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HIGH COURT OF TANZANIA

LABOUR COURT DIVISIONLABOUR COURT CASE DIGEST

2011 - 2012

LABOUR COURT CASE DIGEST 2011 - 2012

ii

EDITORIAL BOARD

EDITOR

Cornel K. Mtaki, (Dr.), School of Law, University of Dar-es-Salaam

Sub- Editor

Perfect Melkiori, School of Law, University of Dar-es-Salaam


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SCOPE OF THE SERIES

These Digests cover labour cases decided in the High Court of Tanzania, Labour Court Division

CITATION

These Digests are cited thus [2011-2012] LCCD 1

The number in the square brackets indicates the year of the Digest and the final number indicates the number of the digested case not the page

number. The page number against each case is shown in the Index of Cases


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IDENTIFICATION OF CASES

The system of identifying cases which are digested is shown by the following example:

(a) 1. (b) Tanzania Electric Supply Company Limited v. Mariam Mtoro Khalfan, (c) Lab Div., (d) DSM, (e) Revision No. 51 of 2011, (f ) 08/07/2011, (g), S.C. Moshi, J. whereas:

(a) Refers to the number of the case digested;

(b) Refers to the names of the parties in the dispute/case;

(c) Refers to the Court, i. e. Labour Division;

(d) Refers to the place in which the case/dispute was heard, or to whose Registry the case/ dispute was assigned by the Labour Court. The place or Registry is abbreviated as the case may be. ARS is Arusha; BKB is Bukoba; DSM is Dar-es-Salaam; DDM is Dodoma; MBY is Mbeya; MRG is Morogoro; MSM is Musoma; SHY is Shinyanga; and TBR is Tabora. Where this may not be appropriate, the name of the place or Registry is given in full, e.g. Tanga.

(e) This indicates the year in which the case/dispute was filed with the Labour Court Division and assigned a case/ dispute number.

(f ) This indicates the date appearing on the decision handed down by the Labour Court

(g) This refers to the High Court Justice who decided the case/dispute and wrote the judgment, ruling or order.


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JUDGES OF THE HIGH COURT OF TANZANIA - LABOUR

COURT DISIVION IN 2011/2012

1. The Hon. Madam Justice R.M. Rweyemamu - Judge –in- Charge

2. The Hon. Madam Justice S.C. Moshi - Puisne Judge

3. The Hon. Madam Justice S.A.N. Wambura - Puisne Judge

4. The Hon. Mr. Justice K. D. Lyimo - Puisne Judge


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INDEX OF CASES DIGESTED

A

Abdallah Kiwigu Vs. Mkurugenzi Mkuu SBC (T) Ltd. 111/2011- 2012 ............................................................................................228

Abdallah Nabahani Vs. Triple “D” Ltd. 48/2011-2012 ..................84

Abdul Swamadu Rwegashora Vs. DAWASCO 33/2011-2012 .........65

Abubakar Haji Yakubu Vs. Air Tanzania Co. Ltd. 104/2011-2012 211

Agness Protas Vs. Dar es Salaam and Sewarage Corporation (DAWASCO) 72/2011-2012 .............................................................................148

Ahmed Ausi & 297 Others Vs. Kilimanjaro Hotels Co. Ltd. & Consolidated Holdings Corporation 79/2011-2012 ............................................162

Ahmed Rashid Chausa & 15 Others Vs. Keys Hotel Limited 98/2011-2012 ............................................................................................196

Alex Zablon Andaresoni Vs. Max Care Ltd. 64/2011-2012 ............124

Aloyce Assenga Vs. Moshi University College of Cooperative and Business Studies (MUCCOBS) 69/2011-2012 ............................................142

Alhamdu Ndimkanwa & Others Vs. Director Vic Fish 9/2011-2012 18

Alliance One Tobacco Ltd., Vs. George Msingi 77/2011-2012 .........158

Alliance One Tobacco Tanzania Ltd. Vs Erasto Mbinda 110/2011-2012 226

Anthony J. Chuwa Vs. Kilombero Sugar Co. Ltd. 78/2011-2012 ....161

Azizi Ally Aidha Adam Vs. Chai Bora Ltd. 65/2011-2012 .............127


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B

Bank of Tanzania Vs. Elisa Issangya 94/2011-2012 .......................190

Benedict Komba Vs. Knight Support (T) Ltd. 34/2011-2012..........66

BMZ/UHNCR/GTZ Kigoma Vs. Ally Khalfani & 28 Others 29/2011-2012 ............................................................................................53

Bonite Bottlers Ltd. Vs. William Issa 18/2011-2012 .......................35

BP Tanzania Ltd., Vs. Alex Lwabina 62/2011-2012......................118

C

Cami Apparel Vs. Balozi Msuya & 231 Others 106/2011-2012 .....217

Coca Cola Kwanza Ltd., Vs. Kajeri Misyangi 3/2011-2012 ...........3

China Railway Jiang Engineering Vs. Sharifa Juma 56/2011-2012 ....................................................................................................102

Christina Pius Vs. National Parking Solution 32/2011-2012 .........63

D

Denis Kalua Said Mngombe Vs. Flamingo Cafeteria 49/2011-2012 ....................................................................................................85

Director Ptotrans Ltd., Vs. Daud Mohamed & Another 5/2011-2012 ....................................................................................................8


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E

Epidor French Bakery Ltd. Vs. Nicholas Tabarini 96/2011-2012 ...193

Ephraim Joram Vs. Director Tanga Cement Company Ltd. 112/2011-2012 ............................................................................................230

Edna Robert Vs. Tanzania Revenue Authority 16/2011-2012 .........32

Evelin Mshimiki & 45 Others Vs. Tanzania Breweries Limited 39/2011-2012 ............................................................................................74

Ezekiel Andrew Vs. Africanlife Tanzania 35/2011-2012 ................67

Ezra Timothy Kanga Vs. Group 7 PTY Ltd. 85/2011-2012 ...........173

F

Fatuma Ally Kalaghe Vs. Gema Security Services Ltd. 36/2011-2012 ....................................................................................................68

G

General Guards & Office Cleaner Vs. Chacha Masuri & 29 Others 19/2011-2012 ...........................................................................39

General Manager METL G.D. Estates Tukuyu Vs Jacob Chaula & 71 Others 74/2011-2012 .................................................................151

Gema Security Service Ltd. Vs. Gozibeth N. Lugakingira 95/2011-2012 ..................................................................................................192

George Japhet Kiboko & 31 Others Vs. Kobil Tanzania Limited 93/2011-2012 ..........................................................................................187

Gerald Bitaliho Vs. Nyota Tanzania Ltd. 101/2011-2012 ............203


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Globeleq Tanzania Services Ltd. Vs. Evarist Sessa 14/2011-2012 ..27

Gregory L. Ndanu Vs Fair Competition Commission 68/2011-2012 ..................................................................................................139

H

Hassan Njama & Others Vs. Muhimbili National Hospital 50/2011-2012 ..........................................................................................87

Hector Sequeira Vs. Serengeti Breweries Ltd. 44/2011-2012 ..........80

Hemed Omary Kimwaga Vs. SBC Tanzania Ltd. 87/2011-2012 ..176

Hussein Ngaluma Vs. Carmelite Fathers Roman Catholic 51/2011-2012 ..................................................................................................88

I

Ibrahim Msagaje Vs. Micro Community Development 40/2011-2012 ..................................................................................................75

Ikupa Edward Kassege Vs. GoldStar Paints (T) Ltd. 13/2011-2012 25

Issack Chiwinga Vs. Mbeya Cement Co. Ltd. 66/2011-2012 ........131

J

Jabiri Saidi Vs. M/S Prashant and Hardware 42/2011-2012 ........77

Jamana Printers Ltd. Vs. Rashid Yusuph Pande 80/2011-2012 .....164

James Yambo Misangia Vs. Vice Chancellor Muhimbili University of Health Sciences 109/2011-2012 ..................................................224


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Jane Chabruma Vs. National Microfinance Bank 63/2011-2012 ..121

Jane Nshunju Pesha Vs. N.S.S.F. 24/2011-2012 ..........................46

Joachim Walter & 6 Others Vs. Venture Communications East and Central Africa; Mrs Urmelaben Pater and Huila Calvin Mlama 55/2011-2012 ..................................................................................................99

John Nassoro Mwanjila Vs. Shree Hindu Mandal Hospital 81/2011-2012 ..........................................................................................165

Judicate Rumishael Shoo & 64 Others Vs. The Guardian Ltd. 20/2011-2012 ..........................................................................................40

Julius Rutabanja Vs. JSI Research & Training Institute Inc. 82/2011-2012 ..........................................................................................168

Juma Makunda & 3 Others Vs. Namanga Bureau De Change Ltd. 97/2011-2012194

K

Kelvin Ngongi & 21 Others Vs. Speed Security Services Ltd. 42/2012 ..................................................................................................77

Kenya Kazi Security (T) Ltd., Vs. Jackson Magige 45/2011-2012 . ..................................................................................................81

M

Makongo Secondary School Vs. Clement Kyando 83/2011-2012 ...170

Malaik K. Mwasungi Vs. Tanzanite One Mining Ltd. 28/2011-2012 ..................................................................................................52


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Managing Director Southern Link Vs. Khamis M. Mgeleka 37/2011-201270

Mariam H. Maganga Vs. National Institute of Transport 43/2011-2012 ..........................................................................................78

Markitha Y. Mputo Vs. Choice Investment Co. Ltd. 61/2011-2012 ..................................................................................................116

Masenza Richard Vs. Alaf Ltd. 46/2011-2012 .............................82

Masoud Kondo & 3 Others Vs. M/S Tanganyika Investment Oil Transport 17/2011-2012 ...........................................................................33

Mbeya Cement Company Limited Vs Leonard Mwakunja 75/2011-2012 ..........................................................................................154

Method Shabani Nyanda Vs. Major Drilling Mwanza 10/2011-2012 ..................................................................................................20

Mkunja Kurupe na Wenzake 6 Vs Director Tanzania Fish Processors 2/2011-2012 .............................................................................2

M/S Tanpack Tissues Limited Vs. Said Mohamed 57/2011-2012 ..104

Mwango Shaibu & 7 Others Vs. Superdoll Trailer Manufacturers (T) Ltd. 91/2011-2012 ...........................................................................184

Mwl. Giddo Vintanmwenda Vs. The Njombe District Executive Director, Mbeya; The Executive Secretary Teachers Service Department Headquaters Dar es Salaam; The Executive Secretary Public Service Commission Dar es Salaam; The Attorney General, The Attorney General’s Chambers Dar es Salaam & His Excellency The President of the United Republic of Tanzania, Dar es Salaam 102/2011-2012 ...................................204


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N

Nestory Kilala Ngulla, Godfrey Kambenga, Benedicto Raphael and Ernest Kangwa Vs. President, Trade Union’s Congress of Tanzania (TUCTA) and Trade union’s Congress of Tanzania (TUCTA) 4/2011-2012 .........5

Nufaika Distributor Ltd. Vs. Hawa c/o Choma TUICO 8/2011-2012 ..................................................................................................16

N.S.S.F. Vs. Issa Sasilo Majid 25/2011-2012 ..............................48

O

Oceana Advanced Industries Ltd. Vs. Obedient G. Kimaro & Others 107/2011-2012 .........................................................................220

Omary Mwinyimvua na Wenzake Vs. M/S Sengo 2000 (T) Ltd. 21/2011-2012 ..........................................................................................43

Othuman Mkuchela Vs. Shekhat Hissa Islamic Seminary 59/2011-2012 ..................................................................................................112

P

Patricia M. Rwagatare Vs. Dorcas Albert Minja 53/2011-2012 ....91

Paul Lihamwika Vs. Cocacola Ltd. 76/2011-2012 .......................156

Prokon Renewable Energy Ltd. Vs. Medard Gatwa & 10 Others 26/2011-2012 ..........................................................................................49

Provincial Secretary General (FIBUKA) and Financial Industrial Banking Utilities Commercial (FIBUKA) Vs. Board of Trustees of N.S.S.F. & 20 Others 38/2011-2012 .................................................................72


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PSRC/CHC & Mbarali Rice Farms Vs Rajabu Athuman & Others 88/2011-2012 ...........................................................................177

Q

Quality Group Ltd. Vs. Philbert Alex Chesso 60/2011-2012 .........114

R

Ramadhani H. Ramadhani Vs. Andro Roofing Product Ltd. 22/2011-2012 ..........................................................................................44

Rashid Benjamin and 6 Others Vs. Transcargo Ltd. 92/2011-2012 186

Remegius P. Kagaruki Vs. Kom Secondary School 58/2011-2012 ...110

Rev. Jonathan M. Mwamboza Vs. Bishop Dr. Stephen Munga, The Registered Trustees of North Eastern Diocese - ELCT 12/2011-2012 ..................................................................................................22

Rogart Lyakurwa Vs. Kaisi H. Munisi 30/2011-2012 ..................58

S

Salome Mussa Lyamba Vs. K.K. Security (T) Ltd. 99/2011-2012..198

Samwel M. Mzava Vs. Regional Manager (T) Zambia Railway Authority 105/2011-2012 .........................................................................216

Shabani Mohamed Vs. Keko Garage Ltd. 15/2011-2012 ..............30

Shila Anthony Vs. Varsan Dewji Ramji Co. Ltd. 47/2011-2012 ...83

Simba Steel Limited Vs. William Geofrey & 4 Others, Rev. No. 30 of 2011 84/2011-2012 ..................................................................171


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Sosthenes Muyambo & 24 Others Vs V. I. Tree Planting Foundation 89/2011-2012 ...........................................................................179

Steere Ndaona Vs. Oriental Construction Co. Ltd. 67/2011-2012 136

Suleiman Mrisho Sumay Vs Mint Master Security (T) Ltd. 73/2011-2012 ........................................................................................149

T

Tanzania Automotive Technology Centre Vs. LT. Co. Lawrence L. Mwakipesile 100/2011-2012 ....................................................201

Tanzania Building Works Ltd. Vs. Ally Mgomba & 4 Others 103/2011-2012 ........................................................................................207

Tanzania Electricity Supply Company Limited Vs Mariam Mtoro Khalfan 1/2011-2012 ...............................................................1

Tanzania Insurance Regulatory Authority Vs. Yusufu Ali Laiza 86/2011-2012 ........................................................................................175

Tanzania Oxygen Limited Vs. Juma Nkondo 108/2011-2012 .....221

Tanzania Plantation and Agricultural Workers Union Vs. M/S UNITRANS (T) Ltd. 54/2011-2012 ........................................93

Tanzania Telecommunications Company Ltd. Vs Bwire Nyamwero 90/2011-2012 ..........................................................................181

Tanzania Telecommunication Ltd., Vs. Esterabdon Malegesi 6/2011-2012 ........................................................................................13

Tanzania Telecommunication Ltd.Vs. Esterabdon Malegesi 23/2011-2012 ........................................................................................45

Tanzania Telecommunications Co. Ltd., Vs. Teveraeli Ngalami 31/2011-


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2012 ........................................................................................60

Tanzania Union of Industrial and Commercial Workers (TUICO) Vs. The Registrar of Organizations: and Finance, Industrial, Banking, Utilities, Commercial and Agro Industries Trade Union (FIBUKA). 70/2011-2012 ..........................................................................144

TASIWI Vs. SSB & Co. Ltd. 71/2011-2012 ..............................146

The Registered Trustees of ELCT North Western Diocese Vs. Mutagahywa Kagisa 7/2011-2012 .................................................................14

Thobias Ndege Vs. Mwatex (2001) LTD. 11/2011-2012 ............21

U

Ultimate Security (T) Ltd., Vs. Dosaji Ismail 52/2011-2012 ......90

2000 Industries Ltd. Vs. Halima Z. Giteta & 8 Others 27/2011-2012 ................................................................................................50


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SUBJECT INDEX – GENERAL

Application for leave to appeal to the Court of Appeal of Tanzania: 105/2011-2012

Application of Civil Procedure Code: 7/2011-2012; 9/2011-2012; 14/2011-2012 81/2011-2012; 108/2011-2012

Application of Code of Good Practice Rules: 63/2011-2012

Appointment of an Arbitrator: 65/2011-2012

Award: 1/2011-2012; 23/2011-2012; 26/2011-2012; 28/2011-2012; 29/2011-2012; 34/2011-2012; 57/2011-2012; 58/2011-2012; 62/2011-2012; 75/2011-2012; 101/2011-2012; 103/2011-2012

Arbitrator’s / Mediator’s Powers: 36/2011-2012; 60/2011-2012; 86/2011-2012 95/2011-2012;

By- passing Mediation / Arbitration: 11/2011-2012; 44/2011-2012

Combined Mediation and Arbitration: 65/2011-2012

Condonation: 6/2011-2012; 19/2011-2012; 32/2011-2012; 33/2011-2012; 40/2011-2012; 47/2011-2012; 94/2011-2012; 99/2011-2012

Constitutionality of the Provision of Law: 63/2011-2012

Defective Notice / Complaint: 64/2011-2012; 68/2011-2012

Defective /Supplementary Affidavit: 13/2011-2012; 25/2011-2012; 35/2011-2012; 43/2011-2012; 48/2011-2012; 97/2011-2012; 98/2011-2012

Employment Contracts: 51/2011-2012

Evidence: 106/2011-2012

Execution of Decree: 108/2011-2012;


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Exclusive Bargaining Unit: 54/2011-2012

Ex-parte Hearing: 61/2011-2012

Failure to File Written Submissions: 84/2011-2012

Improper Application: 23/2011-2012; 30/2011-2012; 69/2011-2012; 72/2011-2012; 78/2011-2012; 90/2011-2012; 91/2011-2012

Improper Citation of Law: 2/2011-2012; 7/2011-2012; 15/2011-2012; 19/2011-2012; 35/2011-2012; 38/2011-2012; 42/2011-2014; 47/2011-2012; 58/2011-2012; 68/2011-2012; 78/2011-2012; 80/2011-2012; 82/2011-2012; 89/2011-2012; 91/2011-2012; 100/2011-2012; 102/2011-2012; 108/2011-2012

Improper Pleadings: 30/2011-2012

Interlocutory Matter: 106/2011-2012

Jurisdiction: 6/2011-2012; 7/2011-2012; 8/2011-2012; 12/2011-2012; 13/2011-2012; 14/2011-2012; 15/2011-2012; 18/2011-2012; 19/2011-2012; 20/2011-2012; 22/2011-2012; 58/2011-2012; 60/2011-2012; 66/2011-2012; 68/2011-2012; 80/2011-2012; 81/2011-2012; 84/2011-2012; 93/2011-2012; 94/2011-2012; 102/2011-2012; 103/2011-2012; 104/2011-2012; 108/2011-2012

Keeping Records/record of Proceedings: 10/2011-2012; 11/2011-2012; 29/2011-2012; 31/2011-2012; 43/2011-2012; 75/2011-2012; 86/2011-2012; 107/2011-2012

Lacuna in Law: 20/2011-2012

Leave Allowance: 17/2011-2012

Legitimate Expectation: 49/2011-2012; 74/2011-2012

Limitation/Extension of Time: 2/2011-2012; 6/2011-2012; 8/2011-2012; 19/2011-2012; 24/2011-2012; 27/2011-2012; 40/2011-2012; 44/2011-


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2012; 47/2011-2012; 79/2011-2012; 81/2011-2012; 83/2011-2012; 90/2011-2012; 94/2011-2012; 98/2011-2012; 99/2011-2012; 102/2011-2012; 112/2011-2012

Medical Treatment costs / Ill health: 73/2011-2012;

Misconduct: 16/2011-2012; 53/2011-2012; 57/2011-2012; 65/2011-2012; 66/2011-2012; 75/2011-2012; 77/2011-2012

Misjoinder of Parties/causes of Action: 4/2011-2012; 38/2011-2012; 71/2011-2012

Non Appearance of a Party: 61/2011-2012

NSSF / PPF Payment: 17/2011-2012; 37/2011-2012; 66/2011-2012

Omnibus Application: 1/2011-2012; 71/2011-2012;

Organisational Rights: 54/2011-2012; 71/2011-2012

Particulars of Employment: 5/2011-2012; 22/2011-2012; 74/2011-2012

Principles of staredecis and Precedent: 64/2011-2012

Probationary Employees: 63/2011-2012; 67/2011-2012

Substantive / Procedural Fairness/error: 16/2011-2012; 39/2011-2012; 53/2011-2012; 55/2011-2012; 56/2011-2012; 65/2011-2012; 68/2011-2012; 69/2011-2012; 75/2011-2012; 85/2011-2012; 86/2011-2012; 95/2011-2012; 96/2011-2012; 97/2011-2012; 104/2011-2012

Procedure for Revision: 18/2011-2012; 90/2011-2012; 91/2011-2012

Remedies: 12/2011-2012; 14/2011-2012; 44/2011-2012; 75/2011-2012; 77/ 2011-2012; 87/2011-2012; 97/2011-2012;

Repatriation: 13/2011-2012; 17/2011-2012

Representative Suit: 4/2011-2012; 39/2011-2012; 42/2011-2012; 46/2011-2012; 93/2011-2012


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Representation Right: 42/2011-2012; 106/2011-2012

Retrenchment: 9/2011-2012; 20/2011-2012; 37/2011-2012; 67/2011-2012; 92/2011-2012; 98/2011-2012; 103/2011-2012

Right to be Heard: 28/2011-2012; 50/2011-2012; 69/2011-2012; 77/2011-2012

Rule against Double - jeopardy: 63/2011-2012

Service of Summons: 60/2011-2012

Settlement Deed / Settlement During Mediation: 41/2011-2012

Termination / Retirement of Employee: 3/2011-2012; 13/2011-2012; 16/2011-2012; 45/2011-2012; 50/2011-2012; 61/2011-2012; 66/2011-2012; 67/2011-2012; 74/2011-2012; 76/2011-2012; 97/2011-2012; 109/2011-2012; 110/2011-2012

Terminal Benefits: 3/2011-2012; 5/2011-2012; 13/2011-2012; 39/2011-2012; 45/2011-2012; 61/2011-2012; 62/2011-2012; 63/2011-2012; 66/2011-2012; 67/2011-2012; 69/2011-2012; 76/2011-2012; 85/2011-2012; 111/2011-2012

Unfair Termination: 20/2011-2012; 59/2011-2012; 61/2011-2012; 63/2011-2012; 65/2011-2012; 67/2011-2012; 73/2011-2012; 77/2011-2012; 92/2011-2012; 96/2011-2012; 97/2011-2012; 104/2011-2012; 111/2011-2012

Wage Orders: 54/2011-2012

Working Hours / Overtime: 5/2011-2012; 17/2011-2012; 21/2011-2012; 62/2011-2012; 67/2011-2012


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SUBJECT INDEX – CASE BASIS

1. Tanzania Electricity Supply Company Limited Vs. Mariam

Mtoro Khalfan, Rev. No. 51 of 2010

· Omnibus applications - The application for execution and the application for revision are two distinct and separate applications each with its own procedures

· Setting aside of ex parte award - The law allows the Commission for Mediation and Arbitration (CMA) on sufficient ground to set aside the matter which proceeded ex-parte - Application ought to have been preferred to the CMA assigning reasons which caused the default for appearance

2. Mkunja Kurupe na Wenzake 6 Vs. Director Tanzania Fish

Processors, Misc. Lab. Appl. No. 25 of 2008

· Improper citation of law - The proper provisions to move the court in the present case was Rule 24 and 56 (1) of the Labour Court Rules, GN 106/2007

· Citation of the general Law of Limitation Act, Cap 88 – whether it caused any miscarriage of justice

· Application for revision out of time - The applicants showed efforts to apply for revision in time however due to lack of information, they filed a wrong form - whether applicants advanced good reasons to file application for revision out of time


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3. Coca Cola Kwanza Ltd., Vs. Kajeri Misyangi, Rev. No. 238 of 2008

· Termination of employment - Rule 3 (2) (c) of the Employment and Labour Relations (Code of Good Practice) GN No. 42/2007 provides for categories of termination of employment under common law - One of the category, under Rule 3 (2) (c) is termination of employment by employee - Voluntary resignation, under our law is the termination of employment by employee

· Payment of terminal benefits - Terminal benefits can be paid only where termination of services was by employer or where it would be proved that the resignation amounted to constructive dismissal

· Severance pay - the law requires payment of severance when termination is by the employer

· Transport and subsistence allowance is paid where the employee is necessitated to quit a job on employer’s accord or at the end of the contract - since Respondent voluntarily resigned from employment, he is not entitled to be paid severance allowance, transport allowance nor substantive allowance

4. Nestory Kilala Ngulla, Godfrey Kambenga, Benedicto Raphael

and Ernest Kangwa Vs. President, Trade Union’s Congress of

Tanzania (TUCTA) and Trade union’s Congress of Tanzania

(TUCTA), Appl./Compl. No. 8 of 2010


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· Representative suit - Procedure for filing a representative suit as prescribed under rule 44 (2) (b) of LC Rules - The rule permits a party to appear and be heard on behalf of others having the same interest in the matter, only with permission of the court

· Misjoinder of parties and causes of action - The general rule is that different causes of action may be joined if they arise from the same transaction and the rights to relief must arise out of the same transaction.

5. Director Ptotrans Ltd., Vs. Daud Mohamed & Another, Rev. No. 173 of 2010

· Payment of terminal benefits - The applicant did not testify at the CMA nor submit in the court that the amount admittedly paid to the respondents after termination were part of the monies claimed as underpayment of salary or unpaid overtime nor did they file a counter claim for it – whether entiltled to the benefits

· Employer’s duty to keep particulars of employment - The duty to keep particulars of employment including mode of payment lies with the employer as per section 15 (5) (6) of the Employment and Labour Relations Act

· Working hours - Under section 19 (2) (c) of the Act, maximum work hours permitted in a day is 9


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6. Tanzania Telecommunication Ltd., Vs. Esterabdon Malegesi,

Misc. Appl. No. 48 of 2009

· Jurisdiction of the Labour Court - Section 94 (1) of the Employment and Labour Relations Act, No. 6/2004 - whether it gives exclusive jurisdiction of the matters arising from the Act to the Labour Court

· Time limitation for lodging an application for revision - The time limitation for lodging an application for Revision is provided for by the Act, section 91 (1) - whether the Act does not provide for the extension of time

· Rule 56 (1) is the proper Rule to be cited as the Court, is given discretion to abridge any period prescribed by the Rules or extend time limitation - whether the Law of Limitation Act is not applicable in this case

· Condonation of time limitation on good cause - whether Rule 56 of the Labour Court Rules gives discretion to the Court to condone time limitation on good cause

7. The Registered Trustees of ELCT North Western Diocese Vs.

Mutagahywa Kagisa, Rev. No. 1 of 2010

· Application of Civil Procedure Code - whether section 78 (b) of the CPC and section 91 (2) and (3) of Act No. 6/2004 apply and can be invoked in an application of this nature

· Citation of wrong provisions of law - Section 91 of Act No. 6/2004 on arbitration is inapplicable in this case - The application ought to have been made under Rule 27


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(1) of GN No. 106/2007 and the procedure to be followed has been outlined in Rule 26 (2) thereof.

· Jurisdiction of the executing court - Under section 94 (1) (d) of Act No. 6/2004 the court is empowered to make reviews of complaints, revision of awards issued in arbitration, and to purposely rectify some mistake or errors apparent on the record - whether the executing court had mandate to alter the terms of the agreed settlement

· Interpretation – whether the executing court grossly erred in interpreting the same to ensure that the intentions of the parties were realized

8. Nufaika Distributor Ltd. Vs. Hawa c/o Choma TUICO Rev. No. 256 of 2008

· Filing application out of time - whether the applicant’s explanation constituted ‘good grounds for delay’ for filing the application out of time

· Condonation - other factors like whether “the parties” contributed to the delay in preparation of the award; whether there were sufficient reasons to extend the time and....if any party’s rights were prejudiced...or a miscarriage of justice occasioned by the late delivery of the award must be taken into consideration

· Leave of the court to file an application out of time - whether good reasons do, without leave of the court, automatically justify filing the matter out of time

· Jurisdiction of the court - Issue of jurisdiction is


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fundamental- whether it can be raised at any time even by the court suo motu under its powers specified by rule 28 of the Labour Court Rules, GN 106/2007

9. Alhamdu Ndimkanwa & Others Vs. Director Vic Fish, Rev. No. 196 of 2009

· Retrenchment - Procedures for retrenchment - Section 38 (a) and (d) (i) - (iii) requires the employer not only to issue notice of intention to retrench part of the work force, but he must also disclose his intentions and consult with any trade union with members at the work place, which is registered and recognised under the law – whether individual retrenchees should also have been consulted

· Application of the Civil Procedure Code in the Labour Court - whether by virtue of section 51 of the Employment and Labour Relations Act, No. 6/2004, the Civil Procedure Act, Cap 3 of R.E. 2002 does not apply to the Labour Court - The Labour Court has its own rules of procedure as specified under Part III of GN 106 of 2007

10. Method Shabani Nyanda Vs. Major Drilling Mwanza, Rev. No. 191 of 2008

· Improper keeping of records / record of proceedings - whether the mediator miserably failed to keep a record of the mediation proceedings in terms of Rule 13 (1) and (4) (a) and (5) of the Labour Institutions (Mediation and Arbitration) Guidelines, GN 65 of 2007


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11. Thobias Ndege Vs. Mwatex (2001) LTD., Rev. No. 110 of 2009

· By passing mediation and arbitration - The mediator simply endorsed that mediation had failed and that the parties have agreed to go for arbitration - whether, under the circumstances the mediator did not perform his work as required

· Arbitrator did not keep or conduct arbitration, presumably on the belief that there was a collective agreement executed between the parties - there were no proceedings conducted and no proof of there being a collective agreement - whether it was improper for the arbitrator to act in the manner he did

· Improper keeping of records / record of proceedings - whether lack of proper record vitiates the proceedings

12. Rev. Jonathan M. Mwamboza Vs. Bishop Dr. Stephen Munga,

The Registered Trustees of North Eastern Diocese - ELCT, Disp. No. 1 of 2011

· Failure to exhaust local remedies available - Synod is the appropriate body to deal with the complainant’s claim; it has not refused to perform its functions; and there is no ground to restrain it from performing its functions - whether complainant can have recourse to it thereafter

· Jurisdiction of the Labour Court in religious dispute - Whether the jurisdiction of the court specified under section 94 of the Employment and Labour Relations Act, No. 6/2004 read together with section 51 & 52 of the Labour Relations Act, No. 7/2004, includes adjudication


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of claims like the present

13. Ikupa Edward Kassege Vs. GoldStar Paints (T) Ltd., Rev. No. 5 of 2010

· Jurisdiction of the court - court acts under section 94 (1) (b) (i) and Rule 28 (i) on its own motion, to revise proceedings in order to satisfy itself on proprietiness of the decision complained of – whether court acted lawfully

· Termination of employment - section 37 of the Employment and Labour Relations Act, No. 6/2004, and in particular subsection 2 (b) (i), and the arbitrator’s reasoning ,- whether all justify that termination of employment was fair under the circumstances

· Terminal benefits - amicable severance of the employer-employee relations which have gone sour – mode of payment of terminal benefits including the cost of repatriation of the applicant back to his place of domicile

· Defective affidavit - The affidavit sworn by a lay person is argumentative and in contravention of Rule 26 (2) (a) – whether it is bad in law - whether it is inappropriate to strike it out on mere procedural irregularity

14. Globeleq Tanzania Services Ltd. Vs. Evarist Sessa, Misc. Appl. No. 47 of 2010

· Wrong citation of the enabling provisions of the law - Rule 28 and sections 91 and 94 (1) (b) of the Employment and Labour Relations Act, No. 6/2004 which vest the court


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with revisionary powers - whether the provisions can be relied on to revise the Registrar’s decision even if the same is revisable under the labour laws

· Jurisdiction of the Labour Court in revisions and reviews under section 94 (1) (b) (i) – whether that power extends to revision of decisions of the Registrar - whether it only covers revision of arbitral awards and decisions of the Essential Services Committee made under Part VII of the Act

· Execution of decrees - applicability of the Civil Procedure Code in the Labour Court in matters of execution of the CMA decrees - Provisions of the Civil Procedure Code (Cap 33 R.E. 2002) are applicable where specifically provided for, or under rule 55 (1) of the Labour Court Rules 2007.

· Execution of decrees - The use of CPC is specifically provided for in matters of execution of the CMA decrees - Registrar(s) of the court, appointed under section 54 of the Labour Institutions Act, No. 7/2004 are responsible for execution of court decrees exercising powers conferred by provisions of Order XXI of the CPC

· Remedies to a party aggrieved by the Registrar’s decision in execution of the CMA decree - Aggrieved party has three options – One, apply for revision of the award - secondly, apply for review of the disputed award in the court and, thirdly put a machinery of reference under Order XLI of the CPC in motion


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15. Shabani Mohamed Vs. Keko Garage Ltd., Rev. No. 238 of 2009

· Jurisdiction of the court - The court’s powers to revise arbitration awards are provided by section 91 (1) of the Act, read together with rule 28 of the Labour Court Rules, GN 106/2007 (LC rules)

· Improper citation of enabling provisions for revision by the Labour Court - Proper citation should include rule 24 and 28 of the LC rules - whether the cited GN 64/2007 and 67/2007 are applicable to govern procedures only in the CMA

16. Edna Robert Vs. Tanzania Revenue Authority, Rev. No. 282 of 2009

· Termination of employment for first offender

· Misconduct - whether a first offence of misconduct under Rule 12 (2) may justify termination

· Misconduct - Rule 12 (3) – gross negligence- whether the act may justify termination

· Procedural fairness - Applicant did not or was not represented – whether applicant was entitled to representation as per Rule 13 of the Code i.e GN 42/2007 and whether employer was duty bound to observe the Code


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17. Masoud Kondo & 3 Others Vs. M/S Tanganyika Investment Oil

Transport, Rev. No. 327 of 2009

· NSSF payment procedure - whether issue of NSSF payments procedure is covered under the Employment and Labour Relations Act – and whether NSSF has own procedures which are stipulated under other laws

· Repatriation - Transport of the employee and his personal effects to the place of recruitment, (Section 43 of Act No. 6/2004) - whether there was evidence to show or prove that the Applicants were recruited at the place other than the place where their services were terminated

· Overtime and leave allowance claims - Overtime and leave allowance claims have to be proved and claimed in time - whether there is evidence to show why they were not claimed when due

18. Bonite Bottlers Ltd. Vs. William Issa, Rev. No. 163 of 2009

· Time to raise preliminary objection on matters touching jurisdiction – whether PO touching on jurisdiction can be raised by the parties at any time before a decision is made, and whether it can even be raised suo mottu

· Procedural requirements - procedures for filing revision in the Labour Court - Applications for revisions have to follow the procedure prescribed under rule 24 and section 91 of the Act read together with rule 28 of the LC Rules.

· Procedural requirements - where applications for revisions are brought under rule 24, the use of chamber summons


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supported by affidavit is justifiable under rule 24 (11) (b) which cover “other applications incidental to or pending proceedings referred to in these rules and not specifically provided for in these rules’’

19. General Guards & Office Cleaner Vs. Chacha Masuri & 29

Others, Misc. Lab. Appl. No. 18 of 2010

· Condonation - The provisions of the law enabling the Court to enlarge time limitation or condone late filing of such applications are set in Rule 56 (1) of the Labour Court Rules, GN No. 106/2007

· Jurisdiction of the court - whether under Rule 56 (1), the Court may extend or abridge any period on good cause shown

· Condonation - The party requesting for condonation has to prove that there was a good cause which prevented him to lodge the Application in time

20. Judicate Rumishael Shoo & 64 Others Vs. The Guardian Ltd.,

Rev. No. 80 of 2010

· Lacuna in law – whether the court will strike out the matter in case of lacuna in the law – and whether a party may either follow the precedent set in the case, or may do it by way of Notice supported by affidavit under R. 24 of the Labour Court Rules in order to move the court

· Unfair termination – procedural requirements - Under the Employment and Labour Relations Act, No. 6 of 2004


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issues of unfair termination have to be referred to CMA for mediation, if mediation fails, the matter is referred to arbitration - The aggrieved party may challenge it by way of revision to the Labour Court - No right of appeal lies against an arbitration award - Applicant’s claim have to be pleaded in the Referral Form, i.e. Form No. 1

· Procedural requirements in retrenchment exercise – Arbitrator to refer to Section 38 of the Employment and Labour Relations Act - The evidence shows that there were consultations between the management, employees and TUICO branch leaders; facts which are in compliance with section 38 (1) of the Act

· Jurisdiction of the Arbitrator to amend F. No. 1 - Applicant’s claims have to be pleaded in the Referral Form, i.e. Form No. 1 - CMA to make a decision on what has been pleaded in Form No. 1 - whether Arbitrator can change what is in the Form suo moto

· Claims not exhaustive - Applicants ought to have sought leave to amend the Form

21. Omary Mwinyimvua na Wenzake Vs. M/S Sengo 2000 (T) Ltd.,

Rev. No. 157 of 2009

· Overtime hours - The extra hours work have to be proved - The same have to be claimed at the end of each month when and as they accrue


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22. Ramadhani H. Ramadhani Vs. Andro Roofing Product Ltd.,

Rev. No. 347 of 2009

· Particulars of employment – whether it is the duty of the employer to keep employees record, section 96 (2) of the Employment and Labour Relations Act, No. 6/2004

· Jurisdiction of the CMA - whether CMA is empowered to call upon the employer to bring record of the employees for the alleged employment period

· Burden of proof - whether employer was bound to bring the employees’ records to allow the arbitrator inquire into the employer /employee relationship with the company to which employees were sent to work


Misc. Lab. Appl. No. 48 of 2009

· Defective award - Arbitrator’s award misdirected the parties on the time limit to file an application for revision - He directed them that the aggrieved party may file the Application for Revision within 15 days – whether award tainted with material irregularity

· Filing improper application - the intended filed Application is quite different and distinct from the Application for Review- whether the court is functus officio to entertain it

· Extension of time to lodge application out of time – whether negligence amounts to a good cause to move the court to exercise its powers to extend time for lodging an application out of time


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24. Jane Nshunju Pesha Vs. N.S.S.F, Rev. No. 110 of 2008

· Application for revision filed out of time - whether application is properly before the court

· Remedy - the proper remedy for an incompetent Application is to strike it out of the Register so that the same can be properly preferred if the parties will be interested to pursue it

25. N.S.S.F. Vs. Issa Sasilo Majid, Rev. No. 253 of 2008

· Procedural requirements - Defective affidavit - legal arguments in the Applicant’s Affidavit - Rule 24 (3) of the Labour Court Rules, 2007 – whether affidavit is defective.

· Rule 24 (3) sets out the contents of the Affidavit – whether affidavit in support of an application brought under the Employment and Labour Relations Act, No. 6/2004 and the Labour Court Rules, GN No. 106/2007 is distinct and different from an affidavit under the CPC Act and Order 19 Rule 3 in respect of its contents

26. Prokon Renewable Energy Ltd. Vs. Medard Gatwa & 10 Others,

Rev. No. 260 of 2009

· Ex parte award - Procedural requirement for ex-parte award to be set aside

· Ex parte award - Applicant failed or defaulted appearance for undisclosed reasons, CMA proceeded ex-parte - proper procedure is for the Applicant to apply to the


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Commission to be heard and show sufficient cause for defaulting appearance

· Ex parte award - Hearing applicant at revision stage – whether it is tantamount to stepping into shoes of the body of the first instance i.e. the CMA

27. 2000 Industries Ltd. Vs. Halima Z. Giteta & 8 Others, Misc. Appl. No. 19 of 2010

· Condonation - Extension of time to lodge an application under Rule 56 (1) of the Labour Court Rules GN 106/2007 - good cause must be shown

· Condonation - mere allegations of sickness – whether there was sufficient proof that there was a sick person to attend to

28. Malaik K. Mwasungi Vs. Tanzanite One Mining Ltd., Rev. No. 108 of 2010

· Procedural irregularity - delivery of an award outside 30 days - If there is a good cause the award can be issued beyond the prescribed limit - Arbitrator did not advance any reason that caused delay – whether award is irregular

· Right to be heard - Applicant did not adduce evidence – but a witness testified for the Complainant - hence Complainant opted not to give evidence - whether he was given a right to be heard

· Defective award – Mediation and Arbitration Guidelines,


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GN 67/2007 - Rule 27 (3) (b) mandatorily requires that the award should contain the issue or issues in dispute - award does not contain the issues – whether it was improperly procured

29. BMZ/UHNCR/GTZ Kigoma Vs. Ally Khalfani & 28 Others,

Rev. No. 123 of 2010

· Improper keeping of the record of proceedings - obligations of the arbitrator to comply with the guidelines specified under Part III of the Labour Institutions (Mediation and Arbitration Guidelines) GN 67 of 2007 Rules 18 to 26 thereof

· Award - attributes of an award – Need to strive to keep proper record of proceedings as prescribed under Rule 13 - the law seeks to give arbitration proceedings the attribute of legal proceedings

· Award - stages in arbitration - Rule 19 of the Guidelines empowers an arbitrator to determine how the proceedings should be conducted- whether such powers permit him to overlook or skip the vital stages in arbitration process –

· Award - arbitrator failed to keep the record of proceedings - whether such failure vitiates both the proceedings and the resultant award


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30. Rogart Lyakurwa Vs. Kaisi H. Munisi, Rev. No. 229 of 2010

· Improper pleadings - Applicant’s pleadings not in accordance with the law - whether CMA could proceed to entertain them – whether the proceeding were against the law

· Remedy for improper proceedings - strike out the incompetent Form and allow the applicant to file the same afresh upon observing the legal requirements as enumerated by the Arbitrator in his Ruling

31. Tanzania Telecommunications Co. Ltd., Vs. Teveraeli Ngalami,

Rev. No. 21 of 2009

· Limitation period – Time within which to file an application to the CMA for a matter originating under the repealed security of employment laws

· Limitation period - Applicant filed the application outside the prescribed time without prior leave of the court- whether application is competent

· Illegality on the face of the record - duty of the court to deal with the alleged illegality and to put the matter and the record right

· Apparent illegality on the face of the record – whether the illegality constitutes good reason for extending the time to file the appropriate application for revision


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32. Christina Pius Vs. National Parking Solution, Rev. No. 119 of 2010

· Condonation - The law allows condonation for failure to comply with the time frame set by the law - Rule 31 of the Labour Institutions (Mediation and Arbitration) Rules, 2007 GN No. 64/2007 upon proof of good cause.

· Condonation – applicant does not heed by the advise given – whether sufficient cause shown

33. Abdul Swamadu Rwegashora Vs. DAWASCO, Misc. Lab. Appl. No. 39 of 2010

· Condonation - Applicant failed to show good cause as required by Rule 56 (1) of the Labour Court Rules, GN NO. 106/2007 – whether application for condonation is competent

34. Benedict Komba Vs. Knight Support (T) Ltd., Rev. No. 270 of 2009

· Settlement during mediation - Settlement during mediation is like a consent judgement - Parties agreed to the terms of the settlement – whether Settlement may be revised.

· Procedural requirements – proceedings and award have been revised and set aside – whether such proceedings and award still have legal force and whether such proceedings and award may be referred to in subsequent proceedings


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35. Ezekiel Andrew Vs. Africanlife Tanzania, Rev. No. 346 of 2009

· Procedural irregularity - Improper citation of enabling provisions of the law – whether application is competent

· Procedural requirements - procedure for filing application for review - whether procedure under the Act and the Rules is a mere technicality

· Procedural requirements – Rule 24 (2) (a) – (e) of the Labour Court Rules, 2007 - necessary information which has to go with the notice i.e. its contents - whether the Notice in question is an important document in initiating an application before the court

· Defective affidavit – whether it is mandatory for the affidavit to set out name, description and address of parties, statement of material facts, statement of legal issues and reliefs sought, see Rule 24 (3) of the Labour Court Rules, 2007

36. Fatuma Ally Kalaghe Vs. Gema Security Services Ltd., Rev. No. 109 of 2010

· Unfair termination – burden of proof where the employee claims that the termination was unfair - section 39 of the Employment and Labour Relations Act, No. 6/2004 - the burden does not move where the employer’s statement was considered

· Evidence – whether Opening Statements constitute evidence - Rule 24 (2) of the Guidelines GN No. 67/2007


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· Ex parte testimony - whether Applicant’s testimony would be considered ex-parte where the other side’s (Respondent’s) evidence or statement was not considered at all, See Rule 28 (2) of the Guidelines, GN No. 6/2007

· Arbitrator’s powers under the arbitration guidelines - the Arbitrator has powers under the Guidelines, Rule 19 (2) (b) to summon a person for questioning, attend a hearing and order the person to produce a book, document or object relevant to the dispute

· Exercise of arbitrator’s powers - whether Arbitrator could have exercised his/her powers under the law to have proper and fair arbitration proceedings by calling the employer to produce a register of attendance

37. Managing Director Southern Link Vs. Khamis M. Mgeleka,

Rev. No. 227 of 2010

· Unfair termination - whether there was a valid reason for termination and whether the retrenchment procedure was not adhered to

· Procedural requirement for retrenchment - Whether the employee having worked for less than 12 months was entitled to compensation for unlawful termination, and whether the law does not set exceptions for those who work less than 12 months, as long as they have worked for at least six (6) months with the same employer - section 35 and 40 (1) (c) of the Employment and Labour Relations Act, No. 6 of 2004.


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· NSSF claim – whether NSSF claim can be entertained as a labour dispute under the Act and whether there is a procedure provided by other laws which can be pursued in order to access the Fund

38. Provincial Secretary General (FIBUKA) and Financial Industrial

Banking Utilities Commercial (FIBUKA) Vs. Board of Trustees

of N.S.S.F. & 20 Others, Misc. Lab. Appl. No. 16 of 2011

· Procedural requirements – whether all disputes under the Act must be referred to mediation – section 86 of Act No 6/2007.

· Misjoinder of parties - parties not present at mediation stage - The 1st Applicant and 2nd Respondent were not parties at the CMA – parties joined at adjudication stage - at the High Court, (Labour Division) – whether procedure was in contravention of section 67 (5) of the Act, No. 6/2004.

· Procedural requirements - improper citation of enabling provisions of the law - For a complaint to be properly moved, the enabling provision, that is Rule 6 of the Labour Court Rules ought to be cited and the format provided thereto has to be followed – whether the complaint can stand unless it has been properly moved


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39. Evelin Mshimiki & 45 Others Vs. Tanzania Breweries Limited,

Misc. Lab. Appl. No. 45 of 2010

· Terminal benefits - Payment of terminal benefits - Where the cause of action is based on terminal benefits - whether the dispute can be referred to the Commission for Mediation and Arbitration without due regard to the amount involved - section 88 (1) (b) (ii) of the Employment and Labour Relations Act, No. 6/2004 as amended by Act No. 3/2010

· Representative suit – Applicants’ representative dies - procedure to proceed with the matter

· Representative suit – applicants’ representative dies - the successor representative must swear an affidavit to support the Application - He has to indicate that he has the authority of other co-Applicants - The Applicants cannot adopt an affidavit of the deceased representative - The intended representative has to get authority of the persons he is suing on their behalf – whether giving notice was sufficient in the present circumstances

· Procedural error - The cause of action arose way back in 1993 - The case was taken to subordinate court up to the High Court - whether the case has to be dealt with in accordance with the 3rd Schedule of the Employment and Labour Relations Act, No. 6/2004 as amended by Act No. 2/2010 as a case pending in court


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40. Ibrahim Msagaje Vs. Micro Community Development, Misc. Appl. No. 23 of 2010

· Condonation - For the court to grant leave for enlargement of time to file such Application, Rule 56 (1) of the Labour Court Rules GN No. 106/2007 must be adhered to

· Condonation - the party seeking extension of time has to show good cause for failure to lodge the application within the time limits provided by law

41. Jabiri Saidi Vs. M/S Prashant and Hardware, Rev. No. 63 of 2009

· Improper citation of the enabling provisions of the law - revision of a Mediated Agreement - section 94 (1) (b) (i) of the Act provides for reviews and revisions of Arbitrator’s award - The law does not provide for revision of Mediated Agreements - whether section 94 above is an enabling provision to move the court

· Settlement deed - parties freely did opt to settle and Form (F.5) was dully filled and signed by both parties – whether Court may revise the Settlement deed

42. Kelvin Ngongi & 21 Others Vs. Speed Security Services Ltd.,

Rev. No. 34 of 2010

· Representation in Labour Court - whether for an entity to plea or appear for a party or take a role of an advocate under the labour laws, the procedure under section 56 of the Labour Institutions Act, No. 7/2004 which allows representation in the Labour Court must be followed. The


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procedure for such representation is also set under the provisions of Rule 43 of the Labour Court Rules, GN No. 106/2007

· Court representation – whether it was wrong for Mountains of the Moon Ltd., which is not registered and licenced as Notaries Public and Commissioner for Oaths to act as such, without following the procedure set by law for representation

· Representative suit - Rule 44 (2) of the Labour Court Rules provides that a representative suit can only be preferred with court’s permission – whether the Application was bad in law and the defects cannot be cured since even the pleadings were pleaded by the person who lacked locus standi

43. Mariam H. Maganga Vs. National Institute of Transport, Rev. No. 95 of 2010

· Procedural requirements - Supplementary affidavit – whether there is provision for drawing a supplementary affidavit

· Procedural requirements- documents which are supposed to be filed in such an application are indicated in Rule 24 (1) (2) (3) (4) (5) and (6) of the Labour Court Rules, GN 106/2007 - whether there is any procedure or time limit to file the same

· Procedural requirements - leave of the court - In practice, the court can accept some documents which are not specifically provided for by the law - party sneaks in a


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document in court records without leave of the court - whether the filed supplementary affidavit was improperly before the court

44. Hector Sequeira Vs. Serengeti Breweries Ltd., Disp. No. 26 of 2009

· Unfair termination – whether claims on tort in Para 5 (f ) of the claim i.e. 454,920/= being compensation for loss and embarrassment could be made part of unlawful termination rights

· Remedies for unlawful termination - are provided for under section 40 of the Employment and Labour Relations Act, No. 6/2004

· By-passing mediation - complaint not firstly referred to CMA for mandatory mediation - sections 86, 88 and 94 (2) of the Employment and Labour Relations Act No, 6/2004 and Rule 20 of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007 - whether tenable in law

· Jurisdiction - mandatory CMA mediation is different from pre-trial conference by Registrar under Rule 10 of the Labour Court Rules GN 106/2007- whether Rule 23 (1) exempts the parties from mandatory CMA mediation

· Limitation period - time barred dispute - under Rule 10 (1) of the Mediation and Arbitration Rules GN 64/2007, a dispute about unfair termination ought to be referred to CMA within 30 days - Time starts to count on the date of termination, not otherwise


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· Cause of action - whether claims for loss and embarrassment can be made part of the unlawful termination claims

45. Kenya Kazi Security (T) Ltd., Vs. Jackson Magige, Rev. No. 103 of 2009

· Unlawful termination - Applicant’s claim of unfair termination was not made one of the issues, but raised in the Referral Form No. 1- whether this was an error

· Terminal benefits – whether the employer in the letter of termination was offering to pay transport allowance to the respondent

· Terminal benefits – what the employer was prepared to offer to the respondent

· Subsistence allowance – raised in the parties’ opening statements – whether it was rightly decided upon by the arbitrator, Rule 24 of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007 GN No. 67/2007.

46. Masenza Richard Vs. Alaf Ltd., Misc. Lab. Appl. No. 63 of 2010,

· Leave for Representative suit - Applicants have established that they have a common interest - They were all under the same employment – They were employed by the same employer - The contested award involves all the Applicants – whether leave may be granted to the Applicant to represent the other 9 Applicants i.e. to defend in a representative capacity


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47. Shila Anthony Vs. Varsan Dewji Ramji Co. Ltd., Misc. Lab. Appl. No. 71 of 2010

· Improper citation of enabling provisions of the law - application to file a revision of CMA award was brought under the wrong law - whether application is competent

· Condonation - The court is empowered to condone late filing and extend time limits under Rule 56 of the Labour Court Rules, GN No. 106/2007

48. Abdallah Nabahani Vs. Triple “D” Ltd., Rev. No. 207 of 2010

· Defective affidavit – jurat does not comply with section 8 of the Notaries Public and Commissioner for Oaths, Cap 12 R. E. 2002 – whether affidavit is incurably defective – whether application lacks proper affidavit to support it

· Statutory requirements – obligations of the Notary Public and Commissioner for Oaths / requirements of affidavit sworn before a Commissioner for Oaths, section 10 of the Notaries Public and Commissioner for Oaths Act.

49. Denis Kalua Said Mngombe Vs. Flamingo Cafeteria, Rev. No. 210 of 2010

· Forms of contract - contract for unspecified period of time - Section 14 (1) (b) of the Employment and Labour Relations Act, No. 6/2004

· Form of contract - parties ought to have entered into a contract for unspecified period of time per section 14 (1)


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(a)

· Operational requirements - If there were any operational reasons to reduce the number of employees; then the law has provided a procedure for that

· Remedy - employer does not want to reinstate the employees - pay a compensation of 12 months’ salary for each of the Applicant over and above the ordered sum.

· Legitimate expectation of renewal of contract of employment - giving notice to the Applicants – whether it was proof of reasonable expectations of renewal of their contract

· Termination of employment - whether it was unlawful for the employer to end the employment contract without valid reasons where the employees had reasonable expectation of renewal

50. Hassan Njama & Others Vs. Muhimbili National Hospital, Rev. No. 254 of 2010

· Retirement - whether it is termination by the employer

· Severance pay – whether it is payable to an employee who attains the age of retirement

· Retirement - It is an automatic termination by reason of age or retirement per Rule 5 (3) of the Employment and Labour Relations (Code of Good Practice) GN No. 42/2007

· Right to be heard - whether the Applicants were given a


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chance to be heard; and whether their evidence was well discussed and evaluated by the arbitrator

51. Hussein Ngaluma Vs. Carmelite Fathers Roman Catholic, Rev. No. 238 of 2010

· Forms of contract - Contract for specific task – section 14(1) (a)- (c ) of the Employment and Labour Relations Act, No. 6/2004

· Type of contract entered between the parties - section 14 (1) (c) – whether it was contract for a specific task

· Severance pay and repatriation - whether provisions of sections 42 and 43 of the Employment and Labour Relations Act, No. 6/2004 apply in the instances where it has been proven that the parties entered into specific task contract, and they never changed or altered their contract otherwise

52. Ultimate Security (T) Ltd., Vs. Dosaji Ismail, Rev. No. 221 of 2010

· Unfair termination – whether the respondent who was suspended pending criminal charges in court was unfairly terminated

· Award – arbitrator analysed the evidence and the law - whether the award was improperly procured.


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53. Patricia M. Rwagatare Vs. Dorcas Albert Minja, Rev. No. 272 of 2009

· Unfair termination - Arbitrator did not frame issues – whether the findings on procedural unfair termination are justified, Rule 24 of the Labour Institutions (Mediation and Arbitration Guidelines) GN No. 67/2007 and Rule 13 of the Employment and Labour Relations (Code of Good Practice) GN No. 42/2007 on drafting of issues and fair procedure for termination respectively

· Procedural requirements - issues not framed - Whether there was a valid/ fair reason for termination under Rule 12 of the cited Code of Good Practice.

· Award – issues not framed – whether it was properly procured

54. Tanzania Plantation and Agricultural Workers Union Vs. M/S

UNITRANS (T) Ltd., Lab. Disp. No. 15 of 2010

· Wage orders - Wage orders are made under Part V of the Labour Institutions Act, 7/2004

· Interpretation – the meaning of the term ‘sector’, sections 35 to 39 of the Act

· Interpretation / usage of the term ‘agricultural sector’ - it is defined to include transportation in agricultural undertaking; and from its usage, a sector wage order is categorised according to the employer’s business and covers all employees in given sector unless the order specifically differentiates between employees of different undertakings


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within the same sector

· Interpretation – sector to which the employees belonged - employees were hired and worked for transport company and were consequently entitled to be paid wages prescribed for the transport sector

· Organisational rights – when may such rights be exercised - section 60 of Part V of the ELRA

· Exclusive bargaining unit defined - section 67 ELRA

· Trade unions - whether Tanzania law allows trade unions to operate in an undertaking belonging to any sector.

55. Joachim Walter & 6 Others Vs. Venture Communications East

and Central Africa; Mrs Urmelaben Pater and Huila Calvin

Mlama, Misc. Lab. Appl. No. 38 of 2010

· Procedural requirements - first application for review or appeal timely filed in terms of the law governing review but the application and the respondent’s initial objection on it have not been heard and decided – whether all actions taken thereafter were a nullity

· Procedural requirements – procedure to challenge Registrar’s decision in execution - whether provided for in the laws

· Decree – execution of decree against a foreign company in the process of winding up.


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56. China Railway Jiang Engineering Vs. Sharifa Juma, Rev. No. 91 of 2009

· Unfair termination - Section 37(2)(a),(b) and (c) of the Employment and Labour Relations Act No. 6/2004 requires that there ought to be valid reason and a fair procedure has to be followed

· Proof of fair termination - the Code of Good Practice GN No. 42/2007 ought to be adhered to

· Statutory compensation - Section 40(1)(c) of the Employment and Labour Relations Act No. 6/2004 empowers the Arbitrator or the court to order the employer to pay compensation to the employee of not less than twelve month’s remuneration - whether Arbitrator’s award was properly procured

· Evidence – whether parties were given time to lead evidence and whether it was properly evaluated

57. M/S Tanpack Tissues Limited Vs. Said Mohamed, Rev. No. 290 of 2009

· Award - Delivery of award outside 30 days – Whether it is a material irregularity to invalidate the award

· Termination of employment due illness - employer proceeded unilaterally to terminate the employee without considering the guidelines provided in rule 19 of the Code regarding consulting the employee, investigating the possibility of offering the employee reasonable accommodation of the disability created by ill health


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particularly when the ill health was as a result of a work related injury and the doctor had recommended light duty - whether termination was unfair

· Termination due to illness - The requirement of section 37 of the Act, read together with rule 19 of the Code have to be met even where the provisions of section 32 of the Act have been complied with - whether the employer is required and must show that possibility of reasonable accommodation was investigated and the employee consulted along the guidelines of rule 19 of the Code, and whether the applicant/employer did comply in this case

58. Remegius P. Kagaruki Vs. Kom Secondary School, Rev. No. 4 of 2010

· Jurisdiction of the Labour Court - whether the Labour Court has jurisdiction to decide appeals from CMA arbitral awards - section 94 (1) (b) (i) of the Employment and Labour Relations Act No. 6/2004 (the Act)

· Arbitral awards – whether they are appealable - section 94 (1) of the Act.

· Award – procedure for challenging award in the Labour Court

· Improper citation of enabling provisions of the law - whether failure to cite enabling provisions makes the court incompetent to entertain the matter

· Remedy for improper citation of the law- application to be struck off


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59. Othuman Mkuchela Vs. Shekhat Hissa Islamic Seminary, Rev. No. 289 of 2010

· Unfair termination - Applicant not served with a letter to which he was expected to make a reply and not given an audience during the Board meeting which terminated him – whether termination was unfair

· Contract of employment – contract signed between the School Administrator and the applicant but lacks official seal – whether contract was with the Administrator or the school.

· Contract of employment - most of the employees did not have a contract of employment – whether applicant established existence of contract of employment with the school.

60. Quality Group Ltd. Vs. Philbert Alex Chesso, Rev. No. 294 of 2009

· Service of summons - The summons was not received by the person in charge directly but it was received and signed by the employee -whether it amounted to no service effected

· Jurisdiction of the mediator - whether the mediator has the power to decide the dispute if the respondent or applicant fails to appear at the mediation without good reasons.


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61. Markitha Y. Mputo Vs. Choice Investment Co. Ltd., Rev. No. 248 of 2009

· Procedural requirements - Non appearance of a party - whether non appearance of the respondent entitles the applicant to automatic judgement

· Procedural requirements - non appearance of respondent - it only entitles applicant to prove his case ex-parte (section 87 (3) (b) of the Employment and Labour Relations Act No. 6/2004 read together with Rule 28 (2) of the Labour Institutions ( Mediation and Arbitration Guidelines) Rules, GN 67/2007

· Ex-parte hearing - matter proceeds ex-parte - the applicant has a duty to prove the claim and the arbitrator is not required if he “had any doubt to summon the respondent to traverse the same”.

· Severance allowance - conditions for payment of the allowance - section 42 (2) (a) ELRA.

· Constructive termination - section 36 of the ELRA - amounts to unfair termination of employment by the employer for which an employee would be entitled to remedy as per section 40 of the ELRA.

62. BP Tanzania Ltd., Vs. Alex Lwabina, Rev. No. 215 of 2010

· Terminal benefits - right to repatriation and subsistence allowance - section 43 of the Employment and Labour Relations Act, No. 6/2004 – whether the employer was legally bound to repatriate the employee and pay the said


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allowance.

· Improvement of employment conditions - parties may enter into terms of agreement of employment which set higher standards in order to create better conditions for work - standards so set ought to be consistent with the law

· Employment policy - applicability of the policy - The policy would be applicable if it is not consistent with the law - Respondent was recruited in Dar es Salaam and terminated in Dar es Salaam - whether he was entitled to be transported to Muleba, Kagera, him, his family, personal effect or to be paid subsistence allowance

· Overtime - burden of proof – duty of respondent to prove that he performed overtime / night work

· Award – award of night pay by arbitrator without proof of the same by the employee – whether proper

· Procedural requirements - Delivery of award outside 30 days - whether award occasioned any miscarriage of justice

63. Jane Chabruma Vs. National Microfinance Bank, Rev. No. 159 of 2010

· Jurisdiction - Application of the Code of Good Practice Rules 2007 – Who may issue the Codes - section 99 ELRA

· Jurisdiction – Role of the Code of Good Practice and its binding authority – whether it can override clear provisions of section 35 of the Act.

· Probationary employees - Section 35 – whether exempted


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from the provisions of subpart E of the Act

· Labour practice when dealing with probationary employees - apparent unequal treatment between probationary and permanent employees - based on some defendable realities in labour practice

· Rule against double - jeopardy - Section 37 (5) prohibits employers from taking disciplinary action against an employee charged with a criminal offence which is substantially the same until final determination by the court and any appeal thereto

· Interpretation - section 37 (5) falls under Part E of the Act - the plain meaning is that probationary employees are excluded from coverage of the rule against double jeopardy

· Terminal benefits - The import of section 41 (7) of the Act - whether receipt of terminal benefits specified under the section does not act as estoppel to claims of unfair terminations

· Constitutionality of the provision of law - Whether or not section 35 of the Act is unconstitutional thus in contradiction with section 3 of the Act

· Jurisdiction – section 94 of ELRA – whether the Labour Court has powers to adjudicate on constitutional issues brought before the Court.


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64. Alex Zablon Andaresoni Vs. Max Care Ltd., Misc. Appl. No. 26 of 2010

· Procedural requirements - Non citation of proper provision of law - whether renders the notice defective and whether wrong citation is an incurable defect

· Defective Notice - notice is defective beyond repair- whether it can initiate an application

· The principles of stare decis and precedent - parties are bound by the principles of stare decis and precedent and the party followed one of the positions - whether the application was rendered bad in law as the position of law is not yet settled

65. Azizi Ally Aidha Adam Vs. Chai Bora Ltd., Rev. No. 4 of 2011

· Misconduct - negligence by employee - whether the arbitrator was right to find that the applicant had committed misconduct after taking into consideration Rule 12 (1) and (3) of the Employment and Labour Relation (Code of Good Practice) GN No. 42/2007 – and whether it is the duty of the employer to observe the Code

· Unfair termination – substantive unfairness - whether reinstatement order is appropriate

· Remedy - failure to obey reinstatement order - attracts a mandatory payment of “compensation of twelve months wages” under section 40 (3) of the Employment and Labour Relations Act, No. 6 of 2004

· Interpretation - award of the discretionary remedy of


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compensation - whether in all cases where compensation is ordered, , it must be in the sum of not less than 12 months remuneration

· Combined mediation and arbitration - mediator turns himself into an arbitrator – whether award is properly procured

· Combined mediation and arbitration - when the same person can do both functions, Rule 18 of the Labour Institutions (Mediation and Arbitration) Rules GN No. 64/2007

· Appointment of an arbitrator - Its upon the Commission to appoint the arbitrator - parties have no right to choose the arbitrator

66. Issack Chiwinga Vs. Mbeya Cement Co. Ltd., Rev. No. 19 of 2009

· Jurisdiction – functus officio - whether the Labour Court has power to correct its own own decision

· Jurisdiction - when may the Court review its decision - Rule 38 (1) (b) of the Labour Court Rules 2007.

· Jurisdiction - ambiguity, patent error or omission in a decision -whether the court can do a review - and whether it is upon the decree debtor or decree holder to decide what has been decreed upon.

· Termination of employment – whether there was a valid reason for termination


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· Terminal benefits – benefits to which the employee was entitled upon finding that the termination was unfair

· Remedy – reinstatement or reengagement not ordered – appropriate remedy of the employee – section 40 (1) (c ) of the Act

· Severance pay – whether available to an employee guilty of misconduct – section 42 (3) (a).

· Jurisdiction of the court to entertain PPF claims - PPF fund has its own procedures on how to access it – whether the court is the proper forum

67. Steere Ndaona Vs. Oriental Construction Co. Ltd., Rev. No. 197 of 2010

· Probationary employee - whether the applicant was a probationary employee, Rule 10 of the Employment and Labour Relations Act (Code of Good Practice) GN No. 42/2007

· Termination of alleged probationary employee – employer was duty bound to abide with Rule 10 (8)

· Severance allowance - Applicant worked for the Respondent for the period of six months – whether entitled to severance pay

· Termination of employment – employee worked for 6 months – whether protected against unfair termination

· Overtime - overtime claims to be claimed and evidence has to be adduced to that effect to prove the claims


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· Retrenchment – whether the procedure provided under section 38 of the Employment and Labour Relations Act, No. 6 of 2004 was followed

68. Gregory L. Ndanu Vs Fair Competition Commission, Rev. No. 79 of 2011

· Procedural requirements - Defective complaint - omission to sign the verification clause by the applicant’s counsel – whether omission prejudiced the parties and whether omission is incurable

· Procedural requirements - Improper filing of dispute - complaint filed in Labour Court instead of the CMA – whether proper

· Non / wrong citation of provision of law – whether it renders the application misconceived and incompetent

· Jurisdiction - whether Labour Court has mandate to grant permanent injunction.

69. Aloyce Assenga Vs. Moshi University College of Cooperative

and Business Studies (MUCCOBS), Rev. No. 04 of 2010

· Procedural requirement - Application - notice of intention to file an application filed without the application itself - Rule 24(1), (2) and (3) of the Labour Court Rules, 2007- procedurally defective.

· Right to be heard – Applicant walked out of the disciplinary committee – whether applicant was denied the right to be


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heard.

· Reinstatement – whether the applicant can be reinstated after having received terminal benefits.

70. Tanzania Union of Individual and Commercial Workers

(TUICO) Vs. The Registrar of Organizations; and Finance,

Industrial, Banking, Utilities, Commercial and Agro Industries

Trade Union, Misc. Appl. No. 105 of 2010, DSM, 29/12/2011, Rweyemamu, J.

· Appeal – Appeal to Court of Appeal on points of law – whether an appeal against the Registrar of Organisation’s (RO) decision is a labour dispute or complaint and whether the office of RO is part of government office or can sue or be sued in its own name

71.TASIWI Vs. SSB & Co. Ltd., Lab. Disp. No. 04 of 2009

· Organisational rights – whether on the evidence at hand the applicant was denied access to the respondent’s premises to exercise organisational rights

· Misjoinder of causes of action - claims relating to recognition of employees as permanent employees and unfair termination of such employees joined with the claim relating to exercise of organisational rights – whether claims were properly before the court.

· Unfair termination – claim should firstly have been referred to CMA


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72.Agness Protas Vs. Dar es Salaam and Sewarage Corporation

(DAWASCO), Rev. No. 57 of 2011

· Procedural requirements - whether it is mandatory to file a Notice under Rule 27(7) of the Labour Court Rules 2007.

73 .Suleiman Mrisho Sumay Vs Mint Master Security (T) Ltd., Rev. No. 37 of 2010

· Termination of employment – employee given EDs for two weeks and recommended to do light duty- employee does not turn up for employment - whether termination was initiated by the employer – whether employee entitled to payment for days he did not work

· Incapacity due to illness – employee sustains injury in the cause of employment - employee advised to attend physiotherapy - whether advice justifies employee’s absenteeism.

· Costs on medical treatment – costs neither claimed in referral form ( Fl) nor in the Opening Statements - whether arbitrator is bound to entertain them - Rule 24 (1) of the Labour Institutions (Mediation and Arbitration Guidelines) GN No. 67/2007.


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74 .General Manager METL G.D. Estates Tukuyu Vs Jacob Chaula

& 71 Others, Rev. No. 12 of 2010

· Termination of employment - whether notice in the newspaper was adequate notice to the employees that their contracts of employment would be terminated and whether such notice would bring the existing MoU to an end

· Assignment of workers’ liabilities. - enterprise sold to new investor who agrees to take over existing workers’ liabilities – whether new investor may allege cheating or ignorance of the MoU that he signed

· Doctrine of legitimate expectation - respondents were promised and were asked to continue working under the old contracts of employment and they did – increments were effected – whether doctrine presumed

· Particulars of employment - section 15 ELRA – duty of employer to keep particulars and to prove or disprove the same in court.

75. Mbeya Cement Company Limited Vs Leonard Mwakunja, Rev. No. 20 of 2011

· Award - award delivered after the expiry of the statutory period – whether arbitrator was functus officio

· Award delivered after 30 days – when reasons for the delay should be given.

· Procedural irregularity - award left at the CMA reception – whether it amounted to failure by the arbitrator to read


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the award to parties

· Procedural requirements - proper procedure for delivering an award - the award to be read out to parties and it has to be recorded as to when it was issued and why it was delayed

· Termination - Misconduct - burden of employer to prove misconduct and that the termination was fairly done

· Statutory compensation – not less than twelve (12) months remuneration - whether arbitrator can award more than that amount

76 Paul Lihamwika Vs. Cocacola Ltd., Misc. Appl. No. 344 of 2009

· Termination of employment - whether voluntary termination can be said to be similar to termination which is at the instance of the employer

· Voluntary resignation - whether applicant who decided to issue a twenty four (24) hours notice literally decided to forego all his terminal benefits

· Termination of employment – protection of employers against voluntary terminations of employment – Convention No 58 of 1984

· Claim on 13th salary – when claim should have been raised.


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77 Alliance One Tobacco Ltd., Vs. George Msingi, Rev. No. 285 of 2009

· Unlawful termination - No proof of insubordination by the employer - whether termination was lawful

· Termination of employment – burden of proof lies on the employer –employer to prove that there was a valid reason and it was fair

· Fair hearing – whether the rules of natural justice were complied with – Code of Good Practice Rules 2007

· Sanction – first offender – whether termination was the appropriate sanction

· Statutory compensation – section 40 (1) of ELRA – discretion under the Act to award compensation should be exercised fairly and should take into consideration Rule 32 (5) of the Guidelines

· Damages – whether the arbitrator may award anticipatory damages in exercise of the discretion under section 40 (1) (c ) ELRA

· Compensation under section 40 (3) ELRA – what it entails

78. Anthony J. Chuwa Vs. Kilombero Sugar Co. Ltd., Rev. No. 136 of 2006

· Procedural requirements – improper filing of the application - application to move the court to interpret an award issued under the repealed laws – whether court can be moved by section 40 of ELRA.


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· Interpretation - application to move the court to interpret an award issued under the repealed laws – proper laws to be cited to move the court.

79. Ahmed Ausi & 297 Others Vs. Kilimanjaro Hotels Co. Ltd. &

Consolidated Holdings Corporation, Misc. Appl. No. 14 of 2011

· Condonation – application to file an application out of time – applicants were scattered all over the country – they could not easily meet to agree on the way forward to pursue their rights - whether sufficient cause for the delay was shown

· Representation – applicants entrusted their case to a representative – powers of the representative in prosecuting the case.

· Limitation period – time within which to apply for revision of the decision of the Industrial Court of Tanzania.

80. Jamana Printers Ltd. Vs. Rashid Yusuph Pande, Rev. No. 267 of 2008

· Jurisdiction of the Labour Court to review CMA awards - powers to revise CMA arbitration awards are provided under section 91 (1) and (2) of the Employment and Labour Relations Act No. 6/2004 read together with rule 28 and 24 of the Labour Court Rules GN 106/2007

· Improper / non citation / incomplete citation of the law - makes the application incompetent before the court and the court should strike off such application


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81.John Nassoro Mwanjila Vs. Shree Hindu Mandal Hospital, Misc. Appl. No. 24 of 2011

· Jurisdiction of the Labour Court - whether it may be raised at any time when it comes to the knowledge of the parties or by the court suo motto

· Jurisdiction - Labour Court Rules are silent - whether rules of the Civil Procedure Act may be applied

· Procedural requirements - the main case which is subject of the application was filed in the Industrial Court – whether any applications arising therefrom may be filed in accordance with the Third Schedule of the ELRA

· Condonation -Extension of time to file an application out of time - applicant to seek leave for extension of time before the defunct Industrial Court full bench - whether jurisdiction of hearing disputes which were pending before that court is now bestowed upon a panel of three judges of the Labour Court

82. Julius Rutabanja Vs. JSI Research & Training Institute Inc., Rev. No. 49 of 2011

· Procedural irregularity - Non citation / wrong citation of the law – whether it renders the application incompetent before the court


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83. Makongo Secondary School Vs. Clement Kyando, Misc. Appl. No. 10 of 2011

· Condonation - Extension of time to file an application out of time - Neither the date nor the copy of the award attached to the application – whether fatal in determining the merit of the application

· Condonation - applicant was seeking legal aid to pursue his case – whether sufficient cause to grant the application shown.

84. Simba Steel Limited Vs. William Geofrey & 4 Others, Rev. No. 30 of 2011

· Jurisdiction - whether the Registrar of Labour Court has power to hear an application for revision of Commission for Mediation and Arbitration award or grant extension of time or order filing of submissions – effect of Registrar’s orders on such matter

· -Procedural requirements - Failure to file written submissions as ordered by the court – whether it is tantamount to failure to prosecute ones case.

85. Ezra Timothy Kanga Vs. Group 7 PTY Ltd., Rev. No. 203 of 2009

· Unlawful termination - there is no proof that the applicant absconded after being acquitted of the criminal case – whether applicant was lawfully terminated.


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· Termination of employment - applicant was orally dismissed- whether applicant may be reinstated or paid compensation and terminal benefits

· Jurisdiction of the arbitrator - whether the arbitrator has powers to order any relief which he finds just and fit to grant even if the same was not referred to in the referral form

· Substantive error by the arbitrator - The arbitrator was wrong to state that the applicants prayer was unknown because to initiate the dispute one has to fill in the referral form praying for the reliefs to be granted

86. Tanzania Insurance Regulatory Authority Vs. Yusufu Ali Laiza, Rev. No. 304 of 2010

· Material irregularity - CMA proceeds to handle a dispute once filed in the Conciliation Board - The Conciliation Board proceedings which culminated to the dismissal order were not made part of the CMA record – whether CMA exercised jurisdiction with material irregularity.

87. Hemed Omary Kimwaga Vs. SBC Tanzania Ltd., Misc. Appl. No. 75 of 2011

· Execution of CMA and Labour Court orders – both CMA and the Court ordered reinstatement of the applicant but respondent is willing to reinstate the applicant - whether applicant may pray for the order of payment of compensation at the stage of execution.


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88. PSRC/CHC & Mbarali Rice Farms Vs Rajabu Athuman &

Others, Misc. Appl. No. 12 of 2011

· Evidence – court invited to act on doubtful secondary instead of primary evidence – whether court may act on the secondary evidence

· Procedural requirements – whether Decree holder may obtain necessary orders against the successor of a defunct institution.

89. Sosthenes Muyambo & 24 Others Vs V. I. Tree Planting

Foundation, Rev. No. 62 of 2010

· Procedural irregularity - Improper citation of the law – whether the application is misconceived and incompetent before the court.

90. Tanzania Telecommunications Company Ltd. Vs Bwire

Nyamwero, Rev. No. 01 of 2012

· Condonation - The order of the court stated that the applicant was at liberty to refile the said application if they were interested in the matter – whether the order meant that the applicant was automatically granted extension of time to refile the application even if it was out of time

· Procedural irregularity - Improper application for revision - proper application for revision is supposed to comply with the terms of filing any application - It is improper to file a notice and a hanging affidavit without a chamber summons which in essence carries the parties prayers and states the enabling provisions for such prayers


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91. Mwango Shaibu & 7 Others Vs. Superdoll Trailer Manufacturers

(T) Ltd., Rev. No. 330 of 2010

· Procedural requirements - proper procedure for filing an application for review of an arbitrator’s award.

· Procedural requirements – whether there is no settled position on how to file an application for revision

· Procedural irregularity - Wrong citation of the law – whether it renders the application incompetent

· Representative suit – notice of representation not filed – whether application is competent.

92. Rashid Benjamin and 6 Others Vs. Transcargo Ltd., Rev. No. 59 of 2011

· Retrenchment – whether the arbitrator was wrong in finding out that consultation between the management and the employees was proper

· Retrenchment - notice and consultation not directed to the trade union – whether arbitrator’s award that retrenchment was properly carried out suffered from material irregularity.

93. George Japhet Kiboko & 31 Others Vs. Kobil Tanzania Limited,

Misc. Appl. No. 78 of 2012

· Representative suit – notice of representation should be directed to the Registrar not to the applicants’ employer- Rule 43 (1) of the Labour Court Rules, GN 106/2007


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· Representative suit - notice of representation addressed to the employer - whether Rules 43 and 44 of the Labour Court Rules have been duly complied with

94. Bank of Tanzania Vs. Elisa Issangya, Rev. No. 17 of 2011

· Jurisdiction – limitation of period – whether Law of Limitation Act Cap 88 does apply in labour matters

· Jurisdiction – power of the CMA to grant extension of time – Rule 11 of the Labour Institutions (Mediation and Arbitration ) Rules 2007

· Jurisdiction - power of the arbitrator to entertain applications for condonation - whether upon showing good reasons for the delay the arbitrator can grant extension

· Mediation - mediator must mediate the dispute within 30 days (unless the parties extend the period in writing) and if the dispute is not mediated within the prescribed time, the parties may refer the same to arbitration or the court.

· Jurisdiction of the Labour Court in interlocutory matters - whether Rule 50 of the Labour Court Rules, 2007 bars appeals, reviews or revisions to be filed which arise from interlocutory or incidental orders when they have no effect of finally determining the dispute.


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95. Gema Security Service Ltd. Vs. Gozibeth N. Lugakingira, Rev. No. 170 of 2011

· Jurisdiction - issue of time limitation raised - CMA proceeds to hear the matter without determining the issue – whether CMA acted with material irregularity.

96. Epidor French Bakery Ltd. Vs. Nicholas Tabarini, Misc. Appl. No. 70 of 2011

· Unfair termination - Termination is unfair where the employer fails to prove that the reasons for termination are valid

· Unfair termination - no proof that the disciplinary hearing was conducted and the applicant was given an opportunity to defend himself - whether termination was unfair

· Termination - for first offence - whether termination was the appropriate sanction

· Procedural fairness - whether a party to the dispute may refer the dispute to arbitration or to the Labour Court

97. Juma Makunda & 3 Others Vs. Namanga Bureau De Change

Ltd., Rev. No. 256 of 2010

· Unlawful termination - Section 37 (2) of the ELRA - Theft at the office premises could be a fair and valid reason - applicants were not charged and convicted of the said theft but were terminated – whether termination was unfair.

· Procedural fairness - applicants were negotiating with the


lxxvi

respondents and before negotiations were through they were served with letters of termination of employment – whether termination was procedurally fair

· Procedural irregularity – joint affidavit signed by two persons while the remaining two simply initialed it – yet the reply to the counter affidavit was signed by all persons – whether there were only two legal representatives in the matter

· Remedies – whether applicants whose application is legally before the court were entitled to 12 months’ compensation.

98. Ahmed Rashid Chausa & 15 Others Vs. Keys Hotel Limited,

Rev. No. 270 of 2010

· Condonation - Leave to file counter affidavit out of time – whether under the circumstances the counter affidavit was filled within time

· Procedural requirements – clerical error in – whether affidavit is defective

· Retrenchment procedures – the role of CMA before the employer decides to retrench in case of disagreement during the consultations.

99. Salome Mussa Lyamba Vs. K.K. Security (T) Ltd., Rev. No. 278 of 2010

· Condonation - Extension of time to file a complaint – Time within which to file a complaint on termination in


lxxvii

the CMA

· Condonation - Extension of time to file a complaint may be granted by the arbitrator only where good cause has been adduced for the delay

· Jurisdiction – Applicability of the Law of Limitation Act in the Court

· Procedural requirements-improper filing of the complaint/condonation

· Condonation - principles in granting applications for extension of time.

100. Tanzania Automotive Technology Centre Vs. LT. Co. Lawrence

L. Mwakipesile, Rev. No. 240 of 2011

· Improper citation of the law - renders the application incompetent

101. Gerald Bitaliho Vs. Nyota Tanzania Ltd., Rev. No. 308 of 2010

· Jurisdiction - whether the Civil Procedure Code (CPC) applies in the Labour Court

· Evidence - Record of proceedings of the CMA do not show that the letter was tendered and admitted as evidence as required by the law – whether it was proper for the arbitrator to rely on the document

· Award – arbitrator relies on a document not properly tendered in arbitration – whether award was improperly procured


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102. Mwl. Giddo Vintanmwenda Vs. The Njombe District

Executive Director, Mbeya; The Executive Secretary Teachers Service

Department Headquaters Dar es Salaam; The Executive Secretary

Public Service Commission Dar es Salaam; The Attorney General,

The Attorney General’s Chambers Dar es Salaam & His Excellency

The President of the United Republic of Tanzania, Dar es Salaam,

Rev. No. 308 of 2010

· Prerogative Orders – applications for, and proper procedure and competent court for filing the applications

· Improper citation of the enabling provision of law - whether the application is competent before the Labour Court

· Jurisdiction – applicability of the Law of Limitation Act in the Labour Court

· Limitation period – whether the Law of Limitation Act applies in applications for prerogative orders

103. Tanzania Building Works Ltd. Vs. Ally Mgomba & 4 Others, Rev. No. 305 of 2010

· Award delivered outside the statutory period of 30 days – whether quashing of the CMA proceedings and resultant award and ordering the process to commence afresh will cause more injustice to both parties

· Preliminary objection on jurisdiction of the arbitrator - when to raise it

· Procedural requirements – practice - where mediation fails and procedure to be taken thereafter


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· Retrenchment - Substantive and Procedural fairness in terminations due to retrenchment

· Retrenchment - employees refuse to cooperate with employer in consultation – whether employer will be taken to have complied with the procedural requirements for consultation.

104. Abubakar Haji Yakubu Vs. Air Tanzania Co. Ltd., Rev. No162 of 2011

· Discrimination – salary increment approved for some employees other than the applicant – whether on basis of the available evidence employer committed discrimination in grating the increments

· Procedural requirements – pleadings – plea of discrimination not specifically pleaded in Referral Form – whether the issue of unfair termination pleaded in the Form automatically included/ incorporated the issue of discrimination

· Pleadings – consequences of the plea of unfair termination and discrimination distinguished - sections 7(4) and 102 and 37 (3) (b of ELRA

· Remedies – whether an order for reinstatement without loss of remuneration disentitled the applicant from a claim of general damages

· Damages – purpose of awarding damages in cases of unfair termination

· General damages – as compensation for personal injury


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– when awardable – nominal damages – when awardable

· Jurisdiction - whether CMA has jurisdiction to entertain a claim of general damages in labour matters based on breach of contract , tort, or common law

105. Samwel M. Mzava Vs. Regional Manager (T) Zambia Railway

Authority, Misc. Appl. No. 65 of 2012

· Appeal - Application for leave to appeal to the Court of Appeal of Tanzania - whether applicant has sufficiently made out a case for leave to appeal

106. Cami Apparel Vs. Balozi Msuya & 231 Others, Rev. No. 213 of 2010

· Evidence to prove a claim – proper stage to contest the evidence intended to be given.

· Right of representation - representation by trade unions, employers’ association or party’s own choice – whether such representation is an intrinsically different role from that of advocates.

· Interlocutory matter - the CMA ruling did not finally dispose of the dispute between the parties – whether applicant had right to seek revision of the order


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107. Oceana Advanced Industries Ltd. Vs. Obedient G. Kimaro &

Others, Rev. No. 80 of 2011

· Improper keeping of record of proceedings - record does not disclose whether hearing took place - whether court can act on the record

· Improper keeping of record – mandatory obligation of the arbitrator –Rule 32 (1) of GN 64/2007.

108. Tanzania Oxygen Limited Vs. Juma Nkondo, Misc. Appl. No. 85 of 2011

· Improper citation of the enabling provision of law – contested decision arose out of a Trade Inquiry under the Industrial Court Act. Cap 60 R.E. 2002 - which appropriate law was applicable in the circumstances of the case

· Improper citationof the applicable law – whether the irregularity is incurable - whether it renders the application incompetent, hence cannot move the court.

· Execution of decree - Execution proceedings under the Industrial Court Ac t- whether made under the Civil Procedure Act, No. 49 (CPC)

· Jurisdiction of the Registrar under Order XLIII of the Civil Procedure Code - to conduct execution proceedings – to issue garnishee orders.


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109. James Yambo Misangia Vs. Vice Chancellor Muhimbili

University of Health Sciences, Rev. No. 126 of 2010

· Subsistence allowance - allowance not paid together with other terminal befits - employee files a dispute in the CMA - whether employer bound to pay it during execution of the CMA award.

110. Alliance One Tobacco Tanzania Ltd. Vs Erasto Mbinda, Rev. No. 10 of 2011

· Retirement - employee is about to retire – whether employee is entitled to all rights under the law until retirement

· Retirement – employee is about to retire – whether employer is bound to meet cost of treatment for illness contracted in the course of employment including subsistence allowances

· Interest not prayed for – application for revision found to be malicious – whether court can order interest at court rate.

111. Abdallah Kiwigu Vs Mkurugenzi Mkuu SBC (T) Ltd., Rev. No. 5 of 2011

· Statutory compensation - section 40 (1) (c ) of the ELRA – whether the arbitrator can award compensation of less than twelve months’ compensation in cases of unfair termination


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· Discretionary powers – whether the arbitrator or Labour Court has discretionary powers to award any one of the remedies under section 40(1) of ELRA

· Remedies – whether an order of compensation can go together with an order of compensation under section 40 (3) ELRA.

· Remedies – unfairly terminated employee – whether employee is entitled to his salaries from the date of unfair termination to the date of execution of the CMA award

112. Ephraim Joram Vs. Director Tanga Cement Company Ltd.,

Rev. No. 147 of 2012

· Condonation – application for extension of time to file an application – applicant was represented – representative fell sick - whether sufficient cause was shown to allow the application.

· Interpretation – sufficient cause should be given a wide interpretation to include issues beyond the applicant’s power to control.


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STATUTES JUDICIALLY CONSIDERED

1. Appellate Jurisdiction Act, 1979, Cap 141 [R.E. 2002]: 20/ 2011-2012;

2. Civil Procedure Act, 1966, Cap 33 [R.E. 2002]: 4/2011-2012; 7/2011-2012; 9/2011-2012; 14/2011-2012; 15/2011-2012; 20/2011-2012; 25/2011-2012; 31/2011-2012; 47/2011-2012; 66/2011-2012; 68/2011-2012; 81/2011-2012; 98/2011-2012; 101/2011-2012; 108/2011-2012.

3. Employment and Labour Relations Act 2004, No 6/2004: all cases/ disputes

4. Industrial Court of Tanzania Act,1967 Cap 60 [R.E.2002]: 79/2011-2012; 108/2011-2012

5. Judicature and Application of Laws Act, Cap 358 [R.E. 2002]:

102/2011-2012

6. Labour Institutions Act, 2004 No 7/2004: all cases/ disputes

7. Law of Limitation Act, Cap 88 [R.E. 2002]: 2/2011-2012; 6/2011-2012; 27/2011-2012; 31/2011-2012; 88/2011-2012; 94/2011-12; 102/2011-2012

8. Law Reform (Fatal Accidents and Miscellaneous Provisions) Act,

Cap 310 [R.E.2002]: 102/2011-2012

9. National Social Security Fund Act, 1998 Cap 50 [R.E. 2002]:

37/2011-2012

10. Notary Public and Commissioner for Oaths Act, Cap12 [R.E. 2002]:

42/2011-2012; 48/2011-2012

11. Security of Employment Act, 1964 Cap 387[R.E.2002]: 13/2011-2012; 78/2011-2012; 86/2011-2012


1

1. Tanzania Electricity Supply Company Limited Vs Mariam Mtoro

Khalfan, Lab. Div., DSM, Rev. No. 51 of 2010, 08/07/2009, S. C. Moshi, J.

This ruling is pursuant to a preliminary objection on point of law that: the application is incurably defective for being omnibus application, and that the application is improperly lodged before this court as the applicant did not exhaust all the remedies with the Commission for Mediation and Arbitration.

Held:

i. The application for execution and the application for revision are two distinct and separate applications. Whereas the Revision is tried by the High Court judge with its own procedures under the Labour Court Rules, GN No. 6/2004 (Rule 28) and section 91 of the Employment and Labour Relations Act, No. 6/2004, the execution or enforcement proceedings have its own procedures provided under Rule 48 of the Labour Court Rules, GN 106/2007. Hence the two are separate and different

ii. Although it is not mandatorily provided that you have first to set aside an Ex-parte award and then apply for Revision yet the law allows the Commission for Mediation and Arbitration on sufficient ground to set aside the matter which proceeded Ex-parte.

iii. The application ought to have been preferred to the Commission for Mediation and Arbitration; assigning reasons which caused their default of appearance so they could be availed a chance to be heard rather than lodging it to the High Court by way of revision.


2

iv. The PO is upheld and the Application is dismissed accordingly.

2. Mkunja Kurupe na Wenzake 6 Vs. Director Tanzania Fish

Processors, Lab. Div., DSM, Misc. Lab. Appl. No. 25 of 2008, 16/02/2010, S. C. Moshi, J.

The Applicant filed an application for extension of time to file a Notice of application for an application of a Revision of arbitrator’s award which was procured on 24.6.2008. The main ground advanced in support of the application is that they lodged in Court Form No. 1 instead of Form No. 4 on 4/7/2008, the time which was well in time. They sent the application to Labour Court vide a Registered mail with receipt No. 008511518. They sent their application, Form No. 1 to the Labour Court within ten days from the date which the award was procured. The Respondent’s advocate submitted that the applicants have cited wrong provisions of law; that their reason for delay is baseless as they did not state what was the remedy or outcome of the application which they filed through Form No. 1; also they ought to have remained with a copy of Form No. 1; that the registered mail does not show that what was sent was Form No. 1 or something else; and that ignorance of the law is no defence.

Held:

i. It is true that the applicant have cited section 14 of the Law of Limitation Act, Cap 88 R.R. 2002 as well as Rule 56 (3) of the Labour Court Rules, 2007, and any other enabling provision of the law. The proper provisions to move the court in the present case was Rule 24 and 56


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(1) of the Labour Court Rules, GN 106/2007. Therefore there was no need of citing the Law of Limitation Act, Cap 89 provision as the Labour Court Rules have provisions which specifically deal with extension of time limits and condonation. See also section 51 of the Labour Institutions Act, Act No 7/2007 which gives exclusive jurisdiction to the Labour Court over matters subject to the Constitution and Labour Laws.

ii. However, in this case citation of the general Law of Limitation Act did not cause any miscarriage of justice; as the applicant did cite Rule 56 of the Labour Court Rules which is more specific for labour disputes.

iii. That the applicants have shown efforts to apply for revision in time however due to lack of information, they filed a wrong form. Though they did not attach the form in question, they at least showed that they had made efforts to send the documents to the registrar by a registered mail. What was sent to the registrar was an application as sworn in their affidavit.

iv. That the Applicants have advanced good reasons; hence they are allowed to file an Application for Revision out of time.

3. Coca Cola Kwanza Ltd. Vs. Kajeri Misyangi, Lab. Div., DSM, Rev. No. 238 of 2008, 23/07/2010, S. C. Moshi, J.

The Applicant seeks revision of Arbitrator’s award which is dated 29/9/2010. The Arbitrator’s award was in favour of the Respondent. Before the Commission for Mediation and Arbitration (CMA), it


4

was common ground that the Respondent had voluntarily resigned from employment. The Arbitrator found so and awarded terminal benefits to the Respondent. The Arbitrator found that voluntary resignation was a lawful termination under Rule 6 (2) & (3) of GN No. 42/2007. He further held that, since the termination by voluntary resignation was legally recognised by law, then the employer had to pay terminal benefits. The Applicant was aggrieved by the decision; that the Respondent who voluntarily quitted employment would not be entitled to terminal benefits, hence the present Application. Now, the issue before us is whether having voluntarily resigned, the respondent is entitled to transport allowance, subsistence and severance allowance

Held:

i. The law recognizes various forms of termination. Rule 3 of the Employment and Labour Relations (Code of Good Practice) GN No. 42/2007provides for such forms; termination of employment under common law is among them; and Rule 3 (2) (c) provides for categories of termination of employment under Common Law. One of the category, under Rule 3 (2) (c) is termination of employment by employee.

ii. That Common Law is the basis of our law, the Employment and Labour Relations Act, No. 6/2004 the law under which GN No. 42/2007 which is cited above is made from. Voluntary resignation, under our law is the termination of employment by employee.

iii. That terminal benefits could be paid only in those cases where the termination of employment was due to factors beyond the control of the employee; i.e. where termination


5

of services was by employer or where it would be proved that the resignation amounted to constructive dismissal.

iv. That the law requires payment of severance when termination is by the employer. That duty is not given on the employer when termination is by the employee.

v. Section 43 (1) (c ) of the Act, requires the employer to pay the employee transport allowance and subsistence allowance upon termination of the contract. That the transport and subsistence is to be paid where the employee is necessitated to quit job on employer’s accord or at the end of the contract.

vi. That since the Respondent voluntarily resigned from employment, he is not entitled to be paid severance allowance, transport allowance nor substantive allowance.

vii. I therefore find that the Arbitrator’s award had material irregularity and he erred in awarding the terminal benefits as he did. The award is reversed and it is set aside accordingly; and the Application is granted.

4. Nestory Kilala Ngulla, Godfrey Kambenga, Benedicto Raphael

and Ernest Kangwa Vs. President, Trade Union’s Congress of

Tanzania (TUCTA) and Trade Union’s Congress of Tanzania

(TUCTA), Labour Div. DSM., Appl./Compl. No. 8 of 2010, 02/02/2011, R. M. Rweyemamu, J.

The 1st applicant filed a Statement of Complaint together with an Application under Rule 24 (1), (2) and (3) of Labour Court Rules (LC Rules), GN 106/2007 and section 53 (1) of the Employment and Labour Relations Act, 6/2004. The issues raised and reliefs


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sought in the statement of complaint are similar to those raised in the application. The application was supported by an affidavit sworn by the applicant seeking: that this Honourable Court be pleased to grant an order for temporary injunction against the respondents from holding an election of TUCTA Secretary General in any manner whosoever pending the hearing of this application; Declaration that the 1st and 2nd respondents acted contrary to TUCTA constitution as alleged; Order restraining the 1st and 2nd respondents from breaching the Constitution of TUCTA; the reinstatement of the applicant to his positions of the Secretary General; the respondent to pay salary and remuneration of the Applicant; and that damages for psychological torture and character assassination Tshs. 500,000,000/=.

The respondent filed a reply to the complaint; a counter affidavit in response to the application and a notice of preliminary objection (PO) on grounds that: (a) that the affidavit in support of the Chamber Summons is fatally defective; (b) that the matter does not contain any cause of action against the 1st respondent and that this issue is Res Judicata; and that (c ) the 2nd, 3rd and 4th complainants have no cause of action against the respondents and have no locus standi to appear as parties in this case.

In support of part (a) of the PO the respondent submitted that the affidavit is fatally defective and the application should be stuck off , first, because it was sworn by the 1st applicant only while there are 4 parties cited in the suit, there was no proof that the said applicant was authorised to swear it on their behalf nor an order that he was acting in a representative capacity. Further, the names of the other 3applicants appear in the citation only, they did not sign the pleadings contrary to the requirements of rule 6(1) (c ) of the LC


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neither was their interest in the suit indicated

Held:

i. That the procedure for filing a representative suit as prescribed under rule 44 (2) (b) of LC Rules was not complied with. That rule permits a party to appear and be heard on behalf of others having the same interest in the matter, only with permission of the court. The applicant acted with no such leave as such this court is incompetent to act in a suit not properly before it.

ii. That from the pleadings and submissions, it is not indicated whether the other applicants are suing the respondents in the same capacity or have the same right of reliefs against one or both respondents. There is no basis for concluding that the 4 complainants have the same or any interest in the matter particularly when the suit combines two distinct and separate causes of action.

iii. It is my considered view that the 1st applicant’s case itself suffers from a fatal misjoinder of causes of action. That the general rule is that different causes of action may be joined if they arise from the same transaction and “the rights to relief must arise out of the same transaction”.

iv. In this matter the first cause of action arises from organizational rights specifically an allegation of non-compliance with constitution and one of the issues to be determined in such a claim is the locus of the applicant in the matter under section 53 of the Employment and Labour Relations Act No 6 of 2004 further the recourse of the aggrieved party is to file an application to this court.


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The second arises from the rights of the 1st applicant’s employment rights where the recourse is to file a complaint either in this court or the Commission for Mediation and Arbitration. I find that to be a misjoinder as would embarrass the respondent in preparing defence.

v. That as there is both a misjoinder of parties and causes of action, I find the defect in the pleadings as presented incurable; the consequences cannot be to severe names of the other complainants/applicants and proceed with the case in terms of rule 44 (8) or to order an amendment as prayed for the applicant/complainant. Instead, I strike off both this application and the complaint.

5. Director Ptotrans Ltd., Vs. Daud Mohamed & Another, Lab. Div., DSM. Rev. No. 173 of 2010, 09/02/2011, R. M. Rweyemamu, J.

In this application the employer sought revision of the Commission for Mediation and Arbitration (CMA) award on grounds contested by the respondents in the amended counter affidavit filed following the court’s order of 19/8/2010. For ease of reference, I give below the applicants’ grounds verbatim and a summary of the respondents’ response thereof:

i. The premises upon which the commission have based their decision that is the transportation sector is wrong. Response. The ground is disputed, the applicant is and admits to be in transport business

ii. The commission awarded to the respondents the quantum of monies whose basis is questionable as they were


9

not quantified in CMA form No. 1 which was filed on 11.3.2009. Response. Disputed, claim filed was for salary arrears and overtime.

iii. The calculation of the above sums leave a lot for desire due to exaggerations and inflating of the claims. Response. Strongly disputed, the calculations were proper and according to the claim filed.

iv. The new intended salaries upon which the claims are based which could have been applicable from 1.2.2008 are still not operative from then to date. Response. Disputed on grounds similar to (i) above.

v. The sums of money paid to the respondents by the applicant on 1.3.2009 were not at all considered in the awarded amount. Response. Disputed, payment made by the applicant/employer on 13.2.2009 did not include the claimed salary arrears and overtime.

vi. The procedure adopted by the applicant before reaching his decision was improper. Response. Disputed, all parties heard and evidence adduced.

vii. The said claims if any have been preferred out of time thus misconceived. Response. Disputed, termination was on 13.2.2009 thus complaint filed in time.

The respondents in the reply to submission raised what appears to be a preliminary objection (PO) on the competence of the application but the applicants did not respond to it. They argued that the application was wrongly filed because it was not preceded by notice prescribed under rule 24 (1) (2) and (3) of the Labour Court Rules, GN 106/2007 (LC rules)


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Held:

i. My decision on the issue of Notice is this: The application was moved into court vide a chamber summons supported by affidavit. Under rule 24(11) of the rules, applications which may be brought by way of chamber summons supported by affidavit include ‘’ (b) other applications incidental to or pending proceedings referred to in these and not specifically provided for in these Rules...’’

ii. Although applications for revision of awards under section 91 of the Act read together with rule 28 of the LC rules are now on the main moved into court vide rule 24 of the LC rules, this court has taken conflicting positions on the procedure for accessing the court on revision. The fact was demonstrated in the case of TPAWU vs. Robert

Korinako, Revision No. 109 of 2008. A different position was taken by myself in Sisty Patrick Kessy and 2 others

vs. The Manager China Paper, LC Revision 25/2009.

iii. In view of the above demonstrated conflicting stance, it is my view that, a referring party would make a good case for not filing notice, but instead, proceeding in the manner the applicant did.

iv. I shall now decide on the ground that the premises upon which the Commission based its decision, that is the transportation sector is wrong. I have read the relevant part of the Labour Institutions Act, 7/2004 particularly sections 35, 39 (3) and 41 together with the Labour Institutions ( Regulation of Wages) Order, GN 223 of 2002 ( the Order) which became operational on 1st January 2008.


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v. The term sector is not directly defined but my understanding of the above provisions is that; a sector wage order is defined according to the employer’s business or industry; the order may also differentiate between different area of operation in the same sector; a sectoral wage covers and is binding on all employers and employees in a given sector- unless; the wage order specifically differentiates between employees of different undertakings within the same sector. Another exception in that Order is made under rule 4(3) which provides that where an employee ‘belonging to a particular sector is employed in a commercial or industrial undertaking and he is being paid wages by the concerned undertaking the basic minimum wage payable to the employee shall be at the rate applicable to that sector or as applying to that particular commercial or industrial enterprise, whichever is greater.’’

vi. The respondents were security guards in the Inland Transport undertaking of the Transport and Communication sector which had a minimum wage of shillings 200,000/=. Security guards was not an excepted category of employees under the Inland Transport undertaking, they were thus entitled to the set minimum wage of shillings 200,000/=.

vii. Due to the above reasons I find that the arbitrator’s conclusion that the respondents who were working as security guards in the transport sector were entitled to the applicable minimum wage of shillings 200,000/= to have been proper; consequently the arbitrator correctly ordered that the respondents who were being paid shillings 80,000/= were each entitled to be paid shillings 120,000/= as salary underpayment from January 2008 to date of


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termination 13/2/2009 totalling shillings 1,560,000/=

viii. As to the ground that the sums of money paid to the Respondent by the applicant on 13.2.2009 were not at all considered in the awarded amount, the applicant did not testify at the CMA nor submit in this court that the amount admittedly paid to the respondents after termination were part of the monies claimed as underpayment of salary or unpaid overtime nor did they file a counter claim for it.

ix. Under ground (iv), the applicant submitted that the respondents were ‘awarded quantum of monies not itemized in CMA form No.1’’. I have checked the form in question, the respondents itemised claims as wage arrears for 2008/2009, leave allowance and overtime of normal and rest days and on item 4 of the form they specified the outcome sought as “payment of outstanding dues according to labour laws”. The quantum of monies granted was for part of claims - salary underpayment and overtime due according to labour laws itemised in the referral form.

x. Generally, the arbitrator was justified to believe the respondents regarding no-payment of overtime and rest days. The duty to keep particulars of employment including mode of payment lies with the employer as per section 15 (5) of the Employment and Labour Relations Act and under section 5 (6) of that Act. The employer has a duty to prove the same.

xi. Under section 19 (2) (c) of the Act, maximum work hours permitted in a day is 9. On the fact of record, the hours of excess worked was 3 and not 4 as founded by the arbitrator. That part of the decision is quashed and the arbitrator is


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directed to calculate the amount payable on overtime of 3 instead of 4 hours.

xii. That the CMA is directed to make and show calculations of payable amount. The calculation has to show the number of days involved, differentiating between the period falling under the old rate, and the period after the new order (i.e. January 2008) (given that the respondents had claimed for “payment of outstanding dues according to labour laws”); times number of excess hours per day.


Lab. Div., DSM, Misc. Appl. No. 48 of 2009, 11/02/2011, S. C. Moshi, J.

The Respondent’s advocate raised a preliminary objection on point of law to the effect that the chamber summons for Application of leave for extension of time is hopelessly and incurably defective for citing wrong provisions of law.

Held:

i. It is true that the time limitation for lodging an application for Revision is provided for by the Act, section 91 (1). The Act does not provide for the extension of time. However, the Labour Institutions Act No. 7/2004 under which the Labour Court Rules are made, states that the Rules shall be made to govern the practice and procedure of the Labour Court. Also section 94 (1) of the Employment and Labour Relations Act, No. 6/2004 gives exclusive jurisdiction of the matters arising from the Act to the Labour Court.

ii. From these provisions of the law it is apparent then that


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the Rules do operationalize the provisions of the Act. Hence, Rule 56 (1) is the proper Rule to be cited as the Court is given discretion to abridge any period prescribed by the Rules or extend time limitation.

iii. That the Law of Limitation Act is not applicable in this case. Rule 56 of the Labour Court Rules gives discretion to the Court to condone time limitation on good cause.

iv. Whether the application is incurably defective for wrong citing provisions of law, we have noted above that the applicant cited Rules 24 (11), b, 55(1) and (2), Rule 56 (1). From the discussion, the applicable Rule is Rule 56 (1), however the procedure is not provided, thus there was no harm to cite Rule 24 (11) (b) and Rule 55 and thus the Preliminary Objection is rejected and accordingly dismissed.

7. The Registered Trustees of ELCT North Western Diocese

Vs. Mutagahywa Kagisa, Lab. Div., BKB, Rev. No. 1 of 2010, 11/02/2011, V. K. D. Lyimo, J.

This is an application which has been brought under section 78 of the CPC and section 91 (2) (3) and (4) of the Employment and Labour Relations Act No. 6 of 2004. It was under a Certificate of Urgency and has been supported by an affidavit sworn in by one Godwin Rwezaura, the General Secretary of the Evangelical Lutheran Church (T) North Western Diocese (ELCT). The Applicant prayed for the order of staying the execution of the attachment and sale of motor vehicle T 875 AJQ pending the determination of the application; to review and set aside the ruling of the court dated 14/7/2010 in execution case No. 1 of 2010; and the costs of this application. This Court having heard the submissions by the two


15

parties is being called upon to consider the following issues:- 1) Whether the application is competently before the Court; and 2) Whether the orders granted in the Ruling dated 14th July, 2010 conform to the deed of settlement dated 05/02/2010.

Held:

i. That looking at the application it is obvious that both section 78 (b) of the CPC and section 91 (2) and (3) of Act No. 6/2004 do not apply and cannot be invoked in an application of this nature. Specifically, section 91 of Act No. 6/2004 is on arbitration, which is not an issue in our case. The application ought to have been made under Rule 27 (1) of GN No. 106/2007 and the procedure to be followed has been outlined in Rule 26 (2) thereof. I have no doubt that the applicant has used the wrong vehicles ie. section 78 of the CPC, section 91 of Act No. 6/2004 and section 52 of Act No. 7/2004.

ii. The remedy would have been to dismiss the application. I note however that the application raises an important point of law which whether an executing court can vary or alter the deed of settlement to grant reliefs which were not the subject matter of the mediated proceedings. Under section 94 (1) (d) of Act No. 6/2004 this court is empowered to make reviews of complaints, other than are to be decided by arbitration, purposely to rectify some mistake or errors apparent on the record. It will be noted that the two parties were engaged in mediation No. CMA/BUK/109/09 and on 05/02/2010, the mediator issued his certificate on CMA form No. CMA-F5, in which he certified that the complaint had been amicably settled.


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iii. That the executing court not only lacked the mandate to alter the terms of the agreed settlement but had grossly erred in wrongly interpreting the same to ensure that the intentions of the parties were realized.

iv. That under the powers granted to this court under section 94 (1) of Act No. 6/2004, the proceedings in execution case no. 1 of 2010 are hereby quashed and the orders set aside.

8. Nufaika Distributor Ltd., Vs. Hawa c/o Choma TUICO, Lab. Div., DSM. Rev. No. 256 of 2008, 15/02/2011, R. M. Rweyemamu, J.

The applicant/employer sought revision of the CMA award issued on 1/9/2008 in favour of the respondent/employee. The application was filed in this court on 12/11/2008 and resisted by the respondent who filed a counter affidavit and in the course of time - especially on 16/7/2010, raised (PO) on ground that the application was incompetent for being filled out of time.

Held:

i. I accept the respondent’s submission that the application was filed out of time. The applicant’s explanation regarding ‘good grounds for delay’ which they might have had for filing the application out of time, should have formed grounds in an application for leave to file an application out of time.

ii. Good reasons do not, without leave of the court, automatically justify filing the matter out of time.

iii. Even though I have found the application incompetent, I find it necessary to discuss the issue of jurisdiction of


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the CMA raised herein. The necessity arises because of two reasons. First, because the issue of jurisdiction is fundamental; it can be raised at any time and even by the court suo motto under its powers specified by rule 28 of the Labour Court Rules, GN 106/2007.

iv. The second reason; is to bring certainty and remove confusion which might have arisen in practice regarding the validity of CMA awards procured more than 30 days after completion of hearing contrary to section 88(9) of the Act.

v. I feel duty bound to state the current position of the law on the issue since confusion arose because of conflicting positions taken by this court. The divergent views have since been harmonised in the case of Tanzania Revenue

Authority vs. Justus Ndyeshumba, Revision 304/2009 delivered on 20/9/2010.

vi. I now believe that decision ( in 21st Century Food

& Packaging Ltd versus Emanuel Mzava Kimweli, Revision 158/2008, was made per incuriam; when the issue is considered in light of the overall objectives of the Act, the proper position in such a situation is that the

decision must, apart from the above, also take into

consideration other factors like; whether “the parties”

contributed to the delay in preparation of the award;

whether there were sufficient reasons to extend the

time and....if any party’s rights were prejudiced...or a

miscarriage of justice occasioned” by the late delivery of the award. (Joas Mrutu & 37 Others Vs. Namna Hotel, Revision 268 of 2008). That was the position taken by my


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sister Judge Moshi in Joas Mrutu &37 Others v Namna

Hotel, Revision 268 of 2008, a position I associate myself with.

vii. That the validity of awards issued after expiry of the prescribed period stands as clarified in bolded part immediately above.

9. Alhamdu Ndimkanwa & Others Vs. Director Vic Fish, Lab. Div., MWZ, Rev. No. 196 of 2009, 21/02/2011, V. K. D. Lyimo, J.

In this application one Alhamdu Ndimkanwa and twelve others applied for revision of the decision in CMA/MZA/NYM/148/2007 dated 20/11/2007. Initially when this matter was called for hearing before Kalombola J. on 15/6/2010, the applicants who were unrepresented were absent, and Mr. Njelwa learned counsel for the respondents, prayed to the court to dismiss the application under Order IX Rule 8 of the Civil Procedure Act, Cap33 R.E. 2002 for want of prosecution. Indeed, in its order dated 15/6/2010 the court dismissed the application under Order IX Rule 8 of the CPC for want of prosecution. Undeterred by the order, the applicants filed for an application to set aside the ex-parte order to have the main application reinstated.

Held:

i. That by virtue of section 51 of the Employment and Labour Relations Act, No. 6/2004, the Civil Procedure Act, Cap 33 R.E. 2002 does not apply to the Labour Court. The Labour Court has its own rules of procedure as specified under Part III of GN 106 of 2007.

ii. That enclosed with the record of proceedings are CMA


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referral forms No. CMA F1 together with annexures, dated 28th June 2007. Others are dated 10th September 2007. Of relevance, there is enclosed a certified copy of typed proceedings reflecting the mediation proceedings conducted between 26th July 2007 through to 19th September 2007 before F.J. Katindi, arbitrator. On 19/09/2007 the mediator issued his certificate CMA F5 in which he clerly indicated that the mediation had failed and that the parties had agreed to proceed by way of arbitrarion

iii. That section 38 (a) and (d) (i) - (iii) inclusive clearly requires the employer not only to issue notice of intention to retrench part of the work force, but he must also disclose his intentions and consult with any trade union with members at the work place, which is registered and recognised under the law. In addition he must consult with any employee who may not be represented by a recognized or registered union

iv. That from the enclosed proceedings the applicants were being represented by TUICO branch at the factory and there is evidence both from TUICO branch that the Regional Workers Union fully collaborated in the retrenchment exercise. It is my considered opinion that the applicants could not fully appreciate the legal framework under which the exercise had been conducted. The applicants seem to hold that individual retrenchees should have been consulted, which is not the correct exposition of the law. I am fully convinced that the arbitrator did not err in the interpretation of the law

v. That the application is dismissed for want of merits.


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10. Method Shabani Nyanda Vs. Major Drilling Mwanza, Lab. Div., MWZ, Rev. No. 191 of 2008, 21/02/2011, V. K. D. Lyimo, J.

This is an application for the revision of the decision/ruling by the Mediator in Mwanza CMA/MZ/605/2007 which was filed by the applicant under Rule 24 (2) and Rule 28 of the Labour Court Rules, GN 106 of 2007. The notice of application was filed in compliance with Form 4 of the Rules. In objecting to the application the respondent’s advocate had raised a preliminary point of law containing two points. One, that the application was incompetent for being hinged on a wrong provision of the law and second, that the applicant had adopted two procedures, in that he had initiated the proceedings by way of Chamber Summons and by notice of application. In the course of addressing the court, the respondent’s advocate prayed to withdraw the first preliminary objection touching on the wrong provisions of the law. He therefore sought leave to argue the second aspect on the procedure adopted by the applicant.

Held:

i. I have gone through the record of proceedings. All I can say is that there is material alteration of the record of proceedings a matter which shows that the mediator had miserably failed to keep a record of the mediation proceedings. In particular the mediator failed to keep the record of the proceedings in terms of Rule 13 (1) and (4) (a) and (5) of the Labour Institutions (Mediation and Arbitration) Guidelines, GN 67 of 2007

ii. That the CMA Ruling and proceedings are hereby quashed and set aside.


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11. Thobias Ndege Vs. Mwatex (2001) LTD., Lab. Div., MWZ, Rev. No. 110 of 2009, 21/02/2011, V. K. D. Lyimo, J.

This is an application for Revision arising from Mwanza Labour Reference No. CMZ/MZA/340/2008, wherein the arbitrator purporting to act under section 74 of Act No. 6 of 2004 rejected to determine the dispute and referred it to this court. Mr Haule who represented the applicant submitted that no mediation was ever conducted before the dispute was referred to arbitration. Mr Matata who represented the respondents conceded the fact that no mediation was conducted. Since the learned counsel for the respondents had conceded the lack of mediation proceedings, this Court found it expedient to deal with the irregularities which had been noted and which went to the root of the mediation process.

Held:

i. That looking at the CMA record of proceedings, the matter came up before the CMA for the first time on 9/5/2008, when it was adjourned to 26/5/2008. On that date i.e. 26/5/2008 although all the parties were present, the mediator simply endorsed that the mediation had failed and that the parties have agreed to go for arbitration.

ii. Under circumstances the mediator did not perform his work as required. Lack of proper record vitiates the proceedings and thus the mediation proceedings are declared a nullity.

iii. During the hearing of this application, the parties did not address their minds to the order issued by the arbitrator dated 11th August 2008.. The arbitrator, acting under section 74 (b) of the Act had referred this dispute to this


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Court. That like the mediator, the arbitrator did not keep or conduct arbitration, presumably on the belief that there was a collective agreement executed between the parties.

iv. That as there were no proceedings conducted and no proof of there being a collective agreement, it was improper for the arbitrator to act in the manner he did.

v. That under the circumstances, both mediation and arbitration proceedings are hereby quashed, including the respective orders.

12. Rev. Jonathan M. Mwamboza Vs. Bishop Dr. Stephen Munga,

The Registered Trustees of North Eastern Diocese - ELCT, Lab. Div., DSM. Lab. Disp. No. 1 of 2011, 22/02/2011, R. M. Rweyemamu, J.

Rev. Jonathan (the complainant) filed a Statement of Complaint (hereinafter, the claim) in this court on 10/1/2011 and on 17/1/2011 he filed an application under a certificate of urgency against both respondents. Both the claim and application were opposed by the respondents. On 31/1/2011 they respondents filed; a response to the claim, a counter affidavit in opposition to the application, and a notice of Preliminary Objection (PO) to both matters based on three grounds, namely, (i) that this Honorable Court has no jurisdiction to entertain this application as well as as Labour Complaint No. 1 of 2011 which is filed and is pending for determination before this court; (ii) the Application and Labour complaint therof are premature because the Applicant has not exhausted the remedies provided for in the Constitution of the North Eastern Diocese of the Evangelical Lutheran Church in


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Tanzania of 2000 and (iii) the Application and Labour Complaint thereof are hopelessly time barred.

Before proceeding, I find it necessary to give a brief background of the events leading to the present dispute: The complainant was serving as a pastor in the North Eastern Diocese- Evangelical Lutheran Church of Tanzania (ELCT) (herein after, the Diocese) and had been elevated into the post of the Principal Dean (PD) – a post he held till this case. The complainant’s pastoral services were terminated by the Pastoral Council on 14/8/2010 and the complainant was informed of that decision in the Bishop/1st respondent’s letter dated 24/8/2010. In that letter, the complainant was informed that; he had been stripped/disrobed of his pastoral ministry; removed from the post of the PD; was to return articles associated with his work as a pastor and vacate his official residence.

According to the Diocese constitution ( tendered in court); a PD is picked from persons in pastoral services; a PD is appointed by the Bishop and approved/elected by the Synod which also has powers to remove him. The removal of the pastor is provided for in the constitution which has three administrative bodies. These are the Pastoral Council, The Executive Council and the Synod in that hierarchy.

It was the complainant’s claim that he was condemned unheard, and that it was the 1st respondent who influenced the 2nd respondent’s Pastoral Concil and Executive Council to terminate him unprocedurally and unconstitutionally while the powers to remove him lay in the synod. His efforts to have the conflict settled amicably by; making a complaint in writing to the 1st respondent on 1/9/2010; making a complaint in writing to the Secretary of the diocese and the head of the ELCT church in Tanzania proved futile


24

because he received no effective remedy. It is in that background that the complainant filed the present claim.

Held:

i. That the parties have the machinery - their own dispute settlement machinery commencing from the pastoral council, the executive council and culminating with an appeal to the synod which complainant has not exhausted.

ii. That even if my decision on PO (i) was that religious matters are justifiable under the Constitution, and that the complainant’s “spiritual work” which he was stripped amounted to an employment in the sense envisaged by the Labour Laws which vest jurisdiction in this court (an issue I had requested both parties to address the court on), such that its termination gives the complainant a cause of action under such laws, (I have found it unnecessary to decide both issues) I would still find the claim premature because I am satisfied the complainant has not exhausted the remedy provided for by the diocese constitution which governs the parties’ relationship.

iii. That the synod is the appropriate body to deal with the complainant’s claim; it has not refused to perform its functions; and there is no ground to restrain it from performing its functions - the complainant can have recourse thereafter, if aggrieved by the synod decision.

iv. That regarding whether this court has jurisdiction to entertain this kind of claim (basically a religious dispute), or its jurisdiction is ousted by section 19 (2) of the Union Constitution which deals with state powers to regulate


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religious matters, I find it unnecessary to decide the point at this stage.

v. That on whether the jurisdiction of this court specified under section 94 of the Employment and Labour Relations Act, No. 6/2004 read together with section 51 & 52 of the Labour Relations Act, No. 7/2004, which includes adjudication of claims like the present, due to my decision on PO (ii) the decision on the issue has to be put off for now.

vi. In the totality of my holding on PO (ii), I decide that the complainant’s claim and application are premature before this court and for that reason strike them off.

13. Ikupa Edward Kassege Vs. GoldStar Paints (T) Ltd., Lab. Div., MWZ, Rev. No. 5 of 2010, 24/02/2011, V. K. D. Lyimo, J.

This is application for revision of the CMA decision in CMA/MZA/506/2008 dated 28/7/2010, brought under section 91 (1) and 94 (1) of the Employment and Labour Relations Act, No. 6/2004 and Rule 28 (1) of the Labour Court Rules, GN 106 of 2007. In this application the complainant has attacked the arbitrator’s ruling on two main areas, one, that the arbitrator wrongly interpreted the provisions of section 42 and 43 of the Security of Employment Act on the payment of terminal benefits, especially his claims for unpaid leave for the two years - i.e. 2006 and 2007. The second aspect was his complaint that the termination of employment was not fair and did not comply with prescribed procedures.


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Held:

i. That the affidavit sworn by in by the applicant is bad in law for being argumentative and in contravention of Rule 26 (2) (a). However, in view of the fact that the applicant is a lay person, it is inappropriate to strike it out on mere procedural irregularity.

ii. That this court, acting under section 94 (1) (b) (i) and Rule 28 (i) on its own motion, can revise proceedings of this nature in order to satisfy itself on proprietiness of the decision complained of.

iii. That looking at section 37 of the Employment and Labour Relations Act, No. 6/2004, and in particular subsection 2 (b) (i), and the arbitrator’s reasoning at pages 11 of the typed ruling, there is no doubt that the termination of employment was fair under the circumstances.

iv. That, the court took account of the fact that the employer was not disputing any payment lawfully payable to the applicant.

v. That in order to amicably severe the employer-employee relations which have gone sour, this court is of the opinion that in effecting payments listed above, and taking into account whatever claims that the respondent demands from the applicant, the respondent should pay in cash terms an amount equivalent to the cost of repatriation of the applicant back to his place of domicile.

vi. That from the variation order in respect to repatriation costs, the application is hereby dismissed.


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14. Globeleq Tanzania Services Ltd. Vs. Evarist Sessa, Lab. Div., DSM. Misc. Appl. No. 47 of 2010, 01/03/2011, R. M. Rweyemamu, J.

There are preliminary matters to be resolved by this court before dealing with the applicant/employer’s combined application. I am calling the application combined because; while the main issue in the application (1st issue) is; seeking an order for revision of the Deputy Registrar’s decision in execution; the applicant also seeks to fault the CMA award subject matter of execution, on ground that the same was improperly procured - that it was procured after expiry of the period prescribed by section 88 (9) of the Employment and Labour Relations Act, No. 6/2007 (herein the Act).

The 1st issue raises the question of jurisdiction, thus it has to be dealt with at the outset as per TCA direction in Nicodemus Kajungu & 1374 Others Vs Bulyanhulu Gold Mine, TCA Civil Appeal No. 110/2008 (DSM registry-unreported), ‘’ it is the duty of the court to satisfy itself that it is properly seized or vested with the requisite jurisdiction to hear and determine a matter’’.

Held:

i. That Rule 28 of the rules deals with revision of the CMA proceedings including awards which the court is empowered to do by section 91 and 94 (1) (b) of the Employment and Labour Relations Act, No. 6/2004.This provision is not an enabling provision for revision of the Registrar’s decision - even if the same is revisable under the labour laws. That having so held, I uphold the objection; find that the application is improperly before this court and strike it off. Now that decided, I could leave the issue to the parties to find out what provisions govern the issue.


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ii. It my position however, that this being a relatively new area of law and practice; and because this question keeps on arising in a number of execution proceedings in this court; and the court has hitherto dealt with it administratively; it is opportune to state what in my opinion, is the proper avenue to be followed by a party aggrieved by a Registrar’s decision/action issued in the course of execution of a CMA award.

iii. That the jurisdiction of this court in revision (and review) is specified under section 94 (1) (b) (i); that power does not extend to revision of decisions of the Registrar. It only covers revision of arbitral awards and decisions of the Essential Services Committee made under Part VII of the Act.

iv. To answer the question at hand, it is necessary to first explore the source and ambit of the Registra’s power in execution of arbitral awards. Practice in this court is ordinarily governed by the Act read together with rules. Provisions of the Civil Procedure Code (Cap 33 R.E. 2002) are not ordinarily applicable. The CPC is applicable where specifically provided for, or under rule 55 (1) of the rules, when the court deems appropriate to adopt it.

v. That the use of CPC is specifically provided for in matters of execution of the CMA decree. Under the Act, an arbitration award is served and executed by the Labour Court “as if it were a decree of court of law.” Now under rules 48, a court decree is enforceable by the court exercising powers conferred by the provisions of Order XXI of the CPC, and such enforcement is made following


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application by the decree holder under rule 49 (2).

vi. That Registrar(s) of this court, appointed under section 54 of the Labour Institutions Act, No. 7/2004 are responsible for execution of court decrees exercising powers conferred by provisions of Order XXI read together with Order XLIII (g) to (i) of the CPC. It was in exercise of such powers that the Registrar made the impugned decision on 17/5/2010.

vii. It is my considered opinion that a party aggrieved by such decision has to use the usual machinery under the CPC read together with rule 55 of the rules. What is the usual machinery?

viii. After giving considerable thought on this issue, and having failed to get a better instructive authority, my position is that a party aggrieved by the Registrar’s decision in execution of the CMA decree has three options: If the issue stems from any doubt regarding meaning of contents of the award, one of the options is for any aggrieved party to apply for revision of the award - an award is revisable on ground of ambiguity. Such an application would be brought under section 94 (1) (b) (i) of the Act read together with rule 24 and 28 of the rules. The second option would be to apply for review of the disputed award in this court under the above cited section of the Act, read together with rule 26 of the LC Rules. The third option is for the aggrieved party to put a machinery of reference under Order XLI of the CPC in motion. That is, an aggrieved party may make an application to the Registrar, requesting a reference be made to the High Court on the matter on which doubt is entertained. The Registrar may then, ‘draw


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up statement of the relevant facts and the point on which doubt is entertained and refer such a statement with his/her opinion on the point’ for decision of the High Court under the cited Order. Such an application to the Registrar would in my considered opinion, be made under the cited Order of the CPC, read together with rule 24 and 55 of the rules. The High Court may then act as prescribed by rule 5 of that Order or may revise or take appropriate action in respect of the CMA proceedings under its powers vested by rule 38 of the rule.

ix. In the totality of all the above and having ordered the application struck off, it is my decision that good ends of justice require that the applicants be given extension of time to take appropriate steps if they are still desirous of doing so.

Obiter (i) Admittedly, procedures for execution of CMA decrees under the rules, is an area which should be looked into by the responsible body so that the required procedure is made plain and straight forward to users.

15. Shabani Mohamed Vs. Keko Garage Ltd., Lab. Div. DSM., Rev. No. 238 of 2009, 01/03/2011, R. M. Rweyemamu, J.

The applicant was aggrieved by the Commission for Mediation and Arbitration (CMA) decision dated 29/7/2009 filed an application for its revision on 8/9/2009 citing a number of enabling provisions which I quote: Sections 30 (1) (a) (c), 31 (1) (2) and 44 (1) (a) (b) of the Magistrate Courts Act 1984; section 68 (e), 76 (c) (2) and 95 of the Civil Procedure Code, Cap 33 R. E. 2002; Rule 29


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(5) (a) (b) GN No.64/ 2007 of the Labour Institution Mediation and Arbitration Rules 2007; Rule 18 (6) GN No. 67/2007 of the Labour Institution Mediation and Arbitration Guidelines Rules, 2007 and any other enabling provision of the law. On 20/10/2009, that application was withdrawn with leave of the court and another one filed on 3/11/2009. The 2nd application was brought under sections 91 (1) 94 (1) (b) (i) (ii) of the Employment and Labour Relations Act, 6/2004 (the Act) read together with rule 18 (6) of GN 67/2007. The provisions cited were objected to by the respondent. That objection is subject matter of this ruling.

Held:

i. That the court’s powers to revise arbitration awards is provided by section 91 (1) of the Act, read together with rule 28 of the Labour Court Rules, GN 106/2007 (LC rules). A party seeking revision of the award has to file an application to the court citing those provisions plus rule 24 of the rules. The latter rule prescribes the procedure for accessing the court to obtain relief in terms of the empowering provisions. All the above are enabling provisions which should be cited in an application like the present although depending on the reliefs sought more or general provisions may be added.

ii. That it is clear that the applicant in this case cited only part of the necessary provisions namely section 91 of the Act. Proper citation should include rule 24 and 28 of the LC rules. Further the cited GN 64/2007 and 67/2007 are not applicable as those rules govern procedure in the CMA.

iii. In the result of what I have held above, I uphold the PO by the respondent and order the application struck off for


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failure to cite all the enabling provisions. In the interest of substantive justice however, I grant the applicant another chance to file a proper application.

16. Edna Robert Vs. Tanzania Revenue Authority, Lab. Div., DSM, Rev. No. 282 of 2009, 18/03/2011, S. C. Moshi J.

This is a Revision Application emanating from CMA award which was procured by the Commission for Mediation and Arbitration on 12/10/2009. The Applicant was awarded four (4) months salaries compensation due to employer’s (Respondent’s) failure to follow a fair procedure i.e a right to call a representative to assist him and represent her during her defence before the disciplinary proceedings. The Arbitrator found that there was a valid reason for termination, hence substantially, the termination was fair. He reasoned that the Applicant had committed a misconduct. He found so because the applicant had failed to carry adequate examination of customed goods for the purpose of revenue assessment. The Arbitrator also reasoned that the TRA Regulations sanction for such an offence is termination because the Applicant has to inspect the container twice before the team does. The Applicant was not satisfied with the award. He was aggrieved and feels that the Arbitrator erred to find that the termination was substantially fair, as he did not commit gross negligence as it was the first mistake done since 1999 when she was employed. That the whole procedure of a right to be heard was not observed by the management committee before termination and that the Arbitrator erred for not stating clearly that she is entitled to 12 months salaries; instead of the 3 months.


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Held:

i. Having heard both counsels on this point and having considered the facts as presented before the arbitrator, I find that the arbitrator was right to find that the applicant had committed a misconduct due to her negligent Acts. I have taken into consideration Rule 12(1) (2) and (3)

ii. Although a first offence of misconduct under Rule 12 (2) shouldn’t justify termination however under the same law, Rule 12(3) the act may justify termination in certain circumstances. For example in our case, the case is a clear case of gross negligence; See R.12(3)(d).

iii. Regarding procedural issues, it is true that the (the applicant) did not or was not represented. The applicants cited the case of N.B.C. Ltd. Mwanza Vs. JUSTA B.

KYARUZI LAB. REV. NO. 207/2008 where the Court held that the applicant was entitled as per R.13 of the Code i.e. G.N. 42/2007; that it was employer’s duty to observe the code. In this case, the arbitrator found that she was not availed with the assistance to get a Representative. I find that Arbitrator’s finding was correct and in accordance with the Law. That termination was procedurally unfair.

17. Masoud Kondo & 3 Others Vs. M/S Tanganyika Investment Oil

Transport, Lab. Div., DSM, Rev. No. 327 of 2009, 18/03/2011, S. C. Moshi, J.

The Applicants are seeking revision of ex-parte award which was procured by the Arbitrator on 20/7/2009 in their favour. The application for revision too, was heard e-parte after the respondent’s


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refusing to accept service of summons. Among the reasons advanced in the affidavit and their oral submission were that the arbitrator misdirected herself in computing the Notice of Termination by subtracting the half pay disbursed to the Applicants on 9.9.2008 not considering that the Applicants worked with the Respondents until that date and were entitled for such payments. That the Arbitrator erred for not awarding leave arrears; the unpaid years and for not ordering payment for overtime for the entire period of service which the Respondent did not settle. That although they were recruited in Dar es Salaam; yet they come from diverse places, hence they are entitled to be repatriated; and that the employer was supposed to appraise the NSSF so they could be paid their pensions promptly.

Held:

i. The arbitrator correctly found that the termination was unfair hence the applicants were paid compensation accordingly. The issue of N.S.S.F payments procedure is not covered under the Employment and Labour

Relations Act, Act No. 7/2004. The N.S.S.F payment has own procedures which are stipulated under other laws.

ii. Regarding the transport allowance Section 43 of Act

6/2004, transport of the employee and his personal effects is to be to the place of recruitment. There is no evidence to show or prove that the applicants were recruited at the place, other than the place where their services were terminated.

iii. The issue of overtime allowance and leave allowance. These claims have to be proved and be claimed in time. There is nothing in evidence as to why they did not claim


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these as and when they were due. Apart from that there was also no evidence to support their claim. The claims are time barred

iv. I therefore basing on the aforesaid, find that the arbitrator’s award was properly procured. The application has no merits. It is dismissed accordingly.

18. Bonite Bottlers Ltd. Vs. William Issa, Lab. Div., ARS, Rev. No. 163 of 2009, 24/03/2011, R. M. Rweyemamu, J..

The applicant/employer was aggrieved by the Commission for Mediation and Arbitration (CMA) award procured on 29/5/2009 in favour of the respondent/employee. They filed an application for its revision advancing three key grounds, namely that the arbitrator: erred in granting the respondent terminal benefits which were already paid; erred in awarding payment of 10 years salary as compensation which order is contrary to labour laws; and erred in making the said decision when the respondent’s employment was for a fixed 2 year period. The application was moved by way of chamber summons supported by affidavit; “made under the provisions of section 91 (i) (b) (c) (2) of Employment and Labour Relations Act, No. 6/2004 as amended by Act No. 2/2007, and rule 28 (1) rule 26 (2) (a) (b) and (c) of the Labour Court Rules and any other enabling provision of the law”.

On 12/11/2009 the employee filed a counter affidavit in opposition and subsequently - on 3/6/2010 filed a notice of preliminary objection (PO) subject matter of this ruling on two grounds: that, (i) there having no notice of application filed by the applicant in accordance with the mandatory statutory requirement under rule


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24 (1) an (2) of the Labour Court Rules, 2007 read together with the prescribed Form No. 4 in the schedule thereto, this Honourable Court has not been moved by the applicant to exercise the statutory jurisdiction vested upon it in a revision application proceedings; and (ii) that without prejudice to the first preliminary objection hereinabove , by the act of the applicant citing rule 26 (2) (a), (b) and (c) of the Labour Court Rules for the purposes of the application at hand, has the legal effect of rendering the applicant’s application, as presented, being both incompetent and wholly misconceived at law.

Held:

i. Regarding the manner the PO was raised, my decision is this: I am mindful of the purpose served by POs; the same was put plainly by the Tanzania Court of Appeal in Shahida

Abdul Hassanali Kasam v. Mahed Mohamed Gulamali

Kanji – Civil Application NO.42 of 1999 (unreported) as “..to save the time of the court and of the parties by not going into the merits of an application because there is a point of law that will dispose of the matter summarly”.

ii. A valid PO saves time, further a PO touching on jurisdiction can be raised by the parties any time before a decision is made, and it can even be raised suo mottu. For those reasons, I find it proper to deal with the PO raised irrespective of the manner it was presented.

iii. I find it useful to deal with PO (ii) first because my decision on it is applicable to PO (i) I wish to begin by pointing out that this court has taken a conflicting stance on the question of whether the LC rules specifically provide for a procedure to be followed in filing an application


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for revision under rule 28 of the LC rules. This conflict was demonstrated in the case of TPAWU Vs. Robert

Korinako, Revision No. 109 of 2008, this court observed among others that the 1st position is that: “ the LC rules do not provide for a procedure to be followed in filing an application for revision under rule 28; and therefore that the said void (lacuna) can be filled by adopting mutatis mutandis, the procedure provided for review under rule 26 of the rules, which though a different category, are put together under the same part of the rules. That is the reasoning adopted by the Hon. Mandia J. (now JA), as he then was, in COCA COLA

Kwanza Ltd Vs. Emmanuel Mollel, Application No. 22/2008 and followed by Hon. Moshi J. in PLY and Panel

(T) LTD TANGA Vs. Hamad Kassim, Labour Revision No. 286/2008 – (delivered on 3/11/2009).

iv. The 2nd position was stated in Sisty Patrick Kessy and

2 Others Vs. the Manager China Paper, LC Revision 25/2009 where I concluded that: “My understanding of rule 24 of the rules is that, the same provides for a procedure for making “any application” to the court, and specifically covering “applications... not specifically provided for under the rules” (rule 24 (11) (b). That rule prescribes the procedure to file a notice of application which substantially complies with the prescribed Form No.4 (part of the schedule to the rules), supported by affidavit. That rule goes on to provide for filing of a notice of opposition/counter affidavit or both the opposing party. Now rule 28 provides that “the court may... on application by any party... revise...” an award. In my opinion, an application for revision is one of the categories of applications envisaged under rule 24 of the rules, and


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therefore the procedure to be followed in applying for revision, is that prescribed under rule 24”.

v. According to the above, one position is that revision have to be filed according to procedures which apply for review; i.e. rule 27 of the LC rules. The other position, the position I take is that there is no lacuna; that applications for revisions have to follow the procedure prescribed under rule 24 which govern any application not specifically provided for. In view of that, applications for revision of awards under section 91 of the Act read together with rule 28 of the LC rules have to be moved into court vide rule 24 of the LC rules. It is all the above provisions which should be cited in applications for revisions, although depending on the relief sought, more general provisions may be added.

vi. On the main, applications for revision are now brought as per rule 24 but despite my said decision, it is in view of the conflicting stance taken by the court I decide that it would be unfair to dismiss an application for revision where a party has moved the court using the 1st position. For that reason, I dismiss PO (ii). Hopefully, concerned authorities will soon address the issue so that the proper procedure is plainly provided.

vii. Regarding notice – (PO) (i); my decision is that where applications for revisions are brought under rule 24, the use of chamber summons supported by affidavit is justifiable under rule 24(11) (b) which cover “other applications incidental to or pending proceedings referred to in these rules and not specifically provided for in these rules..”


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(Emphasis mine) The decision is in view of the conflicting stance already explained although the now common practice is to use the procedure of notice prescribed under rule 24 (1), (2) and (3) of the LC rules.

viii. In the result of all the above, I find that this application, where both section 91 (1) of the Act and rule 28 of the LC rules were cited was proper. I dismiss both grounds of the PO and order the application heard on merit.

19. General Guards & Office Cleaner Vs. Chacha Masuri &

29 Others, Lab. Div., DSM, Misc. Lab. Appl. No. 18 of 2010, 24/03/2011, S. C. Moshi, J.

The Ruling is pursuant to an Application for extension of time to file Revision against CMA award; which in fact as found out during the submission it is a settlement agreement made under Rule 17 (1) of GN No. 67/2007; it was made on 18/7/2008.

Held:

i. The provisions of the law enabling the Court to enlarge time limitation or condone late filing of such Applications are set in Rule 56 (1) of the Labour Court Rules, GN No. 106/2007.

ii. That under Rule 56 (1), the Court may extend or abridge any period on good cause shown.

iii. That the reasons advanced by the Applicant do not suffice to be a good cause to prevent the Applicant to lodge the intended Application in time.

iv. That from the facts; the Applicant had started to effect


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payment. They later discovered some irregularities which moved them to request for a Revision. However they did not state when did they discover the irregularities.

v. That for the Court to exercise the discretion; it has to act judiciously; thus the party requesting for condonation has to prove that there was a good cause which prevented him to lodge the Application in time.

vi. That the Applicant has failed to show a good cause and consequently the Application is dismissed for lack of merits.

20. Judicate Rumishael Shoo & 64 Others Vs. The Guardian Ltd.,

Lab. Div., DSM, Rev. No. 80 of 2010, 01/04/2011, S. C. Moshi, J.

The ruling is pursuant to an application for Revision made under u/s 91(1) and (2), s. 94(1) (b) (i) of the Employment and Labour Relations Act, No. 6 of 2004, and R. 24(1) (2) and (3) R. 28(1) (b) and (e) of the Labour Court Rules, G.N. No.106 of 2007. The Applicants challenge the award of CMA in CMA/DSM/ILALA/22/2009 decided on 1st March 2010 in favour of the Respondent. The Applicants requested the court to quash the decision cited above on reason that it was improperly procured, the arbitrator failed to evaluate the evidence properly; and that there are material errors to the merits of the said award; further the arbitrator failed to consider that there were some procedural irregularities in terminating applicant’s employment.

Held:

i. Case law is good law, however the statutory law is still in place. The Court do not strike out the matter in such


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circumstances. A party may either follow the precedent set in the case or may do it by way of Notice supported by affidavit under Rule 24 of the Labour Court Rules. Having said so, I find that the Court is properly moved.

ii. Regarding the second limb, that is whether the application ought to be an appeal or Revision; one has to visit the Act; Act No. 6/2004. The Act clearly stipulated on matters which may be appealable to the Labour Court. Under the Act issues of unfair termination have to be referred to CMA for Mediation, if mediation fails, the matter is referred to arbitration. The aggrieved party may challenge it by way of Revision to the labour Court; no right of appeal lies against an arbitration award. PART IV of the Act stipulated issues which may be preferred to the Court by way of Appeals. These are issues of Trade Unions, Employer’s Associations and Federations. Particularly see S.57 of the Act. Hence the cited case of Hallais Procheme Vs. Wella (1996) TLR 269 is distinguishable from this case.

iii. Was the award illegally obtained to move the court exercise its powers in accordance with Rule 28 of the Labour Court Rules? I will start with the issue of jurisdiction; the record shows that the arbitrator heard the objection regarding this issue. He reasoned and found that the C.M.A. had Jurisdiction to entertain the matter. If any party wasn’t satisfied would have taken necessary steps to challenge it.

iv. The significance of the referral Form. Is it just a sample? The arbitrator was right on this point. Referral Form is part of the PLEADINGS. Applicants Claims have to be pleaded in the referral Form, i.e. Form No.1. The C.M.A.


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has to make a decision on what has been pleaded in Form No.1. The case of Powers Roads (T) v. Haji Omari

Ngomero, Lab. Revision No.36/2007 clearly explains the position; that even the arbitrator cannot change what is in the form suo motto. If at all the applicants felt that they had not exhausted their claims, they ought to have sought leave to amend the Form. Thus, Form No.1 is not a mere sample as submitted by one of the counsels.

v. The applicants complained of procedural irregularities on termination; the evidence shows that there were some consultations made between the parties, whereby the Union’s branch was involved. There was an issue of collective agreement which was lodged with the Labour Commissioner after the retrenchment exercise; the arbitrator found that since the authenticity of the agreement was not disputed; he found it to be valid. He too found that the applicant were dully consulted and they were dully paid their terminal benefits.

vi. The arbitrator referred to S.38 of the Act. which provides for retrenchment procedure. As said earlier, the evidence shows that there were consultations between the management, employees and TUICO branch leaders; facts which are in compliance with S.38(1) of the Act; later some payments were made, the arbitrator believed that the payment amounted to terminal benefits and he held so.

vii. Having discussed as I did I see no illegality on the arbitrator’s award. All in all, basing on the aforegoing reasoning I find that the award was properly procured and I see no reason to fault with the arbitrator’s award. I


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thus find that the application has no merits it is dismissed accordingly.

21. Omary Mwinyimvua na Wenzake Vs. M/S Sengo 2000 (T) Ltd.,


The Applicants are challenging the CMA award which was issued on 29/5/2009. They had claimed for overtime payment for the whole year, which they worked for Respondent. They stated that they had been working for the Respondent for 12 hours per day for six days in a week. That this was in contravention of the law; as they worked beyond the ordinary hours. The Arbitrator found that the Applicants have failed to prove that they worked beyond ordinary hours; as there was no evidence, except for the employment contract. He too, Arbitrator found that the Applicants were time barred; they ought to have claimed for the overtime pay when the same was due; at the end of each month. Also that according to law, if any overtime duty has to be performed beyond ordinary hours, then the parties have to enter into an agreement; in this case, he found that the parties did not agree on the terms of overtime job.

Held:

i. That the extra hours work has to be proved; there is no evidence to that effect. Also, had they worked extra hours; i.e. if they had proved that fact, the same, as submitted by the Respondent’s advocate, has to be claimed at the end of each month when and as they accrue.

ii. That the Arbitrator’s award was properly procured in accordance with the law; the Application is dismissed for lack of merits.


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22. Ramadhani H. Ramadhani Vs. Andro Roofing Product Ltd.,


The applicant is challenging an ex-parte award procured by the CMA on 27/11/2009. The Applicant was the complainant in CMA case No. CMA/DSM/KIN/11/09/392. He was claiming for terminal benefits; namely severance allowance, salary arrears, extra hours payment and notice payment. The arbitrator, after evaluating the evidence found that there was no employer and employee relationship between the parties. The arbitrator reasoned that applicant’s witnesses testified to the effect that the applicant’s salary was being paid by Touch Products. That there’s no proof that the Applicant worked for Andro Roofing; and was being paid by Andro Rooding Products. Also that there was no proof that the Applicant’s services were terminated. As, according to the Applicant, the termination information was given to him by the secretary hence he decided to write a letter to the employer claiming for terminal benefits.

Held:

i. The proceedings; the evidence, indicatethat the witness were co-workers of the applicant. There are some facts which would be proved if the respondent was required by the C.M.A. (arbitrator) to bring record for his workers. In order to be able to ascertain the truth of the employees data/information; the C.M.A. is empowered to call upon the employer to bring record of the employees for the alleged period; as it is the duty of the employer to keep employees record; see S.96(2) of the Employment and

Labour Relations Act, Act No. 6/200


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ii. Having this evidence, the arbitrator was duty bound to have the employer bring the employees records; and inquire on the relationships of the employing company with the claimed companies which employees were sent to work.

iii. Having said so, I find that the award has some material irregularities. I quash all the proceedings; set aside the award and order a hearing devono of arbitration proceedings.


Lab. Div., DSM, Misc. Lab. Appl. No. 48 of 2009, 01/04/2011, S. C. Moshi, J.

The Applicant is seeking extension of time to file an Application for Revision of Commission for Mediation and Arbitration award which was procured on 22/9/2008. The grounds for the Application were sworn in the Affidavit as well as submitted orally when the Application came up for hearing. The grounds for the Application as submitted by Applicant’s advocate were inter alia that: the service of the award was made at the Kigoma office instead of Dar es Salaam, where the head office is situated, and the address which was issued to the Commission to be proper address of service; that the award was confusing as it provided that they could, if not satisfied apply for “Marejeo Revision” to the court within 15 days. So they applied for Review before the High Court which was struck out for being incompetent.


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Held:

i. That the Arbitrator’s award had misdirected the parties on the time limit to file an Application for Revision. He directed them that the aggrieved party may file the Application for Revision within 15 days

ii. That what was filed by the Applicant was a REVIEW and not REVISION as ordered by the Arbitrator. This argument would be valid if the Arbitrator had misdirected them to file a REVIEW instead of a REVISION.

iii. That the intended Application is quite different and distinct from the Application for Review; which the court is functus officio do discuss it.

iv. That negligence cannot amount to a good cause to move this court to exercise its powers to extend time for lodging an Application out of time.

v. That the Application is dismissed for lack of merits.

24. Jane Nshunju Pesha Vs. N.S.S.F, Lab. Div., DSM, Rev. No. 110 of 2008, 08/04/2011, S. C. Moshi, J.

This ruling is pursuant to a Preliminary Objection on point of law raised by the Respondent that the application is time barred. Applicant’s advocate argued that the Commission for Mediation and Arbitration procured the award on 23/4/2008 in favour of the Respondent. He submitted further that the Applicant filed Notice of Appeal out of time on 4/7/2008. The Registrar granted the leave to file the same on 25/9/2008. The Applicant on 23/9/2008 filed Notice of Revision under Section 91 (1) & (2) of the Employment


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and Labour Relations Act, No. 6/2004 and Rule 29 of the Labour Court Rules vide Form No. 5. That the law requires any party aggrieved by the CMA award should apply, within six weeks to the Labour Court to set it aside under section 91 (1) of the Employment and Labour Relations Act. Hence the Applicant was supposed to file her Revision on or before 6/6/2008; it is now in excess of 32 months from the last date the Applicant was required by the law to file Revision; and she has not applied for extension of time to do so. He thus requested the court to dismiss the application without leave of refilling the same.

Held:

i. There is no dispute that the application is filed out of time hence not properly before the Court. The issue is whether an incompetent application for being filed out of time is supposed to be dismissed as requested by applicant or whether it should be struck out.

ii. I have considered the submissions in the circumstances, the proper remedy for an incompetent application is to strike it out of the Register so the same can be properly preferred if the parties will be interested to pursue it; it has to be so since the matter has not been determined on merits and substance

iii. Having discussed as I did, I strike out the matter accordingly.


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25. N.S.S.F. Vs. Issa Sasilo Majid, Lab. Div., DSM, Rev. No. 253 of 2008, 08/04/2011, S. C. Moshi, J.

The Ruling is pursuant to a Notice of Preliminary Objection on point of law to the effect that; the Applicant’s chamber summons is incurably defective and bad in law in that is contains extraneous matters contrary to the requirement of Order XIX Rule 3 of the Civil Procedure Act, Cap 33 Revised Edition 2002 to wit: that is contains legal arguments; that is proving the suit instead of putting facts necessitated the swearing of the Affidavit; and that it contains prayers. For Respondents; the argument was that under S.88 (8) a party who alleges defect in any arbitration proceedings may apply to the Labour Court for a decision to set aside the arbitration award. That the cited SS.86 and 87 are irrelevant in this case. That, being aggrieved by an ex-parte award which was made by the C.M.A. they preferred the Revision application to this Court.

Held:

i. The cited sections i.e. SS 86 and 87 provide for mediation hearing. Therefore they are not relevant in our case where the applicant is challenging an ex-parte award; made under S.88.

ii. The issue here is whether the High Court can set aside an ex-parte award which was procured by the Commission for Mediation and Arbitration. The record shows that the applicant failed or defaulted appearance for undisclosed reasons. Hence the CMA proceeded Ex-parte. Hence the applicant did not take part in the proceedings; He did not present his case before the Commission. Hence he wasn’t party to the arbitration proceedings.


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iii. The proper course is for the applicant to apply before the Commission to be heard. He has to show sufficient cause for defaulting appearance; hence he be given an opportunity to present his case. Hearing him at Revision stage would be tantamount to stepping into shoes of the first instance body, i.e. the C.M.A. Moreover he wasn’t party to the arbitration proceedings he’s seeking to set aside.

iv. Having discussed as I did, I find that this Court cannot set aside an Ex-parte award which was entered by the C.M.A.; it is upon the C.M.A. to do so upon being shown good cause. The Preliminary Objection is upheld. The case is struck out.

26. Prokon Renewable Energy Ltd. Vs. Medard Gatwa & 10 Others,


This Ruling is pursuant to a Notice of Preliminary Objection on point of law to the effect that the Application is misconceived and incompetent for non-compliance with legal procedures. The Respondent submitted among other things that the Application for Revision is against an Ex-parte award which was made under Section 88 (8) (9) of the Employment and Labour Relations Act, following Applicants default of appearance. That under section 87 (5) the CMA is empowered to set aside Ex-parte award if is satisfied that good grounds for failing to attend have been advanced. Hence, this court is not the proper forum to set aside an Ex-parte award. The Applicants ought have to filed the Application to reverse the decision at Sumbawanga CMA.


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Held:

i. That sections 86 and 87 provides for mediation hearing. Therefore they are not relevant in this case where the Applicant is challenging an Ex-parte award, made under section 88.

ii. That the record shows that the Applicant failed or defaulted appearance for undisclosed reasons, and the CMA proceeded Ex-parte hence, the Applicant did not take part in the proceedings and he did not present his case before the Commission.

iii. That the proper procedure is for the Applicant to apply before the Commission to be heard and has to show sufficient cause for defaulting appearance; hence he be given an opportunity to present his case.

iv. That hearing him at Revision stage would be tantamount to stepping into shoes of the first instance body, CMA; where he was not party to the arbitration proceedings he’s seeking to set aside.

v. That the Preliminary Objection is upheld and the case is struck out.

27. 2000 Industries Ltd. Vs. Halima Z. Giteta & 8 Others, Lab. Div., DSM, Misc. Appl. No. 19 of 2010, 08/04/2011, S. C. Moshi, J.

The Applicant is seeking extension of time to lodge an Application for leave to appeal to Court of Appeal. The Application was brought under section 14 (1) of the Limitation Act. Applicant’s advocate submitted that under section 45 (a) of the Court of Appeal Rules; if


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there’s is need to obtain leave of High Court to appeal to Court of Appeal, then they should do so within 14 days. Applicant’s advocate submitted further that the decision was pronounced on 18/3/2010; thus he was to lodge the Application on 1/4/2010. Unfortunately he had already travelled to Mbeya on 1/2/2010 to take care of a sick mother. He left Dar es Salaam on 29/3/2010 and came back on 11/4/2010 on being satisfied that his mother in law was doing well. He swore an affidavit to affirm what he states and his brother in law Mr. Karuwa swore an affidavit to support the statement. The Respondents objected the Application; they too affirmed in their counter affidavit to the effect that the extension of time can be granted on good cause being sworn. They stated that the Applicant has not shown any proof that he had travelled to Mbeya. Also that there is no proof that there was a sick person at Mbeya; as a medical statement could be sufficient proof to that effect.

Held:

i. That the court can extend time limits under Rule 56 (1) of the Labour Court Rules GN 106/2007. Rule 56 (1) of the Labour Court Rules empowers the court to extend time on good cause.

ii. That as stated by the Respondents in their counter affidavit the issue of sickness could be sufficiently proved by medical statement or any medical chit. That in this case there is no proof that there was a sick person to attend to as stated a medical statement could suffice.

iii. That the Applicant’s advocate has failed to show good cause which will make this court extend time to lodge their Application; the Application is dismissed accordingly


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28. Malaik K. Mwasungi Vs. Tanzanite One Mining Ltd., Lab. Div., DSM, Rev. No. 108 of 2010, 08/04/2011, S. C. Moshi, J.

The ruling is pursuant to an Application for Revision of Arbitration award which was procured on 23/3/2010. The Application proceeded Ex-parte as the Respondent didn’t appear despite the fact that they were duly served. The grounds were: that the award was procured after the mandatory 30 days in contravention of the law section 88 (9) of the Employment and Labour Relations Act; that the award was procured more than 3 (three) months after final submissions; that the Arbitrator failed to evaluate properly the evidence, as such leading to wrong conclusions; that the award didn’t contain any issue for decision; and that the Applicant wasn’t given a chance to be heard.

Held:

i. It is apparent that the award was procured after the mandatory 30 days. That is the law and in the cited case of Dar es Salaam Yatch Club V. Eliezer Musama & James Rev. 263/2008 it was insisted that the law has to be followed as it is. However there are other authorities of the same Court; see the case of JOAS MRUTU & 37 OTHERS

Vs. NAMNANI HOTEL, LAB REV. NO. 268/2008

(DSM) where the Court held that if there’s good cause the award can be issued beyond the prescribed limit.

ii. The issue here is whether there was sufficient cause preventing the arbitrator to deliver the award within 30 days. In this case there’s none. Although the applicant complained yet the arbitrator did not advance any reason that caused the delay.


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iii. On the right to be heard, as submitted, it is also clear that the applicant did not adduce evidence. However he had a witness; PW 1 who testified for the complainant. Hence the complainant opted not to give evidence. Thus he was given a right to be heard.

iv. Regarding the award having no issues for decision, the law; the Mediation and Arbitration Guidelines, G.N. 67/2007 R.27 (3) (b) requires mandatorily that the award should contain the issue or issues in dispute. This was not done in the award in question.

v. Having discussed as I did, I find that the award was improperly procured for the reasons advanced, I will not go into the irregularities directed towards the merits of the case. I consequenly quash all the arbitration proceedings, set aside the award and order a fresh arbitration hearing.

29. BMZ/UHNCR/GTZ Kigoma Vs. Ally Khalfani & 28 Others,

Lab. Div., KGM, Rev. No. 123 of 2010, 13/04/2011, V. K. D. Lyimo, J.

This is an Application to impugne the Commission for Mediation and Arbitration (CMA) award in CMA KIG/DISP/11/2010 dated 6th May 2010, ordering the re-instatement without loss of remuneration of all Respondents under section 40 (1) (a) of the Employment and Labour Relations Act, 2004. It was brought under section 91 (1) (2) of the Employment and Labour Relations Act, No. 6 of 2004 and Rule 28 (1) of the Labour Court Rules, 2007. Initially the Respondents filed a dispute for unfair termination to the CMA seeking reinstatement and the arbitrator found for the


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Respondents as shown above. The Applicants being dissatisfied with the arbitrator’s decision filed for revision. Under paragraph five (5) of their Affidavit, the Applicants are challenging the arbitral award as having being improperly procured on the grounds that: the temporary employment contract between the Applicant and the Respondents was not impugned by the Respondents and the same was not fairly ended; that it was misdirection by the Arbitrator to base his decision on unfair procedure when the same ended validly as per terms contained in their contracts; that it was a misdirection to award a reinstatement which is not affordable by the Applicant who depends on donation of funds by donor countries for refugees; that it was misdirection to order the Applicant to reinstated the Respondents while the Applicant has no funds after the contracts had ended and were dully paid for their benefits; and that the Arbitrator misdirected himself further when he equated the procedure of unfair termination with other permanent projects and the Respondents’ employment which is an ad hoc organisation for refugees’ requirements

I have gone through the CMA records of proceedings together with the competing submissions from the two parties and I must admit this is one of those disputes poorly handled by the arbitrator. The mismanagement of the record notwithstanding, there are basic facts upon which this court has found it appropriate to proceed in dealing with the dispute. These can be stated quite briefly as follows: Ally Khalfani and the 28 other respondents had contracts of service with the Applicants. They were engaged under an international partnership program called BMZ/UNHCR-GTZ project for refugees’ operations in Tanzania. The said project involved the partnership under the German Development Cooperation – Deutsche Gesellschaft Technisel Zusamminarbeit (GTZ) GmbH.


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Initially all the said contracts though executed on different dates, were temporary written contracts for specific periods of time, ranging from one month to four months.

A lot of information on this dispute has been gathered from the written submissions by the two parties together with the respective documents submitted in the course of the proceedings. The CMA record appears to be truncated. The filing of the referral documents (CMA form No.1 and attachments) was done on 26/1/2010 and the matter was marked for arbitration on 8/2/2010 which as the record shows, reflects basically the quorum. This is the only record of business transacted on 8th February 2010 (which is the hand written record when the parties first appeared before the mediator) and it shows the matter was subsequently adjourned to 12th February 2010. There is no record of proceedings to indicate what business was transacted on that date (i.e. on 12/2/2010).

The next set of proceedings is the typed proceedings dated 18th March 2010 through to 9th April 2010. And with the exception of the filed submissions from both parties, there is no other record to show the manner and decisions made at each stage of the mediation/arbitration and presumably the arbitral award handed down on 3rd May 2010 hinged on the said written submissions only.

Reading from the contents of the proceedings dated 18/03/2010 it comes out clearly that the applicants, being represented by learned counsel, one M.R.G. Kabuguzi made a specific prayer for setting aside the ex-parte award dated 12th February 2010 and the order that followed indicates that the matter was then set for mediation on 8/04/2010. On that date, the applicants’ counsel could not make it as his vehicle had allegedly broken down at Kibondo but more specifically, the applicants’ representative – one Patricia


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Makanza informed the CMA that the applicants no longer had confidence in the arbitrator and called for his disqualification. That was viewed as delaying tactics – and hearing was ordered to proceed on 9/4/2010 when the parties gave their statements. The respondents’ side brought six witnesses while the applicant brought only one. As there are no corresponding handwritten scripts, the record of proceedings dated 9/4/2010 does not reflect the names or identities of those in attendance. The arbitrator made his decision and granted the award dated 3rd May 2010 but without touching on the earlier award. Thus up to that stage, the record contained two distinct awards, and that was the position during the hearing of this revision.

The first is the ex-parte award dated 12th February 2010. In the award which was thus procured, the arbitrator ordered ‘reinstatement of the respondents without loss of remuneration until when the procedure to terminate them from employment as required by the law is followed’. We do not have the corresponding record of proceedings to support the said award.

There is the second award dated 3rd May 2010 the subject matter of this revision and whose background is as detailed herein above. Incidentally, there is no order setting aside the ex-parte proceedings and respective award dated 12th February 2010 and from the ruling and the award dated 3rd May 2010, the arbitrator does not make any reference to his earlier decision on the same matter.

Held:

i. It is a cardinal rule of procedure that an arbitrator should always strive to comply with the guidelines specified under Part 111 of the Labour Institutions (Mediation and Arbitration Guidelines) GN 67


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of 2007 rules 18 to 26 thereof. And to arrive at a proper record of proceedings as prescribed under rule 13 onwards, the law seeks to give arbitration proceedings the attribute of legal proceedings.

ii. Although under the same law – rule 19 of the Guidelines empowers an arbitrator to determine how the proceedings should be conducted, nevertheless such powers do not permit him to overlook or skip the vital stages in the arbitration process. I have already made reference to the various aspects of the record of proceedings. We have no proceedings in support of the award dated 12th February 2010.

iii. In principle, the proceedings dated 18th March 2010 through to 3rd May 2010 were meant to cover the application for stay of execution and to set aside the ex-parte award dated 12th February 2010. However, those proceedings appear to have been consolidated with the application for stay of execution and the hearing of the dispute inter parties without there being in place an order for setting aside the ex-parte award. The procedure adopted was not only irregular but also a slip shod and a travesty of justice.

iv. There is no doubt that the arbitrator had failed to keep a record of the proceedings. In the case of Bidco Oil Soap Vs. Abdu Said and 3 Others – Rev. No.11 of 2008, his Lordship Mandia J. as he then was, held that failure to keep a proper


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record by as arbitrator is a default which goes to the root of the proceedings. Such failure to keep a proper record vitiates both the proceedings and the resultant award. The only remedy is to quash both the proceedings and the resultant award.

v. For the foregoing, the CMA proceedings in KIG/DISP/123/2010 together with the awards dated 12th February 2010 and 3rd May 2010 respectively are declared a nullity. The proceedings are hereby quashed and set aside. From the proceedings, it is evident that the dispute was stewarded by the TUICO branch and after each of the respondents was paid his/her terminal benefits as per the expired respective contracts. In that respect, I make no order for trial de novo. In case any of the respondents was not paid is/her dues the Applicants will be required to effect such payments without further ado.

30. Rogart Lyakurwa Vs. Kaisi H. Munisi, Lab. Div., DSM, Rev. No. 229 of 2010, 15/04/2011, S. C. Moshi, J.

The Applicant is challenging the Ruling of the Commission for Mediation and Arbitration which was delivered on 19/7/2010. He seeks Revision of the Ruling in question so he be allowed to institute the dispute afresh out of time. The Application was heard Ex-parte as the Respondent did not turn up despite the fact that he was dully served. The submissions and affidavit show that the Applicant’s complaint was dismissed for failure to fill properly Form No. 1. According to the Applicant representative; the only error


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was that the Form lacked Applicant’s signature. However through the ruling that is challenged the Arbitrator pointed out a number of errors which included that the Applicant’s Form No. 1 did not contain the reliefs sought; that the Applicant’s signature in contravention of Rule 5 (1) and 12 of GN No. 64/2007; and that it did not disclose the cause of action. However, when I read through the Ruling which is being challenged the arbitrator pointed out a number of errors.

Held:

i. From the facts above the complaint/dispute was rejected on points of law. In this case as indicated in the Arbitrator’s Ruling the applicants pleadings were not in accordance to the law. The C.M.A. could not proceed to entertain it; it would be proceeding against the law; if the Form which is the initiating document; and which stands as a plaint if it were in ordinary suit, didn’t disclose the cause of action, reliefs prayed nor applicant’s signature, therefore it was legally correct for the arbitrator to reject the same.

ii. The proper action for the C.M.A. was to strike out the incompetent form; hence the whole dispute so the same can be properly preferred.

iii. In the circumstances, since the case was rejected as indicated, the applicant was not barred to refer the same afresh; upon observing the legal requirements as enumerated by the arbitrator in his Ruling; as the matter was not determined on merits.

iv. Having discussed as I did; and on the aforegoing reasons; I find that the arbitrator’s Ruling was legally correct. The application is dismissed accordingly.


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31. Tanzania Telecommunications Co. Ltd., Vs. Teveraeli Ngalami,

Lab. Div., DSM, Rev. No. 21 of 2009, 21/04/2011, V. K. D. Lyimo, J.

This is an Application taken out by Tanzania Telecommunications Co. Ltd. (TTCL) for extension of time to challenge the ruling dated 31st December 2007. The Application is rooted in a labour dispute number 130 of 2006 in which the court on 31st December 2007 found in favour of the Respondent when it held that the Respondent had been wrongly or unfairly terminated from his employment and ordered his re-instatement. To some extent, deputy chairperson also granted the Respondent the right to sue in tort for what he termed ‘uonevu’, meaning that the Respondent could sue TTCL for ill-treatment or harassment.

This Application was brought under section 93 of the Civil Procedure Act, Cap 33 and Order XXI Rule 27 read together with section 14 (1) of the Law of Limitation Act, Cap 89 of the Revised Laws, 2002. I have carefully gone through the record of proceedings together with the submissions from the two competing parties. Both parties have come up with issues some of which are more prominent than others. The learned counsel for the Applicant asserts that the decision to be impugned is pregnant with illegalities and that once those illegalities are proved, the court has the duty to grant time to remedy the illegality and at the same time to put the record right. On the other hand, the learned advocate for the respondent has cited provisions of the CPC and related laws to make his point that there was wrong citation of the laws and to that extent, the court has not been properly moved. Secondly, he has attacked the application for being time barred.


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Briefly this is a dispute which centred on the employment of the respondent by TTCL. The respondent started working for the company on 1st November 1997 and on 6th November 1998 he was promoted and confirmed into employment as principal accountant grade 1 on permanent and pensionable terms. He rose through the ranks to that of acting director finance and accounting, a post he held until 23rd February 2001 when TTCL fell for privatization. With privatization it meant that TTCL underwent restructuring, a process involving the abolition of certain posts, the creation of new schemes of service and the inevitable retrenchment of employees under a negotiated agreement. During the restructuring, the post held by the respondent was abolished. The respondent being in a managerial position was relocated to the post he held prior to privatization. It was said that on 21st May 2003 he was re-assigned to the Credit Management Task Force as credit manager, a post he allegedly served for merely four (4) months when another person was employed to take over his duties. The respondent alleged that he was not consulted throughout the process and therefore claimed he had been unfairly terminated. He therefore, referred the dispute to the Commissioner who in turn referred the same to the court.

Held:

i. To start with, from the nature of the disputes and the decisions which have been brought to the attention of this court, it is no doubt that this is a matter which calls for serious scrutiny. The learned advocate for the respondent invited this court to consider the proper meaning to be attached to the two phrases ‘enlargement of time’ and ‘extension of time’. According to the learned counsel and based on the specific provisions of the laws and cases he


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had cited, these two phrases could not be availed to the applicant. On the other hand, the learned counsel for the Applicants shares a different view. According to him the two phrases mean almost the same thing and can be used interchangeably. I honestly think we should not spend much time on this aspect of the dispute. Whether the time line within which to do a specific act has been set by statute or by the court, it will always depend on the circumstances of each case and the general import can be gathered from the context in which the particular phrase is used. To do otherwise may amount to quibbling.

ii. The ruling in which the court found in favour of the respondent is dated 31st December 2007. From 31st December 2007 to the date of filing this application (9th July 2009) is a year and four months, allowance being had for the sixty days within which to challenge the ruling. Incidentally this dispute was one being dealt with under the repealed security of employment laws, and as stated by the learned counsel for the respondent, the Applicant had to do so within the sixty days period.

iii. Since the ruling was delivered on the New Year’s Eve, the applicant had up to 28th February 2010 to file his application. From the record, this application was filed without the prior leave of the court and outside the prescribed time limit. This alone is a sufficient ground for striking out the application for being time barred and incompetently before this court.

iv. We need not point out that the two decisions involving the same employer, employees in similar managerial posts


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enduring same restructuring process are diametrically opposite. The legality of the two decisions is thus put to question. It is only through revision that such decisions can be harmonized. I fully share the views expressed by the learned counsel for TTCL that where illegality has been shown, it is the duty of the court to deal with the alleged illegality and to put the matter and the record right.

v. For the foregoing reasons, notwithstanding that the Applicant was late for over a year in processing the application, it is my respectful opinion that the two decisions Joel Bondo Hosea Vs. TTCL Co. Ltd, Civil

Revision No. 50/2008 and Dispute no.130 of 2006 are conflicting with each other.

vi. There is an apparent illegality on the face of the records and in the light of the decided case of Principal Secretary,

Ministry of Defence and National Service Vs. Devram

Valambia, (1992) TLR 185 that constitutes good reasons for extending the time for filing the appropriate application for revision. The Applicant is granted fourteen days from the date hereof to file his documents.

32. Christina Pius Vs. National Parking Solution, Lab. Div., DSM, Rev. No. 119 of 2010, 27/04/2011, S. C. Moshi, J.

The Applicant seeks Revision of the Commission for Mediation and Arbitration (CMA) decision which was delivered on 19th April 2010. The CMA dismissed Applicant’s Application for condonation; she had intended to refer the dispute to the CMA out of the time limit prescribed by law.


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Held:

i. The law allows condonation for failure to comply with the time frame set by the law. Rule 31 of the Labour

Institutions (Mediation and Arbitration) Rules, 2007,

G.N. No. 64/2007 requires that condonation may be only on good cause.

ii. When addressing this issue the arbitrator considered the reasons which were advanced by the applicant; the arbitrator found that it could be true that the applicant sought directives from the Regional Commissioner and later she approached the Human Rights Commission.

iii. The arbitrator reasoned that since the applicant was properly advised by the Regional Commissioner to go to the Labour Office where the matter could be handled in time; she instead opted to go to seek further legal assistance she was at fault. The arbitrator found that the applicant had not shown good cause for late filing of the case.

iv. From what transpired before the arbitrator; the arbitrator considered the time which the applicant became aware of the right step to pursue her rights i.e. where to take her claim or where to refer her dispute. The importance of Legal Aid was not an issue before the Commission The arbitrator reasoned that having being informed of the office to refer her dispute; she ought to have done so. Had she preferred the dispute or complaint as advised; the matter would have been received in time.

v. As much as I agree with the applicant on the importance of Legal Aid; yet in the circumstances of this case, it was


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proper for the arbitrator to hold as he did. As stated above, in this case, the applicant was made aware of the action to undertake even before pursuing the Legal assistance.

vi. Having discussed as I did; and for the aforegoing reasons, I dismiss the application accordingly.

33. Abdul Swamadu Rwegashora Vs. DAWASCO, Lab. Div., DSM, Misc. Lab. Appl. No. 39 of 2010, 06/05/2011, S. C. Moshi, J.

The Applicant has filed an Application for extension of time so he can file an Application for Review out of time. The decision which he intends to apply its Review was delivered on 30/4/2010. The law requires that an Application for Review should be made within 15 days. The Applicant brought the Application on 14/6/2010. The reason for delay as sworn in the affidavit as well as submitted was that he fell sick on 12/5/2010; he attended hospital and he was to take bed rest till 7/6/2010.

Held:

i. I have considered the submissions. With due respect, the applicant’s representative submitted nothing to support the present application. He went on to argue on the legality of termination of applicant’s service. This is “Riding a cart before the horse”

ii. Despite of that, I looked into the affidavit and the supporting chit (hospital sheet). The facts do not tally. The hospital sheet annexture (J) shows that he attended hospital as outpatient. The annexture is a photocopy and nothing was done to bring primary evidence. Also it’s not known what was he doing before 12th May. It’s really


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doubtful if what is in the photocopies real happened; as even nothing was stated in the submission to support the allegations.

iii. All in all, I find that the applicant has failed to show good cause as required under Rule 56(1) of the Labour Court Rules, G.N. No. 106/2007. The application is dismissed for lack of merits.

34. Benedict Komba Vs. Knight Support (T) Ltd., Lab. Div., DSM, Rev. No. 270 of 2009, 06/05/2011, S. C. Moshi, J.

The parties appeared before the Commission for Mediation and Arbitration (CMA) twice i.e. (i) when the case was arbitrated by Mwidunda E. and the Applicant was awarded Tshs. 636,000/= as terminal benefits . Thereafter the Applicant filed an Application for revision before the High Court. The High Court found that the CMA erred as it heard the case out of time without condoning its late referral. Hence, the proceedings and award were Revised and set aside; with an order that the same be heard in accordance with the law; (ii) the case started afresh. The parties started with mediation. The parties settled and agreed that Applicant be paid Tshs. 105,000/=. The form i.e. F.5 was prepared and signed by the parties accordingly. Now the Applicant challenges the agreed sum i.e. Tshs. 105,000/= as an award given by Mr. Massay. That Mr. Massay awarded the said Tshs. 105,000/= without due regard to the previously ordered sum i.e. Tshs. 636,000/=.

Held:

i. Once the matter has been revised; and ordered to be set aside; it means that all the proceedings, and award which


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have been so ordered do no longer have legal force i.e. they no longer exist in the eyes of the law. The parties’ status is as when the case was not yet in Court.

ii. Once the proceedings and award have been revised and set aside; they can’t be referred to in subsequent proceedings.

iii. Settlement during mediation is like a consent judgment. The parties agree the terms of settlement. Thus there is nothing to revise. Having said so; and on the aforesaid reasons, the application is dismissed accordingly.

35. Ezekiel Andrew Vs. Africanlife Tanzania, Lab. Div., DSM, Rev. No. 346 of 2009, 06/05/2011, S. C. Moshi, J.

The Ruling is pursuant to Preliminary Objection on 3 points of law raised by the Respondent to the effect that the Application is incompetent as: that it is preferred under wrong provisions of the law; that it invokes a wrong procedure; and that it is supported by a defective affidavit.

Held:

i. That the Application was filed under section 91 (1) of the Employment and Labour Relations Act No. 6/2007 which is not the enabling provision of the law;

ii. That the procedure is set in the Labour Court Rules, GN No. 106/2007, See Rules 24 and 28 and the case of Cocacola Kwanza Ltd. Vs. Emmanuel Mollel, HC.L/D APPL.NO. 22/2008.

iii. That Rule 24 (1) which provides that any application shall be made on notice to all persons who have interest in the


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application is mandatory and not a mere technicality.

iv. That Rule 24 (2) (a) - (e) provides necessary information which has to go with the notice; i.e. its contents. So the Notice is question is an important document in initiating an Application before the court.

v. That among other things, it is mandatory for the affidavit to set out name, description and address of parties, statement of material facts, statement of legal issues and relief sought. See Rule 24 (3) of the Labour Court Rules.

vi. That the Application is improperly preferred; hence incompetent and is struck out accordingly.

36. Fatuma Ally Kalaghe Vs. Gema Security Services Ltd., Lab. Div., DSM, Rev. No. 109 of 2010, 06/05/2011, S. C. Moshi, J.

This Ruling is made Ex-parte and it is emanating from and Ex-parte award procured by the Commission for Mediation and Arbitration (CMA) on 30/8/2010. The Applicant challenges the award on various grounds; and among them being that the arbitrator erred to find: that she was granted maternity leave; that the Applicant was legally terminated from employment for absconding without proof of prior reasons; that she was denied to present her case; and that finding that she failed to prove the claim while she produced evidence to that effect.

Held:

i. The Law as cited; Section 39 of the Employment and Labour Relations Act, Act No. 6/2004 requires the employer to prove that termination is fair where the


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employee claims that termination of his/her services was unfair.

ii. The burden of proof does not move; where the employer’s statement was considered; which also was wrong. The opening statement is not part of the evidence. The evidence which ought to be considered was that piece of testimony which was given on oath. The law is clear; Rule 24(2) of the Guidelines G.N. No. 67/2007 states that opening statements do not constitute evidence.

iii. The applicant’s testimony would be considered Ex-parte where the other side’s (respondent’s) evidence or statement was not considered at all, Rule 28(2) of the Guidelines, G.N. 67/2007.

iv. Furthermore the arbitrator has powers under the Guidelines; Rule 19 2(b) to summon a person for

questioning attend a hearing and order the person to

produce a book, document on object relevant to the

dispute. In the circumstances of this case, the arbitrator could have exercise his/her powers under this law to have proper and fair arbitration proceedings by calling the employer to produce Register of attendance.

v. Having discussed as I did, and for the aforegoing reasons, I find that the award was improperly procured. The whole arbitration proceedings and award are quashed and set aside respectively. The matter be arbitrated afresh.


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37. Managing Director Southern Link Vs. Khamis M. Mgeleka, Lab. Div., DSM, Rev. No. 227 of 2010, 06/05/2011, S. C. Moshi, J.

The Applicant seeks Revision of Commission and Arbitration (CMA) award on various grounds. However the main reasons as submitted orally as well as sworn in Applicants affidavit can be summarised thus: the Arbitrator erred when he decided that the termination of Respondent’s services was unfair and to order compensation of 12 months salaries as the Respondent had worked for the Applicant for less than 12 months, as he was under probation and was given 4 months (on agreement) time to look for an alternative employment. That was a sufficient notice; and that Arbitrator erred by not taking proper inference that economic crisis could be valid reason to retrench employees. The Respondent opposed the Application on grounds that the award was properly procured; as not valid reason for termination was given nor did the Applicant follow the retrenchment procedures; that the employer hadn’t paid the remaining percentage of the NSSF pay; and on procedure, no meaningful consultations were made, neither was he given certificate of service. The main issue is whether the award was properly procured. i.e. whether the arbitrator erred when he decided that there was no valid reason for termination and whether retrenchment procedure was followed.

Held:

i. The reason for retrenchment was economic/financial crisis. The arbitrator heard both sides; he found that there was no evidence to support the claim. As the law requires the employer to show or prove the details or the financial status of the company; however the same was not done; S.39 of the Employment and Labour Relations Act


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provides that it’s the duty of the employer to prove that the termination was fair. Also, the arbitrator found that the procedure; as stipulated under S.38 of the Employment

and Labour Relations Act, Act No. 6/2004 wasn’t adhered to. The arbitrator found that no consultations were made no notice of retrenchment was given, etc in compliance with S.38. Hence he found that the procedure for retrenchment was unfair.

ii. Having considered the facts and relevant laws; I am of considered view that the arbitrator’s finding were legally correct. The arbitrator did properly evaluate the evidence before him and consider the applicable laws in the circumstances. There was no valid reason for termination

and the retrenchment procedure was not adhered to.

iii. Whether having worked for less than 12 months does not entitled an employee to a compensation for unlawful termination. S.40(1) (c ) of the Employment and Labour

Relations Act provides that:- “Where it is proved that the termination is unfair the arbitrator may order the employer to pay compensation to the employee of not less than twelve month’s remuneration”. Hence it was correct for the arbitrator to order the ordered compensation of T. Shs. 18,000,000/- being 12 months salaries. The law doesn’t set exceptions for those who work less than 12 months; as long as they have worked for 6 (six) months with the same employer; see section 35 of the Act.

iv. Regarding the N.S.S.F pay; there is a procedure provided by other laws which has to be pursued in order to access the fund. Hence the N.S.S.F claim cannot be entertained as a


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Labour dispute under the Act. I find that the arbitrator’s award was properly procured. The application is dismissed accordingly.

38. Provincial Secretary General (FIBUKA) and Financial Industrial

Banking Utilities Commercial (FIBUKA) Vs. Board of Trustees

of N.S.S.F. & 20 Others, Lab. Div., DSM, Misc. Lab. Appl. No. 16 of 2011, 06/05/2011, S. C. Moshi, J.

This Ruling is pursuant to an Application lodged herein by the Applicants who are complainants in the main suit i.e. in the complaint. The Application was heard inter parties; and their prayers were thus; that an order that the 1st and 2nd Respondents stop deducting agency shop fee from union members of the 2nd Applicant until the hearing and final determination of the main complaint; that the 1st and 2nd Respondents stop deducting agency shop free from Union members until the hearing of this Application inter parties; and that costs of the Application be provided for. The court heard and considered the submissions from both sides.

Held:

i. As indicated earlier there are points of law which were raised in the submissions; as a matter of procedure, points of law have to be dealt at the outset; as some have the effect of finally concluding the matter. However let me at this point; point out the issues which arose: Whether the application if not granted the applicant will suffer an irreparable loss. Whether the 1st applicant and 2nd respondents were parties to the mediation proceedings before the C.M.A. Whether the complaint was properly moved.


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ii. On 2nd issue; i.e. whether the 1st applicant and 2nd respondent were involved in the mediation. The complaint emanates from disagreement on a right of recognition to be exclusive bargaining agent of employees. That’s why the complainant cited S.67 (5)(6) and (7) of the Employment and Labour Relations Act, Act No. 6/2004. Thus; from the literal meaning without further interpretation the dispute has to be referred to the Commission for Mediation and Arbitration (CMA); for MEDIATION. It is not disputed that the 1st applicant and 2nd respondent were not referred to the C.M.A. Therefore joining them at adjudication stage, at the High Court, (Labour Court) is in contravention of S.67(5) and (6) of the Act, Act No. 6/2004. Also it is against S.86 of the Act which requires that all disputes under the Act should be referred for mediation.

iii. Regarding the 3rd issue; whether the complaint was properly moved. The enabling provision is Rule 6 of the

Labour Court Rules; thus Rule 6 ought to be cited and the format provided thereto has to be followed. Rule 6(1) provides on how proceedings should be initiated before the Labour Court. Hence in the present case, the complainant had to adhere to this Rule i.e. R.6(11) (a)-(e).

iv. Failure to cite the enabling provision makes the complaint ineffective. The defect is fatal and renders the complaint incompetent. The complaint can’t stand unless it has been properly moved. See the case of Aloyce Mselle Vs.

The Consolidated Holding. Civ. Appeal No. 18/1997. C.A. (unreported) where it was held among other things


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that wrong citation of a provision of law under which an application is made renders that application incompetent. In our case the complaint was brought under Rule 24(3) of the Labour Court Rules, 2007 and S.67 (5) (6) and (7) of the Employment and Labour Relations Act, Act No. 6/2004. As stated earlier a complaint can’t be preferred

under Rule 24(3) of the Labour Court Rules.

v. All in all, on the aforegoing reasons, I find that the complaint is improperly before the Court. The interested party should refer it to mediation and refile it afresh under proper enabling provisions of law if they so with.

39. Evelin Mshimiki & 45 Others Vs. Tanzania Breweries Limited,

Lab. Div., DSM, Misc. Lab. Appl. No. 45 of 2010, 13/05/2011, S. C. Moshi, J.

The Applicants are seeking leave to file a Representative Suit. The Applicant who was appointed by his co-employees to represent them was reported to have passed away. The death was reported to the court. The court allowed the Applicants to look for another person whom they could authorize to represent them in place of Eveline (the deceased). They haven’t done so.

Held:

i. That the procedure; is for the successor representative to swear an affidavit to support the Application. He has to indicate that he has the authority of other co-Applicants.

ii. That the Applicants cannot adopt an affidavit of the deceased; Evelin who at present; cannot represent the Applicants nor can he appear in court.


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iii. That the intended representative has to get authority of the persons he is suing on their behalf. Giving notice is not sufficient in the present circumstances.

iv. That in the complaint of this nature; that is where the cause of action is based on terminal benefits has to be referred to the Commission for Mediation and Arbitration; without due regard to the amount involved; see section 88 (1) (b) (ii) of the Employment and Labour Relations Act, No. 6/2004 as amended by Act No. 3/2010.

v. That the cause of action arose way back in 1993. The case was taken to subordinate court up to the High Court. It is apparent that the case has to be dealt in accordance with 3rd Schedule of the Employment and Labour Relations Act, No. 6/2004 as amended by Act No. 2/2010 as the same was pending in court.

vi. That the Application is dismissed for lack of merits.

40. Ibrahim Msagaje Vs. Micro Community Development, Lab. Div., DSM, Misc. Appl. No. 23 of 2010, 13/05/2011, S. C. Moshi, J.

The Applicant is seeking for extension of time to file an application for Revision of a Commission for Mediation and Arbitration (CMA) award out of time. The award in question was procured on 4/12/2009; and the same was supplied to the Applicant on 17/12/2009. The Application was filed on 12/5/2010. Grounds for Application as sworn in the Affidavit include that: that he delayed to apply for Revision as he is a layman, he was in dilemma if he could challenge the award, he didn’t know the procedures and since


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is a low income earner he had to look for pro bono legal aid. He was advised to seek extension of time and he thus filed the present Application.

Surprisingly; when the application was set for hearing the above grounds were not stated nor referred to in any way. The applicant changed his story; I refer to it story as it is quite different from what was previously averred. He submitted that he delayed to lodge the application because the C.M.A. delayed to type the decision. He filed the application immediately after being supplied with the award. The applicant went on to submit that he received the award on 17/12/2009; however he fell sick so he had to lodge the application after feeling well; and that was the only reason for delay.

Held:

i. That for the court to grant leave for enlargement of time to file such Application Rule 56 (1) of the Labour Court Rules GN No. 106/2007 has to be adhered. The party seeking extension of time has to show good cause for failure to lodge the Application in the time limits provided by law.

ii. That the Applicant changed his story for reasons for delay and he has three versions, one is that he was seeking legal aid, two is that the CMA delayed supplying him the typed award, three is that the only ground was the fact that he fell sick. With all the events as shown above, the Applicant’s varying versions cannot amount to good cause.

iii. That the Application is dismissed for want of merits.


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41. Jabiri Saidi Vs. M/S Prashant and Hardware, Lab. Div., DSM, Rev. No. 63of 2009, 13/05/2011, S. C. Moshi, J.

The Applicant seeks a Revision against a mediated agreement which was entered between the parties on 23/4/2008 before the CMA mediator. The Application is made under section 94 (1) (b) (i) of the Employment and Labour Relations Act, No. 6/2004 and Rule 28 of the Labour Court Rules GN No. 106/2007.

Held:

i. That the cited law section 94 (1) (b) (i) of the Act allows Reviews and Revisions of Arbitrator’s award. The law doesn’t provide for Revision of Mediated Agreements. Also it is not an enabling provision. Hence it cannot move the court.

ii. That the proceedings show that the parties freely; did opt to settle and the form (F.5.) which was signed by both parties was dully filled.

iii. That the Application has no merits; it is dismissed accordingly.

42. Kelvin Ngongi & 21 Others Vs. Speed Security Services Ltd.,


The Respondents raised Preliminary objection on point of law to the effect that: Mountains and moon limited has no locus standi, as they are not registered advocates; that Kelvin Ngogi is not a legally appointed representative of the other 21 employees, who’s alleging to act for them; and that no application for a representative suit has been made as required by the law under Rule 44 (2).


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Held:

i. That for an entity to plea or appear for a party; or take a role of an advocate; under the labour laws; the procedure has to be followed.

ii. That section 56 of the Labour Institutions Act, No. 7/2004 allows representation in a Labour Court.

iii. That the procedure for such representation is set under the provisions of Rule 43 of the Labour Court Rules, GN No. 106/2007.

iv. That it was wrong for Mountains of the Moon Ltd., who is not registered and licenced as Notaries Public and Commissioner for Oaths to act as such, without following the procedure set by law for representation.

v. That Rule 44 (2) of the Labour Court Rules provides that a representative suit can only be preferred by court’s permission. In this case Kelvin Ngogi hasn’t done so.

vi. That the Preliminary Objection is upheld. The Application is bad in law. The defects cannot be cured as even the pleadings were pleaded by the person who lacked locus consequently the Application is struck out.

43. Mariam H. Maganga Vs. National Institute of Transport, Lab. Div., DSM, Rev. No. 95 of 2010, 13/05/2011, S. C. Moshi, J.

The Respondent filed Notice of Objection on three points of law that: that the filed supplementary affidavit is improper on records; that a reply to counter affidavit is hopelessly filed out of time without leave of the court; and that the whole application is bad in


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law as the chamber summons is neither signed by the Registrar nor the Judge. The third point of law was dropped hence submissions centred on point (1) and (2).

Held:

i. That there is no provision for drawing a supplementary affidavit. The documents which are supposed to be filed in such an Application are indicated in Rule 24 (1) (2) (3) (4) (5) and (6) of the Labour Court Rules, GN 106/2007. Hence there is no procedure nor time limit to file the same.

ii. That in practice, the court can accept some documents which are not specifically stated by the law. However a party cannot sneak in a document in court records without leave.

iii. That the Preliminary Objection is upheld to the effect that the filed supplementary affidavit is improperly on records.

iv. That the supplementary affidavit and all the documents filed in response and in support of the struck out supplementary counter affidavit are struck out.

v. That hearing of the application will proceed basing on affidavits which were filed in accordance with Rule 24 (1) (2) (3) (4) (5) and (6) of the Labour Court Rules, i.e. the affidavit, counter affidavit and reply to counter affidavit which are already in record.


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44. Hector Sequeira Vs. Serengeti Breweries Ltd., Lab. Div., DSM, Disp. No. 26 of 2009, 20/05/2011, S. C. Moshi, J.

The Ruling is pursuant to a Preliminary Objection raised by the Respondent to the effect that; the complaint relates to unfair termination, however it was not referred to mandatory Commission for Mediation and Arbitration (CMA); that the complaint is filled out of time without an order for extension of time; and that since the labour complaint claims for damages for alleged loss and embarrassment, there is no pecuniary or legal basis for this honourable court to hear and determine it.

Held:

i. That the complaint was not first referred to CMA mandatory mediation. The law requires mandatorily that this type of dispute should be mediated first. See sections 86, 88 and94 (2) of the Employment and Labour Relations Act No, 6/2004 and Rule 20 of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007 and the case of Marwa Chacha Kisyeri Vs.

Board of Managment for School Lake Sec. Lab. Disp. No. 50/2009

ii. That the mandatory CMA Mediation is different from the pre-trial conference by Registrar under Rule 10 of the Labour Court Rules GN 106/2007.

iii. That Rule 23 (1) does not exempt the parties from mandatory CMA on the mandatory Mediation.

iv. That the law under Rule 10 (1) of the Mediation and Arbitration Rules GN 64/2007, a dispute about unfair termination ought to be referred within 30 days.


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v. That time starts to count on the date of termination; not otherwise; See Ahmed Mbonda Vs. The Director Bulk

Building Contractor, Lab. Rev. No. 214/2008.

vi. That para 5 (f ) of the claim i.e. 454,920/= being compensation for loss and embarrassment; is a tortious claim. This claim can be made part of unlawful termination.

vii. That remedies for unlawful termination are provided for under section 40 of the Employment and Labour Relations Act, No. 6/2004.

viii. The Preliminary Objection is upheld; the complaint is improperly before the court; and it is dismissed accordingly.

45. Kenya Kazi Security (T) Ltd., Vs. Jackson Magige, Lab. Div., DSM, Rev. No. 103 of 2009, 20/05/2011, S. C. Moshi, J.

The Applicant seeks Revision of arbitration award which was procured by the Commission for Mediation and Arbitration (CMA). The Applicant, swore an affidavit through her operations manager to support the Application. The grounds for Application were also advanced in Dr. Kihwelo, advocate who among other things submitted thus: the arbitrator erred in law and facts by not realizing the Respondent was the cause of the delay of 211 days which resulted to the claim of the substance allowance; that the arbitrator erred in law and facts by not realizing that the Respondent went to CMA to claim for unfair termination and not terminal benefits including the purported subsistence allowance; and that the arbitrator erred in law and facts by arbitrarily granting subsistence allowance of 7 months despite the fact that the Respondent was the source of delay.


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Held:

i. That reading through the termination of employment letter, no phrase indicates that the employer was offering to pay the Respondent transport allowance. The provided entitlements as written in the letter were one month notice of termination, 28 days leave in lieu and pay for 2 years (as from Sept. 2006 - Sept. 2008). Thus it is not true that the employer was ready to willingly pay the transport allowance as part of the entitlements indicated in the letter of termination of employment.

ii. That the Applicant’s claim of unfair termination was not made one of the issues, which was an error, since the issue was raised on the Referral Form No. 1.

iii. That the issue of subsistence allowance was correctly decided upon as it did arise in the parties opening statements. See Rule 24 of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007 GN NO. 67/2007.

iv. That it is apparent on the award that the arbitrator did give reasons for the decisions; after considering the evidence.

v. That the arbitration award was properly procured. The Application is dismissed for lack of merits.

46. Masenza Richard Vs. Alaf Ltd., Lab. Div., DSM, Misc. Lab. Appl. No. 63 of 2010, 20/05/2011, S. C. Moshi, J.

The Applicant is seeking leave to defend in a representative suit capacity in the matter instituted by the Respondent in Rev. No. 217/2008. It is evident from the records that it is the Respondent


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who lodged the Application for Revision against Masenza Richard and 9 Others. The Applicant appeared on behalf of the others to defend the Application without having sought leave of the court under Rule 44 (b) of the Labour Court Rules, GN No. 106/2007. The Applicants were given time to seek court’s leave and the Application for Revision is still in court. Hence the Applicant filed the present Application.

Held:

i. That considering the record, affidavit, counter affidavit and both sides submissions, the Applicants have established that they have a common interest.

ii. That they were all under the same employment; employed by the same employer.

iii. That the contested award involves all the Applicants.

iv. That leave is granted to the Applicant to represent the other 9 Applicants i.e. to defend in a representative capacity.

v. That Application is allowed.

47. Shila Anthony Vs. Varsan Dewji Ramji Co. Ltd., Lab. Div., DSM, Misc. Lab. Appl. No. 71 of 2010, 20/05/2011, S. C. Moshi, J.

The Respondent raised Preliminary Objection on point of law to the effect that the court has been improperly moved for not invoking the provisions of the Labour Court Rules, 2007. Mr. Mrugaruga, a representative of the Respondent argued that the Application ought have been made under Rule 24 (1) (2) and Rule 56 of the Labour Court Rules and not section 79 (1) and 95 of the Civil Procedure Code, Cap 33 R.E. 2002. The Applicant did not respond


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to the submissions. He was supposed to file the same on 27/4/2011 however he defaulted.

Held:

i. That the Application was brought under the wrong law. The provisions cited by the Applicant are not enabling provisions to move the court in the present Application, for extension of time to file a Revision of CMA arbitration award.

ii. That the court is empowered to condone late filing and extend time limits under Rule 56 of the Labour Court Rules, GN No. 106/2007.

iii. That the Application is incompetent and it is struck out accordingly.

48. Abdallah Nabahani Vs. Triple “D” Ltd., Lab. Div. DSM, Rev. No. 207 of 2010, 27/05/2011, S. C. Moshi, J.

The Respondent raised a Preliminary Objection on two points of law: that the Applicant’s Application is incompetent before this court as it is supported by an affidavit that is incurably defective on the jurat attestation; and that the affidavit is incurably defective for lack of signature.

Held:

i. That section 8 of the Notaries Public and Commissioner for Oaths, Cap 12 R. E. 2002 requires mandatorily that every Notary Public and Commissioner for Oaths before whom any oath or affidavit is taken or made under the Act shall state truly in the jurat of attestation of what place and


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on what date the oath or affidavit is taken or made.

ii. That this is a mandatory requirement in fact any document to constitute an affidavit has to be made before a Notary Public and Commissioner for Oaths or certain public officers given powers to do so under section 10 of the Notaries Public and Commissioner for Oaths Act; cited above.

iii. That the affidavit is defective; the defect is fatal i.e. it cannot be cured. Hence the Application lacks proper affidavit to support it. It is therefore incompetent.

iv. That the Preliminary Objection is upheld and the Application is dismissed accordingly.

49. Denis Kalua Said Mngombe Vs. Flamingo Cafeteria, Lab. Div., DSM, Rev. No. 210 of 2010, 27/05/2011, S. C. Moshi, J.

The Applicants are seeking Revision of arbitral award which was procured on 10/2/2010 on the grounds that: that the arbitrator was wrong to over sight the fact that they were terminated without being given reasons for non renewal of their contracts despite their expectations of renewal; that the arbitrator was wrong for failure to nullify the decision of the employer to terminate their employment; based on contracts meant for professionals and staff managerial cadres; and that the arbitrator’s decision to dismiss the complaint was wrong compared to the weight of evidence adduced to support the complaint.


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Held:

i. The law, section 14(1)(b) of the Employment and

Labour Relations Act, Act No. 6/2004 here in referred to as the Act do categorically provides that a contract

for a specified period of time is for professionals and

managerial cadre. Therefore the parties entered into a wrong contract from the beginning.

ii. From the reading of the provisions of Section 14 of the Act; the parties ought to have entered into a contract for unspecified period of time; per S. 14(1) (a). If there were any operational reasons to reduce the number of employees; then the law has provided a procedure for that.

iii. I agree with the proposition that by giving Notice to the applicants, it proves that the parties had reasonable expectations of renewal of their contracts. That’s why the contracts did not end automatically as earlier agreed; the employer had to issue notices. Had it been a fixed term contract, the same ought to have ended automatically as the law states. Therefore it was unlawful for the employer to end the employment contract without valid reasons where the employees had reasonable expectation of renewal. Hence the termination of applicant’s services was unlawful. I thus find that the arbitral award was improperly procured.

iv. What’s the remedy? The applicants had, through F.1 applied to be reinstated. I have seen in record the certificate of service which indicates that applicants are employees of good character and performance. I thus order as follows: 1. The respondent should reinstate the applicants to their


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positions of employment. 2. The respondent should pay the employees/applicants each; their monthly salaries from date of termination i.e. 1/6/2009 – date of decision i.e. May, 2011. Thus its Tshs. 80,000/= x 23 months which is Tshs. 40,000/- each. Thus for two applicants it’s T. Shs.

3,680,000/= . 3. The respondent should pay applicants 2009 and 2010 leave pay.

v. However in alternative to that if the respondent wishes that he cannot reinstate the applicants he will have to pay a compensation of 12 months’ salary for each of the applicant over and above the ordered sum in item (2) and (3). The salary to be calculate at Tshs. 80,000/=

vi. All in all and for the aforegoing reasons; the application is granted to that extent.

50. Hassan Njama & Others Vs. Muhimbili National Hospital, Lab. Div., DSM, Rev. No. 254 of 2010, 27/05/2011, S. C. Moshi, J.

The Applicants are seeking Revision of Commission for Mediation and Arbitration (CMA) award. The Applicants are not satisfied by the procedure, law applied and the conclusion. i.e. the reward which denied them severance allowance on their retirement after atteining a retirement age.

Held:

i. That the law does not provide severance allowance to an employee who attains the age of retirement.

ii. That the cited amendments is not a new law. It is an amendment to an existing law; therefore the Applicants


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proposition that the Written Laws (Miscellaneous Amendments) Act, 2010, Act No. 2/2010 had been applied retrospectively is misconceived.

iii. That retirement is not termination by employer. It is, as found by the arbitrator, that an automatic termination by reason of age or retirement per Rule 5 (3) of the Employment and Labour Relations (Code of Good Practice) GN No. 42/2007.

iv. That regarding the procedure; the process; the record as well as the award itself is apparent. The Applicants were given a chance to be heard; and their evidence was well discussed and evaluated by the arbitrator.

v. That the award was properly procured and the Application lacks merits and is dismissed accordingly.

51. Hussein Ngaluma Vs. Carmelite Fathers Roman Catholic, Lab. Div., DSM, Rev. No. 238 of 2010, 27/05/2011, S. C. Moshi, J.

The Applicant is seeking Revision of Commission for Mediation and Arbitration (CMA) award which was procured on 4/5/2011. Before the Commission; the Applicant had referred a dispute for unfair termination. He indicated in F. 1 that the employer didn’t have valid reason to terminate and didn’t follow a fair procedure. Hence he should be paid his basic rights. On the other side, the Respondents claimed that the Applicant had been working with them as an independent contractor. He worked for them for specific contracts which; were enumerated in their evidence. Hence he is not entitled to be treated as an employee and section 41 of the Employment and Labour Relations Act, No. 6/2004 does not apply


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in this case.

Held:

i. That the Employment and Labour Relations Act, No. 6/2004 provides for three (3) types of employment contracts; See section 14 (1) (a) - (c).

ii. That from the evidence adduced before the CMA, the type of contract which was entered between the parties was that contract which is stipulated under section 14 (1) (c) i.e. a contract for specific task.

iii. That it is apparent on the record that the parties had a number of contractual construction works; the contracts entered for those works were specifically for that particular task.

iv. That upon completion of the task; and that task being dully paid for in accordance with the terms of the contract; nothing binds the parties.

v. That provisions of sections 42 and 43 of the Employment and Labour Relations Act, No. 6/2004 do not apply in the instances where it has been proven that the parties entered into specific task contract; and they never changed or altered their contract otherwise; as in our case at hand.

vi. That the arbitrator’s findings are varied to the extent that there was a contract for specific task which do not entitle the Applicant the benefits he is claiming.

vii. That the Application has no merits and it is accordingly dismissed.


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52. Ultimate Security (T) Ltd., Vs. Dosaji Ismail, Lab. Div., DSM, Rev. No. 221 of 2010, 27/05/2011, S. C. Moshi, J.

The Applicant seeks Revision of Commission of Mediation and Arbitration (CMA) award which was procured on 16/6/2010. The Applicant argued among other things that: the Applicant was the employer of the Respondent; who was employed as a security guard. The Respondent was, while still under Applicant’s employment charged with criminal offences and ultimately taken to court. A criminal case was preferred against him. That upon being charged so, he was suspended on half-salary; and ordered to report to the office three days in a week. The Respondent was suspended on half salary on 27/6/2007, He, Respondent received the letter of suspension on 2/7/2007. The Respondent was discharged of criminal charges on 18/3/2009 and reported to his employer on 2/10/2009. The employer, Applicant felt that the Respondent had absconded from duty; i.e. he was not reporting on the 3 days a week; also that he did not report immediately after his discharge. Hence the Applicant called a disciplinary meeting they found that the Applicant had absconded on duty; thus they terminated his services on 28/9/2009.

Held:

i. That it is clear on the record, especially on the arbitral award that the arbitrator did analyse the evidence and the law.

ii. That the dispute arising from the course of submissions is that the arbitrator did not consider that the Respondent, having been discharged by court did not report to the employer immediately, after the decision.


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iii. That looking at the decision, it’s clear that the arbitrator did consider all those facts.

iv. That as it is not disputed that the Applicant suspended the Respondent from employment and that though he was discharged on 18/3/2009; the copy of the decision was supplied to the Respondent on 1/9/2009; the fact which was not disputed.

v. That the Applicant did unfairly terminate the Respondents employment and that the arbitral award was properly procured and thus the Application lacks merits and it is dismissed accordingly.

53. Patricia M. Rwagatare Vs. Dorcas Albert Minja Lab. Div., DSM, Rev. No. 272 of 2009, 06/06/2011, S. C. Moshi, J.

The Applicant was employed as sales woman by the respondent at her shop. While in the course of business, the Respondent was informed by other workers and neighbours that they suspected the Applicant to be responsible for ill doings. The Respondent did private investigate on the matter, she was convinced that it was the Applicant who stole the goods. She ultimately terminated the Applicant’s services. The Applicant referred the matter to the Commission for Mediation and Arbitration (CMA). She was aggrieved by both the reason and procedure for her termination. She indicated in the referral Form; F. 1 that “Hakuna ushahidi wowote wala hasara yoyote niliyomsababishia mwajiri” and on the procedural part she stated that “mwajiri hana uthibitisho wowote wa tuhuma za upotevu wa fedha”. The Applicant challenges the Arbitrator’s award, among other things that the Code of Good Practice GN


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No. 42/2007 on fairness of the procedure was not followed. She was charged with stealing. However she was not heard before a disciplinary proceeding; and that there was no evidence in support of the award and no basis for granting the awarded sum.

Held:

i. The arbitrator failed to frame relevant issues to the claim. As seen above the applicant challenged both substantive matters and procedural issues. She indicated in form 1; on the procedural part that “Mwajiri hana uthibitisho wowote wa tuhuma za upotevu wa fedha”

ii. The arbitrator ought to have framed an issue to see if the termination procedure was followed to prove the misconduct. Here he ought to have considered if the Code of Good Practice was adhered to. See Rule 24 of the Labour Institutions (Mediation and Arbitration Guidelines) G.N. No. 67/2007 and Rule 13 of the Employment and Labour Relation’s (Code of Good Practice) G.N. No. 42/2007 on drafting of issues and fair procedure for termination respectively.

iii. A valid reason has to be proved. In the present case; whether there was a valid reason for termination; a fair reason under Rule 12 of the cited code of Good Conduct, this would be answered after the results of the procedural issue.

iv. Having discussed as I did; and for the aforesaid reasons; I do find that the award was improperly procured. The C.M.A. proceedings are quashed and the award is set aside. The arbitration should start ‘de-novo’ in accordance with the law.


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54. Tanzania Plantation and Agricultural Workers Union Vs. M/S

UNITRANS (T) Ltd., Labour Div., DSM, Lab. Disp. No. 15 of 2010, 06/06/2011, R. M. Rweyemamu, J.

At issue in this case is whether the respondent enterprise falls under the agriculture or transport sector for purpose of determining wages payable under the Labour Institutions (Regulations and of Wages

and Terms of Employment) Order GN 112/2007 later revoked by GN 172/2010.

The dispute was filed by the complainant – a workers trade union commonly known by its acronym TPAWU against the respondent/employer for failure to pay wages and provide for other terms of employment to its workers on terms allegedly applicable to them as workers under the transport and communication sector. The respondent opposed the claim on ground that its enterprise falls under the agricultural sector therefore its workers are properly paid according to rates applicable to that sector.

The facts that are common cause (undisputed) according to the Non Settlement Order filed as per Rule 10(4) of the Labour Court

Rules GN 106/2007 and from the evidence as well as submissions led by the parties are that:- 1. Employees of the respondent are being paid wages and provided with other terms of employment in accordance with terms applicable to the agricultural sector. 2. The complainant is an agricultural workers trade union recognized as the exclusive bargaining agent of employees at the respondent’s work place in terms of section 67 of the Employment and Labour

Relations Act, 6 of 2004 (the ELRA). 3. From its memorandum of association, the respondent is a transport company and its business license shows that it is doing business of transport agency. 4. The respondent is an independent company hired by Kilombero


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Sugar Company (KSCL) for transportation of cane from field to the mill an activity described in the agreement as “ in field loading of all volumes of Kilomber’s sugarcane; transportation of ...sugarcane from the estates to the mills; land preparation of certain sugarcane fields; maintenance of certain Kilombero roads, irrigation drains and canals” 5. From 2001 to 2007, the parties had a protracted dispute which was ultimately mediated by the CMA where TPAWU was seeking access to the respondent premises for purpose of unionization of its employees and the respondent was refusing on grounds now contradicted. TPAWU’s position then was that the respondent was subcontracted work by KSCL whose prime activities was sugar cane cultivation and related activities therefore the respondent fell under the agricultural sector as per demarcation made by the then Trade Union Federation. The respondent’s position was that it fell under the transport sector as per their business licence. Both have

reversed their positions in this dispute.

The evidence of TPAWU contained in the affidavit sworn by Mr. Godman Nyemba an employee and the Field Branch Secretary at the respondent premises and substantiated on in the submission was in summary that: a. The respondent belongs to the Transport sector as per her business license registration certificate and memorandum of association which have never been revoked or amended. b. The respondents’ sworn testimony admits that “the respondents’ business license indicates that the respondent is a transport agency, and he is doing cane transportation from the fields to the mills among other activities...” The fact that the respondent is also doing other agricultural business does not amend their business license – at most it shows that she is conducting business for which she is not licensed. c. The respondent is well aware that she belongs to the transport sector and that is why she had all along in the


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past resisted TPAWU’s efforts to unionize its workers but instead, preferred COTWU, a union operating in the transport sector. Their earlier stance that the respondent was a transport company was mere speculation and that was why they failed to prove their case! d. For purpose of the Minimum wage order, a sector is categorized according to the employer’s business and not that of the union representing its employees.

In opposition to the above, the respondent relied on sworn testimony of Mr. Gaspar Mwakatuma its principal officer and submissions to the effect that: a. Admittedly, the respondent’s license shows that she is doing business of transportation but the real situation is that she is doing business as an agricultural service provider – its principal obligation is to propel and support agricultural activities including “cane fields preparation, maintenance of agricultural machinery; harvesting and transportation of agricultural produces at Kilombero” as per agreement with KSCL dated 22/122000. b. The nature of the respondent’s business is further evidenced by; a certificate of registration of incentives issued on 32rd April 2001 by the Tanzania Investment Centre (TIC) where the description of enterprise is given as “To provide cottage services for agriculture

sector”. its certificate of membership of the Association of Tanzania Employers (ATE) issued on 14th November 2008 showing that the enterprise has been allocated to the “Agricultural division”, and the certificate of registration of a workplace issued by the Occupational Health and Safety (OSHA) on 8th February 2011 where its nature of work is described as “Agricultural Service Provider,” and the certificate of registration of a workplace issued by the Occupational Health and Safety (OSHA) on 8th February 2011 where its nature of work is described as “Agricultural Service Provider” (incidentally the certificate was issued after the dispute was filed in May 2010) c.


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KSCL is categorized as an agricultural sector company even though it does sugar processing and sales apart from sugar cultivation, and had it not contracted its services mentioned to the respondent, that would not make it a transport company. d. Further, companies doing similar work – contracted for cane haulage namely NASSO and CASPIAN at Mtibwa and Kagera Sugar Companies respectively fall under the agricultural sector not transport. e. The term agriculture is defined by the Labour Institutions (Regulations

and of Wages and Terms of Employment) Order GN 223 of 2007 now repealed by GN 172/2010 as including “...transportation in agricultural undertaking...” The term transport sector refers to movement of people and goods from one location to another but despite its licence the respondent is carrying on transportation in an agriculture undertaking and does not transport any luggage or people on the highway.

Held:

i. First, wage orders are made under Part V of the Labour Institutions

Act, 7/2004 and my understanding of sections 35 to 39 of that Act is that the term sector is not defined directly but the term agricultural sector is defined to include transportation in agricultural undertaking; and from its usage, a sector wage order is categorized according to the employer’s business and covers all employees in a given sector unless the order specifically differentiates between employees of different undertakings within the same sector.

ii. Second, GN 223 was revoked by the Labour Institutions

(Regulations and of Wages and Terms of Employment) Order GN 172/2010 which became operational on 1/5/2010. The meaning of agricultural undertaking in the latter order is similar to that of the revoked order, but the transport and communication sector has


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been subdivided into 4 segments with different rates being; aviation services, Clearing and forwarding, telecommunications and inland transport. Under GN 172/2010 order, the minimum wage for employees in agricultural undertaking is shillings 70,000/= while that of transport workers is 150,000/=

iii. Third, under Part V of the ELRA which deal with organizational rights, any registered trade union can establish a field branch at

any workplace provided 10 or more of its members are employed in that enterprise (section 60), and to be recognized as an exclusive bargaining agent, a union must represent a majority of employees at that unit (section 67). My understanding of the above provisions is that the Tanzania law does not mandate industry unions, that is, a union can operate in an undertaking belonging to any sector. The implication of the above is that the presence of TPAWU, which is an agricultural workers union at the respondents’ premises, does not necessarily mean that the said premises falls under the sector of the union. The position would be different if the constitution of TPAWU prevented it from unionizing in a non agricultural sector- but that was neither pleaded nor testified to.

iv. Bearing in mind the all the above and facts that are common cause, my evaluation of the contending evidence is that: In deciding the nature of the respondent’s business, I believe its license and memorandum of association are of significance. It is undisputed that the core function of the respondent is transport and there is no rational or any explanation why the company was licensed as a transport one, if it is was only carrying on agricultural support services.

v. Further, the fact that the respondent is doing business at KSCL in accordance with the tendered agreement does not mean the


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respondent is only engaged in agricultural support activities described in the agreement tendered, and provides no other forms of service or transport to KSCL under a different agreement. In short, evidence of providing support activities to KSCL does not in itself qualify the respondent to be an agricultural company. The reason, apart from its admitted nature of business, is obvious: The fact that the respondent has an agreement with KSCL does not mean that it does not carry on any other business permitted under its certificate of registration and license. That is particularly so when the respondent is admittedly an independent company – it is not a subsidiary of KSCL.

vi. I have considered but not given weight to the description of the respondent on the TIC certificate, the meaning of the clause “To provide cottage services for agriculture sector” is not clear to me. What are cottage services? For argument’s sake, would transporting sugar on a highway from Kilombero to Dar es Salaam or upcountry to cross border qualify or not qualify as cottage service? The term is vague and in absence of explanation it would be unsafe to speculate. As to description of the respondent business by ATE, I do not believe the fact that ATE allotted the respondent to the Agricultural division” of its members necessarily proves the respondents’ nature of business when its licence indicates the opposite. The same goes for the OSHA certificate – issued after the issue of nature of the respondent business was in court.

vii. Curiously, no evidence was given by the parties to show in what kind of undertaking/activities the employees of the respondent were engaged in. In the absence of that, the logical conclusion I make is that the employees were hired and works for a transport company and are consequently entitled to be paid wages prescribed


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for the transport sector.

viii. In the result, I find for the complainant-TPAWU and order the respondent to pay its employees according to the terms provided under GN 223/2007 for the relevant period and after 1/5/2010 according to terms provided under GN 172/2010.

55. Joachim Walter & 6 Others Vs. Venture Communications East

and Central Africa; Mrs Urmelaben Pater and Huila Calvin

Mlama, Labour Div., DSM, Misc. Lab. Appl. No. 38 of 2010, 16/06/2011, R. M. Rweyemamu, J.

This ruling is in respect of the preliminary objection (PO) raised by the respondents/objectors and decree debtor against the decree/holder’s application for review of the Registrar’s decision in execution dated 9/4/2010 on ground that the same is time barred. The application filed on 1/10/2010 was brought under rule 26 and 27 of the Labour Court Rules, GN 106/2007 (the rules) and on the face of it-clearly out of time in terms of rule 27 of the rules.

To appreciate the decision I have made in this matter, it is necessary to view it in light of the sequence of events leading to the application for review, subject matter of the PO. 1) The applicants are former employees of the decree debtor and beneficiaries of a decree obtained following a mediated settlement at the CMA dated 16/7/2009. The applicants successfully filed an application for execution of decree registered as No. 424/2009; some properties were attached for recovery of the decretal amount calculated at T Shillings 57,758,020/= 2) Before execution, the 1st and 2nd respondents objected to the attachment on ground that the attached properties did not belong to the judgment debtor – former employer of the


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applicants. In the ruling dated 9/4/2010, the Registrar found

for the objectors and lifted the attachment 3) Dissatisfied, the applicants filed a Memorandum of Appeal although the document in the court file shows that the word appeal is crossed and the word review inserted in handwriting. That document was filed on 4/6/2010 and there is controversy surrounding that application 4) The respondent/objectors through their counsel Leo Attorneys submits that; the document was filed titled appeal and they were served with a copy; strangely, the applicants un procedurally crossed the word appeal and inserted review in its stead; that whatever the position, that application was filed outside the permitted period of 15 days. 5) The applicants also through their counsel Pato Legal Consultants submits that; they applied for a copy of the impugned ruling for purpose of filing application for review; that the same was supplied to them on 28/5/2010 and they filed a memorandum of appeal on 4/6/2010; that the filing was timely in terms of rule 31(1) of the rules which prescribe a period of limitation to commence counting from day of receipt of the record. They allege further that the word review was inserted by the court. 6) The respondents submit further that they objected to the fact of the change and were ordered to raise their concern by way of PO – that was on 26/7/2010, and they did. The PO was not decided instead the applicant applied in writing to file an amendment and without an order granting that application, the applicants filed the present application on 1/10/2010 to which the respondents reacted by filing the present PO. 7) The applicants made no response, regarding the respondent’s complaint on the manner the present application was filed on 1/10/2010, save their explanation that they wished the application registered independently of the execution file unlike the 1st one filed in June 2010. 8) The court record indicates that


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on 26/7/2010, the respondents raised concern about the change and the Registrar noted that the document was amended by ‘pen’ to read review and admitted by the Registrar and the applicants were to serve the corrected copy reading review to the respondents. None of that was in my opinion procedurally correct.

Held:

i. The fact of receipt of the record of ruling on 28/5/2010, the date stated by the applicant was not disputed by the respondents. Since the 1st application was filed within 15 days of receipt of the ruling, I find that it was timely filed in terms of the law governing review.

ii. That 1st application for review or appeal has never been

heard. What transpired was partly due to inadvertence on the part of the court. The application filed, whether review or appeal and the respondents’ initial object on it should have been heard and decided. That was not done. Because of that mishap, using powers vested in this court by rule 55 of the rules, I find that all the actions taken thereafter (described in paragraph 6 above) were a nullity and I strike out. That necessarily includes the current application and PO.

iii. Admittedly, the procedure for an aggrieved party to challenge a Registrar’s decision in execution is, in my opinion, not clearly provided for in the Labour laws and I believe that partly explains the dilemma faced by the decree holders in this case. A similar opinion was voiced by this court in Globelec Tanzania Services Ltd Vs.

Evarist Sessa, Misc. Appl. 47/2010


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iv. I am aware and concerned that; the decree of 16/7/2009

remains unexecuted, and that the decree debtor a

foreign company, was/is in the process of winding

up. To commence the process of bringing finality to this issue, break the impasse, and in the interest of substantive justice, I use inherent powers vested in this court to strike off the application filed on 4/6/2010; grant the applicants 14 days extension of time (from the date of delivery or receipt of this ruling) to file a proper application against the Registrar’s ruling. This decision does not prevent the decree debtors from settling the claim which after all, was voluntarily agreed.

56. China Railway Jiang Engineering Vs. Sharifa Juma Lab. Div., DSM, Rev. No. 91 of 2009, 17/06/2011, S. C. Moshi, J.

The Applicant (employer) seeks revision of the Commission for Mediation and Arbitration (CMA) award on grounds that: the awarded sum to the respondent (employee) Tshs. 1,332,692/= was not proper; that the Applicant’s testimony was not recorded properly; and that 1 year salary compensation to the respondent was not proper.

Held:

i. There’s nothing in the applicant’s affidavit nor submission to support their argument that their testimony was not properly recorded. I have gone through the proceedings and the award. It is apparent on the record, that both parties were given opportunity to present their cases. Their evidence was well discussed and evaluated by the


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arbitrator.

ii. Reasons for termination; the applicant claims that the respondent’s services were terminated due to incapacity, dishonesty and gross negligence. The law requires that these offences should be proved. S.37 (2) of the Employment

and Labour Relations Act, Act No. 6/2004 requires that there ought to be valid reason and affair procedure has to be followed on termination; see section 37(2)(a)(b) and (c).

iii. In the circumstances of the case, to prove whether the reasons were valid and they could lead to termination a fair procedure, in accordance with code of Good Practice GN No. 42/2007 ought to be adhered to. The allegations were serious once; such as gross negligence, incapacity and dishonesty; these reasons ought to be proved. In this case, where there was no direct evidence, the allegations ought to have been investigated and the respondent would have gotten a chance to be heard. Hence, from the above reasoning; it is apparent that the procedure for termination was unfair.

iv. The issue of twelve months salary compensation is not new in the statutes. S.40(1)(c ) of the E.L.R.A. empowers the arbitrator or the Court to order the employer to pay compensation to the employee of not less than twelve month’s remuneration. This is among the remedies of unfair termination.

v. The Tshs. 1,332,692,000/= paid was ordered in accordance with S.44 of the ELRA. Looking at page 12 of the award, the same was correctly paid. I see no reason to fault with


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the findings.

vi. Having reasoned as I did, I find that the arbitrator’s award was correctly procured. I find that the application has no merits.

57. M/S Tanpack Tissues Limited Vs. Said Mohamed, Lab. Div., DSM, Rev. No. 290 of 2009, 05/07/2011, R. M. Rweyemamu, J.

The Employment and Labour Relations Act, 6/2004 (the Act) introduced a new policy in industrial relations of Tanzania which mandate observance of fair labour practices. It is in furtherance of that policy the law provides prerequisites to make termination on ground of ill health fair. To that end section, 37 of the Act provides that it shall be unlawful to terminate an employee unfairly; enumerates different causes and manner of termination which the law considers unfair and requires the decision maker, in deciding whether termination by the employer is fair, to take into account the Employment and Labour Relations(Code of Good Practice)

Rules, GN 42/2007 – published under section 99 of the Act (the Code).

The claim in this dispute revolved around the issue of termination/intended termination on ground of ill health. Briefly, the respondent/employee successfully referred a dispute to the CMA protesting the intended action of his employer to terminate him on ground of ill health. In its decision and award issued on 16/10/2009, the Commission for Mediation and Arbitration (CMA) decided that the employer’s intended action was not proper because the employee “could not be terminated on medical grounds” as per section 11 (1) (cc) (bb) of GN 311. The employer was ordered to allow the


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employee to return and continue with work, and thereafter the employer should seek medical opinion if need arises. The employer was also ordered to pay all his remunerations and benefits to the employee during all the time he was out of work.

Dissatisfied, the employer filed an application for revision of that award on a number of grounds contained in the supporting affidavit: that the respondent did not deserve the award since he terminated his employment through abscondment of a total of 65 days; that although the doctor recommended that the respondent be given light duties, the applicant had no such vacancy for him. The only vacancy was as an Assistant Machine Operator, for which he was employed; that the applicant was willing to retire the respondent with full benefits and a golden handshake of Shs. 500,000/= which he declined; and that the award was granted after 30 days upon conclusion of the proceedings contrary to the statutory provisions of the Employment and Labour Relations Act, 2004.

After considering the pleadings and parties written submissions however, the issues for decision emerge clear. They are four. 1. Whether delivery of an award beyond the period of 30 days is a material irregularity sufficient to make the award revisable. 2. Whether the arbitrator on the evidence adduced, erred in not finding that the respondent was fairly terminated on ground of misconduct. 3. Whether application of section 32 of the Act absolves the employer from complying with section 37 of the Act read together with rule 19 of the Code. 4. Whether the arbitrator’s decision that the employer’s intended action to terminate the employee was improper and the reliefs granted was on the facts justified, rational and based on a proper interpretation of the law. Put differently, are there grounds valid to support revision.


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Held:

i. I proceed to give my decision seriatim beginning with issue 1: To do that, I will preface my decision (on the question of delivery of an award beyond the 30 days prescribed

under section 88(9) of the Act), with a review of the case law, so as to remove confusion which might have been inadvertently created on the issue.

ii. The initial position was as expressed in among other decisions – 21st Century Food & Packaging Ltd Versus

Emanuel Mzava Kimweli, Revision 158/2008, where this court after noting that section 88(9) of the Act was couched in mandatory terms concluded that: “the unambiguous interpretation of that section is that, an award issued after expiry of 30 days, would be said to have been procured with a material irregularity or said to have been “improperly procured” and reviewable under section 91(2) (b) of the Act. It would appear after 30 days, the arbitrator becomes funtus officio. Admittedly, it is a rigid law. For one, it presumes that the CMA operates at its optima, that is, it has sufficient arbitrators for the number of disputes referred to it, and therefore working efficiently, it would be able to comply with the law. It is a fact that the reality is different. Two, the law does not leave room for genuine emergencies on the part of the arbitrator.

I am not oblivious of the fact that application of this rule may in practice work to hinder the objective sought to be achieved by the Act, namely expeditious resolution of labour dispute. That is so because the result of nullifying an award on that ground is to have the process commence afresh causing further


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delay. I am however reluctant to find that the legislature in its wisdom was not aware of such consequences, I assume it was, but found the key objective imperative as to override other considerations. I accordingly decide that the law has to be applied as it is”.

iii. In the case of Tanzania Revenue Authority Vs. Justus

Ndyeshumba, Revision 304/2009 a decision delivered on 20/9/2010, I concluded however that: “I now believe that decision (as above) was made per incuriam; when the issue is considered in light of the overall objectives of the Act, the

proper position in such a situation is that the decision

must, apart from the above, also take into consideration

other factors like; whether “the parties’ contributed to

the delay in preparation of the award; whether there

were sufficient reasons to extend the time and... if any

party’s rights were prejudiced... or a miscarriage of

justice occasioned” by late delivery of the award. That was the position taken by my sister Judge Hon. Moshi in Joas Mrutu & 37 Others v. Namna Hotel, Revision 268 of 2008, a position I associate myself with.”

iv. A similar position was taken in Nufaika Distributers V.

Hawa C/O Chomba, Revision No. 256/2008, a decision delivered on 15/2/2011. After revaluation, I am now of a firm opinion that a commonsense interpretation of section 88 (9) and considering the balance of convenience and justice to the parties in light of one of the key objects of the Act, which is expeditious resolution of labour disputes; it cannot be the intention of the law to have an otherwise valid award invalidated for reason of late delivery. That is


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so because “the result of nullifying an award on that ground is to have the process commence afresh causing further delay”.

v. My decision is therefore that while late delivery

of awards should be censored, it is not a material

irregularity in procurement of an award sufficient to

have the same invalidated. For that reason, that ground

of complaint is dismissed.

vi. Regarding misconduct, I observed earlier that ground 2 and 4 are contradictory. If termination was due to misconduct as per ground 2, the issue of retiring the employee as stated in ground 4 would not arise. Further, a finding of misconduct is irreconcilable with the undisputed fact that the employee had not been terminated, and the applicant was admittedly willing to pay a handshake of shillings 500,000/=

vii. I will consider ground 3 and 4 together because the two are connected. Let me begin by stating that on this aspect, this case reveals some confusion in industrial practice regarding the interpretation and application of the law on sick leave (section 32 of the Act) and fair termination on ground of ill health (section 37 of the Act read together with rule 19(1) of the Code. Section 32 provides for granting of sick leave as a right under the employment standards to be observed by every employer. Rule 19 of the Code requires that: “19(1) An employer who is considering to terminate an employee on grounds of ill health or injury shall take into account the following factors to determine the fairness of the reason in the circumstances- The ability to accommodate the incapacity;


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viii. The arbitrator’s finding that the applicant’s intended

action of termination was unfair cannot be faulted because it was undisputed that the employer proceeded unilaterally in the matter and never considered the guideline provided in rule 19 of the Code regarding consulting the employee, investigating the possibility of offering the employee reasonable accommodation of the disability created by ill health particularly when the ill health was as a result of a work related injury and the doctor had recommended light duty.

ix. The requirements of section 37 of the Act, read together with rule 19 of the Code have to be met even where the provisions of section 32 of the Act have been complied with. The duty to consider and provide reasonable accommodation of the employee’s disability seek to further policy objectives which balances protection of employees’ constitutional right to work and equality of treatment among others (considered part of fair labour practices), while protecting prerogatives of the employer. It is for that reason the duty on the employer to provide reasonable accommodation, is to be evaluated in light of peculiar circumstances of each case. The employer is required and must show that possibility of reasonable accommodation was investigated and the employee consulted along the guidelines of rule 19 of the Code, which the applicant/employer did not do in this case.

x. It is in light of all the above that I find no basis of faulting the decision and reliefs granted by the arbitrator, find the application to have no merit and dismiss it.


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58. Remegius P. Kagaruki Vs. Kom Secondary School, Lab. Div., SHY, Rev. No. 4 of 2010, 19/07/2011, R. M. Rweyemamu, J.

The applicant was dissatisfied with the Commission for Mediation and Arbitration (CMA) award issued on 19/11/2010 and filed a Notice of Appeal under rule 29 and 30 (1), (2), (3) (5), (6) and (7) of the Labour Court Rules 2007 GN No. 106 published on 18th May 2007 together with a Notice of Application made under rule 24 (1), (2), (3) and rule 28 of the Labour Court Rules. The application was supported by affidavit. It is only after reading the contents of the affidavit and Notice of Application that it becomes clear that what the applicant seeks is revision of the award.

After checking the pleadings filed, I realised that the first issue to be decided is whether, considering the manner the applications was brought, this court is “...properly seized or vested with the requisite jurisdiction to hear and determine the matter...” as per guidance given by the Tanzania Court of Appeal (CA) in Nicodemus Kajungu

& 1374 Others Vs. Bulyankulu gold Mine, Civil Appeal No. 110/2008. After considering the law and practice on the two issues raised by the manner the application has been brought, my answer to the posed question is an obvious no. Why?

Held:

i. First, the application has been brought as an appeal but the Labour Court has no jurisdiction to decide appeals

from CMA arbitral awards. The jurisdiction of the Court as per section 94(1) (b) (i) of the Employment and

Labour Relations Act 6/2004 (the Act,) is among other, “to decide … reviews and revisions of arbitrator’s awards”. Arbitral awards are not appealable, although a party aggrieved by an arbitrator’s award can apply for its revision


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under powers of section 91(1) of the Act. For that reason, this application for appeal is misconceived and must be struck off.

ii. The second issue for decision is; even assuming this application was for revision as suggested by the contents of the filed affidavit and NOTICE OF APPLICATION, I would still order it struck off on ground that the court has not been properly moved for reason of failure to cite enabling provisions of the law. An application for

revision must be moved into court by citing section

91 and 94 (1) (b) of the Act read together with rule 24 and 28 of the Labour Court Rules, GN 106/2007. The applicant in this case did not cite that relevant sections of the Act.

iii. It is now a trite rule of law that failure to cite enabling provisions makes the court incompetent in the matter and the remedy is to have it struck off. This fact was stressed by the Tanzania Court of Appeal (TCA) in a case originating from this court of Chama cha Walimu Tanzania v. AG,

Civil Application 151/2008 where it held that; “...a person wishing the Labour Court to review or revise an arbitrators’ award has to move the court under section 91(1) of the Act”.

iv. In that case, the CA went further to hold that omission to cite enabling provisions is not a mere technicality but goes to the root of the court’s jurisdiction. Part of their reasoning went as follows: “..the omission in citing the proper provision of the rule relating to a reference and worse still the error in citing a wrong and inapplicable rule in support of the application is not in our view, a technicality


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falling within the scope and purview of article 107A(2) (e) of the Constitution. It is a matter which goes to the very root of the matter. We reject (the) contention that the error was technical”.

v. For the two reasons explained above, I conclude that the court was improperly moved as the application is incompetent; and I order the application struck off. I am not oblivious of the fact that the applicant is lay person who has not had benefit of counsel, and as I have done to parties in similar circumstances, I grant the applicant another opportunity to file a proper application (if he is still desirous of pursuing the matter).

59. Othuman Mkuchela Vs. Shekhat Hissa Islamic Seminary, Lab. Div., DSM, Rev. No. 289 of 2010, 22/07/2011, S. A. N. Wambura, J.

Being aggrieved by the decision of the Commission for Mediation and Arbitration (CMA), the Applicant brought up this Application praying that this court revises the proceedings and award and determine the dispute in the manner it considers appropriate. The Application is supported with Affidavit whereby in paragraph six (6) the Applicant categorically alleges that: the Arbitrator erred in law and facts for failure to observe natural justice and issued award by basing on one side while the evidence and witnesses were so clear established; that the Arbitrator erred in law and fact to act and decide as umpire the failure to take into account of the contract terms; that the Arbitrator was arbitrarily himself by failing to observe entirely testimony and exhibits tendered by both parties, that Board admitted to fail to give an opportunity Applicant the right to be heard; that it is


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in the interest of justice that the arbitration proceedings and the award be revised and applicant be awarded the benefit as prayed.

Held:

i. Now as for the argument that the Arbitrator did not observe natural justice and that he did not consider the evidence before him, a thorough perusal into the proceeding and award show that the arbitrator fairly looked into the matter and came out with the decision that the Applicant was unlawfully terminated one because he did notify his office through a colleague that he was bereaved, that the signature on the dispatch purporting that he was served with a letter which he was expected to make a reply there to was not served on him and that he was not given an audience during the Board meeting. All these were decided in his favour as seen at pages 10 to 16 of the decision and granted an award of 12 months compensation as he could not be reinstated by his employer. This ground accordingly fails to stand.

ii. That even if the Administrator had been confirmed by the Board had to have been shown the contract for its approval and have all employees given the contract. The fact that most of the employees did not have a contract of employment makes this very suspicious. Be it as may be, it remains a contract between the Applicant and the Administrator and not the school for there is no official seal in the contract to conclude the same.

iii. The Application has no merit and it is accordingly dismissed.


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60. Quality Group Ltd. Vs. Philbert Alex Chesso, Lab. Div., DSM, Rev. No. 294 of 2009, 01/08/2011, S. A. N. Wambura, J.

This ruling is in respect of the Application filed by the Applicant praying that this court revises the proceedings, decision and award of the Commission for Mediation and Arbitration (CMA) dated 18/3/2009. The Affidavit in support of the Application has three (3) grounds that: the applicant was not served with the summons to appear and defend himself against the Respondent’s allegation; the Respondent’s application was filed out of time without attachment with application for condonation or leave of the Commission; and that the jurisdiction of the Mediator at the mediation stage is to reconcile the parties and not to arbitrate. I have gone through the record of the CMA, it shows that three summons were issued to the Applicant in different occasions but only two summons seemed to be responded to. While one summons had just a signature, the other summons had just a name of one person named Azmina. Thus the issue here is whether or not the summons were properly served.

Held:

i. The Law under Rules 6(2) (a) of the Labour Institution 9Mediation and Arbitration) Rules 2007 states clearly that; (2) A document may also be served to – (a) “a company or other body corporate by handing a copy of the document to the person in charge or acting on behalf of the person in

charge at its registered office, its principal place of business within Tanzania or its main place of business within the area in which the dispute first arose.

ii. There is no dispute that Azmina is the employee of that Company however what is disputed is the fact that the


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procedure for service was not followed as the law requires. It is true that the position of Azmina in that Company is not shown in the records of the summons but the fact that she works at the Company and received the summons it is evidence she acted on behalf of the person in charge thus summon was properly served as it was her duty to bring the summons to the person in charge or concerned after receiving it and signed it instead of keeping it to herself. If at all she did not present the summons to the in charge of the Company the Respondent cannot be blamed.

iii. Therefore the fact that the summons was not received by the person in charge directly but it was received and signed by the employee cannot disprove that service was effected.

iv. As for the 3rd ground of the Application it is alleged that, the jurisdiction of the Mediator at the mediation stage is to reconcile the parties and not to arbitrate. It goes without saying that the Mediator has the power to decide when the Respondent or Applicant has failed to appear at the mediation without good reasons, Rule 14(2) of the Labour Institution (Mediation and Arbitration) Rules 2007.

v. Therefore it was proper for Mediator to decide when the Respondent did not make appearance at the hearing of the Mediation. Thus this application is baseless and it is accordingly dismissed.


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61. Markitha Y. Mputo Vs. Choice Investment Co. Ltd., Lab. Div., DSM, Rev. No. 248 of 2009, 22/08/2011, R. M. Rweyemamu, J.

The Applicant seeks revision of the ex-parte award issued on 10/8/2009 basically for reason that the arbitrator erred by granting only part of his claims while the respondent/employer never appeared to refute them (that is the gist of ground 3, 4 and 5 of the affidavit filed in support of the application), the grounds he argued at the hearing adding that the arbitrator erred by failing to award overtime for the years 2006 to 2009. The grounds were traversed by the respondent in the counter affidavit who averred that the arbitrator made a proper decision as the applicant’s claims were baseless.

Held:

i. I agree with the arbitrator’s grounds for deciding

that overtime claims were not proved. The applicant’s argument that because the respondent never appeared to “dispute the case…(that) has the effect that he admitted my claim” is not a correct position in law. The legal position is that non appearance of the respondent does not entitle the applicant to automatic judgment, it only entitles him to prove his case exparte (section 87 (3) (b) of the Employment and Labour Relations Act, 6/2004 read together with rule 28 (2) of the Labour Institutions

(Mediation and arbitration Guidelines) rules, GN 67/2007 which provides that “where the arbitrator proceeds in the absence of a party, the present party has to prove its case and to present opening statement, evidence, and any argument in support of its case..”

ii. I have equally found no grounds to fault the arbitrator’s


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decision regarding leave entitlement. I repeat that when the matter proceeds ex parte, the applicant has a duty to prove the claim and the arbitrator is not required if he “had any doubt to summon the respondent to traverse the same” as averred to by the applicant in ground 5 of the supporting affidavit. I accordingly confirm the

arbitrator’s decision that the applicant was entitled to

1 month leave for the last worked year.

iii. I agree the applicant was entitled to severance pay but not for reasons stated by the arbitrator. The arbitrator reasoned that severance was due because “mazingira ya kuacha kazi yalisababishwa na mlalamikiwa (constructive termination).” That is not a correct position in law.

iv. Under section 42(2) (a) severance is payable as a right on termination of employment contract where “the employee has completed 12 months continuous service with the employer...”). On the other hand, under section 36 of the ELRA, constructive termination amounts to unfair termination of employment by the employer for which an employee would be entitled to remedy as per section 40 of the ELRA. From the facts however, the dispute referred by the applicant was not about unfair termination but a claim of employment benefits due following termination of employment by the applicant.

v. To conclude, save for the comments I have made, I find that this application has no merit and dismiss it.


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62. BP Tanzania Ltd., Vs. Alex Lwabina, Lab. Div., DSM, Rev. No. 215 of 2010, 26/08/2011, S. C. Moshi, J.

The Applicant seeks revision of the Commission for Mediation and Arbitration (CMA) award on the grounds that: the Arbitrator erred in law and in fact by holding that the Respondent’s place of domicile at the time of recruitment was in Muleba, Kagera while there was evidence on record to show that the Respondent was recruited in Dar es Salaam and he terminated his employment with the Applicant in Dar es Salaam; that the Arbitrator erred in law and in fact in holding that the Respondent is entitled to be transported to Muleba, Kagera while he was recruited in Dar es Salaam and he terminated his employment with the Applicant in Dar es Salaam; that the Arbitrator erred in law and in fact by failing to give the Applicant an option to transport the Respondent and his personal effects or to pay for the transportation of the Respondent and his personal effects to Muleba Kagera; the Arbitrator erred in law and in fact by ordering the Applicant to pay a total of Tshs, 3,000,000/- for purposes of transporting the Respondent and his personal effect to Muleba, Kagera in absence of any evidence on record to substantiate the awarding of the said amount; that the Arbitrator erred in law and in fact by ordering the Applicant to pay the Respondent his monthly salary, that is Tshs. 731,606/70 per month as subistance allowance from the date that the Respondent resigned from his employment to the date he will be repatriated to Muleba, Kagera; that the Arbitrator erred in law and in fact by ordering the Applicant to pay the Respondent nights allowance in absence of any evidence on record to substantiate the said claim; and that the Arbitrator erred in law in issuing an award after the expiry of thirty (30) days from the conclusion of the Arbitration hearing contrary to section 88(9) of the Employment and Labour


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Relations Act, 2004.

Held:

i. It is common ground that the respondent was recruited in Dar es Salaam; and that his services too were terminated in Dar es Salaam. The Law, Under S.43 of the Employment and Labour Relations Act No. 6/2004 provides thus: “Where an employee’s contract of employment is terminated at a place other than where the employee was recruited the employer shall either;- a)Transport the employee and his personal effects to the place of recruitment. b) pay for the transportation of the employee to the place of recruitment. c).....” Hence the Law clearly states the position.

ii. However the parties may enter into terms of agreement of employment which set higher standards in order to create better conditions of work.

iii. In our case the company policy; which guided the employer/employee relationship is dated back in 1993. According to the evidence, it shows that the same has been in operation even after the enactment of the Employment Labour Relations Act, Act No.6 of 2004. So it is clear that the parties were willing to be bound by the policy. However, the standard so set ought not to be consistent with the Law.

iv. Now, looking at the policy in question is categorically stated that the procedures under the policy are guided by the repealed law, the Security of Employment Act. I am of the view that the policy would be applicable if were not consistent with the law. Having found so, the arbitrator


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ought to have applied the Law as it is provided.

v. Therefore since the respondent was recruited in Dar es Salaam; and terminated in Dar es Salaam; he was not entitled to either be transported to Muleba Kagera, him, his family personal effect nor to be paid subsistence allowance.

vi. Regarding night allowance, the allowance claimed were of the years Dec. 2006-Dec. 2009. The arbitrator awarded a total sum of T. Shs. 504,000/- for being two months unpaid night allowance. However upon looking on record, there’s no proof of the night allowance claim; i.e. the necessary authorization doing the extra night hours, the respondent claim to his employer to claim to be paid for the night work done. I here hold that the arbitrator findings were erroneously reached upon.

vii. Now, whether the arbitrator erred in issuing an award after the expiry of thirty (30) days from the conclusion of the Arbitration hearing contrary to S.88 (a) of the

Employment and Labour Relations Act, 2004. It is true that the Law mandates the Arbitrator to issue an award within thirty days; As also stated in the cited cases of Dar

es Salaam Yatch Club Vs. Eliezer Musama & James Lab. Rev. No. 263/2008 and case of 21st Century Food

7 Packaging Ltd Vs. Emmanuel Mzava Kimweli, Lab.

Rev. NO. 158/2008. However I am of the view that in the issuing of the award within 30 days didn’t occasion any miscarriage of justice.

viii. I therefore basing on the above reasoning find that the arbitrator erred to the extent shown above. The award is set aside accordingly.


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63. Jane Chabruma Vs. National Microfinance Bank, Lab. Div., DSM, Rev. No. 159 of 2010, 05/09/2011, R. M. Rweyemamu, J.

The applicant Jane referred a dispute of unfair termination to the Commission for Mediation and Arbitration (CMA) following termination of her employment by the respondent (the bank). She was aggrieved by the arbitrator’s decision and award in the matter and now seeks revision. The following facts adduced before the arbitrator were uncontroverted:

Jane was employed by the bank at its Kilosa branch on 2/3/2009 as a bank teller, and was terminated on 4/8/2009 while still under the period of 6 months probation. Her termination was on ground that she caused loss to the bank by disclosing her password to another employee contrary to the governing bank regulations thereby facilitating theft of shillings 262,000,000/=. The bank reported the matter to the police on 1/8/2009 following which Jane was arrested, kept under police custody and ultimately charged in court on 6/8/2009. It would appear from the facts on the record that the criminal case was still pending at the time the dispute of unfair termination was arbitrated by the CMA.

In the impugned decision, the arbitrator decided that: a: Termination was for a valid reason because the misconduct was admitted by the applicant; b. the claim of unfair termination had no merit in view of the provisions of section 35 of the Employment and Labour

Relations Act, (the Act) which exempts employers from complying with the provisions of Part E of the Act on unfair terminations in respect of employees “with less than 6 months employment”; c. Jane did not suffer double jeopardy prohibited under section 37(5) of the Act because she was terminated and received the letter of termination on 4/8/2009 while she was charged in court on


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6/8/2009; d. Jane was entitled to one month pay as notice, and a letter of termination.

In this decision, I have dealt with only those aspects of the grounds I find determinative. Based on the parties’ arguments during hearing, there are basically two contested issues: First, whether or not the arbitrator’s decision that Jane being a probationary employee was not protected by unfair termination provisions of the Act was in law erroneous. Second, whether or not the arbitrator’s decision that Jane was terminated before she was charged with a criminal offence was proper in fact and in law.

Held:

i. The Code was issued by the Minister of Labour under section 99 of the Act and while the Code promotes a good practice where the employer does not have an unfettered right to terminate probationary employees particularly rule 10(1) to (9). This good practice is supposed to be taken into account by a decision maker (section 34(4)) but it cannot override clear provisions of section 35 of the Act.

ii. It is my considered opinion that section 35 unambiguously exempts employers from observing mandatory provisions of subpart E of the Act when dealing with probationary employees.

iii. Subpart E comprises of section 35 to 40 of the Act. Section 36 defines termination of employment; section 37 defines unfair termination where 37(4) thereof directs that “in deciding whether a termination by an employer is fair, the arbitrator or (this court) shall take into account any Code.. published under section 99” while 37(5) prohibits employers


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from taking disciplinary action against an employee charged with a criminal offence which is substantially the same until final determination by the Court and any appeal thereto.

iv. It is my opinion and decision that since section 37(5) falls under Part E, the plain meaning is that probationary employees are excluded from coverage of the rule against double jeopardy – that is; they are not protected by the rule which prohibits taking disciplinary action including termination against an employee also facing a criminal charge.

v. In view of my decision above, I find the arbitrator’s factual decision that Jane was terminated before she was charged to have been unnecessary – being a probationary employee, she was not covered by section 37(5) of the Act.

vi. Further in view of my decision under paragraph (ii) above, I find no revisable error of law or fact in the arbitrator’s decision that Jane was not protected against unfair termination.

vii. I however confirm the arbitrator’s decision that Jane was entitled to rights provided under section 41 which falls under Subpart F of the Act and prescribes for rights pertaining to other incidents of employment termination. In my view, the import of section 41 (7) of the Act is to stress that receipt of terminal benefits specified under the section does not act as estoppel to claims of unfair terminations.

viii. As regards the apparent unequal treatment between


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probationary and permanent employees, my opinion is that such was a deliberate choice of the legislature, probably based on some defendable realities in labour practice.

ix. Now in respect of the question whether or not section 35 of the Act is unconstitutional thus in contradiction with section 3, my decision is this: This court has no powers to adjudicate the issue because while this court is empowered under 94 to be guided by the Constitution in interpreting provisions of the Act, “that does not mean the Constitution has become enforceable under the (Act)” as held by Mandia J. as he then was, in Zayumba Abeid Vs. Tanzania Ports

Authority, revision No. 155/2008 a decision I associate myself with. That question can be resolved by invoking the machinery set up under the Basic Rights and Duties

Enforcement Act, 1994 (CAP 3 R.E. 2002).

x. In the final result, I confirm the arbitrator’s decision that the claim of unfair termination could not succeed in view of the provisions of section 35 of the Act, find that this application has no merit and dismiss it.

64. Alex Zablon Andaresoni Vs. Max Care Ltd., Lab. Div., DSM, Misc. Appl. No. 26 of 2010, 04/11/2011, S. C. Moshi, J.

The ruling is pursuant to a preliminary objection on points of law raised by the Respondent to the effect that: 1.the Applicant’s notice of application is defective for want of specific enabling provision of law; and 2. that the Honourable Court is not properly moved to entertain the matter as there is no any application in court pending determination. On the 1st PO. The respondent’s advocate submitted


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that the Applicant’s notice of application is defective for want of specific provision of the law. That this renders the notice defective. That the applicant has cited section 91 of the Employment and Labour Relations Act, Act No. 6/2004 (the Act) and rules 24 (1), (2), (3) and 28 of the Labour Court Rules, GN No. 206/2007 (the Rules). That the Notice should have been filed under Rule 24 (1) and (2). Further it should have been in conformity with form No.4 as prescribed by law. Also that there is no such GN as cited by the applicant i.e. GN 106 of 2006.

Regarding the 2nd PO it was argued that there is no application before the Court. That the Court cannot entertain an application basing on Notice. That there ought to be an application for Revision which must be supported by affidavit per Rule 24(3). That according to Court practices it has to be by a chamber summons.

The applicant conceded that the citing of GN No. 206/2006 was an over look. I think that it’s genuine explanation; also it hasn’t occasioned prejudice to the other party. Briefly the applicant submitted that he cited S.91 of the Act as it sets time frame, R.28 refers to the Jurisdiction of the Court and R.24(1), (2), (3). That the procedure provided by R.24 of the Rules is to file Notice of Application not a separate application as argued by the respondent.

Held:

i. On the first point of objection. The applicant filed a Notice of application without citing the relevant provision of law. As submitted by respondent’s advocate, the non-citation of proper provision of law, renders the notice defective. The Notice has to be made under Rule 24(1) of the Labour Court Rules; and is a mandatory requirement.


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ii. Thus citing Section 91 of the Act and Rules 28(1), 24(3) of the Rules is wrong citation. Wrong citation is an incurable defect. The non citation of proper provision of law, renders the notice defective. The notice has to be made under Rule 24(1) and (2) of the Labour Court Rules; and is a mandatory requirement. Wrong citation is an incurable defect.

iii. The Law requires that all application to be initiated by way of Notice; if the Notice is defective beyond repair, then it cannot initiate an application. Therefore the 1st PO is sustained.

iv. On the second PO. Again it is true that there is no application. The rule which provide for Revision is R.28 of the Labour Court Rules. GN No. 106/2007. However this rule does not prescribe for the procedure on how decisions as to what are the proper enabling provisions of the application for Revision; this has been so as said above, due to the fact that R.28 does not provide for specific procedure for preferring the application for Revision as it’s for Review and Appeals. Hence there is a case which suggested the use of Rules 26 and R.28; whereas there’s another case of TTCL Vs. Tiahirwa Lab. Appl. No. 203/2010 where it was held that R.28 and S.91 of the Act could be applied; yet there’s a position suggesting the use of R.24 (11)(b).

v. Since the parties are bound by the principles of stare decis and precedent; then it is my view that since the party has followed one of the positions above, the application would not be rendered bad in law as the position of law is not


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yet settled

vi. The PO is upheld to the shown extent and the application is struck out.

65. Azizi Ally Aidha Adam Vs. Chai Bora Ltd., Lab. Div., IRNG, Rev. No. 4 of 2011, 16/11/2011, S. C. Moshi, J.

The ruling is pursuant to two applications for revision emanating from the CMA award which was procured by the Commission for Mediation and Arbitration (CMA) on 08/04/2011. Both parties applied for revision. Applicant’s application was registered as Revision No. 5/2011; whereas the Respondent’s application was registered as Revision No. 4.2011. The court consolidated the two Revision Applications; hence one Revision application remains i.e No. 4/2011.

As indicated above both parties weren’t satisfied with the award. The Applicant’s ground s of application were thus: Kwamba mwamuzi alikosea kutoa adhabu ya FIDIA ya miezi sita (6) badala ya fidia ya miezi kumi na mbili (12) kwa kosa la kutuachisha kazi isivyo halali (unfair termination) ikizingatiwa pia kuwa mikataba yetu ya ajira ilikuwa isiyo kuwa na muda maalum; kwamba mwamuzi baada ya kubaini kuwa aliyetufukuza kazi ndiye alikuwa mwenyekiti wa kikao cha nidhamu, hivyo mwamuzi alikosea kimantiki kutotamka kuwa kikao hicho cha kusikiliza utetezu wetu kulikuwa BATILI; kwamba mwamuzi alikosea kutotoa uamuzi amri ya kurudishwa kazini baada ya kubaini kuwa kuachishwa kazi kwetu na mjibu maombi ilikuwa siyo halali wa haki.

On the other side the Respondent’s grounds of application briefly were as follows: that the arbitrator failed to analyse the applicants


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evidence, that the minor failure to follow procedure did not lead to injustice on the respondents; and that the same arbitrator had previously acted as the mediator in the same dispute.

Held:

i. I find the arbitrator was right to find that the applicant had committed misconduct due to his negligent acts. I have taken into consideration Rule 12(1) (2) and (3) of GN 42/2007.

ii. Though the applicant’s offence was the first one yet in the circumstances of the case it amounted to gross negligence see the cited Rule 12(3) (d).

iii. Regarding procedural issues: It’s true that the (respondent) was chair of the disciplinary committee which was involved in writing a letter to applicants to explain on their misconduct. In a similar case of NBC Ltd. Mwanza

Vs. Justa B. Kyaruzi Labour revision No. 207/2008 (unreported) where the court held that applicant was entitled to be treated as per Rule 13 of the Code i.e. No. 42/2007: that, it’s the duty of the employer to observe the code.

iv. Since the award of the remedy is discretionary, the Act uses the word “may” the literal interpretation is that, it is not in all cases where unfair termination is found that compensation will be ordered, but if it’s ordered, it must be in the sum of not less than 12 months remuneration. Although, the order for compensation is discretionary, yet the discretion must be exercised judiciously.

v. When deciding the distinction has to be made between


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substantive unfairness and procedural unfairness. If compensation is for redressing a wrong done to the employee, the remedy for the former attracts heavier penalty than the latter.

vi. Under law, substantive unfairness may attract a reinstatement order, and failure to obey such order attracts a mandatory payment of “compensation of twelve months wages” under S.40 (3) of the Employment and

Labour Relations Act 6/2004 Act; but under the Labour

Institutions (Mediation and Arbitration Guidelines)

GN No. 67/2007 Rule 32(2) (d), the arbitrator is mandated not to order reinstatement where termination is unfair because the employer did not follow a fair procedure!! The intention is to make consequences of substantive unfairness direr than those of procedural unfairness.

vii. In light of the above reasons, it’s my opinion that the arbitrator who has found unfair termination, has discretion to award an “appropriate amount of compensation” found fair and just to both parties in the circumstances of the case and therefore section 40(1) (c ) does not mandate the arbitrator to order compensation of 12 months pay in all cases of unfair termination.

viii. Now coming to the last ground; the respondent’s argument is that the award was improperly procured as the mediator who mediated the matter is the same person who arbitrated the matter. What is the position of the Law? Do parties have a right to opt for the same mediator to arbitrate over the matter? S.86 (7) (b) EALR says that if mediation fails:- “If the dispute is a complaint:- (i) Refer


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a complaint to arbitration; or (ii) Refer the complaint to the Labour Court. And under S.88 (2) (a), the Commission

shall appoint an arbitrator to decide the dispute.

ix. So it’s upon the commission to appoint the arbitrator. The parties have no right to choose the arbitrator; as in this case where the same person had been a mediator to the case. The practice undoubtedly leads to breach of fundamental principles of natural justice; a principle against bias. As submitted by the respondent, surely the arbitrator had already have an informed opinion.

x. The same person can do both mediation and arbitration where the process is combined proceedings under Rule 18 of the Labour Institution (Mediation and Arbitration)

Rules GN no. 64/2007. The process has its own rules and parties are well informed; specifically that the process is combined one. The parties may consent an arbitrator to suspend proceedings and resolve the dispute through mediation; but not vice versa; see Rule 16(1) of the Labour Institutions (Mediation and Arbitration

Guidelines) GN. No. 67/2007. And this Rule applies during arbitration and combined mediation or arbitration process.

xi. I therefore find that the award was improperly procured for the reason of the arbitrator’s misconduct; i.e. turning himself from a mediator to an arbitrator. As a mediator he should have stopped when mediation failed; prepare a certificate that is it. I therefore, for the aforesaid reasons, do quash the proceedings and set aside the award.


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66. Issack Chiwinga Vs. Mbeya Cement Co. Ltd., Lab. Div., MBY, Rev. No. 19 of 2009, 24/11/2011, S. C. Moshi, J.

The application has been preferred under S.38 (1) and S.95, Order xxi Rule 21(2) and S.57(1) of the Civil Procedure Code, Cap. 33 R.E. 2002 and Rule 48(8) of the Labour Court Rules, 2007 (GN 106/2007). The applicant is requesting for the following orders:

(a) That this Honourable Court be pleased to investigate the claim/objection raised by the applicant herein, declare and order that the application for execution of decree filed by the respondent is bad in law.

(b) That this Honourable Court declare and order that the properties earmarked for attachment are not liable for attachment and there’s no decree of payment of Tshs. 134, 746.052/= was ever issued.

(c) That this Honourable Court make a proper interpretation of its decision and definite decision on proper amount payable to the respondent as per judgment dated 19/02/2010 in Revision No. 19/2009.

(d) Any other or further orders that the Court may deem fit and just to make.

The grounds for the application were supported by applicant’s advocate affidavit, and among the grounds advanced were thus;

(i) That the respondent has filed an application for execution of a decree that doe snot exist as no decree was issued in Revision No. 19/2009 (ii)That the respondent has applied for attachment and sell of three motor vehicles of the applicant and for a garnishee order for attachment of the applicant’s general account, for payment of Tshs. 134,746. 052/= (iii) That in this computation the respondent has deliberately inflated his claims and bare his


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claims on wrong statement that in Revision No. 19/2009 the Court decided that his termination was unfair when that’s not the case. (iv)That the respondent has in his list, included what was already paid for several years ago. (v)That the properties earmarked for attachment are not liable for attachment.

Now, the issue here is whether the judgment of the Court, in respect of Marudio (Revision) Ns. 19 ya Mwaka 2009

between Isaack Chiwinga and Mbeya Cement Co. Ltd may be subject to interpretation under Rule 48(8) of the Labour Court Rules; and if this issue is answered in the affirmative, then to what extent?

Held:

i. It is true that in the judgment in question, there’s nowhere that the Court ordered payment of the sum which is intended to be executed as decree of the Court; neither there is any decree issued in respect of the contested judgment. As indicated; the respondent applied for execution of a decree with total decretal sum of Tshs. 134, 746,052/= Now, what was the basis of the said decretal sum? According to the respondent’s advocate; the basis is the Collective Bargaining Agreement and the rights enacted in the law as ordered by the Hon Judge.

ii. As submitted by Mr. Mbise, the relief granted are not clear, the passage is ambiguous. I decline to side with Mr. Majura’s argument that the reliefs ordered are clear; it is true that there’s an order to pay in accordance with the Collective Bargaining Agreement and other benefits according to the law. However, the problem is that the decision didn’t sort out what right’s or reliefs on the


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CBA respondents are entitled to; and also, what reliefs to which he’s entitled basing on the law; most important to what extent.

iii. When we look at the cited authorities, the Hon. Judge in the cited cases of Distributor Nufaika V. Charles Tafsiri

LCR No, 285/2009 and Mary Mwalufunga V. TPC Ltd

LCR No 186/2010 was acting under the powers given to the court to revise arbitration awards under S.91 of the Employment Labour Relations Act, Act No. 6/2004 and Rule 28 of the Labour Court Rules. Therefore the Court is given powers under the cited provisions of law to revise and order correction of the irregularities occasioned by the CMA; hence the Judge has jurisdiction even to quash the award which is found to be ambiguous. Case which was cited it’s a Court of Appeal decision in NIC and

another Vs. Sekulu; (1986) TLR 157 where the Court held that the decision should be precise and execution be according to the decree.

iv. Hence from the above authorities it is glaring clear that it is not upon the decree debtor or decree holder to decide as to what has been decreed upon. The Court has to be clear and non ambiguous in making its decision

v. Talking more of the cited authorities; all the cited authorities, although they are good authorities as indicated above, yet they are distinguishable from the present case; as in the authorities it were higher courts correcting lower court’s decisions. However in our case the powers are limited to interpretation, I have no jurisdiction to overturn my brother Judge’s decision, the


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Court is functus officio to correct its decision unless it’s acting so under Rule 38 (1) (b) of the Labour Court; for ambiguity, patent error or omission; then the Court can do a review. In our present case, the error sought to be clarified goes to the root of the case; it involves the declaration of parties’ rights.

vi. Now, coming back to the court’s order. Starting with the CBA. The respondent’s advocate have tried to indicate that he’s entitled to item 14, 18, 20, 23, 26 (a) (iii), 30 and 31 (iv) of the CBA. I have gone through the record, however I have failed to see any scintilla of evidence indicating that the respondent is entitled to leave pay, house allowance, education allowance, ie items 14, 18 and 20. These are not terminal benefits; It’s my view that there ought to have evidence to justify these claims. Otherwise; there’s no legal backing for that.

vii. The other cited items, items 23, 30 and 31 (iv) provides for early retirement and retirement benefits respectively. Our case is different; the respondent did not retire, his services were terminated. And; according to the decision; he did commit an offence; however the termination was found unlawful just for the fact that the employer didn’t observe fair termination procedure. So the reason for termination was valid. Hence, the reason for the end of the employment was not Retirement. Thus it was wrong for the respondent to treat it as retirement and do compute the terminal benefits as if he had retired.

viii. So, the respondent’s rights are the rights of the employee who’s unfairly terminated per the law; as upon looking


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at the CBA; no where did the parties set terms for the situation where an employee is unfairly terminated. Hence, as stated above; we are left with the law (Sheria Bunge).

ix. Now, what are the remedies for an employee who has been unfairly terminated? Under section 40(1) of the Act; the Court may order the employer;- (a) To reinstate... (b) To reengage.. (c ) To pay compensation of not less than twelve months. Now, the Court found that the respondent shouldn’t be either reinstated no re-engaged. Hence, the only remedy which remains, per the law, is compensation as shown in (c ) above.

x. It was stated that severance pay and the PPF Fund Pension were not yet paid by the employer. The PPF fund has its own procedures on how to access it. Hence this Court is not the proper forum. As for severance allowance; severance allowance is, per law, not payable to an employee who has committed a misconduct; see section 42 (3) (a) of the Act.

xi. Therefore, having discussed as I did, and for the aforestated reasons; I find that the application has merits and I am of the considered opinion that the remedy and reliefs for the unfair termination; as a result of procedural irregularities which the respondent is entitled is compensation under S.40 (1) (c ) of the Act .

xii. I therefore order that the applicant should pay the respondent 12 months’ salary as compensation. The rate be calculated as the salary was when termination was effected. So it is Tshs. 565,278/= x 12 months which


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equals to 6,783,336/= only so that’s the amount which is subject to execution. Consequently, the previous proceedings and orders relating to the execution in regard to this case are quashed and set aside, respectively.

67. Steere Ndaona Vs. Oriental Construction Co. Ltd., Lab. Div., MBY, Rev. No. 197 of 2010, 25/11/2011, S. C. Moshi, J.

The Applicant seeks revision of the Commission for Mediation and Arbitration (CMA) award dated 13/4/2010. Among the reasons as stipulated in the Applicant’s Affidavit were inter alia: that the dealing with the matter before the Commission, the Arbitrator failed to comply with the law by holding that the Respondent terminated the employment of the Applicant fairly; that the Arbitrator erred in law and in fact in ruling out that the Applicant was employed for six (6) months only; that the Arbitrator erred in law and in fact by failing to take into account the reasons for the termination of Applicant’s employment as provided by Respondent in the letter of termination; and that the Arbitration erred in law and in fact in ruling out that the Applicant is not entitled to compensation as he failed to prove on the balance of probability that the said termination occasioned inconveniences on his part.

Before the CMA, the arbitrator heard the evidence of both parties; part of the evidence is as in the above submissions. However, he went on to consider the terms of employment contract. He found that the employment contract per letter of employment it was for a specific period of 6 (six) months only; whereby the applicant was engaged on probation. So he, arbitrator concluded that the applicant was fairly terminated per the employment contract. The arbitrator also dismissed the applicant’s overtime claim as he hadn’t


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referred it to the CMA in Form No.1; hence it was a new issue.

Held:

i. I will start with the issue of the nature of employment contract; the respondent argument was that the applicant was fairly terminated in accordance with the contract of employment; as it was a specific time contract of 6 months. I have looked into the CMA proceedings. The letter of employment is dated 09/01/2009. The terms of employment are provided; one of them provides for probation period; and it is stated thus:- “Engaged under six month probation period”. I also asked the parties whether there was any other pending matter and they all said that there was no pending matter anywhere either before a Disciplinary Committee, CMA or any tribunal in respect of this matter. I thus ask my self if this court has the jurisdiction to entertain the same.

ii. Apart from allowing the said preliminary objections, it is worth noting that this court has no mandate to first, issue a permanent injunction even if there was a pending matter elsewhere. Secondly, lack of such a pending matter makes it worse for an injunction is usually a temporary one which holds up an act or comes in place to stop a process pending the complete determination of a certain matter. Lack of such a matter ousts the courts discretionary powers to grant such a prayer.

iii. So the six months provided there were the period of

probation; and not the length of the contract. The contract itself did not specify time limit. So the contract as it is a contract of unspecified period of time. S.14 (1)


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(a) of the Employment and Labour Relations Act, Act No. 6/2004, provides for that.

iv. This contract cannot be termed as that of specified period. Moreover specified period per the Act No. 6/2004 is for managerial cadres. In our present case, the applicant was employed as quarry operator. Therefore the respondent was required to treat the applicant as a probation term employee in accordance to Rules 10 of the Employment

and Labour Relations Act (Code of Good Practice), GN No. 42/2007.

v. If the employer thought that there was need to terminate the applicant; then he was duty bound to abide with Rule 10 (8). However the employer (respondent) did not do so. Therefore it was wrong for the employer to treat his termination as a redundancy. Even if it was a retrenchment; the procedure as provided by the law under S.38 of the Employment and Labour Relations Act, Act No. 6/2004 wasn’t followed.

vi. The applicant worked for the respondent for the period of six months; hence he’s entitled to be protected against unfair termination of employment; see S.35 of the Act; i.e. the Employment and Labour Relations Act.

vii. However he’s not entitled to severance allowance per section 42 of the Act as this, is payable to employees who have worked with the employer and has completed 12 months continuous service with an employer.

viii. Regarding overtime claim, as found by the arbitrator, these have to be claimed and evidence has to be adduced


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to that effect to prove the claim. I am of the same stand with the arbitrator that these were not among of the claims presented before the CMA.

ix. I therefore, basing on the aforesaid reasons find that the applicant is entitled to a remedy for unfair termination. In the circumstances of the case, I order that the respondent pay the applicant a compensation of 12 months salary per S.40 (1) (c ). Therefore the amount payable is Ths.

500,000/= (monthly salary) x 12 – 6,000,000/= (six million) only.

68. Gregory L. Ndanu Vs Fair Competition Commission, Lab. Div., DSM, Rev. No. 79 of 2011, 30/11/2011, S. A. N. Wambura, J.

This Application was brought under section 94(1)(f ) of Employment and Labour Relations Act, No. 6 of 2004; section 51 of the Labour Institutions Act No. 7 of 2004, Rule 28(1) and (2) of the Labour Rules, G.N. No. 106 of 2007 and any other enabling provision of the law praying for the court to grant a declaratory order that the unilateral variation of the terms and conditions of the Applicant’s contract by the Respondent is illegal and ineffectual. The Respondent filled a notice of preliminary objection against the Applicant’s notice of Application that, the affidavit in support of the application is fatally defective for not being verified as required by law; the court is being improperly moved through a notice of application instead of complaint; the notice of application is improperly and prematurely before the court having not passed through CMA as required under s. 86(1), 94(i)(a) and 86(7)(b) of the Employment and Labour Relations Act No. 6 of 2004; the application is based on wrong provision of law.


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Held:

i. In common law practice, affidavits seek to show a simple narration of facts which should not contain arguments, conclusion or prayers. For an affidavit to be rendered defective, the purported irregularity should go to the root of the crux of the parties’ case. The interest of the parties to the suit should not be prejudiced.

ii. I believe that, the mere omission of signing the verification clause by the applicants counsel did not prejudice the interests of the parties to the suit, and is curable. It is distinguishable from the case of SALIMA VUA FOUM

Vs. REGISTRAR OF COOPERATIVES & 3 OTHERS

(1995) TLR 75 as at least they have state in the verification clause what is believed to be true and the place where the same was verified. It is also dated. I thus dismiss this ground of the preliminary objection.

iii. It is undisputed, that the nature of applicant’s prayers suggests that the matter is a complaint. So the proper forum should have been filing it at the CMA and then to this court if need arises. Otherwise it ought to have been filed under the provisions of Rule 23(1) of the Labour Court Rules and not under Rule 28 (1) and (2) of the same.

iv. Assuming that the same is herein filed under the provisions of section 94(1) (f ) ousting the jurisdiction of CMA again it is still incompetent as it is not an issue of urgency on a pending matter but a complaint against unfair termination of one’s contract filed as an application. Rule 10 of the Labour Institutions (Mediation and Arbitration)


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Rules, GN 64/2007 categorically provides that in dealing with unfair termination disputes must be referred to the Commission for Mediation and Arbitration.

v. Now it should be noted that the spirit of section 51 of LIA is not to override any provision. One has to comply with the laid down procedures. If the matter is incompetently before the court, the provisions of section 51 cannot come into play to rescue the situation.

vi. I agree that the position of the law up to the mid nineties was that such irregularities were curable (see TAZARA

Vs. HALKINS (1971) LRT 6). By then the defect could be tolerated. However it is now settled law that non or wrong citation of specific provision of the law renders the application misconceived and incompetent. (See the case of EDWARD BACHWA & 3 OTHERS VS.

THE ATTORNEY GENERAL & ANOTHER, in Civil Application No. 128 of 2006, citing N.B.C. Vs.

SADRUDIN MEGHJI, Civil Application No. 20/1997. ALMAS IDDI F. MWINYI Vs. NBC & MRS MGEME

MBITA, Civil Application No. 88/1999 CITIBACNK

TANZANIA LIMITED VS. T.T.C.L. & 4 Others, Civil Application No. 64 of 2003 and NBC (1997) LTD Vs.

THOMAS K. CHACHA T/A IBORA – TIMBER

SUPPLY(T), MWANZA Civil Appl. No. 3/2000 to mention just a few. I have no reason to depart from the same as the applicant is represented by able Advocates and they ought to know better of this position.

vii. In the circumstances I accordingly allow the 2nd , 3rd and 4th preliminary objections and strike out the application from the court registry.


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69. Aloyce Assenga Vs. Moshi University College of Cooperative

and Business Studies (MUCCOBS), Lab. Div., DSM, Rev. No. 04 of 2010, 30/11/2011, S. A. N. Wambura, J.

This is an Application filed by the Applicant seeking revision of the award of the Commission for Mediation and Arbitration (CMA) which found out that Applicant was terminated due to gross dishonesty and insubordination. He prayed that the award be set aside due to the reasons spelled out in the statement of legal issues that: the award was wrongly procured as the Arbitrator only considered submission by the Respondent and never considered the evidence and submissions by the Applicant and that the Arbitrator failed to take into consideration matters which he ought to consider and consequently directed his mind on matters which he ought not to have considered thus occasioned injustice.

Now while perusing through the Court records I have noted that the application before me is incomplete as there is no proper application. This is because there is a mere notice of application, statement of legal issues and an affidavit. The provisions of Rule 24(1), (2) and (3) of the Labour Court Rules, 2007 provide for the filing of two different applications.

Held:

i. From the wording of these sub rules it is obvious that there has to be notice of an intention to file an application and the application itself which shall be supported by an affidavit. Now whereas each document has to contain certain issues in all documents one has to point out the reliefs sought. If it was intended to be one and the same document there would have been no reason of stating categorically what should appear in the two documents in


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the two sub rules.

ii. What we have in this matter is the notice of application, statement of legal issues and an affidavit which is not supporting any application for none has been so far filed. I cannot proceed with the notice of application as the proper application because it does not have the contents of the main application. Having no application filed along with the said affidavit, it is obvious that there is no legal application before the Court and should accordingly be dismissed.

iii. I would start with the issue of the legality of the decision of the Committee and the Board. It is said that the Committees were illegally formed as the committee was not properly constituted. It is in record that the Applicant was challenging the committee and though he had no powers to change the members the Management did so in conformity to the principle of natural justice. It was in these same meeting that he walked out he cannot therefore be heard to demand the right to be heard. If he was not satisfied then it is expected that he would have appealed to the Board against the Committees decision. He did not do so until the board confirmed the committees decision with some other orders.

iv. It is the Board’s decision which was challenged at CMA and in this Court. By then, the Respondent had in fact already executed the award and the Applicant had received the said payments implying that he had accepted the decision to be terminated. Can he now argue that he was unlawfully terminated? Can he now seek to be reinstated?


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v. On termination the Applicant could have refused to receive the said payments pending his appeal to CMA. Having accepted payments meant that the matter was more or less concluded. If you have been terminated you cannot be reinstated. It is only if some terminal benefits were not paid up, then that order can be implemented.

vi. It is in record that he was paid his terminal benefits. I have failed to note what he is now claiming. One cannot be reinstated on having received his terminal benefits if there any pending payments the same can be amicably settled. Else wise I find no merit in the application and accordingly dismiss it with cost.

70. Tanzania Union of Industrial and Commercial Workers

(TUICO) Vs. The Registrar of Organisations and Finance,

Industrial, Banking, Utilities, Commercial and Agro Processing

Industries Trade Union (FIBUKA), Lab. Div., DSM, Misc. Appl. No. 105 of 2010, 28/12/2011, R. M. Rweyemamu, J.

This is an application for leave to appeal this court decision’s dated 6/10/2010 to the Court of Appeal on point of law. That applicant and the 2nd respondent are employees’ trade unions herein conveniently referred to by their acronym TUICO and FIBUCA respectively. The 1st respondent is the office of the Registrar of Organizations (RO) established under section 43 (2) which falls under part VI of the Labour Institutions Act, 7/2004 (LIA) dealing with Labour Administration. The (RO) is empowered with responsibility for regulation and registration of trade unions, employers’ organisations or federation under part IV of the Employment and Labour Relations Act, No. 6/2007. In


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that capacity the RO makes a number of decisions and section 57 of the Act allows any person aggrieved by the decision of the RO under that Act to appeal to this court. It is in that background that TUICO filed Appeal No. 1 of 2009 against the RO’s decision in favour of the 2nd respondent FIBUKA. Together with the reply in opposition, the RO raised preliminary objection (PO) against the appeal on a number of grounds sustained by this court in its decision delivered on 6/10/2010. That is the decision sought to be appealed to the court of appeal on a point of law.

Held:

i. That both the Act, and LIA are relatively new pieces of legislation around which there is limited jurisprudence particularly as regards powers of the office of the RO and decide that this application raises important interrelated points of law which merit serious consideration by the Court of Appeal, among them; whether an appeal against the RO’s decision is a labour dispute or complaint; whether the office of the RO is part of government office or can sue and be sued in its own name; whether appealing the RO’s decision amounts to suing the RO; and whether the use of the term notify the AG excludes or means the same thing as joining the AG in a dispute or complaint the government.

ii. That in the resultant, using powers vested in this court under section 57 of LIA read together with Rule 54 of the LC rules, leave to the applicant to appeal the impugned decision to the Court of Appeal on point of law is granted.


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71. TASIWI Vs. SSB & Co. Ltd., Lab. Div., DSM, Lab. Disp. No. 04 of 2009, 30/12/2011, R. M. Rweyemamu, J.

The complainant TASIWI - a registered trade union, filed this dispute against the respondent, an employer entity, the nature of which was described in the referral form as; “refusal by the employer to allow applicant to exercise organizational rights” contrary to section 64 (1) of the Employment and Labour Relations Act, No. 6/2004. The dispute was first referred to the Commission for Mediation and Arbitration (CMA) for mediation as prescribed under section 64 (3) of the Act, and finally to this court after mediation failed.

I wish to point out at the outset that particulars of the claim in the referral form reflected by the issues framed and relief sought, as per Non settlement Order (NSO) however; indicate a mix up of causes of action and is not directly related to the stated nature of the claim which was mediated unsuccessfully by the CMA. The issues sought as per that NSO were that:- 3.(a) Whether the workers involved in the dispute have for a periods varying between two and ten years been the employees of the Respondent. (b) Whether the alleged workers are entitled to all rights and benefits as permanent employees. (c ) Whether the duties alleged to be performed by the said represented employees are performed by an Independent Contract one Nassoro Idrisa. (d) What reliefs are parties entitled thereto.

And the relief sought and the reflected nature of action in brackets were:- a. That the Respondent be ordered to recognize the members of the applicant as employees under permanent term of the employment (A

declaratory order) b. That the purported termination of the members of the applicant is wrongful unfair and illegal (A claim of unfair

termination) c. That the members of the applicant be paid their salaries from the date of termination (relief following on (b) above).


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d. Punitive damages against the Respondent as may be assessed by the Court for contravening the Employment and Labour Relations laws. e. Costs of the case be awarded to the members of the applicant.

But it was in view of the confusion pointed to above, which was inadvertently noted at the end of trial but before delivering judgment, that I requested parties representatives to file supplementary submissions to address me on; whether on the evidence on record the claim has been proved or disproved; whether there was a misjoinder of causes of action and consequences thereof; whether the issue of termination of employment was properly before the court; whether the relief sought is based on the pleaded cause of action and consequences of conclusions above.

Held:

i. There were no particulars stated and nor any evidence adduced at trial to prove the complainant’s claim that it was denied access to the respondent’s premises to exercise organizational rights. That is the claim which was properly filed in this court after failure of mediation at the CMA. Accordingly, the claim of denial of access was not proved and is dismissed.

ii. The claims relating to recognition of employees as permanent employees of the respondent and unfair termination of such employees were improperly joined with the claim relating to organizational rights and were not properly before the court. They are for that reason struck out.

iii. The issue of unfair termination has to commence at the CMA. In the interest of substantive justice, I grant 30 days


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extension of time from date of delivery of this decision or receipt of the same by the parties to any aggrieved party or the complainant if it obtains locus to sue, to refer the dispute to the CMA in the usual manner.

iv. I also give extension of time of 30 days from date of delivery of this decision or receipt of the same by the parties, for any aggrieved party to pursue the issue of declaration of the status of the alleged employees according to law.

72. Agness Protas Vs. Dar es Salaam and Sewarage Corporation

(DAWASCO), Lab. Div., DSM, Rev. No. 57 of 2011, 20/01/2012, S. C. Moshi, J.

The respondent raised a preliminary objection (PO) on point of law to the effect that: the application is defective for not having notice filed or served prior to filing the application; and that the application is time barred.

Held:

i. That it is common stand that the law, rule 26 (8) of the Labour Court Rules, GN 106/2007 mandates a party to file a notice; however as submitted by the applicant’s advocate these provisions i.e. rule 26 (8) (a) and (b) provide for the instance where the party wishes to amend his chamber application.

ii. That looking at the application, it is indicated that it’s filed under rule 27 (7) of the LC Rules. The provisions of rule 27 too makes it mandatory that, for a party who wishes his judgement reviewed should start by first filing a Notice. Hence even if it’s made under rule 27 (7), yet the need of Notice filing is mandatory.


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73. Suleiman Mrisho Sumay Vs Mint Master Security (T) Ltd., Lab. Div., DSM, Rev. No. 37 of 2010, 20/01/2012, S. C. Moshi, J.

The applicant seeks revision of the Commission for Mediation and Arbitration (CMA) award dated 6/1/2010. He requested the court to order that: the applicant be paid the remuneration of his arrears from May 2008 up to the day of judgment; the applicant be paid for the medical treatment costs he had incurred and that the respondent to allow the applicant to resume employment after such payments and be assigned to light duties. The grounds advanced in the affidavit inter alia stated that: that the applicant was employed by the respondent as security guard on 1st March 2006; that on 4th March he got an accident on service and sustained injuries on his right forelimb; that he attended the medical treatment at Muhimbili National Hospital Orthopaedics Institute (MOI); that he did not obtain proper medical treatment due to failure of the respondent to pay the medical treatments as the law demands; that he was the complainant in the Labour Dispute No. CMA/DSM/KIV/ILA/5681/08/342 against the respondent delivered on 6/1/2010 at the CMA; that the said judgment deprived his rights, as it was unfairly awarded by the CMA contrary to the law of the land; that the Hon. Arbitrator erred in law and facts for failure to realize that the respondent was responsible for the cost of medical expenses for the injuries sustained by the applicant on service and that the Hon. Arbitrator erred in law and facts for failure to recognise that the applicant was not in a position to resume employment because he had to attend physiotherapy per the advice of the physician.

Held:

i. That the CMA at page six of the award weighed both sides evidence and came to the conclusion that the ED


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was for two weeks as prescribed by the physician, not otherwise. I find this finding correct as the evidence is glaring overwhelming to the conclusion. So having given two weeks ED; with the doctor’s recommendation for light duty, the applicant was supposed to attend his place of work so the employer could assign him the light duty in the circumstances of the case. Its then that the applicant would have negotiated with his employer, how he could attend the physiotherapy clinic. Being prescribed to attend physiotherapy could not justify applicant’s absenteeism from duty.

ii. That from the facts of the case, it’s the applicant who terminated his services for not attending his office. There’s no proof that the respondent terminated his service. Therefore the applicant cannot be paid for services he did not render.

iii. That on medical treatment costs, the claim had to be shown in the referral form (F.1) the arbitrator draws issue to be decided from the opening statements, see rule 24 (1) of the Labour Institutions (Mediation and Arbitration Guidelines) GN No. 67/2007. Whereas the claim has to be presented through F.1 i.e. the referral form. If neither of the two i.e. the Form No. 1 nor Opening Statement doesn’t contain the claim then the arbitrator cannot entertain it.


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74. General Manager METL G.D. Estates Tukuyu Vs Jacob Chaula

& 71 Others, Lab. Div., MBY, Rev. No. 12 of 2010, 21/02/2012, S. A. N. Wambura, J.

Being aggrieved by the award of the Commission for Mediation and Arbitration (CMA) the applicant who is the General Manager METL GD Estates Tukuyu (herein referred as METL) has filed a chamber application for its revision under section 91 (1) (a) of the Employment and Labour Relations Act, No. 6/2004 praying for the orders that this court may be pleased to call, revise and set aside the award of the Commission for Mediation and Arbitration of Mbeya in a decision made on 19/11/2010 and any other reliefs this court may deem just to grant.

The facts of this matter go back to 2005 when the Tanzania Tea Estate (herein referred to as TTE) failed to run its business for whatever reasons. It entered into a Memorandum of Understanding (herein to be referred as MoU) with METL which was to pay its debt/liabilities including employees salary arrears while METL runs the business on trial. The employees were assured by METL that their contracts for employment would not be affected. They thus continued to work under the new management which paid them their dues accordingly. It was when the Estate was then sold to METL in April 2007 that the management refused to pay the respondents their salary arrears offering them good will payments instead. Those who accepted the same have continued to work with METL. The respondents who refused to accept the offer were locked in out in June 2008. It is alleged that it was because they did not have contracts of employment with the applicants and were thus not entitled to anything. Aggrieved the respondents filed a complaint at CMA whose award was in their favour. The applicants


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have now filed this application challenging the CMA’s award.

Held:

i. That it has been submitted that on 8/2/2006 there were announcements in the Guardian Newspaper that those with liabilities should register with the receiver manager. But one wonders how many respondents/employees could be able to buy or even understand the contents therein. If the notice was meant for the respondents then it should have also been stuck/posted at the notice board of the company’s premises.

ii. That moreover, the employees were safely covered by the MoU which was entered in 2005. There is no evidence that they were told that by such an announcement (if they were aware of it at all), the terms of the existing MoU would accordingly occasion changes or come to an end.

iii. That METL entered into a valid agreement with TTE. When they bought the estate, the MoU was in existence requiring METL to carry out certain liabilities. The applicants cannot allege that they were cheated or that they were ignorant or unaware of the existing MoU. They thus bought the same with the liabilities which they undertook to pay including the salary arrears of TTE employees.

iv. That the arbitrator was right in disregarding the announcements of the receiver manager who in fact had no authority over the property, and that TTE was sold to METL with the liabilities that had not been executed as agreed in the MoU.

v. That I believe this is a proper situation where the doctrine


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of legitimate expectation can properly be applied [Simon

Manyani Vs. IFM (1984) TLR 304 and Dar es Salaam

Baptist Sec. School Vs. Enock Ogala, Labour Rev. No. 53/2009]. This is because the respondents were promised and they were asked to continue working under the old contracts of employment and they did. The old contracts of employment were honoured with an addition of salary increase by the new management of METL.

vi. That again under the provisions of sections 14 and 15 (1) to (5) of the ELRA it was up to the applicant to provide and keep particulars of employees, then prove or disprove the same in court as provided for under section 15 (6) of the same.

vii. If applicants cannot reinstate the respondents then they should pay each respondent twelve (12) months salaries as compensation as provided for under section 40 (1) (c ) of the Employment and Labour Relations Act No. 6 of 2004.

viii. The applicants should also pay the respondents their salaries which they would be entitled to from the time of unlawful termination, that is August 2008 to the time of full payments.

ix. Since they were unlawfully terminated they are also entitled to all other terminal benefits as provided by the law.


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75. Mbeya Cement Company Limited Vs Leonard Mwakunja, Lab. Div., MBY, Rev. No. 20 of 2011, 21/02/2012, S. A. N. Wambura, J.

The applicant/employer has filed this application under the provisions of section 94 (1) (b) of the Employment and Labour Relations Act (ELRA) seeking revision of the award issued by the Commission for Mediation and Arbitration (CMA) for the reasons that the arbitrator acted in exercise of its jurisdiction illegally and with material irregularity leading to an injustice award. It was submitted by the applicant advocate that the arbitrator was wrong in failing to give a ruling within the prescribed 30 days and gave no reasons as to why he had delayed in delivering the award. He was therefore “functus officio”.

Held:

i. That it is true that the law has prescribed 30 days in which an arbitrator has to deliver his award and thereafter he becomes functus officio. But when there are good reasons that occasioned the delay in issuing the award then the delay can be tolerated. Nufaika Distributors Ltd. Vs.

Hawa d/o Chombo - TUICO Rev. No. 256/2008.

ii. That the reasons should be adduced within the prescribed 30 days and not at the collection of the award. The award could be handwritten and parties asked to come and collect the same after typing has been done. But writing the reason at the end of the award as I have noted in various awards, it could be cumbersome and a shield to misuse the same relief by delaying to deliver the awards by mere negligence.

iii. That leaving the awards at the reception of the Commission


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for Mediation and Arbitration is not a proper procedure as the same has to be read out to parties and it has to be recorded as to when it was issued and why it was delayed.

iv. That the procedures taken to terminate the respondent’s employment were not proper and contravened the provisions of rule 4 of Employment and Labour Relations Act (ELRA) (Code of Good Practice) and section 37 (2) of the ELRA. It is obvious that apart from alleging that the employee has caused gross negligence the employer has to prove that the misconduct was done by the employee and that the termination was fairly done.

Obita dicta: Now assuming that the procedure was properly complied with the law provides leniency sanction for first offenders under the provisions of rule 12 (2) of the Employment and Labour Relations Act (ELRA) (Code of Good Practice)

v. That even if there was misconduct on the part of the respondent, other disciplinary measures could have been taken against him other than termination which as stated was unfairly arrived at.

vi. That admittedly section 40 (1) (c) of ELRA provides for compensation for not less than twelve (12) months remuneration. Meaning the arbitrator can award more than that amount as that is the minimal amount. The same is justified by the provisions of section 40 (2) of ELRA which provides “that an order for compensation made under this section shall be in addition to and not in substitute for any other amount to which the employee may be entitle in terms of any law or agreement.


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vii. Since to date the employer has not reinstated the respondent then he is required to pay him the twelve (12) months’ salary as compensation in addition to other wages, dues and benefits from the date of unfair termination to the date of full payment. In other words the applicant should pay the respondent his full salary and other benefits as if he was executing his daily duties from the date of unfair termination which was in April, 2010 to the date of full payment (whenever that should be). It is so ruled.

76. Paul Lihamwika Vs. Cocacola Ltd., Lab. Div., DSM, Misc. Appl. No. 344 of 2009, 13/03/2012, S. A. N. Wambura, J.

The applicant Paulo Lihamwike has brought an application under rule 24 (1) (2) and (3) of the Labour Court Rules GN No. 106/2007, seeking to revise the award of the Commission for Mediation and Arbitration (CMA). The applicant’s advocate submitted that section 43 of the Employment and Labour Relations Act, No. 6/2004 was incorrectly interpreted by the respondent; that the arbitrator erred in holding that the new employer was responsible in repatriation of the applicant as section 43 of the Employment and Labour Relations Act, No. 6/2004 does not put that to be the responsibility on the part of the new employer; and that the CMA erred in holding that the applicant is not entitled to the 13th salary as he worked for the whole year of 2007.

Held:

i. That after going through the documents filed by counsels, I am of the view that the applicant voluntarily resigned from his employment as indicated in his letter of resignation


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addressed to the respondent dated 24/12/2007. He alleged he was terminating his employment because he got a new job.

ii. That voluntary termination cannot be said to be similar to that which is at the instance of the employer as it was held in the case of Katel Musyangi Vs. Cocacola Kwanza

Ltd., Rev. No. 248/2000.

iii. That when the applicant decided to issue a twenty four (24) hours notice he literally decided to forego all his terminal benefits.

iv. That I am at par with the decision in Musyangi’s case which followed the principle laid in section 3(f ) of the ELRA, Convention No. 58/84 which intended to protect the employers from paying terminal benefits to employees who decide to terminate their employment abruptly. When an employer terminates an employee he is expected to be ready and prepared to pay the employee but when an employee without any lawful cause decides to terminate his employment and more so for greener pastures he cannot be heard to claim any terminal benefits.

v. That the applicant is not entitled to anything.

Obiter dicta: If he wanted to receive the 13th salary he should have issued his notice in April when the same is said to be paid but as stated earlier he had foregone all his terminal benefits and this application lacks merit.


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77. Alliance One Tobacco Ltd., Vs. George Msingi, Lab. Div., MRGR, Rev. No. 285 of 2009, 23/03/2012, S. A. N. Wambura, J.

The applicants, Alliance One Tobacco being aggrieved by the award of the Commission for Mediation and Arbitration (herein after referred to as CMA) which was issued on 16/10/2009, has filed this revision under section 91 (1), (2) and (3) of the Employment and Labour Relations Act No. 6/2004 (to be referred to as ELRA) praying for the orders that: the court sets aside the award of the arbitrator dated 16/10/2009; stay of enforcement of the award pending the decision of this application; costs of this application; and any other order. The applicant was represented by Mr. Woiso Advocate and the respondent was represented by Dr. Kagirwa , Advocate..

Held:

i. That I have carefully gone through the proceedings and the award and noted that though Mr. Woiso bitterly submitted that it is not true that the evidence of RWI was hearsay, it is in the record that the evidence of RW1 who was the only witness for the applicants was hearsay as he personally stated so at pages 2 and 3 of the proceedings.

ii. That at page 6 of the proceedings the respondent’s witnesses stated that they did not hear any abuses uttered by the respondent though they heard him exchange words with the Director of Finance. That the Director’s voice was louder. It is true therefore that there was exchange of words but there is no proof of insubordination.

iii. That even where misconduct has been proved rule 12 (2) of Employment and Labour Relations Act (Code of Good


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Practice) Rules 2007 also cited by Mr. Woiso provides that for first offender an employee shall not justify termination unless it is proved that the misconduct is so serious that is makes a continued employment relationship intolerable.

iv. That as stated earlier, there is no proof of misconduct so the termination was in itself unlawful.

v. That as for the ground that though rule 13 of Employment and Labour Relations Act (Code of Good Practice) Rules 2007 provides for procedures for termination was adhered to but it was ignored by the arbitrator, I believe I do not have to labour much on that. Procedures laid down in rule 13 are more or less in respect of natural justice which the arbitrator explained extensively and found that they were not adhered to.

vi. That the provisions of section 37 (1) and (2) of ELRA categorically state that it shall be unlawful for an employer to terminate the employment of an employee unfairly. That a termination of an employee by an employer is unfair if the employer fails to prove that the reason for termination is valid and that the reason is a fair reason. According to subsection (4) of section 37 it is provided that in deciding whether a termination by an employer is fair, an employer, arbitrator or court shall take into account any Code of Good Practise published under section 99. These are what are usually found in rule 12 of ELRA (Code of Good Practice). According to section 39 of ELRA proof that termination was fair lies to the employer.

vii. That like the arbitrator I find that the procedures as laid down in both rules 4 and 13 of ELRA (Code of


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Good Practice) were not complied with at all and so the termination was not only unlawful but the reasons leading to termination were not proved.

viii. That the twelve (12) salary as compensation is provided under section 40 (1) (c) of the ELRA. It is the minimal pay as it states not less than 12 months. However this discretion should be used fairly and take into consideration the Guidelines in rule 32 (5) of the same.

ix. That unfortunately the law does not provide the maximum period which should be granted as compensation. However as held in Rev. No. 54/2008 between International

Medical & Technological University Vs. Eliwanga

Ngowi, damages should not be anticipatory i.e. award for future events which may or may not happen.

x. That subsection (3) of section 40 of ELRA provides that an order for compensation shall be in addition to and not a substitute for any amount to which the employee may be entitled in terms of any law or agreement.

xi. I note that the order for compensation was issued way back in 2009 and to date it has not been complied with. The respondent should therefore be paid his full salary as if he is still in his continuous employment, that is from the date of the unlawful termination as found by CMA in 2007 to the date of full payment of his terminal benefits.


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78. Anthony J. Chuwa Vs. Kilombero Sugar Co. Ltd., Lab. Div., DSM, Rev. No. 136 of 2006, 30/03/2012, S. C. Moshi, J.

The applicant filed the present application under section 40 (1) (a) of the Employment and Labour Relations Act, No. 6/2004 seeking the court to give proper interpretation of the judgement delivered on 18/3/2008. The judgement in question was in respect of Industrial Inquiry No. 136/2006. The dispute was referred to the court by the Labour Commissioner under section 41 of the Security of Employment Act, Cap 60 R.E. 2002. The issues which were to be considered by the court were thus; iwapo hatua za kumwachisha kazi mlalamikaji ni halali; iwapo mlalamikaji alifuata taratibu za kisheria katika kumwachisha kazi mlalamikaji; mambo yote yaliyojitokeza ambayo Mahakama yako itaona yanafaa kuchunguzwa ili kuwezesha uamuzi wa haki kutolewa. The court heard the case and it gave the decision on 18/3/2008.

I have considered both sides of submissions, the law and the record as a whole. However I have observed that there’s a point of law raised by the respondent which is worthy to be considered before the case is heard on merits. In regard to this, the respondent raised a point of law to the effect that the applicant in his submission submitted under section 40 (1) (a) and (3) of the Employment and

Labour Relations Act, 2004, that it’s not proper for the applicant to rely his terminal benefits under the provisions of the Employment and Labour Relations Act of 2004 while his termination was done under Security of Employment Act.

Held:

i. That the application ought to have been brought under the law which was applicable by then, as shown above, the dispute was referred to Industrial Court under the Security


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of Employment Act, section 40 (1) (a). So the law which ought to apply to consider the legality of entitlements is the Security of Employment Act, and the application ought to be made under the Industrial Court Act, Cap 60 R.E. 2002, where the court was empowered to make interpretation of the awards, under section 27.

ii. That it was not proper to move the court using section 40 of the Employment and Labour Relations Act, No. 6/2004. The Act, i.e. the Employment and Labour Relations Act, empowered this court to hear the case, which were pending in the Industrial Court under section 13 (3) (b) of 3rd schedule subject to conditions provided under section 13 (1) of the 3rd schedule of the Act, as amended by Act No. 2/2010.

79. Ahmed Ausi & 297 Others Vs. Kilimanjaro Hotels Co. Ltd. &

Consolidated Holdings Corporation, Lab. Div., DSM, Misc. Appl. No. 14 of 2011, 30/03/2012, S. C. Moshi, J.

The applicant seeks extension of time to file revision of an award which was given by the Deputy Chairman of the defunct Industrial Court on 27/8/2010 in relation to Labour Inquiry No. 117/2007. The present application was filed on 29/7/2011. According to the submissions and affidavit the applicants had prior filed another application for extension of time on 22/10/2010; the application which was struck out on 28/1/2011 on point of law. Unfortunately the said order wasn’t made part of record. The main reason for delay as asserted by applicant was that the applicants are 297 and are not stationed in Dar es Salaam, they had to meet and make final decision on the outcome of the case and decide how to pursue it.


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Hence, they had to meet with their representative to decide whether or not to prefer revision. Hence, the delay was not caused by either negligence or inaction but due to the stated sufficient cause.

Held:

i. That the Industrial Court Revision Proceedings Rules under rule 5 (2) did set the time limit within which the party could apply for revision against the Industrial Court of Tanzania; the time limit was 14 days since i.e. two weeks.

ii. That as submitted by the respondent’s advocate, there’s no proof that the applicants’ reason for delay was the alleged meeting. As, looking at applicants’ affidavit or submission, none do provide for necessary evidence that the applicants held such meeting.

iii. That the applicants had entrusted their case to a representative. Having a representative means that the representative is legally entrusted or authorised to act on their behalf. In the circumstances therefore, the applicants’ representative had all mandate to act for them; even if he needed to consult with the applicants, he had all the time before the expiry of the time limits set by the law. It is unbecoming, in ordinary circumstances to keep consulting for more than 2 (two) months; I find that the delay is unjustified.

iv. That the position of the law is that sufficient reason has to be shown or proved to the satisfaction of the court; so the court can exercise its discretion to extend time limits prescribed by the law. (Regional Manager Tanroads


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Kagera Vs. Rush Concrete Company Ltd., Civil Appl. No. 96/2007.

v. That the rules are put by law to regulate the conduct of the cases; so they could be conducted in orderly manner and come to just conclusions. Hence, that’s how they assist achievement of justice. So, there’s no room for abrogation of the Rules without having any good cause.

80. Jamana Printers Ltd. Vs. Rashid Yusuph Pande, Lab. Div., DSM, Rev. No. 267 of 2008, 30/03/2012, R.M. Rweyemamu J.

The applicant through Mr. Rattansi & Company Advocates under a certificate of urgency dated 22/9/2008, filed a Notice of Application made under rule 24 (2) and 28 (d) and (e) of the Labour Court Rules GN 106/2007 (LC Rules) together with an affidavit sworn by the administrative officer of the applicant, seeking revision of the Commission for Mediation and Arbitration (CMA) award dated 2/9/2008.

Held:

i. That the court’s powers to revise CMA arbitration awards is provided under section 91 (1) and (2) of the Employment and Labour Relations Act No. 6/2004 read together with rule 28 and 24 of the Labour Court Rules GN 106/2007. This is the legal position consistently taken by this court; see among others: Said Mohamed & 9 Others Vs. M/S

Mees Ltd., Revision No. 9/2011.

ii. It is now accepted legal principle, that improper or non citation or incomplete citation makes the application incompetent before the court and the court should strike


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off such application. See Chama cha Walimu Tanzania

Vs. AG, Civil Appl. No. 151/2008.

iii. That in this application the applicant cited only provisions of the LC Rules but failed to cite section 91 of the Act, which is the relevant statutory provision. That in law amounts to incomplete/non citation of the enabling provisions of the law.

iv. In all cases where a similar anomaly has been noted, this court has in practice, held that in the interest of substantive justice, the applicant be given extension of time of 14 days from the date of delivery of the ruling or after the applicant is served with the same to file a proper application. I make a similar order.

81. John Nassoro Mwanjila Vs. Shree Hindu Mandal Hospital, Lab. Div., DSM, Misc. Appl. No. 24 of 2011, 30/03/2012, S. C. Moshi, J.

The respondent raised preliminary objection (PO) to the effect that; the court does not have jurisdiction to entertain the application and that the application is defective for being incompetent and offending relevant provisions of law. The background of the PO is an application filed by the applicant, seeking the court to extend time within which he can file a revision of an award made on 10/12/2004 by the Industrial Court of Tanzania in Trade Dispute Enquiry No. 50/2003. The applicant filed the application for extension of time under the current laws i.e. Rules which are made under the Employment and Labour Relations Act, No. 6/2004. The application was preferred under rule 24 (1), (2) and (3); 43 (1); 55


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(1) and (2) and 56 (1) of the Labour Court Rules, GN 106/2007.

The respondent’s advocate argued that applican’s case was dismissed on substantive grounds on 10/12/2004. The applicant filed an application for interpretation; the same was dismissed on 17/5/2005. Dissatisfied, he filed an application before full bench of the Industrial Court on 15/10/2008, again, it was dismissed for being time barred. He was not satisfied. So, he filed an appeal before High Court full bench, here too, the appeal was dismissed on 14/7/2011.

The advocate argued further that, the Industrial Court ceased its operation on 5/1/2007. As such there’s no longer full bench of the Industrial Court where the appellant is seeking to go after being granted extension of time. That the current full bench which constitute under the current Labour Court only does so to deal with disputes and Revisions pending in court by 5/1/2007 as per

paragraph 13 (3) (a) of the 3rd schedule of the Employment and

Labour Relations Act amended by the written laws (Miscellaneous

Amendment) No.2 Act, 2010, Finally the advocate stated that, the court is sitting as High Court Labour Division, hence is not mandated to deal with Industrial Court matters; Secondly, the applicant’s application was not pending in court as per the law, where he could have lodged application for extension if there would have been full bench as per section 13(3) (a) of the cited provision. The applicant argued further that, under the current Labour Laws there’s no room for Preliminary Objection. The case of Jonathan

Loilangwaki Eliahu and Managing Director of SDV Tanzania, Lab. Complaint NO. 11/2007, applies in this respect.


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Held:

i. First, I have considered the cited case of Loilangwaki because points of laws, such as matters of jurisdiction has to be determined. The same may be raised at any time when it comes to the knowledge of the parties or the court suo motto. Also where the Labour Court is silent then the Rules of the Civil Procedure Act may be applied. So, on the strength I do find that the PO can also be raised the way it was done in the present case.

ii. Coming back to the issue of jurisdiction. The position of the case; it’s apparent that the revision before the industrial court full bench was dismissed for being time barred on 15/10/2008. The applicant didn’t seek extension of time instead he appealed to the High Court full bench challenging the award. The High Court too, did not determine the case on merits; however it upheld the decision of the Industrial Court that the application was out of time and was filed without leave of the court.

iii. Therefore, having this decision it is evidently clear that what ought to be done by the applicant was to seek leave for extension of time before the defunct Industrial Court full bench. The jurisdiction of hearing disputes which were pending before that court is now bestowed upon a panel of three judges of the Labour Court; per the cited section 13 (3) (a) of the 3rd schedule of the Employment and Labour Relations Act as was amended by the Written Laws (Miscellaneous Amendments) Act No.2 of 2010.

iv. Though application was not yet filed before the Industrial Court as per amendment, yet the main case which is subject


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of the application was already filed in court i.e. Industrial Court and the process ended on 14/7/2011; the decision was on points of law; hence the revision itself is not yet determined. Therefore since it was filed in the Industrial Court, any application raising there from has to be in accordance with the jurisdiction as provided in the cited 13th schedule. On the aforestated reasons, therefore, I find that the application was wrongly preferred. I accordingly dismiss it preliminarily.

82. Julius Rutabanja Vs. JSI Research & Training Institute Inc., Lab. Div., DSM, Rev. No. 49 of 2011, 30/03/2012, S. A. N. Wambura, J.

This ruling is pursuant to a preliminary objection raised by the respondent through his advocate, Mr. Nuhu who submitted that the application is incompetent for non citation of the proper enabling provision of the law. He argued that the applicant cited section 91 of the Employment and Labour Relations Act, No. 6/2004 (ELRA) as well as rule 26 (1) and 28 (1) of the Labour Court Rules. That it was improper as the applicant has failed to cite the proper subsection which is section 94 (1) (b) of ELRA. That whoever wishes to move the court has to cite section 94 (1) (b) which is the enabling provision to move the Labour Court. By citing section 94 of the ELRA while the same has many subsections, the applicant had failed to indicate the proper subsection. That the applicant ought have cited subsection (1) or (2) (a) or (b) in order to move the court. In citing rule 28 the applicant has cited rule 28 (1) which is not enough because rule 28 has a lot of provisions for revision, hence made the application to be incompetent and should


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be struck out.

Held:

i. That after going through the submissions of the parties, I believe that it is now settled law that the one who is aggrieved by the decision of the Commission has to properly move the Labour Court under section 91 (1) (a) or (b) of the Employment and Labour Relations Act read together with rule 24 (1) and rule 28 (1) of the Labour Court Rules.

ii. That it is now settled law that non or wrong citation of specific provision of the law, section, subsection or paragraph renders the application misconceived and incompetent before the court.

iii. In the case of Chama cha Walimu Tanzania Vs. AG,

Civil Application 151/2008 the court clearly stated that a person wishing the Labour Court to review or revise an arbitrator’s award has to move the Court under section of 91(1) of the Act. The same was also held in the case of Tanzania Telecommunication Co. Ltd Vs. Justus

Tihairwa, Labour Revision No.203 of 2010, whereby the court observed that despite of conflicting stance and position taken by the court, most applications for revisions are now moved into court by citing section 91 of the Act, with Rules 28 and 24 of the Labour Court Rules, and depending on special circumstances, other enabling provisions. Thus it is section 91(1) which actually provides for the jurisdiction of the Labour Court to make revision of the arbitrator’s award.


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iv. As for the issue of technicalities, it was the court’s ruling in the case of MANAGING DIRECTOR TANZANIA

RAILWAY LTD Vs. FRANK S. MNGURUTHAH, Revision No. 338/2009 that and I quote:- “The omission in citing the proper provision of the rule relating to a reference and worse still the error in citing a wrong and in applicable rule in support of the application is not in our view, a technicality failing within the scope and purview of Article 107 A (2) (e) of the Constitution. It is a matter which goes

to the very root of the matter. We reject (the) contention

that the error was technical”.

83. Makongo Secondary School Vs. Clement Kyando, Lab. Div., DSM, Misc. Appl. No. 10 of 2011, 30/03/2012, S. C. Moshi, J.

The applicant seeks extension of time to lodge an application for revision out of time. The applicant among other things submitted that, he failed to lodge the application in time prescribed by law because he could not pursue the matter without any legal assistance and that the award was entered on a day unknown to the applicant and a copy of the award was served late and a few days later, he was served with summons for execution. He too, submitted that the award in question contains several irregularities. His witness didn’t testify; the case proceeded ex-parte; which he calls for court intervention.

Held:

i. That considering the submissions, it is apparent that the applicant has neither stated the date within which he was served with the copy of the award. Also, it is true


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that they did not even annex a copy of the award. In the circumstances the court has no way of ascertaining the specific date which the award was procured nor the date on which the same was served upon the applicant.

ii. That the fact that he was seeking legal aid; in the circumstances of this case; as indicated above cannot amount to good reason; as I have reasoned the applicant has failed to show that what he alleges, real took place, i.e. the allegation that the award was served late to him. The applicant ought to give proof of his assertion.

iii. That I find that the cited cases of The Principal Scretary,

Ministry of Defence and National Service Vs. Duram

P. Valambia (1992) TLR 387 (CA) and Kalunga and

Company, Advocates Vs. National Bank of Commerce

Limited (2006) TLR 235 (CA) are distinguishable in the present case. In this case there is no point of law or illegality respectively, which have been shown.

84. Simba Steel Limited Vs. William Geofrey & 4 Others, Lab. Div., DSM, Rev. No. 30 of 2011, 30/03/2012, S. C. Moshi, J.

This case was due for hearing on 29/11/2011. The applicant through her advocate, Mr. Mahenge requested the court to argue the case by way of written submission. The court granted the prayer, hence, the written submissions filling was supposed to be finalised by 5/1/2011. The schedule for filing the submissions was thus: written submission by the applicant should be filed by 14/12/2011; respondent’s submission should be filed by 28/12/2011; rejoinder if any, should be filed by 5/1/2011 and ruling on notice. That


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was the schedule as ordered by the court. The applicant did not comply with the order. Instead, he on 28/12/2011 wrote to the registrar requesting for extension to file the submissions. Then, the advocate appeared before the registrar on 30/12/2011. The registrar heard him ex-parte on the request to extend time to file written submissions; whereas the registrar granted the prayer and fixed other dates for filing the submissions.

Held:

i. That the present matter is an application for revision of Commission for Mediation and Arbitration award. The application is not one of the causes which the registrar is empowered to hear. Hence, the registrar ought to have referred the matter to the judge for such order.

ii. That since the registrar has no jurisdiction to hear the case, he/she therefore has no jurisdiction to order for extension of time nor for filing of written submission.

iii. That the effect of failure to file written submission as ordered by the court is tantamount to failure to prosecute ones case. In this case, the applicant was ordered to file his written submission on 14/12/2011. He didn’t do so, instead, he wrote the letter informing the court of the delay to file the submission and requesting for extension of time on 28/12/2011; and appeared before the registrar on 30/12/2011. Therefore, by the time he wrote to the court he had already defaulted court’s order.

iv. That the registrar’s orders are null and void as he lacks jurisdiction on the matter from the beginning.


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85. Ezra Timothy Kanga Vs. Group 7 PTY Ltd., Lab. Div., DSM, Rev. No. 203 of 2009, 20/04/2013, S. A. N. Wambura, J.

Being aggrieved by the award of CMA the applicant on Ezra Timoth Kanga has filed an application for its revision under section 91 (i) (b) 21 (b) 4 (a) (b) of the Employment and Labour Relations Act and under rule 28 (1) (2) together with rule 43 (1) of the Labour Court Rules of 2007. The applicant’s advocate submitted that the applicant was unfairly terminated by pointing out that the same was awarded as compensation which was not prayed and the applicant has not paid compensation amounting to Tshs. 12,840,000/= as stated by the respondent in the counter affidavit. It was his argument that this court has to look into whether it was proper for the arbitrator to award compensation which was not prayed. He further submitted that the court has to rule if it was proper for the arbitrator to state that the applicant’s prayer was unknown and asking whether compensation is the only remedy for unfair termination. He argued further that although the termination was unfair could the arbitrator issue an award suo motto which is contrary to the referral Form No. 1 as the applicant prayed for reinstatement and payment of his rights which were withheld. Finally, he submitted that the arbitrator used rule 32 (2) (b) and 4 (2) of the Labour Court Rules of 2007 which allowed him to issue compensation. However, the rule does not give him the said powers.

Held:

i. That after considering the submissions of both parties and the evidence on record I am of the view that there is no proof that the applicant absconded after being acquitted of the criminal case. He was unlawfully terminated/dismissed


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as he was acquitted of the criminal charge and no appeal preferred.

ii. That I also believe that the arbitrator has powers to order any relief which he finds just and fit to grant even if the same was not referred to the form. This is in accordance with rule 32 (1) of the Labour Institutions Act No. 7/2004 which provides that the arbitrator has powers to order the employer to be reinstated, reengage the employee or to pay compensation to the employee. This can be read together with section 40 (1) (c) of the ELRA which provides for compensation of not less than 12 months remuneration, that if an arbitrator or labour court finds a termination is unfair the arbitrator of court may order the employer to pay compensation to the employee of not less that twelve months remuneration.

iii. That since the applicant was orally dismissed he should be reinstated failure to which he should be paid his terminal benefits as well as compensation. However, that once it has been proved that there was unfair termination, the arbitrator has to award the applicant all his terminal benefits as per section 40 (1) (a) of the Employment and Labour Relations Act. The applicant should accordingly be paid compensation and other dues for unfair termination.

iv. That I am of the view that CMA was wrong to state that the applicant’s prayer was unknown. This is because to initiate the dispute one has to fill in the referral form praying for the reliefs to be granted as provided for under section 86 (1) of the Employment and Labour Relations Act, No. 6/2004


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86. Tanzania Insurance Regulatory Authority Vs. Yusufu Ali Laiza, Lab. Div., DSM, Rev. No. 304 of 2010, 20/04/2012, S. C. Moshi, J.

The Commission for Mediation and Arbitration (CMA) restored a dispute between the parties which according to the CMA was pending before the Conciliation Board. The case according to the parties was being handled in accordance with the Security of Employment Act i.e. the repealed law. The record shows that the present applicant had raised objection to the complaint on the grounds that the matter was finally determined by the Conciliation Board, the time limitation and jurisdiction. Hence it could not be determined by the CMA. However the CMA found that the matter was not determined on merits but it was dismissed for non-appearance of the applicant, who’s herein the respondent. So the CMA ruled out that it had powers to entertain the case by virtue of section 13 (1) & (5) of Written Laws Miscellaneous Amendment Act No. 2/2010. The cited Act amends paragraph 13 of the 3rd Schedule to the Employment and Labour Relations Act, No. 6/2004.

Held:

i. That from submissions, there is no dispute that the parties had a dispute which was referred to the Conciliation Board. It is also common ground that the dispute in question was preliminarily determined; this is according to the letter; which was written by the Regional Labour Officer to the parties. However, it is apparent that the Conciliation Board proceedings which culminated to the dismissal order was not made part of the CMA record, to assist the CMA to make rational findings to see whether he could exercise his


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discretion to restore the case. The two letters that of the applicant and that of Labour Officer could not take place of Conciliation proceedings.

ii. That regarding the jurisdiction of the CMA; according to the cited section paragraph 13 of the amended 3rd schedule of the Employment and Labour Relations Act, No. 6/2004; Act No. 2/2010; all those cases ought to be referred to the Commission by the Labour Commissioner but in this case, it was referred through complainants letter, which was no wonder, may have been the cause for not forwarding the record to the CMA.

iii. That for the CMA to have a founded decision, it had to have the Conciliation Board record; entertaining the case without such record, was improper.

87. Hemed Omary Kimwaga Vs. SBC Tanzania Ltd., Lab. Div., DSM, Misc. Appl. No. 75 of 2011, 24/04/2012, S. A. N. Wambura, J.

This ruling is in respect of review of the decision of the Deputy Registrar who was executing the decision reached in revision No. 142/2009 by Hon. Rweyemamu. The applicant who appeared in person prayed that instead of being reinstated he be compensated for unfair termination. On the other hand Mr. Koyugi advocate who appeared for the respondent resisted the application.

Held:

i. That after going through the submissions of both parties, I have noted that in both the court’s order and CMA’s award, the respondent was ordered to reinstate the applicant without losing his benefits as stated at page 8 of the ruling


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which I quote, the import of the order for reinstatement without loss of remuneration to be paid in terms of section 40 (1) (a) which remain uncontested...’’

ii. That I thus agree with the Deputy Registrar that since both the Labour Court and the Commission ordered for reinstatement of the applicant and, there is evidence that the respondent is willing to reinstate the applicant then he could not order compensation as that would amount to review of the said order.

iii. I accordingly dismiss the application for want of merit and order the respondents to reinstate and pay the applicant all his benefits as it was ordered by the Court and CMA without any other condition. Had the applicant been aggrieved by the courts order he should have filed an appeal but not proceed to execute an order which is not in existence.

88. PSRC/CHC & Mbarali Rice Farms Vs Rajabu Athuman &

Others, Lab. Div., DSM, Misc. Appl. No. 12 of 2011, 25/05/2012, S. C. Moshi, J.

This is an application for extension of time to file revision of the Industrial Court of Tanzania (ICT) award procured by Deputy Chairman on 15/12/2009. The application is brought under section 14 (1) of the Law of Limitation Act, Cap 89 R.E. 2002 and section 13 of the 3rd schedule of the Employment and Labour Relations Act as amended by the Written Laws (Misc. Amendment) No. 2, Act No. 11 of 2010 and section 29 of the Industrial Court Act, Cap 60 R.E. 2002. The prayers are thus: Kwamba Mahakama


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hii tukufu iridhie kuongeza muda (extension of time) kwa mleta maombi kuwasilisha maombi ya marejeo na Nafuu nyingine zozote za kisheria Mahakama hii itazoona ni vema na haki kutoa. The reason for not applying for revision within 14 days as advanced by the applicants is that the court did not supply them with the copy of judgment in time.

Held:

i. The main reason for the delay is the fact that the copy of judgement was served late upon the applicant. To substantiate that, the applicant attached a ‘photocopy’ of a letter which he is trying to show that the delay was not of his fault. The letter was challenged; as to its authenticity by the respondent’s advocate. I expected that this being the position the applicant would produce the original copy of the letter when he filed his written submission. However, he did not d so.

ii. In the circumstances; the court cannot rely on secondary evidence where a party has not made up efforts to explain to the court why the court should accept secondary evidence instead of Primary evidence. As, submitted by the respondent’s advocate, there’s doubt as to the authenticity of the said letter. The doubt would be cleared if the original document was produced for inspection by the court.

iii. Apart from that, there ought to be evidence to show the date when the copy of judgement was served upon the applicant. Neither in the affidavit nor in the submission, is the date of service shown. I find that the whole scenario indicates negligence on the part of the applicant’s advocate;


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which is lack of diligence on the part of the applicant. Therefore the circumstances of cited case of Saida Vs. Said

Mohamed (1989) TLR, 206 is distinguishable from the present case.

iv. Again, there’s a point of law pointed out by the applicant, that the applicant was re-established by law. In relation to this, he cited the case of Consolidated Holding

Corporation v. Ramadhani Ndunda & 65 Others,

Labour Rev. No. 21 of 2010. That if the application will be dismissed then, there will be no room to substitute the applicant and bring the consolidated holding on board. What if the Revision was not intended? I am of a diverse view from what was held in the above cited Lab. Rev.

21/2010.

v. The corporation was re-established by an Act of parliament. Hence, there’s no dispute that the CHC took over the liabilities of PRSRC. Therefore though the judgement was already entered, the Decree Holder can always obtain necessary orders before the court. I therefore, basing on the aforesaid, do find that the applicant has failed to advance sufficient reasons to support the application.

89. Sosthenes Muyambo & 24 Others Vs V. I. Tree Planting

Foundation, Lab. Div., SHY, Rev. No. 62 of 2010, 07/06/2012, S. A. N. Wambura, J.

This is an application for Revision brought by way of notice of application and chamber summons under rule 24 (2); 28 and 56 (1) of the Labour Court Rules of 2007 and section 91 of the


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Employment and Labour Relations Act No. 6/2004 together with an affidavit sworn by one Sosthenes Muyambo. The applicant, Sosthenes Muyambo and 24 others seek revision of the award of the Commission for Mediation and Arbitration (CMA) dated 12/2/2010 on the ground that the proceedings were not adhered to and thus were not granted any rights which they prayed to be granted.

Held:

i. That this matter was brought under rule 24, 28 and 56 (1) of the Labour Court Rules and section 91 of the Employment and Labour Relations Act. That the application is incompetent due to improper citation of the specific provisions of the law.

ii. That it is now settled law that non or wrong citation of a specific provision of the law, section, subsection or paragraph renders the application misconceived and incompetent before the court. (Morogoro Water Supply

& Sewerage Authority Vs. Issa Bawa Singano, Rev. No. 75/2010; Edward Bachwa & 30 Others Vs. The

Attorney General & Another, Civil Application No. 128/2006, NBC Vs. Sadrudin Meghji, Civil Application No. 20/1997; Citibank Tanzania Limited Vs. TTCL

& 4 Others, Civil Application No. 64/2003; Chama

Cha Walimu Tanzania Vs. AG., Civil Application No. 151/2008 and the case of Tanzania Telecommunications

Co. Ltd. Vs. Justus Tihairwa, Rev. No. 203/2010

iii. That in the circumstances, I find that his application is incompetent before the court and accordingly strike it out for non citation of the proper provisions of the law. All the submissions are thus a nullity.


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90. Tanzania Telecommunications Company Ltd. Vs Bwire

Nyamwero, Lab. Div., MSM, Rev. No. 01 of 2012, 07/06/2012, S. A. N. Wambura, J.

This is an application for revision brought under the provisions of section 91 (1) (a), (2) (b), (3) and section 94 (1) (b) (i), (ii), (d) and (e) of the Employment and Labour Relations Act, No. 6/2004 and rule 24 (1) and rule 28 (9) (c) and (e) of the Labour Court Rules GN No. 106/2007 by the applicant Tanzania Telecommunications Company Limited supported by an affidavit sworn by one Lawrence M. Thobias praying that; this court be pleased to revise and set aside the award of Commission for Mediation and Arbitration (CMA), and cost for this application and any other order.

At the hearing the applicant was represented by one Ms. Magogo while the respondent appeared in person. Mr. Bwire submitted that, though the respondent was at the liberty to refile the matter after the court’s ruling, but since they had filed an application which was struck out, then they ought to have filed an application praying for extension of time to file an application out of time as by then, time had elapsed.

It was Ms. Magogo’s response that the earlier application was filed in time but was struck out. The court ordered that they were at liberty to refile the same and that is what they have done and so the application is in time having been filed 14 days after the said order was issued. In reply to that Mr. Bwire argued that it is true that they were given an opportunity to refile the same but they also had to comply with the law since they were by then time barred. Now the issues to be determined are two, the first issue is whether the application has been filed out of time and second is whether the application is properly filed by way of notice of application


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supported by an affidavit without a chamber summons.

Held:

i. As for the first issue there is no dispute that the application is out of time as the applicant was in a position to seek leave of the court to refile the same. It is obvious that when the order of the court was delivered the refilling of the application even on the same day was automatically out of time.

ii. The order of the court stated that the applicant was at liberty to refile the said application if they were still interested in the matter. This does not mean that the applicant was automatically granted extension of time to refile the application even if it was out of time. At most the counsel could have made an oral application praying for extension of time but did not do so.

iii. In the case of TANZANIA FISH PROCESSOR

LIMITED V. CHRISTOPHER LECHANGULA Civil Appeal No. 161/1994 ( Mwanza Sub Registry unreported), the court held that “limitation of time is a material point in the speedy administration for justice, limitation is there to ensure that a party does not come to court as and when he choose” When the matter was struck out it meant that though it was allegedly filed in time, basically there was nothing before the court. Thus by the time the same was struck out the statutory six weeks had already lapsed and the applicants had to seek leave to refile the same out of time. I accordingly uphold the preliminary objection and strike out the same.


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iv. The second issue is whether the court can suo motto look in the application if it is properly before the court on being filed by a notice of application supported by an affidavit. It is true that there are conflicting positions concerning the issue of the procedure to be followed as it had been discussed in a number of cases decided by this court.

v. In the case of TTCL Vs. JUSTUS THAIRWA Rev. No. 203/2010 where the court quoted part of reasoning in the decision of TRAWU Vs. ROBERT KORINAKO, Rev. No, 109/2008 which states and I quote. “The 1st position” is that the Labour Court Rules do not provide for a procedure to be followed in filling an application for revision under Rule 28, and therefore that the said void (Lucan) can be filed by adopting mutatis mutandis, the procedure provided for review under rule 26 of the Rules, which though a different category, are put together under the same part of the rules”.

vi. That is the reasoning adopted by the Hon. Mandia, J. as he then was in COCACOLA KWANZA LTD Vs.

EMMANUEL MOLLEL, Application No.22/2008 and followed by Hon. Moshi, J in PLY AND PAENL (T) LTD

TANGA Vs. HAMED KASSIM, Labour Revision No. 286 of 2008, and in the decision of SAID MOHAMED

& OTHERS V. MS. MEES LIMITED Revision No.9 of 2011.

vii. However, let me just point out that though an application can be properly filed by virtue of section 24(2) of the Labour Court Rules but I believe that is for purposes of a notice which one may be issued before filing an application. One may later decide to file an application for


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review or due to any reason abandon the idea all together. In the circumstances if one decides to file an application, it means that only an affidavit will thus have be filed in addition to the notice.

viii. It is my belief that a proper application for revision

is supposed to comply with the terms of filing any

application and as stated in Rule (1) and (2) of the

Labour Court Rules. I find it improper to file a notice and hanging affidavit without a chamber summons which in essence carries the parties’ prayers and states the enabling provisions for such prayers.

91. Mwango Shaibu & 7 Others Vs. Superdoll Trailer Manufacturers

(T) Ltd., Lab. Div., DSM, Rev. No. 330 of 2010, 20/06/2012, S. A. N. Wambura, J.

The applicant seeks revision of the arbitration award procured by the Commission for Mediation and Arbitration (CMA) dated 01/12/2010. In response, the respondent filed a counter affidavit and a notice of preliminary objection on the grounds that: the application is incurably defective for failure to cite a specific subsection under which it was made; that the application for revision in as much as it is not an interlocutory application or an application incidental to, or a pending proceeding has been wrongly preferred by chamber summons contrary to the provisions of rule 11 (a) (b) and (c) of the Labour Court Rules 2007 GN No. 106/2007; and that the application is improperly before the court for want of representative capacity authority by Mr. Mwango Shaibu to represent the 7 other applicants whose names have not been disclosed.


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Held:

i. That after considering parties submissions, I find that the preliminary objections raised have merit. That the application for revision is incompetent for wrong citation of the law, and want of notice for representation.

ii. That the proper procedure for accessing the court for revision was provided by the Court of Appeal in the case of Chama Cha Walimu Tanzania Vs. Attorney General, Civ. Appl. No. 151/2008 where the court held that, a person wishing the Labour Court to review or revise an arbitrator’s .... has to move the court under section 91 (1) of the Employment and Labour Relations Act read together with rule 28 of the Labour Court Rules.

iii. That there is no settled position of the procedure on how to file an application for revision. However, I am of the view that any application should be filed by way of chamber summons supported by an affidavit.

iv. That in the case of Tanzania Telecommunications

Company Ltd. Vs. Bwire Nyamwero, Rev. No. 01/2012, I stated that though an application can be properly filed by virtue of section 24 (2) of the Labour Court Rules, I believe that a proper application for revision is supposed to comply with the terms of filing any application and as stated in rule 26 (1) and (2) of the Labour Court Rules. This is because a notice is filed to notify the other party of an intention to file a revision and one may decide against the idea as it is not in itself an application for revision.

v. That it is in the chamber summons that one states the


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law and prayers one wishes to be granted. As such I find nothing wrong in filing a chamber summons. See Cocacola

Kwanza Vs. Emmanuel Mollel, Appl. No. 22/2008.

92. Rashid Benjamin and 6 Others Vs. Transcargo Ltd., Lab. Div., DSM, Rev. No. 59 of 2011, 06/07/2012, S. A. N. Wambura, J.

This application for revision was brought by way of a notice of application and chamber summons under section 91 (1) and 94 (1) of the Employment and Labour Relations Act, No. 6/2004 and rule 24 (1) and 28 (1) of the Labour Court Rules of 2007 supported with an affidavit sworn by one Anifa Kapinga. The counter affidavit of one Roma Maginga was filed in reply. Miss Anifa, submitted that the arbitrator’s award failed to consider that the procedures for retrenchment were not adhered to; that the notice was issued to employees directly, while there was a trade union representing the employees; that there was no retrenchment agreement lodged by the respondent at the CMA so as to effect the retrenchment exercise; that the process of hearing of the dispute at the CMA was both substantively and procedurally improper; that in the award only procedurally matters/issues were discussed and substantive matters were left out; that the respondents were required to be consulted prior to retrenchment on the reasons for the intended retrenchment and that by not doing so, it led to miscarriage of justice.

Held:

i. That after going through the submissions of both parties and the proceedings of CMA, I am of the view that the arbitrator was wrong in finding out that consultation between the management and the employees was proper.


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ii. That section 38 (1) of the ELRA provides that in case of retrenchment the employer shall consult or give notice to the trade union recognised, or any trade union with members in work place.

iii. That it is my view that there was no proof of inexistence of registered trade union. In CMA’s record exhibits ‘C’ and ‘E’ show deduction of registered trade union dues from the employees’ wages. If the few witnesses were not from TUICO members, that did not mean that there was no trade union at the work place.

iv. That for that reason, I find that the arbitrator’s award was irregularly found, thus CMA’s proceedings including the award and other orders be accordingly quashed, order the matter to be returned to CMA and be heard by another arbitrator.

93. George Japhet Kiboko & 31 Others Vs. Kobil Tanzania Limited,

Lab. Div., DSM, Misc. Appl. No. 78 of 2012, 11/07/2012, S. A. N. Wambura, J.

This ruling is in respect of various preliminary objections raised by the respondents against an application filed by the applicants under a certificate of urgency praying for an interim order to restrain the respondents from being involved in the intended restructuring to the effect that; there is no labour dispute between the parties; that there is no proper representative suit; that the complaint does not fall under the ambit of a labour dispute; that the applicants are not privy to any sale of shares; that the complaint is speculative and has been made in vain; that the intended transfer of shares between


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Kenobil Limited and a third party does not affect the contracts of employment of the applicants and thus prayed that the application be accordingly struck out.

Held:

i. I find it worth at this juncture to explain what constitutes or encompasses a preliminary injunction. In doing so I shall rely on case law as we have various cases which have defined what is meant or expected in a preliminary objection.

ii. In the case of MUKISA BISCUT MANUFACTURING

CO. LTD VS. WEST AND DISTRIBUTORS LTD

(1969) EA 696 and OTHERS [2006] TLR 351 it was held that in our jurisdiction, the expression ‘preliminary objection’ has been used to refer to objection to the jurisdiction of the court. It contains a point of law which if argued as a preliminary point, may dispose of the suit. It cannot be based on unascertained factual matters. That is, if sustained a preliminary objection should be capable of disposing the case as was also held in the case of COTWU(T) OTTU UNION and ANOTHER VS.

HON. IDDI SIMBA, MINISTER OF INDUSTRIES

and TRADE and OTHERS. [2002] TLR 88. The preliminary objections raised in these three matters were not sustained as they were all based on factual matters.

iii. It is not in dispute that the main application in this matter is pending before The Commissioner for Mediation and Arbitration (CMA) at Temeke, thus the issue before me is not on the merits of the case. However, before us, all grounds except (b) are issues which need to be proved


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by adducing evidence. In the circumstances they do not fall under issues that can be determined by preliminary objections. I thus agree with Mr. Rwechungura that the same are prematurely urged in this matter and fail to stand. They are accordingly dismissed.

iv. Representative suits are governed by the provisions of Rule 43(1) of the Labour Court Rules, GN 106/2007. According to this provision the addressee of the notice of representation is the Registrar of the Labour Court and not the Employer as done by the applicants. Moreover, both parties have been represented by Counsels in court. It would thus be expected that the counsels would have filed notices notifying the Registrar that they are representing the parties instead of attaching a notice addressed to the respondents.

v. I do not believe that the provisions of Rule 44(2) have been satisfied. This is because Rule 44 only comes into play where an application has been made under Rule 43(1).

vi. Indeed this was what as expressed in NISAKWISHA

MWAKYOMA’S case. It is not enough to have numerous persons having some interest in a suit but the purported representative has to have leave of the court to represent his colleagues. It is my opinion that under Rules 43 and 44 of the Labour Court Rules, it is mandatory to seek leave to file a representative suit and or to file a notice of representation, which when granted, the court through powers provided for under Rule 44 shall order that all parties to the suit be notified of the same. If the applicants are relying on this provision they were accordingly supposed to produce leave


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of the Court and proof that all parties were notified of the same and have not objected to the filing of this application which falls under representative suits.

vii. But as stated the notice attached was of the applicant to his employer and not the court thus provisions of both Rules 43 and 44 of the Labour Court Rules have not been duly complied with the applicants cannot proceed with the hearing this application. This being an issue of the competency of the application before the court has passed the test of a preliminary objection.

94. Bank of Tanzania Vs. Elisa Issangya, Lab. Div., DSM, Rev. No. 17 of 2011, 27/07/2012, S. A. N. Wambura, J.

The applicant has filed a revision against the award of Commission for Mediation and Arbitration (CMA). Before the same was heard a preliminary objection was filed by the respondents. During hearing of the preliminary objection both parties were represented. The applicant’s advocate withdrew three grounds remaining with only one ground to the effect that the application is bad in law for contravening rule 50 of the Labour Court Rules, GN 106/2007, which provides that no appeal shall lie on interlocutory orders unless such decision has the effect of dispensing off the matter. That the ruling of CMA was an interlocutory order by definition which bars the applicants from filing a review. The respondent’s advocate submitted that as the application was for condonation, then CMA did not have jurisdiction to determine the application for condonation. That labour matters cannot be immune to the laws of limitation.


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Held:

i. That the Law of Limitation that is Cap. 89 does not apply in matters before the Labour Court. This is because under section 43 (f ) and 46 of the same Act oust the use of the Law of Limitation where the specific time is set in the specific law.

ii. That since rule 10 of the Labour Institution (Mediation and Arbitration) provides for either 30 or 60 days as a time to file a complaint then the Law of Limitation does not apply in labour matters. It is rule 11 of the same law that CMA has been granted power to grant extensions where applications are brought after the expiry of the 60 days.

iii. That I find that the arbitrator acted with jurisdiction to entertain application for condonation as it is recognised by law and practice, that upon showing good reasons for the delay the arbitrator can grant extension.

iv. That mediation was properly called for as section 86 (4) and (7) of the Employment and Labour Relation Act, No. 6/2004, provide that the mediator must mediate the dispute within 30 days (unless the parties extend the period in writing) and if the dispute is not mediated within the prescribed time, the parties may refer the same to arbitration or the court.

v. That rule 50 of the Labour Court Rules, 2007 bars appeals, reviews or revisions to be filed which arise from interlocutory or incidental orders when they have no effect of finally determining the dispute. By allowing a matter to be filed out of time, it does not mean that the matter


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has been heard on merit and has accordingly been finally determined.

95. Gema Security Service Ltd. Vs. Gozibeth N. Lugakingira, Lab. Div., DSM, Rev. No. 170 of 2011, 27/07/2012, S. C. Moshi, J.

The applicant seeks revision of the Commission for Mediation and Arbitration (CMA) award dated 2/9/2012 on the grounds that: the arbitrator misdirected herself and has erred in law by ordering compensation of 3 months Tshs. 240,000/= to a worker whom they believe was guilty and her services were lawfully terminated; that the arbitrator was wrong to order payment of severance allowance to a worker who was lawfully terminated; that the arbitrator was wrong on ordering payment of wages in lieu of leave for the year 2009/2010 which the worker was paid; that the CMA had no jurisdiction to hear and determine this dispute; that the arbitrator did not consider the evidence given by defence witnesses and exhibits; and the respondent was paid wages for the month of June, 2010.

Held:

i. That the CMA was supposed to decide the issue which was raised; to satisfy itself whether it has the jurisdiction to arbitrate the matter before it.

ii. That is was a procedural irregularity committed by the CMA for not considering the issue of time limitation which was raised by the applicant.

iii. That the arbitrator is duty bound to do so under rule 20 of the Labour Institutions (Mediation and Arbitration), GN No. 64/2007 where he’s required to decide on


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jurisdictional issue first.

iv. That I therefore basing on the aforestated do find that the CMA had acted with material irregularity; it ought to have first decided on the issue of jurisdiction before proceeding to the merits of the case. I consequently find that there’s no need of discussing other grounds of revision; as the whole thing is based on illegal proceedings.

96. Epidor French Bakery Ltd. Vs. Nicholas Tabarini, Lab. Div., DSM, Misc. Appl. No. 70 of 2011, 10/08/2012, S. A. N. Wambura, J.

The respondent one Nicholas Tabarini filed a complaint at the Commission for Mediation and Arbitration (CMA) against Epidor (French Bakery Ltd.). The CMA found that the respondent was unfairly terminated and ordered to pay him USD 8,000 with immediate effect. Aggrieved by the said award the respondent has filed an application in this court seeking to have the award reviewed.

Held:

i. That I find no fault in the affidavit which is in compliance with rule 24 (2) of the Labour Court Rules and so the application which was also filed in time is properly before the court. I do not know when the execution proceedings were filed so cannot say anything on that.

ii. That under section 37 (2) of the ELRA it is the employer who has to prove that termination was fair and lawful. Termination is unfair where the employer fails to prove that the reasons for termination are valid. Moreover the provisions of rule 12 (2) of Employment and Labour


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Relations Act (Code of Good Practice) GN No. 42/2007 have to be observed.

iii. That I tend to agree with the arbitrator that there was unfair termination as there was no proof that the disciplinary hearing was conducted and the applicant was given an opportunity to defend himself.

iv. That the employer had accordingly failed to prove that there was fair termination. Moreover if it was the respondent’s first offence then termination was also not necessary.

v. That admittedly section 86 (7) (b) of the Employment and Labour Relations Act provides that a party to the dispute may refer the dispute to arbitration or to the Labour Court. There is no proof that the matter was referred for arbitration by the parties as required by the law. Likewise there is no proof that it was the mediator who sent the parties for arbitration. May be it is the right time that it has to be put in record at CMA as to what the parties opted for after mediation has failed and have both parties sign on the certificate of their choice on the way forward.

97. Juma Makunda & 3 Others Vs. Namanga Bureau De Change

Ltd., Lab. Div., DSM, Rev. No. 256 of 2010, 10/08/2012, S. A. N. Wambura, J.

The applicants being Juma Makunda & 3 Others have brought this application under section 91 (1) and (2) of the Employment and Labour Relations Act (ELRC) as well as rules 24 (1) (e) of the Labour Court Rules, 2007 praying that this court revises and sets aside the award of the Commission for Mediation and Arbitration


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(CMA) delivered on 23/8/2010.That the respondents Namanga Bureau De Change Ltd. be ordered to pay all dues as presented before the Commission. It was alleged by the applicants that there was unlawful termination because procedures for terminating them were not complied with and thus demanded to be paid their terminal rights including 12 months salaries compensation. The respondents however claim that they terminated the employees after failing to run the business which does not amount to unlawful termination. They are willing to pay their terminal benefits excluding the 12 months salary as compensation. The respondent’s advocate also alleged that though the applicants alleged the application was supported by a joint affidavit only two applicants signed the said affidavit while all the four signed the reply to the counter affidavit. Therefore it should be noted that there are only two applicants.

Held:

i. That I have had the opportunity of going through both the joint affidavit and reply to the counter affidavit and observed that there are only two applicants, Majaliwa Omari and Ally Limbetu, as the remaining two only had initials instead of signatures on the joint affidavit. One wonder as to what is the effect of this application as it was the 1st applicant who was representing his colleagues during the hearing while he did not sign the joint affidavit. As such we legally have only two applicants in this matter.

ii. That section 37 (2) of the ELRA provides that termination has to be fair and for a valid reason. Theft of the office premises could be a fair and valid reason.

iii. That however, a close look at the photographs reveals that the shop which was robbed was running the business of


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selling alcohol that is wines and spirits and not dealing with cash which is the business of bureau de change.

iv. That I thus agree with the applicants that from the evidence in record theft did not occur at the premises which deals with cash though it could be at the respondent premises. The applicants were not charged and convicted of the said theft. Thus termination on their part was basically unlawful.

v. That it is on record that the applicants were negotiating with the respondents through CHODAWU after being given three months leave without pay (Exhibit D4). Before negotiations were through they were served with letters of termination of employment on 7/14/2009 (Exhibit D5). I find that as a mutual agreement was not arrived at, as it is evidenced by Exhibit D5 then the termination procedures were not adhered to.

vi. That amongst the payment the applicants expected to be paid was 12 months salary for unlawful termination. I also grant the 12 months compensation to the two applicants, whose application is legally before this court.

98. Ahmed Rashid Chausa & 15 Others Vs. Keys Hotel Limited,

Lab. Div., DSM, Rev. No. 270 of 2010, 31/08/2012, S. A. N. Wambura, J.

This application is pursuant to a preliminary objection raised by the applicant on a point of law. Now, although it was agreed that hearing of the preliminary objection proceeds by way of written submissions, both parties submitted in respect of the main application as well.


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The respondent’s advocate in relation to the preliminary objection submitted that the counter affidavit was filed 77 days out of time without any good reasons and without leave of the court to file the same. The applicant’s advocate in relation to the main application submitted that the arbitrator failed to consider both the principal and defence evidence produced at CMA; that Mr. Kinabo who was the Administrative Manager failed to confirm that the meeting was convened before the termination of the employee; and that the arbitrator accepted and confirmed that the employees had written a letter to convene a meeting before termination followed by a letter from Tanzania Union of Private Security Employees (TUPSE) which was ignored by the respondent. These indicate that the employees were unfairly terminated and were entitled to 12 months as salary compensation as per section 38 (1) (c) of the ELRA.

Held:

i. It is my view that leave was granted to the respondent to file the counter affidavit out of time on 10/10/2011 therefore the counter affidavit was filed within the time granted by the court and thus this ground of objection cannot stand.

ii. That it is the view of the court that the errors occasioned can be rectified by amendment of the affidavit as was held in the case of Isaya Mwakilasa and Wakuvwanga and 6

Others Vs. East African Telecommunication Ltd and 2

Others, Case No. 46/2008, where the court quoted the Court of Appeal’s decision with approval in the case of DT

Dobie (Tanzania) Ltd Vs. Phanton Modern Transport

(1989) Ltd., Civ. Appeal No. 144/2001 where the court held that such an error does not defeat an affidavit but


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amendments may be allowed.

iii. That in this matter therefore the affidavit cannot be said to be defective as it is clear typing error.

iv. That after considering submissions of both parties, I found that the Commission ought not to have determined the dispute on whether there was unfair termination or not, it had to mediate the parties to reach an agreement on how the process of retrenchment will be done as provided for under rule 23 (6) ,(7) of Good of Practice Rules GN No. 42/2007.

v. That now they ought to have continued with negotiation mechanism but it is not in record if CMA medicated the matter in order to have the retrenchment procedure reached amicably. This stage was omitted and the mediation was done as in any other labour disputed, thus CMA ought to have continued with negotiation mechanism on how retrenchment should be arrived at and not to resolve the dispute.

99. Salome Mussa Lyamba Vs. K.K. Security (T) Ltd., Lab. Div., DSM, Rev. No. 278 of 2010, 07/09/2012, S. A. N. Wambura, J.

The applicant one Salome Mussa Lyamba has filed this application under the provisions of section 91 (1) and (2) of the Employment and Labour Relations Act (herein to be referred to as ELRA), rule 24 (1) (2) and (3) as well as rule 28 (1) (e) of the Labour Court Rules, 2007 praying that this court revises and sets aside the decision of the Commission for Mediation and Arbitration (herein referred to as CMA) issued on 11/10/2010 which dismissed her application


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for condonation. It was strongly submitted by the applicant that the arbitrator dismissed her application for condonation while she had adduced strong arguments which were not considered and thus prayed that the application be granted to her to file her application out of time.

In his reply Mr. Ludovick challenged the application for reasons that the applicant did not adduce good reasons for the delay citing the case of PETER FRANCIS MASANJA Vs. K.K. SECURITY Rev. NO. 92/2010. That the applican’s sickness for merely five (5) days could not justify the delay for two hundred and fifty four (254) days. That the arbitrator found that no sufficient grounds were adduced to grant the sought condonation. That it has not been shown that the award was illegally, unfairly and unprocedurally procured and there is no ruling which needs to be revised. He thus prayed that the application be accordingly dismissed with costs. A rejoinder was not filed. I thank all the parties for their submissions.

Held:

i. Let me start by pointing out that as correctly stated in the respondent’s submissions, the applicant was supposed to file her complaint at CMA within 30 days from the date of termination as provided for under Rule 10(1) and Rule 11(3) of the Labour Institutions (mediation and Arbitration) Rules. Rule 31 of the same provides for extension of time by the arbitrator to file the complaint but only where good cause has been adduced for the delay. It was therefore not necessary to rely on the Law of Limitation Act, 1971 because under the provisions of section 43(f ) and 46 of the same the use of the Law of Limitation is ousted as there is a specific time limit set by


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the Labour Institutions Rules.

ii. Having said so them, it is worth looking into whether the said provisions for condonation were complied with. I would say they were not because the applicant filed both form No.1 for a complaint and form No.7 for condonation. And in her affidavit in support of an application for condonation she equally stated reasons for her complaint as well as the delay to file the same. This was wrong. She ought to have applied for condonation and adduce reasons for the same only. If granted leave to file the complaint, then the reasons would accordingly be filed thereto. The same mistake has been repeated while filing the present application by stating reasons for the delay and review and not why her prayer for condonation ought to have been granted.

iii. Assuming that the arbitrator ignored the complaint filed under form No.1 one then has to look into whether good reasons have been adduced for the delay in applying for condonation. The reasons adduced have been stated above.

iv. In the case of CRDB LTD VS. GEORGE KILINDU Civil Applicatin No. 162 of 2006 three principles were laid down in granting allocations for extension of time being promptness, valid explanations for the delay and lack of negligence.

v. I agree with the arbitrator and the respondents counsel that these conditions were not met. The applicant had a valid reason for being sick, but it was only for sometime. That the parties were negotiating to reinstate her but she refused


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to undertake training. She was also negligent as she could file the complaint while continuing with the negotiations, so this can also not be a valid reason. That she had travelled to Mwanza, she could have also filed the same at Mwanza registry where she purports to reside. Most likely this was an after- thought and cannot be said to be a valid reason for the delay. Moreover in the case of DAUDI HAGA VS.

JENITHA ABAN MACHANJU¸Civil Reference No.1 of 2000 the court held that parties have to account for each days delay in showing cause for the delay. This has unfortunately not been done.

vi. I thus find no valid reason in grating this application as it would amount to an abuse of the court procedures as was held in the case of TANZANIA FISH PROCESSORS

LTD Vs. CHRISTOPHER LUHANGULA, Civil Appeal nO.161 of 1994 (unreported) that limitation is there to ensure that a party does not come to court as and when he chooses. In the circumstances I dismiss the application with no orders for costs.

100. Tanzania Automotive Technology Centre Vs. LT. Co.

Lawrence L. Mwakipesile, Lab. Div., DSM, Rev. No. 240 of 2011, 21/09/2012, S. A. N. Wambura, J.

This ruling is in respect of an application brought under section 91 of the Employment and Labour Relations Act, No. 6/2004 read together with rule 24 and 28 of the Labour Court Rules, GN 106/2007 praying that; this honourable court be pleased to reverse


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the CMA ruling award with reference No. CMA/PWN/KBH/223/11 before Mwangata Makawa Arbitrator dated 21/11//2011; that consequently after the revision this honourable court issue an order setting aside and quash the said arbitrator’s award, as the CMA had no jurisdiction to hear and decide on the matter and any other order which the court deems fit to grant.

Held:

i. While going through the submissions and the records of the court I noted that the application was filed on improper citations. This goes to the root of the matter as it is in respect of the jurisdiction of this court. The application was brought under section 91 of the ELRA read together with Rule 24 and 28 of the Labour Court Rules. In the case of CHAMA CHA WALIMU TANZANIA

VS. ASTTORNEY GENERAL, Civil Application No. 151/2008 the Court of Appeal started that for a person who wishes to apply to the Labour Court for review or revision of CMA’s award, that person has to do so under section 91(1) of the Act. This has not been done.

ii. There are many decisions to the effect that non or wrong citation of a provision of the law, section, subsection or even paragraph renders the application incompetent. This was held in the case of Edward Bachwa & 30 Others

Vs. The Attorney General & Another, Civil Application No. 128/2006, Chama cha Walimu Tanzania Vs. The

Attorney General Civil Application No. 151/2008, City Bank Tanzania Ltd Vs. TTCL & Others, Civil Application No. 128/2006, to mention just a few.

iii. Since the proper sub sections have not been cited,


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I accordingly strike out the application for being incompetently before the court and will not rule on the submissions made. The applicants are at liberty to refile the same if they still wish to do so within seven (7) days from the date of this order. It is so ruled.

101. Gerald Bitaliho Vs. Nyota Tanzania Ltd., Lab. Div., DSM, Rev. No. 308 of 2010, 29/09/2012, S. A. N. Wambura, J.

The applicant seeks revision of the CMA award dated 8/11/2010 at Dar es Salaam. The application was brought under section 91 (1) (a) and 94 (1) (b) (i) of the Employment and Labour Relations Act, No. 6/2004 and rule 24 and 28 (1) of the Labour Court Rules of 2007.

Held:

i. Let me start by stating that I am in total agreement with Mr. Antony that the Civil Procedure Code does not apply in Labour Court except in very few circumstances. In the matter between KWILA PETER NKWAMO Vs.

GENERAL MARINE SERVICES CO. LTD, the court held that, the CPC does not ordinarily apply in conduct of cases under the labour laws. Procedures governing conduct of cases at CMA and this court are separately provided for.

ii. Where however, a situation arises which is not covered

by the said laws, appropriate procedures can be adopted and the practice has been to adopt procedures used in conduct of civil cases that is the CPC.

iii. In their submissions Mr. Antony stated that the applicant


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filed a matter at CMA in 20/08/2010 and on 06/08/2010 the respondent began tendering evidence and was accordingly closed. According to CMA’s records there is no evidence that the letter in question was tendered and admitted as evidence as required by the law. In the case of EDNA PENDAEL TENGA Vs. PAROKIA YA

BUGANDO, Revision No. 19/2007 the court stated that proceedings complying with the guidelines will clearly show evidence led by each side to prove or disprove the issues, which written submissions should be indicated in the proceedings, or made part of the record where they are received orally, also where the arbitrator allows closing

arguments, they should be systematically included in

the record.” In the absence of the same it amounts to irregularity which vitiates the whole proceeding.

iv. In the matter before us it is obvious that the document was improperly relied on by the arbitrator in his award as it is not in record that it had been tendered and admitted as evidence or that the other party had an opportunity to comment on it. Due to this reason, I accordingly quash the proceedings and the arbitrator’s award for being improperly procured.

102. Mwl. Giddo Vintan Mwenda Vs. The Njombe District

Executive Director; The Executive Secretary Teachers Service

Department Headquaters Dar es Salaam; The Executive

Secretary Public Service Commission Dar es Salaam; The

Attorney General, The Attorney General’s Chambers Dar es

Salaam & His Excellency The President of the United Republic


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of Tanzania, Dar es Salaam, Lab. Div., DSM, Rev. No. 308 of 2010, 29/09/2012, S. A. N. Wambura, J.

The applicant Mwl. Giddo Vintan Mwenda has filed an application seeking extension of time within which to apply for leave to file a petition for prerogative orders of certiorari and mandamus as well as costs under section 14 of the Law of Limitations Act, [Cap 88 R. E. 2002], rule 24 (11) of the Labour Court Rules GN No. 106/2007, section 2 (3) of the Judicature and Application of Law, as well as sections 17 (2), 18 (1) and 19 (2) of the Law Reform (Fatal Accidents and Misc. Amendments) Act. It was supported by his own affidavit. However, while filing their counter affidavit the respondents filed two preliminary objections to the effect that the application is time barred and that the court is not properly moved.

Held:

i. I think I need not labour much on the first point of the preliminary object. It is obvious that the application has been filed out of time and that is why the applicant is praying of leave and extension of time to file his petition for orders of certiorari and mandamus. I do not agree with the application that the same is misconceived and I accordingly dismiss the first ground.

ii. As for the 2nd ground, the respondents have submitted that the applicant has cited section 2(3) of JALO, section 17(2), 18(1) and 19(2) of the Law Reform Act, but did not cite section 19(3) which is the specific enabling provision of the law for which the application ought to be cited. In the circumstances the court has not been properly moved. That since the application is incompetent before the court, it ought to be struck out citing the case of EDWARD


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BACHWA and 3 OTHERS Vs. THE ATTORNEY

GENERAL AND ANOTHER Civil Application No.128 of 2006.

iii. In order to decide whether section 19(3) of the Law Reform Act is the enabling provision of the law or not I had to go through the said provision. It means therefore that such application can be filed at the High Court under Section 17 and the Attorney General has to be summoned as provided for under section 18.

iv. It thus goes without saying there is a time limit of filing such applications under the Law Reform (Fatal Accidents Miscellaneous Provision) Act. Therefore if one needs to extend the said time it should be done under both section 19(3) because subsection (2) only states that rules shall be made to that effect but subsection (3) limits the time for making such applications to six months. In the circumstances it is not true that there is no enabling provisions in that Act, The provisions of the Law of Limitation cannot be used as provided for under sections 43(f ) and 46 of the same.

v. Now since section 19(3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act has set a limitation period of six months, it means that the provisions of the Law of Limitation Act is ousted by the same. As was also held in the case of APASIAWA KWEKA VS. Hon.

PAUL KIMITI, MINISTER FOR LABOUR in Civil Application No. 167 of 1999 that under S. 18(3) the application ought to have been filed within six months.

vi. Even if the Law of Limitation Act would have been


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applicable, I would still find that it was also not properly cited for failure to cite the enabling subsection which is subsection (1) of the same.

vii. Having found that the application has not been brought under the proper provision of the law and is thus incompetent before this court as was held in the case of EDWARD BACHWA (Supra) cited by the Respondents and COCACOLA KWIANZA Vs. EMMANUEL

MOLLEL Civil Application No. 22/2008 to mention just a few, I accordingly uphold the 2nd ground of the objection as has been raised by the respondents and strike out the application with no order for costs. Costs at the Labour Court are granted in very peculiar circumstances.

103. Tanzania Building Works Ltd. Vs. Ally Mgomba & 4

Others, Lab. Div., DSM, Rev. No. 305 of 2010, 12/10/2012, S. C. Moshi, J.

The respondents were employed by the applicant as watchmen until they were terminated on 12/10/2009, and security sources outsourced from a specialised company instead. The respondents were dissatisfied and on 11/11/2009, they appealed against the applicant decision to the Commission for Mediation and Arbitration (CMA) on ground that termination was unfair. In the award dated 25/11/2010, the CMA arbitrator agreed with the respondents; found that their termination for operational reasons was both substantively and procedurally unfair, and ordered the applicants to reinstate them without loss of benefits. That decision displeased the applicants hence this application for revision.


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In the supporting affidavit, the applicant faulted the CMA decision in essence, on ground that the CMA arbitrator: 1. Erred in reaching a decision that termination was procedurally unfair because the respondents were not consulted despite applicant’s evidence to the contrary. 2 Erred in deciding that retrenchment was unfair despite evidence that the applicant proceeded with the exercise after the respondents refused to cooperate in the consultation process. 3. Exercised jurisdiction not vested by law in that, because he arbitrated a dispute not referred to him by a party to a dispute as prescribed under section 86(7)(b) (i) of Act, of the Employment and Labour Relations Act, 6/2004 (the ELRA). And: 4. That the award was improper for reason of being issued contrary to mandatory provisions of section 88(9) of the ELRA.

Held:

i. At the outset, I dismiss the argument that the award was invalidated for reason of being issued after a period of 30 days prescribed under the mentioned provisions. I do so, because I find that in this case, quashing CMA proceedings and resultant award then ordering the process to commence afresh in the CMA as I must thereafter, will cause more injustice to both parties, such an action would not be in the interest of justice.

ii. Regarding the issue 3 on jurisdiction of the arbitrator, stemming from the manner arbitration was initiated, the applicant submitted that the award was improperly procured because no party referred the dispute to arbitration after failure of mediation, that they simply stated that they wished to proceed with arbitration which was contrary to section 86(7) of the ELRA. The respondent’s reply was


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that the arbitrator had powers by virtue of section 88(2) (a) of the same Act which empowers the CMA to appoint an arbitrator after mediation has failed to arbitrate the dispute agreeing with the arbitrator who said that there is no procedure requiring the parties to submit fresh application after failure of mediation.

iii. The arbitrator’s decision was proper. First, if the ground was founded, the applicant should have raised it as preliminary objection before arbitration proceeded. The fact that the applicant did not, supports the arbitrator and respondent’s position that there is no rule which prescribes filing of fresh application following failure of mediation.

iv. The practice has been that following failure of mediation, parties when signing Form No.5 indicate whether they choose to proceed with arbitration or not. Thereafter, if they have chosen arbitration, the CMA appoints an arbitrator.

v. In this case, both parties signed F5 and indicated that they had agreed to proceed with arbitration. My decision is that, where parties have signed F5 indicating that they have chosen to proceed with arbitration and the CMA subsequently appoints an arbitrator, arbitration of such a dispute will be taken to have been properly initiated. For that reason, I dismiss ground 3 of the complaint.

vi. The respondents were suspended on full pay pending investigations of theft incidences which had occurred at applicant’s premises when the respondents were on duty as indicated in the applicant’s letter dated 30/9/2009. Following that, on 5/10/2009, the applicant notified the


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respondents of the need to terminate them for operational requirements. In that letter, the applicants informed the respondents that following investigations, it believed that since it was not easy to assign responsibility of the theft to anyone under the existing work arrangements, it had decided to outsource security from a specialized company with modern security equipments. In the same letter, the respondents were notified that the applicant intended to outsource security services, as a consequence their employment would be terminated on terms indicated; that the termination exercise would be carried on by 9/10/2009 and they had (7) days to each give their comments “hoja kuhusiana na hatua zitiakazochukuliwa” in writing to the applicant There was no response and on 12/10/2009, the respondents’ employment was terminated and they were paid their terminal benefits like salaries, leave, severance including certificate of service.

vii. After considering all the above, it is my decision that the arbitrator conclusion on the substantive and procedural fairness of the retrenchment exercise, was not a reasonable one in light of the evidence. The arbitrator said no reasons for retrenchment were given, yet reasons were well articulated in the notice letter of 5/10/2009.

viii. As regards consultation, the law puts the duty to engage in consultation in good faith is put on both the employer and the employee. Once the employer gives notice to the employee, the duty moves to the employees to respond. If the time of notice is too short, the response could merely state so, and seek more time. The respondents in this case


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did neither made response nor sought for more time

ix. My decision in the circumstances is that, where an employee refuses to cooperate in consultation evidenced by non response to notice as was the position in this case, the employer will be taken to have complied with the procedural requirements for consultation in the retrenchment processes.

x. In the end result this application succeeds. I find the arbitrator’s conclusion that the respondents’ termination was substantively and procedurally unfair to have been on the evidence available, irrational. I accordingly confirm the applicant’s termination decision; quash the arbitrator’s award and the resultant remedies.

104. Abubakar Haji Yakubu Vs. Air Tanzania Co. Ltd., Lab. Div., DSM, Rev. No162 of 2011, 24/10/2012, S. C. Rweyemamu, J.

The applicant filed an employment dispute in the Commission for Mediation and Arbitration (CMA) raising a number of claims against the respondent/employer. One of the claims was on unfair termination (i.e., proper procedures were not observed). As remedy the arbitrator awarded the applicant the relief of reinstatement without loss of remuneration. Another claim was for salary arrears explained as arising from withheld salary due to discrimination. The arbitrator dismissed this claim on ground that, the same was based on an increment of salary proposed by the board, but, without proof that the same was approved in respect of the applicant. The other claim raised by the applicant during arbitration was that of


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discrimination. The arbitrator declined to consider and decide it on ground that it was not pleaded in Referral (CMA) Form No. 1 (RF1). Finally, the applicant sought compensation to the tune of shillings 100,000,000/= as general damages suffered because of unfair termination. The arbitrator decided that the claim was not awardable because by the reinstatement order made, the applicant had been placed in a position he would have been in, if termination had not taken place.

The applicant was dissatisfied by part of the arbitrator’s decision and filed this application seeking revision on two grounds that: the Commission erred in evaluation of evidence when it concluded that the employer had not approved salary increment to the applicant to the tune of shillings 4,800,000/=, thus wrongly dismissing the applicant’s claim for arrears of unpaid salary and that the Commission erred in law and in fact, in holding that the order for reinstatement without loss of remuneration disentitled the applicant from a claim of general damages.

Held:

i. That after checking the record it is my opinion that the following facts negate the applicant’s arguments on the issue of salary arrears: One, annexure AHY3 to the applicant’s affidavit filed in proof of the case in the CMA, indicates that the amount stated was a mere proposal. Further, part of annexure AHY3 - the applicant’s E-mail, shows that the there were further discussion on 25/9/2006 indicating that there were justifiable reasons why salary increment had been made in respect of only other individuals working under the applicant. Two, the reasons advanced in support of the applicant’s discrimination claims during arbitration


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contradict the allegation that the Board had approved salary increment on his part.

ii. That from the facts pointed above, it is my opinion that the arbitrator reached a reasonable conclusion on the evidence when he concluded that, the applicant was not entitled to salary arrears on ground of under payment of the approved salary increment.

iii. That a plea of unfair termination does not automatically include/mean a plea of discrimination. Why? First in law, the two form different causes of action. Under sections 7 (4) and 102 (3) of the Employment and Labour Relations Act, No. 6/2004 discrimination in employment is an offence while unfair termination under that Act, is simply an unfair labour practice. Second, under section 37 (3) (b) of the Act, discrimination makes termination automatically unfair while unfair termination, simply refers to termination for an invalid reason and/or using improper procedure, Section 37 (2) (a) & (b).

iv. That in other words, it is possible for an employee to have a cause of action based on discrimination even, where such discrimination has not caused termination of employment. But both unfair termination and discrimination are aspects of unfair labour practice.

v. That I do not agree with the arbitrator that an order of reinstatement without loss of remuneration automatically disentitle an employee to an award of general damages because section 40 (2) clearly provides that such an order, shall be in addition to, and not substitute for, any other amount to which the employee may be entitled in terms


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of any law or agreement.

vi. That the purpose of awarding damages in unfair termination cases is not only to restore the injured party, as far as, to the financial position prior to termination, but also to act as solatium for other personal injury. It is undisputed therefore, that an employee may have a number of claims arising from unfair termination, for which remedy can be claimed.

vii. That generally, general damages are awardable for injury which the law will presume to be the direct, natural and probable or foreseeable consequences of an act complained of.

viii. That admittedly, employment termination not only leads to pecuniary loss, but invariably includes other personal injuries, e.g. pain and suffering due to injured feelings, loss of self esteemed, etc. Further, the pecuniary damages in employment cases include those based on loss of earnings, and other consequential costs.

ix. That on the evidence in this case, it is undisputed that the applicant suffered pecuniary loss in a form of lost earnings, it is my first decision that these were adequately compensated for in the reinstatement order. Consequential pecuniary loss however, was not pleaded and therefore is not awardable.

x. That as regards to claims of general damages as compensation for personal injury, it is a long established rule of law that, in order for damages to be granted, they must be certain. For example, when damages are sought


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for personal injury like mental torture, anguish, or any other alleged personal injury.

xi. That the CMA has jurisdiction to entertain a claim of general damages. The relevant laws are; the Labour Institutions Act, No. 7/2004 which inter alia, under section 14, prescribes functions of the CMA. These include mediation and arbitration of any disputed referred to it, in terms of any labour law. That provision must be read together with section 88 (1) (b) (ii) of the Act as amended by the Written Laws (Misc. Amendment) Act No. 8/2006 and 3 of 2010.

xii. That the second reason for finding that CMA has jurisdiction to entertain a claim based on common law and tortuous liability is my interpretation of section 40 (1) and (2) of the Act. Section 40 (1) empowers both the arbitrator and the Labour Court to grant an employee any other amount that such an employee is entitled to in terms of any law or agreement. In my opinion, the implications thereof is that, the CMA has jurisdiction to entertain labour claims arising from any other law or agreement.

xiii. That admittedly, the unfair termination must have caused personal injury as already observed, but applicant failed to show proof of the same. In view of that, I find that the applicant in the circumstances would be entitled to nominal damages.


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105. Samwel M. Mzava Vs. Regional Manager (T) Zambia

Railway Authority, Lab. Div., DSM, Misc. Appl. No. 65 of 2012, 29/10/2012, R. M. Rweyemamu J.

This labour dispute commenced at the Commission for Mediation and Arbitration (CMA), where the applicant/employee successfully filed a claim of unfair termination against the respondent/employer. In its award delivered on 12/12/2008, the CMA found termination unfair and ordered the employee reinstated. The employer succeeded to have that decision revised by this court. In her decision delivered on 24/9/2010, Hon. Moshi J. reversed the arbitrator’s decision. She concluded that on the evidence before the arbitrator, termination was both substantially fair (for a valid/fair reason), and procedurally fair (prescribed procedures adhered to). She accordingly quashed and set aside the CMA award of 12/12/2008. The employee was dissatisfied by that decision and now seeks leave to appeal to the Court of Appeal on point of law, articulated in paragraph six (6) of the supporting affidavit as: whether it was proper for the High Court Labour Division to set aside the award on the grounds which were never prayed for by the parties; whether it was proper for the High Court Labour Division to ignore the evidence of the applicant on the applicability of staff regulation which was applicable; whether it was proper for the High Court Labour Division to ignore the applicants denial of his right to be heard at the respondent’s appellate machinery; and whether the High Court Labour Division properly interpreted the provisions of the Respondent’s Staff Regulation. (This ground was abandoned at the hearing)

Held:

i. That I have considered the parties’ arguments and I am of the view that the applicant has sufficiently made out a case


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for leave based on the grounds he adduced which may be restated as:

a. whether it is proper in law for the court, for purpose of revision, to base its decision on consideration of matters, other than those raised by the parties. And whether the court is mandated to decide every raised issue. (Assuming it is found that the court ignored to decide on issues raised by the parties).

b. Whether the court properly considered the arbitrator’s decision regarding applicability of the employer’s staff regulations on training, in determining the issue of the applicant’s misconduct.

c. Whether the right to be heard for purpose of procedural fairness entails, hearing at both the employer’s Disciplinary Committee and Appellate level where it exists.

106. Cami Apparel Vs. Balozi Msuya & 231 Others, Lab. Div., DSM, Rev. No. 213 of 2010, 31/10/2012, R.M. Rweyemamu J.

This application is against an interlocutory ruling made by the Commission for Mediation and Arbitration (CMA) Arbitrator on 22/7/2010. Briefly, that ruling arose in the following background. The applicant/employer had a retrenchment exercise in which two registered trade unions TUICO and TASIWI (each of which had members at the employer’s work premises) participated in


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negotiations on behalf of employees. After retrenchment, some of the former employees filed four different disputes with the CMA. Each dispute was filed by one employee on behalf of several others. At the CMA, employees were again represented by officers of the same trade unions while the employer was represented by Mr. Ishengoma Advocate.

On 5/5/2010, the four disputes were ordered consolidated by the CMA for purpose of arbitration. Thereafter, counsel for the employer made a prayer to the arbitrator, for an order to disqualify officers of the two unions from representing employees during arbitration of the dispute. Justifying the prayer, the applicant argued that, the same representatives participated in negotiating a retrenchment agreement, as such, there would be conflict of interest if they were to be permitted to represent employees in the dispute. The dispute involving challenge to the very terms agreed upon after negotiations.

The employees’ representatives opposed that application on two grounds. Firstly that, what was at stake in the dispute was not the agreed terms, rather, failure by the employer to honour those terms in payment of post retirement benefits. Secondly, they submitted that they had a right to represent employees both in negotiations and during arbitration. The arbitrator accepted the employees’ arguments deciding in the impugned ruling that: The parties’ right to representation was governed by law, that is, section 88 (7) (a) and (b) of the Employment and Labour Relations Act, 6/2004 which permits a party to a dispute to be represented by a “(a) member or official of the party’s trade union or (b) an advocate (c ) a personal representative of a party’s own choice”. And that, the issue of conflict of interest did not arise because the dispute between the parties was


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about failure to implement the agreement and not on new claims, as suggested by the employer.

Held:

i. That whether the dispute before the CMA was about failure to honour the party’s agreement or, whether the dispute was on new claims, which were being raised contrary to the agreement, it is true that the decision on that question requires more facts and evidence, which would be adduced during arbitration. It would have been appropriate for the applicant to wait and raise the application after such evidence had been adduced.

ii. That employees are entitled to representation by their trade unions during arbitration. I go further to find that, they would be so entitled, even where the same unions represented them in negotiations. My conclusion is based on my considered opinion that, representation of parties by their trade unions, employer’s associations or party’s own choice, as per labour law, creates a different form of representation. It is an intrinsically different role from that of advocates.

iii. That the applicant had no right to seek revision of the impugned CMA ruling. The ruling was interlocutory in a sense that it did not finally dispose of the dispute between the parties. The applicant had another chance to raise the issue while challenging the final decision on merit, which would not have caused prejudice to its interests.


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107. Oceana Advanced Industries Ltd. Vs. Obedient G.

Kimaro & Others, Lab. Div., DSM, Rev. No. 80 of 2011, 09/11/2012, S. C. Moshi, J.

The applicant seeks revision of the Commission for Mediation and Arbitration (CMA) ruling dated 19/04/2011. The applicant requests the court to set aside the ex-parte award and allow the matter to be heard before the CMA inter-parties. The CMA proceeded with hearing ex-parte of the complaint on the ground that the applicant had defaulted appearance on various occasions; that is 26/10/2010, 04/11/2010 and 15/11/2011. The applicant sought to set aside the ex-parte award, however the CMA dismissed the application for lack of merits. The arbitrator found that the applicant was dully served; and that he failed to bring evidence to prove otherwise.

Held:

i. That the court is not supposed to speculate what went on before the Commission. The record has to speak by itself.

ii. That looking at the record, I cannot tell whether hearing took place on 15/11/2010 or the record was tempered with or it’s just out of sheer negligence that part of record is missing. As said above, the court cannot act on speculations.

iii. That the CMA proceedings record keeping is arbitrator’s mandatory duty. Rule 32 (1) of the Labour Institutions (Mediation and Arbitration) GN No. 64 provides that an arbitrator shall keep a record of the proceedings with legible hand-written notes or by other means of electronic recording.

iv. That as indicated above, proceedings for 15/11/2010 are


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not in the record. Also upon perusal of the file, other parts of the proceedings are poorly kept. There is no flow of proceedings. Some parts of the proceedings are attached to the file in loose papers with no continuity of what transpired before the CMA. Having this position, it is even more difficult for the court to trace up through those papers what real transpired before the CMA.

108. Tanzania Oxygen Limited Vs. Juma Nkondo, Lab. Div., DSM, Misc. Appl. No. 85 of 2011, 09/11/2012, S. C. Moshi, J.

The application emanates from execution proceedings and decision in respect of Trade Inquiry No. 35 of 1996. The respondent raised preliminary objection on point of law (PO) to the effect that: the application has been filed without Notice to adverse party; that the application is incompetent for non citation and wrong citation of provisions of the law; that the prayer contained in the summons are incompatible with the cited provisions of Labour Court Rules GN No. 106/2007; that the application is omnibus where more than one applications are put together; and that the registrar decision is appealable.

Held:

i. Trade Inquiries were covered by the Industrial Court Act, Cap 60, R.E. 2012. So, the appropriate law which is applicable in the circumstances of this case is the Industrial Court Act not the Labour Court Rules, 2007, GN. No. 106 which are regulated under the Employment and Labour Relations Act, Act No. 6/2004.

ii. The Employment and Labour Relations Act provides for


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a saving provision for all disputes which were already in court under the repealed laws; the Industrial Court Act being one of them.

iii. Paragraph 13 (3) (b) of 3rd schedule to the said Act No. 6/2004, as amended by section 42 of the Written Laws (Miscellaneous Amendments) (No.2) 2010 provides that:- “All disputes originating from the repealed laws shall be determined by the substantive law as applicable immediately before the commencement of this Act”. Therefore that is the position of the law.

iv. It is common ground that the applicant understood that the case is covered by Industrial Court Act. However, it is not true that both the Industrial Court Act and the Employment and Labour Relations Act are applicable in the present case. As indicated in the saving cited provision, the proper law is the substantive law applicable immediately before the commencement of the current law. Hence here, Labour Court Rules are not applicable. Citing the Labour Court Rules amounted to wrong citation of the enabling provision of law.

v. Now having decided that the citation of the enabling provision of law is wrong, I find that the application contains an irregularity; the irregularity resulting from wrong citation is incurable. An incurable irregularity renders the application incompetent; hence cannot move the court. Various cases have been cited in respect of this position law; the case of TOTAL (T)

LTD VS. GODLIVER MASSAWE, Execution Appl. No. 405/2009 (Lab) in which case the court of Appeal


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cases of CHAMA CHA WAALIMU TANZANIA VS.

THE ATTORNEY GENERAL, Civil Application No. 151/2008 (unreported) and CHINA HENAN

INTERNATIONAL CO-OPERATIVE GROUP VS.

SALVANT RWEGASIRA, Civil Application No. 22/2005 (unreported were discussed. In both cases the court held that the court is rendered incompetent if is not properly moved.

vi. Whether the application is on omnibus one. The application is against the execution proceedings by the Registrar. To vary and set aside the ruling and order of Registrar and the garnishee Order. This application concerns execution proceedings. There’s no other application such as setting aside ex-parte decision, etc as submitted by the respondent. As stated by the applicants advocate the submission on this point is misleading and I hold that it is irrelevant in the circumstances of the present case.

vii. Regarding time limit; I find that it’s a misconception of facts. The application is against the execution proceedings. The applicant is not challenging the award and decree of the Industrial Court which was issued on 03/09/2008.

viii. Execution proceedings under the Industrial Court Act are made under the Civil Procedure Code Act, Act No.49 (CPC). The Registrar has been given powers under order XLIII of the CPC to conduct execution proceedings; see specific Rule of Order XLIII; rules (e)-(i).

ix. Issuing garnishee orders is part of execution proceedings. It’s the duty which the Registrar is empowered to perform. The orders and decisions there from can be appealed as


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proposed in the cited case of TOTAL (T) LIMITED VS.

GODLIVER MASSAWE, Execution Application No. 405/2009, or reference could be made in terms of order XLI Rule (1) of the CPC which provide for reference of question to High Court

x. So having states as I did, the 1st and 3rd points of PO fails because the Labour Court Rules do not apply in this case, 4th ground fails since the application is not omnibus application.

xi. I therefore on the aforestated reasons though for different reasoning, do uphold the second point of PO. I hold that the application is incurably defective for wrong citation of enabling provisions of law. Also the 5th ground of PO; the decision can be appealed or referred. Consequently, the application is struck out accordingly.

109. James Yambo Misangia Vs. Vice Chancellor Muhimbili

University of Health Sciences, Lab. Div., DSM, Rev. No. 126 of 2010, 30/11/2012, S. A. N. Wambura, J.

This application was filed by the applicant, seeking revision of the Commission for Mediation and Arbitration (CMA) award dated 19/4/2010. The application was by way of notice of application and chamber summons made under section 91 (1) and 94 (1) (b) of the Employment and Labour Relations Act, and rule 24 (1) of the Labour Court Rules 2007, supported with an affidavit of the applicant James Yambo Misangia, and Prof. Bakari Lembariti swore a counter affidavit on behalf of the respondents Vice Chancellor Muhimbili University of Health Science in opposition of the


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affidavit.

The applicant submitted that he retired in June, 2008 and was paid transport allowance and NSSF payments. He was not paid his severance allowance. It was paid in April, 2011 after the matter was referred to CMA. That it took a long time and he had to wait for the said payments. He believed he was therefore entitled to be paid subsistence allowance while waiting to be paid his severance allowance. In his reply Mr. Nungu argued that after CMA’s award was issued on 19/04/2010 the applicant was paid Tshs. 1,568,646/= By then he had already filed this revision in this court. That his claims against the respondent had been complied with as per Section 40(1) of the Act.

Held:

i. That after I have gone through both parties arguments and the record of the court, I am of the view that it would have been proper for the applicant to go back to his home as he had already been paid transport allowance and other benefits while waiting to be paid his other benefits in full.

ii. That since the employer had refused to pay him until he filed the same at CMA, and only paid him in cause of executing CMA’s award which was issued on 19/4/2010 a year after, I believe he ought to be paid the same at the rate of his last salary up to the date when he was paid his severance allowance.

iii. That this is because there is no justification in the first place of not paying him and later delaying in paying him as the award was issued a year ago.


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110. Alliance One Tobacco Tanzania Ltd. Vs Erasto Mbinda,

Lab. Div., MRGR, Rev. No. 10 of 2011, 12/12/2012, S. A. N. Wambura, J.

The applicant Alliance One Tobacco Ltd., have filed this application under the provisions of sections 91 (1), (2), (3) and 94 of the Employment and Labour Relations Act, rule 24 (1), (2), (3) and rule 28 (1) of the Labour Court Rules 2007. The application which was supported by the affidavit of one Frank Kannonyele is seeking to review the legality, propriety and correctness of the award. According to the applicants the arbitrator exeeded his jurisdiction by awarding to the respondent on Erasto Mbinda Tshs. 2,020,000/= for medical treatment while he was not suffering from an occupational disease. The respondent filed a counter affidavit in opposition.

The brief facts of this matter are that the respondent was employed by the applicant. He fell sick and was attended at the company’s hospital. As he was not getting better he was later referred to Morogoro Regional Hospital. Failing to treat him they referred him to Muhimbili National Hospital (MNH). At MNH he was further referred to Hindu Union Hospital where he was informed he needed to be operated at a cost of Tshs. 2,020,000/=. Though the Company’s doctor and the Director (after a long time) signed so that he can be paid, one A. Mwita, a Human Resource Manager allegedly refused. His argument being that the respondent was about to resign. The respondent was therefore not paid. It is worth noting that the applicants had throughout been paying the respondents medical bills as well as subsistence allowances. Efforts by the respondents to be paid through TPAWU failed thus this


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matter was filed at CMA whose award is not being challenged.

Held:

i. That with due respect the law does not state that a person who is about to retire looses all his rights. In fact in other companies some employees continue to be treated at the company’s expenses. Incidentally by the time the respondent was expected to be operated he had not retired so was entitled to medical treatment.

ii. That it is my given opinion that the respondent was entitled to be treated at the employer’s expenses irrespective of the undated six months notice for retirement issued to him. Since they did not do so while he was an employee they are obliged to do so now. If the respondent has been treated they should accordingly refund him costs incurred for the treatment.

iii. That any additional costs which have increased (if the respondent has not been operated) due to the time that has lapsed should also be borne by the applicants. These costs shall also cover subsistence allowances which would have been paid to him by the applicants.

iv. That I also award interest at court rate to the respondent under the provision of rule 51 (2) of the Labour Court Rules though they have not prayed for the same as I believe that the application has been maliciously filed.


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111. Abdallah Kiwigu Vs Mkurugenzi Mkuu SBC (T) Ltd.,

Lab. Div., MRGR, Rev. No. 5 of 2011, 13/12/2012, S. A. N. Wambura, J.

The applicant one Abdallah Kiwigu has filed this application under the provisions of section 91 (1) of the Employment and Labour Relations Act, 2004 (ELRA) read together with rule 24 (1), 26 (1) and 28 (1) of the Labour Court Rules, 2007. He is seeking an order of this court to revise and set aside the award of the Commission for Mediation and Arbitration (CMA) issued on 29/3/2011. He is praying for an order to be reinstated and be paid his terminal benefits. The application was supported by the affidavit of Mr.

Samwel Gilbert who also represented the applicant.

It was submitted by Mr. Gilbert that the arbitrator erred in that 1. Having found that the applicant was not given a fair hearing as provided for under Rule 13(5) of the Employment and Labour Relations (Code of Good Practice0 Rules 2007, he issued an award of four months compensation for unlawful termination. That this was illegal as it contravened section 40 (1) (c ) of ELRA which provides for a minimum of twelve month’s compensation citing the decision of this court in Labour Revision No. 282 of 2009 between Edna Robert

Vs. Tanzania Revenue Authority. 2. The law under Rule 12 (50 of the Employment and Labour Relations (Code of Good Practice) Rules 2007 provides for similar punishments for breach of the same misconduct conducted by the employees, so the applicant ought to have been warned as his colleague were at the disciplinary committee and not terminated. He argued that the applicant thus ought to be reinstated.

Held:

i. That according to section 40 (1) of the ELRA an arbitrator or the court can grant either of the three options where it


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finds that there was unlawful termination. Applicants have prayed to be reinstated or compensated in full. The option of reinstatement cannot stand at this court as the arbitrator decided to use the third option that is compensation which was legal.

ii. That the arbitrator or the court has a discretion to choose between remedies provided under section 40 (1) (a) to (c) but not to decrease the amount provided in item (c). To the contrary one may increase the same.

iii. That an order for reinstatement can go along with that of compensation as provided for in subsection (3) of section 40 of ELRA, that is, where under subsection (1) (a) or (b) the same has not been complied with by the employer.

iv. That in the matter before us the respondent was not ordered to reinstate nor reengage the applicant but to compensate him. The situation is thus different from the one which was in the case of Mbeya Cement Company Vs. Leonard

Mwakunja, Lab. Rev. No. 20/2011 where the employer refused to reinstate the respondent and thus the decision in that matter cannot be followed in the matter at hand.

v. The respondent in this matter executed CMA’s award accordingly. They cannot be made to pay the applicant salary from the date of unlawful termination to date. They can only do so from the date of the unlawful termination to the date of executing CMA’s award if the same was not done. This is because it was not their decision to compensate him an amount of four months salary.


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112. Ephraim Joram Vs. Director Tanga Cement Company

Ltd., Lab. Div., DSM, Rev. No. 147 of 2012, 12/04/2013, S. A. N. Wambura, J.

This ruling is pursuant to an application made under rule 24 and 56 (1) of the Labour Court Rules and section 52 (2) of the Labour Institutions Act of 2004 praying that the court grants the applicant leave to file an application out of time. The applicant submitted that he was praying to file an application out of time as his representative was sick so could not file the same in time as stated in his affidavit.

Held:

i. No doubt that under the law, this court can grant extension of time if it is satisfied that sufficient cause or good grounds have been adduced for the delay. In this matter I agree that the applicant’s representative has not sufficiently explained the delay of failing to file an application within time.

ii. In the case of Felix Tumbo Kisima Vs. TTCL Limited

and Another [1997] TLR No.57 the court observed that the “sufficient cause” should not be interpreted normally but should be given a wide interpretation to encompass all reasons or causes which are outside the applicant’s power to control or influence resulting in delay in taking any necessary step.

iii. In view of above decision, I find that since the representative was sick and failed to file the same on time, it was an issue which was beyond the applicant power to control.

iv. I accordingly grant the application prayed for. The applicant should file the application according to the law within fourteen (14) days from the date of this ruling.


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