registered trustees of diocese of western tanganyika and another vs rose m kanango 2022 tzhc 10241 31 may 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA) AT KIGOMA (APPELLATE JURISDICTION) LABOUR REVISION NO. 10 OF 2021 (Arising from the Award of the Commission and Arbitration for Kigoma in Labour Dispute No. CMA/KIG/237/2021 Before: Hon. Mpapasingo B.) 1. THE REGISTERED TRUSTEES OF DIOCESE OF WESTERN TANGANYIKA ........... -.......... APPLICANTS 2. ARCHBISHOP KAHURANANGA SECONDARY SCHOOL VERSUS ROSE M. KANANGO...................................................................— RESPONDENT JUDGMENT 25/5/2022 & 31/5/2022 F.K. MANYANDA, J The applicant is bemused by an award of the Commission for Mediation and Arbitration (CMA) for Kigoma in CMA/KIG/237/2021 dated 04/10/2021. She is moving this court for revision by calling for the record of the CMA Page 1 of10 and satisfying itself as to the correctness, legality and propriety of the proceedings and the award therein. In an affidavit sworn by Mr. Michael Mwangati, the counsel for the applicant, three legal issues have been raised as follows;- i. The award of the CMA was improperly procured as the respondent, failed to give reason for each day of delay to file his complaint to the commission ii. The award of the CMA was improperly procured for failure to evaluate the evidence brought in favour of the employer. iii. The CMA for Kigoma unlawfully delivered a decision basing on extraneous matters. A brief background of this matter is that the applicant employed the Respondent for contractual term of 14 years from 1/8/2009 as a Headteacher of Archbishop Kahurananga Secondary School. After ten (10) years of service on 2/4/2019 her employment was terminated. Been aggrieved by termination of her employment. She referred the labour dispute to the CMA on 11/9/2019. After hearing the dispute, the CMA dismissed it on technical grounds of mixing parties. on appeal this Court, Hon. Matuma, J stepped into the shoes of the CMA and struck out the pleadings and directed her to refile the same. The Respondent refiled on 7/6/2021 and the CMA granted the condonation As stated above the Applicant is be mused by the award hence the instant application for revision. Hearing of this matter with my leave was conducted by way of written submissions. Mr. Michael Mwangati learned Advocate drafted and filed the submission for the Applicant and Mr. Silvester Damas Sogomba, learned Advocate drafted and filed the submission for the Respondent. The complaint by the Applicant in the first issue is that the Respondent did not give proper reasons for each day of delay. Mr. Mwangati submitted three reasons for delay on which according to his views the CMA based in granting its condonation; namely; 1. That the respondent delayed to file her complaint in the CMA because she was attending her sick child at Muhimbili 2. Also, she was promised by the applicant that once she returns from the United Kingdom she was to report at her working place 3. That, there was a technical delay for her to file her complaint on time The counsel was of views those three reasons are not true because the respondent failed to prove the same. He observed that the respondent was ordered to refile her pleadings by this court on 1/8/2020, and she was discharged from Muhimbili on 6/10/2020, she filed the application for Page 3 of 10 condonation at the CMA on 7/6/2021 which was about 8 (eight) months. The counsel's concern is on the eight (8) months delay that no reason is assigned. Mr. Sogomba the counsel for respondent submitted in response generally without following the arrangement as per issues raised by the applicant's counsel, however, he addressed all complaints. As regard to the complaint about failure to give reasons for the period of eight (8) months between order of this court dated 10/8/2020 and 7/6/2021. Mr. Sogomba argued that the CMA acted legally to condone the respondent's application on reason that he expressed proper reasons for the failure to refile the application in the eight (8) months. The respondent was absent when the ruling was delivered on 10/8/2020 as she was admitted at Muhimbili National Hospital in Dar es salaam and that she lost contacts after to losing her phone. My perusal of the CMA impugned award shows that when addressing this issue reasoned that as follows; "Mieta maombi ameeieza sababu ya kuuguza mtoto wake aliyekuwa amelazwa hospital! ya Muhimbili. Sababu hii haikupingwa na wajibu maombi katika mawasiiisho yao na kwa mujibu wa vieieiezo vya hospital! Tume inashawishika na sababu hii kuwa ni ya msingi". Page 4 of10 Literally means the applicant explained a reason of her child admission for treatment at Muhimbili Hospital which was not controverted and according to exhibits displaying the said admission, the commission believes this reason is genuine. The counsel for the applicant contends that they controverted this reason in their submission. My perusal of the record shows that the respondent presented a form of discharge from Muhimbili Hospital which shows the patient was admitted for treatment in the Department of Psychiatry on 23/8/2020 and discharged on 7/9/2020. The patient continued to remain under observation until on 6/10/2020 when was completely discharged and Doctor Joyce who attended recommended him to resume work. As it can be seen there is a gap between 6/10/2020 and 7/6/2021, during which the respondent didn't file the application. The respondent accounted for this period stating that she was in lost contacts; a reason which was accepted by the CMA. I don't see anything wrong with this finding by the CMA. I say so because the respondent acted immediately after resuming to contacts by instructing her counsel to refile the application. The second complaint is about a period of the respondent going and returning from the United Kingdom and filing of the first application for condonation. It is on record that the respondent travelled to the United Page 5 of Kingdom on 15/4/2019 it is not clear when she returned, but she filed her application on 11/9/2019. However, the respondent argument was that there were negotiations and promises of settling the dispute out of the tribunal. The counsel for the applicant contends that the cause of action arose on 2/4/2919 when her employment was terminated, hence she ought to have acted within time per the law instead of banking on the promises. The CMA when deliberating on this issue reasoned that it is the applicant who sent the respondent to the United Kingdom while they knew that they intended to terminate her employment. That preparations for her safari to the United Kingdom went on even after serving her with employment termination letter dated 2/4/2019. As a result, the respondent travelled on 15/4/2019 under instructions of the applicant. The CMA said as follows; - 'Baada ya hapo wakamtuma mleta maombi kwenda kuiwakilisha ofisi nchini Uingereza. Ni wazi mleta maombi hakuwa na chaguo isipokuwa kuendelea na safari, ukizingatia hakukuwa na barua ya wazi kuwa ameachishwa kazi. Hivyo sababu hii ya ahadi za mwajiri Tume inaoneiea ina mashiko kwani hata wajibu maombi hawakuyakana matukio hayo yenye mkanganyiko yaiiyoeiezwa na mieta maombbi". Page 6 of 10 Literally means that the applicant sent the respondent to represent them in the United Kingdom, she had no option than travelling. Therefore, there were promises and the Commission believes this reason which was not controverted. I have navigated through the record and found that this issue was raised by the respondent in the CMA. The applicant challenged it on grounds that there is no proof by documentation that there were such promises. In my views I find in favour of the CMA and the respondent on reasons that though there is no documentation, the argument by the respondent is circumstantially proved. I say so because on the following series of events. One, on 15/1/2019 the applicant decided to transfer the respondent to a school which was not yet registered for operation. No reason was given for this move. Two, that event was followed by a promise to re-engage the respondent. However, in order to make her ends meet the applicant advised the respondent to seek for temporary employment somewhere else. Three on 24/1/2019 hardly two weeks after the applicant assigned the respondent to represent her to the United Kingdom and report at the diocese on return. While in preparation for the trip, she served the applicant with a letter dated 1/4/2019 asking to be paid her unpaid February and March salaries. Page 7 of 10 Four, the applicant reacted by writing the letter dated 2/4/2019 which purports to terminate her employment. I have read the said letter, it is titled "Maombi ya mshahara wako wa mwezi February na March 2019". The contents show that the request was accepted and then it stated that the new unregistered school would not be able to pay her salaries until starts working meanwhile she was advised to seek employment anywhere else and will apply afresh for the post after the school starts operations. The wording of the letter does not state about termination of the employment contract. In my views the respondent contentions that when she returned indulged into negotiations is sound. The CMA was right in its findings in respect of the issue of negotiations. The last issue of complaint is on the finding of technical delay by the CMA. The contention by the applicant's counsel is that the first application was not field within time, it was delayed for five months from 2/4/2019 to 11/9/2019. The counsel for the respondent insisted that the delay was within the principle of technical delay. The reason he gave is that the first application was dismissed on technicalities and this court directed refiling in her absence when she was admitted at Muhimbili Hospital. Page 8 of 10 I have visited the reasoning of the CMA on this area I could not trace anywhere that it based its decision on the principle of legal technicality as a ground for granting the condonation though it was argued by the parties in their submissions. Since this issue was not dealt with by the CMA, I don't see any reason to discuss it here. To this end I find that the CMA was correct in law to grant the condonation. Rule 31 of the Labour Institutions (Mediation and Arbitration) Rules GN No. 64 of 2007 empowers the CMA to condone any failure to comply with the time frame on good cause it reads;- "31 The Commission may condone any failure to comply with the time in these rules on good cause" The CMA rightly reasoned when granting the condonation as follows; "Katika kuangalia matarajio ya kufanikiwa, naonelea kwamba kwa mtiririko wa matukio ya wajibu maombi ni vyema mleta maombi akapewa nafasi ya kusikilizwa kesi yake ya msingi. Vi/evi/e, wajibu maombi hawajaeieza ni madhara gani watakayoyapata endapo mleta maombi ataruhusiwa kuwasiHsha shauri lake nje ya muda". Literally means basing on expectation by the respondent and the series of the events it is convenient for her to be given opportunity to present her Page 9 of 10 case because the respondent (now applicant) did not show any prejudicial in case time is extended. In the same spirit of the CMA, I find it expedient for her case to be heard on merit this will bring more convenience than inconvenience to the parties. In the result I find the application void of merit. Consequently, I dismiss it. The CMA is directed to continue with hearing of the Labour Dispute No. CMA/KIG/237/2021/6 already filed by the respondent via Form CMA-F8 dated 22/10/2021. It is so ordered. F.K. Manyanda Judge 31/5/2022 Page 10 of 10