UNFAIR LABOUR PRACTICES AS A NEW MISCONDUCT BY AN EMPLOYER, ITS RISKS AND HOW TO AVOID IT

UNFAIR LABOUR PRACTICES AS A NEW MISCONDUCT BY AN EMPLOYER, ITS RISKS AND HOW TO AVOID IT 1. Introduction The concept surrounding unfair labour practices is a grey aspect in Tanzania labour laws, especially statutes, although courts (the High Court Labour – Division) are now articulating it in various decisions. Traditionally, employers were faulted and penalised by failure to follow procedures or give a valid reason for termination. Issues like promotion, demotions, retentions (renewal/nonrenewal of contracts), re-engagement/re-instatement, termination of probationary employees, at a wide scope, were on the whims or discretion of the employer. Morden labour practices have pushed jurisdictions, including Tanzania Courts, to bring a way that cures the problem. And unfair labour practices aspect comes in as bridge to the longlamented standing.

There is a mushroom of claims now filed by employees on the aspect. 2. What are unfair labour practices? There is no hard definition of the term, which means it can be as wide as possible. It is advisable for employers to have a good knowledge of it to avoid associated risks. Whilst this can be similar to a misconduct on the side of the employer, it is more sensitive as it tends to cover all levels of employees’ even those under probation or under six months of employment with the respective employer, who according to Tanzanian labour laws could not successfully claim compensation for unfair termination.

Unfair labour practices cover an act or omission by an employer to be fair on a range of issues like promotion, demotion, training, benefits, unfair suspension, renewal of contracts, treatment of probationary employees, failure to issue permanent contracts after pro-longed fixed term contracts, failure to re-employ or re-instate an employee etc. 2.1. What an employee needs to prove for a claim of unfair labour practice? Some aspects of unfair labour practices and what an employee can simply prove; Aspect Proof Possible defence by employer Promotion - Failure to promote or increase salary/benefits or rank regardless of contract or employer’s practice etc. - Financial difficulties, terms of the agreement, performance, misconducts, performance meetings and inadequacy of employee, pro-longed absences, failure to meet KPIs etc.

Demotion - Loss of benefits, lowering rank (not duties/roles), change of duties to those below the rank and which are not in the skills set of the employee. - To avoid retrenchment/termination on serious misconduct etc. Training - Failure to train where contract provides, inconsistence or arbitrary choice for employees to be trained. - Lack of funds/budget/technology/qualifi cation etc. Benefits - Failure to accord benefits like mobile phones or - Financial difficulties, terms of the agreement, performance,

airtime, transport or rental allowance, notch or performance bonus and others either due to employer’s practice or collective agreement. misconducts etc. Suspension - Unfair suspensions without good reason, without time limit, with pronged time unreasonably etc. - Suspension was fair in terms of time and reasons. Renewal of contracts - Prospects of renewal, renewal for short time than previous contract, no reason for non-renewal etc. - Reason given, notice given, employee required to ask for renewal or extension, end of contract term needed no notice etc. Treatment of probationary employees - Not afforded right to be heard, lack of reason for termination or nonconfirmation etc. - Depending on circumstances – abscondment etc. Failure to issue permanent contracts - Issue of short-term contracts for unskilled employees, continuous work or activities etc. - Depends on circumstances.

Failure to reemploy or reinstate an employee - Expressly or impliedly the employee has to be reengaged/re-employed etc. - Depends on circumstances. 3. Possible risks or penalties for unfair labour practices As of the date of this Updater, there are no fixed penalties under the labour laws but the tribunal/court has discretion to determine the penalties applicable, taking into account precedents in place. The penalties that a successful employee might be awarded by the courts or tribunals are not different from those of breach of contract or unfair termination of employment. For permanent employees, the minimum penalty is payment of salary of not less than 12 months, in addition to other terminal benefits, this is regardless the employee was on probationary period or not.

For fixed term contracts, penalties can be imposed for salary of the remaining period prior to such termination or as may otherwise be determined by court/tribunal. Disclaimer The views expressed in this paper are those of the author only and should not be considered as an official interpretation, defamatory or interference of any legislation, laws or policies of any country including Tanzania. The contents of this paper should not under any circumstances be reproduced or used without our express written consent. It should not be considered as a legal advice to any of its recipient(s) and should not be relied upon without obtaining further legal advice. We accept no liability for any loss occasioned or suffered due to the contents of this paper.