The matter arose from the employment relationship between the first appellant and the respondent.
The respondent was employed by the first appellant on 1st July 2004, as a teacher Under a permanent contract. Until the termination of his employment contract, he was posted at Rom bo. On 18th September, 2017 the first appellant terminated the respondent.
Aggrieved by the outcome of the decision of disciplinary committee, on 25th April, 2018, he unsuccessfully appealed to the Teacher’s Services Commission. Still discontented, on 7th July 2018, the respondent appealed to the President of the United Republic of Tanzania, and on 26th February 2019, his appeal was rejected.
Subsequently, on 8th March, 2021, the respondent decided to file a labour dispute concerning his terminal benefits together with an application for condonation of late referral before the CMA at Moshi. On
11th May 2021, the respondent’s application for condonation was
dismissed for want of sufficient reasons.
Unsatisfied with that decision, the respondent, on 25th May, 2017, lodged a Labour Revision No. 21 of 2021 in the High Court challenging the CMA decision.
Having heard the parties, the learned High Court Judge found that it was improper for the arbitrator to dismiss the respondent’s application for condonation after the respondent had sufficiently accounted for the days of delay. As such, the learned High Court Judge allowed the revision, quashed and set aside the CMA’s decision, and allowed the respondents to lodge a dispute at the CMA, and it was ordered to proceed with arbitration of the dispute.
The first additional ground argued as the first ground raises the issue whether the CMA had jurisdiction to determine the matter. In his oral submissions, Mr. Marco tried to convince us that the CMA had no
jurisdiction to determine the application for condonation involving a public servant pursuant to section 32A of the Act, before exhausting the avenue available under the Public Service Act, by referring his complaints to the Public Service Commission before resorting to the CMA
A court had this to say:
From the evidence on record and the rival submissions from the counsel for the parties, we agree that all disciplinary matters involving public servants are exclusively within the domain of the Public Service Commission whose decision is appealable to the President.
The Court held as such in Tanzania Posts Corporation v. Dominic A. Kalangi
(supra). The other undisputed fact is that the respondent’s claim at the CM A involved subsistence and repatriation allowances and not otherwise.
However, we are unconvinced that the respondent being a public servant was required to exhaust the avenue available under the Public Service Act before resorting to the CMA to pursue his entitlement to repatriation and subsistence allowances.
We hold this view for the following reasons:
one, the respondent’s claims which were lodged at the CMA on 8th March, 2021, did not arise from disciplinary actions. Instead, they arose from the claims for terminal benefits which include, repatriation and subsistence allowances. Two, in terms of section 43 (1) (a), (b) and
(c) of Employment and Labour Relations Act, repatriation is an automatic remedy paid by an employer regardless of whether an employee was terminated, retired, or resigned. See the case of Joseph Khenani v. Nkasi District Council, Civil Appeal 126 of 2019 [2022] TZCA 82 (23 February 2022) TanzLII and three; our reading of the Public Serviced Act and its regulations do not suggest that there are remedies for a claim of a substantial and repatriation allowances.