MY PRACTİCAL OVERVİEW ON COMMON MİSTAKES THAT

MAY AFFECT EMPLOYMENT CASE BETWEEN THE

EMPLOYER’S AND THE EMPLOYEE’S. 1

1: EMPLOYER’S

(i) Procedural Mistakes before and after termınatıon

of employee’s employment contract.

That the effect of not according to a party to be heard was discussed

by the Court of Appeal of Tanzania in the case of Abbas Sherally
Mehrunissa Abbas Sherally Vs. Abdul Sultan Haji Mohamed
Fazalboy 2 quoted with approval decision in the case of General
Medical Council Vs. Spackman 3 . Where it was held that,

"…if principles of natural justice are

violated in respect of any decision it is
indeed immaterial whether the same
decision would have been arrived at in the
absence of the departure from the essential
principles of justice. The decision must be
declared to be no decision."

According to section 37(2) of the Employment and Labour Relations

Act 4 a termination of employment by an employer is deemed unfair if
the employer is unable to prove the following:

 The reason for the termination is valid,

 The reason is a fair reason and
 The employment was terminated in accordance with a fair
procedure.

In my experience at the Commission for Mediation and Arbitration 5 , it

is a far greater challenge to prove that fair procedure was adhered to
than to prove the fairness and validity of a reason for termination of
an employment contract. This is due to a lack of codification and the
technical nature of some of the procedure.

1
Former HR Officer and Currently Legal Officer of Yapi Merkezi Insaat, A constructing Company of
Tanzania Railway Standard Gauge (SGR - Line) Morogoro – Dar es salaam and Morogoro -Dodoma-
Makutupora (MDM PROJECT), Author at academicians website, www.academia.edu.
2
Civil Application No. 133 of 2002, Court of Appeal of Tanzania at Dar es Salaam
(unreported) at page 8.
3
(1943) AC 627.
4
Act No. 6 of 2004.
5
Herein CMA as established under S.12 of the Labour Institution Act, 2004.
1
The following are procedural common mistakes that are
done by many employers that may affect employment case
before labour court.

1. Failure to issue a show cause letter to an employee prior to

taking disciplinary action. A show cause letter is issued to an
employee who is alleged to have committed a misconduct. It
details the incident and requires the employee to explain the
reason(s) a disciplinary action should not be taken against
him/her. This is not prescribed in the law, however an omission
of this step may be considered by the Commission for Mediation
and Arbitration as a breach of rules of natural justice i.e. Not
allowing the employee/s to defend themselves.

2. Failure to issue a notice of disciplinary hearing or issuing a

notice of less than 48 hours. Rule 13(3) of the Employment
and Labour Relations (Code of Good Practice) Rules 6 requires an
employer to issue an employee with reasonable notice of an
intended hearing to allow him/her to prepare for the hearing.
The Code requires such notice to be of not less than 48 hours.

3. Failure to include the allegations or charges facing the

employee in the notice of a disciplinary hearing.The
Employment and Labour Relations Act 7 and the Code do not
expressly require the employer to notify the employee of the
allegations that the latter will be faced with. However in
practice, the Commission for Mediation and Arbitration and/or
the court may decide that the hearing was unfair where the
employee was not informed of the allegations facing them ahead
of the disciplinary hearing.

4. Failure to include in the notice of disciplinary hearing

information that the employee is entitled to be accompanied
by a representative at the disciplinary hearing.  Rule 13(3) of
the Code 8 provides that the employee shall be entitled to be
assisted in the hearing by a trade union representative or a
fellow employee. Failure to inform the employee of their right of
representation ahead of the hearing could be ruled by the
Commission for Mediation and Arbitration and/or the court to
be unfair.
5. Introducing new charges against the employee during the
hearing which are different from the charges in the notice of
6
G.N NO.42 OF 2007.
7
Act no. 6 OF 2004 [R.E 2019].
8
G.N NO.42 OF 2007.
2
 the disciplinary hearing. The Commission for Mediation and
Arbitration and/or the court may rule that the employee was not
availed sufficient notice to prepare where new charges are
introduced at the hearing. In such circumstances the
termination may be deemed unfair.

6. A disciplinary committee being composed of only one

individual. Both the Employment and Labour Relation Act 9 and
the Code 10 require an employer to constitute a disciplinary
committee to hear the case. Although the Employment and
Labour Relations Act and the Code do not prescribe a number of
individuals that can constitute a disciplinary committee, an
employer may be challenged if the “committee” constituted of
only one individual.

7. A person who was involved in the allegations that resulted in

a disciplinary action (including investigation) participating
as a member of the disciplinary committee. This could bring
the impartiality of the disciplinary committee into question and
the Commssion for Mediation and Arbitration and/or the court
may rule that the hearing was procedurally unfair.

8. Failure to call witnesses at the hearing for cross-

examination by the employee. Rule 13(5) of the Code 11
provides that the employee shall be given a proper opportunity
at the hearing to question any witness called by the employer,
and to call witnesses if necessary. Not availing an employee with
an opportunity to cross-examine/question the employer’s
witness(es) could be deemed unfair. This omission is common
where the employer is relying on written statements of the
witness.

9. The disciplinary committee recommending a penalty prior to

allowing the employee to put forward his/her
mitigation/representation regarding an appropriate
penalty.According to the Guideline for Disciplinary, Incapacity
and Incompatibility Policy and Procedures (the "Guidelines"), a
penalty should be imposed after the employee has presented
his/her case. Failure to comply with this requirement may be
considered an unfair termination.

9
Ibid at pg 3.
10
Ibid at pg 3.
11
Ibid at pg 3.
3
10. Failure to inform the employee of their right to appeal to a
senior manager. The disciplinary committee must inform an
employee of their right to appeal. Failure to inform the employee
of this right could be considered by the Commission and/or the
court to be unfair.

The list set out above is not exhaustive and the Commission for
Mediation and Arbitration may formulate other reasons to determine
fairness.

Please note that an arbitrator or a judge may rule that the

termination of an employment contract was procedurally unfair if any
of the points set out above were not complied with. Irrespective of the
extent of the deviation, upon the arbitrator/judge making a finding
that the termination was unfair, the arbitrator may order an employer
to:

 reinstate the employee from the date the employee was

terminated without loss of remuneration during the period
that the employee was absent from work due to the unfair
termination; or
 re-engage the employee on any terms that the arbitrator or
court may decide; or
 pay compensation to the employee of not less than twelve
months' remuneration.

In the case of Benda Kasanda Ndasi v. Makufuli Motors Ltd 12 where

Rweyemamu J held that,

"…It is obvious from the above rule that

the Arbitrator may make any appropriate
compensation based on the circumstances
of each matter and considering the factors
given under sub rule 5(a)(b)(c)(d) and (f). In
my opinion the learned arbitrator trekked
in the correct avenue when he ordered the
compensation of six months, he had the
discretion to order the compensation of less
than twelve months remuneration where
appropriate...’’

12
High court Labour Revision No. 25 of 2010.
4
 2: EMPLOYEE’S

(ii) Procedural ignorance on serving, fılıng of referral forms

(CMA F.1)and failure to show the relief sought.
It is to note that an employee’s who is aggrieved by the decision of an
employer in terms of Rule 10(1) 13 is required to file a referral to the
Commission for Mediation and Arbitration vide refferal form 14 Section 86(1)
of the Employment and Labour Relations Act 15 at part B of the said Form
requires the party must complete the prescribed form 16 and part C provides
where the form should go or be sent. That part C of the form is where does
the form go and the copy to the CMA together with proof of the form having
been served on the other party.
Under the labour court or the Commission for Mediation and Arbitration,
referral form17 is very important document, it is an initiating document for
labour matters same as plaint in an ordinary court which has to be
prepared properly by the complainant before referred to the Commission for
Mediation and Arbitration.

The same was supported in the case of Rumishael Shoo & 64 Others v.
The Guardian Ltd18 when Moshi J was explaining the significance of
referral form.19 Moshi J, said,

The significance of the referral Form. Is it just a

sample? Referral Form is part of the
PLEADINGS. Applicants Claims have to be
pleaded in the referral Form, i.e. Form No.1. The
C.M.A. has to make a decision on what has been
pleaded in Form No.1.

The same was explained in the case of Powers Roads (T) v. Haji Omari
Ngomero.20
‘’That even the arbitrator cannot change what is
in the form suo motto. If at all the applicants felt
that they had not exhausted their claims, they
ought to have sought leave to amend the Form.
Thus, Form No.1 is not a mere sample as
submitted by one of the counsels.’’

13
GN No. 64 of 2007.
14
CMA Form No. 1, A statutory form and is required before filing or referring the matter to the CMA
to have it served to the employer.
15
No. 6 of 2004.
16
Ibid.
17
CMA F.1.
18
(2011-2012) LCCD No. 20.
19
CMA F.1.
20
HC Labour Revision No.36/2007.
5
In the year of 2017, Tanzania made numerous amendments to its labour
laws by enactment of the Employment and Labour Relations (General)
Regulations 2017 (Government Notice No. 47 of 2017) and the Labour
Institutions (General) Regulations, 2017(Government Notice No.45 of
2017). These new legislations were gazetted and came into effect on the 24 th
February 2017.
Based on my practical observations, the common mistake that referring
parties in disputes (be it laymen or a lawyer’s) is on the filing of the incorrect
referral forms21 and other forms related thereto that were once provided vide
the Employment and Labour Relations (Forms) Rules, Government
Notice No. 65 of 2007 which are now revoked by Regulation 41 of the
Employment and Labour Relations (General) Regulations 2017 (G.N
No.47 2017) which provides that:

"…The Employment and Labour Relations

(Forms) Rules, 2007 are hereby revoked..."

Regulation 34(1) of the same legislation goes on to pinpoint the correct

forms to be used. It is to the effect that:

"…The forms set out in the Third Schedule

to these Regulations shall be used in all
matters to which they refer..."

That is to say, the word "shall" as used in the above provision entails that
the new forms stated in the schedule to the amendments must be used. 22

Following these new reforms in the above legislations, some lawyers,

complainants, trade union or personal representatives of clients often get
caught up in technicalities especially related with filing of a labour dispute
forms which has lead to nasty consequences or embarrassment with the
client where by the outcome may lead to striking out of the entire case
under the presumption of the legal maxim which says;-
"...Ignorantia Legis Neminem Excusat...23

21
CMA F.1.
22
Section 53 (2) of the Interpretation of Laws Act [CAP 1 R.E 2002] provides that where in a written
law the word shall is used in conferring a function, such word shall be interpreted to mean that the
function so conferred must be performed.
23
Which means ignorance of the law has no excuse.
6
In the case of Phantom Modern Transport "O (Ltd) V. D.T Dobie (T) Ltd. 24
where the doctrine of accumulative effect or combined effects was observed.
The court was on the view that;-

‘’…Minor legal effects make grave or

serious legal defects which renders a
document /instrument incompetent the
remedy is to struck it off court records…’’

The same was also seen in the case Rogart Lyakurwa Vs. Kaisi H.
Munisi.25 whereby the applicant’s complaint was dismissed for failure to fill
properly CMA Form No.1, the refferal form lacked respondent’s signature
and did not contain the reliefs sought;
Moshi, J. Held that
‘’…In this case as indicated in the
Arbitrator’s Ruling the applicants
pleadings were not in accordance to the
law. The C.M.A. could not proceed to
entertain it; it would be proceeding against
the law; if the Form which is the initiating
document; and which stands as a plaint if
it were in ordinary suit, didn’t disclose the
cause of action, reliefs prayed nor
applicant’s signature, therefore it was
legally correct for the arbitrator to reject
the same. And the proper action for the
C.M.A. was to strike out the incompetent
form…’’

(iii) Failure to insert the proper names of the parties vide CMA
F.1

As explained above, referral form 26 is an initiating document for labour

matters same as plaint in an ordinary court where by this form has to be
prepared properly by the complainant before referred it to the Commission
for Mediation and Arbitration. Based on my practical observations, citing
wrong name in the CMA F.1 are the common mistake that referring parties
in disputes (be it laymen or a lawyer’s) are always committing this error
which has lead to nasty consequences and embarrassment with the client
where by the outcome may lead to striking out of the matter. I am saying so
because the position of the law is clear that a refferal form that contains

24
Civil Reference No. 15 of 2001.
25
HC, Labour Rev. No. 229 of 2010, 15/04/2011.
26
CMA F.1.
7
falsehood or incorect name is fatally defective and cannot support any
matter before the commission.
This position was provided in the case of Commercial Bank of Africa (T)
Ltd Vs Dennis Rutahilwa & Another.27
The court held at Pg 11 that;-

‘’ It is the responsibility of the one who

prosecute his case to prosecute the proper
party and not otherwise, suing a wrong
party is substantive error and not a
technical or clerical mistake.’’

3. CONCLUSSION

It is on this vein, I therefore decided to share my little practical

overview and provide much emphasize to Employers, lawyers,
complainants, trade union or personal representatives that the principles of
equity and justice are universal in the common-law courts in the world.
These two principles remind us ‘’No one is entitled to the aid of a court
of equity when that aid has become necessary through his or her own
fault’’ and ‘’He who comes into equity must come with clean hands.’’
We owe duties to be clean and very diligent when conducting
disciplinary issues at working place and before refering labour
matters to Commission for Mediation and Arbitration this will help to
avoid pitfalls i.e abusing of court process, delayment
tactics,preliminary objections and embarrassment with the client as
stated above.

27
Misc, Appl. No 226 of 2017 HC, Labour Division at Dar es Salaam ( Unreported)
8