renister gotrip mnenuka and another vs mkurugenzi wa miito jimbo na makatekista jimbo katoliki la songea and another 2023 tzhc 17034 4 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LABOUR DIVISION) AT SONGEA LABOUR REVISION NO. 03 OF 2022 (Originating from the Original Award Decree of Decision No. CMA/RUV/SON/31/2022 of the year2022, Delivered by Mwaikambo, K. V (Arbitrator) on 22/07/2022 at Songea) RENISTER GOTRIP MNENUKA............... ....................... I*1 APPLICANT BERNARD MBECHA .............. ....................................................... 2nd APPLICANT VERSUS MKURUGENZI WA MUTO JIMBO NA MAKATEKISTA JIMBO KATOLIKI SONGEA ...... . 1st RESPONDENT BODI YA WADHAMINI JIMBO KUU KATOLIKI SONGEA............................................. 2nd RESPONDENT JUDGMENT Date of Last Order: 02/05/2023 Date of Judgment: 04/05/2023 U.E. Madelia, J. To begin with, this is an application for labour revision in which the Applicants herein seeks for revision of the Award of the Commission for Mediation and Arbitration at Songea in Complaint No. CMA/RV/SON/31/2022 between the above-named parties. As a matter of fact, the brief facts leading to the present application for revision are as follows; the Applicants were employed by the Respondents in the year 1994 and 1996 respectively. They were working as Catechists until 23rd i February, 2019 when along with two (02) others were suspended from their service on the suspicious allegation of theft. It is important to note that, in May 2022, the Applicants filed a complaint before the Commission for Mediation and Arbitration (CMA) at Songea against the Respondents challenging for their suspension. In their complaint they also attached an application form for condonation for late referral of a dispute (CMA F.2). On 22nd July, 2022 the application was for hearing. After receiving the Applicants- and the Respondents7 oral opening and closing remarks the Mediator that is none other than; Honourable Mwaikambo, K.V found the Applicants were late for more than three (03) years which is a total of one thousand, one hundred and sixty-four (1164). It seems to be true that, the Mediator also found the Applicants failed to give reasonable grounds for their delay, hence their application was dismissed. In that regard, an award was given in favour of the Respondents. Dissatisfied with that decision they preferred this application for revision of the said decision. It is. worth considering that, this application is made under section 91 (1) (a), 91 (2) and section 94 (1) (b) of The Employment and Labour Relations Act No. 06/2004 read together with Rule 2 24 (1) and (2) (a), (b), (c), (d), (e) and (f); Rule 28 (1) (a), (b), (c), (d) and (e) of The Labour Court Rules, GN. No. 106 of2007. The application is accompanied with a notice of application which is supported by an affidavit sworn by the 1st Applicant. According to paragraph nine of the affidavit, the Applicants" grievances are to the effect that the Arbitrator misdirected by dealing with their complaint as termination complaint while it was a complaint for suspension. They are lamenting that the proceedings of the Commission were manifested with an irregularity which led to injustice to the Applicants as it was decided contrary to the Labour Institutions (Mediation and Arbitration Guidelines) Rules, GN No. 67 of2007. In this application the Applicants were unrepresented whereas the Respondents enjoyed the services of none other than, the learned advocate Mr. Hilary Ndumbaro. Principally, with the leave of this Court this application was disposed of by way of written submissions. The parties submitted their submissions which enabled this Court to compose this judgment. Notably, the Applicants in their long-written submissions submitted that there were some irregularities which were manifested before the 3 Commission for Mediation and Arbitration. Generally/ in their written submissions the applicants' grounds of grievances are angled into four (04) main points: One/ that there is no time limitation for the dispute relating to suspension but for termination of employment only. Two, that the issues for determination were not framed by the arbitrator. Three, that the parties were not given opportunity to call witnesses. Four, that the dispute was for suspension however it was dealt as if it was a dispute for termination which is contrary to the law. In short those are the main claims that are found in a long-written submissions of the Applicants. On the issue of time limitation, the Applicants argued that disputes relating to suspension can be lodged before the Commission for Mediation and Arbitration (CMA) at any time as there is no time limitation on such kind of complaint but for complaints relating to termination of employment only. The Applicants referred this Court to Rule 27 (4) of the Employment and Labour Relations Act (Code of Good Practice) GN. No. 42 of 2007, which reads as follows: "The period of suspension must be reasonable, taking into consideration how long the investigation and the decision on any further action may take." 4 On the same note, they emphasized that the Commission was wrong by dealing with the issue of time limitation while there is no time limitation on complaints relating to suspension. Also, the Applicants also argued that the Arbitrator failed to narrow the issues for determination as required under Rule 22 (1), (2) (a), (b), (c), (d) and (e), Rule 23 (1), (2), (3), (4), (5), (6), (7) and (8) of the Labour Institutions Act (Mediation and Arbitration Guidelines), Rules, GN. No. 67 of 2007. They submitted that failure to narrow the issues before determination of the complaint led to an unjust decision. Furthermore, the Applicants in their submission also submitted that the parties were not given opportunity to call witnesses before the Commission which was contrary to Rule 25 (1), (a), (i), (ii), (b), (i), (ii), (c), 25 (2) and 25 (3) of the Labour Institutions Act (Mediation and Arbitration Guidelines), Rules, GN. No. 67 of 2007, which gives guidelines on how mediation and arbitration must be conducted before the Commission for Mediation and Arbitration (CMA). The Applicants submitted that the dispute was for suspension however it was dealt as if it was a dispute for termination which is contrary to the law. They further narrated the suspension procedures as stated 5 under Rule 27 (1), (2), (3) (a), (b), and (4) of the Employment and Labour Relations Act (Code of Good Practice) GN. No. 42 of 2007. In fact, they further lamented that if their complaint would have dealt properly the decision reached would have been different from what was decided by the Arbitrator. Notably, the applicants further reiterated that there is no time limit on disputes relating to suspension. The Applicants concluded by stating that they were unfairly suspended since there is no evidence to prove that they were involved on the suspicion of theft in the office of the Respondents and they prayed for this application to be granted. On the other hand, the Respondent's learned advocate in his reply averred that the Applicant's assertions that there are errors and irregularities in the procedures of the Commission (Arbitrator) as it failed to comply with the applicable rules of arbitration are misconceived. He further added that before the Commissioner for Mediation and Arbitration the Applicants referred their complaint by filling a complaint form (CMA F.l) which was accompanied by a condonation form (CMA F.2) seeking for their complaint to be determined out of time as their complaint was presented before the Commissioner for Mediation and Arbitration out of the time prescribed by the law. 6 Mr. Ndumbaro further contended that before going into the merit of the complaint laid by the Applicants. In fact, the Arbitrator was to determine the application for extension of time which was made by the parties in the condonation form (CMA F.2). He argued that it was mandatory to determine that application first in order to find out the jurisdiction of the Commission for Mediation and Arbitration to deaf with the complaint. Similarly, he added that before the Commission for Mediation and Arbitration both parties were availed with a chance to address on the issue of extension of time and in making its decision the Commission for Mediation and Arbitration found the Applicants had no good cause to justify why they failed to refer the matter on the prescribed time. The Respondent's learned advocate further submitted that the Applicants were late for one thousand, one hundred and sixty-four (1164) days which were not accounted for. As a result, the Commission for Mediation and Arbitration decided to dismiss the application. To cement his submission, he referred this Court to the decisions made in the case of 21st Century Food and Packaging Ltd v. Emmanuel Mzava Kimweri, Labour Revision No. 158 of 2008, Tanzania Fish Processors Ltd v. 7 Christopher Luhanga, Civil Appeal No. 11 of 1994, Court of Appeal at Mwanza (unreported) and Igunga Cotton Ltd. v. Godfrey Ndihi Mwandu, Revision No, 26 of 2009 (unreported). Finally, the respondents' learned advocate argued the what the Applicants were required to do in their application for condonation was to prove that they had good and sufficient cause for the delay in order for the Commission to grant for the extension of time to determine the complaint laid before it. Furthermore, he added that the award issued by the Commission for Mediation and Arbitration was correct and the allegation that the Arbitrator failed to narrow the issues for determination is misconceived since the Commission for Mediation and Arbitration wouldn't have narrowed them before deciding whether it has jurisdiction to entertain the complaint. Lastly, he concluded that this application has no merit and he prayed for it to be dismissed. It is worth considering that, the issue is whether the Applicants adduced sufficient reasons for an extension of time for their complaint to be heard out of time. In fact, I have passed through the records of the Commission and found the Applicants were Catechists, they filed their 8 complaint on suspension and along with it they attached a condonation form seeking for their complaint to be heard out of the legally prescribed time; After looking on the records, it is clear that the Applicants filed their complaint before the Commission (CMA) after three solid years from the date of suspension. As much as I am concerned, I also passed through the suspension letter and realized that the Applicants were suspended from work and there was the requirement that their suspension was to be discussed by Bombambili Parish pending investigation on the allegation of theft in the office of the Respondents at Msamala Catholic Church on 31st January, 2019. The letter also states that after investigation, about three weeks later, for good and genuine intentions they asked the director to receive them in his office so that they can continue with the investigation and they wished the director good investigation. But after that they did not give the results of the investigation until the Applicants filed their complaint at CMA. As a matter of fact, I find for an order of extension of time to be granted for a labour dispute to be heard out of time, the Applicants were required to adduced sufficient reasons for the delay. 9 Principally, looking at the instant application, I find the letter which was given to the Applicants made the Applicants to file their application out of time. I find the delay was caused by the Respondents who failed to give the investigation report on the alleged theft. I condone the Respondents for their delay. I find the Applicants had sufficient reasons for their dispute to be referred late before the CMA, thus, they were entitled to be heard out of time. I find it is clear that the issue that the CMA failed to consider that the Applicants were waiting for the response from the Respondents on their suspension. For that reason, I am of the view that the CMA did not exercise its discretion as required by the law. I hereby quash and set aside the award granted by the CMA that denied the Applicants the right to be heard out of time. Therefore, in the exercise of this Court's, I extend time for the Applicants complaints to be heard and determined out of time before the CMA. I order that the case records in respect to file No. CMA/RUV/SON/31/2022 of the year 2022 be remitted to the Commission (CMA) at Songea for continuation of the hearing of the Applicants' complaint. I give no order to costs. Order accordingly. 10 DATED and DELIVERED at Songea this 04th day of May, 2023. < ’ ; ' AU.E MADEHA C'VA'.’;. • W O V JUDGE . 04/05/2023 COURT: Judgment delivered on this 4th day of May, 2023 in the presence of the Applicants and in the absence of the Respondents. The Respondents to be notified. Right of appeal is explained. U. E. MADEHA JUDGE 04/05/2023 ii