Sunday, June 22, 2014

Important issues related to termination of employment

Elizabeth Mlemeta

Elizabeth Mlemeta 

By Elizabeth Mlemeta

Our labour justice system is laden with disputes resulting from termination of employment, hence the choice of today’s topic. As a general rule, it is unlawful for an employer to terminate the employment of an employee unfairly.

Termination is unfair if the reason for the termination is not valid and the termination is not done in accordance with fair procedure. The procedures for termination vary depending on the reason for the termination.

An employee’s contract of employment may be terminated for various reasons such as misconduct, incapacity, poor work performance, ill health or injury, incompatibility or operational requirements of the employer.

Terminating someone’s employment unfairly subjects the employer into unnecessary legal challenges and costly disputes. Consequently, when it is proved before the Commission for Mediation and Arbitration(CMA) or a court of law that an employee has been terminated from employment unfairly, the employer can be compelled by the said fora :

(a) to reinstate the employee without loss of remuneration during the period that the employee was absent from work due to the unfair termination; or

(b) to re-engage the employee on any terms that the said fora may decide; or

(c) to pay compensation to the employee of not less than twelve months’ remuneration. Thus, to avoid these risks, it is essential to understand how to handle terminations of employment.

In this piece, I only intend to discuss the requirements for terminating someone’s employment due to misconduct. I begin with the issue of fairness of the reasons for termination. In considering the fairness of the reason, it is important to understand that not all misconduct may justify termination.

For a misconduct to warrant termination, the same shall be so serious to the extent of making an employer-employee relationship unbearable. Rule 12(3) of the Employment and Labour Relations (Code of Good Practice) Rules of 2007 outlines the acts which may justify termination to be acts such as gross dishonesty, willful damage to property, willfully endangering the safety of others, gross negligence, assault on a co-employee, supplier, customer or a member of the family of, and any person associated with the employer and gross insubordination.

The list of misconducts is never closed, but open ended. The important thing to note here is that some misconduct can be punished gradually by penalties other than termination; eg warnings, reprimands, demotions, suspensions, etc.

No matter how serious the misconduct, the law requires employers to ensure that they terminate employment fairly. In other words, the common law concept of hire and fire or termination at the will of the employer is not applicable in Tanzania and may cause some employers to incur huge losses.

This means instant firing of an employee is improper and should be avoided. Nevertheless, in circumstances where the employee’s presence could create difficulties at the workplace or obstruct the investigation of the alleged offence, the employee may be suspended with full pay pending investigation.

The Code of Good Practice requires an employer in deciding whether a termination of employment due to misconduct is appropriate to consider

(a) whether or not the employee contravened a rule or standard regulating conduct relating to employment

(b) if the rule or standard was contravened, whether or not it is reasonable, clear and unambiguous, the employee was aware of it, or could reasonably be expected to have been aware of it; whether it has been consistently applied by the employer; and whether termination is an appropriate sanction for contravening it.

With regards to the fairness of the procedure, the law requires the employer to investigate the allegations, and if need be, conduct a disciplinary hearing, by adhering to the following requirements

(i) to conduct an investigation to ascertain whether there are grounds for a hearing to be held,

(ii) the employer shall notify the employee of the allegations using a form and language the employee can reasonably understand. The employee shall be given reasonable time to prepare for hearing, which time depends on complexity of the case and shall not be less than 48 hours. In case of a collective misconduct the collective hearing may be held by following the same procedures,

(iii) In the said hearing the employee is entitled to be assisted by a trade union representative or a fellow employee,

(iv) The hearing shall be held and finalized within reasonable time, and chaired by a sufficiently senior management representative who shall not have been involved in the circumstances giving rise to the case,

(v) Evidence in support of the allegations shall be presented at the hearing. The employee shall be given an opportunity to respond to the allegations, question any witness called by the employer and to call witnesses, if necessary,

(vi) The employer may proceed with the hearing in the absence of an employee if he or she unreasonably refuses to attend the hearing,

(vii) If the employee is found guilty of the allegations, he /she must be given an opportunity to put forward any mitigating factors before a decision is made on the sanction to be imposed,

(viii) After the hearing, the employer shall communicate the decision taken, and preferably furnish the employee with written notification of the decision, together with brief reasons

(ix) Where employment is terminated, the employee shall be given reasons for termination and be reminded of any rights to refer the dispute to the CMA for determination of the fairness of the termination.

It is not economically smart or sensible to make haphazard termination decisions. Those decisions are costly. Hence we urge employers to abide by the law, and consult whenever they contemplate a termination, whatever the reason.

Additionally, employers must ensure they have well drafted employment contracts and up to date policies or manuals that will manage the conducts of employees.

The advantage of having these policies at the work place is that an employee may understand what the employer expects of him/her and the employer will understand how to apply and consistently enforce the policies.

The said documents should be disseminated to the employees at the commencement of their employment and an employee should sign once she receives them.