MZUMBE UNIVERSITY

FACULTY OF LAW

COURSE : LLB 2
NATURE OF WORK : GROUP ASSIGNMENT
SUBJECT : LABOUR LAW
SUBJECT CODE : LAW 230
LECTURER : DR. KADILU
PARTICIPANTS GROUP NO.03 (D)

01: YUSUPH HAMISI KISWAGA : REG 1236009/T.20

02: RICHARD ALLAN CHABO : REG 1236041/T.20

03: BRUNO MATHIAS NJOGOLO : REG 1236010/T.20

04: REHEMA E MWASONYA : REG 1236239/T.20

05. EUJEN SWEETBERT GAHUNGA : REG 1236044/T.20

06: JANETH A. NKENZI : REG 1236241/T.20

07: MARTHA GODFREY MBOYA : REG 1236244/T.20S

08: MAGOOGE CHACHA MARO : REG 1236261/T.20

Question;

Siguru Tende and Mnyansombo Juma were employed by the Abood Bus Service Co. Ltd as bus
drivers working under agreed terms. The Abood Bus Service Co. Ltd was forced to change
contract unilaterally and forced Siguru Tende and Mnyansombo Juma to sign new terms. Siguru
Tende and Mnyansombo Juma refused to sign new terms and they were told verbally that if they
did not want to work for new terms, they should pack their buses and leave. Siguru Tende and
Mnyasombo Juma decided to resign from the employment and requested to be paid their
benefits. What did the Procedure the Company flout? Explain
WORK OUTLINE

1.0 INTRODUCTION

1.1 general concept of contract of employment

1.2 Particulars of employment contract

2.0 MAIN BODY

2.1 Manner of changing terms of employment contract

2.1.1 Ammendment of contract

2.2.0 PROCEDURES FOR CHANGING CONTRACT OF EMPLOYMENT

2.2.1 Consultation of the changes to the employee by the employer

2.2.2 Negotiation between the employer and employee on the amendment proposal

2.2.3 What should the employer do in case negotiation to change the contract fails?

2.4 PROCEDURES FLOUTED BY ABOOD BUS SERVICES CO. LTD

3.0 CONCLUSION

REFERENCES

Scope

The question need us to discuss various procedure that flouted by Aboud Bus services Company
limited to make an end of the contract of employment to these employees.On attempting the
question,we devide the work into three part of which first part contain an introduction which
entails of the concept of employment of contract and particulars of employment of contract. The
second part consist of the Manner and procedures of Changing employment of contract and the
last part is of conclusion which summarise the answer of the question.

INTRODUCTION

The contract of employment between employer and the employee is not one single document but
comprises the contents of any offer letter, any verbal promises made by the employer to the
employee that are intended to be part of the contract, and any other written terms and conditions
applying to this type of job in the company, such as those that might be contained in any staff
handbook.1 There may also be customary practices in the company that would also form part of
the contract. For example, if you customarily pay a Christmas bonus to all staff this would be
likely to be equally applicable to any new employee, unless there were conditions attached to the
payment, such as a minimum length of employment.2

There are also aspects of the employment contract that are not written anywhere, but are
implied.3 For example, it is to be expected that any employee will follow any reasonable
instructions given by an authorized manager and, equally, that you as the employer will provide
all the necessary facilities to enable an employee to be able to do her job effectively. Where the
company has collective agreements, for example, agreements negotiated between the employer
and any unions or employees’ representatives, these will also be part of the employee’s contract
although they may not actually be contained in a staff handbook.4

Particulars of employment contract

What is written into a contract is a matter for agreement between the employee and you and is
not specified by law. However, it is a legal requirement that you issue any employee with a
written statement of employment particulars within two months of commencing employment.
The content of this statement is specified by the Employment and Labour Relation Act5 must
include the following information just to mention few; (i) the parties to the agreement, the name

1
Chandler, P 2003 Waud’s Employment Law, 14th edition, Kogan Page, London Employment Rights Act 1996
2
Ibid
3
Essential Facts – Employment (2009) Croner, Kingston upon Thames, Surrey Working Time Regulations 199
4
Ibid
5
[Cap. 366, R.E 2019]
of the employer and the employee, (ii) the date employment began, (iii) the date continuous
employment began, (iv) the remuneration and method of calculating it, (v) terms and conditions
relating to hours of work.

MANNER OF CHANGING TERMS OF EMPLOYMENT CONTRACT

Amendment of employment contract

A contract of employment is an agreement between employer and the employee and can only be
changed by agreement. Although certain common changes such as an increase in pay will be
mutually agreed between both parties, any unilateral change by the employer will be likely to be
a breach of contract.6 Employer should always therefore try to obtain the employee’s agreement
to any contract changes. Problems most commonly arise when an employer, for business reasons,
tries to make changes to the existing contract, which are not accepted by the employee. 7 If the
employee cannot be persuaded to accept the new terms the only options are either not to change
the contract, or to terminate the existing contract and offer to re-employ on a new one. The
danger is that any such action could amount to an unfair dismissal, unless justified by strong
business reasons. Imposing the changes without consultation could give rise to claims for breach
of contract, and constructive dismissal if the employee resigns.8

PROCEDURES FOR CHANGING CONTRACT OF EMPLOYMENT

Consultation of the changes to the employee by the employer

As aforesaid a contract of employment is an agreement between the employer and employee,

therefore no employer can change terms of the contract unilaterally without informing the
employee about the changes that would amount to the fundamental breach of contract unless the
contract itself allows at some point that the employer can unilaterally alter the contract. 9 Also
according to section 15(4) of the Employment and Labour Relation Act, it provides that where
any matter stipulated in subsection 1 change, the employer shall, in consultation with the

6
Cushway, B., The Employer’s: An Essential Guide to Employment Law, 6th Edn, London: Pearson Education Ltd,
2009,p. 63
7
Ibid
8
Ibid
9
Ibid
employee, revise the written particulars to reflect the change and notify the employee of the
change in writing, commonly known as written statement.

Negotiation between the employer and employee on the amendment proposal

This is a stage where by employer and employee sat down to discuss on the amendment proposal
as to why should the change in contract of employment should be effected. 10 During the stage of
negotiation the parties may wish to be represented by their representatives whose are trade union
for the part of employee and employer’s association in case for the employer. 11 If the parties they
are represented then the bargaining or negotiation may be regarded as a bargaining agreement if
it is conducted with regard to the formalities of a collective bargaining. 12 For example in 2012
the Tanzania Union of Industrial and Commercial Workers Field Branch of TPCC and
Tanzania Portland Cement Company, there emerged the need for change of contract of
employment, and the parties they agreed to negotiate on changing the terms through collective
bargaining and they reach an agreement which was entered on 14th day of December 2012.

What should the employer do in case negotiation to change the contract fails?

In case the negotiation to change the terms and conditions of the Contract fails to meet the
consensus, then the employer should not force employees to accept the changes. But rather he
has to give a reasonable notice of termination and with intention of re-offering the employees on
new contract with new terms.13 In terms of section 41 of the Employment and Labour
Relations Act,14 both the employer and employee may terminate the contract of employment by
giving statutory or agreed notice. In case of statutory notice, the period of notice shall not be
more than seven days if the notice is given in the first month of employment and this is

10
Cushway Supra p. 64
11
Ogembo, G., Employment Law, Nairobi: LawAfrica Publishing Ltd, 2017, p. 56
12
Bell, C. A., Nutcase Employment Law, 3rd Edn, London: Sweet&Maxwell Ltd 2007, p. 45
13
Cushway, p. 63
14
[Cap. 366, R.E 2019]
especially for probationary employees.15 And for four days if the employee is employed on daily
or weekly basis, and 28 days if the employee is employed on a monthly basis.

Therefore the main purpose of following the procedure of changing terms of contract of
employment is to avoid the danger that any such action could amount to an unfair dismissal,
unless justified by strong business reasons. Imposing the changes without consultation could
give rise to claims for breach of contract, and constructive dismissal if the employee resigns.

PROCEDURES FLOUTED BY ABOOD BUS SERVICES CO. LTD

For changes of terms of employment contract to be justifiable, the employer must have
considered and strictly followed the procedure required. Once Cushway said that;

“If the employee cannot be persuaded to accept the new terms the only options
are either not to change the contract, or to terminate the existing contract and
offer to re-employ on a new one. The danger is that any such action could amount
to an unfair dismissal, unless justified by strong business reasons. Imposing the
changes without consultation could give rise to claims for breach of contract, and
constructive dismissal if the employee resigns.”

From the above discussion, the Abood Bus Service Co. Ltd, fails to follow the procedure of
consulting the two employees namely Siguru Tende and Mnyansombo Juma on changing their
employment contract, as it was stated in the case of March L. Lumanija and Another v.
Tanganyika Bus Service Company Ltd16 where Rweyemamu, J. held that, change of applicant
employment from monthly pay to daily pay amounted to fundamental change to the terms and
conditions of employment, and such a change unilaterally (without prior consultation)
amounted to unfair labour practice which in law could be interpreted to constitute constructive
termination or forced termination of the applicants’ employment. And also the Company failed
to dwell into negotiations to afford the employees with right to be heard as to why the contract
should or not be changed.

15
Ackson, A., Et al, Employment and Labour Relations in Tanzania, Dar es salaam: LawAfrica, 2014, p. 99
16
Revision No. 223 of 2008, in the High Court of Tanzania Labour Division at Mwanza (unreported)
The governing authority from a Canadian case once the Ontario Supreme Court held that, in
Francis v. Canadian Imperial Bank of Commerce 17 “the law does not permit employers to
present employees with changed terms of employment, threaten to fire them if they do not agree
to them.” The consequences if the employer forced the employee to accept the change in contract
employee may wish to resign as a way to protect his interest for the ground that such conduct by
the employer it intolerable.18 In relation to the scenario given it is observed that Siguru Tende
and Mnyamsombo Juma were threatened that if they are not ready to accept the new term they
should pack the buses and leave, in consequently the decided to resign. In the case of Wronko v.
Western Inventory Service Ltd19 Ontario Supreme Court had this to say;

“The employee may make it clear to the employer that he or she is rejecting the
new term. The employer may respond to this rejection by terminating the
employee with proper notice and offering re-employment on the new terms. If the
employer does not take this course and permits the employee to continue to fulfill
his or her job requirements, then the employee is entitled to insist on adherence to
the terms of the original contract. In other words, if the employer permits the
employee to discharge his obligations under the original employment contract,
then – unless proper notice of termination is given – the employer is regarded as
acquiescing to the employee’s position. As Mackay J.A. so aptly put it: ‘I cannot
agree that an employer has any unilateral right to change a contract or that by
attempting to make such a change he can force an employee to either accept it or
quit.’”

CONCLUSION

The Company was supposed not to force its employee Sigiru and Mnyansombo to accept the
new terms, but as they have been disagreed the Company had to give them a notice of
termination of their employment as per section 41 of the Employment and Labour Relation
Act, and offering re-employment to them in newly changed contract as it wish.

17
(1994) ONCA 1578
18
Section 36 of the Employment and Labour Relations Act [Cap. 366, R.E 2019]
19
(2008) ONCA 337
 REFERENCE
STATUTE
The Employment and Labour Relations Act [Cap. 366, R.E 2019]
CASES
Francis v. Canadian Imperial Bank of Commerce (1994) ONCA 1578
March L. Lumanija and Another v. Tanganyika Bus Service Company Ltd, Revision No. 223 of
2008, in the High Court of Tanzania Labour Division at Mwanza (unreported)
Wronko v. Western Inventory Service Ltd, (2008) ONCA 337
BOOKS
Ackson, A., Et al, Employment and Labour Relations in Tanzania, Dar es salaam: LawAfrica,
2014
Bell, C. A., Nutcase Employment Law, 3rd Edn, London: Sweet&Maxwell Ltd 2007
Chandler, P., Waud’s Employment Law, 14th edition, Kogan Page, London Employment Rights
Act 1996, 2003
Cushway, B., The Employer’s: An Essential Guide to Employment Law, 6th Edn, London:
Pearson Education Ltd, 2009
Ogembo, G., Employment Law, Nairobi: LawAfrica Publishing Ltd, 2017