Probationary Employees In Tanzania - The Law And Practice

• Published date: 12 March 2024
• Subject Matter: Employment and HR, Contract of Employment, Employee Rights/ Labour Relations
• Law Firm: AVC & Partners Advocates
• Author: AVC & Partners Advocates

A probationary employee is an employee who is employed by an employer and placed in a trial period for purposes of being observed, to ascertain if he is a good fit for the employer in question and to ascertain if the said employee is competent to do the job he has been hired to do.¹

Rights of probationary employees in Tanzania are provided both under the Employment and Labour Relations Act ² as well as the Employment and Labour Relations (Code of Good Practice) Rules³.

According to the Employment and Labour Relations Act, as well as the Employment and Labour Relations (Code of Good Practice) Rules, employees who have worked with the same employer for a period of six months or less, are not protected by the two Laws; and provisions of the said two laws when it comes to unfair termination are not applicable to such employees.

Sub Part E of the Employment and Labour Relations Act provides essentially for procedures that an employer ought to follow before terminating the employment of an employee. The said Employment and Labour Relations Act clearly provides that it is unfair for employers to terminate an employee's employment unfairly. According to the said Act, if an employer fails to prove that the reason for termination was fair, and the proper procedure was followed, such termination shall be taken as unfair and shall entitle the employee to get compensated accordingly.⁴

In other words, according to the Employment and Labour Relations Act, as well as the Employment and Labour Relations (Code of Good Practice) Regulations, employees who have worked for less than six months for an employer are not afforded protection under the Law with regards to fairness of procedure and fairness of the reason for termination of their employment.

Rights of Probationary Employees:

Protection for Probationary employees under the Employment and Labour Relations (Code of Good Practice) Rules is provided under the condition that said employees have worked for the same employer for a period of six months and above. Employees who are under probation for less than six months, and are terminated whilst still under probation are unfortunately not afforded protection through provisions of the law related to unfair termination.

In simpler language, under the Employment and Labour Relations Act, as well as the Employment and Labour Relations (Code of good practice) Rules, employers are not required to follow the procedure laid down under Sub-part E of the Employment and Labour Relations Act as well as under the guidelines contained in the Code of Good practice, in circumstances where the employee in question, whether under probation or otherwise, has worked for that particular employer for a period of less than six months.

Tanzanian Courts have on numerous occasions ruled in accordance with this position when given opportunities to adjudicate on the rights of probationary employees who have worked for less than six months for a particular employer. In one such case, when the High Court of Tanzania (Labour Division) had to determine whether the Commission for Mediation and Arbitration had jurisdiction to entertain a Complaint for unfair termination filed by employees who were terminated whilst under probationary periods of less than six months, the Court decided that the Commission for Mediation and Arbitration lacked such jurisdiction, for the reason that the said...