NA TZHC Dar es Salaam3 3

Ir T:J:E HIGd C\.:.•u.i.l' OF TA1\:/A1\JlA DAR ES S.ALAAfl, DISTRICT REGISTRY AT DAR ES SALAAM MISCELLANEOUS C~VIL CAUSE NO. 24 OF 1996 TANZ1U~IA FIF ELINES LH,ITED ••••••• , • AFI-LI8ANT VERSUS 1. TH~ LABOUR COi-'il\,ISSIOi'JER........... ?IBSFOf\,DENT 2. THE ATTORNEY GEl\JERAL ........... • • • • • NECESSARY FARTY R U L I NG BUBESHI,...l.;_ This is an application filed by Tazar• Fipelines LiH1i t~d, hereinafter the apylicant, for an orders of . eertiorari against the decision of the Labour Commissioner 1:1ade on 25/2/199?, on a reference· by him by one Joseph R.lViaro ag_ainst the decision of the Conciliation Board of Temeke _; made on 9/6/1994. An affidavit deponed to by l\'1r. Thadei Kaberege has be.en filed. in support of the applicati.oP. The aPrlicant has filed two rri3.in grounds to challenge the decision of the Labour Commissioner. These are:- that the Labour Commissioner had no jurisdiction to entertain the reference to the Ivlinister by Joseph R. Maro and twc that the decision by the Labour Corr,n,issioner contains errors of law aParent in its face. The back ground to this application is that J.'11r. · Joseph R. I1aro was employed by TAZAiv,A Pipelines from 1/6/1972 until 30/12/1992 when his services were terminated. The complaint was taken 'before. the Conciliation . . Board, who confirmed the dismissal of Jo.seph Earo. That was on 9/6/1994. On 25/2/1996 Mr. Maro referred the matter to the l"linister, thro.ugh the Labour Commissioner exercising powers delegated to him under GN 283/1971. The Labour Co11JT1issioner reversed the ..... /2 .•· \ . .it, 2 decision of the Conciliation Board arfil ordered for reinstater:1ent of Joseph Maro. Hence the arplication for certiorari. Mr. Kisusi appeari f',& for the applicant has submitted tr.at the Labourt Coni1r;issioner had no powers to entertain the reference because there is no provision under the Security of ,e;mpl::..yment Act, Cap.5'/4 entitling an employee, such as Joseph Maro, to make such a reference. That Section26(1) of the Security of Employment Act, 1964, as amended by Act 1 of 1975 does not provide for references by employees, but only the e11,ployer lllaY n:ake such ref ere nee. Mr. Kisusi submitted that what ha;>p2ned in this case is the reverse of what the law stipulates. Further, lYlr. Kis~si submitted that the decision of the _. u Labour Cornmissioner had errors of law apparent on the face of record. That, the Labour CoLmissioner interpreted Section 20 (2) of the Security of Emp1oy1r.ent Act, Cap.574 to mean that that provision lays down a period of 1imitatic:r. within which chargC?s for al2.eged breaches of the disciplinary code should be made by tbe employer. Mr~ Kisusi submitted that Section 20 (2) (b) stipulates that previous breaches of the disciplinary code conur1i+ted by an employee more than 6 rr,onths previously may not be taken into account in imposing a disciplinary penalty, which m2..y be imposed only for a second on subsequent breach of th2 displinary code. 1v1r. Kisusi further faulted the Labour Commissioner for statin;; that the charges :f,:icing the employee were time - barred. To substantiate his arguments Mr. Kisusi stated that Mr. Iviaro was facing disciplinary cho.rgesJ for being absr::nt from work between 7/5/1992 and 3/7/1992 without reasonable cause., That this is a breach of para (C) of the disciplinary code. . ... /3 3 and repeated acts of insurbordination on 8/7/1992 ' and 28/7/1992•- breach of para (K) of the disciplinary code. That the charges were laid before Mr. Maro on 6/11/1992 - hence within 6 months of the first breach ie, 7/5/1992 and 3/7/1992. That charges under para (K) ·of the disciplinJ:ry code were laid before lVir. Maro within 4 months. l'fir. Kisusi subn1its that the charges were 110t time barred as argued by the Labour Commissioner. Mr. Kisusi submitted that it was errenous for the Il,abour Commissioner to hold that the charges were filed out of time in absence of specific provisions of the law stipulatir~ for limitation of time within which to bring those charges. Mr. Kisusi cited the case of ANISJ.VlINIC LTD "fB FOREIGI\ COl',J-ENSATION COM.MISSION (1969) 2 A. C .- 147 and an extract at page 1976 from F .A. Oluyc·"p.; n bis book titled: Administration Law in East •:Africa - EA Literature Bureau, Dar es Salaam, 1973 •. :Mr. Ngwembe, State Attorney in reply, submitted that in terms of Sections 27 and 40 A(5) of the Ae~ as amended by Act No.l of 1975, the decision of the IV1inister on a reference to him under Section 26 shall be fir.al and ~onclusive and binding on parties to the referc::nce. :M:-..~. Ngwembe is stating in effect that the """' applicant TAZAhA Pipeline's application is unfounded in law.· That the decision of the Jv1inister/Co:mr1issioner cannot be challenged in Court unless there is ,::.n 0rr'-·r or of law, and/non observance of principles of natural justice, which according to the learned State Attorney was not the case in thj .3 arplication. That if the applicants did not want to reinstate or reengag_e I111r. Maro the applicant ought to pay the en1ployee compensation of an amount equal to the aggragate of statutoty compensation and a sum equal to 12 months wages. That the applicant has no right to challenge the decision in a court of law but to compensate the employee as aforestated • • • • • ••/ 4 1·' 4 On whether the .employee, lV;r. Maro, could rr1ake a ref erer to the Hinister. Mr. Ngwernbe subrni tted that the provisions of Section 26 (1) must be interPTet,?d liberal~Y so as to accomodate both employer f"..ti'ld. erLployee as havi r,g equal oPPort~nity before the law. On whether there was an ei--ror of law apparent on the face of record. i'fr .. l~gwembe was of the vj_ew that the Labour Commissioners interpretation of section 20 (2) of the Act was proper in that it distinguished. a.cts of mi sco nduc ts purportedly done by hr. j\11aro in 1979. That the summary dismj_ssal impose?d on Mr. Maro ·was fuelled by personal hatred from 1979. That the charges of absenteeism were adequately countered by evidence from the medical doctor who attended l";r o ~iaro at lV1beya Referral Hospital. In conclusion Br. Ngwembe suhm.ti:tt=><l that the application be. disr::issed with costs and the aPPlicant be ordered to either reinstate iV1r. Joseph Maro or pay him compensation in terrns of Section 40 A (5) of the Act. I would start with the first issue r:aniely, V{hether j the Labour Commissioner had no jurisdictj_c:r;. to entertain the reference by Joseph Haro. Mr. Kisu.si for 1\_ the ·, aPPl.:lc.ants has apr;lied the narrow interpretation cf Section 26 (1) (b) which reads (a) where - - - - - - - ~ - - - - - - or (b) the summary dismis.s2.l or proposed dismissal of an employee i&> not confirmed by a Board, the ecmpol employer - - - - - - - - -$ may, vii thin twenty - eight days after receiving notice of the decision of the Board refer the san1e to the fiJinister 11 (emphasis supplied) Mr. Kisusi has submitted that it is only the employer who is allowed by that provisL,n to refer the Board's decisj_ to the lViinister. That an ernr-:loyee is not covered by that subparagraph! This is a strict interpretation of the provision. 5 1V1r. Ngwebe s learned State Attorney for the respondent does net agree. He has sub111i-'ct2d that, First, the ar::,licant car,not challenge the decision of the f11iinister., in terllis of section 27 (1), which action calls for calls for finalily. Secon:ily he was the view that section 26(1) though does not dearly'. state so, be interpreted widely as to include an ei1:ployee who wants to prefer · an appeal. The view of this Court is that the wider interpretatior. of Section 26 (1) is to be preferred so that the employees rights of appeal are also guo.ranteed,. Indeed if the narrow and strict j_nterpretation of Section 26 (1) is to be preferred, this provision will not only be bad law for being discriminatory but al:30 that posi tis,n wilJ• be contrary to tt1e _onsti tution of this Land - in 1,,articular Article 13 (1) and (2) which states: . 13 (1) all persons are equal ~. f"'re the law, 0 and are entitled, without any discriruination to protection and equality before the law (2) No law enected by any authority in the United Republic shall make any provisions th3.t is discrimin..atory either of itself or in its effect 11 I hold the f irn1 view that both the eruployer and employee wbo are aggrieved by the decision of the Minister may challenged it in Court. And s 1.:ch an appeal origin3.ting from a Conciliation Board carmot be confined to the employer alon..e. I decline therefore to .joir1 hands with fVir. Kisusi, for the applicants, that an ei:·;ployee cannot ma1{e a reference to the hinister. I hold that the Labour Comri1issioner did not err when he 1 on behalf of the lV1i nis ter entertained a ref ere nee made to him by r-1r. Joseph 1v1aro, the respondent. The next issue is v1hether the decision of the Labour Coi1,mission2r~ contains errors of law apparent on its face •. Mr! Kisusi has argued forcefully that it did, while J.Vir. Ng .vernbe supports the decision. 1 • •.••. /6