registered trustees of chamazi islamic centre vs yahaya mwavurizi 2021 tzhcld 246 25 june 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 56 OF 2020 BETWEEN THE REGISTERED TRUSTEES OF CHAMAZI ISLAMIC CENTRE............................................................. APPLICANT VERSUS YAHAYA MWAVURIZI................................................................... RESPONDENT JUDGMENT Date of Last Order: 14/04/2021 Date of Judgment: 25/06/2021 A. E. MWIPOPO, J. This revision application is against the award of Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/DSM/TEM/43/19/41/19 which was delivered on 15/01/2020 by Hon. Batenga, M., Arbitrator. The Registered Trustees of Chamazi Islamic Centre, the applicant herein, is applying to this Court for an order in the following terms: - 1. That, this Court be pleased to call for records of the proceedings in the Commission for Mediation and Arbitration in Labour Dispute No. CMA/DSM/TEM/43/19/41/19 between Yahaya Mwavulizi and The Registered Trustees of Chamazi Islamic Centre And Chamazi i Islamic Seminary so as to satisfy as to the legality, correctness and propriety of the same. 2. That, the Court be pleased to revise the Order made therein by Hon. Batenga, M., dated 15/01/2020, and set it aside. 3. Any other relief (s) this Court may deem fit and just to grant. The application is accompanied with Chamber Summons and is supported by the Affidavit sworn by Ally Hamis Njuki, Applicant's Principal Officer. The Applicant's Affidavit contains one proposed legal issue for determination. The said legal issue is whether it was correct for the Arbitrator to award Tshs. 8,421,000/= for unpaid salaries after it arrived into findings that CMA cannot award the claims referred after the elapse of 60 days period. At the hearing of the application, the applicant was represented by Mr. Mashaka Ngole, Advocate, whereas the Respondent was represented by Mr. Msegu N. Msegu, Advocate. Hearing of the application proceeded by way of written submission. In his submission to support the application, Mr. Mashaka Ngole stated that it is a trite law under the provisions of rules 10(2) of the Labour Institution (Mediation and Arbitration), G.N. No.64 of 2007 that the dispute other than the dispute on termination of employment shall be referred to the commission within sixty days period. The Respondent's salary claims was supposed to be referred to the Commission on the same month which 2 was not paid and not after the expiry of the contract of employment as it was in this dispute. It is clear from the award that the Respondent was awarded Tshs. 8,421,000/= for the year 2016 and 2017. The dispute was opened at CMA on January 2019. If computation is made from the date on which employer defaulted to make payment of each salary save for the salary of January and February 2019 to the date when the matter was filed at CMA, it will be found that all salaries were claimed after elapse of sixty days. The Counsel submitted that the CMA's award would have been properly arrived only if, prior to the determination of the dispute on unpaid salaries, the Respondent would have applied for condonation of a late referral by invoking the provisions of Rule 11 (1) and 11 (2) of the Labour Institution (Mediation and Arbitration) Rules, G.N. 64 of 2007 and the same be determined by the CMA. He stated that it is an established principle that for someone to have access to the justice he/she must consider the issue of time factor. If the dispute is instituted in Court out of time, then the Court would have no jurisdiction to determine such dispute. Thus, the CMA had no jurisdiction to determine the claims for unpaid salaries which was instituted at CMA after expiry of sixty days period prescribed by the law. In reply, the Respondent Counsel submitted that the labour dispute before CMA was not filed outside of 60 days. He stated that the Applicants issued a latter 30/11/2018 - Exhibit YM3 which informed the respondent 3 about his salary arrears. On 13/12/2018 the Respondent wrote a letter to the Applicant - Exhibit YM2 claiming to be paid his salary arrears issued on Exhibit YM3 as he was informed in Exhibit YM3 that his employment agreement will not be renewed. Thus, time started to run on 30/11/2018. The respondent filed his Labour Dispute at CMA on 21/01/2019 not January 2018 as alleged by the applicants just 52 days after the Applicants issued Exhibit YM3. Therefore dispute was referred to CMA within time. The counsel submitted further that Exhibit YM3 shows that there was continuous breach of contract for non-payment of salary and the Applicants issued Exhibit YM3 to acknowledge the outstanding arrears. It is a principle of law that where there is a continuous breach of contract or wrong doing time starts to run a fresh from the last breach. He stated that Rule 10(1) and (2) of the Labour Institution (Mediation and Arbitration) Rules, G.N. No. 64 of 2007 does not covers the situation where there is a continuing breach of contract of employment and the rule does not say anything as to when the computation of time should starts counting. The Counsel is of the view that since the labour laws and rules does not capture the situation, recourse is given to other laws. Section 7 of the Law of Limitation Act, Cap 89 R.E 2002 covers the circumstances of our case. Thus, in this case even if the cause of action arouses in 2016 and 2017 as alleged by the Applicants, the time started to run a fresh from the last breach of contract of employment. 4 The Respondent's Counsel then submitted on the Commission award of Tshs. 8,421,000/= to the Respondent. He argued that the evidence shows that the Applicants admitted the outstanding claims to the tune of Tshs. 8,421,000/= during hearing of the case of CMA as it is clearly indicated in Exhibit YM3. Thus, the Arbitrator cannot be faulted for awarding an admitted claim as stated at page 5 of the Commission for Mediation and Arbitration Award and no law which the Applicant's Counsel has cited to support his submission. Under the Evidence Act, Cap 6 of the R.E. 2002 a fact which is admitted needs no proof in Court. It is a principle of law that once a party admit a fact there is no need to prove and the Court proceeds to deliver an award as per Section 60 of the Evidence Act. In this case the defense witness admitted outstanding claims including salary arrears in Exhibit YM3 which was issued on 30/11/2018. To support his position, he cited different including the case of Yaaquib Ismail Enzron V. Mbaraka Bawaziri Filling Station, Labour Revision No. 33 of 2018, High Court Labour Division, at Dar Es Salaam, (Unreported). The Respondent prayed for the application to be dismissed. In rejoinder the applicant reiterated his submissions in chief. Having read submissions of the parties and record at hand, the main issues for determination is whether or not the matter before CMA was filed out of time. 5 In addressing the first issue whether the matter was filed out of time or not, the relevant law providing for time limitation of referring the dispute before the Commission is rule 10 of the Labour Institutions (Mediation and Arbitration) Rules, G.N. No. 64 of 2007. The rule reads as follows, I quote:- "10. (1) Dispute about the fairness of an employee's termination of employment must be referred to the Commission within thirty days from the date of termination or the date that the employer made a decision to terminate or uphold the decision to terminate. (2) AH Other disputes must be referred to the Commission within sixty days from the date when the dispute aroused. " The Applicant's Counsel submitted that the dispute was referred to the commission after sixty days period has lapsed hence the Commission had no jurisdiction to determine the matter without being condoned. On other hand, the Respondent Counsel submitted that there was a continuous breach of contract or wrong doing as a result time starts to count a fresh from the last breach. The evidence available in record especially a letter from the Applicant to the Respondent - Exhibit YM3 shows that the Applicant was admitting that the Respondent had claims for unpaid salaries. The details of the Exhibit YM3 shows that the actual salary arrears by 30/11/2018 was Tshs. 8,421,000/= and that the same will be added with December, 2018 salary and will be paid to the Respondent when financial situation is stable. The letter went on to inform the Respondent that the employment contract will 6 not be renewed after its expiry. This evidence proves that by this time there was no dispute between the Applicant and the Respondent regarding to the salary arrears as the employer acknowledged the claims and promised to pay when the financial situation gets better. The evidence from Exhibit YM3 is supported by testimony of Applicant witness namely Nasibu Nerisho - DW1 who stated during cross examination that the actual Respondent claims was Tshs. 8,421,000/= without December salary and the same will be paid to the Respondent in January 2020 when the students have paid their school fees. The evidence shows that the Respondent wrote a letter - Exhibit YM2 dated 13/12/2018 addressed to the Applicant asking the employer to pay for the salary arrears before the expiry of his employment contract. This is the date when the dispute over the payment of salary arrears between the Applicant and Respondent did arise as the Applicant was asking to be paid his salary dues before his employment contract expired. Before this act of the Respondent to demand for payment of his salary arrears there was no dispute between them and the Applicant promised to pay Respondent's salary arrears where the financial situation has improved. Thereafter, the Respondent referred the dispute before the Commission on 22/01/2019 which is within 60 day time limitation provided by rule 10(2) of the G.N. 64 of 2007. The rule provides clearly that all disputes other than for termination of employment shall be referred to Commission within 60 days 7 and the Respondent referred the dispute within time after the dispute arose. Therefore, I find that the Dispute was referred to the Commission within time limit provided by the rules and the Commission had jurisdiction to entertain and determine the matter. Consequently, the revision is dismissed for want of merits and the Commission award is upheld. Each party to take care of its own cost of the suit. < ( A. E. MWIPOP JUDGE 25/06/2021 8