Tanzania: Probationary Employees In Tanzania - The Law And Practice

A probationary employee is an employee who is employed by an employer and placed in a trial period for purposes of being observed, to ascertain if he is a good fit for the employer in question and to ascertain if the said employee is competent to do the job he has been hired to do.¹

Rights of probationary employees in Tanzania are provided both under the Employment and Labour Relations Act ² as well as the Employment and Labour Relations (Code of Good Practice) Rules³.

According to the Employment and Labour Relations Act, as well as the Employment and Labour Relations (Code of Good Practice) Rules, employees who have worked with the same employer for a period of six months or less, are not protected by the two Laws; and provisions of the said two laws when it comes to unfair termination are not applicable to such employees.

Sub Part E of the Employment and Labour Relations Act provides essentially for procedures that an employer ought to follow before terminating the employment of an employee. The said Employment and Labour Relations Act clearly provides that it is unfair for employers to terminate an employee's employment unfairly. According to the said Act, if an employer fails to prove that the reason for termination was fair, and the proper procedure was followed, such termination shall be taken as unfair and shall entitle the employee to get compensated accordingly.⁴

In other words, according to the Employment and Labour Relations Act, as well as the Employment and Labour Relations (Code of Good Practice) Regulations, employees who have worked for less than six months for an employer are not afforded protection under the Law with regards to fairness of procedure and fairness of the reason for termination of their employment.

Rights of Probationary Employees:

Protection for Probationary employees under the Employment and Labour Relations (Code of Good Practice) Rules is provided under the condition that said employees have worked for the same employer for a period of six months and above. Employees who are under probation for less than six months, and are terminated whilst still under probation are unfortunately not afforded protection through provisions of the law related to unfair termination.

In simpler language, under the Employment and Labour Relations Act, as well as the Employment and Labour Relations (Code of good practice) Rules, employers are not required to follow the procedure laid down under Sub-part E of the Employment and Labour Relations Act as well as under the guidelines contained in the Code of Good practice, in circumstances where the employee in question, whether under probation or otherwise, has worked for that particular employer for a period of less than six months.

Tanzanian Courts have on numerous occasions ruled in accordance with this position when given opportunities to adjudicate on the rights of probationary employees who have worked for less than six months for a particular employer. In one such case, when the High Court of Tanzania (Labour Division) had to determine whether the Commission for Mediation and Arbitration had jurisdiction to entertain a Complaint for unfair termination filed by employees who were terminated whilst under probationary periods of less than six months, the Court decided that the Commission for Mediation and Arbitration lacked such jurisdiction, for the reason that the said employees were never confirmed, and had been employed for less than six months. The Court went further and referred to section 35 of the Employment and Labour Relations Act which specifically states that provisions related to unfair termination of employment would not apply to employees with less than six months of employment with the same employer. ⁵

Obligations of Employers to Probationary employees:

Rule 10 of the Employment and Labour Relations Code of Good Practice) Rules require the employer to observe the following as far as probationary employees are concerned: -

• To ensure that the employee is made aware of the terms of employment prior to commencement of said employment

• To ensure that the Probation period is of a reasonable time, of not more than 12 months and to have regard to factors such as nature of the job, the standards required as well as the custom and practice in the sector

• Not to extend the probation period unless such extension is done after consultation with the employee, and such extension is for a reasonable period, provided that such extension is only done if the employer has not yet been able to assess whether the employee is competent to do the job or is suitable for employment.

Under the same Rule, the employer is further required to ensure that the employee's performance and suitability is monitored and evaluated from time to time and to ensure that frequent meetings are carried out with the said employee for the purpose of discussing the employee's evaluation as well as providing guidance to the said employee.

In circumstances where the employer is concerned that the employee is not performing to the required standard, the employer is required to notify the employee of the said concern and to further give the employee an opportunity to respond or, an opportunity to improve. The said employee has a right to be represented during a meeting with his employer to discuss performance related issues.⁶

Fair Termination of employment for Probationary Employees:

According to Rule 10 (8) of the Employment and Labour Relations (Code of Good Practice), the employment of a Probationary employee shall only be terminated under the following circumstances: -

• The employee has been informed of the employer's concerns
• The employee has been given an opportunity to respond to said concerns
• The employee has been given enough and reasonable time to improve performance or correct behaviour and has failed to do so

One of the biggest areas of controversy as far as the rights of probationary employees in Tanzania are concerned is whether upon expiration of the probation period, an employee is automatically confirmed, or, if a probationary employee's confirmation is subject to actual and express communication of such confirmation by the employer.

In the same light, there also arises the question of what a probationary employee's rights are in circumstances where they have been kept under probation without being confirmed for longer than the statutorily provided period of twelve months.

In 2019, the Court of Appeal of Tanzania (David Nzaligo v. NMB) had an opportunity to adjudicate upon the rights of probationary employees,⁷ and among the questions that the Court needed to address was whether an employee who continued to work beyond the period of probation became automatically confirmed to the position, even in the absence of a confirmation letter. The Court had this to say on page 19 of the said Case,

"We are therefore of the view that confirmation of an employee on probation is subject to fulfilment of established conditions and expiration of set period of probation does not automatically lead to change of status from a probationer to confirmed employee"

Due to the precedent set by the David Nzaligo Case, it is now an established principle in Tanzania that mere ending of the probation period does not result to automatic confirmation. The Court of Appeal establishes a requirement for employees to first be issued with a confirmation letter in accordance with the terms of the Contract of employment, before they can claim to be full employees and therefore benefit from provisions of the Employment and Labour Relations Act related to unfair termination of Employment.

The case went further and ruled that employees who are under probation, and have not yet been confirmed by the employer, cannot benefit under provisions of Part III Sub Part "E" of the Employment and Labour Relations Act, which is the part addressing unfair termination of employment. In the said Judgment, the Court states;

Whilst we are aware of the appellant's counsel submissions that the appellant probation exceeded the six months threshold by about 11 days prior to resigning, but since the probation period was yet to be declared to have ended, at the time the appellant was still on probation, we are of the view that a probationer in such a situation, cannot enjoy the rights and benefits enjoyed by a confirmed employee. Having regard to the circumstances of the present case, can it be said that the said provision covers the appellant's situation, since the record of appeal reveals that the

appellant worked for more than 6 months with the same employer. We find that the import of section 35 of ELRA though it addresses the period of employment and not the status of employment, the fact that a probationer is under assessment and valuation can in no way lead to circumstances that can be termed unfair termination.⁸ (Emphasis ours)

In the case quoted above, the employee in question had worked for only 11 days beyond the probation period. The employee in question also resigned and filed a Complaint at the Commission for Mediation and Arbitration, claiming compensation for unfair termination since he was forced to resign after the employer made continued employment difficult.

The above quoted decision specifically states that a "probationer in such circumstances...", a statement that can be interpreted to mean circumstances in which one has exceeded the probation period for only eleven days, and further circumstances where the employee in question has resigned and later on filed a complaint for unfair termination.

Will it then be proper to put all probationary employees whose employments have been terminated under the same test, and reach the same conclusion reached by the Court of Appeal in the David Nzaligo case? What then of those employees who have worked for more than 12 months with the same employer without being confirmed and later on terminated as probationary employees? Will the same rule apply, that since no letter of confirmation was issued, they cannot benefit from provisions of Part III Sub Part "E" of the Employment and Labour Relations Act?

It is an established principle of the law that parties are bound by their Contract. The coming to end of a probation period as provided under the Contract of employment should be followed by the requisite actions on the part of the employer, as per the Contract of employment and as per the Law. Specifically, Employers ought to ensure that once the probation period ends, the employee is either issued with a letter of confirmation, or, if the employer feels that the said employee is not suitable for the position, then procedures under Rule 10 of the Employment and Labour Relations (Code of Good Practice) Rules, ought to be followed.

We will go a step further and advise employees to, rather than staying quiet upon noting that the probation period has expired, to ensure that they communicate this to their employers, and to remind the employer to adhere to the terms of the Contract of employment as well as to the Law.

What Remedy does a Probationary Employee who challenges their termination have

Ally Kileo, in his book titled "Comprehensive issues of Employment and Labour Law"⁹ analyses unfair labour practices as far as probationary employees are concerned. He states that although probationary employees cannot sue for unfair termination of their employment they can sue or file a dispute for unfair labour practice relating to probation in terms of the Employment and Labour Relations Act.

According to Kileo (supra) if an employer fails to comply with the law but terminates probationary employees without due regard to procedure laid down under Rule 10 (1 to 10) of Employment and Labour Relations Code of Good Practice Rules, 2007, he is inconsistent with the code and therefore not consistent with the purpose of probation, and such conduct constitutes unfair labour practices. He goes further to state that unfair labour practices may be procedural or substantive.

Kileo¹⁰ refers to Agness B. Ruhere v. UTT Microfinance PLC¹¹ where the High Court of Tanzania Labour Division had to determine a probationary employee's application based on unfair Labour Practices. The Court held that the Applicant was right to claim that the employer did not follow the procedure before terminating her employment, something which amounts to unfair labour practices relating to probation. The Court quoted Carole Cooper from Cooper "Unfair Labour Practice" at p. 557 who states,

"Detailed guidelines are laid down in respect of substantive and procedural fairness in the dismissal of probationary employee. In particular, probationary employees are entitled to a reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service. While the dismissal of probationary employees is excluded from the ambit of section 186(2)(a[12]) it is likely that forms part of conduct prescribed by the guidelines will in the absence of justification be regarded as unfair labour practice in relation to probation."

This means, scenarios where employees have been working for employers for longer than twelve months without being confirmed, or where employees under probation are terminated without following the procedure laid down under the Employment and Labour Relations (Code of Good Practice) Rules, they can challenge the termination through filing a complaint for unfair labour practices at the Commission for Mediation and Arbitration.

Conclusion

The Employment and Labour Relations Act as well as the Employment and Labour Relations (Code of Good Practice) Rules have stated that provisions relating to unfair termination of employment shall not be applicable to employees who have been with the same employer for less than six months.

Interpretation of Section 35 of the Employment and Labour Relations Acts as well as Rule 10 of the Employment and Labour Relations Code of good practice Rules, by the Court of Appeal has however gone a step further, and established the principle that probationary employees were not envisioned by Section 35 of the Act (supra) as well as Rule 10 of the Rules(Supra) and as such, made claims by employees who have been under probation for even longer periods than six months, to not succeed in claims of unfair termination at the Commission for Mediation and Arbitration.

Although Probationary employees still have room to challenge termination through filing claims of unfair labour practices at the Commission for Mediation and Arbitration, and seek compensation or other remedies as the Commission may deem appropriate it is important for our Courts to revisit and scrutinize the wording of the Ruling in the David Nzaligo Case in order to avoid depriving probationary employees' rights that they are afforded under the letter of the Law.

Footnotes

1. Rule 10(3) of the Employment and Labour Relations (Code of Good Practice) Rules, 2007

2. Chapter 300; RE 2019

3. 2007 Regulations

4. Sections 35,37, 39, and 40 of the Employment and Labour Relations Act Cap. 300 RE 2019

5. Total Tanzania Limited v. Seet Peng Swee; Revision No. 500 of 2020 (High Court of Tanzania (Labour Division))

6. Rule 10 (7) and (9) of the Employment and Labour Relations (Code of good practice), 2007

7. David Nzaligo v. National Microfinance Bank PLC (Civil Appeal No. 61 of 2016) [2019] TZCA 287

8. Page 21 David Nzaligo v. National Microfinance Bank PLC (Civil Appeal No. 61 of 2016.

9. Ally Kileo, Comprehensive Issues of Employment and Labour Law – Practice for Modern Business in Tanzania (Lexis Nexis); P. 546

10. Ally Kileo, Comprehensive Issues of Employment and Labour Law, on p. 548

11. High Court of Tanzania Labour Division at Dar Es Salaam, Revision No. 459 of 2015 before Mipawa, J

12. The author was referring to Code of Good practice, South Africa item 8(1) © and Labour Relations Act South Africa, Section 186(2)

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.