kimpango
JF-Expert Member
- Apr 24, 2011
- 600
- 717
Introduction
The history behind the law of termination of employment in Tanzania is founded on the ILO Convention number 158 of 1982 [1] on Termination of Employment. It was basically adopted by ILO Member States in 1982. Much as Tanzania is a member of ILO, a large part of the Tanzania law on termination of employment originates for the Convention and Recommendation No. 166. Lawful termination for the purpose of this paper means done within the law but no satisfaction while unlawful is out of legal scope such as termination due to misconduct and termination after maternity leave respectively (Chapman, 2009).
According to the labour law in Tanzanian environments contract of employment has three forms. Firstly, contract for unspecified period of time, secondly, contract for a specified period of time and thirdly, contract for a specific task [2] . Section 14 (2) of the Employment and Labour Relations Act’ 2004 stipulates that the contract must be in writing especially when the employee will have to work outside the country.
Unfair termination in the new labour laws enacted in 2004 substitutes unfair dismissal in the repealed labour laws. Though there is such replacement of unfair dismissal in the new labour laws with unfair termination, these two phrases are different in terms of the procedure, substance and resultant benefits. This paper however, is confined to explore fair termination of the contract where both substantive and procedural termination procedures must be properly complied.
Though dismissal is mentioned in the new labour laws is not part of it,[3] as it seems to have been mentioned by slip of pen since there is no point mentioning dismissal but it is not one of the punishments. Termination of employment is a lesser penalty to summarily dismissal, which the employer may opt instead of summary dismissal. Also the Labour Conciliation Board may order substitution of termination for summary dismissal.
Termination of employment attracted the employment benefits which are paid to the employee under the new labour law.
Sections 35 to 40 of the Employment and labour Relations Act of 2004 [4] covers unfair termination of employment. The yard stick for fairness of termination of employment is a valid and fair reason and fair procedure [5] . Unfair termination covers those in employment for at least six months whether probationary or full confirmed employment.
Forms of Termination of Employment Contract
Section 36 and 37 of the Employment and Labour Relations Act of 2004 and Rules 4 to 25 of the Employment and Labour Relations (Code of Good Practice) Rules of 2007 [6] enumerate several forms of termination employment and each form has its procedure, its reason and resultant implications: -
1. Termination by Agreement:
This occurs when the employer and the employee(s) reach an agreement to terminate employment and it is reduced in writing and duly signed by both parties. This mechanism can be used only where the employees consents to termination of employment. The vivid example is on a fixed term contract. In this contract the parties agree in advance the date which the contract will end. And when it reaches the contract terminates automatically unless the contracts provides otherwise.
2. Automatic Termination:
The contract of employment terminates automatically in certain circumstances. For example, on death of sequestration of the employer. Death or bankruptcy of the employee equally terminates the contract of employment. Unless the contract of employment provides otherwise, a contract of employment may terminate automatically when the employee reaches the agreed or normal retirement age. In other words, it may be an implied term of an indefinite contract that the contract terminates on retirement [7] .
3. Refusal to renew a contract:
This as well may be viewed as unfair termination by the employer. Where the employee reasonably expect the renewal of a contract may be considered as unfair termination[8] . This may be applicable to seasonal workers. In this the employee must demonstrate that there is an objective basis for the expectation such as previous renewal. A clause in contract (if at all any) stating that the employee accepts that there is no reasonable expectation of renewal is not a conclusive proof of the matter.
4. Resignation:
Where the employee decides to give notice to terminate employment for whatever reason. It is hereby underscored that this avenue is available to the employee only. The employer cannot just decide to terminate employment like the way the employee can do. The employee can do this by either giving notice or by not giving notice [9] .
5. Constructive termination:
This occurs in instances where the employer makes continued employee intolerable in order for the employee to resign. In such instances the law refers this as forced/constructive termination in the sense that it is as good as that the employer has terminated the employee. Working conditions may be considered intolerable if for instance, the employee is discriminated, harassed, suffering negative change in pay or workload for reasons that are not performance based
[10]
6. Termination of contract of employment due to Misconduct:
Where the employee does not conduct himself in the right manner. The misconducts are categorized into those punishable by warnings or reprimand on initial commissions according to the levels and those punishable by termination of employment on first commissions. The employer is obliged to have fair reason and follow fair procedure as given by the law [11] .
7. Termination due to Incapacity:
Includes general incapacity to deliver in the work employed for, poor performance, ill health and injury. It is important to deal with each case in its merit. To determine fairness of termination for poor work performance, it is important that the performance standard is not only reasonable but is also known to the employee [12] .
8. Incompatibility:
Where the employee is unsuitable due to his character and disposition or that he relates badly with fellow employees and clients or with other people key to the business. [13] Before terminating the employment on this ground, the employer shall give the employee a fair opportunity to: -
i. Consider and reply to the allegations of incompatibility
ii. Remove the cause for disharmony; or
iii. Propose an alternative to termination
9. Termination due to Operational requirement:
The focus here is that being conducted via retrenchment. The law allows retrenchment on three grounds: economic, technological, structural or similar needs of the employer. However, retrenchment process is complicated especially the need for consultation with the trade union and agreeing on the terms and conditions of such retrenchment failure of which the Employer has to institute a matter before the High Court Labour Division of which it turns into a case before the high court.
10. Abscondment:
The employee has disappeared from work place and without notice. If the employee will show up immediately, will have to be charged but if does not show up for a long time then the employer just records in the file that the employee has absconded without further steps.
11. Termination of employment contract due to Dispute of Interest:
The employee may resign and or abscond from employment just because he wants salary increment and cannot work without the said increment.
Not all modalities of termination of employment have specified procedure and specific reasons. The procedural and substantive reason arise when it comes to the following modes of termination[14] :
i. Termination based on misconducts
ii. Termination due to incapacity
iii. Termination based on incompatibility
12. Retrenchment
The majority of unfair termination are based on termination due to misconducts. Once a dispute is filed whose cause of action is based on unfair termination, in the first place the employer is under duty to prove that termination is fair by proving three things [15] :
i. That the reason for termination is valid (substantive)
ii. That the reason for termination is fair (substantive)
iii. That the procedure for termination is fair (procedure)
Termination according to fair procedure.
Stage one: Once the misconduct is committed, the disciplinary authority shall make preliminary investigations before instituting disciplinary proceedings. The disciplinary authority shall frame charges and serve to the employee who is alleged to have committed the offence specifying the offence committed and attach relevant documents if any. The charged employee shall be required to respond in writing in not less than two days i.e. The minimum time given to the employee is 48 hours.
Stage two: The Disciplinary authority shall receive and consider the employee’s response. If the authority still thinks that the employees committed a breach and a need to impose a penalty is still there, the Disciplinary Committee shall be formed (at least 3 – 7 members as it is normally advised) to conduct hearing. The disciplinary committee shall be given the charges which were given to the employee and the response of the employee plus all the evidence attached. In the event the employee’s response exonerates the charged employee from any liability the proceedings shall end there. The Disciplinary Authority is permitted to file supplementary charges any time before the hearing commences at the Disciplinary committee provided that where supplementary charges are filed the Employee shall be given at least 48 hours to respond as well.
Stage three: The Disciplinary Committee shall be constituted immediately to consider the matter. The Committee conducting the hearing shall notify the accused of the day, date, time and place at which the disciplinary hearing shall be conducted. The letter summoning the employee to the disciplinary hearing has to inform the employee of the right to select a fellow employee or a traded union representative in the organization to accompany him. The letter has also to inform the alleged offended of his right to bring with him/her witnesses where it is so deemed.
Stage four: After receiving the Report of the disciplinary Committee and the hearing form, the Disciplinary Authority shall study the recommendations and take the right action. The decision of the disciplinary authority may be to impose the punishment to the charged employee or not. Before imposition of a penalty the law requires the employer to give the employee a chance to mitigate. Where the decision of the disciplinary authority is contrary to the recommendations of the Disciplinary Committee, the reasons for doing so shall be stated thereto. No findings made or penalty imposed by a Disciplinary Authority shall be reversed or set aside on the grounds of any irregularity in the conduct of disciplinary proceedings, which would not substantially have affected the decision of the disciplinary proceedings. Apart from the four steps stated above it is important to understand that the Disciplinary Committees is governed by Rules of natural justice and its quorum is half the members. When the disciplinary process is underway the law allows the employer to suspend the employee on full salary[16] .
The reason for termination has to be valid and fair. This calls for a proof of the reason for termination. Rule 9 (5) of the Code of Good Practice requires the reason for termination to be sufficiently serious [17] . The following are gross misconducts which if proved, the employee can be terminated from employment as fair and valid reason:
i. Absence from work without permission or without acceptable reason for more than five working days.
ii. Gross insubordination.
iii. Gross negligence
iv. Unacceptable work performance, behaviour or consistent work performance below average despite at least two written warnings.
v. Gross Dishonest or any other major breach of trust
vi. Gross incompetence or inefficiency in the performance of work.
vii. Lack of skill, which the employee expressly or impliedly claimed to possess.
viii. Causing serious damage or to loss of the employer’s property or other property such as belonging to other employee, customers or clients, either through gross negligence or willful damage.
ix. Theft or unauthorized possession of the employer’s property or other property belonging to other employees or customers or clients.
x. Fraud or misappropriation of organisational funds
xi. Abusive behaviour, assaults, threatened assaults or other unacceptable conduct towards other employees, customers, clients or members of the public.
xii. Being under the influence of alcohol or drugs whilst at work or consuming alcohol or drugs whilst on duty.
xiii. Criminal conviction relating to an offence which impacts directly or indirectly on the employment relationship.
On the other hand, the following incidences have been specifically provided as unfair reason for termination of employment.
i. The employee discloses the information is entitled to disclose
ii. Fails or refuses to do what the employer may not lawfully permit or require to do
iii. Belonging to any trade union (right of association)
iv. Participates in the lawful activities of trade union including lawful strike
v. Termination on reason related to pregnancy
vi. Termination on reason related to disability
vii. Termination on reason related to discrimination
Section 37(5) of the Employment and Labour Relations Act prohibits termination of the employee where the reasons for termination is an offence whose criminal proceedings are pending. Criminal proceedings starts when the criminal case is filed in court and the employee is charged. So, termination contrary to the quoted provision is unfair. The only right of the employer is to suspend the employee on full pay [18] . However, the employer may terminate an employee for a different misconduct even if there is a pending criminal case. Also the employer should not terminate employment just because the employee is in police or court custody.
Under section 38 (1) of the Employment and Labour Relations Act of 2004, retrenchment has the following procedure: -
i. Notice of intention to retrench.
Consider the situation of dispute where the only communication to the employee was that the services of the employee to the office are no longer required, and that was the reason for termination. The reason was closer to operational requirement which was required to follow the procedure which included notice of intention to retrench, disclosure of information and consultation which were not done and termination shall be declared unfair.
ii. Disclosure of all relevant information on the intended retrenchment
Consultation prior to retrenchment is a key requirement in retrenchment exercise. In the case the labour court finds that there is no consultation, will go ahead to develop the law that even if there is no consultation the Complainant is not prejudice by the non-consultation hence not taken to vitiate the retrenchment. Where there is an agreement the issue ends in case of disagreement the matter has to be referred to labour division.
The reasons for retrenchment includes economic needs that relate to the financial management of the organization; technological needs that make the existing jobs redundant and structural needs. If the Employer and the employees through their bargaining unit fails to reach a consensus the matter can be referred to mediation at CMA and where no settlement reached and after lapse of 30 days, the employer may unilaterally proceed to retrench the employees and such action may be referred to arbitration.
Incapacity entails poor work performance or injury or ill health. For poor work performance there are several measures to consider which includes: -
i. meeting work performance,
ii. awareness to the required work performance,
iii. reasonability of the work standards,
iv. reasons for failure to meet work standards,
v. being afforded opportunity to meet performance standards
In general, poor work performance is a question of facts to be determined under the balance of probabilities [19] . The procedure to deal with poor work performance starts: -
a) with guidance,
b) instructions and or
c) training where necessary to the employee.
Where the performance remains poor the employer is required to warn the employee and inform him that poor work performance may lead to termination of employment.
Where the employee does not improve the employer has to convince a meeting with the employee accompanied with a representative or union representative. During the meeting the employer shall explain the underperformance and the employee shall respond. Thereafter the employer shall give a decision and communicate to the employee. The substance and the procedure for the ill health and injury are covered under Code of Good practice [20] .
Section 40 of the Employment and labour relations Act of 2004 provides three optional remedies to employees who have been unlawfully terminated, these includes: reinstatement without loss of remuneration for the period of unlawful termination, re-engagement, compensation of at least twelve months’ salary. The employer may opt to pay twelve months’ salary in lieu of reinstatement or re-engagement. The remedy section gives discretion to the arbitrator/judge to award in the event the termination is found to be unfair. Apart from the three remedies under section 42 to 44, there are other employment benefits to which the employee is entitled on termination of employment [21] , these includes: -
i. Remuneration for work done before termination
ii. Any Leave pay due to the employee
iii. Severance pay;
iv. One Month Salary in lieu of Notice;
v. Certificate of service.
vi. Transport allowance.
vii. Subsistence allowance while waiting for transport.
Conclusion
Article 4 of the ILO Convention provides the justification for termination of employment, that is, the employment of a worker cannot be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or services
[22] . Article 7 of the Convention provides for the right of an employee to be heard before a termination of decision is taken against the employee. For ease of reference the Article reads:
“The employment of a worker shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity.
[23] ”
Now, in order to decide whether the contract of employment is terminated fairly, there is a need to look at whether there was a fair and valid reason for the termination (substantive fairness). Again, whether the there was a fair procedure (procedural fairness) as required by section 37 (2) of the Tanzanian Labour law [24] . The main theme as one can read from this paper has been to show fair termination by explicating substantive rules to prescribe rights, obligation and standard the matter must be handled. On the other hand, procedural rule is prescribed to mean the rules governing administrative proceedings, evidences, documents legal and administrative processes which to mention but few (Talmon, 2012). It obliging to these that brings fairness to termination of contract of employment.
Bibliography
Chapman, A. (2009). Protection in Relation to Dismissal: From the Workplace Relations Act to The Fair Work Act. UNSW Law Journal , 746-771.
Talmon, S. (2012). Jus Cogens after German v. Italy. Substantive and Procedural Rules Distinguished. Leidan Journal of International Law , 979-1002.
[1] ILO Fundamental Conventions (Convention No 158)
[2] Section 14 (1) of Employment and Labour Relations Act, 2004
[3] Section 37 (5) of Employment and Labour Relations Act, 2004
[4] Section 35 to 40 of Employment and Labour Relations Act, 2004
[5] Section 37 (2)(3) of Employment and Labour Relations Act, 2004
[6] The Employment and Labour Relations (Code of Good Practice) Rules, 2007
[7] Rule 5 of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[8] Rule 4 (5) of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[9] Rule 6 (1 & 2) of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[10] Rule 7 (1 & 2) of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[11] Section 37 (2) and Section 41 – 44 of Employment and Labour Relations Act, 2004
[12] Rule 15 & 16 of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[13] Rule 24 (4) of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[14] Ibid Rule 22
[15] Section 37 (2) of Employment and Labour Relations Act, 2004
[16] Rule 27 of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[17] Rule 9 (5) of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[18] Rule 27 (5) of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[19] Rule 17 of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[20] Rule 19, 20 & 21 of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[21] Section 42, 43 & 44 of Employment and Labour Relations Act, 2004
[22] Article 4 of ILO Convention No. 158 of 1982
[23] Article 7 of ILO Convention No. 158 of 1982
[24] Section 37 (2) of Employment and Labour Relations Act, 2004.
The history behind the law of termination of employment in Tanzania is founded on the ILO Convention number 158 of 1982 [1] on Termination of Employment. It was basically adopted by ILO Member States in 1982. Much as Tanzania is a member of ILO, a large part of the Tanzania law on termination of employment originates for the Convention and Recommendation No. 166. Lawful termination for the purpose of this paper means done within the law but no satisfaction while unlawful is out of legal scope such as termination due to misconduct and termination after maternity leave respectively (Chapman, 2009).
According to the labour law in Tanzanian environments contract of employment has three forms. Firstly, contract for unspecified period of time, secondly, contract for a specified period of time and thirdly, contract for a specific task [2] . Section 14 (2) of the Employment and Labour Relations Act’ 2004 stipulates that the contract must be in writing especially when the employee will have to work outside the country.
Unfair termination in the new labour laws enacted in 2004 substitutes unfair dismissal in the repealed labour laws. Though there is such replacement of unfair dismissal in the new labour laws with unfair termination, these two phrases are different in terms of the procedure, substance and resultant benefits. This paper however, is confined to explore fair termination of the contract where both substantive and procedural termination procedures must be properly complied.
Though dismissal is mentioned in the new labour laws is not part of it,[3] as it seems to have been mentioned by slip of pen since there is no point mentioning dismissal but it is not one of the punishments. Termination of employment is a lesser penalty to summarily dismissal, which the employer may opt instead of summary dismissal. Also the Labour Conciliation Board may order substitution of termination for summary dismissal.
Termination of employment attracted the employment benefits which are paid to the employee under the new labour law.
Sections 35 to 40 of the Employment and labour Relations Act of 2004 [4] covers unfair termination of employment. The yard stick for fairness of termination of employment is a valid and fair reason and fair procedure [5] . Unfair termination covers those in employment for at least six months whether probationary or full confirmed employment.
Forms of Termination of Employment Contract
Section 36 and 37 of the Employment and Labour Relations Act of 2004 and Rules 4 to 25 of the Employment and Labour Relations (Code of Good Practice) Rules of 2007 [6] enumerate several forms of termination employment and each form has its procedure, its reason and resultant implications: -
1. Termination by Agreement:
This occurs when the employer and the employee(s) reach an agreement to terminate employment and it is reduced in writing and duly signed by both parties. This mechanism can be used only where the employees consents to termination of employment. The vivid example is on a fixed term contract. In this contract the parties agree in advance the date which the contract will end. And when it reaches the contract terminates automatically unless the contracts provides otherwise.
2. Automatic Termination:
The contract of employment terminates automatically in certain circumstances. For example, on death of sequestration of the employer. Death or bankruptcy of the employee equally terminates the contract of employment. Unless the contract of employment provides otherwise, a contract of employment may terminate automatically when the employee reaches the agreed or normal retirement age. In other words, it may be an implied term of an indefinite contract that the contract terminates on retirement [7] .
3. Refusal to renew a contract:
This as well may be viewed as unfair termination by the employer. Where the employee reasonably expect the renewal of a contract may be considered as unfair termination[8] . This may be applicable to seasonal workers. In this the employee must demonstrate that there is an objective basis for the expectation such as previous renewal. A clause in contract (if at all any) stating that the employee accepts that there is no reasonable expectation of renewal is not a conclusive proof of the matter.
4. Resignation:
Where the employee decides to give notice to terminate employment for whatever reason. It is hereby underscored that this avenue is available to the employee only. The employer cannot just decide to terminate employment like the way the employee can do. The employee can do this by either giving notice or by not giving notice [9] .
5. Constructive termination:
This occurs in instances where the employer makes continued employee intolerable in order for the employee to resign. In such instances the law refers this as forced/constructive termination in the sense that it is as good as that the employer has terminated the employee. Working conditions may be considered intolerable if for instance, the employee is discriminated, harassed, suffering negative change in pay or workload for reasons that are not performance based
[10]
6. Termination of contract of employment due to Misconduct:
Where the employee does not conduct himself in the right manner. The misconducts are categorized into those punishable by warnings or reprimand on initial commissions according to the levels and those punishable by termination of employment on first commissions. The employer is obliged to have fair reason and follow fair procedure as given by the law [11] .
7. Termination due to Incapacity:
Includes general incapacity to deliver in the work employed for, poor performance, ill health and injury. It is important to deal with each case in its merit. To determine fairness of termination for poor work performance, it is important that the performance standard is not only reasonable but is also known to the employee [12] .
8. Incompatibility:
Where the employee is unsuitable due to his character and disposition or that he relates badly with fellow employees and clients or with other people key to the business. [13] Before terminating the employment on this ground, the employer shall give the employee a fair opportunity to: -
i. Consider and reply to the allegations of incompatibility
ii. Remove the cause for disharmony; or
iii. Propose an alternative to termination
9. Termination due to Operational requirement:
The focus here is that being conducted via retrenchment. The law allows retrenchment on three grounds: economic, technological, structural or similar needs of the employer. However, retrenchment process is complicated especially the need for consultation with the trade union and agreeing on the terms and conditions of such retrenchment failure of which the Employer has to institute a matter before the High Court Labour Division of which it turns into a case before the high court.
10. Abscondment:
The employee has disappeared from work place and without notice. If the employee will show up immediately, will have to be charged but if does not show up for a long time then the employer just records in the file that the employee has absconded without further steps.
11. Termination of employment contract due to Dispute of Interest:
The employee may resign and or abscond from employment just because he wants salary increment and cannot work without the said increment.
Not all modalities of termination of employment have specified procedure and specific reasons. The procedural and substantive reason arise when it comes to the following modes of termination[14] :
i. Termination based on misconducts
ii. Termination due to incapacity
iii. Termination based on incompatibility
12. Retrenchment
The majority of unfair termination are based on termination due to misconducts. Once a dispute is filed whose cause of action is based on unfair termination, in the first place the employer is under duty to prove that termination is fair by proving three things [15] :
i. That the reason for termination is valid (substantive)
ii. That the reason for termination is fair (substantive)
iii. That the procedure for termination is fair (procedure)
Termination according to fair procedure.
Stage one: Once the misconduct is committed, the disciplinary authority shall make preliminary investigations before instituting disciplinary proceedings. The disciplinary authority shall frame charges and serve to the employee who is alleged to have committed the offence specifying the offence committed and attach relevant documents if any. The charged employee shall be required to respond in writing in not less than two days i.e. The minimum time given to the employee is 48 hours.
Stage two: The Disciplinary authority shall receive and consider the employee’s response. If the authority still thinks that the employees committed a breach and a need to impose a penalty is still there, the Disciplinary Committee shall be formed (at least 3 – 7 members as it is normally advised) to conduct hearing. The disciplinary committee shall be given the charges which were given to the employee and the response of the employee plus all the evidence attached. In the event the employee’s response exonerates the charged employee from any liability the proceedings shall end there. The Disciplinary Authority is permitted to file supplementary charges any time before the hearing commences at the Disciplinary committee provided that where supplementary charges are filed the Employee shall be given at least 48 hours to respond as well.
Stage three: The Disciplinary Committee shall be constituted immediately to consider the matter. The Committee conducting the hearing shall notify the accused of the day, date, time and place at which the disciplinary hearing shall be conducted. The letter summoning the employee to the disciplinary hearing has to inform the employee of the right to select a fellow employee or a traded union representative in the organization to accompany him. The letter has also to inform the alleged offended of his right to bring with him/her witnesses where it is so deemed.
Stage four: After receiving the Report of the disciplinary Committee and the hearing form, the Disciplinary Authority shall study the recommendations and take the right action. The decision of the disciplinary authority may be to impose the punishment to the charged employee or not. Before imposition of a penalty the law requires the employer to give the employee a chance to mitigate. Where the decision of the disciplinary authority is contrary to the recommendations of the Disciplinary Committee, the reasons for doing so shall be stated thereto. No findings made or penalty imposed by a Disciplinary Authority shall be reversed or set aside on the grounds of any irregularity in the conduct of disciplinary proceedings, which would not substantially have affected the decision of the disciplinary proceedings. Apart from the four steps stated above it is important to understand that the Disciplinary Committees is governed by Rules of natural justice and its quorum is half the members. When the disciplinary process is underway the law allows the employer to suspend the employee on full salary[16] .
The reason for termination has to be valid and fair. This calls for a proof of the reason for termination. Rule 9 (5) of the Code of Good Practice requires the reason for termination to be sufficiently serious [17] . The following are gross misconducts which if proved, the employee can be terminated from employment as fair and valid reason:
i. Absence from work without permission or without acceptable reason for more than five working days.
ii. Gross insubordination.
iii. Gross negligence
iv. Unacceptable work performance, behaviour or consistent work performance below average despite at least two written warnings.
v. Gross Dishonest or any other major breach of trust
vi. Gross incompetence or inefficiency in the performance of work.
vii. Lack of skill, which the employee expressly or impliedly claimed to possess.
viii. Causing serious damage or to loss of the employer’s property or other property such as belonging to other employee, customers or clients, either through gross negligence or willful damage.
ix. Theft or unauthorized possession of the employer’s property or other property belonging to other employees or customers or clients.
x. Fraud or misappropriation of organisational funds
xi. Abusive behaviour, assaults, threatened assaults or other unacceptable conduct towards other employees, customers, clients or members of the public.
xii. Being under the influence of alcohol or drugs whilst at work or consuming alcohol or drugs whilst on duty.
xiii. Criminal conviction relating to an offence which impacts directly or indirectly on the employment relationship.
On the other hand, the following incidences have been specifically provided as unfair reason for termination of employment.
i. The employee discloses the information is entitled to disclose
ii. Fails or refuses to do what the employer may not lawfully permit or require to do
iii. Belonging to any trade union (right of association)
iv. Participates in the lawful activities of trade union including lawful strike
v. Termination on reason related to pregnancy
vi. Termination on reason related to disability
vii. Termination on reason related to discrimination
Section 37(5) of the Employment and Labour Relations Act prohibits termination of the employee where the reasons for termination is an offence whose criminal proceedings are pending. Criminal proceedings starts when the criminal case is filed in court and the employee is charged. So, termination contrary to the quoted provision is unfair. The only right of the employer is to suspend the employee on full pay [18] . However, the employer may terminate an employee for a different misconduct even if there is a pending criminal case. Also the employer should not terminate employment just because the employee is in police or court custody.
Under section 38 (1) of the Employment and Labour Relations Act of 2004, retrenchment has the following procedure: -
i. Notice of intention to retrench.
Consider the situation of dispute where the only communication to the employee was that the services of the employee to the office are no longer required, and that was the reason for termination. The reason was closer to operational requirement which was required to follow the procedure which included notice of intention to retrench, disclosure of information and consultation which were not done and termination shall be declared unfair.
ii. Disclosure of all relevant information on the intended retrenchment
Consultation prior to retrenchment is a key requirement in retrenchment exercise. In the case the labour court finds that there is no consultation, will go ahead to develop the law that even if there is no consultation the Complainant is not prejudice by the non-consultation hence not taken to vitiate the retrenchment. Where there is an agreement the issue ends in case of disagreement the matter has to be referred to labour division.
The reasons for retrenchment includes economic needs that relate to the financial management of the organization; technological needs that make the existing jobs redundant and structural needs. If the Employer and the employees through their bargaining unit fails to reach a consensus the matter can be referred to mediation at CMA and where no settlement reached and after lapse of 30 days, the employer may unilaterally proceed to retrench the employees and such action may be referred to arbitration.
Incapacity entails poor work performance or injury or ill health. For poor work performance there are several measures to consider which includes: -
i. meeting work performance,
ii. awareness to the required work performance,
iii. reasonability of the work standards,
iv. reasons for failure to meet work standards,
v. being afforded opportunity to meet performance standards
In general, poor work performance is a question of facts to be determined under the balance of probabilities [19] . The procedure to deal with poor work performance starts: -
a) with guidance,
b) instructions and or
c) training where necessary to the employee.
Where the performance remains poor the employer is required to warn the employee and inform him that poor work performance may lead to termination of employment.
Where the employee does not improve the employer has to convince a meeting with the employee accompanied with a representative or union representative. During the meeting the employer shall explain the underperformance and the employee shall respond. Thereafter the employer shall give a decision and communicate to the employee. The substance and the procedure for the ill health and injury are covered under Code of Good practice [20] .
Section 40 of the Employment and labour relations Act of 2004 provides three optional remedies to employees who have been unlawfully terminated, these includes: reinstatement without loss of remuneration for the period of unlawful termination, re-engagement, compensation of at least twelve months’ salary. The employer may opt to pay twelve months’ salary in lieu of reinstatement or re-engagement. The remedy section gives discretion to the arbitrator/judge to award in the event the termination is found to be unfair. Apart from the three remedies under section 42 to 44, there are other employment benefits to which the employee is entitled on termination of employment [21] , these includes: -
i. Remuneration for work done before termination
ii. Any Leave pay due to the employee
iii. Severance pay;
iv. One Month Salary in lieu of Notice;
v. Certificate of service.
vi. Transport allowance.
vii. Subsistence allowance while waiting for transport.
Conclusion
Article 4 of the ILO Convention provides the justification for termination of employment, that is, the employment of a worker cannot be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or services
[22] . Article 7 of the Convention provides for the right of an employee to be heard before a termination of decision is taken against the employee. For ease of reference the Article reads:
“The employment of a worker shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity.
[23] ”
Now, in order to decide whether the contract of employment is terminated fairly, there is a need to look at whether there was a fair and valid reason for the termination (substantive fairness). Again, whether the there was a fair procedure (procedural fairness) as required by section 37 (2) of the Tanzanian Labour law [24] . The main theme as one can read from this paper has been to show fair termination by explicating substantive rules to prescribe rights, obligation and standard the matter must be handled. On the other hand, procedural rule is prescribed to mean the rules governing administrative proceedings, evidences, documents legal and administrative processes which to mention but few (Talmon, 2012). It obliging to these that brings fairness to termination of contract of employment.
Bibliography
Chapman, A. (2009). Protection in Relation to Dismissal: From the Workplace Relations Act to The Fair Work Act. UNSW Law Journal , 746-771.
Talmon, S. (2012). Jus Cogens after German v. Italy. Substantive and Procedural Rules Distinguished. Leidan Journal of International Law , 979-1002.
[1] ILO Fundamental Conventions (Convention No 158)
[2] Section 14 (1) of Employment and Labour Relations Act, 2004
[3] Section 37 (5) of Employment and Labour Relations Act, 2004
[4] Section 35 to 40 of Employment and Labour Relations Act, 2004
[5] Section 37 (2)(3) of Employment and Labour Relations Act, 2004
[6] The Employment and Labour Relations (Code of Good Practice) Rules, 2007
[7] Rule 5 of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[8] Rule 4 (5) of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[9] Rule 6 (1 & 2) of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[10] Rule 7 (1 & 2) of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[11] Section 37 (2) and Section 41 – 44 of Employment and Labour Relations Act, 2004
[12] Rule 15 & 16 of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[13] Rule 24 (4) of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[14] Ibid Rule 22
[15] Section 37 (2) of Employment and Labour Relations Act, 2004
[16] Rule 27 of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[17] Rule 9 (5) of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[18] Rule 27 (5) of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[19] Rule 17 of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[20] Rule 19, 20 & 21 of the Employment and Labour Relations Act (Code of Good Practice) Rules 2007
[21] Section 42, 43 & 44 of Employment and Labour Relations Act, 2004
[22] Article 4 of ILO Convention No. 158 of 1982
[23] Article 7 of ILO Convention No. 158 of 1982
[24] Section 37 (2) of Employment and Labour Relations Act, 2004.
