ZAITUNI MZAVA V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 24826 OF 2024 (Arising from Decision issued on 28/08/2024 by Hon. Kokusiima, L., Arbitrator in Labour Dispute No. CMA/DSM/ILA/112/2024 at Ilala) ZAITUNI MZAVA …...…………………...……….….………. APPLICANT VERSUS WAMBI LUBE OIL DISTRIBUTORS.……...…...…...…. RESPONDENT JUDGMENT Date of last Order: 03/12/2024 Date of Judgment: 13/12/2024 B. E. K. Mganga, J. Zaituni Mzava, the herein applicant, had employment relationship with Wambi Lube Oil Distributors, the herein respondent. It is undisputed by the parties that respondent terminated employment of the applicant. Applicant was aggrieved with the said termination as a result, she filed Labour dispute No. CMA/DSM/ILA/205/2021/2019/2022 before the Commission for Mediation and Arbitration (CMA) claiming to be paid TZS 685,209,045 being compensation for unfair termination, salary arrears and communication allowances. On 17th November 2023, Hon. William R, arbitrator, having heard evidence of the parties, issued an award in favour 1 of the applicant that termination was unfair consequently, the arbitrator awarded applicant to be paid TZS 11,731,362.8/= being the compensation for unfair termination, notice and severance pay. In the said award, the arbitrator salary arrears were not amongst the issues and that, that claim was time barred. It is undisputed by the parties that, none of them filed an application for revision before this court challenging that award. On 1st March 2024, applicant Labour Dispute No. CMA/DSM/ILA/112/2024 claiming to be paid TZS 441,600,000/= being salary arrears. In the referral form (CMA F1) applicant indicated that the dispute arose in May 2017. Since she was out of time, applicant filed also an application for condonation (CMA F2). In CMA F2, applicant indicated that she was late for 1825 days. On reason for the delay, applicant indicated that, she claimed the said salary arrears but the respondent instead of paying her, terminated her employment as a result, she filed the dispute at CMA, but the arbitrator decided the dispute without considering her salary arrears claims. In the affidavit in support of condonation applicant stated inter-alia that, she filed a labour dispute relating to unfair termination and that, in her evidence, she testified that she was also claiming salary arrears. That, in the award, the arbitrator awarded her only 2 based on unfair termination and that, she was supposed to file another claim relating to salary arrears. In opposing the application for condonation, respondent filed the counter affidavit sworn by Jonathan Mwanayongo. In the said counter affidavit, the deponent deponed inter-alia that, applicant had no claim of salary arrears. The deponent also deponed that, applicant was awarded to be paid 11,731,362.8 and that, the claim of salary arrears was time barred. On 28th August 2024, Hon. Kokusiima, L, arbitrator, having considered evidence of the parties in the affidavit in support of the application and the counter affidavit in opposition and submissions made thereof on behalf of the parties, dismissed the application for condonation for want of merit. In her ruling, the arbitrator found that applicant failed to adduce good reason for the delay. Being dissatisfied with the ruling, applicant filed the notice of application supported by her affidavit raising two grounds namely: - 1. The arbitrator erred in law and facts by failure to analyse issues raised by the applicant hence dismissing the application for condonation and 2. The arbitrator erred in law and fact in dismissing the application for condonation while applicant adduced good reasons for the delay. In opposing this revision, respondent filled the notice of opposition supported by the counter affidavit sworn by Jonathan Mwanayongo. 3 When the application was called on for hearing, Mr. Edward Simkoko, Personal Representative appeared and argued for and on behalf of the applicant while Mr. Daudi Mzeri, learned Advocate appeared and argued for and on behalf of the respondent. Arguing in support of the 1st ground, Mr. Simkoko submitted that applicant filed the dispute claiming salary arrears. He also argued that, the dispute arose in May 2017 and on 1st March 2024 applicant filed the dispute at CMA together with an application for condonation. He further submitted that, applicant stated that she was terminated at the time she was claiming for salary arrears on 18th June 2021. He went on that, applicant was terminated prior to filing the dispute claiming salary arrears because, the parties were in negotiation on how to resolve salary claims based on two contracts that were providing two different salaries. Simkoko submitted that, reasons for the delay is that, the matter was before CMA before Hon. William, arbitrator. Upon being propped by the court, Simkoko conceded that, in the dispute that was before Hon. William, arbitrator, the issue was only termination and not salary arrears. Mr. Simkoko also submitted that, the other reason for the delay is that, the matter was before the labour commissioner who was 4 communicating with the respondent. He added that, since the matter was before CMA, applicant cannot account for each day of the delay because, it is a technical delay. To support his point, he referred the Court to the case of Amani Girls Home vs Isack Charles Kanela, Civil Application No. 325/08 of 2019, CAT (unreported). He concluded that the arbitrator erred for not analysing issues raised by the applicant. On the 2nd ground, Mr. Simkoko submitted that, applicant adduced good reason for the delay. He went on stating that, there were two conflicting contracts that were supposed to be considered by the arbitrator to grant the application for condonataion so that the matter can be heard on merit. He strongly submitted that, presence of two contracts was a good reason for granting condonation. With those submissions, Mr. Simkoko prayed the Court to allow this application. Resisiting the aplication, Mr. Mzeri submitted that, according to the CMA F1, the dispute arose in May 2017 and applicant filed the dispute relating to salary arrears on 1st March 2024. He added that, that was 2,555 days of the delay that were not accounted for by the applicant. He went on that, in terms of rule 10(2) of the Labour Institutions (Mediation and Arbitration) Rules, GN. No. 64 of 2007 other disputes including salary 5 arrears must be filed within 60 days. Counsel for the respondent further submitted that, applicant was supposed to account for each day of the delay but she did not. He added that, applicant was also suppose to adduce good reasons for the delay of which also she failed. He went on that, in the affidavit in support of the application for condonation, applicant stated that she delayed to file the dispute because she was in negotiation with the respondent. Counsel cited the case of Magnet Construction Limited vs Bruce Wallace John, Civil Appeal No. 459 of 2020, CAT(unreported) were it was held that, condonation can only be granted if sufficient cause is shown and the case of Ludger Bernard Nyoni vs National Housing Corporation, Civil Application No. 372/01 of 2018, CAT(unreported) were it was held that, in an application for condonation, reasons must be adduced because condonation is not to be had merely for asking, a full detail and accurate account of the causes of the deal and its effects must be furnished so as to enable the court to understand clearly the reasons and to asses the responsibility. He concluded that, applicant failed to adduce sufficient cause hence, arbitrator was justified to dismiss the application for condonation and prayed the application be dismissed for want of merit. 6 In rejoining, Mr. Simkoko submitted that, applicant was terminated in 2021 and started making follow up of the claim, as a result, she filed this application in 2024. He reiterated his prayer the application to be granted. I have considered evidence of the parties in the affidavit in support of the application for condonation and the counter affidavit in opposition thereof contained in the CMA record, the ruling that dismissed the application for condonation, the subject of this application and the grounds and submissions made on behalf of the parties before this Court. As pointed out herein above, in both CMA F1 and CMA F2, applicant indicated that the dispute arose May 2017. This is according to rule 11(1) of GN. No. 64 of 2007. In CMA F2 she further indicated that she was out of time for 1825 days and that she filed dispute of unfair termination and salary arrears, but the arbitrator only issued an award without considering the claim of salary arrears. In the affidavit in support of the application for condonation, applicant attached the judgment of this Court in Labour Revision No. 439 of 2021(as AP4) between the parties arising from the ruling delivered on 24th September 2021 by Hon. Chengula, Mediator arising from Labour dispute No. CMA/DSM/ILA/205/21 at CMA Ilala. In the said judgment, it shows that, on 24th June 2024, applicant filed the dispute at CMA claiming to be reinstated or be paid TZS 669,997,500 as she was 7 unfairly terminated. It is clear in the said judgment that, in CMA F1, applicant indicated that the dispute arose on 18th June 2021. This court allowed the said revision and directed the parties to go back to CMA so that the preliminary objection can be heard properly because, at the time of arguing the preliminary objection, the mediator received evidence and disposed the preliminary objection that was raised by the respondent. See Zaituni Mzava vs Wambi Lube Oil Distributor Ltd (Revs Appl No. 439 of 2021) [2022] TZHCLD 639 (17 June 2022) by Mganga, J. In addition to the said judgment, applicant attached an award as annexture AP5 issued on 17th November 2023 issued by Hon. William, R, Arbitrator in Labour dispute No. CMA/DSM/ILA/205/2021/219/2022. I have read the said award and find that the dispute was relating to unfair termination. In the said award, the arbitrator indicated that the dispute was returned to CMA after the decision of this Court in Labour revision No. 436(sic) of 2021 by Mganga, J. In the said award, the arbitrator indicated that there were four issues namely, (i) whether the dispute was filed within time, (ii) whether respondent had fair reason of termination of the applicant’s employment, (iii) whether procedures for termination were adhered to and (iv) to what reliefs are the parties entitled to. Having considered evidence of the 8 parties, the arbitrator found that termination was unfair and awarded applicant to be paid 11,731,362.8. In the application for condonation, as pointed out herein above, applicant stated that she filed the dispute at CMA claiming also to be paid salary arrears, but the arbitrator considered on the dispute of unfair termination. It was submitted on behalf of the applicant that there were two contracts that is the base of the claim of salary arrears. I have examined the CMA award, annexture AP5 to the affidavit in support of the application for condonation that is evidence in the CMA record and find that, at page 20 of the said award, the arbitrator indicated that applicant tendered contract of employment (exhibit A1) showing that her monthly salary was Ten Million Tanzanian Shillings but respondent tendered a contract of employment(exhibit D1) showing that applicant’s monthly salary was Ten Million Tanzanian shillings per annum. The arbitrator pointed out that the amount of monthly salary was not amongst the issues that were framed but came out during evidence. The arbitrator further pointed out that after scrutinizing the original contract of employment (exhibit A1) she noted that monthly salary of the applicant was TZS 833,375.50 hence she awarded the applicant based on that salary. 9 It is my view from the foregoing that, if applicant was aggrieved with the said award as she claims that, the arbitrator did not consider the issue of salary arrears, she was supposed to file an application for revision before this court and not to go back to CMA to file an application for condonation. That was an issue to be determined on revision and not to file a fresh application for condonation. I am of that view because, the claim of salary arrears is based on the two contracts namely exhibits A1 and D1 hence the proper forum was revision so that this court can consider whether the arbitrator was justified or not. It was submitted on behalf of the applicant that the delay is technical because applicant was at CMA and that based on the said alleged technical delay, she was not supposed to account for the delay. With due respect to Mr. Simkoko, there is no technical delay whatsoever because, in no time applicant filed at CMA the dispute relating to salary arrears. More so, there is no proof that the alleged dispute of salary arrears become out of time on technical reasons. In absence of proof that applicant once filed the dispute of salary arrears and the same became out of time on technical grounds, all judgments cited on behalf of the applicant cannot help her in this application. In short, applicant was supposed to account for each day of the delay from May 2017 to March 2024 the time she filed the application 10 for condonation. I agree with counsel for the respondent that applicant failed to discharge that duty. In addition to that, submissions on behalf of the applicant based on applicant’s affidavit that she referred the matter to the labour commissioner, cannot be a ground for granting this application. I am of that view because, in the affidavit in support of the application for condonation, applicant stated that on 18th June 2023 respondent terminated her employment after disagreeing with her salary arrears claims. Be as it may, in the judgment of this court, Zaituni Mzava vs Wambi Lube Oil Distributor Ltd (Revs Appl No. 439 of 2021) [2022] TZHCLD 639 (17 June 2022) it was indicated that termination of the applicant’s employment according to CMA F1 was on 24th June 2021. That date of termination is reflected in the aforementioned award as it was recorded in her evidence all being part of her evidence. It is my view, that applicant told lie in paragraph 9 of the affidavit in support of the application when she stated that the date of termination of her employment is 18th June 2023 while the judgment of this Court and the award that are part of her affidavit shows termination was on 18th June 2021. I assume that it was a slip of the pen to write 2023 instead of 2021. Yet, no reasons advanced by the applicant as to why she did not include the claim of salary arrears in that dispute. If applicant thought that filing an 11 application for condonation was the proper way, then, she was supposed to account for the delay and give good grounds for the delay. As pointed out hereinabove, all these are lacking in applicant’s affidavit. For the foregoing, I find this application to have no merit. I therefore hereby uphold CMA ruling and dismiss it for want of merit. Dated at Dar es Salaam on this 13th December 2024 B. E. K. Mganga JUDGE Judgment delivered on 13th December 2024 in chambers in presence of Edward Simkoko, personal representative of the Applicant but in absence of the respondent. B. E. K. Mganga JUDGE 12