TLLR 2007 To 2012

TANZANIA
LABOUR LAW REPORTS

(TLLR)
2007-2012
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ANDREW O.R. DOMINIC V. TANZANIA REVENUE AUTHORITY
High Court of Tanzania (Labour Division) at Dar es Salaam (Sambo, J.)
Labour Application No. 6 of 2006
Date of Ruling: 21 February 2008
Digest
Commencement date of the Employment and Labour Relations Act and the Labour
Institutions Act (Gazette of the United Republic of Tanzania (N0. 1 Vol. 88) dated
5th January, 2007) – when cause of action for termination of employment arises –
the Labour Court to finalize all disputes falling under the repealed laws within 3
years of the commencement of the ELRA, applying the repealed laws (para 13 of the
3rd Schedule to the ELRA).
Brief Facts
The applicant/employee was terminated by the respondent from employment in 2005

and filed his complaint in the Labour Court in 2007. The respondent raised a point of
prelimnay objection to the effect that the Labour Court had no jurisdiction to deal with
the the matter in terms of Section 7(l) to the Third Schedule of the Employment and
Labour Relations Act 2004. The objection was gounded in the fat that the Labour Court
and. the laws applicable to it came into operation in January 2007 well after the cause of
action had arisen. The applicant argued, inter alia, that the cause of action actually arose
in May 2007 when his appeal to the respondent’s appellate disciplinary body confirmed
his termination.
Held:
1. That because the order for the commencement date of the said Act was published
in the Gazette of the United Republic of Tanzania (N0. 1 Vol. 88) dated 5th
January, 2007, this date must be taken to be the commencement of the
Employment and Labour Relation Act N0. 6 of 2004.
2. That the cause of action for termination of employment arises on the day when
the complainant's service is terminated.
3. That as the Employment and Labour Relations Act, No. 6 of 2004, came into force
on the 5th day of January, 2007, it signified the beginning of the Labour Division
of the High Court of Tanzania; henceforth, any Labour dispute whose cause of
action arose as from that date onwards must be dealt with under the present new
Labour Laws. All other trade disputes whose cause of action arose as from the 4th
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day of January, 2007, backwards are to be dealt with under the replaced laws as per
paragraph 7(1) of the Third Schedule to the Employment and Labour Relations Act,
2004.
4. That under paragraph 13 of the 3rd Schedule to the Employment and Labour
Relations Act, 2004, the Labour Court is empowered to finalize all disputes falling
under the repealed laws within 3 years of the commencement of the said Act, N0.
6 of 2004, applying the repealed laws. Thereafter all disputes were to be dealt with
under the new Labour Court, which, during the said three years, was operating a
dual system in that Learned Deputy Chairpersons and his Lordship the Chairman
of the former industrial court of Tanzania were available to handle matters of the
repealed laws.
Suit struck off.
No Cases Referred to
Mr. K.M. Fungamtama (for Applicant)

Mrs. Feliciana Nkane (for Respondent)
RULING ON PRELIMINARY OBJECTION
SAMBO, J.: The respondent in this complaint, the Commissioner General (TRA), raised a
preliminary objection on points of law by saying: "The Labour Court has no jurisdiction to
deal with the the matter in terms of Section 7(l) to the Third Schedule of the
Employment and Labour Relations Act 2004, as this honourable court and. the laws
applicable to it, came into operation after the cause of action had arisen". Based on this,
the learned counsel for the respondent, Feliciana Nkane, prays that the complaint be
dismissed with costs.
In response to the proposal by both parties, the court ordered that the present
preliminary objection be dealt with by way of written submissions. The Learned Counsel
for the respondent, Feliciana Nkane, filed her reasoned submissions in support of the
objection on 30th Novembr, 2007 and the learned counsel for the complaintant, Mr. K.M.
Fungamtama, filed his reasoned submissions against the objection on 10th day of
December, 2007. The learned counsel for both parties were faithful enough to file their
submission within the time as per the order of the court.
In her reasoned written submission, the learned counsel for the respondent, Mrs Feliciana
Nkane, informed the court that this court and the laws applicable came into operation on
the 20th December, 2006, by virtue of G. N. N0. 1 of 2007, dated 5th January, 2007. The
applicant Mr. Andrew Dominic was terminated from employment on 29th December,
2004 which is the [date of the] cause of action. In this regard it is their considered
opinion that the cause of action in this case had arose before the commencement of the
Employment and Labour Relations Act, 2004. The learned counsel went on submitting
that at the time the complainant was terminated from employment, the laws that were in
place to regulate employment disputes were the Security of Employment Act, Cap. 387
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and the Industrial Court Act, Cap. 60 both of the 2002 R.E. This dispute then ought to be
filed and dealt with under these repealed laws and not the new Labour Laws because
even the Labour Institutions Act, 2004, which creates this court, came into force on the
1st day of February, 2005, a month after the cause of action started to run. She concluded
saying the complainant's pending appeal within TRA cannot change the requirements of
the law as to when the cause of action starts to run.
On the other side, the learned counsel for the applicant, Mr. K.M. Fungamtama, in his
reasoned written submissions, states categorically that after the Labour Institutions Act,
2004 and the Labour Court established thereunder became operational, then trade
disputes could only be instituted in the Labour Division of the High Court irrespective of
the time when the cause of action arose on the strength of the provision of Section 94 (3)
(a)(i) of the Employment and Labour Relation Act, 2004 and Section 51 of the Labour
Institutions Act, 2004 read together with Rule 23(1) of the Labour Court Rules, 2007. But
in dealing with the matter that arose before the commencement of the said laws, the
Labour Court is required to apply the substantive laws of the repealed laws. He went on
saying that the Employment and Labour Relation Act, 2004 or the Labour Institutions
Act, 2004 does not destroy the cause of action or extinguish a right but bars the
application of a new law to a matter which came into being at a time the repealed laws
were inforce.
Secondly, the learned counsel, Mr. K.M. Fungamtama, draws the attention of the court to
the fact of the complaintant filling this complaint after the exhaustion of the appeal
procedures with TRA. He submits that it is trite law that an appeal against the decision of
a disciplinary body of the first instance is a continuation of the disciplinary hearing. In
order to cement his position he approivingly quotes that learned author S. C. Sarkar in his
book Sarkar’s LAW OF CIVIL PROCEDURE, VOL 1, Eighth Edition 1992 at Page 343 where
he states thus:-
An appeal is a continuation of the proceedings of the original court and is in the nature of a
re-hearing, the appellate court has the powers and duties of the first court … (Emphasis
added).
Its therefore his considered opinion that since an appeal is a continuation of proceedings
of the original adjudication body, then the date of final decision in this matter cannot be
the date of the decision of the respondent’s disciplinary body of the first instance which
was made on the 29th December, 2004 of which proceedings were continued through the
appellate disciplinary committees. It is his humble submission that 30th May, 2007 when
the TRA Board of Directors delivered its final decision and held that is affirmed the
decision of the management on the complaintant’s termination, was the date when the
disciplinary proceedings terminated formerly and justified the filing of the instant
complaint in the Labour Court at this point in time. He therefore prays that the
preliminary objection be dismissed with costs.
Having heard the resoned written submissions of the learned counsel for both parties, I
am of the considered opinion that it is now time for the court to state in black and white
as to which day should be taken to be the commencement date for the operation of the
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Employment and Labour Relations Act, N0. 6 of 2004, according to the Laws of the Land.
Government Notice N0. 1 of 2007 dated the 5th day of January, 2007 states that;-
2. The 20th day of December, 2006 is hereby appointed to be the date on which the
Employment and Labour Relation Act, 2004 shall come into operation.
Bearing in mind that this notice was published on 5th January, 2007, it goes without
saying that before the 5th day of January, 2007, that law did not exist, and by saying the
operational date should be taken to be the 20th day of December, 2006, its operation
becomes retrospective, which is prohibited in law. Section 14 of the Interpretation of
Laws Act, Cap. 1 R.E. 2002, states clearly that;-
14.- Every Act shall come into operation on the date of its publication in the Gazette or, if it
is provided either in that Act or in any written law, that it shall come into operation on
some other date, on that date. (Emphasis added).
Now that the order for the commencement date of the said Act was published to the
Gazette of the United Republic of Tanzania No. 1 Vol. 88 dated 5th January, 2007, this
date must be taken to be the commencemnet of the Employment and Labour Relation
Act N0. 6 of 2004. This position of the court is also cemented by the provisions of Section
17 of the Interpretation of Laws Act, CAP I.R. E. 2002, which provides further that;-
17. A power to fix a day on which an Act shall come into operation does not include power
to fix:-
(a) A day prior to the day on which the proclamation fixing the day is published in the
Gazette …
We then call upon the entire public to note and bear in mind that the Employment and
Labour Relation Act, N0. 6 of 2004, should be takento have came into operation on the
5th day of January, 2007 and not otherwise.
In view of what the Learned Counsels for the respondent and complainant submitted in
court, there is a dispute as to when the cause of action for the present cause arose. The
learned counsel for the respondent, Mrs. Feliciana Nkane, in her written submission,
states that the complainant Mr. Andrew Dominic was terminated from employment by
the Management on 29th day of December, 2004. In all her submissions she refers to this
date as the day when the cause of action arose. […] however, I had an opportunity of
reading the termination letter with Ref. No. TRA/PF.HQ/3/ES/0119 of 29th December,
2004, and noted that it partly states as
… the committee decided that you be TERMINATED from employment with effect from
1st January, 2005.
The message we do get from this letter, though written on the 29th day of December,
2004 is that the termination takes effect on the 1st day of January, 2005. It therefore
becomes clear that Mr. Andrew Dominick was terminated from employment on the 1st
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day of January, 2005 which need be taken to be the date on which the cause of action
arose in respect of the submissions of the Learned Counsel for the respondent.
On the issues of when the cause of action arose in this complaint, the learned counsel for
the complainant, Mr. Kennedy Fungamntama, has come up with a very interesting
submission. Based on what the eminent author S. C. Sarkar stated in his book, as quoted
herein above, he leads the court to believe that the cause of action should be taken to
arise on the day when the Board of Directors of TRA delivered its final decision, that is on
30th May, 2007. The Board affirmed the decision of the Management Appointment and
Disciplinary Sub-committee which terminated the employment of the said complainant.
The Learned Counsel is of that opinion becuae in law, an appeal against the decision of a
disciplinary body of the first instance is a continuation of the disciplinary hearing. The
learned S.C. Sarkar was clear when he stated that “An appeal is a continuation of the
proceedings of the original court…….” The Learned Counsel for the complainant wants us
to believe that the Management Appointment and Disciplinary Sub- committee which
decided to terminate the employment of the complainant, is more or less like a Court of
Law and it be taken to be “the original court”. In the same line of thinking, he wants us to
believe that the Board of Diretors of TRA is equivalent to an appeallate court of law. In
my considred opinion, this is tantamount to stretching too much the rule of
interpretation. In any case, the learned S. C. Sarkar was referring to the proceedings in
the courts of law and not beyond.
Notwithstanding what has been just stated herein above, I have carefully perused the
substance of the complaint and noted that the complainant is challenging his termination
from service, the act which was effected on the 1st day of January, 2005. The complaint is
not based on the decision of the Board of Directors of TRA, made on 30th May, 2007, and
therefore, in all fours, this can not be taken to be the date on which the cause of action
arose. I am therefore satisfied that the cause of action for this matter now before this
court arose on the 1st day of 2005, the day when the complainant's service was
terminated.
Earlier in this ruling, I have stated the proper and correct interpretation of the laws of
this land as to when infact the Employment and Labour Relations Act, No. 6 of 2004,
came into force, that is, the 5th day of January, 2007. The coming into force of the said
Act signified the beginning of the Labour Division of the High Court of Tanzania.
Henceforth, any labour dispute whose cause of action arose as from that date onwards
must be dealt with under the present new Labour Laws. All other trade disputes whose
cause of action arose as from the 4th day of January, 2007, backwards are to be dealt with
under, the replaced laws as per paragraph 7(I) of the 3rd Schedule to the Employment
and Labour Relations Act, 2004 which states thus:-
7. - (1) Subject to sub-paragraph (3), any trade dispute stipulated in the repealed laws that
arose before the commencement of this Act shall be dealt with as if those laws had not
been repealed.
In view of the fact that the cause of action for the present matter arose on the 1st day of
January, 2005 when the complainant was terminatied from his employment within the
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Tanzania Revenue Authority (TRA) and so long as the Employment and Labaour
Relations Act, No. 6 of 2004, become operational on the 5th day of January, 2007, it goes
without saying that the law applicable is the repealed laws. The complainant is strongly
urged to institute the suit in search for his rights under the laid down procedures of the
repealed laws.
In his reasoned written submissions, the learned counsel for the complainant, Mr.
Kennedy M. Fungamtama, rightly submitted that even if the cause is to be dealt with
under the repealed laws, the same shall be heard by the Labour Court, a Division of the
High Court, and therefore in his opinion the complaint is rightly before the court. Under
paragraph 13 of the 3rd Schedule to the Employment and Labour Relations Act, 2004, the
Labour Court, a Division of the High Court, is empowered to finalise all disputes falling
under the repealed laws within 3 years of the commencement of the said Act, N0. 6 of
2004, applying the repealed laws. Thereafter all disputes shall be dealt with under the
new Labour Court, which is now operating a dual system in that Lerned Deputy
Chairpersons and his Loardship the Chairman of the former industrial court of Tanzania
are available to handle matters of the repealed laws. The present complainant has been
filed under the procedure laid down in the Labour Court Rules, 2007 something which is
not proper in all respects, because the said Rules are not applicable to it.
Paying respects to what I have ventured to state herein above, I am of the settled mind
that the preliminary objection raised by the learned counsel for the respondent, Mrs
Felician Nkane, is valid to a great extent. The Labour Court, a Division of the High Court
of Tanzania, for the time being, has no jurisdiction to deal with the matter under the new
Labour Laws. I therefore order that the suit be struck off from the records forthwith. I
make no orders as to costs.
Suit struck off.
ALHAMDU NDIMKANWA & 12 OTHERS V. DIRECTOR, VICK FISH MWANZA LTD
High Court of Tanzania (Labour Division) at Mwanza (Rweyemamu, J.)
Revision No. 196 of 2009
Date of Ruling: 24 March 2010
(Original/MA/MZ/NYM/148/2007)
Digest
Revisional powers of the Labour Court – time for applying for revision in the Labour
Court – when does time begin to run –– s. 91(1) ELRA.
Brief Facts
Aggrieved by the decision of the Commission for Mediation and Arbitration (CMA)
award, the applicants filed an application for its revision in the Labour Court. The
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application for revision was clearly filed out of the time prescribed under Section 91 (I) of
the Employment and Labour Reactions Act (No. 6 of 2004); which is 6 weeks. The
respondent raised a preliminary objection to the effect that the Labour Court lacked
jurisdiction because the application was filed out of time.
Held:
1. That revision is sought by a party "who alleges a defect in any proceedings” and that
party can only allege a defect in proceedings if he has in possession of the said
proceedings.
2. That the time for applying for revision in the Labour Court begins to run when the
award is issued and the applicant made aware of it.
3. That where a party has filed notice in time and then requested for the CMA
proceedings in time, time to file the application will begin to count from the day
the same are supplied.
Preliminary objection dismissed
Two applicants ((for 11 Applicants)
Mr. Masungwa, Human Resource Manager (for Respondent).
RULING ON PRELIMINARY OBJECTION
RWEYEMAMU, J: Decision on one of the grounds for Preliminary Objection (PO) raised
by the respondent/employer in this case raises an important question as I shall soon
demonstrate. That ground was that the application for revision was filed out of time.
The applicant/employees were aggrieved by the Commission for Mediation and

Arbitration (CMA) award issued on 26/11/2007, consequently, they filed an application for
its revision in this court on 19/9/2008, clearly out of the time prescribed under Section 91
(I) of the Employment and Labour Reactions Act, 6/2004 (the Act); which is 6 weeks. The
respondent has raised a PO to the effect that, this court lacks jurisdiction because the
application was filed out of time.
The applicants do not dispute the fact that they filed the application out of time, but they
submit that they filed the notice in time but could not timely file the application because
they were awaiting the CMA proceedings which they had applied for, to enable them
prepare a rational application with grounds in the supporting affidavit.
In their reply to the PO the applicants stated that: the award was issued on 26/11/2007,
they filed a notice of intention to appeal on 5th December 2007; that is, 8 days later. The
notice was served to the other party and the Registrar on 10/12/2007 vide Registered Mail
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No. RD006128787. In that notice they requested to be supplied with a copy of the award
and proceedings. They were not supplied with the same.
The question for decision is whether, for purpose of filing an application for revision, time
begins to count from the date the award is issued and the applicant made aware of it, or
when an applicant who has given notice, is supplied with CMA proceedings applied for.
Section 91 (1) (a) of the Act categorically states that:

91.- (1) Any party to an arbitration award made under section 88 (8) who alleges a defect
in any arbitration proceedings under the auspices of the Commission may apply to the
Labour Court for a decision to set aside the arbitration awards;
(a) within six weeks of the date that the award was served on the applicant unless
the alleged defect involves improper procuremen.
(b) if the alleged defect Involves improper procurement, within six weeks of the
date that the applicant discovers that fact.
The literal interpretation of the section means the time begins to run when the award is
issued and the applicant made aware of it. But when the whole of that section is read
together with the whole of Rule 28 of the Labour Court Rules, a different interpretation
comes to mind.
First, revision is sought by a party "who alleges a defect in any proceedings.” Now, how can
a party allege a defect in proceedings if he is not in possession of the said proceedings?
Second, under Rule 28, any party or interested person may apply for revision where its
appears that the responsible person or body appears -
(a) ………………….
(b) ……………………..
(c) To have acted in the exercise of its jurisdiction illegally or with material irregularity;
or
(d) That, there has been an error material to the merits of the subject
matter before such responsible person or body involving injustice. (Emphasis mine).
Again, it is only after a party has seen the proceedings that he can prepare an application
in the prescribed form, which includes adducing grounds for revision. Surely, an applicant
cannot be expected to file an application with supportive grounds unless he is in
possession of proceedings sought to be revised, so as to be able to fault them.
Looked at in that big picture, the grounds raised by the applicants make sense. Provided
the notice is filed in time, the time to file the prescribed application cannot begin to
count until they had such proceedings. Indeed, even this court cannot act after an
application for revision is filed until it is in possession of proceedings sought to be
revised. I should remind all involved parties that the CMA is mandated to give such
proceedings on application under Rule 32 (1) (c) of the Labour Institutions (Mediation
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and Arbitration Rules, GN 64/2007. In view of all the above, I find that where a party has
filed notice in time, then requested for the CMA proceedings in time, time to file the
application will begin to count from the day the same are supplied.
In this case the notice was indeed filed in time and they had made an application for
proceedings timely. In view of that, I find that the application was not time barred and
dismiss the PO on that ground. I do not, however, agree with the applicant's submission
that the PO was raised on frivolous grounds aimed at delaying resolution of the dispute.
The PO involved an important point of law involving the court's jurisdiction. That said, I
move to examine the 2nd PO.
The respondent raised a PO that “…..The application is incompetent having being brought
in contravention of Order XLIII, Rule 2 of the Civil Procedure Act, Cap 33 RE 2002” (CPC).
He submitted, in support, that the affidavit and chamber summons were brought under
different sections of the law, which was tantamount to filing an application without
supporting affidavit. In response, the applicants submitted that the CPC does not apply to
proceedings in this court and prayed for the court to decide the dispute based on
substantive issues and not technicalities of procedure.
On this issue, I agree that the CPC is not applicable, and counsel has not demonstrated
how the procedure governing the practice in this court, i.e. the Labour Court Rules, have
been breached. In the result, the 2nd PO is also dismissed. Hearing of the application is
ordered to proceed.
Preliminary objection dismissed
ALLY MOHAMED KOMBO v. SECURITY GROUP LTD RESPONDENT
High Court of Tanzania (Labour Division) at Dar es Salaam (Rweyemamu, J.)
Date of Ruling: 9 August 2010
(Origina1/CMA/DSM/KIN-ILA/204)
Digest
Powers of the Labour Court to determine revision – awarded granted by Commission

for Mediation and Arbitration not appellable – time for applying for revision in the
Labour Court –wehre the court overlooks a matter parties are not wholly to blamed –
powers of the court where an employee acts without counsel in the matter.
Brief Facts
award, the applicant filed a chamber application ex-parte under Rule 56 of the Labour
Court Rules (GN 106/2007), inter alia, seeking an order for extension of time to file a
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notice of appeal after the expiration of 15 days as it is provided by law. The applicant was
unrepresented and he did not attach an affidavit to the chamber application. The
respondent did not object to this omission and proceeded to file a counter-attack and the
court ordered the matter to be heard by way of written submissions. When composing its
order, the court discovered two anomalies: the application was not supported by an
affidavit and the time available to the applicant within which to file an application for
revision of the award of the CMA had not expired by the time the purported for extension
of time to file a purported appeal was made.
Held:
1. That under Section 91 of the Employment and Labour Relations Act, the time
prescribed for revision of an award is 6 weeks from its delivery by the Commission
of Mediation and Arbitration.
2. That under the law, an arbitrator's award is not appealable to, but revisable by, the
Labour Court.
3. That where the court overlooks an anomaly and proceeds to hear a matter before
it only to discover it later, the parties are not to be blamed.
4. That where the employee is unrepresented, the court has the duty to take into
account the employee’s ignorance of the rules of procedure and consider the
matter as the the principles of substantive justice dictate.
Application struck out, but applicant given time
to file a proper application for revision.
Both parties appearing in person.
ORDER
RWEYEMAMU, J.: This matter emanates from the Commission for Mediation and
Arbitration (CMA) award dated 6/10/2008, where the applicant Ally's claim of unfair
termination was dismissed but other employment claims awarded. Ally was aggrieved by
the decision in that award and sought action in this court.
The court record indicates that on 17/11/2008, he filed a chamber application ex-parte
under Rule 56 of the Labour Court Rules, GN 106/2007, seeking among others an order
that: “May the honourable Court be pleased to allow the Applicant to file a notice of appeal
after the expiration of 15 days as it is provided by law.”
The respondent filed a counter affidavit on 10/12/2008, subsequently on 17/11/2009, the

application was ordered to be argued by way of written submission and the last pleading
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was to be filed by 9/2/2010. Submissions were ultimately filed – indicating a challenge to
the award. In dealing with this matter I have noted anomalies necessitating this order.
Although it is indicated in the chamber summons that the application is supported by

affidavit and the respondent made a reference to it in the counter affidavit, that affidavid
does not appear in the court record. The matter has remained pending for long but
attempts to get a copy of that affidavit from Ally or the respondent have proved futile. To
bring closure to the matter, I have gone through the whole record, noticed an anomaly
and believe this order will bring the desired end without prejudicing substantive rights of
either party.
The anomaly noted, is that; it is not clear from Ally's application what the extension of
time sought is for, if it is for filing revision, that was unnecessary because under section 91
of the Employment and Labour Relations Act, the time prescribed for revision of an
award is 6 weeks from its delivery. That had not expired when the application was filed.
On the other hand, if the application is for appeal as the words used seem to indicate,
then the application is misplaced because under the law, an arbitrator's award is not
appealable.
I have considered the fact that the parties are not wholly to blame, for the current
impasse - the court should have noted earlier particularly at the time when the order for
submissions was made that the affidavit, which might have given better meaning to the
application was missing. That did not happen. I am also not oblivious of the fact that the
employee/Ally was acting without counsel in the matter.
Under the circumstances and in order to bring closure to this matter while mindful of the
parties substantive justice, I strike of the application but grant 30 days from date of
receipt of this ruling to file a proper application for revision if he so wishes. Thereafter,
usual processes shall follow. The Registrar is ordered to serve this order on the parties.
Application struck out, but applicant given time
to file a proper application for revision.
ANDREA CHIZA V. PANGAWE HIGHLAND PLANTATION LTD.
High Court of Tanzania (Labour Division) at Morogoro (Rweyemamu, J.)
Labour Revision No. 143 of 2009
Date of Ruling: 12 July 2011

(Original /CMA/MOR/29/2009)
Digest
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Application for condonation – arbitrator to determine issues before the CMA, not
other otherwise – mediator/arbitrator to hear the parties – Rule 29 (1) of the Labour
Institutions (Mediation and Arbitration) Rules (GN No. 64 of 2007).
Brief Facts
award, the applicant filed an application for its revision in the Labour Court. The decision
of the CMA was following a dispute which arose on 4/5/2007 but was referred to CMA on
30/1/2009 together with Form No.7, the application for condonation of delay. However,
the application for condonation was not heard, although in the decision the arbitrator
made a finding that delay was due to ignorance of the law by the applicant. Conclduing
that ignorance of the law was no defense; the arbitrator dismissed thet application on
that ground.
Held:
1. That the arbitrator, in deciding the issue of Condonation, is obliged to hear

evidence on it and make conclusions based on the evaluation of all relevant
evidence/facts; because this affords the applicant an opportunity to support facts
he had alleged in Form No.7 (i.e. the application for condonation of delay].
2. That it is a material irregularity for the arbitrator/mediator to receive and evaluate

evidence on substantive issues of the dispute, but give decision on a different issue.
3. That procedurally, the issue of limitation of time has to be heard as per procedure
prescribed under Rule 29 (1) of the Labour Institutions (Mediation and
Arbitration) Rules (GN 64/2007) and decided, before the mediator or arbitrator
properly seized of the dispute can proceed with the next processes.
CMA proceedings, decision and order quashed; arbitration to be conducted afresh.
Mr. Eliabu Vahage from TPAWU (for Applicant)

Mr. Jackson Ulomi, HR Manager (for Respondent)
RULING
RWEYEMAMU, J.: This is an application for revision of the Commission for Mediation
and Arbitration (CMA) decision dated 14/5/2009. The decision was following a dispute
which arose on 4/5/2007 but was referred to CMA on 30/1/2009 together with Form No.7,
the application for condonation of delay. According to the proceedings, that application
was not heard, although in the decision the arbitrator made a finding that delay was due
to ignorance of the law by the applicant, but concluded that ignorance of the law is no
defense and dismissed that application on that ground.
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Aggrieved, the applicant filed a supporting affidavit on a number of grounds but I will
deal with only one of them – ground 10 which I find dispositive of the application. The
said ground was uncontested in the counter affidavit in opposition to the application.
There were two aspects to ground 10. First, that the arbitrator erred in deciding the issue
of condonation without hearing it, second; that the arbitrator erred in concluding on the
adduced facts that delay in making the referral was due to ignorance of law by the
applicant, and that such ignorance did not amount to good cause for delay.
At the hearing of this application, the applicant was represented by Mr. Eliabu Vahaye of
TPAWU workers union and the respondent appeared through its Human Resources
Manager. The contents of ground 10 were that:
(i) Kwamba, Mwamuzi alijipotosha katika kufikia uamuzi wa kutupilia mbali madai ya
mlalamikaji kwa maelezo kwamba, sababu zilizotolewa na mlalamikaji kuwa ndizo
zilizopelekea kuchelewa kuwasilisha madai CMA nje ya muda zinatokana na ujinga
wake wa kutojua Sheria (uk wa 7) wa nakala ya uamuzi). Tunapinga kwa nguvu
zote hapo juu kwa hoja zifuatazo: -
(ii) Kwamba, m1alamikaji aliwasilisha madai yake CMA nje ya muda kwa kuzingatia
kwa ukamilifu matakwa ya fungu Na. 11 (2) (3) (5) na fungu la 29 (1) (a) (2) (3) (4) la
kanuni ya sheria ya Taasisi za Kazi Na. 7 ya 2004 (Mediation and Arbitration Rules,
2007 — GN No. 64) (Vielelezo D1 na D2).
(iii) Kwamba, baada ya mawasilisho hapo juu, hapakuwepo na pingamizi la awali

lililowasilishwa mbele ya TUME na upande wa pili, kupinga kuwasilishwa kwa
mgogoro nje ya muda pasipo sababu za kufaa kama inavyoelekezwa na fungu la 29
(5) la kanuni za 2007 - G.N. No. 64, hali ambayo ingepelekea hoja (pingamizi) hapo
juu kujadiliwa kwanza na kutolewa uamuzi na hivyo kila upande kupewa nafasi ya
kusikilizwa - rejea ukurasa Namba 2 aya ya kwanza wa nakala ya uamuzi.
(iv) Kwamba, kwa vile hapakuwepo na pingamizi kutoka kwa upande mwenza, na wala
hapakujitokeza na hoja ya kupima sababu za kuchelewa kuwasilisha madai katika
mwenendo mzima wa shauri hili, ni dhahiri kuwa jambo hili ambalo mwamuzi
amejikita katika uamuzi wa kutupa shauri, hakulipata katika vikao rasmi vya
CMA, kwani siyo moja ya mambo yaliyojadiliwa katika mwenendo mzima wa shauri
hili.
(v) Kwamba, kama yupo mtu wa kulaumiwa katika kuwasilisha mgogoro huu nje ya
muda, basi si mwingine bali ni Afisa wa TUME Ndugu Hilary Jackson, ambaye mara
alikuwa anatenda kazi kama Afisa wa TUME na baadaye anajigeuza Afisa wa Kazi,
na kama kwa kufanya hivyo ilikuwa ni ujinga wa kutojua sheria basi anayesemwa
siyo mlalamikaji bali Ndugu Hilary, kwani hata shauri hili ndiye aliyelipeleka katika
Mahakama ya Hakimu Mkazi na siyo mfanyakazi, na kwamba itakuwa siyo sahihi
mlalamikaji kuadhibiwa kwa makosa yaliyotendwa na mtu mwingine (vielelezo
A1,A2, A3).
Elaborating on the same at the hearing, the applicant's representative submitted that
although an application for condonation was filed, the same was not heard. In response,
the respondent conceded that submission as they had done in the counter affidavit. The
CMA record bears the parties submission out. The application for condonation was not
heard.
14
In the complained of decision, the arbitrator after giving a summary of evidence adduced
on substantive aspects of the dispute, referred to facts stated in the application for
condonation, observed that the applicant delayed to refer the dispute to the CMA
because he had referred the same to the Labour officer (LO), a wrong fora, and concluded
that such ignorance did not amount to good cause for delay. After so concluding, he
dismissed the dispute on ground that it was time barred and the applicant had failed to
show good cause for delay.
It was common cause that in the course of arbitration, facts were adduced in a form of
different correspondences that the LO who was first seized of the dispute was acting in
two capacities, as a LO and as a mediator/arbitrator.
After considering all the above, my decision is as follows:-
1. The arbitrator erred to decide the issue of condonation without hearing evidence on
it, the conclusion reached was not based on evaluation of all relevant evidence/facts
because the applicant was denied the opportunity to support facts he had alleged in
the application form. The arbitrator's decision that the applicant had failed to show
good cause for delay is quashed.
2. It was a material irregularity for the arbitrator/mediator to receive and evaluate
evidence on substantive issues of the dispute, but gave decision on a different issue
that of delay. Procedurally, the issue of limitation of time has to be heard as per
procedure prescribed under rule 29 (1) of the Labour Institutions (Mediation and
Arbitration) Rules GN 64/2007 and decided, before the mediator or arbitrator properly
seized of the dispute can proceed with the next processes.
3. It was undisputed that; the dispute was initially referred to the LO who was also
acting as a mediator/arbitrator, (a fact not surprising given the fact that the CMA was
still in its formative stage); the LO referred the dispute to the Resident Magistrate'
court until 19/1/2009 when the court gave its decision and the applicant was able to
refer the dispute to the proper body-CMA on 30/1/2009.
After considering those facts, I am of the opinion .that had the arbitrator heard the
application, he would have found that it was not the applicant's ignorance of law which
caused the delay, and would have found that the applicant's reasons amounted to good
cause. To avoid further unnecessary delay, I use powers vested in this court under section
91 (4) (a) of the Employment of Labour Relations Act, 6/2004 and decide that on the
undisputed facts, the applicant had good cause for delay.
To conclude, I find this application merited, quash the CMA proceedings and decision
and order the CMA to have the substantive dispute arbitrated afresh according to law.
CMA proceedings, decision and order quashed; arbitration to be conducted afresh.
BENEDICTUS J. MSIMANGIRA V. BODI YA MAMLAKA YA SHULE ZA SEKONDARI

ZA KUJITEGEMEA MKOA WA MWANZA
15
Date of Ruling: 27 November 2008
(Original Complaint No MZA/CMA/304/2007/8)
Digest
Jurisdiction to revise an arbitrator's award (ss.91 and 94 of the ELRA – procedure in
application for revision of the arbitrator’s award – all labour complaints must be
referred to the CMA first – difference between facts adduced in a sworn statement
(an affidavit) and those contained in a mere statement.
Brief Facts
Aggrived by the decision and award of the Commission for Mediation and Arbitration
(CMA), the applicant filed an application for revision in the Labour Court. When the
matter came for hearing, the Labour Court noted that the matter was moved to the Court
by the applicant through Form No. 1 issued under Rule 6 of the Labour Court Rules, GN
106 of 2007 (hereinafter the Court Rules). The Court found this procedure to be wrong.
Held:
1. That the jurisdiction to revise an arbitrator's award is given to this court by

Sections 91 and 94 of the Employment and Labour Relations Act (2004), whereby a
party aggrieved by the arbitrator's award may apply to this court for revision of the
award under section 91 (1) of Act 6 of 2004 read together with Rule 28 of the
Labour Court Rules.
2. That in application for revision the court is moved by a party aggrieved by the
arbitrator's award filing an application by notice under Rule 24 (2), which notice
should substantially comply with Form 4 of the Schedule to the said Court Rules,
which should be supported by affidavit setting out the reasons to support the
application as per Rule 24 (3) to which the respondent is given chance to file a
counter affidavit under Rule 24 (4), and the applicant to file a replying affidavit
thereafter if he so choose.
3. That all labour complaints must be referred to the CMA first so that they are first
mediated; and where mediation fails, a party to the dispute may refer the same to
the Labour Court under section 86 (7) (b) of the ELRA, if it is a complaint over
which the arbitrator has no jurisdiction.
4. That Form No.1 is provided in the Schedule to the Employment and Labour
Relations (Forms) Rules, GN 65 of 2007, issued under section 86(1) of the ELRA
and it is used where a party wishes to refer a complaint (employment dispute) to
the CMA.
16
5. That in law, there is a difference when facts are adduced in a sworn statement i.e.
an affidavit and when they are contained in a mere statement as happened here.
Order for extension of time to file a proper application granted.
RULING
RWEYEMAMU, J.: The applicant Benedictus Msimangira referred a dispute to the

Commission for Mediation and Arbitration (CMA) claiming employment benefits
following termination of employment by the respondent in the total sum of Shs.
6,238,480/=. It would appear mediation failed following which the dispute was arbitrated.
The arbitrator awarded only severance pay but dismissed the rest of the claims.
Dissatisfied by the arbitrator's award the applicant filed this complaint/revision to this
court.
When the matter came for hearing, I noted that the matter was moved to this court by
the applicant filing Form No. 1 issued under Rule 6 of the Labour Court Rules, GN 106 of
2007 (hereinafter the Court Rules). That procedure was wrong. Why?
The right procedure is as follows: Jurisdiction to revise an arbitrator's award is given to

this court by Section 94 of the Employment and Labour Relations, Act 6 of 2004
(hereinafter Act 6 of 2004). A party aggrieved by the arbitrator's award may apply to this
court for revision of the award under Section 91(1) of Act 6 of 2004 read together with
Rule 28 of the Court Rules. How does the aggrieved party proceed?
The court is moved by a party aggrieved by the arbitrator's award filing an application by
notice under Rule 24 (2), which notice should substantially comply with Form 4 of the
Schedule to the said Court Rules. Such notice should be supported by affidavit as per Rule
24 (3) to which the respondent is given chance to file a counter affidavit under Rule 24
(4), and the applicant to file a replying affidavit thereafter if one so chooses.
The court is not moved vide Form No.1 as happened in this case. That form is provided in
the Schedule to the Employment and Labour Relations (Forms) Rules, GN 65 of 2007,
issued under Section 86(1) of Act 6 of 2004. The Form is used where a party wishes to
refer a complaint (employment dispute) to the CMA, where all labour complaints must
begin so that they are first mediated. Where mediation fails, a party to the dispute may
refer the same to this Court under Section 86 (7) (b) of Act 6 of 2004, if it is a complaint
over which the arbitrator has no jurisdiction.
At the time of hearing this application, I asked the parties to address me on whether in
view of the wrong procedure used, the matter was properly before the court. The
17
applicant submitted that revision should proceed even if the procedure used was
incorrect, while the respondent replied that a proper procedure ought to be followed.
Now, the question for decision is whether this court can ignore the pointed out wrong
procedure. I believe not because I find that the mistake is not a mere technicality but
goes to the root of the validity of the application. The proper procedure requires the
application to be supported by reasons contained in the applicant's affidavit and the
respondent to reply in a counter affidavit. In law, there is a difference when facts that are
adduced in a sworn statement, i.e. an affidavit, and when they are contained in a mere
statement as happened here.
I am aware that the procedures under current Labour laws are still new and unfamiliar,
for that reason, I believe interest of substantive justice will not be served if I strike off this
application. Instead, using powers of this court under Rule 55 and 56 of the Labour Court
Rules, I give the applicant an extension of 14 days from today to file a proper application
and the respondent to respond according to law. It is so ordered.
Order for extension of time to file a proper application granted.
BENEDICTUS J. MSIMANGIRA V. BODI YA MAMLAKA YA SHULE ZA SEKONDARI

ZA KUJITEGEMEA MKOA WA MWANZA
Date of Ruling: 30 September 2009
(Original Complaint No MZA/CMA/304/2007/8)
Digest
Jurisdiction of the CMA when matter is time barred – CMA to hear application for
condonation – mandatory requirement for CMA record of proceedings (Rule 32 of the
Labour Institutions (Mediation and Arbitration) Rules (GN No. 64 of 2007), read
together with the Rules 22-27 of the Labor Institutions (Mediation and Arbitration
Guidelines) Rules (GN No. 67 of 2007)).
Brief Facts
The applicant sought revision of the Commission for Mediation and Arbitration (CMA)
award issued on 21/2/2008. The application, supported by affidavit, was resisted by the
respondent. However, after going through the CMA record of proceedings, the Court
noticed two anomalies. First, that the CMA had no jurisdiction to arbitrate the dispute
referred to it because the same was referred out of time. Although the Referral Form No. 1
was accompanied by an application for condonation, the application was not heard and
disposed of before proceeding.
18
Second, although the CMA record contained an award, itself not too elaborate, it had no
record of proceedings as prescribed by law Rule 32 of the Labour Institutions (Mediation
and Arbitration) Rules (GN No. 64 of 2007), read together with the Rules 22-27 of the
Labor Institutions (Mediation and Arbitration Guidelines) Rules (GN No. 67 of 2007).
Held:
1. That the CMA cannot proceed to determine a dispute which is time barred
without first hearing and deciding the application for condonation according to
law.
2. That the absence of proper arbitration proceedings in the CMA vitiates the
proceedings.
CMA proceedings and award quashed; dispute remitted to the CMA for re-arbitration.
1. Peter Mrema v Michael Kusaga High Court of Tanzania at Dar es Salaam, Revision
No. 138 of 2008 (unreported).
2. J.W Ladwa and Peter Kimote High Court of Tanzania at Dar es Salaam, Revision 52
of 2008 (unreported).
3. BIDCO Oil Soap v Abd Said and 3 Others High Court of Tanzania at Dar es Salaam,
Revision No. 11 of 2008 (unreported).
Parties appearing in person.
RULING
RWEYEMAHU, J.: The applicant seeks revision of the Commission for Mediation
Arbitration (CMA) award issued on 21/2/2008. The application, supported by afficavit,
was resisted by the respondent. The parties raised a number of issues but after going
through the CMA record of proceedings, I noticed two issues.
First, that the CMA had no jurisdiction to arbitrate the dispute referred to it because the
same was referred out of time. According to information on the referral form, the
applicant/employee was terminated on 14/3/2007, but filed a referral to the CMA on
31/8/2007. (Document bears CMA stamp of 5/9/2007). The same was accompanied by an
application for condonation which was not heard and disposed of before proceeding. I
thus find this to be another case where the proceedings and award have to be quashed
not based on the substantive issues but because the CMA heard the dispute which was
time barred without hearing and deciding the application for condonation according to
law. This court has held a number of times in respect of cases of referral filed out of time
accompanied with an application for condonation that:
19
Disputes referred late cannot be processed unless the CMA had condoned the delay ...
After receving the respondent's application, the CMA should have served the same on the
applicant as perr rule 29 (5) then proceeded to hear and determine it under rule 29 (10) or
(11). That did not happen in this case, thus the CMA was not properly seized with
jurisdiction when it processed the respondents' referral filed out of time without
condonation. [See Peter Mrema and Michael Kusaga, LC Revision No. 138/2008 and J.W
Ladwa and Peter Kimote, LC, Revision 52/2008, among others].
In those cases, it was held that the CMA was not properly seized of the mattes when it
heard the dispute filed out of time; it should have first decided the issue of delay either
way.
Second, although the CMA record contains an award, itself not too elaborate, it has no
record of proceedings as prescribed by law Rule 32 of the Labour Institutions (Mediation
and Arbitration) Rules GN 64/2007 read together with the Rules 22 to 27 of the Labor
Institutions (Mediation and Arbitration Guidelines) Rules, GN 67/2007. This court has
held a number of times that absence of proper arbitration proceedings vitiates the same.
[See Mandia J., (as he then was) in BIDCO Oil v Soap VS Abd Said and 3 others, LC
Revision No. 11 of 2008, among many others.]
I find the above two anomalies to be material irregularities such that it is unnecessary to
deal with the issues raised by the parties in this application. I quash all the proceedings
leading to the impugned award and order that the dispute be remitted to the CMA and
there, to be processed afresh according to law.
CMA proceedings and award quashed; dispute remitted to the CMA for re-arbitration.
BUZWAGI PROJECT V. ANTONY LAMECK
(Original/SHY/CMA/169/2008)
Digest
Nediator turns to be arbitrator without appointment or parties’ consent – arbitrator
acted with material irregularty – arbitrator to issue an award after arbitration, not
a ruling (Section 88 (9) of the Employment and Labour Relations Act (No. 6 of
2004), read together with the Rule 18 (3) and 22 of the Labour Institutions
(Mediation and Arbitration Guideline) Rules (GN 67/2007)) – CMA’s orbligation to
keep a proper record of proceedings in arbitration – officers of the CMA are
appointed as both mediator/arbitrator.
Brief Facts
20
After his employment was terminated by the applicant, the respondent promptly referred
the matter to the Commission for Mediation and Arbitration (CMA), alleging unfair
termination and sought reinstatement and consequent benefits. The dispute was
unsuccessfully mediated after which the mediator proceeded with arbitration, ultimately
issuing the impugned ruling (instead of award). Dissatisfied the applicant filed an
application of for revision of the award/ruling. The undisputed fact was that after
unsuccessful mediation, the mediator proceeded with arbitration without appointment or
after giving the parties a choice in the matter.
Held:
1. That Section 88 (9) of the Employment and Labour Relations Act (No. 6 of 2004),
read together with the Rule 18 (3) and 22 of the Labour Institutions (Mediation
and Arbitration Guideline) Rules (GN 67/2007), require the arbitrator to issue an
award after arbitration, not a ruling. The procedure of issuing a ruling instead of
an award by the arbitrator in this case was a material irregularity.
2. That the CMA is mandated to keep a proper record of proceedings, an issue

emphasized by this court times without number.
3. That under the Employment and Labour Relations Act mediation and arbitration
are two distinct functions.
4. That mediators are appointed under section 86 (a) and arbitrators under section
88 (2) (a) and while it is true the Acct provides that the CMA must appoint an
arbitrator the Act, read together with the Rules and the Labour Institutions
(Mediation and Arbitration) Guidelines, GN 67/2007, the Guidelines, however, do
not specifically provide for the procedure for such appointment.
5. That officers of the CMA are appointed as both mediator/arbitrator and the
current practice has been that after mediation fails and a certificate is issued, often
the same person proceeds with arbitration if the parties choose to have the dispute
arbitrated. Yet that practice, understandably born out of necessity because the
CMA suffers from human resource constraints, is both contrary to law as stated
above, and may compromise efficient operation of system.
6. That the mediation process best works when parties have full trust in
confidentiality of the proceedings which enables them to participate with
frankness.
7. That when the same person acts as mediator and arbitrator, as happened in this
case, there would be a conflict of roles and compromise to the principle of
confidentiality of the mediation process likely to lead to injustice.
8. That mediation is an important tool in maintaining sound labour relations; as,

albeit a formal one above negotiations/consultations where the parties settle
disputes between each other amicably, it leaves their working relationship
unscarred.
21
9. That in the mediation process the voluntary/amicable aspect of dispute resolution
is only achieved with aid of a neural third party: the mediator.
10. That mediation is made compulsory under the Act in order to achieve a policy
objective of promoting the spirit of amicable settlement of industrial conflicts,
vital for economic efficiency and productivity.
11. That under the Employment and Labour Relations Act, compulsory mediation has
added advantage in that it is conducted with aid of a neutral but qualified person
in labour laws and practice; and apart from enabling quick settlement of labour
disputes, plays such a vital role in maintaining good labour relations.
12. That the CMA should be empowered by the powers that be, in terms of having
adequate resources to enable it achieve the ideal situation where mediation and
arbitration will be carried out by two different persons in any dispute.
13. That the CMA should adopt a practice which will avoid future disputes over the
issue of the same person acting as a mediator and later as an arbitrator: i.e.
consent for the mediator to proceed in arbitration, by having parties in such
disputes sign a consent agreement in the manner already prescribed for
procedures where Med/Arb is adopted; and such signed consent agreement must
be clearly indicated in the record before arbitration proceeds.
Arbitrator acted irregularly; file remitted to CMA for re-arbitration
Cases Referred to
1. BIDCO Oil & Soap Ltd. v Abdu Said & Others High Court of Tanzania (Labour
Division) at Dar es Salaam, Revision No. 11 of 2008 (unreported).
2. Bulyanhulu Gold Mines Ltd. v James Bichuka High Court of Tanzania (Land
Division) at Mwanza, Labour Revision No. 313/2008 (unreported).
3. Tanzania Breweries Ltd. v Charles Malobana High Court of Tanzania (Labour

Division) at Dar es Salaam, Consolidated Revisions No. 24 and 219 of 2007
(unreported).
REASONS FOR THE DECISION
17/3/2010 & 24/3/2010
Rweyernamu, J.: On 17/3/2010 after hearing the parties on grounds contained in their
affidavits to this application, I gave the following decision in the order:
CMA proceedings including the award are quashed. File remitted to CMA with an order
the process commence afresh beginning with mediation and dealing with any Preliminary
Objections if any.Reasons for the order shall be given on 24/3/2010.
I now proceed to give my reasons.
22
After considering parties’ arguments in support of the adduced and contradicted grounds
in their affidavits and in light of the Commission for Mediation and Arbitration (CMA)
record, I found out that the facts on one of the issues were undisputed, and that the
decision on the undisputed facts is sufficient to dispose of the matter. The undisputed
fact was; that after unsuccessful mediation, the mediator proceeded with arbitration
without appointment or after giving the parties a choice in the matter. This court has
already taken a position on that issue as I shall discuss later. In the circumstance, the
decision in this application was a foregone conclusion and I saw no reason to make the
parties wait around for the final obvious verdict.
I commence by giving brief background facts: Employment of the respondent was

terminated by the applicant/employer on 25/8/2008 and he promptly referred the matter
to the Commission for Mediation and Arbitration (CMA) on 29/8/2008. In the referral,
the respondent alleged unfair termination and sought reinstatement and consequent
benefits. The dispute was unsuccessfully mediated after which the mediator proceeded
with arbitration, ultimately issuing the impugned ruling (instead of award) on 3/11/2008.
Dissatisfied the applicant filed an application of for revision of the award/ruling on
grounds summarized below.
1. The arbitration erred in overruling the preliminary objection (PO) by the applicant
without giving reasons. The PO was to the effect that the applicant was not the
proper party to be sued as it was not the respondent’s employer.
2. The person who mediated the dispute procceded with arbitration without a
separate appointment to act in that second capacity.
3. The arbitration was conducted with material irregularity in that the arbitrator
failed to follow the procedures prescribed under the Labour Institutions
(Mediation and Arbitration Guidelines) Rules GN 67/2007 to wit: Rule 22 which
requires opening statements and framing of issues; and rule 27 thereof which
provides for contents of an award. The arbitrator misapprehended the evidence,
failed to properly evaluate the same both material errors involving ijustice on the
applicatnt’s part.
In response, the respondent submitted that:
1. He was employed by the applicant and the contract of employment states so; as
such, the arbitrator's decision was proper.
2. On the issue of the same person being a mediator and arbitrator, that was what both
parties agreed. He added that there is a shortage of arbitrators and the arbitrator in
question came from Shinyanqa.
3. The arbitrator adhered to all procedures and the resultant award was proper and
in compliance with Rule 27 of the Rules.
4. There was no misapprehe nsion of evidence on the part of the arbitrator,
23
The issue I find dispositive is number 2 above; before discussing the same, however, I
should point out for benefit of future practice that I noted two material irregularities
which would have the effect of vitiating proceedings.
First, I noted from the CMA record that the arbitrator issued a ruling instead of an award.
Section 88 (9) of the Employment and Labour relations Act 6/2004, read together with
the Rule 18 (3) and 22 of the Labour Institutions (Mediation and Arbitration Guideline)
Rules, GN 67/2007, require the arbitrator to issue an award after arbitration, not a ruling.
The procedure of issuing a ruling instead of an award by the arbitrator in this case was a
material irregularity.
Two, from the parties’ affidavits and submissions in court, they both agree there was a PO
raised and a ruling issued, what was contested in this court was whether the arbitrator's
decision on the PO was in err as to warrant revision. Yet, the CMA record contains no
indication that there were such proceedings leading to the impugned ruling nor was that
ruling part of the record. That is a curious and serious irregularity, particularly because a
material issue was involved namely whether the respondent was an employee of the
applicant or not. I should only stress that the CMA is mandated to keep a proper record
of proceedings, an issue emphasized by this court times without number. See for example
a discussion by Mandia J., as he then was, in BIDCO Oil & Soap Ltd. v Abdu Said & Others
High Court of Tanzania (Labour Division) at Dar es Salaam, Revision No. 11 of 2008
(unreported).
That done, I turn to discuss the dispositive issue the complaint that after unsuccessful
mediation, the mediator proceeded with arbitration without appointment or without having
obtained the parties’ consent a choice in the matter. This issue has been discussed
extensively in a number of revision applications and I find it time saving to reproduce the
discussion in Tanzania Breweries Ltd. v Charles Malobana High Court of Tanzania (Labour
Division) at Dar es Salaam, Consolidated Revisions No. 24 and 219 of 2007 (unreported), a case
which relies on the principle as first developed in the case of Bulyanhulu Gold Mines Ltd. v
James Bichuka High Court of Tanzania (Land Division) at Mwanza, Labour Revision No.
313/2008 (unreported). To enable an appreciation of the reasons for the decision on that
issue, I shall quote an extensive portion of the ruling in the Tanzania Breweries. That case
on the main relied on the reasoning in James Bichuka which went thus:
"Based on the above, the applicant prays for decision on the factual and legal Issue of;
"whether there was a fresh appointment for the mediator to act as arbitrator in the same
proceedings" At the hearing, the applicant was represented by Mr. Yusuf Advocate while
the respondent appeared in person.
Substantiating the issue, Mr. Yusuf submitted that the law under Section 88(2) (a) of the
Employment and Labour Relations Act, 6/2004 (the Act) requires that an arbitrator has to
be appointed; that such appointment has to be on record and a certificate to that effect
issued otherwise the arbitrator has no powers to act and proceedings conducted without
such appointment are void. As authority for such proposition, Counsel reteffeed the court
to its decision by Mandia J., as he then was, In G.M Mufindi Paper Mills Vs. Masoya
24
Magoti, Revision 7/2007, In his counter affidavit, the respondent contradicted the
applicant and required strict proof of the allegation and submitted at the hearing that;
“regarding the issue of mediator/arbitrator, my response is as per my counter affidavit. I
belive the arbitrator recorded what transpired.
I have checked the CMA record, it reveals that the dispute was before Mr Katindi as
mediator on 27/8/2007 when an order was made to the effect that; “Mediation has failed.
Both parties have agreed the dispute be referred for arbitration". The next date was
17/9/2007 when the dispute came before MR. Katindi as arbitrator, but ar bitration was
adjourned by consent of the parties to another date. Ultimately, arbitration was
conducted by the same person and an award issued by him on 6/10/2008. On those facts,
it is clear the issue of appointment of the arbitrator was not on record as submitted by
counsel for the applicant and contradicted by the respondent.
I have had opportunity to read the cited decision of Masoya Magoti which is persuasive.
My understanding of the holding of that case is that the Hon. Judge discussed the import
of section 88 (2) (a), (b) and (c) of the Act, which provide that where mediation fails:
1. The mediator must issue a certificate as spelled out in Rule 16(1) of the labour
Institutions (Mediation and Arbitration) Rules GN 64/2007 (the Rules) then the
Commission(CMA); thereafter,
2. The CMA must appoint an arbitrator to decide the dispute, and it must,
3. Determine the time date and place of arbitration proceedings, and;
4. Advise the parties to the dispute of the details stipulated in 2 and 3 above.
The Hon, Judge underscored two points. First he explained the, role of mediators under
the Act, and the duty to Issue a certificate at the end of the process if mediation fails.
Second, he emphasized that where the parties choose arbitration, the CMA must appoint
an arbitrator who must decide the case and issue an award. The issue of procedures to be
followed for such appointment however was not discussed; neither did the Hon, Judge
specifically state it as a principle of law that without such appointment, the subsequent
proceedings are void.
This court must now make a specific finding because the issue of appointment of
arbitrators before they conduct each particular arbitration; and connected with it, the
issue of mediators automatically convertinginto arbitrators after failure of mediation has
been raised as a ground for revision in a number of applications before and now pendig in
court.
Admittedly, a decision of the issue causes me great anxiety. Why? For one my decision
will imnpact a number of disputes already filed in this court. While under the Act
mediation and arbitration are two distinct functions; mediators are appointed under
section 86 (a) and arbitrators under section 88 (2) (a) and while it is true the Acct
provides that the CMA must appoint an arbitrator the Act, read together with the Rules
and the Labour Institutions (Mediation and Arbitration) Guidelines, GN 67/2007,
however, do not specifically provide for the procedure for such appointment.
I take judicial notice of the fact that officers of the CMA are appointed as both
mediatior/arbitrator and the current practice has been that afte mediation fails and a
certificate is issued, often the same person proceeds with arbitrationif the parties choose
to have the dispute arbitrated. Yet that practice, understandably born out of necessity is
both contrary to law as stated above, and may compromise efficient operation of system.
25
I state that the practice is born out of necessity because: I also take judicial notice of the
fact that the CMA suffers from human resource constraints. Some area offices established
uinder Section 15 (1) (c) of the Labour Institutions Act, 7/2004, are manned by one person
acting as both mediator and arbitrator. This is a serious challenge.
For one the resultant practice is contrary to law and the confidentiality prescribed under
Rule 17 of the M&A rules remain but on paper, That rule provide that; "no person may
refer to anything said at mediation proceedings during any subsequent proceedings,
unless the parties agree in writing: The said provision aims at preserving the
confidentiality of the mediation process which is a cornerstone for success of mediation as
an effective avenue for quick resolution of labour disputes.
Generally, mediation system best works when parties have full trust in confidentiality of
the proceedings which enables them to participate with frankness. Further when the same
person acts as mediator and arbitrator as happened in this case, there would be a conflict
of roles likely to lead to injustice. The adopted practice therefore inherently deprives the
CMA of a very effective tool for fast dispute resolution. [Emphasis supplied].
Before continuing, I wish to stress a point regarding the role of mediation not discussed
in that case. In essence mediation is also an important tool in maintaining sound labour
relations. It is a stage, albeit a formal one above negotiations/consultations where the
parties settle disputes between each other amicably- which leaves their working
relationship unscarred. Under mediation, the voluntary/amicable aspect of dispute
resolution is maintained, only it is achieved with aid of a neural third party.
Mediation is made compulsory under the Act in order to achieve a policy objective of
promoting the spirit of amicable settlement of industrial conflicts, vital for economic
efficiency and productivity. Under the Act compulsory mediation has added advantage in
that it is conducted with aid of a neutral but qualified person in labour laws and practice.
The point stressed is that mediation, apart from enabling quick settlement of labour
disputes, plays such a vital role in maintaining good labour relations, the importance of
which need no further discussion. In view of that, the CMA should be empowered by the
powers that be; in terms of having adequate resources to enable it achieve the ideal
situation where mediation and arbitration will be carried out by two different persons in
any dispute. That observed, I re turn to the task of examining development of the
practice rule developed in the case of James Bichuka.
Granted, there are disputes where from their very nature, the same person may perform
both functions-the kind of scenario envisaged under the combined mediation and
arbitration (Med/Arb) provisions, A different procedure is prescribed for the Med/Arb, or
which a different procedure of appointment is required as prescribed under Rule 18 of the
M&A rules. That system is itself not without fractical difficulties as discussed by Mandia J.
as he then was, in the BIDCO case referred to above when he observed that:
Rule 18 of GN 6412007 provided for combined Mediation and Arbitration procedings, but
in my view this rule does not override the provition of Rule 16 with regard to issuing a
certficate where mediation has failed.
The Commission has the power under Rule 18 of GN 64/2007 to order for combined
Mediation/Abitration proceedings after giving due notice under Rule 18 (2). How this can
be done is a moot point, since the parent Act i.e. the Employment and Labour Relations
Act prescribes for the appointment of a mediator of a dispute first under Section 55 (3) (a)
26
and, after the failure of mediation, appoint an arbitrator under Section 88 (2) (a).
Appointing one as both a mediator and arbitrator at the same time depends on how efficient
the mediator is in finalizing the mediaationl writing the certificate and receiving the
appointment of arbitrator. Since mediation of disputes is mandatory, and arbitration is also
mandatory it remains to be seen how the two appointments can, be made at the same time
without flouting the law. (Emphasis mine)
Be that as it may, until necessary enabling provisions are made and the CMA equipped to
effectively and efficiently carry out its important functions by being able to assign two
different persons to perform the two functions in each case, the reality on the ground
remains as explained and the CMA to adopt a compromise practice which is not directly
contrary to law and does not precipitate injustice to either party.
As already observed, currently most of its officers are appointed as both mediator and
arbitrator. To avoid nullification, the next best proper practice, which fortunately some
arbitrators are already using, is to inform the parties (and record their responses); that
he/she is the appointed arbitrator. Where the parties feel that the previous role as the
mediator will adversely affect their interest, they will state so, and in case of that
eventuality, the dispute has to be arbitrated by someone else even if that person has to
come from a different area office-with attending costs and delays. In the pesent situation,
where a mediator proceeds with arbitration of a dispute without appointment or complying
with the above procedure, that is, giving parties a choice in the matter) subsequent
proceedings will be found td have been conducted with fundamental irreqularity and
reviewable.
“To make the practice more clear, I should add a point not stated in James Bichuka that
the CMA should therefore adopt a practice which will avoid future disputes over the issue
of parties' choice in the matter i.e. consent for the mediator to proceed in arbitration, by
having parties in such disputes sign a consent agreement in the manner already
prescribed for procedures where Med/Arb is adopted - see Rule 30 of the Guidelines, GN
67/2007. Such signed consent agreement must be clearly indicated in the record before
arbitration proceeds.
In this case, I similarly find that since it is clear from the record that the person who
mediated the dispute proceeded with arbitration without any indication that he was the
appointed arbitrator or that parties were given a choice in the matter, the arbitrator
exercised jurisdiction with material irregularity. For that reason, the CMA proceedings
including the award and subsequent orders are hereby quashed. The CMA file to be
remitted with an order that it conduct the process afresh according to law.
Arbitrator acted irregularly; file remitted re-arbitration
COCA COLA KWANZA LTD. V. EMMANUEL MOLLEL
High Court of Tanzania (Labour Division) at Dar es Salaam (Mandia, J.)
27
Date of Ruling: 24 October 2008
Digest
Link between proceedings conducted in the CMA and the Labour Court (Sections 91 and 94
(1) b) (i), respectively, of the Employment and Labour Relations Act) - marginal notes are
not part of the body of the legislation - Sections 91 and 94 of the Employment and Labour
Relations Act do not provide for the procedure which a party may adopt in filing an
application for revision - the procedure is provided for in the Labour Court Rules (Part III of
the Rules i.e. Rules 24 and 25 and also for review, revision and appeal in part IV: Rules 26 to
50) - any person intending to file any application in the Labour Court shall first give notice
to all persons who have an interest in the application (Rule 24 (1), and that the notice of
application shall comply with Form Number 4 in the Schedule to the Rules (Rule 24(2) -
definition of application in Rule 2 (2) falls on all fours with the requirements of Rule 24(11)
sub-rules (a) to (c) - distinction between a notice of application under Rule 24 (1) and Rule
24(2), and an application under Rule 24 (11) - Rule 24(2) cannot be used to initiate revisional
proceedings in this Court - Section 94(1)(b)(i) allows the Labour Court to review and revise
awards made by an arbitrator – an aggrieved party can file an application for review under
Rule 26 of the Labour Court Rules, or an application for revision under Rule 28 of the
Labour Court Rules - for an application for review the procedure to be followed is outlined in
Rule 26(2) and it allows the interested party to take out a chamber summons supported by
an affidavit - in the case of revision under Rule 28 the Court may act suo moto and invoke
its revisional jurisdiction, or a party may apply - no procedure is set out in case the
application is preferred by an aggrieved party - the mischief caused by the absence of
procedure for applications for revision under Rule 28 can be cured by applying the
provisions of Rule 26 (2) mutatis mutandis to Rule 28 (1) of the Labour Court Rules - a party
applying for revision of proceedings under Rule 28 (1) shall take out a chamber summons
supported by an affidavit, and the requirements of Rule 26 (2) (a) (b) and (c) shall apply to
revisional proceedings before this court - when the CMA or Labour Court order
reinstatement on ground of unfair termination, the employer has either the option of
reinstating the employee, failing which the employer should pay the respondent
compensation of twelve month's remuneration in addition to other terminal benefits due
like notice, leave due and severance allowance.
Brief Facts
After his employment was terminated, the respondent referred his grievance to the CMA
claiming the termination was unfair and he applied for reinstatement with effect from the
date of termination. After hearing in the CMA, the arbitrator decided that the respondent
was charged with negligence, but the applicant did not adduce evidence to prove
negligence, and instead terminated the services of the respondent for the alleged offence
of incapacity for which there was no disciplinary charge against the employee. The
arbitrator found that the termination offended section 37 (2) (a) (b) and (c) of the
Employment and Labour Relations Act (No. 6 of 2004). The arbitrator ordered that the
28
respondent be reinstated into employment without loss of benefits. The employer was
aggrieved by this award, hence preferred an application for revision in the Labour Court.
Held:
1. That Section 91 (1) clearly shows that for a party to initiate action under this
section there must be an allegation of a defect in the arbitration proceedings being
complained about.
2. That the scope of action of the Labour Court is limited as shown in Section 91(2):
the Labour Court can only act where there is proof of misconduct on the party of
the arbitrator, or where the award has been procured improperly.
3. That Sections 91 and 94 of the Employment and Labour Relations Act do not
provide for the procedure which a party may adopt in filing an application for
revision in the Labour Court, though the marginal note to section 91 talks of
"Revision of Arbitration Award." The marginal notes, as every lawyer knows, are
not part of the body of the legislation. All that Section 91 (1) provides is for the
aggrieved party to apply to the Labour Court for a decision to set aside the
offending award without outlining the procedure.
4. That the procedure is provided for in the Labour Court Rules made under Section
55 of the Labour Institutions Act, Number 7 of 2006. The Labour Court Rules
provides for Applications in Part III of the Rules i.e. Rules 24 and 25 and also for
review, revision and appeal in part IV of the Rules i.e. Rules 26 to 50. By making a
dichotomy between application under Part III and the matters provided for under
part IV the rules intended the two procedures to be separate.
5. That the message given by Part III (that is, Rule 24 and 25) of the Labour Court
Rules is that any person who intends to file any application shall first give notice
to all persons who have an interest in the application (Rule 24 (1), and that the
notice of application shall comply with Form Number 4 in the Schedule to the
Rules (Rule 24 (2).
6. However, this is a notice of intention to do something in the future and cannot be

used to initiate proceedings. Rule 24 (3) brings confusion into the procedure by
saying the application shall be supported by an affidavit, and by setting out what
the affidavit should contain, Since form Number 4 merely indicates an intention to
file an application in the future, Rule 24 (3) should have continued the message of
intention to file an application. The rule should therefore have started with the
words "The notice of application shall …” to link Rule 24 (2) and Rule 24 (3). As
it is Rule 24 (3) hangs in the air because the affidavit has no vehicle to move it into
Court. Since the thrust of Rule 24 sub-rules (1) and (2) is to notify interested
parties of what will be filed later, the absence of the words "notice of application"
in sub-rule 3 appears to be a slip of the pen (lapsus kalami). The fact that a notice
is filed accompanied an affidavit to which a notice of opposition or counter
affidavit or both may be filed under Rule 24 (4) and a replying affidavit may be
filed under Rule 24 (5), and the fact that the Registrar is enjoined to fix a date of
29
hearing under Rule 24 (7) shows that a notice of application is a self-sub porting
application to be determined by the Court under Rule 24 (10).
7. That the definition of application in Rule 2 (2) falls on all fours with the
requirements of Rule 24 (11) sub-rules (a) to (c). There is therefore a clear
distinction between a notice of application under Rule 24 (1) and Rule 24 (2), and
an application under Rule 24 (11). From its wording and intent Rule 24 (11) should
have been a separate rule because it has no contextual relationship with the notice
of application taken out under Rule 24 (2).
8. That Rule 24 (2) cannot be used to initiate revisional proceedings in this Court.
Since section 94 (1) (b) (i) allows this Court to review and revise awards made by
an arbitrator, an aggrieved party can file an application for review under Rule 26 of
the Labour Court Rules, or an application for revision under Rule 28 of the Labour
Court Rules. For an application for review the procedure to be followed is outlined
in Rule 26 (2) and it allows the interested party to take out a chamber summons
supported by an affidavit.
9. That in the case of revision under Rule 28 the Court may act suo moto and invoke
its revisional jurisdiction, or a party may apply. The problem here is that no
procedure is set in case the application is preferred by an aggrieved party.
10. That the mischief caused by the absence of procedure for applications for revision
under Rule 28 can be cured by applying the provisions of Rule 26 (2) mutatis
mutandis to Rule 28 (1) of the Labour Court Rules. This means a party applying for
revision of proceedings under Rule 28 (1) shall take out a chamber summons
supported by an affidavit, and the requirements of Rule 26 (2) (a) (b) and (c) shall
apply to revisional proceedings before this court.
11. That the holding of a disciplinary inquiry and thereafter conducting an audit in
which the employee was excluded, and the dismissal of the employee based on the
one-sided audit was unfair termination within the meaning of section (37) (1) of
the Employment and Labour Relations Act. If the employer wanted the audit
report to be the basis of the termination of services he should have conducted the
audit first and thereafter conducted the disciplinary proceedings.
12. That when the CMA or Labour Court order reinstatement on ground of unfair
termination, the employer has either the option of reinstating the employee,
failing which the employer should pay the respondent compensation of twelve
month's remuneration in addition to other terminal benefits due like notice, leave
due and severance allowance.
Application dismissed.
Mr. Anthony Arbogast, for the Applicant

Mr. Njau, for the Respondent
30
RULING
MANDIA, J.: The respondent Emmanuel Mollel referred a dispute to the Commission for
Mediation and Arbitration on 23/06/2007. The Dispute was about termination of services
by the applicant Coca Cola Kwanza Ltd. The respondent claimed the termination was
unfair and he applied for reinstatement with effect from the date of termination which is
31/5/2007. The proceedings before the Commission show that on 19/04/2007 the
applicant wrote a letter to the respondent the substance of which reads as follows:-
"Re. Call for a disciplinary hearing.
The report on stock differences in your Dar Warehouse between January to March
showing a loss of over 11,000 empty cases, has highlighted issues of gross negligence.
I have scheduled an immediate hearing of this matter where you would be heard and will
able to present your defence as to why serious disciplinary action should not be taken
against you. This hearing is scheduled for tomorrow at 3 p.m. in the HR training room 1.
You are free to bring witness that you feel may strengthen your defence. The regional
management team will be represented by HR and finance.
I look forward to your presentation.
Yours sincerely,
Siliana Mkanda
Operations Manager Dar.”
The letter, the operative part of which is quoted above, shows clearly that there is a
charge of gross negligence levelled by the applicant who is the employer, a charge which
was set for hearing on the date following the letter.
The proceedings in the Commission for Mediation and Arbitration show that after the
disciplinary hearing, the employer terminated the services of the respondent by letter
dated 31/5/2007, the substance of which reads thus:-
“RE: TERMINATION ON INCAPACITY
Please refer to your letters on suspension issued to you by the company management
starting from 20/4/2007. After the inquiry which was held on 20th April, 2007,
management assigned auditors to audit SD/WM value chain covering the period from
1/1/2007 to 11/5/2007. The audit report showed that Warehouse total loss was
128,695,439/=, and the audit shows that SAP was correctly and accurately processing Cfbs
in warehouse through check in and settlement processes.
Management believes that being the Warehouse Manager and WM Module Coordinator if
you would have taken appropriate measures at the right time, the problem would have
been solved earlier, when the loss is still small. Your failure to take action has caused the
company to loose (sic) all this money.
As a consequence of the above, we regret to inform you that you have been terminated
from employment with this company on incapacity with effect from 31/5/2007.
You will be paid `the following terminal benefits:
31
1. Payment of one month's salary in lieu of notice = 2,362,762/=
2. Payment in lieu of leave = 1,811,451 Due = 11 days (2006) plus 12 days, (2007) = total
23 days X 2,362;762/30
3. Payment of severance allowance pay of 7 days salary for every completed year of service
for the service period. 19/1/1992 to 30/05/2007= 6.362 years X 2,362,762 X 7/30=
9,020,553/=
Total payment Tshs. 13,194,766 which is subject to tax (PAYE).
By this letter, you are instructed to hand over to the undersigned company properties
under your jurisdiction, and to the Country Employees Relations Manager your identity
card and AAR medical cards before collecting your payment. Also please complete
company exist form.
Wishing you all the best in your future endeavors.
Regards.
Sihana Mkanda
Regional Operations Manager."
The letter of termination of services shows that the reason for termination of services was
incapacity, and that this incapacity was discovered after a financial audit conducted by
auditors at the instance of the management. The financial audit covered the period
1/1/2007 to 11/5/2007. The financial audit uncovered a loss of Tshs. 128,695,439/=. Earlier
on in my ruling I showed that the letter from the employer which contained the charge of
gross negligence showed that the charge of gross negligence arose out of a loss of stock,
to wit, 11,000 empty cases, and that this loss covered the period January, 2007 to March,
2007.
After a due hearing in the Commission, the Arbitrator decided that the respondent was
charged with negligence but the employer did not adduce evidence to prove negligence,
and instead terminated the services of the respondent for the alleged – offence of
incapacity for which there was no disciplinary charge against the employee. The
Arbitrator found that the termination offended section 37 (2) (a) (b) and (c) of the
Employment and Labour Relations Act, Number 6 of 2004. The arbitrator ordered that
the respondent be reinstated into employment without loss of benefits.
The employer was aggrieved by this award, hence this application for revision.
When the application for revision came for hearing before me the applicant/employer
was represented by Mr. Arbogast, learned advocate, and the respondent was represented
by Mr. Njau, learned advocate. Mr. Arbogast argued against the merits of the decision
made by the Commission. He faulted the arbitrator who decided that the respondent was
held liable for a charge which was not leveled against him at the disciplinary inquiry. In
the view of Mr. Arbogast, the disciplinary proceedings held against the respondent were
proper since they were all based on a loss of about 11,000 empty cases of Coca Cola valued
at about Tshs. 128,000,000/=. The difference between gross negligence shown as a charge
in the letter calling for disciplinary proceedings, and the reason of incapacity as given in
the letter of termination is not serious enough to warrant the order of reinstatement
32
made by arbitrators, Mr. Arbogast argued. According to him the arbitrator narrowly
interpreted the provisions of the law and thereby defeated justice.
On his part, Mr. Njau, learned advocate for the respondent, argued that the application
for revision was bad in form and should be thrown out. Mr. Njau argued that the
application is preceded by a notice under Rule 24 (2) of the Labour Court Rules, and
thereafter the applicant filed his application under Rule 24 (11) and Rule 25 of the Labour
Court Rules. Mr. Njau argues that Rule 24 (11) has no connection with applications for
revision, a situation which also applies to Rule 25. According to Mr. Njau the application
should have been brought under Rule 28 of the Labour Court Rules which allows for
applications for revision at the instance of a party, and also allows the Court to proceed in
revision suo moto along the parameters laid down in Rule 28 (1) (a) to (d.,
In the alternative, Mr. Njau argued the merits of the application for revision by
submitting that the respondent was called for a disciplinary hearing where the charge was
gross negligence that his letter of termination of services referred to incapacity as the
reason for termination of services. Mr. Njau therefore argues that the respondent has his
services terminated for an offence for which he was not given a chance to defend himself.
Mr. Njau also argued that the employer conducted an audit after the disciplinary hearing
but did not give the employee a chance to defend himself on the audit report, thereby
breaching rules of natural justice, Section 37 (2) of the Employment and Labour Relations
Act as well as Rules 12 and 17 of the code of Gocd Practice GN 42 of 2007.
Let me first tackle the argument on defect of form as raised by Mr. Njau, learned
advocate. The provisions of law which provides the link between proceedings conducted
in the Commission for Mediation and Arbitration on [the] one hand, and the Labour
Court on the other, is Sections 91 and 94 (1) b) (i), respectively, of the Employment and
Labour Relations Act. Section 91 reads thus:-
91.- (1) Any party to an arbitration award made under Section 88 (8) who alleges a defect
in any arbitration proceedings alleges proceedings under the auspices of the
Commission many apply to the Labour Court for a decision to set the arbitration award:-
(a) within six week of the date date that the award was served on the applicant unless
the alleged defect involves improper procurement,
(b) if the alleged defect involves improper procurement, within six weeks of the date
that the applicant discovers that fact.
(2) The Labour Court may set aside an arbitration award made under this Act on grounds
that:-
(a) there was misconduct on the part of the arbitrator;
(b) the award v as improperly procured.
(3) The Labour Court may stay the enforcement of the award pending its decision.
(4) Where the award is set aside, the Labour Court may -:
(a) determine the dispute in the manner it considers appropriate;
33
(b) Make any order it considers appropriate about the procedures to be followed to
determine the dispute.
Section 91 (1) clearly shows that for a party to initiate action under this section there must
be an allegation of a defect in the arbitration proceedings being complained about. The
scope of action of the Labour Court is limited as shown in Section 91 (2): the Labor Court
can only act where there is proof of misconduct on the party of the arbitrator, or where
the award has been procured improperly. Section 91 of the Employment and Labour
Relations Act does not, however, provide for the procedure which a party may adopt,
though the marginal note to section 91 talks of "Revision of Arbitration Award." The
marginal notes, as every lawyer knows, are not part of the body of the legislation. All that
Section 91 (1) provides is for the aggrieved party to apply to the Labour Court for a
decision to set aside the offending award without outlining the procedure. We will go
into procedure when discussing the relevant provisions of the Labour Court Rules.
As I said earlier, the other link between the Commission and the Labour Court is Section
94 (1) (b) (i) which reads thus:-
94 -(1) Subject to the Constitution of the United republic Of Tanzania, 1977, the Labour
Court shall have exclusive Jurisdiction over the application, interpretation and
implantation of the provisions of this Act and to decide:-
(a) ………………………………………………
(b) Reviews and revisions of
 Arbitrators awards made under this part;
 ………………………………………………
(c) ………………………………………………
(d) ………………………………………………
(e) ………………………………………………
Under section 94 (1) (b) (i) of the Act, the Labour Court can determine matters filed in
review and revision of awards made by an arbitrator.
Both section 91 and section 94 do not provide for procedure. The procedure is provided
for in the Labour Court Rules made under Section 55 of the Labour Institutions Acct,
Number 7 of 2006. The Labour Court Rules provides for applications in Part III of the
Rules, i.e. Rules 24 and 25 and also for review, revision and appeal in part IV of the Rules,
i.e. Rules 26 to 50. By making a dichotomy between application under Part III and the
matters provided for under Part IV the Rules intended the two procedures to be separate.
Rule 2, which is the rule providing interpretations, has a definition of [an] “application” in
rule 2 (2) which goes thus:-
34
[A]pplication includes an interlocutory application or any application directed by the
court […].
Rule 2 (2) should be read together with Party III of the Rules, that is, Rules 24 and 25. The
message given by Part III of the Rules is that any person who intends to file any
application shall first give notice to all persons who have an interest in the application
(Rule 24 (1)), and that the notice of application shall comply with form Number 4 in the
Schedue to the Rules (Rule 24 (2)). Form Number 4 is what it purports to be, that is, a
mere notice. This can be gleaned from the wording of the form when it says in part:-
TAKE NOTICE THAT the Applicant intends to apply to the Court […]
This is a notice of intention to do something in the future and cannot be used to initiate
proceedings. Rule 24 (3) brings confusion into the procedure by saying the application
shall be supported by an affidavit, and by setting out what the affidavit should contain,
Since form Number 4 merely indicates an intention to file an application in the future,
Rule 24 (3) should have continued the message of intention to file an application. The
rule should therefore have started with the words "The notice of application shall [ … ] " :
to link Rule 24 (2) and Rule 24 (3). As it is Rule 24 (3) hangs in the air because the
affidavit has no vehicle to move it into Court. Since the thrust of Rule 24 sub-rules (1) and
(2) is to notify interested parties of what will be filed later, the absence of the words
"notice of application" in sub-rule 3 appears to be a slip of the pen (lapsus Kalami). The
fact that a notice is filed accompanied an affidavit to which a notice of opposition or
counter affidavit or both may be filed under Rule 24 (4) and a replying affidavit may be
filed under Rule 24 (5), and the fact that the Registrar is enjoined to fix a date of hearing
under Rule 24 (7) shows that a notice of application is a self-sub porting application to be
determined by the Court under Rule 24 (10).
Curiously, Rule 24 (11) introduces another, and separate, category of application: for
which it lays down procedure separate from that laid down for the notice of application.
The different categories introduced under Rule 24 (II) are:
(a) Interlocutory applications;
(b) Other applications incidental to or pending proceedings referred to in these

Rules and not specifically provided for in these Rules; and
(c) Any other applications for directions for the applications under Rule 24 (11)
the procedure laid down is for the party to take out a chamber summons
supported by an affidavit. Incidentally Rule 2 (2) defines application thus:-
[A]pplication includes an interlocutory application or any application
directed by the Court.
The definition of application in Rule 2 (2) falls on all fours with the requirements of Rule
24 (11) sub-rules (a) to (c). There is therefore a clear distinction between a notice of
application under Rule 24 (1) and Rule 24 (2), and an application under Rule 24 (11). From
its wording and intent Rule 24 (11) should have been a separate rule because it has no
contextual relationship with the notice of application taken out under Rule 24 (2).
35
Rule 25 provides that a party applying for urgent relief shall file an application under a
certificate of urgency that complies with the requirements of Rule 24 and if applicable,
Rule 25. Again the requirements of Rule 25 (1) to Rule 25 (9) show that the proceedings
under Rule 25 are independent and self-supporting proceedings for which there is an
elaborate procedure set.
From what I have said above, it is clear that Rule 24(2) cannot be used to initiate
revisional proceedings in this Court. Since section 94 (1) (b) (i) allows this Court to review
and revise awards made by an arbitrator, an aggrieved party can file an application for
review under Rule 26 of the Labour Court Rules, or an application for revision under Rule
28 of the Labour Court Rules, for an application for review the procedure to be followed is
outlined in Rule 26 (2) and it allows the interested party to take out a chamber summons
supported by an affidavit. In the case of revision under Rule 28 the Court may act suo
moto and invoke its revisional jurisdiction, or a party may apply. The problem here is that
no procedure is set in case the application is preferred by an aggrieved party. I am of the
view that since review, revision and appeal are a separate category of proceedings put
together under part IV of the Rules, and since the procedure for filing an application for
review under Rule 26 has been provided for in the rules, and since the procedure for
filing an appeal has been provided for in Rule 29, the mischief caused by the absence of
procedure for applications for revision under Rule 28 can be cured by applying the
provisions of Rule 26 (2) mutatis mutandis Rule 28(1) of the Labour Court Rules. This
means a party applying for revision of proceedings under Rule 28 (1) shall take out a
Chamber Summons supported by an Affidavit, and the requirements of Rule 26(2)(a), (b)
and (c) shall apply to revisional proceedings before this court.
In the present application the proceedings for revision were initiated by the applicant
taking out a notice under Rule 24(2). I have already said that: Rule 24(2) cannot be used
to initiate revisional proceedings. The applicant has also taken out a chamber summons
under Rule 24(11) and Rule 25 of the Labour Court Rules. I have already pointed out that
Rule 24(11) is not the proper rule to invoke in revisional proceedings. As for Rule 25, it is
reserved for proceedings taken out under a certificate of urgency. Mr. Njau, learned
advocate, is correct when he argues that this court has not been properly moved because
of the defects of form which are apparent in these proceedings.
Apart from the formal defects pointed out by Mr. Njau, learned advocate, the arguments
presented by counsel showed that the respondent was charged with gross negligence and
disciplinary proceedings against him were conducted on the basis of the charge of gross
negligence. The respondent/employee defended himself on the charge of gross negligence
where the allegation leveled against him was that he had caused the loss of about 11,000
empty crates of soft drinks. There was an allegation by the respondent, which the
applicant did not disprove, that after the conduct of the disciplinary proceedings the
employer conducted an audit in which the employee was not involved. The employer
thereafter terminated the services of the respondent on the basis of the audit report
which showed a loss of Tshs. 128,695,439/=. In the letter of termination, the employer
cited the reason for termination as in capacity. The holding of a disciplinary Inquiry and
thereafter conducting an audit in which the employee was excluded, and the dismissal of
the employee based on the one sided audit was unfair termination within the meaning of
36
section (37)(1) of the Employment and Labour Relations Act. If the employer wanted the
audit report to be the basis of the termination of services he should have conducted the
audit first and thereafter conducted the disciplinary proceedings. The difference between
the charge cited for the termination in the letter of disamissal was discussed in the award.
The reasoning of the arbitrator is sound and the appeal has no merit at all.
The arbitrator had made an award of reinstatement. During the hearing of this
application the employer stuck to his guns that the termination was fair. Since the Court
has found for the respondent, the employer has either the option of reinstating the
respondent as shown in the arbitrator's award, failing which the employer should pay the
respondent compensation of twelve month's remuneration in addition to other terminal
benefits due like notice, leave due and severance allowance.
DEOGRATIAS MLEWA & 5 OTHERS V. DIRECTOR SUPREME INTERNATIONAL

LTD.
High Court of Tanzania at Mwanza (Mackanja, J.)
(HC) Civil Appeal No. 24 of 2004
(Arising from Mwanza District Court Employment Cause No. 3 of 2002)
Digest
A contract is an agreement between two or more persons – oarties to contract have
equal strength in negotiating the terms – contract creates legally binding
obligations by conferring rights and duties on the contracting parties - penalizing
any person who is a party to that contract wrongfully breaches its terms - a contract
of employment cannot be held at the same level with other types of contract.
Brief Facts
The appellants, who were former employees of the respondent, were each required, under
their respective contracts of employment, to work for 12 hours every day including
weekends and on public holidays. No dispute arose between the litigants over the hours
the appellants worked during the tenure of their employment. A dispute arose after the
appellants where removed from work, where they complained before the labour officer
and as a result the latter instituted a suit on their behalf. In that suit each appellant
sought to recover hours he worked over the eight official hours per day during week days
and relation to public holidays. The learned Principal District Magistrate was persuaded
that the appellants had no right to claim benefits which were contractually covered in the
terms of the labour relationship between them and their employer; consequent to which
the suit relating to appellants was dismissed and the suit by the remaining applicants was
37
struck out on the ground that they did not prosecute it by giving evidence in proof of
their claims. Consequently, the appealed to the High Court to have the orders of the
District Court reversed.
Held:
1. That in law a contract is an agreement between two or more persons who, under
normal circumstances, have equal strength in negotiating the terms; and it thus
creates legally binding
obligations by conferring rights and duties on the contracting parties; and
penalizing any person who is a party to that contract wrongfully breaches its
terms.
2. That a contract of employment cannot be held at the same level with other types
of contract; because when contracting employers are abound by law to ensure that
contracts of employment do not abridge or render nugatory statutory provisions
which are aimed at protecting employees’ rights.
Appeal allowed.
Mr. Mutalemwa, for the appellant.
JUDGMENT
MACKANJA, J.: The appellants are former employees of the respondent company. It is
common ground that according to the contract of employment each appellant was
required to work for 12 hours every day including weekends and on public holidays. No
dispute arose between the litigants over the hours the appellants worked during the
tenure of their employment. A dispute arose after the appellants where removed from
work. It was then that they complained before the labour office and as a result the latter
instituted a suit on their behalf. In that suit each appellant sought to recover hours he
worked over the eight official hours per day during week days and relation to public
holidays.
The respondent resisted this claim on the ground that, having agreed voluntarily to work
twelve hours daily the appellant cannot be heard complaining against their contractual
obligations. The learned Principal District Magistrate was persuaded that the appellants
had no right to claim benefits which were contractually covered in the terms of the
labour relationship between them and their employer. She therefore dismissed the suit as
relates to Deogratias Mlewa and Elombe Stansilaus. The suit by the remaining plaintiffs
was struck out on the ground that they did not prosecute it by giving evidence in proof of
their. claims.
38
Mr. Mutalemwa, learned counsel for the appellant, has urged me to dismiss the appeal
because it has no merits since the appellants were bound by the terms of their contract of
the employment.
It is true in law that a contract is an agreement between two or more persons who, under
normal circumstances, have equal strength in negotiating the terms. Therefore a contract
creates legally binding
obligations; it confers rights and duties on the contracting parties; and it penalizes any
person who is a party to that contract wrongfully breaches its terms. However, a contract
of employment cannot be held at the same level with other types of contract. In
contracting between the prospective employer and the employer the prospective
employer will always have an edge over an employee, especially where the work to be
done is menial. The situation would be different where the employee is highly qualified
and able to acquire a good job in the market. Indeed, as the labour officer correctly
observed in his evidence, when contracting employers are abound by law to ensure that
contracts of employment do not abridge or it any form render nugatory statutory
provisions which are aimed at protecting employees. Upon the above observation it was
totally illegal to require the appellants to sign an agreement which took away their
statutory right to be paid for extra hours worked. In that, connection, an, with due
respect to Mr. Mutalemwa, leaned counsel for the respondent, she appellants had no duty
or obligation to forfeit their right to be paid for extra hours they worked.
Upon the above consideration the appeal succeeds and it is allowed with costs.
The judgment shall be delivered by the District Registrar.
Appeal allowed.
CAPITAL DEVELOPMENT AUTHORITY V. DIDACE M. TANGATYA
High Court of Tanzania (Labour Division) at Dodoma (Rweyemamu, J.)
Labour Revision No. 149 of 2009
(Original CMA/DOD/MED/13/2009)
Digest
Mediation fails and the dispute is referred to arbitration, the complainant cannot apply
for amendment of the claim - all disputes have to be mediated first - allowing
amendment of the claim at arbitration stage would amount to arbitrating a dispute
which has not been mediated.
Brief Facts
After being terminated, the respondent filed a claim of unfair termination against the
applicant, wherein he claimed reinstatement or compensation. The dispute was
39
unsuccessfully mediated after which arbitration commenced. Subsequently thereafter, the
respondent filed a notice supported by an affidavit as application to change the claimed
amount he claimed as compensation. Consequently, the applicants filed a preliminary
objection on ground that the CMA had no jurisdiction to determine a dispute whose
pecuniary amount was above TShs 100,000/=.
Therefore, the arbitrator dismissed the amended claim on ground that Section 86 of
Employment and Labour Relations Act (No. 6/2004) demands that all labour dispute
(save those exempted under the Act) must commence with mediation at the CMA. As
such, the arbitrator has no powers to order an amendment at that stage. Finally, the
arbitrator dismissed the application for amendment; made no decision on the PO raised
by the applicants and ordered arbitration of the dispute to proceed on the earlier claim.
Aggrieved by this decision, the applicant seeks revision basically on two grounds: (a) that
the arbitrator failed to decide the issue of pecuniary jurisdiction that was raised, this can
be translated in terms of the governing law as 'failure to exercise vested jurisdiction
contrary rule 28(a) of the Labour Court Rules, GN 106/2007; and (b) that the arbitrator
erred in deciding that amendments of a claim at the arbitration stage are barred by
section 86 of the Act.
Held:
1. That when mediation fails and the dispute is referred to arbitration, the
complainant cannot apply for amendment of the claim because all disputes have to
be mediated first. Allowing amendment of the claim at arbitration stage would
amount to arbitrating a dispute which has not been mediated.
Mr. Nkangaa (Legal Officer), for the Applicant
Mr. Dede (Advocate), for the Respondent
RULING
RWEYEMAMU, J.: This is an application for revision of the CMA decision dated 2/9/2009
on grounds best understood in light of the following brief background.
The respondent employee filed a claim of unfair termination against his employer-the
applicant, wherein he claimed reinstatement or compensation in the sum of Tshs.
98,494,486. The dispute was unsuccessfully mediated after which arbitration
commenced. Thereafter the respondent filed a notice supported by affidavit as
application to change the claimed amount now put at Tshs. 147,719,637/=. Thereafter, the
applicants filed a Preliminary Objection (PO) on ground that the CMA had no
jurisdiction to determine a dispute whose pecuniary amount was above Tshs 100,000/=.
40
In the impugned decision of 2/9/2009, the arbitrator dismissed the amended claim on
ground that section 86 of Employment and labour Relations Act, 6/2004 (the Act)
demands that all labour dispute (save those excempted under the Act) must commence
with mediation at the CMA therefore the arbitrator has no powers to order an
amendment at that stage. Finally, the arbitrator dismissed the application for
amendment; made no decision on the PO raised by the applicants and ordered
arbitration of the dispute to proceed on the earlier claim of Tshs. 98,494,486/=.
The applicant seeks revision basically on two grounds; first that the arbitrator failed to
decide the issue of pecuniary jurisdiction that they had raised, this can be translated in
terms of the governing law as 'failure to exercise vested jurisdiction contrary to Rule 28(a)
of the Labour Court Rules, GN 106/2007. The second ground was that the arbitrator erred
in deciding that amendments of a claim at the arbitration stage are barred by Section 86
of the Act.
At the hearing, Mr. Nkangaa a legal officer appeared for the applicant and Mr. Dede
advocate appeared for the respondent. The applicant adopted the above grounds which
he substantiated on by saying the arbitrator decided the wrong issue, that of the
amendments to the claim instead of the issue of pecuniary jurisdiction. Further, he
submitted that the cited section of the Act did not bar amendments.
In response, the respondent submitted that the arbitrator rightly considered two issues
before him that of amendment, where he found that it was improper to accept
amendment of the claim, and concluded that his decision on the issue was right in terms
of Section 86 of the Act. No response was made on failure to decide the PO on pecuniary
jurisdiction.
After considering the above facts, I find that the arbitrator having decided the issue of
amendment of the claim as he did, there was no point in deciding the question of
pecuniary jurisdiction, because the original claim which was as per his decision to be
arbitrated, was within the allowed amount. I accordingly find that there was no failure to
exercise jurisdiction and dismiss this ground of the application.
On the second aspect, I find the ground to have no merit. The arbitrator's decision was
correct because, as per cited section, all such disputes have to be mediated first. Allowing
amendment of the claim at arbitration stage would amount to arbitrating a dispute which
has not been mediated. This ground is also dismissed.
In the result, I confirm the arbitrator's decision, dismiss this application and order the
dispute returned to the CMA for arbitration to proceed as ordered by arbitrator.
THE COORDINATOR OF TADEPA V. DONATIANA PANCRASE & REVINA KIGUZI
41
Labour Revision N0. 112 of 2008
(Original COMPLAINT/BUK/ARB/4/2008)
Digest
Key issues in dispute must be clearly stated/known to the parties before the parties adduced their
evidence (Rule 16 (2) and (3) of the Labour Court Rules) – procedure of conducting arbitration
(Rules 18 to 22 of the Labour Institutions (Mediation and Arbitration Guidelines) Rules (2007)) –
substantive law .governing conduct and procedure of arbitration proceedings (Section 88 (4) and
(5) of the Employment and Labour Relations Act (2004)) – arbitrator has discretion to choose the
appropriate form of conducting arbitration proceedings (key focus: to deal with substantial merits
of the case with a minimum of legal formalities) - unlike in ordinary court trials, under arbitration
issues are dealt with fairly but quickly and informally - import of Rule 22 of the Labour Institutions
(Mediation and Arbitration Guidelines) Rules (2007) (to ensure parties to the dispute are granted
the right to fair hearing) – arbitration conducted in a swift and less formal manner, but must
remain in accord with principles of natural justice – Labour Institutions (Mediation and
Arbitration Guidelines) Rules (2007) are not meant to prescribe mandatory stages but
rather they provide guidance for achieving the crucial objective of arbitration.
Brief Facts
Aggrieved by the decision of the CMA, the applicant filed in the Labour Court an
application for revision of the CMA award on grounds that: (i) the award was improperly
procured; (ii) the arbitrator misconceived evidence and facts before him; and, (iii) the
respondents had a fixed term contract which was not renewed. At the hearing, the
applicants faulted the arbitrators' award on grounds that:
(i) the applicant was not supplied with a certificate of mediation as per Rule 16(4) of
the Labour Institutions (Mediation and Arbitration) Rules, GN 64/2007;
(ii) the arbitrator gave award on matters/issues which were not pleaded in the
complaint form nor were there issues agreed before arbitration;
(iii) the issue of payments arose in parties' submissions but were not part of
evidence;
(iv) the crux of the dispute was whether the respondents were unfairly
terminated, but that was a non issue because the respondents were not
terminated their contracts expired and they did not renew it. Instead, they
chose to work for another employer.
In response, the respondents refuted the applicant’s prayers, pointing out, inter alia, that
the award was fair and reasonable because the respondents' termination was not in
accordance with a fair procedure; the respondent's termination was substantively unfair
because the applicant made continuous employment intolerable (constructive
termination); and they added at nearing that the applicants' arguments were not
supported by law or regulations on the issue of renewal of emploment. Therefore, the
application had no merit and ought to be dismissed.
42
Held:
1. That the key issues in dispute must be clearly stated/ known to the parties before
the parties adduced their evidence in compliance with Rule 16 (2) and (3) of GN
64/2007, which intends to enable the parties to clearly know the nature of the
disputes for purpose of them knowing what rights they parties have in terms of the
Employment and Labour Relations Act (No. 6 of 2004). From the parties'
submissions in this court, it is evident the parties in this case had no common
understanding of nature of the dispute.
2. That whereas the procedure of conducting arbitration is prescribed under rule 18

to 22 of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, GN
No. 67/2007, the substantive law .governing conduct and procedure of arbitration
proceedings is section 88 (4) and (5) of the Employment and Labour Relations Act,
6/2004 (the Act), which provides that the arbitrator has discretion to choose the
appropriate form of 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 /questions are dealt with
fairly but quickly and informally.
3. That the import of Rule 22 of the Labour Institutions (Mediation and Arbitration
Guidelines) Rules (2007) is to ensure parties to the dispute are granted the right to
fair hearing, which 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 arbitrators award should contain reasons for the
decision.
4. That although arbitration is conducted in a swift and less formal manner, it must
remain in accord with principles of natural justice; that is, the parties should know
the nature of the case and should be accorded the right to be heard; that the
resultant award is not arbitrary but based on the record and therefore it should
contain reasons for the decision reached and justification for the reliefs granted.
5. That the Labour Institutions (Mediation and Arbitration Guidelines) Rules (2007)
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 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.
CMA proceedings and award quashed and arbitration to beconducted a fresh.
Case Referred to
43
The GM Pangea Minerals v Migumo Mwakalasya High Court of Tanzania at Dar es Salaam, Labour Revision
35 of 2008 (unreported).
Mr. Rweyemamu (Advocate, for the applicant
Damas Bulimbe (TUGHE), for the Respondents
RULING
RWEYEMAMU, J: The applicants/employer brought an application for revision of

Commission for Mediation and Arbitration (CMA) award dated 24/6/2008 on ground that
the award was improperly procured, the arbitrator misconceived evidence and facts
before him; that the respondents had a fixed term contract which was not renewed.
The applicant was represented by Mr. Rweyemamu advocate while the respondents had
representation Mr. D. Bulimbe, an official of a registered trade union as permitted by
section 56 (a) of the Labour Institutions Act, No. 7 of 2004. At the hearing, the applicants
faulted the arbitrators' award on grounds that:
1. The applicant was not supplied with a certificate of mediation as per -rule 16(4) of
the Labour Institutions (Mediation and Arbitration) Rules, GN 64/2007.
2. The arbitrator gave award on matters/issues which were not pleaded in the
complaint form nor were there issues agreed before arbitration.
3. The issue of payments arose in parties' submissions but were not part of evicence.
4. The crux of the dispute was whether the respondents were unfairly- terminated,
but that was a non issue because the respondents were not terminated their
contracts expired and they did not renew it. Instead, they chose to work for
another employer.
5. In conclusion, the applicants sought costs alleging that the case was frivolous.
The respondent in response adopted grounds in their counter affidavit, which in brief
were that:
1. The award was fair and reasonable because the respondents' termination was not
in accordance with a fair procedure.
2. The respondent's termination was substantively unfair because the applicant made
continuous employment intolerable (constructive termination).
3. They added at nearing that the applicants' arguments were not supported by law
or regulations on the issue of renewal of emploment.
4. That therefore the application had no merit and should be dismissed.
44
After going through the CMA record of proceedings in light of the applicants' complaints,
I have realised that the key problem in this matter stems from a material irregularity in
the conduct of proceedings being that; the key issues in dispute were not clearly stated/
known to the parties before the parties adduced their evidence. The arbitrator went
straight into receiving evidence as a result, the issues are more clearly stated in the award,
but they are not based on the evidence led. In brief, the arbitration proceedings suffered
from two material irregularities.
First, had the mediator complied with Rule 16 (2) and (3) of GN 64, the parties would
have known clearly the nature of the disputes for purpose of them knowing what rights
they parties have in terms of the Employment and Labour Relations Act - 6/2004. From
the parties' submissions in this court, it is evident they had no common understanding of
the nature of the dispute.
Second, the arbitraor failed to observe the principles of conducting arbitration as

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 similar case that:
The substantive law .governing conduct and procedure of arbitration proceedings is
Section 88 (4) and (5) of the Employment and Labour 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
merites of the case with a minimum of legal formalities. That is, unlike in ordinary court
trials, under arbitration issues /questions 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 (i.e. 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 arbitrators
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 same are well articulated in the non 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].
45
From the parties' submissions, it is clear the parties had no common understanding on
whether the issue in dispute was termination due to constructive termination or
procedural unfairness as submitted by the respondent; ndent; whether the respondents’
employment was terminated or the contract of employment expired as submitted by the
applicant. No wonder the applicant submitted in grounds 3 and 4 above that the
arbitrator's award was based on unpleaded issues, and that there was no evidence to
support the reliefs granted to the respondent.
Had the issues to be arbitrated been clear to the parties; they would have had
opportunity to present evidence; call witnesses and cross examine them to prove/disprove
the said issues, and the arbitrator’s award and reasons thereof would have been based on
record of the parties’ evidence (which is the import of rule 22 of the guidelines). Had the
arbitrator conducted proceedings as required, the parties would not have raised the
arguments they did.
From the CMA record of arbitrationarbitration-proceedings, it is clear fundamental

principles which make for a legal arbitration proceedings were not adhered to. I thus find
that in the circumstances of this case, it was a material irregularity for the arbitrator to
fail to adhere to the guidelines provided for under GN 67/2007. Because of that reason, I
quash the CMA proceedings and subsequent award, and order arbitration conducted a
fresh according to law as explained herein above.
CMA proceedings and award quashed and arbitration to beconducted a fresh.
PLUSTRONIC LIMITED V. EMMANUEL EDMOND SELEMAN
Date of Ruling: 10 December 2009
(Original CMA/DSM/KIN-ILA/3061/08
Digest
Period for referring disputes of fairness of an employee's termination to CMA is 30 days, and
60 days for other disputes (Rule 10 of the Labour Institutions (mediation and Arbitration)
Rules, GN 64/2007) - CMA to first process time-barred disputes following application by the
referring party.
Brief Facts
The respondent referred a case of unfair termination against his employer the respondent
to the CMA. In the referral Form No. 1 filed on 18/6/2008, the respondent alleged that he
was unfairly terminated by the applicant on 31/3/2008. The respondent also filed the
referral together with Form Number 7, the prescribed form for late referrals. However,
the dispute was ultimately arbitrated by the CMA and an award issued, without first
46
hearing and deciding the issue of the late referral. The applicant challenged the award in
the Labour Court, inter alia, on the ground that the respondent filed his complaint to the
CMA inordinately late and the reasons advanced for the delay were flimsy.
Held:
1. According to rule 10 of the Labour Institutions (mediation and Arbitration) Rules,

GN 64/2007, the period for referring disputes of fairness of an employee's
termination to CMA is 30 days, and 60 days for other disputes.
2. When and how the issue of limitation of time should be heard and decided by the
Commission? The CMA can process time barred disputes following application by
the referring party as explained in in Peter Mrema and Michael Kusaga, LC
Revision No. 138/2009 and in J. W. Ladwa and Peter Kimote, LC revision N0.
52/2009.
CMA proceedings and award quashed, arbitration to be re-convened.
Cases Referred to
J.W. Ladwa v Peter Kimote High Court of Tanzania (Labour Division) at Dar es Salaam,
Peter Mrema v Michael Kusaga High Court of Tanzania (Labour Division) at Dar es
Salaam, Labour Revision No. 138 of 2008 (unreported).
Tanzania Fish Processors Ltd. v Christopher Luhangula Court of Appeal of Tanzania at

Mwanza, Civil Appeal No. 161 of 94 (unreported).
RULING
RWEYEMAMU: J: The respondent/employee referred a case of unfair termination against

his employer the respondent to the Commission for Mediation and Arbitration (CMA). In
the referral Form No. 1 filed on 18/6/2008, the respondent alleged that he was unfairly
terminated by the applicant on 31/3/2008. Understandably, the referral was filed together
with Form Number 7, the prescribed form for late referrals. Apparently, the dispute was
ultimately arbitrated by the CMA and an award issued, without first hearing and deciding
the issue of the late referral.
That award is subject matter of this application for revision and not surprising, among
grounds raised by the applicant for revision were:
1. That the Respondent had ample time to defend himself as from

28/03/2008 but decided to keep quite to extend his trend of negligence
47
2. That the Respondent filed his Complaint to Commission inordinately late
and the reasons advanced for the delay are flimsy.
In the reply, the respondent stated as follows:
1. That paragraph 8 and 9 of the affidavit are vehemently denied. The

respondent dictated to terminate the complainant hence the respondent
fails to follow a fair procedure to terminate the complainant annexure (A).
2. That paragraph 10 of affidavit is denied the complainant were reasonable

to file late the complain to the commission and that's why that Commission
were able to register complainant. I ever further that the complainant were
sick medical certificate from Muhimbili hospitals attached , and the
complainant went Masasi (home district) for more treatment bus ticket is
attached annexture (B).
The response reflected in paragraph 6 and 7 above, do not directly touch on the key issue
raised by the applicant namely that the respondent’s referral to the CMA was time
barred. From the facts on record it is undisputed that referral of the dispute to CMA was
time barred. The respondent was teminated on 31/3/2008 and he appealed that
termination to the CMA on 18/6/2008. According to Rule 10 of the Labour Institutions
(Mediation and Arbitration) Rules, GN 64/2007, the period for referring disputes of
fairness of an employee's termination to CMA is 30 days, and 60 days for other disputes.
The respondents' referral to the CMA was definitely made out of time.
This is yet another case where application for revision has to be granted and the award
quashed not based on substantive issues, but because the CMA heard the dispute which
was time barred without hearing and deciding the application for condonation according
to law. The respondent was aware that time had expired, also filed form No. 7, the
relevant form for condonation of the delay, but the CMA did not proceed to decide
whether the respondent had good cause for failure to comply with the prescribed time
frame; instead it proceeded to process the dispute as if it was filed in time.
It has been observed by this court in a number of cases with a similar mishap that:
When the dispute Is time barred, the CMA has no powers to entertain it, unless it has
heard and granted an application for extension of time i.e condoned the delay. It is not
enough that the complainant/employee has filed the condonation from […], after
receiving the respondent's application for condonation, the CMA should have served the
same on the applicant/employer as per rule 29 (5) of the rules, then proceeded to hear and
determine it under rule 29 (10) or (11) see: Peter Mrema and Michael Kusaga, LC Revision
No. 138/2009 and in J. W. Ladwa and Peter Kimote, LC revision N0. 52/2009, I concluded
that: where a dispute is time barred, “the CMA is not properly seized of jurisdiction to
process it” unless it first decided the issue of delay either way. As held by the CMA. The
question of limitation of time is a fundamental issue involving [...] jurisdiction. […]
limitation is material point in the speedy administration of justice. Limitation is there to
ensure tht a party does not come to court as and when he chooses. Tanzania Fish
processors Ltd. v Christopher Luhangula, Civil Appeal 161/94 (CA, MZA
registry-unreported).
48
Perhaps to remove doubt as to when and how the issue of limitation of time should be
heard and decided by the Commission, I should draw attention the following provisions
of the Rules; first, the CMA can process time barred disputes following application by the
referring party as explainted in the cases cites above. Second, the Commission may
condone any failure to comply with the time frame in these Rules on good cause. That
rule, in my opinion, gives a wider power to the Commission to proceed in a time barred
dispute provided it shows on record, its reasons for doing so. At what time should the
commission deal with the issue of time limit?
Like the cases reffered to above, I find that in this case, the CMA neither made a decision
on the issue of time limit, nor statd its reason for condoning the delay, if it had any. In
view of that, I find that the CMA was not properly seized of jurisdiction when it
processed the respondent's referral filed out of time, without condonation; for that reason
I use powers vested in this court under Rule 28(1)(c) of the Labour Court Rules to revise
and set aside the CMA proceedings and subsequent award. To such extent, this
application for revision succeeds but for reasons other than those advanced by the
parties.
As I concluded in the two cases referred to above, it was the CMA and not the respondent
which failed to take the necessary action after the latter filed the condonation form. For
the reason, I order and direct that the dispute be remitted to the CMA where it should
stand as it was after the condonation form was filed. Thereafter, the dispute should be
processed afresh according to law. It is so ordered.
GRACE WANNA V. ALL TERRAIN SERVICE
Labour Application N0. 16 of 2007
(Original Complainant No. GEITA/CMA/109/2007)
Digest
Arbitrator to keep record of the arbitration proceedings with legible hand-written notes or
by other means of electronic recording - arbitrator not required to record the proceedings
word by word, but paraphrased notes - functions of arbitrators are quasi-judicial
(arbitrators should insist on the basic characteristics of orderliness and regularity in
execution of their duties) - Labour Institutions (Mediation and Arbitration Guidelines)
Rules (GN 67 of 2007) gives arbitration proceedings attributes of legal proceedings –arbitral
proceedings in the CMA to clearly show issues to be arbitrated upon, evidence led by each
side to prove or disprove the issues, which evidence is received and arguments by way of
written submissions (Rule 25 of the Labour Institutions (Mediation and Arbitration
49
Guidelines) Rules) - proceedings to contain the award indicating the decision and reasons
thereof on each issue raised (Guideline 27(a) to (f) of the Mediation and Arbitration
Guidelines) Rules (GN 67 of 2007) - necessity requires sequentially numbering the pages in
the cause of proceedings as well as that the written notes should be kept in a retrievable
form - “legible handwritten notes” of CMA proceedings are permitted, but when the same
are required by parties for their records, revision purposes. etc., a typed copy certified by
the arbitrator to be supplied where applied for (Rule 32(2) and (4) of the Labour
Institutions (Mediation and Arbitration Guidelines) Rules).
Brief Facts
The applicant referred a complaint to the CMA for unfair termination of employment,
seeking to be reinstated and to be paid other employment entitlements. The arbitrator
awarded some of her claims but dismissed her claim for reinstatement, having found that
she was not terminateJ as claimed. Dissatisfied, she referred this matter to this court
under Rule 24 (2) of the Labour Court Rules (GN 106/2007), seeking revision of the
arbitrator's award for the reason that the arbitration was not conducted as per Rule 32 of
the Labour Institutions (Mediation and Arbitration) Rules (GN 64 of 2007) read together
with the Labour Institutions (Mediation and Arbitration) Guidelines (GN 67/2007). In the
Labour Court, hearing proceeded ex-parte because the respondent, though aware that the
case was scheduled for hearing, was absent.
Held:
1. That an arbitrator must keep record of the arbitration proceedings with legible
hand-written notes or by other means of electronic recording.
2. That where the arbitrator records proceedings through hand written notes, the
arbitrator may not be required to record the proceedings word by word.
3. That the functions of arbitrators are quasi-judicial, so arbitrators should insist

on the basic characteristics of orderliness and regularity in execution of their
duties.
4. That the Labour Institutions (Mediation and Arbitration Guidelines) Rules (GN
67 of 2007) seek to give arbitration proceedings attributes of legal proceedings.
5. That for arbitral proceedings in the CMA to comply with the Labour
Institutions (Mediation and Arbitration Guidelines) Rules they should clearly
show issues to be arbitrated upon, evidence led by each side to prove or
disprove the issues, which evidence is received as per Rule 25 thereof; they
should contain arguments by way of written submissions which 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. Further, where there were preliminary
issues, evidence and arguments by each side should be indicated in the record.
Finally, proceedings should contain the award which should indicating the
50
decision and reasons thereof on each issue raised and a summary on matters
itemized under guideline 27(a) to (f).
6. That in order to make arbitral proceedings in the CMA orderly, necessity

requires sequentially numbering the pages in the cause of proceedings as well
as that the written notes should be kept in a retrievable form.
7. That although Rule 32(2) of the Labour Institutions (Mediation and Arbitration
Guidelines) Rules permit “legible handwritten notes”, when the same are
required by parties for their records, revision purposes. etc., a typed copy
certified by the arbitrator should be supplied where applied for under Rule
32(4) of the Guidelines, which is the only sure way the Labour Court can tell or
understand what transpired during the arbitration process and what aspects
are faulted or supported.
8. That although Rule 19 of the Labour Institutions (Mediation and Arbitration
Guidelines) Rules empowers the arbitrator to determine how proceedings
should be conducted, such powers only deal with matters like which party
should start, how the dispute is introduced, whether closing remarks will be
taken, whether to adjourn proceedings and the like. But such powers do not
allow an arbitrator to jump or skip the vital arbitration stages, or fail to keep a
proper record.
Cases Referred to
BIDCO OIL and Soap v Abdu Said and 3 Others High Court of Tanzania (Labour Division)
at Dar es Salaam, Revision No. 11 of 2008 (unreported).
Katibu, STAMICO v Tawfiq Bus Services, Geita High Court of Tanzania (Labour Division) at
Mwanza, Labour Revision No. 150 of 2008 (unreported).
P.M.A. Metropolitan v Moran Mathona, AIR 1955 S.0 2001.
Masudi from TAMICO, for the Applicant.
Respondent absent.
RULING
RWEYEMAMU, J.: The applicant referred a complaint to the CMA pleading unfair
termination of employment, seeking to be reinstated and to be paid other employment
entitlements. The arbitrator awarded some of her claims but dismissed her claim for
reinstatement, having found that she was not terminateJ as claimed.
Dissatisfied, she referred this matter to this court under Rule 24 (2) of the Labour Court
Rules, GN 106/2007, seeking revision of the arbitrator's award for the reason that the
arbitration was not conducted as per Rule 32 of the Labour Institutions (Mediation and
51
Arbitration) Rules, GN 64 of 2007 (M & A Rules) read together with the Labour
Institutions (Mediation and Arbitration) Guidelines, GN 67/2007 (hereinafter the
Guicelines).
Hearing proceeded ex-parte because the respondent, though aware that the case was
scheduled for hearing, was absent. The applicant was represented by one Masudi from
TAMICO – a trade union. At the hearing, Masudi adopted grounds contained in the
affidavit filed in support of the application. Some of these reasons were fundamental i.e
that there was no evidence in the arbitration proceedings to support the arbitrator's
award; that the arbitrator based the decision on unpleaded matters, and that the
reasoning of the arbitrator was contradictory.
I checked the arbitration proceedings' in the file record and found that the same were
disjointed and unclear. Not only that, I also noticed that issues in the dispute were not
identified, nor was evidence led to prove or disprove matters in dispute as required by
law. The arbitration proceedings in this case had no resemblance to the procedure
prescribed by law.
I have noted with concern that almost all revision cases I handled during these two weeks
suffered from similar, irregularities and I find it time saving to only repeat what I stated in
one of such cases namely, Katibu, STAMICO v Tawfiq Bus Services, Geita High Court of
Tanzania (Labour Division) at Mwanza, Labour Revision No. 150 of 2008 (unreported). It
was as follows:
"Since I have noted almost similar irregularities from a number of revision cases which
have come before me during these two weeks session, I find it necessary and useful to
point out vital steps/aspects and attributes of any proper arbitration proceedings. A
record of proceedings is mandated and should be as provided under Rule 32(1) & (2) of the
M&A rules which for ease of reference I reproduce below:
1. An arbitrator shall keep a record of the arbitration proceedings with legible

hand-written notes or by other means cf electronic recording,
2. Where the arbitrator records proceedings through hand written notes, the
arbitrator may not be required to record the proceedings word by word.
What is "a proper record of arbitration proceeding?” This question was considered and
discussed in detail by my brother Mandia J., in BIDCO OIL and Soap v Abdu Said and 3
Others High Court of Tanzania (Labour Division) at Dar es Salaam, Revision No. 11 of
2008 (unreported), in a case where similar irregularities were noted, and I find it useful to
refer to, associate and borrow an instructive part of that Judgment. It is convenient to
quote the relevant part, where the explained requirements of Rule 32 that:
The emphasis here is on keeping a permanent and retrievable record of proceedings. What,
if we may ask, are “proceedings" as referred to in Rule 32 (1) and (2) of GN 64 of 2007? The
Judicial Dictionary, 2nd Edition, authored by Mr. Justice L. P. Singh and P. K. Majumd,
defines proceedings "at page 1069 thus:-
PROCEEDINGS in Black's Law Dictionary, it is explained as its general sense, the form and
manner of conducting judicial business before a court or judicial officer, Regular and
orderly progress in form of law, including all possible steps in an action from its
52
commencement to the execution of judgment. (P.M.A. Metropolitan v Moran Mathona,
AIR 1955S.0 2001 at 2023).
The above quotation puts emphasis on regular and orderly progress in law and procedure
from commencement of an action to execution of judgment as the basis attributes of any
legal proceeding.
The functions of arbitrators are quasi-judicial, so arbitrators should insist on the basic
characteristics of orderliness and regularity In execution of their duties. Luckilly for them,
the Commission has made elaborate rules of procedure which have been published as GN
64 of 2007. The rules of procedure are subsidiary legislation and arbitrators are bound to
follow the rules of procedure set therein.
To arrive at a proper record of proceedings prescribed under rule 32 of the M&A rules, the
CMA, using its powers under section 15 (1) (f) of the Labour Institutions Act 7 of 2004,
issued the Labour Institutions (Mediation and Arbitration Guidelines) Rules, GN 67 of
2007, (hereinafter the Guidelines) which specifies stages and contents of arbitration
proceedings and if I may add, seeks to give arbitration proceedings attributes of legal
proceedings. The stages to be covered are contained in Rule 18 to 26 of the guidelines.
Proceedings complying with the guidelines will clearly show issues to be arbitrated upon,
evidence led by each side to prove or disprove the issues, which evidence is received as
per Rule 25; it will contain arguments by way of written submissions which 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. Further, where there were preliminary issues, evidence and
arguments by each side should be indicated in the record. Finally proceedings should
contain the award which should indicating the decision and reasons thereof on each issue
raised and a summary on matters itemized under guideline 27 (a) to (f).
To make such proceedings orderly would by, necessity requires numbering the pages in
the cause of proceedings sequentially; it would require that the written notes be kept in a
retrievable form; and although Rule 32 (2) of the M&A rules permit “legible handwritten
notes” when the same are required by parties for their records, revision purposes etc., a
typed copy certified by the arbitrator should be supplied where applied for under Rule 32
(4) of the Guidelines. That in my opinion, is the only sure way this court can
tell/understand what transpired during the arbitration process and what aspects are
faulted or supported.
I am aware that Rule 19 of the Guidelines empowers the arbitrator to determine how
proceedings should be conducted, I wish to stress that such powers deal with matters like
which party should start, how the dispute is introduced, whether closing remarks will be
taken, whether to adjoirn proceedings and the like, but such power do not allow an
arbitrator to jump/ skip the vital stages, or fail to keep a proper record.
To conclude, I agree with the applicant in this case that the arbitration proceedings were
not conducted according to law, and I find that to be a material irregularity necessitating
this court to use its revision powers to quash them. In the result, I hereby quash what
went on as arbitration proceedings including the award and order that the record be
53
remitted to the CMA for arbitration to be conducted afresh and according to law. It is so
ordered.
SERENGETI SECURITY SERVICES LTD. V. HAMAD KHALID BAGUMA
(Original CMA/M2/ARB/37/2009
Digest
CMA decision is entered ex-parte; aggrieved party to apply to the CMA to have that
ex-parte award set aside upon good cause for failure to appear on the date set for hearing –
Where the CMA refuses to set aside its ex-parte proceeding, aggrieved party can apply to
the Labour Court for revision of that decision and the award – even in ex-parte proceedings,
a party has to prove its case – Labour Court empowered to revise, on its own motion,
arbitration proceedings and award where it appears the arbitrator acted in exercise of
jurisdiction with material irregularity (Rule 28 of the Labour Court Rules (GN 106/2007)).
Brief Facts
When the responder referred a labour dispute to CMA claiming upaid employment
benefits, the dispute was unsuccessfully mediated thus parties agreed to subject the same
to arbitration. However, the matter came on for arbitration, the applicant failed to turn
up and an order was made to have the matter arbitrated ex-parte by way of written
submission; in which case, the respondent was later given more time and ordered to
submit his submission. He duly submitted the same following which the arbitrator
prepared the impugned ruling in favour of the respondent.
Aggrieved by this decision, the applicant sought revision of that ex-parte awared on the
ground that the arbitrator erred in proceeding ex-parte, because the applicant had good
cause for not appearing on the date set for arbitration.
Held:
1. That when a decision is entered ex-parte by the CMA, the avenue available to
the aggrieved party is to apply to the CMA to have that ex-parte award set
54
aside; whereby the CMA will set it aside if it is satisfied that the applicant had
good cause for failure to appear on the date set for hearing.
2. That it is only after the CMA gives its decision on an application to set aside an
ex-parte proceeding, that the applicant can apply to the Labour Court for
revision of that decision and the award.
3. That even in ex-parte proceedings, a party has to prove his case.

4. That the Labour Court is empowered under Rule 28 of the Labour Court Rules
(GN 106/2007) to revise, on its own motion, arbitration proceedings and award
where it appears the arbitrator acted in exercise of jurisdiction with material
irregularity.
Cases Referred to
BIDCO OIL and Soap v Abdu Said and 3 Others High Court of Tanzania (Labour Division)
Katibu, STAMICO v Tawfiq Bus Services, Geita High Court of Tanzania (Labour Division) at
P.M.A. Metropolitan v Moran Mathona, AIR 1955 S.0 2001.
Masudi from TAMICO, for the Applicant.
Respondent absent.
RULING
RWEYEMAMU, J: The respondent/employee referred a labour dispute to the

Commission for Mediation and Arbitration (CMA) claiming upaid employment benefits.
According to the CMA record, the dispute was unsuccessfully mediated and parties
agreed to subject the same to arbitration. On 4/3/2009, a date for arbitration was set for
17/3/2009, but on the said date, the applicant/employer failed to turn up and an order
was made that; “mgogoro huu utasikilizwa upande mmoja kwa anjia ya maandishi tarehe
23/3/2009 asubuhi”. Translated the case was ordered to proceed ex-parte by way of
written submission. On 23rd the respondent was given more time and ordered to submit
his submission on 30/3/2009. He duly submitted the same following which the arbitrator
prepared the impugned ruling which was delivered on 21/4/2009.
The applicant seeks revision of that ex-parte awared on groundscontained in the

supporting affidavit sworn by one Joseph Bachuta, the Managing Director of the applicant
firm, an officer who represented the applicant during hearing of this application. The
respondent appeared in person. The applicant basically repeated contents of his affidavit,
55
the gist of which was to show that the arbitrator erred in proceeding ex-parte, because
the applicant had good cause for not appearing on the date set for arbitration.
In response, the respondent submitted that the applicant should have but never did, send
a representative to the CMA to explain circumstances of his failure to appear.
After considering the parties’ arguments and facts on record, I make the following
findings:-
1. This application should fail for reason of being premature before this court. When
a decision is entered ex-parte by the CMA, the avenue available to the aggrieved
party is to apply to the CMA to have that exparte award set aside. The CMA will
set it aside if it is satisfied that the applicant had good cause for failure to appea -
on the date set for hearing. It is after the CMA gives its decision that the applicant
can apply to this court for revision of that after decision and the award. Despite
my said conclusion, the ex-parte award will be revised but on different grounds
which I proceed to explain.
2. The CMA record indicates material irregularity in the manner the arbitrator
conducted the ex-parte arbitration proceedings. The procedure for ex-parte
arbitration proceedings is provided under rule 28 of the Labour Institutions
Mediation and Arbitration Guidelines) Rules, GN 67/2007 (which prescribes
consequences of failure to attend arbitration). For ease of reference, the rule is
reproduced below:
28.- (1) When a party fails to attend an arbitration hearing, an Arbitrator may do the
following-
(a) Where a party who referred the dispute to the Commission falls to attend the
hearing, the Arbitrator may dismiss the matter or postpone the hearing.
(b) Where a party against whom relief is sought fails to attend, the Arbitrator may
proceed in the absence of that party or postpone the hearing.
(c) Where an I rbitrator proceeds in the absence of a party, the party present has
to prove his case and to present an opening statement, evidence, and any argument
in support of its case. (Emphasis mine)
3. The crux of sub rule 2 above is that even in ex-parte proceedings, a party has to
prove his case. What happened in this case was different, as pointed out in the
opening paragraph, the arbitrator ordered and the arbitration proceeded by way of
written proceedings meaning the respondent did not prove his case as required.
That was a material irregularity.
4. This court is empowered under Rule 28 of the Labour Court Rules, GN 106/2007 to
revise on its own motion, arbitration proceedings and award where it appears the
arbitrator acted in exercise of jurisdiction with material irregularity. I accordingly
revise and quash the CMA proceedings and resultant award.
To conclude, the CMA ex-parte arbitration proceedings including the award are quashed,
the dispute is referred back to the CMA for it to be processed afresh according to law (as
56
explained under para 2 above) with effect from the date the ex-perte order was made. The
applicant is at liberty to file an application to the CMA to have the order to proceed
exparte set aside. Perhaps it is useful to point out that the avenue for mediation of labour
dispute is never closeJ until the dispute is finally resolved.
IGUNGA COTTON LTD. V. GODFREY NDIHI MWANDU

(Original CMA/DSM/KIN-IL-A/1037)
Digest
CMA not to entertain a time-barred application – CMA has no jurisdiction to entertain
it unless there is an application for Condonation.
Brief Facts
In the CMA, the respondent successfully referred a case of unfair termination, alleging
that he was unfairly terminated by the applicant. Dissatisfied, the applicant filed a
chamber application in the Labour Court under Rule 24 (11) b and 27 (5) of the Labour
Court Rules seeking a number of reliefs, including an order for stay of execution.
However, the reliefs sought in the Chamber Summons did not include revision of the
CMA award; although grounds adduced in the affidavit in support of the application also
covered grounds for revision. In response, the respondent filed a counter-affidavit
together with preliminary objections on 3 grounds: the application was misconceived in
law; the application is hopelessly time barred; and the application for stay was brought
under non-existent provisions of law.
Held:
When an application to the CMA is time-barred, the CMA has no jurisdiction to

entertain it unless there is an application for Condonation.
Application struck out.
Case Referred to
Tanzania Fish Processors Ltd. v Christopher Luhangula Court of Appeal of Tanzania at

Mwanza, Civil Appeal No. 161 of 1994 (unreported).
57
Ignas Charge from CHODAWU, for the Applicant.
Mr. Mtaki (Advocate), for the Respondent.
RULING
RWEYEMAMU, J.: The respondent/employee referred a case of unfair termination to the
Commission for Mediation and Arbitration (CMA) on 8/10/2007, alleging that he was
unfairly terminated on 8/8/2007. The dispute was arbitrated and an award issued in
favour of the Respondent on 31/10/2008. Dissatisfied, the applicant/employer filed a
chamber application under Rule 24 (11) b and 27 (5) of the Labour Court Rules seeking a
number of reliefs namely:
(a) Stay of execution
(b) Costs
(c) Any other relief
I hasten to point out that the reliefs sought in the Chamber summons did not include
revision of the CMA award; although grounds adduced in the affidavit in support of the
application also covered grounds for revision.
In response, the respondent filed a counter-affidavit and with it, raised Preliminary
Objections (PO) on 3 grounds that:
(a) The application is misconceived in law
(b) The application is hopelessly time barred
(c) Application for stay was brought under non-existent provision of law.
The PO was argued by way of written submission.
I will first deal with ground (b) above because that issue is fundamental as stressed by
the, highest court (TCA) a number of times:
The question of limitation of limitation of time is statutory and a fundamental issue

involving the question of the court jurisdiction. It goes to the very root of justice in
dealing with civil claims and as noted by CMA "limitation is a material point in the speedy
administration of Justice limitation is there to ensure that a party does not come to court
as and when he so chooses [...]." Tanzania Fish Processors Ltd. v Christopher Luhangula
Court of Appeal of Tanzania at Mwanza, Civil Appeal No. 161 of 1994 (unreported).
The question for decision is whether or not this application is time barred.
Mr. Mtaki advocate for the respondent submitted that the application was time barred in
terms of section 91(1) of the Employment and Labour Relations Act, 6 of 2004, which
provides six weeks for filing such applications. The impugned award was ready for
58
collection on 31/10/2008 but the application was filed on 17/2/2009, four months after, as
such the application was out of time acid this court lacks jurisdiction.
Submitting in response, the applicant's advocate argued that the award was never served
on to applicant; that they only became aware of it after they were served with execution
proceedings. In short, the applicant adduced grounds fit to be presented in an application
for extension of time because every party who delays to take action has reasons, that is
why the law provides avenue for such grounds to be properly received. That avenue is
filing an application for extension of time supported by affidavit, which gives the other
party chance to respond and the court to decide whether on the parties' arguments, time
should be extended or not.
This application was clearly filed out of time without leave of the court (or condonation
of the delay by the court - to use the language of Rule 56 (1) and (3) of the Labour Court
Rules, GN 106/2007). As such this court has no jurisdiction to deal with the application.
Having so decided on this fundamental issue of limitation, I find it unnecessary to decide
the rest of the PO (s) raised; and strike off this application but make no orders as to costs.
THE BOARD OF TRUSTEES OF THE LOCAL
AUTHORITIES PENSIONS FUND V. ISSACK HOLELA AND 2 OTHERS
Labour Application No. 16 of 2008 (Consolidated with Labour Revision N0. 266 of 2008)
(Original DOD/CMAAF1/34/2008 at Dodoma)
Digest
Labour Court Registrar has no powers to make any order in relation to proceedings in
the CMA when the matter is in the Labour Court – such lie with the court.
Brief Facts
When the matter was called up before the Labour Court for hearing of an application for
extension of time to apply for revision of the CMA decision, the Court noted
jurisdictional irregularities which had to be addressed before the natter proceeded. The
said irregularities based on a number of ex-parte decisions of the CMA: first, the CMA
gave an ex-parte award in favour of the respondents; and, second, it dismissed the
applicant's application to have that ex-parte award set aside. The applicant’s application
to have this decision revised was determined by the Labour Court’s District Registrar
(DR), who made an order in that file, referring the matter back to the CMA for it to
59
proceed, which the Labour Court later doubted: “it is not clear exactly what the CMA
was supposed to proceed with.”
Consequently, the CMA gave another ruling, again dismissing the applicant's prayer to set
aside its previous decision. Subsequently, the parties returned to the Labour Court,
whereby DR, once again, gave an order dismissing that application, reasoning that 'the
same had been over taken by events', against which statement the Labour Court
wondered: “it is not clear which events.” Consequent to this order, the applicant filed the
present application, seeking extension of time to apply for revision of the CMA ex-parte
award; and, impliedly, its subsequent two decisions.
Held:
The Registrar of the Labour Court has no powers to make any order in relation to
proceedings in the CMA when the matter is in the Labour Court because such powers
lie with the court.
District Registrar’s orders and CMA orders quashed, matter to be heard afresh.
Case Referred to
Capital Decorations & Building Works v Edward Rugayaza and 45 Others High Court of
Tanzania (Labour Division) at Morogoro, Labour Revision 239 of 2008 (unreported).
Mr. Mndeme (Advocate), for the Applicant.
Mr. Chuchuka from TALGU Union, for the Respondent.
ORDER IN REVISION
RWEYEMAMU, J.: The parties in this matter came before me yesterday to proceed with
hearing of an application for extension of time to apply for revision of the Commission for
Mediation and Arbitration jurisdictional irregularities which have to be addressed before
this natter proceeds. The said irregularities are best explained by presenting a chronology
of what transpired in this ease.
1. On 9/6/2008 the Commission for Mediation and Arbitration (CMA) gave an

ex-parte award in favour of the Respondent/employees.
2. In its decision dated 23/10/2008, the CMA dismissed the applicant/employer's

application to have that ex-parte award set aside.
3. On 4/11/2008 the applicant filed Revision No. 266/2008 in this court against that
latter decision. This application was timely filed, i.e. within 6 weeks the time
prescribed under Section 91 of the Employment and Labour Relations Act, 6 of
2004.
60
4. On 16/12/2008, the Registrar made an order in that file, referring the matter back
to the CMA for it to proceed (it is not clear exactly what the CMA was supposed to
proceed with).
5. Consequently, on 23/2/2009 the CMA gave another ruling, again dismissing the
applicant's prayer to set aside its decision of 23/10/2008.
6. Following that, the parties returned to this court, and on 23/6/2009, the Deputy
Registrar (DR) gave an order dismissing application N0. 266/2003 reasoning that
'the same had been over taken by events' (it is not clear which events).
7. It was after that the applicant filed the present application, seeking extension of
time to apply for revision of the CMA ex-parte award, and impliedly its subsequent
two decisions.
It should be categorically stated that the District Registrar (DR) had no powers to make
the order he did on 16/12/2008 (item 4 above); such powers lie with the court. For that
reason that order, as well as the one made by the DR on 23/6/2009 are hereby vacated;
and the CMA decision of 23/2/2009 is quashed. Consequently, the present application No.
16/2009 was/is unnecessary, it is hereby ordered closed; and Revision N0. 266/2008 is
ordered reinstated at the position it was at on 16/12/2008.
The Registrar should proceed with the usual processes of having that Revision
Application No. 266/2008 heard and determined according to law. To ensure that this
matter does not get off track, I order that; the two files should be submitted to the
Registrar immediately hereafter; both parties should appear before him for necessary
initial steps.
Incidentally, a similar mishap was noted in Capital Decorations & Building Works v
Edward Rugayaza and 45 Others High Court of Tanzania (Labour Division) at Morogoro,
Labour Revision 239 of 2008 (unreported). To avoid similar mishaps in future, the
Registrar(s) should take note of this order.
District Registrar’s orders and CMA orders quashed, matter to be heard afresh.
61
MOROGORO CANVAS MILLS (1998) LTD. V. JACOB MWANSUMBI
Digest
Mediator converts into an arbitrator without parties’ consent, subsequent proceedings
in the CMA becomes a nulty – Referral Form No. 1 not to be compared to pleadings in
ordinary civil suits (under the labour laws resolutions of disputes by the CMA, a
tribunal, is different from adjudication by a court) (rule 16(2) and (3) of the Labour
Institutions (Mediation and Arbitration) Rules (GN No. 64 of 2007)) – When mediation
fails, mediator must issue a certificate and therein, identify the nature of the disputes
and rights the parties have in terms of the Employment and Labour Relations Act" -
arbitrator must decide dispute between parties in terms of the labour laws; not proper to
consider and grant reliefs not prayed for in the referral Form No. 1.
Brief Facts
In an application for revision of the CMA award in the Labour Court, the applicant raised
3 grounds, but the Court determined only one which it found dispositive. The issue was
based on the applicant's submission that the mediator in the CMA converted into an
arbitrator after failure of the process, which was a material irregularity. In response, the
respondent submitted that the parties consented to the conversion. The CMA record of
proceedings, however, did not support the respondent's submission, as there was nothing
recorded to show that the parties consented to such conversion.
Held:
1. That where a mediator converts himself or herself into an arbitrator and the
parties have not had a say in the matter, subsequent proceedings in the CMA
will be nullified by the Labour Court.
2. That Referral Form No. 1 is not to be compared to pleadings in ordinary civil

suits as under the labour laws resolutions of disputes by the CMA, a tribunal, is
different from adjudication by a court.
3. That under rule 16(2) and (3) of the Labour Institutions (Mediation and
Arbitration) Rules (GN No. 64 of 2007), when mediation fails, the mediator is
mandated to issue a certificate and therein, identify the nature of the disputes
for the purposes of determining what rights the parties have in terms of the
Employment and Labour Relations Act" and "where the dispute remains
62
unsolved, irrespective of what was stated in the dispute referral form, the
mediator's certificate shall determine the nature of the dispute.
4. That the arbitrator is required to decide the dispute between the parties in
terms of the labour laws; and, therefore, it is not proper for him/her to
consider and grant reliefs not prayed for in the referral form.
CMA arbitration proceedings and award quashed, dispute referred back to the CMA
to be arbitrated afresh by a different arbitrator.
Cases Referred to:
General Manager, Mufindi Paper Mills Ltd. v Masoya Magoti and Cosmas Fimbo Msigwa
(Arbitrator) High Court of Tanzania (Labour Division) at Dar es Salaam, Revision No. 7 of
2007 (unreported).
Bulyanhulu Gold Mines Ltd. v James Bichuka High Court of Tanzania (Land Division) at
Project Manager, Barrick Gold Mine (Bulyanhulu) v Adriano Odhiambo High Court of
Tanzania (Labour Division) at Mwanza, Labour Revision No. 290 of 2008 (unreported).
Mhariri Mtendaji TSN v Bondi Ntobi High Court of Tanzania (Land Division) at Mwanza,
Labour Revision No. 231 of 2010 (unreported).
Mr. Kessy (Advocate), for the Applicant.
Mr. Ignas Charaji, Personal Representative of the Respondent.
RULING
RWEYEMAMU, J: This application for revision of the CMA award raises 3 grounds, but I
will decide only one which I find dispositive. Before doing that, however, I will, for
purpose of the record, state that at the hearing, the applicant was represented by Mr.
Kessy advocate while the respondent was represented by Mr. Ignas Charaji as a personal
representative in terms of Section 56(b)of the Labour Institutions Act, No. 7 of 2004.
The 1st issue, and around which the decision in this case turns, is based on the applicant's
submission that the mediator in the dispute converted into an arbitrator after failure of
the process which was a material irregularity. In response, the respondent submitted that
the parties consented to the conversion. The CMA record of proceedings, however, does
not support the respondent's submission. There is nothing recorded to show that the
parties consented to such conversion.
This court has held in a number of, decisions that where such conversion occurs, and the
parties have not had a say in the matter, subsequent proceedings will be nullified. For
ease of reference, I will quote the reasoning in one such cases, where the court, following
submission by the respondent, held that:
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[...] arbitration was conducted in a manner contrary to law in that after failure of
mediation, the mediator proceeded with arbitration contrary to the provisions of Section
88(2) of the Employment on Labour Relations Act, 6/2004 (ELRA) which requires the
CMA to appoint an arbitrator to decide the dispute after failure of mediation […] The
question whether it is legally proper for a mediator to convert into an arbitrator has been
considered a number of times by this court and the position now settled is contrary to the
view held by the respondent. That legal position can be restated as follows;
(a) Mediation and Arbitration are two distinct functions; mediators are appointed
under section 86 (3) (a) and arbitrators under section 88 (2) (a). When mediation
fails, the mediator must issue a certificate, and the where the parties choose
arbitration, the CMA must appoint an arbitrator who must decide the case and
issue an award.
(b) It (is) a material irregularity for a mediator to convert into an arbitrator

following failure of mediation (unless the dispute is conducted as Med/Arb, or
the parties have been given a choice in the matter); when such conversion
happens, subsequent proceedings will be revised.
It is a material irregularity for a mediator of a dispute to arbitrate it, such a procedure is

not only a conflict of roles which may lead to injustice and breach of the rule on
confidentiality of mediation proceedings but would also deprive mediation system the
basis of its success namely ability of the parties to participate in the process with the
frankness necessary to reach an amicable settlement […]. [See the reasoning; Bulyanhulu
Gold Mines Ltd. v James Bichuka High Court of Tanzania (Land Division) at Mwanza,
Labour Revision No. 313 of 2008 (unreported); Project Manager, Barrick Gold Mine
(Bulyanhulu) v Adriano Odhiambo High Court of Tanzania (Labour Division) at Mwanza,
Labour Revision No. 290 of 2008 (unreported); and Mhariri Mtendaji TSN v Bondi Ntobi
High Court of Tanzania (Land Division) at Mwanza, Labour Revision No. 231 of 2010
(unreported)].
In the case referred to, CMA proceedings were quashed; likewise in this case, I find the
procedure to have been materially irregular, quash the arbitration proceedings and the
resultant award. I order the dispute referred back to the CMA to be arbitrated afresh by a
different arbitrator.
Having so decided, it would have been unnecessary to decide the other two grounds
raised, but, I will discuss one of them so as to remove confusion which might have arisen
stemming from some decisions issued by this court. The applicant submitted that the
arbitrator erred in granting relief on claims not stated in the Referral Form No. 1. In
response, the respondent submitted that the award was based on issues as clarified after
failure of mediation and following receipt of opening statements - during the arbitration
process; as such the award was proper. In my firm opinion the respondent's submission
represents a correct position in law.
I use this opportunity to make it clear that the Referral Form No. 1 is not to be compared
to pleadings in ordinary civil suits. Under the labour laws resolutions of disputes by the
CMA – a tribunal is different from adjudication by a court. Under the relevant provisions
when mediation fails, the mediator is mandated to issue a certificate and therein,
"identify the nature of the disputes for the purposes of determining what rights the
parties have in terms of the Employment and Labour Relations Act" and "where the
dispute remains unsolved, irrespective of what was stated in the dispute referral form, the
64
mediator's certificate shall determine the nature of the dispute.” - See rule 16 (2) &(3) of
the Labour Institutions (Mediation and Arbitration) Rules, GN 64/2007 respectively.
In view of that provision, the arbitrator is required to decide the dispute between the
parties in terms of the labour laws. Therefore, it is not proper for him/her to consider and
grant reliefs not prayed for in the referral form; but arrived at a decision based on issues
framed following the mediator's certificate and facts disclosed by parties in their opening
statements. It is with humbleness I state that any prior contrary position I might have
taken was clearly per incuriam and is not to be followed.
CMA arbitration proceedings and award quashed, dispute referred back to the CMA to be
arbitrated afresh by a different arbitrator.
JONATHAN TENGULE V. GEITA GOLD MINING LTD.
(Original Complaint CMA/GEITA/138/2007/10)
Digest
Meaning of “proper record of arbitration proceedings” (i.e. form and manner of
conducting judicial business before a court or judicial officer, entailing regular and
orderly recording of the proceedings in form of law including all possible steps in an
action from its commencement to the execution of judgment) – Record of proceedings
to clearly indicate issues in dispute framed for arbitration; evidence led by each side to
prove or disprove the said issues (Rule 25 of the Labour Institutions (Mediation and
Arbitration Guidelines) Rules, GN No. 67 of 2007) – To make proceedings orderly
requires numbering the pages in the cause of proceedings sequentially (Rule 32 (2) of
the (Mediation and Arbitration Guidelines) Rules, GN No. 67 of 2007) – Typed copy
certified by the arbitrator should be supplied where applied for (Rule 32 (4) of the
Guidelines) – Arbitrator empowered to determine how proceedings should be
conducted, but such powers do not allow an arbitrator to jump or skip the vital stages,
or fail to keep a proper record (Rule 19 of the (Mediation and Arbitration Guidelines)
Rules (2007).
Brief Facts
The applicant filed in the Labour Court an application for revision of the arbitrator's
award on grounds that the award was not based on evidence but the arbitrator's opinion;
and that the award had obvious irregularities. In his oral submission at the time of
hearing, he prayed that because of the said irregularities, this court should quash the
proceedings and arbitrator's award, and order the process to start afresh. In response
counsel for the respondent opposed the application and submitted that under Rule 19(1)
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of the Labour Institutions (Mediation and Arbitration Guidelines) Rules (GN 67/2007),
the arbitrator has powers on the mode of arbitration, and added that in any eventuality,
the award issued covered all items itemized under Rule 27(3) of the Guidelines cited
above. In reply, the applicant submitted that the issue in the complainant referred to the
CMA was that of unfair termination, but the respondent did not prove that the applicant
was guilty of any misconduct, and the witness who turned up stated that he was told to
say what he was testifying to.
Held:
1. That the phrase “proper record of arbitration proceedings” refers to the form and
manner of conducting judicial business before a court or judicial officer, which
entails regular and orderly recording of the proceedings in form of law including
all possible steps in an action from its commencement to the execution of
judgment.
2. That a record of proceedings complying with the rules of procedure regulating

labour dispute settlement will clearly indicate issues in dispute which were framed
for arbitration; evidence led by each side to prove or disprove the said issues, (the
manner of receipt of such evidence is provided under Rule 25 of the Labour
Institutions (Mediation and Arbitration Guidelines) Rules, GN No. 67 of 2007); it
will contain arguments by way of written submissions(if the arbitrator has allowed
them), which should be indicated in the proceedings, or made part of the record
where they are received orally; and, where the arbitrator allows closing arguments,
they should be systematically included in the record.
3. That to make such proceedings orderly would by necessity require numbering the
pages in the cause of proceedings sequentially; it would require that the written
notes be kept in a retrievable form; and although Rule 32 (2) of the (Mediation and
Arbitration Guidelines) Rules, GN No. 67 of 2007) permit "legible handwritten
notes' when the same 'are required by parties for their records, revision purposes
etc., a typed copy certified by the arbitrator should be supplied where applied for
under Rule 32 (4) of the Guidelines.
4. Although Rule 19 of the (Mediation and Arbitration Guidelines) Rules (2007)

empowers the arbitrator to determine how proceedings should be conducted and
refers to procedural matters like which party should start, how the dispute is
introduced, whether closing remarks will be taken, whether to adjourn
proceedings and the like; such powers do not allow an arbitrator to jump or skip
the vital stages, or fail to keep a proper record.
CMA proceedings quashed; arbitration to be conducted afresh.
Cases Referred to:
BIDCO Oil & Soap Ltd. v Abdu Said & 3 Others High Court of Tanzania (Labour Division)
at Dar es Salaam, Labour Revision 11 of 2008 (unreported).
66
P.M.A. Metropolitan v Moran Matkona AIR 1955 S.C. 2001.
Mr. Masudi from TAMICO, for the Applicant.
Mr. Deo Mhagama (Advocate), for the Respondent.
RULING
RWEYEMAMU, J.: The applicant, vide his representative one Masudi of TAMICO, filed
this application for revision of the arbitrator's award on grounds that:-
(a) The award was not based on evidence but the arbitrator's opinion.
(b) That award has obvious irregularities itemized as (b) (i) to (vii).
In his oral submission at the time of hearing, he prayed that because of the said
irregularities, this court should quash the proceedings and arbitrator's award, and order
the process to start afresh.
In response Mr. Deo Mhagama counsel for the respondent, opposed the application and
submitted that under Rule 19(1) of the Labour Institutions (Mediation and Arbitration
Guidelines) Rules, GN 67/2007, the arbitrator has powers on the mode of arbitration, and
added that in any eventuality, the award issued covered all items itemized under Rule
27(3) of the Guidelines cited above.
In reply, the applicant submitted that the issue in the complainant referred to the CMA
was that of unfair termination, but the respondent did not prove that the applicant was
guilty of any misconduct, and the witness who turned up stated that he was told to say
what he was testifying to.
I have checked the proceedings on record, and in my opinion, they do not amount to a
record of proceedings as prescribed under rule 32 of Labour Institutions (Mediation and
Arbitration) Rules, GN 64 of 2007 (herein after, M & A Rules). What is "a proper record
arbitration proceeding? This question was considered and discussed in detail by my
brother Mandia J, in BIDCO Oil & Soap Ltd. v Abdu Said & 3 Others High Court of
Tanzania (Labour Division) at Dar es Salaam, Labour Revision 11 of 2008 (unreported), in
a case where similar irregularities were noted and I find it useful to refer to, associate and
borrow an instructive part of that Judgment. It is convenient to quote relevant part,
where he explained the requirements of Rule 32 in the following words:
The emphasis here is on keeping a permanent and retrievable record of proceedings.

What, if we may ask, are “proceedings” as referred to in Rule 32 (1) and (2) of GN 64 of
2007. The Judicial Dictionary, 2nd Edition, authored by Mr. Justice L. P. Singh and P. K.
Majumdar defines proceedings "at page 1069 thus;-
PROCEEDINGS in Black's Law Dictionary, it is explained as in general sense, the

form and manner of conducting judicial business before a court or judicial officer,
Regular and orderly progress in form of law including all possible steps in an action
67
from its commencement to the execution of judgement (P.M.A. Metropolitan v.
Moran Matkona AIR 1955 S.C. 2001 at 2023),
The above quotation puts emphasis on regular and orderly progress in law and procedure
from commencement cf an action to execution of judgment as the basis attributes of any
legal proceeding.
The functions, of arbitrators are qusi-judiclall so arbitrators should insist on the basic
characteristics of orderliness and regularity. In execution of their dudes. Luckily for them
the Commission has made elaborate rules of procedure which have been published as GN
64 of 2007. The rules of procedure are subsidiary legislation and arbitrators are bound to
follow the rules of procedure set therein.
Exactly what the arbitrator is supposed to do in conducting proceedings whose record he

keeps as per rule 32 is prescribed under the Labour Institutions (Mediation and
Arbitration Guidelines) Rules, GN 67 of 2007, (hereinafter the Guidelines) issued by the
CMA under section 15 (f) of the Labour Institutions Act, No. 7 of 2004. These guidelines
specify stages and contents of arbitiation proceedings. The stages to be covered are
contained in Rule 18 to 26 of the guide'ines.
A record of proceedings complying with the guidelines will clearly indicate issues in
dispute which were up to be arbitrated; evidence led by each side to prove or disprove the
said issues, (the manner of receipt of such evidence is provided under Rule 25 of the
guidelines); it will contain arguments by way of written submissions(if the arbitrator has
allowed them), which 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.
Further, where there were preliminary issues, evidence and arguments by each side
should be indicated in the record. Finally, proceedings should contain the award
indicating the decision and reasons thereof on each issue raised and a summary on
matters itemized under Guideline 27(a) to (f).
I have concluded elsewere that: ‘To make such proceedings orderly would by necessity
require numbering the pages in the cause of proceedings sequentially; it would require
that the written notes be kept in a retrievable form; and although Rule 32 (2) of the M& A
Rules permit "legible handwritten notes' when the same 'are required by parties for their
records, revision purposes etc., a typed copy certified by the arbitrator should be supplied
where applied for under Rule 32 (4) of the Guidelines. That, in my opinion, is the only
sure way this court can tell/understand what transpired during the arbitration process
and what aspects are faulted or supported.’
In my opinion, Rule 19 of the Guidelines which empowers the arbitrator to determine

how proceedings should be conducted, refer to procedural matters like which party
should start, how the dispute is introduced, whether closing remarks will be taken,
whether to adjourn proceedings and the like, but such power do not allow an arbitrator
to jump/ skip the vital stages, or fail to keep a proper record.
In the present recording CMA, there is a page 6 with handwritten notes titled
"Re-examination", there other papers with cross examination, but it is not indicated what
68
issues were arbitrated, nor is there a systematic record of evidence of both sides. In short,
what there is does not constitute a record of proceedings.
In view of the pointed out irregularities, I quash whatever went on in the arbitration
proceedings and order that arbitration be conducted afresh, according to Law. It is so
ordered.
CMA proceedings quashed, arbitration to be conducted afresh.
KWILA PETER NKWAMA V. GENERAL MANAGER MARINE SERVICES CO. LTD.
(Original CMA/MZ/4921/2008)
Digest
Civil Procedure Code (CPC) not applicable in labour cases - procedures governing
conduct of cases in the CMA and Labour Court governed by labour laws - CPC applies
only where there is no specific provision in the labour –labour laws do not provide for a
place of suing, a lacuna in the labour laws on that issue necessitating resort to the
procedure relating to place of suing obtained in section 18(a) to (c) of the CPC.CMA
Brief Facts
Upon a referral made by the applicant in the CMA, challenging his termination by the
respondent on ground that it was unfair, the respondent raised a point of preliminary
objection, which was upheld on ground that the CMA had no jurisdiction to dtermine the
dispute because the cause of action arose in Kyela in Mbeya not Mwanza. The applicant
believed the Mwanza CMA had jurisdiction, an issue that was vehemently controverted
by the respondent. When the matter landed in the Labour Court, the issue for decision in
was whether the arbitrator properly exercised its jurisdiction when it decided that it had
no jurisdiction to deal with the dispute. In the impugned decision, the arbitrator agreed
with the respondent's submission that the Kyela CMA had jurisdiction in the matter
because that was where the applicant's employment was terminated.
Held:
1. That the Civil Procedure Code (CPC) does not ordinarily apply in conduct of cases
under the labour laws; as procedures governing conduct of cases in the CMA and
this court are separately provided for. Where however, a situation arises which is
not covered by the said laws, appropriate procedures can be adopted and the
69
practice has been to adopt procedures used in conduct of civil cases- that is the
CPC.
2. That the labour laws do not provide for a place of suing, which means that there is
a lacuna in the labour laws on that issue necessitating resort to the procedure
relating to place of suing obtained in section 18(a) to (c) of the CPC.
CMA decision quashed.
Cases Referred to:
COTWU (T) – OTTU Union and Another v Hon. Iddi Simba, Minister of Industries and
Trade & 7 Others High Court of Tanzania at Dar es Salaam, Miscellaneous Civil Cause No.
James Funke Gwagilo v AG Court of Appeal of Tanzania at Dar es Salaam, Civil Revision
No. 50 if 1998 (unreported).
Mukisa Biscuit Manufacturing Company Limited v. West End Distributors Limited 1969 EA
696.
Shahida Abdul Hassanali Kassam v Mahedi Mohadedi Gulamaji Kanji Civil Application
No. 42 of 1999 (unreported).
Mr. Magabe, a Personal Representative of the Applicant.
Mr. Rutahindulwa (Advocate), for the Respondent.
RULING
RWEYEMAMU, J.: The applicant/employee seeks revision of the Commission for

Mediation and Arbitration (CMA) decision dated 13/10/2007. That decision followed a
referral made by the applicant challenging his termination by the respondent/employer
on ground that it was unfair. In its decision, the CMA upheld the Preliminary Objection
(PO) raised by the respondent/employer that it had no jurisdiction to handle the dispute
because the cause of action arose in Kyela in Mbeya zone not Mwanza. The applicant
believes the Mwanza CMA had jurisdiction, an issue controverted by the respondent
hence this contested application.
At the hearing the applicant was represented by Mr. Magabe a personal representative in
terms of section 56 (b) of the Labour Institutions Act, 7/2004 (LIA) while the respondent
was represented by Mr. Rutahindulwa Advocate.
The issue for decision in this application is whether the arbitrator properly exercised its
jurisdiction when it decided that it had no jurisdiction to deal with the dispute. In the
impugned decision, the arbitrator agreed with the respondent's Submission that the
Kyela CMA had jurisdiction in the matter because that was where the applicant's
employment was terminated.
From the parties's submissions at the CMA and in this court, the following facts are
undisputed:
70
1. The applicant's employer was the General Manager, Marine Services Co. Ltd.
whose head office is in Mwanza
2. The applicant was working in Mwanza; he was assigned duties at kyela where he
did not report (for reasons which are not of immediate relevance).
3. By its letter dated 29/7/2008 written on behalf of the respondent- GM Mwanza

and received by the applicant on 1/8/2008, the applicant was informed that he had
been terminated on grounds of absence from duty, but that he would be reinstated
on humanitarian reasons if he agreed to a permanent transfer to Kyela.
4. Aggrieved, the applicant appealed the decision to the Mwanza CMA culminating
in the decision subject matter of this application.
5. The applicant's residence was and remains to be in Mwanza.
At the hearing, it was submitted on behalf of the applicant that the GM Mwanza
remained his employer and was the one who terminated his employment; that although
the respondent had transferred the applicant to Kyela, it was on grounds disputed by the
latter thus his failure to report there; that as such, the applicant's place of employment
remained to be in Mwanza where therefore the cause of action arose. It was further
submitted that to require the dispute to be determined in Kyela would cause
inconveniences to the applicant including transport costs for himself and his witnesses
from Mwanza to Kyela.
In response it was submitted for the respondent that although the head quarters of the
respondent company was in Mwanza, the letter of termination was sent and received at
Kyela- the applicant was aware of the transfer thereto, as such the proper CMA office to
handle the dispute was at kyela. To buttress the argument that the cause of action in a
case of termination is a place where the letter of termination was received, counsel for
the respondent referred the court to the Court of Appeal (CAT) decision in James Funke
Gwagilo v AG Court of Appeal of Tanzania at Dar es Salaam, Civil Revision No. 50 if 1998
(unreported). I take judicial notice of the fact that there is no CMA office in Kyela, the
district is served by the CMA at Mbeya.
The first issue I have to decide is the extent the cited authority is applicable to the facts of
this is case. In the cited case, the CAT was dealing with the issue of wrongful termination
of employment by the government as an employer. In that case the employee had been
employed and terminated at Dar es Salaam; the letter of termination was written and
received in Dar es Salaam but the suit was filed in Dodoma where the plaintiff/mployee
resided.
The court discussed applicability of Section 18 of the CPC which provides that:
Every suit shall be instituted in a court within the local limits of whose jurisdiction –
(a) The defendant, or each of the defendants where there are more than one, at the
time of the commencement of the suit, actually and voluntarily resides, or carries
on business, or prsonally works for gain; or
71
(b) Any of the defendants, where there are more than on one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on
business, or personally works for gain, provided that in such a case either the
leave of the court is given or the defendants who do not reside or carry on
business; or personal, works for gain, as aforesaid, acquiesce in such Institution,
or
(c) The cause of action, wholly or in part, arises.
The Court first held that subsection (a) and (b) above do not apply to suits against the
goverment, and the determinant factor is where the cause of action arose. The Court
went on to note that as the cause of action was the alleged termination of employment;
[...] the problem is to determine which is the place where the cause of action arose. Is it
the place where the letter was written or where it was received. [...] If the two events had
taken place at two different places, then the place where the cause if action arose would
have been the place where the letter was received.
After reading the authority cited, it is my view that the case is not on all fours with the
facts of the present case and is therefore distinguishable because, one, that case was a
suit against the government where as observed by the court, the only determinant factor
is the cause of action. Two, in the cited case unlike the present, the place of employment
and its termination were not disputed.
Three, the CPC does not ordinarily apply in conduct of cases under the labour laws.
Procedures governing conduct of cases in the CMA and this court are separately provided
for. 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.
The next question I have to answer is whether the labour laws provide for a place of
suing, I have read the provisions mentioned in the arbitrator's decision; rule 15 (1) (c) of
Labour Institutions Act, 7/2004 (LIA), deals with the CMA's powers to "establish offices in
areas and at administrative levels as it may determine”. And rule 10 of the Labour
Institutions (Ethics and code for Conduct for Mediators and arbitrators) Rules, GN
66/2007 simply requires mediators and arbitrators "to observe their competency on
jurisdictional issues as conferred by the Act”. Section 86 of the Employment and Labour
Relations Act, 6/2004 generally provides that disputes should be referred to the CMA, the
latter has powers to mediate and arbitrate disputes; it has powers to establish area offices,
of which an area office was established in Mbeya not Kyela.
Nothing in the above provisions addresses the issue of place of suing, and my reading of
the labour laws has not revealed a provision which specifically governs that issue. I
accordingly find that the labour laws do not provide for a place of suing. To use legalize,
there is a lacunae on that issue.
While it would be best for the law or regulations to specifically provide for a place of
suing in labour cases, in its absence, the usual practice is to resort to procedures
governing civil practice in this country i.e. the CPC. The relevant provision is section 18
72
(a) to (c) thereof already quoted herein above. In labour cases, like any other civil case
the place of suing is determined by the whole of that section, there is are no basis to
assume that the only consideration is ground (c) -the cause of action alone, as assumed
by the arbitrator and counsel for the respondent inhis bumission to this court, Section 13
(a) and (b) are also applicable in determining the place of instituting suits. That is, a
labour dispute can be filed where the complaints resides, carries on business or where the
cause of action arose.
In the result, in the present case since it is undisputed that the applicant/employee
resided in Mwanza, it follows that the Mwanza CMA office had jurisdiction to mediate
and arbitrate the dispute. For that reason I find that the arbitrators decision upholding
the raised PO resulted in failure to exercise jurisdiction vested by law. That conclusion is
sufficient to dispose of the matter but there is another ground why this application must
succeed.
That next ground is based on the question, whether the issue before the arbitrator could
be disposed of by way of PO. To answer the question, I need first to consider what
matters can be raised by way of PO?
The term PO in our jurisdiction is used as per rule established in the now defunct Court
of Appeal of East Africa in Mukisa Biscuit Manufacturing Company Limited v West End
Distributors Limited 1969 EA 696. That decision has been followed by the Court of Appeal
of Tanzania in various decisions among them Shahida Abdul Hassanali Kassam v Mahedi
Mohadedi Gulamaji Kanji, Civil Application No. 42 of 1999, (unreported) where the Court
held that:
A PO ‘is in the nature of what used to be a demurrer, It raises a pure point of law which is
argued on the assumption that facts pleaded by the other side are correct. It cannot be
raised if any fact has to be ascertained or if what is sought is the exercise of judicial
discretion. "In the Mukisa case Law JA giving example of PO pointed to: “…..-objection to
the jurisdiction of the court, a plea of limitation and the like. "He went on to observe that,
a preliminary objection contains a point of law ... and which If argued as a preliminary
point may dispose of the suit"And Newbold JA in the same case continued that “ a
preliminary objection cannot be raised if any fact has to be ascertained" “a” PO cannot be
based on unascertained factual matters said Kisanga JA in COTWU (T) – OTTU Union and
Another v Hon. Iddi Simba, Minister of Industries and Trade & 7 Others High Court of
Tanzania at Dar es Salaam, Miscellaneous Civil Cause No. 100 of 1999 (unreported)
(Emphasis mine).
Now, even assuming cause of action was the only determinant factor, on the facts of this
case, determination of that issue depends on unascertained factual matters. Both the
question of where the applicant's employment was terminated, and whether the
applicant had been transferred were material points of contention, as such the cause of
action could not be determined by way of PO. The issue was not a pure point of law. This
ground itself suffices to find as I do, that the arbitrator's decision on the PO amounted to
an error material to the merits of the case and for that reason the decision has to be
revised.
73
For the above two reasons, I grant this application for revision, quash the complained of
decision and order the CMA at Mwanza to proceed and process the applicant's referral
according to law.
CMA decision quashed.
MUSTAFA JUMANNE V. MARY BORA
High Court of Tanzania (Labour Division) at Dodoma (Rweyemamu, J.)
(Original DOM/CMA F1/41/2008)
Digest
Existence of an employer-employee relationship pre-requisite in determination of a
labour dispute in the CMA.
Brief Facts
After the applicant's unfair termination claim against the respondent was dismissed by
the CMA, he filed an application for revision of the arbitrator's decision to the Labour
Court on the ground, inter alia, that the arbitrator reached an erroneous conclusion that
the applicant was not employed by the respondent.
Held:
The existence of an employer-employee relationship is a pre-requisite in

determination of a labour dispute in the CMA.
No Case Referred to
Mr. Nchimbi from TUICO, for the Applicant.
The Respondent appeared in person.
RULING
RWEYEMAMU, J: The applicant's unfair termination claim against the respondent was
dismissed by the Commission for Mediation and Arbitration (CMA) in its decision issued
on 22/7/2008. Aggrieved, he filed this application for revision of the arbitrator's decision
on grounds 'restated' that on the evidence available, the arbitrator reached an erroneous
conclusion that:
74
1. The applicant was not employed by the respondent.
2. The respondent was not the owner of the milling machine where the applicant was
working and therefore:
3. Reached a wrong conclusion that the respondent had no case to answer, and erred
in:
4. Dismissing the applicant's claim as baseless.
The respondent filed a counter affidavit contesting the application. At the hearing, the
applicant was represented by Mr. Nchimbi from TUICO, a registered trade union and the
respondent appeared in person.
Elaborating on the above, Mr. Nchimbi submitted 'first that the evidence adduced by the
applicant and her witnesses proved existence of the employment relationship. Countering
that, the respondent submitted that the arbitrator was right to believe her evidence that
the milling business was being operated by her husband and she was never a part of that
business; that when he died, she rented that business to one Godfrey and was never part
of the operations. She never knew who was employed by that Godfrey, save that the
latter requested her permission to allow the applicant to use one of the idle room for stay
and to conduct petty business and she consented; she had no knowledge that the
applicant was ever employed.
From the evidence on record, it was undisputed that the milling business including the
milling machine was rented out to Godfrey from as early as the year 2000 as evidenced by
certificate of registration of the business. Granted before the arbitrator were two
conflicting versions regarding the nature of the applicant's stay at the milling business
premises. The applicant's version was that she was an employee since 2001 until
terminated in 2008 and the respondent's version was that she was a tenant whose free
tenancy was terminated in 2008.
After going through the award, it is clear the arbitrator's decision was based on the
conclusion that since there was evidence that the business was rented out to Godfrey
before the time the applicant was allegedly employed, the latter was a proper person to
be sued, but the possibility to join him in the dispute was frustrated by the applicant's
insistence that the respondent had employed him. See paragraph 4 at page 9 of the
award.
On careful consideration, I find like the arbitrator that it unreasonable to believe that the
respondent could have rented out the milling business but continued to employ workers
for that business particularly when the business was in respect of milling. In view of that,
I agree with the arbitrator's conclusion that the applicant was not employed by the
respondent and dismiss that ground of complaint.
The applicant's second ground regarding ownership of the milling machine is based on a
misconstruction of what the arbitrator’s decision. Ownership of the milling machine was
never in dispute at the CMA, what the arbitrator concluded is best captured in his own
words “[…] mwanzoni suala hili lilinitatiza kidogo nikadhani labda mlalamikaji alikuwa
75
akichanganya umiliki wa mali na umilikil wa biashara, lakini baadaye nilikuja kugundua
kuwa hilo kwake halikuwa tatizo yeye alishikilia kwamba aliyemwajiri mwaka 2001 ni
mlalamikiwa naye alikuja kumfahamu Godfrey 2008 baada ya kuthibitishiwa na
mlalamikiwa kuwa ndiye mmiliki mpya wa biashara ... sina shaka kuwa biashara hiyo ya
kukoboa na kusaga ni mali ya Godfrey [...] kabla ya 2001 [...]”. See page 8 of the award.
The arbitrator reasoned that since it was undisputed that the milling business was being
operated by Godfrey before 2001, then the applicant could have not been an employee of
the respondent working for the milling business. As already stated above, that conclusion
by the arbitrator was reasonable and I find no basis to revise it.
Now the arbitrator having reached the decision he did on the key issue- that there was no
employment relationship between the applicant and the respondent; it was logical to
conclude as he did, that the other issues framed namely whether there was unfair
termination and the reliefs' thereof had no legs to stand on. For that reason, I find the
applicant's complaint - ground 3 and 4 above baseless and dismiss them. To conclude, I
find the application to have no merit and dismiss it.
SAID MOHAMED & 9 OTHERS V. M/S MEES LTD.

Digest
Labour Court’s jurisdiction to review or revise an arbitrators' exercisable under
Section 91(1) of the Act ELRA – failure to cite enabling provisions of law makes the
application incompetent, which goes to the root of the court's jurisdiction.
Brief Facts
In the Labour Court, the applicants filed an application davit seeking revision of the CMA
award. After going through the record, however, teh Labour Court noticed that a decision
in this case turned out on a different issue other than those raised by the applicants: i.e.
the application was moved into the Labour Court by citing only Rule 28 of the Labour Court
Rules, GN 106 of 2007 (the LC Rules). The issue the Labour had to consider is whether it
was properly moved; and, as such, properly seized or vested with the requisite jurisdiction
to hear and determine the matter.
Held:
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1. 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 (see also Chama Cha Walimu
Tanzania v. A.G., Civil Application 151/2008).
2. That it is now a trite rule of law that failure to cite enabling provisions of law
makes the application incompetent; and omission to cite enabling provisions is
not a mere technicality, but goes to the root of the court's jurisdiction.
Application struck out; applicants ordered to file a proper application.
Cases Referred to:
Chama cha Walimu Tanzania v AG Court of Appeal of Tanzania at Dar es Salaam, Civil
Application No. 151 of 2008 (unreported).
Nicodemes Kajungu & 1374 Others v Bulyankulu Gold Mine (T) Ltd. Court of Appeal of Tanzania at
Dar es Salaam, Civil Appeal No. 110 of 2008 (unreported).
Mr. Matto (Advocate), for the Applicants.
RULING
RWEYEMAMU, J.: On 13/12/2010, the applicants/employees filed this application

supported by affidavit seeking revision of the CMA award issued on 4/11/2010. The
applicants raised a number of grounds in the supporting affidavit which were elaborated
on by their advocate Mr. Matto at the time of hearing. After going through the record,
however, I noticed that a decision in this case turns on a different issue other than those
raised by the applicants. I have noticed that the application was moved into court by
citing only Rule 28 of the Labour Court Rules, GN 106 of 2007 (the LC Rules). The issue I
have to consider is whether this court has been properly moved and thus “properly seized
or vested with the requisite jurisdiction to hear and determine the matter.” [See
particularly Nicodemes Kajungu & 1374 Others v Bulyankulu Gold Mine (T) Ltd. Court of
Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 110 of 2008 (unreported)].
The court's powers to revise CMA arbitration awards is provided under section 91(1) of
the Act read together with rule 28 of the LC Rules and as stressed by the Court of Appeal
in Chama cha Walimu Tanzania v AG Court of Appeal of Tanzania at Dar es Salaam, Civil
Application No. 151 of 2008 (unreported): ‘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.’
By failing to cite section 91 of the Act and citing only rule 28 of the LC Rules, it is clear
that the applicants in this case cited only part of the enabling provisions. It is now a trite
77
rule of law that failure to cite enabling provisions makes the application incompetent.
The Court in the above cited case of Chama Cha Walimu 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 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.
In view of my conclusion that the application suffers from improper citation of enabling
provisions, I find the same incompetent and order it struck off. In the interest of justice,
however, I grant the applicants another opportunity to file a proper application, (if they
are still desirous of pursuing the matter) by giving them extension of time to file the same
within 14 days from the date of delivery of this ruling or receipt of the same.
SAMWEL TEOPHIL AMOLLO V. TANESCO LTD.
Digest
Labour Court to condone an application filed out of time it upon satisfyin itself that
there is good for cause for so doing - but the CMA must have refused to do so.
Brief Facts
After the CMA dismissed an application to file a dispute out of time for reason that the
applicant's grounds for delay did not amount to “good cause”, the applicant sought
revision of that decision in the Labour Court on ground that, on the evidence before him,
the arbitrator reached an improper decision. It was apparent that, whereas this dispute
arose on 17/3/2007, the CMA became operational on 5/1/2007 (being born out of the
defunct Labour Department (LD)), upon CMA’s establishment, some Labour Officers
became Mediators and Arbitrators inthe CMA. In this case, the applicant referred the
dispute to the LD as had been the law and procedure before the CMA became
operational, but the LD sat on the dispute until 14/10/2009 when it returned it to the
applicant on ground that it no longer had jurisdiction to handle it. Subsequently, the
applicant sought clarification from the Labour Commissioner who confirmed the position
in a letter dated 1/3/2010 and advised the applicant to refer the dispute to the Ruaha CMA
office.
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Subsequently, the applicant tried to file the dispute at Ruaha but the CMA office was not
yet opened there, consequent to which the applicant filed the dispute in Morogoro
together with an application for condonation of delay, sighting as cause of for delay, the
above processes. However, the arbitrator found that the delay was due to ignorance of
law, concluding that such ignorance did not constitute good cause. The issue for decision
in the Labour Court was whether the arbitrator's decision on those facts was improper as
to necessitate revision.
Held:
Where the CMA fails to condone an application filed out of time, the Labour Court may
condone it upon satisfyin itself that there is good for cause for so doing.
CMA decision quashed, condonation granted and CMA directed adjudicate the matter.
No Case Referred to
Mr. Rajabu Jaha from TUICO, for the Applicant.
Msefya (Advocate), for the Respondent
RULING
RWEYEMAMU, R.M. , J: On 30/7/2010 the CMA dismissed the application to file a

dispute out of time for reason that the applicant's grounds for delay did not amount to
“good cause” Dissatisfied the applicant seeks revision of that decision on ground basically
that on the evidence before him, the arbitrator reached an improper decision.
The undisputed facts at the CMA were; that the dispute arose on 17/3/2007; that the CMA
had become operational on 5/1/2007 and was born out of the Labour Department (LD) in
that some Labour Officers (LO) became Mediators and Arbitrators of the CMA; that the
applicant referred the dispute to the LD as had been the law and procedure before CMA
became operational; that the LD remained with the dispute until 14/10/2009 when they
returned it to the applicant on ground that they no longer had jurisdiction to handle it;
that the applicant sought clarification from the Labour Commissioner who confirmed the
position in a letter dated 1/3/2010 and advised the applicant to refer the dispute to the
Ruaha CMA office.
In the supporting affidavit, the applicant averred further that at the time the dispute
arose, it was the LD which had the duty to advise parties on proper venue to file disputes.
Through his representative Mr. Rajabu Jaha from TUICO union, the applicant adopted
the facts above also contained in the supporting affidavit and further submitted at the
hearing of this application that following the Labour Commissioner's letter, the applicant
tried to file the dispute at Ruaha but the CMA office was not yet open there. Ultimately
the applicant filed the dispute in Morogoro together with an application for condonation
of delay, sighting as cause of for delay, the above processes.
79
It was with that background that the arbitrator found that delay was due to ignorance of
law, and concluded that such ignorance did not constitute good cause. The issue for
decision is whether the arbitrator's decision on those facts was improper as to necessitate
revision.
I have considered the arbitrator's decision in light of the undisputed facts, and in the
context of the reality that Labour Institutions including the CMA were still relatively new
at the time the dispute arose, and the facts that, even the LD seems not to have been very
sure about its jurisdiction in the applicant's dispute otherwise they would not have
remained with it for more than two years thereby contributing to the delay, and agree
that there was genuine confusion and as such, the delay to make the referral was on "good
cause" and the arbitrator's decision was based on a misapprehension of facts and for that
reason, revisable. Having so decided, I use powers vested in this court by section 91 (4) (a)
of the Employment and Labour Relations Act, 6/2004, to condone the applicant's delay.
In the result, I find this application merited, quash the CMA decision, condone the delay
and direct the CMA to proceed to process the dispute according to law.
CMA decision quashed, condonation granted and CMA directed adjudicate the matter.
STEPHEN MILANZI V. DR. MKISI
High Court of Tanzania (Labour Division) at Dar es Salaam (Moshi, J.)
Misc. Labour Application N0. 8 of 2009
(Original ICMA/DSM/KIN-ILA/15455/08/244/07)
Digest
A pplicant not to file two applications (for enlargement of time and revision) at the
same time; rather can only file an application for enlargement of time to file an
application for Revision – extension of time to be allowed on where good reasons are
advanced – time used to seek legal assistance is sufficient cause for Labour Court to
extend time, because the applicant has a right to be represented.
Brief Facts
In the Labour Court, the applicant brought a notice of application (headed as an
“Application for Revision”) under S. 91(10 (a) of the Employment and Labour Relation Act
(2004) and Rules 24 (1)(2)(3), 28 (1) and 56(1) of the Labour Court Rules (G.N. 106 of
2007), requesting the Court to extend the time within which to file an application for
revision and that after extending the time; the Court should call for the record of
proceedings of the CMA and revise the same. In support of his application, the applicant
submitted that when the case was at the CMA, the applicant was being assisted by a legal
aid firm. That after the award was procured; he had to, once again, approach the legal aid
80
firm, which promised to assist him, but it did not honour its promise – that is, the legal
aid firm did not assist him up until when he approached Mr. Mrugaruga. However, the
respondent disputed the reasons advanced by the applicant in relation to the fact that he
delayed to file an application for revision as he was seeking legal assistance. Therefore,
the respondent urged the Labour Court to find the application as not tenable in law.
Held:
1. That an applicant cannot file two applications (for enlargement of time and
revision) at the same time; rather he can only file an application for
enlargement of time to file an application for Revision; whereby, the Court,
after hearing both sides, would consider whether the applicant had advanced
good reasons to move the Court to exercise is discretion to extend time or
condone an application which is brought out of time. If the Court finds that
there are good reasons to do so; and allows the application; that is when the
applicant can lodge an application for Revision.
2. That the Labour Court can extend time within which to file an application for
revision to the applicant if sufficient cause, like time used to seek legal
assistance is exhibited.
3. That seeking a legal representation is a good ground for extension of time
because the applicant has a right to be represented.
Application allowed.
No Case Referred to
Mr. Mrugaruga, personal representative of the Applicant.
Mr. Luguwa (Advocate), for the Respondent.
RULING
MOSHI, J: The applicant brought a notice of application under S. 91(10 (a) of the
Employment and Labour Relation Act, Act N0. 6 of 2004; Rule 24 (1)(2)(3), 28 (1) and
56(1) of the Labour Court Rules, 2007, G.N. 106 of 2007. The application was headed as an
“Application for Revision”. Through the notice, he applied that the Court should extend
the time within which to file an application for revision and that after extending the time;
the Court should CALL for the record of proceedings of the Commission for Mediation
and Arbitration (CMA) andrRevise the same.
In the affidavit he made his averments in connection to the application for the
application for Extension of time and as well as for an application for revision.
The respondent filed their Counter affidavit disputing the fact that, the reason advanced
by the applicant, that he delayed to file an application for Revision due to the fact that he
81
was seeking legal assistance was not true. They also rose some points of law, that the
respondent is long dead; he passed away on the 10th November, 2007 the fact which is
known by the applicant; so the application is not tenable in law.
The respondent did not appear when the case was fixed for hearing. In support of his
application, the applicant urged through his representative, Mr. Mrugaruga that when the
case was at the CMA, the applicant was being assisted by the Legal Aid and Human
Rights Committee. That after the award was procured; he had to approach the Legal Aid
and Human Rights Committee; so they could again assist him to file an application for
revision before the High Court. He stated that the Committee promised to assist him but
they did not honour their promise. They did not assist him that is when he approached
Mr. Mrugaruga.
I have considered the record as well as the submission made orally; and I have the
following observations:
i. The applicant has wrongly filed two application, in one i.e application for seeking
to file the Revision out of time and application for Revision. The Notice of
Application was headed as Revision Application although it was admitted as a
Miscellaneous Application. In the Notice of his application and in his affidavit he
advances grounds for moving this Court to grant an extension of time and; also
requesting this Court to revise the CMA award.
It is my view that this is an omnibus application where more than one applications are
put together. The proper procedure was for the applicant to file an application for
enlargement of time to file an application for Revision. The Court, after hearing both
sides would have considered whether the applicant had advanced good reasons to move
the Court to exercise is discretion to extend time or condone an application which is
brought out of time. If the Court finds that there are good reasons to do so; and allows
the application; that is when the applicant lodges an application for Revision.
This application was wrongly brought by the applicant; and the Court was improperly
moved. The applicant moved the Court under Section 91(1) of the Employment and
Labour Relations Act, Act No.6 of 2004, Rules 24(1)(2)(3) 28 (1) and 56(1) of the Labour
Court Rules, GN.106 of 2007. These provisions provides for revisions and enlargement of
ime
As stated above, it was wrong for the two applications to be brought together. The Court
has to condone late filing of an application, and then the relevant party has to bring the
application for revision.
However, during oral submissions, the applicant submitted in support of the application
for extension of time. He gave reasons why they had failed to lodge an application for
revision in time. According to what he stated; he was seeking a legal representation and
he was promised that they would assist. It is my view that this is a good ground; the
applicant has a right to be represented. I therefore allow him to file an application for
revision out of time within 15 days. It is so ordered.
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Application allowed.
1ST CENTURY FOOD & PACKAGING LTD V. EMANUEL MZAKA KIMWELI

Date of Ruling: 9 June 2010
(Original / DSMI CMA/KIN - 876)

Digest
Labour Court lacks jurisdiction when a matter is time barred - Labour Court handles
a time barred application for extension of time only on good cause for delay by
extending the time (Rule 56 (1) & (3) of the Labour Court Rules, GA 106/2007) -
award issued after expiry of 30 days is said to have been procured with a material
irregularity (Section 88(9) amenable to review (Section 91 (2) (b) of the ELRA).
Brief Facts
When the applicant filed an application for revision of the CMA award, the respondent
raised a preliminary objection on the ground, among others, that the application was
time-barred.
Held:
1. That it is trite rule of law that the Labour Court lacks jurisdiction when a matter is
time barred. The Labour Court, however, can handle a time barred application for
extension of time, if it is satisfied that there was good cause for delay by extending
the time under the Rule 56 (1) & (3) of the Labour Court Rules, GA 106/2007.
2. That the grounds for delay have to be formally brought in an application for
extension of time made under rule 24 of the Labour Court Rules, where the other
party is given a fair chance to respond thereto.
3. That the unambiguous interpretation of section 88(9) of the ELRA is that, an award
issued after expiry of 30 days, would be said to have been procured with a material
irregularity as to said to have been "improperly procured” and reviewable under
section 91 (2) (b) of the Act because it would appear that after 30 days, the arbitrator
becomes funtus officio. Obiter this 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.
4. The application of Section 88(9) of the ELRA 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 delay. I am however reluctant to
83
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.
CMA proceedings quashed, matter ordered for re-arbitration.
No Case Referred to
RULING
RWEYEMAMU, J.: This ruling is in respect of a Preliminary Objection (PO) raised by the
respondent/employee in an application filed on 20/8/2009 by the applicant/employer, for
revision of the Commission for Mediation and Arbitration (CMA) award dated 16/5/2008.
The PO raised by the respondent was among others, that this application is time barred.
Hearing of the PO proceeded by way of written submission and the respondent
substantiated partly as follows:
The application by the applicant herein was lodged in this court on 20th August 2008
after a lapse of 94 days from the date the copy of the arbitration award was served upon
the applicant on 16th May 2008, beyond the allowable six weeks cited above as
substantiated by the Respondent's affidavit evidence which stands incontrovertible under
paragraphs 4.0, 5.0, 6.0, and 7.0(i) – (iv) of the Respondents affidavit […].
In response, the applicant submitted that they were not served with the award in time.
To quote the exact words:
It is our humble submission that the time from 15th August, 2008 to 20th August, 2008
when the applicant became aware of the existence of the award and filed this application,
respectively, is within the alleged six weeks as per section 91(1)(b) of the Employment and
Labour Relations Act No. 6 of 2004. We submit, therefore, that the application was filed
on time and as such no leave was required under Rule 56 of the Labour Court Rules,
CN.106 of 2007. This ground of objection must fail for lack of merits.
It is trite rule of law that the court lacks jurisdiction when a matter is time barred. The
court however, can handle a time barred application for extension of time; it is satisfied
dispute that there was good cause for delay has extended the time. In this court, that
power is provided under the Rule 56 (1) & (3) of the Labour Court Rules, GA 106/2007.
My understanding of the law is that the explanation by the applicant in submission to
the PO is the kind to be given as good cause, in an application under the rule cited. The
grounds for delay have to be formally brought in an application under rule 24 of the LC
Rules, where the other party is given a fair chance to respond. In view of my
explanation above, I sustain the PO and would have for that reason struck off the
application and confirmed the award except for what I proceed to explain.
After going through tie CMA proceedings, I noted that arbitration proceedings were
concluded onl8/2/2008 but the award delivered on 16/5/2008. Incidentally, the
respondent/objector in the submission bolded above curiously omitted to mention the
84
said dates. May be that was because of awareness that the award was delivered contrary
to Section 88 (9) of the Employment and Labour Relations Act, 6/2004, which is couched
in mandatory terms as follows:
88.- (9) Within thirty days of the conclusion of the arbitration Proceedings, the arbitrator
shall issue an award with reasons signed by the arbitrator.
In my opinion, 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 as
to 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.
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 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 app led as it is.
In the result, I find that the award subject matter of the revision application reviewable
for reason of being improperly procured. Using powers of this court under rule 28 of the
LC Rules, I quash the CMA proceedings and subsequent award and order that arbitration
be done afresh and the award issued according to law.
CMA proceedings quashed, matter ordered for re-arbitration.
BARRICK NORTH MARA MINE V.BAHATI NDIMANYA
High Court of Tanzania (Labour Division) at Mwanza (Kalombola, J.)

Digest
Where mediation fails, mediator has a duty to issue certificate to that effect – the
CMA has duty to appoint an arbitrator to preside over the arbitration proceedings
before the CMA upon failure of mediation – mediator cannot preside over as an
85
arbitrator in arbitration proceedings for which he acted as mediator during
mediation; unless, the mediator has successfully asked for consent of the parties
as to proceed with arbitration - limitation of time is a fundamental issue involving
the Court's jurisdiction - applicant who is late to act to apply for extension time
upon showing good cause for delay (Rule 56 (1) of the Labour Courts Rules (GN. No.
106 of 2007)).
Brief Facts
The applicant sought in the Labour Court for revision against decision of CMA, which
was contested by the respondent as to have been filed out of time.
Held:
1. That after mediation fails, the Mediator has a duty to issue certificate to that
effect. Thereafter, Commission should appoint an arbitrator to preside over the
arbitration proceedings before the CMA.
2. That a mediator cannot preside over as an arbitrator in arbitration proceedings for

which he acted as mediator during mediation; unless, the mediator has
successfully asked for consent of the parties as to proceed with arbitration.
3. The question of limitation of time is a fundamental issue involving the Court's

jurisdiction.
4. Rule 56 (1) of the Labour Courts Rules (GN. No. 106 of 2007), allows an applicant
who is late to act to be heard after he satisfies the Court in an application that
there was good cause for delay.
Application is struck out.

Cases Referred to
Bulyanhulu Gold Mines Ltd. v James Bichuka High Court of Tanzania (Land Division) at Mwanza,
Buzwagi Project v Anthony Lameck High Court of Tanzania (Labour Division) at Mwanza,
General Manager, Mufindi Paper Mills Ltd. v Masoya Magoti and Cosmas Fimbo Msigwa
(Arbitrator) High Court of Tanzania (Labour Division) at Dar es Salaam, Revision No. 7 of
2007 (unreported).
86
Tanzania Fish Processors Ltd. v Christopher Luhangula Court of Appeal of Tanzania at Mwanza,
Civil Appeal No. 161 of 1994 (unreported).
Mr. Tarimo (Advocate), for the Applicant.
Respondent appearing in person.
RULING
KALOMBOLA, J.: Mr. Tarimo advocate represents the applicant in this application. On
the other hand, respondent Bahati Ndimanya stands on his own. Mr. Tarimo submits
before the Court that, they ask for revision against decision of CMA at Musoma delivered
on 24/6/2008. That their application is supported by an affidavit of Emmanuel Msengezi.
He on the first place addresses Court on respondents Counter Affidavit who alleges
application has been filed out of time.
It is deponed in affidavit of Msengezi, an arbitrator having heard the dispute, got

transfered, informed parties ruling would be on notice. Ruling was delivered on
24/6/2008 in absence of parties. Applicant, upon Msengezi's affidavit, was served with the
ruling on 9/9/2008, and Respondent did not dispute in Counter affidavit. Applicant filed
application on 7/10/2008. That Section 91 (1) (a) of Employment and Labour Relations Act
provides, application should be made within six weeks after service of decision. He
submits; the application was filed within time i.e. 7/10/2008, taken that award was served
to them on 9/9/2008.
As regards to application for revision; paragraph 5 of affidavit states arbitrator failed to
follow procedure. The law says Mediators and Arbitrators have different functions. The
dispute was taken for mediation. Having mediation failed, Mediator has to issue
certificate. Thereafter, Commission should appoint an arbitrator. But in the present
situation one who conducted mediation is the same who conducted arbitration. Mediator
did not ask for consent of parties as Mediator has no automatic right to proceed with
arbitration. Mr. Tarimo advocate in support of the above, cited:
 Project Manager, Barrick Gold Mine (Bulyanhulu) v Adriano Odhiambo High Court
of Tanzania (Labour Division) at Mwanza, Labour Revision No. 290 of 2008
(unreported).
 General Manager, Mufindi Paper Mills Ltd. v Masoya Magoti and Cosmas Fimbo
Msigwa (Arbitrator) High Court of Tanzania (Labour Division) at Dar es Salaam,
 Bulyanhulu Gold Mines Ltd. v James Bichuka High Court of Tanzania (Land Division) at
Mwanza, Labour Revision No. 313 of 2008 (unreported), whereby Rweyemamu J. quashed
decision given by arbitrator who failed to follow procedure.
87
It is deponed in paragraph 5 (b) of affidavit that arbitrator did not draw issues. Failure to
draw issues meant there was nothing to be decided (Page 7 of CMA decision). That the
arbitrator acted contrary to Rule 24 (4) of GN 67/2007 of Labour Institutions
(Mediation and Arbitration Guidelines) Rules 2007. Counsel abandoned paragraph 5 (c)
(i) of affidavit.
That paragraph 5 (c) (2) of affidavit, is in respect that, there is evidence in record, before
termination respondent in 2007 was served with written warning. Even the respondent
does not dispute (page 3 of decision). Respondent repeated same mistake on 20/9/2007
which resulted to his dismissal.
It is their submission; arbitrator in his decision, misdirected himself by failure to give

weight to a fact that respondent was warned and within a short time repeated same
mistake. The Employment and Labour Relations (Code of Good Practice) Rules 2007, GN
No. 42/2007, Rule 12 (4) (a) and (b), guides employer on which steps to take against
employee. Accordingly in this case, proper remedy was dismissal CMA erred in finding
applicant at fault in dismissing respondent.
It is deponed in paragraph 5 (c) (3), CMA erred in ordering reinstatement of respondent.

Dismissal was proper remedy as per rule 32 (2) of GN NO. 42 because respondent had
previous mistake. Even arbitrator at paragraph 7 of decision noted, respondent was not
of good behaviour, he was stubborn. Respondent was dismissed since October 2007.
CMA delivered decision in June 2008. Long time has elapsed. Relationship between the
two is hostile even respondent in his evidence agreed. Hence an award for reinstatement
is not proper.
In reply, the respondent challenges paragraph 5 of applicant’s affidavit which failed to

disclose what arbitrator has to comply with. That GN 67/2007, Rule G (1) and (2) and Rule
20 (2) provide for procedure in that arbitration may be conducted without
Mediation process. They were asked and consent to proceed with arbitration. It is not
true that Mediator turned himself to an arbitrator. In support, he cited Buzwagi Project v
Anthony Lameck High Court of Tanzania (Labour Division) at Mwanza, Revision No. 297 of
2008 (unreported), at page 6, last paragraph, it is explained, when mediation is conducted
and parties decide to go for arbitration.
Respondent further challenges paragraph 5 (b) of affidavit, says, issues were framed as
noted at page 6, 1st paragraph of the decision. Pages 2 and 3 is evidence of parties refer to
framed issues. It is unfair for a previous mistake to be used to prove another mistake as
state in paragraph 5 (c) (ii) of affidavit. Respondent asks Court to uphold arbitrator's
decision.
In rejoinder, Mr. Tarimo on paragraph 5 (a) of affidavit submits, they could not cite cases
in affidavit because Law Prohibits. He agrees with respondent that under Rule 6 and 20 of
GN 67/2006, dispute could be referred to arbitration without first been dealt with
through Mediation. But there are conditions, Section 20 is Mandatory, Section 20 (2) is an
88
exception. He asks Court to find out from CMA proceedings if parties agreed to go
straight to arbitration. He did not mean written warning was to prove the present
mistake.
Issues to be determined here are:
 Whether application 1-as been filed out of time.
 Whether Mediator assumed powers of arbitrator without following procedure.
 Whether issues were not framed
 Whether the award is proper, based on evidence
I find it useful to start with an issue whether this application was filed out of time. It
is undisputed; arbitration award was delivered on 24/6/2008. Applicant says it was
delivered in the absence of both parties. The same was served to applicant on
9/9/2008. Applicant complains notice was not served to them although they were
told ruling would be on notice. Is there proof that applicant was served with ruling
on 9/9/2008? The affidavit of Emmanuel Msengezi and submission in Court are only
proof. It is my view, more proof was required e.g. endorsement from Commission
indicating date ruling was served to them either an affidavit of one who served them.
In absence of more proof, I am not convinced ruling was served upon applicant on
9/9/2008.
Ruling was delivered or, 24/6/2008, application for revision was filed on 7/10/2008.
It was filed three months and two weeks later. Section 91 (1) (a) of Employment and
Labour Relations Act No.6/2004 provides:
91.- (1) Any party to an arbitration award made under Section 88 (8) who alleges a defect
in any arbitration Proceedings under the auspices of the Commission may apply to the
Labour Court for a decision to set aside the arbitration award.-
(a) Within six weeks of the date that the award was served on the applicant […].
In the present situation, applicant alleges defect in arbitration proceedings, therefore

bound to abide with requirement of Section 91 (1) (a) of Employment and Labour
Relations Act No. 6/2004. Applicant was to file application for revision six weeks after
award. But he filed the same without condonation.
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The question of limitation of time is a fundamental issue involving the Court's
jurisdiction as held by the Court of Appeal in Tanzania Fish Processors Ltd. v Christopher
Luhangula Court of Appeal of Tanzania at Mwanza, Civil Appeal No. 161 of 1994
(unreported).
Labour Laws provides for fairly vigorous deadlines. The doors of justice to applicant
were not closed as the Law provides an avenue. Rule 56 (1) of the Labour Courts Rules,
GN 106/2007, allows an applicant who is late to act to be heard after he satisfies the
Court in an application that there was good cause for delay. The applicant opted not to
utilise this avenue.
I sustain the Preliminary objection that this application is time barred, can not be
entertained and for that reason struck off. Given that conclusion, I find it unnecessary to
consider what was submitted in respect of application for revision. The application is
struck off.
Application is struck out.
DIRECTOR GENERAL – PCCB V. FRANK IPYANA

Date of Ruling: 30 April 2010
(Original CMA/MTW/F1/65/08)
Digest
Negligence on a party's side is not a sufficient cause for failure to comply with the law.
Brief Facts
After the arbitrator in the CMA decided that the respondent's termination was
procedurally unfair and ordered the applicant to reinstate the respondent and pay his
salary from the date he was terminated, the applicant applied for revision of this award
to the Labour Court in terms of Section 91 (2) of the Employment and Labour Relations
Act (No. 6 of 2004). However, as the the application for revision was not made within
the prescribed period of six weeks, the applicant made an application for extension of
time to do that.
90
Held:
That it has long been an observed principle of law that negligence on a party's side is
not a sufficient cause for failure to comply with the law.
No Case Referred to
Mr. Makondoo (State Attorney), for the Applicant.
Respondent appearing in person.
RULING
RWEYEMAMU, J.: The respondent in this matter filed a suit of unfair termination in
the Commission for Mediation and Arbitration (CMA). In a reasoned award, the
arbitrator decided that the respondent's termination was procedurally unfair and
ordered the employer/applicant to reinstate the respondent and pay his salary from the
date he was terminated. That decision, handled down on 16/4/2009 dissatisfied the
applicant and in terms of section 91 (2) of the Employment and Labour Relations Act,
6/2004, they ought to have applied for its revision within a period of six weeks. They did
not hence this application for extension of time to do that.
On 21/7/2009 the present application was filed supported by affidavit sworn by one of its
officers Carson Tumsifu Nkya. The relevant grounds in support of the application wet e
articulated in the affidavit as follows:-
1) That on 20'h April, 2009 the said award reached the Director General of PCCB who
directed the Legal Department to prepare for the revision of the arbitration award
before the High Court Labour Division.
2) That the copy of the said award with instructions for filing for revision was
misallocated by office clerk,
3) That the copy of the arbitration award and instruction for application for revision
came into my knowledge on 10th July, 2009.
In reply to the respondent narrated in the counter affidavit:-
4) That the contents of paragraph 5 of the affidavit are denied the applicant is put to
strict proof thereof, the Respondent states further that the deponee of the affidavit
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was fully aware of the date of award, and knew or was legally supposed to know what
was contained in the award. The Respondents states further that the applicant has
filed this application after being served with the copy of summons for in execution
No. 238 of 2009. Copy of the said summons is annexed here to and marked "CAI" 'eave
of the court is prayed for the same to form part of this counter affidavit.
On 5/10/2009, the day scheduled for hearing, the applicant sought and was granted
leave to amend the application. In the affidavit sworn by the same officer and
subsequently filed on 15/10/2009 in support of the amended application, the same
grounds were repeated only that it was filed together with an affidavit of another officer
one Cosmas James Bwana who deponed; that he was the officer who handled the award
document; that the said document got lost/misplaced in the process of office shift for
purpose of construction.
To that amended affidavit, the respondent replied among others:-
5) That paragraph 3 of the affidavit is noted and I add that the said date for delivery of
the subject CMA arbitral award was set and scheduled in the very and presence of the
parties herein, the applicant inclusive. The applicant's deponent admits being aware of
the award's delivery note, to wit 16/04/09;
6) That paragraph 4 of the affidavit is noted for the subject arbitral award reaching the
applicant within four days of the date of its delivery. It is added that the applicant's key
competency function is proper receipt, control, custody and action of sensitive public
and investigation records, the subject award inclusive;
7) That further to paragraph 4 above, the same is hearsay and without deposing the
actual award having been received on such 20/04/09 with dated endorsements of any
action thereon;
8) That paragraph 5 of the affidavit is untrue, contradictory' and not consistent with the
deponent's own other statement on oath dated 21/07/09 therein deposing the award
as having been merely misallocated and not got lost and or misplaced as is now being
deposed this time around in the affidavit;
9) That paragraphs 6 of the affidavit is noted for lacking merits. It is added that the
applicant is going corporate/statutory body capable, if willing and ready, able to
timely prefer judicial remedies like the intended revision in the absence of the
deponent. It is added that the applicant unjustifiably took other FURTHER 11 days to
come to this court upon and after getting the purported lost/misplaced arbitral award;
10) That further to paragraph 6 herein above in the purported event of lost / misplaced
arbitral ward the same is always accessible and available in public record, the trial
CMA Mtwara registry for any party wishing to timely prefer any further judicial
remedies like revision (Emphasis mine).
The gist of the respondent's statement under oath is that the grounds adduced by the
applicant did not amount to good cause and therefore the applicant had failed to show
good cause for delay in filing the intended application for revision.
At the time of hearing of this application, the applicant was represented by MR.
Makondoo, State Attorney, who adopted and repeated the grounds contained in the
affidavit and added that the intended application has merit because the Attorney General
(AG) should have been but was not made a party in the case. In reply, the respondent
who appeared in person stated that it was up to the applicant to make the AG a party.
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The issue before me for decision whether the applicants have adduced sufficient grounds
for delay and not whether the intended application for revision has merit.
I have considered arguments by both sides and agree with the respondent that the
applicant has failed to show good cause for delay. The grounds adduced by the applicant
amount to an admission that the delay was caused by negligence on their part. It has long
been an observed principle of law that negligence on a party's side is not a sufficient
cause for failure to comply with the law.
And as rightly pointed out by the respondent, the applicant's office is among those
expected to show a higher degree of care in keeping records entrusted to it and laxity has
no place in its operations. In view of that, I find that the applicant has failed to show
sufficient good cause for delay and accordingly dismiss this application.
HEMED OMARY KIMWAGA V. SBC TANZANIA LTD.

(Original CMA/DSM/KIN-ILA/5578/08/286)
Digest
A point of preliminary objection raises pure points of law argued on the assumption
that facts pleaded by the other side are correct - point of preliminary objection
cannot be raised if any fact has to be ascertained or what is sought to be exercised is
judicial discretion- Labour Court’s powers of revision are wide enough to include
reevaluation of facts and evidence; to see whether the arbitrator took them in
account, or took into account wrong considerations in arriving at the decision (or
misinterpreted the law).
Brief Facts
The applicant referred a dispute of unfair termination to the CMA on grounds that the
termination was substantively unfair in that it was not for a valid where misconduct was
not proved; and procedurally unfair in that disciplinary proceedings were unfairly
conducted and persons in the committee were biased. Upon arbitration, an award was
issued in the applicant's favour partly on some claims and other claims were not granted.
Aggrieved, the applicant made an application for revision to the Labour Court, against
which the the respondent raised a preliminary objection (subject matter of this ruling) on
ground that the in terms of Section 91 (2) of the ELRA the award may only be set aside if
there was misconduct on part of arbitrator, or if the award was improperly procured. The
respondent contended that these requirements were not complied with because: the
affidavit did not allege any misconduct or grounds expounded under Rule 28 of the
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Labour Court Rules, which are jurisdictional issues, material error or material irregularity;
and the application was not in compliance with Rule 24 of the Labour Court Rules.
Held:
1. That a point of preliminary objection (PO) raises pure points of law which are
argued on the assumption that facts pleaded by the other side are correct; thus, a
PO cannot be raised if any fact has to be ascertained or what is sought to be
exercised is judicial discretion.
2. That powers of revision where no appeal lies are not meant to be construed
narrowly.
3. That the powers of the court in revision are wide enough to include reevaluation
of facts and evidence to see whether the arbitrator took them in account, or took
into account wrong considerations in arriving at the decision (or misinterpreted
the law).
Point of preliminary objection dismissed.
Cases Referred to:
Anismic Ltd. v Foreign Compensation Commission (1969) 2. No. LR 163.
Busegi Kulwa v Celtel Tanzania Ltd. High Court of Tanzania (Labour Division) at Dar es
Management of Hotel Africana v Jumuiya ya Wafanyakazi Tanzania (JUWATA) (1988)

TLR 105.
Applicant appearing in person.
Mr. Koyugi (Advocate), for the Respondent.
RULING
RWEYEMAMU, J: This ruling is in respect of Preliminary Objections (PO) raised by the
respondent/employer against the applicant/employee Hemed's application for revision of
the Commission for Mediation and Arbitration (CMA) award. To appreciate reasons for
sustaining or rejecting the PO, it is useful to commence with brief background
information.
Hemed's employment was terminated by the employee on 13/12/2007. Following an order
of this court dated 10/11/2008, he referred the matter as a dispute of unfair termination to
the CMA on grounds that the termination was:
 Substantively unfair in that it was not for a valid [and] misconduct was not proved.
 Procedurally unfair in that disciplinary proceedings were unfairly conducted and
persons in the committee were biased.
As and relief, he sought reinstatement with no loss of benefits. The dispute was
ultimately arbitrated and an award issued on the main in Hemed's favour on 26/5/2009.
The question of reliefs was decided as follows:
 The CMA allowed the following claims; reinstatement with no loss of
remuneration because termination was procedurally unfair in that disciplinary
proceedings against Hemed were unjustifiably conducted exparte; payment of
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remuneration arrears in terms of section 14 of the Employment and Labour
Relations Act, (the Act) shillings 539,983 per month and salary to be in terms of
the minimum wage order of 1/1/2008 shs 150,000/= but terminal benefits paid to
be deducted; the reinstatement to be unconditional.
 The dismissed claims were; prayer for rectification of certificate of service, and
hardship allowance; outstanding remuneration arrears; overtime because Hemed
was paid incentive in lieu of, as per clause 5 (d) (IV) of Collective Agreement
between TUICO & SBC; overtime as there was no agreement for payment of the
same in terms c section 19 (3) of Act 6/2004.
Aggrieved, Hemed filed a notice of application under Section 91 (1,2,3, & 4 (a) of the Act
read together with rule 24 (2) and 28 of the Labour Court Rules, GN 106/2007 supported
by affidavit and a Statement of Legal Issues under Rule 24(2) of the Rules.
In response, the employer filed a counter – affidavit and raised PO (subject matter of this
ruling) that the application should be struck off with costs on ground that the application
to set aside the arbitral award is defective in terms of the relevant Labour Laws.
On 12/5/2010, the PO was ordered to be argued by way of written submissions where
Hemed present appeared in person and the employer was represented by Mr. Koyugi
advocate.
Substantiating the employer submitted that application was defective in terms of section
91 (2) of Act because under it, the award may be set aside if (a) misconduct on part of
arbitrator, (b) or if the award was improperly procured. The requirements were not
complied with because:
 The affidavit does not allege any misconduct or grounds expounded under
rule 28 which are jurisdictional issues, material error or material
irregularity.
 The application is not in compliance with rule 24 of the LC rules; the
affidavit does not contain legal issues which may arise from material facts
and reliefs sought, as such the employer was prejudiced in preparing
counter- affidavit in that it had no 'knowledge’ of the Hemed's claim.
In response; Hemed submitted that;
 The objections and submissions made are on points of facts which in law do not
qualify as grounds for PO.
 Paragraph 3 & 7 of the affidavit clearly indicate that the award was improperly
procured in that the arbitrator ignored/disregarded and evidence on record
relating to applicant's hardships and allowances he it should have ordered paid.
 The affidavit complies with Rule 24 (3) (c) & (d) of the rules, and the Civil
Procedure Code.
In rejoinder the employer submitted that the CPC is not applicable in situations
specifically provided for under the LC Rules; that Hemed wrongly categorizes matters of
merit as material irregularity or misconduct; that the application is essentially an appeal
to open up matters of substance.
The issue for decision is whether the PO is sustainable or not. I have considered
arguments and decide as follows:
1. The application read together with the attached statement of legal issues are in
compliance with the law, in that if the arguments advanced by Hemed in
paragraphs 3 and 7 are believed on face value, they combine both matters of facts
95
and legal issues. They therefore comply with the law, that is, rule 24 (3) of the LC
rules.
2. I agree arguments raised by the employer do not amount to objections on points of
law. It is a long observed rule law and practice that; "a PO raises pure points of law
which is argued on the assumption that facts pleaded by the other side are correct.
It can not be raised if any fact has to be ascertained or what is sought to be
exercised is judicial discretion.” The raised PO requires going through the evidence
before the CMA in order to determine whether Hemed’s arguments in paras 3 and
7 are valid or not.
Regarding compliance with the law on application for revision, I find the PO to have no
merit because powers of revision where no appeal lies, are not meant to be construed
narrowly as I explained in a recent case of Busegi Kulwa v Celtel Tanzania Ltd. High Court
of Tanzania (Labour Division) at Dar es Salaam, Labour Revision No. 33 of 2009
(unreported), citing the Court of Appeal decision in Management of Hotel Africana v
Jumuiya ya Wafanyakazi Tanzania (JUWATA) (1988) TLR 105, which cited with approval
the "rule Anismic Ltd. v Foreign Compensation Commission (1969) 2. No. LR 163, where it
was held by Lord Reid that:
But mere are many case where, although the tribunal has the jurisdiction to enter on the
inquiry, it has done or failed to do something in the course of the inquiry which Is of such a
nature that its decision is a nullity. It may have given its decision in bad faith. It may have
made a decision which it had no power to make. It may have failed in the course of the
inquiry to comply with the requirement of natural justice, It may in perfect good faith
have misconstrued the provisions giving it power to act so that it failed to deal with and
decide some question which was not remitted to it .., it may have refused to take into
account something which it was required to take into account. Or it may have based its
decision or, some matter which, under the provisions setting it up, it had no right to take
into account. I do not intend to make this, list exhaustive" (part of the emphasis mine).
I concluded in the Busegi case that "Therefore the power of the court in revision are wide
enough to include reevaluation of facts and evidence to see whether the arbitrator took
them in account, or took into account wrong considerations in arriving at the decision"
(or misinterpreted the law). In view of the above, I find Hemed's application proper in
terms of the law and dismiss that aspect of the PO.
In the final result, I find the PO to have no merit; dismiss it and order the application
heard on merit.
Point of preliminary objection dismissed.
THE BOARD OF TRUSTEES OF NSSF V. ISAYA KISIRI

Digest
96
Court to grant application for re-enrolling a struck out matter for non-appearance only on
sufficient cause on the part of the applicant - negligence of appliocant or his/her advocate
not good cause for failure to appear – application to withdraw an application with leave to
re-file it to be made orally to the Court.
Brief Facts
In this an application the applicant sought for re-enrolment of a matter dismissed for
want of prosecution. Counsel for the applicant submitted that failure to appear on the
date set for hearing was due his sudden illness. He also filed an affidavit of his office clerk
to state that the latter failed to get an advocate to hold his brief; arguing that his failure
to appear was not due to negligence but was based on reasons beyond his control and
prayed for re-enrolment of the application. However, the advocate for the respondent
rejected this reasoning, pointing out that counsel's grounds for failure to appear in court
should be disregarded; and that the application for re-enrolment was made out of time.
According to counsel for the respondent, in the absence of any direct provision, the
general law on limitation governing this matter required an application such as this to be
filed within 60 days. Lastly, counsel for the respondent argued that the application was
superfluous since the applicant had already sought to withdraw the application for
revision which was struck out by the Court; and, as such, the present application was an
abuse of court process aimed at frustrating the employee. In reply, counsel for the
applicant submitted that he had timely filed an application for re-enrollment; but the
same was misplaced in the court registry. To cock up that story, he swore an affidavit to
that effect.
Held:
1. Only exhibition of sufficient cause on the part of the applicant can warrant the court to
grant an application for re-enrolling a matter that was struck out for non-appearance.
2. Negligence on part of the employer and their counsel; such negligence cannot
constitute good cause for failure to appear.
3. An application to withdraw an application with leave to re-file it can be made orally.

Mr. Sekaboyi (Advocate), for the Applicant.

97
Mr. Ngundungi (Advocate), for the Respondent
RULING
RWEYEMAMU, J.: This is an application for re-enrolment of a matter dismissed for want
of prosecution. To appreciate grounds for my decision herein under, I find it convenient
to preface it with the following background information.
1. The respondent/employee successfully filed a suit of unfair termination to the
Commission for Mediation and Arbitration (CMA). In its award dated
22/10/2008, the CMA found that his termination was unfair and awarded him
compensation of shillings 18 million b Sing the equivalent of 12 months' salary.
2. On 5/11/2008 the applicant/employer filed an application for revision of the award

together with an application for stay of execution of the decree. The employee
promptly objected to the application by filing a counter affidavit.
3. Shortly after - on 11/12/2008, the employer filed another application seeking leave
of the court to withdraw the 1st application with leave to re-file.
4. It would appear nothing happened in the matter until almost a year later, when or
19/8/2009 the employer's then advocate informed the court in writing that he was no
longer representing them. That letter was copied to the employer's legal department.
5. Ultimately, on 3/9/2009 the case was mentioned before a judge in chambers in

presence of counsels for both parties, and hearing of the sane scheduled for 5/11/2009,
the date the employer failed to appear and the case was struck off.
6. After more than two months, i.e. on 20/1/1010, the present application for its to
enrolment was filed. It is curious that the chamber summonses were stamped as
received in that date although the accompanying notice of the application indicates as
dated 18/12/2009 but presented for filing on 20/1/2010 as is also indicated on the
affidavit. Be that as it may, the employee's subsequent counter affidavit was filed on
2/2/2010.
At hearing of the application Mr. Sekaboyi counsel for the applicant submitted that
failure to appear on the date set for hearing was due his sudden illness. To support that,
he also filed an affidavit of his office clerk to state that the latter failed to get an advocate
to hold his brief. On that basis, he argued that failure to appear was not due to negligence
but reasons beyond his control and prayed for re enrolment of the application.
98
In response, Mr. Ngudungi advocate for the employee made three submissions. First, that
counsel's submission in court in the matter and his affidavit on the question of failure to
appear should be disregarded. Second that the application for re-enrolment was made out
of time. According to counsel, in absence of any direct provision, the general law on
limitation governs the matter and applications like the present should have been filed in
60 days. Third, that the application was superfluous since the employer had already
sought to withdraw the application for revision which was struck off, as such, the present
application is an abuse of court process aimed at frustrating the employee.
In reply, counsel for the employer submitted that he had timely filed an application for
e-enrollment but the same was misplaced in the court registry. To cock up that story, he
swore an affidavit to that effect. Further he explained that the struck off application was
for withdrawal of the application for revision with leave to re file.
After considering the facts on record and the parties' arguments my decision and reasons
thereof are as follows:
 An examination of the whole picture of the history of the employer's handing of

the application for revision is considered, a distinct impression emerges and the
conclusion cannot be avoided that the employer behaved in the dilatory manner to
the detriment of the employee. Why?
 It is not obvious why shortly after (on 11/11/2008) the initial application was filed
accompanied with an application for stay of execution, the employer filed another
application for leave to withdraw it with leave to re file but leaving the application
for stay intact. But worse, no efforts were made by the employer thereafter to
follow up the matter until 3/9/2009, almost a year later. That was a whole year of
making an employee wait with an empty decree.
 As if that was not enough the applicant failed to turn up on the date set up for its
hearing. Granted, the applicant's counsel might have been sick as deposed in his
affidavit but I take judicial notice of the fact that the employer firm has a legal
department; a careful counsel would not have failed to get another advocate or an
officer from that legal department to properly enter appearance in court. What
happened reflects negligence on part of the employer and their counsel; such
negligence cannot constitute good cause for failure to appear.
99
 As regards failure to file the application for leave to re-enroll in time (which I find
to be the position), the explanation given by counsel is curious: Even assuming the
application was timely filed but misplaced in the registry, counsel should have had
his copy but he showed none to the court. Further the different dates on the court
stamp seal and the date of filing have no rational explanation.
 Further, an application to withdraw with leave to re-file can be made orally. It is

not clear to me why a represented employer serious to prosecute the case would
take almost 2 years to effect such an application. It is on record that the applicant
counsel was aware of the intention to withdraw the original revision application
since 3/9/2009.
In view of all the above, I find that this application must fail as granting the same would
amount to permitting the employer to abuse court process. I dismiss the application and
order the case filed forwarded to the Registrar for the usual execution process to proceed.
LATIFA MOHAMED V. DAR ES SALAAM WATER AND SEWERAGE CORPORATION

(DAWASCO) & DAR ES SALAAM WATER AND SEWERAGE AUTHORITY (DAWASA)
(Original CMA/DSM/KIN-ILA/582)
Digest
Serious misconduct is one that "makes a continued employment relationship
intolerable” (Rule 12(2) of the Employment and Labour Relations (Code of Good
Practice) Rules (2007)) - joinder of a party in proceedings before the Labour Court (Rule
44 (3) of the Labour Court Rules) Labour Court can suo motu joinder of parties – Powers
of the Labo
ur Court in revision (Section 91 (2) (a) and (b) of the Act, read together with rule 28 of
the Labour Court Rules), do not involve faulting the CMA on matters not before it in
parties' pleadings.
Brief Facts
In the CMA, the applicant successfully referred a dispute of unfair against her former
employer (the 1st respondent). In its award, the CMA decided that the applicant’s
termination was not for a valid reason because the misconduct given as reason for
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termination was not proved. It therefore ordered the 1st respondent to pay her
compensation of 12 months’ salaries. However, the CMA refused to grant some of the
applicant’s claims; inter alia, holding that the misconduct with which the applicant was
charged was of a kind that "makes a continued employment relationship intolerable”; and,
as such, the CMA did not order for her reinstatement. Aggrieved by this decision, the applicant
sought revision in the Labour Court but against two respondents, the 2nd not a party in
the proceedings sought to be revised, inter alia, seeking an order to the effect that se be
recognized in continuous employment with the 2nd respondent day and that she be paid
her dues in accordance with the law.
Held:
1. Under Rule 12(2) of the Employment and Labour Relations (Code of Good
Practice) Rules (GN 42/2007), a serious misconduct is of a kind that "makes a
continued employment relationship intolerable”.
2. That joinder of a party in proceedings before the Labour Court is prescribed under
Rule 44 (3) of the Labour Court Rules (GN 106/2007), and the same can be made
by the court on its own motion or on application and notice to every other party.
Such joinder is made when the court finds that "the right of relief depends on the
determination of substantially the same question of law or fact. The application of
this rule requires that where the joinder is moved by a party in a case, such
application has to be made and granted before that other third party is joined in.
3. That the powers of the Labour Court in revision are prescribed under section 91 (2)
(a) and (b) of the Act, read together with rule 28 of the Labour Court Rules, which
do not involve faulting the CMA on matters not before it in parties' pleadings.
Mr. Murugaruga (personal representative of the Applicant).
Mr. Simon Josephat (Advocate), for the Respondent.
RULING
RWEYEMAMU, J.: The applicant/employee successfully referred a suit of unfair

termination to the Commission for Mediation and Arbitration (CMA) against her
employer the 1st respondent/DAWASCO. In its award dated 12/05/2008, the CMA
decided that Latifas’s termination was not for a valid reason because the misconduct
given as reason for termination was not proved. It therefore ordered DAWASCO to pay
101
her compensation of 12 months’ salaries totaling Tshs. 4,020,000/= as per Section 40(1)(c)
of the Employment and Labour Relations Act (the Act) (No. 6 of 2004).
However, the CMA refused to grant some of the applicant’s claims. The first was its
conclusion that Latifa was not entitled to any other payments because here other due
benefits have already been paid. The second, and may be of more significance, was its
decision in respect of the fairness/validity of a termination decision where an employee's
misconduct is undisputed. It held that the undisputed misconduct in the dispute was a
minor offence, not a serious misconduct justifying termination in terms of rule 12(2) of
the Employment and Labour Relations (Code of Good Practice) Rules, GN 42/2007. The
undisputed misconduct in reference was the act of Latifa engaging casual employees to
dig water trenches for customers without permission of superiors. Under the said rule, a
serious misconduct is of a kind that "makes a continued employment relationship
intolerable”. This issue is significant in that it involves the question of the ambit of the
employer's prerogative in determining what actions "makes a continued employment
relationship intolerable" and determining the appropriate sanction.
That done, I return to the issue subject of my decision. Latifa was aggrieved by the CMA
award and filed a notice of application but against two respondents, the 2nd not a party
in the proceedings sought to be revised, seeking orders that:
(a) That this Honourable Court be pleased to call for the record of the Arbitration
proceedings and Award of the Commission for Mediation and Arbitration (Hon Y.
Massawe, arbitrator) in Complaint No. CMA/DSM/KIN-ILA/582/2007 and revise
them.
(b) That the Applicant be recognized in continuous employment with the Second
Respondent (DAWASA) from 13'h August 1991 to the present day and that she be paid
her dues in accordance with the law.
(c) That this Honourable Court be pleased to make any other order as may be considered
just.
In ground 7 of her affidavit in support of the application she deposed that:
7. Looking at the termination letter and the Arbitration Award, it has come to my notice
of the following:-
a) There was no consultation between DAWASCO and DAWASA (Respondents)
prior to the term/nation of my employment.
b) I was paid notice of Tshs.335,000/= instead of being paid Tshs. 360,769.25 (i.e.
335,000 x 6 x 28 days).
c) I was paid leave of Tshs. 129,680/= Instead of Tshs. 154,615/40 (i.e. 33,000 x 6
x 12 days)
d) Severance pay of Tshs. 901,922/= was not provided (i.e. Tshs.335,000 x 6x 7 days x
10 years = Shs.901,922/=.
e) Not provided with 3 tone transport of personal effects, fare of myself
i. husband and two children from Dar es Salaam to the total sum
ii. place of birth i.e Likuchila, Ruvuma amounting to a total sum of
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iii. Tshs.1,365,000/= in accordance with the provisions of Regulation 3.3.5 (i)
(ii) of DAWASCO Staff Regulations, July 2005. The Proforma Invoice and page 7
of the said Regulations are Annextures E to F to this Affidavit.
iv. 6-7….
8. That the decision and award of the Arbitrator to the extent that I am not entitled to
any further terminal benefit is contrary to law.
In response to that, the 1st respondent replied in ground 6 of the Counter – Affidavit that:
6. That the contents of paragraph 7 of the Affidavit are hereby responded to in seriatim:
(i) That the two organs (1st Respondent and 2nd Respondent) are autonomous to
require consultation from each other on decision making.
(ii) That the salary of the applicant was Tsh. 335,000/= and the same had not
changed and further the Applicant has not shown where she has came up with
the different figure.
(iii) Likewise the computation of the leave entitlement is subject to the months she
worked before the termination.
(iv) That there no severance pay upon termination on grounds of misconduct.
(v) That the Applicant was paid her dues as per the award from the Commission for
Mediation and Arbitration.
At the hearing, Latifa was represented by Mr. Murugaruga - a personal representative,

while DAWASCO was represented by Mr. Simon Josephat – advocate.
I have gone through the parties arguments and decide two points of law which I find
determinative of the matter as follows:
 Latifa seeks to include the 2nd respondent in the suit, although not a party before the
CMA on ground that she should be adjudged by this court to have been in continuous
employment of the 2nd respondent/DAWASA and DAWASCO should have consulted
it before terminating her. DAWASCO's response is that "the two organs are
autonomous to require consultation from each other on decision making." In my
opinion, both sides' arguments miss the key question.
The key question is not whether or not Latifa has a right to claim against the 2nd
respondent but whether the latter has been properly joined in this matter up for
revision. Joinder of a party in proceedings is prescribed under rule 44 (3) of the Labour
Court Rules, (the rules) GN 106/2007, and the same can be made by the court on its own
motion or on application and notice to every other party. Such joinder is made when the
court finds that "the right of relief depends on the determination of substantially the same
question of law or fact': The way I interpret the rule, is teat where the joinder is moved by
a party in a case, such application has to be made and granted before that other third
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party is joined in. That was not done here.
The application before the court is for revision of award issued in a dispute referred by
Latifa against DAWASCO only. The issue before the CMA was as per Latifa's claim in the
Statutory Referral Form No. 1 which was whether the employer's decision to terminate her
was proper or she was unfairly terminated; and subsequent remedies. I agree with counsel
for the respondent's submission that it is unprocedural and novel to join a third party at
this stage who was not a party at first instance. The applicant seeks revision of the CMA
award based on ground3 not canvassed before it. That can not be proper because:
The powers of this court in revision are prescribed under section 91 (2) (a) and (b) ofthe
Act, read together with rule 28 of the rules, and these do not involve faulting the CMA on
matters not before it in parties' pleadings, like recognition of Latifa continuous
employment by DAWASA. Nothing has been submitted to show that any of the covered
grounds for revision anticipated by law exist.
Based on the reasons above, I find that this application is not properly before this court
and strike it off.
MAC CONTRACTORS LTD. V. NICODEMUS KILWAX

Date of Ruling: 6 May 2010
(Original CMA/05M/KIN-IL -2007)

Digest
Need for respondent's sworn statement that he or she served the applicant to be tested at
the hearing – Need for the CMA to frame and decide on whether or not the parties had an
employer and employee relationship before proceeding to arbitration.
Brief Facts
The respondent’s dispute of unfair termination and claims for employment benefits to the
CMA were successfully arbitrated ex-parte under provisions of Section 87(3) of the
Employment and Labour Relations Act (No. 6 of 2004) leading. The applicant’s
application to have that ex-parte award set aside was subs3quently dismissed by the CMA.
Following an order by the Deputy Registrar of the Labour Court, the applicant filed an
104
amended application for revision of the latter decision of the CMA. The Labour Court had
to determine three issues: first, whether or not the CMA decision to proceed ex-parte was
proper; second, whether its decision rejecting the applicant's application to set aside the
ex-parte award was substantively and procedurally correct; and, last, whether, on the
evidence on record, the CMA award was justified.
Held:
1. That in order to ensure that the arbitrator's conclusion that the applicant/employer
was served, it is important the respondent's sworn statement that he served the
applicant to be tested at the hearing.
2. That in the event the parties choose to have the dispute arbitrated, the question
whether or not the parties had an employer and employee relationship must be
specifically framed and decided.
CMA proceedings quashed, arbitration to be reconvened.
Mr. Buberwa (Advocate) for the Applicant.

Respondent appeared in person.
RULING
RWEYEMAMU, J.: On 28/6/2007 the respondent/employee referred a dispute of unfair

termination and claims for employment benefits to the Commission for Mediation and
Arbitration (CMA). The case proceeded ex-parte under provisions of Section 87(3) of the
Employment and Labour Relations Act (No. 6 of 2004) leading to an award dated
11/10/2007. The application to have that ex-parte award set aside was dismissed by the
CMA in its decision dated 7/2/2008. Following an order by the Deputy Registrar made on
17/2/2009, the applicants filed an amended application for revision of the latter decision
of the CMA.
At the hearing, the applicants were advocated for by Mr. Buberwa while the respondent
appeared in person. In its submission at the hearing, the applicants' arguments focused
both on the merit of the CMA ex-parte award and its subsequent decision refusing to set
it aside.
The issues for decision are basically three: first, whether or not the CMA decision to
proceed ex-parte was proper; second, whether its decision rejecting the applicant's
application to set aside the ex-parte award was substantively and procedurally correct;
and, last, whether, on the evidence on record, the CMA award was justified.
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At the hearing the applicant submitted that the CMA 2nd decision was in err because
there was no proof of service. The CMA record indicates that the application to set aside
the exparte award was made on 26/10/2007 when the matter was ordered to proceed by
way of written submission. It is not disputed that only the applicant filed a submission to
that application. That was somehow strange.
In the 2nd decision, the arbitrator gave his reason for refusing to set aside the ex-parte
award as being that the respondent had filed a sworn statement that the applicant was
served. That statement however was part of the pleadings - an annexure to the counter
affidavit to the application.
That however was not the only irregular matter. The applicant submitted at the hearing
that the application to set aside the ex-parte award proceeded ex-parte. The CMA record
submitted following a request made by the Registrar's letter indicates that the CMA
record of proceedings has two entries: The first entry made on 28/6/2007, indicate that
the employer had not turned up and the matter "Mwajiri hajaja shauri linafanywa
ex-parte. Form No. 5 inatolewa” (that form is a certificate of non settlement).The second
entry was on 28/1/2008 endorsed “Kusikilizwa maombi- pande walete majumuisho kwa
maandishi. Uamuzi tarehe 7/2/2008”. The following irregularities are obvious from the
CMA records.
First there is nothing on record to show the basis of the arbitrator's conclusion that the
applicant/employer was served - it is vital that the reason for a decision to proceed
ex-parte must be made part of the record. Second, the since application to set aside the
ex-parte award was not heard in the true sense of the word, all there was on record was
only the applicant's submission that he was never served.
It was important the respondent's sworn statement that he served the applicant to be
tested at the hearing. That did not happen as such, that 2nd decision was in err. Three,
there is no record of proceedings to show that the respondent thereafter proved his case.
To that extent, the award was not based on record.
In view of all those discrepancy, I find that both the ex-parte award and second decision
were not properly reached and I quash them. The dispute is referred back to the CMA to
be processed afresh commencing with mediation.
It is also directed that in the event the parties choose to have the dispute arbitrated, the
question whether or not the parties had an employer and employee relationship must be
specifically framed and decided. Further to avoid further delays which may be caused by
106
the process of service, the CMA is directed to fix a mention of the case within a week
from receipt of this ruling/order, and the parties today present are directed to go to the
CMA and receive information on the date so fixed without necessity of further service.
Thereafter, appropriate dates will be scheduled and the process continued according to
law. It is so ordered. CMA
proceedings quashed, arbitration to be reconvened.
MARCH L. LUMANIJA & ANOTHER V. TANGANYIKA BUS SERVICE CO. LTD.


Original/CMA/MZ/97/2008)
Digest
Parties in a work relationship to adhere to the Code of Good Practice (issued by the
Minister under Section 99 of the Act); departure from it has to be justified – unilateral
change in terms and conditions in employment contract without prior consultation,
amount to an unfair labour practice (constructive termination of the applicants'
employment – Rule 7 of the Code of Good Practice) – such change found to be unfair for the
employer failed to prove that the said termination was fair in terms of Section 37 of the
ELRA - Arbitrator's award revisable where there was an "error material to the merits of the
subject matter involving injustice" – under Rule 28 (1) (d) of the Labour Court Rules) –
Labour Court’s powers of revision can be used even if the applicant has not articulated the
said grounds (Labour Court has power to revise an award suo motu).
Brief Facts
The applicants’ referral to the CMA for unfair termination was rejected on grounds that
they refused to sign the new contract with new terms, which refusal was found to have
not followed a proper procedure to complain, instead, they absconded from work which
was a misconduct justifying termination of their employment by the employer. The CMA
also found notice and severance were not payable because the applicants contravened
Sections 41 (1) and (6) and 42 (3) (a) of the Employment and Labour Relations Act (Act
No. 6 of 2004)(the Act). It also found leave accrual not to be payable because conditions
107
prescribed under Section 31 (3) and (9) of the Act were not complied with. Consequently,
the applicants, who were unrepresented, sought revision of the said award in the Labour
Court on ground, inter alia, that the CMA decision was in err because the basis of the
dispute was that the respondent had unilaterally changed the terms and conditions of the
contracts of employment. Therefore, the decision that they were not entitled to any
termination of employment benefits was wrong.
Held:
1. That the Code of Good Practice, issued by the Minister under section 99 of the
Act, has to be taken into account in applying the Act by the parties in a work
relationship and departure from it has to be justified.
2. That change of the applicants' employment from monthly to daily pay amounted
to a fundamental change to terms and conditions of employment. To effect such a
change unilaterally, i.e. without prior consultation, amounted to an unfair labour
practice, which amounted to constructive termination of the applicants'
employment in the context of rule 7 of the Code of Good Practice, and the same
was unfair because the employer failed to prove that the said termination was fair
in terms of section 37 of the Act.
3. That an arbitrator's award can be revised under Rule 28 (1) (d) of the Labour Court
Rules where the court finds that there was an "error material to the merits of the
subject matter involving injustice".
4. That the ambit of the said powers of revision is wide enough to cover a situation
where an arbitrator is found to have made an unjustifiable conclusion on the
evidence, or misapplied/failed to apply the law relevant the available evidence, or
failed to rely on relevant evidence.
5. Thet the powers of revision can be used even if the applicant has not articulated
the said grounds; that is because the court has power to revise an award on its own
motion, provided that the court's powers are used to revise an "error material to
the merit of the subject matter involving injustice."
CMA proceedings and award quashed.
Applicants appeared in person.

108
Mutalemwa (Advocate), assisted by Mr. Baruta and Ms. Evelyn (Legal Officers), for the
Respondent.
RULING
RWEYEMAMU, J.: This is an application for revision of the Commission for Mediation
and Arbitration (CMA) award dated 4/9/2008. The award followed a referral of the
dispute to the CMA by the applicants, seeking terminal benefits against their
employer/respondent. The arbitrator issued an award to the effect that:
1. Kwa ushaidi uliotolewa na mwajiri, ni wazi walalamikaji walikataa kusaini mkataba

na hawakufuata utaratibu maalum katika kuweza kulalamikia mshahara na
mkataba mpya, tendo la wao kutokuonekana kazini zaidi ya siku 5 ni sawa na utoro
wa nidhamu na mlalamikaji ataweza kufukuzwa [...]. " [Translated thus: “The
finding was that the applicants refused to sign the new contract with new terms
and did not follow a proper procedure to complain, instead, they absconded from
work which was a misconduct justifying termination of their employment by the
employer.”]
2. Notice and severance were not payable because the applicants contravened
sections 41 (1) & (6) and 42 (3) (a) of the Employment and Labour Relations Act
(Act No. 6 of 2004) (the Act).
3. Leave accrual was no payable because conditions prescribed under Section 31 (3)
and (9) of the Act were not complied with.
The applicants who were unrepresented sought revision of the said award on grounds
contained in their affidavit and adopted at the hearing. The gist of their complaints was
that the CMA decision was in err because the basis of the dispute was that the respondent
had unilaterally changed the contract of employment, therefore the decision that they
were not entitled to any termination of employment benefits was wrong. The facts
adduced at the arbitration was that the respondent:
 Forced them to sign a new contract on new terms to wit; being paid daily
instead of monthly rates without consultation. They refused to sign the
contract with the new terms which they found oppressive. The respondent
informed them that they should accept the new terms or leave.
 It was due to that reason they decided to discontinue employment and be
paid their benefits.
In response it was deposed in the counter affidavit and elaborated on at the hearing by
109
Mr. Mutalemwa advocate for the respondent that:
 The applicants had not adduced grounds for revision as per requirements of
rule 28 of the Labour Court Rules (GN No. 106/2007) (the Rules).
 There was proof that the applicants unjustifiably absconded from work and
failed to turn up to give explanation of their absence, as such in terms of
Rule 13, of the Employment and Labour Relations (Code of Good Practice)
Rules (GN No. 42/2007) (the Code), there were exceptional circumstances
exempting the employer from following fair procedure before termination.
In the circumstances, termination was fair.
 The arbitrator made a proper finding that leave accrual was not payable in
terms of Section 31 of the Act.
I hasten to point out at this stage that the Code, issued by the Minister under Section 99
of the Act, has to be taken into account in applying the Act by the parties in a work
relationship and departure from it has to be justified.
In reply to the respondents' submission, the applicants submitted that after receiving a
letter communicating changes were unilateral/without consultation which was unfair and
improper.
The issue I have to decide s whether there are grounds in this application for this court to
exercise its revision powers under rule 28 of the rules.
I have considered the parties' arguments and the CMA record of proceedings including
the award and find the following facts undisputed: One, the two applicants were long
time employees (bus drivers) of the respondent- the 1st March Lumalija was employed
from 1/10/2001 and Joseph Kubona from1/1/2003 working under terms which the
respondent sought to change. Two, each of the applicants parked the respective vehicles
after refusal to sign the contract with new terms and reported a complaint to the CMA.
Three, it was the respondent/employer's act of unilaterally changing the applicants’ terms
of employment which forced the applicants to abscond from work – if they did abscond,
because in their evidence at arbitration, the two testified that the respondent told them
verbally that, if they did not wish to work under the new terms, they should park the
buses and leave. He refused to give them termination letters – hence their belief that
what was due to them was terminal benefits.
On these facts (except for the finding on payment for accrued leave which was on the
facts proper), it is my opinion that the CMA misapprehended the legal issue disclosed by
the undisputed facts, and because of that, it reached at an erroneous conclusion that the
applicants had absconded, which was a misconduct and were therefore not entitled to
payment of notice and severance. On the contrary, on the facts available to the arbitrator,
110
the respondent's action amounted in law to constructive termination of the applicants'
employment, and unfair termination. Why?
Constructive termination is defined under Sections 36 (a) (ii) and (iii) and 37 of the Act,
read together with Rule 7 of the Code. The said provisions read, and I quote:
36.- (a) termination of employment includes-

i) …,
ii) a termination by an employee because the employer made continued employment
intolerable for the employee;
iii) a failure to renew a fixed term contract on the same or similar terms if there was
reasonable expectation of renewal,
iv) …
Under Section 37 of the Act, termination of employment is unfair if the employer fails to
prove;
(a) that the reason for termination was valid;

(b) that the reason is a fair reason:
(i) related to the employee's conduct, capacity or compatibility; or
(ii) based on operational requirements of the employee and
(iii) that the employment was terminated in accordance with a fair procedure.
And Rule 7 of the Code provides:
7.- (1) Where an employer makes an employment intolerable which may result to the
resignation of the employee, that resignation amount to forced resignation or constructive
termination.
(2) Subject to sub-rule (1), the following circumstances may be considered as sufficient
reasons , to justify a forced resignation or constructive termination.
(a) …; and
(b) if an Employee has been unfairly deal with, provided that the employee has
utilized the available mechanisms to deal with grievances unless there are good
reasons for not doing so.
(3) Where it is established that the employer made employment intolerable as a result of
resignation of employee, it shall be legally regarded as termination of employment by the
employer.
Now, on the undisputed facts before the arbitrator, the decision in the award was a
misinterpretation/misapplication of the law applicable to the facts before him. Change of
the applicants' employment from monthly to daily pay amounted to a fundamental
change to terms and conditions of employment. To effect such a change unilaterally, i.e.
without prior consultation amounted to an unfair labour practice. The justifiable
conclusion on the facts was that; the respondent's unilateral action amounted to
constructive termination of the applicants' employment, and the same was unfair because
the emplover failed to prove that the said termination was fair in terms of Section 37 of
the Act.
111
The next issue for decision is whether under those circumstances, the arbitrator's
decision is reviewable.
An arbitrator's award can be revised under rule 28, (1) (d) of the rules where the court
finds that there was an ‘error material to the merits of the subject matter […] involving
injustice.’ The ambit of the said powers of revision is wide enough to cover a situation
where an arbitrator is found to have made an unjustifiable conclusion on the evidence, or
misapplied/failed to apply the law relevant the available evidence, or failed to rely on
relevant evidence.
Further, the powers of revision can be used even if the applicant has not articulated the
said grounds contrary to submission by counsel for the respondent; that is because the
court has power to revise an award on its own motion. What is important is that the
court's powers are used to revise an "error material to the merit of the subject matter [...]
involving injustice."
To conclude, I find that the respondent unfairly terminated the applicants; that therefore
the arbitrator's decision in the award was a misapplication of the law applicable to the
facts and evidence before him which is a material error involving injustice to the
applicants. I accordingly revise and quash the impugned award, and order the respondent
to pay compensation to each of the applicants twelve months remuneration as per
section 40 (1) (c); notice as per section 41 (1) (b) (ii) and severance pay as per Section 42 of
the Act. It is so ordered.
MARTIN OYIER V. GEITA GOLD MINE LTD.


(Original CMA/GEITA/KIN-ILA/446/2007)
Digest
That the “new” labour law represents a policy shift from the manner the law
regulated the femployment contract under the repealed laws (Employment and
Labour Relations Act (No. 6 of 2004), read together with the Employment and
Labour Relations (Code of Good Practice) Rules (GN 42 of 2007)) – the law has
brought more statutory regulation of the principle of freedom of contract, limiting
contractual powers of employers by mandating observance of fair labour practices –
It is unlawful to terminate the employment of an employee unfairly – termination of
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an employment contract must be for a fair reason (substantive fairness and must
follow a fair procedure - procedural fairness) – Minister for labour empowered to
issue a Code of Good Practice which has to be taken into account in interpreting tie
Act (Section 99 (3) of the ELRA). The code provides for practices to be adjudged fair
in different kinds of terminations - employer required to make reasonable efforts to
accommodate the employee's disability caused by ill health before taking a decision
to terminate (Section 37 of the ELRA, read together with Rule 19 and 22 of the Code
of Good Practice) - for termination on ground of ill health to be substantively fair,
the employer must carry on an appraisal/investigation on the cause, degree, and
nature of the incapacity; i.e. whether the same is permanent or temporary as per the
opinion of a registered medical practitioner (Rule 19(3) of the Code of Good
Conduct); the ability to accommodate given available possible alternatives to
termination (Rule 19(6) of the Code of Good Conduct); and taking into account
among others factors (Rule 19(7) of the Code of Good Conduct).
Brief Facts
The applicant’s employment was terminated by the respondent on ground of ill health,
consequent to which he referred a dispute to the CMA alleging unfair termination (both
substantively and procedurally) for which he sought the remedy of reinstatement.
However, in its decision and award, the CMA decided that termination was fair and all
necessary benefits had been paid to the applicant. Aggrieved with this decision, the
applicant filed an application for revision to the Labour Court.
Held:
1. That the “new” labour law i.e. the Employment and Labour Relations Act, 6 of
2004 (the Act), read together with the Employment and Labour Relations (Code
of Good Practice) Rules (GN 42 of 2007) (the Code) represent a policy shift from
the manner the law regulated the femployment contract under the repealed laws;
and instead it has translated into more statutory regulation of the principle of
freedom of contract, limiting contractual powers of employers by mandating
observance of fair labour practices.
2. That Section 37 of the ELRA it makes it unlawful to terminate the employment of
an employee unfair1y; and instead thereof, termination of an employment
contract must be for a fair reason - substantive fairness and must follow a fair
procedure - procedural fairness.
3. That the ELRA, under section 99, empowers the Minister to issue a Code of Good
practice which has to be taken into account in interpreting tie Act (Section 99
(3)). The code provides for practices to be adjudged fair in different kinds of
terminations.
4. That termination on ground of ill health is governed by Section 37 of the ELRA,
read together with Rules 19 and 22 of the Code of Good Practice, whose gist is that
while the law does not mandate an employer to continue to employ an employee
who cannot perform his duties, the employer is required to make reasonable
efforts to accommodate the employee's disability caused by ill health before taking
a decision to terminate.
5. That to make termination on ground of ill health substantively fair, the employer
is expected to carry on an appraisal/investigation on; first, the cause, degree, and
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nature of the incapacity – i.e. whether the same is permanent or temporary
(guided by the opinion of a registered medical practitioner as per Rule 19(3) of the
Code of Good Conduct; and, second, the ability to accommodate given available
possible alternatives to termination as per Rule 19(6) of the Code of Good
Conduct; taking into account among others factors stated under Rule 19(7) of the
Code of Good Conduct.
Applicant appeared in person.

Mr. Deogratius Mhage (Senior Legal Officer) for the Respondent.
RULING
RWEYEMAMU, J.: The applicant was an employee of the respondent until 5/10/2007
when he was terminated on grounds of ill health; and, finding the termination unfair, he
appealed against the employer's decision to the Commission for Mediation and
Arbitration (CMA) on 27/10/2007. His complaint contained in Statutory Form No. I was
that termination was unfair (both substantively and procedurally) for which he sought
the remedy of reinstatement. In its decision and award dated 22/9/2008, the CMA
decided that; termination was fair and all necessary benefits had been paid to the
applicant. It thus dismissed the appeal.
Dissatisfied, the applicant filed an application for revision supported by affidavit of
grounds that:
(a) The arbitrator's decision was not based on the adduced evidence.
(b) The arbitrator wrongly concluded that the doctor advised that he be terminated
while in fact the advice was that he be given light duty.
(c) The applicant was not referred by the employer to Muhimbili referral hospital.
(d) Rule 19 (13) of the Employment and Labour Relations (Code of Good Practice)
Rules, GN 42/2007 (hereinafter, the Code), was not complied with.
(e) The employer failed to consider that he had other qualifications and therefore
could be given alternative employment. (Documents proving his qualification
were attached to the affidavit in support of the application).
The Respondent through its legal officer one Mr. Deogratius Mhagama submitted in
opposition that:
(a) The applicant was terminated on advice of the respondent's doctor;
(b) The respondent had no alternative vacancy to accommodate the applicant's
disability; and
(c) The applicant's documents and submission that he had other qualifications were not
submitted at the CMA, as such, they could not be considered at this revision stage.
That therefore the arbitrator rightly found that the Code was complied with because
given the applicant's qualification and education, the employer had no suitable
alternative employment.
In the reply, the applicant submitted that the respondent; should have followed advice of
the MOI Doctor and given him light duty; or given him alternative employment as he had
other qualifications and that he had documents to prove other qualifications but was not
afforded opportunity to produce the m at the CMA.
According to the CMA record of proceedings and award, the following facts are not
114
disputed: The applicant was employed by the respondent as a watchman from 14/2/2000;
he developed back ache and could not perform his ordinary duties; he was treated at
Muhimbili hospital (MOI) and according to a medical report of 18/7/2007, it was
recommended that he be given light duty for 6 months and return to hospital for
re-evaluation thereafter; he was terminated before expiry of that period following findings
by the workplace medical committee and opinion of the employer's doctor that he could
not do heavy duty like chasing thieves. The applicant was paid requisite benefits after
that termination.
The applicant’s evidence that he was injured while chasing thieves was disbelieved by the
arbitrator who concluded that had such been the position, the applicant could have
completed and had relevant forms. I should state at this stage that I found no grounds to
fault the arbitrator on that decision.
The key issue for decision is whether on the evidence on record, the arbitrator's decision
that the applicant's termination was fair was irrational or a misinterpretation of evidence,
such as to make the award revisable under Rule 28 of the Labour court Rules, GN
106/2007. I find it opportune to preface my discussion, of the issues raised in this matter
by examining the governing policy and law.
The new labour law, i.e. the Employment and Labour Relations Act, 6 of 2004 (the Act),
read together with the Employment and Labour Relations (Code of Good Practice) Rules,
GN 42 of 2007 (herein-the Code), represents a policy shift from the manner the law
regulated the employment contract under the repealed laws. Part of the policy objective
of the Act is provided under Section 3(f) which to "generally to give effect to the
provisions of the Constitution in so far as they apply to employment and labour relations
and conditions of work” and "to give effect to the core conventions of the ILO as well as
other ratified conventions (Section 3(g).”
This policy has translated into more statutory regulation of the principle of freedom of
contract, limiting contractual powers of employers by mandating observance of fair
labour practices. Consequently section 37 of the Act provides that "it shall be unlawful to
terminate the employment of an employee unfair1y”. The section mandates that
termination of an employment contract must be for a fair reason - substantive fairness
and must follow a fair procedure - procedure, fairness. The Act under Section 99
empowers the Minister to issue a Code of Good practice which has to be taken into
account in interpreting the Act (Section 99 (3)). The Code provides for practices to be
adjudged fair in different kinds of terminations.
Termination on ground of ill health, the present scenario is governed by Section 37 of the
Act read together with Rules 19 and 22 of the Code. The gist of which is that while the law
does not mandate an employer to continue to employ an employee who cannot perform
his duties, the employer is required to make reasonable efforts to accommodate the
employee's disability caused by ill health before taking a decision to terminate.
To make such termination substantively fair, the employer is expected to carry on an
appraisal/investigation on;
(a) the cause, degree, and nature of the incapacity-i.e. whether the same is
permanent or temporary (guided by the opinion of a registered medical
practitioner-Rule 19(3));
(b) the ability to accommodate given available possible alternatives to
termination as per rule 19(6); taking into account among others factors stated
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under rule 19(7).
In brief the investigation on whether and how to accommodate the ill -health of an
employee and what will be considered reasonable accommodation will depend on the
peculiar facts of each case. The employer's duty is more onerous where the ill health is
work-related (Rule 19(2) of the Code).
Procedural fairness is governed by Rule 21 of the Code and key among the requirements
are that, "the employee shall be consulted in the process of investigation and shall be
advised of all the alternative considered" (Rule 21(2)); and "the employee is entitled to be
represented by a trade union representative or fellow employee in the consultation" (Rule
21(4)). That understood, I proceed to examine whether the evidence on record justified a
conclusion made by the arbitrator that the termination was fair.
The evidence on record shows that the investigation carried on focused only on the
respondent’s current health and the whether he could perform his current duties. The
evidence was that the employer's doctor opined that he could not Jo heavy duty like
chasing thieves. It is my firm opinion that such enquiry fell short of the requirements of
the law. Why?
First, the respondent adduced no evidence to show that the duration or permanency of
the respondent's ill health was investigated instead the evidence adduced was that the
applicant was terminated before expiry of the reappraisal period of 6 months
recommended by the registered practitioner. Second, the registered medical practitioner
had recommended light duty but no evidence was led to show that a possibility of such
light duties was investigated.
Third, no evidence was led by the employer, who had the onus of proof; to show if
possibilities of adjusted duties or alternative work was investigated. Such an appraisal
ought to have been done particularly considering that; the applicant had worked for a
long period for the respondent; the latter is a large company whose security duties was is
not necessarily limited to chasing thieves which requires a strong back or that the
manner of performing such duties could not be reasonably adjusted. In the absence of
evidence of such enquiry, I find that the employer did not prove that the applicants'
termination was substantively fair, and as such the arbitrator's conclusion on the issue
was in err.
Further, it is clear from the award that the arbitrator did not consider the issue of
procedural fairness of the termination. There was no evidence led to prove that the
employee was consulted and advised on all possible alternatives; that the employee was
represented by a trade union representative or friend; that presentations made by the
employee/or representative were considered. In brief, the required procedure was not
adhered to. I accordingly find that the applicant’s termination was in terms of the Act
read together with the Code also procedurally unfair.
In view of my findings on the two aspects above, I find that the application has merit in
that the arbitrator's award was not based on proper application of the law on the
evidence on record. That was a material error involving injustice. The same is for that
reason quashed and it is ordered that the applicant be reinstated with immediate effect.
After reinstatement but in the event the applicant is still of ill health, an enquiry into the
applicant’s employability shall be carried out according to law.
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NICODEMES KAJUNGU AND 1374 OTHERS V. BULYANHULU GOLD MINE (T) LTD.
High Court of Tanzania (Labour Division) at Dar es Salaam (Sambo, J.)
(Original Ref. No: CMA/DSM/KIN-ILA/772/03)
Digest
Annual leave in the High Court begins on the 15th day of December up until 31st
January of every year (Rule 2 of the Courts Vacations Rules, G.N. No. 307 of 1964) –
Labour Court may extend time limit on application and on good cause being shown
(Rule 56(1) of the Labour Court Rules (2007)) – principles of equity and not paying
strict adherence to legal technicalities cannot be allowed to save the negligence and
or inaction of the parties and their learned counsel from complying with the
mandatory provisions of the law.
Brief Facts
The applicants filed an application in the Labour Court praying for orders that this
honourble court may be pleased to grant an extension of time in which to file a statement
of complaint. When the application came for hearing, the learned counsel for the
applicant informed the court in his oral submissions that the application was filed under
Rules 3(i), 24(ii) and 56(1) of the Labour Court Rules (2007). He pointed out that when a
letter of the Director of Commission of Mediation and Arbitration, referring the dispute
to this court was written, he was on his annual leave, a factor which prevented him from
filing the statement of complaint within the required fourteen (14) days. He therefore
prayed that the court should invoke its powers provided under Rule 56(1) of the Labour
Court Rules, and extend time in which to file the statement of complaint.
To the contrary, the learned counsel for the respondent vehemently opposed the
application, submitting that Rules 3(i) and 24(ii) of the Labour Court Rules do give the
Labour Court power to extend time in which to file the said statement basing on the
principle that that is a court of record, law, equity and mediation. He went on saying that
if his learned friend wanted to maintain that this is a court of equity, then he who goes to
equity must go there with clean hands, and the learned counsel for the applicants doesn’t
have clean hands for equity to save him. He was of the view that the reasons advanced by
counsel for the applicants as a ground for the prayer were not satisfactory in respect of
Rule 56(1) of the Labour Court Rules.
Held:
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1. That the usual leave in the High Court begins on the 15th day of December up
until 31st January of every year under Rule 2 of he Courts Vacations Rules, G.N. No.
307 of 1964.
2. That under Rule 56(1) of the Labour Court Rules (2007) the court may extend time
limit on application and on good cause being shown.
3. That although the Labour Court is a court of equity, and does not adhere to strict
adherence to legal technicalities, the principles of equity and not paying strict
adherence to legal technicalities cannot be allowed to save the negligence and or
inaction of the parties and their learned counsel from complying with the
mandatory provisions of the law.
Case Referred to
R.v Yona Kaponda [1985] T.L.R. 84.
Mr. Nassoro (Advocate), for the Applicants.
Mr. Mwandambo (Advocate) and Mrs. Bade assisted by Mr. Yusufu, for the Respondent.
RULING
SAMBO, J.: The applicants, Nicodemes Kajungu and 1374 others, through their learned
counsel Mr. Nassoro from the Law and Justice Advocates Chambers, preferred the present
application praying for orders that this honourble court may be pleased to grant an
extension of time in which to file a statement of complaint. This application is supported
by an affidavit of the said learned counsel for the applicants. The respondents
Byulyamhulu Gold Mine Limited, through their learned counsel Mr. Mwandambo of the
Rex Attorneys, strongly objected the application and filed a counter affidavit of one
Goodson Kiliza. The applicants through the said learned counsel filed a reply to the
counter affidavit.
When the application came for hearing, the learned counsel for the applicant informed
the court in his oral submissions that this application is filed under Rules 3(i), 24(ii) and
56(I) both of the Labour Court Rules, 2007 GN No. 106 of 18th May, 2007. He further went
on saying that when a letter of the Director of Commission of Mediation and Arbitration
CMA Ref No. CMA/DSM/KIN-ILA/772/03 dated 4th December, 2007, referring the
dispute to this court was written, the said learned counsel was on his usual leave, a factor
which prevented him to file the statement of complaint within the required fourteen (14)
days. He therefore prays that this honourable court invoke its powers provided under
Rule 56(1) of the Labour Court Rules, 2007, and extend time in which to file the
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statement of complaint, in order to do both sides to the dispute as stated in paragraph
five of the affidavit supporting the application. He maintained that leave is a statutory
right to any employee and that being on leave in December, 2007, should not be taken to
be negligence on his part as is clearly stated in this counter affidavit. He therefore,
humbly prayed that their application be granted accordingly.
On the other part, the learned counsel Mr. Mwandambo vehemently opposed the
application and started his reasoned submissions by saying that Rules 3(i) and 24(ii) of
the labour court rules, 2007, approvingly quoted by the learned counsel for the
applicants, does give to this honourable court power to extend time in which to file the
said statement be a court of record, law, equity and mediation. He went on saying that if
his learned friend wanted to maintain that this is a court of equity, then he who goes to
equity must go there with clean hands, and the learned counsel for the applicants doesn’t
have clean hands for equity to save him.
The learned counsel for the respondent is of the view that the reasons advanced by his
learned friend as a ground for the prayer are not satisfactory in respect of Rule 56[I] of the
labour court rules, 2007. In the affidavit supporting the application, particularly the 3rd
paragraph, the learned counsel doesn’t state categorically when infact did the Secretary
General of the applicants’ Trade Union passed to the Director of CMA and collected the
letter referring the dispute to this honourable court. The court does not get a clear
picture as to when the letter was collected, and what’s averred by the learned counsel is
just hearsay and the court can’t act upon them.
The advocate, Mr. Mwandambo submitted further to the effect that despite his learned
friend for the applicants stating that in December, 2007, when the referral letter was
taken to his office, he was on leave, he doesn’t say when and by whom the same was
taken to his office. However, he noted further that the legal chamber of his learned friend
Mr. Nassoro have more than one advocate states further that even the chamber clerk who
received it had all the possibilities of informing him about the referral letter whose
response is required within 14 days. He is also of the opinion that the December, vocation
for Judges does not extend to the learned advocates, and therefore his leave between 5th
December, 2007, and 10th January, 2008, should not be considered. He is of the
considered view that there was negligence on the part of the applicants and their learned
counsel. The counsel referred the court to the case of R.v Yona Kaponda [1985] T.L.R. 84,
in which the court maintained that in granting applications for extension of time, the
court must consider whether or not there are sufficient reasons, not only for delay but
also sufficient reasons for extending the time in which to entertain the application.
Concluding that the applicants have not advanced sufficient reasons for the delay, he
prays that the application be dismissed with costs.
119
More spouse, the learned counsel for the applicants insisted that apart from looking at
the law, this court considers equity and its guidelines, and that’s why it is not strictly
bound by legal technicalities. He further stated that having no sufficient reason, does not
mean having dirty hands when going to equity. The learned counsel insisted that even if
his legal firm has more than one advocate, he is the one conducting the case and
therefore conversant with its facts. On the cited case of R.v Yona Kaponda, supra, the
learned counsel submitted to the effect that unlike what his learned friend stated, the
case did not define sufficient reasons in the very narrow way. He concluded by saying
they have advanced sufficient reasons and therefore prayed that their application be
granted as prayed.
At this juncture, I have heard both the learned counsel for the applicants, Mr. Nassoro,
and the learned counsel for the respondent, Mr. Mwandambo. In essence, Mr. Nassoro
has submitted in court to the effect that he delayed to file the statement of complaint
because he was on leave as from 5th December, 2007 to 10th January, 2008. The Director
of Commission (CMA) wrote the referral letter on 4th December, 2007 and the same was
filed in court on the same date and the Registrar acted upon it on the same day directing
that the complainants do file LCF No. 1 accordingly. Rule 6[2][a] of the Labour Court
Rules, 2007, provides that:-
6(6) Subject to the provisions of subsection [6] of Section 18 of the Act, where the matter
is a referral by the Director of the Commission (a) the party referring the dispute to the
Director shall file a statement of complaint within fifteen days from the date which the
Director notified the party of the referral of the dispute to the court.” [Emphasis added].
This means the complainants were mandatorily to file the statement of complaint within
fifteen days from the 4th day of December, 2007, but they did not. The learned counsel
for the applicants says he failed to file the same because he was on usual leave as from the
5th day of December, 2007, to 10th January, 2008. Neither in the affidavit supporting the
application nor in the reply to the counter affidavit, does the learned counsel for the
applicants state that they were latterly notified of the referral by the Director of the
Commission (CMA). Even in his oral submission here in court, the learned counsel did
not attempt to state that they were lately notified of the referral by the Director of CMA.
For this reason, I believe they were notified by the Director of CMA within the required
time.
The learned counsel for the applicants stated clearly that he was on usual leave from 5th
December 2007, to 10th January, 2008 during which even their Lordships, the Judges of
the High Court do go on leave. I am of the considered opinion that the learned counsel
was referring to the vacation of the court starts in December for each year. But, according
to the Courts Vacations Rules, G.N. No. 307 of 1964, Rule 2 provide thus:
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2. The vacations to be observed in the High Court shall be-
a) From the fifteenth day of December, to the thirty first day of January inclusive;
and
b) (Not relevant).
Here we learn that the usual leave which the learned counsel for the applicants is
referring to begins on the 15th day of December, for each year, but he alleges to have
started his leave on 5th day of December, 2007, ten days before the usual leave or
vacation of the court. Be it as it may, the learned counsel have not attached any
document to establish beyond any doubt that he was infact on leave from 5th December,
2008 though the usual vacation of the court was not yet.
Now, under Rule 56(1) of the Labour Court Rules, 2007, the court may extend time limit
on application and on good cause being shown. Can we safely say the act of the counsel
for the applicants going on leave as from the 5th day of December, 2007, a good cause?
On the first place as we have stated herein above, there’s no document in court to
establish that the learned counsel was really on leave at that time. The learned counsel it
referring to his leave as the usual leave but we have shown that the court vacation begins
on the 15th day of December each year, during which most learned Judges of the High
Court and learned counsels do go on leave, but he alleges to have started his leave on 5th
December, 2007.
The learned counsel for the respondent, Mr. Mwandambo have submitted here in court
that the legal firm of the counsel for the applicant, Law and Justice Advocates Chambers,
has more than one learned advocates and that even if we presume that he was really on
leave, then the clerk of the chamber who receive the referral letter and or LCF 1 from the
Trade Union of the applicants could have communicated to him even by cell phone or
otherwise, and appropriate actions taken. Not only these, but even the Senior Counsel of
the said legal firm could certainly be informed and make necessary direction in order to
file the informed and make necessary direction in order to file the statement of complaint
within the mandatory time. It seems, they did nothing, which indicates a clear negligence
on their part and proving that they did not take serious this matter. The observation of
Mr. Goodson Kiliza in his counter affidavit which was orally state as well by the learned
counsel Mr. Mwandambo, to the effect that the reasons advanced to justify the delay in
filing the complaint within the time prescribed by the law are valid in all respects. In the
light of the decision of the Court Appeal of Tanzania in this cited case of R. v Yona
Kaponda and 9 Others [1985] TLR 84, I am of the considered view that the applicants
have not set out good reasons for the delay.
I am in total agreement with the learned counsel for the applicants that under Rule 3[1] of
the Labour Court Rules, 2007, this court is a court of equity, and does not adhere to strict
121
adherence to legal technicalities. But the principles of equity and not paying strict
adherence to legal technicalities cannot be allowed to save the negligence and or inaction
of the parties and their learned counsel from complying with the mandatory provisions of
the law. Principles of equity and not strictly adhering to the legal technicalities do apply
where the applicants and their learned counsel have nothing to blame on the delay, and
not otherwise.
In the final analysis, I do have views with the reasoned submissions of the learned counsel
for the respondent that the applicants have not advanced sufficient and good reasons to
justify the delay. For this reason, I dismiss the application in its entirety and make no
orders as to costs because the proceedings did not appear to be frivolous or vexations.
RASHID KHAMIS MKOYA V. MALTAURO SPENCON STIRLING JV

(Original CMA/DSM//KIN-1LA/98/09)
Digest
Limitation of time is jurisdictional, the applicant must show good cause to satisfy
the Court grant extension of time – sympathy with the applicant's cause is not good
cause .
Brief Facts
Aggrieved by the termination of his employment, the applicant referred a dispute of
unfair termination to the CMA, together with an application for condonation of the
delay. The application for condonation was, however, dismissed by the CMA. Dissatisfied,
the applicant filed an application for revision of the decision of the CMA, contending that
was sick; and, being a lay person, he did not file his case in time because he believed he
would be reinstated by the employer/respondent.
Held:
That the issue of limitation is jurisdictional and short of satisfying the Court that the
applicant had good cause for delay, it has no jurisdiction in the matter however
sympathetic it may be with the applicant's cause.
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Case Referred to
John Cornet v Grevo (T) Ltd. High Court of Tanzania at Dar es Salaam, Civil Case No. 1998
(unreported).

Ms. Grace Malekano (Advocate), for the Respondent.
RULING
RWEYEMAMU, J.: The employment of Rashid/the applicant was terminated by his
Employer/ the respondent on 17/7/2008. Aggrieved he referred a dispute of unfair
termination to the Commission for Mediation and Arbitration (CMA) on 11/3/2009. It was
time barred by 7 or 25 months in terms of Rule 10 of the Labour Institutions (Mediation
and Arbitration) Rules, GN 64/2007. In its decision dated 26/6/2009, the CMA dismissed
his application for condonation of delay, aggrieved; he filed this application for its
revision.
In this court, Rashid appeared in person while the respondent was represented by Ms.
Grace Malekano advocate, Rashid basically repeated grounds contained in his affidavit in
support of the, application, itself a repetition of his case at the CMA. That he had a case;
that he was thereafter sick-paralyzed but further that he was a lay person and did not file
his case in time because he believed he would be reinstated by the employer/ respondent.
The employer also repeated grounds in its counter affidavit and supported the CMA
decision submitting in brief in respect of Rashid that:
The ground given that he had a case was not sufficient reason because the applicant had
no evidence to show which case he had and how having that case prevented him from
filing a referral. Further there was no evidence adduced of his having been sick.
After carefully considering the facts and evidence before the CMA, I find no basis of
faulting the reasons given for its decision. To understand my decision, I shall let the
relevant part of that decision speak for itself:
In terms of rule 29 (4) (d) of the Labour Institutions (Mediation and Arbitration) Rules GN
No. 64/2007 (hereinafter referred to as "the Rules") it is imperative for the application for
condonation to be supported by the grounds for the later referral. It appears in terms of the
affidavit, the applicant failed to refer the dispute to the commission because he was having
the case at the court, the averment appears extremely vague. The commission is not
informed which kind of the case and at which court of law was it filed. The specific
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duration the case was filed was not Indicated, However despite the said averment, there is
no any proof that the applicant is having the case at the court and even if the commission
will accept that the applicant was having the case how the same prevented the applicant to
refer the dispute of the unfair dismissal to the commission within the statutory 30 days
period. The applicant was late to file the dispute for such inordinate seven months and 25
days. He averred that the said case is still pending before the court but he could still refer
the dispute of the unfair dismissal to the commission as he has done on 16th March, 2009
the day the dispute was filed before the commission according to the official endorse
meets of the commission official stamp. The applicant failed to address these issues on his
founding affidavit and even after the commission granted him the opportunity to address
them through the oral submissions. In opposition of the objections raised by the
respondent. The commission therefore finds that the applicant's reason fall short of being
valid cause for the late referral of this dispute. (Emphasis mine).
Based on the above grounds particularly the underlined the CMA concluded that: “As
there is no valid cause of the late referral, the dispute is time barred and therefore
dismissed.” It is true the applicant gave no substantiable grounds for delay and the CMA
rightly noted that the issue of limitation is jurisdictional and short of satisfying it that the
applicant had good cause for delay, it had no jurisdiction in the matter however
sympathetic it may be with the applicant's cause, citing as authority among other cases,
the High Court decision by Kalegeya, J., (as he then was) in the case of John Cornet v
Grevo (T) Ltd. High Court of Tanzania at Dar es Salaam, Civil Case No. 1998 (unreported), at
page 8. In that case, the Hon. Judge sustained the preliminary objection based on
limitation, dismissed the case, and observed that:
[…] however unfortunate it may be for the plaintiff, the law of limitation of action knows
no sympathy or equity. It is a merciless sword that cuts across and deep into all those who
get caught in its web. For reasons stated the preliminary objection regarding limitation of
time is upheld [...].
Due to my decision above, I find no merit in this application and dismiss it.
RHOBI MARWA V. MWATEX (2001) LTD.

124
Digest
Legal effect of illegurlar records of the CMA – to reder the CMA proceedings a nullity.
Brief Facts
The respondent rose a point of preliminary objection against an application for revision
filed in the Labour Court by the applicant on grouhnds that the application was
time-barred and that there was no matter heard or decision given by the CMA. The
respondent argued that the application ought to have been brought within fourteen days
after the CMA’s decision. There being no application to appeal out of time, the
application ought to be dismissed. The issue for decision by the Labour Court was
whether the application was time-barred, and, if so, whether the application should
ought to be struck out.
Held:
That illegurlarity of records renders the CMA proceedings a nullity.

CMA proceedings quashed, mediation to be reconducted.
No Case Referred to
Mr. Mrimi, for the Applicant.

Razak Somji, for the Respondent.
RULING
KALOMBOLA, J.: This is a ruling on issue of Preliminary objection whereby respondent
raised against the application for revision filed on 18/11/2008. The Preliminary objection
raised in Counter Affidavit that, the application is time barred there is no application or
prayers for filing the application out of time. Finally that there is no matter heard or
decision been given or the Respondent been aware of Labour Reference
No.CMA/349/2008 as mentioned in the affidavit and out of which this application has
risen.
At the time of hearing one RAZAK SOMJI, appearing for Respondent said, the application
was brought in Court on 22/5/2009. It ought to have been brought within fourteen days
after decision made by CMA. That decision by CMA was delivered on 5/6/2008. There
was no application to appeal out of time.
Mr. Mrimi, who represented applicant, replied that the decision of the CMA was made on
5/6/2009. They brought their application within fourteen days. Therefore they are within
time. Mr. Razak in rejoinder insisted, application for revision was received by Court on
22/5/2009. Affidavit in support of application was received on 19/6/2009. Hence filed out
of time.
Following submission by parties it is suggested the issue for decision is whether this
application is time barred, and if so, whether the application should for teat reason be
struck off. But going back to CMA record, i.e. CMA/MZ/349/2008 what found inside is
mere confusion. The record suggests to me the issue for decision is whether there exists
CMA decision which could later invite this Court to deal with it as application for
revision. First Coram is dated 26/5/2008, before Mmbaga – Mediator, below it is written:
125
PARTIES HAS AGREED TO REFER THE MATTER TO TUICO — MWATEX FOR
SETTLEMENT”
There is no signature below, therefore it is not certain whose order is that one.
On 5/5/2008, a Coram below the one above, Mmbaga is Mediator, it is noted on that day
the dispute was for Mediation.
Order given is;
"MEDIATION FAILED MATTER HAS BEEN REFERRED FOR ARBITRATION".
There are no arbitration proceedings in CMA record, thus Court cannot tell whether the
dispute was taken before arbitrator. What surprises Court more is Mediators conduct
noted on the record. First Coram is dated 26/5/2008, Second Coram is dated 5/5/2008.
How possible 26/5/2008 to come before 5/5/2008? Why there be two different
contradictory orders issued on those dates? It ought to have been either; Why the
proceedings on the record unsigned?
Under Section 86(3)(a) of the Employment and Labour Relations Act, No. 6/2004, the
Commission appoints a Mediator:-
(a) To decide complaints ex-parte under Section 87(3) (b) of the employment and
Labour Relations Act
(b) Or to facilitate the resolution of disputes under Section 86 (4) of the
Employment and Labour Relations Act.
(c) And to issue certificates under Rule 16 (1) of the Labour Institutions (Mediation
and Arbitration) Rules, GN 64 of 2007.
But from what is on record, I am of the view that Mediator failed to fulfill her duty as
here above indicated. Orders she gave on 26/5/2008 and 5/5/2008 are a contradiction and
irregularity on the record which have occasioned injustice in the sense Court cannot tell
which order prevails.
For the reason stated and since Mediation is mandatory, I quash the proceedings dated
26/5/2008 and 5/5/2008 and set aside any other orders which might have arisen out of
orders given on the above dates; I remit the file to the CMA for Mediation to be
conducted afresh and follow the law in doing that.
CMA proceedings quashed, mediation to be reconducted.
BIDCO OIL AND SOAP LTD. V ROBERT MATONYA & 2 OTHERS

(Original CMA/DSM/DISPUTE/KIN-ILA/716)
Digest
CMA has powers to summon witnesses for questioning on any issue which may
assist it to resolve a dispute before it, these powers are not meant to resolve a dispute
before it or compel the CMA to prosecute cases on behalf of parties (Section 20 of the
Labour Institutions Act, 7/2004) – duty to call witness lies with the parties (Labour
Institutions (Mediation and Arbitration) Rules GN 64/2007 and Labour Institutions
(Mediation and Arbitration Guidelines) GN 67/2007) – burden to prove that
termination was fair under the ELRA lies with the employer – requirement for both
substantive and procedural fairness in employment termination proceedings are in
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pursuance of one of the policy objective of the labour laws (Section 3 of the ELRA) to
ensure observance of fair labour practices in the workplace – fair labour practices
incorporate observance of basic human right principles among them the
presumption of innocence and the right not to be punished unheard ( Section 37(3) of
the ELRA) – the policy objective of the labour laws represents a fundamental shift in
ideology from the days of freedom of contract and the right of employers to hire and
fire, to incorporation of values of fairness in employments relationships – where an
employee’s alleged actions amount to both disciplinary misconduct and a criminal
offence, the employer has a choice to conduct disciplinary proceedings, either before
criminal proceedings are initiated or after they are completed. The choice, like any
other business choice, is that of the employer, to be made after weighing
circumstances of each case, and the risks pertaining to the choice made – after the
arbitrator finds that the employer’s action amount to unfair termination, his/her
mandate is to order remedies prescribed by law: reinstatement, reengagement, or
compensation (Section 40(a), (b) or (c) of the ELRA) or using discretion order
compensation (Section 40(2) or the ELRA) - employer may then reinstate or pay
compensation of 12 months’ salary (Section 40(3) of the ELRA) – employee is also
entitled to ‘wages due and other benefits from the date of the unfair termination to
the date of final payment’ (Section 40(a), (b) or (c) of the ELRA).
Brief Facts
The respondents successfully referred a dispute to the CMA against the applicant
claiming unpaid salaries and continuation of salary payment until the criminal case
pending against them had been finalized. In fact, before their employment was
terminated, the respondents were arrested and taken to the police and were ultimately
charged in court; and later were finally granted bail. Soon thereafter, they reported for
work at the applicant’s premises but were denied access, after futile attempts for 2 weeks
and failure by the applicant to serve them with termination letters, they decided to refer
the matter as a labour dispute to the CMA. Their claim was that the applicant had
stopped paying their salaries from the time they were arrested by the police on
allegations of stealing from the applicant.
The applicant’s defense was that an internal check in their premises revealed fuel
shortage and the matter was reported to police; that in the meantime the police had
intercepted a fuel vehicle; that following report of the theft and verification from the
sample, the police concluded that the intercepted fuel was stolen from the applicant, they
were instructed to take the respondents to the police which they did; and decided to
terminate the respondents, before they were charged in court.
In both the CMA and the Labour Court, the applicant’s arguments were that, it was not
in breach of the labour laws because the respondents were terminated before they were
charged, as such, Section 37(5) of the Employment and Labour Relations Act (the Act)
(No 6 of 2004) could not be brought into play. It did not initiate the respondent’s arrest
that the apprehended based on police investigation; and, therefore, it was justified to
terminate the respondents because it had lost confidence in them.
In its award, the CMA decided that: first, that on the available evidence, the applicant
investigated the respondents and based on that enquiry, a compliant was lodged to the
police following which, an official of the applicant had the respondents arrested by the
127
police. Second, it was undisputed that the respondents were arrested, remanded charged
in court and released on bail. The applicant’s claim that the respondents were served with
termination letters was not credible as at the alleged period, they were in custody. In fact,
the respondents were terminated the day they were arrested. Third, even if the
respondents had been given termination letter, their termination would still unlawful
because disciplinary action was taken without giving the respondents the right to be
heard which in law amount to procedurally unfair termination. Therefore, the CMA
ordered that the respondents would remain employees of the applicant entitled to salary
and other employment benefits until the case was finalized. Aggrieved with the CMA
award, the applicant applied for revision in the Labour Court to set aside the whole
award.
Held:
1. That while the CMA has powers under Section 20 of the Labour Institutions Act,
7/2004, to summon witnesses for questioning on any issue which may assist it to
resolve a dispute before it, these powers are not meant to resolve a dispute before
it, these powers are not meant to compel the CMA to prosecute cases on behalf of
parties.
2. That the duty to call such witness lies with the parties as clearly stipulated under
the Labour Institutions (Mediation and Arbitration) Rules GN 64/2007 read
together with the Labour Institutions (Mediation and Arbitration Guidelines) GN
67/2007; and the burden to prove that termination was fair under the ELRA is that
of the employer.
3. That the requirement for both substantive and procedural fairness in employment
termination proceedings are in pursuance of one of the policy objective of the
labour laws spelled out under Section 3 of the ELRA which is to ensure observance
of fair labour practices in the workplace. Fair practices incorporate observance of
basic human right principles among them the presumption of innocence and the
right not to be punished unheard. And without that requirement, there would be
nothing to prevent employers to terminate employees even on grounds which are
inherently unfair as spelled out under Section 37(3) of the ELRA.
4. That the policy objective of the labour laws is a deliberate choice on the part of the
legislature representing a fundamental shift in ideology from the days of freedom
of contract and the right of employers to hire and fire, to incorporation of values of
fairness in employments relationships.
5. That where an employee’s alleged actions amount to both disciplinary misconduct
and a criminal offence, the employer has a choice to conduct disciplinary
proceedings, either before criminal proceedings are initiated or after they are
completed. The choice, like any other business choice, is that of the employer, to
be made after weighing circumstances of each case, and the risks pertaining to the
choice made. The applicant in this case made a choice to terminate the
respondents unfairly, and has to face the legal consequences of that choice.
6. That after the arbitrator finds that the employer’s action amount to unfair
termination in terms of the law; his/her mandate is to order remedies prescribed
by law, which are; reinstatement, reengagement, or compensation under Section
40(a), (b) or (c) of the ELRA or using discretion order compensation under Section
40(2) or the ELRA. The employer may then reinstate or pay compensation of 12
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months’ salary as per Section 40(3) of the ELRA.
7. That the remedies an arbitrator may award do not extend to payment of salaries
until the criminal case is finalized [no matter how long it takes], that is so even
where termination was effected against an employee facing criminal proceedings
contrary to Section 37(5) of the ELRA.
8. That once an order is made under Section 40(a), (b) or (c) of the ELRA the
employee is also entitled to ‘wages due and other benefits from the date of the
unfair termination to the date of final payment.’
The application parly succeeded, partly failed.
No Case Referred to
Mr. El Maamry (Advocate), for the Applicant.

Mr. Luguwa (Advocate), for the Respondent.
RULING
RWEYEMAMU, J.: The respondent/employees successfully referred a dispute to the CMA
against their employer/applicant claiming unpaid salaries and continuation of salary
payment until the criminal case pending against them had been finalized.
For ease of comprehension of the parties' arguments in this matter, I find it useful to
summarise the facts, issues and subsequent decision of the CMA. The undisputed fact
was that on 13/7/2007 the respondents were arrested and taken to the police and were
ultimately charged in court on 17/7/2007.
The fact adduced by the respondents’ were that they were arrested upon the applicant’s
instance, remained in custody and were finally granted bail. Soon thereafter on
22/7/2007, they reported for work at the applicant’s premises but were denied access,
after futile attempts for 2 weeks and failure by the applicant to serve them with
termination letters, they decided to refer the matter as a labour dispute to the CMA.
Their claim was that the applicant had stopped paying their salaries from the time they
were arrested by the police on allegations of stealing from the applicant.
In turn, the applicant’s defense was that an internal check in their premises between
18/06 – 19/7/2007 revealed fuel shortage and the matter was reported to police; that in
the meantime the police had intercepted a fuel vehicle on 18/6/2007; that following
report of the theft and verification from the sample, the police concluded that the
intercepted fuel was stolen from the applicant, they were instructed to take the
respondents to the police which they did on the 13th; and decided to terminate the
respondents on 13th, before they were charged in court on 17th. The applicant’s
arguments at the CMA and in this court were that:
 It was not in breach of the labour laws because the respondents were
terminated before they were charged, as such, section 37[5] of the Employment
and Labour Relations Act [the Act], 6/2004 could not be brought into play.
 It did not initiate the respondent’s arrest that the apprehended based on police
investigation.
 It was justified to terminate the respondents on 13/7/2007 because it had lost
confidence in them.
In its award issued on 27/4/2009, the CMA decided that:
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1. On the available evidence, the applicant investigated the respondents and based
on that enquiry, a compliant was lodged to the police following which, an official
of the applicant had the respondents arrested by the police.
2. It is undisputed that the respondents were arrested on 13/7/2007, remanded
charged in court on 17/7/2007 and released on bail on 23/7/2007. The applicant’s
claim that the respondents were served with termination letters was not credible
at the alleged period, they were in custody. (I find it useful to point out at this
stage that it is not without significance that the respondents were terminated the
day they were arrested).
3. Even if the respondents had been given termination letter, their termination
would still unlawful because disciplinary action was taken without giving the
respondents the right to be heard which in law amount to procedurally unfair
termination. The CMA then granted the following relief and I quote:
TUZO: Baada ya maelezo ya walalamikaji, ushahidi wao pamoja na ufafanuzi
uliotolewa na Sheria tajwa, inaamua kuwa walalamikaji hawa watatu wataendelea
kutambulika kama wafanyakazi wa mlalamikiwa hadi hapo kesi itakapoisha. Kwa
muda wote wa kesi walalamikaji watastahili kulipwa mishahara yao na
marupurupu mengineyo waliyokuwa wanapata kama yapo kwa mujibu wa kifungu
cha 27[5] cha kanuni [Employment and Labour Relations [Code of Good
Practice]], tangazo la serikali Na. 42 ya tarehe 16/2/2007. Uamuzi huu utekelezwe
mara moja.
Loosely translated the decision was that the respondents remain employees of the
applicant entitled to salary and other employment benefits until the case is finalized.
Aggrieved, the applicant filed this application for revision on among other grounds that:
1. That the Commission awarded the Respondents among other things 16 months’
salaries plus salaries until criminal case is finalized by the court despite the fact that
the case was not opened by the Applicant.
2. That the Applicant was misquoted by the Hon. Arbitrator that the instruction as to
sent the Respondents to Police was coming from the employer whereas the fact is
“instruction to sent the Respondents to Police Station came from Police authority,
who asked the management to facilitate the sending of the Respondents who were on
duty on the material day of offence. Iit is believed that this misunderstanding by the
CMA led the Arbitrator to give unjust award.
3. 12. That the Applicant being dissatisfied with the award against him applied for
Revision accompanied by the Affidavit and apply for Set Aside the whole award.
4. 13. That improper manner through which the award was obtained without having
valid evidence that the Applicant report the case to police instead of police authority
itself, has misled the commission in arriving an unjust end. The CMA couldn’t get the
police officer to verify between the two; police authority or the applicant had reported
the matter to police station.
At the hearing, both sides were represented by counsel, Mr. El-Maamry and Mr. Luguru
Advocates for the Applicant and respondents respectively. The matter proceeded partly
orally and partly by written submission.
Much of the submission of counsel for the applicant focused on faulting the arbitrator for
deciding on the evidence; that the respondents were terminated before they were charged
therefore Section 37(5) of the Act was not contravened; concluding that the arrest of the
respondents were prompted by the applicants instead of finding that it was based on the
police’s own investigations, that the CMA should have called the police as witnesses to
verify what actually happened; that it should have found that the applicant acted
properly in terminating the respondents in who it had lost trust.
130
Counsel for the respondents submitted in response that; the respondents freedom of
movement was curtailed when they were arrested as such the machinery of criminal
proceedings had commenced; that lawful termination under Section 37(2) of the Act has
to be for a valid and fair reason, and it has to follow a fair procedure. That the objective is
to protect employees’ right not to be condemned unheard; that termination was illegal
not only because it happened during pendency of a criminal charge but because there was
no proof on the part of the applicant that termination was for a valid reason or followed a
fair procedure.
The parties were requested to make written submission on the issue of whether the term;
being charge with a criminal offence includes being arrested or refers to only charging the
employee in court; and whether the section in question refers to a criminal charge for a
misconduct relation to the employer’s business or any other criminal charge. None of
them submitted on the letter, but I have noted and appreciated their submissions on the
first issue.
I have carefully considered the arbitrator’s reasoning in the award and the parties’
arguments and make the following observations and decision:
First, I have found no rational basis to fault the arbitrator’s decision on fact as per
number [1] above. The fact as admitted by the applicant, including the proximity in time
of internal audit, report of the theft and arrest of the respondents, give a distinct
impression to an objective person of the applicant’s involvement, as concluded by the
arbitrator.
Second, Counsel for the applicant submitted that the CMA should have summoned the
police witness to ascertain who made the report to them. With all due respect, I do not
accept counsel’s reasoning. While the CMA has powers under rule 20 of the Labour
Institutions Act, 7/2004, to summon witnesses for questioning on any issue which may
assist it to resolve a dispute before it, these powers are not meant to resolve a dispute
before it, these powers are not meant to compel the CMA to prosecute cases on behalf of
parties. The duty to call such witness lies with the parties as clearly stipulated under the
Labour Institutions (Mediation and Arbitration) Rules, GN 64/2007, read together with
the Labour Institutions (Mediation and Arbitration Guidelines) Rules, GN 67/2007; and
the burden to prove that termination was fair under the Act is that of the employer.
Finally, I believe to reach a decision on the facts of this case, it is not material whether
the respondents’ arrest was initiated by the applicant or not. The critical issue, and which
is undisputed is that the applicant terminated the respondents’ employment without
proof of misconduct on their part, and without giving them a right to be heard. I thus
conclude that the respondents’ termination was to that extent both substantively and
procedurally unfair in terms of Section 37(1) and (2) of the Act.
Admittedly, this case partly raises an issue of concern or dilemma regarding proper
procedures to be followed in terminating an employee whose alleged actions amount to
both a disciplinary misconduct and a criminal offence and/or in whom the employer has
lost trust. The issue is of concern because of the difficult in striking a balance between an
employer’s prerogative to manage and maintain workplace discipline including the right
not to retain an employee in who trust has been lost vital for economic efficiency; and the
right of an employee to a presumption of innocence-proof of a misconduct and the right
not to be penalized un heard.
The requirement for both substantive and procedural fairness in employment termination
131
proceedings are in pursuance of one of the policy objective of the labour laws spelled out
under Section 3 of the Act which is to ensure observance of fair labour practices in the
workplace. Fair practices incorporate observance of basic human right principles among
them the presumption of innocence and the right not to be punished unheard. And
without that requirement, there would be nothing to prevent employers to terminate
employees even on grounds which are inherently unfair as spelled out under Section 37(3)
of the Act.
That policy objective was in my opinion, a deliberate choice on the part of the legislature
representing a fundamental shift in ideology from the days of freedom of contract and the
right of employers to hire and fire, to incorporation of values of fairness in employments
relationships.
In my understanding of the law, the dilemma is more apparent than real because where
an employee’s alleged actions amount to both disciplinary misconduct and a criminal
offence, the employer has a choice to conduct disciplinary proceedings, either before
criminal proceedings initiate or after they are completed. The choice, like any other
business choice, is that of the employer, to be made after weighing circumstances of each
case, and the risks pertaining to the choice made. The applicant in this case made a
choice to terminate the respondents unfairly, and has to face the legal consequences of
that choice.
That completed, the next for decision is whether the arbitrator made a legally proper
conclusion on the facts that one, the respondents were in continuous employment
therefore the applicant should pay salaries from the time of termination to the date of the
award, and two, that the respondents were legally entitled to be paid salaries until the
criminal case against them was concluded.
In my considered opinion, after the arbitrator finds that the employer’s action amount to
unfair termination in terms of the law; his/her mandate is to order remedies prescribed
by law, which are; reinstatement, reengagement, or compensation under Section 40(a),
(b) or (c) or using discretion order compensation under Section 40(2) or the Act. The
employer may then reinstate or pay compensation of 12 months salary as per Section
40(3) of the Act.
Again, it is my opinion that the remedies an arbitrator may award do not extend to
payment of salaries until the criminal case is finalized (no matter how long it takes], that
is so even where termination was effected against an employee facing criminal
proceedings contrary to section 37(5) of the Act. In view of my said position, I find that
the arbitrator’s decision to award a remedy that “Kwa muda wote wa kesi walalamikaji
watastahi kulipwa mishahara yao na marupurupu mengine waliyokuwa wanapata” to have
been an improper exercise of its jurisdiction and quash it.
I should make it clear, however, that once an order is made under Section 40(a), (b) or (c)
of the Act, the employee is also entitled to “wages due and other benefits from the date of
the unfair termination to the date of final payment”. Thus after a finding of unfair
termination, the conclusion by the arbitrator that the respondents were in continuous
employment was proper.
In the result, this application partly fails in that; I confirm the arbitrator’s decision that;
the applicant’s action of to terminating the respondents’ employment on 13/7/2007
amounted to unfair termination.
In view of that, I order the applicant to:
132
 Pay each of the respondents 12 months salaries as compensation under Section
40(c) of the Act;
 Pay each of the respondents’ wages due and other benefits from the date of the
unfair termination to the date of final payments.
And the application partly succeeds in that I quash and set aside the arbitrator’s order
that the respondents should be paid that “Kwa muda wote wa kesi walalamikaji watastahi
kulipwa mishahara yao na marupurupu mengine waliyokuwa wanapata”. It is so ordered.
The application parly succeeded, partly failed.
SECURITY GROUP TANZANIA V. ATHUMANI S/O ABDALLAH

Digest
Double jeopardy principle in workplace disciplinary procedures, part of a basic
human right to fair treatment entrenched in the constitution: a person cannot be
tried or punished twice for the same offence – in labour relations the principle of
double jeopardy translates into a rule that an employee acquitted at a disciplinary
enquiry cannot be subjected to a second disciplinary hearing on the same facts –
double jeopardy does not apply to prevent institution of criminal proceedings against
an employee for a misconduct over which that employee has been subjected to
internal disciplinary proceedings, under section 37 (5) of the ELRA; but an employee
charged with a criminal offence in respect of a misconduct at the workplace can only
be subjected to disciplinary proceedings over the same misconduct when the
criminal proceedings are finalized – factors to be considered in arriving at a proper
application of the double jeopardy principle in labour matters – one of the objectives
of the ELRA is to give effect to the provisions of the constitution in so far as they
apply to labour relations and conditions of work (Section 3) –employer has a duty to
prove that termination was fair (Section 37(2) of the ELRA).
Brief Facts
The respondent’s employment was terminated following a disciplinary hearing by the
employer/applicant. He referred the matter as a dispute of unfair termination to the CMA
and sought as relief reinstatement without loss of remuneration, basing his claim on the
ground that he had been double jeopardized by the employer when he prosecuted him
twice for the same offence. In fact, he was subjected to two disciplinary hearings on the
same charge and on same facts. The two hearings were staggered between days only.
Whereas under the 1st hearing, the employee was charged with willful damage to a
vehicle; at the 2nd hearing he was charged with and convicted of gross-negligence to
property to wit, driving the same vehicle without water in the engine leading to
133
overheating the engine. The respondent attended that second hearing but objected to it
on grounds that the charge was substantially the same to the one he was first acquitted
of. But he was convicted and terminated subsequent thereafter. In the CMA, the
arbitrator found that termination of the respondent’s employment was unfair and
ordered his reinstatement without loss of remuneration.
Held:
1. That the double jeopardy principle in workplace disciplinary procedures is part

of a basic human right to fair treatment entrenched in the constitution under
which a person cannot be tried or punished twice for the same offence.
2. That in labour relations the principle of double jeopardy translates into a rule
that an employee acquitted at a disciplinary enquiry cannot be subjected to a
second disciplinary hearing on the same facts.
3. That although the application of the principle of double jeopardy does not apply to
prevent institution of criminal proceedings against an employee for a misconduct
over which that employee has been subjected to internal disciplinary proceedings,
under section 37 (5) of the ELRA, an employee charged with a criminal offence in
respect of a misconduct at the workplace can only be subjected to disciplinary
proceedings over the same misconduct when the criminal proceedings are
finalized.
4. That while the double jeopardy principle applies in internal disciplinary
proceedings at the workplace, conceptually, determination of the question in the
workplace invokes striking a balance between the objective of fair practices and
the employer's prerogative to manage and maintain workplace discipline, a key
prerequisite for economic efficiency.
5. That factors to be considered in arriving at a proper application of the double
jeopardy principle in labour matters, depending on special circumstances of each
case, are:
(a) Whether there were in fact two formal disciplinary hearings, which entail
deciding whether the first was conducted by a properly constituted authority;
(b) Whether the decision given was final;
(c) Whether the disciplinary body concluded its enquiry;
(d) What prompted the second enquiry? In the circumstances of the case, was the
employer's decision to hold 2nd hearing rational or unfair? and
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(e) Whether the misconduct was in fact proved, an issue also important when the
adjudicator is assessing the appropriate remedy following a finding of unfair
termination based on of the double jeopardy rule. This is so because where the
misconduct is serious and proved, it would be unfair to compel an employee, to
retain an -employee in whom it has justifiably lost confidence'
6. That one of the objectives of the ELRA spelled out under Section 3 is: ‘To give
effect to the provisions of the constitution […] in so far as they apply to labour
relations and conditions of work.’
7. That under Section 37 (2) of the ELRA, it is the employer who has a duty to prove
that termination was fair.
No Case Referred to
RULING
RWEYEMAMU, J.: The key issue to be decided in this matter revolves around the
applicability of the double jeopardy principle in workplace disciplinary procedures. The
principle part of a basic human right to fair treatment entrenched in the constitution
under which a person cannot be tried or punished twice for the same offence. One of the
objectives of the Employment and Labour Relations Act (the Act) 6/2004 spelled out
under Section 3 is: ‘To give effect to the provisions of the constitution [...] in so far as they
apply to labour relations and conditions of work.’
In labour relations the principle translates into a rule that an employee acquitted at a
disciplinary enquiry cannot be subjected to a second disciplinary hearing on the same
facts. Apart from general considerations of fair labour practices in the constitution, the
rule prevents never ending/harassing enquiries against an employee which disrupts
harmonious labour relations.
It is important to make it clear that, the application of the principle does not apply to
prevent institution of criminal proceedings against an employee for a misconduct over
which that employee has been subjected to internal disciplinary proceedings. But, under
Section 37 (5) of the Act, an employee charged with a criminal offence in respect of
misconduct at the workplace cannot be subjected to disciplinary proceedings over the
same misconduct until the criminal proceedings are finalized.
While the double jeopardy principle applies in internal disciplinary proceedings at the
workplace, conceptually, determination of the question in the workplace invokes striking
a balance between the objective of fair practices and the employer's prerogative to
manage and maintain workplace discipline, a key prerequisite for economic efficiency.
135
With that in mind, I find it necessary to state what, in my opinion, is the kind of enquiry
or factors to be considered in arriving at a proper application of the double jeopardy
principle in labour matters. Generally, the decision depends on special circumstances of
each case. The facts are, among others:
a) Whether there were in fact two formal disciplinary hearings, which entail
deciding whether the first was conducted by a properly constituted authority.
b) Whether the decision given was final. For example, some employer's disciplinary
codes provide for levels of disciplinary hearings, such that an employee is given a
right to appeal to a second level before referring the matter to the CMA. A
recognized procedure under the law as indicated by the Rule 12 and 13 of the
Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedures
scheduled to the Employment and Labour Relations (Code of Good Practice)
Rules, (the Code) GN 42/2007.
c) Whether the disciplinary body concluded its enquiry.
What prompted the second enquiry? For example whether the second was prompted by
substantially new evidence which could not have been reasonably known by the
employer "casting the employees misconduct in a more serious light" or whether the 2nd
enquiry was prompted by negligence or ill will on the part of the employer – the test
being whether in the circumstances of the case, the employer's decision to hold 2nd
hearing rational or unfair? As surmised by John Grogan in his treatise: DISMISSAL,
DISCRIMINATION, AND UNFAIR LABOUR PRACTICES, 2nd Edition.
Whether the misconduct was in fact proved, an issue also important when the
adjudicator is assessing the appropriate remedy following a finding of unfair termination
based on of the double jeopardy rule. This is so because where the misconduct is serious
and proved, ‘it would be unfair to compel an employee, to retain an -employee in whom
it has justifiably lost confidence’ as observed by John Grogan in his Treatise cited above.
In light of the above, the issues to be decided in this application are; one, whether the
CMA properly found that the employee was subjected to two different disciplinary
hearings for a misconduct based on same facts; and two; whether the CMA properly
found that the employee's termination was unfair because having been found not guilty
following a disciplinary hearing, he was convicted d wring a subsequent hearing on the
same facts and terminated; three, whether the CMA considered the substantive issue of
guilty of the employee; and last, whether the CMA properly exercised its discretion in
granting the re fiefs.
I now proceed to examine the principle, in light of the facts in this dispute. The
employee/respondent was terminated on 15/12/2007 following a disciplinary hearing by
136
the employer/applicant. He referred the matter as a dispute of unfair termination to the
CMA and sought as relief reinstatement without loss, of remuneration. The basis of his
claim was that he had been double jeoperdized by the employer when he prosecuted him
twice for the same offence.
According to the employee's evidence at the CMA, he was subjected to two disciplinary
hearing on the same charge on same facts. The 1st was 8/12/2007 he was acquitted and
directed to resume work. The 2nd hearing for which he was served on 12th took place on
14/12/2007. He attended that 2nd hearing but objected to it on grounds that the charge
was substantially the same to the one he was acquitted of. All the same, he was convicted
and terminated on 15/12/2007.
The uncontested facts at the CMA were that the employee was subjected to two
hearings. Under the 1st hearing, the employee was charged with willful damage to a
vehicle with registration number T 522 AFH namely overheating of the vehicle engine
on 5/11/2007. Whether he was acquitted or not is the first factual issue in dispute. At the
2nd hearing he was charged with and convicted of gross-negligence to property to wit,
driving the same vehicle number TZ 522 without water in the engine leading to
overheating the engine on 5/11/2007.
After evaluating evidence, the arbitrator decided that: ‘While the two offences differs in
semantics, they are substantially the same in law as they are connected to the same
subject matter, ... the alleged overheating of the engine on which occurred on 5th
November 2007.’ The arbitrator concluded that "termination of the complainant
(employee) was unfair in all fronts” and ordered his reinstatement without loss of
remuneration. In this application, the employer gave as ground for revision that:-
The Arbitrator erred in law in holding that the respondent (employee) herein had been,
in law double-jeopardized and so failed to consider the gravity of the offence the
respondent committed and loss consent to the applicant [...] or error material to the
merits of the case constituting injustice - and a material irregularity [...].
In response, the employee claimed that the arbitrator reached a proper conclusion
because he was double jeopardized by being prosecuted twice for offences which were
substantially the same.
At the hearing, employer/applicant appeared through its administrative officer while the
respondent was represented by a union official from TUPSE. In elaboration, the
employer submitted that at the 1st disciplinary hearing no decision was made, and no
outcome was entered on the disciplinary form because it was found at the hearing that a
137
more graver offence was con miffed and that was why the 2nd hearing, was conducted.
He faulted the arbitrator's decision that the employer intended to terminate the
employees because there was no basis for that decision.
The employee submitted that, the 1st hearing, was completed and a finding made that
the employee was not guilty, there was evidence that he was allowed to resume work.
He said no forms were completed at both hearings a fact refuted by the employer who
responded that forms were used although they were not submitted at the CMA.
The issues for decision is whether on the evidence on record, the arbitrator properly
found for the ground that the termination was procedurally unfair for breath of the
double jeopardy principle or there was an error and material irregularity as alleged by
the employer/applicant. These questions I proceed to consider in light of the facts and
factors enumerated above.
I have already stated that as a principle I agree with the arbitrator's holding that an
employee cannot be subjected to two disciplinary hearings on same facts.
After checking the facts on record, I also agree that the two disciplinary proceedings
were based on the same fact otherwise the employer's witness (the Human Resources
Manager) who testified at the CMA could have given evidence on the difference
between the two; or explained if there were exceptional circumstances necessitating the
second hearing a few days after the 1st one exonerated the employee.
Under the law, Section 37 (2) of the Act, it is the employer who has a duty to prove that
termination was fair. The employer did not show any substantive difference between the
charges in the two hearings, nor did the employer explain what new information
emerged to prompt the second one. In view of that, I find no basis to fault the
arbitrators' finding that the employee was unfairly treated when he was subjected to the
2nd trial enquiry and I therefore find that the termination thereafter was procedurally
unfair.
Further from the facts on record, I cannot fault the arbitrator's conclusion that
"termination was unfair 'in all fronts", if by that, the arbitrator meant the termination
was also substantively unfair in that on his evaluation of the evidence, misconduct by
the employee was not proved. I am unable to conclude that there was bad valuation of
evidence; I also agree it is suspicious that the employee was convicted during the 2nd
enquiry conducted shortly after the 1St, where he was acquitted. The employer gave no
special circumstances like discovery of new evidence, which made the 2nd enquiry come
with a different conclusion. I find that the arbitrator was justified under the
circumstances to believe the employee's version of events.
Based on the above, I find that this application has no merit, dismiss it and confirm tine
arbitrator's award.
138
TANZANIA REVENUE AUTHORITY V. MERINA MWAYOLE
High Court of Tanzania (Labour Division) at Dar es Salaam (Moshi, J.)

(Original CMA/DSM/TEM/1428/08)
Digest
Non-citation of proper provisions of the law renders an application before the court
incompetent - Law of Limitation Act does not apply inn the Labour Court for there
are specific provisions under the Labour Laws which provide time limitation (Rule
56 of the Labour Court Rules, G.N. 106 of 2007 – general jurisdiction of the Labour
Court over granting orders and injunctions ((Section 94(1)(b) (i) (f) of the ELRA).
Brief Facts
The respondent raised a preliminary objection against the applicant's application for
extension of time made under Rule 56 (1) (3) of the Labour Court Rules, GN. 106/2007;
and Section 14 of the Law of Limitation Act (Cal 89 R.E. 2002), as read together with Rule
24 (1) (2) (3) of the Labour Court Rules; and Sections 91 (1) (b) and 94 (1) (b) (1) (f) of the
Employment and Labour Relations Act (Cap.366 R.E. 2007); and Rule 18(6) of the Labour
Institutions (Mediation and Arbitration Guidelines) Rules, 2007 (G.N. No.67 of 2007). The
gist of the respondent’s objection was that the application was bad in law for citing wrong
provisions of Law.
Held:
1. Non-citation of proper provisions of the law renders an application before the

court incompetent.
2. That the Law of Limitation Act is not applicable as there are specific provisions
under the Labour Laws which provide time limitation, which is contained in Rule
56 of the Labour Court Rules, G.N. 106 of 2007.
3. That section 94(1)(b) (i) (f) of the E.L.R.A provides for the general jurisdiction o
the Labour Court over declarating orders and injunction.

Cases Referred to:
Aloyce Msele v The Consolidated Holding Corporation Court of Appeal of Tanzania at Dar es
Salaam, Civil Appeal No. 11 of 2002 (unreported).
139
Chama cha Walimu Tanzania v A.G. Court of Appeal of Tanzania at Dar es Salaam, Civil
Makandege Joseph (Advocate), for the Applicant.

Dominic Kashumbugu (Advocate), for the Repondent.
RULING
MOSHI, J.: The applicant's filed an application for extension of time under Rule 56 (1) (3)
of the Labour Court Rules, GN. 106/2007; and Section 14 of the Law of Limitation Act (Cal
89 R.E. 2002), as read together with Rule 24 (1) (2) (3) of the Labour Court Rules; and
Sections 91 (1) (b) and 94 (1) (b) (1) (f) of the Employment and Labour Relations Act
(Cap.366 R.E. 2007); and Rule 18(6) of the Labour Institutions (Mediation and Arbitration
Guidelines) Rules, 2007 (G.N. No.67 of 2007).
Advocate for Respondent lodged a Notice of Preliminary Objection on the point of Law
on the ground that the application is bad in law for citing wrong provisions of Law.
The advocates for both parties requested the 'Court to argue the application and PO by
way of written submission. Thus, both sides argued on both, the PO and the application.
As a procedural matter, the PO has to be determined first, hence I will do so.
On the PO, the respondent's advocate submitted among other things that the applicant
has moved the Court under S. 94(1)(b)(i) of the Employment and Labour relations Act
(No.6/2004). This is wrong as this provision is not an enabling provision. 'That the
citation of wrong provision of law, makes the application incompetent because the
application is neither for a declaration nor is it an application for injunction. He cited a
Court of Appeal case of Chama cha Walimu Tanzania v A.G. Court of Appeal of Tanzania at
Dar es Salaam, Civil Application No. 151 of 2008 (unreported). In this case the Court held
that non citation or wrong citation of enabling provision renders the proceedings
incompetent (at page 17) and at page 20 it was stated that: ‘It is clear from its plain
language that S. 94(10 (a) (b) (i) (ii), (e) (d) (e) and (f) (i) and (ii), of the Employment and
Labour Relations Act was never intended to be an enabling provision for instituting any
proceedings before the Labour Court.’
The applicant's advocate responded that the application has not been brought solely
under S.94 (1) (b) (i) (f) of the Employment and Labour Relations Act (E.L.R.A) that
among others, it has been brought under Rule 56 (1) (3) of the Labour Court Rules, 2007
(G.N. No.106/2007) S. 94 of the ELRA has been cited just as one of such other enabling
provisions which generally empowers this Court to adjudicate the applications. He stated
further that the cited case of Chama cha Walimu Tanzania (Supra) is not authoritative as,
140
in this case, S.94 (1) (b) (i) (f) of the ELRA has been cited with R.56 (1) (3) of the Labour
Court Rules.
The Court has in various occasions decided that non citation of enabling provision or
wrong citation of enabling provisions renders the application incompetent. See the cases
of Aloyce Msele v The Consolidated Holding Corporation Court of Appeal of Tanzania at Dar es Salaam,
Civil Appeal No. 11 of 2002 (unreported), a Court of Appeal decision. The same was quoted
with appreciation in the cited case of Chama cha Walimu Tanzania (Supra).
If we refer back to the Notice of Application which is dated 8/5/2009; as shown in

paragraph one of this Ruling; and it is apparent on record that the enabling provisions
were wrongly cited. To reiterate what is cited; there are Labour Court Rules, the Law of
Limitation Act, the Labour Institution's (Mediation and Arbitration Guidelines) and the
well discussed S. 94 (1) (b) (i) (f) of, ELRA.
In this case, the Law of Limitation Act is not applicable as there are specific provisions
under the Labour Laws which provide time limitation. In this Court, the Extension of
time limits is provided for in the Labour Court Rules, G.N. 106; see Rule 56; S.91 (1) (b) of
the E.L.R.A provides for revision of Arbitration award; S.94(1)(b) (i) (f) of the E.L.R.A
provides for the general jurisdiction o the Labour Court over declarating orders and
injunction; and Rule 18 (6) of the Labour Institutions (Mediation and Arbitration
Guidelines) Rules, 2007 (G.N.No.67/2007). Follows parties to arbitration proceedings to
make application to the Labour Court to set aside the award on the basis of irregularities
on the arbitrator proceedings.
As submitted by the respondent's advocate, the above citation was wrong. I therefore
basing on the aforesaid, find that the application is incompetent for wrong citation of
enabling provisions of Law. It is struck out accordingly.
TANZANIA TELECOMMUNICATIONS CO. LTD. V. AUGUSTINE KIBANDU

Date of Ruling: 9 April 2010

(Original CMA/DSM/KIN-ILA/4081/08)
Digest
Non-citation of proper enabling provisions of the law renders an application before
the Labour Court incompetent – the right to be heard in employment termination
cases embodies the constitutional right not to be condemned unheard as part of fair
labour practice in the workplace - which are part of the objectives of the labour laws
141
[Section 3(a), (f) and (g) of the ELRA].
Brief Facts
Dissatisfied by the termination of his emp0loyment, the respondent referred the matter
to the CMA, alleging unfair termination on ground that the reasons for his termination
were not valid (substantive unfairness), and that the procedure used to terminate him
was also unfair (procedural unfairness). The arbitrator found both grounds established by
the respondent; ordered reinstatement and payment of salaries from the date of
termination. Aggrieved with this award, the applicant applied to the Labour Court for
revision of the CMA’s decision submitting that the same was in err and ought to be
revised.
Held:
1. That non-citation of proper enabling provisions of the law renders an application

before the Labour Court incompetent.
2. That the right to be heard in employment termination cases embodies the
constitutional right not to be condemned unheard, that right is part of fair labour
practice in the workplace - which are part of the objectives spelled out in section
3(a)(f) and (g) of the ELRA.
Cases Referred to:
National Bank of Commerce v Sadrudin Meghji Court of Appeal of Tanzania at Dar es

Salaam, Civil Application No. 20 of 1997 (unreported).
Almas Iddie Mwinyi v NBC & Another Court of Appeal of Tanzania at Dar es Salaam, Civil
Sea Saigon Shipping Ltd v. Mohamed Enterprises (T) Ltd. Court of Appeal of Tanzania at
Dar es Salaam, Civil Appeal 37/2005 (unreported).
Paulo Karlo Kalomo (Advocate), for the Applicant.

Dar es Salaam Law Chambers (Advocates), for the Respondent.
RULING
RWEYEMAMU, J.: The respondent's employment was terminated on 3/7/2008.
Dissatisfied, he referred the matter to the Commission for Mediation and Arbitration
(CMA) on 16/7/2038, using the Statutory Form No. 1 alleging unfair termination on
ground that the reasons for his termination were not valid (substantive unfairness),
and that the procedure used to terminate him was also unfair (procedural unfairness).
The dispute was arbitrated and an award subject matter of this revision application
issued on 25/5/2009. In the impugned award, the arbitrator found both grounds
established by the respondent; ordered reinstatement and payment of salaries from
the date of termination. The applicant believes the decision was in err and ought to be
revised, the position refuted by the respondent. Hearing of the matter proceeded by
way of written submission.
In the affidavit in support of the application, the applicant sought revision on the
142
following grounds:
(i) That the arbitrator E. Mwindunda erroneously misguided himself by not
recording and considering witness evidence tendered by Defence Witnesses
(DW 4 Mary Lauwo, DW5 Macdard Lyimo, DW6 Silvester Ruchibwingango
and DW7 Paul Onesmo Sanare) whose evidence was to the effect of explicitly
explaining the cause of the respondent's termination.
(ii) That such omission of recording relevant material facts from the statements
issued by these witnesses has led the Applicant to suffer manifestly the
resultant costs for reinstatement and other costs which were derived from he
said erroneous decision.
(iii) That the factual emission above was such that all Defence Witnesses denied
have requisitioning or receiving the said sleeves that were stolen by the
Respondent who had allegedly purported to have sent them through Ems and
by bus transport.
(iv)That it is these patent omissions on the face of the record that the Applicant is
now praying to this court to rectify by way of review or retrial so that justice
may triumph."
In the counter affidavit, the respondent submitted in brief that:
(a) Evidence was properly recorded and considered, the evidence had no weight to
prove/justify the allegation.
(b) Para [iv] and [v] are denied and:
(c) The evidence proves that he was not afforded opportunity to be heard during
the disciplinary proceedings.
On 29/11/2009 hearing of the application was ordered to proceed by way of written
submissions which were thereafter filed by one Paulo Karlo Kalomo indicated as Counsel
for the applicant, and an unnamed advocate from Dar es Salaam Law Chambers for the
respondent.
The applicant's subimsion was to the effect that; its defence witnesses (4-7)'s evidence
was not given due weight and in respect of substantive issue, that the respondent gave
no evidence save forged receipts, to prove he sent missing equipment-subject matter of
the misconduct charge.
The respondent initially raised some preliminary points to the effect that; the application
was incompetent because relevant provisions of the law were not cited in the clamber
application. He cited the CAT authorities in National Bank of Commerce v Sadrudin
Meghji Court of Appeal of Tanzania at Dar es Salaam, Civil Application No. 20 of 1997
(unreported) to support the proposition that the application was incompetent because
the court has not been properly moved; Almas Iddie Mwinyi v NBC & Another Court of
Appeal of Tanzania at Dar es Salaam, Civil Application No. 88 of 1998 (unreported)
holding that both wrong citation and no citation renders an application incompetent; a
position emphasized in Sea Saigon Shipping Ltd v. Mohamed Enterprises (T) Ltd. Court of
Appeal of Tanzania at Dar es Salaam, Civil Appeal 37/2005 (unreported).
On the issue of wrong citation, I find at the outset that in my opinion, what is vital is to
follow the format set for applications under rule 24 of the Labour Court Rules, GN
106/2007. The rule prescribes under Rule 24 (2) and (3) vital content for applications –
like applications for revision under rule 28. In this case, the applicant filed a notice of
review under Rule 27(5) of the Rules; it is on this ground I find that the court has not
143
been properly moved.
That apart, I have considered the parties arguments in light of the facts on record. Issues
framed by the arbitrator were: One, whether misconduct was proved as per - Section 37
(2) (a) & (b) of the Employment and Labour Relations Act, 6 of 2004 i.e. whether
termination was substantively fair and: Two whether the respondent's termination was
procedurally unfair in terms of Rule 13 of the Employment and Labour Relations (Code of
Good Practice) Rules, GN 42/2007.
Regarding the 2nd issue, the arbitrator reasoned as follows:
Utaratibu huu ndio dhana katika kanuni ya 13 cha GN.42/2007 mlalamikaji hakutendewa
yote haya. Mlalamikiwa kupitia shahidi wake DW1 Mr. Mhando amesema mlalamikaji
alijitetea kupitia maandishi. Nimesoma barua za tuhuma na hata ya kuachishwa, utetezi
unaosemwa kwamba aliufanya ni ule ambao alimjibu Auditor, huu hauwezi kuwa ni utetezi
kwa sababu utetexi ambao sheria inaujua ni ule anaoutoa baada ya kupaia charge-sheet na
pale anapopewa fursa ya kuhoji mashahidi wa mwajiri. Utetezi kabla ya, charge-sheet si
muafaka kisheria, rejea kanuni yea 13 (1)(2) (3) ya G-N. 42/2007. DW1 amesema pia kwamba
mlalamikaji hakustahili kupewa fursa ya kujitetea kwa sababu kosa lake lipo wazi kwa hiyo
hakustahili kuunda kamati ya nidhamu, hoja hii haina mashiko kisheria, katika shauri hili
mlalamikaji amepinga kosa wakati wote kwahiyo uwazi haupo. Uwazi wa kosa unakuwepo
mtu akikiri kosa, hata hivyo katika hali hiyo kamati bado lazima iende kujadili adhabu na
kusikiliza utetezi adhabu (mitigation), rejea kanuni hiyo ya 13 GN 42.
Kwa hiyo uachishaji huu ulifanywa kwa kukiuka utaratibu.. Mlalamikaji amejitetea pia
kwamba yeye hangeweza kufuata utaratibu kwa sababu ametumia haki yake ya kimkataba
ya kuvunja, mkataba wao, ametumia kifungu cha 41 cha ELRA kama kinga kwake.
Nimesoma kifungu hiki na kukiona kiko "subject" kwa kifungu cha 37 cha ELRA kama
hakuna "Mutual agreement" kuvunja mkataba.(Emphasis mine)
Based on the evidence on record, the respondent was not given a fair hearing in terms of
Rule of the Code; as such the arbitrator's reasoning cannot be faulted. The applicant
admitted that the respondent was not afforded proper opportunity to be heard. Perhaps
it is worth stressing that a right to be heard in employment termination cases embodies
the constitutional right not to be condemned unheard, that right is part of fair labour
practice in the workplace - which are part of the objectives spelled out in Section 3 (a)(f)
and (g) of the Act. Be that as it may, I agree with the arbitrator that on the evidence
adduced and as demonstrated uncontested, the respondent's termination was
procedurally unfair. The application is for that reason dismissed.
M/S NUFAIKA DISTRIBUTORS V.

TUMAINI KUNGURU & OTHERS
Misc. Application N0. 24 of 2009
Date of Ruling: 30 September, 2010
(Original CMA/MBY/4-6/12/2008)
Digest
144
A party seeking to challenge the basis of an ex-parte arbitral award made by the CMA
must file an application in the CMA and satisfy showing good grounds for failing to
attend hearing – after CMA dismisses an application to set aside ex-parte award
applicant to apply for revision of the same to the Labour Court.
Brief Facts
The applicant made an application in the Labour Court for extension of time to file an
application for revision out of time. The CMA had issued an ex-parte award in favour of
the respondent per Section 87(3)(b) of the Employment and Labour Relations Act (No. 6
of 2004) read together with Rule 14(2) (ii) of the Labour Institutions (Mediation and
Arbitration Guidelines) Rules (GN 67 of 2007) because the employer failed to attend
mediation hearing. At the hearing in the Labour Court, the applicant argued that it was
unaware of the dispute at the CMA and only became aware of the ex-parte award after
they were served with summons for execution. And further that they were not aware of
the case because their offices in Mbeya were closed. However, the respondent rejected
this contention, submitting that the applicant was properly served with the respondents
Referral Form No. 1; that the applicants were served twice at Mbeya and the summons
were received and signed as such it was not true that they were unaware of the case. In
addition, the respondents stated that the CMA does not process dispute, unless satisfied
that service has been duly effected.
Held:
That under Section 87(5)(a) and (b) of the ELRA, a party seeking to challenge the
basis of an ex-parte arbitral award made by the CMA must file an application in the
prescribed manner to the CMA and satisfy it that there were good grounds for failing
to attend hearing. It is only in the event such application is dismissed by the CMA
that the applicant can apply for revision of the same to the Labour Court.
No Case Referred to
Mr. Anthony Arbogast (Advocate), for the Applicant.

Mr. Majula (from TUICO, a Trade Union), for the Respondent.
RULING
RWEYEMAMU, J.: This is an application for extension of time to the applicant to file an
application for revision out of time, filed in this court on 21/7/2009. The application arises
from the following background:
On 15/1/2009 the Commission for Mediation and Arbitration (CMA) issued an exparte
award in favour of the respondent/employees following its decision made as per section
87(3)(b) of the Employment and Labour Relations Act, 6/2004 read together with Rule
14(2) (ii) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, GN 67,
145
2007. That is, the mediator decided the complaint ex-parte because the employer failed to
attend mediation hearing.
According to ground 4 of the affidavit sworn by Mr. Anthony Arbogast counsel for the
applicant and elaborated upon at the hearing, the employer was unaware of the dispute
at the CMA and only became aware of the ex-parte award on 22/6/2009 after they were
served with summons for execution. And further that they were not aware of the case
because their offices in Mbeya were closed.
That submission was refuted by the respondents through their representative Mr. Majula
from TUICO trade Union who submitted in response that; the applicant was properly
served with the respondents referral form number 1; that the applicants were served twice
at Mbeya and the summons were received and signed as such it was not true that they
were unaware of the case; that the CMA does not process dispute; unless satisfied with
service.
The decision in this application depends on entirely different grounds other than those
argued by the parties. The application must fail because it is prematurely before this
court.
Under Section 87(5)(a) and (b) of the Act, a party seeking to challenge the basis of an
ex-parte award must file an application in the prescribed manner to the CMA and satisfy
it that there were good grounds for failing to attend hearing. The reasons advanced by
the applicant in this application for failing to appear must be made to the CMA. It is only
in the event such application is dismissed by the CMA that the applicant can apply for
revision of the same to this court. It is for that reason I find the application misplaced and
dismiss it.
ARBOGAST BRUNO V. TAQFIQ BUS SERVICE GEITA
Digest
146
CMA‘s duty to served Referal Form No. 1 on the respondent before proceeding to hear
and determine it - CMA cannot be processed unless it has condoned late referral –
limitation of time is not a subject parties can agree on during mediation – failure to
keep proper record vitiates the entire CMA proceedings including the resultant
award, which are amenable to be quashed by the Labour Court.
Brief Facts
The applicant sought revision of the CMA by the Labour Court on ground, inter alia,
basically that the arbitrator erred when he ignored the evidence adduced by three
witnesses and did not refer to it in his decision/award. Instead, the arbitrator referred to
his own opinion, like when he stated that the employer had lost faith in the employee
while there was no evidence to that effect. Further, that the arbitrator ignored the fact
that the applicant was not given a right to be heard before the disciplinary committee.
Held:
1. That after receiving Referal Form No. 1, the CMA has a duty to served the same on
the respondent as per rule 2P (5); then it proceed to hear and determine it under
rule 29 (10) or (11).
2. That disputes referred to the CMA cannot be processed unless the CMA had
condoned the delay.
3. That the issue of limitation of time is not a subject parties can agree on during
mediation.
4. That the CMA is not properly seized with jurisdiction when it processes a referral
filed out of
time, without condonation.
5. That failure to keep proper record vitiated the whole CMA proceedings,
including the resultant award, which are amenable to be quashed by teh Labour
Court.
Cases Referred to:
Edna Pendael Tenga v Parokia ya Bugando High Court of Tanzania (Labour Division) at
Mwanza, Revision No. 19 of 2007 & 9 (unreported).
Grace Wanna v Terrain Service High Court of Tanzania (Labour Division) at Dar es Salaam,
147
Peter Mrema v Michael Kusaga High Court of Tanzania (Labour Division) at Dar es Salaam,
Nyanjugu S. Masoud (from TAMICO, a Trade Union), for the Applicant
Mwanalyela (Advocate), for the Respondent.
RULING
RWEYEMAMU, J: The applicant/employer seeks revision of the Commission of
Mediation Arbitration (CMA) award dated 24/9/2007 on grounds contained in her
affidavit basically that the arbitrator erred when he ignored the evidence adduced by 3
witnesses and did not refer to it in his decision/award. Instead, the arbitrator referred to
his own opinion, like when he stated that the employer had lost faith in the employee
while there was no evidence to that effect. Further, that the arbitrator ignored the fact
that the employee/applicant was not given a right to be heard before the disciplinary
committee.
The application was initially contested by the respondent who was represented by an
advocate Mr. Mwanalyela at the hearing. Counsel first submitted that the award shows
that all benefits were paid to the applicant, that because the applicant accepted
payment, the implication is that he accepted his termination. The issue of reinstatement
and payment of salary from termination is baseless. In case Civil Appeal 127/2005 the
CAT, in case Tanga Cement (A copy of which I supply) held that payments cannot be for
days after the employee was terminated but before an order for reinstatement.
Counsel, however, continued to submit that; we could not get a record of proceedings the
record was not properly kept, on that ground we counterclaim and pray that proceedings
should be quashed for failure to observe legal requirements. Due to that irregularity, even
the award does not qualify as an award as per requirements of rule 27 of GN 67/2007. We
concede that an order for retrial will be best so that rights of both sides can be properly
established.
Two fundamental issues it this case are undisputed. First, it is undisputed by both parties
that the referral of the dispute to the CMA was time barred; that the referral was
accompanied with the Statutory Form No 7, the application for the late referral-
condonation but which was not decided either way by the CMA before proceeding with
arbitration. This court has held in a number of cases that:
Disputes referred to the CMA cannot be processed unless the CMA had condoned the
delay. To my understanding, the issue of limitation of time is not a subject parties can
agree on during mediation, and even then, there is nothing on record to suggest that the
148
issue was amicably settled. Now, was there such condonation before the dispute was
arbitrated I albeit exparte by the CMA?
After receiving the respondents application, the CMA should have served the same on the
applicant (employer) as per rule 2P (5) then proceeded to hear and determine it under
rule 29 (10) or (11). That did not happen in this case, thus the CMA was not properly
seized with jurisdiction when it processed the respondent's referral filed out of time,
without coordination. See: Peter Mrema v Michael Kusaga High Court of Tanzania (Labour
Division) at Dar es Salaam, Labour Revision No. 138 of 2008 (unreported).
In the circumstances, I similarly find that in this case, the CMA proceeded without
jurisdiction. This ground itself vitiates the whole proceedings including the award as held
above, but I will go on to consider the key issue raised by the parties- teat of irregularities
of the arbitration proceedings.
Two, both parties submitted that the CMA arbitration proceeded were conducted with
material irregularity. After going through the CMA record in question, I completely agree
with them. The record is scanty, incoherent and recorded in total disregard of the rules
and guidelines issued for conducting arbitration.
I note that the arbitration proceedings were conducted way back in 2007, when the law
was still relatively new and its procedures unfamiliar; I also note that arbitration in this
case was conducted by the same arbitrator who conducted another matter I dealt with
recently, where the same shortcomings were noted. In view of that, I find it useful and
time saving to repeat what I said in that earlier case. It was the case of Edna Pendael
Tenga v Parokia ya Bugando High Court of Tanzania (Labour Division) at Mwanza,
Revision No. 19 of 2007 & 9 (unreported) and I observed that:
This court has given directions in a number of cases on the necessity to keep a proper
record of proceedings. Fortunately, most such records now emanating from the CMA
comply with the requirements, and that this decision was made way back in 2007, before
the court had extensively discussed the issue. For benefit of the arbitrator in question
however, I shall quote this courts discussion on the issue in one such decision.
In the case of Project Manager, Barrick Gold Mine (Bulyanhulu) v Adriano Odhiambo High
Court of Tanzania (Labour Division) at Mwanza, Labour Revision No. 290 of 2008
(unreported), the court observed among others that:
I have checked the CVA 'arbitration record; the applicant's submission that the arbitrator
failed to keep a record of proceedings as prescribed under Rule 32 of the Labour
institutions (Mediation and Arbitration) Rules, GN 64/2007 (M&A Rules) is founded. The
record bears the applicant's submission out in that the proceedings are scanty, and mixed.
Second, it is not clear where mediation ended and arbitration started an issue I address
149
hereinafter.
This Court has stressed for a number of times including the case cited by counsel of
at Dar es Salaam, Revision No. 11 of 2008 (unreported), where Mandia, J. (as he then was)
made a number of observations which are applicable to the facts of this case. The Hon.
Judge noted, among others, that in conducting arbitration proceedings;
[…] emphasis (is) on regular and orderly progress in law and procedure from
commencement of an action to execution of Judgment [...] the functions of arbitration are
quasi judicial, so arbitrators should insist on basic characteristics of orderliness and
regularity in execution of their cuties, Luckily the Commission has made elaborate rules of
procedure (published as GN 64/2007 and GN 67/2007) [...]. These rules of procedure are
subsidiary legislation and arbitrators are bound to follow rules set therein.
In that case, the court held that failure to keep a proper record vitiated the whole
proceedings including the resultant award, which it proceeded to quash. Building on that
principle, fails court observed in Grace Wanna v Terrain Service High Court of Tanzania
(Labour Division) at Dar es Salaam, Application No. 16 of 2007 (unreported) that:
To arrive at an open record of proceedings prescribed under rule 32 of the (M&A rules.,
the CMA, using its powers under section 15 (1) (f) of the of the Labour Institutions Act 7 of
2004, issued the Labour Institutions (Mediction and A titration Guidelines) Rules, GN 67
of 2007, (hereinafter the Guidelines) which specifies stages and contents of arbitration
proceedings and if I may add, seeks to give arbitration proceedings attributes of legal
proceedings. The stages to be covered are contained in Rule 18 to 26 of the guidelines.
Proceedings complying with the guidelines will clearly show issues to be arbitrated upon,
evidence led by each side to prove or disprove the issues, which evidence is received as per
Rule 25; it will contained arguments by way of written stbmi5sions which should be
indicated in the proceedings, or made part of I` e record where they are received orally,
also where the arbitrator allows closing arguments, they should be systematically included
in the record. Further, where there were preliminary nary issues, evidence and arguments
by each side should be indicated in the record. Finally proceedings should contain the
award which should indicating the decision and reasons thereof on each issue resized and
a summary on matters itemized under guideline 27 (a) to (f).
To make such proceedings orderly would by necessity require numbering the pages in the
cause of proceedings sequentially, it would require that the written notes be kept in a
retrievable form and although Rule 32 (2) of the (M&A rules) permit "legible handwritten
notes". when the same are required by i)arties for their records, revision purposes etc., a
typed copy certified by the arbitrator should be supplied where applied for under Rule 32
(4) of the Rules. That, in my opinion, is the only sure way this court can tell/understand
what transpired during the arbitration process and what aspects are faulted or supported.
150
I am aware that Rule 19 of the Guidelines empowers the arbitrator to determine how
proceedings should be conducted, I wish to stress that such powers deal with matters
life which party should start, how the dispute is introduced, whether closing remarks
will be taken, whether to adjourn proceedings and the like, but such power do not allow
an arbitrator to jump, skip the vital stages, or fail to keep a proper record.
I hope the arbitrator in question has since understood the proper way to conduct
arbitration.
To return to this case, I hold that the arbitration was conducted with such material
irregularity that the, proceedings and subsequent award cannot be allowed to stand.
Such fundamental irregularity vitiates the whole proceedings. I accordingly revise and
quash the whole of the CMA proceedings including the award, remit the file to the CMA
with an order that the dispute be process afresh according to law. It is so ordered.
TANZANIA REVENUE AUTHORITY V. DAVID MAEDA
High Court of Tanzania (Labour Division) at dar es Salaam (Rweyemamu, J.)
Digest
Advocate’s negligence to take appropriate action at the prescribed time not sufficient
reason for extending time.
Brief Facts
One year after the CMA issued an award in favour of the respondent, the applicant filed
in the Labour Court an application seeking review/revision. The applicant attributed the
delay in filing teh application to teh fact that there was delay it obtaining decision and
lack of formal notice, which was sufficient grounds for delay per caselaw. Citing a
decision of the Court of Appeal, the applicant contended that where judgment is
delivered without formal notice, lack of diligence could not be attributed to the applicant.
It was the applicant’s contention that the CMA award was delivered in its absence and
151
without notice, the applicant only learnt of the decision later at which time the required
period had expired. In addition, the applicant argued that S. 19 (2) of Law of Limitation
Act (Cap 89, R.E. 2002), read together with S. 43 (f) of the ELRA, time requisite for
obtaining a copy of decision sought to be reviewed has to be excluded in computing
period of limitation.
Further, the applicant submitted that the delay was caused by the procedure of handling
litigation in the its premises and changes of counsel; and, as such, the court being part of
the society had to take judicial notice of the ways in which human activities, including
organizational activities, are transacted in society. In response, the respondent contested
the applicant’s grounds, submitting that the CMA award was issued in the presence of
both parties because both parties had notice of it; and a copy of the award was
subsequently served on the applicant. The issue for determination by the Labour Court
was whether the applicant had adduced good reasons for delay.
Held:
That negligence on the part of counsel to take appropriate action at the prescribed time
is not sufficient reason for extending time in civil litigation.
Case Referred to:
Stanzia Stanley Kessy v The Registered Trustees & 3 Others Court of Appeal of Tanzania at
Dar es Salaam, Civil Application No. 46 of 2005 (unreported).
Ms. Feliciana Nkane (Legal Services Department) for the Applicant

Respondent appeared in person.
RULING
R.M. RWEYEMAMU, J.: On 12/12/2008 the Commission for Mediation and Arbitration
(CMA) issued an award in favour of the respondent/employee. On 23/12/2009 more than
a year later, the applicant/employer filed this application supported by affidavit seeking
its review/ revision. The application has been brought under Rule 56 (1) (3, of the Labour
Court Rules, 2007 (GN, NO, 106 of 2007); and Section 14 of the law of Limitation Act (Cap
89 R.E. 2002), as read together with Rule 24 (1) (2) (3) of the aforementioned Labour
Court Rules; and Sections 91 (1) (b,) and 94 (1) (b)) (i) (f) of the Employment and Labour
Relations Act (Cap. 366 R.E. 2007); and Rule 18 (6) of the Labour Institutions (Mediation
and Arbitration Guideline) Rules, 2007(GN.GNNo.67 of 2007); and any other enabling
provisions of the law.
The application was allowed to be argued by way of written submission; the applicant's
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submission was filed by Feliciana Nkane from its legal services department, while the
response was filed by counsel from Trustmark attorneys. In this ruling, I will deal with
grounds which relate to the issue in question namely whether the applicant has adduced
good reasons for delay. The applicant's arguments relating to that issue were in part that:
1. There was delay it obtaining decision and lack of formal notice – which is
sufficient grounds for delay as per decision in Stanzia Stanley Kessy v The
Registered Trustees & 3 Others Court of Appeal of Tanzania at Dar es Salaam, Civil
Appl. No. 46 of 2005 (unreported), where judgment is delivered without, formal
notice, lack of diligence could not be attributed to the applicant. Award delivered
on 12/ 12/2008 in absentia and without notice of delivery of the same, the applicant
learnt of the decision in January 2009, at the time the required period of 15 days,
had expired.
2. Under 19 (2) of Law of Limitation Act, (Cap 89, R.E. 2002) read together with
section 43 (f) of the Act, time requisite for obtaining a copy of decision sought to
be reviewed has to be excluded in computing period of limitation.
3. Further delay was caused by procedure of handling litigation in the employer's

premises and changes of counsel, the court being part of the society have to take
judicial notice of the ways in which human activities, including organizational
activities, are transacted in society.
In response to the above, the respondent submitted that:
1. The CMA award was issued in presence of both parties as such the applicant had
notice of it.
2. A copy of the award was served on the applicant on 17/12/2008.
3. Regarding the issue of "consent of the applicant's top management and change of
counsel’s the respondent prays that they be disregarded by the Court because, and I
quote:
[…] this is a court of la v vested with a duty of administering justice in accordance with the
governing rules which parties should abide with. That being the case the Applicant was
supposed to abide with the governing rule. The Applicant's polices have no any place in
the court's role of administration of justice. It is therefore not the duty of the Court to
take judicial notice of how individual parties organize their activities in the society, rather
it is the duty of individual to observe and adhere to the court processes pursuant to the
established rules of procedure.
I have checked the CMA record and carefully considered the parties' submissions
including the above and decide that the applicant has failed to show good/justifiable
reasons for delay. Why?
The argument that the applicant was not aware that an award had been issued is
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disproved by the CMA record which indicates that the award was issued in presence of
both sides.
The argument that this court should take judicial notice of circumstances of the
applicant's administration systems is to say the least absurd. Counsel asks the court to
take judicial notice of inefficiencies in the applicant's management of its legal
department. I believe no court can do that.
In fact, being a large and important organization with a whole department presumably
manned by a number of personnel; is reason to conclude that failure to act was an
inexcusable negligence on its part. It is now a long observed principle by courts in this
country that: ‘negligence on the part of counsel is not sufficient reason for extending
time.’
In the result, I find that the applicant has failed to adduce good reasons for delay; find the
application meritless and dismiss it.
GRACE WARIOBA V. TWITANGE SEC SCHOOL


(Original CMA/MZ/SENG/207/2007)
Digest
CMA to specifically decide whether termination was fair or not - because it is a
fundamental and material issue to the determination of subsequent remedies -
failure to determine this issue renders the proceedings and award reviewable by the
Labour Court - arbitrator’s failure to frame issues at commencement of arbitration
renders the CMA proceedings irregular and in violation of the rules of procedure
(Rule 22 of Mediation and Arbitration Guideline).
Brief Facts
After her employment was terminated by the respondent, the applicant referred the
dispute to the CMA, alleging constructive unfair termination of employment. She
contended that the respondent refused to give her a letter of employment; refused pay
her salaries for 4 months; and did not allow her to go on leave for two years. She also
alleged that the respondent did not pay her house rent for 9 months and failed to assign
her any work. The CMA found that the applicant was employed by the respondent; that
the applicant did not commit any misconduct (i.e. failure to bank the respondent's
money); and that the respondent made the applicant stay idly at home; therefore, the
applicant was entitled to notice; severance pay; 10 days salary and one month leave.
However, the applicant was aggrieved by the CMA award and applied for revision in the
Labour Court on ground that the arbitrator erred in failing to consider her other claims –
i.e. the CMA erred in not deciding whether termination was fair or not, and consequent
154
to that error, the subsequent payment ordered were contrary to Section 40 (a) (b) of the
ELRA. In response, the respondent submitted that the applicant absconded from duty for
84 days, and that no repatriation costs were payable because the applicant was recruited
at a place where she was terminated.
Held:
1. That the issue as to whether termination was fair or not should specifically be
decided by the CMA because it is a fundamental and material to the determination
of subsequent remedies, which depend to a large extent on the decision on that
issue. Failure to determine this issue renders the proceedings and award
reviewable by the Labour Court.
2. That the arbitrator’s failure to frame issues at commencement of arbitration,
which would have enabled parties to lead focused evidence and enabled a precise
finding on them, renders irregular and in violation of the procedure prescribed
under Rule 22 of Mediation and Arbitration Guideline.
CMA proceedings proceedings and award quashed, the matter to commence afresh.
No Case Referred to
Khassim (Advocate), for the Applicant.

Lucy Masele (Company Director), for the Respondent.
RULING
RWEYEMAMU, J.: The applicants' employment was terminated on 25/7/2007 and she
appealed against the employee/respondent's decision vide Statutory Form No 1 received
at the Commission of Mediation and Arbitration (CMA) on 26/7/2007. In the referral she
alleged what amounts to constructive unfair termination of employment to wit: the
respondent refused to give her a letter of employment; pay salary for 4 months; allow her
to go on leave for two years; pay house rent for 9 months and failed to assign work. On
the above grounds she sought a finding of unfair termination and an order for the
respondent to give her a termination letter and pay statutory benefits, plus other benefits
due, which she itemized in her “written submission” including repatriation costs.
Three issues were framed in the award; first, whether the applicant was employed by the
respondent which the arbitrator answered in the affirmative. Second, whether the
applicant committed misconduct to wit failure to bank the respondent's money - which
the arbitrator answered in the negative. Third, whether the applicant absconded from
work without good cause - this was not directly decided but the arbitrator observed that
the respondent made the applicant stay idly at home; therefore, the applicant was
entitled to notice; severance pay; 10 days salary and one month leave.
At the hearing, the applicant was represented by Mr. Khassim, advocate, while the
respondent was represented by one Lucy Masele, who identified herself as director of the
respondent firm.
The applicant sought revision on ground that the arbitrator erred in failing to consider
her other claims; and finding that the place of employment was not proved while no
evidence was led on the issue. The rest of the grounds in the affidavit were a repetition of
her claim at the CMA. At the hearing, the applicant adopted those grounds and added
that the CMA erred in not deciding Whether termination was fair or not, and consequent
155
to that error, the subsequent payment ordered were contrary to section 40 (a) (b) of the
Employment and Labour Relations Act, 6/2004.
In response, the respondent submitted that the applicant absconded from duty for 84
days, and that no repatriation costs were payable because the applicant was recruited at
Nyakato in Mwanza, where she was terminated.
It is clear from the award that the key issue, namely whether termination was fair or not
was not specifically decided. That was a fundamental and material error since
subsequent remedies depend to a large extent on the decision on that issue. The
proceedings and award are for that reason reviewable. Further, the CMA record reveals
another materiel irregularity.
I have checked the record; the arbitrator failed to frame issues at commencement of
arbitration which would have enabled parties to lead focused evidence and enabled a
precise finding on them. That is exactly the kind of procedure prescribed under Rule 22
of the Labour Institutions (Mediation and Arbitration Guideline) Rules, GN 67/2007. The
said rule provides:
22(1) Not applicable.
(2) The arbitration process involve the following five stages
(a) introduction;
(b) opening statements and narrowing of issues;
(c) evidence;
(d) argument; and
(e) award.
The award so obtained would be as prescribed under rule 27 of the Guidelines, that is, it
would have made a decision on the different issues raised in this dispute, but it did not. I
find failure by the arbitrator to adhere to the Guidelines to have been a material
irregularity leading to injustice. That is the second ground I revise and quash the CMA
proceedings including the award and subsequent orders. The CMA file ordered to be
returned to the CMA for the process to commence afresh according to law.
CMA proceedings proceedings and award quashed, the matter to commence afresh.
156
JOSEPH C. MAGESA V. TANZANIA BREWERIES LTD.
(Original MZA/CMA/2007/46)
Digest
Disputes about fairness of termination must be referred to the CMA within 30 days and all
other labour disputes within 60 days (Rule 10 of the Labour Institutions (Mediation and
Arbitration) Rules, GN 64/2007, (GN 64/2007)) – the CMA lacks jurisdiction to proceed in a
time barred dispute unless an application for condonation has first been heard and decided
– CMA proceedings that are not properly recorded and are thus poorly maintained are
irregular, which vitiates the whole proceedings (Rule 32 of the Labour Institutions
(Mediation and Arbitration) Rules) – being fundamental, jurisdiction can be raised at any
stage of the proceedings and the court can raise it suo motu – in material irregularity, the
Labour Court is empowered can act on its own motion where it is found that the CMA
exercised jurisdiction not vested in it by law or if it acted with material irregularity (Rule 28
(1) (c) of the Labour Court Rules) – the spirit of the labour laws in this country seeks to
resolve labour disputes not only effectively but also expeditiously.
Brief Facts
In an application for revision of the CMA award, the applicant, the respondent
successfully filed a notice of preliminary objection against that application on ground that
it ought to have been filed under Rules 24 and 28 but not under Rule 27(8) of the Rules.
In its ruling, the Labour Court sustained the objection but instead of striking out the
application, in the interest of substantive justice, it gave extension to the applicant to file
a proper application. After necessary papers were filed, the application was registered
afresh the applicant then filed another preliminary objection on two grounds against the
respondent's counter – affidavit, which was dismissed by the Labour Court and the
application case fixed for hearing.
However, hearing could not proceed on the fixed date due to the absence of counsel for
the respondent, who was prevented from appearing by good cause- the plane he boarded
failed to land in Mwanza. The usual next step would have been to adjourn the case for
hearing to an undetermined future date; but the Court noted some serious jurisdictional
and material irregularities such that even if hearing were to proceed, the final result
would be the same - nullification of the CMA proceedings.
Held:
1. That under rule 10 of the Labour Institutions (Mediation and Arbitration) Rules, GN
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64/2007, (GN 64/2007), dispute about fairness of termination must be referred within 30
days and all other labour disputes within 60 days.
2. That the CMA lacks jurisdiction to proceed in a time barred dispute unless an
application for condonation has first been heard and decided.
3. That CMA proceedings that are not properly recorded and are thus poorly maintained
as prescribed under rule 32 of the Labour Institutions (Mediation and Arbitration) Rules
are irregular, which vitiates the whole proceedings.
4. That a question of jurisdiction is fundamental, it can be raised at any stage of the
proceedings and the court can raise it suo motu.
5. That regarding the issue of material irregularity, the Labour Court is empowered, rule
28 (1) (c) of the Labour Court Rules, to act on its own motion where it is found that the
CMA exercised jurisdiction not vested in it by law or if it acted with material irregularity.
6. That the spirit of the labour laws in this country seeks to resolve labour disputes not
only effectively but also expeditiously.
CMA proceedings quashed, CMA to commence the process afresh.
Cases Referred to:
Benedicus J. Msimangira v Bodi ya Mamlaka ya Sekondari za Kujitegemea Mkoa wa

Mwanza High Court of Tanzania (Labour Division) at Dar es Salaam, Labour Revision No.
J.W. Ladwa v Peter Kimote High Court of Tanzania (Labour Division) at Dar es Salaam,
Peter Mrema v Michael Kusaga High Court of Tanzania (Labour Division) at Dar es
Richard J. Rukambura v Isaack Ntwa Mwakajila and Tanzania Railways Corporation

Mwanza, Court of Appeal of Tanzania at Mwanza, Civil Application No. 3 of 2004
(unreported).
Khasim (Advocate), for the Respondent.
ORDER IN REVISION
158
RWEYEMAMU, J.: The following circumstances necessitate this order which is made suo
motu:
1. The applicant initially filed application for revision of the Commission for Mediation
and Arbitration (CMA) award dated 15/10/2007. It was filed by a notice of review
under Rule 27 (8) of the Labour Court Rules, GN 106/2007 (Herein, the rules) and
registered as Revision 43/2008. The respondent successfully filed a notice of
Preliminary Objection (PO) against that application on ground that it ought to have
been filed under rule 24 and 28 but not 27(8) of the Rules. In its ruling dated
20/12/2008, the court sustained the objection but instead of striking off the
application, in the interest of substantive justice, it gave extension to the applicant
to file a proper application.
2. After necessary papers were filed, the application was registered afresh and numbered
Revision 144/2009 - the present application. The applicant then filed a PO on two
grounds against the respondent's counter – affidavit. The PO was dismissed by this
court in its ruling dated 12/2/2010, and the application case fixed for hearing.
3. Hearing could not proceed on the fixed date of 9/3/2010 due to absence of counsel for
the respondent prevented from appearing by good cause- the plane he boarded failed
to land in Mwanza. The usual next step would have been to adjourn the case for
hearing to an undetermined future date; I desisted from that cause of action for
reasons stated below.
4. After going through the CMA records, I noted some serious jurisdictional and
material irregularities such that even if hearing were to proceed, the final result
would be the same - nullification of the CMA proceedings. Why?
5. First the jurisdiction issue. According to information on the Statutory Form No 1, the
dispute subject matter of the impugned award arose on 25/1/2007 and referral to the
CMA was made on 18/5/2007. In terms of the law, rule 10 of the Labour Institutions
(Mediation and Arbitration) Rules, GN 64/2007 (GN 64/2007) the referral was time
barred. According to the rule, dispute about fairness of termination must be referred
within 30 days and all other labour disputes within 60 days. The referral was filed
together with Statutory Form No, 7-the application form for condonation of late
referral i.e. application for extension of time, but the application was not heard and
decided as required by law.
6. This court has held a number of times that CMA lacks jurisdiction to proceed in a
time barred dispute unless an application for condonation has first been heard and
decided. In one such case it was held that:
159
Dispute referred late cannot be processed unless the CMA had condoned the delay... after
receiving the respondents application, the CMA should have served the same on the
applicant as per rule 29 (5) then proceeded to hear and determine it, under rule 29 (10) or
(11). That did not happen in this case, thus the CMA was not properly seized with
jurisdiction when it processed the respondent's referral filed out of time, without
condonation. See: Peter Mrema v Michael Kusaga High Court of Tanzania (Labour
Division) at Dar es Salaam, Labour Revision No. 138 of 2008 (unreported); J.W. Ladwa v
Peter Kimote High Court of Tanzania (Labour Division) at Dar es Salaam, Revision No. 52
of 2008 (unreported); Benedicus J. Msimangira v Bodi ya Mamlaka ya Sekondari za
Kujitegemea Mkoa wa Mwanza High Court of Tanzania (Labour Division) at Dar es
Salaam, Labour Revision No. 20 of 2008 (unreported), among others.
The CMA arbitration proceedings culminating in the award dated 15/10/2007 subject
matter of this application were a nullity for reason that the CMA lacked jurisdiction
for reasons explained in paragraph 5 above.
7. Material irregularities. The CMA record has an elaborate award but no proper record
of proceedings as prescribed under rule 32 of GN64/2007. Again, this court has held
a number of times that such irregularity vitiates the whole proceedings.
8. I have considered the question of whether this court can deal with the two issues suo
motu and answered the question in the affirmative. Regarding the first issue, it is the
law that a question of jurisdiction is fundamental, it can be raised at any stage of the
proceedings and the court can raise it suo motu. See the Court of Appeal decision on
that issue in Richard J. Rukambura v Isaack Ntwa Mwakajila and Tanzania Railways
Corporation Mwanza, Court of Appeal of Tanzania at Mwanza, Civil Application No.
9. Regarding the issue of material irregularity, this court is empowered to act on its
own motion where it is found that the CMA exercised jurisdiction not vested in it by
law or with it acted with material irregularity. See Rule 28 (1) (c) of the Rules.
10. There is another reason why I decided to precede suo motu. The process of
resolution of this dispute commenced in May 2007 - almost three years ago - that is
too long a period and it is contrary to the spirit of the labour laws which seek to
resolve labour disputes effectively but expeditiously. In the circumstances I find it
proper to adopt a procedure to fast track the process, instead of waiting for a hearing
inter-partes which adds no value.
For reasons stated, I quash all proceedings at the CMA commencing at the time the
application for condonation was filed but not decided, to the impugned award which were
160
a nullity. The dispute is referred back to the CMA where it should be processed afresh
according to law. It is so ordered.
CMA proceedings quashed, CMA to commence the process afresh.
LABOUR DIVISION OF THE HIGH COURT
LABOUR REVISION NO. 224 OF 2008
KAMPUNI YA SIMU [TTCL] ……………………… APPLICANT
VERSUS
ESTER ABDON MALEGESI …………………………. RESPONDENT
Held:
1. That Rule 26 of the Labour Court Rules provides for time limitation of
lodging an application for a review of an award, which is 15 (fifteen day) after
the delivery of teh award being a subject of review in the Labour Court.
2. That where the application was supposed to be filed within the required time
and there were some intervening factors, the affected party is duty bound to
file an application for extension of time to file the application out of time; it
is after condonation that he can lodge the application for review.
3. That under Rule 56 of the Labour Court Rules late filing of an application
can only be condoned if the party advances good grounds.
4. That under rule 26 (1) of the Labour Court Rules it is providee that: ‘a party
seeking to review a decision or proceedings of a responsible person or a body
performing a reviewable function justifiable by the Court, shall file a
chamber application of new review to the body or person. ...’ This means that
an application for review under this rule should be lodged before the same
body which gave the award.
RULING
24/11/2009 &26/11/2009
Moshi, J.
This is a Ruling following a Preliminary objection raised by respondent's advocate

161
that the present application is time barred and that it is wrongly brought before the
Labour Court as the Application is for a Review; Under R. 26 (1) and R.26 (2) of the
Labour Court Rules.
Mr. Kayaga, advocate for respondent submitted further that Rule 27 of the Labour
Court Rules provides that a review application should be lodged within 15 (fifteen) days of
a decision. Not within 15 days in which you receive the decision. That the applicants
being a corporate body, received a copy on 29/9/2008 and the application was filed on
15/10/2008.
Also that a Review under R. 26 of the Labour Court Rules provides for a Review to a
body or person who made the decision; meaning the same
That according to Rule 9 (2) (a) of the Rules the applicant was correctly served as
he runs business at Kigoma. So, by 29/9/2008 the Applicant was duly served.
For Applicant, Mr. Magambo advocate, for submitted inter alia thus: They
received the award or they were served with the award on 3/10/2008. That the proper
address for service was TTCL Dar es Salaam and not Kigoma, all their Legal Officers are at
Dar es Salaam; so on 22/9/2008 there was no service. They received it on 3/10/2008 and
filed an application on 13/10/2008. So, they were in time. That the decision date means
the date which they received the award.
Their prayer is for Review, if the Court finds that they erred then they should be
allowed to do amendments.
Mr. Kayaga responded that they can not amend a nullity; once it is time barred; it
can not be amended And if it is wrongly filed the remedy is to dismiss. That was the end
of the submissions for both sides.
It is true that this application is brought under Rule 26 (1) and (2) of the Labour
Court Rules, GN No. 10 512007. Under R.26 provides for time limitation of lodging an
application for a review of an award. The time provided is 15 (fifteen day). It is also not
disputed that the application was filed out of the 15 days of the decisions/award. However
the applicant states that it was due to the fact the award was received at their Kigoma
Offices and not the Head Quarters; which is the proper address for service.
It is my view that the application was supposed to be filed within the required time. If
there were some intervening factors, like in present case, the affected party is duty bound
to file an application for extension of time to file the application out of time it is after
condonation, that he can lodge the application. More over; under Rule 56 of the Labour
Court Rules (the Rules) late filing of an application can only be condoned if the party
advances good grounds. Hence he would have states these reasons in his supporting
affidavit.
Another issue which needs to be decided is whether this application is properly made to
this Court. Rule 26 (1) of the rules provides that:
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“a party seeking to review a decision or proceedings of a responsible person or a
body performing a reviewable function justifiable by the Court, shall file a
chamber application of new review to the body or person….”
It is my view, as submitted by respondents advocate, that an application for Review ought

to be lodged before the same body which gave the award. It was therefore wrong for the
applicant to file a review to the Labour Court. A Review ought to have been filed before
this Court if the decision was given by the court; i.e the body which made the decision.
I therefore uphold the Preliminary points of Law raised and dismiss the application
accordingly. The applicant is at liberty to take appropriate action according to the law.
It is so ordered.
S.C. MOSHI
JUDGE
26/11/2009
Date: 26/11/2009
Coram: Hon. R. c. Moshi, J.
Applicant:
For Applicant: Hidaya Amri for
Respondent: Present in person
For Respondent:
Court Clerk: Josephine Mbasha
Court: The ruling is read on this 26th Day of November, 2009.
Copy to:
1. Ester Abdon Malegesi
P. O. Box 62
SHINYANGA
2. Meneja
Kampuni ya Simu
P. O. Box 9070
DAR ES SALAAM
IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION
163
AT DAR ES SALAAM
LUNG’AI J. MTEKETA ……………………… APPLICANT
VERSUS
MKURUGENZI WA TAZARA …………….. RESPONDENT
[Original CMA/DSM/TEM/67]
Held:
1. That under the ELRA 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 civil trials, under arbitration issues in question are dealt
with fairly but quickly and informally.
2. That although 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.
RULING
7/5/2010
R.M. RWEYEMAMU, J.
The applicant’s employment was terminated on 2/8/2007 following which he
referred a dispute of unfair termination to the Commission for Mediation and
Arbitration (CMA) on 10/8/2007. The same was unsuccessfully mediated and a
certificate to that effect issued on 17/2/2007. The dispute was thereafter arbitrated
leading to an award dated 28/10/2C08, wherein the arbitrator found that; termination
was valid and terminal benefits were duly paid. It however ordered that the applicant
be paid as per Voluntary Agreement (VA) governing the parties.
I find it necessary to point, out at this stage that it is not clear …. the CMA
record of proceedings where the arbitrator based a finding that there was a VA between
the parties and what its terms were, so as to arrive at a conclusion that the applicant
was entitled to payments under it. Be that as it may, the applicant's grounds for
revision is basically that the arbitrator misunderstood the evidence adduced and
wrongly concluded that his termination was for a valid reason. In his own words:
a) kwamba mwamuzi alikosea alipoamua kwamba mleta maombi
aliachishwa kazi kihalali wakati vifungu vya sheria vilivyotumika
kumwachisha kazi havina uhusiano wowote wa kuachishwa kazi,
b) Kwamba mwamuzi alishindwa kutumia mamlaka yake pale
alipokubaliana na ushahidi uliotolewa na upande wa majibu maombi
juu ya tuhuma za kughushi mahesabu ya idadi ya vyuma chakavu
vilivyouzwa, wakati ushahidi huo haukudhibitisha kama kweli mleta
maombi alikusudia kugushi ili aweze kujinufaisha kutokana na kitendo
hicho....”
In response, the respondent contradicted the facts alleged in the grounds of the
affidavit filed in support of the application. Hearing of this application proceeded by
way of written submission. Both parties were unrepresented by counsel.
164
After considering the parties arguments in light of the reasoning in the award
and comparing them with the evidence on record it is my finding that the arbitration
proceedings were not properly conducted in that it was unfocused as a result of which
it was not very clear what the issues were or what evidence was led to prove what
issue as to lead to a focused decision. The only issue framed was worded thus
“Mlalamikaji kuhusika na upotevu wa vipande vyenye thamani ya M 7.4 baada ya
kuona tofauti ya gatepasses 9 katika original na copy"
As a result, it is not clear if the issue of procedural fairness was framed or considered and
of more importance, what decision was reached on it in the award. Second, the framing of
the substantive issue relating to the validity of termination – the substantive fairness was
worded in an ambiguous manner. Reading the proceedings, it is not clearly what the
applicant/employee's duties and responsibilities were or the exact connection between
his responsibilities and the loss that occurred- for example, was the applicant the one
who prepared the gate passes with the alleged discrepancy? What that one of his job
description? Further, as already noted herein above, it is not clear in the proceedings
what evidence led to a grant of relief based on the VA between the parties.
It is clear to me the mishap arose due to none compliance with the law and guidelines
governing conduct of arbitration. Arbitration is conducted under section 88(4) and (5) of
the Employment and Labour Relations Act, 6/2004 (the Act), read together with the Part
V of the Labour Institutions (Med/at, on and Arbitration Rules, GN 64 /2007, and Part III
of the Labour 1nstitutions (Mediation and Arbitration Guideline) Rules, GN 67/2007. Under
the Act 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 civil trials, under
arbitration issues in question are dealt with fairly but quickly and informally.
I have heard opportunity to explain in a case raising a similar issue and I observed
regarding the import of rule 22 of GN 67 that:
"That provision however is to be read together with Rule 19 and 22 of the
Guidelines, Rule 19 of the Guidelines emphasizes the arbitrator's discretion but that
rule has to be read in light of rule 22. The import of rule 22 is to ensure parties to
the dispute are granted a right to fair hearing. That necessarily means; issues co 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 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- settlement
certificate issued by the mediator, it may not be necessary for the arbitrator to adhere
165
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 guideline is the sure way of arbitrating the dispute fairly."
The ambiguity in parties pleadings mirror the reasoning in the way and evidence
led as reflected in the CMA proceedings indicating the fact that issues were not clearly
framed. The details in party's pleadings and submission in this court are not supported
by facts on record. For example was there evidence 13d by both sides on the issue of
who prepared the gate pass with discrepancy? How did the issue of VA agreement
arise?
Due to failure to follow guidelines regarding vital stages in arbitration particularly
framing of key issues, I find that the CMA proceedings sufferer from material irregularity
leading to injustice. I accordingly uphold this application, quash the CMA proceedings
and subsequent award, and order that the dispute be arbitrated afresh and to avoid
confusion, before a different arbitrator. The CMA files record and this ruling to be
forwarded to the CMA with immediate effect.
R. M. RWEYEMAMU
JUDGE
30/04/2010
166
LABOUR DIVISION
AT DAR ES SALAAM
IN THE MATTER OF REVISION NO. 280 OF 2008

CONSOLIDATED WITH REVISION 309/2008
MAXON PAPER CONVERTED ..……………… APPLICANT
VERSUS
JOYNESS D. KILUWA …………….……………RESPONDENT
(Original CMA/DSM/KIN-ILA2631/08)
Held:
That the law, section 40 (c) of the ELRA, prescribes payment of compensation of
not less than 12 months' salary where termination is unfair to be awarded at the
arbitrator’s discretion, which like all discretionary powers, it cannot be exercised
arbitrarily. Thus, reasons have to be shown where payment above 12 months' salary
is ordered.
17/6/2010 & 23/8/2010

Rweyemamu, R.M.J;
The respondent/employee successfully referred a dispute of unfair termination

of employment against the employer/applicant to the Commission for Mediation and
Arbitration CMA) on 14/3/2007. The employee's claim was that; proper procedures for
termination on ground of retrenchment were not followed; that retrenchment was not
a true reason for the termination but a pretext to terminate a permanent term contract
and convert it unilaterally into a weekly paid contract in order to avoid payment of the
statutory minimum wage. The employer maintained that position in this court. The
employer’s response was that the exercise was properly carried out.
In the decision dated 2/12/2008, the arbitrator found for the respondent holding
the termination unfair because the retrenchment procedures prescribed by the law,
section 38 of the Employment and Labour Relations Act, 6/2004 read together with Rule
23(1) of Employment and Labour Relations (Code of Good Practice) Rules, GN 42/2007
were not observed. Consequently, the employer was ordered to pay 15 months' salary to
the employee.
167
Aggrieved, the employer filed an application for revision on ground that:
 The award of 15 months' salary totaling shillings 1.2m was not proper
 The testimony of the applicant was not properly recorded
That applicant was registered as revision 280/2008. Thereafter on 30/12/2008 the

employee filed an application for revision of the same award; it was received and
registered as Rev. No. 309/2008, and following that the employer filed counter – affidavit
on 13/1/2009. That was improper.
Ordinarily, after the first application was filed, the respondent should have filed a
counter, affidavit and raised counter claim. That did not happen. On 13/5/2010 I ordered
the files consolidated the two applications to be argued by way of written submission.
The employer submitted that -

1. Retrenchment was preceded by a meeting with employees on 27/12/2007 letter
of 31/1/2007 informed employee of termination on 29/2/2008 - paid all benefits
under S. 44 of Act 6/2004.
2. All procedures were followed as per GN 42 rule 23(1) of Employment and
Labour Relations Code of Good practice.
3. The business had decreased.
In response, the employee submitted that:

1. No meeting for retrenchment took place nor was there retrenchment.
2. Conversion of contract from permanent to casual employee was unfair, its
objective was to avoid paying minimum wage of 100,000/=
3. The employer did not follow retrenchment procedures as per section 38 Act
6/2004
4. Payment of 15 months should be confirmed and order disturbance and interest
at 30% on that figure.
I have carefully considered submissions made by parties in light of the evidence on

record and the award but have found no basis to fault the arbitrator's conclusion that
termination was procedurally unfair in terms of the law. The alleged non recording of the
applicant's testimony was not apparent from the record or the applicant's submission.
My decision regarding the issue of payment of 15 months' salary however is different.
168
The law, section 40 (c) of the Act, prescribes payment of compensation of not less than
12 months' salary. That means the arbitrator has discretion, but like all discretionary
powers, it cannot be exercised arbitrarily. I believe reasons/have to be shown where
payment above 12 months' salary is ordered. As that was not done, I quash the amount to
be paid and order payment of 12 months' salary instead.
The claim for payment of interest made by the employee is dismissed because the same
was not raised at the CMA, it cannot now be raised when the matter is before this court for
revision.
Save for the adjustment in the amount of compensation, both the employer and
employee's application are dismissed.
R. M. RWEYEMAMU
JUDGE
20/08/2010

LABOUR DIVISION
AT DAR ES SALAAM

CONSOLIDATED WITH
LABOUR REVISION 125/2008
PRECISION AIR SERVICES LTD. ……………… APPLICANT
VERSUS
EDWARD MUNANU ……………………RESPONDENT/EMPLOYEE
(Original CMA/DSM/KIN-ILA2739108)
Held:
1. That the Labour Court has powers to revise an ex-parte award, on application
or suo motu, where the application to set it aside has been dismissed by the
CMA under Rule 28 of the Labour Court Rules GN 106/2007, provided
conditions itemized under the rule exist.
2. That parties are bound by their pleadings in the CMA, in that pleadings are
vital as they make both parties aware of issues in dispute around which they
marshal evidence to prosecute their claims and based on which the arbitrator
makes a decision.
169
3. That unpleaded issues can only be entertained if they refer to an employee's
entitlement as explained ender section 40 (2) of the ELRA or if in the cause of
hearing the matter, an amendment is made to include them.
4. That under section 37 of the ELRA, read together with Rule 12 and 13 of the
Employment and Labour Relations (Code of Good Practice) [GN 42/2007],
unfair termination exists if the reason for termination is found to be invalid
(substantive unfairness) and if the termination is not in accordance with a
fair procedure. Both types of unfairness amount to an unfair labour practice
and attract remedy of not of less than 12 months’ pay under section 40 of the
ELRA.
5. That the import of section 40 of the ELRA is that once termination is

adjudged unfair, the arbitrator may order re-engagement or reinstatement or
compensation of not less than 12 months’ salary. The decision to award
compensation and the amount the arbitrator may award is discretionary, but
exercise of that discretion is guided by factors related to peculiar facts of the
case and the law read in light of the guidelines enumerated under Rule 32 (2)
and (5) of the Labour Institutions (Mediation and arbitration Guidelines)
Rules, GN 67/2007.
6. That if the arbitrator orders compensation and not reinstatement, he has a

duty to explain the basis of awarding a sum more than an employee would be
entitled to if reinstatement had been ordered and the employer chose not to
reinstate, which is 12 months’ salary. An award of a sum of the remaining
period of the contract, which extrapolated, in a contract for unspecified
period would mean for the remaining period of the employee's working life
without basis is speculative and an error.
RULING
7/5/2010
R . M. RWEYEMAMU, J.
The respondent EDWARD had a three year contract of employment with the
applicant commencing from 15/1/2007 which was terminated on 7/3/2008- basically 22
months before its expiry. Dissatisfied, he referred a dispute of unfair termination to the
Commission of Mediation and Arbitration (CMA) on 4/4/2008. In the Referral Statutory
Form No. 1, he alleged that the termination was both substantively and procedurally
unfair. Hearing of the dispute proceeded exparte.
170
In its award dated 15/5/2008, the CMA found EDWARD'S termination invalid and
unfair (substantially unfair) in that he was terminated for failure to perform duties as
'MTO' a post he had never been promoted to. It also found that the termination was not
"in accordance with a fair procedure” (procedurally unfair) in that the respondent
EDWARD was not given a right to be heard in the accepted sense no disciplinary
committee was called to decide the matter instead, lie was required to give a written
explanation of the charge to the Human Resources Manager then convicted without
being a chance to be heard particularly to contradict his accuser. Further, in the
procedure used, management became a judge in its own cause.
In the result, the applicant/ PRECISION AIR was ordered to pay compensation in the
sum of Tshs. 13,478,850/= being Tshs 641,850 00/= per month for the period remaining in
their contract of 22 months minus one month salary already paid The respondent's other
employment claims however were dismissed for reason that they were not pleaded.
The applicant unsuccessfully prayed to have the award set aside and the dispute
heard interpartes. In a ruling dated 19/6/2008, the CMA decided that the applicant had
failed to advance good cause for failure to enter appearance. It found as a fact that the
applicant was served to appear on 6/5/2008 vide summons served through EMS (Copy on
record) and again via EMS dated 7/5/2008 to appear on 13/5/2008.
Both parties were dissatisfied with the arbitrator's decision in the award. The
respondent filed an application for revision registered as No. 125/2008 seeking revision on
ground that the arbitrator erred when he refused to grant his un pleaded claims. The
applicant filed its own application registered as No. 106/2008 on ground that and I
paraphrase:
1. The arbitrator erred in holding that the respondent was not given a right to be
heard while it was on record that he was served with a charge sheet.
2. That even if termination was indeed unfair, the arbitrator erred in granting
compensation for 22 months instead of the statutory 12 months.
3. That the arbitrator misunderstood the respondent's job description leading to a
conclusion that termination was substantively unfair.
Parties were represented by Mr. Kariwa and Mr. Kyarukuka Advocates for the
applicant and respondent respectively. The parties consented to consolidate the two
applications, abandon preliminary objections raised and argue the application by way of
written submission.
The CMA decision refusing to set aside the exparte award was not opposed, but I
171
felt obliged to decide whether this court has powers to revise an exparte award, where the
application to set it aside has been dismissed by the CMA. I hive decided that the court
has such powers under Rule 28 of the Labour Court Rules GN 106/2007, because under it,
the CMA award can be revised suo mottu, provided conditions itemized under the rule
exist. That done, I have gone through the CMA reasoning in its 2nd decision of 19/6/2008
but found no basis o fault the same. I now proceed to decide the issues raised by he
parties in the matter.
The issues for decision are basically three. The first is whether the arbitrator erred
in not granting reliefs on claims unpleaded in the referral form. On this issue I agree with
the submission by counsel for PRECISION AIR that the arbitrator's decision was right
because parties are bound by their pleadings. Pleadings are vital in that they make both
parties aware of issues in dispute around which they marshal evidence to prosecute their
claims and based on which the arbitrator makes a decision.
Unpleaded Issues can only be entertained if they refer to an employee's entitlement

as explained ender section 40 (2) of the Employment and Labour Relations Act,
6/2007(the Act) or if in the cause of hearing the matter, an amendment is made to
include them which in this case was not the position. Edward's application is for that
reason dismissed.
The second issue is whether the arbitrator properly reached a conclusion on the available
evidence that Edward's termination was unfair. I should hasten to point out that under
section 37 of the Act read together with Rule 12 and 13 of the Employment and Labour
Relations (Code of Good Practice,) GN 42120)7 (the Code), unfair termination exist if the
reason for termination is found to be invalid (substantive unfairness) and if the
termination is not in accordance with a fair procedure. Both types of unfairness amount
to an unfair labour practice and attract remedy of not of less than 12 months pay under
section 40 of the Act.
After going through th e evidence on record and the exhaustive reasoning in the
award, I have found no basis to fault the conclusion reached by the arbitrator. As regards
procedure, a right to be heard cannot be said to have been exercised when the accused
has had no opportunity to contradict the accuser in the presence of a neutral 3rd party,
instead he is given a written charge to respond to and submit the response to the
disciplinary body. For guidance on acceptable procedures see rule 13 of the Code and the
Disciplinary Guidelines annexed to it.
172
As regards validity of Edward's termination, based on the only available evidence
on record (that of the respondent, the applicant having chosen not to appear without
good cause to give its side of the story), the arbitrator's conclusion cannot be faulted. For
that reason, I dismiss ground 1 and 3 of PRECISION AIR's application.
The last issue relates to the award of 22 month salary to Edward. Through its
counsel PRECISION AIR submitted that the award was unconstitutional in so far it
covered a period not worked for; unjustified because the employer was condemned to
pay wages for the remaining contract period which was speculative; punitive even
though there was no evidence of repeated branch, and that the arbitrator acted wrongly
in granting the maximum remedy available without any basis. In his opinion, such a
move would have been justified if there was evidence that PRECESION AIR had acted
maliciously or committed serous breaches of labour standards like overt discrimination
or victimization.
Edward's counsel did not make direct response to the above submission. Instead, he
submitted that he would not respond on the applicant's submission on the issue because
the submission was different from the ground for revision raised on the issue, that the
ground raised was that the arbitrator ought to have ordered reinstatement a refusal of
which would have entitled him to 12 months pay. I am not sure I follow the respondent's
ground for the stance taken. Be that as it may, to me the issue here for decision is
whether the arbitrator was justified in awarding compensation of salaries for the
remaining contract period.
My understanding of the import of section 40 is that the once termination is adjudged

unfair, the arbitrator may order re engagement or reinstatement or compensation of not
less than 12 month salary. The decision to award compensation and the amount the
arbitrator may award is discretionary, but exercise of that discretion is guided by factors
related to peculiar facts of the Casa and the law read in light of the guidelines
enumerated under Rule 32 (2) and (5) of the Labour Institutions (Mediation and
arbitration Guidelines) Rules, GN 67/2007.
173
If the arbitrator orders compensation and not reinstatement, he has a duty to explain
the basis of awarding a sum more than an employee would be entitled to if reinstatement
had been ordered and the employer chose not to reinstate-which is 12 months salary. An
award of a sum of the remaining period of the contract, which extrapolated, in a contract
for unspecified period would mean for the remaining period of the employee's working
life without basis is speculative and an error.
The arbitrator in this dispute gave no explanation of awarding the amount he did,
for that reason, I find his decision to be a material error. The same is quashed and set
aside. I should emphasize that compensation is payable in addition to any other statutory
amount the employee is entitled to like the one month salary in lieu of notice. Thus the
amount already paid as statutory entitlement cannot be deducted from the compensation
awarded. In view of that, the arbitrator's award in respect of compensation is quashed, in
its stead, the amount payable is reduced to a sum total equal to 12 times Shs.
641,850.00/= the monthly salary times the salary payable per month.
To conclude, grounds 1 and 3 of Application 106/2008 have no merit and are

dismissed, ground 2 is partly upheld. Application No. 125/2008 is dismissed for reasons
already explained and the arbitrator's award confirmed.
R. M. RWEYEMAMU
JUDGE
30/4/2010

LABOUR DIVISION
AT DAR ES SALAAM
REVISION NO. 111 OF 2008
PRECISION AIR SERVICE ……………………APPLICANTS
VERSUS
SALVATORY KUNDY …………………….. RESPONDENT
(Original CMA/ARS/MED/444/07)
Held:
1.That the Code of Good Practice (GN No. 42 of 2007) seeks to achieve, inter alia, a
policy objective of ensuring observance of fair labour practices, including human
rights; particularly presumption of innocence.
174
2. That in computation of time, last pay to the employee is evidence of the date of
termination.
3. That suspension without pay is prohibited under the Code of Good Practice,
which amounts to unfairness.
17/12/2009 & 6/8/2010
RULING
R.M. RWEYEMAMU, J.,
This case partly raises an issue of concern namely the proper procedures to be
followed in the urinating an employee whose alleged actions amount to both a
disciplinary misconduct and a criminal offence. The law on the issue provides under
section 37(5) of the Employment and Labour Relations Act, 6/2004 (the Act) that; and I
quote:
“No Disciplinary action in form of penalty termination or dismissal shall lie upon
an employee charged with a criminal offence which is substantially the same until
final determination by the court and any appeal thereto,"
Section 37 (4) of the Act directs tie CMA or the court to take into account the
Employment and Labour Relations (Code of Good Practice) GN 42/2007 (the Code) in
deciding whether termination is fair or not. Now, rule 27 (5) of the code provides that
where an employee is charged with a criminal offence, the employer may suspend on full
remuneration pending a final determination by the court and any appeal thereto on that
charge.
I find it opportune to point out that to my understanding, the labour laws seek to achieve
among others, a policy objective of ensuring observance of fair labour practices. Fair
practices include observing basic human right principles among there the presumption of
innocence and the right not to be punished unheard.
That objective understandably causes concern because of the difficult in striking a

balance between an employer's prerogative to manage and maintain workplace discipline
including the right not to retain an employee in whom trust has teen lost on one side, and
the right of an employee not to be penalized before being heard and a misconduct proved.
In the case at hand, the respondent/employee was suspended with no pay with effect
from 23/6/2007 to enable the applicant/employer conduct investigations in her alleged
conduct of loss of company monies'. Aggrieved, the employee referred a dispute of unfair
175
termination to the Commission for Mediation and Arbitration (CMA) on 4/9/2007. The
nature of unfairness was describes in the Referral Form as "being suspended without pay"
and relief sought was payment of unpaid salary for July and August amounting to shillings
710,000/=.
It was in evidence at the CMA that the employee after being suspended was later
charged in court with an offence arising from the same transaction- a case said to have
been continuing at the time of arbitration. During arbitration, the employee added and
un pleaded issue that he be paid salary until the criminal case was concluded.
In its award subject matter of this application, the CMA first dismissed the PO raised by -he
employer that the dispute was referred out of time. It decided that since the suspension
letter indicated the employee was suspended without pay with effect from 23/6/2007, yet in
July salary was paid, the period of limitation counted from the date of the last pay. I agree
with that decision because in terms of rule 10 (1) of the Labour Institutions (Mediation and
Arbitration) Rules, GN 64/2007, the employee's final decision to terminate was the date of
the last pay. I now consider the key contended issue of the appropriateness of the decision
in the award and the reliefs granted.
The impugned award was couched in the following words, and I quote:
"cma sdecision Baada ya kuchambua kwa makini maelezo ya pande zote
hapo
juu na kwa uwezo nilipewa namwamuru mlalamikiwa amlipe mlalamikaji

mishahara yake yote tangu Julai 2007 hadi hapo kesi ya msingi inayoendelea
Mahakamani itakapomalizika. Kwa sasa mishahara hiyo kuanzia Julai 2007
mpaka mNisho wa mwezi April 2008 ni sawa na Tshs. 474,000/= x 10 =T5hs
4,740,000/=, Mishahara ya miezi mingine itaendelea kulipwa kila mwisho
wa mwezi husika hadi hapo kesi inayomkabili mlalamikaji itakapomalizika
mahakamani.
Translated, the decision was that the employer should pay the claimed salaries of
July and August, and continue paying full salary until the pending case is finally
determined. It is not stated in the award on what basis the CMA ordered that "miezi
mine itaendelea kulipwa kila mwisho wa mwezi husika hadi hapo kesi inayomkabili
mlalamikaji itakapomalizika mahakamani.
The employer sought revision of the award arguing that that the employee was
terminated following his admission of the misconduct thus termination was for a valid
reason. Resisting the application, the respondent argued among other grounds that, the
criminal case was ultimately dismissed on 21/04/2008. (The e attached court order
indicates the case was dismissed under section 225 for lack of prosecution). In rejoinder,
176
the employer pointed out that the case has been reopened in the District Court.
It is undisputed that the employee was suspended with no pay, what is disputed
by the employer is the CMA decision that the said suspension was contrary to first
section 37(5) of the Act and rule 27 of the Code.
The fist issue for decision is whether in view of the facts adduced before it, the
CMA decision that the employer's decision was contrary to law was proper. It is
undisputed that the employee's termination preceded the criminal charge. That was
indeed why the employee referred only a suspension without pay. To that extent, the
CMA decision that section 35 of the Act was contravened was improper.
The finding however, that the employer’s action was contrary to rule 27[1] of the
Code was proper. On the evidence, in face of serious allegations, the employer
suspended the employee without pay-exactly a cause of action prevented under the
Code. To that extent the employer’s action was contrary to law and the suspension
unfair. The second issue for decision is whether in view of that conclusion, the CMA
properly granted the remedy / relief it did.
In terms of the bigger picture discussed in the opening paragraph, it is my

understanding of the law that the employer retains the prerogative to weigh specific
situations in light of the law and act as deemed appropriate; either decide to retain an
employee, suspend on half pay or terminate. The employee if aggrieved will refer the
dispute to the CMA whose power is to decide whether the employer’s chosen action is
proper and if not, to award remedy prescribed by law.
In my considered opinion, where an employer suspends an employee without

pay contrary to rule 27[1] of the Code, or even terminates an employee contrary to
section 35 of the Act, the action amounts to an unfair termination, for which the CMA
may order reinstatement or compensation under section 40[a] or [c] respectively. The
employer may then reinstate or pay compensation of 12 moths salary as per section
40[3] of the Act.
The CMA's mandate is to decide whether the employer's chosen action amounts
to unfair termination in terms of the law, and if so, to apply the law as prescribed under
section 40 of the. Act. The said remedies do not include payment of salaries until the
criminal case is finalized (no matter how long it takes) where the criminal charge was
made after the employee was terminated/suspended.
177
In view of my said position, I find the CMA decision that "Mishahara ya miezi
mingine inaendelea kulipwa kila mwisho wa mwezi husika hadi hapo kesi inayomkabili
mlalamikaji itakapomalizika mahakamani" to have been an improper exercise of its
jurisdiction and quash it. In the result, this application partly fails in that the CMA
decision that the employer unfairly terminated the respondent when it suspended him
indefinitely in July 2007 is confirmed. But the application partly succeeds because I find
that the remedy for the employee in the circumstances should be as prescribed by law
namely reinstatement or compensation under section 40 (a) or (c) respectively. In view of
the lapse of time, I order that the employer/applicant should pay the employee/
respondent compensation of 12 month salary instead of reinstatement.
R. M. RWEYEMAMU
JUDGE
6/8/2010
Date: 06/8/2010
Coram: Hon. R.M. Rweyemamu, J.,
Applicant:
For-Applicant: Absent
Respondent: Absent
For Respondent: Zako Advocate for
C.C. Josephine Mbasha
COURT: Reasons for late delivery of ruling explained to parties and apologies
made.
Ruling delivered this 6/8/2010 in presence of counsel for the Respondent.

Right of Appeal Explained.
R. M. RWEYEMAMU
178
JUDGE
6/8/2010
179
LABOUR DIVISION
AT MWANZA
MISC. LABOUR APPLICATION NO. 188 OF 2008
SAIDI MUSA MEGE ………………………….APPLICANT
VERSUS
TANDRIL LTD ………………….. RESPONDENT
(Original CMA/MZA/282/2008)
Held:
1. That non-citation or improper citation of the enabling provisions of the law
renders an application incompetent.
2. To succeed, an application for extension of time must show reasons for delay to
take the requisite action.
RULING
11/10/2010 & 25/10/2010
R.M. RWEYEMAMU, J.
The applicant/employee filed this application for extension of time to file an
application for revision of the Commission for Mediation and Arbitration (CMA) award.
The application is opposed and parties were represented in the matter. Mr. Magabe
appeared for the applicant as a ‘personal representative of a party awn choice’ a special
procedure recognized under the labour laws) specifically section 56 of the Labour
Institutions Act, 7/2004, while Mr. Galati advocat3d for the respondent/employer.
On 11/10/2010, the application was ordered to be argued by way written
submissions. Before evaluating the parties arguments in submission, let me begin with
brief background information of this dispute which has had an unusually long history in'
court.
1. The CMA impugned award was procured on 30/7/2008.
2. On 15/9/2008, the applicant vide his representative filed an application for revision
of that award to which the respondent successfully objected on grounds that it was
filed out of time. In its ruling delivered on 24/3/2010, the court decided in the
interest of substantive justice to grant 15 days to the applicant to file an application
for extension of time according to law.
3. On 1/4/2010 the Applicant vide Mr. Magabe filed a Notice of Application supported
by affidavit under "Rule 24 and 28 of the Labour rules 2007 & section 91 of the
Employment and Labour Relations Act 6 of 2006". The application filed iiowever
was not for extension of time as directed by the court on 24,!3/2010 but a
repetition of an application for revision.
4. On 11/10/2010 the date scheduled for hearing of that application, Mr. Galati
counsel for the respondent objected to the mishap and this court ruled that; "1
will, against the best of my judgment indulge the applicant for the last time. He is
given 2 days to file a proper application to apply for extension of time'.
5. It was following that order the applicant filed the application subject matter of this
ruling. Again, the application was brought under "Rule 56(1) of the Labour rules
2007 & section 91 of the Employment and Labour Relations Act 6 of 2006'
180
I have considered arguments submitted by the parties in submission in support of the
pleadings and decide that this application must fail for the following reasons.
The first reason is because I sustain the preliminary objection raised by Mr. Galati in his
submissions that the court was not properly moved due to wrong citations of enabling
citations. It is true there are no set of rules known as Labour Rules, a,-id that no law was
enacted in 2006 known as Employment and Labour Relations Act as submitted by Mr.
Galati. The question of wrong citation of enabling provisions of the law is not considered
'mere technicality in this court and there are a number of decisions where that principle
has been reaffirmed. In one such, Sunday Mbilanga V. Tanzania Breweries LTD, Misc.
Application 10 of 2009, (incidentally involving an application like the present) the
application was adjudged incompetent for reason of wrong citation and I observed that:
"This court has dealt with the issue of wrong citation or non citation of relevant
provisions of the law in 3 number of cases and it is now an observed principle of
law that the consequence thereof is to render the application incompetent. I wish
to refer to and associate with the decision in one such case decided by my sister
Judge Hon. Moshi J, in Tanzania Revenue Authority v. Merina Mwayole, LC
Revision, 100/2009 at DSM (unreported). The Hon. Judge observed in that case
that:
"The Court has in various occasions decided that non citation
of enabling provision or wrong citation of enabling provisions
renders the application incompetent; See the cases of Aloyce
Msele Vs. The Consolidated Holding Corporation, Civil Appeal
No. 11/2002, (unreported) a Court of Appeal decision; the same
was quoted with appreciation in the cited case of Chama cha
Walimu Tanzania (Supra) (a case originating from this
court)..."
Similarly, I find that this application is incompetent because the court was not
properly moved and must be struck off.
In the cited case, the applicant was given time to file a proper application on
ground that “it was in the interest of justice as the applicant was without legal counsel"
The same conclusion cannot be made in this case because one, the applicant has a
representative - a person of his own choice, two, the applicant has already been
accommodated twice on ground of interest of justice such that to continue indulging the
applicant would in fact amount to abuse of court process. Three, the omission to cite
proper provisions is inexplicable in view of the fact that in the ruling of 24/3/2010, the
exact procedure to be followed and proper citations were indicated.
Even if the application is not struck off, there is a second reason this application
must fail. Both in the affidavit in support of the application and submission, the applicant
concentrated on grounds for revision as though grant of this application is premised on
chances of success of the application for revision but such is not the law.
To succeed the applicant must show to the court that there were good reasons for delay
in filing the application for revision, a fact made plainly clear to the applicant in the
ruling referred to under No. 2 above. The applicant ii this application did no such
thing, particularly; he did not explain why after being directed by the Registrar as
claimed on 15/9/2008, he filed an application for revision out of time without leave
and why after the order of 24/3/2010 he repeated to file the struck off application,
181
particularly when he was represented.
In view of the above, I find that the only ground for delay was due to either ignorance or
negligence on the part of the applicant or his representative. But it 'is a recognized
rule of law and practice that such grounds do not constitute good reasons for
purpose of granting extension of time. As such, even if the application was properly
before this court which is not the position, I would dismiss it for failure to adduce
good grounds for delay. Be that as it may, this application is struck off for the first
reason.
R. M. RWEYEMAMU
JUDGE
25/10/2010
Date: 25/10/2010
Coram: R. M. Rweyemamu, J.
Applicant: Mr. Magabe - a personal representative
For Applicant:
Respondent: Mr. Galati Absent
For Respondent:
C.C: Josephine Mbasha
COURT: Ruling delivered this 25/10/2010 in presence of applicant and absence
of Respondent who will be served with a copy.
R. M. RWEYEMAMU
JUDGE
25/10/2010
COPY TO:
Said Mussa Mege
C/o B. W. Magabe
P. O. Box 7674,
MWANZA.
Galati Law Cr ambers Advocates,
P. O. Box 11317,
MWANZA.
182
LABOUR DIVISION
AT DAR ES SALAAM
SWISSPORT TANZANIA LTD. ………………………… APPLICANT
VERSUS
MOHAMED NANAH ……………….. RESPONDENT
[Original CMA/DSM/KIN-ILA/374]
Held:
That an application for condonation must be heard and decided upon.
14/12/2009 & 25/2/2010
R.M. RWEYEMAMU, J:,
RULING
The applicant/employer seeks revision of two decisions of the Commission for

Mediation and Arbitration (CMA). These are; its exparte, award dated 6/6/2008 (1st
decision), and its subsequent decision of 9/6/2009 (2nd decision) dismissing the
applicant's application to have that exparte award set aside. The background of this
matter is as follows: Employment of the respondent was terminated by the applicant on
22/4/2007, dissatisfied, he referred the dispute to the CMA vide the statutory form No.1
received by the CMA on 6/6/2007, according to information in the award. That referral
was made out of time, consequently it was filed together with Condonation Form No 7-
the statutory application form for extension of time.
In this court, the applicant was represented by of Tanzania Law Chambers while
the respondent appeared in person. Hearing proceeded by the way of written submission.
The gist of the applicant's arguments as contained in the affidavit in support of the
application and elaborated upon in the submission are; that the applicant adduced
reasonable grounds for none appearance at the arbitration hearing prior to the exparte
award but they were disregarded, for that reason the 2nd decision was in err; that the
respondent's counter affidavit was defective yet the CMA relied on it which was a
material irregularity and; that the 1st decision was against the weight of the evidence
which was a material error resulting in injustice to the applicant. These arguments were
controverter by the respondent.
183
In reply to the respondent's submission however, the applicant raised an issue of
jurisdiction which I find determinative of this application. It was argued that the
application for condonation of the late referral, although filed, was not hear; and decided
by the CMA before proceeding wit arbitration hearing leading to the impugned 1st
decision. On the facts record, it is undisputed that the CMA proceeded in the matter filed
out time, without deciding the issue of delay.
The position of the law regarding the CMA jurisdiction in a dispute filed out of
time has been explained in a number of cases by this co find it opportune to repeat
observations made in some of such case Peter Mrema and Michael Kusaga, LC Revision
No. 138/2009, it was held that:
"In terms of Rule 10 of the Labour Institutions (Mediation and Arbitration

Rules, GN 64/2007, (the rules), the period for referring disputes of fairness
of an employee's termination to the CMA is 30 days, and 50 days for other
disputes. Disputes referred late cannot be processed unless the CMA had
condoned the delay. To my understanding, the Issue of limitation of time
15 not a subject parties can agree on during mediation, and even then,
there is nothing on record to suggest that the issue was amicably settled..
When the dispute is time barred, the CMA has no powers to entertain it,
unless it has heard and granted an application for extension of time i.e.
condoned the delay. - It is not enough that the complainant/employee
has filed the condonation form.... "
And in J. W. Ladwa and Peter Kimote, LC revision No. 52/2009, it was stated that:
"My interpretation of the law is that it is not enough that the
complainant/employee files the condonation form. When the dispute is time
barred, the CMA has no powers to entertain it, unless it has heard and granted an
application for extension of time i.e. condoned the delay as per prescribed
procedure.... the procedure for processing condonation, is specifically provided for
under rule 11 and 29 of the rules. The said procedure requires that after receiving
the respondents application for condonation, the CMA should serve the same on
the applicant- as per rule 29 (5) then proceed to hear and determine it under rule
29 (10) or (11). Now, that procedure does not appear to have been followed in
this case.
In the absence of that, the CMA (was) not properly seized with jurisdiction.....
The question of limitation of time is a fundamental Issue involving ...
jurisdiction. As held by the CA, it goes to the very root of dealing with civil
claims "limitation is a material point in the speedy administration of justice,
Limitation is there to ensure that a party does not come to court as and when
184
he chooses” held the CA In Tanzania Fish processors Ltd, V, Christopher
Luhangula, Civil appeal 161/94 (CA, MZA registry - unreported)"
In KIOO LTD and Kennedy Chalamila, LC revision No. 14712008, it was explained that:
"Perhaps to remove doubt as to when and how the issue of limitation of
time should be heard and decided by the Commission, I should draw
attention the following provisions of the rules: First, the Commission
can process time barred disputes following application by the referring
party as explained in the cases cited above. Second, under rule 31 of the
rules, "the Commission may condone any failure to comply with the tine
frame in these rules on good cause" That rule in my opinion, gives a
wider power to the Commission to proceed in a time bared dispute
provided it shows on record, its reasons for doing so. At what time
should the commission deal with the issue of time limit?”
I have already explained that the issue of limitation of time is

fundamental, going to the Commission's jurisdiction. The rules provide
that the mediator under rule 15; or arbitrator under rule 20 should,
when an issue of jurisdiction arises, require the referring party to prove
that the Commission has jurisdiction, and such mediator or arbitrator
must decide the matter. A party not satisfied with a decision made may
challenge it by way of revision or review. "Commission refers to CMA).
Now in this matter, the CMA neither made a decision on the issue of time limit,
nor stated its reasons for condoning the delay when it made the 1st decision. For that
reason, I make a decision similar to the ones made in the cases referred to above that is;
the CMA was not properly seized with jurisdiction when it processed the respondent's
referral, filed out of time, without condonation, For that reason, this application for
revision succeeds although for reasons other than those advanced by the parties. The
CMA proceedings leading to the 1st and 2nd decision are quashed; the dispute referred
back to the CMA with an order that the same be processed afresh according to law.
R. M. RWEYEMAMU
JUDGE
16/2/2010
185
LABOUR DIVISION
AT DAR ES SALAAM
BUSEGI KULWA ……………………………… APPLICANT

VERSUS
CELTEL TANZANIA LTD. ……………………RESPONDENT
Held:
1. That where no appeal lies from a decision, the grounds for revision are wide to
include among others; misconstruction of legal, provisions, failure to consider
relevant matters, misinterpretation of evidence in light of the law, etc.
2. That a CMA award is reviewable under the ELRA, read together with the Labour
Court Rules if it is not rational/justifiable in light of the law and the evidence
properly received, as well as on misinterpretation of evidence, apart from other
grounds clearly spent out under Rule 28 of the Labour Court Rules.
3. That failure by the arbitrator to make a finding and decision on all of the claims.
referred the CMA by the applicant; and, instead giving a decision on only a portion
of the claim, amounts to failure to exercise vested jurisdiction on the part of the
CMA, which is also a an error material to the merits of the case under rule 28 (b)
and (d) of the Labour Court Rules, giving rise to the Labour Court to quash such
decision.
4. That the import of rule 22 of the Labour Institutions (Mediation and Arbitration
Guidelines) Rules, GN 67/2007 is to ensure parties to the dispute are granted a
right to fair hearing, which necessarily means; issues 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.
5. That the Labour Institutions (Mediation and Arbitration Guidelines) Rules 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.
6. That the award derived from proceedings in which vital stages prescribed under
rule 22 of the Labour Institutions (Mediation and Arbitration Guidelines) Rules
has been observed, particularly on formulation of issues before evidence in proof
is led, would necessarily be in substantial compliance with rule 27 of the
guidelines.
RULING
186
16/3/2010 & 10/8/2010
R.M. RWEYEMAMU, J.
The applicant Busegi Kulwa referred a dispute of unfair termination to the
Commission for Mediation and Arbitration (CMA) against his employer, CELTEL. In
the Statutory Referral Form No. 1, he sought the following remedies:
(i) Compensation under - section 40(1) (c) of the Employment and
Labour Relations, 2004. The compensation I am seeking for is Tshs.
62,004,000/= which is equivalent to two years salaries.
(ii) Compensation under section 40(2) of the Employment and Labour
Relations, 2004 for unpaid bonuses as of the date of termination
which is Tshs Six Million (Tshs. 6,000,000).
(iii) Compensation under section 40(2) of the Employment and Labour
Relations, 2004 for Tshs. Fifteen Million (Tshs. 15,000,000) as legal costs. I
have incurred to hire lawyers to work on this dispute.
(iv) Share options for 76 shares whose fair market value was set at US$ 75.10
effective from January 2008 equivalent to Tshs, 6,849,120/=
(v) Amount due to me under Expense Retirement Scheme which is Tshs.
134,300/=
(vi) Parking fees within Dar es Salaam city totaling Tshs. 7,800/=
(vii) A Certificate of service under section 44(2) of the Employment and Labour
Relations Act, 2004.
The other remedies such as re-engagement or re-instatement are not appropriate
because the continued employment will be intolerable because of malicious, high
handedly and hateful behavior of key company personnel.
Its award dated 6/2/2009, the CMA decided that:
1. Dai namba moja linakataliwa kwani halina misingi yoyote kisheria
2. Dai namba mbili linakubalika kwa kiasi kwani anastahili malipo ya mafao na si
fidia kwa mujibu wa mkataba vake wa ajira
3. Dai la tatu linakubalika lote na muajiri anapaswa kumpatia Cheti cha Utumishi
(Certificate of service)"
Busegi was aggrieved by the above decision hence this application for its revision
which is contested by the respondent. Before considering the parties' arguments, I wish
to point out an error/irregularity apparent on reading the pleadings and the award.
In the referral Form, Busegi made 8 claims … The first anomaly in the award is that
the arbitrator made a decision and granted reliefs on three of those claims only. The
second is that from the wording of the award, it is not clear which reliefs were granted
and which ones were dismissed. The term 1st claim granted used in the award might
mean number (i) and the 3rd number (viii) above, but assuming that to be the correct
interpretation, it is still not clear what award for claim number 2 worded as; "Dai namba
mbili linakubalika kwa klasi kwani anastahili malipo ya mafao na si fidia kwa mujibu wa
mkataba wake wa ajira" refers to.
It is my decision that those mishaps are sufficient ground for this court to suo
motto find that the arbitrator failed to exercise vested jurisdiction when it failed to
arbitrate and decide all the issues before it, which was a failure to exercise vested
jurisdiction, an error material to the merits of the case justifying revision of the award. I
can use powers vested in this court under rule 28 of the Labour Court Rules, (LC Rules)
187
GN 106/2007 to quash the award on those grounds and ,end there, but I will not. Due to
the importance of some of the parties' arguments in labour practice however, I will
proceed to consider them.
Busegi filed this application seeking:
"(b) that this Honourable court be pleased to revise item (1) of the award on the
reason that:
(i) The Arbitrator made material error to the merits of the case by concluding
that there was no contract of employment between the Applicant and the
Respondent; and
(ii) The Arbitrator failed to address alternative causes of action which
amounts to failure to exercise jurisdiction vested on him.
c) That this Honourble court be pleased to revise item [2] of the award on the
reason that the item of the award is unclear and contradicts the item [1] of the
award.
d) Such further or other order[s] be made and/or direction[s] be given as this
Honourable court may deem fit and proper.”
The employer CELTEL contested the application and averred in the counter
affidavit in brief that the arbitrator’s award cannot be faulted because; Busegi’s
employment was for a fixed term of two years which came to an end by effluxion of
time; that the said contract was not converted into a permanent one; that Busegi
did not act on the employer’s offer to renew the contract therefore the arbitrator
rightly found that the contract was not terminated; and that no grounds have been
adduced to justify revision of the award.
In this court the parties were represented by counsels from LAWCASTLES
ADVOCATES and REX ATTORNEYS for the applicant and respondent respectively.
Hearing of the same proceeded by way of written submission. Both sides put up
strong arguments in support of their positions and I shall now summarize them,
although reasons I shall give, they are not key to the decision I have made.
For convenience, I shall group the submission made by the parties’ counsels into
two categories. Under the first category, Busegi faults the merits/rationality of the
arbitrator’s decision on the facts before it and applicable law regarding existence of
a contract of employment between the parties at the time of termination and
fairness of its termination. I itemize these in summary as follows:
1. The arbitrator erred in not believing in the uncontroverted evidence that he was
employed on a fixed term contract from 2/5/ 2006 to 1/5/2008; that the employer
converted it to a permanent contract, signed by both parties, that he signed it in April
2008 and gave it to the employer's sales director. The arbitrator should not have
religion the contrary evidence which was based on information in contained in
paragraphs 5, 8, 9, and 16 of the counter affidavit, regarding whether he signed the
contract or not because the person swearing those facts didn’t disclose the source of
that information contrary to the rule on affidavit. The same was Irregular as per rule
Assanad and Sons (Uganda) Limited v. East African Records Limited (1959) EA
360 CA in that it did not set out the deponent's means of knowledge or belief or
distinguish from matter derived from the deponent's own knowledge and those from
his belief. The arbitrator should not have acted on such information which was
therefore hearsay and unreliable.
188
2. CELTEL failed to call a mater al witness to testify on handing over of the
signed contract in the circumstances, the arbitrator should have drawn a
negative inference on his failure. A number of cases were cited to buttress this
proposition among them Hemed Saidi v. Mohamed Mbilu (1984) TRL 113
and Commercial Case No.180/20)2 (unreported). In the circumstances, there
was no evidence to contradict paragraph 14 of the applicant/Busegi’s affidavit
that the sales director received as fined contract on 23/4/2008. On these facts,
the arbitrator ought to have reasonably concluded that termination of
employment was unlawfully and unfair in terms of the law.
3. That the fixed term contract should have teen adjudged renewed, because the
employer had created reasonable expectation of renewal as per rule 4(4) of
Employment and Labour Relations (Code of 5ood Practice) Rules, (the Code)
GN 42/2007, or because it was renewed by default as per rule ……………
because he continued offering service and using privileges of the employer.
The rational conclusion on the face of failure to renew the contract under
both scenarios was that Busegi’s termination amounted to unfair
termination.
The second category involves arguments relating to arbitrator's failure to exercise
jurisdiction; material irregularities any errors material to the merits of the case in the
proceedings and award. These are:
1. That failure to properly app y the relevant law on the facts adduced and
uncontroverted hat CELTEL continued to utilize Busegi's services; that
salary payment was made to him after expiry of the fixed term contract; and
failure to find that there was consensus that CELTEL made renewed the
contract when it signed a copy an offer of the employment contact which he
signed; made the arbitrator reach an erroneous conclusion that there was no
contract of employment at the time of the termination letter.
2. That the arbitrator's failure to address most of the issues in the claim
amounted to failure to exercise jurisdiction.
3. That the arbitrator committed material irregularity when it issued an award
which was not In compliance with the requirements of rule 27(3) of the Code.
4. That the arbitrator failed to address and decide all the issues in the claim
which was a material irregularity.
CELTEL responded in respect of the first category that:
1. The arbitrator made a proper conclusion that the fixed term contract was not
renewed and that there was no consensus that it was on the evidence proper.
CELTEL denied, that there was a renewed contract signed by the employee, it
was not up to CELTEL to call a sale director as a witness to prove what they
were denying rather Busegi should have called the witness to prove that issue.
The decision reached by the arbitrator was proper and not reviewable, what
the applicants seek is an appeal not revision.
2. Failure by the arbitrator to accept Busegi's point of view that the contract was
renewed by default was base) on evidence on record, which the arbitrator was
entitled to believe. As such, there is no proof of an error material to the merits
of the case.
189
3. The arbitrator was entitled to conclude as he did that payment of the May
salary was ex gracia and not evidence that the contract was renewed.
In response to the second category and generally on the legality of this
application, the respondent submitted that;
1. The grounds adduced by the applicant amount to an appeal against an award
which is not permitted under the law because section 91(2) of the Employment and
Labour Relations Act, 6/2004 grants powers of a revision not appeal. To quote part of
the argument that:
"An appeal entails a reconsideration of a decision by a
higher authority whereas a revision involves
re-examination or review with a view of correcting
irregularities in the lower tribunal's proceedings. And S.91
(2) of the Act permits a part/ to seek revision of
Arbitrator's award on the ground of improper
procurement of the award and misconduct on the part of
the Arbitrator. Rule 18(6) of GN.67/07 permits revision of
an arbitrator's award on the basis of irregularities in the
arbitrator proceedings"
2. The applicant has failed to show that the application comes within ambit
of rule 28 of the LC Rules.,
3. That the award was in substance in compliance with rule 27 (3)of GN 67 as
it is not necessary that the arbitrator compose the award "following the
check list provided"
In rejoinder the applicant's counsel submitted that:
1. The arbitrator misinterpreted the law hick provides that failure to renew a contract on
similar terms and condition amount to unfair termination in terms of the law - section
36(ii) of the Act read together with rule 4(4) of the Code.
2. The arbitrator ignored the 1aw on the principle of presumed renewal of contract
evidenced by parties continuing the employment relationship after its expiry evidenced
by among others, payment of the May salary, accessing usual employment benefits.
That was an error material to the merits of the case.
3. Contrary to the respondent's submission, where no appeal lies, failure to exercise
jurisdiction or exercising it with material irregularity or error, are grounds for
revision as per rule in the CAT decision of Management of Hotel Africans Vs
Jumuiya ya Wafanyakazi Tanzania (JUWATA) (1988) TLR. 105 following with
approval the rule in Anismic Ltd. Vs Foreign Compensation Commission (1969)
2. No. LR 163, Lord Reid where it was held that:
"But there are many case where, although the tribunal has the
jurisdiction, to enter on the inquiry, it has done or failed to do something
in the course of the Inquiry which is of such a nature that Its decision is a
nullity, It may have given its decision In bad faith. It may have made a
decision which it had no power to make. It may have failed In the course
of the inquiry to comply with the requirement of natural, justice. It may in
perfect good faith have misconstrued the provisions giving it power to
act so that it failed to deal with and d3cide some question which was not
remitted to it ... it may have refused to take into account something
190
which it was require to take into account. Or it may have based its
decision on some matter which, under the provisions setting it up, it had
no right to take into account. I do not intend to make this list exhaustive"
Therefore the power of the court in revision are wide enough to include
reevaluation of facts and evidence to see whether the arbitrator took them in
account, or took into account wrong considerations fn arriving at the
decision.
4. Grounds for revision of the award under rule.28 of the LC rules were adduced.
5. That the decision of the arbitrator in the award is in error for reason of being
unclear, contradictory and in implementable.
After considering the parties’ arguments I find that a decision on issues raised
under the second category suffices to dispose of the application, as such I will make no
decision on matters raised under the first category. My decision on them is as follows;
I begin with the general contested issue regarding extent of powers of this court in
revision, that is, the ambit of reviewable grounds. Based on the rule in Anismic,
particularly the bolded portion above, it is clear that where no appeal lies from a
decision, the grounds for revision are wide to include among others; misconstruction of
legal, provisions, failure to consider relevant matters, misinterpretation of evidence in
light of the law, etc.
On a similar issue, the South African Labour Court of Appeal made a decision on
the issue. (and I have had opportunity to read a portion) in the case of, Shoprite
Checkers (PTY) Ltd Ramdaw & Others, as cited in DISMISSAL, DISCRIMINATION
&UNFAIR LABOUR PRACTICES, a Treatise by JOHN GROGAN, 2007 Second Edition
at page 578. The court in that case considered the ambit of its powers in review (used
under section 145 of the South African Labour Relations Act, 66/1995, an Act which is in
pari materia with the Tanzania’s Act 6/2004 and under which the term review has the
same meaning as revision) of the CCMA (similar to CMA) awards. The court came up
with the term “justifiability” as a ground for review. Under that test the question the
court considers is:
"Is there a rational objective basis justifying the connection made by the
administrative decision maker between the material properly available to him (or her) and
the conclusion eventually arrived at"
The above test would logically extend to include misinterpretation of evidence as
noted by the author of the cited Treatise. I find the above decision persuasive, and based
on it and the cited rule in Anismic Ltd., I conclude that an award is reviewable under
the Act read together with the LC rules if it's not rational/justifiable in light of the law
and the evidence properly received, as well as on misinterpretation of evidence, apart
from other grounds clearly spent out under rule 28 of the LC rules. That general
principle stated, I proceed to give my decision on the submitted arguments under the
second category.
1. My first derision is already given above where I concluded that; failure by the
arbitrator to make a finding and decision on 5 of the claims. referred the CMA
by Busegi - giving a decision on only a portion of the claim, amounted failure to
exercise vested jurisdiction, that was also a an error material to the merits of the
case under rule 28 (b) and (d) of the LC rules. The award is for that reason
quashed and set aside.
191
2. Second, I find that the arbitrator also made an error material to the merits of
the case when he issued an unclear and thus unenforceable award as submitted
by counsel for the applicant and explained herein above. That too, is sufficient
Ground for revision.
3. Third, the applicant faults the award for not complying with rule 27(3) of the
Labour Institutions (Mediation and Arbitration Guidelines) Rules, GN 67/2007
and the respondent replies the award was in substance compliant and it is not
necessary to follow the rule in a check list fashion.
My decision is this. After going through the record of arbitration proceedings and
checking the award, I agree on the main with the applicant’s submission but find that
the irregularity was deeper than non compliance with rule 27(3) of SON 67 on contents
of the award.
The major irregularity was failure by the arbitrator to have the issues well articulated and
understood by the arties before they were directed to adduce evidence. I note that in this
case, the parties were permitted to submit evidence by affidavit, that however did not
justify skipping an important stage of stating issues before proceeding to the evidence
stage. That would not have been the case had the arbitrator complied with the
requirements of rule 22 of the Guidelines. That rule stipulates vital stages in arbitration
and for ease of reference, I quote the same;
“22[1]
(2) The arbitration process involve the following five stages
(a) introduction;
(a) evidence;
(b) argument; and
(c) award ."
The importance of following the substantive aspects of the guidelines have been
explained a number of times by this court. In a case where a similar mishap was noted,
the case of Metal Products LTD v. Richard Kasese, Revision 12C,12008, I discussed in
detail what that rule entail and I find it time saving, even at the cost of making this
already long ruling longer, to quote in extenso from my decision in that case:
“…the arbitrator failed to observe the principles prescribed under rule 22 of the
Labour Institutions (Mediation and Arbitration Guidelines) Rules, GN 67/2007
regarding crucial stages in arbitration. I observed elsewhere that:
... The substantive law governing conduct and procedure of arbitration
proceedings is section 88 (4) and (5) of the Employment and Labour
Relations Act, 6/2004 (the Act). That section provides that the arbitrator has
discretion to choose the appropriate form for conducing 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;
192
while providing for stages of arbitration proceedings, it emphasize: 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 , 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- 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 hard; 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 Panqea Minerals V. Migumo Mwakalasa, LC Revision 35/2008.
The award derived from proceedings in which vital stages prescribed under rule 22
of the guidelines had been observed, particularly on formulation of issues before
evidence in proof is led, would necessarily be in substantial compliance with rule 27 of
the guidelines. That was not done in this case as a result; t is not clear what the issues in
dispute were; whether the parties understood them so as have a fair chance of presenting
their evidence in prosecution and defense of their positions. That is why now it is not
easy to evaluate the award on the first category of the submission as evidence on record
was not articulately presented to make a decision maker come out one way or the other.
My 3rd reason, based on the above discussion is that the arbitration proceedings in this
case were conducted with material irregularity likely to lead to injustice - a ground
nor revision under rule 28 (c) of the LC rules.
Consequent to the above, I grant the application, quash the arbitration proceedings and
resultant award, and order the case file remitted to the CMA for the process of
arbitration to be conducted afresh. In order to remove perception of injustice, I order
that arbitration proceed before another arbitrator.
R. M. RWEYEMAMU
JUDGE
9/8/2010
Date: 10/8/2010
Coram: Hon. R.M. Rweyemamu,
Applicant:
For Applicant: Mr. Kwelukuka Advocate Respondent:
193
For Respondent: Farida Advocate for
C.C.: Josephine Mbasha
COURT: This matter is for ruling
Ruling delivered this 10/8/2010 in presence of parties advocate.
R. M. RWEYEMAMU
JUDGE
9/8/2010
COPY TO:
1. Lawcastles (Advocate),
6th Floor, Nyerere Pension Towers,
P.O. Box 78934,
Dar es Salaam,
TANZANIA.
2. Rex Attorneys,
Rex House,
145 Magore Street, Upanga,
P.O. Box 7495,
Dar es Salaam,
TANZANIA.
EVIDENCE SHEET – LC
IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
[CORAM: RUTAKANGWA, J.A., KIMARO, J.A., & LUANDA, J.A.]
CIVIL APPLICATION NO 151 OF 2008
CHAMA CHA WALIMU TANZANIA …………………..………. APPLICANT
VERSUS
THE ATTORNEY GENERAL …………………………………. RESPONDENT
[Application for Revision from the Proceedings and Ruling of the High Court of Tanzania
[Labour Division]
At Dar es Salaam
Mandia, J.
Dated the 13th day of October, 2008
In Application No. 19 of 2008
_____________
Held:
1. That rule 24[4] of the Labour Court Rules grants an automatic right to a
respondent to file “a notice of opposition, a counter affidavit or both” within
“fifteen days from the day on which the application is served on the party
concerned”.
2. That in law, an injunction is said to be interlocutory when granted in an

interlocutory application and continues until a certain defined period. It aims
at preserving the status quo until, say, the final determination of the main
194
application or suit.
3. That where a permanent injunction is granted by the Labour Court, the

aggrieved party has an automatic right of appeal to the Court of Appeal
under section 57 of the Labour Institutions Act, 2004.
4. That it is settled that except under exceptional circumstances a party to

proceedings in the High Court cannot invoke the revisional jurisdiction of
this Court as an alternative to the appellate process had been blocked by
judicial process. [See, for instance, Halais Pro-Chemie v. Wella A.G. [1996]
TLR 269 [CA].
5. That it is settled law that wrongful citation and/or non-citation of the

enabling provisions of the law renders the relevant proceeding incompetent.
[See for instance Edward Bachwa & Three Others v. A.G., Court of Appeal of
Tanzania at Dar es Salaam, Civil Application No. 128 of 2008 (unreported)].
6. That citing a wholly inapplicable provision of the law is a worse situation
than citing a correct section but a wrong sub-section [See particularly Harish
A. Jina by his Attorney Ajar Patel v. Abdulrazak Jussa Suleimani, Court of
Appeal of Tanzania at Zanzibar, Civil Application No. 2 of 2003 [all
unreported]
7. That it is the duty of a party and not that of the court to correct his pleading
and / or documents relied on.
8. That 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 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 [See particularly, China Henan
International Co-operation Group v. Salvand K.A. Rwegasira, Court of Appael
of Tanzania at Dar es Salaam, Civil Application N. 22 of 2005 (unreported)].
9. Labour Court cannot exercise these wide powers randomly or and when it
wishes. Being judicial powers, it can only exercise them when properly moved
and/ or when the person wanting it to exercise them has a right conferred on
him to do so either under this Employment Act itself or under any other
written law. But, in our settled view, that right does not emanate from
section 934[1][f][ii] as we shall presently demonstrate, by citing a few
examples.
10. That any person feeling aggrieved by a decision of the Registrar under Part IV
can appeal to the Labour Court on the basis or S.94[1][a] of the ELRA. The
right of appeal is created or granted by section 57.
11. That a person wishing the Labour Court to review or revise an arbitrator’s
award made under Part VIII, cannot move that court under s.94.[1] [b] [i] of
the ELRA; but rather he or she has to proceed under s.91[1]. Also the right to
refer a complaint to the Labour Court is granted by s.86[7] [b] and not s.85[4]
and [5], among others, and not s.94[1] [f] [i], etc.
195
12. That regarding injunctions to restrain a strike, it is also our finding that the
said court has been given such jurisdiction under the Employment Act only.
All the same, such jurisdiction is subject to two conditions precedent. These
are that the strike must be illegal and it [court] must be properly moved
under the relevant enabling provisions of section 84[1][a] of the ELRA.
13. That where the Labour Court is enjoined by law to strike out an incompetent
application and does not do so, it becomes the jurisdiction of teh CAT to do
what the Labour Court has failed to do. Failure to do so would be tantamount
to perpetuating illegalities, and in particular the injunction order which is
admittedly a nullity. [See also Tanzania Heart Institute v. The Board of
Trustees of the National Social Security Fund, Court of Appeal of Tanzania,
Civil Application No. 109 of 2008 (unreported); Anthony J. Tesha v. Anita
Tesha, Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 10 of
2003 (Unreported); Aloyce Msele v. The Consolidated Hlding Corporation,
Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 11 of 2002
(Unreported); and Mathias Eusebi Soka v. The Registered Trustees of Mama
Clementina Foundation & 2 Others, Court of Appeal of Tanzania at Dar es
Salaam, Civil Appeal No. 40 of 2001 (unreported)].
RULING OF THE COURT

4TH NOVEMBER 2008 & 13TH NOVEMBER 2008
RUTAKANGWA, J. A.
This is an application for revision. It is brought by Notice of Motion under section

4[3] and [5] of the Appellate Jurisdiction Act, Cap 141, henceforth the Act, and Rule 45 of
the Tanzania Court of Appeal Rules, 1979 [hereinafter the Rules].
The applicant, Chama cha Walimu Tanania, or CWT, through Mr. Mabere
Marando and Mr. Gabriel Mnyele, learned advocates, is seeking revision of the
proceedings in Application No. 19 of 2008 in the Labour Division or the High Court of
Tanzania, henceforth the Labour Court. The application was instituted against it by the
respond herein, the Attorney General of the Government of the United Republic of
Tanzania. Among the grounds cited in the notice of motion for moving the Court to
exercise its revisional jurisdiction are that the Labour Court:
i) Entertained the said application without jurisdiction
ii) Entertained the application which was not properly before it;
iii) Heard the application and granted the order prayed for therein without
affording the applicant opportunity to present its case by way of a counter
affidavit, thereby denying it the right to be heard; and
iv) Relied on extraneous matters that were not on record in granting an
injunction, and without specifying as to whether it was permanent or
temporary.
The respondent has vehemently opposed the application. Mr. Donald Chidowu,
learned Principal State Attorney, appeared before us to resist the application.
To facilitate a quick appreciation of the reasons behind this application, a brief
background is necessary. The affidavital evidence on record and the proceedings before
the Labour Court, provide this background.
196
The applicant is a trade union, dully registered under the provision of the
Employment and Labour Relation Act, 2004 [No. 6], henceforth the Employment Act. It
has about 156,923 members who are employed in the teaching profession nationwide. For
quite some time the applicant, on behalf of its members, has locked horns with the
government of the United Republic of Tanzania [the government hereinafter] over a
number of issues concerning the welfare of its members. On 4th February 2008, the
applicant declared a trade dispute with the government. On 18th August 2008 it issued a
strike notice of sixty days. The said notice was issued pursuant to the mandatory
requirements of section 26 [2] [d] of the Public Service [Negotiating Machinery] Act, 2003
[No.19], henceforth Act No. 19 of 2003. The strike, according to the notice, was to start on
15th October, 2008.
Subsequent to the said strike notice, the two parties together with other stakeholders,
between 26th August, 2008 and 4th October, 2008, held four meetings with a view to
settle the dispute by way of negotiations. The meetings did not fully resolve the impasse.
On 9th October 2008, the Majira newspaper published that the teachers were to
strike effective from 15th October, 2008. It was quoting one Gratian Mukoba, the
applicant President, as the source of that information.
Believing that the threatened strike was illegal and malicious, the Attorney
General, on 10th October, instituted the earlier mentioned application under a certificate
of urgency. The application was by chamber summons and the respondent [applicant
then] was seeking the following orders:-
1. That this Honourable Court be pleased to grant an order for permanent
injunction, restraining the Respondent and their [sic] members from calling for
and/or participating in the planned strike to be held on 15th October, 2008.
2. That this Honouble Court be pleased to give such further orders and directions in
these proceedings as it shall deem appropriate.
3. Cost f this Application be paid by the Respondents”
[Emphasis is ours]
The Labour Court was moved to grant these reliefs or orders under Rule 94[1] [f]
[11] of the Employment and Labour Relations Act No. 6 of 2004, rules 24[11] [a]; 24[11] [c];
55[1] and 55[2] of Labour Court Rules Government Notice No. 106 of 2007.
The Labour Court issued a summons for mediation on 13th October, 2008. The
mediation was to take place on the same day at 12.00noon. Our perusal of the Labour
Court original record has revealed that of the four top officials of the CWT who were to
be served with copies of the court summons and chambers summons, only two were
served. These were Mwl. Ezekiel T. Oluoch [the Deputy Secretary General] and one
Leonard Haule, who were served at 11.43a.m and 11.47a.m., respectively. The President
and Secretary General of CWT were not served.
Mediation, however, did not take place because the parties were not represented
by officials with authority to mediate. The Registrar sent the court record to “Justice
Mandia for directions” on the same day. Before Mandia, J., Mr. Senguji, learned Principal
State Attorney, appeared for the Attorney General, being assisted by Ms. Barke Sahel,
learned Senior State Attorney. For the respondent CWT, Mr. Mnyele, learned advocate,
entered appearance.
197
What was supposed to be an appearance to receive directions turned out to be an
appearance for the hearing of the application. Counsel for the respondent herein
submitted that the CWT had called out a strike without complying fully with the
provisions of s.26[2] of Act 19 of 2003. They accordingly urged the learned Judge to grant,
on the basis of the enabling provisions cited in the chamber summons, “their
application for a temporary injunction”, while they continued with negotiations. We
have to observe in passing here that there was no application for a temporary injunction.
Mr. Mnyele resisted the prayer. To him the prayer was being made prematurely as
they were yet to file a counter-affidavit. He also submitted that the said court had no
jurisdiction to entertain the application as it had been wrongly instituted under the
provisions of the Employment Act when the appropriate legislation was Act No. 19 of
2003. He accordingly pressed that the application be “thrown out for want of
jurisdiction” or in the alternative, before the sought injunction was granted, they be
afforded opportunity to file a counter affidavit as they had only been summoned for
mediation.
In his short rejoinder Mr. Senguji argued that the court had exclusive jurisdiction
over the matter under the enabling provisions cited and the respondent has no automatic
right to file a counter affidavit.
In this ruling, the learned judge held that the court was seized with jurisdiction to
hear and determine the matter. He then proceeded to consider the averments contained
in the affidavit of one Mathias Kabunduguru, filed in support of the chamber summons,
and its various annextures. After considering the principles enunciated in the case of
ATTILIO V. MBOWE [1996] HCD 284 on the grant of injunctions, he granted the
injunction sought in the chamber summons.
The CWT was aggrieved by the conduct of the entire proceedings before the
Labour Court. It immediately filed this application.
When the application was called on for hearing, Mr. Chidowu rose to argue four
[4] points of preliminary objection notice of which had earlier been lodged. The four
grounds of objection are as follows:
1. The application is incompetent for the applicant has not demonstrated any
circumstances special or otherwise to move this Honourable Court to exercise its
powers of revision as an alternative to appellate jurisdiction.
2. The application is misconceived as the Order that the Applicant wants this
Honourable Court to revise is an interlocutory order.
3. The application is fatally defective for want of proper – enabling provision of the
law to move the court in this application.
4. The affidavit in support of the law to move the court in this application.
5. The affidavit in support of the application is bad in law for accommodating
hearsay evidence, citation of laws and legal grounds contrary to the principles
governing affidavits.”
Both counsel submitted at length either in support of or in opposition to each one
of these four points of objection. Mr. Chidowu adamantly argued that the application is
incompetent and should be struck out. He cited to us a number of decisions by this Court
in support of his position on each point. Mr. Mnyele was equally forceful and resourceful
in urging us to find each point to be misconceived in law. He, too, referred us to a
198
number of decisions by the Court to bolster his arguments. We shall begin out discussion
with the first point of objection as listed above.
As already shown in this ruling, the respondent went before the Labour Court
seeking a permanent injunction to restrain the applicant and its members “from calling
for and / or participating in the planned strike to be held on 15th October 2008”. We
have already demonstrated how the learned High Court Judge heard the respondents on
his application even before the applicant had filed its counter affidavit.
Indeed, Mr. Senguji had pressed the High Court to grant the orders sought
forthwith, because as he put it, “counter-affidavit is not granted automatically”. We
cannot restrain ourselves from observing that this was an unfortunate proposition, as rule
24[4] of the Labour Court Rules grants an automatic right to a respondent to file “a
notice of opposition, a counter affidavit or both” within “fifteen days from the day
on which the application is served on the party concerned”. This clear provision of
the law notwithstanding, the learned judge essentially heard the respondent on the
merits and subsequently ruled as follows:
“After all is said and done, this court finds that there has been made out a
good case by the applicant in support of the orders prayed for in the
application. The respondent CHAMA CHA WALIMU TANZANIA – CWT are
hereby restrained from calling for and/or participating in the planned strike
to be held on 15th October, 2008. In view of the limited time available, the two
parties to this matter should each make an immediate announcement in the
media of the grant of this injunction.” [Emphasis is ours].
The issue here is whether this injunction was an interlocutory one or had the
effect of finally determining the application before the Labour Court. In law, an
injunction is said to be interlocutory when granted in an interlocutory application and
continues until a certain defined period. It aims at preserving the status quo until, say,
the final determination of the main application or suit. According to BLACK’S LAW
DICTIONARY, 8TH EDITION, at page 800:-
“A temporary injunction is issued before or during trial to prevent an
irreparable injury from accruing before the court has a chance to decide the
case”.
The form which such an injunctive order takes is well explained in KERR ON
INJUNCTIONS; 6th edition, by J.M. Patterson, at page 648 as follows:-
“…under the former practice the form usually adopted was until the hearing of
the cause. Under the present practice it is ‘until judgment in this action’, or
‘until further order’ to show that then injunction is not to extend beyond the
date when judgment is given, unless then continued, nor until judgment if
discharged previously by order of the Court.”
Mr. Mnyele strenuously argued that the injunction order given to the Labour
Court on 13/10/2008 was an interlocutory one and so could not appeal in view of the
mandatory provisions of ……of the Act. However, he argued they have found it proper
proceed by way of revision because their complaint is not against injunction order. They
are challenging the regularity of the proceedings in the Labour Court, which he said, were
irregularly …….as the grounds in the notice of motion show.
199
On his part, Mr. Chidowu, who was admittedly equivocal, …..that the respondent
has moved the High Court to grant an ……restraining the applicant and its members from
calling for participating in the planned strike. Since the application was …..,he stressed,
the applicants, if aggrieved, ought to have …..He cited to us the decision on of this Court
in the case of …CMBA, ESQ, EX-EMPLOYEE, E.A. COMMUNITY V. THE NATIONAL
REVENUE OFFICER, ARUSHA & TWO OTHERS; AR, Civil Application No. 3 of 2002
[unreported], in support of his submissions.
We have carefully considered all the arguments presented to us on the issue. We
have dispassionately read the ruling of the Labour Court and the order extracted
therefrom in the light of the order sought in the chamber summons. We are the firm view
that the order issued was not interlocutory. It had the effect of conclusively determining
the application. The respondent was unreservedly granted what he was seeking in the
chamber summons, as the applicant and its members were unequivocally restrained from
“calling for and/or participating in the planning strike”. There was no other issue
remaining to be determined by the Labour Court. Both in form and substance the issued
injunction order carries the hallmarks of finality, as it was not granted pending any
further action being taken in those proceedings. That is why no order to file a
counter-affidavit was given. The applicant, therefore, had an automatic right of appeal to
this Court under section 57 of the Labour Institutions Act, 2004. The grounds of
complaint show in the notice of motion, in our settled view, all being points of law, would
have been taken up as grounds of appeal.
It is settled that except under exceptional circumstances a party to proceedings in
the High Court cannot invoke the revisional jurisdiction of this Court as an alternative to
the appellate process had been blocked by judicial process. See, for instance, HALAIS
PRO-CHEMIE V. WELLA A.G. [1996] TLR 269 [CA]. No such circumstances have been
shown here. We accordingly uphold this particular point of preliminary objection, and
hold that the application for revision is incompetent.
In view of our holding on the first point of objection, it is obvious that the second
point does not hold water. Indeed, the two points would have fittingly been raised in the
alternative. Regarding the other two points, we find no pressing need here to canvass
them. However, in order to avoid a recurrence of the same mistake, we only wish to
observe quickly that this court had been properly moved under section 4[3] of the Act.
See, for instance, this Court decisions in OLMESHUKI KISAMBU V.
CHRISTOPHERNAING’OLA, Civil Revision No. 1 of 2000, AUGUSTINO L. MREMA V. R.,
Cr. Appeal No. 61 of 1988; HARISH A. JINA. By this Attorney AJAR PATEL V.
ABDULRAZAK JUSSA SULEIMANI, ZNZ Civil Application No. 2 of 2003 [all unreported]
Normally, having ruled the application to be incompetent we would have
proceeded to strike it out forthwith. However, because of fatal illegality which is patent
on the face of the Labour Court’s record, we shall refrain from following that path. We
shall now show why.
While urging us to strike out this application on the ground of wrong citation of
the enabling provisions of the law, Mr. Chidowu correctly submitted that it is settled law
that such citation and/or non-citation renders the relevant proceeding incompetent. He
fortified his argument by citing the decision of this Court in the case of EDWARD
BACHWA & THREE OTHERS V. THE ATTORNEY GENERAL & ANOTHER, Civil
Application No. 128 of 2008 [unreported].
200
After so surmising, the learned trial judge determined the application by granting
the orders sought in the chamber summons, as already show.
As rightly admitted by Mr. Chidowu and supported by both counsel for the
applicant, non-citation and / or wrong citation of an enabling provision render the
proceeding incompetent. Decisions by this Court in which this principle of law has been
enunciated are now legendary. Most of them are cited in the case of EDWARD BACHWA
V. THE ATTORNEY GENERAL [supra]. To that list may be added:
i) FABIAN AKONAAY V. MATHIAS DAWITE, Civil Application No. 11 of
2003 [unreported] and
ii) HARIS JINA V. U.A.J. SULEIMAN [supra]
HARISH JINA’S Case, where an inapplicable section was cited, the Court
categorically stated that citing a wholly inapplicable provision of the law was a worse
situation than citing a correct section but a wrong sub-section. As if providing, in
anticipation, an answer to our current problem, the Court said:-
“…it may well have been a typographical error as pleaded by M. Patel, but if
that was so, he ought to have sought to correct the error before the ……matter
came for hearing.”
It is the duty of a party and not that of the court to correct his pleading and / or
documents relied on. If it were otherwise we would not avoid being reproached with
putting aside our mantle of impartiality.
It may also be worthwhile pointing out here that the gravity of the effort in
omitting either to cite the enabling provision or citing a wrong one was succinctly stated
by this court in the case of CHINA HENAN INTERNATIONAL CO-OPERATION GROUP
V. SALVAND K.A. RWEGASIRA, Civil Application N. 22 of 2005 [unreported]. The Court
said:
“ ……here the omission in citing the proper provision of the rule relating to a
support of the application is not in our view, a technicality 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’. [Emphasis is ours].
That being the clear position of the law, the learned trial judge ought to have
struck out the application before him.
But would the respondent’s application before the Labour Court have been saved
by citing section 94[1][f][ii] of the Employment Act as the enabling provision? Our
considered answer to this pertinent question, after studying the entitle Act, is in the
negative. Let us first look at this provision itself. It provides as follows:
“94 [1] Subject to the Constitution of the United Republic of Tanzania, 1977,
the Labour Court shall have exclusive jurisdiction over the application,
interpretation and implementation of the provision of this Act and to decide:
a) Appeals from the decisions of Registrar made under Part IV;
b) Reviews and revisions of
i) Arbitrator’s awards made under this part.
ii) Decisions of the Essential Services Committee made under Part VI;
c) Reviews of decisions, codes, guidelines, or regulations made by the
Minister under this Act;
201
d) Complaints other than those that are to be decided by arbitration under
the provisions of this Act;
e) …….reserved for decision by the Labour Court under this Act; and
f) Applications including
i) A declaratory order in respect of any provision of this Act, or
ii) An injunction.”
It is clear from its plain language that the section was never intended to be an
enabling provision for instituting any proceeding before the Labour Court. Falling under
Part VII Sub-Part C, which is headed “Adjudication” it only spells out the powers of the
Labour Court. All the same, in our considered opinion, the Labour Court cannot exercise
these wide powers randomly or and when it wishes. Being judicial powers, it can only
exercise them when properly moved and/ or when the person wanting it to exercise them
has a right conferred on him to do so either under this Employment Act itself or under
any other written law. But, in our settled view, that right does not emanate from section
934[1][f][ii] as we shall presently demonstrate, by citing a few examples.
It cannot be seriously contended that any person feeling aggrieved by a decision of
the Registrar under Part IV can appeal to the Labour Court on the basis or S.94[1][a]. The
right of appeal is created or granted by section 57. This section reads as follows:
“Every person aggrieved by a decision of the Registrar made under this Part
may appeal to the Labour Court against that decision.”
Similarly, a person wishing the Labour Court to review or revise an arbitrator’s
award made under Part VIII, cannot move that court under s.94.[1] [b] [i]. He or she has
to proceed under s.91[1]. Also the right to refer a complaint to the Labour Court is granted
by s.86[7] [b] and not s.85[4] and [5], among others, and not s.94[1] [f] [i], etc.
On the issue of injunctions generally, we find that indeed the Labour Court has
jurisdiction to grant them. Regarding injunctions to restrain a strike, it is also our finding
that the said court has been given such jurisdiction under the Employment Act only. All
the same, such jurisdiction is subject to two conditions precedent. These are that the
strike must be illegal and it [court] must be properly moved under the relevant enabling
provisions of the said Act. From our objective reading of this Act, we are of the settled
mind that the only relevant provision is section 84[1][a]. This provision reads as follows:
“Where a strike or lock out is not in compliance with this Act, or a trade
union or employer or employers’ association engages in prohibited conduct,
the Labour Court shall have exclusive jurisdiction-
a) To issue an injunction to restrain any person from-
i) Participating in an unlawful strike or lock out
ii) Engaging in any prohibited conduct; ……..”
So assuming, without deciding here, that the provisions of the Employment Act
cover strikes declared under s.26[2] of the Act No. 19 of 2003, then one seeking an
injunction to restrain such a strike ought to proceed under s.84[1][a]. It goes without
saying, therefore, that the learned trial judge had been wrongly moved and erred in law in
entertaining and determining Application No. 19 of 2008 which was not competently
before him. It will then be accepted without further elaboration that the proceedings
before Mandia J. were a nullity. Since the proceedings were a nullity even the order made
therein including the court’s ruling and final order were nullities. Fortunately, counsels
for both parties in these proceedings are of the same firm view.
202
Because the proceedings before the Labour Court were a nullity, that’s why we felt
constrained not to strike out this application. We did so in order to remain seized with
the Labour Court’s record and so be enabled to intervene suo mottu to remedy the
situation. This court recentlythus acted, in almost similar circumstances, in the case of
TANZANIA HEART INSTITUTE V. THE BOARD OF TRUSTEES OF THE NATIONAL
SOCIAL SECURITY FUND, Civil Application No. 109 of 2008 [unreported].
As the learned trial judge was enjoined by law to strike out the respondent’s
incompetent application and did not do so, it now falls within our jurisdiction to do what
he failed to do. This will not be the first time the Court is doing so. It has thus intervened
in the past.
In the case of MATHIAS EUSEBI SOKA V. THE REGISTERED TRUSTEES OF
MAMA CLEMENTINA FOUNDATION & TWO OTHERS, Civil Appeal No. 40 of 2001
[unreported] the Court struck out a notice of appeal against the National Insurance
Corporation of Tanzania, a Specified Public Corporation, which had been sued without
prior leave of the High Court in terms of s.9 of the Bankruptcy Ordinance. After striking
out the notice the Court went on to pertinently observe that:
“……However, that is not enough because the decision of the High Court will
still remain intact though illegal…”
It accordingly invoked its revisional powers under section 4[2] of the Act, to quash
the proceedings in the High Court and set aside all the orders made therein.
In the case of ANTHONY J. TESHA V. ANITA TESHA, Civil Appeal No. 10 of 2003
[unreported], during the hearing of the appeal it was discovered that the High Court had
issued leave to appeal when it had been wrongly moved. The Court held that the High
Court had erred in not striking out the application. It accordingly struck out the
application as well as the notice of appeal. The Court did the same in identical
circumstances of wrong citation in the case of ALOYCE MSELE V. THE CONSOLIDATED
HOLDING CORPORATION, Civil Appeal No. 11 of 2002 [unreported].
In this particular case we are strictly enjoined by law to do what the learned trial
judge in the Labour Court failed to do. Failure to do so would be tantamount to
perpetuating illegalities, and in particular the injunction order which is admittedly a
nullity. Acting under s.4[3] of the Act we hereby revise the incompetent proceedings in
the Labour Court. The same as well as all the orders including the impugned injunction
granted therein are hereby quashed and accordingly set aside. We make no order for
costs.
DATED at DAR ES SALAAM this 11th day of November, 2008
E.M.K. RUTAKANGWA, JUSTICE OF APPEAL
N.P. KIMARO, JUSTICE OF APPEAL
B.M. LUANDA, JUSTICE OF APPEAL
I certify that this is a true copy of the original.
P.B. KHADAY, DEPUTY REGISTRAR
203
LABOUR DIVISION
AT DAR ES SALAAM
BETWEEN
CHARLES MUSA MATELEGO – APPLICANT
AND
EPSOM LTD. – RESPONDENT
[Original GEITA/CMA/111/2007/9]
Held:
1. That the CMA had no jurisdiction to arbitrate the dispute referred
to it out of time, without first hearing and deciding that issue of
delay as required by law.
2. That there was no record of arbitration proceedings, such the
award was not based on record which is a material irregularity
vitiating the award.
3. That the CMA award fell materially short of the requirements of
Rule 27 of the Labour Institutions [Mediation and Arbitration]
Guidelines, GN 67/2007, which requires the award to contain apart
from facts of the dispute; ‘…the issue or issues in dispute, summary
of parties arguments’ evidence and arguments, reasons for the
decision and the order [precise outcome of the arbitration].’
18/9/2009 & 30/9/2009

RWEYEMAMU R. M. J.
RULING
The applicant seeks revision of the Commission for Mediation and Arbitration [CMA]
award dated 24/8/2007. The background of the award was that the applicant/employee
referred a dispute of unfair termination on ground of operational requirements to the
CMA on 17/5/2007 against the respondent/his employer. The challenged termination
occurred on 14/3/2007 (which was after expiry of the prescribed time).
The CMA gave a short award which I find convenient to quote in full:
“UAMUZI – ARBITRATION AWARD”
KIFUNGU CHA 88 [8] NA 89 SHERIA YA AJIRA NA MAHUSIANO KAZINI NA. 6
YA MWAKA 2004
Rufaa hii ililetwa katika Tume ya Usuluhishi na Uamuzi na Mfanyakazi
Charles Musa Matelego aliyekuwa ameajiriwa na Kampuni ya EPSOM LTD. Geita
kazi yake yeye ilikuwa ya Helper and Stores”.
Alianza kazi tarehe 24/3/2006 na aliachishwa kazi tarehe 14/3/2007 alileta
rufaa kwenye Tume ya Usuluhishi an Uamuzi kupinga kuachishwa kazi na kutaka
arudishwe kazini. Katika barua ya kuachishwa kazi mfanyakazi alielezwa sababu za
kuachishwa kazi kwamba ni kutokana na kupungua kwa kazi za Kampuni ambazi
mfanyakazi huyu alikuwa akizifanya hivyo ameachishwa kwa misingi ya “Operation
requirements” Mwajiri aliomba ushauri kutoka Ofisi ya Chama cha Wafanyakazi
wa Sekta ya Madini na Ujenzi TAMICO Wilaya ya Geita akashauriwa jinsi ya kulipa
204
mafao ya mfanyakazi na akatekeleza kama alivyoshauriwa, mfanyakazi akilipwa
haki zake zote za kuachishwa kazi ikiwa ni pamoja na hati ya utumishi (Certificate
of Service).
Kwa mujibu wa Kanuni ya 9[4] mahitaji ya uendeshaji kazi wa mwajiri
[Employer’s Operational Requirements] ni moja ya sababu zinazokubalika kwa
mfanyakazi kuachishwa kazi.”
The applicant seeks revision of that award on grounds that; and I quote:
“4. MAMBO YA KISHERIA YALIYOIBUKA”
a) Katika uamuzi wa “ARBITRATOR” kuna mapungufu ya kisheria
yafuatayo:-
i) Uamuzi haujazingatia kanuni ya 27[3] ya Labour Institution
[Mediation and Arbitration Guidelines GN No. 67]
b) Katika uamuzi wa “ARBITRATOR” kuna makosa ya dhahiri kuhusiana na
shauri la msingi hivyov kusababisha haki kutotendeka kwa sababu
zifuatazo:
i) Arbitrator aliach kwa makusudi kuzingatia ushahidi uliopo
mbele yake na kuibuka na mambo si yaliyowasilishwa kwake
kiushahidi.
ii) Arbitrator aliamua kwa makusudi kusema uongo kuwa
mwajiri aliomba na kushauriwa na TAMICO jinsi ya kulipa
mafao ya mfanyakazi bila uthibitisho wa barua iliyotoka kwa
mwajiri kwenda ofisi ya TAMICO ya kuomba kufanya kikao
cha majadiliano na wala uthibitisho wa muhtasari wa kikao
cha TAMICO na EPSOM ya utekelezaji wa kipengele cha 38
cha sheria ya ajira na mahusiano katika kazi No. 6/2004”
After going through the CMA record and the above award, I noted three main
irregularities, incidentally similar to two other cases revision 4/2007 and 5/2007,
decided by the same arbitrator, at the same station, involving the same employer
namely:
4. The CMA had no jurisdiction to arbitrate the dispute referred to it out

of time, without first hearing and deciding that issue of delay as
required by law.
5. There is no record of arbitration proceedings, such the award was not
based on record which is a material irregularity vitiating the award.
6. The award which is deliberately quoted above falls materially short of
the requirements of Rule 27 of the Labour Institutions [Mediation and
Arbitration] Guidelines, GN 67/2007. That rule requires the award to
contain apart from facts of the dispute;” …the issue or issues in dispute,
summary of parties arguments’ evidence and arguments, reasons for the
decision and the order [precise outcome of the arbitration]”.
Due to the above irregularities, I grant the application for revision of the award; quash
the whole CMA proceedings and order the CMA to process the dispute afresh according
to law.
205
R. M. RWEYEMAMU
JUDGE
18/9/2009
Date: 30/9/2009
Coram: Hon. R. M. Rweyemamu, J.
Applicant: Present in person
Respondent: Absent
C.C.: V. Kapaya
Court: Ruling delivered this 30/9/2009 in presence of Applicant. Parties to be
supplied
with a copy of this ruling immediately hereafter.
R. M. RWEYEMAMU
JUDGE
18/9/2009
206
LABOUR DIVISION
AT MWANZA
BETWEEN
MUSOMA FISH PROCESSING LTD. ……………………….. APPLICANT
VERSUS
MAULID SHAURINI ……………………………. RESPONDENT
[Original CMA/MAR/87/2009]
Held:
That under section 32 of the ELRA, an employee is entitled to sick leave for six
months calculated as per formula under sub section (2)(a) and (b), if he produces a
medical certificate (under sub-section (3)(a)), provided that such certificate is issued
by a certified medical practitioner (sub section (4)).
RULING
22/3/2010 & 25/10/2010
R. M. RWEYEMAMU, J.
The applicant/employer seeks revision of the Commission for Mediation and
Arbitration (CMA) award delivered by the arbitrator on 18/8/2009 in favour of the
respondent/employee. In the award, the arbitrator granted the employee's claim for
payment of salaries during sick leave for 126 days calculated as per formula prescribed
under section 32(1) (4) of the Employment and Labour Relation Act, 6/2004 (the Act). The
employer faults the arbitrator's decision to grant payment of salaries for 6 months as per
section 32 of the Act, when the employee was neither, under supervision of a recognized
medical practitioner nor appearing for work.
According to section 32 of the Act, an employee, is entitled to sick leave for six
months calculated as per formula under sub section (2)(a) and (b);. if he produces a
medical certificate – sub -section (3)(a) provided such certificate is issued by a certified
medical practitioner sub section (4).
The undisputed facts at CMA were that: The employee was involved in an
accident on 29/3/2009 and was hospitalized from that time to 8/4/2009. He showed a
certificate to that effect to the employer who then authorized payment of his March
salary. Thereafter, the employer refused to pay the April salary and decided, it would be
paid only if he returned to work. It is also on CMA record however, that the employer
testified that the employee was thereafter given a 4 weeks Excused Duty (ED) and on
expiry of that period, the ED was extended for another 4 weeks. The employee's salary
was shillings 102,900/= per month.
It was on those facts the CMA decided that: The employee was entitled to full
207
payment stipulated under section 32 of the Act being; full salary for April, May, June, and
half pay for remaining 3 months. The issue for decision is whether on the adduced facts,
the arbitrator's decision was in err and therefore revisable.
Payment of sick leave under the relevant law is premised on production of a

medical certificate from a certified medical practitioner. It is undisputed that the
employee produced the required certificate showing he was hospitalized until 8/4/2009,
and based on that, he was paid his March salary. According to the employer's testimony,
he was also given a 4 weeks ED twice, justifying salary payment for April and May. To
that extent, the arbitrator's award for payment of salaries for those two months was
proper and I confirm it.
The position is, however, different in respect of the remaining months of June, July
and August. For the said months, the employee produced no certificate from a certified
medical practitioner (if he was still sick) as required by law. Due to that fact, the
arbitrator's decision that the employee was entitled to payment of Jane to - August
salaries was a misapplication of the law on the facts/evidence on records. For that reason,
I find the arbitrator's decision has been "an error material to the merits of the subject
matter ….involving injustice”. I revise and quash it.
In the result, this application is partly successful in that the arbitrator's award is
varied to the extent that the order for payment of full salary for April and May is
confirmed but the order for payment of the subsequent 3 months is quashed.
R. M. RWEYEMAMU
JUDGE
25/10/2010
Date: 25/10/2010
Applicant: P. Kyangara HR Officer of the Company
For Applicant:
Respondent: Present in person
For Respondent:
COURT: Ruling delivered this 25710/20M in presence of both parties.

R/A on point law Explained parties to pick up copies of the decision
208
hereafter.
R. M. RWEYEMAMU
JUDGE
25/10/2010
Copy to:
1. Maulidi Shaurini
Musoma.
2. Musoma Fish Processing Ltd.,
Musoma.

LABOUR DIVISION
AT ARUSHA
NORTH EAST TANZANIA CONFERENCE [SDA]…………….. APPLICANT
VERSUS
TAJIEL TUNZO MBWAMBO ……………………………. RESPONDENT
[Original CMA/MAR/87/2009]
Held:
That the CMA lacks jurisdiction to proceed in a time barred dispute unless it first
condones the delay as per prescribed procedures.
RULING
22/3/2010 & 25/10/2010
R. M. RWEYEMAMU, J.
On 8/7/2009 the applicant/employer filed an application for revision of the Commission

for Mediation and Arbitration (CMA) ex-parte award and subsequent ruling dated
22/6/2009 dismissing the application to set that ex-parte award aside. Among the
grounds raised by the applicant for revision in the affidavit adopted wholly at the hearing
were:
The arbitrator erred rushing the dispute to arbitration when the process of
conciliation and mediation was not yet complete. Regarding the former, there seems to
be some merit because the dispute seems to have been originally registered at Same so
the argument that the matter was under conciliation at some labour office in 2008 and
was later referred to the CMA without notice to the employer before the process was
completed seems to be merited.
209
The applicant further submitted that there was no proof of service; that service
was made on Friday 6/2/3009 for hearing on 9th Monday and it was made in the name of
the executive director who was absent; and that therefore the ex-parte award, was
against principles of fair hearing. The application was opposed by the
respondent/employee on grounds contained in the counter affidavit.
After going through the facts on record, I note that the decision in this case must
depend on a different aspect of the proceedings other than those submitted by the
parties. The facts are:
The employee filed a dispute of unfair termination stamped as received by the

CMA on 5/12/2008. The dispute is indicated on the: Statutory Form No. 1 to have arisen
on 1/7/2008 understandably, the referral was filed together with statutory form no 7- the
application for condonation of the late referral. On 9/2/2009 when the
applicant/employer failed to appear, the CMA proceeded to arbitrate the dispute which
culminated in the exparte award dated 23/3/2009 and subsequent ruling of 22/6/2009
dismissing the application to set it aside, both subject matter of this application.
It would appear the fact that the dispute was time barred escaped attention of the
CMA because a dispute of this nature ought to have been referred within 30 days from
the date of termination as prescribed under Rule 10 (1) of the Labour 'Institutions
(Mediation and Arbitration) Rules, GN 64/2007 or 60 days in case of any other labour
dispute. From the record, the CMA made no decision on the issue of time limit despite
the application for condonation.
This court has held in a number of decisions that the CMA lacks jurisdiction to
proceed in a time barred dispute unless it first condones the delay as per prescribed
procedures. That was not done in this case. For that reason, I use powers vested in this
court under rule 28 of the Labour Court Rules GN, 106/2007, to quash and set aside the
whole proceedings including the award, ruling and subsequent orders, and order-the
dispute processed afresh according to law.
R. M. RWEYEMAMU
JUDGE
29/9/2010
Order: This decision will be delivered to the parties on my behalf in Arusha by Hon.
Justice S. Moshi who will be on session. File handled over to the Registrar to facilitate the
exercise.
R. M. RWEYEMAMU
JUDGE
29/9/2010

210
LABOUR DIVISION
AT DAR ES SALAAM
MISC. APPLICATION NO. 1 OF 2008
BETWEEN
TANZANIA UNION OF INDUSTRIAL & - APPLICANT
COMMERCIAL WORKERS [TUICO]
AND
ATTORNEY GENERAL - 1ST RESPONDENT
MINISTER FOR LABOUR &
YOUTH DEVELOPMENT - 2ND RESPONDENT
MANAGING DIRECTOR TANZANIA CHINA
FRIENDSHIP TEXTILES CO. LTD. - 3RD RESPONDENT
Held:
1. That under Rule 2(2) of the Labour Court Rules, an “application" includes an
interlocutory application or “any application” directed by the court.
2. That a proper construction of Rule 24(l) of the Labour Court Rules shows
that it is a generic rule for "any application", which obliges the applicant to
take out a notice under this Rule; in which Form No. 4 in the Schedule
applies as per Rule 24(2).
3. That Rule 27(1) of the Labour Court Rules provides for procedure to file a
written notice of review, which must be filed to the Registrar within fifteen
days from the date the decision to be reviewed was delivered. After filing the
notice under Rule 27(1) the party seeking review should file a Chamber
Application under Rule 26(l), whereby the contents of the Chamber
Application and the procedure to be followed are outlined in Rule 26(2)
through to Rule 26(11).
4. That Rule 26(1) of the Labour Court Rules provides a second type of
application for review by setting out the procedure for a party seeking to
review a decision or proceedings of a responsible person or body performing
a reviewable function justifiable by the court, which must be filing a chamber
application of review of the de the body or person and to all other affected
parties.
5. That certain conditions precedent must be exhibited for Rule 26(1) to
operate: there must exist proceedings conducted by a responsible person or
body performing a reviewable function; there must also exist a court, which
under Section 2 is the Labour Court; and, necessarily, the responsible person
or body performing a reviewable function must be an inferior body, and the
court a superior body which sits in review.
6. That the Labour Court can invoke the provisions of Rule 55(2) of the Labour
Court Rules, 2007 to issues any direction to the parties in proceedings before,
including order that the applicant should file a proper notice of review under
211
Rule 27(1).
RULING
MANDIA, J.
On 28th December, 2007, the Minister for Labour, Employment and Youth
Development wrote letter Ref. CHA.33/508/01/11/30 to the Managing Director, Tanzania
China Friendship Textile Company Ltd of P.O. Box 20842, Dar es Salaam. The substance
of the letter reads thus:
"EMPLOYMENT AND LABOUR RELATION ACT NO. 6 OF 2004
MINISTER'S EXEMPTION ORDER
(Made under Section 100(1)
Pursuant to the powers conferred upon me under the provisions of Section 100(1), having
considered your application for exemption from the employment standard(s) contained
in Sections 19,20,23,24,25,27,31,34,41,42 and 43 do hereby exempt you from applying
standards contained in Section 27 of the ELBA regarding:-
Payment of remuneration and in particular from paying the minimum rate of
Tshs. 150,000/= per month and pay not less than Tshs.80,000/= per month in
accordance with the provisions of the Regulation of Wages and Terms of
Employment Order, 2007 dated 16th November, 2007.
This wage is subject to review annually through collective bargaining.
Dated at Dar es Salaam this 28th day of December 2007. Capt. John Chiligati (MP)
Minister for Labour, Employment and Youth Development.
On 9th January, 2008, twelve days after the exemption order was issued by the
Minister, the TANZANIA UNION OF INDUSTRIAL & COMMERCIAL WORKERS
UNION (TUICO) filed in this court what it termed a Notice of Application. The notice
was purportedly filed under Rule 24(2) of the Labour Court Rules, 2007. The notice was
addressed to the Registrar of this court for service on the Managing Director, Tanzania-
China Friendship Textile Company Ltd who is the third respondent. On the same date
TUICO also filed a Chamber Application which consisted of a Chamber Summons
supported by two affidavits. The substantive prayer in the Chamber Summons prayed to
this Court to review the exemption order made by the Minister on 28th December, 2007.
Two affidavits accompanied the Chamber Summons. One was deponed by ALQUIN
SENGA, the TUICO Deputy Secretary General, and the deponent in the second affidavit
was one FLORIAN J. MAKERO, the TUICO Field Branch Secretary of Tanzania - China
Friendship Textile Co. Ltd and also an employee thereat. The gist of the two affidavits is
an allegation that the employees of Tanzania-China Friendship Textile Co. Ltd as well as
their Trade Union were not consulted before the exemption order was made.
212
On 14th February, 2008, the Attorney General, appearing for the second
respondent - the Minister for Labour, Employment and Youth Development - filed a
notice of preliminary objection on a point of law. On 21st February, 2008, the United Law
Chambers, advocates, who are advocating for the third respondent the Tanzania - China
Friendship Textile Co. Ltd, also filed a notice of preliminary objection.
When the court sat on 8/4/2008, Mr. Malata, Learned State Attorney appearing for
the second respondent and Mrs. Philip, learned advocate appearing for the third
respondent argued the preliminary point of law. The thrust of their argument is that the
application for review filed under Rule 24(2) is invalid because Rule 24(2) is reserved for
general applications where the prescribed form is Form Number 4. It is contended in the
objection that the appropriate rule which could be used to move the court is Rule 27(1) of
the Labour Court Rules where Form Number Six is used. Counsel argue that Rule 27(1) is
couched in mandatory terms by the use of the word shall, so failure to file the notice
under the correct rule has the same effect as not filing the notice at all. They argue that
failure to comply with the requirement of notice renders the application incompetent as
held in CHRISTOMO NGOWI versus WILLIAM LUSITO & ANOTHER (1992) TLR P.
340 and also in ISRAEL SOLOMON KIVUYO versus WAYANI LANGOI & NAISHOKI
WAIYANI (1989). In reply to the objection, Mr. Nzowa, learned counsel appearing for the
applicant, argued that the notice filed under Rule 24(1) was the correct one, since Rule
27(1) is reserved to notices filed in applications for review of judgments made by this
court.
After hearing arguments from both sides what emerges as an undisputed fact is
that the Chamber Application filed by the applicant cited Sections 94(1)(c) and 100(6) of
the Employment and Labour Relations Act as well as Rule 26(l) of the Labour Court
Rules as the enabling provisions. Both parties agree that the enabling sections quoted are
the proper sections, so it is beyond argument that the application is properly before the
court. The bone of contention is the vehicle used to move the court. Is it Rule 24(1) or
Rule 27(1)?
Both Rule 24(l) and Rule 27(l) provide for notices. Rule 24(l) is couched in the
following terms:
"24-(1) Any application shall be made on notice to all persons who have an
interest in the application."
213
Rule 2(1) which provides definitions, defines application thus:-
"2- (1)
(2) Without prejudice to sub-rule (1) –

……………………………………………
……………………………………………
………
“application" includes an interlocutory application or “any application”
directed by the court.
A proper construction of Rule 24(l) shows that it is a generic rule for "any
application". Such general application, if filed in court, obliges the applicant to take out a
notice under Rule 24(l). For such type of notice Rule 24(2) has provided that Form
Number 4 in the schedule to the Rules shall be used.
On the other hand, Rule 27(1) provides for a particular type of notice, to wit, a
written notice of review. Rule 27(1) reads thus:-
"27(1) any review shall be instituted by filing a written notice of review to the
Registrar within fifteen days from the date the decision to be reviewed was
delivered".
Rule 27(1) goes in tandem with Rule 26(1) which reads thus:-
"26 - (1) A party seeking to review a decision or proceedings of a responsible person or

body performing a reviewable function justifiable by the court, shall file a chamber
application of review to the body or person and to all other affected parties"
For Section 26(1) to operate there must exist proceedings conducted by a

responsible person or body performing a reviewable function. There must also exist a
court, which under Section 2 is the Labour Court. Necessarily, the responsible person or
body performing a reviewable function must be an inferior body, and the court a superior
body which sits in review. Section 26(1) therefore provides for the second type of
application, which is a specific type of application involving review of decisions of
responsible persons or bodies performing reviewable functions. After filing the notice
under Rule 27(1) the party seeking review files the Chamber Application under Rule 26(l).
The contents of the Chamber Application and the procedure to be followed are outlined
in Rule 26(2) through to Rule 26(11).
214
Rule 27(2) provides for review of judgments of this court for which the procedure to
be followed is outlined in Rule 27(4) to Rule 27(9). Rule 27(5) provides that the notice of
review shall be in the prescribed form-Form Number 6 in the schedule to the Rules. It
seems that both in review under Rule 26(1) and under Rule 27(2) the same Form Number
6 is used.
Rule 28 provides for revision, not review, at the instance of the court or on
application by any party or interested person, and Rule 29 provides for appeals to this
court.
After all is said and done, it is crystal clear that the applicant's motion for review
used the wrong vehicle i.e. Rule 24(2) instead of the right one i.e. Rule 27(1). I was minded
to uphold the preliminary objection but on second thoughts I am of the opinion that the
application filed raises a very important issue of public concern namely, the scope of
Ministerial Powers under Section 100 of the Employment and Labour Relations Act, 2004.
Dismissing the application on a procedural technicality will leave the main question
unanswered. In view of this, I invoke the provisions of Rule 55(2) of the Labour Court
Rules, 2007, and direct that the applicant file a proper notice of review under Rule 27(1)
within three days of today. Thereafter the procedure set out in Rule 26(2) to Rule 26(11) of
the Labour Court Rules shall be followed. It is so ordered.
Dated this 14th April, 2008
Delivered
W.S.MANDIA
JUDGE
14/04/2008

LABOUR DIVISION
AT DAR ES SALAAM

BETWEEN
215
UNILIVER (T) LTD - APPLICANTS
AND
SAID SUDI AND 45 OTHERS – RESPONDENT
RULING
MANDIA, J.
On 3/10/2007 the Commission for Mediation and Arbitration pronounced an ex-parte
decision in favour of the complainants SUDI SAIDI & 45 OTHERS. The respondent/
employer cited in the decision is M/S UNILEVER (T) LTD. In his decision the mediator
found for the complainants/ employees who had filed a claim for terminal benefits
resulting from unfair dismissal by their employer. The decision resulted in an award of
Sh.39,199,975/= for the employees. The award dated 3/10/2007 is against M/S UNILEVER
(T) LTD who is shown to be the sole respondent in the dispute before the Commission.
The award led to the aggrieved party filing the present revisional proceedings. The
present applicant M/S UNILEVER (T) LTD has challenged the award on procedural
grounds and also on merit. I will only dwell on the procedural grounds which I think are
enough to dispose of the application.
The first thing to be noted is that in their reference to the Commission for Mediation and
Arbitration, the employees mentioned two separate parties as the other parties to the
employment dispute. The parties mentioned are UNILEVER (T) who are the present
applicants, as well as A.K. MANAGEMENT. Indeed the notice to attend mediation issued
by the mediator on 19/7/2007 required one Mr. Felix of A.K. MANAGEMENT &
PERSONAL SERVICES, H. STREET DSM to attend the mediation session as a
respondent. The proceedings in the Commission dated 27/7/2007 shows that there are
two respondents, both of whom were absent. The mediator noted that the first
respondent was absent though he had been served, and the second respondent was
absent for lack of service. After noting the absence of the respondents the mediator took
down representations from the complainants which showed that the first respondent had
been served through one "Bwana Likoko". The mediator thereafter ordered the matter
to come up for exparte proof on 30/7/2007. There was no further effort made to serve the
second respondent. After the ex-parte proof the decision was made which is the subject of
these revisional proceedings.
Since the employees had filed a joint action against both UNILEVER (T) LTD and A.K.
216
MANAGEMENT & PERSONAL SERVICES, it was unprocedural for the Commission to
proceed against UNILEVER (T) LTD as if they were the sole respondent. In the ex-parte
proceedings there is a transcript of proceedings which reads thus:-
“ barua ya Ajira hatuna hatukuwa tumepewa pay slip, ila tulipewa SAFETY
MANUAL BODES, tunaomba kutoa kielelezo P1. Mwajiri wetu ni Unilever,
tulikuwa tunafanya kiwanda cha sabuni, tunamjua UNILEVER kuwa ndiye mwajiri
wetu, na tuliomba kazi huko. Mishahara yetu alikuwa analipa mwanzo UNILEVER
baadaye akaanza kulipa AK Management & Personal Service….”
In light of the above quotation which is self-explanatory it is unexplainable against
UNILEVER (T) LTD only. The employees themselves saw the need to file an action
against two respondents, and the best the mediator could do was to carry out the wishes
of the employees and decide on the liability of two respondents, not one, as he did. After
the failure to serve the second respondent as noted by the mediator on 27/7/2007 he
should have adjourned the proceedings to another date, bearing in mind the provisions of
Sections 86(4) and 87 of the Employment and Labour Relations Act, 2004. I am satisfied
that the decision to proceed ex-parte on 27/7/2007 overlooked the procedural
requirements outlined above and has resulted in injustice to the other party. The decision
and award of the mediator dated 3/10/2007 is therefore set aside. The matter should be
remitted to the Commission for all parties to be served and appear before the
Commission. Thereafter the Commission will dispose of the dispute in accordance with
the law. It is so ordered.
Dated this 14th day of April, 2008.

Delivered.
W.S. MANDIA
J U D G E
11/04/2008

LABOUR DIVISION
AT DAR ES SALAAM
IN THE MATTER OF APPLICATION NO. 112 OF 2007
BETWEEN
ZAMDA MUNGA NA WENZAKE ……………. APPLICANTS
AND
MKURUGENZI, PARKIMAN DSM …………………... RESPONDENT
RULING
MANDIA, J.
The proceedings before the Commission for Mediation and Arbitration show that the
respondent ZAMDA MUNGA was a domestic employee of the respondent company
first at Lindi and thereafter in Dar es Salaam. The second respondent MWANAISHA
SALEHE worked in Dar es Salaam only. Affidavits filed during the hearing of the
217
application for execution of decree show that at all times the applicant in court dealt
with the respondents as an employer. Oral representations by the respondents in
court show that the respondents worked for the applicant to whom they provided
personal housekeeping duties. I am satisfied that there was an employer/ employee
relationship between the applicant and the respondents, and the warrant of
attachment was properly issued. So long as the applicant accepted and enjoyed the
personal domestic services offered, he cannot escape liability under the pretext that
the property seized belongs to another company. If this is so some other person would
have appeared in court in these objection proceedings. Since he is the same person
who enjoyed the services, and he is also the same person who is, objecting, his
objection cannot stand. The application to revise the order for security is dismissed.
There will be no order as to costs.
Dated this 30TH April, 2008
Delivered.
W.S. MANDIA
JUDGE
02/05/2008
COPY TO:-
1. Mustafa Shandoo &, Co Advocate,
Zahra Tower, Indira Gandhi/Zanaki
DAR ES SALAAM.
2. Zamda Munga,
Temeke Yombo,
DAR ES SALAAM.

LABOUR DIVISION
AT DAR ES SALAAM
BETWEEN
POWER ROADS (T) LIMITED ……………………… APPLICANTS
AND
HAJI OMARI NGOMERO ………………………………… RESPONDENT
Held:
1. That disputes referred to the CMA are required to be in the prescribed form,
which under Section 86(2) of the ELRA must be served on the opposite party.
2. That there is no provision in the ELRA, or in the LIA, particularly Section 20

on powers of mediators and arbitrators, allowing mediators and arbitrators to
make changes, suo moto, on what appears on the referral form.
3. That the mediator has no power to determine a matter which has not been
specifically stated in the referral form to the CMA.
218
RULING
MANDIA, J.
On 18/6/2007 the respondent HAJI OMARY NGOMERO referred a dispute to the

Commission for Mediation and Arbitration over payment of overtime whose amount
was Sh. 546,000/=. The CMA fixed the dispute for hearing on 10/7/2007. The employer
applied in writing for an adjournment and for the dispute to come up for hearing after
fourteen days. The application for hearing after fourteen days was not granted. Instead
the employer, the employee and the mediator agreed in writing with signatures
appended that hearing should come up on 20/7/2007. On 20/7/2007 the employer
defaulted and the arbitrator head the dispute ex-parte and made an award of
Sh.2,088,686/=. The components of the award are
(i) Seventeen days leave
(ii) Overtime pay
(iii) Compensation for unfair dismissal
Under Section 86(l) of the Employment and Labour Relations Act, Number 6 of
2004, disputes referred to the Commission are required to be in the prescribed form,
which under Section 86(2) of the Act must be served on the opposite party. The
employer, through the representative, admits accepting service of the dispute in the
prescribed form and requesting for an adjournment. This means by the time the
parties agreed to have the dispute heard the subject matter of the dispute was
overtime pay Sh. 546,000/= as shown in the referral form. The award incorporates two
more items which are extra to the referral form. These are the items on seventeen
days leave and compensation for unfair dismissal. There is no provision in the
Employment and Labour Relations Act, or in the Labour Institutions Act, particularly
Section 20 on powers of mediators and arbitrators, allowing mediators and arbitrators
to make changes, suo moto, on what appears on the referral form. The additions made
by the arbitrator are therefore illegal, and are set aside. Since the employer signed a
form agreeing to a date of hearing to be 20/7/2007, the mediator was right in
proceeding ex-parte. He however should have allowed the claim on overtime payment
only. In the award the arbitrator made an award totaling Sh. 378,461/= plus Sh.
504,615/= plus Sh.168,000/= which comes up to Sh. 1,051,076/. This figure does not
agree with the Sh. 546,000/= shown the complaint form. The amount for overtime is
therefore revised to reflect the amount claimed i.e. Sh. 546,000/=. The respondent is
therefore entitled to Sh. 546,000/= only. Save for this correction of the award, the
revision has no merit and is dismissed.
Dated this 28the April, 2008
219
Delivered
W.S. MANDIA
JUDGE
28/04/2008
COPY TO:
1. Reginald Martin
2. Haji Omary Ngomero,
DAR ES SALAAM.

LABOUR DIVISION
AT DAR ES SALAAM
BETWEEN
AFRICAN INTERNATIONAL LTD APPLICANT
AND
FIDELISI JOHN RESPONDENT
Held:
That it is in the interest of justice that parties who are willing to appear in matters
220
affecting them be afforded an opportunity to appear in court and present their cases
without unnecessary fetters being imposed on them.
RULING
MANDIA, J.
On 25/6/2007 the parties appeared before the Commission for Mediation and Arbitration
for mediation proceedings. The parties agreed in writing to have the matter adjourned to
13/7/2007 at 11 a.m. in the morning. Thereafter the CMA record is silent on what
happened on 13/7/2007. We get an idea on what happened when one reads the decision
of the CMA which shows that the CMA ordered the matter to proceed ex-parte after the
respondent before it defaulted in appearance. The order to proceed ex-parte should have
been part of the record since it is the justification for the one-sided proceedings, because
the reason for proceeding ex-parte has to be shown in the order.
Apart from the original decision of the CMA which is dated 1st November 2007,
there is a supplementary decision by the CMA in which it dismissed an application from
setting aside the ex-parte decision made on 1/11/2007. The parties appeared before me
today. The applicant argues that there was no justification for the matter to proceed
ex-parte on 13/7/2007 because on that date 13/7/2007 the applicant had furnished the
CMA reasons for absence which was sickness. The respondent argues that the applicant
had no reason for the default on 13/7/2007. In its ruling dated 25/2/2008 the CMA gave
the reason for dismissing the application to set aside the ex-parte order dated 1/ 11/2007 as
being that the applicant company had two officers Raymos Zakayo and Ammy who could
each turn up in court in case one was sick. I am of the view that this reasoning was not
fair to the applicant. If the respondent before the CMA had delegated Raymos Zakayo to
represent them in the proceedings, and he was sick, it was not fair for the CMA to impose
another person, Ammy, to represent the respondent without them agreeing to that. This
lapse has led to the present applicant being unfairly excluded from the proceedings from
13/7/2007 and subsequent days. It is in the interests of justice that parties who are willing
to appear in matters affecting them be afforded an opportunity to appear in court and
present their cases without unnecessary fetters being imposed on them. The order to
proceed ex-parte is therefore vacated. The parties should appear before the CMA for the
matter to proceed with mediation interpartes.
Dated this 4th July, 2008.
221
Delivered.
W.S. MANDIA
JUDGE
27/06/2008
Copy to:
1. Sanze 8& Associates Advocates,
Sido Small Business House,
Bibi Titi Mohamed Road,
2nd Floor, Room No. 22 "A",
P.O. Box 23409,
DAR ES SALAAM.
2. Fidelis John,
DAR ES SALAAM.

LABOUR DIVISION
AT DAR ES SALAAM
IN THE MATTER OF REVISON NO. 8 OF 2008
BETWEEN
MIOMBO SAFARIS LTD - APPLICANT

JUMANNE HAMISI – RESPONDENT
Held:
That where a principal assigns an agenct to represnt him in mediation

proceedings and the agent exceeds his mandate, this does not vitiate the
proceedings before the Commission. Thus, once the principal has put out the
agent, he is bound by the actions of the agent; unless there is evidence of fraud
in the agent conducted himself. Any insinuation of excess of authority on the
part of teh agent is a matter between the principal and the agent.
222
RULING
MANDIA, J.
On 11/12/2007 the respondent Jumanne Hamisi and an official of the applicant Company
Christopher Mmaniki entered into an agreement before the Commission for Mediation
and Arbitration. The agreement was signed before the Mediator/ Arbitrator, one Emilyo
Mwidunda, and was for the payment of terminal dues.
After the signing of the agreement the applicant filed the present application for review
on the ground that the representative who signed the agreement on their behalf exceeded
his mandate.
After hearing both parties, it is evident that both parties before me agree that on the day
when the agreement was signed the signatories to the agreement i.e. Jumanne Hamisi
and Christopher Mmaniki had the capacity to sign the agreement. Jumanne Hamisi had
the capacity to sign because he was the complainant, and Christopher Mmaniki had the
capacity because he was a disclosed agent of the employer who was the respondent in the
CMA. If the agent exceeded his mandate, this does not vitiate the proceedings before the
Commission. As long as the applicant put out Christopher Mmaniki as his agent, the
applicant is bound by the actions of Christopher Mmaniki. There is no evidence of fraud
in the way the agreement was entered into, and any insinuation of excess of authority is a
matter between the applicant/employer and Christopher Mmaniki. The application for
review has no merit and is hereby dismissed.
Dated this 8th April, 2008.
Delivered.
W.S. MANDIA
223
JUDGE
08/04/2008

LABOUR DIVISION AT DAR ES SALAAM
IN THE MATTER OF THE APPLICATION NO. 5 OF 2008
BETWEEN
JUMA MASUNGA ………………………………………. APPLICANT
AND
DAR ES SALAAM WATER & ………………………………….. RESPONDENT
SANITATION CORPORATION
(DAWASCO)
RULING
SAMBO, J
This is an application by the applicant, one Juma Masunga, through his learned
counsel Mr. Kitare, for extension of time in which to file an application for review of the
decision of the Commission for Mediation and Arbitration (CMA) in dispute No.
CMA/KIN/-IL/473 of 2007. The reason for the delay according to the submissions of the
learned counsel Mr. Kitare, is that when the judgment was pronounced, though the
judgment show that the applicant was present, he was infact, not present. The applicant
became aware of the judgment at a time when the period fixed by the law in which to file
an application for review in this court, had elapsed. Being aggrieved with such judgment,
the applicant intends to file an application for review of the same in this court, hence the
present application.
The learned sister Mrs. Angela Msechu for the respondent, being a legal officer,
after considering the reasoned submissions of her learned friend and brother Mr. Kitare,
informed the court that they have no objection. She maintained that they will argue
vehemently against the intended application for review, and not against this application.
I have considered the submissions of both learned against this application and
came to a settled mind that as Mr. Kitare rightly submitted, the applicant had good cause
in delaying to file his application for review. I therefore proceed to grant the application
for extension of time in which to file his review as prayed under the provisions of Rule
56(I) of the Labour Court Rules, 2007. The same to be filed within fifteen days from
today.
K.M.M. Sambo,
Judge
27/02/2008
Delivered in chambers this 27th day of February, 2008, in the presence of the
learned counsel Mr. Kitare for the applicant and the learned Mrs. Angela Msechu for the
respondent.
K.M.M. Sambo,
Judge
224
27/02/2008
Mr. Kitare:- My Lord, I pray that the sick sheet which I tendered and admitted as
exh. marked "A" be returned to me for future use in the case.
Order: The document admitted and marked "A" be returned to advocate Kitare
forthwith.
K.M.M. Sambo,
JUDGE
27/02/2008
Copy to:-
Kitale &, Co. Advocates,
Kelvin House 2nd Floor,
Samora Avevue
P.O. Box 14374,
DAR ES SALAAM.
Dar es Salaam Water and Sanitation Corporation (DAWASCO),

Gerezani, Sokoine Drive,
P.O. Box 5340,
DAR ES SALAAM.

LABOUR DIVISION
AT DAR ES SALAAM
BETWEEN
GENERAL MANAGER, MUFINDI PAPER MILLS LTD … APPLICANT
AND
MASOYA MAGOTI 1ST RESPONDENT
COSMAS FIMBO MSIGWA (ARBITRATOR) … 2ND RESPONDENT
Held:
1. That an appointed mediator has thirty days to mediate a dispute as provided

under Section 86(4) of the Act, which are counted from the date the dispute
was referred to the Commission. The thirty days can be extended by the
parties themselves by an agreement in writing.
2. That under Section 86(7) the discretion to refer a failed mediation to

arbitration lies with the parties to the dispute, and not the mediator; and a
mediator cannot rule on his own that there would be combined mediation/
arbitration proceedings at the start because he will be taking over the role of
one of the parties to the dispute.
3. That the role of the mediator is clearly spelled out in Rule 16(1) of the Labour
Institutions (Mediation and Arbitration) Rules, GN 64 of 2007, and this
225
consists of issuing a certificate to indicate that mediation has failed.
4. That failure of mediation is an essential ingredient in arbitration in the

context of Section 88(2) of the ELRA; whereby an arbitrator appointed under
Section 88(2)(a) is enjoined to decide the dispute, which means the functions
of an arbitrator are adjudicative.
5. Although Rule 18(1) of the Labour Institutions (Mediation and Arbitration)

Rules provides for combined mediation and arbitration, this procedure in the
rules is subordinate to the provisions of the parent legislation in Sections
86(7) and 88(2) of the ELRA, which underscores the fact that there must be
failure of mediation before arbitration can commence.
6. Rule 32 of the Labour Institutions (Mediation and Arbitration) Rules lays it

down that there should be a record of arbitration proceedings.
RULING
MANDIA, J.
The applicant, the GENERAL MANAGER, MUFINDI PAPER MILLS LTD, filed
an application for revision against an award made by the second respondent COSMAS
FIMBO MSIGWA (ARBITRATOR). The award was made in favour of the first
respondent MASOYA MAGOTI. In the award, the arbitrator ordered the General
Manager, Mufindi Paper Mills Ltd, to pay the first respondent compensation Sh.
95,000,000/=. This was after the arbitrator made a finding of the fact that the first
respondent was dismissed from service in an unfair and discriminatory manner.
The award made by the arbitrator is long and very elaborate, and touched on all
salient features of the dispute between the first respondent MASOYA MAGOTI and
the Management of Mufindi Paper Mills Ltd who are the present applicants. When
the record of the Commission for Mediation and Arbitration was called up for revision,
I went through the record. I found that on 20/7/2007 the applicant in the proceedings
before the Commission appeared but the respondent defaulted. The reason for the
default as given by the mediator was that the respondent had not been served. The
mediator adjourned the proceedings to 26/7/2007 for a combined mediation and
arbitration, and the mediator ordered a fresh summons to issue to the respondent
before him. On 26/7/2007 the parties appeared before the mediator Mr. C. Msigwa
who ordered for the mediation to be adjourned to 30/7/2007 at 2 p.m. On 30/7/2007
the parties appeared, but the name of Mr. C. Msigwa is not indicated in the quorum.
We therefore do not know if the proceedings of 30/7/2007 were mediation
proceedings, or arbitration proceedings. What is shown for 30/7/2007 is that the
applicant appeared, and the respondent was represented by Mr. Issa Maige. On this
day the matter was adjourned to 13/8/2007 for hearing. The proceedings of 30/7/2007
are the last formal proceedings on the CMA file. There are hand-written notes on the
226
right side of the commission folder number CMA/IR/2007/1 but there is no identity of
the person who took these notes, and an indication on whether these notes were part
of mediation or arbitration proceedings. This indication has legal significance. The
Employment and Labour Relations Act, Act Number 6 of 2004, provides for the
appointment of a mediator under Section 86(3)(a) of the Act. An appointed mediator
has thirty days to mediate a dispute as provided under Section 86(4) of the Act. The
thirty days are counted from the date the dispute was referred to the Commission. The
thirty days can be extended by the parties themselves by an agreement in writing.
Under Section 86(7) the discretion to refer a failed mediation to arbitration lies with
the parties to the dispute, and not the mediator. The section reads thus:-
86- (1) ………………………………………………………………..………………
……………………………………………………………………………….
……………………………………………………………………………….
(2) ………………………………………………………………..………………
……………………………………………………………………………….
……………………………………………………………………………….
(3) ………………………………………………………………..………………
……………………………………………………………………………….
……………………………………………………………………………….
(4) ………………………………………………………………..………………
……………………………………………………………………………….
……………………………………………………………………………….
(5) ………………………………………………………………..………………
……………………………………………………………………………….
……………………………………………………………………………….
(6) ………………………………………………………………..………………
……………………………………………………………………………….
……………………………………………………………………………….
(7) Where the mediator fails to resolve a dispute within the period prescribed
in subsection (4), a party to the dispute may-
(a) if the dispute is a dispute of interest, give notice of its intention to
commence a strike or a lockout in accordance with sections 80 or
82;
(b) if the dispute is a complaint -
(i) refer the complaint to arbitration; or
(ii) refer the complaint to the Labour Court.
Since it is a party to the dispute who may elect to go for arbitration and not the
mediator to decide to go for mediation, a mediator cannot rule on his own that there
would be combined mediation/ arbitration proceedings at the start because he will be
taking over the role of one of the parties to the dispute. The role of the mediator is clearly
spelled out in Rule 16(1) of the Labour Institutions (Mediation and Arbitration) Rules, GN
64 of 2007, and this consists of issuing a certificate to indicate that mediation has failed.
Failure of mediation is an essential ingredient in arbitration proceedings. This

227
element is underscored by Section 88(2) of the Employment and Labour Relations
Act which reads thus:-
"88-(1) ………………………………………………………………..………………
……………………………………………………………………………….
……………………………………………………………………………….
(2) if the parties fail to resolve a dispute referred to mediation under Section
86, the Commission shall-
(a) appoint an arbitrator to decide the dispute;

(b) determine the time, date and place of the arbitration hearing; and
(c) advise the parties to the dispute of the details stipulated in
paragraphs (a) or (b).
An arbitrator appointed under Section 88(2)(a) is enjoined to decide the dispute,

which means the functions of an arbitrator are adjudicative. The Commission is allowed
under Section88(3)(a) to appoint an arbitrator even before mediation, and Section 19(7)
of the Labour Institutions Act, Number 7 of 2004 underscores this point. This is why Rule
18(1) of the Labour Institutions (Mediation and Arbitration) Rules provides for combined
mediation and arbitration. The procedure in the rules is however subordinate to the
provisions of the parent legislation. The parent legislation in Sections 86(7) and 88(2) of
the Employment and Labour Relations Act underscore the fact that there must be failure
of mediation before arbitration can commence. It is therefore mandatory that every
mediator should indicate that mediation has failed before arbitration can commence, and
the change of legal status from mediator to arbitrator must be indicated clearly through
the certificate issued under Rule 16(l) of GN 64/2007.
Rule 32 of the Labour Institutions (Mediation and Arbitration) Rules lays it down
that there should be a record of arbitration proceedings. The rule reads thus:-
"32-
1) An arbitrator shall keep a record of the arbitration proceedings with
legible hand-written notes or by other means of electronic recording.
2) Where the arbitrator records the proceedings through hand written
notes, the arbitrator may not be required to record the proceedings word
by word.
3) The arbitrator is entitled to summarise the evidence and arguments
submitted by the parties and record all key issues relating to the dispute.
4) A party may request for a copy of the handwritten notes or the transcript
of an electronic record or a portion of a record kept in terms of sub-rule
(1), upon the payment of the costs of the transcription.
5) After the transcript maker of the electronic record has certified that it is
correct, the record shall be returned to the Commission.
6) The transcript of an electronic record certified as correct in terms of
sub-rule (4) shall be presumed to be correct, unless the Labour Court
228
decides otherwise."
In Revision Number 11 of 2008 BIDCO OIL AND SOAP versus ABDU SAID & 3
OTHERS I have at page four endeavored to define the term proceeding by emphasizing
the attributes of regularity and orderliness from commencement to execution as the
hallmarks of proper legal proceedings. I also remarked that in arbitration proceedings
there must be a permanent and retrieval record kept by the arbitrator. The permanent
record is what will enable the Labour Court to exercise its jurisdiction under Section 94 of
the Employment and Labour Relations Act, in particular the powers of review and
revision under Section 94(1) (b) (i). The need for proceedings is also underscored in Rule
35 of the Labour Institutions (Mediation and Arbitration) Rules, in particular Rule 35(2)
which says that the award shall be delivered in the language of the proceedings. This rule
emphasizes that the arbitrator shall do two things, namely first to keep a record of
proceedings, and secondly to write an award which shall be in the same language as used
in recording of the proceedings.
The essential features of proceedings which I have outlined above do not exist in
the proceedings before me. There is only a very elaborate award and a scanty record, as
well as hand-written unsigned notes on the right side of the docket from the
Commission. What is on the record does not measure up to the definition of proceedings.
Nobody can say that the elaborate award is based on proceedings recorded by the
arbitrator. For this reason the award must be vacated. The proceedings of the
Commission are therefore quashed and all orders made thereunder are set aside. The
record of the Commission is sent back for the proceedings to be recorded in accordance
with the law and thereafter an award made. It is so ordered.
Dated this 27th day of June, 2008.
W.S. MANDIA
JUDGE
27/06/2008
ORDER: Ruling pronounced.
W.S. MANDIA
JUDGE
27/06/2008
Copy to:
1. Mufindi Paper Mills Ltd,
229
C/o Lexglobe LLP (Advocates),
6th Floor Nyerere Road,
Pension Power,
DAR ES SALAAM.
2. Msoya Magoti na Wenzake,
DAR ES SALAAM.
230
LABOUR DIVISION
AT DAR ES SALAAM

BETWEEN
HASSAN MARTIN SIJALE & 28 OTHERS ……. APPLICANTS
AND
MUKWANO INDUSTRIES (T) LTD ………..… RESPONDENT
Held:
That in a redundancy exercise employees or their trade union mus be adequately

involved in the exercise.
RULING
MANDIA, J.
The applicants filed an application for revision against a decision of the
Commission for Mediation and Arbitration which dismissed a reference by the applicants
against a redundancy exercise conducted by the respondent. The issues in the CMA were
whether or not the redundancy exercise was fair and followed the law, or not. The
arbitrator answered all these issues in the positive and dismissed the reference to him.
After going through the decision of the arbitrator, and after listening to oral arguments
by the parties when they appeared before me on 24/4/2008 I am satisfied, like the
arbitrator, that the redundancy exercise followed the law. The workers were adequately
involved in the exercise which even involved the particular trade union. This application
for revision has been filed without merit and is dismissed. There will be no order as to
costs.
Dated this 9th May, 2008.
Delivered.
231
W.S. MANDIA
JUDGE
9/5/2008
COPY TO: -
1. Hassan Martin Sijale na Wenzake, C/o
Associate Attorney,
Nedco Building, 2nd Floor Room No. 206,
Upanga Road,
DAR ES SALAAM.
2. Mukwano Industries (T) Ltd,

Nyerere Road,
DAR ES SALAAM.

LABOUR DIVISION AT DAR ES SALAAM
IN THE MATTER OF THE APPLICATION NO. 3 OF 2007
BETWEEN
HAMISI JOHN MAYAGE - APPLICANT
AND
BOARD OF EXTERNAL TRADE – RESPONDENTS
RULING
SAMBO, J.
The Learned Counsel for the applicant, Mr. Kariwa, filed this application for
extension of time in which to file a statement of complaint. He informed the court that
the CMA Director wrote a letter to the Registrar of this court, referring the matter to this
court in respect of law on 22nd day of October, 2007, and the complainant got that letter
on the 10th day of December, 2007. In any case, the time on which the complainant were
supposed and required to file his complaint, that's 15 days after the reference to the court,
had elapsed. The Learned Counsel notified the court that for the statement of complaint
to be properly before the court, it was necessary to file this application.
232
The respondents were duly served to appear on court today for this application,
but opted not to appear without even notifying the court as to why they failed to make
appearance. However, the Learned Counsel Mr. Kariwa, prayed to proceed ex-parte,
bearing in mind that the application's result if granted, doesn't prejudice any body. As the
Learned Counsel had good reasons the court had to agree with him and proceeded to
hear it accordingly.
After hearing the Learned Counsel for the applicant, Mr. Kariwa, I am satisfied
that the applicant had good reasons for not filing the statement of complaint within the
prescribed time. I therefore grant the application for extension of time as prayed, and
order that the same be filed within 15 days from today.
K.M.M. Sambo,
JUDGE
20/02/2008
Delivered in chambers today the follow day of February, 2008, in the presence of the
applicant and his learned counsel, Mr. C. Kariwa.
K.M.M. Sambo,
JUDGE
20/02/2008
233
LABOUR DIVISION
AT DAR ES SALAAM
IN THE MATTER OF COMPLAINANT NO. 11 OF 2007

BETWEEN
JONATHAN LOILANGWAKI ELIAHU….COMPLAINANT
AND
MANAGING DIRECTOR SDV TANSAMI RESPONDENT
Held:
1. That the jurisdiction of the Labour Court as spelled out in Section 51 of the
Labour Institutions Act is on Civil "jurisdiction over" any matter reserved for
its decision by the Labour Laws." By providing for exclusive jurisdiction under
Section 51 of the Labour Institutions Act and by allowing for special practice
and procedure, Parliament intended the Labour Court of deviate from the
procedure set out in the Civil Procedure Code.
2. That Rule 55(1) of the Labour Court Rules provides that in the case of a
lacuna, the Labour Court "may adopt any procedure that it deems
appropriate in the circumstances." This means the section empowers this
court to regulate its own proceedings in any way it thinks fit to meet the ends
of justice. The section does not say that in case of lacuna reference should be
made to the Civil Procedure Code.
3. That the Labour Court Rules has provided for procedure which caters for the
whole process from initiation of proceedings to judgment and decree. By
doing so the rules have removed the proceedings of this court from classical
civil proceedings to exclusive labour proceedings, which are also civil, to
conform to Section 51 of the Labour Institutions Act. This means proceedings
held in this court are not suits in the classical sense of the word.
4. That the procedure in the Labour Court does not allow for filing of
preliminary objections. What is filed as a preliminary objection here cannot
be argued separately as in preliminary objections filed in civil suits, but shall
be taken as part of the response to the statement.
RULING
MANDIA, J.
234
Order 8 Rule 2 requires that preliminary objections on points of law in a suit must
be specially pleaded. The jurisdiction of the Labour Court as spelled out in Section 51 of
the Labour Institutions Act is on Civil "jurisdiction over" any matter reserved for its
decision by the Labour Laws." To process labour proceedings, Section 55(1) empowers the
Chief Justice to make rules to govern the practice and procedure of the Labour Court.
These rules came in the form of the Labour Court Rules, GN 106 of 2007. By providing for
exclusive jurisdiction under Section 51 of the Labour Institutions Act and by allowing for
special practice and procedure, Parliament intended the Labour Court of deviate from the
procedure set out in the Civil Procedure Code. That is why in Rule 55(1) of the Labour
Court Rules it is provided that in the case of a lacuna, the Labour Court "may adopt any
procedure that it deems appropriate in the circumstances." This means the section
empowers this court to regulate its own proceedings in any way it thinks fit to meet the
ends of justice. The section does not say that in case of lacuna reference should be made
to the Civil Procedure Code.
The Labour Court Rules has provided for procedure which caters for the whole
process from initiation of proceedings to judgment and decree. By doing so the rules have
removed the proceedings of this court from classical civil proceedings to exclusive labour
proceedings, which are also civil, to conform with Section 51 of the Labour Institutions
Act. This means proceedings held in this court are not suits in the classical sense of the
word.
Rules 6(1)(b)(ii) of the Labour Court Rules refers to procedure to be taken by a

party initiating proceedings, not the respondent. The proper provision applicable to the
respondent is Rule 6(3) which talks of a response to a statement, without making room
for an argument on legal issues. I am therefore satisfied that the procedure in the Labour
Court does not allow for filing of preliminary objections. What is filed as a preliminary
objection here cannot be argued separately as in preliminary objections filed in civil suits,
but shall be taken as part of the response to the statement.
Delivered.
W.S. Mandia
JUDGE
30/5/2008
COPY TO: -
1. Managing Director SDV TRANSAMI,
C/o Rex Attorneys,
235
Rex House,
145 Magore Street - Upanga
DAR ES SALAAM.
2. Jonathan Loingwaki Eliahu,
C/o Mhango &. Co. Advocates,
Pamba House, 2nd Floor,
Room No. 202,
DAR ES SALAAM.
236
LABOUR DIVISION
AT DAR ES SALAAM
IN THE MATTER OF APPLICANTION NO. 4 OF 2008
BETWEEN
TANZANIA RAILWAYS LIMITED …………………. APPLICANTS
1- THE MINISTER FOR LABOUR, ……………….RESPONDENTS
EMPLOYMENT & YOUTHS DEV.
2- THE ATTORNEY GENERAL
3- TANZANIA RAILWAYS WORKERS
UNION [TRAWU]
Held:
1. Theta it is settled law that proceedings for prerogative orders are initiated
first by making an application for leave.
2. That to initiate any application in the High Court requires the taking out of a
Chamber Summons supported by an affidavit as provided in Order 43 Rule 2
of the Civil Procedure Code; and thus no application in the High Court can
derogate from Order 43 Rule 2.
3. That since Order 43 Rule 2 requires the filing of an application i.e. a Chamber
Summons accompanied by an affidavit, anybody who does anything to the
contrary without leave offends the law. The High Court therefore expected
the applicant to take out a Chamber Summons. The statement and affidavit
which accompany the Chamber Summons are there merely to indicate the
existence of a prima facie case upon which leave can be granted.
237
4. That the grant of prerogative orders is a power granted to the court by
common law and is a power that can be exercised by the court at its own
discretion.
5. That under Section 50(1) of the Labour Institutions Act has all the powers of
the High Court as set out in Section 52(l) of the Labour Institutions Act.
Apart from having all the general powers of the High Court, the Labour
Court has, under Section 51 of the Labour Institutions Act, exclusive
jurisdiction over any matter reserved for its decision by the labour laws.
What this means is that if any party has any matter relating to labour laws
the proper court of resort is the Labour Court, but this does not take away
the general powers and jurisdiction of the High Court under the Judicature
and Application of Laws Act.
6. That the Employment and Labour Relations Act sets out the
jurisdiction of the Labour Court in Section 94(l); whereby amongst its areas
of jurisdiction is the review of decisions, codes, guidelines or regulations
made by the Minister under the Act.
7. That it is not correct to invoke discretionary powers where there are

specific provisions of the law to cure a perceived mischief.
8. That an application relating to Labour Matters should come under

Rules 24 or 26 of the Labour Court Rules, other applications should come
under Order 43 Rule 2 of the Civil Procedure Code or any other enabling
provision if a particular law provides for the same.
RULING
MANDIA, J.
On 29th January, 2008, the Minister' for Labour Employment and Youth
Development rejected an application for exemption from payment of statutory minimum
238
wage made by the applicant. On 14th February, 2008, the applicant filed an application in
this court under the Labour Court Rules. The application filed comprises of a Notice
under Rule 24(2) of the Labour Court Rules GN 106 of 2004, a statement purportedly
under the following laws:-
1- Section 2(3) of the Judicature and Application of Laws Act Cap 358 R.E. 2002.
2- Section 17(2) and 18(1) of the Law Reform (Fatal Accidents and Miscellaneous
Provisions) Act, Cap 310 R.E. 2002 of the Laws.
3- Section 95 of the Civil Procedure Code, Cap 33 R.E. 2002 of the Laws.
4- Section 55 of the Labour Court Rules.
Also filed is an affidavit of one NARASIMHA SWAMI JAYARAM.
In the notice taken out under Rule 24(2) of the Labour Court Rules the applicant is
praying that this court grant the applicant leave to apply for prerogative orders of
Certiorari and Mandamus. In this court the applicant was represented by learned
advocate Bahebe.
The first and second respondents, who are the Minister for Labour, Employment and
Youth Development and the Attorney General, respectively, were represented by Mr.
Vitalis, State Attorney assisted by MS Irene Lesulie, State Attorney.
Mr. Bahebe, learned advocate, prayed that the statement and affidavit filed in this
court be accepted as part of his case and prayed that; since the averments in the
statement and affidavit establish a prime facie case, leave be granted as prayed for.
On his part Mr. Vitalis, learned State Attorney, contended that the application filed
is misconceived because of wrong citation of laws. According to Mr. Vitalis, this court has
not been properly moved so he prayed that the application be struck out with costs being
incompetent.
239
It is settled law that proceedings for prerogative orders are initiated first by making
an application for leave. As any lawyer would know, to initiate any application in the
High Court requires the taking out of a Chamber Summons supported by an affidavit as
provided in Order 43 Rule 2 of the Civil Procedure Code. No application in the High
Court can derogate from Order 43 Rule 2. The grant of prerogative orders is a power
granted to the court by common law and is a power that can be exercised by the court at
its own discretion. Since Order 43 Rule 2 requires the filing of an application i.e. a
Chamber Summons accompanied by an affidavit, anybody who does anything to the
contrary without leave offends the law. This High Court therefore expected the applicant
to take out a Chamber Summons. The statement and affidavit which accompany the
Chamber Summons are there merely to indicate the existence of a prima facie case upon
which leave can be granted.
The procedure outlined above indicates what would happen in any High Court. The
Labour Division of the High Court established under Section 50(1) of the Labour
Institutions Act has all the powers of the High Court as set out in Section 52(l) of the
Labour Institutions Act. Apart from having all the general powers of the High Court, the
Labour Court has, under Section 51 of the Labour Institutions Act, exclusive jurisdiction
over any matter reserved for its decision by the labour laws. What this means is that if
any party has any matter relating to labour laws the proper court of resort is the Labour
Court, but this does not take away the general powers and jurisdiction of the High Court
under the Judicature and Application of Laws Act.
To put its exclusivity into practice, Parliament has passed two laws; the
Employment and Labour Relations Act and the Labour Institutions Act. Parliament has
also passed subsidiary legislation under the above mentioned Acts to operationalise the
principal legislation. One of those Acts, the Employment and Labour Relations Act, sets
out the jurisdiction of the Labour Court in Section 94(l). Amongst the areas of
jurisdiction is the review of decisions, codes, guidelines or regulations made by the
Minister under the Act. The Minister mentioned in this section is the Minister for Labour.
There is therefore a particular and specific provision of the law which has oversight
powers over ministerial powers. Since the powers of oversight were introduced in the year
2004, Parliament in its wisdom intended to clear any doubt as to who can do what.
Prerogative orders are discretionary so by putting in place a specific procedure,
Parliament intended to remove the uncertainly caused by discretion. It is therefore not
correct to invoke discretionary powers where there are specific provisions of the law to
cure a perceived mischief.
240
Another comment I would like to make is that even if there was no specific
procedure enacted, moving a court to exercise its discretionary powers under one law but
using subsidiary legislation of another law is rather novel to me. I have in mind the
application for leave filed under Rule 24 of the Labour Court Rules. Since the Labour
Court Rules, GN 106 of 2006, have a particular definition of application in rule 2, the
intention was to distinguish applications filed under these rules from those filed under
other laws like Order 43 Rule 2. An application relating to Labour Matters should
therefore come under Rules 24 or 26 of the Labour Court Rules, other applications should
come under Order 43 Rule 2 of the Civil Procedure Code or any other enabling provision
if a particular law provides for the same.
Counsel for the applicant has quoted a decision of this court. The decision quoted
is not relevant here because in that decision the applicant quoted the relevant provision
of the laws and made a mistake in citing the wrong section when moving the court. The
situation is different here because both the enabling laws and the section used to move
the court are wrongly cited. I am satisfied that the application before this court is
incompetent. The same is struck out. There will be no order as to costs.
Delivered.
W.S. MANDIA
JUDGE
8/5/2008
COPY TO:-
1- The General Secretary,
TRAWU Headquarter,
P.O. Box 78458,
DAR ES SALAAM.
2- State Attorney,
Attorney General's Chambers,
Kivukoni Front,
P.O. Box 9050,
DAR ES SALAAM.

241
LABOUR DIVISION
AT DAR ES SALAAM
BETWEEN
AMTLAC H. TRANSPORT & GARAGE - APPLICANTS
AND
SAID MOHAMED YABA – RESPONDENT
Held:
That where documents filed in the CMA are forged, the CMA has a duty to reject
the same outrightly.
RULING
MANDIA, J.
In CMA proceedings Ref. Number CMA/DSM/KIN/-ILA/7 the arbitrator made an

award of Sh. 2,356,000/= in favour of the respondent SAID MOHAMED YABA. The
arbitrator found as a fact that the respondent had worked for the applicant as a driver for
thirty years from 1977 to 2007. The arbitrator also found that the respondent was
illiterate. The arbitrator also found it as a fact that the applicant dismissed the
respondent from service on 10/4/2007 without good cause, and without payment of
terminal benefits. The arbitrator found as a fact that three exhibits tendered by the
employer, that is, a letter purporting to show that the respondent had voluntarily
resigned from service (Exhibit DW2), a purported contract for services from 4/4/1997
Exhibit DW3 and minutes of a meeting held by drivers ( Exhibit DW4 ) all had different
signatures in the place where the respondent was supposed to sign against his name. The
arbitrator therefore found that the purported signature of the respondent is a forgery.
The award had three components i.e. statutory compensation, severance allowance and
salary in lieu of leave.
The only substantive ground of this revision is that the Commission for Mediation
and Arbitration erred in holding that the documents purporting to show that the
respondent resigned from service were forgeries. I have had a chance to look at the
documents, and indeed they are very clumsy forgeries. The arbitrator was right in
rejecting the forged documents. I am satisfied that application has no colour of merit.
The same is dismissed in its entirety. The award confirmed.
Dated this 26th day of May, 2008.
242
W.S. MANDIA
JUDGE
26/5/2008
COPY TO:-
1. Arbogast Mseke, Advocates,
IPS Building 7th Floor,
Azikiwe/Samora Streets, P.O. Box 2971,
DAR ES SALAAM.
2. Legal and Human Rights Centre, Legal Aid Unit

Buguruni,
P.O. Box 79643,
DAR ES SALAAM.
LABOUR DIVISION
AT DAR ES SALAAM
DIRECTOR USAFIRISHAJI AFRICA …………………..APPLICANT
VERSUS
HAMIS MWAKABALA AND 25 OTHERS ……………… RESPONDENT
[Original CMA/DSM/TEMP/2198]
Held:
That under the law a person who renders service to any other, person including
for a specific task is presumed to be an employee until the contrary is proved if
one or more of the sceneries itemized under section 61 of LIA exists.
RULING
14/12/2009 & 30/4/2010

Rweyemamu, R.M.J;
In this application, the employer seeks an order for revision of the Commission for
Mediation and Arbitration (CMA) award dated 19/11/2008, wherein the employer was
243
ordered to pay each employee T.Shs. 390,000/= being payment of notice, leave
entitlement and severance. The applicant believes the decision was in err in so far as the
arbitrator's decision was based on the finding that the respondents were employees.
The background of this matter is to the effect that: the respondents' employment
was terminated on 15/10/2007 and they filed a dispute to the CMA claiming for terminal
benefits. The key issue of contention at the CMA was whether the respondents were
employees in terms of the law or not. The arbitrator decided that the respondents were
employees as defined under section 14(1) of the Employment and Labour Relations Act,
6/2004 (the Act) and presumed employees under section 61 of the Labour Institutions
Act, 7/2004 (LIA). He reasoned as follows:
"Kwamba kwa mujibu wa sheria hiyo, walalamikaji walikuwa wanafanya kazi

chini ya.uelekezajiluangalizi wa mlalamikiwa na kwamba wameshafanya
kazi zaidi ya masaa 45 kwa mwezi kwa miezi mitatu mfululizo. Vile vile
kwamba walalamikaji walikuwa wanapewa vifaa vya kinga na mlalamikiwa
na kwa kumfanyia kazi yeye.
Kwamba mlalamikiwa anapinga afya yao, lakini hakutoa mikataba yoyote ya
maandishi ili kuthibitisha kuwa wao siyo waajiriwa wake. Hivyo wanaomba
kulipwa stahili zao za kuachishwa kazi yaani notisi, likizo, kuinua mgogo
pamoja na masaa ya ziada kwa kuwa walikuwa wanaingla kazini saa 1.30
asubuhi na kutoka saa 12.00 au zaidi ya hapo"
He further decided that the respondents were employed on a contract of

unspecified period but paid weekly and that they were retrenched by the applicant after
he failed to provide uniforms. He found that as employees, they were entitled to terminal
benefits in terms of Section 41 (1) (b) (i) of the Act which he found to days salary, 28 days
leave; and severance pay.
The sum due was calculated based on the average of shs. 60,000/= since others
were paid 58,000/= and others 60,000/=. These entitlements in terms of the law were
found to be; notice based of 4 days salary being shs. 40,000/=; leave in the sum of shs.
280,000/= and severance Shs. 70,000/=. The total awarded was shs. 390,000/= per
respondent.
The arbitrator also found their overtime claims unproved and dismissed them and
declined to decide the issue of fairness of retrenchment because it was not pleaded in
their referral Form No. 1.
At the hearing of this application, the applicants were represented by Mr. Lugaila
advocate and the respondents appeared in person although their pleadings were drawn
gratis by the Legal and Human Rights Centre. The matter proceeded by way of written
244
submission.
The gist of the applicant's submission was that "… the arbitrator did not properly
construe the law on who is an employee and as to whether the respondents herein were
permanent employees of the applicant”: They elaborated that the respondents were
employed for specific tasks, and were not part of the applicant's payroll; that payment
was based on tasks performed, i.e. the amount of bags loaded and unloaded and were
not on 12 months continuous service.
In reply, the respondents submitted that they were employees as their form of
engagement qualify as a contract of employment under section 14 (i) (c) of the Act
which include: "(a) a contract for unspecified period of time; (c) a contract for a specific
task”. They elaborated that they were employed to carry out specific tasks of loading
and off-loading cement from train wagons, and the nature of their engagement
amounts to employment in terms of section 61 (a) (c) (e) & (f) of the Act. They worked
for an average of 45 hours for, more than 3 months and were provided with working
equipment being protection equipments and gate passes.
Further, they submitted that the applicant had a burden of proof as he failed to
keep a record of their employment as required by section 15 (6) of Act.
The issue for decision is whether the arbitrator's decision that the respondents
were employees was properly reached on the facts on record.
I have considered the parties arguments in light of the facts on record and the
law. Under the law a person who renders service 'to any other, person including for a
specific task is presumed to be an employee until the contrary is proved if one or more
of the sceneries itemized under section 61 of LIA exists. That section provides and I
quote:
“61. For the purpose of a labour law, a person who works for, or renders services to, any
other person is presumed, until the contrary is proved, to be an employee, regardless of the
form of the contract, if any one or more of the following factors is present:
(a) The manner in which the person works is subject to the control or
direction of another person;
(b) The person's hours of work are subject to the control or direction of
(c) In the case of a person who works for an organisation, the person
is a part of that organisation;
(d) The person has worked for that other person for an average of at
245
least 45 hours per month over the last three months;
(e) The persons is economically dependent on the other person for
whom that person works or renders services;
The person is provided with tools of trade or work equipment by
the other person; or...
On the facts before him, the arbitrator rightly found that conditions specified
under section 61 (a), (d) to (f) existed. In view of that, I find no grounds justifying
revision of the arbitrator's award. The same is hereby confirmed and this application
dismissed.
R. M. Rweyemamu, J
JUDGE
29/4/2010
LABOUR DIVISION
AT MWANZA
IN THE MATTER OF LABOUR REVISION NO. 24 OF 2007
TANZANIA BREWERIES LTD. ……………… APPLICANT
VS.
CHARLES MALOBANA ……………………… RESPONDENT
[Oroginal CMA/MZ/FLMC/201/2007]
CONSOLIDATED WITH:
LABOUR REVISION NO. 219/2008
TANZANIA BREWERIES LTD. ……………… APPLICANT
VS.
246
HENRI KILAGULA ……………………… RESPONDENT
[Oroginal CMA/MZ/576/2007]
Held:
1. That where a mediator proceeds with arbitration of a dispute without

appointment or giving choice to the parties in the matter, subsequent
proceedings will be found to be irregular and reviewable.
2. That the role and the duty of the mediator are to issue a certificate at
the end of the process if mediation fails.
3. That although officers of the CMA are appointed as both mediator
/arbitrator and the current practice has been that after mediation fails
and a certificate is issued, often the same person proceeds with
arbitration if the parties choose to have the dispute arbitrated, that
practice, understandably born out of necessity, is both contrary to law
as stated above, and may compromise efficient operation of system.
4. That mediation is an important tool in maintaining sound labour
relations; it is a stage, albeit a formal one above
negotiations/consultations, where the parties settle disputes between
each other amicably-which leaves their working relationship
unscarred. Under mediation, the voluntary/amicable aspect of dispute
resolution is maintained, only it is achieved with aid of a neutral third
party.
5. That mediation is made compulsory under the ELRA in order to

achieve a policy objective of promoting the spirit of amicable
settlement of industrial conflicts, vital for economic efficiency and
productivity.
6. That under the ELRA mediation has added advantage in that it is
conducted with the aid of a neutral but qualified person in labour laws
and practice. That is to say, mediation, apart from enabling quick
settlement of labour disputes, plays such a vital role in maintaining
good labour relations.
7. That the CMA should be empowered by the powers that be in terms of
having adequate resources to enable it achieve the ideal situation
where mediation and arbitration will be carried out by two different
persons in any dispute.
8. That where the parties choose arbitration, the CMA must appoint an
arbitrator who must decide the case and issue an award.
9. That the practice of Combined Mediation and Arbitration (Med/Arb)
247
has its own procedures prescribed under Rule 18 of the Labour
Institutions (Mediation and Arbitration) Rules, GN 6412007.
10. That where Med/Arb is adopted, the record is supposed to indicate

that the hearing proceeds as such.
11. That where the mediator is to proceed in arbitration, consent of the

parties should be obtained by having parties in such dispute sign a
consent agreement in the manner already prescribed for procedures
where Med/Arb is adopted (see Rule 30 of the Guidelines, GN
67/2007). Such signed consent agreement must be clearly indicated in
the record before arbitration proceeds.
CONSOLIDATED RULING
BOTH 30/9/2009 & 22/3/2010
R.M. RWEYEMAMU, J.
The two applications were heard differently but have been consolidated on the
court's own motion for purpose of this ruling. The reason for consolidation is that the two
involve the same applicant/employer, who seeks revision of the Commission for
Mediation and Arbitration (CMA) award on a variety of grounds of which one is similar in
both applications. After going through the CMA record of proceedings and considering
the parties submissions in each application, I found; that the decision on that one issue
would be the same, and that the said decision is sufficient to dispose of the applications
making it unnecessary to decide the rest of the grounds.
To put the issue in each application in a proper context, I will give pertinent facts
of each, beginning with Revision 24/2007. In that application, the respondent's
employment was terminated on 3/7/2007 by the applicant. On 22/7/2007, the applicant
appealed that decision to the CMA. The basis of complaint was that his termination was
in accordance with procedures of the repealed laws. On 4/12/2007 the CMA delivered its
decision and award subject matter of the present application. One of the grounds for the
revision application was that:
"4. That the arbitrator is biased as he was the one who chaired the
mediation proceedings and when it collapsed he assumed the role of
Arbitrator. "
In the counter affidavit, the respondent deponed that:

248
"5. As regards paragraph 4 of the affidavit I swear and state that
the award pronounced was proper on accounts that the mediation
and arbitration proceedings can be combined and presided over
by a single person"
I have checked the CMA record. Both mediation and arbitration were conducted
by one person and there is no indication of appointment to act in that capacity, or to
show that the parties were given a choice in the matter of the mediator proceeding to
arbitrate the dispute.
Submission by counsel for the respondent that both functions can be carried on
by one person is true, but that practice known as Combined Mediation and Arbitration
(Med/Arb), has its own procedures prescribed under Rule 18 of the Labour Institutions
(Mediation and Arbitration) Rules, GN 6412007. Where Med/Arb is adopted, the record
is supposed to indicate that the hearing proceeds as such. That was not the position in
this case. It is worth a mention that the Med/Arb system is not without application
problems, some were pointed to by Mandia J., as he then was, in the case BIDCO OIL
SOAP Vs. ABDU SAID AND 3 OTHERS, Revision 11/2008, The Hon. Judge's discussion
on that issue will be returned to later on in this ruling. For now, it suffices to state that
I find the submission by the application that, the CMA did not separate mediation and
arbitration proceedings to be correct.
In Revision 219/2008 the CMA award sought to be revised was issued on

26/9/2008. It was issued pursuant to the complaint made by the respondent/employee to
the CMA on 5/12/2007 against termination of his employment by the employer on
25/10/2007. The respondents found the termination procedurally, and substantively
unfair and sought an order of reinstatement. In the impugned award, the CMA found
termination both substantively and procedurally unfair. The ground of complaint found
to be similar to the one above was put as follows:
“4(v). The Commission did not separate mediation and arbitration and failed
to Issue a certificate for failure of mediation as required which vitiates
arbitration proceedings”.
The respondent denied the above generally and required strict proof of the issue.
Again, I checked the record of proceedings in question and it indicates the following:
On 5/2/2007 a ruling was delivered granting the respondent's application for hearing a
referral filed out of time. The ruling was issued by one Mr. Samuel as mediator.
Thereafter, Proceedings of /6/2008 indicate to have been before arbitrator Hon. Sheila,
but the order at the end indicates that the matter was for mediation. That order reads
and I quote;" Mediation imeshindikana chini ya kifungu 88(6) hata baada ya kuongea
nao, hivyo tutaendelea na Arbitration --- naamuru kesi hii iendelee kusikilizwa kwa muda
na mahali uliopangwa chini ya kifungu Na. 88 (4) (a) (5) cha Sheria ya ajira.
249
Thereafter, arbitration proceeded on 12/6/2008 before that same person who was
the mediator of the substantive dispute. There is no indication of appointment to act in
that capacity or to show that the parties were given a choice in the matter of the
mediator proceeding to arbitrate the dispute. In this case too, I find the submission by
the applicant that the CMA did not separate mediation and arbitration proceedings to
be correct.
The issue in question in both applications; namely whether a mediator can

proceed to arbitrate a dispute after mediation fails without a specific appointment or
the parties being given a choice in the matter has been subject of many revision
applications. The stand taken by this court is that where a mediator proceeds with
arbitration of a dispute without appointment or giving choice to the parties in
the matter, subsequent proceedings will be found to be irregular and
reviewable.
To discuss development of that principle, I find it time saving to quote

extensively from this court's decision in Bulyanhulu Gold mine LTD Vs. James
Bichuka, Revision 313/2008. In that case, after discussing the facts the court went on to
state:
“Based on the above, the applicant prays for a decision on the factual and legal
issue of; "whether there was a fresh appointment for the mediator to act as
arbitrator in the same proceedings" At the hearing, the applicant was
represented by Mr. Yusuf Advocate while the respondent appeared in person.
Substantiating the issue, Mr. Yusuf submitted that the law, Section 88(2) (a)
of the Employment and Labour Relations Act, 612004 (the Act); requires that
an arbitrator has to be appointed; that such appointment has to be on record
and a certificate to that effect issued, otherwise the arbitrator has no powers
to act and proceedings conducted without such appointment are void. As
authority for such proposition, Counsel referred the court to its decision by
Mandia J., as he then was, In GM Mufindi Paper Mills Vs. Masoya Magoti,
Revision 712007.
In his counter affidavit, the respondent contradicted the applicant and

required strict proof of the allegation and submitted at the hearing that;
"regarding the issue of mediator/arbitrator, my response is as per my counter
affidavit. I believe the arbitrator recorded what transpired"
I have checked the CMA record. It reveals that the dispute was before Mr.
Katindi as mediator on 271612007 when an order was made to the effect that;
"Mediation has failed. Both parties have agreed the dispute be referred for
250
arbitration". The next date was 17/9/2007 when the dispute came before MR.
Katindi as arbitrator, but arbitration was adjourned by consent of the parties
to another date. Ultimately, arbitration was conducted by the same person
and an award issued by him on 6/10/2008, On those fact it is clear the issue
of appointment of the arbitrator was not on record as submitted by counsel
for the applicant and contradicted by the respondent.
I have had opportunity to read the cited decision of Masoya Magoti which
is persuasive. My understanding of the holding of that case is that the Hon.
Judge discussed the import of section SS (2) (a), (b) and (c) of the Act, which
provide that where mediation falls.
1. The mediator must issue a certificate as spelled out in Rule 16(1) of the
Labour Institutions (Mediation and Arbitration) rules GN 64/2007(the
Rules) then the Commission(CMA); thereafter,
2. The CMA must appoint an arbitrator to decide the dispute, and it must,
3. determine the time date and place of arbitration proceedings, and;
4. advise the parties to the dispute of the details stipulated in 2 and 3 above.
The Hon, Judge underscored two points. First he explained the role of mediators
under the Act, and the duty to issue a certificate at the end of the process if
mediation fails. Second, he emphasized that where the parties choose arbitration,
the CMA must appoint an arbitrator who must decide the case and issue an
award. The issue of procedures to be followed for such appointment however, was
not discussed; neither did the Hon. Judge specifically state it as a principle of law
that without such appointment, the subsequent proceedings are void.
This court must now make a specific finding because the issue of appointment of
arbitrators before they conduct each particular arbitration; and, connected with it,
the issue of mediators automatically converting into arbitrators after failure of
mediation has been raised as a ground for revision in a number of applications
before and now pending in court.
Admittedly, a decision of the issue causes me great /anxiety, Why? For one,
my decision will impact a numb of disputes already filed in this court.
While under the Act, mediation and arbitration are two distinct functions;
mediators are appointed under section 86(3) (a) and arbitrators under section 88(2)
(a); and while it is true the Act provides that the CMA must appoint an arbitrator,
the Act, read together with the Rules and the Labour Institutions
(Mediation and Arbitration) Guidelines, GN 67/2007 however, do not
specifically provide for the procedure for such appointment.
I take Judicial notice of the fact that officers of the CMA are appointed as
both mediator /arbitrator and the current practice has been that after
251
mediation fails and a certificate is issued, often the same person proceeds
with arbitration if the parties choose to have the dispute arbitrated. Yet that
practice, understandably born out of necessity is both contrary to law as stated
above, and may compromise efficient operation of system.
I state that the practice is born out of necessity because: I also take judicial notice
of the fact that the CMA suffers from human resource constraints. Some area
offices established under section 15 (1) (c) of the Labour Institutions Act, 7/2004,
are manned by one person acting as both mediator and arbitrator. This is a serious
challenge.
For one, the resultant practice is contrary to law and the confidentiality prescribed
under Rule 17 of the M&A rules remains but on paper. That rule provide that; "no
person may refer to anything said at mediation proceedings during any
subsequent proceedings, unless the parties agree in writing". The said
provision aims at preserving the confidentiality of the mediation process- which is a
cornerstone for success of mediation as an effective avenue for quick resolution of
labour disputes.
Generally, mediation system best works when parties have full trust in
confidentiality of the proceedings which enables them to participate with frankness.
Further when the same person acts as mediator and arbitrator as happened in this
case, there would be a conflict of roles likely to lead to injustice. The adopted practice
therefore inherently deprives the CMA of a very effective tool for fast dispute
resolution,"
Before continuing, I wish to stress a point regarding the role of mediation not
discussed in that case. In essence mediation is also an important tool in maintaining,
sound labour relations. It is a stage, albeit a formal one above negotiations/consultations
where the parties settle disputes between each other amicably-which leaves their working
relationship unscarred. Under mediation, the voluntary/amicable aspect of dispute
resolution is maintained, only it is achieved with aid of a neutral third party.
Mediation is made compulsory under the Act in order to achieve a policy objective
of promoting the spirit of amicable settlement of industrial conflicts, vital for economic
efficiency and productivity. Under the Act mediation has added advantage in that it is,
conducted with aid of a neutral but qualified person in labour laws and practice. The
point stressed is that mediation, apart from enabling quick settlement of labour disputes,
plays such a vital role in maintaining good labour relations, the importance of which need
no further discussion. In view of that, the CMA should be empowered by the powers that
be in terms of having adequate resources to enable it achieve the ideal situation where
mediation and arbitration will be carried out by two different persons in any dispute.
That observed, I return to the task of examining development of the practice rule
developed in the case of James Bichuka.
252
"Granted, there are disputes where from their very nature, the same person
may perform both functions-the kind of scenario envisaged under the combined
mediation and arbitration (Med/Arb) provisions. A different procedure is
prescribed for the Med/Arb, for which a different procedure of appointment is
required as prescribed under Rule 18 of the M&A rules, That system is itself
not without practical difficulties as discussed by Mandia J., as he then was, in
the BIDCO case referred to above when he observed that:
"Rule 18 of GN 64/2007 provided for combined Mediation and
Arbitration proceedings, but in my view this rule does not
override the provision of Rule 16 with regard to issuing a
certificate where mediation has failed.
The Commission has the power under Rule 18 of GN 64/2007
to order for combined mediation/arbitration proceedings
a f t e r
giving due notice under Rule 18 (2). How this can be done
a moot point, since the parent Act I, e the Employment
and Labour Relations Act prescribes for the appointment of a
mediator of a dispute first under Section 86 (3) (a) and, after
the failure of mediation, appoint an arbitrator under Section
88 (2) (a). Appointing one as both a mediator and arbitrator
at the same time depends on how efficient the mediator is in
finalizing the mediation, writing he certificate and receiving
the appointment of arbitrator. Since mediation of disputes is
mandatory, and arbitration is also mandatory, it remains to
be seen how the two appointments can be made at the same
time without flouting the law, (Emphasis mine)
Be that as it may, until necessary enabling provisions are made and the CMA equipped
to effectively and efficiently carry out its important functions by being able to assign
two different persons to perform the two functions in each case, the reality on the
ground remains as explained and the CMA has to adopt a compromise practice
which is not directly contrary to law and does not precipitate injustice to either
party.
As already observed, currently most of its officers are appointed as both mediator and
arbitrator. To avoid nullification, the next best proper practice, which fortunately
some arbitrators are already using, is to inform the parties (and record their
responses); that he/she is the appointed arbitrator. Where the parties feel that the
previous role as the mediator will adversely affect their interest, they will state so,
and in case of that eventuality, the dispute has "to be arbitrated by someone else,
even if that person has to come from a different area office-with attending costs and
delays. In the present situation, where a mediator proceeds with arbitration
of a dispute without appointment or complying with the above procedure,
[that is giving parties a choice in the matter] subsequent proceedings will be
found to have been conducted with fundamental irregularity and
253
reviewable…”
To make a practice more clear, I should add a point not stated in “JAMES
BICHUKA” that the CMA should therefore adopt a practice which will avoid future
disputes over the issue of ‘parties’ choice in the matter' i.e. consent for the mediator to
proceed in arbitration, by having parties in such disputes sign a consent agreement in the
manner already prescribed for procedures where Med/Arb is adopted see Rule 30 of the
Guidelines, GN 67/2007. Such signed consent agreement must be clearly indicated in the
record before arbitration proceeds.
To return to the two applications subject matter of this ruling, I similarly find
that the persons who mediated the disputes proceeded with arbitration without any
indication that they were the appointed arbitrators or that parties were given a choice in
the matter; and therefore that in each case the arbitrator exercised jurisdiction with
material irregularity. For that reason, in both applications, the CMA proceedings
including the award and subsequent orders are hereby quashed. The CMA files are to be
remitted with orders that it conducts the process afresh according to law. For avoidance
of doubt, at the CMA, the two proceedings are to be conducted differently. It is so
ordered.
R. M. RWEYEMAMU
JUDGE
18/3/2010
Date: 22/03/2010
Coram: Hon. R.M. Rweyemamu, J.
Applicant:
For Applicant: Mbwambo a Legal Officer for the company. Respondent:
For Respondent: Mutalemwa Advocate for.
C.C.: Josephine Mbasha
COURT: This matter is coming for Ruling. Ruling in this case has been
consolidated with the ruling in application 219/2008.
ORDER: Ruling delivered this 22nd March, 2010 before parties as above R/A
Explained.
R. M. RWEYEMAMU
JUDGE
22/3/2010
LABOUR DIVISION
254
AT MWANZA
LABOUR REVISION NO 229 OF 2008
KWILA PETER NKWAMA APPLICANT

VERSUS
GENERAL MANAGER MARINE SERVICES CO. LTD …….. RESPONDENT
[Original CMA/MZ/492/2008]
Held:
1. That the CPC does not ordinarily apply in conduct of cases under the labour
laws as procedures governing conduct of cases in the CMA and this court are
separately provided for. 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.
2. That the labour laws and regulations made thereunder do not provide for a
place of suing; thus, in its absence, the usual practice is to resort to
procedures governing civil practice in this country i.e. the CPC; whereby the
relevant provision is section 18 (a) to (c).
RULING
16/9/2009 & 12/3/2010
R. M. RWEYEMAMU, J.
The applicant/employee seeks revision of the Commission for Mediation and
Arbitration (CMA) decision dated 13/10/2007. That decision followed a referral made
by the applicant challenging his termination by the respondent/employer on ground
that it was unfair. In its decision, the CMA upheld the Preliminary Objection (PO)
raised by the respondent/employer that it had no jurisdiction to handle the dispute
because the cause of action arose in Kyela in Mbeya zone not Mwanza- The applicant
believes the Mwanza CMA had jurisdiction, an issue controverted by the respondent
hence this contested application.
At the hearing the applicant was represented by Mr. Magabe - a personal
representative in terms of section 56 (b) of the Labour Institutions Act, 7/2004 (LIA)
while the respondent was represented by Mr. Rutahindulwa Advocate.
The issue for decision in this application is whether the arbitrator properly
exercised its jurisdiction when it decided that it had no jurisdiction to deal with the
255
dispute. In the impugned decision, the arbitrator agreed with the respondent's
submission that the Kyela CMA had jurisdiction in the Matter because that was where
the applicant's employment was terminated.
From the parties' submissions at the CMA and in this court, the following facts
are undisputed:
 The applicant's employer was the General Manager, Marine Services Co.
Ltd whose head office is in Mwanza
 The applicant was working in Mwanza; he was assigned duties at Kyela
where he did not report (for reasons which are not of immediate
relevance).
 By its letter dated 29/7/2008 written on behalf of the respondent- GM
Mwanza and received by the applicant on 1/8/2008, the applicant was
informed that he had been terminated on grounds of absence from duty,
but that he would reinstated on humanitarian reasons if he agreed to a
permanent transfer to Kyela.
 Aggrieved, the applicant appealed the decision to the Mwanza CMA
culminating in the decision subject matter of this application.
 The applicant’s residence was and remains to be in Mwanza.
At the hearing, it was submitted on behalf of the applicant that the GM Mwanza
remained his employer and was the one who terminated his employment; that although
the respondent had transferred the applicant to Kyela, it was on grounds disputed by the
latter thus his failure to report there; that as such, the applicant’s place of employment
remained to be in Mwanza where therefore the cause of action arose. It was further
submitted that to require the dispute to be determined in Kyela would cause
inconveniences to the applicant including transport costs for himself and his witnesses
from Mwanza to Kyela.
In response it was submitted for the respondent that although the head quarters of
the respondent company was in Mwanza, the letter of termination was sent and received
at Kyela – the applicant was aware of the transfer thereto, as such the proper CMA office
to handle the dispute was at Kyela. To buttress the argument that the cause of action in
a case of termination is a place where the letter of termination was received,
counsel for the respondent referred the court to the Court of Appeal [CAT] decision in
James Funke Gwagilo Vs. AG, Civil Revision 50/1998 [unreported].
I take judicial notice of the fact that there is no CMA office in Kyela; the district is
served by the CMA at Mbeya.
The first issue I have to decide is the extent the cited authority is applicable to the
facts of this case. In the cited case, the CAT was dealing with the issue of wrongful
termination of employment by the government as an employer. In that case the employee
had been employed and terminated at Dar es Salaam; the letter of termination was
256
written and received in Dar es Salaam but the suit was filed in Dodoma where the
plaintiff/employee resided.
The court discussed applicability of section 18 of the CPC which provide that:
"...Every suit shall be instituted in a court within the local limits of whose
jurisdiction-
a) The defendant, or each of the defendants where there are more than one,
the time of the commencement of the suit, actually and voluntarily resides,
carries on business, or personally works for gain; or
b) Any, of the defendants, where there are more than on one, at the time the
commencement of the suit, actually and voluntarily resides, or Carrie
business, or personally works for gain, provided that in such a case either
leave of the court is given or the defendants who do not reside or can
business, or personally works for gain, as aforesaid, acquiesce in
institution; or
c) The cause of action, wholly or in part, arises. "
The Court first held that subsection (a) and (b) above do not apply to suits
against the government, and the determinant factor is where the cause of action
arose. The Court went on to note that as the cause of action was the alleged
termination of employment;
“…the problem is to determine which is the place where the cause of action
arose. Is it the place where the letter was written or where it was received?
…If the two events had taken place at two different places, then the place
where the cause of action arose would have been the place where the letter
was received. "
After reading the authority cited, it is my view that the case is not on all fours with
the facts of the present case and is therefore distinguishable because, one, that case was
a suit against the government where as observed by the court, the only determinant
factor is the cause of action. Two, in the cited case unlike the present, the place of
employment and its termination were not disputed.
Three, the CPC does not ordinarily apply in conduct of cases under the labour laws.
Procedures governing conduct of cases in the CMA and this court are separately
provided for. 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.
The next question I have to answer is whether the labour laws provide for a place of
257
suing, I have read the provisions mentioned in the arbitrator's decision; rule 15 (1) (c) of
Labour Institutions Act, 7/2004 (LIA), deals with the CMA's powers to "establish offices
in areas and at administrative levels as it may determine." And rule 10 of the Labour
Institutions (Ethics and code for Conduct for Mediators and arbitrators) Rules, GN
66/2007 simply requires mediators and arbitrators "to observe their competency on
jurisdictional issues as conferred by the Act,'; Section 86 of the Employment and Labour
Relations Act, 6/2004 generally provides that disputes should be referred to the CMA,
the latter has powers to mediate and arbitrate disputes; it has powers to establish area
offices, of which an area office was established in Mbeya not Kyela.
Nothing in the above provisions addresses the issue of place of suing, and my
reading of the labour laws has not revealed a provision which specifically governs that
issue. I accordingly find that the labour laws do not provide for a place of suing. To use
legalize, there is a lacuna on that issue.
While it would be best for the law or regulations to specifically provide for a place
of suing in labour cases, in its absence, the usual practice is to resort to procedures
governing civil practice in this country i.e. the CPC. The relevant provision is section 18
(a) to (c) thereof already quoted herein above. In labour cases, like any other civil case
the place of suing Js determined by the whole of that section, there is no basis to assume
that the only consideration is ground (c) -the cause of action alone, as assumed by the
arbitrator and counsel for the respondent in his submission to this court. Section 18 (a)
and (b) are also applicable in determining the place of instituting Suits. That is, a labour
dispute can be filed where the complainant resides, carries on business or where
the cause of action arose.
In the result, in the present case since it is undisputed that the applicant/employee
resided in Mwanza, it follows that the Mwanza CMA office had jurisdiction to mediate
and arbitrate the dispute. For that reason I find that the arbitrator's decision upholding
the raised PO resulted in failure to exercise jurisdiction vested by law. That conclusion is
sufficient to dispose of the matter but there is another ground why this application must
succeed.
That next ground is based on the question, whether the issue before the
arbitrator could be disposed of by way of PO. To answer the question, I need first to
consider what matters can be raised by way of PO?
The term PO in our jurisdiction is used as per rule established in the now
258
defunct Court of Appeal of East Africa in Mukisa Biscuit Manufacturing Company
Limited V West End Distributors Limited 1969 EA 696. That decision has been
followed by the Court of Appeal of Tanzania in various decisions among them
Shahida Abdul Hassanali Kassam V Mahedi Mohadedi Gulamaji Kanji, Civil
Application No. 42 of 1999, (unreported) where the Court held-that:
A PO "is in the nature of what used to be a demurrer. It raises a pure
point of law which is argued on the assumption that facts pleaded by the
other side are correct. It cannot be raised if any fact has to be
ascertained or if what is sought is the exercise of judicial discretion. "In
the Mukisa case Law 3A giving example of PO pointed to: “…objection to
the jurisdiction of the court, a plea of limitation and the like. "He went on
to observe that, "a preliminary objection contains a point of law ... and
which if argued 35 a preliminary point may dispose of the suit” And
Newbold JA in the same case continued that " a preliminary objection
cannot be raised if any fact has to be ascertained" " a "PO cannot be based
on unascertained factual m3-tte,-,5,,said Kisanga ]A in COTWU (T) OTTU
Union & Another v, Hon. Iddi Simba, Minister of Industries & Trade
and 7 Others, Civil Appl. 40/2002 (CA -unreported) (Emphasis mine).
Now, even assuming cause of action was the only determinant factor, on the facts
of this case, determination of that issue depends on unascertained factual matters.
Both the question of where the applicant's employment was terminated, and whether
the applicant had been transferred were material points of contention, as such the cause
of action could not be determined by way of PO. The issue was not a pure point of law.
This ground itself suffices to find as I do, that the arbitrator's decision on the PO
amounted to an error material to the merits of the case and for that reason the decision
has to be revised.
For the above two reasons, I grant this application for revision, quash the
complained of decision and order the CMA at Mwanza to proceed and process the
applicant's referral according to law.
R.M. Rweyemamu
Judge
11/12/2009
Date: 12/03/2010
Applicant: Mr. Magabe a Personal Rep.
For Applicant:
Respondent:
For Respondent: Fabian Mayenga a Principal Officer of the Respondent,
259
Court: This matter is scheduled for delivery of ruling.
Order: Ruling delivered this 12th March, 2010 in presence of parties as above.
R/A Explained.
R.M. Rweyemamu
Judge
11/12/2009
LABOUR DIVISION
AT DAR ES SALAAM
LABOUR REVISION NO 66 OF 2009
JOB MWAKANG’ATA ……………………………. APPLICATION
VERSUS
DIRECTOR KINONDONI MUNICIPAL COUNCIL …….. RESPONDENT
[Original CMA/DSM/KIN/ 5754/08]
Held:
1. That under section 94 (1) of the ELRA the Labour Court has exclusive
jurisdiction over the application, interpretation and implementation of the
provisions of the ELRA.
2. That the ELRA, read together with rule 28 the Labour Court Rules (GN No.
106 of 2007), empowers the Labour Court to call for a record of any
proceedings decided by the CMA (among others), and revise the same on a
number of grounds including if it appears that the CMA has " failed to
exercise vested jurisdiction."
260
3. That neither does the CMA nor Labour Court, even though a High Court,
have powers to enforce a breached Constitutional right; as such power is
provided for in the Basic Rights and Duties Enforcement Act (1994). (See also
Zayumba Abeid v. Tanzania Ports Authority, High Court of Tanzania (Labour
Division) at Dar es Salaam), Labour Revision No. 155 of 2008 (Unreported).
4. That claims found on the constitutional basis cannot be jointly filed with
other labour claims whose cause of action is based on the Act; because, apart
from the issue of misjoinder, mixing the claims can lead to confusion in
identifying' issues in the dispute, and in deciding the question of limitation of
time.
RULING
2/9/2010 & 20/9/2010
R. M. RWEYEMAMU, J.
This is an application by the employee, Job Mwakang’ata seeking revision of the

decision of the Commission of Mediation and Arbitration (CMA) dated 17/3/2009.
Briefly, background of the dispute is as follows: Job filed referred a labour dispute
against his employer/respondent to the CMA on 10/12/2008. According to particulars on
the Referral form, the dispute was of mixed claims itemized as:
1- Madai ya kupunjwa nauli ya likizo ya June/July 2008 - 695,000/=
2- Madai ya kupunjwa nauli ya likizo 2006 - 505,000/=
3- Madai ya fidia ya usumbufu - 30,000,000/=
4- Madai ya kuvunja Katiba ya Jamhuri ya Muungano - 50,000,000/=
5- Riba ya kukaa na fedha zangu - 2,000,000/=
……December 2008, thus undastandably, the ………………with application for

condonation. Before mediation, the …. raised a preliminary objection to the effect that
the CMA lacked on to -deal as it involved allegation of beach of Constitutional. The
objection was sustained and the CMA stuck it off on that
261
“Dissatisfied, Job filed this, application seeking revision on grounds:
a) That the "learned Mediator/Arbitrator erred In law and fact by his/her

decision 'to rule out that the application before him/her was a constitutional
matter and declared himself/ herself to have no jurisdiction to entertain the
application.
b) That the learned trial Mediator/Arbitrator erred in law and fact by his/her
failure to distinguish between constitutional and labour issues.
In this court Job appeared in person, adopted grounds in the affidavit in support of
the application and added that the CMA should have awarded is other employment
benefits. The respondent represented by its solicitor Mr. Ngalawa supported the CMA
decision and added that even this court, had no jurisdiction in the matter.
The issues for decision are; first whether the CMA decision that it had no jurisdiction
to process the whole dispute proper; second, whether this court has jurisdiction to handle
this application as submitted by Mr. Ngalawa for the respondent. It will deal with the
later question first.
Under section 94 (1) of the Employment and Labour Relations Act, Act)6/2004 [the
Act], this court has "exclusive jurisdiction over the application, Interpretation and
Implementation of the provisions of the Act. The Act read together with: rule 28 the
Labour court Rules, GN 106/2007empowers this court to call for a record of any
proceedings decided by the CMA (among others), and revise the same on a number of
grounds including if it appears that the CMA has " failed to exercise vested jurisdiction"
In this, application Job alleges and the respondent denies that the CMA erred,
by failing to decide the whole dispute or the part involving other employment claims.
That in my considered opinion amounts to alleging that the CMA “…failed to exercise
vested jurisdiction”. Since that is one of the issues this court is empowered to base
revision on, I disagree with submission by counsel for the respondent and find that
this court has jurisdiction to decide this application.
Regarding the second question, I find the CMAdecision was proper. First, it rightly
concluded that it had no jurisdiction in a claim involving breach of constitutional rights
because the venue for accessing such right is as prescribed under the Rights and Duties
Enforcement Act, (CAP R.E. 2002). To remove any confusion I should point out clearly
that neither does this court, even though a High Court, have powers to "enforce a
breached Constitutional right". That is the position of the law well explained by this court
262
in Zayurnba Abeid versus Tanzania Ports Authority, Revision 155/2008 (DSM-
unreported).
In that case, Hon. Mandia, J (JA) as he then was, held that although the court is
empowered to be guided by the Constitution in interpreting the Act, the Constitution- is
not enforceable under the Act; enforcement of basic rights is through the machinery set
up under CAP 3. I associate myself with that reasoning. Having so found, the next
question for decision is whether the CMA should have ignored/disregarded the issue of
basic rights and proceeded to deal, with other claims raised in the referral form.
Again, I find that the CMA decision was proper, because claims found on the
constitutional basis cannot be jointly filed with other labour claims whose cause of
action is based on the Act. Apart from the issue of misjoinder, mixing the claims as was
done in this case would have led to confusion in identifying' issues in the dispute, and
in deciding the question of limitation of time.
The proper avenue open to Job is to present only claims relating to the Act over
which the CMA has jurisdiction, and pursue breach of basic rights in the prescribed
manner. In view of that, my decision is as follows: The application is found to have no
merit and dismissed.
In the interest of justice, Job is granted two weeks from the date of delivery or
receipt of this decision to file re file form No 1, itemizing only claims over which the CMA
has jurisdictions (claims 1, 2, 3, and 5): above, together with a new application for
condonation focusing on grounds for delay in respect of only the re filed claims. The CMA
should thereafter proceed to deal with the dispute as per usual procedure commencing
with the condonation issue.
R. M. RWEYEMAMU
JUDGE
20/9/2010
Date: 20/9/2010
Applicant: Present in person
For Applicant:
Respondent:
For Respondent: Ngalawa – City solicitor
263
COURT: Ruling delivered this 20/9/2010.
R/A on point law Explained.
R. M. RWEYEMAMU
JUDGE
20/9/2010
COPY TO:
1- Director,
Kinondoni Municipal Council,
Mr. Lusajo,
Simu Na. 0713-265032, 0755-205778,
DAR ES SALAAM.
2- Job Mwakang’ata,
Simu Na.. 0784-568575,
DAR ES SALAAM.
264
LABOUR DIVISION
AT DAR ES SALAAM
REVISION NO 260 OF 2008
SECURITY GROUP TANZANIA …………………APPLICANT
VERSUS
ATHUMANI S/O ABDALLAH …………….………..RESPONDENT
Held:
1. That the double jeopardy principle in workplace disciplinary procedures e is

part of a basic human right to fair treatment entrenched in the constitution
under which a person cannot be tried or punished twice for the same
offence.
2. That in labour relations the double jeopardy principle translates into a rule
that an employee acquitted at a disciplinary enquiry cannot be subjected to a
second disciplinary hearing on the same issue. Apart from general
considerations of fair labour practices are in the constitution, the rule
prevents never ending/harassing enquiries against an employee which
disrupts harmonious labour relations.
3. That although the application of the double jeopardy principle does not apply
to prevent institution of criminal proceedings against an employee for a
misconduct over which that employee has been subjected to internal
disciplinary proceedings, under section 37 (5) of the ELRA an employee
charged with criminal offence in respect of a misconduct at the workplace
cannot be subjected to disciplinary proceedings over the same misconduct
until the criminal proceedings are finalized.
4. That while the double jeopardy principle applies in internal disciplinary
proceedings at the workplace, conceptually, determination of the question in
the workplace involves striking a balance between the objective of fair
practices and the employer's prerogative to manage and maintain workplace
discipline, a key prerequisite for economic efficiency.
5. That one of the objective of the ELRA spelled out under section 3 is: "To give
effect to the provisions of the constitution in so far as they apply to labour
relations and conditions of work;”
RULING
11/9/2009 &
18/6/2010
R.M.RWEYEMAU,J.
The key issue to be decided in this matter revolves around the applicability of the
double jeopardy principle in workplace disciplinary procedures. The principle is part
of a basic human right to fair treatment entrenched in the constitution under which a
person cannot be tried or punished twice for the same offence. One of the objective of
the Employment and Labour Relations Act, (the Act) 6/2004 spelled out under section 3
265
is: "To give effect to the provisions of the constitution in so far as they apply to labour
relations and conditions of work;”.
In labour relations the principle translates into a rule that an employee acquitted
at a disciplinary enquiry cannot be subjected to a second disciplinary hearing on the same
issue. Apart from general considerations of fair labour practices are in the constitution,
the rule prevents never ending/harassing enquiries against an employee which disrupts
harmonious labour relations.
It is important to make it clear that, application of the principle does not apply to
prevent institution of criminal proceedings against an employee for a misconduct over
which that employee has been subjected to internal disciplinary proceedings. But, under
section 37 (5) of the Act, an employee charged with criminal offence in respect of a
misconduct at the workplace cannot be subjected to disciplinary proceedings over the
same misconduct until the criminal proceedings are finalized.
While the double jeopardy principle applies in internal disciplinary proceedings
at the workplace, conceptually, determination of the question in the workplace involves
striking a balance between the objective of fair practices and the employer's prerogative
to manage and maintain workplace discipline, a key prerequisite for economic efficiency.
With that in mind, I find it necessary to state what in my opinion is the kind of
enquiry or factors to be considered in arriving at a proper application of the double
jeopardy principle in labour matters. Generally, the decision depends on special
circumstances of each case. The factor are, among others:
a) Whether there were in fact two formal disciplinary hearings, which entail
deciding whether the first was conducted by a properly constituted authority.
b) Whether the decision given was final. For example, some employer's
disciplinary codes provide for levels of disciplinary hearings, such that an
employee is given a right to appeal to a second level before referring the matter
to the CMA. A recognized procedure under the law as indicated by the rule 12
and 13 of the Guidelines for Disciplinary, incapacity and Incompatibility Policy
and Procedures scheduled to the Employment and Labour Relations (Code of
Good Practice) Rules, (the Code) GN 42/2007.
c) Whether the 1st disciplinary body concluded its enquiry.
d) What prompted the second enquiry? For example whether the second was
prompted by substantially new evidence which could not have been reasonably
known by the employer "casting the employee's misconduct in a more serious
light "or whether the 2nd enquiry was prompted by negligence or ill will on the
part of the employer the test being whether in the circumstances of the case,
the employer's decision to hold 2nd hearing rational or unfair? As surmised
by John Grogan in his Treatise DISMISSAL, DISCRIMINATION, AND UNFAIR
LABOUR PRACTICES, 2nd Edition.
e) Whether the misconduct was in fact proved, an issue also important when the
adjudicator is assessing the appropriate remedy following a finding of unfair
termination based on of the double jeopardy rule. This is so because where the
misconduct is serious and proved, "It would be unfair to compel an employer
retain an employee in whom it has justifiably lost confidence' as observed by
John Grogan in his Treatise cited above.
266
In light of the above, the issues to be decided in this application are; one,
whether the CMA properly found that the employee was subjected to two different
disciplinary hearings for a misconduct based on same facts; and two; whether the CMA
properly found that the employee's termination was unfair because having been found
not guilty following a disciplinary hearing, he was convicted during a subsequent
hearing on the same facts and terminated; three, whether the CMA considered the
substantive issue of guilty of the employee; and last, whether the CMA properly
exercised its discretion in granting the reliefs.
I now proceed to examine the principle in light of the facts in this dispute. The
employee/respondent was terminated on 15/12/2007, following a disciplinary hearing by
the employer/applicant. He referred the matter as a dispute of unfair termination to the
CMA and sought as relief reinstatement without loss of remuneration. The basis of his
claim was that he had been double jeopardized by the employer when he prosecuted
him-twice for the same offence.
According to the employee's evidence at the CMA, he was subjected to two
disciplinary hearing on the same charge on same facts. The 1st was 8/12/2007 he was
acquitted and directed to resume work. The 2nd hearing for which he was served on 1
2th took place on 14/12/2007. He attended that 2nd hearing but objected to it on grounds
that the charge was substantially the same to the one he was acquitted of. All the same,
he was convicted and terminated on 15/12/2007.
The uncontested facts at the CMA were that the employee was subjected to two
hearings. Under the 1st hearing, the employee was charged with willful damage to a
vehicle with registration number T522 AFH namely overheating of the vehicle engine
on 5/11/2007. Whether he, was acquitted or not is the first factual issue in dispute. At the
2nd hearing he was charged with and convicted of gross-negligence to property to wit,
driving the same vehicle number TZ522 AFH without water in the engine leading to
overheating the engine on 5/11/2007.
After evaluating evidence, the arbitrator decided that:
" while the two offences differs in semantics, they(ir) substantially the
same in law as they are connected to the same subject matter, ...the
alleged overheating of the engine on which occurred on 5th November,
2007
The respondent... substantially the same... T522.”
The arbitrator concluded that "termination of the complainant (employee) was
unfair in all fronts" and ordered his reinstatement without loss of remuneration.
In this application, the employer gave as ground for revision that:-
“the Arbitrator erred in law in holding that the respondent
(employee) herein had been, in law double - jeopardized and so
failed to consider the gravity of the offence the respondent
committed and loss consent to the applicant .... or error material
to the merits of the case constituting injustice - and a material
irregularity....”
In response, the employee claimed that the arbitrator reached a proper conclusion
because he was double jeopardized by being prosecuted twice for offences which were
substantially the same.
267
At the hearing, employer/applicant appeared through its administrative officer
while the respondent was represented by a union official from TUPSE. In elaboration, the
employer submitted that at the 1st disciplinary hearing no decision was made, and no
outcome was entered on the disciplinary form because it was found at the hearing that a
more graver offence was committed and that was why the 2nd hearing, was conducted.
He faulted the arbitrator's decision that the employer intended to terminate the
employees because there was no basis for that decision.
The employee submitted that the 1st hearing was completed and a finding made
that the employee was not guilty, there was evidence that he was allowed to resume
work. He said no forms were completed at both hearings a fact refuted by the employer
who responded that forms were used although they were not submitted at the CMA.
The issues for decision is whether on the evidence on record, the arbitrator
properly found for the ground that the termination was procedurally unfair for breach of
the double jeopardy principle or there was an error and material irregularity as alleged by
the employer/applicant. These questions I proceed to consider in light of the facts and
factors enumerated above.
I have already stated that as a principle I agree with the arbitrator's employee
cannot be subjected to two disciplinary hearings on same facts.
After checking the facts on record, I also agree that the two disciplinary
proceedings were based on the same fact otherwise the employer's witness (the Human
Resources Manager) who testified at the CMA could have given evidence on the
difference between the two; or explained if there were exceptional circumstances
necessitating the second hearing a few days after the 1st one exonerated the employee.
Under the law, section 37 (2) of the Act, it is the employer who has a duty to prove
that termination was fair. The employer did not show any substantive difference between
the charges in the two hearings, nor did the employer explain what new information
emerged to prompt the second one. In view of that, I find no basis to fault the arbitrators'
finding that the employee was unfairly treated when he was subjected to the 2nd trial……
INCOMPLETE!!

LABOUR DIVISION
AT DAR ES SALAAM
IN THE MATTER OF APPLICATION NO. …………2009
BETWEEN
NATIONAL OIL [T] LTD. ……………….. APPLICANT
VERSUS
BRUNO JOSEPH …………………… RESPONDENT
(Arising from Decision by Rweyemamu J. in Application for Review of the Decision by
Mandia J. in LC Revision 115/2008)
Held:
1. That non-citation and/or wrong citation of an enabling provision render the

268
proceedings incompetent and that such error goes to the very root of the
matter and is not a mere technicality. (See also Chama Cha Walimu v. The
Attorney General, Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal
No. 151 of 2008 (Unreported).
2. That the right to appeal against a labour court decision is created by section
57 of the LIA, which provides that: “Any party to the proceedings in the
Labour Court may appeal against the decision of that Court to the Court of
Appeal of Tanzania on a point of law only”; and reinforced the procedure
laid down in Rule 54 of the Labour Court Rules.
RULING
4/8/2009 & 30/10/2009
R.M. RWEYEMAMU, J;
This application filed on 11/3/2009 is for leave to appeal to the Tanzania Court of
Appeal (CA) against this court's decision dated 4/3/2009. In that decision, the court
dismissed the applicant's application for review of the court's decision in revision
115/2008 dated 10/10/2008.
The application was made under Rule 54 of Labour Court Rules, GN 106/2007 and
Section 5 (c) of the Appellant Jurisdiction Act, (CAP 141 RE. 2002) and was supported by
affidavit of Mohamed Abdallah Mjenga a principal officer of the applicant company and
annexed to it was the intended Memorandum of Appeal. The application was argued by
Mr. Kitururu Advocate while the respondent who' appeared in person had nothing to
submit.
Mr. Kitururu submitted in brief that:

 The application was brought under section 54 of the Rules which provides
for procedure to appeal Labour Court decisions to the CA. That rule
requires that appeals to the CA should 'subject to section 57 of the Labour
Institutions Act 7/2004' (the Act), be in conformity with the provisions of
the Court of Appeal of Tanzania rules' 1979.
 The court's order rejecting an application for review is appealable because
there is no express provision under the Labour Court Rules, and an appeal
is a right guaranteed under article 13 (6)(a) of the constitution.
 Section 57 of the Act allows for appeals to the CA on points of law.
There are points of law in this application as indicated in annexure C to the application
namely that;
a) "The High Court Labour Division erred in law by holding that the
power of review is exercisable where there is a mistake of error
apparent on the face of the record or for any other sufficient reason
implying that applications for review cannot be on some other
269
ground under the Labour Court Rules, 2007.
b) The High Court Labour Division erred in law by holding that there
was no mistake or error apparent on the face of the record.
c) The High Court Labour Division erred in law by rejecting to review
the
ruling revision number 115 of 2008.
d) The High Court Labour Division erred in law for invoking the
provisions of the Civil Procedure Code; Cap. 33 R.E. 2002."
• That the intended appeal requires leave of the court as per cited section 5 (c)
of the Appellate Jurisdiction Act (CAP 141 R.E. 2002).
I have considered the reasons advanced by the applicant find however, that the
decision in this case turns on a different consideration-namely failure by the applicant to
cite the enabling provisions of the law.
To illustrate my point, I shall quote the provisions of the law cited in the
application.
Rule 54 of the Labour Court Rules provides as follows:

“Subject to the pro visions of section 57 of the Act, any appeal to the Court of
Appeal of Tanzania shall be in conformity or as nearly as possible with the
provisions of the Court of Appeal of Tanzania Rules, 1979"
It is a long observed principle of our law that "non-citation and/or wrong citation
of an enabling provision render the proceedings incompetent" and that such error 'goes to
the very root of the matter' and 'is not a mere technicality- as stressed a number of time 3 by
the CA including in a recent decision in a case emanating from this court- Chama Cha
Walimu v. The Attorney General, Civil Application No. 151/2008 (DSM registry,
unreported). The question for decision now is whether enabling provisions were properly
cited in this application.
The right to appeal a labour court decision is created by section 57 of the Act
7/2004 which provides that:
“Any party to the proceedings in the Labour Court may appeal against the decision
of that Court to the Court of Appeal of Tanzania on a point of law only”
That is the proper enabling provision which creates a right for a party to appeal a
decision of this court to the CA. The cited Rule 54 merely provides for the procedure- in
270
accessing that right. In view of that, I find that this matter is not competently before me
for reason that the court was not properly moved. For that reason, this application is
struck off. R.M. RWEYEMAMU, JUDGE (30/10/2009)

LABOUR DIVISION
AT DAR ES SALAAM
SUZANA REUBEN……………………… APPLICANT
VERSUS
MANSOOR INDUSTRIES LTD. ……………………… RESPONDENT
[Original CMA/MZA/73/2008]
Held:
That framing of issues in arbitration proceedings in the CMA is mandatory and
failure to do so renders the proceedings amenable to being revised.
22/9/2009 & 23/3/2010

RWEYEMAMU R. M. J.
RULING
This matter has had some history in court and the Commission for Mediation and
Arbitration (CMA). Initially the applicant filed an application for revision of the CMA
award dated 27/6/2008. In a ruling of this court dated 26/11/2008, that decision was
quashed and the CMA ordered to commence the proceedings afresh according to law.
The matter was arbitrated afresh culminating into the second CMA award dated 6/4/2009
subject matter of this ruling – incidentally numbered 73 of 2008 which is curious, if the
previous quashed ruling was numbered 74/2008 .
This ruling was scheduled for delivery on 12/3/2010 but the same could not be
completed because the CMA record of the 2nd proceedings could not be found. It was
finally traced in the Labour Court registry in Dar es Salaam, brought by expedited mail
service and I scheduled ruling on 22nd March 2010. On that day, I realized the applicant's
Statutory Form No.1 was not in the said record. Finally, I used by the applicant's own copy
obtained from her in presence of both parties. With that background, I proceed to discuss
my decision.
The applicant and another referred a dispute of unfair termination to the CMA
seeking remedy for unfair termination, underpayment on statutory benefits and payment
on other unpaid benefits. In its award dated, 6/4/2009, the arbitrator decided the
following:
 That termination was unfair - and granted 12 months pay as compensation as per
section 40(1) (c) of the Employment and Labour relations Act, 6/2004
271
 That claims of overtime were not proved.
 That severance allowance paid was properly calculated.
 That the applicant was being paid salary of Tshs 48,000/= instead of the
statutory minimum of shs.80,000/=. Based on that decision, the applicant was
awarded the following:
i. Compensation of one month salary being 80,000/= minus 48,000 already

received = 32,000/=
ii. Notice - being 80,000/= minus 48,000 already received= 32000/=
iii. One month salary being 80,000/= minus 48,000/= …… 32,000/=
iv. 12 months compensation as per section 40(1) (c) of the Employment and
Labour Relations Act 6/2004 at rate of Tshs 80,000/= per month total
Tshs 960.000/= The total amount being shs. 1,056,000/=
 The award was silent on payment of accrued leave.
The applicant received payment as per the said award, but still dissatisfied, she
applied for revision on ground that the arbitrator failed to award her statutory benefits
which she itemized in the application as:
(i) Tshs. 102,000/= salary in lieu of 1 month salary
(ii) Payment of 12 months salaries at the rate stated under (i) above totaling Tshs
1,224,000/= for unfair retrenchment.
(iii) 13 years Annual salaries in lieu of live Tshs 1,326000/=
(iv) Overtime of period between 01-01-1995 up to 2008 Tshs 24,674000/=
(v) Payment of severance allowance for a period of 10 years Tshs 238,000/= Total
claim 27,516,000/=
In this court, the applicant was represented by Mr. Magabe as personal

representative of her choice, while the respondent was represented by Mr. Rugaimukamu
advocate.
Mr. Magabe's key submission was that the applicant's salary was Tshs. 102,000/=
because she had been upgraded, and not Tshs. 80,000/= the minimum wage, as such, it is
the said rate which should have been used by the arbitrator to calculate the benefits due.
In the circumstances, the arbitrator's conclusion on that issue was in error.
He was not precise on the amount payable as severance allowance, submitting

272
initially that the amount was Tshs. 238,000/=, later that the said figure was mistaken and
the amount due was 34,000/= if salary is 102,000/= or 25,846. He went on to submit that
the arbitrator erred in not awarding salary for accrued leave for the period of 13 years plus
overtime worked and overtime.
In reply, Mr. Rugaimukamu for the respondent submitted that the applicant’s
salary was 48,000/= as per payroll submitted during arbitration; that she was being paid
her salary plus overtime of Tshs 50,000/= minus deduction for of NSSF between up to
March 2007. The payment in June 2007 was 48,000 salary, 60,000 overtime minus 10% for
NSSF which resulted in 102,800/= as per document tendered at the CMA. And therefore
the applicant was confusing payment of salary plus overtime to believe the whole amount
was for salary.
Mr. Rugaimukamu submitted further that the applicant was properly paid 1 month
leave for the month she was terminated; overtime was being paid monthly as explained.
Regarding severance allowance, counsel conceded that there is a claim due, that the
amount of severance the employer had paid after termination was based on minimum of
48,000/= now in view of the award, the actual amount should be based on 80,000/=. The
difference which is due, is Tshs. 57,376/=.
In reply, Mr. Magabe submitted that overtime could not be aid as lump sum
monthly but is usually paid based on hours worked. To that extent, the arbitrator's
decision was in error and should be revised.
After considering the parties' submissions and the CMA record of arbitration
proceedings, it is clear the following issues are contested and the question for decision is
whether the arbitrator made a correct decision on them:
1. What was the applicant's salary or supposed salary? Was it the minimum
wage of Tshs 80,000/= as decided by the arbitrator; or Tshs. 150,000/= the
amount indicated by the claimant in Statutory Form No 1 or Tshs, 102,000/=
the amount she claimed in her testimony before the CMA.
2. Was the applicant entitled to payment for accrued leave or not.
3. Was the applicant entitled to payment for overtime, and if so, was the same
paid or not.
4. It was undisputed that once unfair termination was proved, severance was
payable- the issue was how much. The finding by the arbitrator that the same
had been correctly calculated, was a clear mistake because of the finding that
all other benefits were paid calculated based on the wrong salary of Tshs
48,000/= instead of Tshs 80,000/=. Consequently, a new amount would have
been obtained in regard to severance as admitted by the respondent at the
hearing.
I have checked the CMA record and no just answer can be made on issues 1 to 3
above, the problem stems from material irregularities in the said proceedings. The
arbitrator failed to frame the three issues at commencement, which would have enabled
273
parties to lead focused evidence and enabled him to take a precise finding on each of the
three. That is exactly the kind of procedure prescribed under Rule 22 of the Labour
Institutions (Mediation and Arbitration Guideline) Rules, GN 67/2007. The said rule
provides:
"22 (1)...
(2) The arbitration process involve the following five stages-
(a) Introduction;
(c) evidence;
(d) argument; and
(e) award, "
The award so obtained would be as prescribed under rule 27 of the guidelines, that
is, it would include reasons for the decision on each issue. Had that been the position, the
answer/role of this revision court would have been to decide whether on the evidence
available, the arbitrator reached a rational/reasonable decision on each of the issues. The
way arbitration was conducted particularly evidence received; it would be guess work for
this court, to answer the three questions without further evidence.
Due to the above reasons, I partly quash the arbitration proceedings and award. I
confirm the finding of unfair termination and payment of 12 month salaries, but quash
the rest of the proceedings regarding terminal benefits due as a consequence to that
unfair termination finding. The CMA record should be remitted to enable it conduct
arbitration afresh as directed. Given the time resolution of this dispute has taken, I
should remind parties that under section 86 (8) of the Employment and Labour Relations
Act, 6/2004, the parties may still resort to having this dispute mediated, in the interest of
time if they so choose.
R.M. Rweyemamu
Judge
21/3/2010

LABOUR DIVISION
AT DAR ES SALAAM
PROJECE MANAGER
BARRICK GOLD MINE (BULYANHULU) …………………… DECREE HOLDER
VERSUS
ADRIANO O. ODHIAMBO ……………………… DECREE DEBTOR
[Original CMA/MZA/73/2008]
274
Held:
1. That the CMA’s failure to keep a proper record in respect of arbitration

proceedings vitiates the whole proceedings including the resultant award,
which should be quashed by the Labour Court.
2. That Rule 22 of the Labour Institutions (Mediation and Arbitration
Guidelines) Rules (GN No. 67 of 2007) requires observance of vital stages like
clear articulation of issues to be arbitrated, leading of evidence and
arguments, resulted in an award.
3. That under Rule 17 of the Labour Institutions (Mediation and Arbitration
Guidelines) Rules no person may refer to anything said at mediation
proceedings during any subsequent proceedings, unless the parties agree in
writing. The said provision aims at preserving the confidentiality of the
mediation process, which is the key mediation is to effectively play its role of
enabling quick resolution of labour disputes.
4. That the fundamental problem is that when the same person acts as mediator
and arbitrator, the confidentiality requirement of mediation under Rule 17 of
the Labour Institutions (Mediation and Arbitration Guidelines) Rules is
compromised.
5. That given its human resource deficiency, the CMA has to adopt a
compromise practice which does not precipitate injustice to either party.
That practice is to inform the parties (and record their responses); that
he/she is the appointed arbitrator. Where the parties feel that his previous
role as the mediator will adversely affect their interest, they will state so, and
in case of that eventuality, the dispute has to be arbitrated by someone else,
even if that person has to come from a different area office with attending
delays.
RULING
9/3/2010 & 16/3/2010
RWEYEMAMU R. M. J.
The applicant/employer seeks revision of the Commission of` Mediation Arbitration
(CMA) award dated 11/11/2008 on grounds contained in the supporting affidavit sworn by
its advocate one Godson Kiliza. Those grounds as per affidavit were that; I quote the
relevant part:
"5. That in dealing with the matter before the commission the Arbitrator
failed to comply with the law in dealing with the complaint in that.,
a) The Commission exercised its jurisdiction with material irregularity.

b) The mediator after the mediation failed converted himself into an
arbitrator and proceed with arbitration.
c) The Arbitrator having conducted mediation and the same having
failed did not conduct arbitration, instead he sit as appellate stage
against the decision of the Employer to terminate the service of the
Respondent.
d) That the award of the Arbitrator is confusing, incomprehensible
275
problematic and contrary to law.
e) That there are errors material to the merits of the decision of the
Arbitrator in that:
i. The Arbitrator closed the applicant's case having heard only one
witness of the Applicant thus denied the Applicant the right to
call other witnesses to prove her case
ii. The Arbitrator having acted in a manner stated at paragraph
e(i) herein above did proceed to give his decision without
according the Respondent an opportunity to argue his case and
to call witness if any.
iii. That the arbitrator's award does not reflect the proceedings of
the commission during the arbitration.
iv. That the purported award by the Arbitrator is not an award in
law':
The application was resisted by the respondent/employee in his counter affidavit as

follows:
" 5. That the contents of paragraph 6 of the Applicants affidavit are

vehemently disputed and in reply hereto I wish to state that the award
referred was made after parties to the dispute were justly, fairly and properly
heard and thenceforth an award made and further to that I wish to state
that.,
i) The arbitrators award is worth execution for the same was made
after the arbitrator had considered properly the testimonies and
evidence tendered by parties to the dispute.
ii) The arbitrators award is in no way conflicting, and if it does,
which I deny. it does so only to the applicant who is unwilling to
accept and enforce the same, for the award is clear in that it
requires the applicant to EITHER reinstate the respondent and
pay him his entitlement from date of unfair termination to date of
reinstatement or AL TERNATIVEL Y pay him compensation of
twelve months salary.
iii)The award neither is neither confusing, problematic,
incomprehensible nor contrary to law for the same was arrived at
after all the demands of the law had been complied with thus
making it valid and worth enforcement.
iv) The question of presence or otherwise of a vacant position for the
respondent at the applicants company is irrelevant at this
juncture for if reinstating the respondent is more than impossible
the applicant has an ALTERNATIVE of paying the respondent a
sum of twelve months salary compensation as provided for in-the
arbitrators award.
v) The applicant need to seek haven under a torn umbrella by
insisting on absence of a vacancy for the respondent for as stated
276
in [iv] herein above the alternative of paying a twelve months
salary has readily been given to the applicant in the arbitrators
award.
vi) The applicant can not even remotely suffer any loss for what he is
obligated to pay the respondent is justly and fairly due to the
respondents, and if any loss, which is denied, the applicant has
failed to at least in a nutshell indicated the same”.
At the hearing, the applicant was represented by Mr. Tarimo advocate while the
respondent/employee appeared in person. Both sides elaborated on grounds raised in
the affidavit.
I have considered the parties' arguments in light of the CMA record of

proceedings including the award. It is true, as submitted by counsel for the applicant
that the arbitrator acted with material irregularities, resulting in errors material to the
merits of the case such that the resultant award cannot be allowed to stand. I will
discuss only some of such irregularities/errors as substantiated upon by Mr. Tarimo
advocate at the hearing and responded to by the respondent, as each one of them on its
own, is sufficient to vitiate proceedings. I begin first with the issue of improper
arbitration proceedings.
Mr. Tarimo for the applicant submitted that: The CMA failed to keep a proper
record of proceedings, all there is are only scanty typed notes which do not reflect what
transpired but worse, there are no handwritten notes, as such it is not clear where the
typed scanty notes were extracted from. This issue was not directly responded to by the
respondent.
I have checked the CMA 'arbitration record' the applicant's submission that the
arbitrator failed to keep a record of proceedings as prescribed under rule 32 of the
Labour Institutions (Mediation and Arbitration) Rules, GN 64/2007 (M&A rules). The
record bears the applicant's submission out in that the proceedings are scanty, and mixed.
Second, it is not clear where mediation ended and arbitration started an issue I address
hereinafter.
This court has stressed a number of times including the case cited by counsel of
BIDCO OIL SOAP vs ABDU SAID AND 3 OTHERS, Revision 11/2008, where Mandia J,
as he then was, made a number of observations which are applicable to the facts of this
case, The Hon. Judge noted among others that in conducting arbitration proceedings;
“
...emphasis (is) on regular and orderly progress in law and
procedure from commencement of an action to execution of
judgments... the functions of arbitration are quasi-judicial, so
277
arbitrators should insist on basic characteristics of orderliness
and regularity in execution of their duties. Luckily the
Commission has made elaborate rules of procedure (published
as GN 64/2007 and GN 67/2007)... These rules of procedure are
subsidiary legislation and arbitrators are bound to follow rules
set therein"
In that case, the court held that failure to keep a proper record vitiated the
whole proceedings including the resultant award, which it proceeded to quash.
Building on that principle, this court observed in Grace Wanna vs All Terrain
Service, Application No. 16/2007that:
To arrive at a proper record of proceedings prescribed under rule

32 of the (M&A rules), the CMA, using its powers under section 15 (1) (f)
of the of the Labour Institutions Act 7 of 2004, issued the Labour
Institutions (Mediation and Arbitration Guidelines) Rules, GN 67 of
2007, (hereinafter the Guidelines) which specifies stages and contents of
arbitration proceedings and if I may add, seeks to give arbitration
proceedings attributes of legal proceedings The stages to be covered are
contained in Rule 18 to 26 of the guidelines.
Proceedings complying with the guidelines will clearly show issues to be

arbitrated upon, evidence led by each side to prove or disprove the
issues, which evidence is received as per Rule 25; it will contained
arguments by way of written submissions which should be indicated in
the proceedings, or made parts of the record where they are received
orally, also where the arbitrator allows closing arguments, they should be
systematically included in the record. Further, There were preliminary
issues, evidence and arguments by each side should be indicated in the
record. Finally proceedings should contain the award which should
indicating the decision and reasons thereof on each issue resized and a
summary on matters itemized under guideline 27 (a) to (t).
To make such proceedings orderly would by necessity require numbering

the pages in the cause of proceedings sequentially, it would require that
the written notes be kept in a retrievable form and although Rule 32 (2)
of the (M&A rules) permit "legible handwritten notes'; when the same
are required by parties for their records, revision purposes etc., a typed
copy certified by the arbitrator should be supplied where applied for
under Rule 32 (4) of the Rules. That, in my opinion, is the only sure way
this court can tell/understand what transpired during the arbitration
process and what aspects are faulted or supported.
I am aware that Rule 19 of the Guidelines empowers the arbitrator to

278
determine how proceedings should be conducted, I wish to stress that such
powers deal with matters like which party should start, how the dispute is
introduced, whether closing remarks will be taken, whether to adjourn
proceedings-and the like, but such power do not allow an arbitrator to
jump/skip the vital stages, or fail to keep a proper record”.
In this case the record contains scanty notes which do not reflect what happened,
and worse, there are no handwritten notes, is such it is not clear where the typed
scanty notes were extracted from. That failure to keep a proper record and following
requirements of Rule 22 of the Guidelines, which require observance of vital stages like
clear articulation of issues to be arbitrated, leading of evidence and arguments, resulted
in an award. "Incidentally titled ruling not in conformity with Rule 27 of the Guidelines
which prescribes contents of a proper award. The said mishaps amounted to material
irregularities, such that the resultant award cannot be allowed to stand.
Second, Mr. Tarimo submitted that the proceedings reflect a mixture of roles.
There are two aspects of this issue. The first is that it is not clear where mediation ended
and arbitration started. The respondent did not contradict this fact. He submitted
instead that "the CMA is also concerned with mediation as such the arbitrator was able to
refer to facts adduced therein'. That view is wrong.
I should be quick to point out that under Rule 17 of the M&A rules, 17 no person
may refer to anything said at mediation proceedings during any subsequent proceedings,
unless the parties agree in writing'; The said provision aims at preserving the
confidentiality of the mediation process- which is the key mediation is to-effectively play
its role of enabling quick resolution of labour disputes.
That apart, mediation and arbitration are two distinct functions under the Act.
Mediators are appointed under section 86[3][a] and an arbitrator under section 88(2)(a)
of the Act, the functions of each are distinct under the law, And with combined mediation
and arbitration (Med/Arb), a different procedure of appointment is required as prescribed
under Rule 18 of the M&A rules. The Med/Arb is not without practical difficulties as
pointed out herein below. Be that as it may, when the same person acts both as a
mediator and arbitrator as happened in this case, there is a conflict of roles likely to lead
to injustice apart from other consequences. I accordingly find that a mixture of the
two functions in this case amounted to a fundamental irregularity enough to
vitiate proceedings.
My decision on the two aspects above is sufficient to dispose of the matter, but I will
discuss the issue raised as a third ground as I find it to be of importance for guidance to
future practice. The issue relates to the mediator proceeding automatically with
arbitration after mediation has failed.
279
That is the other aspect of confusion in roles raised by Mr. Tarimo. He submitted that
after failure of mediation, the mediator converted himself into an arbitrator without
giving the arties a chance to choose whether they wanted to _proceed with the same
person as an arbitrator. In response, the respondent submitted that the arbitrator asked
the parties if they wished to proceed with arbitration and they both agreed. I have checked
the record, the proceedings of 15/6/2008 indicates "mediation failed, referred to
arbitration". The same person indeed proceeded with arbitration after mediation failed
without any indication that he was the appointed arbitrator.
The issue of the Mediator converting into Arbitrator has been subject of a number
of applications for revision before this court. The Act provides that a mediator must be
appointed and after failure of mediation and issue of certificate to that effect, the CMA is
supposed to appoint the arbitrator under sections 86(3) (a) and 88 (2) (a) of the Act
respectively. The Act, including the Rules GN 64/2007 and Guidelines GN 67/2007
however, do not specifically provide how the appointment of arbitrators by the CMA is
supposed to be done after mediation fails. The current position is that employees of the
CMA are appointed both as mediators and arbitrators, and the practice has been that
after mediation fails and a certificate issued, the same person proceeds with arbitration if
the parties choose to have the dispute arbitrated.
The practical difficulties encountered were first discussed by Mandia J., as he then
was, in the BIDCO case referred to above when he observed that:
"Rule 18 of GN 64/2007 provided for combined Mediation and

Arbitrator proceedings, but in my view this rule does not override the
provision of Rule 16 with regard to issuing a certificate where
mediation has failed.
The Commission has the power under Rule 18 of GN 64/2007 to order

for combined mediation/arbitration proceedings after giving due
notice under Rule 18 (2). How this can be done is a moot point since
the parent Act i.e. the Employment and Labour Relations Act
prescribes for the appointment of a mediator of a dispute first under
Section 86 (3) (a) and, after the failure of mediation, appoint an
arbitrator under Section 88 (2) (a). Appointing one as both a
mediator and administrator at the same time depends on how
efficient the mediator is in finalizing the mediation, writing the
certificate and receiving the appointment of arbitrator. Since
mediation of disputes is mandatory, and arbitration is also
mandatory, it remains to be seen how the two appointments can be
made at the same time without flouting the law. It is only the
arbitrator who under Section 88 (4) of the Employment and Labour
Relations Act, can hear the merits of the dispute and make an
award".
Apart from problems with the application of the Med/Arb pointed out above,
the other fundamental problem is that when the same person acts as mediator and
280
arbitrator, the confidentiality requirement of mediation under Rule 17 of the M&A
rules, is compromised.
There is yet another problem born out of what I understand to be human
resource constraint on the part of the CMA. Some area offices established under
section 15 (1) (c) of the Labour Institutions Act, 7/2004, are manned by one person
acting as both mediator and arbitrator. This is a serious challenge. For one, under
such a system, the confidentiality prescribed under rule 17 remains but on paper, apart
from resulting into confusion in proceedings as happened in this case, where in the
award the arbitrator based his decision on proceedings at the mediation stage. Two,
compromise of the mediation system in that manner, deprives the CMA of a very
effective tool for fast dispute resolution.
That however remains the reality on the ground and until necessary
changes/amendments are made, the CMA has to adopt a compromise practice which
does not precipitate injustice to either party. That practice, fortunately some
arbitrators are already using, is to inform the parties (and record their responses); that
he/she is the appointed arbitrator. Where the parties feel that his previous role as the
mediator will adversely affect their interest, they will state so, and in case of that
eventuality, the dispute has to be arbitrated by someone else, even if that person has
to come from a different area office-with attending delays.
Returning to the present case, it is clear from the record, the mediator
proceeded with arbitration after mediation failed without any indication that he was
the appointed arbitrator or that parties were given a choice in the matter. That was a
fundamental irregularity likely to have caused injustice. For the three grounds
explained above, the CMA proceedings including the award/ruling and subsequent
orders are hereby quashed. The CMA is ordered to conduct the process afresh
beginning with mediation, and to do so according to law.
R.M. Rweyemamu
JUDGE
Date: 16/03/2010
Applicant:
For Applicant: Tarimo Advocate for.
Respondent:
For Respondent: Present in person
Court: This matter is scheduled for ruling.
Order: Ruling delivered this 16th March, 2010. R/A Explained.

281
LABOUR DIVISION
AT ARUSHA
CHRISTINA BAKARI MASAWE ……………………… APPLICANT
VERSUS
AROBOGAST BAKARI KIMARO ……………………… RESPONDENT
[Original MOS/CMA/M/ARB/318/2008]
Held:
1. That the CMA had to decide the issue of condonation of late referral of
labour disputes and give reasons for its decision, failure to do so amounts to a
material irregularity sufficient to vitiate proceedings.
2. That failure to properly identify issues in dispute before arbitration hearing is
usually fatal.
RULING
11/6/2010 & 28/9/2010
R. M. RWEYEMAMU; J.
The applicant filed a dispute in the Commission for Mediation benefits and
Arbitration (CMA) on 10/12/2008 claiming employment benefits from the
respondent/employer which arose on 4/8/2008 as per information on Statutory Referral
Form N0.1. The referral was filed out of time in terms of Rule 10 of the Labour Institutions
(Mediation and Arbitration) Rules, GN 64/2007. Consequently, the referral was filed
together with Statutory Form No. 7 – the application form for condonation of delay.
I have checked the CMA record, it indicates that 12/2/2009 arbitrator recorded
‘that hearing beyond the required period of 30 days was condoned.’ The proceedings do
not indicate; if there was the delay of whether the other party was given a say on the
issue. That procedure was improper.
The proper procedure to be followed when a referral is filed together with an
application for condonation has been discussed in a, number of cases by this court. In one
such decision J. W. Ladwa and Peter Kimote, LC revision No, 52/2009, it was observed
that:
"My interpretation of the law is that it is, not enough that the
complainant/employee files the condonation form. When the dispute
is time barred, the CMA has no powers to entertain it, unless It has
heard and granted an application for extension of time i.e. condoned
the delay as per prescribed procedure .... the procedure for processing
condonation is specifically provided for under rule 11 and 29 of the
rules. The said procedure requires that alter receiving the respondents
application for condonation the, GMA should serve the same on the
applicant as per rule 29 (5) then proceed to hear and determine It
under rule 29 (10) or (11). Now that procedure does not appear to have
been followed in this case…”
282
The point was further explained in KIOO LTD and Kennedy Chalamila, LC revision
No. 147/2008, that:
"Perhaps to remove doubt as to when and how the issue of limitation of
time should be heard and decided by the Commission; I should draw
attention the following provisions of the rules; First, the Commission
can process time barred disputes following application by the referring
party as explained in the cases cited above. Second, under rule 31 of the
rules, "the Commission may condone any failure to comply with the
time frame in these rules on good cause”. That rule in my opinion,
glues a wider power to the Commission to proceed in a time
barred dispute provided it shows on record, its reasons for doing
so…” (Commission refers to CMA)
In this case, the arbitrator simply stated that 'delay has been condoned';
that did not suffice. The CMA had to decide the issue and give reasons for its
decision, in my considered opinion, failure to, do so amounted to a material
irregularity sufficient to vitiate proceedings.
There is another anomaly obvious from the CMA record of proceedings. The
arbitrator failed to observe the principles prescribed under rule 22 of the labour
Institutions (Mediation and Arbitration Guidelines) Rules, GN 67/2007 regarding crucia
stages of arbitration. At no stage were the disputed issues clearly stated, as such a crucial
issue of whether there was an, employment relationship between the parties which has
been raised in this application was not precisely dealt with. As a result, the decision and
relief were contradictory.
The arbitrator found that; Tume imebaini kwamba wahusika walikuwa: wanafanya
kazi kindugu na kwa msingi wa kusaidiana”, meaning there was no employment
relationship between the parties. Despite that conclusion, the arbitrator ordered
payment of severance allowance prescribed under section 44 of the Employment and
Labour Relations Act, 6/2004, which payments accrue on termination of employment
contracts. No wonder the respondent stated in ground 2 of the counter affidavit in
oppositions to the application that “no proof of employment was ever evidenced by the
applicant” and in his opinion, the amount awarded was a golden handshake had in
family/relative was of leaving one another.
Failure to properly identify issues in dispute before arbitration hearing is usually
fatal. The importance of issues has been discussed in a number of cases among them,
The GM Pangea Minerals W Migumo Mwakalasa, LC Revision 35/2008 from which
decision I proceed to quote extensively:-
"The substantive law governing conduct, and procedure of arbitration

proceedings is section 88 (4) and (5) of the Employment and Labour
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.
283
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 and… emphasizes the arbitrators 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 necessary 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 arbitrators 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 sar4e,,arq , well, articulated in the
non-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 I arbitrating
the dispute fairly.
The parties in this application made a number of arguments for and against the
CMA proceedings and award, but my decision is based on the two matters pointed out
above. First, that condoning delay of a time barred dispute without hearing the
application and giving reasons for that decision amounted to failure to exercise vested
jurisdiction and that failure to identify issues amounted to a material irregularity in
conduct of the proceedings. Due to my said decision, I use powers vested in this court
under rule 28 of the LC rules to quash and set aside the CMA proceedings, award and
orders. The dispute is remitted to be processed afresh according to law commencing
with the issue of limitation of time.
284
R.M RWEYEMAMU
JUDGE
28/9/2010
ORDER: This decision will be delivered to the parties on my behalf in Arusha by

Hon. Judge S. Moshi who will be on session. File handle over to the
Registrar to facilitate the exercise.

LABOUR DIVISION
AT DAR ES SALAAM
TANZANIA REVENUE AUTHORITY ………………..…………… APPLICANT
VERSUS
JUSTUS NDYESHUMBA ……………………… RESPONDENT
[CMA/DSM/KIL-ILA/2347]
Held:
1. That mediation must be concluded within the prescribed 30 days, failure to

do which renders the mediation process reviewable.
2. That under section 88(9) of the ELRA, ‘within thirty days of the conclusion of
arbitration proceedings, the arbitrator shall issue an award with reasons
signed by the arbitrator.’ However, where there is delay such a situation
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. [see also Joas Mrutu & 37 Others v. Namna Hotel, High
Court of Tanzania (Labour Division) at Dar es Salaam, Labour Revision 268
of 2008 (Unreported). Cf: 21st Century Food Packaging Ltd v. Emanuel Mzava
Kimweli, High Court of Tanzania (Labour Division) at Dar es Salaam, Labour
Revision 158 of 2008 (Unreported)].
3. That the objectives of Act read together with the Employment and Labour
Relations (Code of Good Practice), GN 42/2007, is that the ELRA represents
a policy shift in the manner the law regulated the employment contract
under the repealed laws. Part of the objective is stated under section 3[f] as;
“generally give effect to the provisions of the constitution … in so far as they
apply to employment and labour relations and conditions of work” and “… to
285
give effect to the core conventions of the ILO as well as other ratified
conventions”. The policy shift has led to more statutory regulation of the
application of the principle of freedom of contract in labour relations. The
law now limits contractual powers of employers to hire and fire at will by
mandating observance of fair labour practices.
4. That now under the ELRA, an employee has a legitimate right to expect that;
“… if everything remains constant he will be in the services throughout the
contractual period”. The ELRA protects an employee’s right not to be
prematurely terminated unless termination is fair. Consequently, section 37
of the Act provides that “it shall be unlawful to terminate the employment of
an employee unfairly”. That is, termination has to be for valid/fair reasons
and must follow a fair procedure as prescribed under the whole of section
37[2][b] of the ELRA read together with the rule 8 of the Code.
5. That once termination is adjudged unfair, the arbitrator may award remedies
to the affected employee prescribed by law-section 40 of the ELRA: that is,
reinstatement; reengament; and compensation.
6. That in view of section 40[3] above consideration of incompatibility cannot

prevent an order of reinstatement being made in appropriate situations as
submitted by counsel for the applicant because, the employer against whom
that order has been made can either obey the order of proceed as per the
stated law; the law does not compel an employer to reinstate an employee
perceived incompatible. In view of the above statutory provisions, it is clear
the law permits an arbitrator to order reinstatement, and such an order in
no way amounts to an infringement of the principle of freedom of contract.
RULING
1/9/2010 & 20/9/2010
R. M. RWEYEMAMU, J.
The respondent/employee successfully filed a dispute to the Commission for
Mediation and Arbitration [CMA] against TRA his employer/ now applicant. In the
impugned award dated 6/11/2009, the CMA decided that the employee was unfairly
terminated and ordered that "naona tuhuma haijathibitika, nafuta adhabu iliyotolewa
naagiza mfanyakazi arudi kazini bila masharti yoyote na bila kupoteza maslahi yoyote
anayostahili”.
Dissatisfied, TRA filed an application for revision supported by affidavit sworn by
its counsel, Mr. Adelaide stating that; the commission decision was in err because on the
facts on record, it should have found that the employee was guilty of negligence in
performance of his duties in terms of the TRA Code of Conduct 2004; and that it erred in
ordering reinstatement and accrued employment benefits despite other available
remedies; in summary that “the CMA has miserably failed to evaluate the evidence before
it and as well failed to address on the crucial points of law and fact thereby occasioning
injustice to the applicant”, as summed up in the affidavit in support of the applicant’s
application for stay of execution. The application was opposed by the respondent in his
counter affidavit and during hearing where he appeared in person.
At the hearing the applicant counsel added two other grounds concerning material
irregularity; that is, mediation was not completed in 30 as prescribed under section 86(4)
286
of the Employment and Labour Relations Act, 6/2004 (the Act), and that the award was
delivered after expiry of 30 days contrary to the provisions a section 88(9) of the Act. In
response, the respondent submitted that he, had no control over the CMA process as
regards time taken for mediation and issuance of the award, as such; he should not be
penalized - mainly so because the irregularity was not fatal.
I have checked the CMA untyped record of proceedings; the case is indicated to
have been scheduled on 23/4/2008 for arbitration but was adjourned to 7/5/2008 due to
absence of the employer/now applicant. There is a mix up in the typed proceedings as the
order of 23/4/2008 appears to have been made before the order of 7/3/2008 which in the
un-typed record reveals only dates. The mediator’s certificate of non-settlement was
issued on 22/2/2008 and it indicates that the dispute was referred to the CMA on
6/1/2008. It is not clear when mediation commenced. On those facts, I find no basis of
finding that mediation commenced. On those facts, I find no basis of finding that
mediation was conducted over the prescribed period and find that aspect of the
applicant’s complaint to have no merit.
The 2nd aspect relates to failure to deliver an award within 30 days of completion
of arbitration. According to the record, the final order was for receipt of the employer’s
final submission on 10/2/2009, that of the employee on 24/2/2009 and mention on
25/2/2009. I have noted on record the applicant's submission which I was received on
11/2/2009, but it is not clear if the respondent filed submissions or what happened
thereafter save that the award is dated as issued on 6/11/2009. In the circumstances, it is
not clear whether the date indicated refers to the date of delivery of the award or date the
typed copy was issued. All in all, it is reasonable under the circumstances to assume that
it is true the award was issued. after expiry of 30 days as submitted by counsel for the
applicant. The issue I have to decide is that of that, what consequences should follow a
material irregularity of failure by the CMA to deliver an award in the prescribed time.
I am aware that in 21st Century Food Packaging Ltd versus Emanuel Mzava
Kimweli Revision 15812008, I stated that section 88(9) of the Act which I quote:
“88(9) within thirty days of the conclusion of arbitration
proceedings, the arbitrator shall issue an award with reasons
signed by the arbitrator”.
Was couched in mandatory terms and I concluded that:
"In my opinion, 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 as 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 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 different on the part of the arbitrator.
I am not oblivious of the fact that application of this rule may in practice-work
287
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 delay. I am however the
process commences afresh causing further 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 according decide that the law has to be applied as it is.
I now believe that decision 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.
In this case, it is not very clear that late delivery of the award was due to failure to
act by the arbitrator and I believe quashing the award on that ground will occasion
injustice to both parties. I therefore decide that in the circumstances of this case the
irregularity was not fatal and dismiss that ground of revision.
Regarding the substantive grounds for a revision, at the hearing, counsel for the
applicant made no elaboration on the raised ground that the arbitrator made a wrong
evaluation of the evidence. Instead, counsel concentrated on the issue of grant of
remedies submitting that; first, the arbitrator erred when he ordered reinstatement
without considering the issue of incompatibility of the employee particularly, given the
nature of business of the employer while he could have granted other reliefs as per
section 40(1) of the Act. Second, that the order of reinstatement was against the
principle of freedom of contract and last, that the order for payment of salary arrears was
contrary to law. In response, the employee adopted his counter-affidavit and added that
the application should be dismissed because the award was according to law.
Based on the parties’ argument, I find that there are two issues for decision. The
first is whether on the evidence on record, the arbitrator made a correct/rational
conclusion that the respondent’s termination was unfair. If the answer is yes, I have to
decide whether the grant of remedies was in error.
I have considered arguments of both sides but before giving my decision, I find it
useful to start by briefly discussing the principles of law governing the matters in issue I
begin with the raised issue of freedom of contract.
1. My understanding of the objectives of Act read together with the Employment
and Labour Relations Code of Good Practice, GN 42/2007, is that the Act
represents a policy shift in the manner the law regulated the employment
contract under the repealed laws. Part of the objective is stated under section
3[f] as; “generally give effect to the provisions of the constitution…in so far as
they apply to employment and labour relations and conditions of work” and “…to
give effect to the core conventions of the ILO as well as other ratified
conventions”. The policy shift has led to more statutory regulation of the
application of the principle of freedom of contract in labour relations. The law
288
now limits contractual powers of employers to hire and fire at will by
mandating observance of fair labour practices.
2. Now under the Act, an employee has a legitimate right to expect that; “…if
everything remains constant he will be in the services throughout the
contractual period”. The Act protects an employee’s right not to be
prematurely terminated unless termination is fair. Consequently, section 37 of
the Act provides that “it shall be unlawful to terminate the employment of an
employee unfairly”. That is, termination has to be for valid/fair reasons and
must follow a fair procedure as prescribed under the whole of section 37[2][b]
of the Act read together with the rule 8 of the Code.
3. It follows therefore that once termination is adjudged unfair, the arbitrator
may award remedies to the affected employee prescribed by law-section 40 of
the Act which for ease of reference I quote below:
S.40
1. If an arbitrator of Labour Court finds a termination is unfair the
arbitrator or Court may order the employer.
a) To reinstate the employee from the date the employee was
terminated without loss of remuneration during the period
that the employee was absent from work due to the unfair
termination; or
b) To re-engage the employee on any terms that the arbitrator
or court may decide; or
c) To pay compensation to the employee of not less than
twelve months’ remuneration.
2. An order for compensation made under this section shall be in
addition to, and not a substitute for, any other amount to which the
employee may be entitled in terms of any law of agreement.
3. Where an order of reinstatement or re-engagement is made by
arbitrator or court and the employer decides not to reinstate or
re-engage the employee, the employer shall pay compensation of
twelve months wages in addition to wages due and other benefits
from the date of unfair termination to the date of payment [Emphasis
mine]
4. In view of section 40[3] above consideration of incompatibility cannot
prevent an order of reinstatement being made in appropriate situations as
submitted by counsel for the applicant because, the employer against
whom that order has been made can either obey the order of proceed as
per the stated law; the law does not compel an employer to reinstate an
employee perceived incompatible. In view of the above statutory
provisions, it is clear the law permits an arbitrator to order reinstatement,
and such an order in no way amounts to an infringement of the principle of
freedom of contract.
The next issue for decision is whether on the evidence the arbitrator reached a
proper/rational conclusion that termination was unfair; and if so, whether the
arbitrator’s award of remedies was justified.
289
Regarding the first issue, I have already remarked that counsel made no
elaboration at the hearing of the basis of complaint. I have gone through the evidence on
record and followed the arbitrator’s reasoning in the award but find no basis of drawing a
different conclusion. The arbitrator found that under the TRA practice governing the
complained of conduct, the mistake could not have been avoided even with reasonable
on the part of the respondent. To quote the arbitrator:
“Baada ya maelezo haya niseme kwa mujibu wa kanuni ya 12[1]
[a] [5] ya G.N 42, ili ionekane kwamba uachishaji ulikuwa
halali, lazima pawepo kanuni iliyovunjwa, na kwamba kanuni
hiyo ilikuwa ya kufaa, katika shauri hili uwepo wa kazi kutaka
uhudumie watu 100-200 haiashirii umakini wa kila kutu labda
tunautaka umakini wa Malaika, ninaona yote yanayosemwa ni
vielelezo vya kugushi ni vitu ambavyo mtu wa kawaida
asingweza kubaini kwamba ni vielelezo bandia. Kwa hiyo
kanuni inayolalamikiwa kuwa ilivunjwa si ya kufaa kuwa mtu
wa kawaida asingeweza kuibaini.”
I agree with that conclusion and find that the arbitrator properly found the
respondent’s termination substantively unfair.
The issue of remedies follows naturally from that conclusion. The law “protects an
employee’s right not to be prematurely terminated unless termination is fair”. In this
case the arbitrator found the respondent’s termination to have been unfair and
consequently exercised his discretion in ordering reinstatement. I have found no basis of
faulting that exercise of discretion. I accordingly dismiss that ground of complaint and
confirm the whole of the arbitrator’s award.
For avoidance of doubt, I should point out that the consequence of this decision is
not to compel the applicant to retain the respondent in employment. The applicant can
reinstate the respondent or proceed as prescribed under section 40[3] of the Act. The
application is found to have no merit and dismissed.
R. M. RWEYEMAMU
JUDGE
20/9/2010
DATE: 20/9/2010
CORAM: R.M. Rweyemamu, J.
APPLICANT:
FOR APPLICANT: Adelaid Advocate for.
RESPONDENT:
FOR RESPONDENT: Present in person
CC: Josephine Mbasha
COURT: Ruling delivered this 20/9/2010 at presence of parties above. R/A
Explained.
R. M. RWEYEMAMU
JUDGE
20/9/2010
COPY TO:
290
1. Justus Ndyeshumba
Dar es Salaam
2. Adelaid Alfred Advocate,
TRA-HQ
P.O. Box D1149
Dar es Salaam.
291
LABOUR DIVISION
AT DAR ES SALAAM
LABOUR REVISION NO.73 OF 2008
LAMECK MATIKO ………………..…………… APPLICANT
VERSUS
NILE PERCH FISHERIES LTD. ……………………… RESPONDENT
[Original CMA/MZ/306/2007/8]
Held:
That an award that does not clearly indicate issues, a decision reached on each and
reasons thereof falls materially short of the requirements of Rule 27 of the Labour
Institution (Mediation and Arbitration Guideline) GN 67 of 2007; and is, thus,
irregular.
RULING
14/9/2009 & 12/3/2010
R. M. Rweyemamu, J:,
The applicant/employee's employment was terminated by the
respondent/employer. Dissatisfied, he appealed the employer's decision to the
Commission for Mediation and Arbitration (CMA). The dispute was arbitrated following
an unsuccessful mediation and an award thereafter issued on 28/3/2007. The application
was supported by affidavit adopted at the time of hearing by the applicant who was
unrepresented while the respondent was represented by Mr. Nasimire Advocate.
In his affidavit and at the hearing, the applicant prayed for revision of the award
mainly on grounds that; his termination was procedurally unfair because the relevant
trade union (TUICO) was not consulted; he was denied the right to produce evidence; the
award was contrary to law in that it did not comply with rule 18 which governs the
procedures in arbitration and as a result the award was not in compliance with the rule
27(3) of the Labour Institution (Mediation and Arbitration Guideline) GN 67 of
2007(herein - the guidelines). He further claimed that arbitrator erred when he refused to
grant his request that the respondent produce a document which would have proved his
work attendance.
Mr. Nasimire's submitted in response that; the applicant was not a member of
TUICO as such submission on that issue was irrelevant; the evidence on record proved
that the applicant was an employee on daily contract; there was evidence to prove five
incidences of theft a clear evidence that the applicant committed the misconduct alleged
as such the issue of previous warning, was irrelevant; that in view thereof, the respondent
lost faith in the applicant and terminated him on grounds recognized by law. Further he
submitted that the award on overtime was unfair although the respondent did not
counterclaim on the issue.
In reply, the applicant submitted that he was not a daily employee; that he was
paid monthly and was granted leave after a year which proves that he was employed on
permanent basis.
I have read the arbitration proceeding and subsequent award. The clear
impression is that the arbitrator failed to observe vital stages of the process as prescribed
under guideline 22. As a result, it is not clear from the award what decision was made on
292
the issues raised in this application.
As a consequence the award does not contain matters prescribed under guideline
rule 27 (3) and does not qualify as an award.
In a case of The GM Pangea Minerals Ltd. v. Migumo Mwakalasya, Revision
35/2008, which had a similar mishap, I observed that;
"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. 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- s3ttlement 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. In brief what is crucial
is that; arbitration is conducted in a swift manner yet remains in
accord with principles of natural justice.
I wish to emphasize that an award is a decision which derives its
legitimacy from authority vested in the decision maker, and the decision
maker's explanation of the basis of that decision. Such basis must be
found on evaluation of the law in light of the evidence and facts available
to the decision maker. It is important that the part, 2s know why the
arbitrator has reached the decision made. That is the import of rule 27
referred to above. "
The contested award contains a brief summary of facts and the decision, but does
not clearly indicate issues, a decision reached on each and reasons thereof. In brief, it falls
materially short of the requirements of Rule 27 of the Guidelines. For that reasons, I grant
this application; quash all that went on at the arbitration proceedings and subsequent
award, and order the CMA to process the dispute afresh according to law as explained
R. M. RWEYEMAMU
JUDGE
12/11/2009
DATE: 12/3/2010
CORAM: R.M. Rweyemamu, J.
APPLICANT:
293
FOR APPLICANT: Present in person
RESPONDENT:
FOR RESPONDENT: Khasim Advocate for Nasimire
CC: Josephine Mbasha
COURT: The matter comes is scheduled for delivery of the ruling
ORDER: Ruling delivered this 12th March, 2010. R/A Explained.

R. M. RWEYEMAMU
JUDGE
12/3/2010
LABOUR DIVISION
AT DAR ES SALAAM
LABOUR REVISION NO.73 OF 2008
LAMECK MATIKO ………………..…………… APPLICANT
VERSUS
NILE PERCH FISHERIES LTD. ……………………… RESPONDENT
[Original CMA/MZ/306/2007]
Held:
1. The right procedure is as follows: Jurisdiction to revise an arbitrator's award

is given to this court by section 94 of the Employment and Labour Relations,
Act 6 of 2004 (hereinafter Act 6 of 2004). A party aggrieved by the arbitrators
award may apply to this court for revision of the award under section 91 (1) of
Act 6 of 2004 read together with Rule 28 of the Labour Court Rules.
2. That the Labour Court is moved by a party aggrieved by the arbitrator's

award filing an application by notice under Rule 24 (2), which notice should
substantially comply with Form 4 of the Schedule to the said Court Rules.
Such notice should be supported by affidavit as per Rule 24 (3) to which the
respondent Is given chance to file a counter affidavit under Rule 24 (4), and
the applicant to file a replying affidavit thereafter one so choose.
3. That as the current labour laws are still new and unfamiliar, the Labour
Court is empowered to use its inherent powers under 55 and 56 of the
Labour Court Rules to condone an unintentional default by a party.
[See also Benedictus J. Msimangira v. Bodi ya Mamlaka ya Shule - Mkoa wa

Mwanza, High Court of Tanzania (Labour Division) at Mwanza, Labour
Revision No. 20 of 2008 (Unreported)].
RULING
21/11/2008 & 27/11/2008
R. M. Rweyemamu, J:,
The applicant Lameck Matiko referred a dispute to the Commission for
Mediation and Arbitration (CMA) alleging unfair termination against his employer Nile
294
Perch Fisheries Ltd and seeking the relief of reinstatement and other payments. He
was awarded payment for overtime but the remaining issues were dismissed or
undecided. Dissatisfied the applicant came to this court where he was represented by
Mr. Mlimi as "a party's representative of his own choice as provided for section 86 (6) (c)
of the Employment and Labour Relations Act 6/2004 as amended by the Written Laws
(Misc. Amendment) Act 8/2006.
When the matter came for hearing, I noted that the matter was moved to this
court by the applicant filing Form No.1 issued under Rule 6 of the Labour Court Rules,
GN 106 of 2007 (hereinafter the Court Rules). That procedure was wrong. Why? I find
it convenient to repeat reasons I gave in Revision No. 20/2008, Benedictus J. Msimangira
v. Bodi ya Mamlaka ya Shule - Mkoa wa Mwanza, where like the present, Form No.1 was
used to refer an application for revision to this court. This is what I said:
The right procedure is as follows: Jurisdiction to revise an arbitrator's award
is given to this court by section 94 of the Employment and Labour
Relations, Act 6 of 2004 (hereinafter Act 6 of 2004). A party aggrieved by
the arbitrators award may apply to this court for revision of the award
under section 91 (1) of Act 6 of 2004 read together with Rule 28 of the Court
Rules. How does the aggrieved party proceed?
The court is moved by a party aggrieved by the arbitrator's award filing an
application by notice under Rule 24 (2), which notice should substantially
comply with Form 4 of the Schedule to the said Court Rules. Such notice
should be supported by affidavit as per Rule 24 (3) to which the respondent
Is given chance to file a counter affidavit under Rule 24 (4), and the
applicant to file a replying affidavit thereafter one so choose.
The court is not moved vide Form No. 1 as happened In this case. That
form, is provided in the Schedule to the Employment and Labour Relations
(Forms) Rules, GN 65 of 2007, issued under section 86(1) of Act 6 of 2004.
The Form is used where a party wishes to refer a complaint (employment
dispute) to the CMA, where all labour complaints must begin so that they
are first mediated. Where mediation fails, a party to the dispute may refer
the same to this Court under section 86 (7) (b) of Act 6 of 2004, if it is a
complaint over which the arbitrator has no jurisdiction.
Like in the cited case, I take cognizance of the fact that procedures under the
current labour laws are still new and unfamiliar, further the record of the impugned
arbitration proceedings reveal some irregularities, it would be in the interest of justice for
this revision to be heard on merit. In view of that, I resist from striking off this
application. Instead, using powers of this court under 55 and 56 of the Labour Court
Rules, I give the applicant an extension of 14 days from the day this decision is delivered
to file a proper application and the respondent to reply according to law. It is so ordered.
R. M. RWEYEMAMU, JUDGE
27/11/2008
295
IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
(CORAM: RUTAKANGWA, J.A., KIMARO, J.A., And LUANDA. J.A.)
CIVIL APPLICATION NO. 151 OF 2008
CHAMA CHA WALIMU TANZANIA APPLICANT

VERSUS
THE ATTORNEY GENERAL RESPONDENT
(Application for Revision from the Proceedings and Ruling of the High Court of
Tanzania (Labour Division) at Dar es salaam)
(Mandia, J.)
Dated the 13th day of October, 2008

in
Application No. 19 of 2008
Held:
1. That rule 24(4) of the Labour Court Rules grants an automatic right to a
respondent to file "a notice of opposition, a counter affidavit or both" within
"fifteen days from the day on which the application is served on the party
concerned".
2. That in law, an injunction is said to be interlocutory when granted in an
interlocutory application and continues until a certain defined period. It
aims at preserving the status quo until, say, the final determination of the
main application or suit.
3. That it is settled law that, except under exceptional circumstances, a party to
proceedings in the High Court cannot invoke the revisional jurisdiction of
the Court of Appeal as an alternative to the appellate jurisdiction of the
296
Court, unless it is shown that the appellate process had been blocked by
judicial process. [See, for instance, Halais Pro-Chemie v. Wella A.G. [1996]
T.L.R. 269 (CA)].
4. That it is settled law that such citation and/or non-citation renders the
relevant proceeding incompetent.
5. That citing a wholly inapplicable provision of the law was a worse situation
than citing a correct section but a wrong sub-section. [See also Harish A. Jina
(By his Attorney Ajar Patel) v. Abdulrazak Jussa Suleiman, Court of Appeal of
Tanzania at Zanzibar, Civil Application No. 2 of 2003 (Unreported)].
6. That it is the duty of a party and not that of the court to correct his pleading
and/or documents relied on.
7. That section 94(1) of the ELRA was never intended to be an enabling
provision for instituting any proceeding before the Labour Court; but it only
spells out the powers of the Labour Court, whereby it cannot exercise these
wide powers randomly or as and when it wishes. Being judicial powers, it
can only exercise them when properly moved and/or when the person
wanting it to exercise them has a right conferred on him to do so either
under this Employment Act itself or under any other written law.
8. That any person feeling aggrieved by a decision of the Registrar under Part
IV can appeal to the Labour Court on the basis of S. 94(1) (a) of the ELRA.
The right of appeal is created or granted by section 57, which provides that:
"Every person aggrieved by a decision of the Registrar made under this Part
may appeal to the Labour Court against that decision."
9. That a person wishing the Labour Court to review or revise an arbitrator's
award made under Part VIII of the ELRA cannot move that court under s.
94(1) (b)(i). He or she has to proceed under s. 91(1). Also the right to refer a
complaint to the Labour Court is granted by s. 86(7) (b) and not s. 94(1) (d).
Again applications for declaratory orders are covered by s. 85(4) and (5),
among others, and not s. 94(1) (f) (i).
10. That the Labour Court has jurisdiction to grant injunctions, including
restraining a strike, which is subject to two conditions precedent: that the
strike must be illegal and it [the Court] must be properly moved under the
relevant enabling provisions of the ELRA [section 84(l)(a)].
11. That where the High Court fails to undertake an action it ought to have
undertaken, the Court of Appeal can intervene even in the event that it has
been wrongly moved. [See also Tanzania Heart Institute v. The Board of
Trustees of the National Social Security Fund, Court of Appeal of Tanzania at
Dar es Salaam, Civil Application No. 109 of 2008 (unreported); Mathias
Eusebi Soka v. The Registered Trustees of Mama Clementina Foundation &
Two Others, Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal
No.40 of 2001 (unreported); Antony J. Tesha v. Anita Tesha, Court of Appeal
of Tanzania at Dar es Salaam, Civil Appeal No. 10 of 2003 (unreported); and
Aloyce Msele v. The Consolidated Holding Corporation, Court of Appeal of
Tanzania at Dar es Salaam, Civil Appeal No. 11 of 2002 (unreported)].
RULING OF THE COURT

297
4th November, 2008 & 13th November, 2008
RUTAKANGWA, 3.A.:
This is an application for revision. It is brought by Notice of Motion under section
4(3) and (5) of the Appellate Jurisdiction Act, Cap 141, henceforth the Act, and Rule 45 of
the Tanzania Court of Appeal Rules, 1979, (hereinafter, the Rules).
The applicant, Chama cha Walimu Tanzania, or C.W.T., through Mr. Mabere
Marando, and Mr. Gabriel Mnyele, learned advocates, is seeking revision of the
proceedings in Application No. 19 of 2008 in the Labour Division of the High Court of
Tanzania, henceforth the Labour Court. The application was instituted against it by the
respondent herein, the Attorney General of the Government of the United Republic of
Tanzania. Among the grounds cited in the notice of motion for moving the Court to
exercise its revisional jurisdiction are that the Labour Court:-
(i) entertained the said application without jurisdiction;
(ii) entertained the application which was not properly before it;
(iii) heard the application and granted the order prayed for therein without
affording the applicant opportunity to present its case by way of a counter affidavit,
thereby denying it the right to be heard; and
(iv) relied on extraneous matters that were not on record in granting an injunction,
and without specifying as to whether it was permanent or temporary.
The respondent has vehemently opposed the application. Mr. Donald Chidowu,
learned Principal State Attorney, appeared before us to resist the application.
To facilitate a quick appreciation of the reasons behind this application, a brief
background is necessary. The affidavital evidence on record and the proceedings before
the Labour Court, provide this background.
The applicant is a trade union, duly registered under the provisions of the
Employment and Labour Relations Act, 2004 [No.6], henceforth the Employment Act. It
has about 156,923 members who are employed in the teaching profession nationwide. For
quite some time the applicant, on behalf of its members, has locked horns with the
government of the United Republic of Tanzania (the government hereinafter) over a
number of issues concerning the welfare of its members. On 4th February, 2008, the
applicant declared a trade dispute with the government. On 18th August, 2008 it issued a
strike notice of sixty (60) days. The said notice was issued pursuant to the mandatory
requirements of section 26 (2) (d) of the Public Service (Negotiating Machinery) Act, 2003
(No. 19), henceforth Act No. 19 of 2003. The strike, according to the notice, was to start
on 15th October, 2008.
Subsequent to the said strike notice, the two parties together with other
stakeholders, between 26th August, 2008 and 4th October, 2008, held four meetings with
a view to settling the dispute by way of negotiations. The meetings did not fully resolve
the impasse.
298
On 9th October 2008, the Majira newspaper published that the teachers were to
strike effective from 15th October, 2008. It was quoting one Gratian Mukoba, the
applicant's President, as the source of that information.
Believing that the threatened strike was illegal and malicious, the Attorney
General, on 10th October 2008, instituted the earlier mentioned application under a
certificate of urgency. The application was by chamber summons and the respondent
(applicant then) was seeking the following orders:-
"1. That this Honourable Court be pleased to grant an order for permanent injunction,
restraining the Respondent and their (sic) members from calling for and/or participating
in the planned strike to be held on 15th October, 2008.
2. That this Honourable Court be pleased to give such further orders and directions in
these proceedings as it shall deem appropriate.
3. Costs of this Application be paid by the Respondents." [Emphasis is ours].
The Labour Court was moved to grant these reliefs or orders under "Rule 94(1) (f)
(11) of the Employment and Labour Relations Act No. 6 of 2004, rules 24 (11) (a); 24(11) (c),
55(1) and 55(2) of Labour Court Rules Government Notice No. 106 of 2007."
The Labour Court issued a summons for mediation on 13th October, 2008. The
mediation was to take place on the same day at 12.00 noon. Our perusal of the Labour
Court original record has revealed that of the four top officials of the C.W.T. who were to
be served with copies of the court summons and chambers summons, only two were
served. These were Mwl. Ezekiel T. Oluoch [the Deputy Secretary General] and one
Leonard Haule, who were served at 11.43 a.m. and 11.47 a.m. respectively. The President
and Secretary General of C.W.T. were not served.
Mediation, however, did not take place because the parties were not represented
by officials with authority to mediate. The Registrar sent the court record to "Justice
Mandia for directions" on the same day. Before Mandia, J., Mr. Senguji, learned Principal
State Attorney, appeared for the Attorney General, being assisted by Ms Barke Sahel,
learned Senior State Attorney. For the respondent C.W.T., Mr. Mnyele, learned advocate,
entered appearance.
What was supposed to be an appearance to receive directions turned out to be an
appearance for the hearing of the application. Both counsel for the respondent herein
submitted that the C.W.T. had called out a strike without complying fully with the
provisions of s. 26(2) of Act No. 19 of 2003. They accordingly urged the learned Judge to
grant, on the basis of the enabling provisions cited in the chamber summons, "their
application for a temporary injunction", while they continued with negotiations. We
have to observe in passing here that there was no application for a temporary injunction.
Mr. Mnyele resisted the prayer. To him the prayer was being made prematurely
as they were yet to file a counter-affidavit. He also submitted that the said court had no
299
jurisdiction to entertain the application as it had been wrongly instituted under the
provisions of the Employment Act when the appropriate legislation was Act No. 19 of
2003. He accordingly pressed that the application be "thrown out for want of
jurisdiction" or, in the alternative, before the sought injunction was granted, they be
afforded opportunity to file a counter-affidavit as they had only been summoned for
mediation.
In his short rejoinder Mr. Senguji argued that the Court had exclusive jurisdiction
over the matter under the enabling provisions cited and the respondent had no automatic
right to file a counter-affidavit.
In his ruling, the learned judge held that the court was seized with jurisdiction to
hear and determine the matter. He then proceeded to consider the averments contained
in the affidavit of one Mathias Kabunduguru, filed in support of the chamber summons,
and its various annextures. After considering the principles enunciated in the case of
Attilio v. Mbowe (1969) HCD 284 on the grant of injunctions, he granted the injunction
sought in the chamber summons.
The C.W.T. was aggrieved by the conduct of the entire proceedings before the
Labour Court. It immediately filed this application. When the application was called on
for hearing, Mr. Chidowu rose to argue four (4) points of preliminary objection, notice of
which had earlier been lodged. The four grounds of objection are as follows:-
"1. The Application is incompetent for the Applicant has not demonstrated any
circumstances special or otherwise, to move this Honouraoie Court to exercise its
powers of revision as an alternative to appellate jurisdiction.
2. The Application is misconceived as the Order that the Applicant wants this
Honourable Court to revise is an interlocutory order.
3. The application is fatally defective for want of proper enabling provision of the law to
move the court in this application.
4. The Affidavit in support of the application is bad in law for accommodating hearsay
evidence, citation of laws and legal grounds contrary to the principles governing
affidavits".
Both counsel submitted at length either in support of or in opposition to each one
of these four points of objection. Mr. Chidowu adamantly argued that the application is
incompetent and should be struck out. He cited to us a number of decisions by this Court
in support of his position on each point. Mr. Mnyele was equally forceful and resourceful
in urging us to find each point to be misconceived in law. He, too, referred us to a
number of decisions by the Court to bolster his arguments. We shall begin our discussion
with the first point of objection as listed above.
As already shown in this ruling, the respondent went before the Labour Court
seeking a permanent injunction to restrain the applicant and its members "from calling
for and/or participating in the planned strike to be held on 15th October 2008". We
have already demonstrated how the learned High Court Judge heard the respondents on
his application even before the applicant had filed its counter - affidavit.
Indeed, Mr. Senguji had pressed the High Court to grant the orders sought
300
forthwith, because as he put it, "a counter-affidavit is not granted automatically". We
cannot restrain ourselves from observing that his was an unfortunate proposition, as rule
24(4) of the Labour Court Rules grants an automatic right to a respondent to file "a
notice of opposition, a counter affidavit or both" within "fifteen days from the day
on which the application is served on the party concerned". This clear provision of
the law notwithstanding, the learned judge essentially heard the respondent on the
merits and subsequently ruled as follows :-
"After all is said and done, this court finds that there has been made out a
good case by the applicant in support of the orders prayed for in the
application. The respondent CHAMA CHA WALIMU TANZANIA (C.W.T.)
are hereby restrained from calling for and/or participating in the
planned strike to be held on l5th October, 2008. In view of the limited
time available, the two parties to this matter should each make an
immediate announcement in the media of the grant of this
injunction."[Emphasis is ours].
The issue here is whether this injunction was an interlocutory one or had the effect of
finally determining the application before the Labour Court. In law, an injunction is said
to be interlocutory when granted in an interlocutory application and continues until a
certaindefined period. It aims at preserving the status quo until, say, the final
determination of the main application or suit. According to BLACK'S LAW
DICTIONARY, 8th edition, at page 800:-
A temporary injunction is issued before or during trial to prevent an
irreparable injury from accruing before the court has a chance to decide the
case.
The form which such an injunctive order takes is well explained in KERR ON
INJUNCTIONS, 6th edition, by J.M. Patterson, at page 648 as follows:-
"… Under the former practice the form usually adopted was 'until the
hearing of the cause'. Under the present practice it is 'until judgment in this
action', or 'until further order', to show that the injunction is not to extend
beyond the date when judgment is given, unless then continued, nor
until judgment if discharged previously by order of the Court/'
Mr. Mnyele strenuously argued that the injunction order given by the Labour
Court on 13/10/2008 was an interlocutory one and so they could not appeal in view of the
mandatory provisions of s. 5(2)(d) of the Act. However, he argued, they have found it
proper to proceed by way of revision because their complaint is not against the injunction
order. They are challenging the regularity of the proceedings in the Labour Court, which
he said, were irregularly conducted as the grounds in the notice of motion show.
On his part, Mr. Chidowu, who was admittedly equivocal, argued that the
respondent had moved the High Court to grant an injunction restraining the applicant
and its members from calling for and/or participating in the planned strike. Since the
301
application was granted, he stressed, the applicants, if aggrieved, ought to have appealed.
He cited to us the decision of this Court in the case of J.H. Komba, ESQ, Ex-Employer, E.A.
Community v. The Regional Revenue Officer, Arusha & Two Others, Court of Appeal of
Tanzania at Arusha, Civil Application No. 3 of 2002 (unreported), in support of his
submissions.
We have carefully considered all the arguments presented to us on the issue. We
have dispassionately read the ruling of the Labour Court and the order extracted
therefrom in the light of the order sought in the chamber summons. We are of the firm
view that the order issued was not interlocutory. It had the effect of conclusively
determining the application. The respondent was unreservedly granted what he was
seeking in the chamber summons, as the applicant and its members were unequivocally
restrained from "calling for and/or participating in the planned strike". There was no
other issue remaining to be determined by the Labour Court. Both in form and substance
the issued injunction order carries the hallmarks of finality, as it was not granted pending
any further action being taken in those proceedings. That is why no order to file a
counter-affidavit was given. The applicant, therefore, had an automatic right of appeal to
this Court under section 57 of the Labour Institutions Act, 2005. The grounds of
complaint shown in the notice of motion, in our settled view, all being points of law,
would have been taken up as grounds of appeal.
It is settled law that except under exceptional circumstances a party to
proceedings in the High Court cannot invoke the revisional jurisdiction of this Court as
an alternative to the appellate jurisdiction of the Court, unless it is shown that the
appellate process had been blocked by judicial process. See, for instance, HALAIS
PRO-CHEMIE V. WELLA A.G. [1996] T.L.R. 269 (CA). No such circumstances have been
shown here. We accordingly uphold this particular point of preliminary objection, and
hold that the application for revision is incompetent.
In view of our holding on the first point of objection, it is obvious that the second
point does not hold water. Indeed, the two points would have fittingly been raised in the
alternative. Regarding the other two points, we find no pressing need here to canvass
them. However, in order to avoid a recurrence of the same mistake, we only wish to
observe quickly that this Court had been properly moved under section 4(3) of the Act.
See, for instance, this Court's decisions in Olmeshuki Kisambu v. Christopher
Naing’ola, Civil Revision No. 1 of 2000, Augustino L. Mrema v. R., Cr. Appeal NO. 61 OF
1988, Harish A. Jina (By his Attorney Ajar Patel) v. Abdulrazak Jussa Suleiman, ZNZ, Civil
Application No. 2 of 2003 (all unreported).
Normally, having ruled the application to be incompetent we would have

proceeded to strike it out forthwith. However, because of a fatal illegality which is patent
on the face of the Labour Court's record, we shall refrain from following that path. We
shall now show why.
While urging us to strike out this application on the ground of wrong citation of
the enabling provisions of the law, Mr. Chidowu correctly submitted that it is settled law
that such citation and/or non-citation renders the relevant proceeding incompetent. He
fortified his argument by citing the decision of this Court in the case of Edward Bachwa &
302
Three Others v. The Attorney General & Another, Civil Application No. 128 of 2008.
In response to a question posed by the Court, Mr. Chidowu candidly admitted that
this principle of law applies to all courts. His attention was then drawn to the facts that
the application before the Labour Court had been taken under "Rule 94(1) (f) (ii) of the
Employment and Labour Relations Act No. 6 of 2004" as the main enabling provision and
that the said Employment Act has no such provision. He admitted forthwith that that
was wrong citation and given the stance of the law, the Labour Court had been wrongly
moved to issue the injunction.
Indeed the learned trial judge was aware of this irregularity. He, however,
disregarded it and took it upon himself to rectify it without being moved, by holding in
the ruling thus:-
... Section 94(1) (f) (ii) is the one granting this court powers to entertain
injunctions. The applicant must have meant
section 94 (1) (f) (ii) and not rule 94(1) (f)
(ii) ……..
After so surmising, the learned trial judge determined the application by granting the
orders sought in the chamber summons, as already shown.
As rightly admitted by Mr. Chidowu and supported by both counsel for the
applicant, non-citation and/or wrong citation of an enabling provision render the
proceeding incompetent. Decisions by this Court in which this principle of law has been
enunciated are now legendary. Most of them are cited in the case of Edward Bachwa &
Three Others v. The Attorney General & Another (supra). To that list may be added:.
(i) FABIAN AKONAAY V. MATHIAS DAWITE, Civil Application No. 11 of2003(

unreported) and
(ii) HARISH JIN A V. U.A.J. SULEIMAN Csupra).
In HARISH JINA'S Case, where an inapplicable section was cited, the Court categorically
stated that citing a wholly inapplicable provision of the law, was a worse situation than
citing a correct section but a wrong sub-section. As if providing, in anticipation, an
answer to our current problem, the Court said:-
… it may well have been a typographical error as pleaded by Mr. Patel, but
if that was so, he ought to have sought to correct the error before the …
matter came for hearing.
It is the duty of a party and not that of the court to correct his pleading and/or
documents relied on. If it were otherwise we would not avoid being reproached with
putting aside our mantle of impartiality.
It may also be worthwhile pointing out here that the gravity of the error in
omitting either to cite the enabling provision or citing a wrong one was succinctly stated
303
by this Court in the case of China Henan Internatiuonal Cooperation Group v. Salvan K.A.
Rwegasira, Civil Application No. 22 of 2005 (unreported). The Court said:-
Here the omission in citing the proper provision of the rule relating to a
support of the application is not in our view, a technicality 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. [Emphasis is ours J.
That being the clear position of the law, the learned trial judge ought to have struck out
the application before him.
But would the respondent's application before the Labour Court have been saved
by citing section 94(1) (f) (ii) of the Employment Act as the enabling provision? Our
considered answer to this pertinent question, after studying the entire Act, is in the
negative. Let us first look at this provision itself. It provides as follows:
94.-(1) Subject to the Constitution of the United Republic of Tanzania, 1977,

the Labour Court shall have exclusive jurisdiction over the application,
interpretation and implementation of the provisions of this Act and to
decide-
(a) appeals from the decisions of Registrar made under Part IV;
(b) reviews and revisions of -
(i) arbitrator's awards made under this Part;
(ii) decisions of the Essential Services Committee made under Part
VI;
(c) reviews of decisions, codes, guidelines, or regulations made by the
Minister under this Act;
(d) complaints, other than those that are to be decided by arbitration under
the provisions of this Act;
(e) any dispute reserved for decision by the Labour Court under this Act;
and
(f) applications including-
(i) a declaratory order in respect of any provision of this Act, or
(ii) an injunction.
It is clear from its plain language that the section was never intended to be an
enabling provision for instituting any proceeding before the Labour Court. Falling under
Part VII Sub-Part C, which is headed "Adjudication" it only spells out the powers of the
Labour Court. All the same, in our considered opinion, the Labour Court cannot exercise
these wide powers randomly or as and when it wishes. Being judicial powers, it can only
exercise them when properly moved and/or when the person wanting it to exercise them
has a right conferred on him to do so either under this Employment Act itself or under
any other written law. But, in our settled view, that right does not emanate from section
94(1) (f) (ii) as we shall presently demonstrate, by citing a few examples.
304
It cannot be seriously contended that any person feeling aggrieved by a decision of
the Registrar under Part IV can appeal to the Labour Court on the basis of S. 94(1) (a).
The right of appeal is created or granted by section 57. This section reads as follows:-
Every person aggrieved by a decision of the Registrar made under this Part
may appeal to the Labour Court against that decision.
Similarly, a person wishing the Labour Court to review or revise an arbitrator's
award made under Part VIII, cannot move that court under s. 94(1) (b)(i). He or she has
to proceed under s. 91(1). Also the right to refer a complaint to the Labour Court is
granted by s. 86(7) (b) and not s. 94(1) (d). Again applications for declaratory orders are
covered by s. 85(4) and (5), among others, and not s. 94(1) (f) (i), e.t.c.
On the issue of injunctions generally, we find that indeed the Labour Court has
jurisdiction to grant them. Regarding injunctions to restrain a strike, it is also our finding
that the said court has been given such jurisdiction under the Employment Act only. All
the same, such jurisdiction is subject to two conditions precedent. These are that the
strike must be illegal and it [Court] must be properly moved under the relevant enabling
provisions of the said Act. From our objective reading of this Act, we are of the settled
mind that the only relevant provision is section 84(l)(a). This provision reads as follows:-
Where a strike or lock out is not in compliance with this Act, or a trade
union or employer or employers' association engages in prohibited conduct,
the Labour Court shall have exclusive jurisdiction -
(a) to issue an injunction to restrain any person from -
(i) participating in an unlawful strike or lock
out;
(ii) engaging in any prohibited conduct
...
So assuming, without deciding here, that the provisions of the Employment Act
cover strikes declared under s. 26(2) of the Act No. 19 of 2003, then one seeking an
injunction to restrain such a strike ought to proceed under s. 84(l)(a). It goes without
saying, therefore, that the learned trial judge had been wrongly moved and erred in law in
entertaining and determining Application No. 19 of 2008 which was not competently
before him. It will then be accepted without further elaboration that the proceedings
before Mandia J. were a nullity. Since the proceedings were a nullity even the order made
therein including the court's ruling and final order were a nullity. Fortunately, counsel for
both parties in these proceedings are of the same firm view.
Because the proceedings before the Labour Court were a nullity, that is why we
felt constrained not to strike out this application. We did so in order to remain seized
with the Labour Court's record and so be enabled to intervene suo motu to remedy the
situation. This Court recently thus acted, in almost similar circumstances, in the case of
Tanzania Heart Institute v. The Board of Trustees of the National Social Security Fund,
Court of Appeal of Tanzania at Dar es Salaam, Civil Application No. 109 of 2008
(unreported).
As the learned trial judge was enjoined by law to strike out the respondent's
305
incompetent application and did not do so, it now falls within our jurisdiction to do what
he failed to do. This will not be the first time the Court is doing so. It has thus intervened
in the past.
In the case of Mathias Eusebi Soka v. The Registered Trustees of Mama Clementina
Foundation & Two Others, Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal
No.40 of 2001 (unreported) the Court struck out a notice of appeal against the National
Insurance Corporation of Tanzania, a Specified Public Corporation, which had been sued
without prior leave of the High Court in terms of s. 9 of the Bankruptcy Ordinance. After
striking out the notice the Court went on to pertinently observe that:
… However, that is not enough because the decision of the High Court will
still remain intact though illegal.
It accordingly invoked its revisional powers under section 4(2) of the Act, to quash the
proceedings in the High Court and set aside all the orders made therein.
In the case of Anthony J. Tesha v. Anita Tesha, Court of Appwal of Tanzania at Dar
es Salaam, Civil Appeal No. 10 of 2003 (unreported), during the hearing of the appeal it
was discovered that the High Court had issued leave to appeal when it had been wrongly
moved. The Court held that the High Court had erred in not striking out the application.
It accordingly struck out the application as well as the notice of appeal. The Court did the
same in identical circumstances of wrong citation in the case of Aloyce Msele v. The
Consolidated Holding Corporation, Court of Appeal of Tanzania at Dar es Salaam, Civil
Appeal No. 11 oF 2002 (unreported).
In this particular case we are strictly enjoined by law to do what the learned trial
judge in the Labour Court failed to do. Failure to do so would be tantamount to
perpetuating illegalities, and in particular the injunction order which is admittedly a
nullity. Acting under s. 4(3) of the Act we hereby revise the incompetent proceedings in
the Labour Court. The same as well as all the orders
including the impugned injunction granted therein, are hereby quashed and accordingly
set aside. We make no order for costs.
DATED at DAR ES SALAAM this 11th day of November,2008.

E.M.K. RUTAKANGWA
JUSTICE OF APPEAL
N.P. KIMARO
JUSTICE OF APPEAL
B. M. LUANDA
JUSTICE OF APPEAL
I certify that this is a true copy of the original.

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P.B. KHADAY
DEPUTY REGISTER
Moshi Mrisho & 15 Others v. Africarriers Ltd., High Court of Tanzania (Labour Division) at
Dar es Salaam, Labour Revision No. 75 of 2008 (Unreported).
Held:
That employees who were properly consulted when the employer’s business is taken
over by another employer cannot be heard to complain that they were not
consulted.
RULING
MANDIA, J.
The applicants referred a dispute to the Commission for Mediation and Arbitration about
unfair termination of services. The basis of their claim was that they were declared
redundant by their employer, but the employer did not follow the procedure set out in
Section 38 of the Employment and Labour Relations Act before effecting redundancies.
The facts as established by the arbitrator show that the employer AFRICARRIERS LTD
who is the respondent wound up business and on 31/12/2007 wrote a letter to each of the
applicants notifying them of the winding up. The employer notified the applicants that
his business was being taken over by UNIVERSAL AUTO WORKSHOP. The employer
offered the employees a chance to work with the new employer on new contracts, and on
2/1/2008 the applicants signed contracts of service with the new employer after the old
employer paid them their terminal dues. There is evidence that the applicants worked
with the new employer for twelve days and then resigned from the service of the new
employer. After resigning the applicants were paid their salaries for the twelve days of
work with the new employer. After the payment, the applicants went to the Commission
for Mediation and Arbitration where they filed a dispute over unfair termination.
After a hearing the Commission held that the claim that the applicants were unfairly
terminated had no basis, and dismissed the claim. This led to the present application for
revision. The evidence on record shows clearly that there was consultation between the
307
applicants and the respondent. It was these consultations which led to the applicants
being taken over by the new employer. The applicants cannot be heard to complain that
there were no consultations.
Another factor to take into account is that the respondent had ceased business, and had
informed the applicants that he was winding down with effect from 31/12/2007. It is
therefore clear that from 1/1/2008 the respondent was not in a position to offer
employment to the applicants for the simple reason that the business had ceased to exist.
Also to be taken into account is the fact that the applicants appreciated the respondent’s
effort to finds alternative employment for them, and indeed took up the alternative
employment and worked for twelve days. By taking the alternative employment the
applicants had severed connection employment wise with the old employer. It has been
shown that the applicants were only a part of the employees taken over by the new
employer on the arrangement made by old employer. The others …. (missing page 5 ….)
Rajabu Kazimoto & 7 others v. Bilicana Group Inc. (Bilicana Ent. Complex), High
Court of Tanzania (Labour Division) at Dar es Salaam, Revision No. 192 of 2008
(Unreported).
Held:
1. That the law on termination requires the employee to first allege that there was
unfair termination and thence claim for other terminal benefits.
2. That once an employee alleges that termination was unfair, the burden of proof
shifts onto the employer who has to prove that the termination was fair.
RULING
MANDIA, J.
On 10/12/2007 the applicants filled in Form CMA F1 in which they complained that they
had their services terminated without them being paid their dues e.g. overtime. The
Commission found the claim baseless and dismissed it. The applicants filed this
application for revision.
While arguing the application before this Court the applicants claimed that the dispute is
about payment of severance allowance, notice, leave pay and overtime.
The law on termination requires that an employee has first to put up an allegation of
unfair termination, after which the burden shifts to the employer to prove that the
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termination was fair. Going through the proceedings conducted in the Commission and
also the argument before this Court, I find that the applicants did not lead any evidence
to show that there was termination. All they showed was monetary claims for leave,
severance allowances, overtime, etc. these are reliefs which can only be granted after a
finding of fact that there was unfair termination. I note that even the filling of Form CMA
F1 was shoddy in that the summary of facts put down was:-
“Termination without being paid dues.”
The summary does not allege that there was unfair termination. The facts are not enough
to grant any relief. The arbitrator acted properly in dismissing the dispute. The
application for revision has no merit and is accordingly dismissed.
International Medical & Technological University v. Eliwangu Ngowi, High Court

of Tanzania (Labour Division) at Dar es Salaam, Labour Revision No. 54 of 2008
(Unreported).
Held:
1. That the reliefs awarded under Section 40(1) of the ELRA for unfair termination
are discretionary and awarded separately, not one after the other.
2. That in statutory interpretation, the use of the word “or” in a section means that
the subsections are separate and each of which stands on its own and is not linked
to the other.
3. That damages are not anticipatory; i.e. awarded for future events that may or may
not happen.
4. Compensation of twelve months’ salaries must not exceed twelve months.
RULING
MANDIA, J.
The respondent ELIWANGU NGOWI was employed by the applicant THE

INTERNATIONAL MEDICAL & TECHNOLOGICAL UNIVERSITY on 1/3/2005 on an
oral contract. The oral contract provided for a period of probation for six months, at the
end of which the respondent was to have been conformed in service and her salary raised.
It appears this condition was not honoured, and on 22/11/2006 the respondent wrote a
letter reminding the applicant of his obligation to enter into a written contract with her.
In this letter, Exhibit P1(a), the respondent also asked for a raise in salary. It also appears
that Exhibit P1(a) was not replied to, and on 24/1/2007 the respondent wrote another
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letter, Exhibit P1(b), in which she reminded the applicant about the written contract of
service and salary increase. There does not seem to be a reply to this letter. On 24/1/2207
the respondent applied for her annual leave.
On 28/4/2007 the respondent wrote a letter Exhibit P4(a) in which she requested to be
allowed to report late at 9.30 a.m. because she was facing transport problems. Her
request was granted by the Vice-Chancellor in his letter dated 14/5/2007 Exhibit P4(b).
The letter of permission stipulated that the respondent was to report for duty at 9.00 a.m.
on 10/9/2007 the Manager, Human Resources one Michael Lukandi Lazaro wrote a letter
of termination of employment (Exhibit P5) to the respondent. On the same day
(10/9/2007) the Vice-Chancellor wrote a letter (Exhibit P5) upbraiding the manager,
Human Resources for writing the letter of dismissal of services to the respondent. The
Vice-Chancellor claimed that the write of Exhibit P5 did not have the authority to write
the letter of dismissal. Despite this, Exhibit P5 was not withdrawn by any official of the
University. On 12/9/2009 the respondent referred her termination of services to the
Commission for Mediation and Arbitration. The dispute went through mediation where
the parties failed to reach an amicable settlement, and the mediator issued the requisite
certificate of non-settlement. The dispute then went into arbitration. The arbitration
proceedings show that both parties were represented by counsel, with the employer
being represented by Kasmir Nkuba, advocate, and the employee being represented by
Mmanda, advocate. Both sides called witnesses and tendered documentary exhibits in
support of their respective cases. At the end of the hearing advocates from both sides
presented their written submissions in support of their respective cases. On 3/4/2008 the
arbitrator pronounced his decision on the matter.
In a very elaborate ruling, the arbitrator found the employer in error. At page 12 of the
award the arbitrator commented thus:-
“Kutokana na ushahidi huo na mazingira ya mgogoro wenyewe ulivyo,

naridhika pasipo shaka yoyote kwamba mwajiri ameshindwa kuthibitisha
kwamba Eliwangu Ngowi (PW1) akiwa Secretari katika Ofisi ya
Vice-Chancellor IMTU aliwahi kuhalifu kanuni au sheria yoyote ya kikazi
kumtendea mwajiri wake.”
The arbitrator made this conclusion of fact after making a finding that the employee
Eliwangu Ngowi had asked for permission to report late, and this permission was granted
by the Vice-Chancellor, and that it was the Vice-Chancellor, or his delegate who was the
disciplinary authority. The arbitrator also made a finding that the write of the letter of
termination of employment was not delegated by the Vice-Chancellor to exercise the
310
powers of termination as shown in Exhibit P6. The arbitrator had also found that the
employer had breached his own disciplinary procedure in not following Rule 29, part IV
IMTU Trust Rules which insist on the fundamental right to be heard before a disciplinary
penalty is imposed. The inevitable conclusion therefore followed near the bottom of page
12 of the award. It reads thus:-
“Kutokana na malelezo hayo nakubaliana na upande was mlalamikaji kuwa

kuachishwa kwake kazi kama adhabu ya “Gross insurbonination” haikuwa
sawa ba halali.”
The arbitrator awarded compensation amounting to fifty months salaries, giving the
reason that the respondent had a working life of more than twenty years ahead of her
which had been cut short. The sum total of the award came to a total of Sh. 6,865,093/20
whose breakdown is as follows:-
1. Compensation under Section 4091) of ELRA Sh. 6,490,000/=.
2. Arrears of salary Sh. 30,000/=.
3. Payment of salary in lieu of notice Sh. 129,800/=.
4. Unpaid leave for 2005/2006 Sh. 114,053.20.
5. Unpaid leave 2008 Sh. 43,267/=.
6. Severance allowance for two years of service Sh. 60,573.10.
In the application for revision filed in this court, Mr. Byamungu, learned counsel
appearing on behalf of the applicant, argued that the arbitrator erred in disregarding
evidence that the respondent had committed the offence of reporting late to her place of
work. Mr. Byamungu also argued that the respondent had refused to sign a memo which
constituted the charge and by dosing so the respondent had waived her right to defend
herself. Mr. Byamungu also argued that the Vice-Chancellor had scolded the Human
Resources Manager in writing when he pointed out that the Human Resources Manager
had assumed authority he did not possess, and this meant there was no termination at all.
On compensation, Mr. Byamungu argues that the award of fifty months pay as
compensation is very high, and that the arbitrator exercised his discretion to award
compensation baldy. After going through the record of proceedings in the Commission
for Mediation and Arbitration I find it established that the Applicant University through
their Official Michael Lukandi Lazaro had written a letter of termination of employment,
Exhibit P5, to the respondent. At the end of the hearing of this revision I asked both
parties to address this court on whether the letter of termination of services had at any
311
material point in time, been withdrawn. Both parties replied that the letter has not been
withdrawn. It is therefore proved that on 10/9/2007 the applicant terminated the services
of the respondent. The second question to be considered is whether the termination was
fair or not. To answer this question, we have to look at two letters which contradict each
other. In the letter of termination of services, Exhibit P5, one Michael Lukandi Lazaro
who is the Manager – Human Resources, purported to terminate the services of the
respondent. Reaction to this letter of termination was made by the Vice-Chancellor vide
Exhibit P6. This is a letter from the Vice-Chancellor addressed to Michael Lukandi Lazaro
in which the Vice-Chancellor roundly scolded Michael Lukandi Lazaro for assuming
powers he did not have. We therefore have two letters from the same employer, one
claiming powers of termination of services and the other questioning those powers.
Exhibit P6, however, should have been addressed to the respondent. This would have had
the effect of cancelling the termination of services. Since Exhibit P6 was not addressed to
the respondent, it mens the letter of termination still stands. Exhibit P6, however, speaks
for itself: that Michael Lukandi Lazaro assumed powers he did not have. This means in
law the termination was unfair because it was made by the wrong authority. The
Commission for Mediation and Arbitration was therefore right in holding that there was
unfair termination.
On the award made, Mr. Byamungu, learned advocate for the applicant, contended that
the award of an equivalent fifty months salaries at Sh. 129,800/= per month was a bad
exercise of discretion which should be interfered with by this court. Secondly, Mr.
Byamungu argues that the remedies provide for in Section 4091) are reinstatement,
re-engagement and payment of compensation in that order. Hi argument is that the
arbitrator should have considered the remedies one after the other. In reply, Mr.
Mmanda, learned advocate for the respondent, argued that the working environment did
not allow for an order of reinstatement or re-engagement so the arbitrator was right in
settling for compensation.
I will start with the argument about the order in which the reliefs under Section 40(1) are
listed. As pointed out by learned counsel on both sides, the reliefs under Section 40(1) are
discretionary in that the section says the arbitrator or court may order the employer to
grant reliefs. Section 40(1)(a) is separated from Section 4091)(b) by the use of the word
“or” and Section 40(1)(b) is separated from the use of the word “or”. The use of the word
“or’ in legislation shows that the sub-sections are linked disjunctively, not injunctively.
This means each one of the three sub-sections stands on its own and is not linked to the
other. This disjunctive link, coupled with the use of the word “may”, connotes discretion
and freedom to invoke any of the three sub-sections to the exclusion of the other. In this
sense, therefore, a court is not bound to invoke the sub-sections seriatim, that is, one
after the other. The arbitrator was therefore correct in invoking sub-section 40(1(c) to the
exclusion of sub-section 40(1)(a) and sub-section 40(1)(b).
312
On the quantum of fifty months pay, I observe that the only reason given by the
arbitrator for the sum awarded is this:-
“Umri wake unaruhusu angeweza kutumikia zaidi ya miaka 20 ijayo hivyo

ombi la miaka 4.2 si mud mkubwa kuhusu hesabu hiyo ya fidia.”
The arbitrator correctly stated the law that compensation under Section 40(1)(c) is not
less than twelve months’ remuneration. He however went overboard in justifying the
award of fifty months’ pay for the reason that the respondent had more than twenty years
of work ahead of her. This was speculation. It is a settled principle of law that damages
should not be anticipatory, i.e. awarded for future events which may happen may not
happen. In the present case, the respondent may have twenty years of work lie on which
the award is based. She may likewise have less or more than twenty years of work life.
The law provides for an award of not less than twelve months’ remuneration. This is the
only certain figure mentioned by the law. Any amount above that must be justified by the
facts of the case. In the present case the respondent sought reinstatement, payment of
salary during suspension and compensation. This is according to the form which she
filled in when the referred the dispute to the Commission. There is therefore no record of
the respondent praying for the aggravated damages in the form of compensation which
the arbitrator awarded. The award of compensation is therefore reduced to twelve
months’ remuneration as provided for in Section 40(1) of the Employment and Labour
Relations Act. This comes to Sh. 1,554,600/=. The rest of the award items remain the
same. The total award which the respondent is entitled to is therefore Sh. 1,935,293.30.
Save for the variation made to the award, the application for revision is dismissed.
Communication & Transport Workers Union (T) COTWU (T) v. Fortunatus

Cheneko, High Court of Tanzania (Labour Division) at Dar es Salaam, Complaint
No. 27 of 2008 (Unreported).
Held:
1. The Employment and Labour Relations Act provides, in Section 40(1), for the remedies
of reinstatement in Section 40(1)(a), re-engagement in Section 40(1)(b), and
compensation equaling to twelve months’ remuneration in Section 40(1)(c).
2. That in addition to the remedies provided for in Section 40(1), the Act provides for this
Court to award any amount to which an employee may be entitled in terms of any law or
agreement.
313
3. That Section 88(8) of the ELRA allows the CMA to award costs only where a party acts
in a frivolous or vexatious manner.
4. That under section 43(1) of the ELRA repatriation may be carried through one of the
following ways:
(a) By the employer footing the transportation costs; or
(b) By the employer paying transport allowances to the employee and members of
his family.
5. That under Section 43(1)(a) and (2) of the ELRA, the means of transportation of a
repatriated employee upon termination is equivalent to bus fare.
6. That while awaiting to be repatriated a terminated employee and members of his

family are entitled to daily subsistence allowances to the date of transportation on the
basis of his salary.
7. Under the ELRA, there is no provision for repatriation. This is a term which existed
under the Employment Act which has been repealed and replaced by the ELRA.
RULING
MANDIA, J.
The respondent Fortunatus Cheneko had his services terminated by his employer who is
the applicant in this case. He referred the matter to the Commission for Mediation and
Arbitration which found the termination to be unfair because it did not adhere to the
Code of Good Practice, specifically Rule 9(1) and (3) of the Code. The arbitrator also
found that the disciplinary proceedings were tainted [with] the fact that the respondent
was not given a chance to be heard, and cited the decision of Jimmy David Ngonya v. NIC
Ltd. [1994] TLR 28 and also the authority of Simeon Manyaki v. IFM [1984] TLR 304. The
arbitrator awarded the respondent the following:-
1. Salary for July 2007 Sh. 370,000/=
2. Leave pay for 2005/2006 and 2006/2007 Sh. 740,000/=
3. One month’s salary in lieu of notice Sh. 370,000/=
4. Compensation 12 months’ salaries Sh. 4,440,000/=
5. Costs Sh. 1,500,000/=
6. Severance Allowance Sh. 777,000/=
7. Unremitted NSSF Contributions Sh. 2,500,000/=
8. Repatriation to Dodoma Sh. 2,000,000/=
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9. Repatriation allowance under
Section 43(1)(c) of ELRA Sh. 7,455,000/=
10. Compensation for psychological trauma Sh. 10,000,000/=
The total came up to Sh. 30,152,000/=. The respondent was aggrieved by this award,
hence the application for revision. Mr. Kilima, who represented the applicant, argued that
they were contesting the award of Sh. 2,000,000/= for transport, Sh. 7,000,000/= for
subsistence allowance and Sh. 10,000,000/= for psychological trauma. Mr. Kilima
contended that the award of 17/10/2008 did not discuss the amounts demanded, and the
Commission for Mediation and Arbitration based itself on the issue of termination and
did not give reasons for the award. He also contended that under Section 53 of the
Employment Ordinance which is similar to Section 43 of the Employment and Labour
Relations Act, an employee who has his services terminated is only entitled to a monthly
salary from the date of termination to the date of repatriation.
In reply, Mr. Mrugaruga for the applicant argued that the termination was fair because
under the Constitution and Staff Regulation of COTWU the applicant’s employer was the
National Executive Committee of COTWU, and not the General Secretary of COTWU
who effected the termination. Mr. Mrugaruga also argued that since the applicant was
engaged as Zonal Secretary in Dodoma and transferred to Mwanza he was entitled to
repatriation costs based on daily subsistence allowance and not monthly wage.
The dispute at hand was referred to the Commission for Mediation and Arbitration on
22/08/2007 when Form CMA F1 was filled in by the applicant, and item 3 in the form
shows that the dispute arose on 30/07/2007 in Mwanza. The subject matter of the dispute
is unfair termination of services. When the dispute arose on 30/07/2007, the Employment
and Labour relations Act, Number 6 o 2004, had already come into force. The Code of
Good Practice, which governs employment relations at the shop floor level, had also
come into force since 16th February, 2007.
The employer was therefore bound by the Code of Good Practice at the time of taking
disciplinary action against the employee. The operative law in this case is the
Employment and Labour Relations Act and the Code of Good Practice. This means the
authorities cited by Mr. Kilima have no bearing on this matter since they were based on
administrative procedure in use before the specific law mentioned above was enacted.
The Commission found that the respondent in the Commission had flouted provisions of
the Code, and the respondent did not offer any explanation on this. I agree with the
315
finding made by the Commission that the dismissal which the respondent purported to
carry out is unfair.
On remedy, the Commission correctly surmised that the applicant was entitled to the
redress provided for in Section 40 of the Employment and Labour Relations Act. The
question is, did he award made conform [to] Section 40(1) of the Act?
The Employment and Labour Relations Act provides, in Section 40(1), for the remedies of
reinstatement in Section 40(1)(a), re-engagement in Section 40(1)(b), and compensation
equaling to twelve months’ remuneration in Section 40(1)(c). In addition to the remedies
provided for in Section 40(1), the Act provides for this Court to award any amount to
which an employee may be entitled in terms of any law or agreement. The total amount
which was awarded by the Commission is Sh. 30,152,000/= under separate headings as
shown in the foregoing part of this judgment. Amongst these headings, there is Sh.
1,500,000/= for costs. The Act allows, under Section 88(8), and arbitrator to make an
order for costs only when a party acts in a frivolous or vexatious manner. To justify such
an order the arbitrator must clearly indicate the offending behaviour which led to the
order being made. The record of arbitration proceedings does not show this, so there is
no considered opinion upon which the order for costs was based. The order is therefore
unjustified and is set aside.
There is another heading for compensation for psychological trauma. Again no evidence
was adduced to lay the basis for the psychological trauma suffered, if at all, by the
applicant. This claim of Sh. 10,000,000/= is therefore unjustified and is set aside.
After the coming into force of the Act, the only allowable order of transportation
expenses that can be made is under Section 43(1) of the Act. Section 43(1) has two facets,
that is, either the employer himself/herself foots the bill under Sub-sections (a) and (b) of
Section 43(1), or the employer pays the employee an allowance for transport of himself
and family. Under the Act, there is no provision for repatriation. This is a term which
existed under the Employment Act which has been repealed and replaced by the
Employment and Labour Relations Act. The item for repatriation is therefore devoid of
any basis in law and is set aside. This leaves the item for Repatriation Allowance of Sh.
7,455,000/= which the Arbitrator awarded to the applicant. Under Section 43(1(c) and
43(2) of the Act, the employee is entitled to a transportation allowance equal to the bus
fare between the place of recruitment and the duty station. This means the applicant was
only entitled to an amount equivalent to the bus fare between Mwanza and Dodoma for
himself, his wife and children. Section 43(1()(c) allows for daily subsistence expenses
between the date of termination and the date of transportation. Unfortunately the Act
did not prescribe the daily subsistence rate payable. Since the applicant’s salary is Sh.
370,000/= per month, and the applicant was subsisting on his salary at the place of work,
316
the daily subsistence allowance can be taken to be the daily wage calculated on the basis
of the monthly salary. Dividing Sh. 370,000= by thirty days gives a rough figure of Sh.
12,333/= per day. The Arbitrator gave a figure of Sh. 7,455,000/= without showing how
this figure was arrived at. He only showed that it was from July, 2007 to 29.2.2006.
This must have been a typographical error. If the date of dismissal was July, 2007, the
period of transportation could not be 29/2/2006, more than one year earlier. The decision
of the arbitrator was rendered on 17/3/2008 so the Arbitrator must have had in mind
29/2/2008. Taking the 31 days of August, 30 days of September, 31 days of October, 30
days of November, 31 days of December, 31 days of January and 29 days of February makes
a total of 313 days in all. The figure comes to Sh. 3,860,229/=. The disallowed item of
costs, psychological trauma and repatriation add to Sh. 13,500,000/=. If this figure is
subtracted from Sh. 30,152,000/= allowed by the Commission, the remaining amount
comes to Sh. 16,652,000/=. Since the correct figure for transport allowance is Sh.
3,860,229/= the Sh. 7,455,000/= allowed by the Commission is set aside. In its place is
substituted the figure Sh. 3,860,229/=. Adding Sh. 16,652,000/= to Sh. 3,860,229/= makes
the total figure to be Sh. 20,512,229/-.
This is the figure to which the [respondent] is entitled. The award of Sh. 30,152,000/= is
hereby set aside. The respondent is awarded Sh. 20,512,229/- plus the bus fare from
Mwanza to Dodoma for himself and his family.
Hamza Jumbe v. Salmin Mbaraka, High Court of Tanzania (Labour Division) at Dar
es Salaam, Labour Revision No. 69 of 2008 (Unreported).
Held:
1. That before enforcing disciplinary penalty against an employee, an employer must
first conduct disciplinary proceedings.
2. That a night security guard/watchman cannot be paid overtime dues if he worked
for the period stipulated in section 19(2) of the ELRA.
3. The employer has the onus to prove that the employee was fairly terminated.
4. That filling in CMA Form No. 1 correctly is important as the last two lines of item 3
require the applicant in the Commission to fill in details on the time when the
dispute arose, and the place where the dispute arose.
5. Under Section 35 of the ELRA, the provisions of Sub-Party E of the ELRA (i.e.
Sections 35 to 40) do not apply to any employee with less than six month’s
employment with the same employer.
RULING
MANDIA, J.
Hamza Jumbe referred a dispute about termination of services in the Commission for
Mediation and Arbitration. In Form Number CMA F1 which he filled in on 26/11/2007
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when referring the dispute to the Commission, the applicant Hamza Jumbe did not fill
the particulars he is supposed to fill in showing the nature of the dispute as shown in
item 3 of the form. Filling in this form correctly is important as the last two lines of item 3
require the applicant in the Commission to fill in details on the time when the dispute
arose, and the place where the dispute arose.
All the same, the decision of the arbitrator shows that the applicant Hamza Jumbe gave
the date of engagement as 10/10/2007 and the date of termination as 31/10/2007 while the
respondent and his witnesses showed that the applicant applied for employment on
10/10/2007 and was asked to bring proof of residence from the Ward authorities which he
did on 15/20/2007. The respondent and his witnesses showed that the applicant worked
on 15/10/2007, 16/10/2007 and 17/102007 when his services were terminated. The
arbitrator discussed the differences in the dates of engagement and date of termination
and came to the conclusion that the date of engagement was 12/10/2007 and the date of
termination of services was 17/10/2007.
There was also a dispute on the salary payable to the applicant. The applicant alleged the
agreed salary was Sh. 80,000/= while the respondent and his witnesses testified that the
salary payable was Sh. 50,000/=. The arbitrator found it as a fact that the salary payable to
all guards including the applicant was Sh. 50,000/=. At the end of it all, the arbitrator
awarded the applicant Sh. 16,600/= as terminal benefits. The applicant was dissatisfied by
this award and filed this application for revision.
In his affidavit which accompanied the Chamber Summons he took in support of his
application, the applicant reiterates his allegation that he worked from 10/10/2007 to
31/10/2007. While arguing his application the applicant did not adduce any evidence or
reasoning which showed that the arbitrator erred in finding that the applicant worked for
three days on 15/10/2007, 16/10/2007 and 17/102007. On the question of the agreed salary,
there is ample evidence that all night watchmen are paid a monthly salary of Sh. 50,000/=
so the claim that the applicant’s salary was h. 80,000/= is not supported by the evidence
on record.
At paragraph seven of his affidavit, the applicant points to an error at page three of the
arbitrator’s decision when he gave the dates as on 15/10/2008, 16/10/2008 and 17/102008.
This error is however typographical and does not affect the merits of the case. The ruling
of the arbitrator is dated 21/4/2008, which date the applicant does not contest, and all
this means is that the dates in October, 2008 are typographical errors.
The applicant is therefore entitled to six day’s pay as found by the arbitrator which is Sh.
11,600/=, as well as the overtime which the arbitrator calculated at Sh. 4,800/=.
The arbitrator found that the applicant was not entitled to salary in lieu of notice because
he had left his guard point, an act which would have caused loss to the employer. For
such a finding to hold, the employer must be shown to have acted in accordance with the
Code of Good Practice Rules, GN No. 42 of 2007, which enjoin the employer to conduct
disciplinary proceedings before enforcing disciplinary penalty. In the present case there
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should have been a hearing to establish the validity of the misconduct of leaving a guard
point which the arbitrator alleged. There were no such disciplinary proceedings held, so
the arbitrator could not unilaterally find the applicant guilty of misconduct. In the
absence of this finding, the applicant is entitled to payment in lieu of notice. The facts
show that the applicant was dismissed in the first month of service, so the period of
notice under Section 41(1)(a) of the Employment and Labour Relations Act is seven days.
The applicant is therefore entitled to seven days’ pay which is Sh. 13,500.
The applicant is also claiming 5% of his salary as payment for night work. He bases his
claim under Section 1992) and Section 20(4) of the Employment and Labour Relations
Act. Section 19(2) provides for hours of work and overtime, and Section 20(4) refers to
payment of 5% of an employee’s wage for each hour worked at night if the hours of work
are overtime hours. To qualify for the 5% extra payment, the employee must show that
the hours were worked at night, and the work was over and above the normal duty of the
employee. A night watchman or night guard, as the name suggests, works at night. Since
the night work of a night watchman is his normal work, he cannot claim overtime if he
works for the time periods laid down in Section 1992) of the Employment and Labour
Relations Act. The claim of 5% extra pay can only be if the periods laid down in Section
19(2) have been exceeded. The applicant has not shown this so the claim of 5% extra pay
is rejected.
The applicant also argues that he should be paid according to the Wage Order which
came into force on 1/11/2007. This argument is self-defeating, because the applicant had
his services terminated on 17/10/2007 when the Wage order had not came into force.
Lastly, the applicant argues that he should be paid compensation under Section 491) of
the Employment and Labour Relations Act. I have already held that the applicant is
entitled to notice pay, the reason being that the termination did not conform to the rules
laid down in the Code of Good Practice, GN No. 42 of 2007. Under Section 39 of the
Employment and Labour Relations Act, the burden of proving that termination was fair
[lies] with the employer, and he has not discharged this burden by showing that he
conformed to the Code of Good Practice. This default makes the applicant entitled to
compensation under Section 4091) of the Employment and Labour Relations Act. At his
salary of Sh. 50,000/= per month, the applicant is entitled to Sh. 600,000/= as
compensation. The total claim allowed is:
(i) Six days’ pay Sh. 11,600/=.
(ii) Overtime Sh. 4,800/=.
(iii) Seven days’ notice pay Sh. 13,500/=.
(iv) Compensation under Section 40(1)(c) Sh. 600,000/=.
Total Sh. 629,900/=
*Ruling delivered on 30/9/2008.
** On 27/10/2008, Mandia J. (as he then was) made an Order which “revised” the
foregoing Ruling as follows:
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ORDER
MANDIA, J.
The ruling dated 30th September, 2008 is revised under Rule 28(1)(c) [of the Labour Court
Rules] by taking cognizance of section 35 of the Employment and Labour Relations Act,
2004. The section lays it down that the provisions of Sub-Party E of the Employment and
Labour Relations Act, that is Sections 35 to 40 of the Act, shall not apply to any employee
with less than six month’s employment with the same employer. It was therefore a
material irregularity for this Court to award the compensation of Sh. 600,000/= under
Section 40(1)(c) of the Employment and Labour Relations Act, since the facts as
established prove the applicant worked for the respondent for a total of six days only.
The award which the applicant is entitled is therefore Shs. 629,900/= minus Shs.
600,000/= which comes to Shs. 29,900/=. It is so ordered.
Director of Gindai Company Ltd. v. Ibrahim Kibasa, High Court of Tanzania

(Labour Division) at Dar es Salaam, Labour Revision No. 120 of 2008 (Unreported).
Held:
1. That there is no law which prevents an arbitrator to require parties to call

witnesses to prove a contested issue in an application even though the same
is supported by an affidavit.
2. That an arbitrator has discretion to award costs where unless a party or a

person representing a party acted in a frivolous or vexatious manner.
RULING
25/12/2009 & 18/6/2010
RWEYEMAMU, J.
In this matter, a dispute of unfair termination arose between the applicant/employer and
his employee the respondent. The dispute arose on 3/12/2007 and the employee referred
the same to the Commission for Mediation and Arbitration (CMA) via Statutory Form No.
1 filed on 7/12/2007. At the CMA, the dispute was arbitrated under the provisions of
section 87(3) of the Employment and Labour Relations Act, 6 of 2004 and an ex-parte
award issued in favour of the employee on 3/4/2008.
In that award, the employer was ordered to pay the employee shillings 1,200,000/=, 12
months salaries at the rate of Shs. 100,000/= being compensation for unfair termination,
and shillings 26,666.40 being severance allowance for the period worked of 4 years.
Claims for 4 years accrued leave and repatriation costs were dismissed for reason that
there was no proof that the employee was employed at a place other than where he was
recruited.
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On 17/6/2008 the employer filed an application to have that ex-parte award set aside but
the application was dismissed for reasons explained by the arbitrator in a subsequent
decision dated 1/7/2008. I should say at the outset that I agree the employer failed to
show good cause for not appearing, and find no basis to fault the decision on the issue.
The decision was based on proper evaluation of evidence of witnesses, who were
government employees, showing that the employer was properly served.
In that subsequent decision, the employer was ordered to pay costs 300,000/= to the
employee – equivalent to 3 months salary for disturbance from the date of the award to
that of the decision. The arbitrator has discretion to order costs under section 88(8) of
the Act, read together with Rule 34(1) of the Labour Institutions (Mediation and
Arbitration) Rules, GN No. 64/2007. After going through the evidence of 5 witnesses
called to testify by the employee on the aspect of service, I have found no reason to
suggest that the discretion was not used judiciously.
Returning to the application for revision of the ex-parte award, the employer’s grounds
adduced in the affidavit were that:
“7. (i) That the arbitrator erred in law for arbitrarily allowing the
respondent’s witnesses to testify before in the application fir review
while parties had filed affidavits and counter-affidavits.
(ii) That the arbitrator erred in law and fact for not taking into
consideration that the matter before him was an application which did
not require testimony of witnesses in full trial of the case.
(iii) That the arbitrator erred in law and fact by allowing the
respondent’s witnesses to testify in Court while the applicant did not
get chance to call witnesses to testify.
(iv) That the arbitrator erred in law and in fact by arbitrarily ordering
payment to the respondent of the disturbance allowance of Tshs.
100,000/= per month.
(v) That the arbitrator arbitrarily awarded the respondent Tshs.

1,266,666.40 without justifying the way he arrived to the award given.”
The application was resisted by the employee in his counter affidavit. At the hearing, the
employer was represented by one of its Directors one Hassan Abdu while the employee
was represented by Mr. Salum a representative from the worker union – TASIWU.
Hearing proceeded by way of written submission and the applicant’s submission was filed
by Dr. Paul Kihwelo advocate. I did not see the employee’s submission in response but in
321
view of the basis of my decision, and to avoid further delay, I chose to proceed without it
as I believe no injustice will be occasioned by its absence.
I have considered the parties arguments, gone through the CMA record of proceedings
and reach the following decision on the raised grounds for reasons stated:
1. Regarding ground (i) and (ii), I find that the arbitrator’s decision was not in err.
There is no law which prevents an arbitrator to require parties to call witnesses to
prove a contested issue in an application even though the same is supported by
affidavit. What was before the CMA was an application to set aside the ex-parte
award, the employer was bound to prove that he had good reasons for failing to
appear and the employee had to contradict that. And may be more important, the
calling of witnesses by the employee as further elaboration of points already stated
in the affidavit did not in any way prejudice the employer/applicant who was also
availed opportunity to call witnesses.
2. Regarding the allegation raised in ground (iii), the same if negated by facts
apparent on the CMA record specifically pages 2 and 3 thereof. On 26/2/2008 the
CMA made an order that hearing of the application would proceed in Iringa and
that each party was to prepare its evidence “Ushahidi wake”. Hearing of the
application commenced on 30/6/2008 when the employer’s witness gave a sworn
testimony and was cross-examined.
3. The award of Shs 100,000/= protested in ground (iv) above was not disturbance
allowance as alleged by the employer, rather it was the monthly salary established
vide the employee’s ex-parte proof of the case which he did vide a sworn
testimony. I find that the arbitrator made no error on that aspect.
4. Regarding ground (v), I find that the arbitrator clearly explained reasons for
awarding compensation and I find that he properly stated the law and on the
adduced evidence, was entitled to reach the conclusion he did that termination
was fair.
5. I also decide that the arbitrator properly used his discretion in awarding cost
awarded 300,000/= for reasons explained above.
After considering the evidence on CMA record in light of the parties’ submissions, I have
found no basis to fault the findings made by the arbitrator in the ex-parte award, or the
arbitrator’s reasons for refusing to have it set aside. I accordingly find that this application
for revision was filed without merit. I dismiss it and confirm the award.
A.G. v. Maria Mselemu, High Court of Tanzania (Labour Division) at Dar es

Salaam, Labour Revision No. 270 of 2008 (Unreported), consolidated with A.G. v.
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Allan Mulla, High Court of Tanzania (Labour Division) at Dar es Salaam, Labour
Revision No. 271 of 2008 (Unreported).
Held:
1. That the labour laws apply to all labour disputes relating to all employees - in
public or private sectors – save for members of the armed forces.
2. That all labour disputes must first be referred to the CMA fir mediation, save for
those under the jurisdiction stipulated under section 94(1)(a) to (f) of the ELRA.
3. The arbitrator can consolidate more than one disputes and deal with them in the
same proceedings where the subject matter and the employer is the same.
4. The laws, apart from providing for formal dispute resolution machinery, encourage
resort to informal dispute settlement mechanisms.
RULING
23/6/2009 & 24/8/2009
RWEYEMAMU, J.
T he two above applications consolidated for the purpose of this ruling were filed by the
Attorney General (AG), seeking revision of the Commission for Mediation and Arbitration
(CMA) decision dated 17/10/2008 on ground that;
“1. This Honourable Court be pleased to revise the Ruling of the COMMISSION FOR
MEDIATION AND ARBITRATION AT DAR ES SALAAM dated 17th October 2008 in
RFF.CMA/KIN-ILA/2951/08, on the issue of whether the Commission has
jurisdiction to entertain the dispute where Government is a party.
2. This Honourable Court be pleased to revise the Ruling mentioned in paragraph 1

here in above on whether it was proper to join four different trade disputes in
one Ruling.” [Emphasis mine).
The impugned decision was a consolidation of four different complaints including the
above, filed before the CMA by employees against their employers, all involving the
Attorney General (AG) as one of the respondents. In each of the said complaints, the AG
raised a number of Preliminary Objections (PO’s), but one was common to all, namely;
whether the CMA has jurisdiction to entertain the dispute where the Government
is a party.
I find it necessary to commence with a brief summary of the four complaints and at the
risk of making this decision unduly long, I shall proceed to give pertinent facts in each
case of the said labour complaints forming background to the CMA decision.
1. The first complaint was filed by Marie Mselem (the employee) against her employer,
Better Regulations Unit (BRU) as 1st respondent, the Planning Commission and AG as the
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2nd and 3rd respondent respectively. It was registered as CM/DSM/KIN-ILA/2693/2008
(Labour Revision 270/2008).
A. On 19/3/2008 the employee referred a complaint vide Form No. 1 to the CMA together
with Form No. 7 – application for condonation of late referral of the dispute, against the
1stRespondent.
B. On 8/4/2008 the 1st Respondent filed a Notice of Opposition to the CMA, on

points of law, namely that;
a. The referral time (was) barred in terms of Rule 10 of the Labour Institutions
(Mediation and Arbitration) Rules, GN 64/2007.
b. The condonation application was filed without supporting affidavit contrary

to Rule 29(10) of the same rules.
c. The notice was supported by an affidavit whose grounds appear to be in

reply to the claim in that the respondent desposed that.
d. The termination was proper as per contract between the parties.
e. The complaint was filed prematurely that is, before exhausting the dispute
settlement machinery provided for in the contract of employment between
the parties.
f. The complainant had no further claim because she had already accepted
payment as per contract.
C. On 16/5/2008 the employee/applicant filed another application for condonation of

the late referral this time supported by Affidavit.
D. On 7/8/2008 the AG/3rd Respondent filed a notice of PO on ground that:
a. The application is bad in law as it contravenes section 23(2) of the Labour

Court Rules, 2007 (Jurisdiction).
b. The application was filed before the grant of condonation by the

Commission as per Rule 11 of the Labour Institutions (Mediation and
Arbitration) Rules, 2007.
c. The Application is time barred contrary to Rule 10 of the Labour

Institutions (Mediation and Arbitration) Rules, 2007.
d. The application was filed before the Commission without first exhausting
all the remedies (Clause 12 of the Employment Contract).
e. The application has been filed without the support of Affidavit as per Rule
29(4) of the Labour Institutions (Mediation and Arbitration) Rules.
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E. After the applicant filed the reply to the PO, the matter was argued by way of
written submission. On 7/10/2008, the CMA delivered the now impugned ruling,
consolidating the complaint with the other three summarized below.
F. The employment contract between the parties provided for submission to

arbitration.
2. The second complaint was filed by Allan S. Mulla against the same parties, his
employer , Better Regulations Unit (BRU) as 1st respondent, the Planning Commission
and AG as the 2nd and 3rd respondent respectively. It was registered as
CMA/DSM/KIN/ILA/2545/2008 (Labour Revision 271/2008).
A. The dispute was referred to CMA on 25/2/2008 together with Form No. 7 – for
condonation of the late referral.
B. The employer acknowledged receipt of [the] same vide their letter of 17/3/2008,
expressed their opposition and failure to file the notice of opposition early due to
closure of the CMA office on 10/3/2008.
C. On 4/4/2008, the employee filed another complaint Form No. 1, and on 9/4/2008
filed a second application for condonation – Form No. 7.
D. On 7/8/2008, the AG filed a notice of PO on grounds similar to those under 1.D

(a-e) above. Thereafter the CMA delivered its consolidated decision as already
indicated.
E. Again, the employment contract between the parties provided for

submission of disputes to arbitration.
3. The third complaint was filed by Margret William Kimambo against her employer
Ethics Secretariat, President’s Office as the 1st respondent and the AG as the 2nd
respondent in CMA/DSM/KIN-ILA/2951/2008 (Labour Revision 272/2008 – yet to be
scheduled for hearing in this court).
A. Her complaint was that she was employed on probation from 4/1/2007 to 2/1/2008
but was terminated on 31/12/2007. She presented her referral vide Form No. 1 on
27/5/2008 together with the late referral Form No. 7.
B. Thereafter. She filed an application for condonation supported by affidavit on

29/5/2008.
C. On 10/6/2008 the AG – 2nd respondent, filed a notice of PO on ground that “the

application is bad in law as it contravenes section 23(2) of the Labour Rules, 2007.”
D. That prompted the CMA decision subject matter of this application.
E. From reasons adduced in the affidavit in support of the application for later
referral, it would appear there exists between the parties, alternative internal
dispute settlement machinery which she had taken time to pursue/exhaust.
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4. The fourth complaint was filed by Benjamin Dani Kapama and 4 others, registered
as CMA/DSM/KIN-ILA/151, against the employer – the Permanent Secretary Treasury, the
Treasury and AG as 1st and 3rd respondents respectively. No application has been filed in
respect of this matter but is referred to because it forms part of the consolidated CMA
decision.
A. The employees were terminated on 29/1/2007 and filed a referral after expiry of 112
days. They also filed Form No. 7 on 25/5/2007.
B. They gave as grounds for the late referral that the condonation forms were not
published until 23.3.2007 and they were availed the same on 21/5/2007.
C. The affidavit in support o the application for condonation was filed on 31/5/2007.
D. The AG filed a Counter Affidavit on 25/6/2007 together with Notice of PO on

grounds that:
“a. The applicants failed to attach statement together with his [sic] application.
b. The affidavit is bad in law as it contains arguments.
c. The applicant did not attach letter of termination.
d. The applicant contravene [sic] Rule [sic] 10 and 29(1) of the Labour Institutions
(Mediation and Arbitration) [sic] G.N. 64 of 2007.
e. The applicant has no locus standi to represent others.”
E. Thereafter the Ag filed another PO dated 3/4/2008 on ground that:
“in view of Rule 23(2) of the Labour Court Rules, 2007 (GN No. 106/07) read together
with section 6(4) of the Government Proceedings Act, Cap 5, the Commission is not
competent to mediate the dispute against the government.”
F. The same was replied to on 27/6/2008.
G. The complainants filed a 2nd Notice of Application for condonation supported by

affidavit on 11/1/2008. The same included as a party a 4th respondent – the
Consolidated Holding Corporation.
H. That was followed by the CMA decision, part of which is quoted below.
I. Unlike the other three disputes, the employee acted for himself and on behalf of 4
others. Two, determination of the dispute will necessarily involve a decision
on whether the complainants were employees of the 1st respondent or not.
It was disclosed in the affidavit in support of the application for late referral that
the complainants were employed by the Air Tanzania Holding Corporation until
1/12/2006 when its tenure came to an end and they were henceforth transferred
together with nine others to the Treasury Registrar as civil servants.
326
5. The CMA consolidated decision was titled thus:
“THE UNITED REPUBLIC OF TANZANIA
THE COMMISSION FOR MEDIATION AND ARBITRATION
DAR ES SALAAM ZONE
THE TRADE DISPUTE NO. CMA/DSM/KIN-ILA/2997/2008
BETWEEN
ALLAN MLULA …………………………………………………………………. 1ST APPLICANT
BENJAMIN KAPAMA & 4 OTHERS……………………………………. 2ND APPLICANTS
MARIA MSELEMU………………………………………………………………3RD APPLICANT
MAGRETH KIMAMBO………………………………………………………… 4TH APPLICANT
VERSUS
BETTER REGULATION UNIT ……………………………………………………. RESPONDENT
PRESIDENT’S OFFICE,
PLANNING COMMISSION ……………………………………………………. RESPONDENT
ATTORNEY GENERAL ……………………………………………………. RESPONDENT
ETHICS COMMISSION ……………………………………………………. RESPONDENT
PRINCIPLA SECRETARY,
TREASURY ……………………………………………………. RESPONDENT
And, I proceed to quote a portion of the CMA decision relevant to the issues raised in this
application:
“Upon being joined, the Attorney General came up with points of the
preliminary objection to the effect that:
1. The applications are bad in law as they contravene rule (2) [sic] of
the Labour Court Rules of 2007;
2. Some of the applications were filed before the grant of condonation

by the commission per rule 11 of the Labour Institutions (Mediation
and Arbitration) Rules G.N. No, 64/2007;
327
3. Some of the applications are time barred contrary to rule 10 of the
Labour Institutions (Mediation and Arbitration) Rules G.N. No,
64/2007;
4. Some of the applications were filed before the commission without

first exhausting all remedies as per article 12 of the Employment of
Contract entered [into] between the parties;
5. Some of the applications were filed without the support of affidavits

per rule 29(4) of the Labour Institutions (Mediation and
Arbitration) Rules G.N. No, 64/2007.
I have found ground number one very crucial in this matter since it
goes to the roots of the jurisdiction of the commission, so it is prudent
to deal with this aspect first, the other grounds will be examined and
determined in due course.
In that regards and in relation to ground number one, all the

disputes are consolidated in terms of rule 26 of the Labour Institutions
(Mediation and Arbitration) Rules G.N. No, 64/2007.” (Emphasis mine).
It was in response to the said decision that the AG filed application for Revisions No. 270,
271, and 272 – yet to be scheduled. The respondents in the two matters filed
counter-affidavits and were represented by Mr. Living Advocate of LRK Law Chambers.
Hearing proceeded by way of written submissions.
There are two issues for decision; first, whether the Commission (CMA) has
jurisdiction to entertain the dispute where the Government as an employer is a
Party and second, whether it was proper to join four different trade disputes in one
Ruling.
I start with the second issue and wish to point out that, the CMA consolidated the
impugned decision in respect of PO one (1) only, as clearly indicated by the bolded
portion of the quoted decision. Now, as correctly pointed by the CMA arbitrator, in terms
of Rule 26 of GN 64, the arbitrator can consolidate more than one dispute and deal with
them in the same proceedings, He can do that on his own accord or following
application. In view of that, the arbitrator’s decision cannot be faulted.
Such discretionary powers however, can only be used when there is reasonable
justification for such a step. It would be reasonable to consolidate disputes for example,
where the issues in question in the different disputes are the same and would result in the
same decision such that the decision in one can be automatically applicable to the other.
328
In the present situation, the four disputes involved a number of Pos but one was common
to all, namely; whether the CMA has jurisdiction over a labour dispute, involving the
government as an employer. In so far as the consolidated ruling related to that one issue,
I find that the CMA acted properly and dismiss PO number 2.
That said, I wish to state for purpose of the record only, that I agree with counsel for the
Respondents and the CMA arbitrator that Rule 23 of the [Labour Court] Rules is meant to
govern disputes arising out of employment within the pecuniary jurisdiction of the High
Court; and Rule 23(2) covers such disputes or complaints when they are filed against the
government. I am of a firm opinion that, using conventional canons of interpretation, the
rule cannot be interpreted to mean that all labour disputes where the government is a
party must be filed in the High Court as submitted by the learned state attorney.
I believe the answer to the question whether the CMA has jurisdiction in disputes or
complaints filed against the government as an employer lies first in the Labour Laws
namely the Employment and Labour Relations Act 6/2004 (the Act) and Labour
Institutions Act, 7 of 2004 (Act 7) (collectively referred to as the Labour Laws); two,
existence of private dispute resolution machinery between the parties recognised under
the Labour Laws, or three, existence of statutory dispute resolution machinery vesting
such jurisdiction elsewhere.
In now proceed to examine PO one in light of the Labour Laws. First, under section 2 of
the Act, the Labour Laws are applicable to labour disputes relating to all employees
including those in the public service of the Government of Tanzania in Mainland
Tanzania save those listed under 2(i) to (iv) (basically members of the armed forces). And
a dispute is defined under section 4 thereof, it: (a) ‘Means any dispute concerning a
Labour matter between any employer … on the one hand and any employee … on the other
hand (and) (b) includes an alleged dispute.’
The word jurisdiction is not directly used in reference to the CMA but the same is clearly
implied under the following provisions of the Labour Laws. Under section 86 of the Act,
all disputes are supposed to be referred to the CMA, save those reserved for decision of
the Labour Court as per jurisdiction prescribed under section 94(1)(a) to (f) of the Act. It
is important to point out that under section 94(2)(a) of the Act, the court may refuse to
hear a complaint which has not been referred to the CMA for mediation under section
86. When a complaint is referred to the CMA, after mediation fails, a party to the dispute
may refer the matter to the Labour Court or Arbitrator. Clearly where the matter falls
outside pecuniary jurisdiction of the CMA, the party will initiate the complaint to the
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Labour Court. Such disputes would be “complaints other than those that are to be decided
by arbitration under the provisions of this Act” as provided under section 94(1)(d).
Further, Section 14(1) of Act 7 prescribes the functions of the CMA as to mediate or
arbitrate any dispute, required to be mediated or arbitrated under a Labour Law. By
virtue of the said provisions, the CMA is mandated/has jurisdiction in all labour matters
even those involving the government as an employer.
I am fortified on my said position by the fact that the Act contains a number of disputes
which can only be dealt with through adjudication by the Labour Court. Examples
include disputes under Part IV – decisions of the Registrar, and disputes concerning
collective bargaining unde3r Part VI of the Act. If it was the invention of the Legislature
to exclude disputes involving the Government as an employer from the machinery of
labour dispute resolution under Labour Laws, it would have stated so in clear terms as it
did for sighted examples. Instead, section 2 of the Act specifically makes that law
applicable to government employees, and goes to give a category of government
employees to whom the Labour Laws are not applicable.
I sated herein above that, when considering the issue of jurisdiction of the CMA in a
particular labour dispute, a decision may also depend on ‘two, existence of private dispute
resolution machinery between the parties recognised under the Labour Laws.’
The Labour Laws establish machinery for dispute resolution but also recognises and
encourages parties’ right to amicably agree on private dispute resolution procedures.
They can agree to submit disputes to private arbitration prescribed under section 93 of
the Act. Under section 95, the parties can agree vide collective agreements on alternative
dispute resolution procedures. The court remains with usual oversight powers. Such
agreements are given precedence in case of a dispute. A party cannot access the
machinery established under the Labour Laws including the CMA without first
exhausting the said alternatives.
I also stated that the issue of CMA’s jurisdiction may also depend on ‘three, existence of
statutory dispute resolution machinery vesting such jurisdiction elsewhere.’ While I am
aware of [the] existence of the Public Service Regulations 2003, made under section 34(1)
of the Public Service Act, 8/2002; and that they provide a procedure for terminations and
discipline, I also know that the said laws were in existence before the Labour Laws were
enacted in 2004. It is my opinion that, if it were the intention of Parliament to except
Government employees from coverage under the Labour Laws, it would have specifically
stated so under the said laws. I do recognize that for smooth operation however, it may
330
be necessary for the responsible organs to examine both laws afresh with [a] view to
harmonizing them on a number of grey areas.
The purpose of discussing avenue two and three above in this decision, is to caution that
while the CMA has jurisdiction in labour disputes in respect of all employees even when
the government is the employer, the issue whether there exists a different statutory
mandated machinery for dispute settlement; or an agreement between the parties for a
private settlement machinery in a particular dispute, and where they exist, whether the
same have been exhausted by the party making the referral would have to be resolved as
a preliminary issue. In the scheme of things, the party alleging existence of such an
alternative for a bears the burden of proof. My decision is that in this case, no such proof
was forthcoming from the Ag save its resort to Rule 23 of the Rules read together with the
Government Proceedings Act, which I have overruled.
To conclude, I find that the arbitrator’s decision was proper; the CMA does have
jurisdiction in all labour disputes irrespective of whether the Government as an employer
is a party. By powers vested in this court under Rule 55(2) of the Rules, this ruling is made
applicable to Revision 272/2008 filed in this court but not yet scheduled, and the decision
in CMA/DSM/KIN-ILA/151 (number 4 above). I have already directed when deciding PO 1
that in dealing with the four disputes subject matter of its decision, the CMA should
handle them separately. For emphasis, I repeat that order. I now order that the CMA
proceedings in respect of the four disputes be returned to it, where processing of the
disputes should proceed.
Sudi Ramadhani & 67 Others v. Simba Plastic Co. Ltd., High Court of Tanzania
(Labour Division) at Dar es Salaam, Application No. 38 of 2008 (unreported)
Held:
1. That it is the parties, not the CMA or its director, who can refer a failed mediation
to the Labour Court.
2. That the Director of the CMA has power to refer a matter to the Labour Court
under section 18(6) of the LIA only where it is in public interest to do so; whereby
he or she must show the extent of such public interest.
ORDER
25/10/2009
331
MOSHI, J.
The complaint was due for hearing following a non-settlement Order in terms of Rule
10(2) and (4) of the Labour Court Rules, GN No. 106 of 2007. However upon perusing
through the Commission for Mediation and Arbitration (CMA) record and this court
record; I noted that the dispute is not properly before this court. I it is unfortunate that
the issue was not raised in the non settlement order. This finding is based on the
following reasons:-
(i) The matter was referred to this court by a director for Commission for
Mediation and Arbitration though his letter which was acknowledged by this
court on 13/8/2008. Among other things the letter states thus:-
“I have the honour to refer the above dispute which has been failed
[sic] to be mediated under S. 86 of the Employment and Labour
Relations Act, 2004 and that the amount claimed is not below the
pecuniary jurisdiction of the High Court as provided under S. 88 of
the Employment and Labour Relations Act, 2004 as amended by Act
No. 8 2006. Following the above legal reasons, I have the honour to
refer the dispute to you for further action.” [the underlining is mine,
for easy of reference.]
It is wrong for the director to refer the complaint to court. According to S.

86(7)(b)(ii) of Employment and Labour Relations Act, it was one of the parties
who was supposed to refer the dispute to the Labour Court. See the case of
Nicodemes Kajungu & Others v. Bulyankulu Gold Mine (T) Ltd., Court of
Appeal, Civil Appeal No. 110 of 2008. In the cited case it was held, among other
things, that:-
“The terms of section 86(7)(b)(ii) are clear and unambiguous that it

is not the director of CMA, but the parties who may refer a
complaint to the Labour Court.”
(ii) The complainants brought the complaint or lodged the complaint on

19/8/2008. The statement of complaint reads that, it is brought under S. 18(6)
of the Labour Institutions Act. S. 18(6) of the Labour Institutions Act gives
power to the director of CMA to refer any dispute to the Labour Court for its
decision in the public interest. The section reads thus:-
Notwithstanding any provisions in this Act, the Director may refer

any dispute referred to the Commission to the Labour Court for its
decision if it is in the public interest to do so.
As known above the complaint statement was filed after the matter had been referred by
the Director. Even if we consider that it was referred in the public interest, the director
had a duty to show that there was a public interest involved, but according to him, he
referred it under S. 86 of the Employment and Labour Relations Act.
332
It is not for the party to show that there was a public interest involved. Section 18(6) of
the Labour Institutions Act, 2004, as said above, gives powers to Directors. The parties
ought to have acted in accordance with section 86(7)(b)(ii) of the Employment and
Labour Relations Act, 2004.
For the aforesaid reasons, I find that this court is not seized with jurisdiction to entertain
a matter which is referred to it by the Director of [the] Commission for Mediation and
Arbitration under section 86(7)(b)(ii) of the Employment and Labour Relations Act, 2004.
The Complaint is dismissed for want of jurisdiction.
The parties are at liberty to take appropriate action according to the law.
M/S NOBLE MOTORS LIMITED V. AVELINE ITATIR

Digest
Brief Facts
Held:
1. That in law, terminating an employee without giving him or her the right to be
heard amounts to procedurally unfair termination.
333
2. That while the CMA has powers under rule 20 of the Labour Institutions Act,
7/2004, to summon witnesses for questioning on any issue which may assist it to
resolve a dispute before it, these powers are not meant to resolve a dispute before
it, these powers are not meant to compel the CMA to prosecute cases on behalf of
parties.
3. That the duty to call witness lies with the parties as clearly stipulated under the
Labour Institutions (Mediation and Arbitration) Rules, GN 64/2007, read together
with the Labour Institutions (Mediation and Arbitration) Guidelines, GN 67/2007.
4. That the burden to prove that termination was fair under the Act is that of the
employer.
5. That there is difficult in striking a balance between an employer’s prerogative to
manage and maintain workplace discipline including the right not to retain an
employee in who trust has been lost vital for economic efficiency; and the right of
an employee to a presumption of innocence-proof of a misconduct and the right
6. That one of the policy objective of the labour laws spelled out under section 3 of
the Employment and Labour Relations Act (ELRA) is to ensure observance of fair
labour practices in the workplace; whereby “fair practices” incorporate observance
of basic human right principles among them the presumption of innocence and
the right not to be punished unheard; and, without that requirement, there would
be nothing to prevent employers to terminate employees even on grounds which
are inherently unfair as spelled out under section 37(3) of the ELRA.
7. That this policy objective was a deliberate choice on the part of the legislature
representing a fundamental shift in ideology from the days of freedom of contract
and the right of employers to hire and fire, to incorporation of values of fairness in
employments relationships.
8. That after the arbitrator finds that the employer’s action to terminate an employee
amounts to unfair termination in terms of the labour laws; his/her mandate is to
order remedies prescribed by law, which are; reinstatement, reengagement, or
compensation under section 40(a), (b) or (c) or using discretion order
compensation under section 40(2) or the ELRA. The employer may then reinstate
or pay compensation of 12 months’ salary as per section 40(3) of the ELRA.
9. That the remedies an arbitrator may award do not extend to payment of salaries
until the criminal case is finalized (no matter how long it takes), that is so even
where termination was effected against an employee facing criminal proceedings
contrary to section 37(5) of the ELRA.
10. That once an order is made under Section 40(a), (b) or (c) of the ELRA, the
employee is also entitled to “wages due and other benefits from the date of the
unfair termination to the date of final payment”.
11. That in this case, the respondents’ termination was to that extent both
substantively and procedurally unfair in terms of section 37(1) and (2) of the ELRA.
Cases Referred to:
334
Chama cha Walimu Tanzania v AG Court of Appeal of Tanzania at Dar es Salaam, Civil
Nicodemes Kajungu & 1374 Others v Bulyankulu Gold Mine (T) Ltd. Court of Appeal of Tanzania at
Dar es Salaam, Civil Appeal No. 110 of 2008 (unreported).
Mr. Matto (Advocate), for the Applicants.
RULING
RWEYEMAMU, J: The applicant/employer was aggrieved by the decision of the
Commission for Mediation and Arbitration (CMA) award issued on 16/6/2009 in the
presence of parties. The award was in respect of a dispute of unfair termination referred
by the respondent/employee. It was undisputed that the contract had commenced on
5/11/2007 and was terminated on 31-5-2008 after 6 months and 26 days.
The key issue at the CMA was whether or not the parties' had an employment
relationship or the employee was a commission agent. The CMA disbelieved the
applicant's claim and found it as a fact that there was an employment relationship and
the employee was being paid a monthly salary of shs. 400,900/=; that the applicant had
failed to prove otherwise.
The fact adduced by the respondents’ were that ………[missing information. Read
the hard copy of this Ruling] remained in custody and were finally granted bail. Soon
thereafter on 22/7/2007, they reported for work at the applicant’s premises but were
denied access, after futile attempts for 2 weeks and failure by the applicant to serve them
with termination letters, they decided to refer the matter as a labour dispute to the CMA.
Their claim was that the applicant had stopped paying their salaries from the time they
were arrested by the police on allegations of stealing from the applicant.
In turn, the applicant’s defense was that an internal check in their premises
between 18/06 – 19/7/2007 revealed fuel shortage and the matter was reported to police;
that in the meantime the police had intercepted a fuel vehicle on 18/6/2007; that
following report of the theft and verification from the sample, the police concluded that
the intercepted fuel was stolen from the applicant, they were instructed to take the
respondents to the police which they did on the 13th; and decided to terminate the
respondents on 13th, before they were charged in court on 17th. The applicant’s
arguments at the CMA and in this court were that:
 It was not in breach of the labour laws because the respondents were
terminated before they were charged, as such, section 37[5] of the
Employment and Labour Relations Act [the Act], 6/2004 could not be
brought into play.
 It did not initiate the respondent’s arrest that the apprehended based on
police investigation.
 It was justified to terminate the respondents on 13/7/2007 because it had
lost confidence in them.
In its award issued on 27/4/2009, the CMA decided that:
4. On the available evidence, the applicant investigated the respondents and based
335
on that enquiry, a compliant was lodged to the police following which, an official
of the applicant had the respondents arrested by the police.
5. It is undisputed that the respondents were arrested on 13/7/2007, remanded
charged in court on 17/7/2007 and released on bail on 23/7/2007. The applicant’s
claim that the respondents were served with termination letters was not credible
at the alleged period, they were in custody. (I find it useful to point out at this
stage that it is not without significance that the respondents were terminated the
day they were arrested).
6. Even if the respondents had been given termination letter, their termination
would still unlawful because disciplinary action was taken without giving the
respondents the right to be heard which in law amount to procedurally unfair
termination. The CMA then granted the following relief and I quote:
“TUZO: Baada ya maelezo ya walalamikaji, ushahidi wao pamoja na
ufafanuzi uliotolewa na Sheria tajwa, inaamua kuwa walalamikaji hawa
watatu wataendelea kutambulika kama wafanyakazi wa mlalamikiwa hadi
hapo kesi itakapoisha. Kwa muda wote wa kesi walalamikaji watastahili
kulipwa mishahara yao na marupurupu mengineyo waliyokuwa wanapata
kama yapo kwa mujibu wa kifungu cha 27[5] cha kanuni [employment and
labour relations [code of good practice]], tangazo la serikali Na. 42 ya tarehe
16/2/2007. Uamuzi huu utekelezwe mara moja.”
Loosely translated the decision was that the respondents remain employees of the
applicant entitled to salary and other employment benefits until the case is finalized.
Aggrieved, the applicant filed this application for revision on among other grounds that:
“ 10. That the Commission awarded the Respondents among other things 16
months’ salaries plus salaries until criminal case is finalized by the court
despite the fact that the case was not opened by the Applicant.
11. That the Applicant was misquoted by the Hon. Arbitrator that the
instruction as to sent the Respondents to Police was coming from the
employer whereas the fact is “instruction to sent the Respondents to Police
Station came from Police authority, who asked the management to
facilitate the sending of the Respondents who were on duty on the material
day of offence. “it is believed that this misunderstanding by the CMA led
the Arbitrator to give unjust award.”
12. That the Applicant being dissatisfied with the award against him applied
for Revision accompanied by the Affidavit and apply for Set Aside the whole
award.
13. That improper manner through which the award was obtained without
having valid evidence that the Applicant report the case to police instead of
police authority itself, has misled the commission in arriving an unjust end.
The CMA couldn’t get the police officer to verify between the two; police
authority or the applicant had reported the matter to police station.
At the hearing, both sides were represented by counsel, Mr. El-Maamry and Mr.
Luguru Advocates for the Applicant and respondents respectively. The matter proceeded
partly orally and partly by written submission.
Much of the submission of counsel for the applicant focused on faulting the
arbitrator for deciding on the evidence; that the respondents were terminated before they
336
were charged therefore section 37[5] of the Act was not contravened; concluding that the
arrest of the respondents were prompted by the applicants instead of finding that it was
based on the police’s own investigations, that the CMA should have called the police
as witnesses to verify what actually happened; that it should have found that the
applicant acted properly in terminating the respondents in who it had lost trust.
Counsel for the respondents submitted in response that; the respondents freedom
of movement was curtailed when they were arrested as such the machinery of criminal
proceedings had commenced; that lawful termination under section 37[2] of the Act has
to be for a valid and fair reason, and it has to follow a fair procedure. That the objective is
to protect employees’ right not to be condemned unheard; that termination was illegal
not only because it happened during pendency of a criminal charge but because there was
no proof on the part of the applicant that termination was for a valid reason or followed a
fair procedure.
The parties were requested to make written submission on the issue of whether
the term; being charge with a criminal offence includes being arrested or refers to only
charging the employee in court; and whether the section in question refers to a criminal
charge for a misconduct relation to the employer’s business or any other criminal charge.
None of them submitted on the letter, but I have noted and appreciated their
submissions on the first issue.
I have carefully considered the arbitrator’s reasoning in the award and the parties’
arguments and make the following observations and decision.
1. First, I have found no rational basis to fault the arbitrator’s decision on fact as per
number [1] above. The fact as admitted by the applicant, including the proximity
in time of internal audit, report of the theft and arrest of the respondents, give a
distinct impression to an objective person of the applicant’s involvement, as
concluded by the arbitrator.
Second, Counsel for the applicant submitted that the CMA should have
summoned the police witness to ascertain who made the report to them. With all
due respect, I do not accept counsel’s reasoning. While the CMA has powers under
rule 20 of the Labour Institutions Act, 7/2004, to summon witnesses for
questioning on any issue which may assist it to resolve a dispute before it, these
powers are not meant to resolve a dispute before it, these powers are not meant to
compel the CMA to prosecute cases on behalf of parties. The duty to call such
witness lies with the parties as clearly stipulated under the Labour Institutions
[Mediation and Arbitration ] Rules GN 64/2007 read together with the Labour
Institutions [Mediation and Arbitration Guidelines] GN 67/2007; and the burden to
prove that termination was fair under the Act is that of the employer.
Finally, I believe to reach a decision on the facts of this case, it is not
material whether the respondents’ arrest was initiated by the applicant or not. The
critical issue, and which is undisputed is that the applicant terminated the
respondents’ employment without proof of misconduct on their part, and without
giving them a right to be heard. I thus conclude that the respondents’ termination
was to that extent both substantively and procedurally unfair in terms of section
37[1 and 2] of the Act.
Admittedly, this case partly raises an issue of concern or dilemma regarding proper
procedures to be followed in terminating an employee whose alleged actions amount to
337
both a disciplinary misconduct and a criminal offence and/or in whom the employer has
lost trust. The issue is of concern because of the difficult in striking a balance between an
employer’s prerogative to manage and maintain workplace discipline including the right
not to retain an employee in who trust has been lost vital for economic efficiency; and the
right of an employee to a presumption of innocence-proof of a misconduct and the right
The requirement for both substantive and procedural fairness in employment
termination proceedings are in pursuance of one of the policy objective of the labour laws
spelled out under section 3 of the Act which is to ensure observance of fair labour
practices in the workplace. Fair practices incorporate observance of basic human right
principles among them the presumption of innocence and the right not to be punished
unheard. And without that requirement, there would be nothing to prevent employers to
terminate employees even on grounds which are inherently unfair as spelled out under
section 37[3] of the Act.
That policy objective was in my opinion, a deliberate choice on the
part of the legislature representing a fundamental shift in ideology from the days of
freedom of contract and the right of employers to hire and fire, to incorporation of values
of fairness in employments relationships.
In my understanding of the law, the dilemma is more apparent than real
because where an employee’s alleged actions amount to both disciplinary
misconduct and a criminal offence, the employer has a choice to conduct
disciplinary proceedings, either before criminal proceedings initiate or after they
are completed. The choice, like any other business choice, is that of the employer,
to be made after weighing circumstances of each case, and the risks pertaining to
the choice made. The applicant in this case made a choice to terminate the
respondents unfairly, and has to face the legal consequences of that choice.
2. That completed, the next for decision is whether the arbitrator made a legally
proper conclusion on the facts that one, the respondents were in continuous
employment therefore the applicant should pay salaries from the time of
termination to the date of the award, and two, that the respondents were legally
entitled to be paid salaries until the criminal case against them was concluded.
In my considered opinion, after the arbitrator finds that the employer’s
action amount to unfair termination in terms of the law; his/her mandate is to
order remedies prescribed by law, which are; reinstatement, reengagement, or
compensation under section 40[a] [b] or [c] or using discretion order
compensation under section 40[2] or the Act. The employer may then reinstate or
pay compensation of 12 months salary as per section 40[3] of the Act.
Again, it is my opinion that the remedies an arbitrator may award do not
extend to payment of salaries until the criminal case is finalized [no matter how
long it takes], that is so even where termination was effected against an employee
facing criminal proceedings contrary to section 37[5] of the Act. In view of my said
position, I find that the arbitrator’s decision to award a remedy that “Kwa muda
wote wa kesi walalamikaji watastahi kulipwa mishahara yao na marupurupu
mengine waliyokuwa wanapata” to have been an improper exercise of its
jurisdiction and quash it.
I should make it clear however that once an order is made under section 40[a] [b]
338
or [c], the employee is also entitled to “wages due and other benefits from the date of the
unfair termination to the date of final payment”. Thus after a finding of unfair termination,
the conclusion by the arbitrator that the respondents were in continuous employment
was proper.
In the result, this application partly fails in that; I confirm the arbitrator’s decision
that, the applicant’s action of to terminating the respondents’ employment on 13/7/2007
amounted to unfair termination.
In view of that, I order the applicant to:
 Pay each of the respondents 12 months salaries as compensation under section
40[c] of the Act;
 Pay each of the respondents’ wages due and other benefits from the date of the
unfair termination to the date of final payments.
And the application partly succeeds in that I quash and set aside the arbitrator’s order
that the respondents should be paid that “Kwa muda wote wa kesi walalamikaji watastahi
kulipwa mishahara yao na marupurupu mengine waliyokuwa wanapata”. It is so ordered.
R.M. RWEYEMAMU
JUDGE
DATE: 20/8/2010
CORAM: HON. R. M. RWEYEMAMU
APPLICANT:
FOR APPLICANT: Mr. El Maamry Advocate for
RESPONDENT: Mr. Luguwa Advocate for
FOR RESPONDENT:
COURT: This matter is for ruling
Ruling delivered in presence of the above parties this 20/8/2010.
R.M. RWEYEMAMU
JUDGE
20/8/2010
Copy to:
M.J.J. Luguru
Sido Small Business House,
3rd Floor Room 32 B,
Bibi Titi Mohamed Street,
DAR ES SALAAM.
Alhaj Said H. El-Maamry,
Advocates, NIC Life House,
6th Floor Wing “B”,
Sokoine Drive,
P.O. Box 5201,
DAR ES SALAAM.
Not publishable !!!
GENERAL MANAGER TANSCAN CO. LTD. V.

339
ROBERT GUYANA & 2 OTHERS
(Original CMA/MTW/F1/65/08)
Digest
Brief Facts
Held:
That where employees are laid off for reason that the employer was not operating, such
action does not amount to termination as the employees are still identified as employees.
Therefore, such employees are not entitled to terminal benefits as per Rule 27 (1) (3) and
(4) of GN 42 of 16/2/2007.
No Case Referred to
Joseph Bernard Banyikila (representative of the Applicant).
Mr. Haule for respondents.
RULING
KALOMBOLA, J.: The applicant vide representative Joseph Bernard Banyikila filed
application for the following orders:-
1. Revision of the decision of the Commission for Mediation and

Arbitration REF. NO. CMA/MZ/198/2009 dated 2/7/2009.
2. Any other relief the Honourable Court will deem fit to grant.
In his oral submission at the hearing, he said, the arbitrator did not consider what
contained in applicant's complaint whereby the employees’ assertion was that the
respondent had obligation to pay them terminal benefits. The applicants were terminated
340
without being paid terminal benefits.
In this revision, therefore, the applicants challenge arbitrator’s decision which diverted to
solve dispute brought forward i.e. under whom obligation to pay terminal benefits lies,
the Government or Tanscan? Instead, the Arbitrator decided applicants to be paid arrears
of wages issue which was not a dispute.
It is their submission; although applicant was ordered to pay arrear of wages to

respondents it is an order which can not be executed because applicant to the present has
not been in operation as it awaits for divestiture process to be completed. Moreover
government have seized to allocate trees, as a result, all fifty three employees are lying
without work and not paid. In all, he prays his affidavit in support of application be
adopted.
In response, Mr. Haule for respondents submits, applicant is a limited liability company
which can sue and be sued. He referred to Section 4 of Employment and Labour Relations
Act, which gives definition on who is employer and employee. He supports decision by
CMA as respondents were employed by applicant and were terminated thus they are
entitled to full wages as per Rule 27 (1) (3) and (4) of GN No. 42 of 16/2/2007. Oftenly
applicant issued letters of termination then reinstating them without any payment. He
asks this Court to give weight to Counter affidavit deponed and execution of decision by
CMA.
In rejoinder, applicant insisted to his submission and suggests execution should await
completion of divestiture process.
Question to ask is whether the respondents were terminated. Respondent's

representative in submission in Court said respondents were terminated. But the record
before CMA is clear together with letters in file, that the respondents were not
terminated by Applicant, but were laid off. On page 3 of UAMUZI by Mwamuzi M. S.
Mmbaga quoted a part in letters tendered by respondents. The letters were writ--en by
applicant to each of respondents that part says:-
Kwa kuwa mchakato wa divestiture ya Kampuni ya Tanscan Timber Co. Ltd bado haujafikia
tamati, itakuwa si sahihi kukuachisha kazi kwa sasa hadi mchakato mzima wa uuzaji wa
hisa za kampuni utakapoidhinishwa na Serikali ambayo itakulipa mafao yako wakati huo.
Hivyo barua yangu ya kukuachisha kazi pamoja na yote yaliyoandikwa ndani yake
yanafutwa.
In view of the above question posed is answered that, respondents were not terminated
but laid off for reason that the applicant company was not operating. Respondents
341
are still identified as applicant employees. Therefore respondents are not entitled to
terminal benefits as per Rule 27 (1) (3) and (4) of GN 42 of 16/2/2007.
Moreover on the question, it is my view the arbitrator exercised his discretion prudently
and judiciously. The award was within the permissible limits and was revealed from
collected evidence before her.
I do not see reason to vary the award. In all, the application for revision is dismissed.
Ordered accordingly.
H. Kalombola
JUDGE
342

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TANZANIA

LABOUR LAW REPORTS

High Court of Tanzania (Labour Division) at Dar es Salaam (Sambo, J.)

Labour Application No. 6 of 2006

Date of Ruling: 21 February 2008

The applicant/employee was terminated by the respondent from employment in 2005

Suit struck off.

Mr. K.M. Fungamtama (for Applicant)

RULING ON PRELIMINARY OBJECTION

Suit struck off.

ALHAMDU NDIMKANWA & 12 OTHERS V. DIRECTOR, VICK FISH MWANZA LTD

High Court of Tanzania (Labour Division) at Mwanza (Rweyemamu, J.)

Revision No. 196 of 2009

Date of Ruling: 24 March 2010

Preliminary objection dismissed

Two applicants ((for 11 Applicants)

Mr. Masungwa, Human Resource Manager (for Respondent).

RULING ON PRELIMINARY OBJECTION

The applicant/employees were aggrieved by the Commission for Mediation and

Section 91 (1) (a) of the Act categorically states that:

Preliminary objection dismissed

ALLY MOHAMED KOMBO v. SECURITY GROUP LTD RESPONDENT

High Court of Tanzania (Labour Division) at Dar es Salaam (Rweyemamu, J.)

Revision No. 258 of 2008

Date of Ruling: 9 August 2010

Powers of the Labour Court to determine revision – awarded granted by Commission

Application struck out, but applicant given time

to file a proper application for revision.

Both parties appearing in person.

The respondent filed a counter affidavit on 10/12/2008, subsequently on 17/11/2009, the

Although it is indicated in the chamber summons that the application is supported by

Application struck out, but applicant given time

to file a proper application for revision.

ANDREA CHIZA V. PANGAWE HIGHLAND PLANTATION LTD.

High Court of Tanzania (Labour Division) at Morogoro (Rweyemamu, J.)

Labour Revision No. 143 of 2009

Date of Ruling: 12 July 2011

1. That the arbitrator, in deciding the issue of Condonation, is obliged to hear

2. That it is a material irregularity for the arbitrator/mediator to receive and evaluate

CMA proceedings, decision and order quashed; arbitration to be conducted afresh.

Mr. Eliabu Vahage from TPAWU (for Applicant)

(iii) Kwamba, baada ya mawasilisho hapo juu, hapakuwepo na pingamizi la awali

After considering all the above, my decision is as follows:-

CMA proceedings, decision and order quashed; arbitration to be conducted afresh.

BENEDICTUS J. MSIMANGIRA V. BODI YA MAMLAKA YA SHULE ZA SEKONDARI

Revision No. 20 of 2008

Date of Ruling: 27 November 2008

(Original Complaint No MZA/CMA/304/2007/8)

1. That the jurisdiction to revise an arbitrator's award is given to this court by

Order for extension of time to file a proper application granted.

RWEYEMAMU, J.: The applicant Benedictus Msimangira referred a dispute to the

The right procedure is as follows: Jurisdiction to revise an arbitrator's award is given to

Order for extension of time to file a proper application granted.

BENEDICTUS J. MSIMANGIRA V. BODI YA MAMLAKA YA SHULE ZA SEKONDARI

High Court of Tanzania (Labour Division) at Dar es Salaam (Rweyemamu, J.)

Revision No. 20 of 2008

Date of Ruling: 30 September 2009

(Original Complaint No MZA/CMA/304/2007/8)

Parties appearing in person.

BUZWAGI PROJECT V. ANTONY LAMECK

High Court of Tanzania (Labour Division) at Mwanza (Rweyemamu, J.)

Revision No. 297 of 2008

Date of Ruling: 17 March 2010