Summary note

• Criteria and grounds of unfair termination in Zanzibar
• Steps to be taken by employee after Unfair Termination.
• Remedies for Unfair Termination.

Overview

Unfair termination occurs when an employer dismisses the employee for reasons that violate employment law or employment contract.

Termination is considered unfair when it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in accordance with the law.

In Zanzibar, employment relations are governed by the Employment Act No 11 of 2005, the Labour Relations Act No 1 of 2005, Mediation and Arbitration Regulations No 107 of 2011 laws of Zanzibar.

Criteria and Grounds for Unfair Termination in Zanzibar

Section 118 (3) of the Employment Act laws of Zanzibar provide for criteria and grounds for unfair termination. These are:

• an employee is seeking office, acting or having acted in the capacity of a workers’ representative. 
• an employee’s action of filing a suit, petition or proceedings against the employer for reasonable allegations that such employer has contravened labour laws.
• ethnic, colour, religion, gender, marriage, family responsibility, pregnancy, political opinion, political affiliation, national extraction, social and place of origin; disability or HIV/AIDS status.
• absence from duty by reason of maternity leave.
• fails or refuses to do anything that employer may not lawfully permit or require an employee to do.
• temporary absence from work because of illness.
• discloses information that the employee is entitled or required to disclose to another person according to the law.
• exercises any right conferred by a collective agreement or otherwise, under the law.
• participates in lawful activities of a trade union including a lawful strike.
• affiliation of the employee to a lawful trade union, society or public affairs.

Steps to be taken by Employee after Unfair Termination.

Upon unfair termination, the aggrieved employee is required to take the following steps:

Notify the Tade union/lawyer

The employee is required to notify the trade union of the termination and request representation if he/she is a member or engage a lawyer who will represent the employee at the Dispute Handling Unit.

File a labour dispute

The aggrieved employee is required to file a labour dispute at the Dispute Handling Unit by filling a Referral form DHU form number 1 under regulation 17 and 18 of the Mediation and Arbitration Regulations. If the dispute is instituted as a representative dispute, then parties will assign one employee to sign on their behalf. The dispute is required to be filed at the Dispute Handling Unit within 14 days from the date of termination or the date the employer made a final decision to terminate. This is provided under regulation 22 (1) of the Mediation and Arbitration Regulations no 107 of 2011.

Service of summons

 After a labour dispute is duly instituted, the Dispute Handling Unit then serves the employer summons to appear to the unit for mediation on a day stated in the summons by issuing DHU form number 2 under regulation 19 (2) of the Mediation and Arbitration Regulations.

Other means of dispute resolution, the Dispute Handling Unit may give the parties other avenues to reconcile out of the unit before mediation under regulation 26 of the Mediation and Arbitration Regulations.

Mediation

Parties are then called for mediation and each party either by themselves or their representatives express their concerns. The unit shall give the parties at least 14 days’ notice in writing of the mediation hearing unless parties agree to a shorter period of notice.

The mediator explains to the parties why they are both summoned and explore solutions to resolve the dispute amicably under regulation 32 of the Mediation and Arbitration Regulations. The goal is to have a win-win scenario for the parties.  The referral party (complainant) explains their concern on unfair termination and states the compensation they require from the employer (other party) and the employer (the other party) responds.

Parties at this stage may settle and meet consensus, when parties resolve amicably the mediator asks parties to sign deed of settlement and issues the certificate mediation is successful which is form number 4 under Regulation 39(1) of the Mediation and Arbitration Regulations.

When parties fail to settle, the mediator declares mediation has failed and parties then proceed to arbitration.

Remedies for Unfair Termination:

Section 119 of the Employment Act provide for remedies for unfair termination. these include reinstatement without loss of remuneration for the period of unlawful termination, reengagement, compensation, reverse suspension and order cancellation of written and final written warning imposed by the employer. However, under section 119 (2) of the Employment Act No 11 of 2005 the unit/court before deciding which remedy to grant shall consider which remedy to grant either consider the possibility of making a reinstatement or   re-engagement order by taking into account the wishes of the employee, circumstances that led to dismissal, practicability of reinstatement or reengagement an award of compensation in addition to which the employee may be entitled in terms of any law or agreement.

Conclusion

Employee after the unfair termination can institute the labour dispute to get the compensation and remedies, he/she thinks entitled. The Dispute handling Unit will award the proper remedies after careful listening to both parties.

When either party is not satisfied with the decisions of the unit, i.e. mediation and arbitration, they can appeal to the High Court- Industrial Division in Zanzibar.

Disclaimer: This article is authored by Jill Kato, an Associate from Rive & Co, a new and innovating law firm as a result of the partnership between ABC Attorneys, Stallion Attorneys and Sepia Attorneys, built on the foundation of trust, credibility, and novelty, offering expert legal solutions.  This Article is for informational purposes only and should not be construed as legal advice. It is recommended to consult with a qualified legal professional for advice specific to your situation.

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