Q&A – 14 October 2013

Firing a receptionist because of weight gain

I am a renowned businessman in Tanzania with retail operations in different regions within the country. In my sales offices I have employed models as receptionist knowing that whoever comes into my offices will be attracted such that I will strike deals. One of my employees who is a receptionist has gained so much weight such that her attraction no longer exists. Unfortunately she has a permanent contract of employment with me. How do I get rid of her as I know she is going to grow fatter by the day.
YT, Dar

Although you have deployed models to work for you as part of your marketing strategy, when it comes to terminating a person’s employment, the labour laws continue to apply and should be followed. The Employment and Labour Relations Act, requires every termination of contract of employment to be fairly done short of which it shall be unlawful. By fair termination the law has required first observance and following of fair termination procedures as it provides and secondly having a good reason to terminate. Coming to the question you have posed, we do not see how you can successfully terminate this employee. You have not stated whether the weight gained by the employee has made here incompatible with her duties or has led to poor performance in work.

We think apart from being discriminatory, your move to terminate the lady is uncalled for due to lack of good reasons to justify termination. Should you wish her not to be a receptionist we think you can still speak to her and assign her other tasks if at all acceptable. Otherwise you might have to be open with your employee about her weight, get her some weight control classes including getting her to join the gym, dieting etc.

All said and done above, should you for example be a modelling agency, and the weight gain does not allow the lady to perform her duties, as unfortunately fat people are generally not as attractive
as thinner individuals, then based on the employee’s exact work profile, you can, prior to giving the employee a chance to slim down, proceed to terminate her but must follow the right procedures under the law.
Your lawyers can guide you further.

Appealing Minister’s decision

I have applied for an environmental clearance and am told that the Minister is likely going to reject it. Can I go to Court?
UT, Mwanza

Under the Environmental Management Act, there has been established an Environmental Appeals Tribunal. Section 204 of this Act states that the Tribunal shall exercise an appellate jurisdiction under this Act in respect of matters referred before it.

Further the section states that any person who is aggrieved by (a) the decision or omission by the Minister on; (b) the imposition of or failure to impose any condition, limitation or restriction issued under this Act or the regulations made under this Act; and the decision of the Minister to approve or(c) disapprove an environmental impact statement, may within thirty days after the occurrence of the event against which he is dissatisfied, appeal to the Tribunal in such manner as may be prescribed by the Tribunal.

From the above, the correct channel is first to appeal to the Tribunal and then the High Court. In your case, since the decision has not yet been reached, you will have to wait for the decision before proceeding to the Tribunal.

Employer secretly monitoring messages

I was employed in a certain company as marketing and sales officer. The company gave me one of the latest mobile phones for use and my personal mobile number was used. I did not know that the company was monitoring my messages in the phones until I entered into a wrangle with one of the bosses. This was after the boss noted and started accusing me of going out with a co-worker, who is his mistress which I was not aware of. I am now served with a show cause notice that I have used the office’s phone to cause havoc in work place by interfering in my boss’s love relations. I am afraid that I might get fired due to this. Can the company get such information from the mobile company even on private issues like ones love life which is unrelated to work? Please guide me properly as the boss is all out to get me?
TX, Dar

We believe the company gave you the phone so that your duties may be performed effectively. We are unsure how the company obtained these messages but very likely the mobile service provider, who is the only custodian known to us of such details, provided a print out to your boss.

All in all this is indeed an intrusion to privacy and results into liability under the Electronic and Postal Communication Act and the Electronic and Postal Communications (Consumer Protection) Regulations, 2011 which are made under the Act. This intrusion of privacy is a serious issue and you may consider and proceed to lodge a complaint with the Tanzania Communications Regulatory Authority (TCRA) against the telecom company and your employer.

On the show cause notice issued to you, first we wish to observe that unless there are other missing details in your question, the notice is based on facts which are quite remote from the employment issues, unless of course you have been having the affair in the office during office hours. It seems it is the boss after you rather than the company that you work for.

Lastly, you have not told us if the allegations of dating the boss’s mistress are true or not. If true, you should be careful about your resulting performance at work. Many a times, with office affairs, your work output suffers which can result into a ground for termination. We believe you have not given all details to guide you effectively and recommend you disclose all facts to your lawyer for proper guidance.