Like any other contract, an employment contract (hereinafter referred to as “the Contract”) has terms and conditions which act as guidelines between employers and employees in performing their respective duties as well as obligations. In addition to these terms and conditions, an employer may have policies, rules and guidelines which are enshrined under various employment and labour legislation in Tanzania Mainland (hereinafter referred to as “Tanzania”), to ensure that the working environment is streamlined and the Contract is appropriately and effectively implemented.
In Tanzania, the main legislation dealing with employment and labour relations include, the Employment and Labour Relation Act, Chapter 366, Revised Edition of 2019 (hereinafter referred to as “the Act”) and the Employment and Labour Relations (Code of Good Practice) Rules issued under the Government Notice Number 42 of 2007 (hereinafter referred to as “the Rules”).
Misunderstandings at the workplace due to poor performance of an employee can sometimes be a detriment to an employer’s business. This may be caused by either lack of specified skills, and/or employee’s negligent behaviour, among other things. As an employer, necessary steps should be taken to rectify the situation in a lawful manner to avoid unfair termination claims.
This article outlines the procedures for addressing an employee’s underperformance at the workplace.
STEPS TO BE TAKEN BY EMPLOYERS FOR POOR PERFORMANCE BY THE EMPLOYEES
In a nutshell, steps that ought to be taken by an employer when an employee underperforms include counseling, verbal warning, written warning (including final written warning) and formal hearing.
When an employee's performance falls below expected standards, an employer should follow a structured process to address the issue effectively and fairly. The following steps outline necessary actions to be carried out by an employer in addressing poor performance of an employee at the workplace: -
Counselling and Verbal Warning
To ensure the standard of performance required, an employer should provide counseling to an employee and thereafter, if necessary, a verbal warning at first instance upon discovery that an employee's performance has been unsatisfactory due to either negligence and/or incapacity either due to lack of skills or knowledge, after counselling. A verbal warning should be provided to an employee for unsatisfactory/poor performance, as stipulated in the Guidelines for Disciplinary, Incapacity, and Incompatibility Policy and Procedures (hereinafter referred to as “the Guidelines”) in the First Schedule of the Rules.
The process of counseling should include evaluation, training, instruction and guidance, and shall provide time for an employee’s improvement. The counseling requirement shall not be necessary if, the employee is of high skills competent to judge whether his/her performance meets the standard required, or if the required standard is of high quality which does not allow any small departure of the skills or services required.
Written Warning
An employer may issue a written warning if the employee's performance has not improved after counselling, or if an employee’s performance still requires stronger actions than a verbal warning. The manager/supervisor should inform an employee the reason for the action and give him a reasonable time to defend himself/herself. This warning shall cease after six (6) months from the issuance, and an employee shall be required to improve his performance otherwise a final written warning shall be issued by the employer.
A good modality before issuing a final written warning, is for an employer (in consultation with the employee) to prepare a performance improvement plan, (hereinafter referred to as “the Plan”) which is a document which sets out the standards and qualities required for specific work helping the employee to reach the goals set out by an employer, within a specific period. Typically, the Plan should contain, the name of an employee, manager or other officials designated, date of the Plan and period taken for the Plan, interim review date and final review date. The Plan should describe the outcomes intended, strategies in achieving such outcomes, the Employer’s support (i.e. training), the employee’s responsibilities in the Plan (should be detailed) and consequences of not meeting the standard provided in the Plan.
The Plan should contain a part for the employee’s self-assessment and a manager’s assessment on the achievement, or improvement of an employee subject to the Plan, signed by both employee, and employer or its manager.
Final Written Warning.
This warning is recognised as the last written warning given for unsatisfactory performance from the employee. This kind of warning is provided, after the written warning or when an employee’s performance continues to be unsatisfactory, despite of the counselling, training and instruction that have been provided by the employer. A final written warning should specify that upon continuation of the poor working performance without acceptable reason whilst the written warning is in operation may attract termination from employment.
Before the final written warning, an employee should be given a chance to represent and defend himself/herself against the allegations raised by an employer. The supervisor/manager shall consider the representation made by an employee and then, upon proof that the performance of an employee is not satisfied, shall continue to issue a final written warning for six (6) months with a caution that any continuation of unsatisfactory/poor performance, will attract termination upon conclusion of the hearing
Hearing
Before an employer making a decision to terminate an employee for poor performance, they should accord an employee, a fair hearing with all credentials required for himself/herself against the alleged claims. During the Hearing, an employee shall be supplied reasonable prior notice specifying the venue, time and facts in which the action(s) are grounded. An employee also shall be allowed to be represented by trade union representatives or fellow employee. After the Hearing, the Chairperson shall proceed to give a decision after considering the aggravating and mitigating factors provided by an employee in accordance with part 4(8) of the Guidelinesenshrined in the First Schedule of the Rules, any decision given at this stage shall be appealable to the senior managerial level which shall be final for disciplinary measures and an employee who wish to challenge the decision if the appellate managerial office should utilize the dispute mechanism contained in the Act.
Before make a decision to terminate an employee, an employer should also consider essential grounds, to include whether an employee failed to meet a performance standard, and if failed, whether he/she was aware or he/she ought to be aware of the standard required, the standard required is reasonable, an employee was given the chance to improve and failed to meets the standard required, and, lastly, the dismissal or termination order is appropriated measures to be taken for recourse.
Conclusion
The employer/employee relationship in Tanzania is governed by a well-established legal framework. Therefore, in case of an employee’s poor performance, employers must conduct a thorough review to ensure valid reasons for disciplinary actions are identified and fair procedures are followed. The steps outlined above should be applied to address each specific case and any grievance by an employee after the senior managerial appellate consideration shall be addressed by the designated courts and/or quasi- judicial organs dealing with labour disputes in Tanzania, like the Commission for Mediation and Arbitration, Labour Court, and Court of Appeal of Tanzania.
By Adv. Eliya Pius – Legal intern Kilindu Giattas & Partners.
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.
