IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT TANGA LABOUR REVISION NO 82 OF 2010 SAFI MEDICS APPLICANT VERSUS 1. ROSE PETER 2. MGANGA MUSSA 3. RICHARD KARATA.. RESPONDENTS (Original/TAN/CMA/28/2008) RULING 8/3/2011 & 17/5/2011 RWEYEMAMU R.M. J: The applicant/employer timely filed an application supported by affidavit for revision of the CMA award procured on 5/3/2010. The same was presented by a chamber summons brought under section 91 (1) (a) and (3) of the Employment and Labour Relations Act, 6/2004 and rule 28 (1) (c) (d) and (e) of the Labour Court rules, GN 106/2007. In response, the respondent filed a counter affidavit and a notice of Preliminary Objection (PO) against the application subject matter of this ruling on grounds: That the Revision Application is incompetent for non compliance of Rule 24(1), (2) and (3) of the Labour Court Rules. I will first address this PO. 1
The proper procedure for a party wishing to revise an arbitrator s award is to move the court under section 91(1) of the Act read together with rule 28 of the rules which prescribe powers of the court in exercising its revision jurisdiction. This court however has taken a conflicting stance regarding the proper procedure for initiating revision proceedings in this court. The two positions were discussed in among others, the case of TPAWU vs. Robert Korinako, Revision No. 109 of 2008. The 1 st position was pronounced by Hon. Mandia J., as he then was, (now JA) in COCA COLA Kwanza LTD vs Emmanuel Mollel, Application No. 22/2008 and adopted by Hon. Moshi J. in PLY and Panel (T) LTD TANGA vs Hamad Kassim, Labour Revision No. 286/2008- (delivered on 3/11/2009). The Hon Judge held among others 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. In Robert Korinako, I explained the 2 nd position as follows: 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 as 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 by 2
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 therefore there is no lacuna the procedure to be followed in applying for revision, is that prescribed under rule 24 In a recent decision of Bonite Bottlers LTD Vs William Issa, Revision 163/2009, I observed before dismissing a PO raised due to non-citation of rule 24 that; 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 1 st position. I now extend that reasoning and hold that until the position is clarified by a higher court or the LC rules are amended, (hopefully concerned authorities will soon address the issue) it would be unfair to penalize a party for non-citation of rule 24 while initiating revision proceedings in a situation like the present, where both the enabling section 91 of the Act and rule 28 of the LC rules have been cited. It is in view of that reasoning that I dismiss the respondent s PO. Turning to the substantive application, the decision I have reached will be best appreciated if I preface the parties arguments with the following rather detailed background: 3
1. The respondents filed a dispute of unfair termination against their employer alleging that they were suspended for unknown reasons. Initially, this dispute was referred to the CMA on 22/2/2008, registered as TAN/CMA/28/2008 and supposedly mediated. That mediation was disputed by the respondents who filed an application for revision registered in this court as Revision No. 88/2008. Thereafter, the Registrar made an order for the matter to commence afresh at the CMA, following which the respondents filed Misc. case No. 3/2008 ultimately dismissed by the CMA as being res-judicata. 2. Dissatisfied, the respondents applied for revision of that CMA order registered as Revision No. 45/2009. In the decision delivered on 6/11/2009, Hon. Moshi J. quashed the Registrar s orders for being made without jurisdiction, as well as the CMA decision made following the Registrar s order for being based on a wrong interpretation of the law. The dispute was ordered to be processed afresh by the CMA. 3. The dispute commenced afresh at the CMA where it was registered as Original/TAN/CMA/28/2008. That is the proceedings that led to the impugned award issued on 5/3/2010. That makes this the 3 rd time the dispute is before this court. The CMA record of proceedings shows that before commencement of arbitration, the applicant stated that they did not have the amended Form No 1- the referral form, the respondents were then ordered to prove the applicant was served with the amended Form No 1 otherwise the 4
Form filed on 22/2/2008 will be used as the basis of the complaint. It would appear they did not comply because the form referred to in the award was the one filed on 22/2/2008. 4. At arbitration no issues were framed, but what can be gathered from the facts adduced and those summarized in the award, the respondent/employees claim appears to have been that they were suspended (kusimamishwa kazi) not terminated (kusimamishwa kazi). The reliefs prayed for were; to be given termination letters; payment of salary from 1/12/2007 at the current minimum wage which they put at shillings Rose= 53,000/=; Karata shillings 48,000/= and Mganga shillings 48,000/=. 5. The applicant/employer case was that the employees were properly terminated because they were paid 1 month s salary in lieu of notice; that they were ready to pay the respondents their February 2008 salary and to reinstate them if they so wished. 6. The arbitrator decided that quashed the employer s termination letters as having been issued contrary to law; and ordered that: a. The respondents should be paid their full salary from 1/12/2007 to date of payment including all their benefits as per their contracts; monies already paid as terminal benefits to be set off. b. Thereafter, the applicant can terminate the respondents according to law c. Payments to the respondents should be as per minimum wage which was by then not below 80,000/=is. 5
d. The applicant could choose to reinstate the respondents provided if that option was taken, the intention should be communicated in writing within 14 days from date of delivery of the award. e. The arbitrator then decided that the payments due was: Rose Peter s was total of TShs. 7,105,800/= being 26 months salary at rate of shillings 134,000/= house rent, transport allowance, interest at 15%; NSSF contribution plus the increase until payment in full, Bwana Karata 80,000/= times 26 months, house rent shiilings 20,000/= with the rest like the above, total shillings 4, 816, 600/= Bw. Mussa total shs 4,812600./= on items like those immediately above (the names used in the award) Total shillings 16,731000/= At the hearing of this application, both parties adopted grounds contained in their affidavits/counter affidavits and added little by way of substantiation. The applicant s grounds were in summary that: First, the arbitrator awarded the sum he did despite the fact that salaries of the respondents prior to the dispute were 53,000/=, 48,000/= and 48,000/= respectively, the amount they asked for in the claim. My response is that this is factually true as demonstrated in paragraph 4 above. Second, the amount awarded (6 (e) above) was despite his finding that the minimum wage was 80,000/= and it had no basis. Third, there was no basis for the other claims awarded like transport, 6
house allowance, unremitted NSSF contribution etc because they were not pleaded in the referral form. Again I find the point to be valid. I have checked the Form referred to in the award and note that the other claims awarded were not pleaded, further, from the recorded of arbitration proceedings; the claims were not raised nor was evidence led to lay the basis for their grant. In view of that, I find the applicants averment that they were denied a chance to be heard on such claims to be justified. After going through the CMA record of proceedings and considering the applicants grounds of complaints, it is obvious to me that arbitration in this case was conducted with material irregularity namely failure by the arbitrator to observe one of the critical stage in conduct of arbitration being that; issues in dispute were not clearly identified and known to the parties before they presented facts and evidence in support/opposition of the claim. A successful arbitration requires that both the arbitrator and the parties in the dispute have a common understanding of the issues in controversy. Principles to guide the conduct of arbitration are prescribed under rule 18 to 22 of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, GN 67/2007. Rule 22 thereof prescribes necessary stages of arbitration. At this stage, I find it useful to repeat what I stated in a case with a similar irregularity that: The substantive law governing conduct and procedure of arbitration proceedings is section 88 (4) and (5) of the Employment and Labour 7
Relations Act, 6/2004 (the Act).That section provides that the arbitrator has discretion to choose the appropriate form for conducting arbitration proceedings the key focus being to deal with substantial merits of the case with a minimum of legal formalities. That is, unlike in ordinary court trials, under arbitration issues in question are dealt with fairly but quickly and informally. That provision is to be read together with Rule 19 and 22 of the Labour Institutions (Mediation and Arbitration) Guidelines, GN 67/2007 (the Guidelines). Rule 19 of the Guidelines prescribes powers of the arbitrator; while providing for stages of arbitration proceedings, it emphasizes the arbitrator s discretion such that the stages of arbitration provided under rule 22 are made subject to that discretion. The import of rule 22 is to ensure parties to the dispute are granted a right to fair hearing. That necessarily means; issues to be arbitrated should be clear to the parties; the parties should have opportunity to present evidence; call witnesses and cross examine them if they so choose; present arguments for their cases and finally, based on that the arbitrator s award should contain reasons for the decision. In brief what is crucial is that; arbitration is conducted in a swift manner yet remains in accord with principles of natural justice. That is, the parties know the nature of the case and are accorded a right to be heard; that the resultant award is not arbitrary but based on the record and therefore it contains reasons for the decision reached and justification for the reliefs granted. The guidelines are not meant to prescribe mandatory stages but rather they provide guidance for achieving the crucial objective of arbitration. How exactly the arbitrator uses discretion in adopting the guidelines depends on the nature of the dispute between the parties. Where for example the issues in dispute are very clear to the parties, for example, where the same are well articulated in the non- 8
settlement certificate issued by the mediator, it may not be necessary for the arbitrator to adhere strictly to the stages provided under rule 22. On the other hand; where the case is complex, involving a number of issues and the parties are unrepresented, adhering to the stages provided under the guidelines is the sure way of arbitrating the dispute fairly. See The GM Pangea Minerals V. Migumo Mwakalasa, LC Revision 35/2008. From the CMA record of arbitration proceedings and reasoning in the award, it is clear fundamental principles which make for a legal arbitration proceedings were not adhered to. In view of that, I agree with the applicant that the arbitrator exercised his jurisdiction with material irregularity and with errors material to the merits of the case. While I am not oblivious of the fact that this dispute has already taken too long to come to finality, I still find that a just determination of the rights of the parties in this case dictate that a proper arbitration be conducted. I accordingly quash the CMA proceedings and subsequent award, and order arbitration conducted a fresh according to law. R.M. Rweyemamu JUDGE 10/4/2011 9