DISPUTE RESOLUTION

1.0 Introduction
A dispute is defined from a labour relations
perspective as a highly formalized manifestation of
conflict in relation to workplace related matters.
To be a dispute within the meaning of the ELRA, the
dispute must concern a labour matter between any
employer or registered employers’ association on the
one hand, and any employee or registered trade
union on the other hand, and this includes an alleged
dispute (s.4).
1.1 Labour Disputes Under the ELRA
The ELRA placed labour disputes into two
categories: complaints and dispute of interest.
a) Complaint
A complaint is defined as any dispute arising from the application,
interpretation or implementation of:
i) an agreement or contract with an employee.
ii) a collective agreement.
iii) the ELRA, or any other written law administered by the Minister, and
iv) part VII of the Merchant Shipping Act, 2003 which addresses
engagement and welfare of seafarers.

Complaints are thus the same as what is also known as disputes of

right, in that they arise from breach of rights or failure to discharge
duties expressly conferred or imposed by law, collective agreements or
by individual contract of service.
b) Dispute of Interest
Is any dispute except complaint. Since
complaints relate to matters of rights,
disputes of interest arise when parties to the
employment relationship feel they should be,
but are not yet, entitled to something.
1.2 Disputes Resolution Procedures Under the ELRA
The ELRA contains three main procedures for resolving
labour disputes: mediation, arbitration and
adjudication.
The ELRA also allows the parties to adopt their own
dispute settlement procedures under collective
agreements. These procedures are provided for under
Part VIII of the ELRA and the Labour Institutions
(Mediation and Arbitration Guidelines) Rules, 2007.
1.2.1 Mediation
Under the ELRA mediation refers to a facilitation
process in which a mediator appointed by the
CMA assists the disputing parties in their attempt
to resolve their dispute conducted in terms of s.
86 of the ELRA.
All labour disputes must be mediated before they
can proceed to arbitration (r.20(1) of LIMAG).
1.2.1.1 Procedural Issues on Mediation
a) Referral of a dispute
A matter must be a dispute before it can be referred to the
CMA for resolution in terms of Part VIII of the ELRA.
For a dispute to exist, at very least a demand should have be
made, which must be communicated to the other party and
that party be given an opportunity to settle the matter.
The referral of disputes to CMA must be done on a
prescribed form (s. 86(1) of the ELRA) to be filled and filed by
any party to the dispute and this may include an employer,
employee, union or employers’ organization.
 b) Time limits for referring disputes
In terms of r. 10 of the MAR, disputes about fairness of an employee’s termination must
be referred to the CMA within 30 days from the date of termination, or the date the
employer made a final decision to terminate or uphold the decision to terminate.
All other disputes must be referred to the CMA within 60 days from the date when the
dispute arose.
If the referral document is filed out of the timeframes referred to above, the party
referring the document to the CMA must fill and attach an application for condonation.
Such application should set out grounds for seeking condonation and must include:
• The referring party’s submission on the degree of lateness.
• The reasons for the lateness.
• The prospects of succeeding with the dispute and obtaining relief sought against
the other party.
• Any prejudice to the other party.
• Any other relevant factors.
c) Pre mediation resolution
In terms of r. 14 of the MAR, the CMA may,
before setting down the matter for mediation,
contact the parties by telephone or any other
means in order seek to resolve the dispute.
d) Set down
Upon receipt of the referral, the CMA must appoint a
mediator to mediate the dispute, decide the time, date and
place of the mediation hearing and advise the parties on
these details (s.86(3) of the ELRA).
The CMA must give the parties at least 14 days notice in
writing of the mediation hearing unless the parties agree to
a shorter period of notice.
The mediator is required to resolve the dispute within 30
days of the referral unless the parties agree to extend the
30 days period.
 e) Attendance and representation
S. 86(6) of the ELRA provides that in any mediation,
a party to a dispute may be represented by:
• A member or an official of that party’s trade
union or employer’s association.
• An advocate.
• A personal representative of the party’s
choice.
f) Non disclosure of mediation proceedings
In terms of r. 17 of the MAR, no person may refer
to anything said in mediation proceedings during
any subsequent proceeding, unless the parties
agree in writing.
Also, no person, including a mediator, may be
called as a witness during any subsequent
proceeding in the CMA or in any court to give
evidence about what transpired during mediation.
g) Combined Mediation and Arbitration (Med-Arb)
Combined mediation and arbitration refers to a
process in which an arbitration hearing takes place
immediately after the mediation hearing which has
failed to resolve the dispute (r. 18(1) of the MAR).
It is governed by the same rules and principles as
mediation (regarding the mediation phase) and
arbitration (regarding the arbitration phase) with
the necessary modifications.
h) Confidentiality
Mediation is a confidential process aimed at helping
the parties to the dispute to reach an agreement.
No person may refer to anything said at mediation
proceedings during any subsequent proceedings,
unless the parties agree in writing.
No person, including a mediator, may be called as a
witness during any subsequent proceedings in the
CMA or in any court to give evidence about what
transpired during mediation.
i) Certificate of outcome
At the end of the mediation process, it is
important to prove that the mediation has
succeeded or failed to settle the dispute in
order to determine which other legal steps to
follow (r.16(1) of the MAR).
A certificate issued by the mediator is the
legal proof as to whether or not the dispute
has been settled.
 1.2.2 Arbitration
Arbitration is a process in which a neutral person
appointed as an arbitrator for resolving a dispute
makes a decision that determines the dispute
between the parties (r.18(1) of the MAR).
Arbitration is similar to adjudication although it
is less formal. The functions of an arbitrator are
adjudicative, but the arbitration process is quasi
judicial and not adjudicative.
 1.2.2.1 Disputes Requiring Arbitration
The ELRA requires that disputes be referred to mediation before they are referred to
arbitration. Where mediation fails, the ELRA requires the following disputes to be
referred to arbitration:
• A dispute of interests if the parties to the dispute are engaged in essential
services.
• A complaint over:
i) the fairness or lawfulness of an employee’s termination of employment.
ii) any other contravention of labour legislation or breach of contract in which the
amount claimed is within the jurisdiction of the Resident Magistrate’s Court.
iii) any dispute referred for arbitration by the Labour Court under s. 94(3)(a) of the
ELRA.

Thus, where mediation fails and the parties are not engaged in essential services, either
party can have recourse to industrial action after giving the other party due notice.
1.2.2.1.2 Procedural Issues in Arbitration
a) Institution of arbitration proceedings (Referral)
Where the CMA has failed to resolve a dispute referred to it
through mediation, a party to a dispute requiring arbitration
may refer it to the CMA for arbitration (s.86(7)(b) of the ELRA).
Upon such reference, the CMA must appoint an arbitrator to
decide the dispute; determine the time, date and place of the
arbitration hearing and advise the parties on the same.
The CMA must give the parties at least 14 days notice in
writing of an arbitration hearing unless the parties agree to a
shorter period.
 b) Representation
A party to a dispute may be represented by:
• A member or an official of that party’s trade
union or employer’s association.
• An advocate.
• A personal representative of the party’s
choice.
c) Jurisdiction
The CMA must have jurisdiction to arbitrate a
dispute before embarking on the procedure.
Where it appears during arbitration
proceedings that a jurisdictional issue has not
been determined, the arbitrator must require
the referring party to prove that the arbitrator
has jurisdiction to arbitrate the dispute.
 d) Arbitration hearing
The ELRA expressly empowers the arbitrator to conduct the arbitration in
a manner that the arbitrator considers appropriate in order to determine
the dispute fairly and quickly. The arbitrator must deal with the
substantive merits of the dispute with the minimum legal formalities
(s.88(4) of the ELRA).
The arbitration hearing must involve at least four main sequential stages:
• Opening statements by the parties and other preliminary
matters.
• Presentation by each party of its case by calling witnesses to
testify under oath or affirmation.
• The cross examination of witnesses by the opposing parties.
• Closing arguments by the parties.
e) Record of arbitration proceedings
An arbitrator is required to keep a record of
the arbitration proceedings with legible hand
written notes, or by means of electronic
recording. The arbitrator is not required to
record proceedings word for word and may
summarize the evidence and arguments
submitted by the parties.
f) Award
An arbitrator may make any appropriate award (s.88(8) of the
ELRA). But since the mediators and arbitrators are not allowed to
make changes, suo motu, on what appears on the referral form, an
arbitrator cannot make an award higher than the one claimed on
the referral form.
The award must be issued within 30 days of the conclusion of the
arbitration hearing and must be reasoned, definite, certain and
concise.
An arbitration award made under the ELRA is binding on the parties
to the dispute and may be served and executed in the Labour Court
as if it were a decree of a court of law (s.89 of the ELRA).
1.2.3 Adjudication
Adjudication refers to a formal procedure for
dispute settlement involving a hearing by a
judge in a court of competent jurisdiction who
decides the dispute for the parties.
The institution charged with adjudication of
labour matters in Tanzania is the Labour Court
under s. 50 of the LIA.
1.2.3.1 Jurisdiction of the Labour Court
The Labour Court has exclusive jurisdiction over the application,
interpretation and implementation of the ELRA, and any other
matters reserved for its decision by the labour laws.
The Court also has jurisdiction to decide appeals from the
decisions of the Registrar of Organizations on organizational rights,
review and revisions of arbitrators awards and decisions of the
Essential Services Committee, review of decisions, codes,
guidelines or regulations made by the Minister under the ELRA,
complaints other than those to be decided by the arbitration
under the ELRA, any dispute reserved for decision by the Labour
Court under the ELRA, and applications including declaratory
orders and injunctions.
1.2.3.1.1 Procedural Issues on Adjudication
a) Initiating proceedings
A party initiating referral proceedings to the
Court must file a statement of complaint
which must be accompanied with a copy of
the application for the referral.
b) Pre trial conference
After referrals, responses and any further
reply thereto are filed, the parties to the
proceedings have to hold a pre trial
conference in the presence of the Registrar of
the Labour Court or Mediator attached to the
Court, during which the parties attempt to
reach an amicable settlement.
c) Witness summons
Any party who requires a witness to attend
any proceedings to give evidence on his behalf
may have a summons issued by the Registrar
for that purpose.
d) Evidence and regulation of proceedings
For the purposes of dealing with any matter
referred to it, the Court may elect all such
information, as in the circumstances may be
considered necessary, without being
unreasonably bound by the rules of evidence
in civil or criminal proceedings, which would
have the effect of interfering or defeating
good ends of justice.
e) Hearing of suit
The complainant has the right to begin unless
the respondent admits the facts alleged by the
complainant and contends either on a point of
law or on some additional fact alleged by the
respondent.
Where the complainant is not entitled to any
part of the relief which he seeks, the
respondent will have the right to begin.
g) Judgment and decree
After the hearing of the case, the Court must
pronounce judgment in an open Court, either
immediately or at a future date on which due
notice must be given to the parties or their
advocates.
h) Appeals and references
Any party to the proceedings before the
Labour Court may appeal against decision of
that to the Court of Appeal but, on a point of
law only (s.57 of LIA).
1.2.4 Disputes Procedure in Collective Agreements
S.95(1) of the ELRA allows trade unions and
employers or employers’ associations to conclude
collective agreements providing for the resolution of
disputes through procedures other than the ones
expressly outlined in the ELRA.
However, the alternative procedures instituted by
such collective agreements must ensure that disputes
are mediated or arbitrated in an independent,
neutral, expedited and professional manner.