Sources of regulation
The central source of legislative regulation on the termination of employment
in the United Republic of Tanzania is the Employment and Labour Relations
Act, 2004, (ELRA). It repeals the Security of Employment Act 1964, the Employment
Ordinance 1956 and the Severance Allowance Act 1962 in whole under section
1.03.1 of the ELRA. The repealed legislation was previously the main source
of regulation.
Scope of legislation
Sec. 2 of the ELRA excludes from its ambit members of the armed forces,
the police, the prison service and the civil service.
Sec. 35 of the ELRA states that Sub-Part E, regulation related to
Unfair Termination of Employment, does not apply to an employee with less
than six months of employment with the same employer, whether under one or
more contracts.
Contracts of employment
The ELRA (Sec. 14) states that a contract with an employee can be
a contract for an unspecified time, a contract for a specified period of
time for professionals and managerial cadre or a contract for a specific
task. A contract may be either in writing or oral, though the employer must
supply the employee with a written statement of ‘particulars’ including the
name, age, address and sex of the employee, the place of recruitment, the
job description, the date of commencement, the form and duration of the contract,
the place of work, the hours of work, remuneration and benefits, and other
prescribed information (ELRA Sec. 15).
Termination of employment
Sec. 36 of the ELRA states that for the purpose of Sub-Part E, ‘Unfair
Termination of Employment’ of the ELRA, ‘termination of employment’ includes:
- lawful
termination under the common law,
- termination
by the employee because the employer made continued employment intolerable
for the employee,
- failure
to renew a fixed term contract on the same or similar terms if there was
a reasonable expectation of renewal,
- failure
to allow the employee to resume work after taking maternity leave granted
under the ELRA or any agreed maternity leave,
- failure
to re-employ an employee if the employer has terminated the employment
of a number of employees for the same or similar reasons and had later
offered
to re-employ one or more of them.
Dismissal
Sec. 37, ELRA states that employees may not be dismissed unfairly
by an employer. Termination of employment is unfair if the employer fails
to prove that the reason for the termination is valid, that the reason is
fair and that the employment was terminated in accordance with fair procedure.
A ‘fair’ reason is one that is related to the employee’s conduct, capacity
or compatibility; or is based on the operational requirements of the employer.
It is not seen to be fair to dismiss the employee if the employee discloses
information that the employee is entitled to or required to disclose, fails
or refuses to do anything that an employee may not lawfully permit or require
the employee to do, exercises any right conferred by agreement, belongs to
a trade union or participates in lawful activities of a trade union, including
a lawful strike. It is also seen to be unfair to dismiss an employee for
reasons related to pregnancy, disability or reasons that constitute discrimination
under the Act.
The ELRA repeals previous legislation that allows summary dismissal.
References to summary dismissal that precede the Act are to be dealt with
as if the repealed law had not been repealed (Schedule 3, Sec. 8.1).
Notice and prior procedural safeguards
If a contract of employment can be terminated on notice, the required period
of notice is at least 28 days if the employee is employed on a monthly basis.
The required notice period is seven days if given in the first month of employment
and four days if the employee is employed on a daily or weekly basis. A longer
notice period may be agreed upon by the parties, provided that the notice
period is of equal duration for the employer and employee. (Sec. 41, ELRA).
Notice of termination must be in writing, and must include the reasons for
termination and the date on which notice was given. Notice may not be given
when the employee is on leave, and may not run concurrently with any period
of leave.
An employer may choose to pay the employee the remuneration the employee
would have received had s/he worked for the duration of the notice period (Sec.
41.5, ELRA). If an employee refuses to work during the notice period,
the employer may deduct from the total amount owed the amount that would
have been due if the employee had worked during the notice period (Sec.
41.6, ELRA)
In termination for operational requirements, the employer is required to
give notice, disclose all relevant information and consult any trade union
recognized by the ELRA, any registered trade union with members in the workplace
not represented by a recognized trade union, or any employees not represented
by a recognised or registered trade union (Sec. 38.1.d, ELRA).
Severance pay
The Act defines ‘severance pay’ as an amount equal to seven days basic wage
for each completed year of continuous service with that employer up to a
maximum of ten years. (Sec. 42.1, ELRA)
An employer is required to pay severance on termination of employment if
the employee has completed 12 months of continuous service with an employer
and the employer terminates the employment (Sec. 42.2, ELRA).
Severance is not required to be paid:
- if
the termination is fair on grounds of misconduct, or
- to
an employee who is terminated on grounds of capacity, compatibility or
operational requirements who unreasonably refuses to accept alternative
employment with
that employer or any other employer.
Avenues for redress
The Labour Court, i.e. the Labour Division of the High Court, has exclusive
jurisdiction over the application, interpretation and implementation of provisions
of the ELRA subject to compliance with the Constitution of the United Republic
of Tanzania, 1977.
An employee who wishes to contest a dismissal may refer the dispute to the
Commission for Mediation and Arbitration established under section 12 of
the Labour Institutions Act of 2004 (No. 7). The Commission will appoint
a mediator to mediate the dispute, decide the time, date and place of the
mediation hearing and advise the parties of this. (Sec. 86.3, ELRA).
The mediator should resolve the matter within thirty days of the referral
or longer if the parties agree to it. Under certain circumstances enumerated
in section 87, the mediator may unilaterally shorten or lengthen the thirty-day
period or dismiss the claim (Sec. 86.4, ELRA).
In mediation, the parties may be represented by their trade union, or an
advocate (Sec. 86.6, ELRA). The Commission may reverse the decision
made by the mediator if for example application is made in the prescribed
manner and if the Commission is satisfied that there are good grounds for
failing to attend the hearing.
Where the mediator fails to resolve the complaint within the agreed upon
period of time, it is referred to either arbitration or to the Labour Court.
The Labour Court may refuse to hear a complaint if the complaint has not
been referred to mediation, if the mediation has not been conducted according
to the ELRA, or if the application is not urgent (Sec. 94.2, ELRA).
For the purposes of arbitration, a dispute is defined to include a complaint
over the fairness or lawfulness of an employee’s termination of employment (Sec.
88.1.b, ELRA). Having failed to resolve the dispute in mediation, the
Commission appoints an arbitrator, determines the time, date and place of
the arbitration hearing and advises the parties of this (Sec. 88.3, ELRA). The
arbitration is decided and conducted in a manner that the arbitrator sees
as appropriate (Sec. 88.4 and Sec. 88.5). In an arbitration hearing,
the parties may be represented by the party’s trade union or an advocate (Sec.
88.7, ELRA). An arbitration award made under the ELRA is binding upon
the parties to the dispute (Sec. 89.1, ELRA). An arbitration award
may be served and executed in Labour Court as if it were a decree of a court
of law (Sec. 89.2, ELRA).
Any party that alleges a defect in the arbitration proceedings under the
auspices of the Commission may apply to the Labour Court for a decision to
set aside the arbitration award within six weeks of the date the award was
settled on the applicant or if the award involves improper procurement, within
six weeks of the date the applicant discovers the fact. The Labour Court
may set aside an arbitration award under the ELRA on the grounds that there
was misconduct on the part of the arbitrator and that the award was improperly
procured (Sec. 91.2, ELRA). Where the award is set aside, the Labour
Court may resolve the dispute in a manner it sees appropriate (Sec. 91.4, ELRA).
The Arbitration Ordinance does not apply to an arbitration conducted by the
Commission.
In any proceedings concerning unfair termination of an
employee by an employer, the employer has to prove that the termination
is fair (Sec. 39, ELRA).
If an arbitrator or Labour Court finds a termination is unfair, they may order the employer:
- to
reinstate the employee; or
- to
pay compensation to the employee of not less than twelve months’ remuneration
(Sec. 91.4, ELRA).
Further information
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