In our September 2018 employment briefing, we covered the 11 critical points that an employer must carefully consider when handling a disciplinary hearing. We pointed out that any minor deviation from the prescribed procedure could derail the whole process. This could increase the risk of the Commission for Mediation and Arbitration ruling that the termination of an employment contract was unfair solely on procedural grounds, rather than on the basis of any other substantive facts or evidence that the employer may wish to present.
The previous briefing is available here.
This briefing focuses on four employment and labour law requirements that are often overlooked or ignored by employers. Additionally, this month's briefing flags the legal risks of not complying with statutory requirements.
The statutory requirements covered in this briefing are as follows:
- a fixed term employment contract should be set for a minimum of 12 months;
- an employee to be supplied with the prescribed particulars of employment in writing;
- a statement, in the prescribed form, of the employee's rights should be displayed clearly in a conspicuous place; and
- a prescribed grievance procedure to be included in the workplace employment policy and be displayed in a clear and conspicuous place.
1. A fixed term employment contract to be a minimum of 12 months
The Employment and Labour Relations Act, 2004 (the Act), allows the employer and employee (professionals, and those of managerial cadre) to enter into, among other things, a contract for a specified period of time (also known as fixed term contract) (s. 14(b) of the Act). Regulation 11 of the Employment and Labour Relations (General) Regulations, 2017 (the General Regulations) has specified twelve (12) months as the minimum term for a fixed term employment contract.
However, in practice, employers tend to issue fixed term employment contracts to non-professionals and non-management employees, individuals who are not caught by the above provisions. This may lead to the employment contract being considered illegal as fixed term contracts are specific for professionals and managers.
Further, there are some employers who issue fixed term employment contracts of a term below the prescribed minimum 12 months' period to professionals.
Issuing a fixed term employment contract of less than 12 months is illegal and a criminal offence under Tanzanian law. Regulation 35 of the General Regulations provides that a person, upon conviction, shall be liable for a fine not exceeding one million shillings, or imprisonment for a term of one year, or both.
2. A requirement to supply an employee, in writing, the prescribed particulars of his/her employment
On commencement of employment, section 15 of the Act requires the employer to issue an employee with the following particulars in writing:
- name, age, permanent address and sex of the employee;
- place of recruitment;
- job description;
- date of commencement;
- form and duration of the contract;
- place of work;
- hours of work;
- remuneration and the method of its calculation;
- details of any benefits or payments in kind, and
- any other prescribed matter.
The employer need not furnish the employee with a written statement of the particulars set out above if the same has been included in the employment contract (s. 14(2) of the Act).
However, our experience has revealed that the particulars relating to age, permanent address, sex, and place of recruitment are not currently being provided by employers. There are two risks associated to this omission, namely:
- Court Order to Amend: the labour officer may, upon reviewing the employment contracts at the workplace, order an employer to amend a contract in default in order to bring it in-line with the labour laws. Should the employer not comply, the labour officer may make an application to the High Court (Labour Division) (the Labour Court) to enforce the order; and
- Relocation Allowance: should the employer have not explicitly included the place of recruitment then there exists a risk to the employer that the employee may assert a different place of recruitment for the purposes of gaining a relocation allowance. In such a case it could be challenging for the employer to argue against such a position if no official record as to the place of recruitment was made by the employer.
3. Display of the employee's rights in the prescribed form at a conspicuous place
The Act requires every employer to display a statement of the employee's rights, in the prescribed form at a conspicuous place (s. 16 of the Act). The prescribed form of employee's rights is set out in the Second Schedule of the General Regulations, and includes, among other things, the following:
- right to exercise freedom of association;
- right to be supplied with the Contract of Service/Statement of Particulars;
- right to annual leave;
- right to maternity/paternity/sick leave;
- right to certificate of service on termination;
- right to remuneration and written statement of particulars supporting each payment of remuneration;
- right to payment for the overtime worked and night work allowance;
- right to daily and weekly rest periods as provided for in the Act;
- right to be repatriated to place of recruitment on termination; and
- right to daily subsistence allowance between termination date and the date of transporting an employee and family to the place of recruitment.
Failure to display the employee's rights in the prescribed form at a conspicuous place in the workplace amounts to contravention of the General Regulations and thus a criminal offence. Regulation 35 of the General Regulations provides that "a person who contravenes provisions of these Regulations commits an offence and upon conviction shall be liable to a fine not exceeding one million shillings, or imprisonment for a term of one year, or both".
4. A requirement to include a prescribed grievance procedure in the workplace employment policy and to display the same in a conspicuous place
A grievance procedure is a set of rules providing for the steps that the employer and the employee are required to follow in order to resolve a grievance in the workplace. These procedures are set out in the in the Schedule to the Employment and Labour Relations (Code of Good Practice) Rules, 2007 (the Rules).
Regulation 40(1) of the General Regulations requires that the prescribed grievance procedures included in the workplace employment policy, practices, rules or regulations, are displayed in a conspicuous place at the employer's workplace.
Failure to include the grievance procedures in the workplace's policy, practices, rules or regulations and to display it in a conspicuous place at the employer's workplace is an offence under Tanzanian law. This offence is punishable in accordance with Regulation 35 of the General Regulations mentioned above.
It is strongly advised that the employer complies with all legal requirements in order to mitigate the risk of any challenge or reputational damage, and the consequential penalties for non-compliance with the law. The requirements are not overly onerous or complicated, therefore should be relatively easy for employers to implement.
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.