Employers in Tanzania may face legal action as a result of failure to follow Tanzania labour related to disciplinary hearing and its procedure. The disciplinary hearing procedures in Tanzania are governed by the Employment and Labour Relations Act CAP366 of 2004 the Employment and Labour Relations (Code of Good Practise) G.N 42 of 2007, and the schedule to the Code of Good Practice G.N. No. 42 of 2007, Guidelines for Disciplinary, Incapacity and Incompatibility
The main purpose of a disciplinary hearing is to correct the employee's behaviour and ensure that they conduct themselves professionally at work. However, it can also be a question of the employee not having the capability to perform the job as well.
The employee must be aware that before conducting a disciplinary hearing against an employee there are several steps to be conducted against an employee, this means that an employer cannot initiate a disciplinary hearing against the employee on the spot.
First step: Counselling and verbal warning
When an employee engages in minor misconduct or performs poorly, the first action that an employer should take is to issue a verbal warning and counselling so that the employee understands that certain actions are undesirable and that he may correct the behaviour.
Second step: Written warning
When an employee's behaviour or conduct does not improve after being counselled or given a verbal warning, the next step to be taken by the employer is to issue a written warning. The employee may receive a written warning in stages, such as a first warning letter, a second warning letter, and a third warning letter.
Third stage: Disciplinary hearing
The question is at what stage should an employer conduct disciplinary hearing? A disciplinary hearing must be conducted on the below circumstance;
- Further misconduct following a written warning or warning
- Repeated written warning for different offences or;
- Allegations of serious misconduct which could on their own justify a final warning or dismissal and may lead to termination of employment
In order for the disciplinary hearing procedure to be regarded fair under the law, the following process must be adhered to;
- Conducting an investigation
At this stage the employer is advised to conduct a thorough investigation before inviting the employee for a disciplinary hearing. The purpose of conducting an investigation is to ascertain if there are grounds to conduct a disciplinary hearing.
In conducting an investigation, the employer should be careful in the process. For example, it is not advisable to postpone a hearing to perform a further investigation. In the case Huruma H. Kimambo V Security Group (T) Limited Revision 412 of 2016 [2018] TZH CLD 30. an employer decided to postpone a hearing to conduct an investigation to ascertain if there are grounds of disciplinary hearing. The court held that this action by the employer brings a picture that the employer didn't conduct an investigation to ascertain the grounds for disciplinary hearing.
- Notifying the employee of the allegations
The employer is required to notify the employee in writing of the disciplinary hearing that will be conducted against him. The notification should state the allegations, time and date of the proposed hearing. The employee shall give the employee a reasonable time to prepare for the hearing, which shall be not less than 48 hours.
The letter should also inform the employee of the right to have a representative at the hearing and that person can either be a fellow employee or a trade union representative.
In addition, the employer is required to furnish the employee with a copy of the investigation report so that he prepares for his defence at the hearing. This requirement was held in the case of Higher Education Student's Loans Board Vs Yusufu M. Kisare Consolidated Revision No. 755 of 2018.
- Conduct a disciplinary hearing
The law requires for senior management representative to be the chairperson. The chairperson should be impartial and not involved in the events that led to the case. However, if the employee is a senior manager, then in such appropriate circumstances a senior manager from a different office may serve as a chairperson.
- Presentation of evidence and calling witness
According to Tanzania labour law, the evidence that was collected shall be presented at the hearing and the witness who can testify on the allegations should be brought up, both the employer and the employee have the right to call witnesses and present the evidence on the alleged misconduct. The chairperson shall rely on the evidence and witnesses present at the hearing in order to make a decision.
- Mitigation
According to Tanzania labour law, if the outcome of the hearing finds the employee guilty of the allegations, the employee is given a chance to put forward mitigation factors before the decision is made on the disciplinary action to be taken.
- Decision of the hearing
According to Tanzania labour law, the chairperson is required to inform the employee of the outcome of the hearing as soon as possible but it should not be later than 5days, the outcome of the hearing should state the reasons of the decision and it should be in a prescribed form. The chairperson should sign the disciplinary hearing from and give a from to the employee.
- Appeals
An employee may appeal against the outcome of a hearing by completing an appropriate part of the copy of disciplinary hearing an shall give the chairperson within 5 working days of being disciplined. The appeal hearing shall not be chaired by the same chairperson but by a senior level of management. The appeal should not constitute a hearing but is should focus on the grounds of appeal.
CONCLUSION.
The primary goal of a disciplinary hearing is to improve an employee's behaviour so that he or she acts in an acceptable manner at work. Prior to terminating an employee, Tanzania labour laws provide that several chances should be given to the employee to rise up to the occasion and do better. The procedure is there so as to also ensure fairness and transparency as well as giving the employee the right to be heard before any decision that might even be termination is made by the Employer. In the event that the employee is not satisfied with the outcome of the disciplinary hearing even after the appeal was conducted, the employee may use the dispute mechanism method provided under the Tanzania labour laws.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
