sabena technics dar ltd vs michael j luwunzu 2020 tzhcld 95 24 april 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 807 OF 2019 BETWEEN SABENA TECHNICS DAR LIMITED................... APPLICANT VERSUS MICHAEL J. LUWUNZU.............................. RESPONDENT JUDGMENT Date o f Last Order: 25/03/2020 Date of Judgment: 24/04/2020 S.A.N. Wambura. J. The Applicant sabena t e c h n ic s d a r lim it e d filed the present application seeking to revise the decision/ruling of the Commission for Mediation and Arbitration [herein to be referred to as CMA] which was delivered on 18/10/2019 in Labour Dispute No. CMA/DSM/ILA/501/19. The application is made under the provisions of Rules 24(1), (2)(a)(b)(c) (d)(e)(f), (3)(a)(b)(c)(d), (ll)(b), 28(l)(a)(c)(d)(e), 50 and 55(2) of the Labour Court Rules, GN No. 106 of 2007. The application was supported by the affidavit of Mr. Benson Adam Mahanu, the applicant's Advocate. The respondent m ich a e l j. lu w u n zu bitterly challenged the application through his counter affidavit. The background of the dispute in brief is that, on 01st December, 2013 the respondent was employed by the applicant as a Line Air craft Maintenance Engineer for an unspecified period of time. On 12th June, 2019 the respondent referred the dispute to CMA on the allegation that he was constructively terminated from employment. The Mediator decided the application ex-parte in favour of the respondent as the applicant herein failed to enter appearance on the hearing date. Aggrieved by the ex-parte award the applicant filed an application before CMA to set aside the ex-parte award. His application was dismissed for lack of merit on 18/10/2019 by the same Mediator. The applicant being resentful with the Mediator's decision has filed thepresent application to revise and set aside the CMA's ruling of 18/10/2019 of refusing to set aside the ex parte award. At the hearing of the application both parties enjoyed the services of learned advocates. Mr. Benson Adam Mahuna appeared for the applicant whereas Mr. Odhiambo Kobas appeared for the respondent. At the hearing Mr. Mahuna prayed to adopt his affidavit in support of the application to form part of his submissions. In his affidavit he raised 11 grounds of revision. However in his submissions he consolidated his grounds for revision to form only two grounds of revision to wit; (i) The applicant was not properly served. (ii) The mediator acted ultra virus. Arguing on the first ground he submitted that, Rule 7 of The Labour Institutions (Mediation and Arbitration) Rules, 2007 GN No. 64 of 2007 (herein GN. No. 64 of 2007), was not complied with because the summons issued on 21/06/2019 and 16/07/2019 and attached by the respondent in the counter affidavit do not show the dates when they were served. The 2nd summons was served on 08/07/2019 but was never attached which causes confusion. He stated that, the applicant could not be served on the date scheduled for mediation. 3 Mr. Mahuna submitted that, the said Abdallah Misanya whom the respondent alleged to have received the disputed summons, was terminated on 26/03/2019 before the date of receipt of the summons. It means the summons was served to a person who was no longer an employee of the applicant. As for Claude Sesau, the learned counsel contended that he was never employed by the applicant. That even the list of NSSF contributors attached does not indicate his name as among the applicant's employees. On the powers of the Mediator, Mr. Mahuna submitted that he acted ultra virus by delivering an award in the capacity of an Arbitrator when the matter had not yet been referred to Arbitration. He referred to the cases of Tanga Cement Co. Ltd Vs. Leah Mchome, Labour Revision No. 15 of 2009 and Aga Khan Foundation (FMFA) Vs. Rainald Chinguile, Labour Revision No. 2 of 2014 where it was held that:- "The Mediator cannot arbitrate a dispute. It was thus wrong for the Mediator to appoint herself as an Arbitrator". The learned advocate argued that CMA Form No. 1 which initiates proceedings at CMA only has a signature but does not show the name of the receiver contrary to Rule 7 of GN No. 64 of 2007 as was held in the case of Muro Investments Co. Ltd Vs. Alice Andrew Mlela, Civil Appeal No. 72 of 2015. Mr. Mahuna further stated that, the applicant does not have an office in Tanzania. He submitted that, the summons were for Dispute No. CMA/DSM/ILA/501/19. But the Mediator mentioned a different number and recorded the name of the Advocate as Juvenalis Ngowi which implies the Mediator was biased. That the Mediator issued an ex parte award without notifying the applicant the date of the award. To strengthen his argument he referred to the case of Chausiku Athumani Vs. Atuganile Mwaitege, Civil Appeal No. 122 of 2007 where it was held that the applicant was entitled to be notified of the date of the delivery of the award. Mr. Mahuna contended that, the Arbitrator issued two summons within sixteen (16) days. The initial period for mediation is thirty (30) days without inquiring on the absence of the applicant. This denied the applicant the right to be heard as held in the case of Muro Investments Co. Ltd Vs. Alice Andrew Mlela (supra) and was contrary to the principles of natural justice. He therefore prayed for the application to be allowed. Responding to the grounds of revision Mr. Kobas also prayed to adopt the respondent's counter affidavit to form part of his submissions. On the first ground he submitted that, service of summons is guided by Rule 6 (a) (1) of GN No. 64 of 2007. The summons was served to the persons who were in charge of the applicant's Office (Terminal II at the Airport) At the time of service, one Abdallah Misanya - a Driver and Mr. Claude Sesau - engineer stamped them with an official stamp of the applicant. The name of the person who served the summons is indicated as one Hillary an Advocate who signed and the same is dated. He submitted that, Rule 6(l)(a)(iii) GN No. 64 of 2007 covers that situation on a person in charge of the Office at the time of service. Mr. Kobas further stated that, Rule 6(l)(d) GN No. 64 of 2007 requires service to be effected by registered post and service was so effected by EMS and by DHL. Proof of service was tendered at CMA as stated in paragraph 7 of the respondents counter affidavit. That the document was also sent by email to the applicants Principal Officer as stated in paragraph 3, 4, 5 and 6 of the counter affidavit, the fact which has never been challenged by the applicant. This is per Rule 6(1) (c) of GN. No. 64 of 2007. He submitted that, Fax is substituted by emails and it's a mode accepted by this Court. He insisted that, the respondent complied with the law and the applicant was duly served. He therefore prayed that the email be accepted as proof of service. On the allegation that the Mediator acted ultra virus of his powers, he r submitted that, it was within his power as provided for under Section 87(3)(b) of Employment and Labour Relations Act, 2004 [CAP 366 R.E 2019] which gives the Mediator powers if one of the parties fails to enter appearance. That the section is in line with Rule 14(2)(a)(ii) of The Labour Institutions (Mediation and Arbitration Guidelines) Rules GN No. 67 of 2007. In rejoinder Mr. Mahuna reiterated his submissions in chief and insisted that the emails were not tendered at CMA and they are different from fax. He thus prayed for the prayers in the Notice of Application and Chamber Summons to be granted. 7 In the case at hand I have noted that parties have invested much time to contest on the award which in my view is not the gist of the application at hand. The aim of this application is to revise the decision of CMA on refusal to set aside ex parte award so as to allow parties to be heard interparties. Has the applicant has adduced sufficient reasons for the grant of the application at hand? It is an undisputed fact that the application before CMA was heard ex parte since the applicant failed to attend mediation. Now did the applicant adduce sufficient reasons for failure to attend mediation hearing? From the submissions of both parties that:- I have gathered on 10/06/2019 CMA Form No.l was sent in person by the respondent to the applicant's office and it was signed and stamped by the person not identified in the said document. Again on 08/07/2019 another summons was served to the applicant by the respondent's advocate Mr. Hillary and it was received by Abdallah Misanya. On 12/07/2019 yet another summons was sent through a registered post office address of the applicant and on 16/07/2019 another summons was sent to the applicant in person and it was received 8 by Claude Sesau. In addition, the respondent emailed the applicant's Principal Officer and informed them of the existence of the said dispute. The applicant's main reason for failure to attend mediation is that he was not served. The respondent attached summons to prove that the applicant was dully served. The applicant has disputed that fact and alleged that the persons who received the said summons were not his employees. The law governing service of summons in this matter is Rule 6 of GN No. 64 of 2007 as rightly submitted by the respondent which provides as herein quoted "Rule 6(1) A party shall serve a document to the other party- (a) By delivering or handing a copy o f the document to (i) The person concerned; (ii) A representative authorized in writing to accept service on behalf o f the person; (Hi) A person who appears to be at least 18 years old in charge of the person's place of residence, business or place of employment at the time; (iv) A person identified in sub-rule (2)." [Emphasis is mine]. In the instant matter summons were served in different ways as elaborated above. It was served in person to the persons known as Abdallah Misanya and Claude Sesau whom the applicant is alleging that they were not his employees. Now the question is if they were not his employees as claimed how did they have access to the applicant's office and assume the responsibility of stamping and signing the said summons? With regard to Abdalah Misanya the applicant in his submission agreed that he was his former employee. Therefore it is presumable that he knew the whereabouts of that person. In my view if he was no longer his employee it was the applicant's duty not to allow him to have access to his office. Since he did not discharge such duty and let him assume his responsibility as if he was still his employee, he therefore consented to any administrative action done by him. Therefore the applicant was duly served through his alleged former employee one Abdalah Misanya. In his submission the applicant alleged that he does not have an office in Tanzania. I have found this very interesting. The name of the 10 Company has the word "DAR" which is in Dar es Salaam, Tanzania. How could they file this application if they do not have a registered office in Tanzania. But again the applicant did not dispute the stamp in the alleged summons to be of his office and has a postal address in it and it is on record that the applicant was served through his post office address. Nor does the applicant dispute employing the respondent, Abdallah and other employees as per the NSSF contribution list. How could they contribute to NSSF if they were not his employee? The said Claude Sesau is a foreigner, so his name could not appear in the list of employees contributing to NSSF if it is not part of his terms of employment. If the applicant had changed his address he was duty bound to put his record clear and known to the respondent to avoid any doubts. Moreover, the law requires a document to be sent to the address last known of the party. This is in accordance with Rule 6(l)(d) of GN. No. 64 of 2007 which was adhered to accordingly. The applicant also alleged that they became aware of the matter at hand when an audit exercise was conducted in their office. However he did 11 not state which document was found during the audit. Moreover, how could it be possible to conduct auditing if they do not have an office in Tanzania? And if at all there was a document in their office indicating that there was a dispute referred to CMA, it implies that they were dully served but deliberately neglected the notice. With regard to the emails attached, I believe the same ought to have been tendered at CMA as parties cannot bring new evidence at this stage. All in all under the circumstances of this case, there is no dispute that the applicant was duly served with summons to enter appearance at CMA but they opted not to do so and no sufficient cause has been adduced by the applicant for not doing so as they were dully notified. Since the applicant did not adduce sufficient reasons for failure to attend mediation, I find no justifiable reasons to fault with the Arbitrator's decision. It has been stated that the mediator was wrong in turning oneself into the Arbitrator. As rightly submitted by the respondent's counsel the Mediator is empowered to decide the dispute when the respondent fails to 12 appear on a date fixed for mediation. This is in accordance with Rule 14(2) GN No. 64 of 2007 which provides that:- "Ru/e 14(2) Where a party fails to appear at mediation, the mediator may do the foliowing- (a) In the case o f complaint the Mediator may postpone the hearing in accordance with Rule 15 or may- (i) Dismiss the complaint if the referring party fails to attend a mediation hearing during the initial 30 days period; (ii) Decide the complaint if the other party to complaint fails to attend a mediation hearing." [Emphasis is mine]. In the case of Quality Group Ltd. Vs. Philbert Alex Chesso, Lab. Div. DSM, Rev. No. 294 of 2009, [2011-2012] LCCD 1, this Court held that:- "it was proper for the Mediator to decide when the respondent did not make appearance at the hearing of 13 the mediation. Thus this application is baseless and it is accordingly dismissed". Therefore in the basis of the foregoing I find that the mediator did not act ultra virus by turning himself into an arbitrator. He was acting in accordance with the powers vested to him as per the Rule 14(2) of GN 64 of 2007. Having found that the applicant did not adduce sufficient reasons to fault with the Arbitrator's decision, I find the present application lacks merit and it is accordingly dismissed. 3MDGE 24/04/2020 14