20131202 TZHC Mwanza2

.,, . IN THE HIGH COURT OF TANZANIA 1 LABOUR DIVISION AT MWANZA REVISION NO. 5 OF 2013 I NYANJUGU SADIKI MASUDI.. ...................................................,.......... APPLICANT VERSUS TANZANIA MINES, ENERGY, CONSTRUCTION AND ALLIED WORKERS UNION (TAMIC0) ....................................... 1 ....... RESPONDENT (Original CMAIMZA/416/2012) JUDGMENT 20/11/2013 & 2/12/2013 R.M. RWEYEMAMU, J: I This matter raises an interesting legal question. That quest:ion is whether or not in labour cases, negotiations or conciliatory efforts of the parties afte~ the dispute has arisen,· "check limitation time" for purpose of ascertaining time the cause of action arose. I I In this case, the question arises in the following context: On 21/11/2012, Masudi filed I a dispute in the Commission for Mediation and Arbitration (the Commission) I against the respondent/employer. In his statutory referral, CMA F1, he indicated that the dispute arose on 8/2/2012. Admitting delay, Masudi filed a statutory form for appHcation of condonation, CMA F?. In that form, he indicated that delay was for 9 months, but explained that he had i good cause for delay. The good cause was explained as follows. When the employer denied the claim in I writing on 8/2/2012, the claim stood at Tshs.4.474.541/=. That is the date indicated as the 1 ,,I> time the dispute arose. The employer however! thereafter started ~aying the claim slowly.· He stopped paying in August 2012, when only Tshs.2.079.031/= of the debt claim remained unpaid. Mr. Masudi argued at the Commission that the fact that the bmployer has a change , I of heart after 8/2/2012 and started liquidating the claim constituted good cause for delay, ' ! that such was the explanation of his delay until August 2012. In its decision issued on 28/12/2012, the Commission found Masudi's application meritless and dismissed it. ,, In arriving at its decision the Commission considered the relevant law, the Law of Limitation Act, 10/1971 sections 4 and 5, which provides that "the period of limitation .. .' commences from the date on which the right of action for such proceeding a,ccrues. And that, "... the right of action in respect of any proceeding, shall accrue on the date on which the cause of action arises." It then decided that in the context of the case: ·. .---------------t- ► The cause of action arose when the employer expressed his intention in writing that they would not to pay the claim: ► That the time for purpose of limitation reirnained to be 8/2/2012, when the claim was due or when the employer initially failed to pay: i · -· ► Therefore that, the fact that the employer started liquidating :the claim thereafter did ' I I not matter. i I ► The Commission then concluded that in terms of Rule 10 ~1) & (2) of the Labour Institutions (Mediation and Arbitration) Rules, GN 64/2007, ~asudi's claim was time I ! barred. 2 In making the interpretation it did, the Commission found support in the CAT decision in TANZANIA SHOES COMPANY LTD. DHIDI YA MARK MHANGO NA WENZAKE. The CAT in that ! case observed inter alia that: "Parties can not compromise to contravene the law"(referring to the I law on limitation). The Commission also followed the position of Hon. Kalegeya,J., (as he' then was), in the case of ALEX LEOLE DH/DI YA TANZANIA PORTLAND COMENT co. LTD., Civil case No. 259/1997. In that case, the Hon. Judge cited with approval 'an interpretation of the principle by K.J Rustomji in his TREATISE- THE LAW OF LIMITATON 5th Edition at page 23, I I where the author opined that; "negotiations for settlement do not check limitation. Plaintiff, if he sues after expiry time, will be barred, even where defendant has betrayed him into permitting the time to ! elapse in fruitless inquiries and negotiations for a settlement pending between the parties."(Emphasis mine) At the hearing of this application, Mr. Masudi appeared id person and basically repeated arguments made to the Commission. 1I The employer was represented by Mr. P. Rwechungura its Regional Secretary. Before getting into the issue I consider to be of importance - concerning the question of determination of the date thr cause of action arose in labour disputes, I wish to refer to the issue not raised by the parties. That is the issue of which factors to consider or what is the necesskry enquiry and decision to be made in an '' application for condonation. In this case, it appears to me that the H6n Mediator misconceived the nature of the' issue before him. The decision of the mediator concentrates on whether the dispute was timely filed or not which was not the issue. The fact of delay was ialready admitted when Masudi filed the application for condonation. i In my understanding, in these kinds of applications, the key issue is not whether the dispute was timely filed or not, rather whether reasons advanced amount to good cause. The duty of the decision maker in suchI I J 3 applications is to evaluate parties' arguments with respect to the advanced reasons, then ·to decide, stating reasons, why such reasons are accepted or not accepted as good cause. In such cases, a discussion and finding that the claim is time barred are superfluous. The superfluity could be ignored as harmless provided the key duty of the decision maker I as explained above is fulfilled. In this dispute, that was not done: The mediator did not specifically evaluate arguments raised and decide whether or not the reason advanced by' Masudi amounted to good cause for delay. Due to the above reason, I would have quashed the Mediator's decision but on closer scrutiny of the record, I realized that the final decision would have remained the same ! even had the mediator properly evaluated the reasons advanced. Why? By Masudi's own admission, after the employer's change of heart, final payment was made on 15/8/2012. That means, the claim should have been filed by 15/10/12 to be in time, instead, it was filed 21/11/2012. As such, there was delay even though of a few days. Since it is a trite principle I of law that delay, even for a day, is fatal, and Masudi did not advance reasons for delay for the said few days, his application would still have failed. I I Now returning to the Commission's decision, its implication is that the time used by parties' in attempting amicable settlement after a dispute has occurred, do not count for purpose of ascertaining the date the dispute arose, arid the fact of such efforts is irrelevant when considering good cause for delay in filing such a dispute. The question I find interesting is whether in the labour context, that was/is the proper interpretation of the law. With due respect, it is my considered view that under I labour law, amicable settlement of labour disputes is preferable and encouraged, so as t6 maintain good labour relations. Such is the spirit and one of the objectives of the ELRA. In light of that, parties' 4 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 so as not to. be caught up with limitation, instead of giving chance to amicable settlement to work. In view of my said position, I find decisions relied on by the Mediator to be distinguishable and decide that in the circumstances of labour practice the Mediator's decision was contrary to law. It is my conclusion that, in labour l~w and good practice, parties efforts for amicable settlement of disputes are encouraged and recognized, as such, such efforts constitute good cause for delay for the period the parties were engaged in such endeavor. The logical conclusion of my said position is that, in labour ,disputes, the cause of action starts to count when the offending party has reached a final decision not to settle the dispute. Such time in this case was 15/8/2012 when the employer made a final payment, of the original claim of 4,474,541/= and only shs.2.079,031/= remained pending- a claim referred to the Commission. Having reasoned as I have done immediately above, I would have quashed the impugned decision. I will however confirm it but for different reasons, reason I alluded to above namely that; the end of efforts for amicable settlement was 15/8/2012, time to refer the claim expired on 15/10/2012; but Masudi gave no reasons to explain delay between that day and 21/11/2012 when the referral was made. I the end' result, I find the CMA, conclusion that Masudi failed to show good cause for delay justified, but conclude so for reasons explained immediately above. This application is consequently dismissed. Date: 2/12/2013 Coram: Hon. R. M. Rweyemamu, J Applicant: Present in person For Applicant: · I Respondent: Mr. Paternus Rwechungura - TAMICO Regional SecretaryI I For Respondent: · CC: M.S. Mlandula/Christopher Court: Judgment delivered this 2/12/2013. Right of Appeal Explained. R. M. Rweyem JUDGE 2/12/20,3 ---.,____ 1-, f 6