omari ghati james vs knight support tanzania ltd 2020 tzhcld 3860 11 march 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION APPLICATION NO. 211 OF 2020 BETWEEN OMARI GHATI JAMES AND KNIGHT SUPPORT (T) LTD RESPONDENT EXPARTE JUDGMENT Date of last order: 03/03/2022 Date of Judgment: 11/3/2022 B, E, K. Mqanqa, J On 17th May 2002,> applicant became an employee of the respondent as security^guard and the two are enjoying employment relationship up t^^w. On 16th June, 2017, applicant filed Labour dispute ^lb;^^^IA/DSM/ILA/R.360/17 before the Commission for Mediation^d^rbitration (CMA) at Uala claiming salary arrears, over­ time^pa/^and over time during lunch hours. Respondent disputed all claims against the applicant. Having heard evidence of both parties, on 29th April 2020, Hon. Alfred Massay, Arbitrator, dismissed all claims of the applicant for want of merit. Applicant was aggrieved by the said award, as a result, on 9th June 2020, he filed this application seeking the i court to revise the said award. In the affidavit supporting the notice of application, applicant raised the grounds namely:- 1. The arbitrator erred in law for his failure to consider that un statutory deduction of employee's salary without the consent of the employee is prohibited under the labour laws. 2. That the arbitrator erred by not holding that applicant having worked for extra work was entitled to be paid overtime payment. /> 3. The arbitrator erred in law for not holding that appllcant)ias^right to be paid break time for each day for lunch for at least 60 minutes. Respondent filed both the notice of opposition and a count appearance. On 2nd Novembter^2021, applicant prayed to proceed exparte as a result Hon.<I?Arufan, J, granted the prayer and ordered that exparte hearing <be held on 14th December 2021. Unfortunately, on 14th December 2021Jhearing did not take off. On 24th December 2021, this application-was re-assigned to me following the transfer of Hon. I. ArOfeni^^^ On 3rd March 2022, this application came for hearing before me. submitting on the application, Mr. Omary Ghati James, the applicant, argued that respondent is illegally deducting his salary without justification. He argued that, respondent started to make the said illegal 2 deduction of salary in 2014 up to now. Applicant submitted further that, he is claiming to be paid TZS 288,136.80 as salary arrears. Applicant went on that respondent unlawfully did not pay him overtime amounting to TZS 19,028,334/=as overtime pay. Applicant submitted further that he is claiming to be paid TZS 6,237,504 based on the time which respondent did not allow him to enjoy his lunch or h^ve^shoct/break during working hours. Applicant concluded that, arbitrator erred in not awarding him the amount he is claiming and prayed the application be \\ allowed by revising the award and order th%vespondent to pay him the aforementioned amount. I have examined the CM^record and find that, in his evidence, J? Omari Ghati James (PW<l^testified that he was claiming to be paid TZS 388,136.80 that was^llegally deducted from his salary by the employer, TZS 23,028,336/A^being unpaid overtime, TZS 8,237,504/= because respondefibdid^not allow him time for break during lunch time and TZS 18,000,000/= that was taken by the respondent without his consent and was infused in respondent's business circles. While on cross examination, applicant (PW1) testified that the claim is for the whole 17 years he has worked with the respondent. Applicant (PW1) admitted that all employees including himself are being paid by the respondent 3 TZS 90,000/= as fixed overtime every month to cover the time they work beyond the hours prescribed under the law. PW1 stated further that, the claim of TZS 388,136.80 relates to deductions that were done in 2002 and that TZS 23,028,336/= are claims from 2004. PW1 stated further that, his monthly salary is TZS 150,000/=. On the other hand, Rogers Ngonda (DW1) testified^on behalf of the respondent that there is no proof that respondent took TZS 18,000,000/= property of the applicant and Jnfused?it in her business without consent of the applicant. DW1 statedsfurther that, applicant was paid all his salary since 2002 and^that he has no claim whatsoever. As pointed herein above, applicant filed CMA FI on 16th June 2017, claiming to be paid salary, arrears, over time and "overtime during lunch hours". In the said^GMA'-EL', applicant indicated that the dispute arose on 16th June^OlT^But evidence of the applicant in support of the applicatioSshows that the alleged dispute arose way back in 2002 and 2004^ImShort, some of the alleged claims are 17 years old hence time barred. The law requires all claims arising in cause of employment other than termination of employment, to be filed at CMA within sixty days from the date they arose. This is clearly stipulated under Rule 10 (2) of 4 the Labour Institution Mediation and Arbitration Rules, GN. No. 64. The said Rules provides: - "AH other disputes must be referred to the commission within sixty days from the date when the dispute arose" In the case at hand, applicant testified that his claims of overtime are from 2004, whereas the remaining claims of salary arrears ^and lunchtime overtime are from 2002 when he was employedvAs the dispute was filed out of time and no condonation was granted, CMA proceeded to hear and determine it without? jurisdiction. Under the circumstances, I find that claims by^the^applicant were wrongly determined by the arbitrator as>they were filed out of time and no condonation was granted. For the foregoing, Idismiss this application. Dated at Daj^es^Salaam this 11th day of March 2022. B.E.K. Mganga JUDGE 5