stella edward magai vs bulyannhulu gold mine 2021 tzhcld 21 12 march 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION PAR ES SALAAM REVISION NO. 214 OF 2020 BETWEEN STELLA EDWARD MAGAI...................................................... APPLICANT VERSUS BULYANHULU GOLD MINE.................................................... RESPONDENT JUDGEMENT Date of Last Order: 10/03/2021 Date ofJudgement: 12/03/2021 Aboud, J. The applicant stella edward magai, filed this application seeking revision of the decision of the Commission for Mediation and Arbitration (herein CMA) in the Labour Dispute No. CMA/SHY/152/2015/16/87 delivered by Hon. Muhanika, Arbitrator on 01/11/2017 in favour of the respondent herein. The application is made under section 91 (1) (a), 94 (1) (b) (i) and section 91 (2) (c) of the Employment and Labour Relations Act [CAP 366 RE 2019] (henceforth the Act) Rule 24(1) 24 (2) (a) (b) (c) (d) (e) (f) 24 (3) (a) (b) (c) (d) and Rule 28 (1) (c) of the Labour Court Rules GN. No. 106 of 2007 (herein the Rules). i Both parties agreed to dispose the application by written submission. The applicant is represented by Mr. Patrie David, learned Counsel while Ms. Caroline Kivuyo, learned Counsel is for the respondent. The affidavit of the applicant supported the application and Mr. Renatus Malawa, the respondent's Human Resources Section Leader challenged the application through his counter affidavit. Brief facts leading to this application are as follows, the applicant was employed by the respondent on 14/05/2014 as a Human Resource Officer - Human Capital Development as per employment contract (Exhibit P2). On 17/11/2015 the applicant was terminated from the employment on the ground of operational requirement which was related to fall of Gold price. Aggrieved, the applicant referred a complaint to the CMA Shinyanga where the dispute arose. Later on, the applicant prayed for the dispute to be transferred to Dar es Salaam Zone and the application was granted thereto. At the CMA the applicant claimed that she was both substantively and procedurally unfairly terminated. In its award the CMA found that, the applicant was fairly terminated both substantively and procedurally thence the applicant's complaint was dismissed. 2 Again, being dissatisfied by the CMA's award the applicant filed the present application on the following grounds: - i. That, the Learned Arbitrator erred in law and fact by failing to consider that the applicant has to be consulted in person and that she has never appointed any representative in the illegal forum termed "workers forum" and further the Arbitrator failed to consider DWl's testimony that the workers' forum was formed by Acacia Mining Pic for country office in Dar es Salaam only. ii. That, the Arbitrator erred in law and fact by dismissing the applicant's complaint based on unproved allegations from Acacia Mining Pic which was not even the applicant's employer. That, the employer was Bulyanhulu Gold Mine. iii. That the Arbitrator erred in law and fact by admitting documents from Acacia Mining Pic as exhibits while the documents were not from the respondent and were tendered by an irrelevant person. iv. That the Arbitrator erred in law and fact by failing to analyze evidence adduced during the hearing and dismissing the case without considering the applicant's evidence. v. That the Arbitrator erred in law and fact to hold that TAMICO and NUMET trade unions were recognized trade unions without evidence or proof of collective agreement (CBA) or distinct between recognized trade union and registered trade union. 3 In response to the application Ms. Caroline Kivuyo for the respondent raised a point of law of which this Court found it important to determine before going to the merit of the application. The Learned Counsel raised a point of law to the effect that, the respondent was not a party at the CMA proceedings. It was submitted that, much as the applicant was an employee of the respondent, she never instituted her complaint against the respondent herein as evidenced by the CMA's award. It was argued that although the law allows joining of any necessary party to the revision proceedings, the same does not allow total substitution of a party as the applicant did in the present application. It was submitted that, the respondent not being party of the CMA proceedings he has wrongly joined in this revision as the decree may not be capable of being executed against him. To buttress her submission the Learned Counsel referred the Court to the Court of Appeal case of Abdallatiff Mohamed Hamis Vs. Mehboob Yusuf Oman & Another, Civ. Rev. No. 06 of 2017, DSM where it was held that: - '...on the contrary, in the absence of necessary parties, the Court may fait to deal with the suit, as it shall, eventually, not be able to pass an effective decree. It would be idle for the Court, to say, to pass a decree which would be of no practical utility to the plaintiff.' 4 It was strongly submitted that, the applicant has instituted revision proceedings against a party who was not a party to the original proceedings at the CMA. The Learned Counsel argued that, there is no award capable of being revised by this Court against the respondent who was not afforded a right to be heard at the CMA. She added that the respondent was never registered as Acacia Bulyanhulu Gold Mine Limited nor was the applicant employed by such entity. Responding to the objection through rejoinder Mr. Patrick David for the applicant submitted that, the respondent is not joined as the necessary party. He added that, he is the applicant's employer and the original respondent at the CMA thus, he is a proper party before this Court. After considering the rival submissions by the parties, Court records and relevant labour laws I find the Court is called upon to determine whether the applicant herein was a party at the CMA proceedings. The record reveals that at the CMA the parties were Stella Edward Magai and Acacia Bulyanhulu Gold Mine. However, in this Court the parties are Stella Edward Magai and Bulyanhulu Gold Mine. Now the issue to be determined is whether Bulyanhulu Gold Mine is the same party as Acacia Bulyanhulu Gold Mine. The applicant strongly submitted that, the s respondent herein is the same party who appeared at the CMA proceedings. The employer's name which appears in the complaint form (CMA Fl) and initiated proceedings at the CMA was Acacia Bulyanhulu Gold Mine. It is also in record the name of Bulyanhulu Gold Mine appeared in some of the CMA documents such as summons which means that both names were preferred at the CMA. However, in the employment contract (Exhibit Pl) the employer's name appear as Bulyanhulu Gold Mine Limited. On the basis of the above discussion, it is my view Bulyanhulu Gold Mine and Acacia Bulyanhulu Gold Mine are two distinct legal entities. I would say that, even under normal circumstances the disputed names do not sound the same. I am of the view that when a company is registered it has to be addressed in its registered name and not otherwise. In this case though there is no any document in record proving the registered name of the employer, in my opinion the fact that the employer specifically stated in the parties' employment contract he should be addressed by the name of Bulyanhulu Gold Mine Limited. I find that name to be the correct one and should have been used from the initial stage, to wit at the CMA. Unfortunately, the applicant herein used a different name from that of the employer but at the revisional stage he opted to 6 use the correct name as it appears in record. As correctly submitted by the respondent's Counsel that, substituting Acacia Bulyanhulu Gold Mine with Bulyanhulu Gold Mine as a party at this stage will not be proper because legally they cannot be considered to be the same entities. Furthermore, if the decision will be passed against the latter it will be condemned unheard as correctly submitted by the respondent's Counsel. The circumstances of this case also happened in the case of National Oil V. Aloyce Hobokela, Misc. Lab. Appl. No. 212 of 213, where the Court found that National Oil as it stands did not have the same legal status as National Oil TZ Ltd. Therefore, the application by the National Oil who was not a party at the CMA was dismissed. Similarly, in this application I am of the view that, Bulyanhulu Gold Mine does not have the same legal status as Acacia Bulyanhulu Gold Mine. Thus, the latter Company is improperly substituted the respondent (Bulyanhulu Gold Mine) appeared in the present revision application as he was not a party at the CMA proceedings. As much as I sympathize for the parties for all the resources, they have spent in this case but this is an error which cannot be ignored or considered lightly by the Court. In my view the applicant initiated a labour 7 dispute using a different name from that of the employer, the anomaly which will hinder the execution of the award. In the result I find the point of law raised by the respondent's Counsel has merit. Consequently, the application is hereby struck out. That being said I find no reason to labour much on the merit of the application for it being initiated against a wrong party. The matter has to be reinstituted at the CMA against a proper party who is the employer of the applicant if she still wishes to go for what she believe to be her employment right. In the interest of justice, the applicant should not be affected by the limitation of time but has lodge her complaint within twenty one days from the order. It is so ordered. I.D Aboud JUDGE 12/03/2021 8