notbruga maskini vs local authorities pension fund 2014 tzhc 2395 27 march 2014

LABOUR DIVISION OF THE HIGH COURT AT DODOMA REVISION NO. 19 OF 2013 BETWEEN NOTBRUGA MASKINI....................APPLICANT 4' VERSUS LOCAL AUTHORITIES PENSION FUND.......... RESPONDENT (ORIGINAL/ KF/CMA/DOD/129/2010) RULING 24/3/2014 & 27/3/2014 Mipawa. J. This is preliminary objection filed by the respondent the Registered Trustees of the Local Authority Fund styled "LAPF" as against the applicant Notbruga Maskini vide Revision No. 19 of 2013 in which the applicant has asked this court to revise and set aside the Commission for Mediation and Arbitration at Dodoma the arbitration award procured against him on the ground that there is material irregularity and an error material to the merit of the subject matter involving injustice. The application was filed through a notice of application made under section 91 (1) (a) (2) (b ) (4) of the Employment and Labour Relations Act, Rule (24) (2), (28) (1) (c) (d) of the Labour Court Rules GN. No. 106 of 2007. However the application of the applicant found itself dumped into the quaqmire of preliminary objection on point of law filed by the respondent's learned counsel Mr. Mndeme. The preliminary objection was by and large scattered in fire limbs and concerned in the following style:- 1. The application for Revision is incompetent before this honourable court for being out of time. 2. The order of this honourable court dated l ? h October, 2013 is bad in law for having a manifest error in the face of it 3. The order of this honourable court dated l ? h October, 2013 is null and void for lack of jurisdiction of the Registrar of the High Court Labour Division to grant the same. 4. The Commission for Mediation and Arbitration entertained the complaint in question without jurisdiction since the dispute arose out of a severe reprimand. 5. The affidavit in support of the notice of application in this case is incurable defective for being in contravention with Rule 24(3) of the Labour Court Rules, 2007 GN. No. 106 of2007. The preliminary objection above has cropped this Ruling. Now in his submission v/Va voce [by live voice] in support of the preliminary objection the respondent's counsel Mr. Mndeme submitted on the first limb of his preliminary objection by adopting the submission by him in revision No. 19 of 2013 involving the same parties and nearly the same points of objection except a few if not one. However he dropped the fifth limb of the preliminary objection. On the first point of preliminary objection the learned counsel has argued that the present application for revision is incompetent before the court, for being filed out of time, the revision was filed on 28/10/2010 challenging the award of the Commission [CMA] at Dodoma dated on 28/8/2012. According to the provision of the law governing application of this nature notably Section 91 (1) (a) (b ) of the Employment and Labour Relations Act No. 6 of 2004 and Rule 24 (2 ) of the Labour Court Rules as well as Rule 28(1) of the Rules GN. No. 106 of 2007. The application should be filed within six weeks from the date of the award procured. He further submitted that the application for revision is filed more that than ten months from the date of the award which is beyond six weeks provided by the law and therefore time barred, and should be dismissed. On the second limb of the preliminary objection and the third limb the learned counsel argues jointly that, the order of the Registrar of this court dates 17th October, 2013 purported to grant an order to withdraw application No. 6 o f 2012 and granting an extension of time within which to re-file the same revision in 14 days time from the date of the order. He submitted that the order of the Registrar has no such power of extending the period from which to file a revision. The power of extending time to file a revision and an application is vested to the Judge and not the Registrar whose powers are either administratively or limited to the power as provided under Rule 7 of the Labour Court Rules GN. No. 106 of 2007. Reading that Rule nowhere the Registrar is given power to extend the period on which to file revision. Power for extension of time is provided under Rule 56(1) of the Labour Court Rules GN. No. 106 of 2007 where it specifically refers to the court where normally the court is presided by the Judge. He concluded that the power that granted the extension of time are null and void and the present application should be struck out or dismissed. The learned counsel for the applicant also adopted his submission argued in revision No. 20 of 2013 involving the same parties. He told the court in that submission that the present application was filed within six weeks from the date the award as an application No. 6 o f 2012 (?) on 17/10/2013 the application was withdrawn on ground that the affidavit was defective for lack of the name of the attesting officer and it was ordered to be rectified within fourteen days, therefore the application was not time barred. As regard to the second limb of the preliminary objection and the third limb, the learned counsel for the applicant Mr. Nzowa submitted that ^ *■% the order by the Registrar was valid under Rule 7(5) of the labour court Rules whereby a Registrar may request a party to correct any apparent defect or error. He argued that the affidavit supporting the application No. 6 o f 2012 (?) had the defect on the jurat of attestation hence the same was supposed to be withdrawn to rectify the defect. The application was withdrawn with leave to re-file within fourteen days and it was filed; hence the order by the Registrar was valid therefore. In rejoinder Mr. Mndeme learned counsel for the Respondent submitted that once the application has defects, the same cannot be withdrawn, amended or adjourned, because in view of the holding of the supreme court of this land [the Court of Appeal] in Civil application number 7 of 1996 between Bulhan Abdul Karimu t/a E.A.K. interprises Vs NBC Jam huri Branch Bukoba Nyalali C.J [as he then was] held:- ...It is my considered opinion that those defects are so serious that, they render the application incompetent. In other words, as already stated in numerous previous decision of this court, the incompetency means there is no application before the court which can be withdrawn amended or adjourned, consequently the application is rejected and instead is hereby, ordered that the application be and is struck of the record... Submitting on the fourth limb of the preliminary objection to wit; the Commission for Mediation and Arbitration entertained the complaint in question without jurisdiction since the dispute arose out o f a severe reprimand, Mr. Mndeme argued that the Commission for Mediation in complaint or dispute No. 129 of 2010 decided a dispute which it had no jurisdiction to entertain, that the Commission entertained a complaint or dispute arising out of a warning which was issued against the applicant by the respondent, the issue here is whether the Commission has jurisdiction or powers to entertain a dispute or complaint arising out of a mere warning and reference goes to Section 88 (1 ) (b ) of the Employment and Labour Relations Act No. 6 of 2004 which defines what is a complaint under roman (i) clause (b ), complaint must be of fairness or lawfulness of the employee's termination of Employment. He argued that:- ...Arbitration can only be done on a complaint over a termination of an employment or lawfulness or an employee's termination. In other words a warning can never be complaint, because it is only a behavior warning which does not effect any right or duty on employee and it is valid for the period of six months... it is an administrative order which cannot be subjected to the Commission for Mediation and Arbitration... The respondent's counsel argued further that a point of law can be raised at any stage during the trial and that no law may preclude a party from raising a new point of law and the court of law has no power to convert a nullity into validity he cited the court of Appeal case in reference No. 18 of 1997 between Anwar z. Mohamed Vs Said Suleiman Masura unreported at pages 7- 8. In that connection the Respondent submitted in conclusion that the Commission [GMA] did not or has no jurisdiction to entertain the complaint referred to it and the result is that even the award is null and void as well as the application. He said that nowhere in our precedent has the commission entertained the issue of a warning and therefore it was something nouvau (new) to the commission for Mediation and Arbitration and it acted out of its jurisdiction. The application ought to be struck out. Mr. Nzowa learned counsel for the applicant submitted that adding some points on the power of the Registrar argued that the Labour court is a court of law and equity and by virtue of Rule 55 (1) (2) of GN. No. 106 of 2007 the court may adopt any procedure it deems appropriate in the circumstances and in the manner it considers expedient to achieve the object of the Act. That is why the issue of a name of the attesting officer arose and it was for the end of justice to allow parties to bring fresh affidavit. On the CMA jurisdiction to entertain a complaint where the sanction of warning is issued by the employer, Mr. Nzowa submitted that the Commission has jurisdiction by virtue of section 88 (1) (b ) (ii) of the Employment and Labour Relations Act No. 6 of 2004 as amended by written law Miscellaneous Amendment Act No. 8 of 2006 whereby the jurisdiction of the Commission was expanded to include:- ... Other contravention of this Act or any other law or breach of contract or any employment or labour matter falling under common law... Mr. Nzowatcontended further that a warning came out of the disciplinary hearing by the board of Directors and thus the Sanction which came out o f a disciplinary hearing can be challenged before the Commission for Mediation and Arbitration as provided for under Paragraph 4 subparagraph 15 o f GN. No. 42 o f 2007 guidelines for disciplinary incapacity and incompatibility policy and procedures of the Code of Good Practice He concluded that:- ... An employee can use the mechanism after utilizing and exhausting all external procedure as contained in the ELRA which is the CMA and labour court ... the sanction was issued by the board of Directors, the complainant appealed to the Minister concerned then he lodged the matter to the CMA after the outcome from the Minister and one of the ground was a denial to be heard... In rejoinder submission the learned counsel for the respondent 6 '' - argued that the reference made by counsel for the applicant on Rule 55 of (1 ) (2) of GN. No. 106 of 2007 and enabling provision to depart from the well established principle of law is not proper because the Registrar has no powers as that of the Judge and he could not have agreed for withdraw and granting of an extension of time because those powers are of the Judge. He argued that even if the court has that power (Registrar) j t cannot allow the procedure which are clear in contravention of the law. When the law says that an application which is not properly before the court is as well as there is no application and however lenient the Labour Court might be it cannot depart from depart lightly from the set principles or law. Section 88 (1 ) (b ) (ii) of Employment and Labour Relations Act only expands the Commission jurisdiction to deal with matters under Common law, tortious liability or vicarious liabilities where the subject matter does not exceed the pecuniary CMA jurisdiction and it has nothing to do with warning. Warning has no procedure for hearing and any appeal out of warning 8 is limited to the senior manager within the organization and cannot extend to the Commission for Mediation and Arbitration [CMA] Now, I have duly considered the submission of both learned counsels for the applicant and Respondents on the four limbs of the preliminary objection raised by the respondent after he had dropped the fifth limb, I will start to discuss the fourth limb of the preliminary objection which is couched like this:- ... The Commission for Mediation and Arbitration entertained the complainant in question without jurisdiction since the dispute arose out of a severe reprimand ... The respondent's counsel on the fourth limb of the preliminary objection argued that the commission had no jurisdiction to entertain a complaint arising out of a warning. The issue is whether the CMA has jurisdiction or powers to entertain a complaint arising out of a mere warning in this aspect a severe reprimand which was given to the applicant employee by the respondent employer. The learned counsel cited Section 88 (1 ) (b ) of the Employment and Labour Relations Act No. 6 of 2004 which defines what is a complaint and argued that under the quoted section roman (i) Clause (b ) a complaint must be of fairness or lawfulness of the employee's termination as under the law where there are two punishment which may be awarded against the employee (i) is termination and (ii) warning and on that being the case, arbitration can only be done on a complaint over an employment or lawfulness of an employee's termination. In other words a warning can never be a complaint because it is only a behavior warning which does not effect any right or duty of an employee. I think for easy of reference it is prudent to quote section 88 (1) (b) (i) (ii) 88 (1) ... for the purpose of this section a dispute means... (a)... (b) A complaint over (i) The fairness or lawfulness of an employee's termination of employment (ii) Any other contravention of this Act or any other Labour law or breach of contract in which the amount claimed is below the pecuniary jurisdiction of the High Court Mr. Nzowa, however was of the view that the Commission had the jurisdiction to entertain a complaint where the sanction of warning ■if is issued by the employer by virtue of section 8 8 (l)(b )(ii) of the Employment and Labour Relations Act No. 6/2004 as amended where the jurisdiction for court was expanded to indude:- Any other contravention of this Act or any ... other law or breach of contract or any employment or Labour matter falling under common law ... Mr.Nzowa concluded that the sanction of severe reprimand which come out of a disciplinary hearing can be challenged before the Commission for Mediation and Arbitration as per GN. No. 42 of 2007 Paragraph 4 subparagraph 15 of the guideline for disciplinary incapacity and incompatibility policy and procedure of the Code of Good Practice in that an employee can use the mechanism of this Act. I entirely and respectfully agree with the learned counsel for the applicant that since the severe reprimand was an outcome from a disciplinary hearing it was right for the employee who was dissatisfied with the sanction of severe reprimand to utilize the dispute mechanism contained "in this Act" C'est-a-dire [that is to say] the Employment and Labour Relations Act No. 6 of 2004. Paragraph 4 of GN. No. 42 of 2007 Code of Good Practice deals with disciplinary hearing and subparagraph fifteen (15) of Code of Good Practice is self explanatory to the effect that it gives the Commission or the Labour Court power and jurisdiction to entertain a complain arising out of a warning from the disciplinary hearing of the employer for easy of reference subparagraph 15 reads as follows:- (15) An employee wishing to challenge the outcome of the appeal may utilize dispute mechanism contained in the^Employment ’'and Labour Relation Act. The time period within* which to exercise these rights shall commerce from the date the employee is advised the outcome of the appeal... In my view, I think by and large that disciplinary actions, such as warnings suspensions with or without pay, demotions and transfers, if used in the context of disciplinary action, M UST also meet the requirements of fairness. Employees are protected against unfair disciplinary measures short of dismissal or termination see GN. No. 42 of 2007 Code of Good Practice Paragraph 4, 5 and 6. The employees have the right to utilize the Commission to challenge unfair decision of the employer arising out of the disciplinary hearing etc. Indeed where there is a warning, the employer must be able to show that the warning, demotion or other disciplinary action was fair and that it was appropriate under the circumstances. Our Labour laws have been heavily borrowed from South Africa and in that connection our Labour Laws are in parimateria with the labour laws of South Africa. I will therefore refer a decision of the labour court of South Africa on this aspect. In the case of National Union o f Commercial, Catering and allied workers union Vs. CCMA Western Cape and another. [1999]20 I U 624(LC) The Labour Court of South Africa held interalia:- ... A final, written warning constitutes a serious sanction in the scheme of progressive disciplinary and that the wording of the [predecessor of] Section 186 (2) (b) includes all warnings that are entered on the disciplinary record of the employee... Now if a warning from disciplinary hearing or from the employer is a serious sanction in the scheme of progressive disciplinary if effects in one way or the other the rights of the employee in smooth performance and promotion in place of work. Hence the disciplinary sanction should be fair and lawful and if it is unfair and unlawful the employee may challenge it in the dispute mechanism provided for in the Employment and Labour Relations Act No. 6 of 2004 to wit the Commission for Mediation and Arbitration and the Labour Court. In that case the Commission for Mediation and Arbitration has the jurisdiction to entertain the dispute arising out of the disciplinary sanction Further the Act i.e. Employment and Labour Relations Act section 88 (1 ) (b ) (ii) is clear on the jurisdiction of the dispute mechanism where there is a breach of contract clause (b ) of Section 88 (1 ) (ii) is reads:- ...A complaint over ...any other contravention of this Act or any other labour law or breach of contract in which the amount claimed is below the pecuniary jurisdiction of the High Court. In my view the expression breach of contract is not only limited to the contract whereby the amount of money involved but it goes further to the breach of contract of employment also where the employee does not fulfill his or her duties in the employment contract in which case the employer has the right to issue a disciplinary warning because the employer has the right to give instructions at place of work and the right to discipline the employee when he breachs the contract of employment i.e. to work in accordance with the employment contract and obey the instructions which are lawful from the employer. The learned aunthor SD Anderman in his book titled Labour law. Management Decisions and workers Rights [1992] at Page 62 talks of the right of the employer to discipline an employee who breaches the contract of employment terms and talks also of the duty of the employee to obey and comply with employer's lawful and reasonable instructions it reads as follow:- ...Employer's disciplinary powers... are well developed in terms implied in employment contract. The employer's disciplinary control is carefully preserved in the employee's duty to obey as an implied fundamental term of the contract... To conclude on this aspect I think by and large that the commission has the jurisdiction to entertain a complaint arising out of the disciplinary hearing like warning, demotions, or transfers and suspensions with or without pay, if used in context of disciplinary action which must meet the requirement of fairness, and where there is a breach of contract of employment on part of the employee or employer. An unfair disciplinary measure is a 'breach of contract of employment good practice and common law and may be challenged #8 it before the Commission for Mediation and Arbitration and Labour Court. I will now come to the second and third limbs of the preliminary objection raised by the respondent before I conclude with the first limb of the preliminary objection. The second and third limb of the preliminary’objection raised went like this:- 2. The order of this honourable court dated 17 October, 2013 is bad in law for having a manifest error on the face of it 3. The order of this court dated l / h October 2013 is null and void for lack ofjurisdiction of the Registrar of the High Court Labour Division to grant the same. On the aspect of the court granting the prayer to withdraw application No. 6 of 2012 which was made by the Registrar of the labour court on the reasons that there were defect in the jurat of attestation which rendered the application incompetent in court as it was supported by a desective affidavit it was not proper for the court to withdraw the application which was incompetent before it because K an incompetent application is nothing it is as well as there was nothing before the court and hence a non-existent application in the eyes of the law cannot be withdrawn except to be struck out. As rightly pointed out by the learned counsel for the respondent that an incompetent application cannot be withdrawn. See the case of the Court of Appeal between Bulhan Abdul karim t/a EAU enterprises Vs NBC Jam huri branch Bukoba Nyalali C.J. [as he then was] where it was held that [Civil application number 7 of 1996] The incompetency means there is no application ... before the court which can be withdrawn amended or adjourned, consequently the application is rejected and instead is hereby, ordered that the application be and is struck off the record. It was therefore not correct for the court to grant an order of withdraw of the incompetent application on the 17th October 2013, the right way for the court was to struck out the application. Further in cementing the above decision the court of Appeal in Civil application No. 63 of 2012 [the Court of Appeal of Tanzania] sitting at Dar es Salaam held that: per Mbarouk J. A On his part Mr. Rweyongeza submitted that, an ... incompetent application cannot be withdrawn but it should be struck out ...as pointed out earlier on the applicant has contravened the requirements under Section 47 (1) of the land Dispute Courts Act for not having sought and obtain leave to appeal. We are of the opinion that\ that defect renders the application incompetent. For being incompetent we are constrained to strike out the application ... [see Terrazo Paviors Limited Vs. J. W. Ladwa] Mr. Mndeme the learned counsel for the respondent has also challenged the powers of the Registrar of the Labour Court to issue an order granting an extension of time to the applicant from which to re­ file a proper application and argued that those powers of granting an extension of time are vested to the judge under Rule 56 (1) of the Labour Court Rules GN. No 106 of 2007 where it is specifically referred to the court in which case the court is presided over by the Judge of the Labour Court. That the power that granted the extension of time by the Registrar is null and void because the powers of the Registrar are limited under Rule 7 if the Labour Court Rules GN. No. 106 of 2007. On the other hand Mr. Nzowa learned counsel for the applicant told the court that the order of the registrar to grant an extension of time was valid under Rule 7(5) of the labour court Rules andthat the court by virtue of rule 55 (1) (2) of GN. No. 106 of 2007 may adopt any procedure it considers expedient to achieve the objects of the Act with respect to the learned counsel for the applicant Mr. Nzowa the 16 powers of the Registrar vested under Rule 7(5) of the Labour Court Rules do not extend to the power of granting the party an extension of time from which to re-file an application which was struck out or that was time barred. The Rule is very clear as it grants power to the Registrar of the Labour Court to request a party to correct any apparent defect or error in any document that is filed. In my understanding of this rule the correction are only limited to competent applications filed in court and not incompetent application filed in court which cannot be amended, corrected, withdrawn or adjourned except to be struck out. It means also to request a party to correct any apparent defects or error in any document which is filed and filed here means in the process of being filed or has been filed but not taken a process of the court the registrar may request the party to correct any apparent defect or error in any document, but once it takes a court process i.e. being fixed for mention or hearing [court process] the Registrar is precluded from requesting a party to correct any apparent defect or error in any document that is filed [unless the defect or error to be corrected does not render the application incompetent] 'that is to say if that defect or error in any document filed has the effect of rendering the application being incompetent in court in which case it is subject to be struck out an not amended corrected or adjourned the Registrar cannot order amendment or request correction. The Registrar cannot also use Rule 55 (1 ) (2 ) of GN. No. 106 of 2007 [the Labour Court Rules] as an excuse or a stepping stone to grant an extension of time under the camouflage or umblela of " expedient... to achieve the objects of the Act and or the good ends ofjusticd' because the powers under Rule 55 (1) (2 ) are only vested to the Judge and not the Registrar:- 55 (1 ) Where a situation arises in the proceedings or contemplated proceedings which these rules do not provide the court may adopt any procedure that it deems appropriate in the circumstances. (2) In the exercise and performance of its powers and functions or in any incidental matter, the court may act in a manner that it considers expedient in the circumstances to achieve the objects of the Act and, or the good ends ofjustice. In my view I rightly think that the powers under Rule 55 (1) (2) are not extended to the Registrar of the Labour Court but for the Judge of the court only. The powers of the Registrar are limited to his duties under Rule 7 of GN. No. 106 of 2007. For example Rule 7 (5) reads as follows:- 7(5) The Registrar may request a party to correct any apparent defect or error in any document that is filed... Now, the learned Registrar attempt to grant an extension of time to the applicant to re-file his application was by and large null and void for lack of jurisdiction and as rightly pointed out by the learned counsel for the Respondent that it was not proper for the Registrar to grant an extension of time to re-file the application as the power to do so are vested to the judge of the High Court. Nevertheless it may be presumed that the learned Registrar had granted the extension of time to the applicant in his exercise of the powers granted to Registrar under the Civil Procedure Code Cap. 33 RE 2002 where the Registrar may exercise the powers and duties of a Judge or of a Magistrate. The Civil Procedure Code (amendment of the first schedule) Rules 2011 reads:- t; 5. The principal order is amended in order X LIII Rule 1 by deleting paragraph (m ) and substituting for it the following new paragraph. (m) to exercise the powers and duties of a Judge or of a magistrate and may pronounce judgment and sign decrees and make orders and transact the business of the High Court or the court of a magistrate. [emphasis is mine] In my considered opinion the Registrar of Labour Court could resort to the above provision only if there are no express terms describing the powers and duties of the Registrar of the Labour Court in the Rules GN. No. 106 of 2007 such as to pronounce judgment sign decrees etc. The Registrar of the Labour Court duties and powers are enshrined under Rule 7(1) - (7) of the Labour Court Rules No. 106 of f 2007 but they do not extend to the granting of extension of time to the party under Rule 56 (1 ) of the Rules. The words in the civil procedure code [amendment of the first schedule] Rules which reads "... to exercise the powers and duties of a judgd' do not mean in my view to exercise the powers and duties of a judge under Rule 56 (1) in which the court on good cause shown may extend time as this involves the hearing of the parties on merits and the words "on a good cause showri' means the parties are heard in court proceedings in which the Registrar has no powers. Hence the order of the Registrar to extend time in which to allow the applicant an extension of time to file the present revision was null and void as rightly submitted by the Respondent's counsel. In that sense it follows therefore that the first limb of the preliminary objection is answered in the affirmative that the present application is time barred for its leave was derived from and by an incompetent personnel and which order for extension of time was null and void ab-initio [from the beginning]. In the event this preliminary objection is partly upheld to the extent only as explained in this Ruling the application is struck out for being filed out of time. I have stuck out the application for being time barred than to dismiss it because the mischief committed was of this court and it will, be no-sense to punish the applicant. I also for the interest of justice grant leave for the applicant to re-file a proper application within sixty (60) days from today. I.S , JUDGE 27/3/2014 Appearance:- 1. Applicant: Mr. Mndeme - Advocate holding brief of Mr. Nzowa Advocate for the applicant. 2. Respondent: Mr. Mndeme -Advocate for the respondent present COURT: Ruling is read in the presence of the Mr. Mndeme Advocate for the Respondent who is also holding briefs of Mr. Nzowa Advocate for the Applicant. J '1| I.S. Mip&v\te JUDGE 27/3/2014