20130809 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM ..:.'.:•~·' 0 ; 1 ~EV.!$91~6() ~F 2012 " •.. . '. .• ~ ....... ~-1-. -~ TANZANIA Auto· MOTIVc··rECH. CENTRE ................... APPLICANT VERSUS LT. COL.LAWRENCE L. MWAKIPESILE ...................... RESPONDENT I JUDGEMENT 8/7/2013 &· 9/8/2013 i . S. A. N. WAMBURA, J. This is an application for revision of the Commission for Mediation and Arbitration (CMA) award derived on 21/11/2011. It was filed into court under Section 91(1) ; of the Employment t I and Labour • Relation Act (ELRA) . No.6 of 2004 read together with Rule 24(1) and 28(1) of the Labour Court Rules, 2007, and it was supported by an affidavit sworn by the applicant's legal offio;r Mr. Osbert . Kingu, . The application was opposed by the respondent who filed a counter affidavit in opposition.. I At the hearing of this application, the applicant was· represented by his personal representative Mr. Ndonde while the respondent was represented by Mr. Kayuka Advocate. M.r. Ndonde Submitted that the Mediator one Mwangata was also the arbitrator and he was ·not appointed to do so as provided for under section ' ! ! . 88(2)(a) of ELRA, 2004. That section 2(~) of the Act exempts employees of ~ ~ .1 i i I _j 1"\ I i TPDF. That the applicant was an employee of TPDF and resigned on 7/8/2007. That he was employed without getting an approval of the Principal Secretary - Presidents Office as pr~vided for under S.19(1) of the Public Service Regulations, ~:ii". 2002 GN. 168/2003 and cited the c~s~ of I.M.MASHANA Vs. UNIVERSITY OF . 1 ! ,. -✓ .. J,il "i. , · DSM, (1981) TLR, 5-3-· where the- tourt···h~d that procedures set by the law -~ should be adhered to. In his reply, Mr. Kayuka submitted that the argument that the arbitrator was not appointed could not hold water as the parties agreed to have the mediator proceed as the arbitrator. That it had been alleged that the applicant was exempted from the ELRA 0 as he was an officer of TPDF. However in paragraph 2 of his supporting affidavit he alleged he was already on retirement. So after retirement he becomes a normal citizen as provided for under Section 3 and Section 3(iii) of the Public .. ! i Service Act. He thus falls under the ELRA. It was further submitted that the third ground also could ndt stand as the ' . contract was between September, 2010 up to 2012. That he had been employed under the said contract twice and third term was when they raised this issue. That if they had caused that problem it was not for the employee to suffer loss of his income. They thus prayed for the application to be dismissed for want of merit. After considering the arguments raised by both parties I am forced to seek assistance from past decisions as to when the mediator can also be the mediator, for it is a comm6n i principle that one cannot do both. 2 / () In ttre case YONA SARYA& 13 OTHERS Vs. CASPIAN LIMITED, REVISION NO. 49/2009 the court referred to the cases of TANZANIA '"/'' BREWERIES LTD vs:·cHARLE~~,U,~~NA, REVISION NO. 24/2007 and ~ ,. i- -.... ~-, ' GN MUFINDI PA~ER MILLS---·VS. MASOYA MAGOTI, REVISION NO. 7 /2007 where the court discussed the importance of section 88(2)(a)(b) and (c) of the Act which provides for procedures to be taken when mediation fails. I beg to quote:- ! i "The mediator must issue a certificate as spelled out in Rule 16(1) of the Labour Institutions (Mediation and Arbitration) Rules GN 64/2007 {The Rules) then the Commission (CMA)✓ thereafter✓ 1. The CMA must appoint an arbitrator to decide the dispute and it must 2. Determine the time, date and place of arbitration proceedings, and; 3. Advise the parties i to the dispute of details stipulated in 2 and 3 above.............. in the present situation where a mediator proceeds with arbitration of a dispute without appointment or complying with I , , the above procedure (that is giving parties a choice in the matter) subsequent proceedings will be found to have been conducted with fundamental irregularity and re viewable . . . .. . . .. . It was held that the . ! ! dispute be processed afresh according to law commencing with mediation. [Emphasis is mine] In this case the Court held that where a dispute is fixed for mediation /Arbitration a 14 days' notice is required to be given to the parties. However, in the matter· before us the dispute was not scheduled for a Mediation / Arbitration process. 3 I. I I \'\ I' ! i It is however on record that parties reached a mutual agreement that the mediator stwuld proceed with the matter during arbitration. This is evidenced by Exhibit C which shows that the agreement was signed by both parties stating ' ,,.,.' i that; and I beg to quofe·:- ... -;,.,;/..j{t)~ .. , . "Kuhusu Kuende/ea kwa Msu/uhishi - Mhe. M. Makawa kuwa Pande mbili zimekuba/iana Mhe. M. Makawa aliyekuwa msulihishi wa shauri hili aendelee na shauri hili na wamekubaliana . - pasi shaka yeyote kuwa M. Makawc1 awe muamuzi katika hatua hii." { Emphasis is mine.} It could be an illegal agreement but all the parties where involved in it. In the circumstances, the arbitrator alone cannot be faulted at this point as parties , I j · • · mutually reached an agreement that he should proceed with the matter at the arbitration stage. - ·1. It has also been alleged by Mr Ndonde that. the respondent is not covered ' , ' by the ELRA. This was challenged by Mr Kayuka who argued that in as long as the respondent had retired; from the services of Tanzania People's Defense Forces then he was a normal citizen and was covered by the ELRA. There is no dispute that Members of the Defence Forces and Services are exempted by Section 2 (1) of the ELRA Section 2(3) provides that only the provisions of sections 5,6 and 7 apply to members of such forces and services. j : These sections are on' prohibition of child labour, ·forced labour and discrimination at work places. The Act is silent on retired members of these 4 .. forces. This could probably be because the same is provided for in their laws and codes of services which I was not privileged to see. ! j It is my opinion therefore AA,ti~ 'l~o _long as the ELRA categorically states ~~- ~::' . : ,;· t -.. '!'~ ·~~ which provisions apply to members of such forces while in employment and does not state other employment issues then the respondent could be covered by the Act but only when he has fully complied with the employment procedures within the public $ervice. Contrary to that, the proceedings before CMA would be a 1 nullity. I have thoroughly perused into the documents which were tendered at CMA and read the contract of employment between the parties which commenced on 1st September 2009 for a term of twenty four months. I note that this contract was ent~~ed into after the Treasury Registrar had issued a reminder vide a letter dated 4th of January, 2008 reminding all Heads of Institutions and Departments to comply with conditions of employing on contract ,.:1 employees who had already retired. The letter reads at paragraph f that:- ' . " Mam/aka za Ajira zinaagizwa kuhakikisha kwamba Waajiriwa wa vipindi vifupi waliostaafu wawe wa kada ambazo watumishi wake ni wachache. Mao,pbi ya ajira hizi yawasilishwe kwa Msajili wa Hazina iii hatimaye yapelekwe kwa Ofisi ya Rais, Menejimenti ya Utumishi wa Umma kwa kibali.... " { Emphas/s is mine} ! ! 5 I I ' • It is not disputed that the respondent was terminated as he was employed by the applicants who hag not obtained leave from the Principal Secretary as ' ' ! required by the law. .This .,,,.. means; ·' (•· ~""'- ,. ~-;,;.J'J.Jl {·· ' • ,. # - ........ 1. The applicantfhad no auth6rization tq employ him and so 2. The respondent was not legally employed in public service; respondents company being a public institution. 3. The contract of emplb-lment entered into by the parties was a null ab initio as it did not follow the laid down procedures. 4. As the contact of employment was null and void CMA was not mandated to _entertain the matter. One is left to wonder; whether an illegal contract of employment can be . ' ! ! . honored by the court. In the case of H. MC Govern Vs. Maize Marketing Board [1966] IEA 40(HCK) whose facts are similar to this matter the application was granted as the contract of employment was a legal one. I But in the case of Kyombe Vs. East African Airways [1972] IEA 403 the ap~l;cation was dismissed aifd the applicants post was abolished and he was given six months notice. I understand the said cases can be said to be decided way back before the ELRA came into place but the concept on _contracts of employment remain valid to date. ! i Now since the contract of employment entered into by the parties was not a legal one I believe the notice issued upon realizing the irregularity done was 6 I ! i . ; I ..J valid and thus the respondent cannot be entitled to any terminal benefits. In actual fact. he had been paid his retirement benefits so he cannot be said to have lost his income which wcis improperly procured . .."''"'" '• """"1•.'... _!JD< {-'.i, ~""{,· ' I accordingly a_llow the application and nullify the award of CMA as the respondent's contract of employment was in itself null and void. S.A. ~(j_ ,A-· Qra ~~u 9/8/2013 I ' . ! ! 7 .' i!