Introduction
On the outset, it is the duty of the employer to set and define the nature of the engagement with an employee. It is important to note that the relationship between the employer and the employee is governed by a contract. Most of the employers do not make the terms of engagement to be clear to both parties. The time an employer engage another person he/she have different view of the said work or task as far as engagement is concerned.
The reason as to why most of the employers land into this problem is due to failure or neglect to issue written contract with the individuals whom they are working with. To illustrate this problem, bellow is the guiding law and the practice by some employers as evidenced by reported labour case.
Guiding law
- Section.61(a) –(g) of Labour Institutions Act, No.7 of 2004
For the purposes of a labour law, a person who works for or renders services to any other person is presumed, until the contrary is proved to be an employee, regardless of the form of the contract, if any one or more of the following factors is present;
a. The manner in which the person works is subject to the control or direction of another person;
b. The person’s hours of work are subject to the control or direction of another person;
c. In the case of a person who works for an organization, the person is a part of that organization;
d. The person has worked for that other person for an average of at least 45 hours per month over the last three months;
e. The person is economically dependent on the other person for whom that person works or renders services;
f. The person is provided with tools of trade or work equipment by the other person; or
g. The person only works for or renders services to one person.
Case law
Tanganyika Instant Coffee Co. Ltd v. Jawabu W. Mutembei [2014] 25 (Lab.Rev.No.210/2013 –Mipawa, J)
Case Summary
It is the Respondent case that he was employed as assistant driver by the Applicant from 09/10/2009 to 11/11/2011 when he was unfairly terminated. That he was recruited from Bukoba and came to work in Dar es Salaam. However, the applicant denied to have engaged the respondent as assistant driver ‘utingo’ but rather the respondent was brought to DSM by his relative who was the driver of the applicant. It was in the evidence that the applicant was paying the respondent weekly upon performing his duties. The reason for termination was to the effect that the applicant sold the vehicle and rendered the services of the respondent redundant. The applicant contends that the engagement was for specific task or casual labourer; however such issue was to be proved by the employer. CMA found that the respondent and the applicant had employment relationship and awarded notice, severance pay, transport expenses to the place of recruitment and compensation of 12 months for unfair termination.
The Labour Court on revision confirmed the findings of the CMA that the nature of engagement between the parties raised the presumption of employment by virtue of S.61 LIA. Apart from the reliefs granted by CMA, the Labour Court ordered the applicant to pay the respondent subsistence allowance for each day from the date of unfair termination to the date of payment of transportation costs from Dar Es Salaam to Bukoba at the rate of Tsh.4,600/- for each day.
The key issue in this case is that, the employer failed or neglected his duty to issue an engagement contract, specifying clear terms between the parties. Therefore, lack of written engagement contract at the time of engagement, may give rise to a labour dispute resulting to unnecessary labour costs and unhealthy labour relations, which could have been avoided. The employer ought to make clear terms of engagement to the individual.
Advice to Employers
If in any given circumstance an employer needs the service on an individual, then do the following;
- Ascertain the nature of tasks or duties you want the individual to perform
- Decide the type of engagement you want in order for the task to be completed
- Issue a written contract and illustrate clear terms within the contract of engagement
- Make sure the employee is carrying out his/her duties according to the contract.
Yours
Adv. Isaack Zake
Director of Legal and PR at TAACIME
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