Wrongful termination of employment, also called wrongful dismissal or wrongful discharge, is a situation in which an employee's contract of employment has been terminated by the employer, where the termination breaches one or more terms of the contract of employment, or a statute provision or rule in employment law.[1]
Wrongful termination of employment refers to the process of dismissing employee in the absence of a substantial reason. It is the removing of someone from a work for reasons which are not legally. Unfair dismissal claims normally cannot be valid in the grounds where an employee is dismissed for genuine redundancy, incapability, or misconduct.[2] The process of dismissing someone from work is categorized in the group of disciplinary action of the office, Disciplinary actions are formal actions taken by the management against an employee who fails to comply with rules established within the organization.
It is unlawful for an employer to terminate the employment of the employee unfairly as per section 37(1), Employment and Labour Relations Act, 2004. The law describes the grounds, procedures to be followed when terminating employment and the remedies thereof. These laid provisions regarding termination must be observed by both parties to the contract of employment thus, a fair termination is the one which is done according to the law.
Historical background.
The history behind the law of termination in Tanzania is founded on the ILO convention number 158 of 1982 on Termination of Employment. It was basically adopted by ILO member states in 1982. Much as Tanzania is a member of ILO, a large part of the Tanzania law on termination of employment originates for the convention and recommendation number 166. Lawful termination for the purpose of this paper means done within the law but not satisfaction while unlawful is out of legal scope such as termination due misconduct and termination after maternity leave respectively.[3]
Unfair termination in the new labour laws enacted in 2004 substitutes unfair dismissal in the repealed labour laws. Though there is such replacement of unfair dismissal in the new labour laws with unfair termination, these two phrases are different In terms of the procedure, substance and resultant benefits. This paper however is confined to explore fair termination of the contract where both substantive and procedural termination, procedures must be properly complied.
Contract of employment and its breach
Contract of employment, Is an agreement which establishes relationship between an employer and an employee this type of relationship is legally binding by the law. Is a formal contractual relationship between the contracting parties explaining legal rights, duties and remedies of the contractual parties.
This type of contract it has features of other contracts for example, offer and acceptance, lawful consideration, capacity, lawful object, intention to create legal relation and free consent.
According to the labour law in Tanzanian, contract of employment has three forms. Firstly, contract for unspecified period of time, secondly, contract for a specified period of time and thirdly, contract for a specific task. Section 14 (2) stipulates that the contract must be in writing especially when the employee will have to work outside the country.[4]
Breach of contract of employment
Means to put the contract of employment to an end by reasons of misconduct, impossibility or incompetence. the breach of contract may be by agreement of the two parties who agrees together to bring to an end their responsibilities, and rights this form of breach is known as formal or fair breach of contract, but upon one part to the contract breach the contract without the agreement of the other part in a contract of employment, this kind of breach is known as wrongful termination of the contact which is not accepted by the law.
Forms of Termination of Employment Contract
There are various forms of termination or breach of employment of contract, Section 36 and 37 of the Employment and Labour Relations Act of 2004 and Rules 4 to 25 of the Employment and Labour Relations (Code of Good Practice) Rules of 2007 enumerate several forms of termination employment and each form has its procedure, its reason and resultant implications.
1. Termination by Agreement:
This occurs when the employer and the employee(s) reach an agreement to terminate employment and it is reduced in writing and duly signed by both parties. This mechanism can be used only where the employees consents to termination of employment. The vivid example is on a fixed term contract. In this contract the parties agree in advance the date which the contract will end. And when it reaches the contract terminates automatically unless the contracts provides otherwise.
2. Automatic Termination:
The contract of employment terminates automatically in certain circumstances. For example, on death of sequestration of the employer. Death or bankruptcy of the employee equally terminates the contract of employment. Unless the contract of employment provides otherwise, a contract of employment may terminate automatically when the employee reaches the agreed or normal retirement age. In other words, it may be an implied term of an indefinite contract that the contract terminates on retirement.
3. Refusal to renew a contract:
This as well may be viewed as unfair termination by the employer. Where the employee reasonably expect the renewal of a contract may be considered as unfair termination. This may be applicable to seasonal workers. In this the employee must demonstrate that there is an objective basis for the expectation such as previous renewal. A clause in contract (if at all any) stating that the employee accepts that there is no reasonable expectation of renewal is not a conclusive proof of the matter.
4. Resignation:
Where the employee decides to give notice to terminate employment for whatever reason. It is hereby underscored that this avenue is available to the employee only. The employer cannot just decide to terminate employment like the way the employee can do. The employee can do this by either giving notice or by not giving notice.
5. Constructive termination:
This occurs in instances where the employer makes continued employee intolerable in order for the employee to resign. In such instances the law refers this as forced/constructive termination in the sense that it is as good as that the employer has terminated the employee. Working conditions may be considered intolerable if for instance, the employee is discriminated, harassed, suffering negative change in pay or workload for reasons that are not performance based.
6. Termination of contract of employment due to Misconduct:
Where the employee does not conduct himself in the right manner. The misconducts are categorized into those punishable by warnings or reprimand on initial commissions according to the levels and those punishable by termination of employment on first commissions. The employer is obliged to have fair reason and follow fair procedure as given by the law.
7. Termination due to Incapacity:
Includes general incapacity to deliver in the work employed for poor performance, ill health and injury. It is important to deal with each case in its merit. To determine fairness of termination for poor work performance, it is important that the performance standard is not only reasonable but is also known to the employee.
8. Incompatibility:
Where the employee is unsuitable due to his character and disposition or that he relates badly with fellow employees and clients or with other people key to the business. Before terminating the employment on this ground, the employer shall give the employee a fair opportunity to.
i. Consider and reply to the allegations of incompatibility
ii. Remove the cause for disharmony; or
iii. Propose an alternative to termination
9. Termination due to Operational requirement:
The focus here is that being conducted via retrenchment. The law allows retrenchment on three grounds: economic, technological, structural or similar needs of the employer. However, retrenchment process is complicated especially the need for consultation with the trade union and agreeing on the terms and conditions of such retrenchment failure of which the Employer has to institute a matter before the High Court Labour Division of which it turns into a case before the high court.
10. Abscondment:
The employee has disappeared from work place and without notice. If the employee will show up immediately, will have to be charged but if does not show up for a long time then the employer just records in the file that the employee has absconded without further steps.
11. Termination of employment contract due to Dispute of Interest:
The employee may resign and or abscond from employment just because he wants salary increment and cannot work without the said increment.
Not all modalities of termination of employment have specified procedure and specific reasons. The procedural and substantive reason arises when it comes to the following modes of termination.
i. Termination based on misconducts
ii. Termination due to incapacity
iii. Termination based on incompatibility
12. Retrenchment
The majority of unfair termination is based on termination due to misconducts. Once a dispute is filed whose cause of action is based on unfair termination, in the first place the employer is under duty to prove that termination is fair by proving three things
i. That the reason for termination is valid (substantive)
ii. That the reason for termination is fair (substantive)
iii. That the procedure for termination is fair (procedure)
Remedies for unfair termination (s.40)[5]
Where the arbitrator or labour court finds the termination to be unfair, it may order the employer to either:
- Reinstate the employee, 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.
- re-engage the employee, to re-engage the employee on any terms that the arbitrator or Court may decide;
- To pay compensation equal to 12 months remuneration which shall be in addition to any other amount to which the employee may be entitled in terms of any law or agreement.
CONCLUSION.
Now, in order to decide whether the contract of employment is terminated fairly, there is a need to look at whether there was a fair and valid reason for the termination (substantive fairness). Again, whether the there was a fair procedure (procedural fairness) as required by section 37 (2) of the Tanzanian Labour law. The main theme as one can read from this paper has been to show fair termination by explicating substantive rules to prescribe rights, obligation and standard the matter must be handled. On the other hand, procedural rule is prescribed to mean the rules governing administrative proceedings, evidences, documents legal and administrative processes which to mention but few. It obliging to these that brings fairness to termination of contract of employment.
