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Maternity/Paternity Leave

Donasian Mbonea, 9th January 2012

All about Maternity, Paternity, and Annual leave, Employment Contracts and Termination of

employment in Tanzania,

Apart from Annual Leave, what other forms of leave am I entitled to?

Over and above Annual Leave you are entitled to Maternity/Paternity Leave, Sick Leave and

Compassionate Leave. These are forms of leave provided for under the law. However, a

Collective Bargaining Agreement or an internal policy can provide for more forms of leave.

How do I become eligible for Maternity/Paternity Leave?

Maternity Leave is covered under Sub-Part D of the Employment and Labour Relations Act,

2004. An employee becomes eligible for Maternity/Paternity Leave after completion of six

months work from the commencement of your employment contract. Another criterion for

eligibility of Maternity Leave is the requirement of the law for an employee to give written

notice to the employer of her intention to take Maternity Leave at least three months before

the expected date of birth. Such notice must be supported by a medical certificate.

You become eligible for Maternity Leave after completion of six months work from the date of

commencement of your employment.

Can the employer refuse to give me Maternity Leave for failure to give notice as

required?

The Employment and Labour Relations Act, 2004 only put this as a criteria for one to be able

to get Maternity Leave. It is silent on what will happen to you if you do not give the required

notice. It is therefore advisable for an employee to give three months notice because an

employer can refuse to give you paid Maternity Leave because of your failure to follow the laid

down procedures

How many days of Maternity/Paternity Leave am I entitled to?

In a Leave Cycle (period of 36 months) you will be entitled to 84 days paid Maternity Leave if

you give birth to a single child or 100 days paid Maternity Leave if you give birth to more than

one child. These days include rest days and Public Holidays. However if due to any birth/

delivery complications you require extra days you can discuss with the employer in terms of

the possibility of using Sick Leave days, or some days from your Annual Leave, or getting extra

unpaid leave days.

The duration of Paternity Leave is three days in a leave cycle which is thirty six months. The

three days are the total number of days irrespective of the number of children that are born

within the leave cycle

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Is there any condition under the law upon its occurrence that will allow me to get

an additional 84 days paid Maternity Leave within the leave cycle?

Yes. If you give birth and the child dies within a year of birth you will be entitled to an

additional 84 days paid Maternity Leave.

Is there any limit on the number of times that I can take Maternity Leave?

According to the laws governing private sectors an employee can have up to four terms of

Maternity/Paternity Leave in the course of employment with the same employer.

In the event that I have exhausted my four terms of Maternity Leave and I become

pregnant can I still request another paid Maternity Leave?

No. You can not be refused your Maternity Leave, but it will be without pay.

When can I commence my Maternity/Paternity Leave?

An employee may commence her Maternity Leave at any time from four weeks before the

expected date of confinement or on an earlier date if certified by Medical Practitioner that it is

important for the health of the mother or unborn child.

With regard to Paternity Leave the same is due to be taken within seven days of the birth of

the child.

Can I be terminated from employment when I am pregnant or soon after returning

to my job from my Maternity Leave?

Yes, you can be terminated from your employment when you are pregnant or soon after

returning from Maternity Leave but the reason should not be related to your pregnancy or

giving birth. An employer can terminate you for other reasons such as misconduct or

underperformance, but only after adhering to the laid down procedures.

Are there any payments under the law that I am entitled to from my employer

during my Maternity Leave?

An employer is under the law required to give an employee on Maternity Leave only her usual

salary that an employee would be entitled if she had attended work. However, if additional

benefits have been provided under internal policies of the organisation/enterprises then the

employer will be obliged to pay.

What about hospitalisation? Is my employer responsible for my hospital bills

associated with pregnancy or delivery?

The law provides that the employer will have a duty to cater for her employee’s medical bills if

the employee leave under the employer’s premises or the same has been negotiated and put

under a Collective Bargaining Agreement, or if the employer has an internal policy which

provides for medical services for employees.

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Which other institution can cater for my Maternity Benefits?

Some pension funds like the National Social Security Funds do have a product on Maternity

Benefits. Maternity Benefits have two elements, Maternity Medical Care and Maternity Cash

Benefit. A woman who is registered with NSSF can receive these, provided she meets the

following conditions:

In the period between first registering with the fund and the expected week of

confinement, she must have paid 36 contributions.

In the 36 months immediately preceding the expected week of confinement, she must

have paid 12 contributions.

If both those conditions are satisfied, the woman will qualify for both benefits. If either

condition is not satisfied, she will not qualify for either of the benefits.

Annual Leave

Donasian Mbonea 9th January 2012

What is annual leave? How do I become eligible for it?

Annual leave is time off work granted to you by your employer in which you receive your

full salary. An employee becomes eligible for annual leave if she/he has completed a period of

12 months service to their employer. Annual leave matures six months from commencement

of employment and it can also be taken on a pro rata basis. The duration of annual leave is

28 days and it is inclusive of the weekly rest period and all public holidays falling therein.

Annual leave is covered under Sub Part D of Part III of the Employment and Labour

Relations Act, No. 6 of 2004.

I am a temporary worker. Am I eligible for annual leave?

The condition for one to be entitled to annual leave is that you must have worked with

the same employer for 12 months. So even if you worked as a temporary employee, if the

amount of work adds up to 12 months you will be entitled to annual leave.

Under certain conditions the law allows payment of leave on a pro rata basis. For example, if

you work for a duration of nine months you could still be entitled to annual leave on a pro rata

basis. The pro rata amount of annual leave is usually calculated at the rate of one day’s basic

wage for every 13 days the employee worked or was entitled to work.

Is this leave compulsory or can it be accumulated?

Generally, it is in the spirit of the law that annual leave should be taken during the same leave

cycle. However under the law, an employee applies for leave and it is the mandate of the

employer to determine the time when the leave is to be taken. The employer has the mandate

to carry it forward but it should not be later than six months after the end of the leave cycle or

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twelve months after the end of the leave cycle if the employee has consented and the extension

is justified by operational requirements.

In the event of termination or resignation, when an employee has some

outstanding/accrued leave the employer is liable to pay this amount.

At what rate is annual leave paid? Do I get my full pay?

Yes, you get your full wages. In fact, the law requires the employer to pay your remuneration

before the commencement of your leave. On top of your ordinary remuneration, the

Regulation of Wages and Terms of Employment, Order, 2010 requires you to be paid

Leave Travel Assistance and the same is payable once in two years. The purpose of this is

to assist you in catering for your transport during your leave. The law does not stipulate

an amount which should be paid. The employer and employee to negotiate the Leave

Travel Assistance amount and either put it into a Collective Bargaining Agreement, Human

Resource manual or employment contract.

Can my employer pay me an amount of money in substitution for my annual leave?

The law prohibits payment in substitution of leave whether you as an employee agree or

not. The leave days are meant to provide an employee time off to relax, so that you can come

back to work with a fresh mind and full of energy.

Annual leave becomes payable only upon termination/resignation or expiration of a

contract and when the employee has accrued a number of leave days.

Neither is an employer allowed to call an employee to work during the period of annual leave.

If I take maternity leave this year is my annual leave going to be forfeited?

No! Maternity leave can not cancel out your annual leave even if both of them are taken within

one year. This is because annual leave and maternity leave both serve a different purpose.

Section 31 (5) provides that an employer shall not require or permit an employee to take

annual leave in place of any leave to which the employee is entitled.

In the case of an emergency and I need paid time off, will I still be entitled to my

annual leave?

Yes. If you have taken some paid days off during the leave cycle you would still be entitled to

annual leave but minus the number of days during the leave cycle which were granted to you at

your request.

Termination of Employment

Termination of employment means ending the employer-employee relationship between

an employer and employee. Termination of employment can be initiated by any of the parties to

a contract of employment. Lawful termination of employment under common law includes:

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Termination of employment by agreement: When the employer and employee agree to bring a contract of employment to an end in accordance with an agreement. For

example, if there is a contract for a period of one year and the agreed period expires

then the contract will obviously come to an end.

Automatic Termination: A contract of employment may be terminated automatically

in circumstances such as death or loss of business of the employer.

Termination of employment by the employee/Resignation: This happens when an

employee due to material breach of the contract by the employer decides to resign

from her employment.

Termination of employment by an employer: An employer may also terminate the

employment of an employee but there is a need to comply with the provisions of the

law and contract relating to termination.

Can my employer terminate my contract because he/she does not like me?

No. Under the law there are four grounds that may justify termination of the employment

by the employer and these are:

Misconduct

Incapacity

Incompatibility

Employer’s operational requirements/retrenchment.

An employer may also terminate an employee due to participation in an illegal strike. Therefore

for an employer to terminate an employee he/she should have a genuine reason falling under the above-mentioned grounds of termination. An employee cannot be fired because an

employer does not like them - unless the grounds for this dislike are based on the above-

mentioned factors, such as misconduct etc.

What amounts to Fair Termination of Employment?

In order for termination to be fair in the eyes of the law it has to be both substantively and

procedurally fair. The employer needs to have a valid and fair reason for termination.

Apart from this valid reason of termination the employer must follow fair procedures

for termination as are provided under the Employment and Labour Relations Act, 2004 and

The Employment and Labour relations (Code of Good Practice) Rules, 2007. The procedures

for termination are different depending on the reason for termination but they all have a

common item - the right of an employee to be heard before a termination decision is taken

against an employee.

Is it fair for my employer to terminate me summarily if I have committed a gross

misconduct, such as being caught red handed for stealing?

Regardless of the seriousness of the offence committed by yourself and regardless of the fact

that your employer has reliable evidence, it is mandatory to follow the procedures

outlined under the law. Failure to follow the procedure will amount to summary dismissal,

meaning an employee is terminated without being availed of an opportunity to defend

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herself/himself before a fair disciplinary committee. Unless an employee has confessed to the

commission of the offence then it is mandatory to hold a disciplinary hearing.

With summary dismissal, an employee does not have a chance to present their case

before termination. In labour laws this can amount to unfair termination. There are

several consequences of unfair termination.

If a criminal case over the same matter has been filed before a court of law against

me, can my employer still terminate my employment contract?

No one can terminate or take disciplinary action against an employee who is facing the

same charges before a court of law unless the two charges are different or do not arise in

the same cause of action.

What are the likely consequences of unfair termination for an employer?

If the Commission for Mediation or Arbitration or Labour Court rule out that a termination is

unfair it may order the employer to:

Reinstate the employee from the day he/she was terminated without loss of

remuneration. Meaning the employee will have to be remunerated as if he/she has been

employed for the whole period that he/she was absent due to termination. When an

Order for reinstatement is made but the employer does not want 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 date of

final payment.

Re-engage the employee on any terms that the Arbitrator or Court may decide. When

an order for re-engagement is made but the employer does not want to 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 date of final

payment.

Compensate the employee with not less than twelve months’ remuneration. An order

for compensation shall be in addition to and not a substitute for, any other amount to

which the employee may be entitled in terms of any law or agreement.

Contracts of Employment

What laws govern Contracts of Employment in Tanzania?

Generally, the Law of Contract Act governs all types of contracts in Tanzania. But for specific

types of contracts there are specific laws governing the same. For example the Employment and

Labour Relations Act specifically provides for Employment Contracts. It is therefore correct to

state that the Employment and Labour Relations Act, 2004 together with the Law of Contract

Act govern employment contracts.

Are there many types of contracts?

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There are mainly three types of contracts under which you can be employed and these are:

A contract for an unspecified period of time: As the name explains, for this type

of contract the duration of employment is unspecified, meaning not provided for. Some

call it a permanent contract.

Contract for specified period of time: This is a type of contract in which the duration

is specified. Under this contract if the specified duration has expired then the

contract automatically comes to an end. A contract for a specified period of time could be

of a duration of one month, three months, one year, two years etc.

Contract for a specific task: This is a kind of contract in which a person is employed

to perform a specific task. Once the task is completed then that contract comes to an end.

For example, it could be that a person is employed to offload crates of soda from a truck

and once that task has been completed then the contract ends.

As an accountant or any other professional, can I be employed on a contract for a

specified period/permanent contract?

Yes. According to section 14 (1) (b) a contract for a specified period of time is for professionals

and those employees in managerial ranks. However, this provision is often complained about, as

one cannot employ someone who is not a professional on the same basis. The law provides that

they should be employed under contract for a specific task or for an unspecified

period/permanent contract.

What is a Written Statement of Particulars and what are its ingredients?

A written Statement of Particulars is a list of information about an employee and terms

of engagement which the employer must supply to an employee once an employee

commences employment. A Written Statement of Particulars must contain the following

information about an employee;

Name, Age, Permanent Address and Sex of the employee

Place of Recruitment

Job description

Date of commencement

Form and duration of Contract

Place of Work

Hours of Work

Remuneration, method of calculation and details of any benefits or payments in kind;and

Any other prescribed matter.

If the particulars stated above are stated in a written contract which has been supplied to an

employee the employer may not furnish the employee with the Written Statement of Particulars.

It is also the duty of the employer to make sure that all written particulars or the ingredients of

the contract are explained to the employee in a manner that an employee understands. It is

necessary to put the contract in a language that is easily understood by the employee, be it

English or Swahili.

Can I be employed in an Oral Contract?

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Oral contracts are permissible; however an employee must be supplied with a Written Statement

of Particulars containing terms listed above. It is however not advised to enter into an oral

contract of employment because in case of any legal proceedings the burden of proving or

disproving an alleged term of employment shall be on the employer. If an employer fails to

produce a contract of employment or written statement of particulars he/she will then fail to

prove any term contained therein and the dispute might be decided against him/her. It is therefore

very important to supply an employee with a written contract or at least a Written Statement of

Particulars.

Do I as an employee have to provide a Written Statement of Particulars or sign a Contract

of Employment with someone who employs me for only a few days?

A Written Statement of Particulars or a Contract of Employment or any of the above

mentioned terms shall not apply to an employee who works less than six days in a month for

an employer.