By FAUSTINE KAPAMA-Judiciary
THE High Court’s Labour
Division has nullified the Commission for Mediation and Arbitration (CMA)
Award, requiring the Board of Trustees of National Social Security Fund (NSSF)
to compensate former Director of Internal Audit, Pauline Mtunda, over 1.2bn/-
for unfair termination.
Judge Salma Maghimbi
ruled in favour of NSSF, the applicant and the Attorney General after allowing
an application for revision lodged against the former employee, the respondent,
to challenge the jurisdiction of the CMA to entertain such labour dispute.
The judge held that the
respondent was a public servant, thus ought to have exhausted available remedy
to address his grievances in regard to the position given by the Court of
Appeal on a similar matter as per provisions of section 32A of the Public Services
Act (PSA).
“In regard to (such)
position and Section 32A of the PSA, the respondent being a Public Servant and
the dispute before CMA being a dispute of unfair termination of employment, the
CMA had no jurisdiction to entertain the matter. Consequently, all proceedings
and the Award are hereby nullified,” she ruled.
During the hearing of the
application, the counsel for the applicant had contended that the application
which originated from the CMA was incompetent for contravening Section 32A of
Public Service Act of 2002 as amended in written laws (Misc. Amendment) Act No.
3 of 2016.
She submitted, therefore,
that on March 04, 2022, the CMA determined on the matter which it had no
jurisdiction, consequently both proceedings and the Award need to be quashed or
nullified.
Judge Maghimbi went
through the provisions under the PSA and the National Social Security Fund Act
on the meaning of a public servant as well as the pubic office and concluded
that the applicant was a pubic office and that the respondent was a public
servant.
“The applicant being a
public institution and by the definition of the term public servant under
section 3 of the PSA, the respondent was a public servant, hence the provisions
of the PSA are applicable in this case,” she said in the judgement delivered
recently.
Further to that, the
judge said, as gathered from the submissions of both parties and the records of
the revision, it was undisputed that the respondent was a public servant. In
addition, she said, it was also undisputed that the respondent was terminated
in July 2017, a termination which aggrieved him.
“Now, following recent
amendments of the PSA, which came to force on November 18, 2016, there was
introduced a new Section, Section 32A which provide (that) a public servant shall,
prior to seeking remedies provided for in labour laws, exhaust all remedies as
provided for under this Act,” she said.
According to the judge,
such provision was well elaborated by the Court of Appeal in the case of
Tanzania Posts Corporation Vs Dominic Kalangi, Civil Appeal No. 12 of 2022.
In that case, the Court
held, "...it is unambiguously dear that all disciplinary matters or
disputes involving public servants are exclusively within the domain of the
Public Service Commission whose decision is appealable to the President. (….)
the CMA has no jurisdiction to adjudicate upon such matters."
The respondent was
employed by the applicant on July 15, 1997 as Auditor III and promoted to
several positions. On July 11, 2017, he was terminated while holding the
position of the Director of Internal Audit.
On the August 7, 2017,
the respondent filed labour dispute before the CMA for Ilala, claiming for
unfair termination. Such dispute was greeted with objection, challenging the
jurisdiction of the Commission to entertain the matter. Such objection raised
by the applicant was overruled.
Following such a
decision, the CMA proceeded to determine the dispute and the Arbitrator
rendered an award in favor of the respondent, holding that his termination was
unfair both substantively and procedurally.
The applicant was ordered
to pay the respondent compensation to the tune of 1,277,398,854/20 as terminal
benefits. Dissatisfied by the award, the applicant lodged the application in
question and raised several grounds, including the question of jurisdiction.
Hakuna maoni:
Chapisha Maoni