20131107 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA ----------AB_OUR DIVISIO~N_ _ _ _ _ _ _ _ _ _ __ ATMBEYA REVISION NO.45 OF 2013 SHIDA CHING'OMBE ...................................... APPLICANT VERSUS MANAGER AK'S MODERN DRY CLEANERS ..... RESPONDENT (Original/ CMA/MBY/171/2012) JUDGEMENT 1/11/2013 &7/11/2013 Aboud,J This is application for revision filed by the applicant, Mr. Shida Ching'ombe against the ruling of the Commission for Mediation and Arbitration (CMA) at Mbeya on Complaint No.CMA/MBY/171/2012 against his employer Manager AK'S .~odern Dry Cleaner, the respondent Aerein. Briefly, the facts of the complaint are that, the applicant lodged his complaint No. CMA/MBY/171/2012 to the CMA against his employer, the respondent herein. The applicant complaint \.'Vas out of time, so he filed CMA FORM NO. 7 for condonation on 30/10/2012. The dispute between the applicant and the 1 l! I respondent is for unfair termination of employment where it arose on ----- 25/1/2012. The CMA -~--·-·~--- -- determined - - ~-- ,------ the ~----- application - -- for --- - - - - - condonation in the result dismissed it because the applicant failed to show good cause as to why he delayed to file the complaint within the prescribed time in law. During the hearing of this application, the applicant was represented by Mr. Daniel Muya, learned counsel while the respondent appeared in person. r In his submission, Mr. Muya for the applicant strongly submitted that the Arbitrator erred in law and fact in not considering the evidence by the applicant that he delayed to file his complaint due to the reason that he had health problems as he is diabetic. Mr. Muya said that the evidence adduced at the CMA, that is the clinic notes clearly showed that the applicant was sick immediately after his employment was terminated by the rP.spondent on 25/1/2012. Therefore; the applicant could not ,.: lodge his complaint until when he felt better, this is the reason that he filed his CMA FORM NO.7 on 30/10/2012, almost nine months (9) from when the action arose. Mr. Muya further submitted that the Arbitrator wrongly reached the decision that the applicant was employed by the HILL 2 VIEW HOTEL immediately after th~ __ respondent terminated his ---- - --employment while the evidence before it indicated clearly that the applicant was employed after he had lodged his complaint at the CMA. He therefore concluded that the Arbitrator erred in law and fact in not considering the health condition of the applicant and found that the application for condonation had no merit. He prays that the court allow the applicant to file his ~omplaint at the CMA out of time and be decided on merit. Resisting the application, the respondent submitted that, the reason for the applicant's delay to lodge the complaint at the CMA was not a good cause as he had all the time from when the action arose on 25/1/2012. He said the reason that he had health problem, to wit diabetes was not a good cause as the evidence adduced to prove such facts was carefully considered by the Arbitrator and found to have no merit. The respondent said the ar"'licant evidence to prove his health.,problem, that the clinic 1otes did not reflect that he was unable to lodge his complaint >ut just indicated that he was attending diabetic clinic as he ,ormally used to do even before he was terminated from his mployment. Therefore he prayed the court to throw out the Jplication for lack of merit. 3 I have gone through the records of the CMA, the court's -record an-d-th-e-submissions-m-ade-ey-tRe -parties---and-I~bave_th.e following considered observation:- That the applicant lodged his application for condonation on 30/10/2012 which clearly indicates that his employment was terminated on 25/1/2012. This is reflected in his CMA FORM 7. However there CMA FORM 1 which is dated 3/2/2012 but was not fi 1~d and in that form the applicant indicated his address for service is HILL VIEW HOTEL. From these records it is clear that by 3/2/2012 the applicant was in good condition as he admitted in his affidavit that he went to collect the CMA FORM 1 on 3/2/2012. However the applicant did not lodge his complaint. He gave the reason that he was sick and was attending the clinic as per the clinic note tendered as evidence at the CMA. I asked myself that if at all the applicant managed to collect the CMA -')RM 1 on 3/2/2012 and the --clinic ..,, note indicated that he attended for the first time at the Mbeya Referral diabetic clinic on 8/2/2012, then when did he fell sick to the extent that he could not lodge the complaint on time? I have however considered the argument by the applicant counsel, Mr. Muya that the clinic note was enough evidence to prove the health condition of the applicant, but with due respect to Mr. Muya that piece of 4 !Virl~nce does not tell more about the applicant condition, that ihether he was admitted or was serio_usJy_o_n_bed_betw-een-----'-- /2/2012 and 8/2/2012 that he could not move to go and lodge is complaint within the pr~scribed time in law. In my view the .Arbitrator. correctly held as he did that there ras no good cause to allow the .applicant,to ·lodge his complaint ut of time. The; Arbitrator considered the. evidence of both arties as rightly admitted by Mr. Muya in his submission when he iiL _1e did so qut wrongly reached his conclusion. With respect, ,e Arbitrator reached the correct decision as he found the reason ve by the applicant was not good cause because the applicant as attending the clinic even before he was terminated from the nployment as evidence by the respondent and remained 1disputed at the CMA. The law requires that a dispute for unfair termination as the pli"':;int intended to lodge at the CMA spould be referred to it thin thirty (30) days as it is provided for in Rule 10 (1) of the bour Institutions (Mediation and Arbitration) Rules, GN. 64 of 07, which reads; 5 "[_":_ 7c.-----,~ --~--- ----- 1 "Dispute about the fairness of an employee's -----,,termination-of-employment mustoe referred to the Commission within thirty days" The fact that the applicant did not comply with the above requirement of the law and that he failed to show good cause which led him to delay in referring his dispute on time I found no reason to fault the CMA _decision. In the result this application - ~oes with smoke for lack of merit. It is dismissed accordingly. It is so ordered. 6 ~- ' ~- --- -~- ~ ----~ Coram: Hon. I.D.Aboud,J Applicant: Present For Applicant Respondent: Present For Respondent: _CC_:_J ..Mbasha __ . ---·--- _________ -------·· Order: Judgment delivered on 7/11/2013 in the presence of both the Applicant and Respondent. i ' I! 7