20140617 TZHC Mbeya3

1141 IN THE HIGH COURT OF TANZANIA LABOUR DIVISION ATMBEYA Ah AI LABOUR REVISION NO.38 OF 2013. MCHUNGAMDAYOSISIYAKONDE AV- USHARIKA WA VERSUS¼} BAHATI RESPONDENT r section 91(1)(a) and ur Relation Act, No. 6 of 2004, Rule 24 (1) and 28(1)(d) and (e) of the Labour Court Rules G.N No. 106 of 2007. The applicant calls upon this court to call for the record and revise the, proceeding and set aside the 1Mchungaji Dayosisi ya Konde Usharika wa Bethel v.Bahati Mwambebule 4- award of the Commission for Mediation and Arbitration (CMA) in the CMA/MBY/KIN/108/2010 at Mbeya dated 03/12/2010. The brief facts led to this application are; on 07/05/2007 the respondent was employed by, the applicant as a panshworker. Their employment relationship become sour on 10/AI7009hen the respondent employment service was tminatedby the applicant on the reasons that she failed to J Iiacged her duties to the required standards. aggrieved the respondent and she referred her co the CMA where the Arbitrator found the termi unfair. The arbitrator awarded her the total of TshO,fi00/= being the remedy for AN unfair termination. Theapplicant was dissatisfied by the CMA award hence this apphcàtip? During thel-A the applicant was represented by Mr. Baraka MbWijo,a ersonal representative while the respondent 195 course of hearing the applicant raised a preliminary objection that the CMA had no jurisdiction to entertain the matter as was brought out of time. 21 Mchungaji Dayosisi ya Konde Usharika wa Bethel v.Ba ti Mwambebule , Arguing the point of objection Mr. Mbwilo submitted that the cause of action arose on 10/12/2009 and the CMA F. 1 was signed on 13/07/2010 and was saved to the applicant on the same day, therefore the complaint was filed to the CMA4out of time and the respondent ought to have obtained4lèave tdLfiied such complaint out of time. Mr. Mbwilo said the complr , filed at CMA violated Rule 10(1) of GN 64 of 2002jvhich requires a complaint to be filed at the CMA within 30dàfr6Th the date the termination occurred. He submi dfurther that the CMA jurisdiction was ousted and alLwha(the did was a nullity before the eyes of the law. He further sybmitted that, since this is a point of law can be rais:d at any stage even in this stage of APU revision and he suppoeiftJs argument with the famous case of Tanzania Chin 1 riéndShip Textile Co. Ltd vs. Our Lady of The Usa, iraSJsrers. Then he prayed the CMA proceedings and award 6equáshed and set aside q Ak In 40hative incase the preliminary objection is overruled • A Mr. 11biio submitted that the arbitrator failed to consider the Constitution of the KKKT Dioceses of Konde which under article 19 (3) requires all complaints to be resolved first within the church. He supported his argument with the case of Kanisa Ia 31 Mchungaji Dayosisi ya Konde Usharika wa Bethel Mwambebule Kiinjili Ia Kilutheri Tanzania Usharika wa Iwambi vs. Paulo Sanga Revision No. 13 of 2011, HC Labour Devision at Mbeya (Unreported) and the case of Canon Onesmo Kishishi v. The Arch Bishop Church of the Provinceôf (T) In Anglican Community High Court Civil caseNo. 34of 1994 at Mwanza. He said that the arbitrator ought tconsider 41-06- this matter involved a church and could leftAWtichurch to handle it first. On the second ground oftheryIsIon the applicant I submitted that the respondeqt iued&wrong person at the CMA who has no legal status to 6e and be sued on behalf of the Church. He said the ertspondent ought to have sued the registered trustee oLjKJ hèiT concerned be the entity registered with capacity tosueand be sued and not the applicant who is just an erjjp cf the relevant Diocese (Dayosisi ya Konde L UsharikaWa Bethel) % In tonse from the applicant submission the respondent submTd that the CMA considered the Church Constitution that is why they were referred back to the church to resolve such 4Mchungaji Dayosisi ya Konde Usharika wa M w a in b e b u I e dispute but the church was not ready. Then the respondent went back to CMA again to let it entertain the matter. I have gone through both parties submission and court record in my view issues to be considered are whetherrtb9atter was referred to CMA out of time and secondltheththe respondent was the employee of the applican In answering the first issue wheterhe'omplaint was referred at the CMA out of time the recordsh6'vs that the cause of action arose on 10/12/2009ndrt ondent referred her complaint at the CMA on 0701/201Dhich is almost 27 days from the date of termination'JpOfi the matter referred at the CMA the applicant prayeQto settle the matter out of CMA the prayer which was'gçated by the commission However the settlement faileZJ aNd the CMA proceeded to entertain the compIaintut itappeared on record that there is two CMA F. 1 contain.esame facts but filed on different dates the first aintWas filed on 07/01/2010 and the second was filed on 14/O9)010 the date which is total different from the date the complaint was tabled before Hon. Amani (Mediator) for mediation. The CMA record shows that on 02/02/2010 the 5Mchungaji Dayosisi ya Konde Usharika wa Bethel v.B a. M w a mbebule complaint was on mediation stage the facts that rendered this court to believe that the complaint was filed on 07/01/2010. So with due respect to Mr. Mbwilo it is not true that the complaint was referred on 13/07/2010. In the result the objection i:h1ereby Jr overruled as the complaint was referred to the CMA withibAthe time prescribed in law. As to the second issue as to whether1hè%r1esoondent was the employee of the applicant, it is aarë1tt from the court record that the respondent was epl éçby KKKT Diocese of Konde Usharika wa Bethel andnotMcJiUngaji Dayosisi ya Konde Usharika wa Bethel who had ñ9,capcity to sue and be sued on behalf of the church as sybmitted by Mr.Mbwilo. Therefore, if the respondent found that 1hhad any claim against the applicant she ought to haf1i ihe Registered Trustees of KKKT Diocese of Kondeaffd%1otthe Mchungaji Diocese of Konde Bethel CongregatiobeEause he had no such capacity on the eyes of the lav HenetTis ground also goes with smoke as has no merit IYthe circumstances I find no need to labour much on the other issues so long as the applicant was wrongly sued at the CMA. 6jMchungaji Dayosisi ya Konde Usharika wa Bethel v.Bahati Mwambebule In the result I found the application has merit and it is hereby allowed. The CMA proceeding and .award are quashed and set aside accordingly. It is so ordered. CI. V ) UDGE D 17/06/2014 74± Date: 17/06/2014 Coram Hon I D Aboud , Judge ( Applicant: Present For Applicant: Respondent: Present For Respondent: '. C/C Subira Order: JUdgemnt delivered in presence of the applicant in AIN prson and the respondent on this 17th day of June, 2014 cc - I.D.AUD JUDGE 17/06/2014 7Mchungaji Daôsisi ya Konde Usharika wa Bethel v.Bahati Mwambebule