Labour law of Tanzania

1. LABOUR LAW IN TANZANIA
Dr. Grace K, Kazoba; Senior Consultant and Lecturer. Institute of Finance Management
(IFM) (gracekamukazoba@gmail.com; 0756 505810)

2. Introduction
 Labour law generally in Tanzania has for years been regulated
by a number of legislation.
 Since 2004 most of the old laws were repealed and replaced
by two statutes namely: The Employment and Labour
Relations Act, No. 6 of 2004 and the Labour Institutions Act
No. 7 of 2004.
 Again, recently in 2015 and 2017 the said laws were
substantially amended.
 The private sector is mainly regulated by the above said laws
plus the
 Occupational Safety and Health Authority (OSHA), 2003

3.  The Amendement to the ELRA and LIA Act of 2004 were made
through the following instruments:
 THE EMPLOYMENT AND LABOUR LAWS (MISCELLANEOUS
AMENDMENTS) ACT, 2015
 The above said Miscellaneous ammendments were gazzeted
to the Gazette of the United Republic of Tanzania No. 22 Vol.
96 dated 29th May, 2015.
 THE EMPLOYMENT AND LABOUR RELATIONS (GENERAL)
REGULATIONS, 2017
 GOVERNMENT NOTICE NO. 47 published on 24/02/2017

4. RELEVANT Section amended (ELRA)
 Amendment of section 4
 Amendment of section 14
 Amendment of section 31
 Amendment of section 38
 Amendment of section 72
 Amendment of section 73
 Addition of section 102A

5. Relevant section amended (LIA)
 Amendment of section 14
 Amendment of section 31
 Amendment of section 35
 Amendment of section 39
 Amendment of section 42
 Amendment of section 43
 Amendment of section 45

6. Introduction continues….OSHA
 to make provisions for the safety, health and welfare of
persons at work in factories and other places of work-
 to provide for the protection of persons other than persons
at work against hazards to health and safety arising out of or
in connection with activities of persons at work;
 and to provide for connected matters

7. Introduction continues…FOCUS OF
PRESENTATION
 EMPLOYMENT AND LABOUR RELATIONS ACT No. 6 of 2004
(as amended)
 Code of Good Practice
 Employment and Labour Relations (Code of Good Practice)
Rules, 2007 (GN No. 42 of 2007).
 Employment and Labour Relations (Code of Good Practice)
GN. No. 42
 Labour Institutions Act No. 7 of 2004

8. EMPLOYMENT AND LABUR RELATIONS
ACT (ELRA) 2004
 An Act to make provisions for core labour rights, to establish
basic employment standards, to provide a framework for
collective bargaining, to provide for the prevention and
settlement of disputes, and to provide for related matters
 Objectives

9. Objectives of ELRA
(a) to promote economic development through
economic efficiency, productivity and social justice;
(b)to provide the legal framework for effective and fair
employment relations and minimum standards regarding
conditions of work;
(c) to provide a framework for voluntary collective
bargaining;
(d) to regulate the resort to industrial action as a means
to

10. TYPES OF EMPLOYMENT CONTRACT
 The Act provides for three types of Employment contracts
namely:
a) A Contract for unspecified Period of time (permanent
contract)
b) a contract for a specified period of time for
professionals and managerial cadre (fixed term contract)
 c) a contract for a specific task. “specific task” means a task
which is occasional or seasonal and is non-continuous in
nature;”.(see amendment to s. 4)
 A contract for professionals and managerial cadre must be for
not less than six months

11. TYPES CONTRACTS AND CONDITIONS
S. 14 & 15
 A contract of employment can either be oral or written. A
contract with an employee shall be in writing if the contract
provides that the employee is to work within or outside the
United Republic of Tanzania
 Where a contract is oral an employer must provide a
statement of particulars in writing to an employee
immediately after commencing employment

12. Statement of particulars
 Statement of particulars must contain the following:
(a) name, age, permanent address and sex of the
employee;
(b) place of recruitment;
(c) job description;
(d) date of commencement-
(e) form and duration of the contract

13. Statement of Particulars (Content) S. 15
 place of work;
 (g) hours of work;
 (h) remuneration, the method of its calculation, and details of
any
 benefits or payments in kind, and
 (i) any other prescribed matter.
 If all the particulars referred to above are stated in a written
contract and the employer has supplied the employee with
that contract, then the employer may not furnish the written
statement referred to

14. Statement of Particulars…
 If an employee does not understand the written particulars,
the employer shall ensure that they are explained to the
employee in a manner that the employee understands.
 Statement of particulars cannot be changed unilaterally. There
must be agreement between employer and employee
 If changed unilaterally the employee can sue for constructive
dismissal

15.  The respondent (employer) in this case (revision) had
unilaterally changed the terms of the contract of employment
from
 monthly pay to daily pay and forced the applicants (drivers) to
sign a new contract of employment on new terms
 being paid daily instead of monthly rates without prior
consultation. In protest to the change each applicant
 packed a vehicle he was otherwise supposed to drive as they
refused to sign a new contract followed by
 reporting a dispute to the

16.  Commission for Mediation and Arbitration (CMA): in the CMA,
the arbitrator found that the termination was fair
 and that the applicants (both in the CMA and High Court)
were not entitled to terminal benefits, on ground of
 misconduct. Aggrieved by the arbitrator’s decision the
employees applied for revision of the arbitrator’s award to
 the High Court. The High Court held that respondent's
(employer's) action amounted to constructive termination
 of the applicants employment as provided under section 36(a)
(ii) (iii) and section 37 of ELRA read together with
 rule 7 of the Code.

17. Unilateral Change of Statement of
Particulars
 the unilateral change of applicants’ terms and nature of
employment contract from monthly to daily pay amounted to
fundamental change to terms and conditions of employment.
This was found to amounting to constructive termination of
employment

18.  The employer shall keep the written particulars prescribed in
subsection (1) for a period of five years after the termination
of employment.
 If in any legal proceedings, an employer fails to produce a
written contract or the written particulars prescribed in
subsection (1), the burden of proving or disproving an alleged
term of employment stipulated in subsection (1) shall be on
the employer
 The provisions of this section shall not apply to an employee
 who works less than 6 days in a month for an employer

19. Rights relating to Annual leave
 “(6) With the consent of an employee, the employer may
require or permit such employee to work for the employer
during a period of annual leave on condition that such
employee shall not work for a continuous period of two
years.”
 “(7) Subject to subsections (6) and (8), an employer shall pay
the employee one month salary in lieu of annual leave to
which that employee is entitled or was called upon to work.”.
(Amendment)

20. New Labour Regulations 2017
 New labour law Regulations were gazetted and came into
effect on 24 February 2017:
 Employment And Labour Relations (General) Regulations
2017 (GN 47 2017)
 Key areas:
 Child Labour Prohibition.
 Employment Standards and Trade Unions matters.
 Employment Standards with new requirements:

21. Regulations 11 & 12
Regulation 11 – a contract for specified period for
professionals and managerial cadre shall not be for a
period of less than 12 months.
Regulation 12 – statement of employees’ rights to
be set out in manner prescribed in Form LAIF 9 which
has been provided in the 2nd Schedule

22. Regulations 14(2); 15 & 35
Regulation 14(2) – employer shall ensure that no
employee is continuously working in any leave cycle
without applying for annual leave.
Regulation 15 – female employees to be allowed for
a period not less than 6 consecutive months after
maternity leave to leave office to breast feed for a
maximum of 2 hours during working hours.
Regulation 35 – offence for contravention of the
provisions and upon conviction liable to a fine not
exceeding TZS 1,000,000 or imprisonment for 1 year
or both.

23. Regulations 40 & 41
 Regulation 40 – grievances procedures prescribed in the
schedule to the Employment and Labour Relations (Code of
Good Practice) Rules 2007 to be included in the workplace
employment policy, practice, rules or regulations and be
displayed in a conspicuous place. Employer to ensure
employees aware and sensitised of the grievances procedure.
 Regulation 41 – Employment and Labour Relations (Forms)
Rules 2007 are revoked and new Forms appear in the
Schedules.

24. Labour Institutions (General) Regulations
2017 (GN 45 2017)
 Key areas:
 Appointment of members to:
Labour, Economic and Social Council.
Commission for Mediation and Arbitration.
Wage Boards.
 Wage Board consultation.
 Wage Order Review.
 Compliance Certification

25. Noteworthy provisions under GN 45 of 2017:
Regulation 8 – Wage Order shall be reviewed
within 3 years from the date of issue and shall
provide for a more favourable wage,
allowances, terms and conditions of
employment to be negotiated annually
between employer and employees at
workplace or at any level in the respective
organisation.

26. Regulation 9 of GN 45 0f 2017
Regulation 9 – on outsource requirement
whereby inter alia (a) outsourcing of service from
another person shall be in a written contract
committing compliance to labour laws or any
other written laws and
(b) different treatment of employee for the work
of equal value outsourced from a different sources
or arrangement shall be deemed discrimination in
accordance wit ELRA.
See S. 7 on discrimination

27.  Regulation 9 – on outsource requirement whereby inter alia
(a) outsource of service from another person shall be in a
written contract committing compliance to labour laws or
other written laws and (b) different treatment of employee
the work of equal value outsourced from a different sources
or arrangement shall be deemed discrimination in
with ELRA.
 Regulation 10 – Labour Officers to assess employer’s
compliance or non compliance to labour laws in accordance
with the checklist set out in Schedule (LAIF 3 Form) and to
issue certificates of compliance/non compliance. Such
certificates to be displayed in a conspicuous place.

28. TERMINATION OF EMPLOYEMENT S. 36
 The law emphasis on both substantive as well as procedural
requirements of termination of employment.
 There are several ways of terminating employment namely:
 a lawful termination of employment under the common law;
 (ii) a termination by an employee because the employer made
continued employment intolerable for the employee;
 (iii) a failure to renew a fixed term contract on the same or similar
terms if there was a reasonable expectation of renewal;
 (iv) a failure to allow an employee to resume work after taking
maternity leave granted under this Act or any

29. Types of termination
 (v) Forced resignation/constructive termination
 Eg Rule 7(2) enumerates situations in which an employee can be
deemed constructively dismissed or forced to terminate the
contract of employment. These include sexual harassment or failure
on the part of the employer to protect the employee against such
sexual harassment.
 Another scenario that may warrant constructive dismissal is where
the employee has been unfairly treated
 provided such an employee has taken steps to exhaust the
administrative procures available to remedy her
 grievances unless there are fundamental reasons on the part of the
employee justifying his or her failure to
 exhaust such procedural procedures.

30.  Unilateral Change of contract or statement of particulars
 March L. Lumanija &Another v, Tanganyika Bus Service
Ltd
 (vi) Failure to Renew a Fixed Term Contract on the same or
Similar Terms if there was a reasonable expectation of
renewal
 section 36 read together with rule 4(4) of the Code of Good
Practice Rules, 2007 that it is termination of employment if
there is failure to renew a fixed term contract where there
was reasonable expectation of renew. It will be unfair
termination of employment where in the circumstances of
each case an employee had reasonable expectation of renew
of employment after the expiry of the preceding fixed term
contract.

31. Termination of a Fixed Term Contract
 Depending on the circumstances of each case, where a fixed term
contract comes to an end but the employee continues with
business as usual, that is rendering services and the employee
accepts such services the employment will be deemed to be
renewed by default.
 See S. 61 LIA
 In respect to reasonable expectation of renewal by employee rule
4(4) provides a guiding criteria, that for instance a record of
previous renewals or employer's undertaking to renew the contract
may form a reasonable ground of expectation on part of the
employee for another renewal.

32. Termination of employment
 Termination by agreement between two parties (Rules 3
& 4)
 Automatic termination eg as a result of death (rule 5)
 Termination of employment by the employer (Rule 8)
 Termination of employment by employee. The first avenue
available to the employee (on fixed term contract) is if the
employer commits material or fundamental breach of the
terms of contract.
 In the absence of the material breach by the employer
another avenue is by the employee letting the employer agree
to an early termination of a contract of employment.

33. Termination of employment (Cont’d)
 in respect of a contract for unspecified period of contract
employee is at liberty to terminate a contract of employment
without much condition such as those required for a fixed-
term contract. An employee under an unspecified period of
time contract can decide unilaterally to terminate a contract
of employment by issuance of a notice of termination as per
Rule 6(2)(a).

34. What constitutes material breach
 breaches of a fundamental nature likely to warranty
termination of
 employment by the employee without notice are provided for
under Rule 6(4) (a)-(d). They include: refusal to
 pay salary or wages, verbal or physical abuse or sexual
harassment, unfair discrimination or any other form of
 breach of contract, (rule5),

35.  A failure to allow an employee to resume work after taking
maternity leave granted under this Act or any agreed
maternity leave.
 Section 33 of the Employment and Labour Relations Act
provides for the right of an employee to take paid maternity
leave exclusive of her other leaves such as annual leave and
sick leave.
 The duration of paid maternity leave is 84 days or 100 days
respect of a single baby or more that one babies
 If a baby dies within a year of birth this same employee is
entitled to another paid leave as described above within a
leave cycle of 36 months.
 Failure to re-employ an employee if the employer has
terminated the employment of a number ofemployees for
the same or similar reasons and has offered to re-employ
one or more of them

36. Unfair Termination of Employment
 Termination of employment contract on ground of misconduct
 Rule 11 of the Code of Good Practice Rules, 2007
 Rule 11 has been tested in both the CMA and the Labour Court in
the case of Knight Support Ltd v
 Chrisprinus S Kaloli. The facts of the case were that the respondent
(employee) had been away from the job
 for five consecutive days for what he averred to be due to illness,
the fact that the applicant (employer denies).
 In application for revision of the arbitrator's award in the labour
Court the applicant argued that the respondent
 did not follow a proper procure in booking his sick sheet and
abiding to the Organisational Rules in obtaining the
 claimed treatment from a hospital or clinic not recommended by
the employer and that the respondent has
 continued to be away from employment without leave.

37. Duty to correct and warn employee
 The provision as discussed above provides that d efforts shall
be made to correct employee's behaviour through
 a system of graduated disciplinary measures such as
counselling and warnings. Thus the employer ought to
 counsel and warn the employee first rather than terminating
the employment outright.

38. Duty to carry out investigation
 Rule 13(1) of the cited G.N 42 of 2007 provides that an employer shall
conduct an investigation to ascertain whether there are grounds for a
hearing to be held. This provision imposes a mandatory obligation upon the
employer to ascertain whether there are grounds for a hearing. It doesn't
give discretion upon the employer to opt for a hearing or otherwise as a first
step. The initial step to be undertaken is to investigate whether there are
grounds for a hearing to be held. Therefore it is not an automatic option nor
does it give an automatic right to the employer to depart from hearing. The
right is subject to compliance with Rule 13(1) of the Code of Good Practice
G.N 42/2007.

39.  Rule 12(2) provides further that the first offence of an
employee shall not justify termination of employment
 unless the misconduct is proved to be so grave to make the
continued employment relationship intolerable

40. Termination on of incapacity and poor work
performance
 Termination of employment contract on ground of incapacity (ill
health or poor performance) Rules 15 and 16 of the Code of Good
Practice Rules, 2007
 In respect to poor work performance as a component of employee's
incapacity to perform the work, rule 17(1) requires any decision maker
(employer, arbitrator or Labour Court) required to make a determination
as whether the termination of employment on ground of poor work
performance is fair to consider a number of factors.
 These include whether or not the employee failed to meet a performance
standard, whether the employee was aware, or could reasonably be
expected to have been aware, of the required performance standard,
whether the performance standard are reasonable, the reasons why the
employee failed to meet the standard and whether the employee was
afforded a fair opportunity to meet the performance standard.

41. Termination of employment on ground of ill
health or injury
 this is taken to be a component of incapacity due to ill health
or injury thus generally speaking justifying termination of
employment by the employer
 However, the substantive and procedural fairness in relation
to termination of employment on ground of ill health are
governed by rules 19, 20 (particularly on HIV/AIDS) and 21 of
the Code of Good Practice Rules, 2007.

42. Ill Health
 Rule 19(1) provides for the factors that an employer
contemplating to terminate the employment of an employee
on ground of ill health or injury should take into account.
 The factors include: the cause of the incapacity, the degree of
the incapacity, the temporary or permanent nature of the
incapacity, the ability to accommodate the incapacity and the
existence of any compensation or pension.

43.  Rule 19(2) enjoins the employer to go to greater lengths to
accommodate the employee in terms of the ability to
 accommodate where an employee is injured at work or is
incapacitated by a work-related illness.
 Where it is discovered upon investigation that the employee
is likely to be absent for a time that is unreasonably
 long in the circumstances of a particular case (for example
taking into account the nature and duration of the
 employment contract and or inherent requirements of a job)
the employer is enjoined to investigate possible
 ways to accommodate the employee or to consider all
possible alternatives short of termination

44.  Rule 19(6) lists possible alternatives short of termination as
including: temporary replacement, light duty, alternative work,
early retirement, pension or any other acceptable alternative.
The factors that may be relevant in the investigation include
the nature of the job, the period of absence, the seriousness
of the illness or injury, and the possibility of securing a
temporary replacement or adapting the job.

45. Termination of employment on ground of
incompatibility
 In view of section 37(2) (b) (i) read together with rule 22
incompatibility constitutes a fair reason for termination
 of employment. According to rule 22(1) there are two types
of incompatibility. The first type is one which refers
 to unsuitability of the employees to his work due to his
character or disposition and the second is one which
 refers to the incompatibility of the employee to his work
environment in that he relates badly with fellow
 employees, clients or other persons who are important to
the business.

46. Termination on ground of incompatibility
 The employer contemplating termination of the employment
of employee on ground of incompatibility is required to treat
the matter in a similar way as to incapacity for poor work
performance.
 In particular, the employer is required to record the incidents
of incompatibility that gave rise to concrete problems or
disruption. The employer is also expected to warn and
 counsel the employee before termination. This should include
advising the employee of unacceptable conduct,
 who has been adversely affected by the conduct, and what
remedial action is proposed

47. THANK U