Q&A – 7 July 2014
Severance pay for misconduct
My company has been sued at the Commission for Mediation and Arbitration by one ex-employee who was terminated for stealing certain equipment. After termination we paid him his terminal benefits except severance pay. Although he admits to have been fairly terminated, this ex-employee now demands his severance pay as he worked for ten years. Is this employee legally entitled to this payment? Please advice.
TK, Mtwara
Section 42 of the Employment and Labour Relations Act, Act No 6 of 2004 as well as Rule 26 of the Employment and labour Relations (Code of Good Practice) Rules, 2007 Government Notice No 42 of 2007 recognize severance pay as one of the terminal benefits. Severance pay is defined to mean an amount at least equal to 7 days’ basic wage for each completed year of continuous service with that employer up to a maximum of ten years.
However the same law does not place obligation to an employer to pay severance to an employee who is terminated on grounds of misconduct. Your decision not to pay severance to the said ex-employee cannot be faulted and the claim by the said ex-employee shall on all fours fails. We advise you present your case well at the Commission for Mediation and
Arbitration in line with the aforesaid provisions of the law.
Scholarship for US university
I am an average student and had approached a person locally here to get a scholarship into a university. He said he can get me a full scholarship but I would need to part with Usd 8,000 as an advance to show the university that I had atleast some money to convince them to fund the rest. I complied and till date I do not have admission neither a scholarship. My contact claims he is at the university still working on my issue. What should I do?
TE, Dar
From the facts above, it seems you have been conned. The getting of a university scholarship is determined amongst others on your grades, extra-curricular activities, references and the like. We don’t see how the Usd 8000 is relevant in getting a scholarship. Your contact makes it sound like getting a scholarship is like buying it from a grocery store. In fact your contact doesn’t need to be physically present at the university to get you a scholarship and these are the signs that you have been taken for a ride.
To recover the funds you can consider suing. However before doing so, you might also want to consider criminal action based upon which he might refund the funds.
Appeal to apex Court
I have appealed to the Court of Appeal on a decision I was aggrieved with at the High Court of Tanzania. My lawyer did not show up and the appeal was dismissed. Is this how strict the law is? I also had an issue with the jurisdiction of the Court and wished to raise it. When is the appropriate time to do so?
BG, Mwanza
Your first question is covered in the Court of Appeal rule 112 which states that if on any day fixed for the hearing of an appeal, the appellant does not appear, the appeal may be dismissed and any cross-appeal may proceed, unless the Court sees fit to adjourn the hearing, save that where an appeal has been so dismissed or any cross-appeal so allowed has been heard, the appellant may apply to the Court to restore the appeal for hearing or to re-hear the cross-appeal. Provided that the appellant shows that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing.
If you want to have your appeal restored, your advocate will have to file an application for restoration and show sufficient cause for not entering appearance. Otherwise you can proceed sue her/him for professional negligence.
On the preliminary objection that you want to raise, the Court of Appeal rule 107 states that a respondent intending to rely upon preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before hearing, setting out the grounds of objection such as the specific law, principle or decision relied upon, and shall file five such copies of the notice with the Registrar within the same time and copies or photostat of the law or decision, as the case may be shall be attached to the notice. If the respondent fails to comply with the rule the Court may refuse to entertain the objection or may adjourn the hearing thereof upon such terms and orders as to costs and as it thinks fit.
Printing error in law
There is one particular act of parliament which has a serious printing error in it. Does it need to go back to parliament to get reenacted or rectified? What is the process?
EC, Dar
First we are not sure how you are so sure that there is a printing error in the law. Nonetheless, assuming you are right, the interpretation of laws act has a special provision for this and states in section 26(3) that where there is any clerical or printing error in any Bill or Act published in the Gazette, the Chief Parliamentary Draftsman or any member of the Attorney-General’s Chambers authorised in writing in that behalf by the Chief Parliamentary Draftsman, may, by order published in the Gazette, give directions as to the rectification of such error and every such direction shall be read as one with the Bill or Act to which it relates and such Bill or Act shall, with effect from the date of its first publication, take effect as so rectified.
We recommend you write to both the Chief Parliamentary Draftsman and the Attorney General for them to do look into this. In short, if it is a printing error, the law does not need to go back to parliament.