mvomero district council vs thobias liwongwe others 2020 tzhcld 31 4 march 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT MOROGORO REVISION NO. 26 OF 2019 BETWEEN MVOMERO DISTRICT COUNCIL......................... APPLICANT VERSUS THOBIAS LIWONGWE & 6 OTHERS............... RESPONDENTS JUDGMENT Date of Last Order: 21/02/2020 Date o f Judgment: 04/03/2020 S.A.N. Wambura. J. Aggrieved by the award of the Commission of Mediation and Arbitration [herein after to be referred to as CMA] in the Labour Dispute No. RF/CMA/MOR/256/2015 dated 20/05/2016 which was in favour of the respondents th o b ia s liw o n g w e & 6 o t h e r s , The applicant mvomero d i s t r i c t c o u n c i l, has filed this application for revision challenging the award on the following grounds:- 1. That, the arbitrator failed to interpret the word recruitment in its natural meaning and adhere to it under Section 43(3) o f the Employment and Labour Relations Act■No. 6 o f 2004 (herein referred as Act) is dear and demands no further interpretations. 2. That, the arbitrator failed to consider the points raised in the dosing arguments by the applicant in their final submissions. The law requires an arbitrator to use submissions o f dosing arguments which could have helped in reaching a fair and reasonable award. 3. That, the Arbitrator erred in law and fact by awarding the respondents repatriation expenses and subsistence allowances. 4. That, the award is unlawful and was acted with material irregularity and misconduct on part o f the arbitrator. The respondents filed a joint counter affidavit challenging the application. The brief background of this matter is that, the respondents are former employees of the applicant employed as teachers, who retired on diverse years from 2012, 2013 and 2014. On 8th June, 2015 the respondents jointly knocked the doors of CMA seeking to be paid repatriation costs and subsistence allowances. Having been condoned, the matter was mediated and the applicant agreed to pay the respondents their repatriation costs only. The matter thus proceeded on arbitration. The arbitrator decided in favour of the respondents that, they were entitled to the subsistence allowances from the date of retirement to the date they were repatriated. Aggrieved with the CMA's award the applicant has filed the present application seeking revision of the same. At the hearing, the applicant was represented by Ms. Cotrida Komba, Principal Legal Officer, while the respondent was represented by Mr. Florence Burudaa, Advocate. Ms. Komba submitted that the arbitrator failed to comply with the procedure provided for under Rules 18 - 22 of Labour Institution (Mediation and Arbitration) Rules, 2007 as parties had not agreed on the issues in dispute .That, the arbitrator also failed to record all the evidence adduced thus left valuable evidence to be evaluated which was contrary to Rule 25 of GN No. 64/2007. She further argued that, the arbitrator failed to consider the arguments raised by the respondent in their closing submissions. As for the 7th respondent Method Komba, she stated that it is undisputed that he had been paid his entitlement but, the arbitrator awarded him the claims. Ms. Komba argued that, the respondents had attained the age of retirement hence their retirement was compulsory. Therefore the arbitrator misdirected herself in applying and interpreting Section 43 of Employment and Labour Relations Act No. 6/2004 [herein after to be referred to as ELRA] because retirement is an automatic termination as per Rule 5 of (Code of Good Practice). That, the respondents delayed to apply for their subsistence allowances, and the same came as an afterthought when the labour dispute was filed at CMA. She referred to Mr. Method Komba who wrote a letter with Ref. No. PF/433 dated 07/09/2015 which was said to have been delayed. When she was examined by court, she replied that the claims for subsistence allowances were raised during Mediation when the matter was already at CMA. That the claims are not in CMA Form No. 1 and that, the award was improperly procured. She thus prayed for this court to revise and set aside the award. In reply, Mr. Burudaa contended that Mr. Method Komba one of the respondent, was not a party as he had been paid transport allowance meaning he had a right in other claims. That, however he only received the transport allowance before others and the same was delayed. He believed that the applicant does not understand the reason of granting subsistence allowances. Mr. Burudaa further argued that, Section 43 of the Act was relevant to the situation, as even retirement is termination. Once an employee is terminated, one has to be repatriated immediately. The respondents had retired at different times but were not repatriated immediately. That, the dates of their retirement vary from 14 to 42 months, and that the same was resolved during Mediation. Mr. Burudaa further stated that, according to Section 43(1) (a) the respondents are supposed to be paid for the time which they were waiting to be paid their repatriation allowances. That, Mr. Komba did not cause any fraud as he retired on 25/04/2012 and was paid the fare on 15/10/2013 so he was also entitled to be paid subsistence allowances. That the others were paid on 22/10/2015. Mr. Burudaa further argued that Section 43 applies to all employees, referring the cases of World Vision Tanzania V. Zahara Rashid LCCD Part I 2015, Revision No.17/2015, Labour Revision No. 4 of 2013 between NMB Pic V. Paul Joseph Namkwanga and Civil Appeal No. 49/2009 between Attorney General V. Ahmed R. Yakuti. That, the arbitrator adhered to the rules and procedure and she has considered the submissions of both parties before arriving at to her decision. In rejoinder, Ms. Komba contended that the respondents were paid all their dues, and they were all recruited within Mvomero, Morogoro hence they were not entitled to subsistence allowances. The same came as an afterthought and there was a delay in claiming the said allowances. Mr. Burudaa stated further that, all the claims were instituted at CMA, and were partly settled but there was a dead lock on the payment of subsistence allowances. That the matter was filed at CMA in 2015 where by claims were raised during mediation. That all the payments were effected in 2015 as well. 6 I believe that this court is called upon to determine the following issues:- (i) Whether the respondents are entitled to be paid subsistence allowances. (ii) Whether the claims for subsistence allowances were timely filed at CMA. (iii) The reliefs entitled to each party. ‘j 1. Are the respondents entitled to subsistence allowance? Payment of subsistence allowances has been provided for in Section 43(1) of the Employment and Labour Relation Act No. 6 of 2004, which states that:- "Section 43(1) Where an employee's contract of employment is terminated at a place other than where the employee was recruitedf the employer shall either;- a) Transport the employee and his personal effect to the place o f recruitment, b) Pay for the transportation of the employee to the place o f recruitment, or c) Pay the employee an allowance for transportation to the place o f recruitment in accordance with subsection (2), and daily substance 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 [Emphasis is mine]. This position has been cemented in a number of Court decisions. In the case of Ibrahim Kamundi Ibrahim Shayo V. Tanzania Fertilizer Company Ltd (TFC), Labour dispute No. 1/2014 at Moshi as cited in the Consolidated Revision No. 137 and 151 of 2017 Mantrac Tanzania Limited V. Joaquim P. Bonaventure, it was held that:- "My understanding of the Court o f Appeal's decision is that, the employee is entitled to be paid subsistence allowance once employer failed to repatriate such an employee to his place o f domicile and such employee continued to stay in the working place" Again in the case of Paul Yustus Nchia v. National Executive Secretary CCM & Another, Civil Appeal No. 85/2005 CAT DSM (Unreported) the Court of Appeal of Tanzania held that:- "Employee is entitled to repatriation cost, and subsistence allowances only if he was terminated on the place other than place o f domicile; and employee remained on the place o f recruitment■ entitled with subsistence allowance for the period of remain. " According to Exhibit D, it is clearly shown that the respondents' place of domicile is out of their working station and so repatriation costs were paid. Thus since there was a delay in paying their repatriation costs as it is clearly divulged under Exhibit UD3, then the respondents are entitled to be paid subsistence allowances as provided under Section 43(1) (c) of the Act. 2. Whether the claims for subsistence allowances were timely filed at CMA. From the record, it is apparent that the respondents filed their claims for subsistence allowances out of time as the matter was initiated with a request for condonation as per CMA Form No. 7. The cause of action I which led to the particular claims arose in diverse years. Some retired in 2012, others in 2013 and others in 2014. The dispute/claims had been filed on 08/06/2015 being a few months before payment of the repatriation costs on 19th October, 2015. As stated above, in the case at hand the respondents filed the dispute on the said claims out of time, being between 2 to 3 years which I find to be an inordinate delay. The applicants delayed to claim subsistence allowances from the applicant. They did not consider that the budget of the applicants ends with each financial year. If the same was claimed at a reasonable time they would have been said to have discharged their duty. But this was not done. For example it is on record that, Method Komba retired on 25/04/2012 and he was duly paid his repatriation costs on 03/02/2014. He however claimed the same in 07/09/2015. Likewise Thobias Adam Lilongwe, retired on 1/5/2013 and claimed the same in 13/10/2014. Wetundwa Emanuel retired on 28/12/2012 and claimed for subsistence allowance in 03/09/2015, these was inordinate delays. That being the case, I find the respondents negligent. 10 I note that CMA condoned the filing of the matter. But can the arbitrator grant claims which were inordinately delayed as claimed by the respondents? I believe the arbitrator could not, and so this was a misconception on the part of the arbitrator. This Court can revise the same as was held in the cases of Suresh Ramaya Vs. Asha Migoko Juma Rev. No. 207 of 2015 and Rev. No. 72 of 2013 between Athumani Koisenge & 9 Others Vs. Ranger Safari Limited. The respondents should have acted diligently as stated in the case of Dr. Ally Shabhay vs. Tanga Bohora Jamaat [1997] TLR 305 CAT that:- "Those who came to court must not show unnecessary delay in doing so. They must show great diligence'' One should not be left to come to court when one wishes to as was held in the case of Tanzania Fish Processors Ltd Vs. Christopher Luhangula, Civil Appeal No 161/1994 Court of Appeal of Tanzania, at Mwanza registry that:- " The question o f Limitation of time is a fundamental issue involving jurisdiction ... it goes to the very root of dealing with civil claims, limitation is a material point in ii the speedy administration o f justice. Limitation is there to ensure that a party does not come to Court as and when he chooses..." 3. The reliefs entitled to each party. CMA granted the respondent subsistence allowances amounting to Tshs. 144,469,470/= in total. However, I believe that, for the same to have effect, the claim must be filed within a reasonable time. Since the subsistence allowances were claimed out of time, then the respondents are not entitled to the same. I thus allow the application, revise and set aside CMA's award. Respondents to be paid what was agreed upon during mediation if the same was yet to be paid. This is because the applicant wilfully agreed to do so. S.AJ a 04/03/2020 12