Mwasaga William Mwambuli V

The Judiciary of Tanzania IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SHINYANGA SUB – REGISTRY AT SHINYANGA LABOUR REVISION NO. 14 OF 2023 (Originating from the CMA’s Award at Shinyanga in CMA/SHY/236/2018) MWASAGA WILLIAM MWAMBULI ................................................... APPLICANT Versus HALMASHAURI YA MANISPAA YA SHINYANGA. ......................... RESPONDENT JUDGMENT F.H. Mahimbali, J 31st July & 30th August 2024 The applicant was an employee of the Respondent – Shinyanga Municipal Council who retired as per mandatory statutory age of 60 years on 8th November 2017. That upon his retirement, he was not paid his full bus fare to his place of domicile which is at Hatelele Hamlet in Vuawa District – Songwe Region at the deficit of 19,522/= as he was only paid 44,578 instead of 64,100/=. That failure of the respondent to effect the full payment of the bus fare, made him failed to travel back to his place of domicile as per law. 1 His follow up to the respondent on his payments has been in vain, thus compelled him to refer the matter at CMA Shinyanga, claiming for the following reliefs: a. Payment of the balance of transport fair to the place of domicile. b. Payments of subsistence allowance from the date of retirement to the date of payments of the remaining fair balance due to the applicant. That during the hearing of the application, the CMA – Shinyanga framed three issues in the determination of the matter as hereunder: a. Whether the complainant was underpaid the transportation costs to the tune of 19,522/= b. Whether the respondent paid the applicant the alleged deficit. c. To what reliefs the parties are entitled to. It is the applicant’s grief that the framed issues by the CMA did not address all the reliefs sought as per his claims in the CMA –Form No. 1. Thus, the basis of the current revision as the CMA in its award did not address the sought reliefs in correspondent to the reliefs sought as per CMA – Form No. 1. 2 From the above grief, the applicant is inviting this court to consider the following issues: i. Whether the issues drawn by the CMA were proper. ii. Whether the remedies granted to the applicant were proper. iii. What are the remedies the applicant was entitled to from the CMA? iv. To what reliefs the parties are entitled from the verdict of this Court? During the hearing of the revision application, the applicant was self- represented while the respondent was enjoying the legal services of Mr. Musa Mpogole, learned senior state attorney. In his submission in support of the revision application, the applicant first, prayed that his affidavit in support of the application to form part of his submission. In addition, he stated that his contention in this matter is deficit on payment of his bus fair to Songwe - place of his domicile. In consideration of the fact that he had retired Public service on the 7th day of November 2018, he was supposed to be paid amongst others, the repatriation costs to his place of domicile - Songwe. From what he was paid, there is a deficit of 3 19,522. As to that fact, he says he was supposed to be paid subsistence allowance from when he had retired to when the said balance is paid in full. The CMA did not make proper calculations on that. By the way even the subsistence rate of 45, 678.57, he didn’t know its origin as his subsistence allowance rate was 100,000 by 2018. Thus, he humbly prayed that his chamber summons and the affidavit in support of the application be adopted by the Court to form part of his submission. He added, he be paid the said bus fair and the daily subsistence allowance from when he had retired to when he will be paid in full, faulting that in all their calculations, there is nowhere the bus fare was paid to him. That is what he is claiming so far and the subsistence allowance in all these days. That was for the applicant’s submission in support of the revision application. On his part, Mr. Mpogole senior state attorney, firstly, prayed that the counter affidavit of the respondent filed in opposition of the application, be adopted to form part of his submission in respect of this labour revision application. In addition, he submitted that as per CMA’s award, it was proper and justly concluded the matter. 4 He clarified further that, this court revision’s power is mandated pursuant to section 91(2)(a)(b) of the ELRA. For the said award to be revised, two things must be considered: whether there was misconduct by the arbitrator and whether the award was improperly procured. Furthermore, as per rule 28 of the Labour Court Rules of 2007, the Labour Court is supposed to examine whether the CMA exercised its jurisdiction materially or with illegality, secondly whether on account of error material to the merit of the subject matter involving justice. In his rejoinder, the applicant had nothing more to add but just pressed for the revision application to be allowed as the CMA’s award is erroneous. Having heard the submissions of both sides, the main consideration of this revision application is whether it is meritorious. In reaching that end, I will first consider what was the award of the CMA in which the said revision is based. Reading from the CMA’s award dated 29th April 2019, the CMA gave the following award – at page 7 and I quote: “Therefore, from the evidence of both parties it has been proved that, the respondent paid the complainant the repatriation costs 5 with deficit of Tshs 19,522/= which was paid on 23rd August 2018. Therefore, the first two issues are answered in affirmative. On the last issue on the relief parties are entitled to, from the facts and evidence of both parties, the Complainant is entitled to the subsistence allowance of both parties, the Complainant is entitled to the subsistence allowance for only 27 days x 45,678.57 daily rate from 8/11/2017 to 6/12/2017 which is the total of TZS: 1,233,321/= minus the excess paid i.e 210,000/= - 19,522 Tshs which is 190,478/=. Thus, the total amount payable is 1,042,843/= to be paid within 30 days from the date of issuance of this award. The rest of claims have not been proved by the Respondent hence forth are hereby dismissed”. To start with, I have first, thoroughly scanned the CMAF-1 as per GN.47 of (Employment and Labour Relations) ……., the following were claimed by the applicant: i. Madai ya kukaimu madaraka: 16.3.2015 – 4.4.2015 ii. Madai ya kukaimu madaraka: 22.4.2017 – 8.11.2017 iii. Madai ya kuhudhuria mafunzo M&E TCDC Arusha 6 iv. Nauli ya Mke toka Shinyanga – Songwe. Reading the CMA’s verdict on the reliefs sought and the issues framed, I first agree that the issues framed by the CMA did not cover all the reliefs sought as it skipped the payment of subsistence allowance which is central to the complaint. However, reading the award by the CMA, it is clear that the said subsistence payment was considered that the Complainant is entitled to the subsistence allowance for only 27 days x 45,678.57 daily rate from 8/11/2017 to 6/12/2017 which is the total of TZS: 1,233,321/= minus the excess paid i.e 210,000/= - 19,522 Tshs which is 190,478/=. Thus, the total amount payable is 1,042,843/= to be paid within 30 days from the date of issuance of this award. Perhaps the vital sub issue for consideration is whether the said payment/calculations sufficed the need as per facts of the case. I say so, basing on the fact that as per respondent’s evidence at CMA vide DW1, the first payment done on 6th December 2017 vide PV No. 2018001558 had a deficit of 19,522 and that he admitted that the final payment settling the admitted deficit payment of 19,522/= was paid on 23rd August 2018; logically, the subsistence allowance as per CMA award’s calculations had no full consideration. In essence, it is also undisputed that there was an excess 7 payment of 210,000 in the said last package settling the said applicant’s claims. If that is the case, then the subsistence allowance payable to the Applicant ought to have covered up to the last payment i.e on 23rd August 2018 vide PV832013V9000099 (see section 43(2) of the ERLA, Act No. 6 of 2004, R.E 2019. Further guidance is made in the case of Pangea Minerals LimitedV. Gwandu Majali, CAT at SHY Civ. APP 504/2020. That since the applicant was not paid repatriation costs in full, he could not move to Songwe leaving his wife at Shinyanga. Thus, the respondent was liable to pay the respondent the subsistence allowance pending the said payment in full of the repatriation expenses (bus fare). As what is the rate of subsistence allowance, it is now settled law that, the rate of subsistence allowance pending repatriation, is calculated on the basis of daily salary of a monthly salary for the payment of repatriation of travel expenses (see Juma Akida Seuchango V. SBC (Tanzania) Limited, Civil Appeal No. 7 of 2019 and Attorney General V. Ahmed Yakuti & 2 Others, Civil Appeal No. 49 of 2004). Basing on the preceding reasoning, the respondent’s calculations on the applicant’s subsistence allowance pending payment of the repatriation costs in full ought not to have stopped on 6th December 2017 when the first 8 payment in deficit was made, but extended up to 23rd August 2018 when the payment in full was done. So there are additional calculations from 7th December 2017 up 23rd August 2018 which is almost 270 days. Applying the same formula on the basis of daily salary of a monthly salary for the payment of repatriation of travel expenses (see Juma Akida Seuchango V. SBC (Tanzania) Limited, Civil Appeal No. 7 of 2019 and Attorney General V. Ahmed Yakuti & 2 Others, Civil Appeal No. 49 of 2004): 270 days x 45,678.57 daily rate from 7/11/2017 to 23/08/2018 which is the total of TZS: 12,333,213.9/=. This amount ought to have been covered in the CMA’s award while computing the last payment done by the respondent in full settlement of the subsistence allowance pending his repatriation. That said, the CMA’s award is faulted in not considering the date of final payment being the date the calculations on repatriation costs ought to have been inclusive. Thus, the award based on 27 days’ subsistence allowance did not cover all the days the applicant was entitled following the deficit payment of his full repatriation costs. There was a deficit payment of 270 days’ subsistence allowance as outlined above and I thus order the said payment be done in one-month time from today, failure of which further subsistence allowance will be levied. This award is a wake up call to all 9 persons entrusted with public office – human resource to discharge their duties timely and effectively to avoid such unnecessary costs and disturbances to employees. The above findings respond to all issues preferred by the applicant, thus the verdict of the case. All this said and done, the CMA’s award is hereby revised to the extent reasoned above. This being a labour case, no order as to costs is awarded. DATED at SHINYANGA this 30th day of August, 2024. F.H. Mahimbali Judge. 10