20131216 TZHC Dar es Salaam

...J IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM LABOUR DISPUTE NO 9 OF 2012 FINANCE, INDUSTRIAL, BANKING, UTILITIES, COMMERCIAL AND AGRO PROCESSING INDUSTRY (FIBUCA) ........................ COMPLAINANT VERSUS NATIONAL BANK OF COMMERCE LIMITED (NBC) ........... REPONDENT 22/11/2013 & 16/12/2013 R.M. RWEYEMAMU J., RULING The Complainant herein after FIBUCA is a registered trade union with a branch and members in the respondent/employer's work premises. On 16/8/2012, FIBUCA filed this complaint against the Employer, seeking an order for payment of unremitted union dues which the employer was supposed to deduct from employees' salaries and remit to FIBUCA. The dues claimed covered the period June 2011 to October 2011. The Employer filed an opposing statement and raised Preliminary Objection (PO) on ground that the dispute was time barred. That PO subject matter of this ruling was based on two grounds, namely that:- 1. The dispute was referred to the CMA out of time without an application for condonation so CMA had no jurisdiction to mediate the dispute. 2. That the complaint was filed in this Honourable Court out of time. 1 The decision on the PO is best appreciated in light of the following background facts: On 10/2/2010, the parties entered into an agreement recognizing FIBUCA as the exclusive bargaining agent of employees in accordance with procedures prescribed by law- (Section 67 of the Employment and Labour Relations Act, (ELRA) 6 of 2004). In that capacity, the Employer used to deduct union dues from salaries of employees and remit the same to FIBUCA. Between June 2011 and December 2011, the Employer deducted such dues but suspended remitting the same to FIBUCA, and later returned the deducted amount to concerned employees. (It was not until October 2012 that the Employer resumed deducting and remitting dues to FIBUCA.) On 20/1/2012, FIBUCA filed a dispute in the Commission for Mediation and Arbitration (CMA) against the Employer, claiming payment of unremitted union dues. The CMA mediated the dispute unsuccessfully and issued a Certificate of Non - settlement on 2/7/2012. Following that, FIBUCA referred the present dispute to this Court on 16/8/2012. The Employer now claims that the dispute was filed in this Court out of time and was also time barred when it was earlier referred to the CMA. In arguing the PO, which was done by way of written submission, parties were represented by Advocates, Mr Lugaila and Mr. Mushi for FIBUCA and the Employer respectively. In support of the 1st leg of the PO, Mr Mushi submitted that the dispute was referred to, and mediated by, the CMA out of time but without condonation. According to him, the dispute/cause of action arose on 7th June, 2011 when the employer failed to remit deducted union dues to FIBUCA. Therefore in terms of the governing law, action ought to have been taken before 7/8/2011. Instead, action/referral to the CMA was made on 19/01/2012. Under those circumstances, the matter was time barred when it was entertained by the CMA. 2 \ ,, r, k In support of the 2nd leg of the PO, Mr. Mushi submitted that since the CMA's Certificate of Non Settlement was issued on 2/7/2012, subsequent complaint to this Court should have been filed within 15 days - a period prescribed under Rule 6 (2) of the Labour Court Rules, GN 106 of 2007. Instead, it was filed on 16/8/2012 after expiry of 44 days making the complaint time barred in this Court. Counsel gave another reason why this Court lacks jurisdiction. He argued that since the CMA lacked jurisdiction to mediate a time barred dispute for reasons explained above, what transpired at the CMA was a nullity. Consequently, the dispute has never been properly mediated and for that reason, the Court lacks jurisdiction to entertain a dispute which has not been mediated by the CMA. The above grounds were contradicted by Mr. Lugaila Counsel for FIBUCA. In response to the 1st leg of the PO, Counsel submitted that the dispute was timely filed within the prescribed period of 60 days from the time the cause of action arose. According to him, the employer was in continuous breach and the date the cause of action arose for purpose of limitation was on 21/12/2011, when the Employer informed FIBUCA members that it would no longer deduct union dues, and decided to return the deducted dues to them. Mr. Lugaila gave another reason for submitting that the complaint was timely filed. He explained that the parties had an agreement entered into on 15/09/2009, according to which all disputes were not supposed to be referred to labour dispute settlement institutions until efforts for amicable settlement have failed. That date in this particular dispute was on 21/12/2011, when the Employer made final decision not to comply. Regarding the 2nd aspect of limitation (filing of the complaint in this Court), Counsel explained that the period of 15 days in terms of Rule 6 (1) of the LC Rules applies only where reference of the dispute to the Court is made by the Director of the CMA, not when the dispute is referred by a party as was the position in this case as submitted by Counsel 3 \. for the respondent Mr. Mushi,. The relevant period according to Counsel, is provided under Rule 10 (2) of the Labour Institutions (Mediation and Arbitration) Rules, GN 64/2007, which specifies the period to be 60 days. In the alternative, because no period is specifically provided for the parties to refer to refer a dispute to the Court after failure of mediation; then the applicable law is the Limitation Act, Cap 89 R.E. 2002, which also specifies the period under item 21 of Part Ill of the Schedule to that Act to be 60 days from date of issue of the Certificate of non- settlement. Under either provision, the dispute was timely filed. In rejoinder, the employer reiterated their arguments that the dispute arose when the employer stopped remitting deducted dues. Counsel did not deny that the parties had agreement to attempt amicable settlement of disputes before referring them to formal dispute settlement institutions- the CMA and this Court. He however argued that in this case, the parties had not agreed to commence the process of amicable settlement. After considering the parties arguments in light of my understanding of applicable law and practice, I have decided as follows. Regarding the 1st leg of the PO, I agree with Counsel for FIBUCA that the cause of action arose in December 2011 when the employer decided to return deducted union dues to employee members. In labour practice, the date when deducted union dues were returned to employees was the date the employer (one of the parties to the dispute) took the last decision not to comply with the complainants' request. My conclusion is based on my understanding that in labour practice, negotiations and/or conciliatory efforts of the parties after the dispute has arisen "check limitation time" for purpose of ascertaining time the cause of action arose. In a case where a similar issue was considered, I concluded that amicable settlement of labour disputes is preferable and encouraged, so as to maintain good labour 4 relations. Such is the spirit and one of the objectives of the ELRA. In light of that, parties' efforts towards amicable settlement of disputes are recognized. That would not happen if parties had to rush to dispute settlement institutions every time a dispute arose (instead of giving chance to amicable settlement to work), in order to avoid being caught up with limitation. See Nyanjugu Sadiki Masudi versus Tanzania Mines, Energy, Construction and Allied Workers Union (TAMICO), Revision 5/2013.ln deed in this case, such negotiations finally led to resumption of usual practice in October 2012-as explained above. In view of my said position, it is my decision that the dispute was not time barred when it was referred to CMA for mediation. For that reason, the first leg of the PO has no merit, and is dismissed. Regarding the second aspect of the PO, I agree with Counsel for the complainants that the dispute was timely filed in this Court for reasons argued by Mr. Lugaila. In the final result, the PO is dismissed in its entirety, and I order that hearing of the dispute should proceed on merit. R. M. Rwey JUDGE 16/12/2013 5 r;, I • \ ''II 16/12/2013 Coram: R. M. Rweyemamu, J. For: Applicant: - Mr. Lugaila Adv. (Absent) For: Respondent: - Mr. Innocent Felix Advocate. CC: Ms. Kaale Mr. Innocent: I am holding Mr. Lugaila's brief for the Complainants. Ruling delivered this 16/12/2013 in presence of Counsel for the respondent. Order: M. 11/2/2014 for purpose of fixing appropriate hearing date R. M. Rweyema JUDGE 16/12/2013 6