour courts to apply the Civil Procedure Code, which allows the use of Law of Limitation Act where there is a lacuna. In his opinion, applying the Law of Limitation excludes the days when the matter was in court. Therefore, the arbitrator ought to have excluded the days when the matters was in court. The applicant's counsel contended on the last ground that the matter had been remitted back to the Commission several times for clarification of the award. At all times the same arbitrator (Hon. Singo, arbitrator) presided over the matter. In his view, the said arbitrator ought to have recused himself from entertaining the matter as he had conflict of interest which affected his integrity in the matter and likelihood of bias. He cited the case of Trustees of Social Action Trust Fund & Another v. Happy Sausages Limited & Others (2004) TLR 264 to cement his view of presence of likelihood of bias. He urged the court to allow the application and remit the matter back to the Commission so that the award can be rectified by another arbitrator. The respondent's counsel resisted the application. On the 1st ground, he argued that it is wrong for the applicant's counsel to state that the •5 arbitrator awarded the respondent subsistence allowance based on the rate of a government employee. In his view, the arbitrator justified why he awarded the respondent the said Tshs. 45,000/= per day as subsistence allowance as there is no guideline on payment of subsistence allowance. He, thus, applied the guidelines applicable to public servants. Submitting on the 2nd ground, he argued that in Labour Revision No. 18/2022 the court had ordered the arbitrator to clarify on the amount of subsistence allowance payable to the respondent after hearing both parties. In his view, the amount increased due to the number of days which the respondent is still pursuing his rights in court corridors; thus, the amount could not be the same as that awarded on 18th November, 2021. On the complaint that the arbitrator awarded the respondent subsistence allowance for the days the matter was in court, Mr. Mkwata contended that the respondent is entitled to subsistence allowance as long as he has not been repatriated to his place of recruitment. To support his contention, he cited the case of Robert Raphael v. ASA Microfinance (Tanzania) Limited, Labour Revision No. 28/2020, High Court of Tanzania - Tanga (unreported). In his view, the applicant ought to have repatriated the respondent first so as to avoid the accrual of subsistence 6 allowance. Therefore, the Law of Limitation cannot be applied in the matter at hand as suggested by the applicants counsel. Mr. Mkwata argued on the last ground that this court's orders were for the arbitrator to clarify on the award he made. In his view, the same arbitrator was the right person to make the clarifications as he is the one who adjudicated on the matter. He urged the court to order the applicant to pay the respondent the awarded amount by the Commission including the subsistence allowance to the day of this ruling at the rate of Tshs. 45,000/= per day so that this matter could come to an end as justice must not only be done but seen to be done. He added that litigation must come to an end not like in the present case where there is an unending wrangle between the parties. In determining this application, I will argue the grounds as raised by the applicant. On the first ground the issue is whether the arbitrator was justified in awarding the respondent subsistence allowance at the rate applicable to public servants. Section 43(l)(c) of the ELRA provides for payment of subsistence allowance. It gives the employer upon termination 7 the obligation in respect of an employee recruited from a place other than of engagement to: "(c) pay the employee an allowance for transportation to the place of recruitment in accordance with subsection (2) and daily subsistence expenses during the period, if any, between the date of termination of the contract and the date of transporting the employee and his family to the place of recruitment" The Court of Appeal in Gaspar Peter v. Mtwara Urban Water Supply Authority (MTUWASA), Civil Appeal No. 35/2017, Court of Appeal - Mtwara (unreported) observed: 'As correctly observed by the CMA and the High Court, under section 43(1) of the ELRA, upon termination of employment, an employee is entitled to inter alia, subsistence allowance during the period between termination of his employment and the date ofpayment of costs of his transportation to the place of recruitment." Further, Regulation 16(1) of the Employment and Labour Relations (General) Regulations, GN 47 of 2017 provides the rate for payment of subsistence allowance as follows: 8 "16. -(1) The subsistence expenses provided for under section 43(l)(c) of the Act shall be quantified to daily basic wage eras may, from time to time, be determined by the relevant wage board. " Therefore, from the above provisions the subsistence allowance of the respondent is calculated from his daily basic wage. The respondents basic wage was Tshs. 300,000/=. His daily basic wage is derived by dividing Tshs. 300,000/= by 30 which is the number of days. Therefore, the respondents subsistence allowance per day is Tshs.l0,000/= and not Tshs. 45,00'0/= as awarded. This ground has merits. The applicants second complaint is that the arbitrator came up with a new figure instead of complying with the directions of this court in Labour Revision No. 18 of 2022. This court after hearing the parties in the said matter directed the arbitrator to hear the parties before clarifying on the amount of subsistence allowance payable to the respondent as the same affected the parties' rights. Due to these directives, the Commission on 7th December 2023 came with new figures due to the increase in the number of days in calculating subsistence allowance. In my view, I find no reason to fault the arbitrator because subsistence allowance which is the 9 main complaint between the parties is the one that caused a difference in the previous awarded amount. This ground lacks merit. Another complaint by the applicant is that the arbitrator in computing subsistence allowance included the days the matter was in court. From the record it is evident that the respondent was recruited from Kilolo District in Iringa region. His place of work was Makete District. There is no evidence on record that the respondent was repatriated to the place of recruitment upon termination. As I have stated earlier that under section 43(1) of the ELRA upon termination of employment, an employee is entitled to inter alia, subsistence allowance during the period between termination of his employment and the date of payment of costs of his transportation to the place of recruitment. As there is no evidence that the respondent has been repatriated to Kilolo District, his place of recruitment, he is entitled to be paid subsistence allowance from his termination to the date of his repatriation. This ground has no merit. This moves me to the last complaint that it was wrong for the same arbitrator to adjudicate the same matter three times. I have perused the court record, particularly this court's orders remitting the matter back to the Commission for clarification of the award. I begin with the order dated io Ist October 2021 by Justice Matogolo (as he then was) in Labour Application No. 19 of 2020. In his decision, the judge ordered as follows: 7? zs ordered that, the matter be remitted back to the CMA and the parties are advised to go back to the CMA so that the Arbitrator can dear the contradictions in his award" [emphasis added] Again, in Labour Revision No. 18 of 2022 Justice Mugeta directed the arbitrator to clarify the issue of payable subsistence allowance after hearing the parties as initially he did so suo moto. The court did not direct that the award be clarified by another arbitrator. The court had ordered the arbitrator to determine whether subsistence allowance is paid in form of daily pay or as monthly salary, thus, clarify on the issue of the payable subsistence allowance to the respondent. The arbitrator held that as the respondent had not been repatriated to his place of recruitment from 7th August 2017 to the date of the award which was 7th December 2023 a total of 2,280 days times 45,000 which according to him was the rate of subsistence allowance payable to the respondent. As I have earlier on discussed on the rate of subsistence allowance payable to the respondent, Ї will not deal with that at this juncture. Therefore, the arbitrator was complying with the directions of this court. This ground fails. її All said and done, this application partly succeeds and partly fails to the extent shown above. This being a labour matter, I make no orders as to costs. It is so ordered. Court: Judgment delivered in chambers in the presence of the respondent in person, Mr. Mkwata, learned advocate for the respondent who also holds brief of Mr. Ambindwile, advocate for applicant. Sgd. D.B. NDUNGURU JUDGE 05/02/2025 12