tanzania cigarette coltd vs reuben carlo 2021 tzhcld 222 18 june 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 746 OF 2019 BETWEEN TANZANIA CIGARRATE COMPANY LTD..............APPLICANT VERSUS REUBEN CARLO................................................. RESPONDENT JUDGMENT Date of Last Order: 09/06/2021 Date of Judgment:18/06/2021 Z.G.Muruke, J. The respondent was employed by the applicant on 24th March,2014 as Sales representative. They maintained their employment relationship until 22nd September,2018 when he was terminated on ground of absenteeism. It is alleged that the applicant was charged with the offence of theft, thereafter he was suspended with full salary pending investigation. The applicant alleged that on 31st August,2018 the management decided to uplift the suspension. Despite of being called back, the respondent did not resume his duties. The respondent was charged with absenteeism, the disciplinary hearing was conducted exparte on 13th September, 2018 consequently the respondent was terminated. On 30th October,2018 the respondent knocked the CMA's doors and filed the claim of salary arrears for the month of September and October,2018. The CMA's decision was on favour of the respondent, the decision which aggrieved the applicant hence the present application. i The application was supported by the affidavit of Goodluck Kazaura, the applicant's Principal Officer, the same was challenged by the respondent's counter affidavit. Both parties were represented. Counsel Sabas Shayo was for the applicant whereas Advocate Saulo J. Kusakalah represented the respondent. Submitting for the applicant, Mr. Shayo jointly combined grounds on 1,2,4,5 and 6 and submitted that the arbitrator erred in law and fact for awarding the complainant reliefs which were not claimed in CMA Fl. The arbitrator ordered the applicant to pay the respondent his salaries up to the date when the criminal case was determined contrary to what the applicant has pleaded in CMA Fl. The respondent prayed to be paid his salaries for the month of September and October,2018. In the same line the arbitrator awarded the respondent his right to medical cover which was also not prayed in CMA Fl. He submitted further that parties are bound by their pleadings referring the case of Yara Tanzania Limited v. Charles Aloyce Msemwa T/A Msemwa Junior Agrovet, Commercial Case No. 5 of 2013. _i On the 3 ground Advocate Shayo submitted that the arbitrator erred in law and fact for deciding a case of claim of salary arrears as if it was a case of unfair termination. The claim before CMA were of salary arrears, surprisingly the arbitrator held that the applicant has failed to prove the offences he alleged against the respondent. According to the claim before CMA the applicant had a duty to prove the respondent was paid his salary for September and October,2018. As regard to the 7th ground the applicant counsel submitted that, the arbitrator erred in law and fact for failure to evaluate the evidence 2 in relation to the issues in dispute. The arbitrator framed three issues for determination to wit:- i. Whether the respondent was the applicant's employee ii. Whether the respondent was not paid his salary arrears after the criminal case was instituted iii. What relief were the parties entitled to. A Applicant counsel further contended that the arbitrator improperly framed the issues because they did not reflect a point in dispute, the criminal case was instituted in 2017 and the respondent himself admitted that he was paid all his salaries except for the September and October 2018 salaries. Counsel further submitted that; the applicant stopped to pay the respondent his salary after he was terminated. He thus prayed for the application be granted. Responding to the applicant's assertions the respondent's counsel argued that, the assertion that the arbitrator is required to pay the relief prayed in CMA Fl is not applicable in labour matters as the relief are clearly stated in Section 40 of the Employment and Labour Relations Act CAP 366 RE 2019. When there is breach of contract the only remedy is payment of the remaining period of contract. The applicant suspended the respondent without payment as per Rule 27 (1) of Employment and Labour Relations (Code of Good Practice) GN.42/2007. Therefore, it was correct for the arbitrator to order payment of the said salaries as per the law. The same applies to the Medical allowance as the employment contract (Exhibit RC1) provides that the employer will take medical care for the employee, spouse and children under 18 years. Further, Mr. 3 Kusakala submitted that the applicant has failed to prove that the respondent was terminated. It was still insist that the respondent is still the applicant's employee who is under suspension. As regard to the ground that the arbitrator decided the fairness of termination while the dispute is on salary arrears, Counsel for the respondent refuted the same and added that as reflected at the first paragraph of the award it reads; Kwa mujibu wa CMA Fl, mlalamikaji anamlalamikia mwajiri wake kutompa mishahara and the last paragraph it reads mlalamikiwa amlipe malimbikizo ya mshahara wake. This means the arbitrator was dealing with salary arrears. On the ground that the issues were wrongly framed, counsel submitted that the issues were properly framed by the arbitrator as per Rule 24 (4) of GN.67/2007.That the rule requires the arbitrator to formulate issues from the opening statement. The 2nd issue was about salary arrears which was the cause of action. Counsel prayed for dismissal of the application. In rejoinder the applicant reiterated their submission in chief. I have carefully perused this Court and the CMA records, and duly considered the submissions of both parties in this application, the issues to be determined by this court: - i. Whether the issues were properly framed before CMA. ii. Whether the arbitrator properly determined the dispute As regard to the 1st issue, it is the applicant's counsel contention that the arbitrator improperly framed the issues because they did not 4 reflect a point in dispute. The applicant's counsel stated that the arbitrator properly determined the issue in dispute. I have gone through the CMA proceedings and found that on 19th December,2018 the arbitrator discharged his duty of narrowing issues as required under Rule 24(4) of GN 67 which provided that:- '24(4) at the conclusion of the opening statement, the arbitrator shall narrow down the issues in dispute as much as possible and explain to all parties that the purpose of doing so is to eliminate the need of evidence in respect of factual dispute/ On record, it is crystal clear that the relief sought by the respondent in his CMA Fl was salary arrears for September and October 2018. And the 2nd issue raised by the arbitrator states: Whether the respondent was not paid his salary arrears after the criminal case was instituted. Without flicker of doubt the issue raised by the arbitrator does not refer the respondent's claim as per CMA Fl. The arbitrator acted contrary to Rule 24 (4) (supra) which requires to narrow down issues in dispute in terms of CMA Fl which initiates the dispute and the opening statements. However, the CMA records are very clear that on the date set for framing of issues even the applicant's counsel Mr. Jackob Anold Luoga was present. With due respect to the applicant's counsel, an advocate as the officer of the court/ CMA has a duty to assist the arbitrator in proper administration of justice. This role has been insisted in various decisions, including the case of MERIDIAN EXPRESS V. MWANANCHI INSURANCE CO. LTD, CIVIL APPEAL NO. 138 OF 2017 where it was held that:- 5 'The oath or the affirmation that Advocates take means they have this additional level of responsibility and that they may not be driven by their client's wishes alone, but with their professionalism. This duty to the Court by a legal practitioner arises because of the position entrusted on as an officer of the court and an integral participant in the administration of justice. The practitioner's role is not merely to push his or her client's interests in the adversarial process, rather the practitioner has a duty to assist the court too in the doing of Justice according to law." On that basis if the applicant's counsel could have raised this defect while the issues were framed, then he could have assisted the arbitrator to have properly framed the issues as per the respondent's claim in CMA Fl. Counsel failed to execute his duty on that date. Now is using the said defect as a ground for revision, it is my considered view he totally acted unprofessional and it should be discouraged by court. > Concerning the 2nd ground the applicant's counsel alleged that the arbitrator awarded the respondent with what was not claimed by the respondent in CMA Fl. The respondent's counsel argued that the respondent was suspended without pay hence it was correct for the arbitrator to order the salaries in terms of Section 40 of CAP 366 RE 2019. It is a settled principle advanced by courts that, in awarding the relief CMA is bound to grant the relief which has been claimed in the referral form, CMA Fl. CMA Fl is the one used to initiate the dispute before CMA as per Section 86 of CAP 366 RE 2019. The CMA had no jurisdiction to award reliefs which were not claimed in CMA FI. This has been insisted on various decisions including the case of Power Roads 6 (T) Ltd v. Haji Omary Ngomero Revision No. 36 of 2007 (unreported) in which the court held that: - "The award incorporates two more items which are extract to the referral form. These are the items on seventeen days leave and compensation for unfair dismissal. There is no provision in the Employment and Labour Relation Act particularly section 20 on powers of mediators and Arbitrators, allowing mediators and arbitrators to make changes suo moto on what appears on the referral form. The additions made by the arbitrator are therefore illegal and are set aside .... this figure does not agree with the .... shown in the complaint form ... .is therefore revised to reflect the amount claimed in the...." [Emphasis added] ■;W'' Also, in the case of Anthony Ngoo and Davis Anthony Ngoo v. Kitinda Kimaro, Civ. Appl. No. 25 of 2014 (unreported) it was held that: - IL 'The court cannot make out a new case altogether and grant relief neither prayed for in plaint nor flows naturally from the grounds of claims stated in the plaint.' According to the records it is apparent that the arbitrator awarded the respondent the relief of salaries from September 2018 to July 2019 to the tune of 13,129,050/=, and salaries from September 2018 till the determination of the criminal case and medical allowance, while the respondent claimed for salaries for the September and October,2018. By that order I find that the arbitrator acted with material irregularity by awarding the relief which were even not prayed by the respondent himself. According to the records the respondent's claim is of unpaid salaries for September and October 2018. I have cautiously gone 7 through records, I came across exhibit D3 (the termination letter) which shows that the respondent was terminated on 22nd September, 2018. Under such circumstances, it is my view that the respondent is not entitled to the salaries of September 2018 if not paid, the rest of the month he was already terminated from employment. Basing on the above discussion, I find the application for revision to be meritious, CMA award is quashed and set aside. Revision application is allowed to the extent shown. „* JUDGE 18/06/2021 Judgment delivered in the presence of Esther Msangi for the applicant and respondent in person. k JUDGE 8