REV NO 19219 OF 2024 PRAXEDA P

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM APPLICATION FOR REVISION NO. 19219 OF 2024 CASE REFERENCE NO 202408091000019219 BETWEEN PRAXEDA P. RUGEYAM ................................................................... APPLICANT VERSUS SHREE HINDUMANDAL SACCOS................................................ RESPONDENT JUDGEMENT Date of last Order: 24/ 09/2024 Date of Judgement: 15/ 10/2024 MLYAMBINA. J. The Applicant herein seeks revision and substitution of dismissal order of the Commission for Mediation and Arbitration (herein CMA) which dismissed Labour dispute No. CMA/DSM/ILA/75/21/101/21 on 23/05/2024. The Applicant alleges to have been unlawfully suspended by the Respondent on 12th July, 2017. Thereafter, the Respondent instigated a criminal case against the Applicant at central Police station whereby she was arrested and released on condition that she had to report to central police station. That, when the police accomplished investigation, she was neither arraigned before the Court nor reinstated. Aggrieved by continuance of the said unpaid suspension, the Applicant lodged a Labour Dispute at the CMA on 03/02/2021. The said complaint was heard on merit. When composing an Award, the Arbitrator noted an objection which was raised by the Respondent in submission that the matter was time barred. The Arbitrator sustained the preliminary objection and dismissed the application. Dissatisfied by the CMA's decision, the Applicant filed the present application on the following issues: i. Whether dism issal order o f the Hon. Arbitrator dated 23/05/2024 in Labour Dispute No. CMA/DSM/ILA/75/21/101/21 by Hon. Muhanika J. is justifiable in law. ii. Whether continuous default in payment o f salaries is subject o f condonation. The application was argued by way of written submissions. The Applicant was represented by Counsel Josephine Raymond Assenga. On the other side, Counsel Armando Swenya, appeared for the Respondent. The grounds were jointly argued. Ms. Assenga submitted that, it is clear that the Applicant was suspended from work by the Respondent with no specific period of time and the Respondent instigated criminal case against the Applicant with no payment of full remuneration. That, the Respondent contravened Rule 27(4) and (5) o f the Employment and Labour Relations (Code o f Good Practice) Rules, GN No. 42 o f 2007 (herein GN. No. 42/2007). This state of affairs made the Applicant to seek the trial Tribunal's order against the Respondent due to reluctance of neither reinstating nor paying the Applicant's salaries arrears amounting to TZS 17,450,000/= from the date of suspension, that is 12/07/2017 to the date of lodging the complaint, that is 03/02/2021. It was the counsel Asenga's argument that under this circumstance whereby the Respondent did not terminate the Applicant, the Applicant is deemed to be employed by the Respondent and her claims for salaries arrears from the Respondent could not require condonation of the CMA. Thus, the complainant instituted her complaint at CMA on time on 03/02/2021. In support of her submission, counsel Asenga cited the case of Tanzania China Friendship Textile Co. Ltd v. Mahadson na Wenzake 1360, Revision No. 88 of 2008, High Court of Tanzania (Unreported) at page 5 whereby it was held that: Jopo halihitaji kuendelea kushuhudia udhalimu wa jinsi hii. Sasa basi linaona Marejeo haya yameletwa pasina sababu yoyote ya msingi na linayatupilia mbali na kuamuru muomba marejeo kuwalipa wajibu marejeo bila masharti mapunjo yao yote kwa miaka sita kuanzia 30/5/2006 siku walioleta mgogoro kurudi nyuma yaani hadi tarehe 30/05/2000. On the basis of the above cited decision, Counsel Asenga urged the Court to grant the application. In response, Counsel Swenya argued that Rule 10 o f the Labour Institutions (Mediation and Arbitration) Rules, 2007, GN. No. 64 o f 2007 (herein GN. No. 64/2007) states that all disputes shall be referred to CMA within 60 days except for disputes of unfair termination which has a limitation of 30 days. That, in the case at hand, the Applicant was terminated on 22nd August, 2019 and she referred the matter to the CMA on 3rd February, 2021 which is almost 501 days expiration which is contrary to the law. Counsel Swenya argued that the issue of time limitation is a jurisdictional issue, and it can be raised at any stage of the proceedings. In support of the argument, he referred the Court to the case of Sabrina Halfan Abdulrazaq v. SAYONA Drinks Ltd, Labour Revision No. 5 of 2022, High Court of the United Republic of Tanzania, Labour Division at Mwanza. In the referred case, the learned Judge further quoted the case of Mohamed Mohamed and Another v. Omar Khatib, Civil Appeal No. 68 of 2011 (unreported) at page 4-5 of the Judgement where the Court held inter alia that: It is elementary that in our civil justice system parties are bound by their own pleadings. We say so because it is from the facts and the evidence thereto that we can meaningfully be in a position to make a decision on whether or not the suit was time barred. Counsel Swenya went on to submit that the Applicant sued for unfair termination contrary to law without providing the reasons for delay in instituting the said case from the date when the cause of action arose to the filing date of the application. It was further contended by Mr. Swenya that the cited Rule 27(4) an d 27(5) (supra) and the case Tanzania China Friendship Textile Co. Ltd (supra) are distinguishable to the case at hand. In the upshot, he urged the Court to dismiss the application for lack of merit. Rejoining the application counsel Assenga reiterated her submission in chief. I have dully considered the rival submissions of the parties, records of CMA and of this Court as well as relevant laws. I find the Court is called upon to determine only one issue; whether the application was timely referred at the CMA. As rightly submitted by counsel Swenya, the time limit for referring disputes at the CMA is governed by Rule 10 o f GN. No. 64/2007. The provision provides as follows: 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 final decision to terminate or uphold the decision to terminate. (2) all other disputes must be referred to the commission within sixty days from the date when the dispute arose. In line with the above provision, disputes about fairness of termination are filed within 30 days from the date of termination. While any other disputes are filed within 60 days from when the cause of action arose. The claim of the Applicant before the CMA as indicated in the CMA FI was other disputes which as per Rule 10 (2) (supra) such disputes was supposed to be referred at the CMA within 60 days from the date when cause of action arose. The Applicant indicated in the CMA FI that the dispute arose on 12/07/2019 whistly, the case was filed at the CMA on 03/02/2021 without an application for condonation. Thus, the matter was filed out of time. It is my view that the argument of the Applicant having a criminal charge before the police would have merit in the application for condonation. The charges do not automatically warrant the Applicant to refer the dispute on the date of her own choice. Any violation of the law must be accompanied by justifiable reasons, short of that, the defaulting party will be penalized. The remedy for time barred application was stated in the case of Barclays Bank Tanzania Limited v. Phylisiah Hussein Mcheni, Civil Appeal No. 19 of 2016, Court of Appeal of Tanzania at Dar es salaam in which the Court held that: ...it would be inequitable if we allowed one party to an employment contract to disregard time in instituting a complaint against the other party. We think matters would not come to finality as required if a party who allows grass to grow under his feet and delays in instituting an action, would only be given an order to refile it. The very object of the law of limitation would be defeated for... In the premises, since the application was filed out of time without leave of the Court, the same deserves to be dismissed as it was rightly done by the Arbitrator. Consequently, the CMA's decision is hereby upheld. It is so ordered. Y J. MLYAMBINA JUDGE 15/10/2024 Judgement pronounced and dated 15th October, 2024 in the presence of the Applicant in person and Mr. Mashaka Pauline, the Respondent's