There are new developments in Tanzania regarding the qualification of a chairperson of a Disciplinary Committee hearing disciplinary charges against an employee accused of misconduct.
The High Court (Labour Division) in a recent decision of Lucy Mandara vs. Tanzania Cigarrete Company Limited, Revision Number 185 of 2020 delivered by the Honourable Judge Aboud on 1st April 2021 addressed scenarios where the chairperson of a Disciplinary Committees is outsourced to hear disciplinary charges against an employee.
It is worth noting that, Guideline 4 (2) of the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedure of the Employment and Labour Relations (Code of Good Practice) Rules published under Government Notice Number 42 of 2007 (the “Guidelines”), does not cater for such a scenario. That is, where an employer can outsource a person to chair a Disciplinary Committee, but rather, it only stipulates that a Senior Manager should be appointed as the chairperson of the Disciplinary Committee.
This new decision captures such a circumstance, and what employers should take into consideration when outsourcing for such services.
Brief facts of the case:
The employee in question was accused of gross insubordination and gross negligence by the employer. Thereafter, the employer constituted a disciplinary committee which was chaired by the employer’s private lawyer, who at that time provided legal services to the Employer on a routinely basis. The outcome of the hearing of the disciplinary committee lead to the termination of the employee’s contract of employment. Aggrieved by the termination, the employee referred the matter to the Commission for Mediation and Arbitration (“CMA”). The CMA found that the applicant was fairly terminated substantively, however, on the part of termination procedures, the Arbitrator was of the view that the applicant was not afforded the right of representation, and accordingly, awarded her six (6) months’ salary and a certificate of service as compensation for the procedurally unfair termination. The employee being unsatisfied by the Arbitrator's Award, filed to the High Court (Labour Division) an application to revise the Arbitral Award.
The Court’s decision:
The Court, benched by Honourable Aboud, J., observed that the Chairperson of a disciplinary committee in a disciplinary hearing involving an employee accused of misconduct should be a Senior Manager or Management Staff of the employer as accorded in the Guidelines 4 (2) of the Guidelines. However, in the circumstances were there are no Senior Managers qualified to chair the Disciplinary Committee, the law allows employers to outsource a competent person to act as a chairperson of the Disciplinary Committee, provided that the person elected is impartial, completely neutral and not on the payroll of the employer.
The Honourable Judge further elaborated that, a private advocate who is engaged by an employer to provide legal services and is on the payroll of the employer, does not qualify to act as a chairperson to the Disciplinary Committee regardless of whether he/she is employed by the employer. The Honourable Judge stated that “is my view the law envisaged the situation where the employer does not have the required senior manager, for instance when it is a small company with no enough senior managers to handle the matter or for any other reasons. Then the employer can find someone from outside that particular office who possess the qualities to chair the committee.”
Conclusion:
Although the law is silent on the matter of outsourcing for a chairperson of a Disciplinary Committee, it still anticipates that employers can still outsource in circumstances where the company lacks adequate senior management in cases of small or start-up companies or when the senior managers available are unsure of their impartiality. However, when the employer decides to outsource, they should ensure that the person elected to chair the Disciplinary Committee outside its employment structure is completely impartial, neutral and is not on their payroll.
By Diana Bahesha – Advocate.
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.
