Working in the Tanzanian labour law litigation, I get to see the good, the bad, and the ugly when it comes to defending a labour case and how to integrate into the effective system of winning a case.
In this Article, I would like to address the issue of incorrect filing of a labour dispute at the Commission for Mediation and Arbitration (CMA) that leads to the detriment of the client's case regardless of how good his or her cause of action may be.
By the beginning of 2017, Tanzania saw numerous amendments to its labour laws by enactment of the Employment and Labour Relations (General) Regulations 2017 (Government Notice No. 47 of 2017) and the Labour Institutions (General) Regulations, 2017(Government Notice No.45 of 2017). These new legislations were gazetted and came into effect on the 24th February 2017.
With the new reforms in the above legislations, some lawyers, complainants, trade union or personal representatives of clients often get caught up in technicalities especially related with filing of a labour dispute.
Based on my observations, the common mistake that referring parties of disputes (be it laymen or with the negligence of a representative or a lawyer) tend to commit is on the filing of the incorrect referral forms CMA Form No.1 (CMA F.1) that were once provided vide the Employment and Labour Relations (Forms) Rules, Government Notice No. 65 of 2007 which are now revoked by Regulation 41 of the Employment and Labour Relations (General) Regulations 2017 (G.N No.47 2017) which provides that:
"..The Employment and Labour Relations (Forms) Rules, 2007 are hereby revoked..."
Regulation 34(1) of the same legislation goes on to pinpoint the correct forms to be used. It is to the effect that:
"..The forms set out in the Third Schedule to these Regulations shall be used in all matters to which they refer..."
Needless to say, the word "shall" as used in the above provision entails that the new forms stated in the schedule to the amendments must be used.
Section 53 (2) of the Interpretation of Laws Act [CAP 1 R.E 2002] provides that where in a written law the word shall is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed.
Incorrect filing of the CMA Form No.1 (CMA F.1) seems even worse when it comes to the filing mistake occasioned by a lawyer. It may lead to nasty consequences or embarrassment with the client where by the outcome may lead to striking out of the case. Every lawyer would not like to be in the situation of wearing a professional necktie, holding a suitcase full of statutes and facing an objection of filing a defective form from a dead law in front of his or her client.
The courts would atleast be lenient if the mistake is occasioned by a layman, but in the situation of a lawyer, professional negligence of filing ends up with the client's case being buried with the lawyer's mistake. It is worthy to note the maxim "...ignorantia legis neminem excusat..." [Ignorance of law excuses no one]
In my mind, the best way to avoid the risk of getting the application struck out is to file the case with the correct form in compliance with the law. Do not make life easy for your opponent.
As you know, opposing parties often will allege anything to win their cases hands down. Equally important, when filing a labour dispute, properly filed documents will give you more confidence to win your case . . . on the front line.
It is obvious that a lawyer's day is filled with potential pitfalls including missed limitation periods, billing issues, misplaced files, problem clients, etc. but, it should be borne in mind that the lawyer has duty to abide by service to the paramount interest of the client. A diligent lawyer should not make the client pay the price due to slight slip of procedure that will automatically ruin the case. It is worth doing the filing right. Handling it carefully can save time and cash, calm frayed nerves and maintain professional integrity.
All in all, if the targeted outcomes are to be attained, lawyers, trade union or personal representatives need to adopt a holistic and comprehensive approach to avoid this technicality.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.