Unfair termination refers to the dismissal of an employee from their job in a manner that is unjust, unreasonable, or not in accordance with the law or established employment procedures. It occurs when an employer ends an employment relationship without a valid reason, without following due process, or in violation of the employee’s rights.
The legal systems are designed to protect workers from arbitrary or discriminatory dismissal, ensuring that terminations are based on fairgrounds such as misconduct, poor performance, or redundancy, and that proper procedures are followed. Understanding unfair termination is important because it helps promote workplace justice, protects employees from exploitation, and encourages employers to act within the boundaries of the law.
Under the Employment and Labour Relations Act, Cap. 366 R.E. 2023, the law provides several grounds that make termination unfair, this including the following:
Termination without a valid reason. For example, if an employer simply tells an employee “You are dismissed” without explaining why, the law considers this unfair because every termination must be justified by a real and lawful reason such as misconduct, poor performance, or operational needs.
Termination by the reason not acceptable in law. For instance, dismissing an employee because the employer “does not like them” or for personal reasons is recognized as unfair ground under the law. the law states that some reasons are automatically unfair, such as terminating an employee due to pregnancy, illness, disability, trade union membership, or for exercising legal rights. In such cases, the law protects employees by making it clear that these reasons can never justify dismissal.
If the employer fails to follow proper procedure. For example, if an employee is dismissed without being given a chance to defend themselves or without a hearing, the law considers this unfair because procedural fairness is required. This means that even where there is a valid reason for termination, termination becomes unfair where procedures are not followed. Therefore, for termination to be fair under the law, there must be a valid reason, a lawful ground, and a fair procedure must be followed.
Under the Employment and Labour Relations Act, Cap. 366 R.E. 2023, termination of employment is considered fair only when it is based on valid and lawful grounds, and when proper procedures are followed. The law recognizes three main grounds of fair termination, and each must be clearly justified which are:
Termination based on misconduct. This occurs where an employee behaves in a way that violates workplace rules or standards. For example, acts such as theft, insubordination, absenteeism without permission, or dishonesty may justify dismissal. Under the law, the employer must prove that the misconduct actually occurred and must give the employee a chance to explain themselves before taking action.
Termination based on incapacity or poor performance. This applies where an employee is unable to perform their duties properly, either due to lack of skills, poor performance, or health-related incapacity. For example, if an employee fails to meet required work standards despite training and warnings, the employer may fairly terminate employment. However, the law requires the employer to first assist the employee such as providing training, guidance, or reasonable accommodation—before deciding to dismiss Poor Performance require guiding, training, and warning employees before terminating for poor work performance and in incapacitation, Procedures for termination due to injury or illness are outlined in rules 19-21 of the Code.
Termination based on operational requirements of the employer. This is commonly known as redundancy. It happens where the employer needs to reduce staff due to business reasons such as financial difficulties, restructuring, or technological changes. For example, if a company closes a department or reduces its workforce to cut costs, termination may be fair. The law requires the employer to follow fair procedures, including consultation and proper notice.
Under Tanzanian labour law, the procedures for fair termination and remedies are provided under of the Employment and Labour Relations Act, Cap. 366 R.E. 2023, and further elaborated in the Employment and Labour Relations (Code of Good Practice) Rules, 2007 (as revised). These laws require employers to follow clear and fair steps before terminating an employee. This procedures area follows;
The act requires that an employee be made aware of the allegations against them in a clear and understandable manner. This means the employer must explain what the employee has done wrong, whether it is misconduct, poor performance, or incapacity. Also, the Code of Good Practice emphasizes that an employer should conduct an investigation and clearly communicate the charges before taking disciplinary action. This ensures that the employee is not taken by surprise.
The law requires a fair hearing before any decision is made. Under the act an employee must be allowed to respond to the allegations and defend themselves. According to the Code of Good Practice, this includes the right to appear before a disciplinary hearing and, in many cases, to be accompanied by a fellow employee or representative. This step protects the employee’s right to natural justice.
After the hearing, the employer is required to genuinely consider the defense given by the employee before making a decision. This requirement comes from the principle of fairness under act and is reinforced by the Code of Good Practice, which stresses that decisions must not be predetermined. The employer must weigh all evidence and explanations carefully.
The employer must comply with internal workplace procedures as well as statutory requirements. The Code of Good Practice requires progressive discipline where appropriate, such as warnings before dismissal, especially in cases of poor performance. In addition, the law requires that proper notice of termination be given in accordance with the contract or the Act, unless the case justifies summary dismissal.
Once a decision is made, the employer must inform the employee of the outcome and the reasons for termination. The Code of Good Practice requires that the decision be communicated clearly and, where possible, in writing. This ensures transparency and allows the employee to understand the basis of the termination and, if necessary, to challenge it.
The law provides remedies for employees in Tanzania when a termination is found to be unfair by an arbitrator or the Labour Court Under Section 41 of the Employment and Labour Relations Act, Cap. 366 R.E. 2023 based on lack of fair reason or procedure, the following remedies are available under the acta)
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.
To re-engage the employee on any terms that the arbitrator or Court may decide; or
To re-engage the employee on any terms that the arbitrator or Court may decide; or
Where an order of reinstatement or re-engagement is made by an arbitrator or Court and the employer decides not to reinstate or re-engage the employee, the employer shall pay compensation of twelve months wages in addition to wages due and other benefits from the date of unfair termination to the date of final payment
Therefore, the law further requires that an employee who wishes to challenge an unfair termination must lodge a complaint within 60 days from the date of dismissal, otherwise the claim may be time-barred unless an extension is granted upon sufficient cause by the Commission for Mediation and Arbitration upon filing necessary forms.
all employment disputes must first be referred to the CMA, where they are subjected to mediation and, if unresolved, arbitration, making it a mandatory and central forum in the resolution of labour disputes in Tanzania. Once an award is issued by the CMA, it is enforceable through the court of competent jurisdiction, which is responsible for execution and enforcement of the award, ensuring that the outcome of the arbitration is given legal effect.
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