20130924 TZHC Mwanza1

IN THE HIGH COURT OF TANZANIA I : L.:ABOU l

R DIVISION

AT MWANZA REVISION NO. 52 OF 2012 PAUL VICENT ............................................. APPLICANT.

VERSUS SHERALLY ,TRANSPORT,LjTD .............._.................. RESPONDENT 09/09/2013 &24/9/2013

RULING ON PRELIMINARY OBJECTION S.A.N. Wambura, J. 1 , I'l This ruling is in respect of an application filed by Paul Vicent by way of notice of application under Section 91(1) of The Employment and Labour Relations Act No. 6/2004 and Rule 24(1) (2)(3) and 28 (l)(e) of the Labour Court Rules GN No. 106/2003 praying for the enforcement of the Compliance Order of the Regional Labour Commissioner, issued on ' ! i . 2/11/2012. In response the respondents Sherrally Transport Ltd through their Principal Officer, Joel Lulyeho filed a counter affidavit objecting to the same. At the hearing of the matter the applicant appeared in person while the respondents were repre~ented by Mr. Lulyeho. ' ! i I find it necessary to give a brief background of the matter in the present dispute. On 25/6/2012 the Labour Commissioner inspected the respondents premises and issued a compliance order to be complied with by July 2012. The order was issued stating that and I quote in part:- " You are hereby ordered to comply with the followiog:- , . ' I . . . 1 · 1. To pay se~toral minimum wages of 150/000/- which is inland I transport to each of your employees as well as paying their arrears before the labour officer from the date · of operationalization of regulation of wages and terms of Employment GN. No.172 of 2010 i.e 1st of may 2010/as per attached arrears of wages.

2. To develop and implement a specific policy/ plan/ program for i prevention care/ treatment and support for HIV/AIDS at workplace" A copy of the said order was served issued to the applicant and . annexed to the complaint as Annexture 2. On 2/8/2012 the applicant was served with a letter of termination of service. He filed a complaints at CMA on 13/8/2012. The same was i concluded .on 2/11/2012 1 by alledging, that the application has been filed after the elapse of 510 days, so CMA does not have the mandate to adjudicate on the same. Being aggrieved the applicant has thus filed this application seeking · to have the award revised. The respondent however claims the award is i proper and does not needi to be revised. The applicant. is herein claiming a total of Tshs. 1,330,000/= as wage arrears from 1st January,2011 to 30th of July 2011. Now Section 46(1) of the Labour Institution Act ( LIA) provide·s that a Labour Officer who has reasonable grounds to believe that an employer has not complied with I the provisions of the Labour Laws, may issue a compliance order as provided for in the prescribed form. Section 41 (5) of LIA provides that an employer shall comply with the compliance order issued in terms of subsection (1) within· the time period stated in the order. Section 46 (6) of the same law provides and I quote:- i i ' 2 I "The Labour Co/~rnissioner my apply to the Labour

Ccurt to enforce the co1npliance order if the employer has rJot complied with the order and has not objected to the 01 der in terms of Section 47(1)." Again Section 47(B) of the said Act provides that the Labour Com,nissionEr , I I · may apply to the Labour Court to enforce the compliance order if the employer has not complied with the order and has not lodged an appeal in terms of Sections 48 ( 1) of the Act. I thus agree that CMA had no jurisdiction to entertain the matter as the Labour Commissioner had to move the court, but not for the issue of I ' l time. The Applicant filed his application in time as it was in less than 60 days when he knew the actual salary he was to be paid, and again filed the complaint at CMA in less than 60 days after being terminated. So the issue of filing the same out of time cannot stand. L_J·c,t c: ''---""C\ • L-~' ---.u ).~ -,-: __ ,~;~_--1.._. ,. ' ... I,(_:_ ,1~ ._ ~. r~ cl:-"·-· , •. :,. _,_T~,, . In the circumstances, and by virtue of powers granted to me vide , I i ' • Rule 28(1)(c) of the Labour Court Rules, 2007 I quash the whole of CMA · proceedings, as well as the award thereto. I order that the applicant should instead move the Labour Commissioner to move the court on the issue of non- compliance with the order as provided for under Section 46(6) of the Labour Institutions Act, including consequences of his , I i . termination thereafter. It is so ruled.· s. A.,__N~:w~ura .

JUDGE 24/9/2013 3