national institute for medical research vs yohana meshack kabad 2023 tzhc 357 23 february 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT MWANZA LABOUR REVISION NO. 23 OF 2022 BETWEEN NATIONAL INSTITUTE FOR MEDICAL RESEARCH... APPLICANT VERSUS YOHANA MESHACK KABADI RESPONDENT JUDGMENT Date of last order: 13/12/2022 Date of Judgement: 23/02/2023 M. MNYUKWA, J. This Revision application arise from the decision of the Commission for Mediation and Arbitration in Labour Dispute No CMA/MZ/ILEM/94/2021/56/2021 between Yohana Meshaki Kabadi (who was the complainant and an employee ofthe National Institute for Medical Research, who was the employer. In brief, the employment contract of the employee was a permanent contract effective from 01/09/2008. Through the CM Form No 1, the complainant who is now the respondent, instituted a labour disputes claiming unpaid salaries and leave from the year 2017 to the year 2019. It is the complaints of the respondent that the applicant in the present Revision terminated his employment contract in the year 2019 and that he was not paid his salaries from the year 2017 despite several reminders to his employer, the applicant. Dissatisfied with the action taken by the applicant, the respondent filed a labour dispute claiming the unpaid salaries and leave. It was the assertion of the applicant at the CMA that, since the respondent is a public servant, he has to exhaust the remedy available in the Public Service Act, Cap 298 R.E 2019 and to that end, CMA had no jurisdiction to entertain the matter. After hearing both sides, the CMA awarded payments of Tshs. 10,543,000 being the unpaid salaries for a period of 26 months and Tshs. 655,000 being the unpaid leave which makes a total of Tshs 11.198,000. The applicant was aggrieved by the above decision hence the present Revision praying this Court to revise and set aside the decision of the CMA. In her affidavit, the applicant raised two legal issues for this Court to determine which are; 1. Whether the Commission for Mediation and Arbitration has jurisdiction to entertain the matter which involve public servant 2 2. . Whether the Honourable Arbitrator was proper to determine that the respondent Yohana Meshaki Kabadi was not required to exhaust all remedies under the Public Service Act. When the matter came for hearing, both parties were represented. The applicant was represented by Ms. Sabina Yongo, the learned state attorney while the respondent was represented by Mr. Charles Kiteja, learned advocate. The Revision Application was heard orally. It was Ms. Sabina Yongo who firstly submitted on the above legal issues. During submissions, Ms. Sabina Yongo opted to argue jointly the legal issues as they are intertwined and that her main submission centred on the issue of the jurisdiction of the CMA to entertain the matter before the respondent exhausted the remedy under the Public Service Act. It was Ms. Sabina Yongo submission that, the applicant is the Public Service Office established by an Act of Parliament as it is provided for under section 3 of the National Institute for Medical Research Act No 23 of 1979. She went on that, section 4 of the above Act states the functions of the applicant whereby one of its function is to carry out medical research and alleviate disease among the people of Tanzania. She added that, the Act itself provides that the main function of the applicant is to provide services to the public. 3 Ms. Sabina Yongo further submitted that, the applicant is a public service office as defined by section 3(a) and (b) of the Public Service Act, Cap 298 R.E 2019. To support her argument, she refers this Court to the decision of the Court of Appeal in the case of Tanzania Posts Corporation v Dominic A. Kalangi, Civil Appeal No. 12 of 2022 where the Court of Appeal defines who is a public officer. She therefore concludes that, the applicant is a public office and his employees are the public servants. In supporting her Revision Application, Ms. Sabina Yongo refers to section 32A of the Public Service Act, Cap 298 R.E 2019 that gives the mandatory condition for a public servant to exhaust remedy under the Public Service Act, Cap 298 R.E 2019, which require a person aggrieved by the decision of his employer to refer his grievances to the Public Service Commission as it is provided for under section 25 of the Public Service Act, Cap. 298 R.E 2019. She added that, section 3(1) and (2) of the Public Service Act, Cap 298 R.E 2019 states that, public servants are governed by their respective laws and the Public Service Act, Cap 298 R.E 2019. She retires her submissions in chief by insisting that, the respondent did not follow the procedures of exhausting local remedy before resorting to the labour court and that CMA is not clothed with jurisdiction to entertain the matter. She therefore prayed the Court to grant the relief sought in the Revision Application. Opposing the application, Mr. Kiteja, the counsel for the respondent strongly asserted that, CMA is clothed with jurisdiction to entertain the matter. Mr. Kiteja join hands the averment of Ms. Yongo that, the respondent is a public servant and that the decision which is sought to be revised, did not state that the applicant is not a public entity. He clarified that, what is disputed is whether a public servant is subjected to a procedure under the Public Service Act and if that is the case, under what circumstances can a public servant be subjected to those laid down procedure. He went on that, in principle he is agreement with the learned state attorney on the relevancy of section 32A and section 25(b) and (c) of the Public Service Act, Cap 298 R.E 2019. However, he was of the view that, section 32A does not limit the respondent to go to the Court if he exhausted the remedy under the Public Service Act. He added that,, in order to exhaust those remedy, the remedy has to be available which is not the position in our case at hand as the remedy sought by the respondent is not available. , t\ 5 He further submitted that, in the CMA, it was stated that the remedy was not available as it was discussed on page 11 of the Ruling which is challenged. The counsel for the respondent went on to state that, the respondent was not complaining about termination of his employment contract or disciplinary action. And for that reason, the case of Tanzania Posts Corporation (supra) cited by the counsel of the applicant is distinguishable in the circumstances of our case at hand because in the above cited case the dispute was on termination of the employment contract which was initially determined by the disciplinary committee in terms of reason and procedure. The counsel for respondent went on to refer section 2 of the Employment and Labour Relations Act, Cap. 336 R.E 2019 whereby its procedures are also applicable to public servants. He went on to refer the case of Jeremiah Mwandi v Tanzania Posts Corporation, Labour Revision No 6 of 2019 where by section 3 of the Public Service Act, Cap. 298 R.E 2019 was discussed in lengthy. He maintained that, the applicant as a public institution and a body corporate established by the specific laws are not subjected to the Public Service Act, Cap. 298 R.E 2019. He therefore prayed the Revision Application to be dismissed. 6 Rejoining, Ms Sabina mainly reiterated what she had submitted in chief. She attack the Ruling of the Arbitrator delivered on 3/9/2021 especially on page 11 which dismiss the objections raised by the applicant by deciding them in negative. She added that, section 25 and 6 of the Public Service Act, Cap. 298 R.E 2019 deals generally with the decision of the heads of department or disciplinary authority. She went on to say that, Regulation 60 as stated by Mr. Kiteja is not read together with section 25 of the Public Service Act, Cap 298 R.E 2019. She distinguished the case cited by Mr. Kiteja as there is current position of the Court of Appeal of Tanzania Posts Corporation (supra) which gives position on the manner of dealing with the disputes which involved the public servant and the public entity. She retires by maintaining her prayer as sought in the Application. Upon careful considering the rival submissions of the parties and the available records, the issue before this court is whether the CMA had jurisdiction to entertain the dispute between the parties. In answering this issue, the Court will automatically resolve the other issue as to whether the respondent was required to exhaust the remedy provided for under the Public Service Act, Cap 298 R.E 2019. 7 To begin with, I wish to remark that, I am acquainted with the settled position of the law that the issue of jurisdiction is fundamental and it goes to the very root of the matter. (See the case of Michael Heseni Kweka v John Elifa, Civil Appeal No 51 of 1997 (unreported) and the case of Fanuel Mantiri Ng'unda v Herman Mantiri Ng'unda (1975) TLR 155. ). It follows therefore that, a decision which has been issued while the Court or Tribunal is not clothed with requisite jurisdiction, that decision is nullity. In the course of reading the Ruling and the Award delivered by the CMA, it is clear that there is no dispute that the applicant is the Government entity and the respondent was his employee which simply means a public servant. This is also revealed in the parties' submissions before this Court even though in the respondent's counter affidavit specifically on paragraph 4 aversed that, the applicant is not a public service office. At the outset, I wish to state that, section 3 of the Public Service Act, Cap 298 R.E 2019, defines who is a public servant as well as the phrase public service office. As the applicant is the entity established by an Act of Parliament, aimed to deliver services to the public as it is provided for under section 4 of the National Institute for Medical Research Act. No 23 of 1979 whereby one among of its functions is to carry out, and promote the carrying out of medical research designed to alleviate disease among the people of Tanzania. Furthermore, the applicant is owned and controlled by the Government as the responsible Minister may make Regulations after consultation with the Council necessary to give effect to the purposes and provisions of the Act. Additionally, his Director General who is the Chief Executive Officer is the Presidential Appointee as it is provided for under section 16(1) of the National Institute for Medical Research Act No 23 of 1979. Thus, I entertain no doubt that, the applicant is a public service office and the respondent is a public servant. Even though section 31(1) of the Public Service Act, Cap 298 R.E 2019, provides for the public servant like the applicant to be governed by their respective law establishing it, they are also still governed by the Public Service Act, Cap 298 R.E 2019 as it is provided for under section 35 (2) of the Public Service Act, Cap 298 R.E 2019. Now, it is Ms. Yongo's argument that, since the respondent is a public servant, the proper way to channel his dispute or grievances is by exhausting the remedy provided for under the Public Service Act, Cap 298 R.E 2019 before resorting to the CMA. In other words, Ms. Yongo believe that, the dispute was prematurely brought before the CMA and hence the CMA had no jurisdiction. The above argument was strongly contested by Mr. Kiteja on the reason that, since the dispute does not fall under the ambit of disciplinary proceedings or complaint on the termination of the employment contract, rather the unpaid salaries and leave, the CMA had the requisite jurisdiction to hear and determine the matter. From the competing arguments of the parties, I find it worth to reproduce section 32A of the Public Service Act, Cap 298 R.E 2019 which reads as hereunder: "A public servant shall, prior to seeking remedies provided for in labour laws, exhaust all remedies as provided for under this Act." Reading between lines the above provision, it is beyond doubt that, it is mandatory for a public servant to exhaust all remedies availed in the Public Service Act, Cap 298 R.E 2019 before resorted to the labour law. This is also observed in the case of Bariadi Town Council v Donald Ndaki, Revision No 3 of 2020 (unreported) where it was pointed out that: "This is the law, a public servant has no other option than to fully utilize all the remedies available under the io Public Service Act before exploring other avenues for dispute settlement." In the instant revision, the main complaint between the applicant and the respondent as it is evidenced in the CMA Form No 1 is the unpaid salaries and leave. While the respondent claimed that he was terminated on 2019 rather suspended on 2017, and therefore deserves to be paid salaries between the years 2017 to 2019, on her part, the applicant claimed that the respondent's termination was with effect from 2017 and therefore not entitled to any salaries and leave. To substantiate her argument, the applicant tendered the letter dated 07/10/2019 which was admitted as "Exhibit SU 4" and the respondent tendered the same letter which was admitted as "Exhibit SM 6" in the CMA Proceedings. From the foregoing, one may agree with me that, the complaint on the unpaid salaries and leave cannot exist if there is no contractual employment relationship between the applicant and the respondent. I say so because the claim of salaries and leave arises when there is employer and employee relationship between the two. As the relationship between the two is not disputed, the dispute centred on the ii effective date of termination which may either entitle the respondent to be paid salaries and leave or not. Now, the question is, does such kind of the dispute supposed to be referred to the CMA? In answering the above issue, I am compelled to reproduce section 25 (l)(b) and (c) of the Public Service Act, Cap 298 R.E 2019 which provides the remedies availed to a public servant prior to seeking remedies provided for under the labour laws. The section reads as hereunder;- "l4//7ere- (b) a Permanent Secretary, Heads of an Independent Department, Regional Administrative Secretary of a local government authority exercises disciplinary authority as stipulated under section 6 by reducing the rank of a public servant who had been promoted or appointed on trial or reduces the salary or dismisses the public servant, that public servant may appeal to the Commission against the decision of the disciplinary authority and the Commission may confirm, vary or rescind the decision of that disciplinary authority; (c) a public servant or the disciplinary authority is aggrieved with the decision in (a) and (b), that public 12 servant or disciplinary authority shall appeal to the President, whose decision shall be final." From the above quoted provisions, as the dispute centred on unpaid salaries and leaves, to my opinion it revolves on the remedies which is basic the rights to the respondent in his employment contractual relationship. To my view, this issue cannot be resolved without first resolving as to when the respondent employment come to an end. Definitely by the provision of section 25 and 32A of the Public Service Act, Cap 298 R.E 2019 requires the dispute to be dealt with by the Public Service Act, Cap 298 R.E 2019, in which the respondent has to exhaust the availed remedy before resorting into the labour laws. To my understanding, I believe that, what was intended by the Parliament on enacting section 25 and 32A of the Public Service Act, Cap 298 R.E 2019 is for the public servant to channel his grievances to a Disciplinary Authority in order to exhaust the availed remedies provided for under the Public Service Act, Cap 298 R.E 2019 before resorting to the labour laws. This is also the position of the case law as it was stated in a number of cases including Tanzania Posts Corporation (supra), and Tanzania National Roads Agency vs Brighton Kazoba and Julius Charles, Revision No 16 of 2018 at Iringa (unreported). 13 Before I wind up, I would like to address the issue posed by the counsel for respondent that, section 2(1) of the Employment and Labour Relations Act, Cap 366 R.E 2019 allows the public servant to refer their disputes to the CMA. In this aspect I wish to put it clear that when two laws provides for the same thing, one being general and the other being specific, the rule of the game is that the specific law prevail in that circumstance. All said and considered, it is my conclusion that the CMA was not vested with the power to hear and determine the dispute between the applicant and the respondent who was the public service office and the public servant as the applicant was mandatory required to exhaust the remedies availed to him under the Public Service Act, Cap 298 R.E 2019. Consequently, I allow the Revision Application, the Proceedings of the CMA are hereby quashed, and the orders emanating therefrom are set aside. This being a labour dispute, I make no order as to costs. It is so ordered. M M.I. MNYUKWA JUDGE 23/02/2023 Right of appeal is fully explained. 14 M. MNYUKWA JUDGE 23/02/2023 Judgment delivered on 23th February, 2023 in the absence of Applicant and in the presence of Respondent. M. MNYUKWA JUDGE 23/02/2023 15