INTRODUCTION
In Tanzania, labour related legislation is designed to protect both employers and employees, to varying degrees. These laws cover a range of areas, including the rights, duties and procedures for resolving disputes among employees and employers as well as providing redress for both parties. However, probationary employees are treated slightly different from employees who have their employment status confirmed by their respective employers. This article aims to provide insights into the governance and termination procedures applicable to probationary employees.
PROBATIONARY EMPLOYEES
Probationary employees are individuals who, through a mutual agreement with the employer, work under the supervision of the employer on a trial basis for a specified period. During this time, they must meet the specified standards set by the employer within the defined period in order to achieve permanent employment. Rule 10 (4) of the Employment and Labor Relations (Code of Good Practice) Rules, issued under Government Notice Number 42 of 2007 (hereinafter referred to as the “Code of Good Practice”)provides thatthe probation period should be reasonable and not exceed twelve (12) months. Typically, probation lasts between three (3) to six (6) months, with possible extension of time in case the employers require more time to assess the competency of the employee but not exceeding 12 months.
Furthermore, Employment and Labour Relation Act, Chapter 366, Revised Edition of 2019 of the laws of the United Republic of Tanzania (herein referred to as the “Employment and Labour Relation Act”), provide redress for unfair termination for the employees who work for more than six months after being employed and not under probationary period.
This means that probationary employees, who often have not yet reached the six-months of service, cannot claim for unfair termination since the provision under the Employment and Labor Relation Act specify "employees" rather than "probationary employees," and explicitly excludes those with less than six months of service from seeking remedies for unfair termination, although they may seek redress for unfair labour practice.
HOW PROBATIONARY EMPLOYEE CAN BE PROTECTED FROM UNFAIR TERMINATION.
Since the Employment and Labour Relation Act does not provide room for probationary employees to sue for unfair termination, then, affected individuals can instead pursue their rights by filing a claim for unfair labour practice claiming for reinstatement or compensation for unfair labour practice. The High Court of Tanzania, in alignment with the Code of Good Practice has provided redress for unfair labour practice in the case of Agness B Ruhere vs. UTT Microfinance Plc Revision Number 459 of 2015, High Court Labor Division, Dar es Salaam Registry (herein referred to as “the Case”). The court outlined the procedures for the termination of probationary employees as detailed below.
PROCEDURE FOR FAIR TERMINATION AND AVOIDANCE OF UNFAIR LABOUR PRACTICE TO PROBATIONARY EMPLOYEES
Since the employer cannot be held accountable for unfair termination of probationary employees, it does not suffice to say, this employee has no right to sue for unfair labour practices. In the Case, the complainant successfully sued for unfair labour practice and was awarded compensation. The Court, in deciding the Case, relied upon Rule 10(8) of the Code of Good Practice to emphasis certain procedures for the fair termination of probationary employees, as follows: -
The law mandates that an employer must clearly communicate any concerns about an employee’s performance or areas where improvement is needed, allowing the employee to address or respond to the employers concerns. It is important for the employer to provide evaluations, instructions, training guidelines, or counseling to support the employee in making necessary corrections.
The employee should be given time to address the weaknesses identified by the employer. If, after this period, the performance still fails to meet the agreed standards, the employer may issue a notice of termination to the employee.
The employee should be given the opportunity to address and respond to the concerns or doubts raised by the employer regarding the required performance, or a claim raised by the employers about the performance.
The notice of termination shall be the last resort after the employers satisfy himself that the performance of the probationary employees even after instructions and provision of the grace period for him/her to reform does work out. At that point, the employer may issue a notice of termination. In the Case, the court emphasized the necessity for the probationary employee to be informed about their right to refer the matter to the Commission for Mediation and Arbitration (CMA) for further resolution in case of any grievance.
CONCLUSION
The Employment and Labour Relations Act, particularly in cases of unfair termination outline some redress a person can take for reliefs but subject to the one criterion of being an employee over six months. It is our views upon an inquiry that most probationary employees do not meet the six months criteria hence remain unprotected for unfair termination through the Employment and Labour Relation Act, therefore become vulnerable to unfair termination without consideration of their rights. To address this gap, the law, along with relevant case law, provide a conducive way for probationary employees who are not classified as employees under the Employment and Labour Relation Act, to safeguard their rights by claiming for unfair labour practice. This serves as a reminder to all employers to adhere to proper procedures to avoid allegations of unfair labour practices.
By Eliya Pius – Legal intern.
Note: This is not a legal opinion, and the contents hereof are not meant to be relied upon by any recipient unless our written consent is sought and explicitly obtained in writing.
