FUNCTIONS OF LABOUR LAW (1) Protection of employees: This is done through the

following ways

(a) Limiting powers of employers to dismiss employees or terminate employment at his will without just cause, this is enshrined under Part III (E) of ELRA

(b) Regulating the wages to be paid by maintaining financial capacity of employees as per Part III (E) of ELRA

To be continued---- (c) By regulating conditions for working through

providing for rest days and leave and hours of work plus matters incidental to standard of work as per Part III (E) of ELRA.

(d) By providing for care and welfare of employees

To be continued.... (2) Labour Law has the function of balancing of

conflict of interests between employers and employees. This is done by defining their rights and duties as well as regulating their conduct.

(3) It helps in resolving industrial disputes: by establishing a special institution which has the duty and power to enforce rights and duties under labour law this is enshrined under Part III of the L I A.

(4) Helps in increasing production of goods and provision of social services: this is done by maintaining industrial peace.

To be continued.... (5) To correct the imbalance of power between the

worker and the employer by protecting worker’s right to organize in trade unions and bargain collectively and putting in place safeguards which prevent the employer from dismissing the worker without good cause. The starting point of the protective function view is that, there is an inherent imbalance of the power within the relationship between employer and employee. The employee is at a great disadvantage as compared to the employer in terms of resources and bargaining skills

To be continued... (6) To prevent working conditions being pushed below

the levels the society deems acceptable by placing restrictions on contracting partners’ freedom to contract on whatever terms they wish and setting minimum standards over issues such as working time, health, safety and pay. The law limits the degree to which the more powerful party can exploit the weaker.

To be continued... (7) To regulate labour market: The starting point in

terms of this view is that market forces are preferable to government intervention in the attainment of economic growth and prosperity. The implementation of this approach has resulted in government support for reduction of wages and other labour costs and a reduced role of the state in setting up of minimum labour standards. According to this approach, state intervention in the form of protection of the employee results in artificial distortion of the market forces which in turn inevitably results in economic inefficiencies and a loss of prosperity.

To be continued... (8) To limit trade union freedom: Labour Law is also

used as an instrument to limit and control trade Unions. It is in considering this aspect that trade unionists will be inclined to ask whether they really need labour legislation at all.

(9) To protect and balance economic and social progress: This occurs where by labour standards are clearly stipulated under strict rules of consultants and management team of the laborers, as stipulated under labour laws

To be continued... (10) Labour law helps Enforcement of labour

standards: Labour based road works usually involve high labour recruitment and management. Special attention is expected from the supervising institution and the project management team to ensure that the contractor is complying with the labour standards of employment. The supervising institution must also be acquainted with local labour laws and standards.

To be continued.... (11) Labour Law sets wage Rates: The minimum wage is always

stipulated in labour laws. The supervising institution must ensure that the contractor does not under pay the workers. A regular check of contactors record of pay sheets is necessary. Falsification of pay sheets is a major method of covering up corrupt practices at all levels. The supervising institution should also routinely make spot checks with a number of individual different labourers to confirm amounts received, any deductions made and their identities.

(12) Labour law helps on minimum age: Labour Law sets the minimum age for one to be employed in any governmental or non-governmental organization. In this way Labour Law also protects the rights of children.

To be continued... (13) Labour law helps on Non-Discrimination: the

supervising institution should check the recruitment is fair and transparent and that the contractor does not discriminate on the basis of gender. Regardless of gender, the contractor should pay equal wages for work of equal value. He should advice the contractor in preparation of recruitment adverts that are neutral. In areas where strong cultural barriers exist, contractors should be assisted by the client with sensitizing meetings to explain the nature of the work and the recruitment process. Therefore, in this instance, Labour Law functions to avoid gender discrimination.

EVOLUTION OF LABOUR LAW IN TANZANIA What is the foundation/basis of labour

Labour is founded on what is known as wage labour.

Wage labour is work that you do in exchange of remuneration or payment; you give a service at the end of day, week, month or year you are given a wage

What are the prerequisites for wage labour

(1)There must be considerable development of commodity economy as opposed to natural economy. Commodity economy presuppose the production with surplus.

To be continued... (2) there must be labour power converted into a

commodity. There must be labour which is offered in exchange for money or capital

(3) there must be free labour. Labour which is already a commodity ready for exchange in the market. Free labour presuppose that the workers are already separated or divorced his own means of production particular land. The worker has nothing to live on except his labour power.

Creation of wage labour Three methods were used in creation of wage labour

(1) Forced Labour

(2) Taxation

(3) Recruitment

Evolution of labour law in Tanzania Development of labour law in Tanzania is tied to the

political and economic history of the country. It emerged with the working class during the colonial era.

The colonialists introduced labour laws to enhance the colonial economy which was exploitative in nature. The laws meant to discipline the working class which mostly was the natives

To be continued... This justifies the fact that there was a very limited

labour relations law during the colonial era.

With the laws enacted during the German colonial rule, British colonial government registered a fundamental contribution in the development of labour law in Tanzania. An independent government inherited a considerable number of labour laws from the British colonial government such as the Employment Ordinance (Cap 366) and Regulation of wages and terms of Employment Ordinance (Cap 300).

To be continued... Labour laws enacted after independence were; Wages

and Salaries ( general Revision) Act, 1974 ( Act No 22 of 1974, the Trade Union Act, 1998 ( Act No 10 1998), Security of Employment Act( Cap 574), Severance Allowance Act ( Cap 487) and the Industrial Court of Tanzania Act 1967 ( Act No 41 of 1967)

Generally labour law after independence can be divided into four periods: immediately after independence; Arusha Declaration, the period of 1980’s; and the current period.

To be continued... Throughout the periods, a myriad of labour statutes

enacted along with the inherited English laws. Yet, the statutes fall short in various aspects: scattered labour statutes, excessive power to labour officers, summary dismissal, No free collective bargain in previous laws, Disputes resolution procedure was very complex, Although there was provision of strike and lock-out in the law, they were not permissible in practiceetc.

To be cont... It is relevant to point that, the legal deficits and

economic liberalization in the 1980’s led to the enactment of new labour laws in Tanzania effectively from 2004.

Therefore, the major statutes that currently regulate labour matters in Tanzania are the Employment and Labour Relations Act and the Labour Institutions Act of 2004.

To be cont... The two statutes work together. While the latter

establishes the necessary organs, provides for the appointment of staff, vests them with jurisdiction and declares their functions and delimits their powers; the former promulgates substance law which is supposed to be administered by the said organs

Applicability of labour laws To who do labour laws apply?

The two laws( the ELRA and LIA) apply to all employers in the private and public sector including the government. S. 2 of ELRA.

Although the ELRA applies to all employers both in the private and the public it should be noted that employee in the public service do have their own specific laws namely;

To be cont... The Public Service Act, 2002 Act No. 8/2002

The Public Service ( Negotiating Machinery Act 2003 Act No. 19/2003

The Public Service Regulations 2003 GN No. 168/2003

The Public Service Scheme 2003 GN No. 169/2003

The Executive Agencies Act, 1997

The Executive Agencies ( Personnel Management) Regulations 1999 GN No. 75/1999

To be cont... It is interesting to note that there are provisions in the

Public Service Act, 2002 and the Regulations which contradict the provisions of the ELRA

The case of AG v Chama cha Walimu Tz (CWT) HC LD App. No 19/2008 illustrate on that contradiction. Mandia J (as he then was) found that the Public Service ( Negotiating Machinery) Act of 2003 does not set out the remedy in cases of breach of employment contract in the public sector, he noted that the ELRA

To be cont... Encompasses all the aspect of employment law from

formation of the contract of employment to breaches of contract and the consequences thereof.

The honourable Judge then proceeded to apply the ELRA and consequently held that a lobour dispute involving teachers comes under the jurisdiction of the labour court.

To be cont... The act does not apply to the armed forces; Tanzania

People’s Defence Force, Police Force, Prison force and the National Service but it may apply to civilian employed in those forces. S. 2 of ELRA

Although the act does not apply to the armed forces however, S. 5,6 and 7 apply to the armed forces.

S. 5 deals with prohibition of child labour, S. 6 is on forced Labour and S.7 is on discrimination.

To be cont... Furthermore, Part III subpart A,B,C,D and F do not

apply to seafarers S. 12 of ELRA . In matters covered under sub A,B,C,D and F the Merchant Shipping Act 2003 will apply to seafarers only subpart E applies to seafarers, which is on termination of employment contract.

On the other hand seafarers working on fishing vessels shall be covered by part III of the ELRA.

The objective of the ELRA The objective of the Act are contained under S.3 of

ELRA. There are seven objectives which give effect to the ILO Core Conventions together with the ILO Convention which TZ has not ratified. The followings are the objective of the Act

1. To promote economic development through economic efficiency, productivity and social justice

2. To provide the legal framework for effective and fair employment relations and minimum standards regarding conditions of works

To be cont... 3. To provide a framework for voluntary collective

bargaining

4. To regulate the resort to industrial action as a means to resolve disputes

5. To provide a framework for the resolution of disputes by mediation, arbitration and adjudication

6. To give effect to the provisions of the constitution in so far as they apply to employment and labour relation and conditions of work.

To be cont... 7. To give effect to the ILO core conventions and other

ratified conventions

Read the Case of Macmillan Aidan Ltd v Blandina L Mohamed Labour Rev. No 28/ 2008 and the case of Martin Oyier v Geita Gold Mine Ltd Labour Rev No 226/2008

In deciding these case the judge considered the objectives of the Act.

TOPIC TWO: CONTRACT OF EMPLOYMENT A contract of employment comes into existence when

the employer and an employee conclude an agreement that conform to the requirement of a contract of service which must be distinguished from a contract for service.

What is a contract for service? And what is a contract of service

To be cont... Contract of service under common law is defined as a

contract between two person the master or employer and the servant of employee for the letting and hiring of latter services for reward. The master being able to supervise and control the servant work.

Key elements- existence of two parties employer and employee, letting and hiring of the services of the employee, there must be remuneration and employer must be able to supervise and control the employee

To be cont... There is no definition of contract of service under the

ELRA. In the absence of the definition as to what is a contract of service and contract for service, there are cases decided by common law have come up with three test which tries to distinguish a contract of service from a contract for service. These test are as follows;

1) The Control Test

Under control test the emphasis is on the element of control which must be exercised by the employer over the employee

To be cont... The employer prescribes not only what work has to be

done but also the manner in which that work has to be done.

The case of Amalgamated Engineering union v Minister of Pensions and National Insurance ( 1963)I All E.R 864 it was held that even though A has no express right to control the manner in which B carries out his duties, if B’s contract specified his duties in detail and A has the right to dispense with B’s services if dissatisfied with the manner in which he carries them out, B is A’s servant.

To be cont... Another case is the case of Short v Henderson, Ltd (

1946) 62 T.L.R 427 lord tharkerton listed four indicator of a contract of service namely;

a) the master’s power of selection of his servant

b) the Payment of wages or other remunerations

c) the master’s right to control the method of doing the work

d) the master’s right of suspension or dismissal

To be cont... The control test has weaknesses. There are highly

skilled employee who are given a relatively free hand when performing their work such as doctors, lecturers, lawyers, engineers e.t.c they have wide discretionary powers as to how they would perform their work

Cont... 2. Organisation Test/ integration test

This is sometimes known as integration test. This test developed later after the control test.

Under this test the question for determining whether there is an existence of a contract of service or a contract for service is: “Whether the person is an integral part of a given organisation in which he works.”

Cont... If the answer is yes then the law assumes that there is a

contract of service. If the answer is negative then there is a contract for service.

This is a test which has brought many professionals such as doctors, accountants, lawyers, engineers etc, to serve under a contract of service.

These professionals employees may become integral part of the business of the employer without being under their direct control and directions.

Cont... A good reference is found in the case of Cassidy V.

Ministry of Health (1951)2 KB 343. In this case Denning, L.J. (as he then was) argued as follows:

“The hospital authority is liable for the negligence of professional men employed by the authority under contract for services as well as under contracts of service. The authority owes a duty to give proper treatment medical, surgical, nursing and the like and though it may delegate the performance of that duty to those who are not its servants, it remains liable if that duty is improperly or inadequately performed by its delegates.”

Cont... In the case of Rosen V. Queen (1976) CTC 462. The

organisation test was used to determine whether a university professor who used to lecture in three universities was serving under a contract for service or a contract of service.

This was important for income tax purposes. It was argued by the professor that he was an independent contractor.

Cont... This submission was dismissed by the court on the

ground that he was doing what any university professor would do and so he was serving under a contract of service because what he did formed an integral part of the business of the university.

Cont... 3. Multiple test or Economic Reality test.

This test is a response to the inadequacies of the 2 foregoing tests ie. Control and organisational test.

It is called pragmatic because it is not based on rigid doctrines and also it is practical because it calls the court to consider all circumstances in totality and infer whether there is a contract of service. It is multiple because it draws it’s conclusion from multiplicity of factors. Thus some scholars refer to this test as multiple factor tests

Cont... The test take into account control test and integration

test ingredients and many other factors before arriving at a conclusion that the relevant contract is one of service or one for service. Multiple test was proposed in the case of Young V Montreal Locomotive Works (1974)1 DLR 161. according to this case, the matters that a given contract is one of service or not include;

i. Mode of payment of wages/salary

ii. Mode of payment of taxes

iii. Membership to pension schemes

Cont... iv. Leave

v. Leave allowances

vi. Sickness allowance

vii. Supply of tools of work

viii. Hours of work

ix. Place of work ( at employer’s)

x. Supervision

xi. transfer

cont... Legal and Economic Implications of contracts of

service and contracts for service

1. Liability:

In a contract of service the employer may be vicariously liable for the wrongful acts of employees committed during the course of their employment. While in a contract for service he may not be liable for the wrongful acts of contractors he employs other than in exceptional cases.

Cont... 2. Health and Safety: In a contract of service there is

a high standard of care owed by the employer both under the statutory and the common law with regard to the safety and health of his employees. While in a contract for service there is a lesser standard of duty of care in relation to health and safety of his contracting parties

Cont... 3.Statutory employment rights:

In a contract of service there is a large number of individual employment rights conferred on employees by statute which generally arise after a period of service such as benefit in case of termination of contract of employment, severance allowances, repatriation allowances, leaves etc. While in contracts for service, the contractors are excluded from the mass of individual employment rights conferred by statute.

Cont... 4. Income Tax:

In a contract of service the income tax payable by an employee is deducted at source by the employer under the pay as you earn scheme. While in a contract for employment the income tax of a self employed person is not paid by the employer but by the taxpayer himself

Cont... 5. Welfare benefits:

In a contract of service there is normally a duty under the social security laws to both the employer and employee to contribute to the social security funds for such benefits like retirement pension etc.

In a contract for service a self employed person is individually responsible for his welfare if he wishes and he has limited right to claim welfare benefits, eg. statutory sick pay

Parties to the Contract of Employment There are two parties to the contract of employment

First, an employer,

Second, an employee

Section 4 of ELRA define an employer to mean any person including the gvt and an executive agency who employs an employee. This definition is not adequate to comprehend the meaning of the word employer. This is a big problem as to who is an employer.

Cont... Who is an employee

Effort to define an employee must take into account the following factors;

1. modern times have eroded, strained the usefulness of common law concept of employment contract.

2. Due to modern work practices an increasing number of workers are now employed in non standard contract of employment known as atypical contract of employment. These include part time contract, seasonal contract, home based contract and

Cont... Temporary contract.

3. Due to high competition of organisation of work and production process, the international markets and business has kept on changing the working arrangement. In some cases production is decentralised and this is often done by subcontracting, outsourcing or transferring non core activities of the organisation to smaller firms or companies or home basic workers. Workers in these flexible working arrangement are generally paid low wages, receive no or few benefit and they are excluded from s.s schemes

Cont... What are the reaction of ILO to protect people

working under atypical contract of employment.

ILO and gvt of various countries have come up with several means to protect workers working under atypical contract of employment.

The ILO for instance has adopted a convention known as part time work convention No 175 of 1994. countries ratifying this convention are required to extent the employment standard to part time workers even if benefit under standard contract of employment are

Cont... Accrued on proportional basis. The part time work

convention also provide part time worker with benefits which accrue on proportional or pro-rata basis.

Some countries have taken the following measure;

They enacted employment legislation with broader definitions which cover almost an sort of employment relationship or incorporate presumption that assist workers to establish proof that they are employees within the context of the law.

Cont... Tz has reacted by defining an employee under section

4 of the ELRA as follows;

Employee means an individual who:

a) has entered into contract of employment

b)has entered into any other contract under which the individual undertake to work personally for the other part to the contracting and the other part is not a client or customer of any professional business or undertaking carried on by the individual

Cont... c) is deemed to be an employee by the minister under

section 98(3) of the ELRA

This definition tries to address the problem mention earlier as follows;

Part A retain the conventional definition of an employee as understood under common law

Part B addresses employee who may be employed in an other contract e.g atypical contract and this definition exclude people who are working under contract for service.

Cont... Part C is a safety valve which can be resorted to people

working under any other arrangement .

S.61 of the LIA also create presumption as to who is an employee.

Formation of the contract of employment A contract of employment is like an other contract, it is

required to conform with all the essential form of an ordinary contract such as offer and acceptance, capacity, consideration, lawful object, free consent, intention to create legal relation and possibility of performance

In this part the discussion is centred on the elements which vary from the normal contracts element. These elements include capacity, free consent and consideration.

Cont... Capacity:

In employment contract like in any other contract, the parties must be competent to contract. However, there are differences when we look at the capacity as required by labour laws for a contract of employment and capacity to contract generally.

While the general contracts refer to the age of majority (18 years) under the Age of Majority Act, Cap 348 as the age for capacity, labour laws do vary with such requirement in some instances

Cont...

Under the labour law capacity to enter into contract varies with the type of employment. Moreover, the employment laws concerns much with the employee’s capacity rather than the employer’s capacity

For instance s.5 of the ELRA allows employment of children below the age of 18 years in light work

Cont... Free Consent: Employment is a consensual

arrangement. The parties are supposed to have entered to such arrangement out of their free volition or free will. S. 6 of the ELRA prohibit forced labour in making contract of employment.

Consideration: the legal consideration in employment contracts are wages in monetary/pecuniary form. S.27 of the ELRA provide for payment of remuneration

Formalities of the contract of employment The contract of employment may be in writing or may

be verbal (oral) however, it must be entered into freely that is with free consent. S. 6 of the ELRA prohibit forced labour in making contract of employment.

On the other hand under common law parties to the contract of employment are not required to observe any formalities when concluding a contract of employment.

Cont... Once there is either express or tacit agreement on the

nature of the employee duty and on the remuneration the contract becomes operative.

The contract need not necessary be in writing although this is always desirable for purpose of clarity and minimization of dispute.

Under the ELRA S. 14-16 there are formalities which must be undertaken by the parties.

Cont... S.14(1) provide for the three types of employment

contract which are one, a contract for an unspecified period of time, second, a contract for specified period of time for professionals and managerial cadre and third, a contract for a specific task.

A contract of employment in which the employee is to work outside the URT must be in writing. S.14(2)

Cont... Under s. 15 of ELRA the employer is bound to supply

the employee with the following particulars when the employee commences employment.

a) name, age, permanent address and sex of the employee

b) place of recruitment

c) job description

d)date of commencement

e) form and duration of contract

f)place of work

Cont... g)hours of work

h) remuneration, the method of its calculation and details of benefit or payments in kind

i) any other prescribed matter

When these written particulars are not understood by the employee, the employer should explain to the employee in the manner that the employee understands.

Cont... Where an employer fails to produce the written

particulars required by s. 15(1) of the ELRA, the burden of proving or disapproving such particulars lie on the employer as provided under s.15(6)

Under s. 16 of the ELRA the employer is required to display in a conspicuous( open) place a statement in a prescribed form of the employee rights under the Act.

The particulars required under s.15 of the ELRA may keep on changing the employer need to inform the employee on the changes of the particulars.

The implied terms in the contract of employment. Apart from contractual terms agreed on by the parties,

employment contract also bare a heavy load of implied terms.

What are implied terms under employment contract

These are terms imported into the contract of employment by operation of the law even if the parties are ignorant of their existence at the time of contracting. They can also be imported in a contract by operation of a collective agreement, wage determination or exemptions under s. 100 of the ELRA

Cont... Implied terms are important terms in determining the

extent of the rights and obligation of the parties. E.g s.71(3) of the ELRA a collective agreement shall be binding on an employee who are not members of a trade union party to the agreement if the trade union is recognised as the exclusive bargaining agent of those employee under s. 67

Cont... Similarly under s. 13(2) of the ELRA says that an

employment standard constitute a term of a contract. Therefore all employment standard set out in part III of the ELRA constitute part of the employment terms and condition whether the parties referred to them or not at the time of concluding the contract.

Variation of the terms of employment contract

Can the employer vary the terms of employment?

The moment the contract of employment is concluded its terms are fixed in the sense that neither part can unilaterally change them unless the original contract provides for such variations.

However, a contract of employment may be changed or modified by a collective agreement, wage determination made by the minister or by an other employment law.

Cont... Nevertheless, the terms and conditions of employment

may be varied or changed at any time with mutual consent of the employer and the employee but this change or variation should only be done if it is meant to benefit the employee and in any case such variation can not be at the detriment of the employee rights contained under part III of the ELRA.

Cont... What happen when the employer unilaterally change

or vary the terms of contract employment.

Under s.80(2)(3) of the ELRA the employer can not unilaterally change or vary the terms of contract of employment.

Duties of the employers and employees Parties to a contract of employment create duties and

obligation once they conclude the contract. These are known as contractual obligation and duties but on top of that they are also implied duties and obligation created by implied terms.

Failure to discharge the contractual or implied terms may lead to breach of a contract of employment.

Cont... The relationship between the employer and the

employee starts when the parties have concluded the contract of employment or service

However, there are two exception to this rule which was introduced or created by the ELRA

1) prohibition of discrimination against a job applicant under s.7(4)(9) of the ELRA. According to this section an employer can not discriminate a job applicant and the job applicant can take legal action against the employer although there is no fully fledged employment relationship between the parties.

Cont... 2) where an employee is deemed to be an employee by

the minister under s. 98(3) of the ELRA and where the employer fails to rebut the presumption under s.61 0f the LIA.

Duties of an employer

The duties discussed here are the ones that are implied under the common law.

1) Duty to receive an employee to service when the contract is concluded

Cont... The employer is duty bound to receive an employee on

the agreed date after the conclusion of employment contract. No excuse should be given by the employer upon an employee who is reporting on the date agreed.

2. Duty to pay wages or remuneration.

One of the fundamental duties of the employer towards his employee is obligation to pay wages or remuneration. A contract of employment or the written statement of particulars will usually give details of the amount of wages payable.

Cont... The rates may be based on negotiations between the

employer and the employee or on a collective agreement with the trade union. There is entitlement to wages even though the employee can not work because no work is available. Time workers are however paid for being ready, willing and able to work for the agreed hours.

Overtime is payable when expressly agreed upon by the parties in the contract or if it is customary.

Cont... Discretionary payments in the form of allowances or

bonuses are not rights as such and an employee can not claim as a matter of right

This duty to pay wages or remuneration is also provided under Article 23 of the Constitution of URT 1977( R.E 2005) ( as amended from time to time) and s.27 of the ELRA.

Cont... 3) Duty to ensure safe working condition. S. 98(2)(q) of the

ELRA

The employer must take reasonable care to make his premises safe. Example of unsafe premises includes structural defects, bad ventilation, unsafe insulation and slippery floors or staircases.

Equipment includes plant, tools and materials i.e all those things with which a person my be expected to work must be of safe nature. Plants, tools and equipment supplied by the employer must be reasonably safe and an employer who does not do so fails in this duty.

Cont... The employer is deemed to have failed in the following

circumstances if;

i) he fails to supply suitable equipment and the employee is forced to improvise

ii) he provides defective equipment knowingly or which he should have known on a reasonable examination. The onus is on the employer to inspect the equipments.

iii) he fails to remedy defects which have been brought to his notice

Cont... The employer’s failure to take reasonable steps to

ensure the safety of an employee may be a breach of a fundamental term of contract of employment entitling the employee to forced resignation and claim for constructive termination of contract of employment as provided under s.36(a)(ii) and Rule 7 of the Employment and Labour Relations ( Code of Good Practice) Rules, 2007

Cont... 4) Duty to honour or respect contractual and other

statutory duty

The employer has the duty to treat his employees with due respect and consideration, mindful of their needs and problems, sympathetic to their problems. This duty arises at the outset of the contract and continues during its performance up to its termination. The employer therefore should not carry on the provocative conducts towards his employees.

Cont... Eg s.96 of the ELRA require or oblige an employer to

keep records of an employee for a period of five years after termination of an employee contract of employment.

5) Duty to indemnify

Employer must indemnify his employee who has incurred the liability while acting on behalf of the employer. The employer is excused from this duty if the employee knew that the employer had n right to give the order in question.

Cont... 6)Duty of confidentiality

The employers are duty bound not to disclose any confidential information about their employees to third persons. Thus, the employer cannot disclose a confidential information concerning without the employee’s consent. This is because the employer comes into the possession of that information only for the purposes of employment relationship and not for any other purpose.

Cont... Duties of the employees

The duties of an employee are therefore either implied or are contained in his contract. The implied and or expressed duties include;

1) To attend to work

It is an important obligation that an employee is bound under a contract of employment to attend to work at such time and place specified in the contract itself.

Cont... 2) To obey lawful orders

The employee is bound to obey all lawful orders of his employer which are within his scope of employment. This duty imports the concepts of obedience and loyalty. An employee is not obliged to obey orders that may amount to illegality or criminal offence or breach of public policy. Employee may refuse a task which amount to lowering his status before other employees or the community.

A wilful refusal to obey a lawful order will often lead to the termination of contract of employment.

Cont... 3) To exercise due care and skill

The employee has a duty to perform his work competently, using reasonable skill and care. The employee is obliged to take care of the employer’s property.

The breach of the duty to use care and skill entitles the employer to claim damages in respect of the negligent performance of the contract.

Cont... In the same way an employee who negligently allows

his employer’s property to be stolen or causes it wilful damage breaches his contract and may be liable for termination of contract of employment.

4) To conduct oneself properly

An employee must not misconduct himself i.e display insolence, laziness, act of immorality, dishonest or drunkenness while at work. Any act of misconduct may justify termination of contract of employment.

Cont... This happen if the misconduct interferes with

employer’s business or the employee’s ability to perform the work.

5) To observe good faith.

An employee is in a fiduciary relationship with the employer and may be held to have breached the duty of good faith if he discloses professional or trade secrets to third parties, or solicits customers of the employer to his own business or for the benefit of another person.

Cont... 6) Duty to indemnify

Where the employer suffers any loss or damage occasioned by the employee, then the employee is bound to compensate the employer to the extent of such loss or damage. The employer can recover such loss or damage by way of indemnity by making deductions from wages of the responsible employee.

7) To maintain Fidelity

The employer-employee relationship is one based on trust. The employee must be loyal to the employer.

Cont... He should not accept bribes or make secret profits or

commissions.

Literally any secret profits and or commissions received by the employee in the course of employment must be disclosed to the employer and also accounted for.

8) To perform his work personally

The employee must do the work assigned to him personally thereby displaying the skills and or profession associated with the work in question.

Cont... The employee must not allow any other person to do

the work assigned to him.

9) To Maintain business/ trade secrecy

Employee must maintain secrecy over his employers services during the time of his employment and even after. The employer is not entitled to disclose any matters involving patents or trade secrets of the employer which comes to him by virtual of his employment.

Cont... 10) To give proper notice

The employee must give proper notice to the employer of termination of his employment according to the terms of his contract. S.41 of the ELRA.

TOPIC THREE: FUNDAMENTAL RIGHTS AND EMPLOYMENTS STANDARDS. Fundamental core rights/protection

What are fundamental core rights/protection

These are rights and protection contained in the 8 core ILO conventions and which TZ has ratified. The rights forms the bare minimum for the creation of a decent environment within which to work. These rights have been consolidated and placed under part II of the ELRA.

Cont... What are International Labour Standards?

Labour standards are simply the rules that govern how people are treated in a working environment. They come in a variety of forms and originate at the local, national, and international levels.

Labour standards cover a very wide variety of subjects, mainly concerning basic human rights at work, respect for safety and health, and ensuring that people are paid for their work.

Cont... They also extend to questions of good governance,

such as labour inspection and basic labour administration. In an economic context, they are important for raising productivity and competitiveness over the long term.

At the national level, labour standards are usually set by laws and regulations. Some can also be found in collective agreements. Normally, these bind only the contracting parties, trade unions and employers but once accepted in some countries, they acquire the force of law for the entire country or economic sector

Cont... At the international level, labour standards are found

in international conventions and recommendations. International labour standards (ILS) are important for two reasons.

First, they represent the international consensus on minimum best practices, whether on human rights generally or more precisely on labour matters.

Cont... Second, and more immediately important in many

cases— when they have been ratified by member countries they constitute binding legal obligations in national and international law, and may even be incorporated in national law.

What are Core Labor Standards ( CLS)?

CLS are a set of four internationally recognized basic rights and principles at work:

(i) freedom of association and the effective recognition of the right to collective bargaining,

Cont... (ii) elimination of all forms of forced or compulsory

labour,

(iii) effective abolition of child labour, and

(iv) elimination of discrimination in respect of employment and occupation.

While there are many types of labour standards, the four listed above have achieved consensus internationally as the “core” labour standards. International support for these standards reflects an understanding that they are applicable to all countries.

Cont... The ILO further substantiated the CLS in 1998 by the

Declaration on the Fundamental Principles and Rights at Work, which calls upon its member countries to comply with the four principles, regardless of whether they have ratified the relevant conventions.

Cont... There are two convention which deal with child labour

I) the ILO Minimum Age Convention No 138 of 1973 and its accompanying Recommendation (No. 146)

II) Prohibition and Immediate Elimination of Waste Forms of Child Labour Convention No 182 of 1999

The ILO Minimum Age Convention, 1973 (No. 138) and its accompanying Recommendation (No. 146) set the goal of elimination of child labour, and the basic minimum age for employment or work (in developing countries at 14 years of age or the end of compulsory schooling, whichever is higher;

Cont... and 15 or the end of compulsory schooling for

developed countries). The Convention sets a minimum age of 2 years younger for “light work,” i.e., 12 and 13 years, respectively; and a higher minimum age for dangerous or hazardous work (basically 18 years of age, but 16 in certain circumstances). The Convention also has various other flexibility clauses.

Cont... The main issues in the Minimum Age Convention No. 138

are:

• National Policy. Each State that ratifies Convention No. 138 undertakes to pursue a national policy to ensure the effective abolition of child labour.

• Declaration of minimum age for admission to employment or work.

• Individual exceptions. After consultation with organizations of employers and workers, the competent authority may allow exceptions in individual cases in a very few areas, but not to the basic rules

Cont... Hazardous work. The employment of young persons from

the age of 16 years may be authorized, after consultation with organizations of employers and workers, on condition that their health, safety, and morals are fully protected; and they have received adequate specific instruction or vocational training in the relevant branch of activity.

• Light work is work which is not likely to be harmful to the health or development of the young persons concerned and is not such as to prejudice their attendance at school or their participation in vocational orientation or training programs.

Cont... Worst Forms of Child Labour Convention (No.182) and

Recommendation No.190, which target the worst forms of child labour as a matter of urgency.

The “worst forms of child labour” are

(i) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage, and serfdom and forced or compulsory labour—including forced or compulsory recruitment of children for use in armed conflict;

(ii) use, procurement, or offering of a child for prostitution, production of pornography, or pornographic performances;

Cont... (iii) use, procurement, or offering of a child for illicit

activities, in particular for the production and trafficking of drugs; and

(iv) work that, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety, or morals of children.

In addition, the Convention on the Rights of the Child, adopted by the United Nations in 1989, has been ratified by almost every country in the world, and applies also to child labour.

Cont... There are two convention on forced labour

i) the Forced Labour Convention, No 29 of 1930

ii) the Abolition of Forced labour Convention No 105 of 1957

the Forced Labour Convention, 1930 (No. 29) (Article 2(1)): define the term ‘forced or compulsory labour’ “to mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”

Cont... The “penalty” referred to need not be in the form of

penal sanctions, but might take also the form of loss of rights or privileges.

However, certain types of labour are excluded from the scope of Convention No. 29:

• work of a purely military character;

• work that forms part of the normal civic obligations of citizens;

Cont... • work as a consequence of a conviction in a court of

law, provided that

(i) said work is carried out under the supervision and control of a public authority;

(ii) the said person is not hired to or placed at the disposal of private individuals, companies or associations;

Cont... • work in cases of emergency (war, calamity, and in

general any circumstance that would endanger the existence or the well-being of the population); and

• minor communal services (services performed by the members of the community in the direct interest of the said community).

Cont...

Forced labour for such reasons as mobilizing for economic development, punishment for strike participation, or as a means of discrimination, is also prohibited.

the Abolition of Forced Labour Convention, 1957 (No. 105), specifies that forced labour can never be used for the purpose of economic development or as a means of political education, discrimination, labour discipline, or punishment for having participated in strikes.

Cont... There are two convention on prohibition of discrimination

i) Equal Remuneration Convention No 100 of 1951

ii)Discrimination of employment and occupation No 111 of 1958

the ILO Equal Remuneration Convention, 1951 (No. 100), along with its accompanying Recommendation (No. 90). Upon their adoption, it was recognized that equal pay could not be achieved without the elimination of discrimination in all areas of employment and that other grounds of discrimination also should be the subjects of prohibition.

Cont... The main issues in the Equal Remuneration Convention No.

100 from 1951 are:

• Remuneration: the ordinary, basic or minimum wage or salary and any additional emoluments whatsoever payable directly or indirectly, whether in cash or in kind, by the employer to the worker and arising out of the workers’ employment.

• For the purpose of the Convention, the term “equal remuneration for men and women workers for work of equal value” refers to rates of remuneration established without discrimination based, directly or indirectly, on sex.

Cont... • Where differential rates between workers

correspond, without regard to sex, to differences in the work to be performed, as determined by an objective appraisal, these must not be considered as being contrary to the principle of equal remuneration.

The Discrimination (Employment and Occupation) Convention 1958 (No. 111),and Recommendation No. 111, which address all forms of discrimination concerning employment and occupation.

The main issues in Convention No. 111 are:

Cont... • Discrimination: any distinction, exclusion or preference

made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin (or such other ground as may be specified by the State concerned), which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.

• Each State that ratifies the Convention undertakes to declare and pursue a national policy designed to promote equality of opportunity and treatment with a view to eliminating any discrimination in respect of

(i) access to vocational training,

Cont... (ii) access to employment and to particular

occupations, and (iii) terms and conditions of employment.

• In particular, it has to

- seek the cooperation of employers’ and workers’ organizations and other appropriate bodies in promoting the acceptance and observance of its policy;

- repeal any statutory or administrative provisions inconsistent with the policy;

- enact legislation and promote educational programs to secure its acceptance;

Cont... - ensure observance of the policy in employment,

vocational guidance, vocational training and placement services under the direction of a national authority; and

- indicate in its annual reports on the application of the Convention the action taken in pursuance of this policy.

Cont... Two ILO convention on freedom of association

i) The ILO Convention on Freedom of Association and Protection of the Right to Organize, 1948 (No. 87)

ii) the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

These are referred to as the twin conventions on freedom of association and collective bargaining. They give workers their most fundamental rights—the right to form and join organizations of their own choosing and to promote and defend their economic and social interests. These conventions give the same rights to employers.

Cont... While Convention 87 gives workers the right to form

and join trade unions, Convention 98 consolidates this basic right with guarantees and safeguards for trade unions to operate freely and independently of governments and employers

Further, Convention 98 lays down the key principles of the right to organize and bargain collectively. It provides the protection that workers and their organizations need against acts of anti-union discrimination and of interference by either public authorities or employers

Cont... It also lays down the obligations of ratifying states to

respect and promote freedom of association and collective bargaining. Therefore, not only does this Convention establish the right of a trade union to exist, it also defines its purpose to negotiate with employers with a view to the regulation of terms and conditions of employment by means of collective agreements.

Cont... There is also the ILO Declaration on Fundamental

Principles and Rights of Work of 1998

For more Information visit this website www.ilo.org

Fundamental core rights under the ELRA Prohibition of Child Labour S. 5 ELRA

Child labour is a scourge it exposes a child to hash, exciting and sometimes dangerous environment. Child labour is also exploitative humiliating and deny children their fundamental right to schooling, rest and recreation.

Consequently s. 5 of the ELRA provides among others prohibit the employment of children below the age of 14 but allows employment of children of or above 14 years but below 18 years in light work.

Cont... The s.5 of the ELRA also prohibit employment of

children under the age 18 years in mines, factories and other setting which are hazardous

Further it prohibit employment of children in any employment that is in appropriate for a person of that age that is the worst form of child labour

Cont... 2. prohibition of forced Labour s.6 of the ELRA

Under the ELRA forced labour also include bondage labour or an work excited from a person under the threat of a penalty and to which that person has not consented

However, section 6(2) of the ELRA exclude certain forms of forced labour from the definition although they may constitute forced labour under normal circumstances. These include

Cont... a) work excited under the National Defence Act, 1966

for a work of a purely military nature

b) work that forms part of the normal civil obligation of the citizen of TZ

c) any work excited during any emergency

d) work excited from a person convicted by the court of law

Cont... Prohibition of discrimination. S.7 of ELRA

Discrimination occur in a variety of forms and in range of different setting, it may be direct, indirect or take the form of harassment s.7 of ELRA prohibit employers to discriminate directly or indirectly against an employee in any employment policy or practice on grounds of colour, nationality, tribes or place of origin, political opinion or religion, sex, gender, pregnance, family responsibility or marital status, disability, HIV AIDS, age or station in life.

Any person who contravene s.7(4)(5) commits an offence

Cont... However, s.7 of ELRA allows discrimination based on

affirmative action inherent job requirements or employment of citizens under the National Employment promotion Service Act, 1999

S.7 of ELRA requires employers to promote equal opportunity in employment and eliminate discrimination but also take positive step to guarantee equal remuneration for men an women for work of equal value.

Part III of the Code of good practise also provides for the discrimination.

Read also s.8 of the ELRA

Cont... Freedom of Association

Every employee has right to form or join trade union and to participate in lawful activities of the trade union (s. 9) However, this right is subject to qualification in certain kinds of employment. The employees who have a restricted right are magistrates, prosecutors and senior management employees.

For magistrates they may only form or join trade unions that restrict their membership to judicial officers

Cont... The prosecutors on the other hand may only form or

join trade unions that restrict their membership to prosecutors or other court officials. The senior management employees may not belong to a trade union that represents the non-senior management employees of the employer.

The right to association is also available to employers. The employers have a right to form or join employer’s association and to participate in the lawful activities of such associations (s.10).

Cont... There are also rights accorded to trade unions and

employers association such as;

Right to determine their constitutions

Right to plan and organize their administration and lawful activities

Right to join and form federations

Right to participate in the lawful activities of the federation

Right to affiliate and participate in the affairs of any international workers or employees organization or the ILO (s11).

Employment Standard under the ELRA( Part III of the ELRA 1. Hours of work

This is an employment standard which is provided under s.17-25 of the ELRA.

However, this standard of hours of work does not apply to employee who manage other employees on behalf the employer and who report directly to the senior management.

On the other hand this standard does not apply to work done in an emergence situations which can not be performed by employees during their ordinary hour of work.

Cont... S.19(1) require or permit an employer not to allow an

employee to work more than 12 hours in a day.

S. 19(2) provide for the maximum number or of ordinary days or hours that an employee may be permitted or required to work which are

a) 6 days in any week

b) 45 hours in any week

c) 9 hours in a day

Cont... Overtime

No employer is permitted to require or permit an employee to work overtime except in accordance with an agreement and the overtime hours are limited to not more than 50 in any four week cycle.

The remuneration for overtime payment is also provided for in which case, an employer is prohibited from paying less than one and one half times the employee’s basic wage for any overtime worked.

Cont... Night Work: Section 20 of the ELRA provides for restrictions as to night

work. Note that night time is defined to mean hours after 20hrs

and before 6hours. During this time it is prohibited that the employer should

not allow; pregnant employees, mothers (for period of two months after the date of birth or

before that date if the mother requests to work and produces medical certificate that her baby’s health shall not be endangered),

Cont... children under 18 years of age and an employee who is

medically certified as being unfit for night work, to work at night.

The remuneration at night work is also provided for in which the employer is required to pay an employee at least 5% of that employee’s basic wage for each hour worked at night and if the hours worked are overtime hours, the 5% to be calculated on the employee’s overtime rate.

Cont... Compressed Working Week arrangement:

Section 21 provides for the compressed working week. In this case a written agreement must be signed by the employer and employee to require or permit an employee to work up to 12 hours in a day inclusive of any meal interval, without receiving overtime pay.

An agreement under this provision shall not require or permit an employee to work more than five days in a week or more than 45 hours in a week or more than 10 hours overtime in a week.

Cont... Break in working day:

Section 23 provides for break in a working day in which an employee who works for 5 hours continuously is granted a break of at least 60 minutes.

However, the employer may require an employee to work during a break only if the work cannot be left unattended or cannot be performed by another employee.

The employer is not obliged to pay the employee during the break period unless the employee is required to work or to be available during the break.

Cont.... Daily and Weekly rest periods:

An employer should allow an employee to have a daily rest period of at least 12 hours between ending and recommencing work.

The employer should also allow an employee a weekly rest period of at least 24 hours between the last ordinary working day in the week and the first ordinary working day in the next week.

Cont... However, a daily rest period may be reduced to 8

hours if there is a written agreement and the ordinary working hours are interrupted by an interval of at least three hours or the employee lives on the premises of the workplace. (S. 24(2).

Cont... A weekly rest period may by written agreement

provide for a rest period of at least 60 hours every two weeks, or a reduced weekly rest period by 8 hours if rest period in the following week is extended equivalently (s. 24(3).

An employee may only work during the weekly rest period if he has agreed to do so provided that the employer shall pay the employee the double hourly basic wage for each hour worked during the period. (S. 24(4).

Cont... Public Holidays:

Section 25 provides that if an employee works on a public holiday specified in the Public Holidays Act, the employer should pay the employee double the employee’s basic wage for each hour worked on that day.

Cont... 2. Remuneration

Wages are protected by the protection of wages convention 1949 No 95. the convention provides inter alia that wages should be paid in legal tender or partly in kind and that wages should directly be paid to the worker.

The CURT also provide for the right to fair remuneration for work done. Article 23 of the CURT

S.26 of the ELRA provides for the calculation of rates to paid hourly, daily, weekly or monthly.

Cont... The hourly, daily, weekly or monthly wage rates are to

be determined in accordance with the table provided for in the first schedule of the ELRA

S.27 of the ELRA an employee shall be entitled to his/ her remuneration and paid during working hours at the place of work on the agreed pay day.

The payment may be made in cash or by cheque or direct deposit into a bank account if the employee direct.

If payment is in cash or by cheque the same should be place in a sealed envelope.

Cont... Payment must be supported by written statement of

particulars ( salary slip). The obligation of the employer is to pay in cash if the employee has directed he can be paid by cheque or deposit on the account

The employer may pay an advance if that is agreed on completion of the half contract period. When the employer pay an advance, the employer should not charge interest. S.27(3)

The minister is empowered to make regulation providing for partial payment in kind or in a legal tender in certain occupation which he will specify.

Cont... However, payment in kind should not be made in form of

drug or liquor. S.27(4) of the ELRA

Any person who contravene s. 27 of the ELRA commits an offence.

S.28 of the ELRA provide on deductions on employees wages. An employer shall not make any deduction from an employee remuneration unless the deduction is permitted by the law, a collective agreement, wage determination, court order or arbitrators award or there is an agreement in writing by the employee to suffer the deductions

Deductions on the employee should not exceed one quarter ¼ of the employee’s remuneration in money

Cont... Where the employer becomes bankruptcy or winding

up the employee right shall be the claims that have accrued in respect of 26 weeks immediately proceeding the date on which the bankruptcy or winding up was made

Any person who contravenes s. 28 of the ELRA commits an offence

Cont... 3. Leave s. 29-34 of the ELRA

Cont... Annual Leave:

s. 31 provides that an employer shall grant an employee at least 28 consecutive days leave in respect of each leave cycle and such leave shall be inclusive of any public holiday that may fall within the period of the leave.

During annual leave, the employer should not require or permit an employee to work for him (s.31 (6).

Leave cycle in respect to annual leave means a period of 12 months consecutive employment with an employer following the employee’s commencement of employment or the completion of the last 12 months leave cycle (s. 30).

Cont... However, the employer and employee may agree to a

standard leave cycle provided that it shall not prejudice the paid leave afore said.

As regards the number of days in respect of the annual leave, may be reduced by the number of days during the leave cycle which, at the request of the employee, the employer granted that employee paid occasional leave. (S.31 (2).

Cont... The annual leave may be taken at the time which may

be determined by the employer provided that such a leave shall not be taken later than six months after the end of the leave cycle or twelve months after the end of the leave cycle if the employee has consented and the extension is justified by the operational requirements of the employer (s.31 (3).

An employer shall pay an employee the remuneration the employee would have been paid had he worked during the leave period before the commencement of the leave (s.31 (4).

Cont... The employer is prohibited from paying an employee

an amount of money in substitution for the annual leave to which that employee is entitled whether or not the employee agrees to such payment (s. 31(7).

however, this provision is subject to prorata payment which is made under s. 31(8).

Under this section, the employer shall pay an employee a prorata amount for annual leave accrued, at the termination of employment or at the expiry of each season in respect of an employee employed on seasonal basis (s. 31(8).

Cont... Such a prorata amount of annual leave shall not be

availed to an employee who has not taken the leave within the periods provided by the law (s.31 (9).

The prorata amount of annual leave shall be calculated at the rate of one day’s wage for every 13 days the employee worked or was entitled to work (s.31 (10).

Cont... Sick leave:

s. 32 provides that an employee shall be entitled to sick leave for at least 126 days. The sick leave is a leave with pay but there is a modification as to the amount to be paid. The amount paid on sick leave is calculated as follows:

the first 63 days are paid at full wages

the second 63 days are paid at half wages

Cont... However, there are restrictions which apply to

payment during sick leave.

For the employee to be entitled to paid sick leave he must produce a medical certificate and he must not be entitled to paid sick leave under any law, fund or collective agreement.

The rationale for the first restriction is to make sure that the employer pays only in genuine cases while the rationale for the second restriction is to prevent a double payment to the employee in respect of the same subject matter

Cont... Maternity Leave:

S. 33 provides for maternity leave. The employee is required to give notice of intention to take maternity leave supported by a medical certificate at least 3 months prior to the date of birth.

The leave may commence at any time from four weeks before the expected date of confinement or on an earlier date if a medical practitioner certifies it as necessary for the health of the employee or that of her unborn child (s.33(2).

Cont... The duration of the leave is 84 days or 100 days in case

of giving birth to more than one child (s.33(6).

It should be noted that the leave cycle in relation to maternity is 36 months consecutive from an employee’s commencement of employment or the completion of the last 36 months leave cycle (s.30).

This means an employee shall not be granted maternity leave under the terms of this Act if the cycle is not complete.

Cont... However, an employee is entitled to additional 84

days paid maternity leave within the leave cycle if the child dies within a year of birth (s.33(7).

Moreover, an employer is only obliged to grant paid leave for 4 terms of maternity leave to an employee in terms of this law (s.33 (8).

no employer shall require a pregnant or nursing woman to perform work which is hazardous to her health or the health of the child (s.33 (5).

Cont... Thus, where an employee performs work that is

hazardous to her health or that of her child, her employer shall offer her suitable alternative employment, if practicable, on terms which are not less favourable than those she is serving (s.33(9).

Also no employee shall work within 6 weeks of the birth unless a medical practitioner certifies that she is fit to do so (s.33 (3).

the employer shall allow the employee (to breast-feeding a child) to feed the child during working hours up to a maximum of two hours per day (s. 33(10).

Cont... Paternity Leave:

S. 34 provides for the paternity leave together with other forms of leaves.

Paternity leave of at least 3 days is granted to the male employees on the conditions that such leave is taken within 7 days of the birth of a child and the employee is the father of the child (s.34(1).

Before paying, the employer may require reasonable proof of the event of birth.

The three days referred to here is the total number of days to which the employee is entitled irrespective of how many of the employees children are born within the leave cycle

Cont... Compassionate leave:

the employee is entitled during any leave cycle to at least four days paid leave for the sickness or death of the employee’s child or the death of the employee’s spouse, parent, grand parent, grand child or sibling (s.34 (1) (b).

The four days referred here is irrespective of how many events prescribed here occur within the leave cycle, but the employee may take more days as may be authorised by the employer for the event provided that such extra days will be without pay.(s.34(3)(b)

Cont... Forms of leave not provided for under the ELRA

Regulations made under s.34(1) of the Public Service Act, 2002 have three more types of leave;

i) Leave without pay

ii) Sabbatical Leave

iii)Leave pending retirement

Leave without pay; a public servant may be granted leave without pay provided that the permanent secretary is satisfied that it is in the public interest to do so.

Cont... The public servant should make application for leave

through the employer who then forwards the same to the permanent secretary for his recommendation. This leave is not a right of an employee

Sabbatical leave

A public servant may be eligible for the grant of sabbatical leave where necessary to broadens ones experience or to increase his potential value to the service.

Cont... This leave must be approved by the Permanent

Secretary in case of a public servant other than chief executive officers whose approval should be given by the chief secretary.

This leave is also not a right and limited to twelve months granted once in every 5 years.

Leave pending retirement.

A public servant should be granted a leave pending retirement. This leave is taken before the date of retirement. Leave pending retirement is a right and the employer has no discretion not granting it.

Cont... 4. Termination of employment

Termination of employment is another standard under sub part E of part III of the ELRA. All employers who to terminate must comply with subpart E of part III of the ELRA.

The termination of employment convention 1982 No 1 has been very influential in drafting modern labour legislation on termination of employment.

The convention establishes the core elements of the employees right and basically they are three;

Cont... i) the employer may only terminate a work for a valid

reason and there are three reason

a) misconduct

b) incapacity

c) operational requirement

ii) An employee must have an opportunity to be heard before the termination takes place

iii) An employee must have the appeal against a termination decision to an impartial body

Cont... Termination of employment is one of the area where

most of the labour dispute arise.

Subpart E of part III of ELRA makes a clear distinction between the acts of termination or forms of termination and the reason for termination.

Therefore, in handling termination cases three stages are involved

i) whether there was termination

ii) whether there was a fair termination

iii) whether the termination was fair