University of Dar es Salaam

School of Law

COURSE MANUAL FOR LABOUR LAW [CTL 202]

Boaz John Mabula

Published by Dar-es-Salaam University Press,
University of Dar-es-Salaam,
P.O. Box 35093,
Dar-es-Salaam, Tanzania
Tel. +255 22 2410254
Email: dean_law@udsm.ac.tz
Website: https://www.udsm.ac.tz/web/index.php/schools/sol

ISBN: 978-9976-5635-4-2

@ University of Dar-es-Salaam School of Law, 2020

This publication is a copy material under the Copyright and Neighbouring

Rights Act, 1999, Cap. 218 [R.E 2002]. The content of the publication may
not be reproduced by any means, in full or in part, except for short extracts
in fair dealings, for research or private study, without the permission from
the publisher or the authors of the Manual.

ii
 Biodata of Author

Boaz John Mabula

Boaz John Mabula is an Assistant Lecturer in the Department of Private
Law, School of Law, University of Dar es Salaam. He is also a Practicing
Advocate, Commissioner for Oaths, Notary Public, and Intellectual
Property Attorney. He brings to the School and the legal profession a
unique legal expertise in specific areas of the Law, namely; Intellectual
Property Law, Business and Corporate Law, Investment Law, Competition
and Consumer Protection Law and Natural Resources Law. At the School,
Mr. Mabula lectures on Intellectual Property Law, Investment Law, Civil
Procedure Law, Human Rights Law, Social Security Law and Labour Law
to Bachelor of Laws (LL.B) and Certificate in Law (CTL) students. As an
Intellectual Property Attorney, his expertise cuts across the areas of
trademarks, copyrights, patents, industrial designs, geographical
indications, trade secrets, business names, traditional knowledge, brand
protection and management, intellectual property rights (IPRs) registration
and prosecution, searches, drafting and submission of oppositions,
cancellation and invalidation, renewals, appeal process, infringements,
anti-competition practices, enforcement and litigation, domain name
protection, IPRs surveillance, negotiation as well as commercialisation of
IPRs.

Author’s Note
This manual is specifically written to assist students pursuing Certificate in
Law Program of University of Dar es Salaam. UDSOL Management found
it essential to have in place a manual for guidance in the teaching process.
Thus, it will be used uniformly in all its Centres.

This Manual uses simple language with many illustrations. The main
purpose is to enable our primary target, CTL students, to grasp the
intended concepts easily. Where necessary, cases have been used. I hope
that students will find this Manual useful.

Diploma and bachelor degree students may also use this Manual for
reference purposes. It is the author’s appeal that it should not be taken as a

iii
primary source to such level. Thus, it is useful if it is used as an entrance
point leading students into further references on private law.

I hope, our students and any other person who will come across this
Manual will find it resourceful.

Boaz John Mabula

iv
 TABLE OF CONTENTS

About the Author .......................................................................................... ii

Table of Contents ........................................................................................... v

Domestic Legislation and Policy .................................................................. ix

International Instruments ............................................................................. xi

List of Cases ................................................................................................. xii

PART ONE: INTRODUCTION TO LABOUR LAW .................................. 1
1.1 Definition.................................................................................................. 1
1.2 Categories of Labour Law...................................................................... 2
1.2.1 Substantive Labour Law ........................................................................ 2
1.2.2 Procedural Labour Law ......................................................................... 2
1.2.3 Collective Labour Law ........................................................................... 2
1.2.4 Individual Labour Law .......................................................................... 3
1.3 Genesis of Labour Law........................................................................... 3
1.4 Sources of Labour Law in Tanzania ..................................................... 6
1.4.1 The Constitution of the United Republic of Tanzania, 1977 (Cap. 2)6
1.4.2 Legislation ................................................................................................ 9
1.4.2.1 Principal Legislation ............................................................................... 9
1.4.2.2 Subsidiary Legislation .......................................................................... 10
1.4.4 Scholarly Works of Prominent Labour Law Jurists ......................... 11
1.4.5 International Instruments .................................................................... 12
1.4.6 Received Laws ....................................................................................... 15
1.4.7 Relevant Labour Policies...................................................................... 15
1.5 Role and Purpose of Labour Law ....................................................... 16
PART TWO: CONTRACT OF EMPLOYMENT AND TERMINATION 19
2.1 Definition................................................................................................ 19
2.2 Contract of Service vis-à-vis Contract for Service ............................ 21
2.3 Benchmarks for Determining a Contract of Service ........................ 21
2.3.1 Control Test............................................................................................ 21
2.3.2 Organisational Test ............................................................................... 22
2.3.3 Multiple Test .......................................................................................... 23
2.4 Parties to the Contract of Service ........................................................ 24
2.4.1 Employee and Presumption of Employment ................................... 24
2.4.2 Employer ................................................................................................ 27
2.5 Formation of Contract of Service ........................................................ 28
2.6 Formalities of Contract of Service....................................................... 30

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2.7 Types of Contracts of Service .............................................................. 31
2.7.1 Contract for an Unspecified Period of Time ..................................... 31
2.7.2 Contracts for a Specified Period of Time ........................................... 32
2.7.3 Contracts for a Specific Task ............................................................... 34
2.8 Duties of the Employer and Employee .............................................. 35
2.8.1 Duties of the Employer ........................................................................ 35
2.8.1.1 Supplying Employment Particulars in Writing ................................ 35
2.8.1.2 Payment of Remuneration Timely ..................................................... 36
2.8.1.3 Effecting Statutory Deductions and Remit to Appropriate
Authorities ............................................................................................. 37
2.8.1.4 Promotion of Equal Opportunities ..................................................... 37
2.8.1.5 Provision of Safe and Healthy Working Environment.................... 37
2.8.1.6 Displaying Employees’ Statutory Rights........................................... 39
2.8.1.7 Other Duties........................................................................................... 39
2.8.2 Duties of the Employee ........................................................................ 39
2.8.2.1 Rendering Labour Service ................................................................... 39
2.8.2.2 Protection of Employer’s Property ..................................................... 40
2.8.2.3 Reasonable Care .................................................................................... 40
2.8.2.4 Observing Employment Terms ........................................................... 40
2.9 Termination of Contract of Service .................................................... 41
2.9.1 Termination of Employment by Agreement ..................................... 42
2.9.2 Automatic Termination ........................................................................ 43
2.9.3 Termination of Employment by the Employee and/or Resignation43
2.9.4 Termination of Employment by the Employer................................. 44
2.9.5 Constructive Termination or Forced Resignation ............................ 44
2.10 Statutory Requirements for Termination of Employment Contract46
2.10.1 Requirement of Notice of Termination .............................................. 46
2.10.2 Payment of Severance Entitlements ................................................... 47
2.10.3 Transport to the Place of Recruitment ............................................... 48
2.10.4 Payment of other Entitlements and Issuance of Certificate of
Service ..................................................................................................... 48
PART THREE: INTERNATIONAL LABOUR INSTRUMENTS ............. 49
3.1 Definition................................................................................................ 49
3.2 Role of International Labour Standards ............................................ 49
3.3 Legal Forms of International Labour Standards .............................. 51
3.3.1 Conventions ........................................................................................... 51
3.3.2 Recommendations................................................................................. 51
3.3.3 Protocols ................................................................................................. 51
3.3.4 Resolutions ............................................................................................. 51
3.3.5 Declarations ........................................................................................... 52
3.4 Attributes and Subjects Covered by International Labour
Standards................................................................................................ 52

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3.5 The Core Conventions .......................................................................... 53
3.5.1 Freedom of Association and Protection of the Right to Organise
Convention (No. 87) ............................................................................. 54
3.5.2 Right to Organise and Collective Bargaining Convention (No. 98)55
3.5.3 Forced Labour Convention (No. 29)................................................... 57
3.5.4 Abolition of Forced Labour Convention (No. 105) .......................... 59
3.5.5 Minimum Age Convention (No. 138) ................................................ 60
3.5.6 Worst Forms of Child Labour Convention (No. 182) ...................... 61
3.5.7 Equal Remuneration Convention (No. 100) ...................................... 62
3.5.8 Discrimination (Employment and Occupation) Convention (No.
111) .......................................................................................................... 63
3.6 Technical International Instruments .................................................. 64
PART FOUR: FUNDAMENTAL RIGHTS AND PROTECTIONS ......... 66
4.1 Definition................................................................................................ 66
4.2 Fundamental Rights and Protections ................................................. 66
4.2.1 Prohibition of Child Labour ................................................................ 66
4.2.2 Prohibition of Forced Labour .............................................................. 70
4.2.3 Prohibition of Discrimination ............................................................. 71
4.2.4 Freedom of Association........................................................................ 74
PART FIVE: EMPLOYMENT STANDARDS AND UNFAIR
TERMINATION ........................................................................... 77
5.1 Definition................................................................................................ 77
5.2 Hours of Work ....................................................................................... 77
5.2.1 Ordinary Hours of Work ..................................................................... 77
5.2.2 Overtime ................................................................................................. 79
5.2.3 Night Work ............................................................................................ 81
5.2.4 Compressed Working Week................................................................ 81
5.2.5 Averaging Hours of Work ................................................................... 82
5.2.6 Break and Breast Feeding During Working Hours .......................... 82
5.2.7 Daily and Weekly Rest Periods ........................................................... 83
5.2.8 Public Holidays ..................................................................................... 83
5.3 Remuneration ........................................................................................ 84
5.4 Leave ....................................................................................................... 86
5.4.1 Annual Leave......................................................................................... 86
5.4.2 Sick Leave ............................................................................................... 88
5.4.3 Maternity Leave .................................................................................... 88
5.4.4 Paternity Leave ...................................................................................... 89
5.4.5 Compassionate Leave and other Forms of Leave ............................ 89
5.5 Unfair Termination of Employment .................................................. 90
5.5.1 Substantive and Procedural Fairness ................................................. 92
5.5.1.1 Misconduct............................................................................................. 93

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5.5.1.2 Incapacity ............................................................................................... 99
5.5.1.3 Incompatibility .................................................................................... 102
5.5.1.4 Operational Requirements and/or Retrenchment and/or
Redundancy ......................................................................................... 103
5.5.2 Burden and Standard of Proof in Unfair Termination Proceedings109
5.5.3 Mitigation and Double Jeopardy in Proceedings for Unfair
Termination.......................................................................................... 111
5.5.4 Remedies for Unfair Termination ..................................................... 112
PART SIX: DISPUTE RESOLUTION ...................................................... 117
6.1 Definition.............................................................................................. 117
6.2 Dispute Resolution Methods ............................................................. 119
6.2.1 Mediation ............................................................................................. 119
6.2.2 Arbitration............................................................................................ 121
6.2.3 Combined Approach .......................................................................... 123
6.2.4 Adjudication ........................................................................................ 126
6.3 Modality of Instituting Labour Disputes......................................... 127
6.4 Awarding Costs in Labour Disputes................................................ 128
PART SEVEN: LABOUR INSTITUTIONS ............................................. 130
7.1 Definition.............................................................................................. 130
7.2 Labour, Economic and Social Council (“Council”) ........................ 130
7.3 Commission for Mediation and Arbitration (“CMA”) .................. 131
7.4 Essential Services Committee (“Committee”) ................................ 134
7.5 Wage Boards ........................................................................................ 135
7.6 Labour Administration and Inspection Department ..................... 136
7.7 Labour Court and Court of Appeal .................................................. 140
REFERENCES .................................................................................................

viii
 DOMESTIC LEGISLATION AND POLICY

Principal Legislation:

Constitution of the United Republic of Tanzania, [Cap. 2].

Employment and Labour Relations Act, [Cap. 366 R.E. 2019].

Interpretation of Laws Act, [Cap. 1 R.E. 2019].

Judges (Remuneration and Terminal Benefits) Act, [Cap. 424 R.E. 2002].

Labour Institutions Act, [Cap. 300 R.E. 2019].

Law of Contract Act, [Cap. 345 R.E. 2019].

Law of the Child Act, [Cap. 13 R.E 2019].

National Employment Promotion Services Act, [Cap. 243 R.E. 2002].

National Social Security Fund Act, [Cap. 50 R.E. 2015].

Non-Citizens (Employment Regulations) Act, Act No. 1 of 2015.

Occupational Health and Safety Act, Act No. 5 of 2003.

Public Service (Negotiating Machinery) Act, [Cap. 105 R.E. 2002].

Public Service Act, [Cap. 298 R.E. 2019].

Public Service Social Security Fund Act, Act No. 2 of 2018.

Social Security Act, [Cap. 135 R.E. 2015].

Workers Compensation Act, [Cap. 263 R.E. 2015].

Subsidiary Legislation:

Employment and Labour Relations (Code of Good Practice) Rules, 2007,

G.N. No. 42 of 2007.

Employment and Labour Relations (General) Regulations, 2017, G.N. No.

47 of 2017.

Labour Court Rules, 2007, G.N. No. 106 of 2007.

Labour Institutions (Ethics and Code of Conduct for Mediators and

Arbitrators) Rules, 2007, G.N. No. 66 of 2007.
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Labour Institutions (General) Regulations, 2017, G.N. No. 45 of 2017.

Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007,

G.N. No. 67 of 2007.

Labour Institutions (Mediation and Arbitration) Rules, 2007, G.N. No. 64 of

2007.

Labour Institutions Wage Order, 2013, G.N. No. 196 of 2013.

Public Service Regulations, 2003, G.N. No. 168 of 2003.

Standing Orders for the Public Service, 2009, G.N. No. 493 of 2009.

Workers’ Compensation Regulations, 2016, G.N. No. 185 of 2016.

Policy:

National Employment Policy of 2008.

National Social Security Policy of 2003.

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 INTERNATIONAL INSTRUMENTS

Abolition of Forced Labour Convention, 1957 (No. 105).

African Charter on Human and Peoples’ Rights, 1981 (1520 U.N.T.S. 217; 21
I.L.M. 58 (1982).

Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

Equal Remuneration Convention, 1951 (No. 100).

Forced Labour Convention, 1930 (No. 29).

Freedom of Association and Protection of the Right to Organise

Convention, 1948 (No. 87).

International Covenant on Civil and Political Rights, 1966 (999 U.N.T.S.

171).

Minimum Age Convention, 1973 (No. 138).

Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

Termination of Employment Convention, 1982 (No. 158).

Termination of Employment Recommendation, 1982 (No. 166).

Universal Declaration of Human Rights, 1948, (G.A. Res. 217A (III), U.N.
Doc. A/810 at 71 (1948)).

Worst Forms of Child Labour Convention, 1999 (No. 182).

xi
 LIST OF CASES

Agness Nkwabi and another v. Ngeme Magembe, Revision No. 580 of 2019, HC,
LD, DSM (unreported).

Alex Eriyo and others v. Bank of Africa, Application for Labour Revision No. 3
of 2020, HC, LD, Mtwara (unreported).

Alex Gabriel Kazungu and others v. Tanzania Electric Supply Company Ltd,
Labour Revision No.40 of 2020, HC, DR, Shinyanga (unreported).

Ally Said Bakari v. The Managing Director TANESCO, Civil Appeal No. 147 of
2018, HC, DR, DSM (unreported).

Anna Mbakile v. DED Geita, Labour Revision No. 113 of 2019, HC, DR,
Mwanza (unreported).

Anthony Francis Munyigo v. Total Tanzania Ltd and 4 others, Labour Revision
No. 30 of 2009 (unreported).

Asseli Shewally v. Muheza District Council, Labour Revision No. 6 of 2018,

HC, LD, Tanga (unreported).

Athumani Rajabu Salehe v. Speed Security Services Ltd, Revision No. 372 of
2019, HC, LD, DSM (unreported).

Augustine Masatu v. Mwanza Textile, Civil Case No. 3 of 1986 HC, Mwanza
(unreported).

AUMS Tanzania Limited v. Peter Ambrose Ka Yombo, Labour Revisions No.

79/2018, HC, LD, Mwanza (unreported).

Aziz Ally and Aidha Adam v. Chai Bora Ltd, Revision No. 04 of 2011
(unreported).

Bakari Jabir Nyambuka v. QCD Supplies and Logistics, Revision Application

No. 962 of 2018, HC, LD, DSM (unreported).

Bati Services Company Limited v. Shargia Feizi, Revision No. 106 of 2019, HC,
LD, DSM (unreported).

xii
Benard Gindo & 2 others v. TOL Gases LTD, Revision No. 18 of 2017, HC, LD,
DSM (unreported).

Benda Kasanda Ndasi v. Makufuli Motors Ltd, Revision No. 25 of 2010, HC,
LD, DSM (unreported).

Benedict Komba v. Knight Support (T) Ltd, Revision No. 270 of 2009, [2011 -
20121 LCCD 34].

Benjamin M. Kaimu v. Real Security Group & Marine Service, Revision No. 199
of 2011 OCCD 2013.

Blue Financial Services v. Vestina Masaga, Labour Revision No. 35 of 2013

(unreported).

Board of Trustees of the Public Service Social Security Fund v. Classic Professional
Caterer, Civil Case No. 61 of 2019, HC, DR, DSM (unreported).

Brian Celestine & 19 others v. The Salvation Army Tanzania Territory,

Consolidated Revision No. 68 & 69 of 2017, HC, LD, Mbeya (unreported).

Bulyanhulu Gold Mines Ltd v. James Bichuka, Labour Revision No. 313 of 2008
(unreported).

Buzwagi Project v. Antony Lameck, Revision No. 297 of 2008 (unreported).

Cable Television Network (CTV) Ltd v. Athumani Kuwinga & others, Labour
Revision No. 94 of 2009, HC, LD, DSM (unreported).

Cassidy v. Ministry of Health, [1951] 2 KB 343.

Catholic Diocece of Moshi v. Nickson Nelson Munisi & another, Labour Revision
No. 6 of 2021, HC, DR, Moshi (unreported).

Chintaman Rao v. State of M.P., AIR 1958 S.C. 388.

Christian Mwesiga Michael v. Board of Bishops, Revision No. 31 of 2020, HC,

LD, Morogoro (unreported).

Clackamas Gastroenterology Association v. Wells, 538 U.S. 440, 450 (2003).

Clare Haule v. Water Aid Tanzania, Revision No. 13 of 2019, HC, LD, DSM
(unreported).

xiii
Coca - Cola Kwanza Ltd v. William Mhando, Labour Revision No. 40 of 2017,
HC, LD, Mbeya (unreported).

Coca Cola Kwanza Ltd v. Kajeri Misyangi, Labour Revision No. 238 of 2008,
HC, LD, DSM (unreported).

Daniel Mugittu and another v. Lonagro Tanzania Limited, Consolidated

Revision No. 684 and 753 of 2018, HC, LD, DSM (unreported).

Dar es Salaam Institute of Technology v. Samson M. Makomba, Consolidated

Revision No. 707 of 2018 and 120 of 2020.

David Kitangoi Olais and another v. Happy Sausages Limited, Consolidated

Labour Revision Applications No. 11 and 16 of 2019, HC, DR, Arusha
(unreported).

Denis Bwiru v. Bulyanhulu Gold Mine Limited, Labour Revision No. 69 of

2018, HC, LD, Shinyanga (unreported).

Deogratus John Lyakwipa and Another v. Tanzania Zambia Railway Authority,

Revision Application No. 68 of 2019, HC, LD, DSM (unreported).

Desktop Production Ltd v. Joyce Dionise Katto, Revision No. 103 of 2019, HC,
LD, DSM (unreported).

Deus Wambura v. Mtibwa Sugar Estates Limited, Revision No. 3 of 2014

(unreported).

Director Usafirishaji Africa v. Hamis Mwakabala and 25 others, Labour Revision

No. 291 of 2009, HC, LD, DSM (unreported).

Doosan Babcock Ltd v. Commercializidora de Equipos y Materiales Mabe [2013]

EWHC 3010.

Edwin Kasena v. Enza Zaden Africa Ltd, Labour Revision No. 70 2017, HC,
LD, Arusha (unreported).

Elizabeth Silayo v. Halmashauri ya Manispaa Morogoro, Revision No. 11 of

2019, HC, LD, Morogoro (Unreported).

xiv
Emanuel Savi v. The Governing Body of The College of Business Education,
Labour Revision No. 91 of 2017, HC, DR, Mwanza (unreported).

Erpness Ezekiel v. SBC Limited Tanzania, Labour Revision No. 71 of 2018, HC,
DR, Arusha (unreported).

Evaristo Miho v. Tanzania Posts Corporation, Application for Labour Revision

No. 2 of 2020, HC, LD, Mtwara (unreported).

Ezekiah Tom Oluoch v. The Teachers’ Service Commission (TSC) and others,
Misc. Civil Cause No. 03 of 2020, HC, MR, DSM (unreported)

FABCAST Schools v. Agnes Mathew Hape, Revision No. 34 of 2019, HC, LD,
DSM (unreported).

Florence Munuo v. Chui Security Company Limited, Labour Revision No. 27 of

2019, HC, DR, Moshi (unreported).

Fredrick Byakika v. Mutiso Menezes International [2016] e-KLR (High Court of

Kenya).

Freight In Time (T) Limited and another v. Rahabu Njeri Wangai, Revision
Application No. 92 of 2018, HC, LD, Arusha (unreported).

Geita Gold Mine Limited v. Steve Bicco and 901 others, Labour Revision No. 36
of 2020, HC, DR, Mwanza (unreported).

Geita Gold Mine v. William Swai, Labour Revision Case No. 80 of 2018, HC,
LD, Mwanza (unreported).

Gilbert Katonda v. Tanzania Assemblies of God Kisegese, Revision No. 12 of

2019, HC, LD, Morogoro (unreported).

Good Samarita v. Joseph Robert Savari Munthu, Revision No. 165 of 2011
(unreported).

Gould v. Minister of National Insurance and another, [1951] ALL ER 368.

Group Six International v. Musa Maulid & another, Revision No. 428 of 2015
(unreported).

xv
GSM Tanzania Limited v. Iddi M. Kitambi, Labour Revision No. 197 of 2019
(unreported).

Hasani Saidi Chonga v. Yasini Mohamedi Mnengelea, Application for Labour

Revision No. 05 of 2016, HC, Mtwara (Unreported).

Hendry v. Adcock Ingram, (1988) 19 IU 85 (LC) at 92 B-C.

Hotel Sultan Palace Zanzibar v. Daniel Leizer and another, Civ. Appl. No. 104
of 2004 (unreported).

Humphrey Ngalawa v. Coca Cola Kwanza Limited, Labour Revision No. 18 of

2017, HC, DR, Mbeya (unreported).

Impala Hotel Limited and another v. Labour Officer and others, Consolidated
Misc. Labour Applications No. 80, 81, 83 and 85 of 2020, HC, DR, Arusha
(unreported).

Intelligence Securicor Limited v. Safari Masaru, Labour Revision No. 103 of

2018, HC, Arusha (unreported).

Iqra Academy (Pre - Primary School) v. Hamza Selemani Kilongo, Application

for Revision No. 02 of 2018, HC, LD, Moshi (unreported).

Isaack Chambo & 5 others v. Shanta Mining Co. Limited, Labour Revision No.
01 of 2020, HC, DR, Mbeya (unreported).

Janeth Mshiu v. Precision Air Services Limited, Labour Revision No. 588 of
2018, HC, LD, DSM (unreported).

Jason Peter Lwiza and 2 others v. Christian Council of Tanzania, Revision No. 18
of 2013, HC, LD, DSM (unreported).

Jaston Wilson Kayagambe and another v. Trustees of the Tanzania National Parks,
Labour Revision No. 01 of 2020, HC, LD, Sumbawanga (unreported).

John Elias v. The Registered Trustees of Chama Cha Mapinduzi, Revision No.
175 of 2019, HC, LD, DSM (unreported).

xvi
John Mosha v Heaven Manase Mtu, Revision No. 77 of 2012 LCCD 2013.

John Msigala v. Pan African Energy Tanzania Ltd, Labour Revision No. 688 of
2018, HC, DSM, (unreported).

Jonas Oswady v. Cost Data Consultation Limited, Labour Revision No.3 of

2020, HC, DR, Mwanza (unreported).

Juma Kanuwa v. Eckenforde Tanga University, Revision No. 17 of 2012

(unreported).

Jumuiya ya Wafanyakazi Tanzania v. Kiwanda cha Uchapishaji Taifa, [1988] TLR

146 (TZCA).

Kassim Mtulya v. Ison Bpo Tanzania Limited, Revision No. 38 of 2020, HC, LD,
DSM (unreported).

Katavi and Kapufi Limited and another v. Emmanuel Dotto Ibrahim and 8 others,
Labour Revision No. 04 of 2020, HC, LD, Sumbawanga (unreported).

Kigoma Hilltop Hotel Limited v. Labour Commissioner, Misc. Labour

Application No. 10 of 2020, HC, LD, Kigoma (unreported).

Kilimanjaro Plantation Limited v. Nicolaus Ngow, Labour Revision No. 40 of

2020, HC, DR, Moshi (unreported).

KMM (2006) Entrepreneurs Ltd v. Emmanuel Kimetule, Labour Revision No.

19 of 2014.

Kinondoni Municipal Council v. Maria Emmanuel Rungwa, Revision No. 375 of

2019, HC, LD, DSM (unreported).

Konrad Kambona v. Tanga Cement Co. Ltd, [2013] LCCD152.

Kuehne and Nagel Limited v. Grace Urassa, Labour Revision No. 190 of 2019,
HC, LD, DSM (unreported).

Kulwa Solomon Kalile v. Salama Pharmaceuticals Ltd, Revision No. 155 of 2019,
HC, LD, DSM (unreported).

KUWASA v. Simon Maduka, Application for Revision No. 67 of 2019, HC,

DR, Shinyanga (unreported).

xvii
Kuzenza William Gwantemi v. Bynecut Offshore Tanzania Ltd, Application for
Revision No. 2 of 2020, HC, DR, Shinyanga (unreported).

Labour Officer v. Operation Manager MMG Gold Ltd, Execution No. 17 of

2020, HC, LD, Musoma (unreported).

Laws v. London Chronicle (Indicator Newspapers) Ltd, [1959] 2 ALL ER 285.

Lemala Camp T/A Grumet Expeditions Tanzania Ltd v. John Kingaz, Labour
Revision No. 26 of 2019 HC, LD, Arusha (unreported).

Lilian Ishabakaki v. Cartrack (Tz) Ltd, Revision No. 231 of 2019, HC, LD, Dar
es Salaam (unreported).

Lukindo International Co. Ltd v. Bakari Kusewa, Revision No. 309 of 2019, HC,
LD, DSM (unreported).

Macrina Rwechungura v. Mwananchi Communication Ltd, Revision No. 473 of

2016, HC, DSM (unreported).

Mama Clementina Foundation v. Filemon E. Macha, Labour Revision No. 18 of

2020, HC, DR, Moshi (unreported).

Market Investigations v. Minister of Social Security, [1969] ALL ER 285.

Martin Kenani Kapolesya & another v. SBC (T) Limited, Revision No. 625 of
2018, HC, LD, DSM (unreported).

Mashukuru Saidi v. Omega Fish, Labour Revision No. 41 of 2019, HC, DR,
Mwanza (unreported).

Mbeya Cement Company Limited v. Allen Mwinula, Revision No. 24 of 2017,

HC, LD, Mbeya (unreported).

Michael Kirobe Mwita v. AAA Drilling Manager, Revision No. 194 of 2013
(unreported).

Michael Kirobe Mwita v. AAA Drilling Manager, HC, LD, DSM, Revision
(2014) LCCCD at 215.

xviii
Mohamedi Kijida v. Everything Dar. Com Ltd, Labour Revision No. 694 of
2019, HC, LD, DSM (unreported).

Moshi University College of Cooperative & Business Studies (MUCCOBS) v.

Joseph Reuben Sizya, Revision No. 11 of 2012, HC, LD, DSM, (unreported).

Msafiri Busaji v. Sandvoile Mining and Construction Tanzania, Revision No. 21

of 2013.

Mtambua Shamte and 64 others v. Care Sanitation and Suppliers, Revision No.
154 of 2010, HC, LD, DSM (unreported).

Musoma Urban Water Supply and Sanitation Authority v. Raphael Ologi Andrea,
Labour Revision No. 21 of 2019, HC, LD, Musoma (unreported).

Mustafa M. Mrope and Another v. Ultimate Security (T) Limited, Revision No.
875 of 2019, HC, LD, DSM (unreported).

Mwita Wambura v. Zuri Haji, Revision Application No. 42 of 2012, HC, LD,
Mwanza (unreported).

Nassoro Khatau Yahya v. Toyota Tanzania Ltd, Revision No. 192 of 2016
(unreported).

National Education Health and Allied Workers Union (NEHAWU) v University

of Cape Town (UCT) and others, (CCT2/02 [2002] ZACC 27.

National Education Health and Allied Workers Union (NEHAWU) v. University

of Cape Town (UCT) and others, (CCT2/02 [2002] ZACC 27.

National Oil (T) Limited v. Jaffery Dotto Msensemi & 3 others, Revision No. 558
of 2016, HC, LD, DSM (unreported).

Naura Spring Hotel v. Labour Officer and another, Consolidated Misc. Labour
Applications No. 83 and 84 of 2020, HC, DR, Arusha (unreported).

NBC CO. Ltd Mwanza v. Justa B. Kyaluzi, Revision No. 79 of 2009

(Unreported).

Nelson Mwemezi v. Tanzania Women's Bank Plc, Labour Revision No.47 of

2019, HC, DR, Mwanza (unreported).

xix
NMB Bank PLC v. Anael Thomas Maleso, Labour Revisions No. 65 of 2019,
HC, LD, Mwanza (unreported).

Nyota Tanzania Limited v. Onesmus D. Onyango and another, Civil Appeal No.
224 of 2018, HC, DSM DR (unreported).

Omary Ali Dodo v. Air Tanzania Company Limited, Lab. Rev. No. 322/2013.

Omary Mwinyimvua na Wenzake v. M/S Sengo 2000 (T) Ltd, Revision No. 157
of 2009.

Othman R. Ntarru v. Baraza Kuu la Waislamu (BAKWATA), Revision No. 323

of 2013.

Otieno Roche & others V Kariakoo Market Corporation, Labour Cause No. 22 of
2011 [20131 LCCD 90].

Ottelo Business Corporation Ltd v. Baraka Andrea Sanga and Others, Labour
Revision No. 14 of 2018, HC, LD, Arusha (unreported).

Patrick Tuni Kihenzile v Stanibic Bank (T) Limited, Labour Revision No. 47 of
2011, HC, LD, DSM (unreported).

Paul Revocatus Kaunda v. The Attorney General, Misc. Civil Cause No. 33 of
2019, HC, MR, DSM (unreported).

Power Roads (T) Ltd v. Haji Omary, Labour Revision No. 36 of 2007.

Project Manager Barrick Gold Mine (Bulyanhulu) v. Adriano O. Odhiambo,

Revision 290 of 2008 (unreported).

Rapoo v. Metropolitn Botswana (Pty) Ltd £2006J (1) BLR 186 (IC).

Rashid Mwema v. Elias Nonnious Mapoga, Revision No. 363 of 2019, HC, LD,
DSM (unreported).

Registered Board of Trustees of LAPF, Dodoma v. Jamal Mruma, Consolidated

Revision Application No. 65 and 114 of 2019, HC, LD, DSM (Unreported).

xx
Registered Board of Trustees of LAPF, Dodoma v. Jamal Mruma, Consolidated
Revision Application No. 65 and 114 of 2019, HC, LD, DSM (unreported).

Resolution Insurance Ltd v. Emmanuel Shio and Others (Labour Revision No.
642 of 2019) [2020] TZLC 38.

Revina Raphael Bigambo v. Dangote Industries Ltd and another, Application for
Labour Revision No. 14 of 2019, HC, LD, Mtwara (unreported).

Richard Werema v. TANESCO, Revision No. 4 of 2018, HC, LD, Tabora

(unreported).

Richard Zakaria Odongo v. Alliance Boys Secondary & High School, Labour
Revision No. 20 of 2017, HC, LD, Mwanza (unreported).

Ringo Moses v. Lucky Spin Ltd (Premier Casiono), Revision No. 544 of 2019,
HC, LD, DSM (unreported).

Rosamistika Siwema (Administrate of the Estate of Joseph Mandago) v. Add

International Tanzania, Revision No. 498 of 2019, HC, LD, DSM (unreported).

Samson Rwechungura Fulgence v. Geita Gold Mining Limited, Labour Revision

No. 41 of 2020, HC, DR, Mwanza (unreported).

Sangija Joseph Masaaga v. Ultimate Security (T) Ltd, Labour Revision No. 566
of 2016, Dar es Salaam (unreported).

Secularms (T) Limited v. Sauli Awaki Nada, Labour Revision No. 11 of 2020,
HC, DR, Moshi (unreported).

Security Group Tanzania v. Athumani Abdallah, Revision No. 260 of 2008, HC,
LD, DSM (unreported).

Serengeti Breweries Limited v. Mathias Ulaya, Labour Revision No. 47 of 2016,

HC, DR, Mwanza (unreported).

Shankar Balaji Waje v. State of Maharashtra, AIR 1963 Bom. 236.

Simon Mwita Mlagani and another v. KIRIBO Limited, Labour Revision No. 11
of 2020, HC, DR, Musoma (unreported).

Sodetra (SPRL) Ltd v. Njelu Mezza and another, Labour Revision No. 207 of
2008 (unreported).

xxi
Stanbic Bank (T) Ltd v. Iddi Halfani, Revision No. 858 of 2019, HC, LD, DSM
(unreported).

Stanly Joseph Mwakalinga & 4 others v. Kamanga Ferry Limited, Labour

Revision No. 27 of 2017, HC, DR, Mwanza (unreported).

Stevenson Jordans and Harrison Ltd v. MacDonald and Evans, [1952] 1 TLR 101.

Summit Lodge Limited v. Daniel Jeremiah Mnaale, Labour Revision No. 130 of
2018 HC, LD, Arusha (unreported).

Tanzania Air Services Limited v. Minister for Labour, Attorney General and the
Commissioner for Labour, [1995] TZHC 13; (22 May 1995).

Tanzania Breweries Limited v. Nancy Maronie, Labour Dispute No. 182 of 2015
(unreported).

Tanzania Cigarrate Company Ltd v. Reuben Carlo, Revision No. 746 of 2019,
HC, LD, DSM (unreported).

Tanzania Civil Aviation Authority (TCAA) v. Chilala Mafuru, Labour Revision

No. 86 of 2018, HC, DR, Mwanza (unreported).

Tanzania Coffee Board v. Killian M. Massawe, Labour Revision No. 21 of 2010

(unreported).

Tanzania Fertilizers Company v. Ayoub Omary, Labour Revision No. 13 of

2019, HC, LD, Mbeya (unreported).

Tanzania International Container Terminal Service (TICTS) v. Fulgence Steven

Kalikumtima and others, Revision No. 471 of 2016, HC, LD, DSM
(unreported).

Tanzania Leaf Tobacco Company Limited v. Mohamed Issa Ihuka, Labour

Revision No. 12 of 2019, HC, LD, Sumbawanga (unreported).

Tanzania Railways Limited v. Mwinjuma Said Semkiwa, Revision No. 239 of

2014, HC, LB, DSM (unreported).

Tanzania Revenue Authority v. Godfrey Kajetani Dimoso, Revision No. 62 of

2015, HC, LD, DSM (unreported).

xxii
Tanzania Social Service Industry Workers Union v. Machame Lutheran Hospita,
Labour Application No. 2 of 2018, HC, DR at Moshi (unreported).

TBL v. Charles Malabona, Revision No. 24 of 2007 (unreported).

Teddy Njovu v. Nashera Hotel, Revision No. 34 of 2020, HC, LD, Morogoro
(unreported).

Thadeus Medukenya v. Urambo District Council, Labour Revision No. 3 of

2020, HC, LD, Tabora (unreported).

The Copy Cat (T) Ltd v. Mariam Chamba, Labour Revision No. 421 of 2019,
HC, DSM (Unreported).

TIFPA v. Aloyce Byaro, Revision Application No. 02 of 2019, HC, DR,

Musoma (unreported).

TTCL v. Swtbert Rutahuga and Anna Mbakile v. DED Geita, Labour

Revision No. 113 of 2019, HC, DR, Mwanza (unreported).

Unilever Tea Tanzania Ltd v. Thomas Okello Atito, Revision No. 256 of 2019,
HC, LD, DSM (unreported).

USAID Wajibika Project v. Joseph Mandago and Edwin Nkwanga, Labour

Revision No. 208 of 2014 (unreported).

Venture Risk Management v. Ahmad Mwalimu Bao, Application for Labour

Revision No. 9 of 2015, HC, LD, Mtwara (unreported).

Visser v. Sanlam [2001] 22 IU 666.

Walker v. Crystal Palace (1910) 1KB 87 and Yewens v. Noakes (1881) 6 QBD
530.

Wananchi Marine Product (T) Ltd v. Owners of Motor Vessels, Civil Case No.
23 of 1996, HC, DSM, DR (unreported).

xxiii
 Y

Yara Tanzania Ltd v. Athuman Mtangi & others, Revision Application No. 49
of 2019, HC, LD, DSM (unreported)

Zebra Hotels (T) Limited v. Marry P. Kachinga, Labour Revision No. 1 of 2020,
HC, DR, Moshi (unreported).

Zephania O. Adina v. GPH Industries Ltd, Labour Revision No. 27 of 2020,

HC, LD, Mwanza (unreported).

xxiv
 PART ONE

INTRODUCTION TO LABOUR LAW

1.1 Definition
Most scholars and academicians have argued that there is no
comprehensive and conceptually agreeable definition of labour law.
Consequently, scholars have attempted to formulate several definitions of
the subject. Mankiewicz defines labour law as constituting a body of rules
either deviating from, or supplementary to, the general rules of law, which
regulate the rights and duties of persons performing or accepting the work
of a superior.1 In other words, it is a collection of legislation, precedents
and administrative rulings which address employment legal rights of, and
limitations on, working individuals and their organizations. It also
mediates the relationship between the employer or employer’s
organization; employee or trade union; and the government.

Black’s Law Dictionary defines labour law as the field of law governing the
relationship between employers and employees, especially that law
governing the dealings of employers and the unions that represent
employees.2 Put differently, it is the branch of law containing rules of
workplace culture, employment customs and practices, the work rulebook
and employee handbook, and collective agreements governing the
industrial relations between an employer, employee, and the government.
It therefore specifies the rights, privileges, and obligations of all parties in
the employment contract, and guide the parties on how they can conduct
themselves as per the contractual terms and how they can enforce the
attendant rights, privileges, and obligations. As any branch of law, labour
law sets a forum or an institutional framework to enable the effective
enforcement of both the employers’ and employees’ rights and obligations.3

The Institute of Company Secretaries of India summarises the concept of

labour law in the following terms: “[t]he labour law addresses the various

1
Mankiewicz, R.H., “The Concept and Development of Labour Law,” Vol. 5(9) Bulletin des
Relations Industrielles, 1950, pp. 83–87, at p. 83.
2
Bryan, A., (Ed.), Black’s Law Dictionary, 8th Edn, 2004, at p. 2552.
3
Magalla, A., “The Role of Labour Laws in Maintaining the Relationship between Employers and
Employees in Tanzania,” 2018 at p. 1–14 (available at <https://ssrn.com/abstract=3292154>
accessed 15 May 2021).

1
administrative rulings such as employment standing orders and procedure
to be followed, compliance to be made and it address the legal rights of,
and restrictions on, working people and their organizations. By and large
the labour law covers the industrial relations, certification of unions, labour
management relations, collective bargaining and unfair labour practices
and very importantly the workplace health and safety with good
environmental conditions. Further, the labour law also focuses on
employment standards, including general holidays, annual leave, working
hours, unfair dismissals, minimum wage, layoff procedures and severance
pay and many other issues related to employer and employee and the
various compliance requirements.”4

1.2 Categories of Labour Law

Labour law can be categorized into four subsets dealing with various
labour issues in the employment industry. These are: -

1.2.1 Substantive Labour Law

It prescribes the standards for employers, employees, and the government
to observe and honour. It specifically deals with the contract of service and
its attendant incidents such as remuneration, working hours, health and
safety, termination, and others.

1.2.2 Procedural Labour Law

It prescribes statutory procedures for the administration of labour justice
particularly before, during and after the lifespan of the contract of service.
It set up institutions for implementation of rights, privileges and
obligations created under substantive labour law and the manner of
enforcing such attendant rights, privileges, and obligations.

1.2.3 Collective Labour Law

It regulates the inherent relationship between employees or trade unions
on their behalf, and the employers or employers’ organizations with regard
to the rights deriving from that relationship such as workplace
participation, inclusive information and consultation, and collective
bargaining. It includes the rules governing the execution and termination of

4
The Institute of Company Secretaries of India., “Labour Laws and Practice,” Elective Paper 9.6,
2019, at p. iii.

2
collective agreements, the industrial peace obligation, the systems in place
for dispute resolution and the settlement of disputes over the interpretation
of collective agreements in general.

1.2.4 Individual Labour Law

It deals with the sanctity relationship between the employer and employee,
without involvement of trade unions in terms of employee’s remuneration,
hours of work, employment terms, health and safety, and other attendant
incidents prescribed in the employment contract and/or substantive labour
law.

1.3 Genesis of Labour Law

The historical development of labour law has been a subject of national and
international discourses across jurisdictions. Despite such discourses, it is
universally agreed that the genesis of labour law is founded on what is
known as wage labour.5 Wage labour is simply a paid work, or paid
employment, or paid labour. It entails a socio-economic relationship
between employees and employers in which the former sells their labour
power under a formal or informal employment-contractual arrangement.
This arrangement normally occurs in a labour market where wages or
salaries are market-determined, in exchange for the money paid as wages,
usually for short-term contracts or salaries, in permanent contracts. The
work product becomes the undifferentiated property of the employer.

It is from this notion of wage labour where the genesis of labour law builds
its foundation. Wage labour presupposes that someone is working and
remunerated for the services rendered to another person, the employer;
and in return the employer pays wage to the employee. However, it should
be noted that wage labour does not emerge from a vacuum. Certain socio-
economic prerequisites must be present for it to exist, and these conditions
are: -

a) There must be considerable development of commodity economy or

enough surplus, hence exchange of money vis-à-vis commodities as

5
Bellucci, S., “Wage Labour and Capital in Africa: A Historical Perspective,” Vol. 58(2) Labour
History, 2017, pp. 133–137, at pp. 136–137. See also: Stanziani, A., Bondage, Labour and Rights
in Eurasia from the Sixteenth to the Early Twentieth Centuries. New York, NY: Berghahn Books,
2014, at pp. 249–252.

3
 opposed to natural economy. Therefore, in a natural economy where
there is no surplus, there is no wage labour as well.

b) There must be labour power or saleable service convertible into a

commodity. That is to say, there must be a class of people who offer
labour power as commodity in return of wage. The natural outcome
here is the emergence of labour and capital.6

c) There must be free labour power in the nature of a commodity. In

effect, free labour presupposes the worker is already separated from
his own means of production has nothing to do except to sale his
labour power as commodity in the market to survive. Thus, free
labour presupposes the freedom of contract and sanctity.

It is paramount to understand how and when did wage labour develop to

appreciate the interconnection between the emergence of wage labour and
labour law. The emergence of wage labour can be explained through
modes of production, specifically what was taking place in Britain and
other parts of the world before the 17th century. During primitive
communalism, there was no wage labour due to lack of commodity
economy, thus the concept of labour law never existed. In slavery era, there
was equally no wage labour because there were no wages paid to slaves as
slaves were, by themselves, considered as moving properties of slave
masters or simply speaking instruments of slave masters so nothing could
be paid in return, thus wage labour could not exist in such relationship,
and consequently therefore, labour law could not exist as well. During
feudalism, at the very beginning, there was no wage labour as serfs were
merely considered instruments of production for landlords; however, in the
late stage of feudalism, elements of wage labour such as commodity
production started to emerge.

During capitalism, there was an emergence of pure wage labour as the

prevailing system created a class of people who were landless – people
divorced from their means of production and became a class of people
without means of production, so the only option was to sell their labour
power to capitalists. In this stage, there was large class of working people

6
Himmelweit, S., and Mohun, S., “Domestic Labour and Capital,” Vol. 1(1) Cambridge Journal of
Economics, 1977, pp. 15–31, pp. 15–22.

4
having no means of production – populated in factories to sell their labour
power. This huge population of working class was subjected to intolerable
conditions such as low wages, poor working conditions, serious accidents
in working places due to dangerous machines as there were no safety
measures, protection, and fair compensation upon sustenance of
employment injuries, health and safety were so miserable due to industrial
smokes, fumes, long hours of working, lack of social security systems, and
similar conditions.

This image shows laborers working deep down in the

mines, in Great Britain, during the industrial revolution in
the 18th century. They were forced to crawl into small
and tight spaces without safety measures. Often, they
used women and children to perform such tasks due to
their physical smaller nature compared to full grown
men.
Source: https://brewminate.com/labor-laws-and-the-
industrial-revolution/ (accessed 12 May 2021).

Consequently, the underlying miserable and intolerable conditions resulted

in serious working-class revolts and uprisings; and it pushed the
government to interfere with a view to mitigating the situation. Thus,
labour law or industrial law or employment law were adopted to regulate
and mitigate the pre-existing undesirable situation in the employment

5
industry, and set up rights and obligations of employees, employers, and
the government.7

1.4 Sources of Labour Law in Tanzania

There are various sources of labour law of which any authority with labour
mandate is required to consult when the rights and obligations of parties to
a contract of service are a subject of adjudication. The following are sources
of labour law: -

1.4.1 The Constitution of the United Republic of Tanzania, 1977 (Cap. 2

as amended from time to time)
The Constitution of the United Republic of Tanzania, 1977 (the Constitution
of Tanzania) is a grundnorm – a paramount source of labour law, and all
other labour and related labour laws made should be in consonance with
the tenets enshrined in the Constitution. The Constitution of Tanzania
proclaims that work alone creates the material wealth in society and is the
source of well-being of the people and the measure of human dignity. As
such, every person has a duty to participate responsibly and honestly in
lawful and productive work and observe work discipline and strive to
attain the individual and collective production targets desired or set by
law.8 It must be noted that, one of the objects of the lex specialis governing
labour matters in the territory – is to give effect to the provisions of the
Constitution of Tanzania in so far as they apply to employment and labour
relations and conditions of work.9

The Constitution of Tanzania obliges the State authority and all its agencies
to direct their policies and programmes towards ensuring, among others,
that every person who is able to work does work in any legitimate activity
by which that person earns a living.10 Besides, it also instructs the State
authority to make appropriate provisions for the realization of a person’s
right to work, and to ensure that every person earns his livelihood.11
However, it is wise to note that these purported State authority’s

7
Lewis, R., “The Historical Development of Labour Law,” Vol. 14(1), British Journal of Industrial
Relations, 2009, pp. 1–17. See also: Deakin, S., et al., “The Evolution of Labour Law: Calibrating
and Comparing Regulatory Regimes,” Vol. 146(3-4) International Labour Review, 2007, pp. 249
–252.
8
Article 25(1) of the Constitution of Tanzania.
9
Section 3(f) of the Employment and Labour Relations Act, Cap. 366.
10
Article 9(e) of the Constitution of Tanzania.
11
Article 11(1), Ibid.

6
obligations are merely fundamental objectives and directive principles of
State policy incapable of being justiciable before Courts of law under
Article 7(2) of the Constitution of Tanzania. It is equally important to note
that: “[t]he reason behind the legal non-enforceability and non-justiciability
of these principles is that they impose positive obligations on the State.
While taking positive action, government functions under several
restraints, the most crucial of these being that of financial resources. The
constitution-makers, therefore, taking a pragmatic view refrained from
giving teeth to these principles. They believed more in an awakened public
opinion, rather than in Court proceedings, as the ultimate sanction for the
fulfilment of these principles. Nevertheless, the Constitution declares that
the Directive Principles, though not enforceable by any Court, are
‘fundamental’ in the governance of the country, and the ‘State’ has been
placed under an obligation to apply them in making laws. The State has
thus to make laws and use its administrative machinery for the
achievement of these Directive Principles.”12

Article 13 of the Constitution of Tanzania provides for equality before the

law of all persons with respect to, among others, employment
opportunities, rights, and privileges in the employment industry,
regardless of their tribe, social origin, political opinion, colour, sex, station
of life and other discriminative sentiments. Equally, the Constitution of
Tanzania grants workers with a freedom to freely and peaceably assemble
or associate and cooperate with others through associations or
organizations formed for purposes of preserving or furthering their
interests.13 It should be noted that this provision on freedom of association
is a foundation of trade unionism and collective bargaining in Tanzania.
More importantly, the Constitution of Tanzania provides for the right to
work, in that, every individual has the right to work; and every ‘citizen’ is
entitled to equal opportunities and right to equal terms to hold any office
or discharge any function under the State authority.14 It is interesting to
note that the framers of the Constitution reserved equal opportunities and
equal holding of public offices to ‘citizens’ only, and the provision does not
cover and apply to workers who are ‘nationals’ and ‘residents’ of Tanzania.

12
The Institute of Company Secretaries of India., p. 17.
13
Article 20 of the Constitution of Tanzania.
14
Article 22, Ibid.

7
The Constitution of Tanzania requires that every person should be
remunerated fairly based on work performed without discrimination
whatsoever, the Constitution therefore embodies the principle of ‘Equal
Pay for Equal Work.’15 The Constitution also prohibit forced labour, and
exclude certain works from the ambit of forced labour such as work to be
done pursuant to a court order, work by members of any Force in the
discharge of their responsibilities, work to be done due to state of
emergency and calamities.16

The Courts of law in the territory have been very vibrant to seeking
guidance and support under the Constitution of Tanzania when labour
disputes are a subject of adjudication before them. For example, in the case
of The Copy Cat (T) Ltd v. Mariam Chamba17 at p. 13 the Court relied on
Article 22 (1) of the Constitution of Tanzania to judicially conclude that the
employer’s conduct of making the respondent's employment intolerable
which resulted in termination – infringed the respondent’s right to work as
guaranteed under Article 22(1) of the Constitution. In Stanbic Bank (T) Ltd v.
Iddi Halfani18 at p. 15 the Court had this to say:

[t]he Constitution of the United Republic of Tanzania

guarantees one's right to work. Equally, when the rights
and duties of any person are being determined by the court
or any other agency, that person shall be entitled to fair
hearing and to the right of appeal or other legal remedy
against the decision of the court or of the other agency
concerned. Thus, termination of employment must be first
substantively fair with fair and valid reasons putting in
regards that the concept of right to work as a component of
human rights, is so fundamental and therefore guaranteed
by different international legal instruments.

Equally, in the case of Tanzania Civil Aviation Authority (TCAA) v. Chilala

Mafuru19 at pp. 2–3 the Court invoked Article 13(6)(a) of the
Constitution of Tanzania as a basis for allowing the applicant to
withdraw his labour application with a right to refile, the court said:

15
Article 23, Ibid.
16
Article 25, Ibid.
17
Labour Revision No. 421 of 2019, HC, DSM (Unreported).
18
Revision No. 858 of 2019, HC, LD, DSM (unreported).
19
Labour Revision No. 86 of 2018, HC, DR, Mwanza (unreported).

8
 [o]n the second issue, as to whether leave to refile be
granted or not, the answer is that the prayers for leave are
founded on the right to be heard as enshrined under
Article 13 (6) (a) of the Constitution of the United
Republic of Tanzania 1977, I thus find myself unable to
refuse the prayer to refile.

1.4.2 Legislation
Legislation is also a source of labour law in the territory. In Paul Revocatus
Kaunda v. The Attorney General20 the Court opined that legislation are a set
of laws that have been properly passed by the Parliament or any other
authority having requisite legislative mandate. As such, there are two type
of legislation governing employment matters and industrial relations in
Tanzania, namely: -

1.4.2.1 Principal Legislation

Principal legislation is a collection of laws made directly by the Parliament
under the authority of Article 64 of the Constitution of Tanzania – this
provision vests legislative power over all Union matters and other matters
concerning Mainland Tanzania to the Parliament. There are specific
principal legislation (lex specialis) governing labour matters, and other
general principal legislation, such as:

• The Employment and Labour Relations Act, [Cap. 366 R.E. 2019].
• The Labour Institutions Act, [Cap. 300 R.E. 2019].
• The Non-Citizens (Employment Regulations) Act, Act No. 1 of 2015.
• The Public Service Act, [Cap. 298 R.E. 2019].
• The Workers Compensation Act, [Cap. 263 R.E. 2015].
• The Occupational Health and Safety Act, Act No. 5 of 2003.
• The Law of Contract Act, [Cap. 345 R.E. 2019].
• The Public Service Social Security Fund Act, Act No. 2 of 2018.
• The National Social Security Fund Act, [Cap. 50 R.E. 2015].
• Judges (Remuneration and Terminal Benefits) Act, [Cap. 424 R.E.
2002]
• The Social Security Act, [Cap. 135 R.E. 2002].

20
Misc. Civil Cause No. 33 of 2019, HC, MR, DSM (unreported).

9
1.4.2.2 Subsidiary Legislation
Subsidiary legislation is also known as delegated legislation or subordinate
legislation or secondary legislation. Section 4 of the Interpretation of Laws
Act21 defines subsidiary legislation as an order, proclamation, rule, rule of
court, regulation, notice, by-law, or instrument made under any Act or
other lawful authority. Therefore, subsidiary legislation is a collection of
laws made by other authorities especially executive authorities under
powers given to them by principal legislation to implement and administer
the legislative intent of principal legislation. They are made by authorities
other than the legislature but having full powers to legislate. Article 97(5) of
the Constitution of Tanzania provides that the Parliament shall have
mandate to enact laws making provisions conferring on any person or
department of the government the power to make regulations having the
force of law or conferring the force of law on any regulations made by any
person or any department of the government. The following are some of
the subsidiary legislation governing labour matters in the territory: -

• The Employment and Labour Relations (Code of Good Practice)

Rules, G.N. No. 42 of 2007.
• The Employment and Labour Relations (General) Regulations, G.N.
No. 47 of 2017.
• The Workers’ Compensation Regulations, G.N. No. 185 of 2016.
• The Labour Institutions (Mediation and Arbitration) Rules, G.N. No.
64 of 2007.
• The Labour Court Rules, G.N. No. 106 of 2007.
• The Labour Institutions Wage Order, G.N. No. 196 of 2013.
• The Labour Institutions (Mediation and Arbitration Guidelines)
Rules, G.N. No. 67 of 2007.
• The Labour Institutions (Ethics and Code of Conduct for Mediators
and Arbitrators) Rules, G.N. No. 66 of 2007.
• The Public Service Regulations, G.N. No. 168 of 2003.

21
[Cap. 1 R.E. 2019].

10
1.4.3 Judicial Precedents
It is with no doubt that, in Tanzania, labour law principles established in
previous legal cases serve as authoritative rule of pattern and guidance in
future similar or analogous cases. In the case of Jumuiya ya Wafanyakazi
Tanzania v. Kiwanda cha Uchapishaji Taifa22 the full bench of the Court of
Appeal of Tanzania unequivocally approved the use and binding nature of
precedents in the labour law justice system. It had this to say:

[we] accept that a system of law requires a

considerable degree of certainty and uniformity
and that such certainty and uniformity would not
exist if the Courts were free to arrive at a decision
without regard to any previous decisions. [We]
also accept that subordinate courts are bound by
the decisions of superior courts.

1.4.4 Scholarly Works of Prominent Labour Law Jurists

The works of prominent labour law jurists are also sources of labour law,
and Courts of law in Tanzania have, often, sought persuasive guidance
from scholarly works of prominent authors in resolving employment
disputes. For example, in the case of Richard Werema v. TANESCO23 the
Court at pp. 11–12 sought persuasive guidance from a labour law book by
B.B. Mahapatro, “Human Resources Management New Age,” International
Publishers Delhi (at p. 84) with regard to the rationale of promotion in the
employment context. The Court went on to agree with the author and
concluded that: “[p]romotion originates from employee performance or
conduct aimed at motivating employees to higher productivity, increase
the effectiveness of the employee and the organization; builds loyalty,
morale, and sense of belongingness in the employee, to impress upon
others that opportunities are available to them too in the organization, if
they perform well.” In National Oil (T) Limited v. Jaffery Dotto Msensemi & 3
others24 the Court at p. 10 invoked a labour law book by John Grogan titled
“Dismissal, Discrimination and Unfair Labour Practices,” 2nd Edn, JUTA &
CO Ltd, (p. 587) in construing unfair termination for fixed term contracts
vis-à-vis legitimate expectation.

22
[1988] TLR 146 (TZCA).
23
Revision No. 4 of 2018, HC, LD, Tabora (unreported).
24
Revision No. 558 of 2016, HC, LD, DSM (unreported).

11
Similarly, in the case of Ringo Moses v. Lucky Spin Ltd (Premier Casiono)25 the
Court at p. 10 sought guidance on the legitimacy of retrenchment as a
ground for terminating an employee from a labour law book by George
Ogembo titled “Employment Law Guide for Employers, 2018” (p. 339)
where the Court agreed with the author that: “[i]n determining the legality
of a redundancy, the court examines the bona fides and integrity of the
entire process. Even if it is a fair reason, the dismissal can still turn out to be
unfair if the employer fails to act reasonably and follow the steps required
to effect fair redundancy.”

In Stanbic Bank (T) Ltd v. Iddi Halfani26 the Labour Court at p. 23 sought
guidance from a scholarly paper in resolving issues of costs in employment
disputes, it noted that: “[h]onourable Vallensi Wambali, Acting Director
Arbitration Department in the Commission for Mediation and Arbitration
(CMA) in his recent paper titled Is Cost Free The Source Of Delay In
Handling Labour Dispute: Law And Practice In Tanzania, at page 3
paragraph 2 he said: ‘The law is designed to make sure that in making
decisions on costs orders the CMA and Labour Court seek to strike a
balance between on one hand, not unduly discouraging employees,
employers, unions and employers association from approaching the
Commission for Mediation and Arbitration(CMA) and Labour Court (LC)
to have their disputes dealt with and on the other hand not allowing those
parties to being frivolous and vexatious case.’”

1.4.5 International Instruments

International instruments are legal instruments adopted by ILO’s
constituents, namely; governments, employers and workers, in a tripartite
arrangement, setting out minimum labour standards to govern the
employment industry and labour relations. Some international instruments
are legally binding international treaties that may be ratified by member
States, while others serve as non-binding guidelines or merely soft laws.27
International instruments such as international conventions are explicit
sources of labour law in Tanzania by virtue section 3(g) of the Employment
and Labour Relations Act, Cap. 366 (lex specialis) which lucidly states,

25
Revision No. 544 of 2019, HC, LD, DSM (unreported).
26
Revision No. 858 of 2019, HC, LD, DSM (unreported).
27
ILO., International Labour Standards: Rules of the Game for the Global Economy. Geneva: ILO,
3rd Edn, 2014, p. 15.

12
among others, that the object of the lex specialis shall generally be to give
effect to the core conventions of the ILO as well as other ratified
conventions.

The Labour Court in the territory has been very vibrant in honouring the
letter and spirit of international instruments when resolving labour
disputes. For example, in the case of The Copy Cat (T) Ltd v. Mariam Chamba
(supra) at p. 14 the Court made reference to the Universal Declaration of
Human Rights of 1948 (UDHR) in justifying the right to work for every
person. The Court held that Article 23 (1) of the UDHR clearly provides
that everyone has the right to work, to free choice of employment, to just
and favourable condition of work and to protection against unemployment.
Similarly, in John Msigala v. Pan African Energy Tanzania Ltd28 it was held
that:

Employer should not gamble with one's right to

work. To this court a man's right to work is just
as important to him as, if no more important
than, his rights of property. Thus, termination of
employment must be first substantively fair with
fair and valid reasons putting in regards that the
concept of right to work as a component of
human rights, is so fundamental and therefore
guaranteed by different international legal
instruments. (Emphasis supplied).

The Court in the case of Macrina Rwechungura v. Mwananchi Communication

Ltd29 articulated that: “[t]he opinions of the ILO Committee of Experts on
Application of Convention 158 and Recommendation 166 (CEACR) forms
the basis of the policy objective of the law in regulating retrenchment or
termination for operational requirements in that employees have a right not
to have their contract of employment prematurely terminated unfairly or
unjustifiably.” In the same premise, the Court in Richard Werema v.
TANESCO at pp. 14–15 (supra) held that protection of the right to work at
work place has been spoken of in several legal instruments such as the ILO
Convention No. 158 of 1982, where Article 4 provides that employment of a
worker shall not be terminated unless there was a valid reason for such

28
Labour Revision No. 688 of 2018, HC, DSM, (unreported).
29
Revision No. 473 of 2016, HC, DSM (unreported).

13
termination connected with the capacity, or conduct of the worker or based
on operational requirement of the undertaking, establishment or service.
The Court also relied on the African Charter on Human and People's
Rights, 1981 (The Banjul Charter) to conclude that the termination of the
applicant was unfair.30

In the case of Martin Kenani Kapolesya & another v. SBC (T) Limited31 at p. 13,
it was held that: “[t]he intention of the Legislature was to ensure that
employers can terminate their employees basing on valid reasons and not
upon their will or whims. This is emphasized in Article 4 of the ILO
Convention 158 of 1982 which provides that the employment of a worker
shall not be terminated unless there is a valid reason for such termination
connected with the capacity or conduct of the worker or based on the
operation requirements of the undertaking, establishment or services."
(Emphasis supplied). See also Bati Services Company Limited V. Shargia
Feizi32 at p. 10.

Similarly, the Labour Court in Athumani Rajabu Salehe v. Speed Security

Services Ltd33 reasoned at p. 10 that it is crystal clear that the intention of the
legislature is to require employers to terminate employees only basing on
valid reasons and not their will or whims as per the dictates of the
International Labour Organization Convention (ILO) 158 of 1982. In
Mohamedi Kijida v. Everything Dar. Com Ltd34 at p. 12 the Court noted that:
“[t]he legislature's sprit is to ensure that termination of employment is
based on valid reason and not on employer’s will. That spirit goes along
with Article 4 of the International Labour Organization Convention (ILO)
158 of 1982, which provides that ‘the employment of a worker shall not be
terminated unless there is a valid reason for such termination connected
with the capacity or conduct of the worker or based on operational
requirements of the undertaking establishment or service.’”

30
See also: Intelligence Securicor Limited v. Safari Masaru, Labour Revision No. 103 of 2018,
HC, Arusha (Unreported) where the Court at p. 7 held that: “I am aware of the established
principle that, employers are required to terminate an employee only with valid reasons and not at
their own choice. This position is also recognized by the International Labour Organization
Convention (ILO) 158 of 1984 under article 4.”
31
Revision No. 625 of 2018, HC, LD, DSM (unreported).
32
Revision No. 106 of 2019, HC, LD, DSM (unreported).
33
Revision No. 372 of 2019, HC, LD, DSM (unreported).
34
Labour Revision No. 694 of 2019, HC, LD, DSM (unreported).

14
With the same spirit, the Labour Court in the case of Anna Mbakile v. DED
Geita35 at p. 9 sought guidance from international instruments with regard
to determining how to consider reasonable financial compensation when
unfair termination is proved – the Court invoked the General Survey of the
Committee of Experts on Application of Convention and Recommendation
(CEACR), 2016 at para. 229, p. 85 where circumstances and factors which a
decision-maker can consider in making such financial compensation are
provided, such as the nature of employment, length of service, age,
acquired rights, reason for termination of employment, the possibility of
finding a job, career prospects, employee’s family status, and others.

1.4.6 Received Laws

Courts of law and labour institutions in Tanzania have mandate, when
resolving labour disputes, to seek guidance from the substance of common
law, doctrines of equity and statutes of general applications in force in
England on the twenty-second day of July, 1920.36 In the case of Tanzania
Air Services Limited v. Minister for Labour, Attorney General and the
Commissioner for Labour37 the Court discussed the applicability of common
law in labour and administrative matters, it reasoned, among others, that:
“[s]hould I, in determining the instant application, apply the common law
as it now stands, or should I apply it after modifying it? This Court has,
under section 2(2) of the Judicature and Application of Laws Ordinance,
Cap 453, [now JALA, Cap. 358] power to vary that law so as to make it
suit local conditions. Should I use that power in this matter? I think I
should. It seems to me that the interests of justice call for the existence, in
common law, of a general rule making it mandatory in matters of
importance for public authorities, a term I use to include statutory and
domestic bodies, to give reasons for their decisions.” However, it should be
noted that received laws only apply when there are gaps in the existing
labour laws.

1.4.7 Relevant Labour Policies

It is with no doubt that, relevant labour policies are equally useful in
construing the legislative intents of the labour laws, for example, in the case
of Richard Werema v. Tanesco at p. 15 (supra) the court made reference to the

35
Labour Revision No. 113 of 2019, HC, DR, Mwanza (unreported).
36
S. 2(3) of the Judicature and Application of Laws Act, Cap. 358.
37
[1995] TZHC 13; (22 May 1995).

15
National Employment Policy, 2008 in construing labour rights within the
context of international labour law, the Court held that: “[l]astly but not
least, The National Employment Policy 2008, issued by the Ministry of
Labour, Employment and Youth Development of the United Republic of
Tanzania whose objectives among other things provide for Labour Rights
to, safeguard the rights and interests of workers in accordance with
International Labour Standards is of essence in interpreting the intent of
Labour Laws."

1.5 Role and Purpose of Labour Law

Labour law plays a significant role in facilitating the attainment of labour
justice in the employment industry. Davies and Freedland point out that:
“[t]he central purpose of labour law is seen as that of maintaining an
equilibrium between employers and workers by ensuring the effective
operation of a voluntary system of collective bargaining. Beyond that,
labour law is seen as concerned with protecting the social rights of
workers.”38 In Stanbic Bank (T) Ltd v. Iddi Halfani39 the Court had an
opportunity to discuss the role and purpose of labour law, it was of the
view that:

[i]t should be born in mind that the purpose of labour law is

to regulate and guide relations in the employment and
labour industry. It does so by providing remedies and
facilitating access to tribunals and courts for settlement of
labour disputes in most cases without costs. According to
Section 50(6) of the Labour Institutions Act No. 7 of 2004 as
amended by Section 19(b) of the written laws (Miscellaneous
Amendment) Act No. 3 of 2010 and Rule 51 of the GN No.
106 of 2007 and Section 88(9) of the Employment and Labour
Relations Act No. 6 of 2004 and Rule 34 of the GN No. 64 of
2007, Labour disputes are free of costs, interests and fees,
however, costs are only allowed where there is the proof of
frivolous and/or vexatious proceedings.

Labour law also intends to ensure that there is security of tenure when all
other factors remain constant between the employee and employer. In the

38
Davies, P., and Freedland, M., Kahn –Freund’s Labour and the Law. London: Stevens & Sons,
3rd Edn., 1983, p. 2.
39
Revision No. 858 of 2019, HC, LD, DSM (unreported), pp. 22–23.

16
case of Augustine Masatu v. Mwanza Textile40 Hon. Justice Mwalusanya (as
he then was) argued that: "[t]he right to work is the most important civil
right in the labour law of socialist countries. Its ideological basis is the need
and necessity of the survival of the working class. It aims at securing the
possibility of continued employment. It is not an empty slogan but a
survival for existence. For this right to exist in real sense, it is necessary that
economic, political, and legal order of the society assure everybody who is
capable of working of the possibility of participating in building his society
through work in accordance with his capacity and education and the right
to earn an income proportional to the quantum of his work. And so, job
security is the hall mark of the whole system. And Tanzania aspires to
build a socialist society on the principle of Ujamaa na Kujitegemea."

Generally, the role and purpose of labour law can be summarised as

follows: -

a) to re-adjust the imbalance of contractual power between the

employer and the employee through protecting employees’ right to
organize in trade unions and to bargain collectively, and to putting in
place reasonable measures which prevent the employer from
dismissing the employee at the former’s will or without good cause.
As such, labour law sets up and preserves the processes by which
employees are empowered to negotiate equitably.

b) to prevent working conditions being narrowed below levels that are

unacceptable in any civilised employment community, through
placing restrictions on the contracting partners’ freedom to contract
on whatever terms they wish, and setting minimum standards over
issues such as working time, health, and safety, and pay. Thus, labour
law limits the degree to which the more powerful party can exploit
the weaker in the employment industry.

c) to regulate the labour market, that is to say, a State may choose to

implement labour laws to place either maximum or minimum limits
on remuneration, or the quantum of certain employees such as
foreigners in the whole labour market or in particular sector or

40
Civil Case No. 3 of 1986 High Court Tanzania, Mwanza (unreported).

17
 industry;41 and generally regulate other employment areas in the
labour market.

d) to limit trade union freedom, it should be noted that labour law is

also used as an instrument to limit and control the works of trade
unions especially when essential services are at stake.

It is therefore important for decision-makers in the employment industry to

observe the letter and spirit of labour law with a view to promoting fair
and peaceful industrial relations among relevant stakeholders in the labour
market. In the case of Mohamedi Kijida v. Everything Dar. Com Ltd42 the Court
strongly emphasised on the inherent role of labour law and its strict
observance by employers especially when termination of employment
contract is about to be effected, it had this to say: “[b]efore I proceed, let me
say that the right to hire and fire is not part of our labour laws. In other
words, there is no termination of employment at the employers' will which
is entertained in this country. Under the available labour laws, the
employee has a legitimate right to expect that if everything remains
constant will be in the service throughout the contractual period. In that
context, the employee has remedy where his right is breached by way of
compensation, reinstatement and special damages orders.”

41
For example, the Non-Citizens (Employment Regulations) Act, Act No. 1 of 2015 strictly
regulates the employment of foreigners in Tanzania. See also: Richard Zakaria Odongo v.
Alliance Boys Secondary & High School, Labour Revision No. 20 of 2017, HC, LD, Mwanza
(unreported) where it was pronounced that no person shall employ any foreigner, and no foreigner
shall take up any employment with any employer, except under and in accordance with a work
permit issued to such foreigner.
42
Labour Revision No. 694 of 2019, HC, LD, DSM (unreported) at p. 10.

18
 PART TWO

CONTRACT OF EMPLOYMENT AND ITS

TERMINATION

2.1 Definition
Regulation 2 of the Employment and Labour Relations (General)
Regulations, 201743 defines the term contract of employment or service as
any written contract to employ an employee for any period of time or
number of days to be worked or to execute any task or specific task, to
perform any journey and includes a foreign contract of service. The main
labour law44 does not expressly define what amount to contract of
employment or service, and thus the same can be inferred from the
definition of term employment. Section 4 of the Employment and Labour
Relations Act45 define the term employment as the performance of a
contract of employment by parties to the contract, under employer-
employee relationship. Therefore, the contract of employment presupposes
the existence of three ingredients, namely; employer, employee and
employer-employee contractual relationship; and the same come into
existence when the parties to that contractual arrangement conclude an
agreement that conforms to the requirements of contract of service as
opposed to contract for service.46

The contract of employment is thus a reciprocal contractual arrangement in

terms of which an employee places his labour power at the disposal of
another person or an organisation, as employer – at the determined or
determinable remuneration and in such a way that the employer is clothed
with the authority over the employee and exercises supervision regarding
the rendering of the employee’s labour power.47 The Court in Chintaman

43
G.N. No. 47 of 2017.
44
The Employment and Labour Relations Act, [Cap. 366 R.E. 2019].
45
[Cap. 366 R.E 2019]. See also the National Employment Policy of 2008 where it is provided that
the term employment encompasses legally accepted activities which are within the national
accounts production boundary; activities aiming at attaining decent work goals; and activities
yielding an income at least equivalent to the set sectoral minimum wage.
46
Erpness Ezekiel v. SBC Limited Tanzania, Labour Revision No. 71 of 2018, HC, DR, Arusha
(unreported) at p. 4.
47
Du Plessis, J., et al., A Practical Guide to Labour Law. Durban: Butterworth Publishers, 5th Edn.,
2002, p. 9.

19
Rao v. State of M.P.48 had this to say with regard to the contract of
employment:

[t]he contract of employment is a contractual relationship

between employer and employee whereunder the employee
agrees to serve the employer subject to his control and
supervision. The prima facie test for determination of the
relationship between the employer and employee is the
existence of the right of the employer to supervise and
control the work done by the employee – not only in
directing what work the employee is to do but also the way
he shall do the work. It is thus important to note that
supervision and control is the natural outcome of the
contract of service.

The contract of employment or contract of service is thus said to be a

governance mechanism, which connects together work organisation and
the supply of labour power in such a way as to make it possible to manage
short- and long-term economic risks.49 It should also be noted that contracts
of employment are like any other contracts where parties signing it are
bound to its terms. In the case of Hotel Sultan Palace Zanzibar v. Daniel Leizer
and another,50 the Court was of the view that: “it is elementary that the
employer and employee have to be guided by agreed terms governing
employment. Otherwise, it would be a chaotic state of affair if employees or
employers were left to freely do as they like regarding the employment in
issue.” Thus, a contract of employment not only evidences the employee-
employer relationship but also regulates the relationship between the
employer and employee through employment terms contained therein that
conforms to the dictates of labour law and other laws of the land.

48
AIR 1958 S.C. 388.
49
Ntisa, A.A., et al., “The Contract of Employment Status and Its Influence on the Job Satisfaction
of Academics within South African Universities of Technology,” Vol 8 (2) International Journal
of Social Sciences and Humanity Studies, 2016, pp. 180–195 at p. 182. See also: Deakin, S., “The
many Futures of the Contract of Employment,” ESRC Center for Business Research, University
of Cambridge, 2000, p. 1.
50
Civ. Appl. No. 104 of 2004 (unreported). See also: Rosamistika Siwema (Administrate of the
Estate of Joseph Mandago) v. Add International Tanzania, Revision No. 498 of 2019, HC, LD,
DSM (Unreported) at p. 7 where it was categorically held that employment contracts are like any
other contracts where parties signing it are bound to its terms.

20
2.2 Contract of Service vis-à-vis Contract for Service
Industrial relations are divided into two forms, that which relates to, one;
an employee and two; an independent contractor. An employee is hired
through a contract of service, and such an employee becomes an
independent contractor when is hired through a contract for service. The
distinction between the two is important because it determines, among
others, the statutory protection that applies. The rights, privileges, duties,
obligations, and remedies provided for under labour law only apply to
employees under a contract of service. Of more significance is the fact that
employers are only vicariously liable for actionable torts committed by
their employees who are under a contract of service and not contract for
service. Thus, an independent contractor under a contract for service is
responsible for his own torts. It is equally important to note that the system
of taxation applied to each category of contract is quite different. In a
contract of service, the employer is responsible under the PAYE system,
however in a contract for service, an independent contractor is subject to
the self-assessment system save for some statutory deductions under
withholding tax system.51

2.3 Benchmarks for Determining a Contract of Service

Statutory laws, international instruments, courts of law and other
institutions having labour mandates have advanced some benchmarks
aiming at determining the existence of a contract of service as opposed to a
contract for service. Some of these benchmarks includes: -

2.3.1 Control Test

The control test places emphasis on the employer’s ability to control the
employee in all employment’s aspects. Under this test, the employee is
squarely subjected to the control of the employer in the sense that the
employer prescribes not only what work has to be done but also the
manner in which that work has to be done. In the case of Gould v. Minister
of National Insurance and another,52 the Court developed the indicators of a
contract of service as opposed to a contract for service, these indicators

51
See also: Fredrick Byakika v. Mutiso Menezes International [2016] e-KLR (High Court of
Kenya) where it was held that “an Independent Contractor is: a registered taxpayer; will work his
own hours; runs his own business; is free to carry out work for more than one Employer at the
same time; invoices Employer each month; and is not subject to usual ‘employment’ matters such
as deduction of PAYE, annual leave, and sick leave. ”
52
[1951] ALL ER 368.

21
include the employer’s ability and mandate of selecting and recruiting
employees to his workplace – the employer has power to choose who to
employ or otherwise – however, section 7 of the Employment and Labour
Relations Act, Cap. 366 prohibits an employer to discriminate, directly or
indirectly, against an applicant for employment, in any employment policy
or practice, on the basis of colour, nationality, tribe or place of origin, race,
national extraction, social origin, station of life or other discriminative
sentiments; the modality of payment of remuneration – hourly, weekly,
monthly or upon completion of piece work; the employer’s power to
control the modality of executing the work by employees – how the work
should be done and at what latitudes; and employer’s right to dismiss or
suspend employees.

It should be noted that, in a contract for service, the independent contractor

is only given what to do but generally he has ‘blank-cheque powers’ to
decide how to do it. In the case of Stevenson Jordans and Harrison Ltd v.
MacDonald and Evans,53 the Court made it clear that in a contract of service
the employer has absolute power to control the modality of work.

Equally, in the case of Shankar Balaji Waje v. State of Maharashtra,54 the Court
observed that the contract of service does not involve a worker who has full
liberty to attend to his work according to his pleasure, and equally not
according to the orders of his master; and where the employer did retain
direction and control over the worker both in terms of work’s performance
and its magnitude – such worker is deemed to be an employee. The control
test was, previously, the only test, but with time, other tests have emerged.

2.3.2 Organisational Test

Due to shortcomings of the control test, such as its inability to apply in
situations where employees are highly skilled like doctors or engineers
who have free hand and discretion when performing their work; and the
development of production process rendering the control test ineffective –
thus the inability of the control test paved the way for the organisational or
integration test. The emphasis of this test is on whether the employee is
part of the organisation which he works for, if the answer is in the
affirmative, then the contractual arrangement is that of a contract of service.

53
[1952] 1 TLR 101. See also: Walker v. Crystal Palace (1910) 1KB 87 and Yewens v. Noakes
(1881) 6 QBD 530.
54
AIR 1963 Bom. 236.

22
Otherwise, the employee remains an independent contractor under a
contract for service. In the case of Cassidy v. Ministry of Health,55 the Court
expounded on what this test entails, it had this to say:

[t]here are many contracts of service where the master

cannot control the manner in which the work is to be
done as in the case of the captain of a ship….[U]nder a
contract of service, a man is employed as part of the
business of the employer, whereas, under a contract for
service, his work although done for the business, is not
integrated to it but only accessory to it.

It is therefore important to note that a worker is deemed to be an

independent contractor under a contract for service despite the fact that he
performs for the organisation – if he is not an integral part of that
organisation.

2.3.3 Multiple Test

There are situations where the control and organisational tests have proved
failure to assist in determining whether a particular worker is an employee
in the eyes of labour law or simply an independent contractor. Thus, the
multiple test was developed to assist – it is also referred to as economic
reality test. In considering whether a particular relationship is one of the
employer-employee relationships, this test views the relationship as a
whole. The main theme of this test is the economic realities of the
contractual arrangement between the two parties. In the case of Market
Investigations v. Minister of Social Security,56 the Court considered several
factors that constitutes the multiple test such as whether the employee uses
his own equipment in the workplace, the degree of financial risk he takes,
the degree of responsibility for investment in the organisation, whether he
hires his own helpers, and opportunity to profit from the sound
management of the organisation.

In Tanzania, the Labour Court has also emphasised on the need to consider
the multiple test in determining whether the relationship is that of an

55
[1951] 2 KB 343.
56
[1969] ALL ER 285.

23
employee or independent contractor. In the case of Mwita Wambura v. Zuri
Haji,57 the Court has this to say:

[t]here are no hard and fast rules regarding how to

determine existence of employment relationship but there
are a number of common factors running through which can
aid a decision maker in determining existence of an
employment relationship. These principles are among
others, (a) defining employment relationship by looking at
parties’ roles, considering matters among others;
dependency; subordination; direction, supervision and
control of services rendered; (b) principle of primacy of facts
looking at what was actually agreed and performed by each
of the parties; (c) use of burden of proof. Besides, the Court
or CMA can legitimately seek help in construing this
relationship by looking at relevant ILO Conventions and
Recommendation, opinion of the ILO Committee of Experts
on the issue and judicial practices of court in comparable
jurisdiction.

2.4 Parties to the Contract of Service

As alluded above, the contract of service presupposes the existence of three
ingredients, namely; employer, employee and employer-employee
contractual relationship; and the same come into existence when the parties
to that contractual arrangement conclude an agreement that conforms to
the requirements of contract of service as opposed to contract for service. A
contract of service like any other contracts have, among others, the
contractual parties. As such, the contractual parties to the contract of
service are; an employee and employer, respectively.

2.4.1 Employee and Presumption of Employment

The Employment and Labour Relations, Cap. 366 defines an employee as
an individual who has entered into a contract of employment; or has
entered into any other contract under which he undertakes to work
personally for the other party to the contract; and that other party is not a
client or customer of any profession, business, or undertaking carried on by

57
Revision Application No. 42 of 2012, HC, LD, Mwanza (unreported).

24
him.58 An employee is thus a person who works for the employer under a
contract of service. In the case of Director Usafirishaji Africa v. Hamis
Mwakabala and 25 others,59 the Court at p. 3 has this to say in respect of who
is an employee in the eyes of labour law: “[u]nder the law a person who
renders service to any other person including for a specific task is
presumed to be an employee until the contrary is proved if one or more of
the scenarios itemized under section 61 of LIA exists.”

It should therefore be noted that, in certain circumstances, a person may be

presumed to be an employee; Section 61 of the Labour Institutions Act,60
provides that, for the purposes of a labour law, a person who works for, or
renders services to, any other person is presumed, until the contrary is
proved, to be an employee, regardless of the form of the contract, if any one
or more of the following factors is present: (a) the manner in which the
person works is subject to the control or direction of another person; (b) the
person’s hours of work are subject to the control or direction of another
person; (c) in the case of a person who works for an organisation, the
person is a part of that organization; (d) the person has worked for that
other person for an average of at least forty five hours per month over the
last three months; (e) the person is economically dependent on the other
person for whom that person works or renders services; (f) the person is
provided with tools of trade or work equipment by the other person; or (g)
the person only works for or renders services to one person.61 In essence,
the preceding provision summarises the three tests that apply in
determining whether a person is an employee under contract of service or
just an independent contractor under a contract for service.

58
Section 4 of the Employment and Labour Relations Act, [Cap. 366 R.E 2019]. See also, section
98(3) where the Minister responsible for labour matters has statutory mandate to declare any
category of persons as employees, it is stated that: [t]he Minister, after consultation with the
Council, may, by notice in the Gazette, deem any category of persons to be employees for the
purposes of this section, any provisions of this Act or any other written law in respect of which
the Minister is responsible.”
59
Labour Revision No. 291 of 2009, HC, LD, DSM (unreported).
60
[Cap. 300 R.E 2019].
61
See also: Summit Lodge Limited v. Daniel Jeremiah Mnaale, Labour Revision No. 130 of 2018
HC, LD, Arusha (unreported) where it was held that “under the law a person who renders services
to any other person including for a specific task is presumed to be an employee until the contrary
is proved if one or more of the scenarios itemized under section 61 of the LIA exists."

25
Equally, in the case of Rashid Mwema v. Elias Nonnious Mapoga,62 the Labour
Court was called upon to determine whether the applicant was an
employee for purposes of labour law, it observed at pp. 8–10 that:

“[h]aving gone through CMA's record, I have noted that the

applicant was not paid monthly which bears a factor of
economic dependence of the applicant to the respondent.
There was also no direct supervision of work by the
respondent. It is on record that even the work equipment
was not supplied by the respondent. The hours of work
were also not subject to the control and direction of the
respondent. Now, since there is no proof that the applicant
was working under the control and direction of the
respondent from 2003 up to 2017 when he was allegedly
terminated, which in my view is a fundamental aspect for
establishing employment relation, it is obvious that there
was no employer–employee relationship between the
applicant and respondent…. [i]n the circumstances, I find no
reason to fault CMA's award that there was no employment
relationship between the parties.”

The National Employment Policy, 2008 describes employed persons very

broadly, to include all persons above the age of 14 years, who during a
specified reference period are either at work performing some legal work
for: (i) wage or salary, in cash or in kind, or, (ii) in self-employment and
performing some work for profit or family gain, in cash or in kind,
including those with jobs but not at work temporarily, and earning a
minimum income equivalent to the minimum wage in the wage
employment. This definition is very broad and has being qualified under
the Employment and Labour Relations Act, Cap. 366 and other labour laws
to cover employees under a contract of service only, leaving outside the
‘boxing ring’ all self-employed persons and workers under contract for
service.

It is therefore fairly to point out that, in certain circumstances, the question

of who is an employee under a particular employment relationship is a
complex one; the Court in the case of Ottelo Business Corporation Ltd v.

62
Revision No. 363 of 2019, HC, LD, DSM (unreported).

26
Baraka Andrea Sanga and Others,63 at p. 12 openly acknowledged that: “the
issue of determination of existence of employment relationships is a
complex one, thus adjudicators are required to exercise due diligence
particularly as of now given an increase of private sectors invariably also
increase incidents of disguised employment relationships. To remove the
complexity of an employment relationship, the law under section 4 of the
Employment and Labour Relations Act clearly stipulates who is "an
employer" and who is an “employee.” That section has to be read together
with section 61 of the Labour Institutions Act which provides for factors to
be considered in presuming existence of employment relationship.”

In the case of TIFPA v. Aloyce Byaro,64 the respondent was held to be an

independent contractor as opposed to an employee thus outside the scope
of labour laws, the Court reasoned that: “[f]rom the evidence, it is clear that
the respondent was an independent contractor. The applicant was not
directly controlling the respondent. The respondent performed work
according to his own processes and methods. The applicant assigned the
respondent a duty to inspect beaches and fish markets and write report.
The applicant did not control how and when should the inspection be
done. The applicant was not controlling the respondent’s hours of work.
There was no proof of the hours that respondent spent on the assignment.
It cannot be construed from the circumstance of this case that the
respondent spent an average of 45 hours a month performing the
applicant’s duties. I concur with the applicant’s representative that the
respondent was self-regulated. The Respondent determined his own
schedule. The respondent was only instructed that once he inspects, he
should take photos to establish that he really discharged his duties. The
respondent was not supervised or monitored. Thus, the respondent was
free to work for another person.” The Court made clear that the respondent
could have exhausted remedies under ordinary law of contract as an
independent contractor and not under labour law regime.

2.4.2 Employer
The employer is a person who engages the service of an employee; thus, an
employer can be a natural person or juristic person who is empowered to
direct the work of his or her employees including dictating when, where

63
Labour Revision No. 14 of 2018, HC, LD, Arusha (unreported).
64
Revision Application No. 02 of 2019, HC, DR, Musoma (unreported) at pp. 4–5.

27
and how the given work is to be performed. Section 4 of the Employment
and Labour Relations Act, Cap. 366 define an employer as any person,
including the Government and an executive agency, who employs an
employee.

In the case of Clackamas Gastroenterology Association v. Wells,65 the Court was

of the view that an employer is any person or group of persons who own
and manage an enterprise through which other persons supply their labour
powers, under employment relationship, and in exchange for
remuneration.66

2.5 Formation of Contract of Service

Employment or labour law is squarely founded on the general principles of
law of contract or the ordinary law of contract. As such, a contract of
service comes into existence when the employee freely agrees to supply his
labour power to the employer and, in return the employer signifies his
intention to remunerate the employee. Because, as alluded, contracts of
service are like any other contracts – see for example, Hotel Sultan Palace
Zanzibar v. Daniel Leizer and another (supra) – thus the law of contract
dictates that, to have an enforceable contract of service, the ordinary
contractual ingredients must be present in their totality, namely; intention
to create legal relations, offer, acceptance, certainty of terms, and
consideration.67

The Labour Court in the case of Elizabeth Silayo v. Halmashauri ya Manispaa

Morogoro,68 at pp. 4–6 highlighted on the importance of contract of service
and its formation, it has this to say:

[b]efore answering the issue, it is necessary to explain a

little bit on contract of employment. Employment and
Labour Relations Act, Act No. 6/2004 has not defined what
employment contract is. However, it is important to note

65
538 U.S. 440, 450 (2003).
66
See also Rubinstein, M.H., “Employees, Employers, and Quasi-Employers: An Analysis of
Employees and Employers who Operate in the Borderland between an Employer-and-Employee
Relationship,” Vol. 14(3) U. of Pennsylvania Journal of Business Law, 2012, pp. 605–659, at pp.
632–637.
67
See also: Summers, C.W., “The Contract of Employment and the Rights of Individual
Employees: Fair Representation and Employment at Will,” Vol. 52(6) Fordham Law Review,
1984, pp. 1082–1109, at pp. 1082–1083.
68
Revision No. 11 of 2019, HC, LD, Morogoro (unreported).

28
 that, the employment contract forms the basis of the
relationship between the employer and employees. This
relationship was historically referred to as a 'master' and
his 'servant.' The employment contract is based on the
ordinary law of contract and so the same requirements as
to agreement, consideration and intention apply.
Formation of contracts of employment are governed by the
general principles of the law of contract, that is, must
comply with the requirements of offer, acceptance,
consideration, intention to create legal relations and must
be free from vitiating factors such as illegality. In general,
no special formalities are required for entering into a
contract of employment, it might be written, or oral. Both
are legal binding agreements. [However] a written contract
of employment is preferable to an oral one because of two
main reasons. First, it is able to incorporate most of the
terms that are necessary to define the rights and
obligations of the parties unlike an oral contract where
most of the terms have to be implied by the existing law or
custom. Secondly, it is important for evidential purposes,
in a dispute as to whether there is a contract of
employment or not, it is easily resolved by producing the
written agreement itself.

Undoubtedly, an understanding of the contract of service and its formation

is so fundamental in appreciating the nature of rights and obligations
accompanied the contract, and especially when labour disputes accrue. It is
important to note that a contract of service can only be presumed to have
been formed if the contractual ingredients are present wholly, such as the
concerned contract between an employer and employee must emanate
from unqualified acceptance of an offer;69 existence of the intention to
create legal relationship; a consideration that ‘benefits’ all parties; and the
terms contained therein must be lucid.

69
The Court in Wananchi Marine Product (T) Ltd v. Owners of Motor Vessels, Civil Case No. 23
of 1996, HC, DSM, DR (unreported) emphasized that an acceptance to an offer must be
unqualified, it held: “it is trite learning I think that an acceptance, is an unqualified expression of
assent to all the terms of an offer, and the same, must appear to have been communicated to the
Offeror.”

29
2.6 Formalities of Contract of Service
A contract of service is but an example of contract in general, so that the
general law of contract applies (see: Laws v. London Chronicle (Indicator
Newspapers) Ltd)70 – it should be noted that the general law of contract
accepts both oral and written contracts, however an employment contract
must observe certain formalities for it to be valid. Section 14(2) of the
Employment and Labour Relations Act, Cap. 366 provides that 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.
Thus, a written contract of service must be executed to evidence the
employer-employee relationship, and the same cannot validly be made
orally. The Court in Summit Lodge Limited v. Daniel Jeremiah Mngale (supra)
at p. 7 observed that: “One of the mischiefs which the Labour Laws wanted
to cure was the introduction of written employment contract to replace the
well-known oral contract of service. This no doubt reduced confusion and
where employer fails to produce written contract or written particulars (as
stated under section 15 (1) (a)–(i) of the ELRA), court has to construe in
favour of the employee.”71

The employer is required to supply an employee, when the employee

commences employment, with prescribed written particulars as per section
15 of the Employment and Labour Relations Act, Cap. 366 – however, if the
said written particulars are stated in a written contract of service and the
employer has supplied the employee with that contract, then the employer
may not furnish the written statement of particulars.72In the case of Gilbert
Katonda v. Tanzania Assemblies of God Kisegese,73 it was held, inter alia, that:
“the law further provides for the basic conditions or principles to be
followed in establishing employer-employee relationship. The applicant
has to be given a written contract of employment which appreciates the
actual nature of employment and corresponding terms. This is the position
in our laws, which requires the employment contract to provide a very

70
[1959] 2 ALL ER 285 at 287.
71
See also: Bakari Jabir Nyambuka v. QCD Supplies and Logistics, Revision Application No. 962
of 2018, HC, LD, DSM (unreported) at p. 5 where it was held that “[m]ostly, written contract is
more preferable than oral contract as it can be used for evidential purposes and clear the
atmosphere in case of any breach of the same. The employer is obliged to keep written records of
the particulars of their employees and conditions regarding their employment, in terms of section
15 of Employment and Labour Relations Act, (ELRA).”
72
Section 15(2) of the Employment and Labour Relations Act, Cap. 366.
73
Revision No. 12 of 2019, HC, LD, Morogoro (unreported) at pp. 6–7.

30
clear written employment contract with all the detailed particulars of the
employment as is provided under section 15 of the Act.”

2.7 Types of Contracts of Service

The labour law in Tanzania recognises three types of contracts of service:
Section 14(1) of the Employment and Labour Relations Act, Cap. 366
lucidly states that a contract with an employee shall be of the following
types, (a) a contract for an unspecified period of time; (b) a contract for a
specified period of time for professionals and managerial cadre; and (c) a
contract for a specific task. This categorisation has far-reaching effect as,
among others, the rules regulating the termination of a contract of
employment depend on the type and duration of the contract as provided
under rule 3(3) of the Employment and Labour Relations (Code of Good
Practice) Rules.74

2.7.1 Contract for an Unspecified Period of Time

The Court in Agness Nkwabi and another v. Ngeme Magembe,75 stated that the
law recognizes three types of employment contract, firstly; a contract for an
unspecified period of time, which means that the contract does not specify
the date when the contract comes to an end. This kind of a contract is a
long-term contract which may be terminated upon statutory notice of
termination or retirement as the case may be. As such, contracts for an
unspecified period of time are permanent and indefinite contracts.

Ntisa perceives contracts for an unspecified period of time as indefinite

contracts having special qualities and purposes. He contends that:

[i]ndefinite contracts are entered into when the work for

which an employee is employed is of a permanent nature;
that is, it is the work usually done in that organisation and
the employer does not expect it to end within the near
future. Where a contract of employment does not specify
an actual date of termination or a determinable date of
termination, such as the completion of a certain job, the
contract would be for an indefinite period, with no
automatic expiry date, and would endure until it is

74
G.N. No. 42 of 2007.
75
Revision No. 580 of 2019, HC, LD, DSM (unreported) at pp. 3–4.

31
 terminated in terms of the provisions of a law of statute,
dismissal or serious breach of contract. Unlike fixed-term
and temporary contracts, an indefinite contract is
associated with extensive statutory benefits and
entitlements, such as minimum wage, unemployment
insurance, protection against unfair dismissal, paid leave
and training and development.76

More importantly, rule 8(2)(c) of the of the Employment and Labour

Relations (Code of Good Practice) Rules, 2007 makes it clear that where the
contract is for an indefinite duration, the employer must have a fair reason
to terminate and follow a fair procedure.

2.7.2 Contracts for a Specified Period of Time

These contracts are for professionals and managerial cadre. Regulation 11
of the Employment and Labour Relations (General) Regulations77 provides
that a contract for a specified period referred to under section 14(1)(b) of
the Employment and Labour Relations Act, Cap. 366 shall not be for a
period of less than twelve months. As such, these contracts are also referred
to as fixed contracts having a life span of not less than twelve months. The
Court in Agness Nkwabi and another v. Ngeme Magembe (supra) reasoned
that, distinct from unspecified time contracts, specific time contracts have
an expiry date on which case the contract ends immediately after the expiry
of the contract period although the parties may enter into new contracts.78
In other words, this contract is a once-off agreement with a limited
duration which automatically terminates upon the occurrence of clearly
specified date – see Revina Raphael Bigambo v. Dangote Industries Ltd and
another, Application For Labour Revision No. 14 of 2019, HC, LD, Mtwara
(unreported) at p. 22.

The above position was also fortified in the case of Rosamistika Siwema
(Administrate of the Estate of Joseph Mandago) v. Add International Tanzania,79
where the Court at p. 8 held, inter alia, that: “[i]t is a settled law that, a fixed

76
Ntisa, 2016, p. 184.
77
G.N. No. 47 of 2017.
78
See also: Mama Clementina Foundation v. Filemon E. Macha, Labour Revision No. 18 of 2020,
HC, DR, Moshi (unreported) where the Court at p. 7 has this to say: “[b]oth parties agree that the
contract of employment between them was of a fixed term of two years. Unlike permanent
contracts, a fixed term contract normally has a specific end date.”
79
Revision No. 498 of 2019, HC, LD, DSM (unreported).

32
term contract shall automatically come to an end when the agreed time
expires. This is a position as stipulated under Rule 4 (2) of the Code of
Good Practice which provides that where the contract is a fixed term
contract, the contract shall terminate automatically when the agreed period
expires, unless the contract provided otherwise.” In the case of Mtambua
Shamte and 64 others v. Care Sanitation and Suppliers,80 the Court similarly
held that the principles of unfair termination do not apply to specific tasks
or fixed term contracts which come to an end on the specified time or
completion of a specific task.81

As alluded above, it is important to note that Rule 4(2) of the Employment

and Labour Relations (Code of Good Practice) Rules, 2007 clearly state that
where the contract is a fixed term contract, the contract shall terminate
automatically when the agreed period expires, unless the contract provided
otherwise. Thus, the employer is not required to state the reasons for the
termination – regarding this position, the Labour Court rightly observed
that:

[i]t is my view that, when a fixed term contract expires, an

employer is not obliged to state reasons for his decision not
to renew the contract. Imposing liability to state reason for
non-renewal would undermine the very purpose of having
fixed term contracts as is clearly expressed that termination
is automatically when the agreed period expires.82

The failure to renew a fixed-term contract or a contract for a specified

period of time in circumstance where the employee reasonably expects a
renewal of the contract or where the same is not renewed and the employee
claims a reasonable expectation of renewal, the employee shall demonstrate
that there is an objective basis for the expectation such as previous
renewals, employer's undertakings to renew as per rule 3(4) and (5) of the
Employment and Labour Relations (Code of Good Practice) Rules, 2007.

80
Revision. No. 154 of 2010, HC, LD, DSM (unreported).
81
See also: Christian Mwesiga Michael v. Board of Bishops, Revision No. 31 of 2020, HC, LD,
Morogoro (unreported) at pp. 19–20 where it was articulated that “[t]he position of the law is that,
when the agreed fixed period of contract expires the employer is not liable to follow the stipulated
procedures for termination of employment because the contract itself provides for its termination
procedure which is a lawful automatic termination. It is a settled law that, a fixed term contract
shall automatically come to an end when the agreed time expires.”
82
Rosamistika Siwema (Administrate of the Estate of Joseph Mandago) v. Add International
Tanzania (supra) at p. 10.

33
This position is equally fortified in the case of Rosamistika Siwema
(Administrate of the Estate of Joseph Mandago) v. Add International Tanzania
(supra) where the Court at pp. 8–9 had this to say: “[t]he position of the law
imposes the duty to an employee claiming for reasonable expectation of
renewal to demonstrate reasons for such expectation. This is provided
under Rule 4 (5) of GN. 42 of 2007 to the effect that where fixed term
contract is not renewed and the employee claims a reasonable expectation
of renewal, the employee shall demonstrate that there is an objective basis
for the expectation such as previous renewal, employer's undertakings to
renew."

It should also be noted that where the parties clearly specify the duration of
their contract, by date then there is no room for any implied term as to
duration and the contract will be valid for the said detailed period. The
only way in which a fixed-term contract of employment may be terminated
before its expiry date, is by agreement between the parties or because of a
breach of contract by one of the parties.83 Equally, a fixed term contract
does not become an indefinite contract even if the employee continue to
work for a long duration – this position is fortified in the case of Group Six
International v. Musa Maulid & another,84 where Nyerere, J held that:
"[b]asically the law does not provide that if an employee worked for a long
period of time under one kind of the employment contract it automatically
changed the kind of the employment relationship, i.e., changed from a
contract for a specific period to a contract of an unspecified period of time."

2.7.3 Contracts for a Specific Task

It is interesting to point out that section 4 of the Employment and Labour
Relations Act, Cap. 366 defines the term ‘specific task’ to mean a task which
is occasional or seasonal and is non-continuous in nature; thus, under
contracts for a specific task, once the task is performed the contract ends.
See: Elizabeth Silayo v. Halmashauri ya Manispaa Morogoro.85 It is equally
important to note that an employee in a contract for a specific task is hired
to perform an identified specific task and once the task is done, then the
contract comes to an end. It should be noted as well that the principles of

83
See Grossett, M., Discipline and Dismissal. Cape Town: Oxford University Press, 2002, 2nd
Edn., at p. 152; and Ntisa, 2016, pp. 84–85.
84
Revision No. 428 of 2015.
85
Revision No. 11 of 2019, HC, LD, Morogoro (Unreported) at pp. 4–6.

34
unfair termination do not squarely apply in contracts for specific tasks
which immediately come to an end on completion of a specific task.86

2.8 Duties of the Employer and Employee

As alluded above, the contract of service evidences the working
relationship between the employer and employee; it also indicates parties’
commitments with their reciprocal duties. Apart from the contract of
service that prescribes parties’ duties, the labour policies and other relevant
laws, practices and international standards also prescribe the duties and
what should be done by both parties to the contract of service before,
during and after its existence.

2.8.1 Duties of the Employer

2.8.1.1 Supplying Employment Particulars in Writing
The employer has a duty to supply the employee with relevant
employment particulars in writing when the said employee is about to
commence employment; and to explain to the employee the particulars in
case he does not understand. These particulars should include job
description, date of commencement, form and duration of the contract,
place of work, hours of work, remuneration and the method of its
calculation, and details of any benefits or payments in kind.87 The law also
impose a duty on the employer to keep these particulars for a period of 5
years after termination of the employment.88 The Labour Court summarises
this duty as follows:

The law obliges employers to keep written records of the

particulars of their employees and some terms and
conditions regarding their employment. The employer is
obliged to keep a written record of the employee's personal
details such as name, age, permanent address and sex of
the employee. The employer is obliged to give the
employee a copy of these written particulars. According to
Section 15(1)(a) Employment and Labour Relations Act, the
employer is required to write other details such as place of

86
Mtambua Shamte and 64 others v. Care Sanitation and Suppliers (supra).
87
Section 15(1)(3)(5) and 96 of the Employment and Labour Relations Act, Cap. 366. See also
Summit Lodge Limited v. Daniel Jeremiah Mngale (supra) at p. 7–8.
88
Ibid.

35
 recruitment, job description, date of commencement, form
and duration of the contract and the place of work. The
details enable the employee to know the category of the
employment contract, i.e., for a specified time period, an
unspecified time period or a particular task. In terms of
Section 15(1)(b)(f) of Employment and Labour Relations
Act, Act No. 6/2004 the employer is also obliged to
indicate in writing the hours of work per day and per week
including rest periods. Equally important, the employer is
obliged to keep in writing details about remuneration, how
it will be calculated and other payments to be made to the
employee including payments in kind. Finally, the
employer is required to record in writing the details of
other matters which the law may require such an employer
to keep in writing. A copy of all these details written by the
employer must be given to the respective employee.89

In Christian Mwesiga Michael v. Board of Bishops,90 the Court was of the view
that the employer is obliged to explain the terms of contract to an employee
in a language that he or she understands.

2.8.1.2 Payment of Remuneration Timely

The employer is duty-bound to effect timely payment of employees’
remuneration accompanied by written statements of particulars that
supports and evidences the remuneration paid; and to guarantee equal
remuneration for men and women for work of equal value.91 In the case of
Elizabeth Silayo v. Halmashauri ya Manispaa Morogoro92 the court held that:
“[o]ne of employees’ rights is the total value of all payments, in money or
in kind, made or owing to an employee arising from the employment is
payable by the employer. It is called remuneration. The mode of payment
of such remuneration is through cash payment, a cheque or direct deposit
into an account designated by the employee in writing. In the case of

89
Elizabeth Silayo v. Halmashauri ya Manispaa Morogoro, Revision No. 11 of 2019, HC, LD,
Morogoro (Unreported) at p. 6. See also Agness Nkwabi and another v. Ngeme Magembe,
Revision No. 580 of 2019, HC, LD, DSM (unreported) at p. 4.
90
Revision No. 31 of 2020, HC, LD, Morogoro (unreported).
91
See section 27 of the Employment and Labour Relations Act, Cap. 366 and Reg. 13 of the
Employment and Labour Relations (General) Regulations, 2017.
92
Revision No. 11 of 2019, HC, LD, Morogoro (unreported) at p. 7.

36
paying by cash or cheque, the employer must ensure that remuneration is
given to the employee in a sealed envelope. Similarly, where an employee
receives remuneration by direct deposit in an account, the employer must
also give the written statement of particular relating to remuneration in a
sealed envelope.”

2.8.1.3 Effecting Statutory Deductions and Remit to Appropriate

Authorities
The employer is obliged to effect statutory deductions from an employee’s
remuneration and remit the same to an appropriate fund or authority.
Section 28 of the Employment and Labour Relations Act, Cap. 366 direct,
among others, that an employer shall not make any deduction from an
employee’s remuneration unless; the deduction is required or permitted
under a written law, collective agreement, wage determination boards,
court order or arbitration award. In the case of Board of Trustees of the Public
Service Social Security Fund v. Classic Professional Caterer,93 the defendant
Classic Professional Caterer being an employer and registered member of
the plaintiff failed to remit contributions to the plaintiff thus she was found
to be in breach of her legal duty to remit the employees’ social insurance
contributions.

2.8.1.4 Promotion of Equal Opportunities

Equally, the employer is required to promote equal opportunities in
employment and striving for elimination of discrimination in employment
policies and practices. As such, an employer has a duty to register with the
Labour Commissioner a plan that promotes equal opportunities and
eliminates discrimination in workplaces.94

2.8.1.5 Provision of Safe and Healthy Working Environment

Duty to provide safe and healthy working environment to his employees,
and formulate policies that ensures safety and health at work for all
employees as well as provide employees with protective equipment as the
case may be.95 Claus and McNulty argue that: “it is the duty of care of

93
Civil Case No. 61 of 2019, HC, DR, DSM (unreported). See also sections 12, 13 and 14 of the
National Social Security Fund Act, Cap. 50; Section 81 of the Income Tax Act, Cap. 332 and Part
VIII of the Workers' Compensation Act, Cap. 263.
94
See section 7 of the Employment and Labour Relations Act, Cap. 366.
95
See for example Part V of the Occupational Health and Safety Act, No. 5 of 2003 which provides
for safety and health provisions in workplaces.

37
employers to protect the health, safety, security and well-being of
employees. Employer’s duty of care is pegged on the responsibility of such
employer to protect its personnel from threats and risks when working
within the employer’s premises. It includes developing a disaster
management system in the workplace.”96 The Labour Court in Ally Said
Bakari v. The Managing Director TANESCO,97 reiterated the employer’s duty
of care that the employer is duty bound to make sure that the employees
are protected and safe in due cause of working. Likewise, Jonathan and
Mbogo summarise the essence of healthy working environment and
employer’s duty of care in the following terms:

[w]ork safety requires that safe working

conditions should not create significant risk of
people being rendered unfit to perform their
work. Health and safety at work is therefore
aimed at creating conditions, capabilities, and
habits that enable the worker and his or her
organization to carry out their work efficiently
and in a way that avoids events which could cause
them harm. It is clear that safe working conditions
have an effect on the habits of workers, which in
turn impacts on efficiency. This implies that
employees working in a safe condition are likely
to perform in a way that will not cause them
harm.98
It is therefore important that an employer must provide adequate safe
working environment and may be liable for any damage and injuries
sustained due to his failure to create a safe and healthy working
environment in workplaces.

96
Claus, L., and McNulty, Y., “Editorial: Duty of Care Obligations of Employers to Protect the
Health, Safety, Security and Well-being of Employees,” Vol. 9 (6) European J. International
Management, 2015, pp. 667–672 at p. 667.
97
Civil Appeal No. 147 of 2018, HC, DR, DSM (unreported).
98
Jonathan, G.K., and Mbogo, R.W., “Maintaining Health and Safety at Workplace: Employee and
Employer’s Role in Ensuring a Safe Working Environment,” Vol. 7 (29) Journal of Education
and Practice, 2016 at p. 1.

38
2.8.1.6 Displaying Employees’ Statutory Rights
The employer is also required to display a clear statement in the prescribed
Form of the employees’ statutory rights in a conspicuous place (Form LAIF.
9 as set out in the Second Schedule to the Employment and Labour
Relations (General) Regulations, 2017).99 The Form should contain, among
others, the 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, right to be repatriated to place of recruitment on termination, right
to daily subsistence allowance between termination date and the date of
transporting an employee and family to the place of recruitment.

2.8.1.7 Other Duties

Other duties include not hiring children in workplaces, not to permit a
pregnant woman or an employee who is nursing a child to perform work
that is hazardous, duty to provide any registered unions reasonable and
necessary facilities to conduct its activities at the workplace, and duty not
to fire employees unfairly.100 It is important to mention that the
aforementioned duties are statutory and common law duties altogether.

2.8.2 Duties of the Employee

2.8.2.1 Rendering Labour Service

The paramount duty of an employee is to render his labour service to the
employer honestly and competently. This is reflected under Article 25(1) of
the Constitution of the United Republic of Tanzania, Cap. 2 which states
that work alone creates the material wealth and is the source of people’s
welfare and the measure of human dignity – accordingly, every employee
has the duty to participate responsibly and honestly in lawful and
productive work; and observe work discipline and strive to attain personal
and collective production targets. In the case of Kulwa Solomon Kalile v.

99
Section 16 of the Employment and Labour Relations Act, Cap. 366.
100
See sections 5(9), 33(5), 60(3), and 37 of the Employment and Labour Relations Act, Cap. 366.

39
Salama Pharmaceuticals Ltd,101 the Court held that the applicant was
reporting late to his working place and have been repeating the same
mistake several times in spite of several warning letters from the
respondent. The Court goes on to say, the primary duty of an employee is
to come at work on time in order to discharge his duty; as such, habitual
lateness for work of an employee constitutes serious misconduct which
justifies termination of employment contract.

2.8.2.2 Protection of Employer’s Property

The employee is required to protect the employer’s property against
wastage and loss. In Jaston Wilson Kayagambe and another v. Trustees of the
Tanzania National Parks,102 the applicants as park rangers were terminated
for failure to prevent loss of the respondent's property as a result of
negligence contrary to rule 89 (7) of the Tanzania National Parks Rules of
2011 and be involved in conducts which led to the theft of 60 litres of diesel
the property of the employer.

2.8.2.3 Reasonable Care

In the same premise, an employee is required to take reasonable care for his
own safety and health, and that of others in the workplace as well as
cooperate with the employer in controlling damage, loss and wastage of
workplace’s assets.

2.8.2.4 Observing Employment Terms

The employee is also required to comply with the terms of the employment
contract, laws of the land and all procedures in the enjoyment of their
employment entitlements such as giving proper notices before annual leave
is taken; and defending the interest of the employer with a view to increase
productivity. The Labour Court once observed that: “In any employment, it
is expected from every employee that he be honesty to his employer, and
obey the directives given by superior at work.”103

101
Revision No. 155 of 2019, HC, LD, DSM (unreported). See also Emanuel Savi v. The Governing
Body of The College of Business Education, Labour Revision No. 91 of 2017, HC, DR, Mwanza
(unreported) where the Labour Court confirmed the termination of the applicant as he deliberately
absconded himself from duty for 181 days without employer’s permission.
102
Labour Revision No. 01 of 2020, HC, LD, Sumbawanga (unreported).
103
William Ben Edictor v. Platnum Credit Limited, Labour Revision No. 34 of 2019, HC, LD,
Mwanza (unreported) at p. 17.

40
2.9 Termination of Contract of Service
Termination of contract of service entails the ending of employee-employer
relationship between the employer and employee respectively. In the case
of Yara Tanzania Ltd v. Athuman Mtangi & others104 it was lucidly stated that:
“it is a principle of contract law that, just as parties are free to enter into
contracts; they are equally free to bring their contracts to an end by
consensus. This principle is also applicable to contracts of employment.”
However, it should be noted that, in industrial relations, the general rule of
thumb dictates that it is almost impossible to terminate a contract of service
before the agreed date; but, certain situations my occasion the necessity to
terminate the contract before it expires. These situations may be triggered
by the employee or employer to the extent of necessarily calling for
termination of the contract of service.105 It is thus important to note, among
others, that premature termination of contract of service is seriously
discouraged by labour law – see Athumani Rajabu Salehe v. Speed Security
Services Ltd (supra) at pp. 8–9.

As such, termination of contract of service can thus be initiated by any of

the parties to the contract and it takes different forms. Rule 3 through rule 7
of the Employment and Labour Relations (Code of Good Practice) Rules,
2007 indicate different forms of termination of contract of service and their
attendant incidents. These include a lawful termination under the common
law; constructive termination where 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 of the contract; failure to allow an employee to resume work
after a maternity or paternity leave and failure to re-employ an employee
where the employer has terminated the employment of a number of
employees for the same or similar reasons and has offered re-employment
only to some of those terminated – see also section 36 of the Employment
and Labour Relations Act, Cap. 366. It is important to note that a lawful
termination of employment under the common law includes:

104
Revision Application No. 49 of 2019, HC, LD, DSM (unreported) at p. 6.
105
Thalib, P., et al., “Company Policy on Termination of Employment at Pandemic Covid-19 from a
Fair and Justice Perspective,” Vol. 499 Advances in Social Science, Education and Humanities
Research, 2020, pp. 741–747 at pp. 741–742.

41
2.9.1 Termination of Employment by Agreement
It occurs when the employee and the employer amicably or otherwise reach
a consensus to terminate the employment relationship – the same has to be
reduced in writing and duly signed by both parties. This avenue can only
be used where the employee willingly consents to termination of contract
of employment. The vivid example is on a fixed term contract – in this
contract the parties agree in advance the date which the contract will end;
and when the said date reaches the contract terminates automatically
unless the contract provide otherwise – see Teddy Njovu v. Nashera Hotel,
Revision No. 34 of 2020, HC, LD, Morogoro (unreported). In the case of
Yara Tanzania Ltd v. Athuman Mtangi & others106 the Court laid down basic
tenets to consider regarding termination of employment by agreement, it
had this to say:

It is a principle of contract law that, just as parties are free

to enter into contracts; they are equally free to bring their
contracts to an end by consensus. This principle is also
applicable to contracts of employment. The termination of
a contract under the common law requires genuine mutual
agreement of both parties and neither party may
unilaterally change his or her mind as stated at page 94 of
the book of Employment and Labour Relations in Tanzania by
Bonaventure Rutinwa, Evance Kalula and Tulia Ackson….
[f]rom the above, it is quite clear that termination by
agreement is recognized under the law. However, it is a
principle of law that, for termination to be valid, it must
state the reason for such termination as provided under
Section 37 (2) of Cap 366 RE 2019. Again, the law requires
the employer and employee to agree before termination as
per Rule 4 of the Code…. [f]rom records, I didn't find any
document to show that there were negotiations prior
signing the agreement. This raises inference that the
agreement was not mutually agreed by them. The
applicant terminated the respondents on his own whims.
This denied the respondents' right to work. Equally, the
applicant had not stated any reason led to that termination,

106
Revision Application No. 49 of 2019, HC, LD, DSM (unreported) at pg. 6, 7 & 8.

42
 and the procedure for that termination were not adhered
by the applicant. I thus find that termination agreement to
be invalid hence the termination is substantively and
procedurally unfair.

2.9.2 Automatic Termination

The contract of service terminates automatically when certain compelling
circumstances manifest. For instance; on death of the employee, or
insolvency/sequestration/bankruptcy of the employer, or upon attainment
of retirement age of the employee – a contract of service terminates
automatically when the employee reaches the agreed or normal retirement
age. In other words, it may be an implied term of an indefinite contract that
the contract terminates on retirement (compulsorily or voluntarily).
Besides, it should be noted that where the contract of service is a fixed one
then such contract terminates automatically when the agreed period
expires, unless the contract provided otherwise – see Jonas Oswady v. Cost
Data Consultation Limited, Labour Revision No.3 of 2020, HC, DR, Mwanza
(unreported). In Konondoni Municipal Council v. Maria Emmanuel Rungwa107
the Court at pg. 7 & 8 held that: “In my view when the agreed period of
contract expires the employer is not liable to follow the stipulated
procedures for termination of employment because the contract itself
provides for its termination, which is automatic termination….[i]t is settled
law that, a fixed term contract shall automatically come to an end when the
agreed time expires. This is in accordance with Rule 4(2) of GN No. 42 of
2007.”

2.9.3 Termination of Employment by the Employee and/or Resignation

It occurs where the employee decides to give Notice to terminate the
employment relationship for whatever reason such as due to material
breach of the contract by the employer. It should be noted that this avenue
is available to the employee only. The employer cannot just decide to
terminate the contract of service like the way the employee can do – in the
case of Simon Mwita Mlagani and another v. KIRIBO Limited108 it was held
that: “It is trite law that the employer cannot under the current labour laws
regime enjoy his previous right of hire and fire. He can hire as and when he

107
Revision No. 375 of 2019, HC, LD, DSM (unreported).
108
Labour Revision No. 11 of 2020, HC, DR, Musoma (unreported) at pp. 5–6.

43
wishes but once he hires, he can only fire (terminate) for valid reason(s)
and to do so by observing the laid procedures. There must be procedural
and substantive fairness before an employee is terminated.”

2.9.4 Termination of Employment by the Employer

The employer may terminate the contract of service by observing
substantive and procedural fairness. Rule 8 of the Employment and Labour
Relations (Code of Good Practice) Rules, 2007109 lucidly provides that an
employer may terminate the employment of an employee if he, one;
complies with the provisions of the contract relating to termination, two;
complies with the requirements of notice, severance pay, transport to the
place of recruitment and payment, three; follows a fair procedure before
terminating the contract, and four; has a fair reason to do so. Under the
labour law of Tanzania, there are only four valid reasons upon which an
employee may be terminated from employment – that is to say, the reasons
must be based on the employee’s conduct, capacity, compatibility, or
employer's operational requirements.110

2.9.5 Constructive Termination or Forced Resignation

Constructive termination or forced resignation occurs in instances where
the employer makes continued employment intolerable in order for the
employee to resign.111 In such instances the law refers this as forced or
constructive termination in the sense that it is as good as that the employer
has terminated the employee. Working conditions may be considered
intolerable if for instance, the employee is discriminated, harassed,
suffering negative change in pay or workload for reasons that are not
recognised under the law and underlying contract. In the case of Simon
Mwita Mlagani and another v. KIRIBO Limited (supra) at p. 7 it was held that
constructive termination occurs in the circumstance where the employer
provides unconducive working environment for an employee forcing him
to resign or unfairly deals with the employee. In Canal Land Girls Secondary
School v. Loserian Milenyi112 the Labour Court observed that: “[i]n order to
establish constructive dismissal, there shall be the following three
requirements; firstly, the employee must have terminated the contract of

109
G.N. No. 42 of 2007.
110
Ibid., Rule 9(4).
111
Ibid., Rule 7.
112
Application for Revision No. 67 of 2019, HC, DR, Arusha, (unreported) at pp. 4–5.

44
employment, secondly, the reason for termination of the contract of
employment must be that continued employment has become intolerable
for the employee and thirdly, it must have been the employee's employer
who had made continued employment intolerable.”

Equally, in Halisi Camps Limited v. Pendosta Michael Tarimo113 the Court had
this to say: “constructive termination arises where an employer creates a
continuous intolerable employment environment. Therefore, the employee
is compelled to resign because, the employer has behaved in such an
acceptable oppressive or discriminatory manner that it has left the
employee with no alternative but to resign.” See also Access Bank Tanzania
Ltd v. Raphael Dismass114 where it was observed that constructive
termination is based on employee termination or voluntary resignation but
this termination or agreement to resign is instigated or caused by the
actions of the employer. The Court has also developed salutary principles
to guide claims for constructive termination; in Katavi Resort v. Munirah
Rashid115 it was ruled, in respect of proving constructive termination, that:
“one, the employer should have made the employment intolerable; two,
termination should have been prompted or caused by the conduct of the
employer; three, the employee must establish there was no voluntary
intention by the employee to resign – the employer must have caused the
resignation; and four, the arbitrator or court must look at the employer’s
conduct as a whole and determine whether its effect, judged reasonably
and sensibly, is that the employee cannot be expected to put up with it.”

On a similar occasion, the Labour Court in Giranqo Security Group v. Raiabu

Masudi Nziqe116 put forward some issues that must be answered
affirmatively in proving constructive termination, that: “(i) did the
employee intend to bring the employment relationship to an end? (ii) had
the working relationship become so unbearable objectively speaking that
the employee could not fulfil his obligation to work? (iii) did the employer
create an intolerable situation? (iv) was the intolerable situation likely to
continue for a period that justified termination of the relationship by the
employee? and lastly was the termination of the employment contract the
only reasonable option open to the employee.” Generally, the rules

113
Labour Revision No. 29 of 2019, HC, DR, Moshi (unreported) at p. 11.
114
Labour Revision No. 53 of 2015 (unreported).
115
Labour Revision No. 174 of 2018, HC, LD, DSM (unreported).
116
Labour Revision No 164/2013 (unreported).

45
regulating the termination of a contract of employment depend on the
duration of the contract; that is to say, a contract to work for a fixed term
terminates upon reaching a fixed time or upon completion of a task and a
contract to work without reference to limitation of time or task terminates
as per the agreed terms in the contract. The parties to a contract of service
have discretion to agree to terminate the contract in accordance with the
terms of the underlying contract – but the law lucidly direct that where the
contract is a fixed term contract, the contract terminates automatically
when the agreed period expires, unless the contract provided otherwise.

2.10 Statutory Requirements for Termination of Employment Contract

Generally, whoever wants to terminate the contract of service, he should
observe the letter and spirit of the contractual terms and labour law
altogether. The parties especially the employer is statutorily obliged to fully
observe statutory requirements in terminating the contract of service:
Section 41 through 44 of the Employment and Labour Relations Act, Cap.
366 provides for these mandatory requirements to include:

2.10.1 Requirement of Notice of Termination

The law states that the period of Notice shall not be less than seven days if
Notice is given in the first month of employment. The Notice should then
be given in four days if the employee is employed on a daily or weekly
basis or 28 days if the employee is employed on a monthly basis. However,
a Notice that is longer than the period stated above may be agreed by both
the employer and employee provided that the agreed Notice is the same for
both parties. The Notice should be in writing stating the reasons for
termination and the date when the Notice of termination was given. It
should be noted that the Notice cannot be issued during any period of
leave taken under the labour law, or to run concurrently with any such
period of leave. It should also be noted that the law allows the employer to
pay the employee the remuneration that the employee would have received
if the employee had worked during the Notice period – however, if the
employee refuses to work during the Notice period, the employer may
deduct, from any money due to that employee on termination.117 In the case

117
Section 41 of the Employment and Labour Relations Act, Cap. 366.

46
of Mohamedi Kijida v. Everything Dar. Com Ltd118 the Court observed at pg.
10, 12 & 13 that:

Also, it has to be observed that, notice of termination is one

of the required means of termination as it is in many
employment contracts….[i]n the same vein even where
employer and employee agrees that termination has to be
on notice, they are bound to comply with the provisions of
Section 41 (3) of the Act, which provides that notice of
termination shall be in writing, stating:- (i)The reasons for
termination and (ii) The date on which the notice is
given….[t]hus, even if a contract of employment can be
terminated on notice, that shall not affect the right of an
employee to dispute the lawfulness or fairness of a
termination of employment under the Act or any other law
as it is provided for in Section 41 (7) (a) of the Act.

2.10.2 Payment of Severance Entitlements

An employer is obliged to pay severance pay on termination of
employment if the employee has completed 12 months of continuous
service with the employer, however, the same shall not be paid to an
employee whose termination is fairly done on grounds of misconduct,
capacity, compatibility or operational requirements of the employer but
who unreasonably refuses to accept alternative employment with that
employer or any other employer. The labour law requires the employer to
pay the employee severance pay which is the amount equal to a 7 days’
basic wage for each completed year of continuous service with that
employer up to a maximum of ten years.119 In Emmanuel Urassa and 10
others v. Shared Networks Tanzania Limited120 the Court made clear that “It is
the established principle that payment of golden hand shake is discretional
as it depends on the employer’s wishes and severance payment is provided
in law, therefore the two payments are separable. Severance pay is a
mandatory statutory entitlement which cannot be legally joined with other
entitlements; its calculation is provided under section 42 of the Act.”

118
Labour Revision No. 694 of 2019, HC, LD, DSM (unreported).
119
Ibid., Section 42.
120
Labour Revision No. 467 of 2019, HC, LD, DSM (unreported) at p. 18–19.

47
2.10.3 Transport to the Place of Recruitment
The labour law directs that where an employee’s contract of employment is
terminated at a place other than where the employee was recruited, the
employer shall either transport the employees and his personal effects to
the place of recruitment; pay for transportation of the employee to the place
of recruitment; or pay the allowance for transport to the place of
recruitment and daily subsistence expenses during the period, if any,
between the date of termination and the date of transport – provided that
the allowance paid shall be equal to at least a bus fare to the bus station
nearest to the place of recruitment.121 In the case of Christian Mwesiga
Michael v. Board of Bishops122 it was held that the position of the law on
subsistence allowances as set under section 43 (1) (c) of the Employment
and Labour Relations Act, Cap. 366 – it requires the employer to pay the
employee transport allowance and subsistence allowance upon termination
of the contract. This position was also cemented by the labour Court in the
case of Coca Cola Kwanza Ltd v. Kajeri Misyangi123 where it was held that the
transport and subsistence allowances is to be paid where the employee is
necessitated to quit job on employer's accord or at the end of the contract.

2.10.4 Payment of other Entitlements and Issuance of Certificate of

Service
The law also states that upon termination of employment, the employer is
obliged to pay the employee the following entitlements: any remuneration
for work done before the termination; any annual leave pay due to an
employee for leave that the employee has not taken; any annual leave pay
accrued during any incomplete leave cycle; severance pay and transport
allowances and other entitlements like payment of golden hand shake at
the employer’s discretion as it depends on the employer’s wishes.124
Further, on termination, the employer will issue to an employee a
prescribed certificate of service as an acknowledgement for work done.125
Reg. 17 of the Employment and Labour Relations (General) Regulations,
2017 provides that a certificate of service provided for in section 44 of the
Employment and Labour Relations Act, Cap. 366 shall be as prescribed in a
Form LAIF. 10 as set out in the Second Schedule to the Regulations.

121
Ibid., Section 43.
122
Revision No. 31 of 2020, HC, LD, Morogoro (unreported) at p. 22.
123
Labour Revision No. 238 of 2008, HC, LD, DSM (unreported).
124
Emmanuel Urassa and 10 others v. Shared Networks Tanzania Limited (supra).
125
Section 44 of the Employment and Labour Relations Act, Cap. 336.

48
 PART THREE
INTERNATIONAL LABOUR INSTRUMENTS

3.1 Definition
International labour standards are legal instruments adopted by
international policy-makers particularly the ILO’s constituents, namely;
governments, employers and workers, in a tripartite arrangement, setting
out minimum labour standards to govern the employment industry and
labour relations in the world.126 The ILO is a principal international
institution (UN Agency) established in 1919 under the League of Nations’
mandate to advance ‘employment justice’ through setting minimum labour
standards.127 The objective of ILO is generally to promote decent work that
is integrated with freedom, safety and dignity of all workers – ILO
advances the perception that labour is not a commodity but rather a
dignified service (see the preamble to the ILO Constitution, 1919 and
Declaration Concerning the Aims and Purposes of the ILO “Declaration of
Philadelphia,” 1944).128 In Tanzania, the international labour standards
such as international conventions are explicitly binding and form part of
the sources of labour law by virtue of section 3(g) of the Employment and
Labour Relations Act, Cap. 366 (lex specialis) which lucidly states, among
others, that the object of the lex specialis shall generally be to give effect to
the core conventions of the ILO as well as other ratified conventions.

3.2 Role of International Labour Standards

International labour standards are broadly aimed at ensuring accessible,
productive, and sustainable work tinged with freedom, equity and dignity
to all races across jurisdictions.129 They equally promote rights at work,
encourage decent employment opportunities, enhances social protection

126
ILO., 2014 (3rd Edn.) at p. 15.
127
Baccini, L., and Koenig –Archibugi, M., “Why Do States Commit to International Labour
Standards? The Importance of “Rivalry” and “Friendship,” Political Science and Political
Economy Working Paper No. 1, 2011, p. 2; see also: Lyutov, N., “The ILO System of
International Labour Standards and Monitoring Procedures: Too Complicated to be Effective?”
Vol. 64(2) Zbornik PFZ, 2014, pp. 255–276, at pp. 265–265.
128
Alston, P., “’Core Labour Standards’ and the Transformation of the International Labour Rights
Regime,” Vol. 15(3) EJIL, 2004, pp. 457–521.
129
Biffl, G., and Isaac, J.E., “How Effective Are the ILO’s Labour Standards under Globalisation?”
WIFO Working Papers No. 178, 2002, at pp. 3–5.

49
and strengthen dialogue on employment-related discourses.130 Regarding
the role of these international labour standards, the ILO comments that:
“[i]nternational labour standards are the result of discussions among
governments, employers and workers, in consultation with experts from
around the world. They represent the international consensus on how a
particular labour problem could be tackled at the global level and reflect
knowledge and experience from all corners of the world. Governments,
employers’ and workers’ organizations, international institutions,
multinational companies and non-governmental organizations can benefit
from this knowledge by incorporating the standards in their policies,
operational objectives and day-to-day action. The standards’ legal character
allows them to be used in the legal system and administration at the
national level, and as part of the corpus of international law which can
bring about greater integration of the international community.”131 As such,
the role of international labour standards is directly manifested in the
administration of ‘employment justice’ in ILO’s member States – in that,
they fill gaps in domestic labour laws in case the domestic laws are silent
on a particular labour matter; or they can also be used to interpret, support
and strengthens relevant national legislation.

For example, in the case of Athumani Rajabu Salehe v. Speed Security Services
Ltd (supra) the Labour Court sought support from international labour
standards when construing provisions on an unfair termination of
employment. The Court reasoned at p. 10 that it is crystal clear that the
intention of the legislature is to require employers to terminate employees
only basing on valid reasons and not their will or whims as per the dictates
of the International Labour Organization Convention (ILO) No. 158 of 1982.
In similar footing, in the case of Mohamedi Kijida v. Everything Dar. Com Ltd
(supra) at p. 12 the Court noted that: “[t]he legislature's spirit is to ensure
that termination of employment is based on valid reason and not on
employer’s will. That spirit goes along with Article 4 of the International
Labour Organization Convention (ILO) 158 of 1982, which provides that
‘the employment of a worker shall not be terminated unless there is a valid
reason for such termination connected with the capacity or conduct of the
worker or based on operational requirements of the undertaking
establishment or service.’”

130
Ibid.
131
ILO., 2014 (3rd Edn.) at p. 14.

50
3.3 Legal Forms of International Labour Standards
3.3.1 Conventions
Conventions are legally binding instruments; they bind the signatories.
Conventions form part and parcel of the domestic labour law regime of
member States, this is because, by ratifying them, the respective States
formally commit themselves to putting the letter and spirit of the ratified
standards into effect, both in law and in practice. Examples of international
labour conventions include the ILO Weekly Rest (Industry) Convention,
1921; Labour Inspection Convention, 1947; Forced Labour Convention,
1930; Equal Remuneration Convention, 1951; to name just a few.132

3.3.2 Recommendations
Recommendations are non-binding instruments (soft laws). They provide
guidance and support on how to apply and interpret relevant conventions.
Recommendations thus establish non-obligatory guiding tenets for national
policy and practice – they usually supplement the provisions of the main
conventions. For example, the ILO Unemployment Recommendation, 1919;
Workmen’s Compensation (Occupational Diseases) Recommendation,
1925; Employment Service Recommendation, 1944; and others.133

3.3.3 Protocols
Protocols are supplements to conventions. They, among others, clarify,
modify, amend or add substantive or procedural materials to existing
conventions. The ILO Protocol of 2014 to the Forced Labour Convention,
1930; Protocol of 1995 to the Labour Inspection Convention, 1947; are just
few examples of these protocols.134

3.3.4 Resolutions
Resolutions are political decisions adopted during ILO Conferences to
verily reaffirm certain normative labour aspects. For example, ILO
Resolution Concerning the Promotion of the Maritime Labour Convention,
2006; Resolution Concerning Social Security, 2006; and others.

132
Riethof, M., “The International Labour Standards Debate in the Brazilian Labour Movement:
Engagement with Mercosur and Opposition to the Free Trade Area of the Americas,” Vol. 5(4)
Politics and Governance, 2017, pp. 30– 39.
133
Ibid.
134
Baccini, L., and Koenig-Archibugi, M., “Why Do States Commit to International Labour
Standard? The Importance of “rivalry” and “friendship,” Political Science and Political Economy
Working Paper, 2010, pp. 41–48.

51
3.3.5 Declarations
Declarations are equally soft laws but sometimes they may acquire
normative value hence binding to respective States. For example, ILO
Declaration on Fundamental Principles and Rights at Work, 1998; ILO
Declaration on Gender Equality, 1975; ILO Centenary Declaration for the
Future of Work, 2019; and others.

3.4 Attributes and Subjects Covered by International Labour Standards

International labour standards are universal; they are adopted by the ILO’s
constituents in a consensus arrangement, and never come into force unless
a two-third of the member States has ratified the respective standard(s).
International labour standards are equally flexible; they provide minimum
standards while giving room for improvement or modification based on
countries’ local, cultural, social, economic and political textures – as such,
the standards have been adopted in a way that makes them flexible enough
to be transformed into domestic law and practice with due consideration of
these differences. The standards are also adopted under tripartite
framework composed of governments, employers and employees’
representatives.135 On tripartitism, ILO contends that:

[a] unique element in the development of ILO standards,

which sets them apart from other international
standards, is the aspect of tripartitism. The participation
of governments, along with the most representative
workers’ and employers’ organizations, is an integral
part of the ILO. Despite the sometimes-conflict nature of
tripartitism, the participation of all three parties is
necessary to find common ground for social and
economic goals. Standards adopted through tripartitism
result in a certain degree of dynamism and universality
due to the fact that they are adopted by means of a
process of consultation and result in a consensus of the
diverse opinions of the various parties. As a result, the
standards adopted are more adaptable to differing

135
ILO., 2014 (3rd Edn.) at pp. 17–22.

52
 economic and social situations, while retaining all their
universality.136

It should be noted that international labour standards do cover various

subjects in the employment industry, namely: Employment Security, Social
Policy, Wages, Working Time, Occupational Safety and Health, Social
Security, Maternity Protection, Freedom of Association, Collective
Bargaining, Forced Labour, Child Labour, Equality of Opportunity and
Treatment, Tripartite Consultation, Labour Administration, Labour
Inspection, Employment Policy, Employment Promotion, Vocational
Guidance and Training, Domestic Workers, Migrant Workers, Seafarers,
Fishers, Dockworkers, Indigenous and Tribal Peoples, Other Specific
Categories of Work.137

3.5 The Core Conventions

It should be noted that, there are currently more than 190 ILO Conventions,
some dating back as far as 1919.138 However, the ILO’s Governing Body has
deliberately identified only 8 Conventions as ‘fundamental’ or ‘core’
covering crucial subjects that are considered as fundamental principles and
rights at work such as freedom of association and the effective recognition
of the right to collective bargaining; the elimination of all forms of forced or
compulsory labour; the effective abolition of child labour; and the
elimination of discrimination in respect of employment and occupation. In
precise terms, the Core Conventions represent fundamental rights of all
human beings at workplace irrespective of the level of socio-economic and
political development of individual member States. The international
community views these rights as condition precedent (precondition) for all
the others, in that, they provide necessary framework for the enjoyment of
right to work by all people.139 The following below are the Core
Conventions:

136
ILO., Fundamental Rights at Work and International Labour Standards. Geneva: ILO, 2003, pp.
1–2.
137
ILO., 2014 (3rd Edn.) at p. 26.
138
See <https://www.ilo.org/global/standards/introduction-to-international-labour-
standards/conventions-and-recommendations/lang--en/index.htm> (accessed 20 June 2021).
139
ILO., The International Labour Organisation’s Fundamental Conventions. Geneva: ILO, 2003,
p. 7.

53
3.5.1 Freedom of Association and Protection of the Right to Organise
Convention (No. 87)
It was adopted in July 1948 and entered into force in July 1950. It stipulates
clearly that both employers and employees have the right to join
organisations – federations – confederations of their own choosing without
prior authorisation and interference from public authorities as well as legal
restrictions but subject to the rules of organisation as prescribed in the
relevant laws.140 The Convention also obliges the signatories thereto to take
all necessary and appropriate measures to ensure that employees and
employers exercise the right to organise freely.141

This Convention has been incorporated in the Tanzanian labour law

regime; Article 20 of the Constitution of the United Republic of Tanzania,
Cap. 2 is a true reflection of the Convention. It provides that every person
being a natural or juristic person (employee or employer) has a freedom to
freely and peaceably assemble, associate and cooperate with other persons,
and for that purpose, express views publicly and to form and join with
associations or organisations formed for purposes of preserving or
furthering his beliefs or interests. Equally, section 9 of the Employment and
Labour Relations Act, Cap. 366 incorporates the spirit of the Convention, it
provides for employee’s right to freedom of association – the provision
clearly stipulates that every employee shall have the right to form and join
a trade union or to participate in the lawful activities of the trade union
save for, one; magistrates who can only form or join a trade union that
restricts its membership to judicial officers, two; prosecutors who can only
form or join a trade union that restricts its membership to prosecutors or
other court officials, third; senior management employees who cannot
belong to a trade union that represents the non-senior management
employees of the employer. See also section 10 which provides for
employer’s right to freedom of association.

Section 9 also reflects the intent of the Convention by prohibiting

discrimination with regard to freedom of association, in that, no person
shall discriminate against an employee on the grounds that the employee
exercises or has exercised any right under the Employment and Labour
Relations Act, Cap. 366 or any other written law or belongs to or has

140
Article 2, 3, 4, 5, 6, 7, and 8.
141
Article 11.

54
belonged to a trade union or participates or has participated in the lawful
activities of a trade union. The provision also prohibits any person to
discriminate against an official of an office bearer of a trade union or
federation for representing it or participating in its lawful activities; and
breach of this provision constitutes an offence. More importantly, section 11
provides for rights of trade unions and employers’ associations, that every
organisation has the right to determine its own constitution, plan and
organise its administration and lawful activities, join and form a federation,
participate in the lawful activities of a federation, affiliate with and
participate in the affairs of any international workers’ organisation or
international employers’ organisation or the ILO, and to contribute to, or
receive financial assistance from those organisations.142

3.5.2 Right to Organise and Collective Bargaining Convention (No. 98)

Convention No. 98 was adopted in July 1949 and entered into force in July
1951. It protects employees against acts of anti-union discrimination in
respect of their employments and rights to exercise trade union’s activities.
It equally prohibits employer’s acts of interference and dominance in the
trade union’s activities.143 Convention No. 98 also requires State authorities
to respect the right to organise – and the same proceed to put more
emphasis on voluntary negotiation and collective agreements.144 The
Employment and Labour Relations Act, Cap. 366 has broadly incorporated
the provisions of this Convention in respect of the right to organise and
collective bargaining: Part V of the Act is a true reflection of the Convention
– Part V specifically provides for organisational rights, in that, among
others, any authorised representative of a registered trade union is entitled
to enter the employer’s premises in order to recruit members; communicate
with members; meet members in dealings with the employer; hold
meetings of employees on the premises; and the right of a trade union to
establish a field branch at any workplace where ten or more of its members
are employed thereat.145 The employer is equally required to deduct dues
of a registered trade union from an employee’s wages if that employee has

142
See also Ezekiah Tom Oluoch v. The Teachers’ Service Commission (TSC) and others, Misc.
Civil Cause No. 03 of 2020, HC, MR, at DSM (unreported) where, among others, Articles 1, 2, 3,
8, and 11 of the ILO Convention on Freedom of Association and the Right to Organise
Convention, 1948 were invoked as the basis for the petitioner’s petition.
143
Article 1 and 2.
144
Article 3 and 4.
145
Section 60.

55
authorised the employer to do so in the prescribed Form, and remit the
deductions to the trade union within seven days after the end of the month
in which the deductions are made – this position was equally emphasised
in the case of Tanzania Social Service Industry Workers Union v. Machame
Lutheran Hospital146 at pp. 5–6.

It is important to note that Convention No. 98 also stresses on voluntary

negotiation and collective bargaining as a catalyst of peacefully industrial
relations – In this regard therefore, Part VI of the Act reflects the spirit of
the Convention: For example, section 68 obliges the employer or
employers’ association to bargain in good faith with a recognised trade
union and the attendant collective agreements are binding. In Tanzania Leaf
Tobacco Company Limited v. Mohamed Issa Ihuka147 the Court held that in
terms of section 71 (2) of the Employment and Labour Relations Act, Cap.
366 a collective agreement is binding upon the parties unless the agreement
states otherwise. Davies and Freedland summarise the essence and purpose
of collective bargaining in the context of Convention No. 98 in the
following terms:

In the light of what we have said it is not

difficult to summarise the purpose of collective
bargaining: by bargaining collectively with
organised labour, management seeks to give
effect to its legitimate expectation that the
planning of production, distribution, etc., should
not be frustrated through interruptions of work.
By bargaining collectively with management,
organised labour seeks to give effect to its
legitimate expectations that wages and other
conditions of work should be such as to
guarantee a stable and adequate form of
existence and as to be compatible with the
physical integrity and moral dignity of the
individual, and also that jobs should be
reasonably secure. This definition is not
intended to be exhaustive. It is intended to

146
Labour Application No. 2 of 2018, HC, DR at Moshi (unreported).
147
Labour Revision No. 12 of 2019, HC, LD, Sumbawanga (unreported).

56
 indicate (and this is important for the law) that
the principal interest of management in
collective bargaining has always been the
maintenance of industrial peace over a given
area and period, and that the principal interest
of labour has always been the creation and the
maintenance of certain standards over a given
area and period, standards of distribution of
work, of rewards, and of stability of
employment.148

3.5.3 Forced Labour Convention (No. 29)

Convention No. 29 was adopted on 28 June 1930 and entered into force on
1 May 1932. The legislative intent for the adoption of this Convention was
and/or is to eliminate all forms of forced or compulsory labour in the
employment industry save for some circumstances where forced or
compulsory labour were permitted.149

What amount to forced or compulsory labour is clearly defined under the

Convention – to include all work or service which is exacted from any
person under the menace of any penalty and for which the said person has
not offered himself voluntarily. However, the following do not fall within
the thematic meaning of forced or compulsory labour under the
Convention: any work or service exacted in virtue of compulsory military
service laws for work of a purely military character; any work or service
which forms part of the normal civic obligations of the citizens of a fully
self-governing country; any work or service exacted from any person as a
consequence of a conviction in a court of law, provided that the said work
or service is carried out under the supervision and control of a public
authority and that the said person is not hired to or placed at the disposal
of private individuals, companies or associations.

Further includes any work or service exacted in cases of emergency, that is

to say, in the event of war or of a calamity or threatened calamity, such as
fire, flood, famine, earthquake, violent epidemic or epizootic diseases,
invasion by animal, insect or vegetable pests, and in general any

148
Freedland Davies, P., and, M., Kahn-Freund’s Labour and the Law. London: Stevens & Sons,
1983, 3rd Edn., p. 69.
149
Preamble and Article 1.

57
circumstance that would endanger the existence or the wellbeing of the
whole or part of the population; and minor communal services of a kind
which, being performed by the members of the community in the direct
interest of the said community.150

It is interesting to note that this Convention did not abolish forced or

compulsory labour entirely, in certain circumstances, forced or compulsory
labour were permitted pursuant to the following conditions as per Article 9
– one; that the work to be done or the service to be rendered is of important
direct interest for the community called upon to do the work or render the
service, two; that the work or service is of present or imminent necessity,
three; that it has been impossible to obtain voluntary labour for carrying
out the work or rendering the service by the offer of rates of wages and
conditions of labour not less favourable than those prevailing in the area
concerned for similar work or service, and four; that the work or service
will not lay too heavy a burden upon the present population, having regard
to the labour available and its capacity to undertake the work.151

The Tanzanian labour law has extensively incorporated the substance of

this Convention – and the former has gone an extra mile to totally prohibit
and abolish forced or compulsory labour: it should be noted that under the
Convention, forced or compulsory labour were permitted in certain
circumstances as alluded hereinabove. Article 25 of the Constitution of the
United Republic of Tanzania, Cap. 2 is a true reflection of this Convention,
it provides categorically that there shall be no forced labour in the United
Republic save that no work shall be deemed to be forced, cruel or
humiliating labour, if such work is according to law such as work which
has to be done pursuant to a judgment or order of a court; work which has
to be done by members of any Force in the discharge of their
responsibilities; work which has to be done by any person due to a state of
emergency or any calamity which threatens the life or well-being of the
society; and any work or service which forms part of – routine services for
ensuring the well-being of society or compulsory national service in
accordance with the law or the national endeavour at the mobilization of

150
Article 2, 4, 5, 6, 7, 8 and 10.
151
See also Article 7 and 8.

58
human resources for the enhancement of the society and the national
economy and to ensure development and national productivity.152

3.5.4 Abolition of Forced Labour Convention (No. 105)

As alluded above, the Forced Labour Convention (No. 29) did not abolish
and prohibit forced or compulsory labour in its entirety, in certain
circumstances, forced or compulsory labour were permitted: see Article 7,
8, and 10 of the Forced Labour Convention (No. 29). Following some
notable developments at the international arena, such as the inception of
the Supplementary Convention on the Abolition of Slavery and the Slave
Trade and Institutions and Practices Similar to Slavery of 1956 which
provided for the complete abolition of debt bondage and serfdom.

Further following the inception of the Protection of Wages Convention of

1949 which provided for regular payment of wages and prohibition of
methods of payment which deprive the worker of a genuine possibility of
terminating his employment; the Charter of the United Nations of 1945;
and the Universal Declaration of Human Rights of 1948 that condemned
forced or compulsory labour as a serious violation of human rights – the
Abolition of Forced Labour Convention (No. 105) was thus adopted on 25
June 1957 and entered into force on 17 January 1959 to completely suppress
and oblige the signatories thereto not to make use of any form of forced or
compulsory labour as a means of political coercion or education or as a
punishment for holding or expressing political views or views ideologically
opposed to the established political, social or economic system or as a
method of mobilising and using labour for purposes of economic
development or as a means of labour discipline or as a punishment for

152
See also section 6 of the Employment and Labour Relations, Cap. 366 which states that any person
who procures, demands or imposes forced labour, commits an offence, and forced includes
bonded labour or any work exacted from a person under the threat of a penalty and to which that
person has not consented but does not Include any work exacted under the National Defence Act,
for work of a purely military character or any work that forms part of the normal civic obligations
of a citizen of the United Republic of Tanzania or any work exacted from any person as a
consequence of a conviction in a court of law – provided that the work is carried out under the
supervision and control of a public authority and that the person is not hired to, or placed at, the
disposal of private persons. Other works that do not fall in the category of forced labour include
any work exacted in cases of an emergency or a circumstance that would endanger the existence
or the well-being of the whole or part of the population or minor communal services performed
by the members of a community in the direct interest of that community after consultation with
them or their direct representatives on the need for the services.

59
having participated in strikes or as a means of racial, social, national or
religious discrimination.153

Convention No. 105 specifically obliges the signatories thereto to undertake

effective measures aimed at securing the immediate and complete abolition
of forced or compulsory labour.154 It should be noted that, like the Forced
Labour Convention (No. 29), the substance of Convention No. 105 has
equally been incorporated in the Tanzanian labour law regime
significantly, as demonstrated hereinabove.

3.5.5 Minimum Age Convention (No. 138)

It is important to note that children enjoy the same human rights accorded
to all people by virtue of being humans. However, due to lack of mental
and physical maturity, knowledge, experience, and the power to defend
their own interests in an adult fashion, there is a need to protect them
against economic exploitation and from work that is dangerous to their
health and morals or works that hampers their human development.
Against this understanding, the principle of the effective abolition of child
labour aimed at ensuring that every girl and boy has the opportunity to
develop physically and mentally to her or his full potential was developed
through the Minimum Age Convention (No. 138) with a view to stop all
work by children that jeopardizes their education and development. The
Minimum Age Convention (No. 138) was adopted on 26 June 1973 and
entered into force on 19 June 1976.

Convention No. 138 obliges the signatories thereto to ensure the effective
abolition of child labour and to raise progressively the minimum age for
admission to employment or work to a level consistent with the fullest
physical and mental development of young persons.155 It is thus directed
that the minimum age for admission to any type of employment or work
which by its nature or the circumstances in which it is carried out is likely
to jeopardize the health, safety or morals of young persons shall not be less
than 18 years save for some special circumstances as per the relevant laws
and best interest of the child.156 Similarly, the Convention permits the
employment of children in works done by children and young persons in

153
Article 1.
154
Article 2.
155
Article 1.
156
Article 3.

60
schools for general, vocational or technical education or in other training
institutions, or to work done by persons at least 14 years of age in
undertakings, where such work is carried out in accordance with
conditions prescribed by the competent authority, after consultation with
the organizations of employers and workers concerned, where such exist,
and is an integral part of: one; a course of education or training for which a
school or training institution is primarily responsible, two; a programme of
training mainly or entirely in an undertaking, which programme has been
approved by the competent authority, or three; a programme of guidance
or orientation designed to facilitate the choice of an occupation or of a line
of training.157

The Tanzanian labour law regime has significantly incorporated the

substance of Convention No. 138 especially through Part VII of Act, the
Law of the Child Act, Cap. 13 and section 5 of the Employment and Labour
Relations Act, Cap. 366 which prohibit any person to employ a child under
the age of 14 years save that the said child of 14 years of age may only be
employed to do light work, which is not likely to be harmful to the child’s
health and development; and does not prejudice the child’s attendance at
school, participation in vocational orientation or training programmes
approved by the competent authority or the child’s capacity to benefit from
the instruction received. In the same vein, it is directed that a child under
18 years of age shall not be employed in a mine, factory or as crew on a
ship or in any other worksite including non-formal settings and
agriculture, where work conditions may be considered hazardous.

With the same spirit, Regulation 3 of the Employment and Labour

Relations (General) Regulations, 2017 directs that no person shall employ
or cause to be employed a child under the age of 14 years – save that such a
child may be employed to perform light work which is not listed in the List
of Hazardous Works for Children in a manner set out in the First Schedule
to the Regulations.

3.5.6 Worst Forms of Child Labour Convention (No. 182)

It was adopted on 17 June 1999 and entered into force on 19 November
2000. This Convention (No. 182) brings to the fore the theme of elimination
of worst forms of child labour through directing the signatories thereto to

157
Article 6, 7 and 8.

61
take immediate and effective measures to secure the prohibition and
elimination of the worst forms of child labour as a matter of urgency to all
persons under the age of 18.158 It is interesting to point out that this
Convention defines worst forms of child labour to include: all forms of
slavery or practices similar to slavery, such as the sale and trafficking of
children, debt bondage and serfdom and forced or compulsory labour,
including forced or compulsory recruitment of children for use in armed
conflict; the use, procuring or offering of a child for prostitution, for the
production of pornography or for pornographic performances; the use,
procuring or offering of a child for illicit activities, in particular for the
production and trafficking of drugs as defined in the relevant international
treaties; and work which, by its nature or the circumstances in which it is
carried out, is likely to harm the health, safety or morals of children as
determined by national laws or regulations or by the competent authority,
after consultation with the organizations of employers and workers
concerned, taking into consideration relevant international standards.159

It is observed that the Tanzanian labour law regime has significantly

incorporated the substance of Convention No. 138 especially through Part
VII of the Law of the Child Act, Cap. 13 and section 5 of the Employment
and Labour Relations Act, Cap. 366 which prohibit worst forms of child
labour and other related works.

3.5.7 Equal Remuneration Convention (No. 100)

Equal remuneration at work entails that all ‘equal individuals with equal
labour position’ should be accorded equal payment rights allowing them to
develop fully the knowledge, skills and competencies that are relevant to
the economic activities they wish to pursue. Convention No. 100 was
adopted on 29 June 1951 and entered into force on 23 May 1953. The
Convention defines remuneration to include the ordinary, basic, or
minimum wage or salary and any additional emoluments whatsoever
payable directly or indirectly, whether in cash or in kind, by the employer
to the worker and arising out of the worker’s employment – and equal
remuneration for men and women workers for work of equal value is
equally defined to mean rates of remuneration established without

158
Article 1 and 2.
159
Article 3 and 4.

62
discrimination based on sex.160 All the signatories are required, by means
appropriate to the methods in operation for determining rates of
remuneration, promote and, in so far as is consistent with such methods,
ensure the application to all workers of the principle of equal remuneration
for men and women workers for work of equal value.161

As it can be noted, Convention (No. 100) perceives remuneration as

lifeblood of industrial relations, and therefore the same has equally been
reflected in the Tanzanian labour law regime to a large magnitude. Article
23 of the Constitution of the United Republic of Tanzania, Cap. 2 provides
that very person, without discrimination of any kind, is entitled to
remuneration commensurate with his work, and all persons working
according to their ability shall be remunerated according to the measure
and qualification for the work and every person who works is entitled to
just remuneration. The Employment and Labour Relations Act, Cap. 366
oblige employers to pay to employees any monetary remuneration to
which the latter are entitled.162

3.5.8 Discrimination (Employment and Occupation) Convention (No.

111)
It was adopted on 25 June 1958 and entered into force on 15 June 1960. It
brings to the fore the agenda of non-discrimination in the employment and
occupation industry. Article 1 defines ‘discrimination’ to include: (a) any
distinction, exclusion or preference made on the basis of race, colour, sex,
religion, political opinion, national extraction or social origin, which has the
effect of nullifying or impairing equality of opportunity or treatment in
employment or occupation; (b) such other distinction, exclusion or
preference which has the effect of nullifying or impairing equality of
opportunity or treatment in employment or occupation as may be
determined by a member State concerned after consultation with
representative employers’ and workers’ organisations, where such exist,
and with other appropriate bodies.163

160
Article 1.
161
Article.
162
Section 27.
163
This definition is also incorporated under Article 13 of the Constitution of the United Republic of
Tanzania, Cap.2.

63
Section 7 and 8 of the Employment and Labour Relations Act, Cap. 366 is a
true reflection of Convention No. 111, the cited provisions direct that every
employer shall ensure that he promotes an equal opportunity in
employment and strives to eliminate discrimination in any employment
policy or practice and no employer is permitted to discriminate, directly or
indirectly, against an employee, in any employment policy or practice, on
any of the following grounds: colour; nationality; tribe or place of origin;
race; national extraction; social origin; political opinion or religion; sex;
gender; pregnancy; marital status or family responsibility; disability;
HIV/Aids; age; or station of life.

3.6 Technical International Instruments

As alluded above, the international labour standards do cover various
subjects in the employment industry such as employment security, social
policies, wages, working time, occupational safety and health, social
security, maternity protection, freedom of association and labour
administration. Regarding the diversity of these international instruments
on employment – Laci, et al., aver that:

International Labour Organization standards

evolve labour and social aspects, which includes
issues related to fundamental human rights, such
as elimination of child labour, forced labour and of
any type of different treatment in occupation and
employment. Most of Conventions and
Recommendations are applied to both women and
men workers; nevertheless, there is a considerable
number of Conventions which of special effect to
women workers. ILO has developed basic
standards, which serve as a catalyst for new legal
acts, including the following issues: discrimination
in occupation and employment, special measures
regarding work in special conditions, such as part-
time, night, and underground work, equality of
compensation, workers with family

64
 responsibilities, maternity protection and also
issues related to health.164

As such, apart from the Core Conventions, there are also technical
international instruments on employment covering different categories of
areas, to wit: employees rights at work – international instruments under
this category do cover mainly employment standards on health and safety,
remuneration, working time, child labour and others: collective bargaining
rights – covering participation in the workplace, particularly the right to
register for trade unions, collective agreements and take strike action, as
well as direct representation within the management of trade unions:
equality of treatment – involving international instruments that are
referential to the terms and conditions of people in comparable situations,
with special focus on indigenous communities and migrants: employment
security – covering instruments that prescribe the standards for dismissals,
protection upon an employer's insolvency, regulation of employment
agencies and signatories’ requirements to promote full and fulfilling
employment security: labour administration – covering requirements for
administrative apparatus by governments to enforce and promote labour
standards through inspections, the collection of statistics, training and
consulting with unions and employers before the passage of legislation:
and sectoral standards – these are specific instruments covering certain
industries such as seafaring, fishing, plantations, hotels, nursing, home and
domestic work, where employees may be particularly vulnerable.

It is thus important to understand that international labour standards

ensure a fairly-level playing ground in the global labour market. They
specifically help ILO’s signatories and employers to avoid the temptation
of lowering the required labour standards in the belief that this could give
them a greater comparative advantage in the labour market. It is in
everyone’s interest to see the international labour standards apply across
the board, “so that those who do not put them into practice do not
undermine the efforts of those who do.”165

164
Laci, A., et al., “Equality at Work and Discrimination in Employment and Occupation,” Vol.
7(2), Journal of Educational and Social Research, 2017, pp. 67–72, at p. 68.
165
ILO., Rules of the Game: A Brief Introduction to International Labour Standards. Geneva: ILO,
2009, pp. 10 –11.

65
 PART FOUR
FUNDAMENTAL RIGHTS AND PROTECTIONS

4.1 Definition
Indubitably, fundamental rights and protections at the workplace
constitute a central plank of decent work and a basis upon which an
equitable and just employment-community is built. Fundamental rights
and protections are the legal entitlements attached to the contract of service
ranging from the right to freely enter in an employer-employee relationship
to the right to an equitable working condition. These rights and protections
have been codified in national and international labour laws and can be
exercised individually or collectively. The ILO through the ILO Declaration
on Fundamental Principles and Rights at Work, 1998 (preamble, para. 5)
summarizes the essence of fundamental rights and protections at
workplace in the following terms: “[i]n seeking to maintain the link
between social progress and economic growth the guarantee of
fundamental [protections] and rights at work is of particular significance in
that it enables the persons concerned to claim freely and on the basis of
equality of opportunities their fair share of the wealth which they have
helped to generate, and to achieve fully their human potential.”

4.2 Fundamental Rights and Protections

4.2.1 Prohibition of Child Labour
It should be noted that the abolition of child labour is one of the basic
principles on which the ILO was founded in 1919 and has remained a
constant concern ever since.166 In ILO’s understanding: “[c]hild labour is a
global human and labour rights issue that affects the world. Child labour
denies girls and boys of their right to a childhood, to a good education and
to grow up safe and protected from harm. These children work long hours,
for little or no pay and have no knowledge of their rights. About half of
them work in hazardous workplaces and dangerous situations, sometimes
resulting in injuries and illnesses that can have life-long effects on children
or may even be life-threatening.”167 In Mainland Tanzania, it is strictly
prohibited to employ a child under the age of 14 years save for

166
Amon, J.J., et al., “Child Labor and Environmental Health: Government Obligations and Human
Rights,” International Journal of Pediatrics, 2012, pp. 1–6.
167
ILO., Tackling Child Labour: 100 Years of Action. Geneva: ILO, 2019 at p. 2.

66
employment to do light work, which is not likely to be harmful to the
child’s health and development; and does not prejudice the child’s
attendance at school, participation in vocational orientation or training
programmes approved by the competent authority or the child’s capacity
to benefit from the instruction received.168 The law also makes it clear that a
child under 18 years of age shall not be employed in a mine, factory or as
crew on a ship or in any other worksite including non-formal settings and
agriculture, where work conditions may be considered hazardous169 (see
also the 1st Schedule to the Employment and Labour Relations (General)
Regulations, G.N. No. 47 of 2017 that lists hazardous work for children),
and no person shall employ a child in employment: (a) that is inappropriate
for a person of that age; (b) that places at risk the child’s well-being,
education, physical or mental health, or spiritual, moral or social
development.170

However, the law permits a child under 18 years to work: (a) on board a
training ship as part of the child’s training; (b) in a factory or a mine if that
work is part of the child’s training; (c) in any other worksites on condition
that the health, safety and morals of the child are fully protected and that
the child has received or is receiving adequate specific instruction or
vocational training in the relevant work or activity.171 It is a criminal
offence for any person to employ a child in violation of the cited law, or to
procure a child for employment in violation of the law, and in any
proceedings relating to employing a child in violation of the law, the
burden of proving that it was reasonable to believe, after investigation, that
the child was not under the prohibited age for the purposes of the
respective law lies on the person employing or procuring the child for
employment.172 The law also places burden on every employer to ensure
that every child lawfully employed under the cited law is protected against

168
Section 5(1) and (2) of the Employment and Labour Relations Act, Cap. 366.
169
Section 82 of the Law of the Child Act, Cap. 13 provides that a work shall be construed as or
considered to be hazardous when it poses a danger to the health, safety or morals of a child, such
as include: (a) going to sea; (b) mining and quarrying; (c) porterage of heavy loads; (d)
manufacturing industries where chemicals are produced or used; (e) work in places where
machines are used; and (f) work in place such as bars, hotels and places of entertainment.
170
Ibid.
171
Ibid., section 3, 4, and 5. See also section 87 to 93 of the Law of the Child Act, Cap. 13 that
provides for the right of a child to acquire vocational skills and training in the form of
apprenticeship.
172
Ibid., section 7 and 8.

67
discrimination or acts which may have negative effect on the child taking
into consideration age and evolving capacities.173

The Law of the Child Act, Cap. 13 also provides for, among others, the
manner in which a child of, and above 14 years can be engaged in
workplaces to do light work.174 The law prohibits any person to employ or
engage a child in any kind of exploitative labour, and places an obligation
to every employer to ensure that every child lawfully employed or engaged
in accordance with the law is protected against any discrimination or acts
which may have negative effect on him taking into consideration his age
and evolving capacities.175 It should be noted that what amounts to
exploitative labour has been codified under the same law to include any
labour that: (a) deprives the child of his health or development; (b) exceeds
6 hours a day; (c) is inappropriate to his age; or (d) the child receives
inadequate remuneration.176 Section 79 prohibits a child to be employed or
engaged in a contract of service requiring the said child to work at night;
the law states clearly, that night work is to be construed to constitute work
performance of which requires the child to be at work between the hours of
20 hours in the evening and 6 o’clock in the morning.177 Equally, the same
law creates a criminal offence for any person who induces, procures,
demands, or imposes forced labour to a child. It should be borne in mind
that forced labour is defined to include bonded labour or any work exacted
from a person under the threat of a penalty but not to include work that
forms part of the normal civic obligations, minor communal services
performed by the members of a community in the direct interest of that
community.178 The law further makes it clear that a child has a right to be
paid remuneration equal to the value of the work done.179

On a similar footing, the law prohibits a child to be engaged in any work or

trade that exposes such child to activities of sexual nature, whether paid for
or not, and it is unlawful for any person to use: (a) inducement, coercion, or

173
Ibid., section 9.
174
Section 77 of the Law of the Child Act, Cap. 13. The same section defines light work as work
which is not likely to be harmful to the health or development of the child and does not prevent or
affect the child’s attendance at school, participation in vocational orientation or training
programmes or the capacity of the child to benefit from schoolwork.
175
Ibid., section 78.
176
Ibid.
177
Ibid.
178
Ibid., section 80.
179
Ibid., section 81.

68
encouragement of a child to engage in any sexual activity; (b) children in
prostitution or other unlawful sexual practices; and (c) children in
pornographic performances or materials.180 In the event of non-compliance,
labour officers have mandate to serve a non-compliance order and report
the matter to the social welfare officer and the nearest police station and the
latter have powers to investigate and take any appropriate steps to protect
the child.181

Part II of the Employment and Labour Relations (General) Regulations,

G.N. No. 47 of 2017 (regulation 3 to 10) prohibits any person to employ or
cause to be employed a child under the age of 14 years save that a child of
14 years and above may be employed to perform light work. It also directs
that a child who is still attending school shall not be required or permitted
to work in any establishment in excess of 3 hours per day; however, a child
of 14 years and above who: (a) is on leave; or (b) has completed his studies;
or (c) is not in school for any justifiable reason, may be employed to work
in an establishment for not more than 6 hours per day, and the employer is
responsible for the safety of such child so employed at that workplace. It
also prohibits a child to work during school hours; and for more than 3
consecutive hours, without at least, an hour rest. In equal footing, the law
prohibits, without exceptions, a child to work overtime or between 8p.m
and 6a.m. With regard to works relating to lifting of objects, the law sets the
following conditions of employment, that: (a) a child of 14 up to 16 years is
not permitted to carry any load weighing more than 15 kilograms; and (b) a
child of above 16 years is equally not permitted to carry any load weighing
more than 20 kilograms, and where a child is subjected to these conditions,
the law places an obligation to the employer to have the burden of proving
that the load or object does not exceed the ability of the child. The Labour
Commissioner or any labour officer has power to prohibit the employment
of children in any case if he is satisfied that the conditions of employment
of children are unsatisfactory.182

180
Ibid., section 83.
181
Ibid., section 86.
182
See also regulation 8 on the duty of the employer to keep register of children employed in the
workplace, the same has to contain the following particulars: (a) name of the child; (b) date of
employment; (c) date of birth and present age of the child; (d) place of domicile; (e) level of
education; (f) type of work performed by child; (g) particulars of parents or guardians; and (h)
school attendance status of each child.

69
Santos comments that “[c]hild labour, human trafficking and modern
slavery are heinous crimes that destroy lives, wipe out prosperity and
reverse development gains. To stop these abuses, the global community —
business and the public sector — must work together to denounce them
wherever they exist. Together we can eliminate these injustices.”183 For a
detailed discussion on prohibition of child labour under international
labour law and the extent of domestication and/or incorporation of
international standards prohibiting child labour in Mainland Tanzania
labour law regime – see Part Three.

4.2.2 Prohibition of Forced Labour

According to LeBaron and Gore, “[f]orced labour is widely acknowledged
to be a resilient and endemic feature of the contemporary global economy,
and policy and civil society actors around the world are dedicating sizable
efforts and resources to combat it. Increasingly, government and private
organizations are emphasizing gendered vulnerability to forced labour and
launching programmes to address this. Yet, to date, efforts to understand
the gendered patterns and business of forced labour in global supply
chains continue to be limited by the lack of rigorous, independent, and in-
depth empirical data.”184 In Mainland Tanzania, forced labour is defined to
include bonded labour or any work exacted from a person under the threat
of a penalty and to which that person has not consented, and the labour
law emphatically prohibits any person to procure, demand or impose
forced labour. However, the law also excludes certain works from the list of
forced labour, such as: (a) any work exacted under the National Defence
Act, Cap. 192 for work of a purely military character; (b) any work that
forms part of the normal civic obligations of a citizen of the United
Republic of Tanzania; (c) any work exacted from any person as a
consequence of a conviction in a court of law, provided that the work is
carried out under the supervision and control of a public authority and that
the person is not hired to, or placed at, the disposal of private persons; (d)
any work exacted in cases of an emergency or a circumstance that would
endanger the existence or the well-being of the whole or part of the

183
Santos, R.S., Secretary-General of the International Organisation of Employers (IOE), Geneva,
2019. See also Liebel, M., “Protecting the Rights of Working Children instead of Banning Child
Labour,” Vol. 23 International Journal of Children’s Rights, 2015, pp. 529–547.
184
LeBaron, G., and Gore, E., “Gender and Forced Labour: Understanding the Links in Global
Cocoa Supply Chains,” Vol. 56(6) The Journal of Development Studies, 2020, pp. 1095–1117 at
p. 1095.

70
population; and (e) minor communal services performed by the members
of a community in the direct interest of that community after consultation
with them or their direct representatives on the need for the services.185

Thus, the modern civilized society demand that there should be no any
kind of forced labour in industrial relations. Regarding the fight against
forced labour, ILO had this to say: “[e]liminating forced labour calls for
action on many fronts. It requires gaining a clearer understanding of how
forced labour operates in different contexts, of who is affected and how. It
requires countries to adopt and implement strong laws and policies that
outlaw the different forms of forced labour, protect the victims, and allow
appropriate punishment of the perpetrators. A range of practical actions is
needed, adapted to the country context and types of forced labour
problems, including raising public awareness of the risks of forced labour,
providing alternative local income opportunities and skills to prospective
irregular migrants, rigorous law enforcement, monitoring and regulating
the activities of recruitment agencies, labour contractors and employers,
and rehabilitating and reintegrating rescued forced labour victims. In the
long term, forced labour prevention rests on targeted poverty-reduction
initiatives such as creating income-earning activities and micro-insurance
programmes.”186

For a detailed discussion on prohibition of forced labour under

international labour law and the extent of domestication and/or
incorporation of international standards prohibiting forced labour in
Mainland Tanzania labour law regime – see Part Three.

4.2.3 Prohibition of Discrimination

Discrimination is a cancer of industrial relations.187 The law thus prohibits
an employer to discriminate, directly or indirectly, against an employee
(the term employee also include an applicant for employment) in any
employment policy or practice, on any of the following grounds, to wit:

185
Section 6 of the Employment and Labour Relations Act, Cap. 366.
186
ILO., Combating Forced Labour: A Handbook for Employers and Business. Geneva: ILO, 2015,
2nd Edn., (ISBN: 9789221297994) at p. 3. See also ILO., Fundamental Rights at Work and
International Labour Standards. Geneva: ILO, 2003, pp. 33–45.
187
Mishra, B., and Mishra, J., “Discrimination in the Workplace,” Vol. 15 (4) Journal of Higher
Education Theory and Practice, 2015, pp. 64–72. See also Muir, E., “The Essence of the
Fundamental Right to Equal Treatment: Back to the Origins,” Vol. 20 German Law Journal,
2019, pp. 817–839.

71
colour; nationality; tribe or place of origin; race; national extraction; social
origin; political opinion or religion; sex; gender; pregnancy; marital status
or family responsibility; disability; HIV/Aids; age; or station of life. The
law also makes it clear that harassment of an employee is also considered a
form of discrimination and the same is strictly prohibited. The law requires
every employer to ensure that he promotes an equal opportunity in the
workplace and strives to eliminate discrimination in any employment
policy or practice.188 Consequently therefore, every employer is obliged to
register, with the Labour Commissioner, a plan to promote equal
opportunity and to eliminate discrimination in the workplace. It should be
noted that the law allows positive discrimination in that it is not
discrimination, one; to take affirmative action measures consistent with the
promotion of equality or the elimination of discrimination in the
workplace, and two; to distinguish, exclude or prefer any person on the
basis of an inherent requirement of a job; or to employ citizens in
accordance with relevant laws on the employment of foreigners such as the
National Employment Promotion Services Act, Cap. 243.189 Regarding the
burden of proof in any proceedings where the employee makes out a prima
facie case of discrimination by the employer – the Labour Court has this to
say:

It is the legal requirement that where

employee alleges discrimination, employer is
required to proof that discrimination did not
happen. This is the requirement under
Section 7(8)(a)(l) of Employment and Labour
Relations Act, 2004. Failure to do that
constitute failure of employer to discharge the
duty entrusted to him under the referred
provision.190

188
Section 7(9) of the Employment and Labour Relations Act, Cap. 366 defines “employment policy
or practice” to include any policy or practice relating to recruitment procedures, advertising and
selection criteria, appointments and the appointment process, job classification and grading,
remuneration, employment benefits and terms and conditions of employment, job assignments,
the working environment and facilities, training and development, performance evaluation
systems, promotion transfer, demotion, termination of employment and disciplinary measures.
189
Ibid., section 7. See also Tanzania Fertilizers Company v. Ayoub Omary, Labour Revision No. 13
of 2019, HC, LD, Mbeya (unreported).
190
Lilian Ishabakaki v. Cartrack (Tz) Ltd, Revision No. 231 of 2019, HC, LD, Dar es Salaam
(unreported) at p. 3.

72
The law also prohibits trade union or employers’ association to carry out
discrimination, directly or indirectly, on the basis of the aforementioned
factors in its admission, representation or termination of membership; or in
any employment policy or practice; or in any collective agreement (see also
Part III of the Employment and Labour Relations (Code of Good Practice)
Rules, G.N. No. 42 of 2007 which prohibit workplace discrimination).191 The
Labour Court in the case of Samson Rwechungura Fulgence v. Geita Gold
Mining Limited192 quoted with approval the decision of Anthony Francis
Munyigo v. Total Tanzania Ltd and 4 others, Labour Revision No. 30 of 2009
and has this to say in respect of proceedings related to discrimination at
workplace:

The key import of the above provision is that,

not every discrimination is prohibited.
Discrimination is only prohibited when it is
carried on based on prohibited grounds as
per section 7(4). In my opinion therefore in a
case of employment discrimination, an
employee must establish the following
ingredients to prove the claim: (a) that there is
differentiation in treatment of employees who
are doing similar work and there is similarity
in qualification, job experience and
productivity; (b) that the said differentiation
is based on prohibited grounds/traits
enumerated under section 7 (4); and (c) that
the complainant is discriminated on such
grounds or possessions such traits.

In the same vein, the Court in the case of Konrad Kambona v. Tanga Cement
Co. Ltd193 observed that: [t]he import of the above provision is to the effect
that it is not every employment differentiation or discrimination which is
prohibited, discrimination is prohibited only if based on prohibited traits….
[t]he law prescribes procedure relating to proof of employment
discrimination claims. In such claims, the complainant employee has a duty
to establish a prima facie case of discrimination, once a prima facie case is

191
Section 7(9) of the Employment and Labour Relations Act, Cap. 366.
192
Labour Revision No. 41 of 2020, HC, DR, Mwanza (unreported) at pp. 40–41.
193
[2013] LCCD152 at pp. 41–42.

73
made out, the burden shifts to the employer to prove either that
discrimination did not take place, or it was not based on prohibited traits.”
For a detailed discussion on prohibition of discrimination in workplace
under international labour law and the extent of domestication and/or
incorporation of international standards prohibiting workplace
discrimination in Mainland Tanzania labour law regime – see Part Three.

4.2.4 Freedom of Association

In Milman-Siva’s words, “[f]reedom of association and the right to organize
and bargain collectively have long been recognized as fundamental rights,
improving both work and living conditions, as well as the development
and progress of economic and social systems. Freedom of association, in
particular, operates as an organizational ‘meta-norm,’ appreciated both as
an independent value and as a touchstone for the International Labour
Organization’s (ILO) institutional design.”194 With this understanding,
section 9 of the Employment and Labour Relations Act, Cap. 366 gives right
to every employee to form and join a trade union; or to participate in the
lawful activities of the trade union; save that a magistrate may only form or
join a trade union that restricts its membership to judicial officers; likewise,
a prosecutor may only form or join a trade union that restricts its
membership to prosecutors or other court officials; and a senior
management employee (the law defines senior management employee as
an employee who, by virtue of that employee’s position – makes policy on
behalf of the employer; and is authorized to conclude collective agreements
on behalf of the employer) may not belong to a trade union that represents
the non-senior management employees of the employer. Section 9 also
makes it clear that no person has mandate to discriminate against an
employee on the grounds that the employee, among others, one; belongs to
or has belonged to a trade union; or two; participates or has participated in
the lawful activities of a trade union. Similarly, no person is permitted to
discriminate against an official of an office bearer of a trade union or
federation for representing it or participating in its lawful activities.195

194
Milman-Siva, F., “Freedom of Association as a Core Labor Right and the ILO: Toward a
Normative Framework,” Vol. 3(2) Law & Ethics of Human Rights, 2019, pp. 110–153 at p. 110.
195
See also ILO., Freedom of Association and the Right to Collective Bargaining: Training Guide
and Materials for Military Police and Security Forces in the Philippines. Geneva: ILO, 2013, pp.
12–21.

74
Like for the employees, the law also states that every employer has the
right to form and join an employer’s association; or to participate in the
lawful activities of an employer’s association; and it is an offence to
discriminate against an employer on the grounds that the employer, among
others, belongs or has belonged to an employer’s association or participates
or has participated in the lawful activities of an employer’s association.
Equally, the law prohibits any person to discriminate against an official or
office bearer of an employer’s association or federation for representing it
or participating in its lawful activities.196 In order for employees or trade
union and employers to enjoy the freedom of association fairly and
adequately, the law grants certain rights to both parties, these rights
include the right to, one; determine their own constitution, two; plan and
organize their administration and lawful activities, three; join and form
federations, four; participate in the lawful activities of federations, affiliate
with, and participate in the affairs of any international workers’
organization or international employers’ organization or the International
Labour Organisation, and to contribute to, or receive financial assistance
from those organizations.197 See also Parts IV of the Employment and
Labour Relations, Cap. 366 and Employment and Labour Relations
(General) Regulations, G.N. No. 47 of 2017 respectively on trade unions,
employer associations and federations; and Parts V, VI, and VII of the
Employment and Labour Relations, Cap. 366 on the organizational rights,
collective bargaining, strikes and lockouts.

Indubitably, as Ganbarov correctly points out that: “[t]he right to freedom

of association gives to people the opportunity to express and protect their
common interests…. [t]he provisions related to the protection of freedom of
association have been faithfully defined in both international and national
levels…. [t]here are numerous sources of international laws which define
the standards concerning associations established for specific purposes
based on individual membership. For instance, it should be mentioned that
a number of guaranties are set out in article 20 of the Universal Declaration
on Human Rights, article 22 of the International Covenant on Civil and
Political Rights, and article 16 of the American Convention on Human

196
Section 10.
197
Section 11.

75
Rights.”198 In this regard therefore see Part Three for a detailed discussion
on the freedom of association under international labour law and the extent
of domestication and/or incorporation of international standards
permitting employees and employers to associate in Mainland Tanzania
labour law regime. As such, “[a]n effective legal and institutional
framework for labour relations, strong employers’ and workers’
organizations and an efficient labour administration are the main elements
of a conducive and enabling environment for freedom of association and
collective bargaining.”199

198
Ganbarov, D., “Forms of Stating the Right to Freedom of Association in International Regulatory
Acts,” Vol. 21(2) Khazar Journal of Humanities and Social Sciences, 2018, pp. 92–103 at p. 92 &
93. See also Laci, A., et al, (2017) at pp. 67–72.
199
ILO., “Fundamental Principles and Rights at Work: From Challenges to Opportunities,” Report
VI, International Labour Conference, 106th Session, 2017, p. 5.

76
 PART FIVE

EMPLOYMENT STANDARDS AND UNFAIR

TERMINATION

5.1 Definition
Employment standards are all-encompassing procedures, terms and
conditions of employment that aim at protecting the employees from
treatment at the workplace that a civilized community considers unfair or
unjust. These are governmentally imposed standards to be observed
religiously with a view to avoiding legal sanctions. The Employment and
Labour Relations Act, Cap. 366 provides that an employment standard
constitutes a term of a contract with an employee unless: (a) a term of the
contract contains a term that is more favourable to the employee; (b) a
provision of an agreement alters the employment standard to the extent
permitted by labour laws; (c) a provision of any collective agreement, a
written law regulating employment, wage determination or exemption
granted under labour laws altering the employment standard.200

It is therefore important to emphasize that employment standards at the

workplace, equally, constitute a central plank of decent work and a basis
upon which an equitable and just employment-community is built.

5.2 Hours of Work

5.2.1 Ordinary Hours of Work

Understanding how the number of hours worked affects labour
productivity is an important element of understanding labour demand, and
has important implications for the regulation of working hours and
industrial relations management. On the one hand, longer hours can lead to
higher productivity if a worker faces fixed set-up costs and fixed
unproductive time during the day, or if longer hours lead to better
utilisation of capital goods. On the other hand, worker fatigue could set in
after a number of hours worked, so that the marginal effect on productivity

200
Section 13(2) of the Employment and Labour Relations Act, Cap. 366.

77
of an extra hour per worker starts decreasing.201 As such, hours of work is
an important component in any employer-employee relationship. Johnson
comments that:

Time and pay are the two elements in every wage

employment relationship that can be measured in
quantitative terms. [For time] in addition to being a critical
aspect of any work exposure’s duration, there is increasing
epidemiological evidence that indicates that long work hours
are an important risk factor for a number of acute and
chronic health outcomes. Time at work structures all other
aspects of daily life. The way in which the workday, the work
week, the work month, and the work year is organized has
profound significance for the life of the worker both on and
off the job.202

Hours of work are seriously regulated in Mainland Tanzania, section 19 of

the Employment and Labour Relations Act, Cap. 366 directs that an
employer shall not require or permit an employee to work more than 12
hours in any day – a day is defined as a period of 24 hours measured from
the time when the employee normally starts work; and the maximum
number of ordinary days or hours that an employee may be permitted or
required to work are: (a) 6 days in any week; (b) 45 hours in any week; and
(c) 9 hours in any day. It should be noted that a week is defined as a period
of 7 days measured from the day the employee normally starts the working
week. Commenting on this provision, the Labour Court observed that:
“working hours are categorized in a way for an employee to work on a
certain reasonable number of hours and days. Accordingly, the normal or
ordinary number of working hours per week is 45 hours. The ordinary
number of working days in a week is 6 days and the normal number of

201
Anxo, D., and Bigsten, A., “Working Hours and Productivity in Swedish Manufacturing,” Vol. 91
Scandinavian Journal of Economics, 1989, pp. 613–619; Barzel, Y., “The Determination of Daily
Hours and Wages,” Vol. 87 The Quarterly Journal of Economics, 1973, pp. 220–238; Crocker,
T.D., and Horst, R.L., “Hours of Work, Labour Productivity, and Environmental Conditions: A
Case Study,” Vol. 63 Review of Economics and Statistics, 1981, pp. 361–368; Lee, J., and Lee,
Y.K., “Can Working Hour Reduction Save Workers?” Vol. 40 Labour Economics, 2016, pp. 25–
36; Pencavel, J., “The Productivity of Working Hours,” Vol. 125 Economic Journal, 2015, pp.
2052–2076.
202
Johnson, J.V., “Long Working Hours, Occupational Health and the Changing Nature of Work
Organization.” Vol. 49 American Journal of Industrial Medicine, 2006, pp. 921–929 at p. 922.

78
hours in a day is 9 hours.”203 Equally, in the case of KUWASA v. Simon
Maduka204 the court ruled that: “[t]o say the least, section 19 (2) (c) of the
ELRA permits maximum 9 working hours per day and therefore 45 hours
per week.”

5.2.2 Overtime
Regarding overtime in workplaces, the law provides that an employer shall
not require or permit an employee to work overtime except in accordance
with an agreement and not for more than 50 overtime hours in any four-
week cycle. Further, the law also makes it clear that an agreement detailing
the agreed overtime may not require an employee to work more than the
12-hour limit as prescribed. Commenting on the agreement for overtime,
the Labour Court in the case of KUWASA v. Simon Maduka (supra)205 made
clear that: “the law allows overtime works subject to agreement between
the parties…. [i]t should be stressed here that overtime works has to be
proved and must be claimed at the end of each month when and as they
accrue.” With regard to overtime payment, the law directs an employer to
pay an employee not less than one and one-half times the employee’s basic
wage for any overtime worked.206 Shields reveals the essence of prohibition
of overtime in workplaces, that: “[p]rolonged periods of long hours may
increase anxiety, strain and irritability. With overtime, individuals can
become fatigued and develop a propensity toward obesity. The cumulative
result can be cardiovascular disease.”207 Shields’ observation is also
supported by Bosch who argues that: “[l]ong work hours have been and
continue to be of enormous concern for the health and well-being of
working people….”208

The Labour Court in Mainland Tanzania has discussed in detail the tenets
behind overtime. For example, in the case of Omary Mwinyimvua and Others
v. M/S Sengo 2000 (T) Ltd209 the Court held that: “[t]hat the extra hours'

203
Geita Gold Mine Limited v. Steve Bicco and 901 others, Labour Revision No. 36 of 2020, HC,
DR, Mwanza (unreported) at p. 22.
204
Application for Revision No. 67 of 2019, HC, DR, Shinyanga (unreported) at p. 8.
205
Ibid., at p. 8 & pp. 9–10. See also the case of Omary Mwinyimvua na Wenzake v. M/S Sengo 2000
(T) Ltd, Revision No. 157 of 2009.
206
Section 19(3), (4) and (5) of the Employment and Labour Relations Act, Cap. 366.
207
Shields, M., “Long Working Hours and Health,” Vol. 11(2) Health Reports, Autumn, 1999, pp.
33–48, at p. 33.
208
Bosch, G., “Working Time: Tendencies and Emerging Issues.” Vol. 138 International Labor
Review, 1999, pp. 131–148.
209
Labour Division, Revision No. 2009, 01/04/2011.

79
work has to be proved; there is no evidence to that effect, had they worked
extra hours; i.e. if they had proved the fact, the same, as submitted by the
respondent's advocate, has to be claimed at end of each month when and as
they accrue." Equally, in Benjamin M. Kaimu v. Real Security Group & Marine
Service210 the Court observed that: “[o]vertime allowances is part and parcel
of employee’s salary. Therefore, it was supposed to be claimed as and
when the claim arose. The claim arises when the salary is due for payment,
the law requires that the claim be lodged within sixty days; see rule 10 (2)
of the Labour Institution (Mediation and Arbitration) GN. 64 of 2007.”

On calculating overtime payments, the Court in Geita Gold Mine Limited v.

Steve Bicco and 901 others211 observed that: “[f]or the purpose of calculating
overtime, the weekly working hours is a yardstick in the sense that any
extra time laboured in excess of 45 hours should be remunerated as
overtime. Further, working hours in any day should not exceed 9 hours in
any day. This compliments the stated 45 weekly working hours and does
not in any case entitle overtime payment by merely exceeding 9 working
hours while within 45 weekly working hours.” In John Mosha v Heaven
Manase Mtu212 it was equally observed that: “[t]he overtime’s allowances
must be claimed when the claim arises. The time limit per Labour
Institution (Mediation and Arbitration) GN. 64 of 2007 is sixty days…the
overtime hours worked had to be proved.” On a similar occasion, and with
regard to proving overtime and payment, the Court in Omary Mwinyimvua
and others v M/S Sengo 2000 (T) Ltd213 held that:

[t]hat the extra hours' work has to be proved; there is no

evidence to that effect, had they worked extra hours; i.e. if
they had proved the fact, the same, as submitted by the
respondent's advocate, has to be claimed at end of each month
when and as they accrue. It is trite law that overtime claims
must be proved. In my view, the employer is required to
prove a dispute rights which is statutory and any agreement
between the employer and the employees. However,
employees have a burden to prove in any dispute of interest
since they are the one who moves the employer to grant their

210
Revision No. 199 of 2011 OCCD 2013.
211
Labour Revision No. 36 of 2020, HC, DR, Mwanza (unreported), pp. 22–23.
212
Revision No. 77 of 2012 LCCD 2013.
213
Labour Division, Revision No. 2009, 01/04/2011.

80
 claims. For instance, if the parties agreed on overtime schedule
that means it is their right and the burden of proof is upon the
employer. On the contrary if the overtime were not agreed
upon then it is upon the employees to prove if they have
worked for extra hours. Therefore, it is my considered opinion
that in the instant case the employees had a duty to prove their
overtime claims.

5.2.3 Night Work

It should be noted that the law also regulates night work to a large
magnitude – the law defines a night as the hours after 20 hours and before
6 hours. Among others, the law prohibits an employer to require or permit:
(a) pregnant employees to work at night – two months before the expected
date of confinement or before that date if the employee produces a medical
certificate – a medical certificate means a certificate issued by a registered
medical practitioner or any other medical practitioner accepted by the
employer, which acceptance may not be unreasonably withheld, that she is
no longer fit to perform night work; (b) mothers to work at night for a
period of two months after the date of birth or before that date if the
mother requests to work and produces a medical certificate that her and the
baby’s health shall not be endangered or after that date if the mother
produces a medical certificate that she is not yet fit to perform night work
or that the baby’s health does not permit the employee to work night shift;
(c) children under the age of 18 years; and (d) an employee who is
medically certified as unfit to do night work.214

The law also gives power to an employer to transfer any employee working
night shift who becomes certified as unfit to do night work unless it is
impracticable so to do. The employer is required to pay an employee at
least 5% of that employee’s basic wage for each hour worked at night and if
the hours worked are overtime hours, then the 5% is to be calculated on the
employee’s overtime rate.215

5.2.4 Compressed Working Week

A compressed working week is an arrangement between the employer and
an employee whereby the latter agrees to work fewer days but longer

214
Section 20 of the Employment and Labour Relations Act, Cap. 366.
215
Ibid.

81
hours each day. It is a reduced work arrangement that allows an employee
to work less days but still earns the ordinary number of statutory hours per
week. It does not mean that an employee is working less but rather the
respective employee is just squeezing the ordinary hours per week into a
shorter timeframe. Section 21 of the Employment and Labour Relations Act,
Cap. 366 permits an employee through a written agreement with the
employer to work up to 12 hours in a day, inclusive of any meal interval,
without receiving overtime pay, save that such an agreement shall not
require or permit an employee to work: (a) more than 5 days in a week; (b)
more than 45 hours in a week; and (c) more than 10 hours overtime in a
week.

5.2.5 Averaging Hours of Work

This is an arrangement whereby the respective employees agree to work
longer hours per day during a certain period and short hours during
another, and their salaries just remain the same. In Mainland Tanzania, it
requires a collective agreement to provide for the averaging of the ordinary
and overtime hours of work over an agreed period.216 However, the law
prohibit such a collective agreement to require or permit an employee to
work more than an average of: (a) 40 ordinary hours of work per week
calculated over the agreed period; (b) 10 hours overtime per week
calculated over the agreed period; and (c) the same shall not permit
averaging for a period longer than a year.

5.2.6 Break and Breast Feeding During Working Hours

The law directs the employer to give an employee who work continuously
for more than 5 hours a break of at least 60 minutes. However, the
employer may as well require an employee to work during a break only if
the work cannot be left unattended or cannot be performed by another
employee. The law further makes it clear that the employer is not obliged
to pay an employee for the period of a break unless the employee is
required to work, or to be available for work, during the break.217 In the
same vein, section 33(10) states that where an employee is breast-feeding a
child, the employer is obliged to allow such employee to feed the child
during working hours up to a maximum of 2 hours per day. Regulation 15

216
Section 22 of the Employment and Labour Relations Act, Cap. 366.
217
Ibid., section 23.

82
of the Employment and Labour Relations (General) Regulations, G.N. No.
47 of 2017 further cements that a female employee shall, for a period of not
less than 6 consecutive months after maternity leave, be allowed to leave
the office for a maximum of 2 hours of his convenience during the working
hours for breast feeding the child.

5.2.7 Daily and Weekly Rest Periods

The law obliges the employer to allow an employee: (a) a daily rest period
of at least 12 consecutive hours between ending and recommencing work;
(b) a weekly rest period of at least 24 hours between the last ordinary
working day in the week and the first ordinary working day of the next
week.218 However, the law directs that a daily rest period may be reduced
to 8 hours if: (a) there is a written agreement to that effect; and (b) the
ordinary working hours are interrupted by an interval of at least 3 hours; or
(c) the employee lives on the premises of the workplace.

It should be noted that a weekly rest period may, by written agreement

between the parties to contract of service, provide for: (a) a rest period of at
least 60 consecutive hours every two weeks; or (b) a reduced weekly rest
period by 8 hours if the rest period in the following week is extended
equivalently. An employee has discretion to work during the weekly rest
period as indicated, if he agrees to do so and provided that the employer
pays such an employee double the employee’s hourly basic wage for each
hour worked during the period.219

5.2.8 Public Holidays

Public holidays are nationally recognized days when most businesses and
other institutions are closed and usually these are non-working days.
Section 25 of the Employment and Labour Relations Act, Cap. 336 provides
that if an employee works on a public holiday specified in the Public
Holidays Act, Cap. 35 then the employer is obliged to pay such an
employee double the employee’s basic wage for each hour worked on that
day.

218
Ibid., section 24.
219
Ibid.

83
5.3 Remuneration
Remuneration is a lifeblood of any employer-employee relationship:
Remuneration is defined as the total value of all payments, in money or in
kind, made or owing to an employee arising from the employment of that
employee.220 The law directs the employer to pay an employee any
monetary remuneration to which the employee is entitled under the
following terms: (a) during working hours at the place of work on the
agreed pay day; (b) in cash, unless the employee agrees otherwise, in which
case the payment is to be made either by, one; cheque payable to the
employee, and two; direct deposit into an account designated by the
employee in writing; and (c) in a sealed envelope, if the payment is made in
cash or by cheque. And each payment made to an employee is to be
supported by a written statement of particulars which must accompany the
payment such payment is in cash or by cheque; or the same must be given
to the employee in a sealed envelope if the payment is by direct deposit.221
Similarly, regulation 13 of the Employment and Labour Relations (General)
Regulations, G.N. No. 47 of 2017 emphasise that irrespective of the type of
contract or the basis of employees’ remuneration, payment thereof is to be
done monthly or in any other period agreed by the parties basing on the
nature or technical requirements of the job; and every employee is entitled
to receive a written statement of particulars222 that supports remuneration
paid.

Section 28 further obliges the employer not to make any deduction from an
employee’s remuneration unless: (a) the deduction is required or permitted
under a written law, collective agreement, wage determination, court order
or arbitration award; or if such an employee in writing agrees to the
deduction in respect of a debt. And any deduction may be made to
reimburse an employer for loss or damage only if: (a) the loss or damage
occurred in the course of employment and was due to the fault of the
employee; (b) the employer has submitted to the employee, in writing, the
cause, the amount and calculation of the debt; (c) the employer has given

220
Section 4 of the Employment and Labour Relations Act, Cap.366.
221
Ibid., section 27(1) and (2).
222
The same regulation directs that a written statement of particulars issued shall be contained with
the following particulars: (a) name of employee; (b) date, month and year of payment in respect
of which payment is made; (c) name of employer or logo; (d) employment or check number; (e)
statutory deductions; (f) other deductions; (g) gross or basic salary; and (h) net salary.

84
the employee a reasonable opportunity to challenge the cause, amount or
calculation; (d) the total amount of the debt does not exceed the actual
amount of the loss or damage; (e) the total deductions from the employee’s
remuneration do not exceed one quarter of the employee’s remuneration in
money. The employer who deducts an amount from an employee’s
remuneration for payment to another person is obliged to pay the amount
to such person in accordance with any requirements specified in the
agreement, law, court order or arbitration award. Commenting on the right
to remuneration and the modality of payment, the Labour Court in
Elizabeth Silayo v. Halmashauri ya Manispaa Morogoro (supra) at p. 7 has this
to say:

One of employees’ rights is the total value of all payments, in

money or in kind, made or owing to an employee arising from
the employment is payable by the employer. It is called
remuneration. The mode of payment of such remuneration is
through cash payment, a cheque or direct deposit into an
account designated by the employee in writing. In the case of
paying by cash or cheque, the employer must ensure that
remuneration is given to the employee in a sealed envelope.
Similarly, where an employee receives remuneration by direct
deposit in an account, the employer must also give the written
statement of particulars relating to remuneration in a sealed
envelope.

In the case of Iqra Academy (Pre - Primary School) v. Hamza Selemani Kilongo223
the Labour Court relied on salary slips as evidence of contract of service, it
held: “[m]y perusal of the Commission's typed proceedings has revealed at
page 5 the fact that, the respondent did tender salary slips evidencing his
employment with the respondent which was admitted as Exhibit A 1, thus
it is plain clear that the respondent was employed by the applicant not as
part time employee as he managed to substantiate his employment status
with salary slips.” Thus, the written statement of particulars relating to
remuneration are of essence in industrial relations.

The employer is not required or permitted to instruct an employee to: (a)

repay any remuneration except for overpayments previously made by the

223
Application for Revision No. 02 of 2018, HC, LD, Moshi (unreported) at p. 7.

85
employer resulting from an error in calculating the employee’s
remuneration; or acknowledge receipt of an amount greater than the
remuneration actually received.224

5.4 Leave
Leave is an authorised absence from work for any reason permitted by
labour law or industrial practices. In Mainland Tanzania, an employee with
less than 6 months service is not entitled to paid leave, however an
employee employed on a seasonal basis is entitled to such paid leave; and
equally an employee, with less than 6 months service and who has worked
more than once in a year for the same employer, is entitled to paid leave if
the total period worked for that employer exceeds 6 months in that year.225

5.4.1 Annual Leave

Annual leave is a period of time that an employee is allowed to be absent
from work each year. It allows such an employee to take time off from
work so that he can rest and re-energise.226 Annual leave is provided under
section 31 of the Employment and Labour Relations Act, Cap. 366; the law
directs the employer to grant an employee at least 28 consecutive days’
leave in respect of each leave cycle, and such leave must be inclusive of any
public holiday that may fall within the period of leave. The law makes it
clear that the number of days for annual leave may be reduced by the
number of days during the leave cycle which, at the request of the
employee, the employer granted that employee paid occasional leave. The
employer is given a discretion to determine when the annual leave is to be
taken provided that it is taken no later than: (a) 6 months after the end of
the leave cycle; or (b) 12 months after the end of the leave cycle if, one; the
employee has consented; and two; the extension is justified by the
operational requirements of the employer. The employer is not required or
permitted to allow an employee to take annual leave in place of any leave
to which the employee is entitled. But, with an employee’s consent, 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 2 years.

224
Section 28(5).
225
Section 29.
226
Wooden, M., and Warren, D., “Paid Annual Leave and Working Hours: Evidence from the
HILDA Survey,” Vol. 50(4) Journal of Industrial Relations, 2008, pp. 664–670.

86
The employer is equally obliged to ensure that no employee is continuously
working in any leave cycle without applying for annual leave – this is
notwithstanding any agreement to work for payment in lieu of annual
leave.227 Regarding payment, the law obliges the employer to pay an
employee the remuneration such employee would have been paid had such
employee worked during the period of leave before the commencement of
the leave. In this regard, the employer is obliged to pay such employee 1-
month salary in lieu of annual leave to which such employee is entitled or
was called upon to work. The law also obliges the employer to pay an
employee a pro rata amount228 for annual leave accrued as per the law upon
termination of employment; or at the expiry of each season in respect of an
employee employed on a seasonal basis. The law also provides that an
employee is not entitled to be paid any pro rata amount for accrued annual
leave if such employee has not taken the leave within the periods and
circumstances prescribed under the law.

The law also direct that an employee is obliged to comply with procedures
for applying an annual leave that are set by the employer.229 In the case of
William Ben Edictor v. Platnum Credit Limited (supra) at p. 22 the Labour
Court held that: “It is common practice that an employee's leave must be
approved by the employer, if not so approved; the employee is deemed to
be in office or else will be blamed for absenteeism.” Similarly, regarding the
duty to comply with procedures in taking up annual leave, the Court
observed that:

It is clear that [the employee] proceeded on leave without first

obtaining an approval. It is trite that, a failure by an employee
to submit or maintain accurate leave records may be grounds
for corrective or disciplinary action, up to and including
termination of an employee from his/her employment….
[t]hat, in the circumstances of the case and, given the findings

227
Regulation 14 of the Employment and Labour Relations (General) Regulations, G.N. No. 47 of
2017.
228
The pro rata amount of annual leave is calculated at the rate of one day’s basic wage for every 13
days the employee worked or was entitled to work.
229
Regulation 14 of G.N. No. 47 of 2017.

87
 that the Respondent had proceeded on leave without
permission, his termination was justified on that ground.230

5.4.2 Sick Leave

This is a period of time that an employee is allowed to be away from work
due to illness. Section 32 of the Employment and Labour Relations Act,
Cap. 366 grant an employee a sick leave for at least 126 days in any leave
cycle – to be calculated as follows: (a) the first 63 days must be paid full
wages; and (b) the second 63 days must be paid half wages. However, the
employer is not required to pay such employee for sick leave if: (a) such
employee fails to produce a medical certificate; or (b) the employee is
entitled to paid sick leave under any law, fund, or collective agreement.

5.4.3 Maternity Leave

It is a period of absence from work granted to a mother employee before
and after the birth of her child or children. The law under section 33 of the
Employment and Labour Relations Act, Cap. 366 directs that an employee
shall issue notice to the employer of her intention to take maternity leave at
least 3 months before the expected date of birth and such notice shall be
supported by a medical certificate. As such, an employee may commence
maternity leave: (a) at any time from 4 weeks before the expected date of
confinement; or (b) on an earlier date if a medical practitioner certifies that
it is necessary for such employee’s health or that of her unborn child. The
law prohibits an employee to work within 6 weeks of the birth of her child
unless a medical practitioner certifies that she is fit to do so. It is equally
directed that such employee may resume employment on the same terms
and conditions of employment at the end of her maternity leave.

The law also prohibits the employer to require or permit a pregnant

employee or an employee who is nursing a child to perform work that is
hazardous to her health or the health of her child. Generally, an employee
is entitled, within any leave cycle, to at least: (a) 84 days paid maternity
leave; or (b) 100 days paid maternity leave if such employee gives birth to
more than one child at the same time. Such an employee is equally entitled
to an additional 84 days paid maternity leave within the leave cycle if the
child dies within a year of birth. Employers are only obliged to grant paid

230
Unilever Tea Tanzania Ltd v. Thomas Okello Atito, Revision No. 256 of 2019, HC, LD, DSM
(unreported) at pp. 25–26.

88
leave for 4 terms only of maternity leave to every female employee. It
should be noted that where an employee needs to perform work that is
hazardous to her health or that of her child, then the employer is obliged to
offer such an employee suitable alternative employment, if practicable, on
terms and conditions that are no less favourable than her terms and
conditions. As alluded, the employee is required to comply with the law
before taking maternity leave; in the case of FABCAST Schools v. Agnes
Mathew Hape231 at pg. 5 & 7 the Court observed that:

Notice of three months [of her intention to take maternity

leave] is required. More so, medical certificate is mandatory….
[m]ore so, leave sought by respondent, did not follow
procedure laid down by Section 33(1) of the Employment and
Labour Relations Act, Act No. 6 of 2004. Respondent on her
opening statement at CMA admitted that she did neither give
notice within 90 days nor did she tendered medical certificate
to justify request for maternity leave…. By proceeding on
leave without approval, amounts to absconding from
employment. In any employer and employee relationship
rules and law applicable must be adhered, to avoid chaos on
industrial relations.

5.4.4 Paternity Leave

This is a period of absence from work granted to a father employee after
the birth of his child or children. Section 34(1(a) of the Employment and
Labour Relations Act, Cap. 366 provides that during any leave cycle, a
father employee is entitled to: (a) at least 3 days paid paternity leave if, one;
the leave is taken within 7 days of the birth of a child; and two; such
employee is the father of the child. However, the law does not indicate the
manner through which a father employee can prove that he is indeed the
father of the inborn, and the kind of fatherhood for purposes of paternity
leave.

5.4.5 Compassionate Leave and other Forms of Leave

Compassionate leave is a period of absence from work granted to an
employee as the result of particular personal circumstances, especially the
death of a close relative. Section 34(1)(b) of the Employment and Labour

231
Revision No. 34 of 2019, HC, LD, DSM (unreported).

89
Relations Act, Cap. 366 provides that during any leave cycle an employee is
entitled to at least 4 days paid leave for any of the following reasons: (i) the
sickness or death of the employee’s child; and (ii) the death of the
employee’s spouse, parent, grandparent, grandchild or sibling. Another
category of leave is sabbatical leave – this is granted to an employee as ‘a
break from work’ during which such an employee can pursue his interests
such as research, writing, travelling, taking political posts, to name just a
few.

5.5 Unfair Termination of Employment

As correctly observed by the Labour Court in Mohamedi Kijida v. Everything
Dar. Com Ltd (supra) and Mohamedi Kijida v. Everything Dar. Com Ltd (supra)
that, under the existing labour laws, the employee has a legitimate right to
expect that if everything remains constant will be in the employment
service throughout the contractual period; as such, termination of
employment is an exception thereof, and the employer has an obligation to
terminate an employee fairly. The law under section 37 of the Employment
and Labour Relations Act, Cap. 366 provides that it is unlawful for the
employer to terminate the employment of an employee unfairly – and a
termination of employment by the employer is unfair if such employer fails
to prove: that the reason for the termination is valid in that such reason is a
fair reason as it related to the employee’s conduct, capacity or
compatibility; or based on the operational requirements of the employer,
and that the employment was terminated in accordance with a fair
procedure.

Interesting, the law makes it clear that it is not a fair reason to terminate the
employment of an employee: (a) for the reason that the employee, one;
discloses information that such employee is entitled or required to disclose
to another person under the law, two; fails or refuses to do anything that
the employer may not lawfully permit or require the employee to do, three;
exercises any right conferred by agreement and laws of the land, four;
belongs, or belonged, to any trade union, or five; participates in the lawful
activities of a trade union, including a lawful strike: (b) for reasons, one;
related to pregnancy, two; related to disability, and three; that constitute
discrimination under the labour law.232 In deciding whether a termination

232
Ibid.

90
by an employer is fair, an employer, arbitrator or Labour Court is entitled
to take into account relevant legislation in place.233

Based on the foregoing, Madinda rightly points out that: “unfair

termination of employment refers to the process of dismissing employee in
the absence of a substantial reason. It is the removing of someone from a
work for reasons which are not legal.”234 The Labour Court in Alex Eriyo
and others v. Bank of Africa235 has this to say:

Before embarking on discussing the grounds

for revision, I must point out that the
established legal principle is that for
termination of employment to be considered
fair it should be based on valid reason and
fair procedure. That is the import of section
37 (2) of the Employment and Labour
Relations Act No. 6 of 2004. Besides, Article 4
of the International Labour Organization
Convention (ILO) 158 of 1982 provides that:
"The employment of a worker shall not be
terminated unless there is a valid reason for
such termination connected with the capacity
or conduct of the worker or based on
operational requirements of the undertaking
establishment or service.

On a similar occasion, the Labour Court had an opportunity to discuss the

essence of prohibiting unfair termination – such essence is squarely pegged
on the right to work of employees as human beings; it observed that: “the
right to work includes the right to security and stability of employment.
This implies the employee has a right not to lose one's job unfairly.

233
Ibid.
234
Madinda, A.S., “Unfair Termination of Employment at Workplaces,” Vol. 1(5) International
Journal of Emerging Trends in Science and Technology, 2014, pp. 764–769 at p. 765. See also
Pittard, M., “Back to the Future: Unjust Termination of Employment under the Work Choices.”
Vol. 19 Australian Journal of Labour Law, 2016, pp. 225–241; and Odeku, K.O., “Termination of
Domestic Workers’ Employment: Unfair Labour Practice Re-visited,” Vol. 5(10) Mediterranean
Journal of Social Sciences, 2014, pp. 672 –678.
235
Application for Labour Revision No. 3 of 2020, HC, LD, Mtwara (unreported) p. 15. See also the
Evaristo Miho v. Tanzania Posts Corporation, Application for Labour Revision No. 2 of 2020,
HC, LD, Mtwara (Unreported) at p. 15; and Tanzania Railways Limited v. Mwinjuma Said
Semkiwa, Revision No. 239 of 2014, HC, LB, DSM (unreported).

91
Industrial claims should be instituted to provide legal protection against
unfair dismissals and retrenchments. Such incidents are common within
the context of privatization as carried out by the government. In case of
unjustified and unlawful dismissals, the employee has the right to
indemnity or to reinstatement on the job.”236

5.5.1 Substantive and Procedural Fairness

As alluded, there are legal reasons which may justify termination of
employment by the employer, namely, (a) misconduct; (b) incapacity; (c)
incompatibility; or (d) employer's operational requirements, of which their
absence justifies unfair termination i.e., lack of substantive fairness – see
rule 9(4) of the Employment and Labour Relations (Code of Good Practice)
Rules, 2007 (“Code of Good Practice, 2007”). Equally, the employer must
observe fair procedure in line with rule 8(1) of the Code of Good Practice,
2007 which provides, among others, that the employer may terminate the
employment of an employee if he: (a) complies with the provisions of the
contract relating to termination; (b) complies with the provisions of the law
concerning notice, severance pay, transport to the place of recruitment and
payment; and (c) follows a fair procedure before terminating the contract
i.e., procedural fairness.

It should be noted that the absence of both substantive and procedural

fairness or one of the two constitutes an unfair termination in the eyes of
the law. In Evaristo Miho v. Tanzania Posts Corporation (supra) the Court
observed at p. 16 that: “[i]t cannot be gainsaid that the employer bears the
burden of proving that the termination of the employee was for valid and
fair reason i.e., substantive fairness. Likewise, it is provided under section
37 (2) (c) of the Employment and Labour Relations Act that a termination of
employment by the employer is unfair if such employer fails to prove that
the employment was terminated in accordance with a fair procedure i.e.,
procedural fairness.” Equally, in Marwa Nyaiki v. Geita Gold Mining
Limited237 the Court observed that: “our employment and labour regime

236
Stanbic Bank (T) Ltd v. Iddi Halfani, Revision No. 858 of 2019, HC, LD, DSM (unreported) at p.
16. See also Simon Mwita Mlagan and another v. KIRIBO Limited, Labour Revision No. 11 of
2020, HC, DR, Musoma (unreported) at pp. 5–6 where the court ruled that: “It is trite law that the
employer cannot under the current labour laws regime enjoy his previous right of hire and fire. He
can hire as and when he wishes but once he hires, he can only fire (terminate) for valid reason(s)
and to do so by observing the laid procedures. There must be procedural and substantive fairness
before an employee is terminated.”
237
Labour Revision Case No. 42 of 2019, HC, DR, Mwanza (unreported) at p. 9.

92
recognize and gives a 'clean bill of health' to a termination of employment,
and consider it fair, if two distinct but related limbs of fair termination are
proved. These are that the termination process followed a fair procedure;
and that reasons for the said termination were also fair. In legal parlance,
these are known as fairness of reason and fairness of procedure…thus, a
tribunal that conducts an assessment of substantive fairness must,
inevitably, establish as to why the employer terminated the employee and
whether the reason for such termination is sufficient to justify taking the
termination route. This necessitates taking stock of the validity of the
reasons and ascertain if such reasons are sound, defensible, well founded,
not capricious, fanciful, spiteful or prejudicial (see Grogan, J on Workplace
Law, 10 Edition, at pages 217-218).”

5.5.1.1 Misconduct
The law does not define what amount to misconduct for purposes of
substantive fairness, but it has given employers a ‘blank cheque’ to define it
through employment policies – see rule 11 of the Code of Good Practice,
2007. Commenting on the relevance and usefulness of employment policies
in workplace, the Labour Court held that:

As I stated above, the contract between the two

parties in this case was not that detailed. There was
no any Employer's Disciplinary Guideline Hand
Book or Human Resource Manual which contains
general statement of policy and procedures at the
workplace which were brought to the attention of
the applicant and the CMA. The relevant guidelines
would have guided the applicant to know as to who
the right person was to be sued on behalf of his
employer. In principle, the terms of the employees'
contract may either be guided by the individual
employee's contract of the employment or the
provisions of the manual. However, the provision of
the manual policies does not automatically govern
individual contracts of employment in the
workplace but just expounds workplace policies
and does not automatically become incorporated to
the employee's individual contract of employment.

93
 Thus, since the provisions of the work policies are
not impliedly incorporated in individual employee's
contract must have a clause expressly adopting the
contents of those policies.238

The term misconduct in industrial relations may be defined as a conduct

that violates established work rules or is obviously detrimental to the best
interests of the employer, employees, or employer’s customers.239
Employees are therefore not expected to reveal and act contrary to
employment policies because, in the Labour Court’s words, “[d]iscipline at
work is very essential for orderly administration of day-to-day operations
at workplace. To the contrary, affects productivity and advancement of
industries and economy of the country at large.”240 It can safely be argued
that misconduct exists either through a law(s), in a disciplinary code, the
employee's contract of service, a collective agreement or any other related
policies on the company and that the employee actually broke the rule by
mounting a thorough investigation and adducing evidence that links the
employee and the disciplinary offence levelled against the employee.

In Rapoo v. Metropolitn Botswana (Pty) Ltd £2006J (1) BLR 186 (IC) the court,
while referring to Le Roux and Van Nierkerk’s work, titled “The South
Africa Law of Dismissal” (1994) ruled that misconduct in the employment
context can take various forms, including theft, fraud, and other forms of
devious conduct such as providing false information, non-disclosure of
information, and pilfering. The court went ahead to rule that: “misconduct
is a generic term which embraces all forms of conduct involving
misbehaviour and deception on part of the employees and fiduciary duty
owed by an employee to the employer generally renders any misconduct a
material breach of the employment contract, justifying summary
dismissal.” As such, in Nassoro Khatau Yahya v. Toyota Tanzania Ltd241 the
Labour Court of Tanzania similarly observed that, in common law, the
employee is required to act in good faith towards the employer and that, an

238
Gilbert Katonda v. Tanzania Assemblies of God Kisegese, Revision No. 12 of 2019, HC, LD,
Morogoro (unreported) at pp. 9–10 “
239
Zuehl, J.J., and Sherwyn, D., “Identifying uniform employment-termination practices for
multinational employers,” Vol. 42(5) Cornell Hotel and Restaurant Administration Quarterly,
2001, pp. 72–85, at p. 74.
240
GSM Tanzania Limited v. Iddi M. Kitambi, Labour Revision No. 197 of 2019.
241
Revision No. 192 of 2016 (unreported).

94
employee who is guilty of a misconduct breaches the common law duty to
act in good faith towards the employer.

The law also makes it clear that the employer, arbitrator or judge who is
required to decide whether a termination on misconduct is unfair or
otherwise must consider: (a) whether or not such employee contravened a
rule or standard regulating conduct relating to employment; and (b) if such
rule or standard was contravened, whether or not it is reasonable, it is clear
and unambiguous, such employee was aware of it, or could reasonably be
expected to have been aware of it, it has been consistently applied by the
employer, and the termination is an appropriate sanction for contravening
it. And normally the first offence of an employee is not a justification for
termination unless it is proved that the misconduct is so serious that it
makes continued employment relationship intolerable, such acts include
gross dishonesty; willful damage to property; willful endangering the
safety of others; gross negligence; assault on a co-employee, supplier,
customer, or a member of the family of, and any person associated with,
the employer.242 In Alex Eriyo and others v. Bank of Africa it was observed
that:

Termination of contract of employment for

misconduct is expected to be a measure of last
resort, reserved for serious misconduct or for
repeated misconduct where the employee has
not heeded corrective disciplinary action such
as warnings. The fundamental question to be
asked is whether the misconduct committed
by the employee renders the continuation of
employment relationship intolerable. There is
nothing on record showing that the
misconduct, if at all existed, rendered the
continuation of employment relationship
intolerable. That aside, the Arbitrator was,
before arriving at the finding that the
termination by the respondent was fair and
appropriate, enjoined to consider the other
factors such as the lengthy of service of the

242
Rule 12 of the Code of Good Practice, 2007.

95
 applicants, their previous disciplinary
records, their personal circumstances, the
nature of their job and circumstances leading
to the infringement itself.243

The procedures i.e., procedural fairness for terminating an employee based

on misconduct are provided under rule 11 to 14 of the Code of Good
Practice, 2007 read together with the Guidelines for Disciplinary, Incapacity
and Incompatibility Policy and Procedures contained in this Code. The
Labour Court in Alex Eriyo and others v. Bank of Africa (supra) summarises
these procedures for terminating an employee on misconduct, it observes at
pp. 22–24 that: “[a]ccording to the Guidelines for Disciplinary, Incapacity
and Incompatibility Policy and Procedures made under the Code of Good
Practice, a brief procedure is as follows.

A Disciplinary Authority makes preliminary investigation by framing

charges specifying offences, attaching documents and then serve them to
the employees concerned requiring them to respond in not less than 48 hrs.
Thereafter, the Disciplinary Authority receives and considers the
employees' responses. If the Authority thinks that the employees were in
breach and needs to impose a penalty, a Disciplinary Committee is formed
to conduct hearing. It has to be given the charge or charges, responses and
all evidence.

The Disciplinary Committee then notifies the accused employees of the

day, date, time, and place of hearing. The letter summoning the accused
employees has to inform them the right to select any other employees to
accompany them. The number of members of the Disciplinary Committee
has to be between three to seven. During the hearing, there will be
employer's representative who is not the Disciplinary Authority and the
employees with their accompanying representatives. The hearing of by the
Disciplinary Committee has to be in two phases.

In the first hearing phase, the charge is read over to the accused employee,
witnesses are called, and documentary evidence tendered. This must be in
the presence of the accused employee who is to ask questions to each
witness. The second hearing phases relates to the employer's defence which

243
Application for Labour Revision No. 3 of 2020, HC, LD, Mtwara (unreported) at p. 20. See also
Evaristo Miho v. Tanzania Posts Corporation, Application for Labour Revision No. 2 of 2020,
HC, LD, Mtwara (Unreported) at p. 26.

96
starts with reading the responses submitted to the employees. Going
through evidence submitted and asking questions to the employee
regarding his response and evidence.

The employees should be allowed to bring witnesses if they so wish. At the

end of the hearing the representative of the employer, if any, who is not a
member of the Disciplinary Authority, and the employees should be asked
to leave so that the Committee remains alone to discuss what transpired at
the hearing and then make recommendations. The recommendations
should contain: whether charges have been proved or not, state the reasons,
state any facts which mitigates the gravity of the offence and state any fact
which in the opinion of the committee is relevant.

The Report of the disciplinary committee and the Hearing Form are
submitted: one copy to the Disciplinary Authority for action and one copy
to the accused employees. After receiving the Report of the Disciplinary
Committee and the Hearing Form, the Disciplinary Authority shall study
the recommendations and take appropriate action such as imposition of
penalty or not. In case of imposition of the penalty, the charged employees
must be given a chance to mitigate. The Disciplinary Committee is
governed by the rules of natural justice.”244

See also the case of Tanzania International Container Terminal Service (TICTS)
v. Fulgence Steven Kalikumtima and others245 where the Court held that: “Rule
13 of the Employment and Labour Relation (Code of Good Practice) Rules,
GN 42 of 2007 provide very clearly the procedure for termination of
employment. First and foremost, this Rule requires the employer to
conduct an investigation to ascertain whether there are grounds to charge
the employee concerned and thereafter conduct disciplinary hearing. Rule
13 (1) of the GN. 42 of 2007 states: "The employer shall conduct an
investigation to ascertain whether there are grounds for a hearing to be
held."

244
The procedure for termination for misconduct is provided in rule 13 of the G.N. No. 42 of the
2007. The procedures provided includes that the employer shall conduct investigation to ascertain
grounds for a hearing; where a hearing is to be held, the employer shall notify the employee of the
allegations; hearing shall be held by and finalized within a reasonable time; evidence from the
employer and defence from employee shall be presented; after the hearing, the employer shall
communicate the decision and furnish the decision to the employee and in brief the reason for the
decision.
245
Revision No. 471 of 2016, HC, LD, DSM (unreported) at p. 12.

97
On a similar occasion, the Court in Desktop Production Ltd v. Joyce Dionise
Katto246 ruled that: “[t]he procedure for termination for misconduct is
provided in rule 13 of the G.N. No. 42 of the 2007. The procedures provided
includes that the employer shall conduct investigation to ascertain grounds
for a hearing; the employer shall notify the employee the time and place
where a hearing is to be held; the employer shall notify the employee of the
allegations; hearing shall be held by and finalized within a reasonable time;
evidence from the employer and defence from employee shall be
presented; after the hearing, the employer shall communicate the decision
and furnish the decision to the employee and in brief the reason for the
decision.”

As also alluded above, gross negligence falls within the category of

misconduct which may justify termination of employment; the Labour
Court in Alex Eriyo and others v. Bank of Africa (supra) at p. 18 has this to say:
“[t]he Arbitrator should be reminded that gross negligence is an offence
which had to be proved by establishing the existence of its elements as
follows: one, the employee must owe a duty to the employer. Two, the
employee must fail to perform such duty. Three, the employer must suffer
harm or injury and four, such harm or injury must be linked to the failure
of the other party to perform his duty. However, it should also be borne in
mind that a negligent action only amounts to gross negligence if the
following other elements are proved; namely, the employee acting in
negligence was aware of the potential consequences of his or her action or
omission and that he or she committed the negligence intentionally in
order to cause harm or injury to the employer.” With regard to gross
insubordination, the Labour Court at pp. 18–19 observes that: “[g]ross
insubordination is among the misconduct which may justify termination of
the employment according to rule 12 (3) (f) of Employment and Labour
Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007.

Further, rule 12 (4) of the GN No. 42 of 2007 provides for the two principles
that should be considered in determining whether or not to terminate the
employee. The first one is the seriousness of the misconduct in the light of
the nature of the job and the circumstances in which it occurred and the
likelihood of repetition. The second one is the circumstances of the

246
Revision No. 103 of 2019, HC, LD, DSM (unreported) at pp. 10–11.

98
employee such as the employee's employment record, length of service,
previous disciplinary record, and personal circumstances.”247

At p. 20 the Court in Jamal Mruma’s Case (supra) concluded that: “I agree

with both parties that insubordination is the act of the employee of not
adhering to the directive of the employer. It also involves disrespect and
abusive language addressed to senior officers in disrespectful manner, thus
the termination was justified.”

It should be borne in mind that conducting an investigation of the alleged

misconduct before disciplinary proceedings is mandatory; as well as the
disciplinary hearing committee for purposes of terminating an employee
must be chaired by a senior and neutral officer as it was ruled in David
Kitangoi Olais and another v. Happy Sausages Limited248 at pp. 12–13 that:
“[n]evertheless, it is doubtful if procedures were followed in order for the
termination to be fair. In my view, failure to conduct investigation by the
employer while she initially suspended her employees pending
investigation which he did not conduct and her failure to hire a senior
manager to chair the disciplinary hearing committee against the employees
[how can a disciplinary hearing against a superior and senior officer be
chaired by a junior officer?].… I am of the same holding as that of the
arbitrator that the employees' termination was procedurally unfair.”

5.5.1.2 Incapacity
Incapacity is also a legal ground upon which an employee may be
terminated i.e., substantive fairness. In law, an employee's incapacity may
be due to ill health, injury, or generally poor work performance.249 The
procedures i.e., procedural fairness for terminating an employee on
incapacity are outlined in rule 15 through 21 of the Code of Good Practice,
2007 read together with the Guidelines for Disciplinary, Incapacity and
Incompatibility Policy and Procedures contained in this Code.

With regard to ill health or injury: the law makes it clear that an employer
who wants to terminate an employee on grounds of ill health or injury
must take into account certain factors to determine the fairness of the

247
Registered Board of Trustees of LAPF, Dodoma v. Jamal Mruma, Consolidated Revision
Application No. 65 and 114 of 2019, HC, LD, DSM (Unreported).
248
Consolidated Labour Revision Applications No. 11 and 16 of 2019, HC, DR, Arusha
(unreported).
249
Rule 15(1) of the Code of Good Practice, 2007.

99
reason, these factors are: 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 arrangements. In the event that an employee is injured at work or
is incapacitated by a work-related illness then the employer must go to
greater lengths to accommodate such employee – the former is to be guided
by an opinion of a registered medical practitioner, in determining the cause
and degree of any incapacity and whether it is of a temporary or
permanent nature.

If such an employee is temporarily unable to work, or likely to be absent

for unreasonably long period, the law direct that the employer must
investigate the extent of the incapacity or the injury to see if he can be
accommodated through alternative work or early retirement or other such
possible alternatives. In any event, the law bars termination of employment
merely on the basis of HIV/AIDS status; the law instructs that HIV/AIDS
infected employees must continue to work under normal conditions in
their current employment for as long as they are medically fit to do so.250

The employer, under rule 21 is obliged to investigate an employee's

incapacity due to ill-health or injury and the victim employee must be
consulted in the process of the investigation and be advised of all the
alternatives considered. Equally, the employer is required to consider the
alternatives advanced by such employee and, if not accepted, must give
reasons. An employee is entitled to be represented by a trade union
representative or fellow employee in the consultations. The law makes it
clear that before deciding on termination of employment of an employee
for ill-health or injury, the employer is obliged to call a meeting with the
victim employee accompanied with a fellow employee or trade union
representative who will assist such employee. In the meeting, the employer
must state the reasons for action to be taken and allow the employee
and/or the representative to make representations before the ultimatum.

The employer must thus consider any representations made and, if these
are not accepted, then he must explain. And lastly, the outcome of the
meeting is to be communicated to an employee in writing, with brief

250
Rule 13, 14, 15, 16, 17, 18, 19, 20, and 21 of the Code of Good Practice, 2007.

100
reasons. In Msafiri Busaji v. Sandvoile Mining and Construction Tanzania251 the
Court observed that:

Termination on grounds of ill health is

considered unfair where the employer failed
to conduct an inquiry in terms of Rule 19 (1)
to (a) of G.N 42/2007….[t]here was no proof
that in the opinion of an independent
registered Medical Practitioner, the ill health
existed, and without such information, the
question whether the employer has taken
reasonable steps to accommodate employee's
ill-health, including consulting on possible
alternative to termination cannot be properly
decided.

Regarding poor work performance: the law obliges the employer, arbitrator
or judge who determines whether a termination for poor work
performance is fair to consider: (a) whether or not the employee failed to
meet a performance standard; (b) whether the employee was aware, or
could reasonably be expected to have been aware, of the required
performance standard; (c) the reasons why the employee failed to meet the
standard; and (e) whether the employee was afforded a fair opportunity to
meet the performance standard. In any event, performance standards must
not be unreasonable. The law also makes it clear that proof of poor work
performance is a question of fact to be determined on a balance of
probabilities.

Before termination for poor work performance, the employer is obliged to

investigate the reasons for unsatisfactory performance and give
appropriate guidance, instruction, or training, if necessary, to the victim
employee. The law further demand that such an employee must be given a
reasonable time to improve depending on the nature of the job, the extent
of the poor performance, status of the employee, length of service, and
employee's past performance record.

251
Revision No. 21 of 2013. See also Mashukuru Saidi v. Omega Fish, Labour Revision No. 41 of
2019, HC, DR, Mwanza (unreported) at pp. 4–5.

101
 However, if the employee continues to perform unsatisfactorily, then the
employer is mandated to warn such employee that employment may be
terminated if there is no improvement. Before finalizing a decision to
terminate the employment for poor work performance, the employer is
obliged to call a meeting with the employee, who shall be allowed to have a
fellow employee or trade union representative to provide assistance. At the
meeting, the law demands the employer to outline reasons for action to be
taken and allow the employee and/or the representative to make
representations. Lastly, the employer must consider any representations
made and, if these are not accepted, explain why; and the outcome of the
meeting is be communicated to the employee in writing, with brief
reasons.252

The Labour Court in Denis Bwiru v. Bulyanhulu Gold Mine Limited253 had an
opportunity to discuss and summarise the procedures for terminating an
employee on ground of incapacity, it held that: “[t]he law is clear with
regard to fairness of procedure to follow due to incapacity or ill-health or
injury that, the following have to be complied by the employer; one,
investigation, two, consultation, three, reasonable accommodation, four,
alternative employment and five, an enquiry or hearing as provided for under
Rule 21 of the Employment and labour Relations (Code of Good Practice).”
(Emphasis supplied)

5.5.1.3 Incompatibility
Rule 22 of the Code of Good Practice, 2007 and the Guidelines for
Disciplinary, Incapacity and Incompatibility Policy and Procedures
contained in the Code define what amounts to incompatibility and the
procedures to follow in terminating an employee on this basis. The rule
states that incompatibility constitutes a fair reason for termination – and
there are two types of incompatibility, namely; (a) unsuitability of the
employee to his work due to his character or disposition; and (c)
incompatibility of the employee in his work environment in that he relates
badly with fellow employees, clients or other persons who are important to
the employer’s business. It should be understood that rule 22 treats
incompatibility in a similar way to incapacity for poor work performance.

252
Nelson Mwemezi v. Tanzania Women's Bank Plc, Labour Revision No.47 of 2019, HC, DR,
Mwanza (unreported) at pp. 12–13.
253
Labour Revision No. 69 of 2018, HC, LD, Shinyanga (unreported) at p. 13.

102
As such, all procedural steps i.e., procedural fairness required for
terminating an employee on poor work performance, as alluded above, are
applicable to incompatibility as well. Therefore, an employer who is
contemplating to terminating an employee based on incompatibility must
comply with all procedural steps for poor work performance.

More importantly, the employer is required to record the incidents of

incompatibility that gave rise to concrete problems or disruption; then
warn and counsel the employee before termination, by advising such
employee of unacceptable conduct; people who have been adversely
affected by that conduct; and the remedial action proposed. Lastly, before
terminating employment on this ground, the employer is obliged to give
the employee a fair opportunity to consider and reply to the allegation of
incompatibility; remove the cause for disharmony; or propose an
alternative to termination.254

5.5.1.4 Operational Requirements and/or Retrenchment and/or

Redundancy
Termination on operational requirements is comprehensively documented
under rule 23 through 25 of the Code of Good Practice, 2007 read together
with Retrenchment Procedure attached to the Code and section 38 of the
Employment and Labour Relations Act, Cap. 366. What amount to
operational requirements and/or retrenchment is clearly defined by the
Labour Court vide the case of Isaack Chambo & 5 others v. Shanta Mining Co.
Limited255 where it held that: “I find it worthy to firstly underline the
description of the term "retrenchment." The term refers to the termination
of an employee due to operational requirements of the law. Section 4 of the
ELRA defines operational requirement of the law, as requirements based
on the economic, technological, structural, or similar needs of the employer.
The employer may thus, through this means, decide to reduce the number
of his employees in order to protect his business by either increasing the
profit or reducing the costs.”

254
Rule 22 of the Code of Good Practice, 2007.
255
Labour Revision No. 01 of 2020, HC, DR, Mbeya (unreported) at p. 12. See also Kuehne and
Nagel Limited v. Grace Urassa, Labour Revision No. 190 of 2019, HC, LD, DSM (unreported) at
p. 8 where the court ruled that “In answering the first issue it has to be noted that retrenchment is
one of the types of termination recognized in our Labour laws which is based on operational
requirement. The term operational requirement is defined under section 4 of the Act which is to
the effect that: - "Means requirement based on the economic, technological, structural or similar
needs of the employer."”

103
The law require that in any termination for operational requirements
and/or retrenchment, the employer must comply with certain procedural
steps, namely: (a) to give notice of any intention to retrench as soon as it is
contemplated; (b) to disclose all relevant information on the intended
retrenchment for the purpose of proper consultation; (c) consult prior to
retrenchment or redundancy on the reasons for the intended retrenchment,
any measures to avoid or minimize the intended retrenchment, the method
of selection of the employees to be retrenched, the timing of the
retrenchments and severance pay in respect of the retrenchments as well as
give the notice, make the disclosure and consult with any trade union
recognized, any registered trade union which members in the workplace
not represented by a recognized trade union, and any employees not
represented by a recognized or registered trade union.256

The Labour Court has extensively ruled on every aspect of the procedural
steps above; and has equally offered true legislative interpretations in
respect of every step with a view to making sure that employers do not
mess-up with any step when terminating employees. And normally in
determining the legality of operational requirements and/or retrenchment,
the Court has to examine the bona fides and integrity of the entire process –
even if it is a fair reason, the dismissal can still turn out to be unfair if the
employer fails to act reasonably and follow the steps required to effect fair
redundancy and/or retrenchment.257 In the case of Kuehne and Nagel Limited
v. Grace Urassa258 the Court ruled that: “[t]he existing jurisprudence,
particularly those emanating from opinions of the ILO Committee of
Experts on Application of Convention 158 and Recommendation 166
(CEACR) is that; the policy objective of the law in regulating retrenchment
or termination for operational requirements starts from the premises that,
employees have a right not to have their contract of employment
prematurely terminated unfairly or unjustifiably. Therefore, the employer
has the duty to prove before the Court that, he had no any other option to
secure the business than to retrench some of the employees.”

256
Section 38 of the Employment and Labour Relations Act, Cap. 366.
257
Ogembo, G., Employment Law Guide for Employers. Nairobi: LawAfrica Publishing Ltd, 2018,
p. 339.
258
Labour Revision No. 190 of 2019, HC, LD, DSM (unreported) at p. 10.

104
In Clare Haule v. Water Aid Tanzania259 the Court articulated that: “[I]n
termination for operational requirement the employer is required to
comply with four mandatory principles which includes giving notice of any
intention to retrench; disclose all relevant information on the intended
retrenchment; consult prior to retrenchment; and to give the notice of
retrenchment.” (Emphasis supplied). The Court proceeded to observe at pp.
15–16 that: “the law provides in section 38 (1) (c) (i) (ii) (iii) (iv) and (v) the
consultation which is prior to retrenchment shall be on the reasons for
intended retrenchment, measures to avoid or minimize it, criteria for
selection of employees to be retrenched, time of retrenchment and
severance pay in respect of the retrenchment. Also, the GN No. 42 of 2007
in rule 23 (4) (c) provides that the purpose of the consultation required by
section 38 of the ELRA, 2004 is to permit the parties, in the form of a 'joint
problem-solving exercise, to reach agreement on the areas provided.
Therefore, the consultation was supposed to be on the reason for intended
retrenchment, measures to avoid or minimize it, criteria for retrenchment,
time for retrenchment and the payment. There is no evidence in the record
to prove that there was consultation which was conducted between the
respondent and the applicant or the employees' trade union in the place of
work.” However, in Hendry v. Adcock Ingram260 the labour court of South
Africa held that: “when judging and evaluating an employer's decision to
retrench an employee, the court must be cautious not to interfere to the
legitimate business decision taken by employers who entitled to
restructure.” See also p. 14 of Janeth Mshiu v. Precision Air Services Limited.261

In the case of Moshi University College of Cooperative & Business Studies

(MUCCOBS) v. Joseph Reuben Sizya262 Lady Justice, Rweyemamu, J. (the late)
held: “[r]easons for termination must be operational requirements. The first
objective is to ensure that such terminations are substantively fair,
meaning, operational grounds are not used as a smokescreen to mask
termination based on prohibited grounds, otherwise unfair terminations.
That is why to win in such a dispute the employer must establish that
operational requirements were the real reason and not a pretext for
terminating the involved employee.” With regard to disclosure and

259
Revision No. 13 of 2019, HC, LD, DSM (unreported) at p. 13.
260
(1988) 19 IU 85 (LC) at 92 B-C.
261
Labour Revision No. 588 of 2018, HC, LD, DSM (unreported).
262
Revision No. 11 of 2012, HC, LD, DSM, (unreported).

105
consultation, the Labour Court in Mustafa M. Mrope and Another v. Ultimate
Security (T) Limited263 held that: “[d]isclosure of information and
consultation was an important stage before retrenchment. In the case of
Omary Ali Dodo v. Air Tanzania Company Limited, Lab. Rev. No. 322/2013
this Court quoting the South African case of Visser v. Sanlam [2001] 22 IU
666 it stated that the word consultation is not defined in the ELRA, but a
good definition of the term can be derived from Labour Appeal Court of
South Africa (where our labour laws are in pari materia with the Labour
laws of South Africa).... Consultation in totidem verbis (in many words)
that.... "The employer and the other consulting parties must engage in a
meaningful joint consensus seeking process and attempt to reach
consensus.... For the process to be meaningful it must not be a mere sham a
going through the motions. The employer must consult in good faith in that
it must not have made up its mind prior to consultation to dismiss."264

In Isaack Chambo & 5 others v. Shanta Mining Co. Limited (supra) at pp. 14–15
the Court made clear that: “Indeed, the legal purpose of consultation
meetings is to enable both parties to reach into an agreement on some
terms; see rule 23(4) of GN No. 42 of 2007. The significance of that process
in terminations of the nature under discussion was also underscored by
this court in the case of Resolution Insurance Ltd v. Emmanuel Shio and Others
(Labour Revision No. 642 of 2019) [2020] TZLC 38; (29 May 2020). I quote
the pertinent observation of the court for ease of reference: "About
consultation, normally provides an opportunity for an exchange of views
and establishment of a dialogue which can only be beneficial for both the
employer and employees, by protecting employment as far as possible and
hence ensuring harmonious labour relations and a social climate which is
proportions to the continuation of the employer's activities. Indeed,
transparency is a major element in moderating or reducing the social
tensions inherent in any termination of employment for economic

263
Revision No. 875 of 2019, HC, LD, DSM (unreported) at pp. 8–9.
264
See also Jason Peter Lwiza and 2 others v. Christian Council of Tanzania, Revision No. 18 of
2013, HC, LD, DSM (unreported) where it was held that “It is clear from the law that guide
retrenchment that the employer shall consult the trade union in the workplace before resorting
into termination of his employee to see the possible alternative can be explored.” Equally see
Stanly Joseph Mwakalinga & 4 others v. Kamanga Ferry Limited, Labour Revision No. 27 of
2017, HC, DR, Mwanza (unreported); and Catholic Diocece of Moshi v. Nickson Nelson Munisi
& another , Labour Revision No. 6 of 2021, HC,DR, Moshi (unreported) where it was held that
“what is gathered from the above provision is that for retrenchment to be fair the employer must
give notice of any intention to retrench; disclosure of all relevant information on the intended
retrenchment; consult prior to retrenchment; and to give the notice of retrenchment.”

106
reasons."” Similarly, in Musoma Urban Water Supply and Sanitation Authority
v. Raphael Ologi Andrea265 the Court ruled that: “I am in agreement with the
Hon. Arbitrator that the termination for operational requirement did not
comply with the law due to lack of consultation on issues related to the
reasons for the intended retrenchment; measures to avoid or minimize the
intended retrenchment; the method of selection of the employees to be
retrenched; and the timing of the retrenchments.”

It is therefore important to note that consultation is mandatory, its absence

vitiates the whole process and renders the purported termination illegal.
See also Isaack Chambo & 5 others v. Shanta Mining Co. Limited (supra) at p.
12 where the Court held: “I am of the view that, in law, the court is not only
entitled to investigate the good faith of the employer and the merits or
soundness of the decision to retrench or terminate for operational reasons,
it is also entitled to determine whether this decision was the best or most
reasonable one under the circumstances of the matter. In my considered
opinion, the respondent in the present case had good faith to retrench. This
decision was a reasonable option in the circumstances given the fact, shown
in the record that, the respondent was hit by financial difficulties in
different situations stated above.”

In Freight In Time (T) Limited and another v. Rahabu Njeri Wangai266 the Court
ruled: “[a]part from consultations, the law requires the employer to
disclose to employees reasons for the intended retrenchment prior to the
retrenchment…. [e]vidence that the company was making loss was vital so
as to justify retrenchment, otherwise the law bars retrenchment that aims at
jeopardizing the employee's employment.” The Court also observed in
KMM (2006) Entrepreneurs Ltd v. Emmanuel Kimetule267 that: “[s]ince the
applicant failed to prove that he made adequate consultation prior to
retrenchment it is my view that the employer violated the provision of
section 38 of the Act, and rule 23 and 24 of GN No. 42 of 2007 which
provide the guidelines to ensure that employers take into consideration the
welfare of their employees. The established principle in law is that for a
termination on operation requirement or retrenchment to be substantively
fair the employer must adhere to section 38 of the Act which is not the case
in this application.” Regarding notice of retrenchment, the court observed

265
Labour Revision No. 21 Of 2019, HC, LD, Musoma (unreported) at p. 13.
266
Revision Application No. 92 of 2018, HC, LD, Arusha (unreported) at p. 6.
267
Labour Revision No. 19 of 2014.

107
that: “[t]he law does not provide for the manner in which the notice shall
be issued, therefore, it will depend on circumstances. However, placing an
announcement on a wall and distributing a memo to employees, in this
Courts' opinion, is not satisfactory means as it does not create a room for
feedback to the employer. It is not easy for the employer to be sure that the
information has reached every intended employee. Notice for retrenchment
is an important information, the respondent would have taken better ways
to communicate the same.”268

Generally, it must be understood that the procedural fairness for

termination of employees as prescribed in the Code of Good Practice, 2007
have to be complied just as a whole to meet the legislative intent of the
lawmakers as it was held in Benard Gindo & 2 others v. TOL Gases LTD269
that: “[s]ection 38 of the Act; read together with rules 23-24 of the
Employment and Labour Relations (Code of Good Practice) Rules, G.N
42/2007 (the Code) provide various stages which are not meant to be
applied in a check list fashion, rather one meant to provide guidelines to
ensure that consultation is fair and adequate. The law that is section 38(1)
of the Act provide for vital information to be exchanged; procedures for
consultation but in law, such consultation does not have to result in a
signed agreement.” It was equally emphasised in Edwin Kasena v. Enza
Zaden Africa Ltd270 that: “I am alive of the established principles that,
provisions of the Code of Good Practice (Code) cannot strictly be complied
with but the same are required to be complied as nearer as possible.”

see also NBC CO. Ltd Mwanza v. Justa B. Kyaluzi271 where the Labour Court
has this to say: “[w]hat is important is not application of the code in a check
list fashion rather to ensure that the process used adhered to basic of fair
hearing in the labour context depending on the circumstances of the parties
so as to ensure that the act of terminating is not reached arbitrarily.”272
With regard to the proper nomenclature for termination of employees who
are still on probationary period, the Court ruled that: “I however wish to
state that the phrase "unfair termination" is not appropriate in cases of

268
Mustafa M. Mrope and Another v. Ultimate Security (T) Limited, Revision No. 875 of 2019, HC,
LD, DSM (unreported) at p. 6.
269
Revision No. 18 of 2017, HC, LD, DSM (unreported).
270
Labour Revision No. 70 2017, HC, LD, Arusha (unreported) at p. 5.
271
Revision No. 79 of 2009 (Unreported).
272
See also Brian Celestine & 19 others v. The Salvation Army Tanzania Territory, Consolidated
Revision No. 68 & 69 of 2017, HC, LD, Mbeya (Unreported).

108
employees serving probationary period. The right phrase would be "unfair
labour practice" the consequences of which are akin to those relating to
unfair termination.”273

5.5.2 Burden and Standard of Proof in Unfair Termination Proceedings

In unfair termination proceedings, rule 9(3) of the Code of Good Practice,
2007 provides that the burden of proof lies with the employer; and it is
sufficient for the employer to prove the reason on a balance of probabilities.
Equally, section 39 of the Employment and Labour Relations Act, Cap. 366
provides that in any proceedings concerning unfair termination of an
employee by an employer, the employer shall prove that the termination is
fair. Expounding on these provisions, the Labour Court in Unilever Tea
Tanzania Ltd v. Thomas Okello Atito274 observed that: “as per the section 39 of
EAL, Cap. 366 [R.E 2019] and rule 9(3) of the Employment and Labour
Relations (Code of Conduct of Good Practice) Rules of 2007, GN No. 42
of2007, the burden of proof in labour disputes is on balance of probabilities.
Section 39 of Cap. 366 [R.E 2019] provides that: ‘[i]n any proceedings
concerning unfair termination of an employee by an employer, the
employer shall prove that the termination is fair.’ The above provisions,
therefore, place the burden on the employer to establish on the balance of
probability that the termination of the employee was fair. However,
considered in the context of the allegation of forgery which constituted the
first count for which Mr. Atito was charged with, it is trite law that when an
allegation regarding forgery or fraud is floated around in a civil case, the
expectation is that the degree or threshold of proof will be a bit raised above the
normal standard required in civil cases.”275 (Emphasis supplied).

In the case of Katavi and Kapufi Limited and another v. Emmanuel Dotto Ibrahim
and 8 others276 at p. 48 the noble Labour Court observed that: “[i]t is a
principle of law in fair hearing that he who alleges must prove the
allegations by producing evidence to prove the same as per section 110 and
111 of the Law of Evidence Act, Cap. 6 R.E 2002. In Labour Laws as per

273
Ibid.
274
Revision No. 256 of 2019, HC, LD, DSM (unreported) at pp. 21–22.
275
See also Othman R. Ntarru v. Baraza Kuu la Waislamu (BAKWATA), Revision No. 323 of 2013
where it was held that “the law puts the burden of proof to the employer to prove that he had
sufficient reasons and followed the required procedure in terminating the services of the
employee.”
276
Labour Revision No. 04 of 2020, HC, LD, Sumbawanga (unreported).

109
section 37 above, employer is duty bound to prove that a termination of
employment is fair termination with regard to the two aspects, one the
reason for the termination is valid and a fair reason and two, the
termination is according to the fair procedure.” With a similar mind, the
Court in Hasani Saidi Chonga v. Yasini Mohamedi Mnengelea277 ruled that:
“[t]he labour laws, place evidential burden of proof on fair termination at
the shoulder of the employer. The employer has statutory duty to prove
that termination was fair both procedurally and substantively. That reasons
for termination was a fair reason; and that the employment was terminated
in accordance with fair procedure.”

See also Alex Eriyo and others v. Bank of Africa278 where it was held that: “[i]t
cannot be overemphasized that the employer bears the burden of proving
that the termination of the employee was for valid and fair reason. In the
case of Othman R. Ntarru v. Baraza Kuu la Waislamu (BAKWATA), Revision
No. 323 of 2013 this court observed: "the taw puts burden of proof to the
employer to prove that he had sufficient reasons and followed the required
procedure in terminating the services of the employee." In my analysis, I
am satisfied and hereby find that the respondent failed to discharge this
burden, albeit on balance of probabilities…. [and] it cannot be safely
concluded that the respondent discharged her both legal and evidentiary
burden of proving that the applicants' termination was fair.” Equally, in
Serengeti Breweries Limited v. Mathias Ulaya279 it was observed that, it is an
established principle under section 37 (2) (c) of the Employment and
Labour Relations Act Cap. 366 that termination would be unfair in law if its
process did not follow a fair procedure. The employer is duty bound to
prove that the respondent's employment was terminated in accordance
with valid reasons and a fair procedure.

Generally, as pointed out, the employer has the duty to prove that the
reasons are valid and unfair termination proceedings being disputes of civil
nature, then the standard of proof is on the balance of probability.280

277
Application for Labour Revision No. 05 of 2016, HC, Mtwara (Unreported) at p. 7.
278
Application for Labour Revision No. 3 of 2020, HC, LD, Mtwara (unreported) at pg. 19 & 20.
279
Labour Revision No. 47 of 2016, HC, DR, Mwanza (unreported) at p. 8.
280
NMB Bank PLC v. Anael Thomas Maleso, Labour Revisions No. 65 of 2019, HC, LD, Mwanza
(unreported) at p. 12. See also Kilimanjaro Plantation Limited v. Nicolaus Ngow, Labour
Revision No. 40 of 2020, HC, DR, Moshi (unreported) at p. 14 where it was held that the burden
of proof lies with the employer, but it is sufficient for the employer to prove the reason on balance
of probabilities.

110
5.5.3 Mitigation and Double Jeopardy in Proceedings for Unfair
Termination
The disciplinary authority has an obligation to take and consider all
mitigating factors prior to entering a penalty. The Labour Court in
Registered Board of Trustees of LAPF, Dodoma v. Jamal Mruma281 emphasised
that: “[a]ccording to rule 13(7) and (8) of G.N. No. 42 of 2007 read together
with paragraph 7, 8 and 9 of the Guidelines for Disciplinary, Incapacity and
Incompatibility Policy and Procedure of the G.N. No. 42 of 2007, where the
hearing results in the employee being found guilty of the allegation under
consideration he (the employee) shall be given the opportunity to put
forward mitigating factors before a decision is made on the sanction to be
imposed. This means that the disciplinary committee is also vested with
power to convict the employee and to give sanction for the offence. The
duty of the employer after the disciplinary hearing is to communicate the
decision taken and preferably furnish the employee with written
notification of the decision together with brief reasons.”

It should also be noted that when the employee is acquitted from any
disciplinary inquiry then such an employee cannot be subjected to a second
disciplinary hearing on the same grounds based on the same facts – see
Security Group Tanzania v. Athumani Abdallah.282 Equally, the law, as it
currently obtains, prohibits an employer from taking any disciplinary
action against an employee who has committed a misconduct of a criminal
nature and he is facing court proceedings in respect of the said
misconduct.283 In Stella Manyahi and another v. Shirika la Posta284 the Labour
Court made it clear that when an employee is accused of criminal offence
which is also a breach of disciplinary code and the employer has taken the
bold step of reporting the incident to the police and the police investigation
is commenced, other disciplinary proceedings should not be mounted; no
proceedings for imposition of a disciplinary penalty should be instituted
pending the conclusion of the criminal proceedings and of any appeal
therefrom.

281
Consolidated Revision Application No. 65 And 114 of 2019, HC, LD, DSM (Unreported) at p. 26.
See also Lukindo International Co. Ltd v. Bakari Kusewa, Revision No. 309 of 2019, HC, LD,
DSM (unreported).
282
Revision No. 260 of 2008, HC, LD, DSM (unreported).
283
Marwa Nyaiki v. Geita Gold Mining Limited (supra) at p. 19.
284
Reference No. 2 of 2010, HC, LD, DSM (unreported).

111
5.5.4 Remedies for Unfair Termination
Section 40 of the Employment and Labour Relations Act, Cap. 366 and rule
32 of the Labour Institutions (Mediation and Arbitration Guidelines) Rules,
2007285 direct that where an arbitrator or Labour Court finds a termination
is unfair, the arbitrator or Court may order the employer: (a) to reinstate
the employee from the date the employee was terminated without loss of
remuneration during the period that the employee was absent from work
due to the unfair termination; or (b) to re-engage the employee on any
terms that the arbitrator or Court may decide; or (c) to pay compensation to
the employee of not less than 12 months remuneration. However, the law
further direct that an order for compensation made must be in addition to,
and not a substitute for, any other amount to which the employee may be
entitled in terms of any law or agreement. In Venture Risk Management v.
Ahmad Mwalimu Bao286 it was articulated that: “remedies for unfair
termination are set out under section 40 of the Employment and Labour
Relations Act, No. 6 of 2004 and they are optional to the employee. First, is
the reinstatement without loss of remuneration for a period of unlawful
termination. Two, reengagement and three, compensation of at least twelve
months salary. The employer may opt to pay 12 months' salary in lieu of
reinstatement or re-engagement. Aside the above remedies, there are other
employment benefits to which the employee is entitled on termination.
These include remuneration for work done before termination, any leave
pays due to the employee, severance allowance, one months' salary in lieu
of notice, certificate of service, transport allowance and subsistence
allowance while waiting for transport.”

It should be noted that when an order of reinstatement or reengagement is

made by an arbitrator or Court but the employer decides not to reinstate or
re-engage the employee, then such an employer is required to pay
compensation of 12 months wages in addition to wages due and other
benefits from the date of unfair termination to the date of final payment.287
About reinstatement, the Court has ruled that where the termination is
unfair procedurally and substantively then remedy to the employee is re –

285
G.N. No. 67 of 2007.
286
Application for Labour Revision No. 9 of 2015, HC, LD, Mtwara (unreported) at p. 10.
287
Section 40(3).

112
instatement;288 equally, in Michael Kirobe Mwita v. AAA Drilling Manager289 it
was held that; “section 40 gives room to the Labour Court or arbitrator to
order for reinstatement. Here the term reinstatement means that the order
issued by the Judge or arbitrator restores the contractual position between
the employer and the employee.” See also Zebra Hotels (T) Limited v. Marry
P. Kachinga.290 It must be understood that reinstatement is untenable if
work relationship is intolerable.291

The Labour Court has extensively expounded on basic principles that

regulate issuance of remedies for unfair termination: In Athumani Rajabu
Salehe v. Speed Security Services Ltd (supra) at pp. 8–9 the Court observed
that: “at the outset let me say termination of employment at the employee's
will, that is the right to hire, and fire is not part of the Tanzania laws. Under
the labour laws of this country the employee has a legitimate right to
expect that if everything remains constant, he/she will be in the services
throughout the contractual period. That is why the employee has remedy
where that right is breached by way of special damages, compensation and
reinstatement orders.” Regarding compensation, the Court in Anna Mbakile
v. DED Geita (supra) 292 ruled that:

In determining how to consider reasonable compensation, I

will be guided by the principle of law and international
standards. The General Survey of the Committee of Experts
on Application of Convention and Recommendation
(CEACR), 2016, specifically paragraph 229 page 85 provides
circumstances and factors which a decision-maker can
consider in making financial compensation, for easy of
reference such paragraph reads as: "In the case of financial
compensation, the amount has to be determined. Legislation often

288
Registered Board of Trustees of LAPF, Dodoma v. Jamal Mruma, Consolidated Revision
Application No. 65 and 114 of 2019, HC, LD, DSM (unreported) at p. 30.
289
HC, LD, DSM, Revision (2014) LCCCD at 215.
290
Labour Revision No. 1 of 2020, HC, DR, Moshi (unreported).
291
TTCL v. Swtbert Rutahuga (supra). See also Anna Mbakile v. DED Geita, Labour Revision No.
113 of 2019, HC, DR, Mwanza (unreported) at pp. 8–9 where the Judge ruled that: “I am in
accord with the arbitrator that reinstatement in this matter was not suitable due to the kind of
relationship which existed between the applicant and the employer. It is my considered view that
the working environment might not be suitable for both the applicant and the respondent. Since
the respondent already took several disciplinary measures towards the applicant and on the part of
the applicant, she had man complaints against his employee. Therefore, in the situation at hand, I
am in my considered view that the appropriate award is compensation.”
292
At pg. 9 & 10.

113
 specifies the amount of compensation or the extent of damage to be
awarded based on one or several factors, such as the nature of
employment length of service, age, acquired rights or the
circumstances of the particular case, namely the reason for
termination of employment, the possibility of finding a job, career
prospects, or the personal circumstances of the workers, such as his
family status, or of an employer, such as the size or nature of the
undertaking."…. In our laws of the land, the legislature has set
the minimum standard of compensation for an employee
who was unfairly terminated. Section 40 (1) ( c) of the
Employment and Labour Relations Act, Cap. 366 provides for
minimum 12 months compensation and a decision-maker
may make an award of appropriate compensation based on
the circumstance of each case considering the following
factors:- (a) any prescribed minimum or maximum
compensation, (b) the extent to which the termination was
unfair, (c) the consequences of the unfair termination for the
parties including the extent to which the employee was able
to secure alternative work on employment, (d) the amount of
the employees' remuneration, (e) the amount of
compensation granted in persons similar cases, (f) the parties
conduct during the proceedings; and any other relevant
factors.293

As such, it is thus the discretion of a Judge or arbitrator to give remedies

that are considered just and fair depending on the circumstances of each
case, though it encouraged to grant remedies based on what parties have
specifically prayed for.294 In Lemala Camp T/A Grumet Expeditions Tanzania
Ltd v. John Kingazi295 the Court observed that the provisions of rule 32
(5)(a)–(f) of the Mediation and Arbitration Guidelines Rules, 2007 appear to

293
See also Sodetra (SPRL) Ltd v. Njelu Mezza and another, Labour Revision No. 207 of 2008
(unreported); and USAID Wajibika Project v. Joseph Mandago and Edwin Nkwanga, Labour
Revision No. 208 of 2014 (unreported).
294
See Musoma Urban Water Supply and Sanitation Authority v. Raphael Ologi Andrea, Labour
Revision No. 21 of 2019, HC, LD, Musoma (unreported) at pp. 14–15; Tanzania International
Containers Terminal Services (TICTS) v. Fulgence Steven Kalikumtima and 7 others, Revision
No. 471 of 2016, HC, LD, DSM (unreported); Benda Kasanda Ndasi v. Makufuli Motors Ltd,
Revision No. 25 of 2010, HC, LD, DSM (unreported); and Mbeya Cement Company Limited v.
Allen Mwinula, Revision No. 24 of 2017, HC, LD, Mbeya (unreported).
295
Labour Revision No. 26 of 2019 HC, LD, Arusha (unreported) at pp. 5–6.

114
provide discretionary powers to the arbitrator to award compensation
based on circumstances of each case. See also Sangija Joseph Masaaga v.
Ultimate Security (T) Ltd296 where the Court held that: “it has been the
holding of this Court that after making a finding of unfair termination Hon.
Arbitrator has to grant the appropriate remedies according to the law even
when not prayed by the applicant.”297 In the case Deus Wambura v. Mtibwa
Sugar Estates Limited298 it was equally pronounced that under the law, an
arbitrator has discretion to award or not to award any of the remedies
provided under section 40(1)(a) or (b) or (c) of the Employment and Labour
Relations Act, Cap. 366 following a finding of unfair termination – with
such discretion, an arbitrator can thus award compensation which is more
or less than 12 months, provided that he has justifiable grounds for so
doing.299

It should be borne in mind that if an employee is on a term contract, he is

entitled to compensation for the remaining period of the contract of
employment, the Court in Good Samarita v. Joseph Robert Savari Munthu300
emphasised that when an employer terminates a fixed term contract, the
loss of salary by the employer of the remaining period of the unexpired
term is a direct foreseeable and reasonable consequence of the employer's
wrongful action.

On other attendant remedies, the Court in Kassim Mtulya v. Ison Bpo

Tanzania Limited301 was of the view that other compensation in respect of
illness should be addressed to the proper authority i.e. Workers
Compensation Fund (WCF). In Katavi and Kapufi Limited and another v.
Emmanuel Dotto Ibrahim and 8 others (supra) the Court ruled that it is a
principle in labour laws that once the termination of employment is
adjudged unfair, among the remedy or entitlements to be provided
includes allowances, overtime, leave, notice, severance pay, gratuity and

296
Labour Revision No. 566 of 2016, Dar es Salaam (Unreported) at p. 5.
297
see the case of Tanzania Revenue Authority v. Godfrey Kajetani Dimoso, Revision No. 62 of 2015,
HC, LD, DSM (unreported) at pp. 12–13 where the Court held and emphasized that CMA Form
No.1 cannot be taken to be like a plaint in normal civil cases, that the arbitrator cannot be
confined to only grant what is in CMA Form No.1, as such, the arbitrator has power to grant
reliefs even not pleaded for, when he makes a finding of unfair termination.
298
Revision No. 3 of 2014 (unreported).
299
Michael Kirobe Mwita v. AAA Drilling Manager, Revision No. 194 of 2013 (Unreported). See
also Juma Kanuwa v. Eckenforde Tanga University, Revision No. 17 of 2012.
300
Revision No. 165 of 2011 (unreported).
301
Revision No. 38 of 2020, HC, LD, DSM (unreported) at p. 7.

115
others depending on the parties’ agreement. About severance pay, the
Court in Emmanuel Urassa and 10 others v. Shared Networks Tanzania Limited
(supra) at pp. 18–19 observed that: “it is crystal clear that, the applicants are
entitled to severance payment separately from golden hand shake payment
at the calculation provided by the law, that is, seven days basic wage for
each completed year of continuous service up to a maximum of ten years
depending on each applicant's contract. It is the court's considered view
that, the already paid one-month salary to the applicants should be treated
as golden hand shake payment only instead of severance pay as indicated
in exhibit D5. In the result cannot be legally joined with other entitlements,
its calculation is provided under section 42 of the Act.”

For subsistence entitlements, it was held in Christian Mwesiga Michael v.

Board of Bishops302 at p. 22 that the position of the law on subsistence
allowances as set under Section 43 (1) (c) of the Act, it requires the
employer to pay the employee transport allowance and subsistence
allowance upon termination of the contract. See also Coca Cola Kwanza Ltd
v. Kajeri Misyangi303 where it was ruled that the transport and subsistence is
to be paid where the employee is necessitated to quit job on employer's
accord or at the end of the contract. Regarding other incidents of
termination, see Part Two.

302
Revision No. 31 of 2020, HC, LD, Morogoro (unreported).
303
Labour Division No. 238 of 2008, HC, LD, DSM (unreported).

116
 PART SIX
DISPUTE RESOLUTION

6.1 Definition
From the outset, it must be understood, among others that the principal
objects of the Employment and Labour Relations Act, Cap. 366 is to
regulate the resort to industrial action as a means to resolve disputes and to
provide a framework for the resolution of disputes by mediation,
arbitration and adjudication – see section 3(d) and (e). As such, dispute
resolution is an important intent of the labour law regime in Mainland
Tanzania. Section 4 of the Employment and Labour Relations Act, Cap. 366
defines the term dispute as any dispute concerning a labour matter
between any employer or registered employers’ association on the one
hand, and any employee or registered trade union on the other hand; and
includes an alleged dispute. A dispute of interest is equally defined as any
dispute except a complaint.304 The same section defines a complaint as any
dispute arising from the application, interpretation or implementation of an
agreement or contract with an employee; or a collective agreement; or
under any written law. It is therefore important to note that a dispute of
interest is not based on any existing statutory or contractual right –
employees or trade unions must approach the employer in order to
establish a new right while a complaint or dispute of right is based on
existing statutory or contractual right.

A labour dispute is thus a disagreement between an employer and

employees with regard to terms of employment.305 In the case of Nyota
Tanzania Limited v. Onesmus D. Onyango and another306 the Court had an
opportunity to comment on what amount to a labour dispute and
jurisdiction of relevant institutions in resolving labour disputes, it held
that: “section 4 of the Employment and Labour Relations Act define the
term 'Labour matter' to mean any matter relating to employment or labour
relations and resolution of disputes fall under the exclusive jurisdiction of
labour dispute resolution forums constituted of the Commission for

304
Section 4.
305
Zaitseva, L., et al., “Intermediary in a Collective Labour Dispute Resolution,” Vol. 6(2) BRICS
Law Journal, 2019, at pp. 33–59.
306
Civil Appeal No. 224 of 2018, HC, DSM DR (unreported) at pg. 16, 17 & 18.

117
Mediation and Arbitration (CMA), the High Court and the Court of
Appeal. Subject to pecuniary jurisdiction, these disputes compulsorily
commence at the CMA which is at the bottom of the labour dispute
resolution forums ladder. Where the claims involved in the dispute are
fully detached from the parties' employment relationship and are of such a
nature that can be determined independent from the parties' employment
related rights and interests it can be actionable in ordinary courts.
Conversely, if the claims are predicated on the employment relationship
between the parties it will inevitably fall under the description of a labour
matter and will consequently be subject to the exclusive jurisdiction of the
labour dispute resolution forums as they are also vested with jurisdiction
over tortious liability.”

Disputes are therefore part and parcel of human nature and always
manifest everywhere including in the employment arena. It is this
inevitability of disputes that warrants measures to be in place so as to
effectively and without delay, resolve them in order to realise industrial
peace. Commenting on the nature of labour disputes, the Labour Court
observes that: “labour disputes are of their own nature, they affect the
parties to dispute as well as those who depended on the employment as a
means of their livelihood. To my view, the spirit of extending jurisdiction
to all judges is that labour disputes be disposed expediently and timely,
this in my view does not prejudice justice to the other parties rather it
serves time to both parties and ensures speed determination of the
dispute.”307 As such, by their nature labour disputes must be resolved
expeditiously and brought to finality so that the parties can organise their
affairs accordingly – as they tend to affect the economy and labour peace. It
is in the interest of the public that labour disputes be resolved speedily.308

Dispute resolution is a term that refers to a number of processes that can be

used to resolve a conflict, dispute or claim. It is a process of resolving
disputes between different parties in the employment industry. In
Mainland Tanzania, the labour law regime recognises both Alternative
Dispute Resolution (ADR) and Adjudication as a means of resolving labour
disputes among different stakeholders.

307
Humphrey Ngalawa v. Coca Cola Kwanza Limited, Labour Revision No. 18 of 2017, HC, DR,
Mbeya (Unreported) at p. 6.
308
National Education Health and Allied Workers Union (NEHAWU) v University of Cape Town
(UCT) and others, (CCT2/02 [2002] ZACC 27, para. 31.

118
6.2 Dispute Resolution Methods
As alluded above, ADR i.e., mediation, arbitration and other similar
methods as well as adjudication are official methods of resolving labour
disputes in Mainland Tanzania. The law provides for the manner and
circumstances of deploying every method.

6.2.1 Mediation
Rule 3 of the Labour Institutions (Mediation and Arbitration Guidelines)
Rules, 2007 (G.N. No. 67 of 2007) defines mediation as a process in which a
person independent of the parties is appointed as mediator and attempts to
assist them to resolve a dispute and may meet with the parties either jointly
or separately, and through discussion and facilitation, attempt to help the
parties settle their dispute. The same law also makes it clear that the
mediator may make recommendations to the parties suggesting for
settlement if the parties to the dispute agree or the mediator believes it will
promote settlement – the suggested recommendations are not binding on
the parties rather it is only persuasive and aims to assist the parties to settle
their dispute. Rwodzi defines mediation as a process by which a mediator
assists disputants to resolve the dispute between them by facilitating the
dialogue; and the term mediation stems from a Latin expression mediare
which means to occupy the middle position thus acting as an intermediary
suggesting possible solutions.309 Here, the mediator acts only in advisory
and conciliatory capacity, meaning he has no decision-making powers to
impose settlement on either of the parties.310

Equally, Mnookin observes that: “mediation involves the use of a third-

party i.e., the mediator, but the mediator unlike an arbitrator or judge has
no authority to impose a resolution on the parties. Instead, the mediator’s
goal is to facilitate negotiation and help the parties themselves to reach a
mutually acceptable settlement of their own dispute. Mediation is typically
a voluntary process where the parties themselves may choose the person
who will act as the outside facilitator. It is private and confidential, and not

309
Rwodzi, N.T., “The Use of Alternative Dispute Resolution Mechanisms in Labour Relations in
the Workplace in South Africa.” LL.M Dissertation, University of Fort Hare, 2017 at p. 80.
310
See also Feng, J., and Xie, P., “Is Mediation the Preferred Procedure in Labour Dispute
Resolution Systems? Evidence from Employer–Employee Matched Data in China,” Vol. 62(1)
Journal of Industrial Relations, 2020, pp. 81–103 and McKenzie, D.M., “The Role of Mediation
in Resolving Workplace Relationship Conflict,” Vol. 39 International Journal of Law and
Psychiatry, 2015, pp. 52–59

119
open to the public. Although the mediator is typically responsible for
managing the mediation process, there are no standard procedures or fixed
rules. The process by which the mediator facilitates negotiation is often
informal and unstructured. The actual practices of individual mediators
vary greatly.”311 Section 86 through 87 of the Employment and Labour
Relations Act, Cap. 366 provides for mandatory mediation of any labour
dispute before CMA and a party to a dispute may be represented by a
member or an official of that party’s trade union or employers’ association;
or an advocate; or a personal representative of the party’s own choice. The
law also makes it clear that where the mediator fails to resolve a dispute
within 30 days or any longer period as agreed by the parties in writing then
any party to the dispute may, if the dispute is a dispute of interest, give
notice of his intention to commence a strike or a lockout in accordance with
relevant provisions of the law; or if the dispute is a complaint then refer the
complaint to arbitration or to the Labour Court as the case may be.

It should be noted that each mediation session varies depending on the

parties involved, the style of the mediator, the nature of the dispute and the
circumstances involved but generally each session has four stages, namely;
introduction, gathering information, exploring options and developing
consensus as well as conclusion.312 The mediator is obliged to issue a
certificate at the end of the mediation identifying the nature of the dispute
and stating whether the dispute has been resolved or not – the law directs
that such certificate may be issued within 30 days if the mediator decides
that the mediation has failed.313 Commenting on the overall nature and
attributes of mediation, the Labour Court has this to say:

[m]ediation is defined in the Black’s Law

dictionary, 8th Edition to mean ‘a method of non-
binding dispute resolution involving a neutral
party who tries to help the disputing parties
reach mutually agreeable solution. Generally,
the mediation process is done when a mediator
meets jointly or separately with the disputing
parties and explores ways to help the parties

311
Mnookin, R., “Alternative Dispute Resolution,” Harvard Law School John M. Olin Center for
Law, Economics and Business Discussion Paper Series, 1998, Paper 232 at p. 5.
312
Rule 9 of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007.
313
Ibid., rule 3(5).

120
 reach an amicable agreement. It is a private and
confidential process which often helps the
parties to resolve the dispute quickly since in the
due course, the parties may share information
and suggest ways of settling the dispute
themselves. The mediator may also suggest and
explore settlement ideas. The settlement
agreement reached binds the parties and may be
executed as a decree in the Labour Court. This
process is mandatory before the dispute is
referred for arbitration.314

On the mandatory nature of mediation, the Court in Secularms (T) Limited v.

Sauli Awaki Nada315 at pp. 7–8 ruled that “[t]he law under section 86(3) of
the Employment and Labour Relations Act, No. 6 of 2004 states that, ‘on
receipt of the referral made under subsection (1) the Commission shall (a)
appoint a mediator to mediate the dispute, (b) decide the time, date and
place of the mediation hearing, and (c) advise the parties to the dispute of
the details stipulated in paragraphs (a) and (b). Now looking at this
provision, it has been couched in mandatory word ‘shall’ to mean that
what is provided therein must be performed. It cannot be interpreted in
any other way except full compliance. This means failure to observe what is
provided is fatal. For this reason, I find this ground for revision meritorious
in the sense that it was improper for the CMA to embark on Arbitration
before attempting to mediate the parties as provided by the law. Mediation
of a dispute is mandatory before referring the same to arbitration.”316 It
should also be noted that the mediation settlement agreement is binding
between the parties – see Benedict Komba v. Knight Support (T) Ltd, Revision
No. 270 of 2009, [2011 -20121 LCCD 34] & Otieno Roche & others v. Kariakoo
Market Corporation, Labour Cause No. 22 of 2011 [20131 LCCD 90].

6.2.2 Arbitration
Arbitration is a procedure of resolving disputes whereby the parties’
dispute is submitted to one or more arbitrators who make a binding

314
Florence Munuo v. Chui Security Company Limited, Labour Revision No. 27 of 2019, HC, DR,
Moshi (unreported) at p. 6.
315
Labour Revision No. 11 of 2020, HC, DR, Moshi (unreported).
316
Cable Television Network (CTV) Ltd v. Athumani Kuwinga & others, Labour Revision No. 94 of
2009, HC, LD, DSM (unreported) at p. 5.

121
decision on the dispute upon receiving evidence from each party.317
Steadman defines arbitration as a process in which an independent third
party hears the parties' respective cases, determines the dispute between
them and issues an ‘award’ or ‘decision.’ The award or decision is typically
final and binding, subject to review or revision but not to appeal.318 It
important to note that, generally “arbitration involves a neutral third party
i.e., the arbitrator who is responsible for running the process and making
the decisions necessary to resolve the dispute. Unlike a judge who is a
public official the arbitrator is normally a private person chosen by the
parties. The person chosen to arbitrate the dispute often has specialized
expertise in the subject matter of the dispute; legal training is required only
if the parties so specify. A dispute that might otherwise go to court
becomes subject to binding arbitration only by the agreement of the
parties.”319 Section 88 of the Employment and Labour Relations Act, Cap.
366 among others direct that where the parties fail to resolve a dispute
referred to mediation then the CMA must: (a) appoint an arbitrator to
decide the dispute; (b) determine the time, date and place of the arbitration
hearing; and (c) advise the parties to the dispute about all necessary
matters relating to arbitration. The law also makes it clear that the CMA is
barred from appointing an arbitrator before the dispute has been
mediated.320 Mediation is therefore a mandatory procedure before
arbitration – the latter cannot be effected unless there is a proof of failure of
mediation. In the case of Katavi and Kapufi Limited and another v. Emmanuel
Dotto Ibrahim and 8 others321 the Court ruled that it is a spirit of the labour
laws that once mediation fails, the dispute is referred to the stage of
arbitration – see also rule 19–28 of the Labour Institutions (Mediation and
Arbitration) Rules, 2007 (G.N. No. 64 of 2007).

317
Finkin, M.W., “Commentary on Arbitration of Employment Disputes without Unions.” Vol. 66(3)
Chicago-Kent Law Review, 1990, pp. 799–815.
318
Steadman, F., Handbook on Alternative Labour Dispute Resolutionp. Geneva: ILO, 2017, pp.21–
22.
319
Mnookin (1998) at p. 2; See also Rwodzi (2017) at p. 82 who defines arbitration as a process
whereby parties make presentations to a mutually selected third party and commit themselves to
abide by that person’s ruling acknowledging it as final and binding. Equally see Almutairi, A.,
“Labour Dispute Resolution Process and Its Impact on the Rights of Low-Skilled Temporary
Foreign Workers in the Absence of a Labour Court in Saudi Legal System: A Critique,” Vol. 7 (1)
International Law Research, 2018, pp. 199–212.
320
Section 88(3).
321
Labour Revision No. 04 of 2020, HC, LD, Sumbawanga (unreported) at p. 46.

122
In the same vein, the law directs that within 30 days of the conclusion of
the arbitration proceedings, the arbitrator is obliged to issue a signed
award with reasons thereof.322 An arbitration award is binding on the
parties to the dispute and the same may be executed in the Labour Court as
if it were a decree of a court of law.323 The law stipulates further that any
party to an arbitration award who alleges a defect in any arbitration
proceedings under the auspices of the CMA may apply to the Labour Court
for a decision to set aside the arbitration award – but he must do so within
6 weeks of the date that the award was served unless the alleged defect
involves improper procurement, of which the party claiming defect must
approach the Labour Court within 6 weeks of the date that such party
discovers that fact. The Court may thus set aside an arbitration award on
grounds that there was a misconduct on the part of the arbitrator; the
award was improperly procured; or the award is unlawful, illogical or
irrational. The Labour Court has power to stay the enforcement of the
award pending its decision. In the event that the award is set aside, the
Labour Court may proceed to determine the dispute in the manner it
considers appropriate; or make any order it considers appropriate about
the procedures to be followed to determine the dispute.324

Regarding the conduct of arbitration proceedings in its totality, see rule 18

through 29 of the Labour Institutions (Mediation and Arbitration
Guidelines) Rules, 2007 (G.N. No. 67 of 2007).

6.2.3 Combined Approach

A combined approach is a method of resolving labour disputes that include
both mediation and arbitration. Rule 18 of the Labour Institutions
(Mediation and Arbitration) Rules, 2007 (G.N. No. 64 of 2007) gives
discretion to the CMA to set down a combined mediation-arbitration
process on the same date – to be conducted by the same person as the case
may be. However, the CMA is obliged to give parties at least 14 days’
notice in writing informing them that a dispute has been set down as a
combined mediation-arbitration procedure, and the notice must specifically
state that the process is a combined session. The Labour Court has
extensively ruled on what amount to a combined approach and basic tenets

322
Section 88(11).
323
Section 89.
324
Section 91.

123
that must be observed in carrying out this approach; for example, in the
case of AUMS Tanzania Limited v. Peter Ambrose Ka Yombo325 it was ruled
that: “now it is true that a procedure of a combined mediation and
arbitration in resolving labour disputes is not strange, it is provided under
Rule 18 of the GN. 64 of 2007 of the Labour Institutions Mediation and
Arbitration Rules 2007 which provides that, subject to section 19(7) of the
Labour Institution Act, No. 7 of 2004 and section 88(3) of the Employment
and Labour Relations Act No. 6 of 2004, the Commission may set a
combined mediation arbitration process on the same date which may be
conducted by the same person. Looking at the wording of the provisions, it
goes without saying that it is the Commission which may appoint a person,
to perform a combined procedure.”326 Thus, the mediator or arbitrator has
no power to choose himself, he must be appointed by the Commission and
that even if he does so the parties must be informed, failure to observe the
same – the award is deemed to be improperly procured – see Aziz Ally,
Aidha Adam v. Chai Bora Ltd, Revision No. 04 of 2011.

On what should be done in a combined approach, the Court in Geita Gold

Mine v. William Swai (supra) at p. 6 ruled that: “[r]eading the rules, one
clearly understands that what is supposed to combine is not the process but
the person who conducts the processes. Here, the person it would appear,
combined both processes, and did not offer the facilitation to mediate. It is
no wonder that the mediator did not even complete the relevant Form
under section 16, which evidence the finalization of the mediation. I agree
with Ms. Yvonne that the combined process was meddled, and therefore it
was irregular.” On a similar occasion, the Court in Kuzenza William
Gwantemi v. Bynecut Offshore Tanzania Ltd327 made clear that: “Rule 18 of GN
No. 64 of 2007 provides for a combined mediation and arbitration before
the same person. There are a number of decisions of this court to the effect
that where a mediator converts himself into the arbitrator without an
appointment, vitiates the proceedings, however, where parties to the

325
Labour Revisions No. 79/2018, HC, LD, Mwanza (unreported) at pp. 8–9.
326
See also Geita Gold Mine v. William Swai, Labour Revision Case No. 80 of 2018, HC, LD,
Mwanza (unreported) at p. 5 where the Court observed that: “[t]rue, rule 18 (2) & (3) of the
Labour Institutions (Mediation and Arbitration) Rules, GN 64 of 2007 demands that where the
Commission sets a combined process, it shall inform the parties of that intention. The person
appointed to conduct the processes has to issue a fourteen days-notice to the parties unless they
agree to a shorter period. Parties have the right to be advised on when the mediation terminates,
and arbitration commences.”
327
Application for Revision No. 2 of 2020, HC, DR, Shinyanga (unreported) at p. 9.

124
dispute consent in writing to allow the mediator to be their arbitrator, the
proceedings are deemed as valid.” See also Project Manager Barrick Gold
Mine (Bulyanhulu) v. Adriano O. Odhiambo, Revision 290 of 2008
(unreported); Buzwagi Project v. Antony Lameck, Revision No. 297 of 2008
(unreported); TBL v. Charles Malabona, Revision No. 24 of 2007 (unreported)
and Bulyanhulu Gold Mines Ltd v. James Bichuka, Labour Revision No. 313 of
2008 (unreported).

In the case of Tanzania Coffee Board v. Killian M. Massawe328 the Court

observed that in proceedings where the same person acted in both
capacities, that is Mediator and Arbitrator, such proceedings would not be
vitiated if parties had a choice in the matter. In Blue Financial Services v.
Vestina Masaga329 the mediator consulted parties on whether he should
proceed with the arbitration of the dispute in which he mediated. Parties
consented to; however, the applicant raised on revision a complaint that by
converting himself to an Arbitrator, the Mediator contravened the
provision of section 88 of the ELRA. Responding to this, Aboud, J had this
to say in her decision: “[t]he arbitrator did not contravene section 88 (2) of
the ELRA because the parties had given their choice to proceed with the
same person who was a mediator in arbitration proceedings.”

Generally, ADR i.e., mediation, arbitration and other similar means play an
important role in restoring industrial peace at workplaces due to their
usefulness and advantage such as cconfidentiality, efficiency, party
autonomy, flexibility, to name just a few.330 Steadman comments that:
“[t]he ways in which disputes between employers and employees are
resolved have changed dramatically over the past few decades. With the
rapid advance of globalisation and the competition for goods and services
thus generated in the global marketplace, many countries have realised that
improving their labour relations environment and enhancing the prospect
of industrial peace is essential for successful economic endeavour and for
attracting and retaining foreign and domestic investments. The effective
management of conflict and the resolution of disputes have, as a
consequence, assumed increasing importance. In countries where labour
laws have been revised or developed in response to these changes, drafters

328
Labour Revision No. 21 of 2010 (unreported).
329
Labour Revision No. 35 of 2013 (unreported).
330
Doosan Babcock Ltd v. Commercializidora de Equipos y Materiales Mabe [2013] EWHC 3010.

125
have in many instances been influenced by the significant interest in and
growth of the alternative dispute resolution (ADR) movement.”331

6.2.4 Adjudication
Rwodzi defines adjudication as a formal process which takes place in the
context of courts of law as opposed to quasi-judicial bodies; it is a process
whereby the Judge adjudicates the matter and then determines the dispute
between the parties. Here, the Judge decide who is right or wrong on the
basis of evidence placed before him and issues an outcome in form of a
judgement.332 Adjudication is tantamount to litigation. In Mnookin’s
words, “adjudication is an involuntary process, in the sense that a court has
the power – once its jurisdiction is properly invoked to coerce any party
into either participating in the process or suffering the consequences of a
default judgment. The judge, a neutral third party appointed by the State,
has the power and responsibility to run the proceedings and to resolve the
dispute. The judicial proceedings are highly structured, with formal rules
governing pre-trial discovery and the trial itself i.e., what counts as
evidence, the order in which evidence is presented and how arguments are
made. In reaching its decision, the adjudicator is responsible for making a
principled and reasoned decision based on legal norms. The trial judge’s
decisions are binding on the parties, subject to appeal to a higher court.
Finally, adjudication is a public process – the judge is a public official, and
the proceedings themselves are ordinarily open to the public and not
confidential.”333 Thus, adjudication is a method of resolving labour
disputes that involves court’s processes.

Section 94 of the Employment and Labour Relations Act, Cap. 366 (“the
Act”) provides that, in line with the Constitution of the United Republic of
Tanzania, Cap. 2 the Labour Court shall have exclusive jurisdiction over
the application, interpretation and implementation of the provisions of the
Act and over any employment or labour matter falling under common law,
tortious liability, vicarious liability or breach of contract and to decide: (a)
appeals from the decisions of the Registrar made under Part IV of the Act;
(b) reviews and revisions of arbitrator’s awards made under the Act and
decisions of the Essential Services Committee made under Part VII of the

331
Steadman, F., Handbook on Alternative Labour Dispute Resolutionp. Geneva: ILO, 2017, at p. 7.
332
Rwodzi (2017) at p. 83.
333
Mnookin (1998) at p. 2.

126
Act; (c) equally to review decisions, codes, guidelines or regulations made
by the Minister; (d) complaints, other than those that are to be decided by
arbitration under the provisions of the Act; or (e) any dispute reserved for
decision by the Labour Court and entertain applications for a declaratory
order in respect of any provisions of the Act or an injunction thereof.
However, the Labour Court has discretion to refuse to hear a complaint if,
among others, the complaint has not been referred to mediation by the
CMA. It is important to note that adjudication is carried out by the Labour
Court and Court of Appeal as provided under the Constitution, Cap. 2, and
other relevant laws.

6.3 Modality of Instituting Labour Disputes

Rule 12(1) of the Labour Institutions (Mediation and Arbitration) Rules,
2007 (G.N. No. 64 of 2007) and section 86(1) of the Employment and Labour
Relations Act, Cap. 366 lucidly direct that disputes before CMA must be
initiated through a prescribed Form i.e., CMA F.1 “Referral of a Dispute to
the Commission for Mediation and Arbitration.” Commenting on this
aspect, the Labour Court in Coca - Cola Kwanza Ltd v. William Mhando334
observed that “it is important to state at the outset, that the labour dispute
before CMA is initiated by Form No. 1 (CMA F.1). Neither the mediator nor
arbitrator has the power to make changes on what appears on the referral
form. See Power Roads (T) Ltd v. Haji Omary, Labour Revision No. 36 of
2007. The dispute referred to the Commission is specifically stated in
referred Form above. The Form requires the applicant at item 3 of the Form
to specify type of the dispute which he intent to refer to the Commission.
The same item provides clearly that if the dispute is on termination, the
applicant who is filing the Form has to complete Part B of the Form.”

Equally, in the case of Dar es Salaam Institute of Technology v. Samson M.

Makomba335 it was ruled that “the dispute about the fairness of an
employee's termination of employment must be referred to the
Commission within thirty days from the date of termination or the date
that the employer made a decision to terminate or uphold the decision to
terminate. However, the Commission for Mediation and Arbitration have
discretion to condone any failure to comply with time limitation which is
provided by the rules under rule 31 of G.N. 64 of 2007.” In Tanzania

334
Labour Revision No. 40 of 2017, HC, LD, Mbeya (unreported).
335
Consolidated Revision No. 707 of 2018 and 120 of 2020 at p. 13.

127
Cigarrate Company Ltd v. Reuben Carlo336 the Court made it clear that CMA
F.1 is the one used to initiate the dispute before CMA as per section 86 of
Cap. 366. The CMA had no jurisdiction to award reliefs which were not
claimed in CMA F.1.

6.4 Awarding Costs in Labour Disputes

The law makes it clear that costs in labour disputes are only awarded if the
party to be condemned has acted frivolously or vexatious in bringing or
defending the dispute. Costs are therefore within the discretionary
province of the labour umpire.337 In the case of Stanbic Bank(T) Ltd v. Iddi
Halfani (supra) at pp. 22–23 the Court observed that “labour disputes are
free of costs, interests and fees; however, costs are only allowed where
there is the proof of frivolous and/or vexatious proceedings. Issue of costs
in labour cases was also discussed in the case of Tanzania Breweries Limited
v. Nancy Maronie, Labour Dispute No. 182 of 2015 (unreported) where it
was held that the law is designed to make sure that in making decisions on
costs orders the CMA and LC seek to strike a balance between on one hand,
not unduly discouraging employees, employers, unions and employers
association from approaching the Commission for Mediation and
Arbitration(CMA) and Labour Court (LC) to have their disputes dealt with
and on the other hand not allowing those parties to being frivolous and
vexatious case.

The Court at pp. 24–25 went on to rule that “cost-free labour litigation as
contemplated by the International Instruments had good motive
specifically in assisting the weaker party who have genuine claims to easily
access the court and tribunal with aim of resolving the dispute fairly and
quickly with the spirit of repairing the relationship between capital and
labour. At the same time looking the way forward on how to increase
efficiency through productivity at work and when doing so, social justice is
upheld. The aim of cost-free was not to delay or deny or burry justice
rather was to make sure justice is costless and time met. It should be
understood that cost-free in labour matters is not a leeway or loophole to
the parties to waste time and other resource, either in the Commission or in
Courts and once this is not observed the court or the Commission will

336
Revision No. 746 of 2019, HC, LD, DSM (unreported) at p. 6.
337
See for example, rule 34(1) of the Labour Institutions (Mediation and Arbitration) Rules, 2007
(G.N. No. 64 of 2007).

128
regulate the situation by awarding costs where frivolous and vexation acts
have been proved.” It is therefore important to note that, in labour
proceedings, awarding costs is an exception rather than a general rule; and
it is not always that costs must follow the event.

129
 PART SEVEN
LABOUR INSTITUTIONS

7.1 Definition
Labour institutions are statutory bodies established to administer and
regulate the legislative intent of labour laws. These institutions among
others oversee the implementation and enforcement of rights, privileges,
obligations, and duties of different stakeholders in the employment
industry. In Mainland Tanzania, there are a number of labour institutions
constituting the labour law regime and established to perform various
statutory mandates. The following below are the labour institutions in
Mainland Tanzania: -

7.2 Labour, Economic and Social Council (“Council”)

This is the Council for labour, economic and social matters. It is established
under section 3 of the Labour Institutions Act, Cap. 300. It is important to
point out that not every ‘tom and jerry’ can serve as a member of the
Council; the law makes it clear that the Council must be constituted by
certain members to be appointed by the Minister responsible for labour
matters, namely; one: the chairperson who is not a member, official or
office bearer of a trade union, employers association or federation; or an
employee in the public service of the Government of the United Republic;
two: 16 other members, comprising of the Permanent Secretary and 3 other
members to represent the interests of the Government; 4 members to
represent the interests of employers; 4 members to represent the interests of
employees; and 4 members appointed because of their expertise in labour,
economic, and social policy formulation.338 However, the law directs that
prior to appointing any member of the Council, the Minister should, by
notice in writing, invite nominations from registered trade unions and
federations of trade unions – if the member is to represent employees; or
registered employers’ associations and federations of employers’
associations – if the member is to represent employers.339 On qualifications
of members of the Council – see regulation 3 of the Labour Institutions
(General) Regulations, 2017 (G.N. No. 45 of 2017).

338
Section 4(1) of the Labour Institutions Act, Cap. 300.
339
Ibid., section 4(2).

130
Section 5 highlights the functions of the Council to include, among others,
to advise the Government through the Ministry responsible for labour
matters on measures to promote economic growth and social equity;
economic and social policy; any significant changes to social and economic
policy before it is submitted to cabinet; and the promotion of a coordinated
policy on labour, economic and social matters. The same law also mandates
the Council to advise the Minister on national labour market policy; any
proposed labour law before it is submitted to cabinet; the prevention and
reduction of unemployment; any issue arising from the ILO; any issue
raised by any international or regional association of states of which the
United Republic of Tanzania is a member; codes of good practice; collection
and compilation of information and statistics relating to the administration
of the labour laws; and any other labour matter referred to the Council by
the Minister or the Council considers useful to achieve the objects of the
labour laws.

The Council is empowered, in the performance of its functions, to conduct

an investigation as it may consider necessary; or research into labour,
economic, and social policy.340 With regard to its institutional
accountability and transparency, the Council is statutorily obliged to
submit an annual report of its activities in each calendar year to the
Minister before 30 June of the next year.341 It should therefore be
understood that the Council is the brain of the Government when it comes
to labour, economic and social matters at national and international fora.

7.3 Commission for Mediation and Arbitration (“CMA”)

The Labour Court in AUMS Tanzania Limited v. Peter Ambrose Ka Yombo342
describes the CMA in the following terms: “… [t]he Commission is defined
to mean; the body established to oversee and supervise the activities
pertaining the resolving of the labour dispute. In that capacity the
Commission is headed by the Chairman and the Commissioners who are
appointed by the President under section 16 of the Labour Institutions Act,
Cap. 300, while on the other hand, it is an institution for resolving labour
disputes by mediation and arbitration. In this later capacity the same is
presided over by either the Mediator or Arbitrator depending on the stage

340
Section 5(2).
341
Section 11.
342
Labour Revisions No. 79 of 2018, HC, LD, Mwanza (unreported) at p. 9.

131
of the dispute.” The CMA is established under section 12 of the Labour
Institutions Act, Cap. 300 with the following attributes, that it is an
independent department of Government; in the performance of its
functions, is not subjected to the direction or control of any person or
authority; and is independent of any political party, trade union,
employers’ association, federation of trade unions or employers’
associations.343 The law also demand that relevant stakeholders like the
Government, public authorities and other registered organizations and
federations may, if requested, provide such assistance and cooperation to
the CMA as may be required to ensure the effectiveness and realization of
its attributes cited above.344

The CMA is composed of a chairperson, who is not a member, official or

office bearer of a trade union, employers association or federation or an
employee in the public service – the chairperson is appointed from among
persons who have knowledge, experience, and a considerable degree of
involvement in labour matters; and 6 other Commissioners.345 Besides, the
CMA is mandated to appoint as many mediators and arbitrators as it
considers necessary to perform its functions – it may appoint mediators
and arbitrators on either a full-time or part-time basis and on terms and
conditions determined by it, in consultation with the Office of the Public
Service Management.346 Equally, it has power to remove a mediator or
arbitrator from office only for serious misconduct relating to his functions;
incapacity relating to workplace’s functions; and a material violation of the
code of conduct.347 On the historical account of the CMA, see John Elias v.
The Registered Trustees of Chama Cha Mapinduzi.348

The CMA plays a fundamental role in the administration of labour justice –

it is a pivotal forum where industrial disputes are resolved amicably. The
CMA’s functions include to mediate any dispute referred to it in terms of
any labour law; determine any dispute referred to it by arbitration if a
labour law requires the dispute to be determined by arbitration or the
parties to the dispute agree to it being determined by arbitration or the
Labour Court refers the dispute to it to be determined by arbitration in

343
Section 13.
344
Ibid.
345
Section 16.
346
Section 19.
347
Ibid.
348
Revision No. 175 of 2019, HC, LD, DSM (unreported).

132
terms of the labour law’s dictates and generally may offer to mediate a
dispute that has not been referred to it.349 In order to implement its
functions softly, CMA’s mediators and arbitrators has statutory power to
summon any person for questioning or to attend a mediation or arbitration
hearing if such person’s attendance assists in the resolution of the dispute;
summon any person who is believed to have possession or control of any
book, document or object relevant to the resolution of the dispute – to
appear before the mediator or arbitrator to be questioned and to produce
the book, document or object; administer an oath or accept an affirmation
from any person called to give evidence; and question any person about
any matter relevant to the dispute.350

With regard to CMA’s territorial and conciliatory jurisdiction generally, the

Labour Court has extensively ruled that the CMA has wider jurisdiction in
resolving industrial disputes through ADR. In Zephania O. Adina v. GPH
Industries Ltd351at pp. 6–7 it was ruled that: “[i]n labour cases, jurisdiction is
exclusively conferred to the Labour Institutions which includes CMA as
provided by the Labour Institutions (Mediation and Arbitration) Rules, and
GN. No. 64 of 2007. It goes without saying that the dispute must be filed
before the Commission established in the area in which the dispute arose.
In this case, it is not disputed that the dispute arose in Geita where the
applicant was working; the Commission has already established its office
in Geita which is responsible for settling disputes arising from Geita
Region. Therefore, in the circumstances the Commission with jurisdiction
to entertain the dispute, to mediate and arbitrate the parties is in Geita
Region.” On a similar occasion, the Court in John Elias v. The Registered
Trustees of Chama Cha Mapinduzi (supra) at pp. 9–10 ruled that: “[t]he law is
settled on where the dispute should be mediated and arbitrated by the
Commission. Rule 22 of the Labour Institutions (Mediation and
Arbitration) Rules, GN 64/2007 which provides that: ‘A dispute shall be
mediated or arbitrated by the Commission at its office having responsibility for the
area in which the cause of action arose unless the Commission directs otherwise.’
Since the cause of action arose at Lindi where the respondent was working
and Lindi being the territorial jurisdiction of the Commission which
mediated and arbitrated the dispute in question, the argument that the

349
Ibid., section 14.
350
Ibid., section 20.
351
Labour Revision No. 27 of 2020, HC, LD, Mwanza (unreported).

133
Lindi Commission had no jurisdiction is not only misleading but a pure
misconception. I agree that the Lindi Commission had jurisdiction to
entertain and adjudicate on the labour dispute in question.”

In the case of Daniel Mugittu and another v. Lonagro Tanzania Limited352 the
Court observed at p. 24 that the CMA has jurisdiction to entertain any
labour dispute on termination of the employment contract or breach of
employment contract. In Deogratus John Lyakwipa and Another v. Tanzania
Zambia Railway Authority353 the Court at p. 5 made clear that: “[t]he CMA is
vested with power to mediate and arbitrate the dispute referred to it when
an employee is aggrieved by the decision of the employer, as provided for
under Section 14 (1) (a) and (b) of the Labour Institutions Act No. 7 of 2004
provided that there is existence of employer employee relation.” The CMA
being a Government department, it is obliged to observe the rules of
accountability and transparency to the highest level, to achieve this –
section 28 directs that within 6 months after the end of the financial year,
the CMA is obliged to prepare and submit to the National Assembly,
through the Minister responsible for labour matters, an annual report in
respect of that year containing – a copy of the audited accounts of the
Commission; the auditor’s report on those accounts; a report on the
operations of the Commission; and any other information that the Minister
may require. The Minister is also directed to table the report with the
National Assembly as soon as reasonably practicable.

7.4 Essential Services Committee (“Committee”)

This is the Committee responsible for matters relating to essential services
in the country. It is the Committee within the CMA.354 The main function of
this Committee is to designate essential services in terms of the relevant
labour law and determine disputes about whether or not an employee or
employer is engaged in a designated essential service.355 Essential services
are services that are vital to the health and welfare of people and so are
essential to maintain even in the event of emergencies or calamities. For
example, section 77 of the Employment and Labour Relations Act, Cap. 366
regulates strikes and lockouts on essential services; the law enumerates the

352
Consolidated Revision No. 684 and 753 of 2018, HC, LD, DSM (unreported).
353
Revision Application No. 68 of 2019, HC, LD, DSM (unreported).
354
Section 29 of the Labour Institutions Act, Cap. 300.
355
Ibid., section 30.

134
essential services to include water and sanitation; electricity; health services
and associated laboratory services; fire-fighting services air traffic control
and civil aviation telecommunications; any transport services required for
the provision of these services. The same law mandates the Essential
Services Committee to designate a service as essential if the interruption of
that service endangers the personal safety or health of the population or
any part of it.

The Committee is composed of 5 members with knowledge and experience

of labour law and labour relations – the members are appointees (in
consultation with the Council) of the Minister responsible for labour
matters.356 In discharging its statutory functions, the Committee has
mandate to summon for questioning any person to attend a hearing if the
Committee considers such person’s attendance assists in the performance
of its functions; summon any person, who is believed to have possession or
control of any book, document or object relevant to the performance of its
functions, to appear before the Committee to be questioned and to produce
the book, document or object; administer an oath or accept an affirmation
from any person called to give evidence; and question any person about
any matter relevant to the performance of its functions.357

7.5 Wage Boards

These are boards established to conduct investigation on a minimum
remuneration and other conditions of employment; to promote collective
bargaining between registered trade unions, employers, and registered
employers’ associations; and to make recommendations to the Minister on
a minimum wage and conditions of employment.358

In conducting investigation, the boards are obliged to take into account the
Bill of Rights especially Articles 22 and 23 of the Constitution of the United
Republic of Tanzania, Cap. 2; any applicable Convention or
recommendation of the ILO whether or not the United Republic of
Tanzania is a signatory to the Convention; all representations and other
information submitted to it; all relevant factors including the ability of
employers to carry on their businesses successfully, the operation of small,
medium and micro-enterprises, the operation of new enterprises, the cost

356
Ibid., section 31(1).
357
Ibid., section 32.
358
Ibid., section 36(1).

135
of living, the alleviation of poverty, the minimum subsistence level, the
remuneration and terms and conditions of employment of employees
employed in the East African Community in the sector, any collective
agreements providing for remuneration and terms and conditions of
employment in the sector, the likely impact of any proposed condition of
employment on current employment or the creation of employment, and
any other relevant matter.359 It should also be noted that in the performance
of its functions within its terms of reference, wage boards has power to
question any person who may be able to provide information relevant to
any investigation; require, in writing, any person to furnish any
information, book, document or object that is material to the investigation;
conduct public hearings; facilitate negotiations on a minimum
remuneration and conditions of employment between registered trade
unions, employers and registered employers’ associations in the sector.360

There are two type of wage boards, namely: wage board for private sector
and for public sector respectively. Wage board for the private sector is
composed of the Chairman; the Secretary; 4 members recommended by the
Council to represent interests of employees; 4 members recommended by
the Council to represent interests of the employer; 4 members
recommended by the Council to represent interests of the Government; and
3 members nominated by virtue of their professions, appointed by the
Minister responsible for labour. For public sector, it is composed of the
Chairman; the Secretary; 4 members recommended by the Council to
represent interests of employees; 4 members recommended by the Council
to represent interests of the Government; and 2 members nominated by
virtue of their professions, appointed by the Minister responsible for public
service.361 It must be understood that wage boards are vital labour
institutions that attempts to balance the interests of employers and
employees in workplaces, and uphold the right to a fair remuneration.

7.6 Labour Administration and Inspection Department

This is a pivotal institution in the administration and implementation of
labour laws in the country. It is constituted by Labour Commissioner and a
Deputy Labour Commissioner – appointees of the President; and a

359
Ibid., section 37.
360
Ibid., section 36(2).
361
Ibid., section 35(3).

136
Registrar of Organizations and a Deputy Registrar – appointees of the
Minister responsible for labour matters, they regulate trade unions,
employer organizations and federations under relevant labour laws.
Besides, the department is composed of Assistant Labour Commissioner
who assist Labour Commissioner in the performance of his functions and
many labour officers that are necessary to administer and enforce the
labour laws.362

Labour Officers do administer labour laws and they are statutorily

empowered to, at any reasonable time, enter any premises with a
prescribed certificate of authorization and may command that the premises
or any part of it must not be disturbed during an inspection as long as it is
reasonably necessary to search the premises; search for and examine any
information book, document or object; seize or make a copy of any
information, book, document or object; take a sample of any object found;
take measurements, readings, recordings or photographs; and question any
person on the premises; order, in the prescribed form, any person to appear
before him at a specified date, time and place and to question that person;
require any person who has control over any information, book, document
or object to furnish it and explain any entry in the information, book or
document or on the object; request a member of the Police Force to assist in
the exercise of their powers; request any person to assist as an interpreter
or otherwise in the exercise of their powers; institute proceedings in the
Resident Magistrate’s Court or District Court in respect of any
contravention of any labour law and may appear and prosecute in the
name of the Labour Commissioner; to name just a few.363

The law also makes it clear that a Labour Officer who has reasonable
grounds to believe that an employer has not complied with a provision of
the labour laws may issue a compliance order in the prescribed Form and
serve the same to the employer; any registered trade union with members
among the employees affected by the order; and each employee affected by
it.364An employer is obliged to comply with a compliance order within the
period stated therein. The Labour Commissioner has discretion to apply to
the Labour Court to enforce the compliance order if the employer has not

362
Ibid., section 43 and 44.
363
Ibid., section 45.
364
Ibid., section 46.

137
complied with the same and has not objected thereto.365 The law allows an
employer to object in writing to a compliance order issued within 30 days
of receipt of that order and serve the objection to the Labour
Commissioner, and a copy to any registered trade union with members
among the employees; and display a copy of the objection in a prominent
place accessible to the employees affected by the order. After considering
any representations by the employer, the employees or a registered trade
union, the Labour Commissioner may confirm, modify, or cancel such
order and as the case may be must specify the period within which the
employer must comply with any confirmed order. Labour Commissioner
has discretion to apply to the Labour Court to enforce the compliance order
if the employer has not complied with the order and has not lodged any
appeal.366

It is equally important to point out that an employer has the right to appeal
to the Labour Court against an order of the Labour Commissioner within
30 days of receipt of the order; and upon an application by the employer,
the Labour Court may, on such terms and conditions as it may impose,
suspend the order of the Labour Commissioner pending the final order of
the Labour Court or any other appeal against the decision of the Labour
Court. The Labour Court may thus confirm, modify, or cancel an order, and
the order in respect of which is confirmed, modified, or cancelled must
specify the period within which the employer is to comply with the
confirmed or modified order.367 The law creates an offence to hindering or
obstructing a labour officer in the performance of the officer’s functions or
the exercise of the officer’s powers; refusing or failing to answer, without
good reason, any question put by a labour officer; willfully furnishing false
and misleading information to a labour officer; to name just a few.368

Regarding tenets behind compliance orders, the Court in Labour Officer v.

Operation Manager MMG Gold Ltd369 at pp. 6–7 observes that:

[t]here are four prerequisites for the Court to enforce

a Compliance Order from the Labour
Commissioner or the labour officer. First, the labour

365
Ibid.
366
Ibid., section 47.
367
Ibid., section 48.
368
Ibid., section 49.
369
Execution No. 17 of 2020, HC, LD, Musoma (unreported).

138
 officer must have reasonable grounds that some
labor laws have been breached. This condition
presupposes that there is a complaint in writing by
an employee or employees complaining to the
labour officer. I did not see anything like a
complaint by any worker to the labour officer for
him to properly back his belief. Second, if the first
prerequisite is in place, then the labor officer may
issue a compliance order to the employer. In this
case, the labor officer submitted that he did not
issue one because according to him, he had an order
from the Deputy Registrar of this Court, which
aspect we covered already, that, that was not a
compliance order in eyes of the law, that was the
order of the Deputy Registrar discharging the
application before her, which she successfully did,
and the workers were paid. Third, the employer
must have failed to comply with the compliance
order. In this case this is impossible because no
compliance order was issued in the first place and
fourthly, the employer must in addition to failure to
honor the compliance order but also, he must have
failed to present a valid objection. In this case he
would not have objected because no compliance
order was sent to him.

Equally in Naura Spring Hotel v. Labour Officer and another370 at p. 5 the Court
ruled that “looking at the wording of the provisions of the law, to my view,
the Labour Commissioner or Deputy Labour Commissioner or labour
officer may file an application for execution of a compliance order which
has not been complied with and no objection that has been preferred to the
Labour Commissioner by an employer. The Labour Commissioner cannot
be in a position of filing execution applications in each region and or each
District. He must therefore delegate his powers.” See also Impala Hotel
Limited and another v. Labour Officer and others, Consolidated Misc. Labour
Applications No. 80, 81, 83 and 85 of 2020, HC, DR, Arusha (unreported)

370
Consolidated Misc. Labour Applications No. 83 and 84 of 2020, HC, DR, Arusha (unreported).

139
and Kigoma Hilltop Hotel Limited v. Labour Commissioner, Misc. Labour
Application No. 10 of 2020, HC, LD, Kigoma (unreported).

7.7 Labour Court and Court of Appeal

The Labour Court is the Labour Division of the High Court recognized
under section 50 of the Labour Institutions Act, Cap. 300. The law states
categorical that subject to the Constitution of the United Republic of
Tanzania, Cap. 2 and the labour laws and over employment matter falling
under common law, tortious liability, vicarious liability or breach of
contract within the pecuniary jurisdiction of the High Court, the Labour
Court has exclusive civil jurisdiction over any matter reserved for its
decision by the labour laws.371 It thus important to point out that in line
with the Constitution of the United Republic of Tanzania, Cap. 2 the
Labour Court has exclusive jurisdiction over the application, interpretation
and implementation of the provisions of the labour laws and over any
employment or labour matter falling under common law, tortious liability,
vicarious liability or breach of contract and to decide: (a) appeals from the
decisions of the Registrar made under Part IV of the Act; (b) reviews and
revisions of arbitrator’s awards made under the Act and decisions of the
Essential Services Committee made under Part VII of the Act; (c) equally to
review decisions, codes, guidelines or regulations made by the Minister; (d)
complaints, other than those that are to be decided by arbitration under the
provisions of the Act; or (e) any dispute reserved for decision by the
Labour Court and entertain applications for a declaratory order in respect
of any provisions of the Act or an injunction thereof. However, the Labour
Court has discretion to refuse to hear a complaint if, among others, the
complaint has not been referred to mediation by the CMA.

The law also direct that in the performance of its functions, the Labour
Court have all the powers of the High Court, save that in making a
judgment, ruling, decision, order or decree in so far as it is relevant, the
Court may take into account or consider the need to maintain a high level
of domestic capital accumulation with a view to increasing the rate of
economic growth and to provide greater employment opportunities; to
maintain and expand the level of employment; to develop payment-by-
result schemes, or other wage incentive structures, which will induce an
employee to make greater effort and relate increases in labour productivity;
371
Section 51, Labour Institutions Act, Cap. 300.

140
to prevent gains in the wages of the employees from being affected
adversely by unnecessary and unjustified price increases; to preserve and
promote the competitive position of local products in the domestic market
as well as in the global market; to establish and maintain reasonable
differentials in rewards between different categorize of skills and levels of
responsibility, to name just a few.372

In the case of Patrick Tuni Kihenzile v Stanibic Bank (T) Limited373 the Court
made it clear that under the provision of section 94 of the Employment and
Labour Relations Act, Cap 366 the Labour Court has exclusive jurisdiction
over any employment or labour matter falling under common law, tortious
liability, vicarious liability, or breach of contract. With regard to the Court
of Appeal, the law stipulates that any party to the proceedings in the
Labour Court may appeal against the decision of the Labour Court to the
Court of Appeal of Tanzania on a point of law only as per the Appellate
Jurisdiction Act, Cap. 141 and Court of Appeal Rules, 2009 (G.N. No. 368 of
2009).374

The law also permits the Labour Commissioners to refer a point of law to
the Court of Appeal if there are conflicting decisions of the Labour Court in
respect of the same point of law; and the parties to the proceedings in those
decisions have not appealed.375

372
Section 52, Ibid.
373
Labour Revision No. 47 of 2011, HC, LD, DSM (unreported).
374
Section 57, Ibid.
375
Section 58(1)(b).

141
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