salehe omary mfagavo others vs mwinyi lodge 2020 tzhcld 21 13 march 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO 529 OF 2019 BETWEEN SALEHE OMARY MFAGAVO & 3 OTHERS.................... APPLICANTS VERSUS MWINYI LODGE.........................................................RESPONDENT JUDGEMENT Date of Last Order 19/02/2020 Date of Judgment 13/03/2020 MWIPOPO, J This is application for Revision where the applicants calls upon the court to examine and revise the Commission for Mediation and Arbitration (here in the CMA) award in dispute No. CMA/DSM/ILA/R.2117/258 which was delivered by Hon. Kiagi, N. Arbitrator on 29th March, 2018. The application is made under section 91(l)(a), 92(2)(c), section 94(l)(b)(i) of the Employment and Labour Relations Act, No.6 of 2004 (ELRA) as amended: Rule l 24(l),24(2)(a)(b)(c)(d) and Rule 28(l)(c)(d)(e) of Labour Court Rules, GN No. 106 of 2007 and any other enabling provisions of the law. The background of the dispute in brief is that the applicants were employees of the respondent working in different position at Mwinyi lodge since 2014 up to 2016 when they were terminated from employment. The reason for the termination was renovation. Aggrieved by such termination, the applicants referred the matter to CHADAWU then at CMA. CMA determined the matter and found the application was time barred. Being dissatisfied with the CMA award the applicants filed the present application. Both parties were represented at the hearing of the application. Mr. Edward Simkoko (Personal Representative) appeared for the applicants whereas Ms. Victoria Mgonja Advocate appeared for the Respondent. Hearing proceeded orally and Mr. Simkoko prayed for the applicant's joint affidavit to be adopted and form part of his submission. He argued that the applicants were suspended from employment on September 2016 for the reason that the lodge needed to be renovated. During suspension period the applicants believed that they were still employed and respondent continued to give them some money even though it was not a salary. 2 He further argued that it was on 15/12/2016 when the respondent declared termination of applicants employment when the applicants where legally terminated. According to Rule 10(1) of the Labour Institution Act (Mediation and Arbitration Guidelines) GN No. 64 of 2004 provides for the time limitation for instituting a dispute at CMA which is 30 days from the date of decision. He was of the view that since the final decision of the Respondent to terminate the applicants was made on 15/12/2016 and the labour dispute was instituted on 2nd January 2017 therefore the dispute was instituted within a time provide by the law. Further Mr. Simkoko Submitted that, according to section 39 of Employment and Labour Relation Act, 2004, (ELRA) the respondent had a duty to prove that the termination was fair. He went on by arguing that the respondent failed to adhere to the mandatory provisions of the Employment and Labour Relation Act of 2004 and he prayed for the award to be revised and set aside. In reply Miss Victoria prayed to adopt the counter affidavit of Halima Hiza who is Principal Officer of the Respondent to form part of her submission. She argued that the arbitrator award had no abnormalities or error. The applicants instituted the labour dispute before CMA out of time 3 contrary to the requirement of the law. On 04/05/2017 they filed the preliminary objection (P.O.) because termination was on 05th September 2016 and the matter was filled on 15th January 2017. The termination of employment contract occurred when they signed the agreement. The termination later was admitted in the CMA as Exhibit Dl. She went on to say that during testimony PW1 and PW2 admitted that on 05th September 2016 was the last day to work at Mwinyi Lodge. She further argued that, according to rule 10(1) of G.N No. 64 of 2007 the dispute about the fairness of employee termination of employment must be referred at CMA within 30 days from the date of determination. Thus the arbitrator was right to give the award. She was of the view that the applicant remedy is to file the application again in the CMA since the dispute was not determined on merit. In rejoinder Mr. Simkoko stated that Exhibit D l was not a termination latter. The termination of applicants' employment was communicate orally on 15/12/2016. He emphasized his prayer in submission in chief for the application to be allowed. 4 I have gone through submissions of both parties and the CMA record. There are three issues for determination in this case. These issues are as follows; i) Whether the applicants were terminated on 15th December 2016? ii) Whether the matter before CMA was filled out of time? iii) What are the reliefs entitled to each party? In regards to the first issue as to when the applicants were terminated by the respondent, the applicant have submitted that the termination was on 15/12/2016. The reason for the submission is that the respondent communicated the termination to the applicants on 15/12/2016 in the meeting between applicants, respondent and CHODAWU representative following complaint by applicants. The applicants submitted that in September 2016 the respondent told applicants that the lodge will be renovated as result their employment will be temporarily suspended until the renovation is completed then they can resume working. The 1st and 2nd applicants continued to work for some time despite the fact that the lodge was in renovation. Therefore it was on 15/12/2016 when they were told that 5 their employment was terminated and this is the date of termination of employment. The applicants submitted further that the alleged termination latter - Exhibit D1 do not qualify to be a termination latter. On the other hand the respondent submission is that the termination of applicants'employment was done on 05/09/2016 by a latter of termination - exhibit D1 which was signed by each of the applicants. Respondent submitted that during testimony PW1 and PW2 admitted that on 05th September 2016 was the last day to work at Mwinyi Lodge. And until the dispute was determined by the CMA the lodge was still closed. Section 39 of Employment and Labour Relation Act of 2004 (ELRA) provides for the duty of the employer to prove that the termination was fair. The'- section reads as follows; - "Section 39 In a n y p ro ce e d in g s co n cern in g u n fa ir te rm in a tio n o f an em ployee b y an em ployer, th e em p lo yer s h a ll p ro ve th a t th e te rm in a tio n is fa ir". In the present case the respondent tendered Exhibit D1 (agreement/termination latter) and Exhibit D2 (petty cash voucher) which was admitted before CMA. Exhibit D1 shows that there was an agreement 6 between respondent and applicants to end their employment relation due to financial difficulties. The applicants signed the latter (Exhibit Dl). Exhibit D2 which is a petty cash voucher shows that applicants were paid some amount of money on 05/09/2016 by the respondent. The applicants signed Exhibit D 2 as a proof that they received payment from the Director of the respondent. Those payment obvious were not salaries and the petty cash voucher reads "malipo ya asante kutoka kwa Mkurugenzi". This shows that applicants were paid some money by the respondent, the money which was not salary and the signed to receive the money. It is my view that the money paid was terminal benefit. It is my opinion that exhibit D l and D2 prove that termination of applicants' employment was on 15/09/2016 that is the reason the respondent paid them as exhibit D2. I find that the applicants were terminated on 05/09/2016 and noton 15/12/2016 as they allege. Therefore, the answer to first issue is negative. In regard to the issue whether the matter before CMA was filed out of time, the Labour Institutions Act (Mediation and Arbitration Guidelines) GN No. 64 of 2004 provides in rule 10(1) for the time limit for filing dispute about fairness of termination of employment. The provision reads as follows: 7 Rule 10 (i); D isp u te a b o u t th e fa irn e ss o f an em p lo ye e 's te rm in a tio n o f em ploym ent m u st be re fe rre d to th e com m ission w ith in th irty d ays from th e d ate o f d e te rm in a tio n o r th e d a te th a t th e em p lo yer m ade a fin a l d e cisio n to term in ate. The evidence in the record shows that the applicants filed the labour dispute at CMA on 2nd January 2017. As I have made finding in the first issue that the applicants termination was on 05/09/2016, then the dispute before the CMA was filed out of time. According to rule 10(i) the applicants were supposed to refer the dispute to the commission within thirty days from the date of termination of employment which in the present case is 05/09/2016. Therefore the dispute was supposed to be referred to the Commission by < 05/10/2016. Therefore I agree with the CMA finding that the applicants referred the labour dispute out of time without proof that they applied first for condonation. In regards to the issue of the remedy in this case, as the answer to the first two issues are in negative then the applicants herein cannot enjoy any remedy. For the above mentioned reason I find the Application have no merits and it is dismissed in its entirely. 8 I uphold the CMA award. A.E. Mwipoi JUDGE 13/03/2016 9