Introduction
Welcome to our forum today as we share the diverse knowledge relating to the labour laws and practice. One of important issue to be settled in the outset of conducting business or any service, is to understand your position in relation to the people you are working with. Previously, we have discussed about what makes you an employer and referred Section 4 of the ELRA. Today we are going to look on other circumstances which can still makes you employer even without a contract of employment.
Employers misguided perception
Most employers thinks that for them to be employers they must have a contract of employment with a worker or any other contract of engagement as defined under Section 4 of the ELRA.
Due to this reasons, some employers who do not wish to be recognised as employers escape the duty to issue contracts of employment to his workers as a means of escaping responsibilities that are attached to the role of employer.
The reasoning of many employers who do not issue contracts of engagement with their workers, is that, employees may not have any evidence to claim any reliefs towards the employer as there is no written documents. However, as we are going to explore in this article, failure to issue contracts of employment to workers is more detrimental to the employer than the employees.
Employers, fail to understand that, the Laws relating to labour issue, puts a burden of proof to the employer on proving that there was non –existence of the employment relationship with a claiming worker.
Therefore, the labour laws being keen of the kind of employers who are not willing to issue contracts, have enacted some provisions for which raise a presumption of the existence of employment relationship with a worker even though there is no written contract.
Section 61 of the Labour Institutions Act Cap.300 provides some factors that can make a person to be employee of another person regardless any kind of contract that the parties have engaged themselves.
Remember, it is not necessary for all the factors to be proved but only one factor can make the relationship you have with that particular individual to amount to employment relationship.
These factors includes;
- If an individual works under your instructions and control, such relationship is presumed to be an employment arrangement; or
- If an individual hours of work are subject to your control or directions then you are presumed to be the employer; or
- If an individual is working for an organization, then an organization is presumed to be the employer; or
- If an individual has worked for you for average of at least 45 hrs per month for the past 3 months, then the presumption is the relationship of employment; or
- If an individual depends on you economically for the service he/she renders for you, then it is presumed to be your employee; or
- If you provide tools and equipment for work of that individual then it is presumed that you are the employer; or
- If an individual only works for you and not to other person or organization, then it is presumed to be your employee.
One of the factors that appear herein above can justify the claim of a person against you for being his/her employer. Therefore, it is not prudent to escape the duty to issue contract of employment but rather it is wise to issue one, as you can be in a better condition as employer to determine terms and conditions of such contract rather than waiting for authority to determine such when the dispute arise.
Therefore, it is highly advised for employers who have not issued written contracts for their employees to issue one, as they can see evidently on one or more factors discussed here apply to them.
Failure to issue written contract is against the law as Section 14(2) of the ELRA provides
‘A contract with an employee shall be in writing if the contract provides that the employee is to work within or outside the United Republic of Tanzania.’
Therefore, it is important for you employer to issue contracts of employment to the individuals that you are working with failure of which may lead to breach of the law and attract penalty for you or your organization.
Yours,
Isaack Zake, Advocate
Director of Legal and Public Relations, TAACIME
Isaack Zake an Advocate of the High Court of Tanzania, he is passionate in pursuing matters in relation to labour and Human Resource Management and has been labour lawyer practitioner at various areas of practice such as FIBUCA Trade Union, Commission for Mediation and Arbitration, Labour Court of Tanzania and Labour Office at the Ministry of the Labour Affairs. Mr. Isaack is also a founder of www.ulizasheria.co.tz
For more information, questions and suggestions please contact 0713 888 040 with email info@taacime.co.tz