20140925 TZHC Arusha

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT ARUSHA MISC.CIVIL APPLICATION NO. 23 OF 2013 \ MUKUSYO PETER ................·........................ COM VERSUS THE DIRECTOR KINGONGONI LODGE LTD ....... . . .. RESPONDENT (Original CMAIARSIMED/241. 7) . ___ RU__ 27/6/2014 & 24/9/2014 R.M. RWEYEMAMU, J:• This application was · to Court under Rules 24 (1) and 56 of the Labour ,, Court Rules, GN No 106/20 n order in the following terms:- Court be pleased to condon this application for Revision filed out of ed in the affidavit attached here to in support of this application. urable Court be pleased to determine the matter in the manner it considers d gave any relief it considers fit to grant" . . . I should point out at the outset, that it is not clear from the wording above, whether the applicant Peter, was seeking revision of a Commissi0n for Mediation and Arbitration (CMA) award, or extension of time to apply for such revision. No wonder in opposing the same, the respondent/employer raised Preliminary Objection (PO) to the application on ground that it was time barred, apart from being supported by a defective affidavit. [1] On 23/5/2014, when this application was scheduled for hearing, Peter was unrepresented- while the employer appeared through Counsel, one Mr.S. Madulanga of ., Mrosso and Associates Advocates. I found it only fair to order as I did, that the application be heard by way of written submission. Parties' submissions were ultimately forwarded to me for preparation of thi~ decision. Briefly, the basis. of this application is this: The f Peter was a foreign national who was employed by the r work permit from 1/8/2005 to 31/7/2006. It would appe bilities of renewing the contract but the important fact is that Peter's ired 9/9/2006. Peter's contract was not renewed and he filed u . on in the CMA against the ,, respondent. All along, Peter's was wo - i : that it was the employer's duty to apply and obtain work permit for him. , of the applicant and ordered that he be awarded T. that, the respondent successfully applied to the CMA for 1 s decision dated 22/5/2008, the CMA Director (using powers f the Labour Institutions act, 7/2004 and Rule 29 of GN 64/2007}; e earlier decision by quashing it and setting it aside; ► deci a that the CMA had no powers to determine a dispute where relationship of the parties fall outside the Employment and labour Relations Act, 6/2004; and: ► Dismissed Peter's claim for want of jurisdiction. ,,: .. ·- It is that last decision, which the applicant now seeks to revise or, applies for extension of time, to make that application. [2] I I \! - •-· • ! ! . Peter was aggrieved. He filed Misc. application 16/2010 which was ordered struck i i . out by the Court on 15/7/2003 for reason that it was supported by an application with a defective jurat of attestation but Peter was granted two days to re-file. Henc·e this application filed on 16/7/2013. What is not very clear from the record however, is what was being sought in the struck out application. _ Be that as it may, I have the following observations t on, filed consequent to that order:- • Assuming the application is for extension of , .. same would have to be dismissed because the applicant has ted in the a·pplication and submission, ood cause for de/a,· of GN 106/2007. • On the other hand, if the a · , the same has to be dismissed because it is obviously •· ugned 'decision was issued. by the CMA on 22/5/2008 butt · on 16/7/2013 •ating that, even if the situation was different from what is till dismiss this application for want of cause of action. Why? ed facts, Peter had no work permit when his employment was Court, in the case of Rocky City Tours Ltd Vs Andy Murray, Revision 69 of 2013 (MZA Sub-registry) issued on 2/6/2014, discussed in detail the issue of validity of contracts of employment entered into with a foreigner without work p~r~it and made a number of observation ! relevant ,· among them that: [3} I • I. .t '. (1) The issue of validity of the employment contract can be enquired into at any stage of proceedings, including at the revision stage because it goes to the root of the cause of action on unfair termination- if th.ere is no employment contract, there cannot be termination, fair or otherwise. (2) The contract of employment entered into by a foreign national w o has no work permit is void and unenforceable under the ELRA. ' In this case, it would be a waste of time and an exercise i Peter's unfair termination case when it is und employment was terminated. For that reason, I will d e bringing this matter to finality and ordering as I now . -"''"'1~;lltr,tion,strµik~Hr.~·;;'.;·\·. It is so ordered. l~j:?>,;:;~1;;:,::',c;\ ,· J ,..... f '\ .~t ~ \ . ¥. . .. .. ,.·: ·1; !r~;~ i\ .,: . .. -:;.. ~ ,, ·. >::'>;'.t} r,'_;'~ '. ,/'.::::. ,:·:~/,: . , Order: ned ruling are submitted to the Deputy Registrar, with instructions same to be forwarded to Arusha, where parties should be "llllll,,,..dl!iiF delivered to them by the DR, Arusha (DR Labour Court Sub- ,, re R.M. Rweye JUDGE 25/9//2014 (4] ,