20131107 TZHC Mbeya2

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT MBEYA - REVISION NO.45 OF 2013 SHIDA CHING'( M . .L#Iiusiuii.uu.i...u.iuuuui...i....... ..1.APPLICANT

VERSUS MANAGER AK'S MODERN DRY CLEANERS ..... RESPONDENT (Orii/na// CMA/MB Y/1 71/2012)

JUDGEMENT 1/11/2013 &711112013 Aboud,J This is application for revision filed by the applicant, Mr. Shida Ching'ombe against the ruling of the Commission for ..M'ediation and Arbitration (CMA) at Mbeya on Complaint { . No.CMA/MBY/171/2012 against his employer Manager AK'S Modern Dry Cleaner, the respondent herein. 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 was out of time, so he filed CMA FORM NO.7 for condonation on 30/10/2012. The dispute between the applicant and the 1 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. 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 respondent 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 3011012012, 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 4 1 VIEW HOTEL immediately after the 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 complaint 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 applicant evidence to prove his

health problem, that the clinic notes did not reflect that he was unable to lodge his complaint but just indicated that he was attending diabetic clinic as he normally used to do. even before he was terminated from his employment. Therefore he prayed the court to throw out the application for lack of merit. 3 4. I. have gone through the records of the CMA, the court's record and the submissions made by the parties and I have the 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 filed 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 FORM 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 evidence does not tell more about the applicant condition, that whether he was admitted or was seriously on bed between 3/2/2012 and 8/2/2012 that he could not move to go and lodge his complaint within the prescribed time in law. In my view the Arbitrator correctly held as he did that there was no good cause to allow the applicant to lodge his complaint out of time. The Arbitrator considered the evidence of both parties as rightly admitted by Mr. Muya in his submission when he said he did so but wrongly reached his conclusion. With respect, the Arbitrator reached the correct decision as he found the reason give by the applicant was not good cause because the applicant was attending the clinic even before he was terminated from the employment as evidence by the respondent and remained undisputed at the CMA. The law requires that a dispute for unfair termination as the applicant intended to lodge at the CMA should be referred to it within thirty (30) days as it is provided for in Rule 10 (1) of the Labour Institutions (Mediation and Arbitration) Rules, GN. 64 of 2007, which reads; 5 "Dispute about the fairness of an employee's term

ination of employment must be 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 goes with smoke for lack of merit. it is dismissed accordingly. It is so ordered. Y. I.DIIABOUD . JDGE '- 7/11/2013 , 11 Date: 7/11/2013 Coram: Hon. I.D.Aboud,J Applicant: Present For Applicant Respondent: Present For Respondent: CC: J.Mbasha Order: Judgement delivered on 7/11/20 13 in the presence of both the Applicant and Respondent. -' : •k t I. D.Aboud: )UDGE2 7/11/2013 7