From the Act, it appears that there can not be an unfair termination to an employee within the first 6 months:
Sub-Part E- Unfair termination of employment
35. The provisions of this Sub-Part shall not apply to an employee with less than 6 months' employment with the same employer, whether under one or more contracts .
Sub-Part E, inacover sections 35-40!
I do not concur with you my friend. What you say, to my experience that is the running point for all those do not want to think outside the box. People who do not want reasoning, they always jumps to that Section so as to conclude matter and get paid for their poor thinking (Here referring those dealing with Human Resources or Clerks at CMA). If you go back to scholars "Law is all about reasoning…." Legal Methods will give you the tools for argument.
Your right for the Sub Section you quote, you have to know that in ELR Act there is NO
Part, Sub-Part, Section or Sub-Section that's bigger or it make more sense than the others when we are interpreting Law. But when we are reading statutes, none should contravene with Constitution, if so we declared void. For you to understand me well please follow through below arguments;
1. The United Republic of TZ Constitution gives people the right to work "HAKI YAKUFANYA KAZI". It goes further defining what is KAZI,
Article 9 (e), also the Government committed itself as per
Article 11 (1) that "Mamlaka ya Nchi itaweka utaratibu unaofaa kwa ajili ya kufanikisha utekelezaji wa haki ya mtu kufanya kazi, ……………"
. This means no one under territory has power to stop a person to work as long as is legal work without any reason there to. The same you can read on
Article 22 (1). Now who is employer to stop employee working without following procedures and without reasons?
Yes we all know that ELR Act gives power to employer to terminate employee, but not as he/she wish. There are procedures for doing that. Refers to
Section 38 of the ELR Act, Rule 4 (1) to (4), Rule 8 (1) (c ) to (d), Rule (8) (2) (c ) to (d), Rule 9 , 10, 13, 14, 18, 19, 21, and 23 of G.N. No 42. For that now I can say relaying only on
Section 35 without arguing or reasoning on the facts/merits of the dispute it is injustice.
2. Again look here! The Aggrieved (Congo) on his/her referred form (CMA F1) claims for
"………Niliomba kurudishwa kazini kwa sababu taratibu za kufukuzwa hazikifuatwa kwa kuwa sikusikilizwa.……………'' This as per the Law is
unfair termination [Section 37 (2) (c )], because the procedures were not followed during termination process. And to me this was supposed to be one of the issue in dispute.
Section 39 says
"In any proceedings concerning unfair termination of an employee by an employer, the employer shall prove that the termination is fair". Emphasis is mine. But here we find that Arbitrator comments on his/her own knowledge that "……………..
akasema kuwa mfanyakazi aliyefanya kazi chini ya miezi sita hana haki ya kudai kurudishwa kazini wala kudai haki yoyote kwa kuwa haki ya kurudishwa kazini au kulipwa ni kwa waajiriwa waliofanya kazi zaidi ya miezi sita………….." emphasis is mine. Now you tell me where in the ELR Act on remedy it provide that HAKI YA KURUDISHWA KAZINI AU KULIPWA NI KWA WAAJIRIWA WALIOFANYA KAZI ZAIDI YA MIEZI SITA? Huu ni uvivu wa kufikiri wa mwamuzi na wewe unayeunga mkono swala hili. It was employer task to prove termination was fair as per quoted Section above.
3. Far from that, the other thing you should know is that the aggrieved (Congo) on the topic dated 18 Oct 2011 he/she said that I quote "…….Taratibu zote za ajira zilifuatwa. Bahati mbaya nikiwa nimetimiza miezi miwili kukatokea kutoelewana pale kazini kati yangu na mmoja wa wamiliki wa kampuni.
Baada ya siku mbili nikapewa barua ya kufukuzwa kazi………" emphasis is mine. Here Congo was not given his/her right to be heard, and here you will agree with me that natural justices were violated. Not only natural justices but also ELR Act was also violated because it provide procedures to follow when terminating employee under probation, refers to
Rule 10 of G.N. No 42. What we found here employer did not follow the Law.
4. Without going further on other authorities, you need to know "
who is an employee?"
Please you must read Section 4 (interpretation) of ELR Act to understand what employee means, once your comfortable with meaning. Let me take you to
Sub-Part E with Section 35 as you quoted. This Sub-Part and Section will fit very well for an employee with
fixed term contract or
seasonal employment or
applicant for employment (Section 7 (9) (b) of ELR Act, and their employment has less than 6 months. Other wise no where you can easily say the quoted Section will be the ruling for such unfair termination.
I beg to submit and will appreciate to have your response.
Kind regards
Jamuhuri Huru
