Labour Cases – Mandela's Law library

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Affidavit – failure to show whether attesting officer knew the deponent – whether affidavit is defective.

Appeal – grounds of appeal to the Court raise matters of fact – appellant wants the grounds to remain in the memorandum of appeal so that, in the course of hearing the appeal, the Court invokes its revisional jurisdiction to consider them

Appeal – leave to appeal to the Court of Appeal of Tanzania – ruling which gave rise to the impugned decision of the Labour Court arose from execution proceeding preferred under 0. XXI r.9 and 10 of the CPC – whether the appeal though originating from the Labour Court requires leave

Appeal – limitation of time – failure to file an appeal within 60 days – whether appeal was competent.

Appeal – record of appeal – failure to serve the other party copies of letter to the registrar applying for copies of proceedings – whether fatal.

Appeal – records of appeal – incomplete record of appeal – whether appellant may be allowed to file a supplementary record of appeal under the spirit of overriding objective principle

Appeal – supplementary record of appeal – supplementary record of appeal which was supposed to contain an omitted document which is the evidence of service of the letter to the respondent not filed contrary to the court’s order – whether the omission vitiated the appeal.

Appeals – Appeals from decisions of the High Court, Labour Division to the Court of Appeal of Tanzania – Appeals should be on a point of law only – What amounts to a point of law as opposed to a matter of fact – Section 57 of the Labour Institutions Act, Cap 300

Application for extension of time – expeditious resolution of disputes –whether expeditious resolution of the disputes should prevail over compliance with the timelines for referring labour disputes before the CMA

Application for extension of time – Applicant went missing for four years after termination but alleges technical delays in filing the application for condonation – whether the delay was inordinate and whether the appellant failed to assign sufficient grounds for extension of time – Rule 10(2) of the Labour Institutions (Mediation and Arbitration) Rules, 2007

Application for extension of time – Application for extension of time to file appeal out of the statutory time – Applicants allege that the proceedings, the subject of appeal were tainted with illegalities and that the said proceedings also contained topographical errors which could have made the appeal defective – Whether sufficient cause was shown.

Application for extension of time – discretionary powers of the Court – Scope and circumstances in which powers can be invoked by the Court.

Application for extension of time – Ground for delay being failure to be supplied with the necessary documents in time and being supplied with confusing two copies of decrees bearing different dates and different amounts – High Court found the same to be sufficient grounds and granted the extension prayed for – Whether the two grounds amounted to “sufficient cause.”

Application for extension of time – Initially the applicant fell sick and attended treatment at two hospitals – for eight years the applicant was in the corridors of the High Court at Mwanza in an unsuccessful bid for extension of time within which to lodge a Notice of Appeal and apply for leave to appeal to this Court – whether there is a good cause for condonation of the delay

Application for extension of time – poof of good cause – applicant failed to explain away the delay of about 66 days – whether applicant failed to show good cause for the delay

Application for Extension of time – sickness – whether the High Court exercised its discretion properly in quashing the decision of the CMA and condoning the delay on the ground of the respondent’s sickness.

Application for extension of time – technical delay – it’s meaning thereto.

Appeals – Court of Appeal – whether appeals to the court of appeal should lie on point of law only – section 57 of the Labour Institutions Act, Cap 300.

Application for extension of time to re-hear and determine on merit and the satisfaction of the parties in the failed previous application for review – whether the Court can review its own decision

Application for review – Judgment allegedly based on a manifest error on the face of the record resulting in the miscarriage of justice – Whether the disposition of the impugned appeal by the Court was riddled with a manifest error

Application for Revision – Appellant moves the Court to exercise its powers of revision – Whether appellant demonstrated any circumstances special or otherwise, to move the Court to exercise its powers of revision as an alternative to appellate jurisdiction.

Application for restoration of arbitral proceedings – Whether the Labour Court did not exercise its discretion judiciously for not basing its decision on existence or non-existence of sufficient cause

– whether appellant’s submission is tenable

ARBITRATOR IS CREATURE OF ARBITRATION AGREEMENT

A Preliminary Objection Should Not Contain Law and Facts

AAPOINTMENT IN SUBSIDIARY COMPANIES, SUBSDIARY COMPANY ONLY RECCOMMENDS APPOINTMENT BUT ACTUAL APPOINTMENT IS MADE BY THE HOLDING CORPORATION, WHETHER CONTRACT OF EMPLOYMENT WAS MADE WITH SUBSDIARY COMPANY

ABOLITION OF POST BY EMPLOYER, LEGAL BASIS THEREOF

ABOLITION OF POST EMPLOYER, WHETHER SUCH ABOLITION TERMINATES CONTRACT OF SERVE WITH THE INCUMBENT OF THE POST ABOLISHED

account quick report, end of the year final financial statement

Administrator Duty to File Inventory and Accounts, Proof of Bequeath, Sale of the Property by the Administrator, He Who Alleges Must Prove, MADENI ALLY

ALTERNATIVE AND EQUALLY EFFECTIVE FORUM IS AVAILABLE TO HANDLE EMPLOYEES CLAIMS

An Affidavit Which Mentions Another Person, Account for Each Day of Delay, Extension of Time Upon Good Cause Being Shown,

An Employee Must Be Served with Formal Charge, Prohibition from Taking Disciplinary Action Against an Employee Charged with Criminal Offence

AN EMPLOYEE WHO DECLINES TO BE RE-INSTATED OR RE-ENGAGED SHOULD NOT BE PENALIZED

An Employee Who Has Worked for Less Than Six Months, Cannot Sue for Unfair Termination

Any Labour Dispute Arising from the Repealed Laws Must Be Dealt with According to the Repealed Laws, Two Types of Labour Disputes

APPLICATION OF CPC IN LABOUR MATTERS

ASSESEMENT OF TEWRMINAL BENEFITS

BURDEN OF PROOF IN UNFAIR TERMINATION PROCEEDINGS

Burden of proof – Employee charged with allegations of gross dishonest by the employer – Whether criminal proceedings must be instituted and charges proved before termination of the employee’s employment

Burden of proof in labour cases – Appellant alleges both substantive and procedural unfair termination – High Court’s decision only based upon extraneous matters namely the opening statements, made and lodged by the respondent – Whether respondent discharged the burden of proof burden – Section 39 of Employment and Labor Relations Act [Cap 366 R.E. 2019]

Certificate of delay – Certificate of Delay excludes time from a date even before the Registrar received the letter applying for documents for appeal purposes – Whether the defect does not go to the root of the matter.

Certificate of delay – Appellant applied to be supplied with documents in respect of two different matters, to wit, Labour Dispute No. 1 of 2014 and Misc. Labour Application No. 6 of 2018 to enable him to prepare the record of appeal – Certificate of delay only referred to Misc. Labour Application No. 6 of 2018, a matter not the subject of appeal before the Court – Whether defect is curable under the overriding principle – Whether the appeal was time barred.

Certiorari – application for an order of certiorari – whether once it was accepted that the purported decision was no decision at all in law, the High Court should have issued the order of certiorari to quash and set aside that purported decision which had no effect of reversing the decision of the Conciliation Board.

Compensation – subsistence allowance – the manner in which it should be calculated.

Confidentiality – High Court relies on statements made during mediation as a basis for its decision holding that there was proof that the appellant had engaged himself in politics in contravention of the employment manual – Whether it was irregular for the court to rely on mediation proceedings.

Constructive Termination – employer allegedly raised allegations of fraud against respondent and went on to terminate respondent’s monthly salary and changed the management system of employment – Whether employer created intolerable conditions amounting to constructive termination.

Court practice – administration of oath or affirmation to witness – consequences for failure to administer the same.

Court practice – appeal – conditions under which an appeal can be rejected.

Court practice – Applicant makes application to the Court to strike out Notice of appeal from the decision of the High Court of Tanzania (Labour Division) – Applicant also filed a Civil Reference in the Court challenging the decision of the Single Justice granting the respondent extension of time to file notice of appeal – Whether the making of the two applications amounts to abuse of court process

Court practice – dismissal of application for being time barred while the same had been filed within the time ordered by the same court – whether the advocate has a duty to assist the court.

Court practice – exercise of discretionary power – circumstances upon which an appellate court can interfere with the exercise of discretion of an inferior court or tribunal

Court practice – order of the court – failure to comply with the order of the court to lodge a document or documents – consequences thereto.

Court practice – record of proceedings – whether the arbitrator is required to append a signature at the end of record of each witness.

COMPRNSATION FROM SUBSTASIVELY TERMINATION

CMA HAS NO JURISDICTION TO ADJUDICATE DISPUTES INVOVING PUBLIC SERVANTS

CMA IS KEPT A BAY FROM ENTERTAINING LABOUR DISPUTES INVOVING PUBLIC SERVANTS

CONTENTS OF AFFIDAVIT-AFFIDAVIT IN LABOUR MATTERS-AFFIDAVIT SHOULD NOT CONTAIN EXTRANEOUS MATTERS

CAN THE MEDIATOR ARBITRATE THE DISPUTE WHEN THE PARTY FAILS TO APPEAR

CIRCUMSTANCES UPON WHICH AN APPELLATE COURT CAN INTERFERE WITH THE EXERCISE OF DISCREATION OF AN INFERIOR COURT OR TRIBUNAL

CMA EX-PARTE AWARD REVISION

CMA Has No Jurisdiction Over Matters Relating to Public Servants, Tanzania Posts Corporation is a Public Service Institution

CMA HAS NO JURISDICTION TO ADJUDICATE DISPUTES INVLOVING PUBLIC SERVANTS

CMA IS A COURT

CMA IS KEPT A BAY FROM ENTERTAINING LABOUR DISPUTESINVLOVING PUBLIC SERVANTS

Compensation for Unfair Termination of Employment, Remedies for the Unfair Termination, Interference with the Discretion of the Inferior Court,

COMPENSATION FOR UNFAIR TERMINATION OR EMPLOYMENT

CONTRACT OF EMPLOYEMENT, LETTER OF OFFER SETTING CONDITIONS TO BE FULFIFIED BY EMPLOYEE, CONDITIONS NOT FILFILLED, WHETHER THERE WAS A VALID AND ENFORCEABLE CONTRACT OF EMPLOYMENT

Defective application – Application for revision – Whether the application was fatally defective for want of proper enabling provision of the law to move the court.

Disciplinary action – employee charged in a court of law but terminated for misconduct committed during suspension – whether termination was substantively fair

Disciplinary hearing – failure to issue a report as vital evidence to the employee during disciplinary hearing – whether amounts to violation of right to be heard

Disciplinary hearing – formal charge – failure to serve the same – whether amounts to violation of the law.

Discrimination – termination on ground of discrimination – factors of discrimination – section 7(4) ELRA, Cap 360

DUTY OF ARBITRATOR UPON FINDING TERMINATION OF UNFAIR

DENIAL TO BE REINSTATED

DUTY TO CONSIDER POSIBILITY OF SECURING ALTERNATIVE WORK

DEFINITION OF ADR

DIFINITION OF THE TERM RETREMENT

DIFINITION OF TERM COMMISSION

DEFINITION OF PUBLIC SERVICE OFFICE

DELEGATION OF POWERS OF THE LABOUR COMMISSIONER

DAMAGES FOR TORTS IN LABOUR CASES

DISCRETION POWER OF AWARDING COMPESATION FOR TERMINATION

DEFAMATION=MEANING OF PROCEEDING, DEFAMATION UNDER LABOUR LAWS AND NEWSPAPERS ACT

DAMAGES ARISING OUT OF TERMINATION OF CONTRACT OF EMPLOYMENT, WHETHER PAYABLE BY A SUBSDIARY COMPANY WITH WHICH EMPLOYEE WORKED

DEFINITION OF THE TERM COMMISSION

Discrimination at Place of Work, the Right to Worship, Labour Appeals to The Court of Appeal Must Be On Points of Law Only,

DISCRIMINATION AT PLACE OF WORK

DISHONESTY IS A MISCONDUCT WHICH IS A SERIOUS DISPLINARY OFFENCE WHICH ATTRACTS TERMINATION

DUTY OF THE JUDICATURE

Duty to Follow Up Documents from The Registrar for Appeal Purposes

EMPLOYEE IS ENTITLED TO DAILY SUBSTANCE ALLOWANCE FROM THE TERMINATION DATE TO REPATRIATION DATE

EMPLOYMENT OF A DIRECTOR OR SENIOR MEMBER OF MANAGEMENT OF A BANK OR FINANCIAL INSTITUTION

Employee Misconduct Off-Duty or Outside the Workplace May Be a Reason for Termination, Gross Insubordination as Ground for Termination of Employment,

EMPLOYER SENDING EMPLOYEE ON LEAVE WITHOUT PAY

employer terminated from employment by the employer

Extension of Time to File a Civil Appeal from The District Court to The High Court, The Right to Be Heard,

Extension of Time Upon Good Cause Being Shown,

Evidence – Investigative report – Report not made on any official headed paper and lacked the signature of its maker – Report not made by an independent investigator but an official from Security company who had an apparent interest to serve – Whether the report was admissible, authentic and reliable – Section 18 of the Electronic Transactions Act, 2015

Evidence – omission by the arbitrator to append his signature to the evidence of the witnesses – whether fatal to the proceedings

Evidence – propriety of the proceedings of the CMA in which the testimonies of some of the witnesses were received without oath or affirmation – rule 25 (1) of the Labour Institutions (Mediation and Arbitration) Rules, Government Notice No. 67 of 2007.

Evidence – taking oath by witnesses – Arbitrator recorded the evidence of witnesses without having required them to take oath – failure by arbitrator to take oath from the witnesses – consequences thereto

Evidence – Whether the evidence tendered in the CMA by the two witnesses was insufficient to prove the claims for all the respondents since the 1^st respondent did not also testify

Evidence – witness – administration of oath to witness – whether mandatory

Evidence – witness not cross-examined on his evidence – consequences thereto.

Evidence – Witnesses for both sides did not take oath before their testimonies were recorded by the Commission for Mediation and Arbitration – Whether omission by the witnesses to take oath before giving evidence is fatal andt vitiates the proceedings.

Ex-parte award – Application for revision to set aside ex-parte award – High Court strikes out the application for revision holding that the Civil Procedure Code is inapplicable on the issue – Whether the order of the court of striking out the application for revision is appealable.

Extension of time – ground of illegality – whether illegality must be fully established for the court to exercise its discretion to extend time

Factors for Extension of Time, Negligence or Lack of Diligence Constitutes No Sufficient Reason, Request for Proceedings Within 30 Days,

Factors to Be Considered in Granting the Application for Leave to Appeal to The Court of Appeal, Matters Not Raised in The Lower Courts,

Factors to Prove Constructive Termination, Burden of Proof in Constructive Termination Lies on the Employee, Employer-Employee Relationship,

FAILURE OF ARBITRATOR TO ADMINISTER OATH RENDER PROCEEDINGS NULL AND VOID

failure of the Arbitrator to append signature at the end of each witness’s testimony did not, in the circumstances of

FAILURE TO AVAIL AN EMPLOYEE WITH THE INVESTIGATION REPORT IS A SERIOUS IRREGULARITY

Failure to Renew a Fixed Term Contract May Be Considered as Unfair Termination If There Was a Reasonable Expectation of Renewal,

FIXED TERM CONTRACT

FAILURE TO FOLLOW PROCEDURE IN TERMINATION

FAILURE TO CITE A PROPER PROVISION WHICH GIVES LABOUR OFFICER POWERS TO ISSUE COMPLIANCE ORDER IS FATAL

FAILURE BY THE FIRST APPELLATE COURT TO RE-EVALUATE EVIDENCEG

FAILURE TO RENEW A FIXED TERM CONTRACT WHERE THERE IS A REASONABLE EXPECTATION OF RENEWAL- CRETERIA FOR THE EXISTENCE OF AN EXPECTATION OF RENEWAL OF A FIXED TERM CONTRACT-WORKING BEYOND THE CONTRACT

FOR A FIXED TERM CONTRACT, THE RELIEF FOR UNFAIR TERMINATION IS PAYMENT OF SALARY IN RESPECT OF THE REMAINING MONTHS IN THE FIXED TERM CONTRACT

FAILURE TO CONSIDER GROUNDS OF REVISION

FAILURE OF ARBITRATOR TO ACT FOR A FIXED TIME

HOLDING CORPORATION WHICH IS THE APPOINTING AUTHORITY TRANSFERS AN EMPLOYEE FROM ITS ONE SUBSIDIARY COMPANY TO ANOTHER, WHETHER TRANSFER IS IMPLICIT, WHETHER TRANSFER CONSTITUTED BREACH OF CONTRACT OF EMPLOY

INVOCATION OF REVISIONAL JURISDICTION WITHOUT BEING SEIZED WITH THE RECORD OF LOWER COURT

INTERFERENCE WITH EXERCISE OF DISCRETION POWERS

Injunction – Respondent impleaded the Court to grant an order for permanent injunction restraining the Respondent and its members from calling for and/or participating in an illegal planned strike – Whether the injunction issued was an interlocutory one or had the effect of finally determining the application before the Labour Court.

Interlocutory order – Order by the judge refusing to grant appellant an order of temporary injunction against an intended eviction – whether the order was appealable – section 5(2)(a) of the Appellate Jurisdiction Act, Cap 141

Interlocutory order – Ruling of the High Court setting aside an ex parte judgment of the same Court – Whether an appeal lies against the decision of the High Court setting aside its ex parte judgment – Section 5 (2) (d) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2019

Interlocutory order – tests for determining whether the order is interlocutory or otherwise.

Interpretation – applicability of section 32A of Public Service Act – whether it can be applied retrospectively in procedural matters.

Interpretation – business in which the respondents were engaged requires unqualified good faith and honesty, integrity, trust and confidence – Respondents in a bank terminated for lack of good faith ‘as well as gross negligence and misconduct – Court orders respondents’ reinstatement – Whether Rule 12 of the Code of Good Practice GN No. 42 of 2007 was properly interpreted by the court

Interpretation – Canon rules of interpretation – presumption against absurdity – whether applicable in interpreting section 28 (2) of Industrial Court of Tanzania Act, 1967.

Interpretation – grant of reliefs of reinstatement and compensation – Labour Court granted the reliefs sought by the respondents conjunctively instead of granting them disjunctively – Whether the High Court properly interpreted the provisions of section 40 (1) (c) of the ELRA.

Interpretation – Intention of the legislature in enacting section 41 of the Banking and Financial Institutions Act, 2006.

Interpretation – matters of law and facts – appellate and revisional jurisdiction of the Court of Appeal

Interpretation – What is meant by the phrase “a similar application on the same matter’ – Rule 96 (8) of the Tanzania Court of Appeal Rules, 2009

Interpretation – whether the use of the word “dispute’’ in Rule 50 of the Rules that “an appeal does not lie against a decision of the Labour Court unless it has the effect of finally determining the dispute’’ refers to a dispute in the CMA or the Labour Court

Interpretation – word “suit’’, “interlocutory order and interlocutory proceedings’’ – their meaning and determination thereof.

Interpretation –Termination based on operational requirements, otherwise referred to as “retrenchment’’ – Retrenchment not defined in the Employment and Labour Relations Act, Cap 366 – What the legislature had in mind by the term “retrenchment.”

JURISDICTION= THE HIGH COURT HAS NO JURISDICTION IN LABOUR MATTERS

JURIDICTION TO PRONOUNCE AN AWARD FOR UNFAIR TERMINATION OF SERVICE

JURISDICTION OF A MEDIATOR OF THE CMA

Judgment – counsel culls out some few paragraphs and sentences from the judgment and reads them out of the context of the entire judgment – Whether counsel’s submissions tenable.

Judicial review – Appellant applied for judicial review – Whether there were alternative remedies to judicial review

Judicial review – Appellant applied for the orders of certiorari, mandamus, and prohibition – Whether appellant proved the grounds for judicial review to justify

issuing the writs prayed for – Regulation 37 of the Local Government (Teachers Service Scheme) of 2016 G.N. No. 311 of 2016, read together with section H. 19

(1) (2) of the Standing Orders for Public Service of 2009 and Regulation 29 of the Public Service Regulations of 2003 G.N. No 168 of 2003

Jurisdiction – applicability of section 32A of Public Service Act – whether CMA has jurisdiction to entertain a complaint on terminal benefits before exhausting the procedure provided for by the Public Service Act.

Jurisdiction – Application for revision – Circumstances in which court may review its own decision – Rule 66(1) of the Court of Appeal of Tanzania Rules, 2009

Jurisdiction – executing court – Conciliation Board decreed that appellant be paid all his terminal benefits according to the laws and voluntary agreement relating to his employment –Board did not specify items of terminal benefits – whether an executing court has no jurisdiction to execute what is beyond the decree.

Jurisdiction – High Court ordered that dispute before the court be sent back to the CMA for determination on merit – whether the order was an interlocutory order and whether the Court had jurisdiction to entertain the appeal founded on that order- section 5(2)(d) of the Appellate Jurisdiction Act, [Cap 141 R.E. 2019] (the AJA).

Jurisdiction – Internal appellate mechanism – Respondent referred the dispute to the CMA prematurely without exhausting the internal mechanism – Whether the Arbitrator wrongly entertained the respondent’s referral to the Commission for Mediation and Arbitration.

Jurisdiction – Stay of execution – jurisdiction of the Deputy Registrar – whether the Deputy Registrar has jurisdiction to hear and order for stay of execution of a decree emanating from revision proceedings of the Labour Court.

Jurisdiction – time limitation – second application to set aside the ex-parte award was time barred – arbitrator proceeded to entertain the application resulting into setting aside the previous ex parte award – whether arbitrator was invested with jurisdiction to hear and determine the dispute

Jurisdiction – Whether an agreement between the parties has the effect of ousting the jurisdiction of the CMA and that of the High Court in a labour dispute.

Labour Appeals to the Court of Appeal Must Be On Points of Law Only, Definition of the Phrase a Point of Law

LABOUR APPEALS TO THE COURT OF APPEAL MUST BE ON POINTS OF LAW ONLY-WHAT CONSTITUTES A POINT OF LAW

LABOUR APPEALS TO THE COURT OF APPEAL MUST BE ON POINTS OF LAW ONLY-WHAT CONSTITUTES A QUESTION OF LAW

LABOUR DISPUTES RESOLUTION, JURISDICTION OF THE MINISTER IN LABOUR DISPUTES, WHETHER THE MINISTER HAS JURISDICTION TO ADJUDICATE ON DISPUTES FOUNDED ON REDUNDANCY

LABOUR CASE SHOULD BE DETRMINED ACCORDING SUBSTANTIAL JUSTICE AND NOT TECHNIQUES

LABOUR CASE AND RETRIAL

Leave to file supplementary record of appeal – Court granted leave to appellants to file a supplementary record of appeal in order to include a properly drawn certificate of delay – On the scheduled day for hearing Counsel for appellants makes another application for filing a supplementary record of appeal – Whether second application is time barred – Whether the oxygen principle applies – Rule 96 (8) of the Rules.

Leave without pay – Appellant, a public servant applied for leave without pay – Whether applicant’s, employer was bound to grant leave without pay – section

H.19 of the Standing Orders.

Limitation period – Grant of leave by the High Court to refile an application for revision which was struck out two times – Whether application was time barred and whether the court properly exercised its discretion.

Limitation period – Lapse of time between when the last application was struck out and the time when the current application was made – whether the appellant accounted for the period of delay as required by law

Limitation period – overriding objective principle – whether it can be invoked in cases of time limitation.

Limitation period – Rules of statutory interpretation – Fate of a time barred labour matter – Whether it is dismissal or striking it out – Sections 3, 43 and 46 of the Law of Limitation Act [Cap 89 R.E 2002] and Rules 3 and 10 of the Labour Institutions (Mediation and Arbitration) Rules, 2007, G.N. No. 64 of 2007,

Limitation period – the impugned decision sought to be challenged was delivered on 10^th December, 2019, the notice of appeal was lodged on 7^th January, 2020 and the memorandum of appeal was lodged on 10^th March, 2020 – Whether the appeal was time barred – Rule 90 (1) of the Tanzania Court of Appeal Rules, 2009

Liquidation – Appointment of a statutory liquidator – Role of the Deposit Insurance Board upon its appointment as liquidator.

Locus standi – Appellant is a recognized trade union in terms of section 25(1) of the Labour Relations Act, 2005 – Appellant instituted a labour dispute against the respondent – Whether the appellant and not the Board of Trustees of the appellant had locus standi to sue the respondent – Section 48 of the appellant’s Constitution.

MEANING OF REVISION

MAXIMUM SUM OF AWARD

Matrimonial Issues Cannot Be Determined in Probate and Administration Cause, Criteria in Appointing the Administrator of the Estate,

MEANING OF RETRENCHMENT

Meaning of the Phrase Reasonable Expectation of Renewal

MEDIATION CAN BE MARKED FAILED DUE TO ABSENCE OF EITHER OF THE PARTIES

MEDIATION IS COMPULSORY

MEDIATION-CUM-ARBITRATION THE SAME MEDIATOR TURNS INTO AN ARBITRATOR -LEADS TO A BREACH OF THE RULE AGAINST BIAS

MINISTER’S ORDER REINSTATEMENT

Natural justice – Rule requires absence of bias – Circumstances in which the rule may be dispensed with

NO working on Saturday for Adventists

Notice of intention to appeal – Appellant did not serve the notice of appeal either on the respondent in person or his advocate – Whether the appeal is incompetent

– Rule 84 (1) of the Tanzania Court of Rules, 2009.

Overriding principle – whether it can be invoked to cure breach of mandatory rules of procedure.

ONE CAN NOT CLAIM FOR NIGHT ALLOWANCE WHILE HE HAS DISMISSED FROM EMPLOYMENT

OMMISSION BY THE ARBITRATOR OF THE CMA TO APPEND A SIGNATURE AT THE END OF THE TESTIMONY OF EACH WITNESS IS FATAL

ORDER TO REINSTATE AN EMPLOYEE GVEN BY A COMPETENT AUTHORITY, WHETHER THE EMPLOYER HAS OPTION NOT TO REINSTATE, OPTION AVAILABLE TO EMPLOYEE

Preliminary objection – Appellant raised four grounds of appeal to the Court — Appeal greeted with two sets of preliminary objections – Whether the assailed grounds of appeal raise points of law.

Preliminary objection – Date of judgment – What constitutes date of judgment – Rule 39(9) of the Court of Appeal of Tanzania Rules, 2009

Preliminary objection – jurisdiction of the court – respondents raise objection relating to jurisdictional matters that the Court lacks jurisdiction to entertain the application for extension of time view of the provisions of the law which renders it time barred – Whether the preliminary objection raises a point of law

Preliminary objection – Whether a party was served or not, is a factual issue requiring evidence, which disqualifies it from being a point of law.

Preliminary objection – Whether the all the points of preliminary objection raised by the respondent are based on pure points of law

Principles of Unfair Termination – Appellant employed on fixed term contract – The contract was incessantly rolled over; that it was renewed by the respondent after the expiry of each term – Whether the principles of unfair termination applied to the appellant’s employment with the respondent – Section 36 (a) (iii) of the Employment and Labour Relations Act, Cap 360 and Rule 3 (3) and (4) of Employment and Labour Relations (Code of Good Practice) Rules, 2007, Government Notice No. 42 of 2007

Probation period – Employee worked beyond the probationary period in his employment without being confirmed – Whether employee entitled to the reliefs
falling under Patt III, Sub- Part E of Employment and Labour Relations Act, Act No. 6 of 2004

Procedural irregularity – Appellant failed to file written submission – Whether the failure is fatal and whether it rendered the appeal incompetent – Rule 106(1) of the Court of Appeal Rules, 2009.

Procedural Irregularity – Arbitrator met the Respondent in the absence of the appellant and allowed the respondent to file written submissions out of time – Whether the conduct of the arbitrator in meeting the Respondent in the absence of the Appellant was in violation of Rule 5 (h) and (i) of the Labour Institutions (Ethics and Code of Conduct for Mediators and Arbitrators) Rules, 2007G.N. No. 66 of 2007 thus amounted to misconduct.

Procedural requirement – Appellant did not serve the letter requesting for copies of the certified documents on the Respondent or the Registrar – Letter not included in the record of appeal – Whether appeal was competent before the Court and whether appellant can benefit from the exception under the proviso to Rule 90 (1) of the Tanzania Court of Appeal Rules, 2009

Procedural requirement – record of proceedings – failure by arbitrator to put signature at the end of record of evidence of witness – whether fatal

Procedural requirement – Termination letters only referred to the Public Service· Regulations, 2003 and the Employment and Labour Relations Act, 2004 – Respondent did not produce anything in the CMA such as charges or notifications/ letters alleged to have been served to the appellants – Whether the appellants were served with charges preferred against them and notifications of hearing before the Disciplinary Committee; and afforded an opportunity to be heard.

Procedural requirements – authentication of arbitral proceedings – Arbitrator designed his own style of authentication of proceedings by having all parties and their advocates sign on the coram, and later by calling upon the advocates, to

sign again at the end of the testimony of each witness – whether proceedings were a nullity – Rule 19 (1) of the Rules

PHYSICAL FOLLOW UP OF TERMINAL BENEFITS TO THE EMPLOYER ONLY BE DETERMINED ON MERIT AFTER THE APPLICANT HAS BEEN AFFORDED THE RIGHT TO BE HEARD

Procedural requirements – exercise of discretionary powers – whether the appellate court can interfere with the exercise of discretion of an inferior court or tribunal.

Procedural requirements – record of proceedings – arbitrator appends signatures of witnesses and their advocates at the beginning of the proceedings- whether proceedings are fatal

PAYMENT OF SUBSTITENCE ALLOWANCE, APPELLANTS PAID TRANSPORT COSTS TO PLACES OF DOMICILE

PHYSICAL FOLLOW UP OF TERMINAL BENEFITS TO THE EMPLOYER ONLY BE DETERMINED ON MERIT AFTER THE APPLICANT HAS BEEN AFFORDED THE RIGHT TO BE HEARD

PHYSICAL FOLLOW UP

PARTY FIXED TIME FOR ARBITRATOR’S TO CONDUCT ARBITRATION

POLICE OFFICER, TERMINATION OF SERVICE IN THE PUBLIC INTEREST

POLICE OFFICERS, TERMINATION OF SERVICE

POWER OF THE MEDIATOR TO MEDIATE A DISPUTE-THE MEDIATION HAS TO BE COMPLETED WITHIN 30 DAYS FROM THE DATE OF REFERRAL

PRE CONDITIONS FOR RETRENCHMENT

Pre-Conditions for Retrenchment, Retrenchment is a Last Resort, Retrenchment Procedure, Reception of Evidence in Labour Cases

Principles of Unfair Termination Do Not Apply to a Fixed Term Contract, Definition of Reasonable Expectation of Renewal

PROOF OF TERMINATION OF EMPLOYMENT-THE STANDARD OF PROOF

PROPRIETY OF THE EXERCISE OF THE JURISDICTION BY THE MEDIATOR AFTER THE LAPSE OF THE STATUTORY TIME LIMIT

PRECONDITIONS FOR RETRENMENT

PHYSICAL FOLLOW UP OF TERMINAL BENEFITS TO THE EMPLOYER ONLY BE DETERMINED ON MERIT AFTER THE APPLICANT HAS BEEN AFFORDED THE RIGHT TO BE HEARD

PENSION ENTITLEMENTS MUST BE PAID TO AN EMPLOYEE AND NOT EMPLOYER

POWERS OF THE LABOUR COURT

QUANTUM MERUIT, CIRCUSTANCES UNDER WHICH QUANTUM MERUIT IS PAYABLE

Record of appeal – Appellant failed to include in the record of appeal pleadings filed in the CMA, Form No. 1, copy of the proceedings in the CMA and some of the tendered exhibits – Whether the omission rendered the appeal incompetent – Rule 96(1) and (2) of the Court of Appeal Rules, 2009.

Record of appeal – Record of appeal is deficient due to the omission of a number of core documents – Whether the omission had a deleterious effect to the competence of the appeal

Record of court proceedings – arbitrator did not append his signature after each witness had finished testifying – whether the omission to append his signature was fatal to the proceedings

Reliefs – awarding of compensation – rules governing thereto.

Reliefs – High Court finds that the respondent was substantively and procedurally unfairly terminated – High Court does not grant the respondent’s prayer for reinstatement which was one of the reliefs sought in CMA Form No.1- Whether High Court’s decision was irregular – section 40 (1) of the ELRA

Reliefs – Order of compensation – arbitrator finds that the termination was substantively and procedurally unfair and awards 36 months compensation – High Court finds that termination was fair in both aspects but appreciated that the arbitrator has power to award compensation above 12 months compensation – Whether the High Court acted fairly to quash the CMA award

Reliefs – Repatriation costs – circumstances in which they can be granted.

Reliefs – subsistence allowance – appellant paid part-payment of his terminal benefits including repatriation expenses but spends it on other personal commitments – whether employer is bound to pay subsistence allowance for the rest of the days the employee remains at the working station.

Reliefs – subsistence allowance – the manner in which it is calculated

Reliefs – Termination found unfair- Whether the court can grant reliefs not prayed in the CMA’s Form No. 1 but proved by the employee

Reliefs – Whether it was proper for the CMA to grant 12 months’ salaries compensation in a case where the respondent had valid reason for terminating the appellant and at the same time grant payment of salaries for the unexpired term of a fixed term contract.

Remedies – grant of an award – whether the arbitrator or Labour Court has discretion to decide on the appropriate quantum of compensation.

Repatriation – Appellant issued notice of resignation from his employment – Notice was accepted – Whether, from the circumstances under which the appellant’s employment was terminated, the provisions of section 43(1) of the ELRA on repatriation were applicable to him.

Repatriation – appellant recruited in Dodoma but preferred to be repatriated to Nachingwea – whether the appellant was entitled to be repatriated to Nachingwea and whether the respondents were obligated to pay him subsistence allowance upon termination of his employment- section 53 of the then Employment Ordinance, Cap. 366 (now section 59, Employment Act, Cap. 366 RE 2002).

Representative suit – CMA F1 allegedly filled in and signed by first appellant without indicating that he was mandated by the 20 other employees to fill, sign and file the labour dispute on their behalf; and no application for a representative suit was filed seeking leave to represent them – Whether or not the dispute before the CMA was preferred by one employee or it involved even the other 20 appellants.

Representative suit – need for leave – whether the complaint filed in the CMA was bad for want of leave to the 1^st respondent to institute the dispute on behalf of the other ten employees.

Review – Court agrees with both the CMA and the High Court that termination of employment of applicants was both substantively and procedurally unfair – Court refrains from granting the reliefs prayed for – Whether failure to grant the reliefs constitutes an apparent error on the face of the record

Revision – jurisdiction of the court – parameters in which the court’s revisional jurisdiction can be invoked for the purposes of satisfying itself as to correctness, legality or propriety of any finding, order or any decision made and as to the

regularity of any proceedings of the High Court – section 4 (3) of the Appellate Jurisdiction Act, Cap 141

Review – manifest error on the face of the record – ingredients of an error on the face of the record – Rule 66 (1) (a) of the Rules.

Revision – jurisdiction of the Court – whether in a revision the Court has power to re-appreciate and reassess the evidence on record and whether the ten grounds of revision upon which the application is based raise matters of fact or points of law.

Revision – jurisdiction of the Labour Court – Labour Court finds the second application for setting aside the ex-parte award was time barred – validity of the ex-parte award was not at issue as it was not raised as a ground of revision -. Labour Court proceeded to vary the ex- parte award – Whether the variation of the terms that obtained in it was improper

Revision – jurisdiction of the Labour Court – appeal arises from a decision on revision against the decision of the arbitral tribunal refusing to set aside a dismissal order – whether the Labour Court has jurisdiction to reverse proceedings of the arbitral tribunal.

Right to be heard – Applicants denied the right to be heard before the disciplinary committee – Whether the denial nullified the proceedings before the CMA and High Court and whether there was an error on the face of the record

Right to be heard –respondent’s Internal Audit Manual provides that no findings, conclusions and recommendations should ever be incorporated in an audit report that were not previously discussed with auditees – appellants requested for the audit report but was not supplied to them – whether appellants were condemned unheard.

Rules of natural justice – Chairman of the ICT sitting in its original jurisdiction heard and determined the matter – the same Chairman heard and determined the

matter while the ICT was sitting in its revisional jurisdiction – whether this manifested breach of the nemo judex in causa sua rule – section 28(2) of the Industrial Court Act 1967.

REMEDY AVAILABLE FOR THE PUBLIC SERVANT UPON TERMINATION OF CONTRACT

REPATRIATION OF AN EMPLOYEE

REMEDIES FOR UNFAIR TERMINATION FROM EMPLOYMENT

Reception of Evidence in the CMA, Evidence Must Be Given Under Oath,

Reception of Evidence in The CMA, Evidence Must Be Taken Under Oath, Failure by The Arbitrator to Append Signature in The Proceedings,

Reception of Evidence in The CMA, Evidence Must Be Taken Under Oath,

RECEPTION OF EVIDENCE IN THE CMA

REMEDIES FOR THE UNFAIR TERMINATION FROM EMPLOYMENT

REMEDIES FOR UNFAIR TERMINATION

REMEDY AVAILABLE TO PUBLIC SERVANT UPON TERMINATION OF CONTRACT OF SERVICE

RESPONDENT HAD GIVEN MONEY FOR PURCHASE OF MOTOR CYCLE AS MEANS FOR TRANSPORT FOR THE FIRST APPELLANT WHILE WORKING FOR RESPONDENT

RETRECHMENT OF EMPLOYEES, MINISTER’S DECISION TO CONFORM RETRECHMNT FAULTED BY THE HIGH COURT, HIGH COURT AUTOMATICALLY BOUND TO ISSUE THE ORDERS OF MANDAMUS AND CERTIORARI

RULE AGAINST BIAS, LABOUR CONCILIATION BOARD CHAIRED BY A LABOUR OFFICER WHO HAD DELIBERATED ON THE SAME MATTER BEFORE ITS REFERENCE TO THE BOARD, WHETHER THE BOARD WAS NOT BIASED

RULE OF CONFIDENTILITY ON THE INFORMATION DISCLOSED DURING MEDIATION PROCESS

Statutory benefits – Repatriation costs – Whether payment of repatriation costs is conditional upon the employee indicating the date of departure – Section 43 of the Employment and Labour Relations Act, Cap 360.

Stay of execution – circumstances in which the court may grant an order for stay of execution

SERVICES OF SENIOR POLICE OFFICERS ABRUPTLY TERMINATED BY THE PRESIDENT BY RETIREMENT IN THE PUBLIC INTEREST

SUBSTISTENCE ALLOWANCES

SUIT INSTITUTED BY A TRADE UNION BREACH OF TUICO WHICH IS NOT A LEGAL ENTITY, WHETHER UNION HAS LOCUS STANDI’

SUBSTANTIVELY UNFAIR TERMINATION ATTRCTS HEAVIER PENALTY AS OPPOSED TO PROCEDURAL UNFAIRNESS WHICH ATTRACTS LESSER PENALTY

SET ASIDE ARBITRAL AWARD BY THE HIGH COURT

SERVANTS IN PUBLIC SERVICE ARE GOVERNED BY PUBLIC SERVICE ACT

STAY OF PROCEEDINGS BEFORE THE LABOUR OFFICER PENDING THE MATTER BEFORE THE CMA

Termination of employment – Employee terminated on ground of gross dishonesty for the money entrusted to him as a driver – No evidence suggesting that the respondent was formally charged – Whether the termination was substantively and procedurally unfair

Termination of employment – Appellant alleged to have engaged in politics and committed acts of gross dishonesty contrary to the employment manual – Whether appellant’s termination was substantively and procedurally fair.

Termination of employment – burden of proof – circumstances under which it can be shifted

Termination of employment – burden of proof – whether an employer has the burden of proof that termination was fair.

Termination of employment – business in which the respondents were engaged requires unqualified good faith and honesty, integrity, trust and confidence – Respondents showed lack of good faith ‘as well as gross negligence and

misconduct – Whether termination was the appropriate sanction to the respondents.

Termination of employment – By virtue of his office, appellant’s disciplinary authority was the respondent’s Board of Directors – Appellant informed orally by the Board of its decision to terminate the Appellant – Letter of termination signed by the Acting Human Resources Director of the respondent – Whether the appellant’s dismissal from office was made by the proper authority and whether the termination was substantively and procedurally unfair.)

Termination of employment – dishonest – whether it may attract termination of employment.

Termination of employment – employee commits a misconduct which is also a criminal offence – rules governing termination where conduct amounts to criminal offence.

Termination of employment – fairness of termination – What constitutes fair termination – Regulation 13 of the Code of Good Practice Rules, 2007.

Termination of employment – fairness of termination – What constitutes fair termination – Regulation 13 of the Code of Good Practice Rules, 2007.

Termination of employment – fixed term contract – contract renewed after every three months for four years – whether principles on fair termination apply to the contract – section 35 of the ELRA

Termination of employment – Issue whether the appellant had fair reasons to terminate the respondents was not subject of revision before the High Court because it was never raised before the CMA – Issue was raised suo motu by the High Court – Whether the High Court raised the issue without affording the parties the right to be heard on it and whether it was inextricable to determine the grounds for revision without referring to substantive fairness of the termination.

Termination of employment – Investigations prior to hearing – charge formulated without conducting investigation – whether rule 13 (1) of the Code of Good Practice Rules, 2007 was contravened

Termination of employment – operational requirements – appellant terminated by the respondent as the latter was undergoing structural reorganization – whether the appellant was lawfully terminated

Termination of Employment – Reasonable Expectation of Renewal- Interpretation of reasonable expectation of renewal – Whether under the circumstances there was reasonable expectation of renewal- Section 36 (a) (iii) of the Employment and Labour Relations Act [Cap 366 R.E. 2019] and Rule 3 (3) and (4) of Employment and Labour Relations (Code of Good Practice) Rules, 2007, Government Notice No. 42 of 2007.

Termination of employment – Reasons for termination – Whether the reason for termination was disclosed and if so, whether it was proper to give a different reason from the one stated in the termination letters.

Termination of employment – remedies – whether unfair termination on substantive and procedural matters attract the same penalty.

Termination of Employment – Right to be Heard – Whether the termination of the appellant from the employment was for valid reasons and if the procedure was complied with – Rule 13 of the Employment and Labour Relations (Code of Good Practice) Rules, Government Notice No, 42 of 200

Termination of employment – substantive and procedural fairness – whether termination of employee made by improper authority amounts to unfair termination.

Termination of employment – termination by agreement – whether the common law doctrine of estoppel applies.

Time limitation – whether the application which was lodged by the appellants in the High Court, to challenge the award of the CMA, was lodged out of the time prescribed by the law and whether law prescribes the time limit within which to serve the award to the parties – section 91 (1) (a) of the ELRA

Tort – malicious prosecution – ingredients to be proved thereto

Time limitation – record of appeal – whether there is no time limit for effecting service of letters requesting for certified copies of proceedings to the respondents– Rule 90(3) of the Rules

Termination of employment – termination letter – whether it was unauthentic and illegal for not being signed by an authorized officer- Paragraph 9(1), (2) and (3) of the first schedule to the Tanzania Ports Act No. 17 of 2004

TENDER AWARDED TO APPLICANT AND THEN AWARD PROCESS IS UNILATERALLY TERMINATED, WHETHER WAS ENTITLED TO A HEARING BEFORE TERMINATION

Termination and Expiration of the Fixed Term Contract of Employment, Payment of the Salary for the Remaining Period of the Fixed Contract,

TERMINATION OF CONTRACT OF EMPLOYMENT

TERMINATION OF EMPLOYEES OF A BANK UNDER LIQUIDATION IS NOT SUBJECT TO THE RETRENCHMENT PROCEDURE-RETRENCHMENT DOES NOT INCLUDE TERMINATION FOLLOWING CLOSURE OF BUSINESS

Termination of Employment Based on Ill Health, Labour Dispute May Go to Arbitration Straight Without Necessarily Having to Be Mediated First,

TERMINATION OF EMPLOYMENT ENTERED INTO FOR SPECIFIED PERIOD

Termination of Employment on Regulatory Requirements, BOT Directions, Costs in Labour, Compensation for Unfair Termination of Employment,

THE EMPLOYER SHALL CONDUCT AN INVESTIGATION TO ASCETAIN WHETHER THERE ARE GROUNDS FOR HEARING TO BE HELD

The Fairness of Procedure in Disciplinary Matters,

THE FAIRNESS OF PROCEDURE IN DISPLINARY MATTERS

THE MEDIATOR OF THE CMA HAS NO JURISDICTION TO PROCEED EXPARTE IN CASE THE RESPONDENT FAILS TO ATTEND A MEDIATION HEARING

THE OMMISSION BY THE ARBITRATOR OF THE CMA TO APPEND A SIGNATUREAT THE END OF THE TESTIMONY OF EACH WITNESSES-EFFECT OF FAILURE TO APPEND A SIGNATURE OF THE EVIDENCE

The Powers of the Labour Court On Revision, Discretion Powers, No Appeal Lies Against Interlocutory Orders,

THE PRINCIPLES OF UNFAIR TERMINATION DO NOT APPLY TO A FIXED TERM CONTRACT UNLESS IT IS ESTABLISHED THAT THE EMPLOYEE REASONABLY EXPECTED A RENEWAL OF THE CONTRACT

The Requirement of Work Permit and Residence Permit for Non-Citizens, Contract of Employment First, Work Permit First,

Time Barred Labour Dispute Shall be Dismissed Not Struck Out, Time Limit Within Which To File Labour Dispute, Applicability of Limitation Act in Labour,

TWO OPTIONS WHERE THE EMPLOYEE UNREASONABLY REFUSES TO ATTEND THE DISPLINARY HEARING

VOLUNTARY AGREEMENT SIGNED BY EMPLOYER AND EMPLOYEES UNION BUT NEITHER PARTY TAKES STEP TO GET IT REGISTRED BY THE INDUSTRIAL COURT, EFFECT OF THE FAILURE TO REGISTER THE AGREEMENT

WAY FOWARD AFTER A PARTY DEFAULTING TO APPEAR DURING ARBITRATION

THE PROCEDURE GOVERNING LABOUR DISPUTE RESOLUTION BY THE CMA

THE INTERPRETATION OF THE POWERS OF DIMISSING THE COMPLAINT IN THE MEDIATION PROCESS

THE QUESTION OF JURISDICTION IS FUNDAMENTAL

TRANSPORT ALLOWANCE MUST BE PAID AFTER TERMINATION OF EMPLOYMENT CONTRACT, FAILURE OF WHICH SUBSTANCE ALLOWANCE COMES INTO PLAY

THE COURT CANNOT GRANT REIEF NOT PRAYED FOR-EXEPTION- SEVERANCE ALLOWANCE BEING A STATUTORY ENTITLEMENT IS PAYABLE WHETHER IT IS CLAIMED OR NOT

TORT OF DEFAMATION-EMPLOYERS DEFAMATION AGAINST EMPLOYEES

TERMINATION OF EMPLOYEES OF A BANK UNDER LIQUIDATION IS NOT SUBJECT TO THE RETRENCHMENT PROCEDURE

WAY FOWARD AFTER A PARTY DEFAULTING TO APPEAR DURING ARBITRATION

WHETHER LABOUR OFFICER MAY INSTITUTE AND PROSECUTE CRIMINAL PROCEEDINGS UNDER LABOUR LAWS

Whether Relief Not Prayed for in the CMA Form No. 1 Can Be Granted, Matters Not Raised in Lower Courts,

Whether Termination of Employees of a Bank Under Liquidation is Subject to The Retrenchment Procedure, Definition of Retrenchment,

WHETHER UNION BRANCH CAN REPRESENT DEAD, RETREACHED OR RETIRED MEMBERS