THE UNIVERSITY OF DODOMA

SCHOOL OF LAW

A COMPARATIVE LEGAL ANALYSIS BETWEEN TANZANIA AND SOUTH

AFRICA IN PROTECTION OF PROBATIONARY EMPLOYEES.

By

VANESSA V. BIGAMBO

T21-03-03964
1.1 Background of the Problem.

During colonialism, before the current labor law regime in Tanzania, there was no full
protection of the employees as most laws were made in favor of the colonial masters. The
laws did not uphold the interests of the laborers as most of them were harsh and stipulated
penal sanctions.1 There was a uniform historical development of employment laws in
Tanzania. These laws were exploitative and discriminatory and they restricted most employee
rights.2 Employment relations in Tanganyika prior to 1956 was made compulsory (criminal in
nature) to mean that failure to comply with these laws led to criminal liabilities, this ended
after 1956 where the Employment Ordinance was passed and it permitted voluntary
negotiations between employer and employee. The ordinance was passed to give a way for
the ILO Conventions passed to protect working people.

In this period, employment relations were contractual and not of a criminal or coercive nature
as a result of the Ordinance catering for employment rights and obligations. 3 Prior to this, in
the colonial laws, it is only employers who were given rights over employees and the latter
had none, only duties.4 The employment relationship existent on the pretext of hiring and
firing, it was impossible for any probationary employee to have any rights. Employers were
only focusing on the maximum profit making at the cost of the employees’ rights and for a
long time, this has caused a violation of the rights of the employees such as through long
working hours, discrimination, harassment, and other ill working practices.

The right of employers to “hire and fire” became a detriment to most workers. They could not
claim for their basic labour rights nor claim for improved working conditions. Their work
security was only improved after Tanzania’s independence where laws were enacted to
improve their working conditions.5 These new laws watered down the employers’ Common
Law right to “hire and fire” through limiting the employers’ right to discipline. For example,
Conciliation Boards were established in every district and allowed granting of appropriate
remedies to employees. Also, other laws-imposed duty on employers to pay severance

1
Labour in the Mandated Territory of Tanganyika in 1929 Reports and Enquires 24 International.
2
Shivji, I.G., The Study of the History of Working Class in Tanzania during colonialism (1986) law, state and
the working class in Tanzania, THP, Dar es salaam.
3
The Employment Ordinance, 1956.
4
The master and Native Servant Ordinance of 1927 and 1931; The Factories Ordinance of 1950, the
employment ordinance of 1948
5
The Security of Employment Act of 1964.

1
allowance to employees who were continuous employment with the employer for at least
three months when the employment contract expires/terminated.6

Although new law was enacted still the hiring and firing of workers continued even after
independence and it was a threat of job security to many, despite being one of the
constitutional rights. Justice Mwalusanya once said that the right to work is an important
right as it entails the survival for one’s existence. For this right to exist, there must be
implemented the necessary economic, political and legal orders in the society so as to assure
that every individual capable of working fully enjoys this right. Job security is further the
hallmark of the whole system.7

In responding to that, the Parliament of Tanzania decided to enact two new laws namely, the
Employment and Labour Relations Act (ELRA) and the Labour Institutions Act (LIA) of
2004.

In the issue of a probationary employee working under probationary period, is governed by

the ELRA and its regulations. Yet, this law is constantly undergoing changes through
legislative amendments or judge-made principles but all this change has not brought any
significant difference to an employee who is under probation period. Still employees working
under probationary period are not adequately protected as those employees who work under a
contract.

However, since the coming into force of the Commission for Mediation and Arbitration
(CMA) which is a quasi-judicial body which deals with labour matters and other labour
courts, since the enactment of the ELRA have often held that a probationary employee
working under a probationary period is not entitled to challenge fairness of termination. This
can be witnessed in the case of Patrick Tuni Kihenzile v Stanbic Bank Tanzania Limited,8 as
the labour court stated that an employee under probation period with less than 6 months is not
covered by section 35 of ELRA. It was held that a probationary employee my challenge
termination only under certain circumstances apart from claiming to be unfairly terminated.
The above labour court’s decision raises controversy and ambiguity.

6
The Severance Allowance Act of 1962.
7
Augustine Masatu v Mwanza Textiles limited, High Court of Tanzania at Mwanza, Civil Case No. 3 of 1986
(unreported)
8
Revision No. 47 of 2011, p.3

2
 One among the dilemmas is that if indeed employee put into probation period of three
months and then his employment is confirmed but later terminated before expire of six
months since from first appointment will such employee not entitled to challenge fairness of
termination or unfair termination. In Stella Temu v Tanzania Revenue Authority,9 Stella
Temu, was a lawyer employed by the Ministry of Finance (MOF) in the taxation department.
In the year 1996, she was transferred to the TRA and the main issue raised by the court was
whether that amounted to termination from employment and if so, whether she was heard
before such termination. The court held that Stella was afforded the right to be heard but was
not given an explanation in the context. The court made found that she was entitled to be
informed on the reasons for the non-confirmation. Also, in the case of National
Microfinance Bank v. David Nzaligo,10 the court was faced with the question whether a
probationary employee deserves fair labour practices such as fair treatment. It was held that,
fair treatment is afforded to every employee during the various employment processes
including during job selection and interviews. However, probation is a practical interview,
and that, an employee under probation is not protected under Part E of the Employment and
Labour relations Act (ELRA), such employee cannot be compensated for in a manner
employee are entitled to by the Act.

From above case laws there is an argument that employee with less than six months can be
hired and fired without observance some basic principle of natural justices including right of
legal representation and right to be heard in per the interpretation of case laws probational
employee how is under 6 month of probation he/she is excluded from any right even those
provided to probational employee.

The rights and protection of probational employee are not yet adequate as the stand as a
loophole to be used by the employers in Tanzania. also, the law has not yet provided
powerful and effective mechanism on regulating probational period and probational
employees.

1.2 statement of the problem

The laws relating to labour relations in Tanzania provides for a maximum probation period at
work place with the intention of giving the employers time to assess the ability of a worker
whether he or fit for such position. Generally probationary period serves the purpose of
gauging these criteria from the employee,
9
Civil Appeal No. 72 of 2002
10
Labour Division. Dar es salaam, revision No. 347 of 2011

3
The law in Tanzania provides for the maximum probation period that is should not exceed
twelve months as stipulated under Rule 10(4) of the Employment and Labour Relations
(Code of Good Practice) Rules.11However, section 35 of the Employment and Labour
Relations Act12 does not provide expressly on the rights of a probationary employee as the
provision states hence being ambiguous. The Employment and Labour Relations Act does not
provide and protect probationary employees who face unfair termination as evaluated by
different case laws of the High Court, the Court of appeal, CMA and other labour courts have
often held that probationary employee is not entitled to challenge fairness of termination.

The case of Patrick Tuni Kihenzile v. Stanbic Bank Tanzania Limited13 the case addressed
unfair termination as the labour court excluded employee under probation with less than six
months not covered by section 35 of the Employment and Labour Relations Act. It was held
that a probationary employee may challenge termination only under certain circumstance
other than unfair termination.

The law relating to labour in Tanzania excludes the probationary employee from the rights
enjoyed by permanent employee such as leave and are denied some equal rights enjoyed by
the permanent employees.

As for the laws of South Africa, provides for probationary workers under section 29 of the
Basic Conditions of Employment Act (BCEA) 14as it provides for probationary period under
agreed time upon the employer and employee hence it does not provide for the specific
duration for probationary period. However, the South Africa law offers protection of
probationary employees adequately by giving equal rights to both probationary workers and
other workers. The law of South Africa protects probationary workers of even those who
work for less than six months unlike Tanzania laws which limits the probationary workers
who work for less than six months in claiming unfair termination.

Hence this study tends to draw some lessons from South Africa laws and make a comparison
with Tanzania laws.

11
Employment and Labour Relations Act (Code of Good Practice) Rules, 2007
12
Employment and Labour Relations Act, Cap 366 [R.E 2019]
13
Patrick Tuni Kihenzile v. Stanbic Bank Tanzania Limited, High Court Labour Digest (2013) No. 10
14
The Basic Conditions of Employment Act (BCEA) Act 75 of 1997.

4
1.3 Research Objectives

1.3.1 General Objective

The study analyses the laws governing protection of employees working under probationary
period in Tanzania while making a comparative analysis with the laws and practice of south
Africa.

1.3.2 Specific Objectives

i. To examine the laws governing employees under probationary period in Tanzania

ii. To examine the adequacy in protection of probationary employees in Tanzania as

compared to south Africa laws.

iii. To assess the extent to which the labor laws of Tanzania and that of south Africa in
protection of probationary workers against unfair termination and the differences between
these two states in protection of probationary employees.

1.4 Literature Review

Many authors have written about this study regionally, nationally and internationally
concerning the protection of employees working under probationary period but there will be a
difference between this study and their study.

Dr Johana K Gathongo15 states that probationary appointments aim at the testing of the
employee’s capacity and suitability for the job applied for. However probationary period is
done within a reasonable period. In essence, this is the valid goal of a probationary period and
that it means that probationary period should never be used in abuse of the employee’s rights
as guaranteed by ILO or in order to deprive the employee of any valid claims he has over the
employer. One of the rights which are not complied with is that of being heard prior to
termination.

Furthermore, Dr Johana K Gathongo talked about the ILO convention No.158 and
Recommendation No.166 concerning termination of employment. According to him, the
Convention had been adopted by the ILO so as to deal with the current labour developments
in many countries especially those relating to the employment termination depending on the
employers will for invalid reasons.

15
Gathongo, J.K. Towards a Fair hearing for all employees: A case of probational employees in Kenya and the
right to be heard prior to dismissal. (2020)

5
Robert Vaughn16 was of the view that probationary period has an important aim. However,
there are no standards and requirements which call for a purposeful statement of the reasons
for removing the probationary employee. Their removal can be made easily basing on whims
or emotions and this is owed to lack of protection under the law. Furthermore, Vaughn
examined the effectiveness of probationary periods in assessing job performance and whether
reforms were needed to improve the aspect of civil service management.

Rindstone B. Ezekiel17 stated that since the Employment and Labour Relations Act came
into application in 2006, the CMA and the Labour Court have often held that a probationary
employee is not entitled to challenged fairness of termination. 18 To prove this it seen in the
case of Patrick Tuni Kihenzile v Stanbic Bank Tanzania Limited 19 the labour court took
observation of section 35 of the ELRA excludes probationary employee with less than six
months employment from the provisions which deal with penalizing unfair termination.
However, this case indirectly distinguished unlawful termination from unfair termination. It
held that a probationary employee may challenge termination under certain other
circumstances than unfair termination.

The Decent Workcheck20 states that the ELRA has no statement about probation period. The
Act implicitly requires a probationary period of 6 months by stating that employees employed
for less than 6 months cannot have the right to challenge the issue of unfair termination
against the employer.21 The writer was of the view that there is inadequacy of law in
protecting the interests of the probationary employees specifically those who work for less
than 6 months.

LEE Kiera, in the article she wrote and posted in Essential Guide to Employment Contracts,
she said there should no automatic or implied term in the contract for a probationary period
so it must be stated as an express term. The employees are required to grant a family-based
leave, recognize pregnancy and maternity rights and make a considerable adjustment for
those disabled employees under a probationary period.22

16
Robert Vaughn (1975), The spoiled System. A call for Civil Service Reform.
17
Ezekiel, R.B. Termination of Probationary Employee: Debunking some Myths about Tanzania labour
Legislation, (2013) Open University Law Journal, Vol.4, No, 1:140-148.
18
ibid
19
Patrick Tuni Kihenzile V Stanbic Bank Tanzania Limited, Labour Court revision No. 47 of 2011 High Court
(Labour Division) Dar es salaam. Unreported.
20
Regulations on work and wages, retrieved on www.mywage.org/tanzania, on 14th July 2024 at 10:32 am
21
Section 35 of Act No.6 of 2004
22
Probationary period and the contract of employment, Posted in: Essential Guide to Employment Contracts on
21 November 2016.

6
Alan, P23 discusses that probationary period has no legal standing and if it is entrenched
within the contract, the employer should not be allowed to rely upon it. Where the
employment contract does not contain a provision on how long a probationary period should
be, then it should not be mandatory for the employer to consider in respect of employees who
have been working a few months within the employment. Alan P further stipulated that
during the probationary period, employers ought not to assume that the employees devoid of
any employment rights. The probationary employees should have laws enforcing their rights
consistently in a firm position.

1.5 Hypothesis

It appears that the labour laws of mainland Tanzania do not provide adequate and sufficient
protection to the probationary employees compared to the laws of Republic of South Africa.

1.6 Significance of the research

The study forms an important basis of the employment laws when it comes to the protection
of probationary employees.

The study is essential as it highlights the inadequacy of the law when it comes to protection
of probationary employees in mainland Tanzania.

The research also aims at raising awareness to employees working under probationary period
and other labour stakeholders, on the existing labour laws.

The study is useful in promoting the welfare of the probationary employees as it aims on
enhancing protection of probationary employees through making well defined and consistent
labour laws.

Above all, the findings of this study will contribute to the body of knowledge on the issues of
addressing the protection of employees working under probationary period.

1.7 Research Methodology

This research study will be based on both doctrinal and non-doctrinal research methods. A
doctrinal approach will be used to make documentary review and collect data concerning a
comparative analysis of laws in Tanzania and South Africa in protection of probationary

23
The Rights of employee during their Probationary period. April 25, 2016.

7
employees. The study will employ both primary and secondary tools of data collection for the
purpose of forming the theoretical and material evidence of the respective study.

1.8. Documentary Research

The researcher may employ secondary methods so as to obtain data or information through
books, reports, legal instruments and journal articles. These secondary tools will be useful in
the whole process of data collection. Library materials and online materials will also be used
by the researcher from the library of the school of law at the University of Dodoma.

1.8.1 Field Research

The researcher will also employ non-doctrinal research which involves collection of data
field from first-hand information.

i. Area of study

The geographical area of the study will be within the Tanzania mainland and the specific area
which will be Dar es salaam-Ilala. The main reason is that in this particular region there is a
great number of cases regarding probation period to workers who work under a probationary
period.

The aim is to meet and interview various employers, employees, advocates and members of
the legal academic field so as to extract relevant information.

ii. Population of the Study

The study will engage obtaining information from employers, employees, advocates and
other stakeholders of labour issues who will provide answers regarding the study which will
enable the researcher of this study collect valuable information. Thus, will enable the
researcher achieve the research goal and objectives.

iii. Sampling Technique

The researcher intends to use purposive sampling technique on which the research select the
sample with the qualities required in the sample for instance employees working under
probationary period, employers, advocates and some stakeholders of labour issues.

8
iv. Scope of the Study

The study is based on the laws governing protection of probationary employees in mainland
Tanzania and in the Republic of South Africa. The laws of Tanzania include Constitution of
the United Republic of Tanzania, Cap 2, 1977 as amended from time to time, the
Employment and Labour Relations Act, Cap 366 [R.E 2019] and the Employment and
Labour Relations (Code of Good Practice) Rules, [G.N, NO.42 of 2007].

The laws of South Africa will include the Basic Conditions of Employment Act (BCEA) and
the Labour Relations Act, R.E 2014.

1.8.2. Primary sources of Data

The research study will involve collection of data and information from raw sources which
will include a communication between the researcher and the respondent.

i. Interview

The nature of the study suggests the primary data collection method that involves two or
more people exchanging information through a series of questions and answers. This method
is effective and it helps to explain better understand and explore subject’s opinion, behavior,
experiences, phenomenon; interview questions are normally open-ended questions so that in
depth information will be collected.

ii. Questionnaire

This method will be useful in this research study through gathering information from the
respondents qualified to be questioned. This method saves time and less expensive. The
respondents will be asked a number of relevant questions about the research study and will be
required to provide rational answers.

1.8.3 Secondary sources of Data

This research study intends to involve the use of secondary method of data collection which
is already available. Secondary sources will include the following;

i. Library search

The researcher employs the use of library materials such as textbooks, journal articles,
reports, dissertations, newspapers and publications of written documents. The collection of

9
library materials will the conducted in the library of the school of law at the University of
Dodoma.

ii.Online search

The study involves the extraction of data and materials through online. Various websites and
hyper portals are used to obtain various information regarding the research study. Materials
and data accessed from the internet provides a relatively large part of information and ready-
made data from the other jurisdictions.

1.9 Limitations of the study

A number of limitations were incurred by the researcher during the process of collection
research information. Some limitations include;

i. Budgetary problem, the researcher throughout the research process faced shortage of
funds during data collection process where she was required to travel from place to
place for data collection considering that there were no any sufficient funds allocated
for carrying out the research study.
ii. The researcher also faced a problem of poor response from some respondents where
as some could not provide a positive response to the researcher within a reasonable
prescribed time when consulted by the researcher.
iii. The researcher incurred a time limitation because the time allocated for the collection
of data was too minimal. The researcher is a student hence had a lot to do with the
university academic schedule thus triggers the researcher from efficient and effective
collection of data.

REFERENCE

Book(s)
10
Shivji, I.G., (1986) law, state and the working class in Tanzania, THP, Dar es salaam

Statutes

Tanzania Legislation

The Constitution of United Republic of Tanzania, 1977

Principal Legislation

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

Subsidiary Legislation

The Employment and Labour Relation (Code of Good Practice) GN No 42 Rules of 2007

The Employment Ordinance, 1956.

The master and Native Servant Ordinance of 1927 and 1931; The Factories Ordinance of
1950, The employment ordinance of 1948

The Security of Employment Act of 1964.

The Severance Allowance Act of 1962.

South Africa Laws

The Labour Relations Act, No 66 of 1995

The Basic Conditions of Employment Act (BCEA) Act 75 of 1997.

Journal Article

Ezekiel, R.B. Termination of Probationary Employee: Debunking some Myths about

Tanzania labour Legislation, (2013) Open University Law Journal, Vol.4, No, 1:140-
148.

Gathongo, J.K. Towards a Fair hearing for all employees: A case of probational employees in
Kenya and the right to be heard prior to dismissal. (2020)
11
Robert Vaughn (1975), The spoiled System. A call for Civil Service Reform.

The Rights of employee during their Probationary period. April 25, 2016.

Dissertation

Probationary period and the contract of employment, Posted in: Essential Guide to
Employment

List of Cases

Augustine Masatu v Mwanza Textiles limited, High Court of Tanzania at Mwanza, Civil Case
No. 3 of 1986 (unreported)

Patrick Tuni Kihenzile V Stanbic Bank Tanzania Limited, Labour Court revision No. 47 of
2011 High Court (Labour Division) Dar es salaam. (unreported)

National Microfinance Bank v David Nzaligo, Labour Division, DSM, Revision No. 347of
2013

Stella Temu v Tanzania Revenue Authority, Civil Appeal No. 72 of 2002

Online Materials

www.mywage.org/tanzania, on 14th July 2024 at 10:32 am

12