neema mbugi others vs dar es salaam mlimani teachers college 2022 tzhcld 1117 16 december 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 246 OF 2022 NEEMA MBUGI.......................................................................... 1st ALOYCE KOMBA........................................................................ 2ndAPPLICANT VICTORIA CHAWANGA.............................................................3rdAPPLICANT VERSUS DAR ES SALAAM MLIMANI TEACHERS COLLEGE............................................. RESPONDENT (From the decision of the Commission for Mediation and Arbitration of DSM at Ubungo) (Mbena: Arbitrator) Dated 08th May, 2020 in REF: CMA/DSM/UBG/152/18/54 %. JUDGEMENT jl 4th November & 16th December, 2022 RwizileJ The applicants filed this application for revision. They are asking this court to call for records and proceedings of the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/DSM/UBG/152/18/54 and revise the same. i In terms facts briefly, the applicants were employees of the respondent. They were employed as tutors at Mlimani Teachers College. No sooner had the business went sour, than the same were not paid their salaries. Not happy with what happened, they filed a labour dispute at CMA. Their claim was for salaries of October 2017 to March 2018, notice of termination, leave arears, salary deductions unlawfully done, compensation of salaries not less than 48 months and certificates of service. Upon hearing, the CMA found their claims wanting in substance % X % and dismissed them. Being dissatisfied, the applicants filed this application in protest. | % 1 The application was supported by the applicants' affidavit advancing grounds for revision as hereunder: - /. That, madam arbitrator erred in law and in facts for holding that the applicants were not unfairly terminated by the respondent. < * * Thafythe honourable madam arbitrator was bias in recording and evaluating the testimony and evidence of the applicants. Hi. That, madam arbitrator erred in law and in facts for holding that the claims for compensation requested by applicants have no legal base before the commission. iv. That, madam arbitrator erred in law and in facts for holding that granting the remedies for notice payment, severance payment and annual leave payment is like punishing the respondent. v. That, madam arbitrator erred in law and in facts for holding that the applicants have no any claims for salary arrears against the respondent. vi. That, madam arbitrator erred in law and in facts for holding that the claim of unlawful deduction of Neema Mbugi of 500,000/= by the respondent is time barred. lb The hearing was by way of written submission. Both parties were represented by learned Advocates.:: Mr. Prosper Mrema was for the applicants and Mr. Raphael Lefi David for the respondent. Before hearing, the respondent raised a preliminary objection stating that the application is time barred. On 29th September, 2022 it was directed, both the objection and the main application be argued together. On preliminary objection Mr. Mrema submitted that; the application is not time bared. He argued that it was filed within time of 14 days. He stated that leave was granted on 19th July, 2020 in application No. 462 of 2021. He further added, it was not filed on 02nd August, 2022, but on 29th July, 2022. To support his point, he annexed a print out on electronic filing showing the date it was electronically filed. Mr. David, replied that the current application was filed on 03rd August, 2022. In his view, it was contrary to the order given on 19th July, 2022. To him, the application was supposed to be filed before 02nd August, 2022. He submitted that the application was time barred and was filed without leave of the Court. He prayed; the application be dismissed as per section 3(1) of the Law of Limitation Act [CAP. 89 R.E. 2019]. Mr. David submitted further that the document presented by applicants has no authenticity, it is doubtful. % J In determining this point of limitation, the record shows, leave of 14 days to file this application was granted on 19th July 2022. 14 days granted lapsed on 02nd August, 2022. Annexure N2 shows the application was filed electronically on 29th July, 2022. The hard copy was filed on 03rd F August, 2011. Time of filing according to the electronic filing rules is the day, the application was electronically filed unless rejected, see rule 21 of the Electronic Filing Rules, GN No. 148 of 2018. For that matter, the point of objection has no merit. It is overruled. Going back to the main case; Mr. Mrema consolidate the first and second grounds for revision. He submitted that the applicants were constructively terminated. He stated that the respondent did not show any document to prove that she had closed the college due to absence of students. He argued, that she did not follow what is required under section 38(1) or section 37(1) and (2)(c) of the Employment and Labour Relations Act [CAP. 366 R.E. 2019] (ELRA). The third and fourth grounds for revision were also consolidated and argued together that, since the applicants were unfairly terminated contrary to section 37(l)(2)(a)(b)(i)(ii)(c) of the ELRA, they were entitled to compensation as per section 40(l)(c) and section 44(l)(b)(c)(d)(e)(f) ad (2) of the ELRA. The learned counsel argued the fifth and sixth grounds together as well. He said, the applicants are claiming for salary arrears for the months of January and February, 2018. In his opinion, the respondent has to pay the applicants as under rule 10 of the Labour Institution (Mediation and Arbitration) Rules, G.N. 64 of 2007. He said, the applicants' claims are from 09th January to February, 2018. Mr. Mrema continued to argue that the claims on deduction of TZS. 700,000/= of Neema Mbugi is not time barred. He stated that it was done on 07th March, 2018 and the respondent did not bring any proof to show that she owed Neema Mbugi TZS. 700,000/=. In his view, the amount was unfairly deducted contrary to section 28(1) of the ELRA. He prayed for revision of the CM A award. In reply Mr. Davis as well argued together the first and second grounds. It was his point that the applicants were paid all dues. He said, claims of salaries up to March, 2018 are unfounded. This is because they were not working. He stated further that the issue of constructive termination is an afterthought. On the second and third grounds for revision, he submitted that the respondent was not in default. He stated so because the business was f % 1 already closed due to absence of students. On the fifth and sixth grounds, Mr. David submitted that; the applicants were paid all their salary arears. He stated the same was done before the or district commissioner's office on 05th and 07th January, 2018. He argued further that deduction of TZS. 700,000/= against the first respondent was for unpaid house rent, she was occupying. He lastly asked the court to dismiss this application. In a rejoinder, Mr. Mrema reiterated what was submitted in chief. After perusal of both submissions and records, I find it logical to determine the following grounds: - i. Whether the applicants were constructively terminated i i. Whether applicants are entitled to salary arrears claimed and iii. Whether claim of deduction of TZS. 700,000/= ofNeema Mbugi was time barred. In determining the first issue, rule 7(1) of Employment and Labour Relations (Code of Good Practice) G.N. No. 42 of 2007 states: - "Where an employer makes an employment intolerable which may result to the resignation of the employee, that resignation amount to forced resignation or constructive termination." % The applicants stated that the meeting held with the respondent was about their salary arears. It was stated that this was the reason for their - termination. Neema Mbugi testified as referenced hereunder: - Il "J. Tulikuwa kazini tuiikaa kikao cha wafanyakazi wote tukimkumbusha mwajiri kutuiipa maiimbikizo ya mishahara yetu ya fniezisita ya nyuma... S. Nini yaiikuwa maamuzi ya wafanyakazi? J. Tuiiazimia Kwenda kwa mkuu wa wiiaya Hi atusaidie kupata haki yetu" Exhibit DI shows the applicants were paid their salary arears on 05th January, 2018, they signed. If the reason for constructive termination was salary arears, exhibit DI clearly shows the arears were paid to the applicants. Failure to pay salary arears, it can be argued, cannot be the basic reason for termination. The first and second grounds do not have merit. In dealing with the second issue, as the first issue has been determined in affirmative, this issue faces its natural death. This means the third and fourth grounds for revisions have no merit also. % J The third issue of whether applicants are entitled to salary arrears as claimed from January to February 2018. The respondent through Thobias Njowoka stated that the college stopped working from September, 2017. He also stated that; he agreed with the applicants that he will pay them, when he rented the buildings. For easy reference in untyped proceeding it was stated: - ’7 ... Mimi baada ya kupokea barua ya wito kutoka kwa mkuu wa wiiaya biia kujua naitiwa nini (iiikuwa mwezi wa 10) baada ya chuo kusitishwa September, 2017.... 8 J. Mimi madai niiiyakubaii madai yaie yote na kumueleza mkuu wa wiiaya kuwa kwakuwa shuie imeyumba kwa kukosa wanafunzi mimi niiimwambia nitayalipa madai yote nikishapangisha jengo fedha nitakayopata nHawaiipa..." CMA record shows that the applicants did not dispute when the ■ respondent stated that he had closed the college in September, 2017. That meant the applicants agreed that the college was closed during that V;:-. time. Their claims on salary arears from January to February 2018 have no legal basis as during such time the college was not in operation. This % 1 On the fourth issue concerning the claim of deduction of TZS. 700,000/= of Neema Mbugi being time barred. I have found that this is the different dispute from the one of constructive termination. This is so because each has its own time limit to be filed at CMA. It is, as provided under rule ■ 10(1) and (2) of G.N. No. 64 of 2007 that: - "10(1) Disputes about the fairness of an employee's termination of employment must be referred to the Commission within thirty days from the date of termination or the date that the employer made a final decision to terminate or uphold the decision to terminate. (2) AH other disputes must be referred to the Commission within sixty days from the date when the dispute arose." For that reason, they ought to be filed separately. That means the claim for salary deduction is as if it has never been pleaded at the CMA. This ground has no legal standing, so the fifth and sixth grounds for revision have to fail. This application has no merit. It is hereby dismissed. Since this is a labour 10