Q&A – 1 October 2018
Girl breaches promise to marry me
I dated a girl from high school for 5 years and she promised to marry me once back from her university studies. We kept in touch and I turned down offers of very rich girls waiting for her to return, meaning I lost millions as I could be well settled by now. Upon her return she says she has found a rich foreign man and will marry him not me. I want to stop her from betraying me. I know our laws will come to my rescue. Please guide me. Can I write to one of our Ministers to assist me? Or someone else in the Government as I know they are now very serious and honest.
UM, Dar
There is not much you can do. You are not yet married to this girl and she has the liberty, as you do, to change your mind until you actually get married. There is no order that we can think of that can assist you. Even when married, couples can divorce so it is not that you cannot part at any time.
The opportunity cost that you ‘lost’ by not marrying a rich girl is not also claimable from this girl. We recommend you be practical, leave this girl alone (unless she has changed her mind) and proceed with looking for a new partner- rich or poor (whatever that means).
No Minister or Government official will be able to legally force this girl to marry you. This government also has priority areas and we believe will not pay attention to this.
Terminating maid who has contracted HIV/AIDS
We are an expatriate family and very unfortunately my maid who has been with us for over 10 years, has contracted HIV/AIDS. We are not comfortable, as would be all others, to keep her working here. Can we terminate? How can one terminate someone with HIV/AIDS. We are really scared and have sent her temporarily on paid leave. I must admit that I got or doctor to do the test stating that it was a malarial test and we found out her status. Please guide us.
PO, Songea
Generally speaking a maid who contracts HIV before or subsequent to her employment cannot be terminated fairly on that ground. This is because a maid falls under the presumption of an employee as provided under section 61 of the Labour Institutions Act of 2004. Therefore, terminating her because of her HIV positive status will be contrary to the standards of employment under which non-discriminatory acts are required.
Under section 37 of the Employment and Labour Relations Act of 2004, it is unlawful for any employer to terminate an employee for reasons that constitutes discrimination. HIV/AIDS has been covered under section 7 of the Act to be one among the grounds that constitutes discrimination. Additionally, the Employment and Labour Relations (Code of Good Practice) GN No. 42 under Rule 20(1) states that, no employment shall be terminated merely on the basis of HIV/AIDS.
On top of that, The HIV and AIDS (Prevention and Control) Act of 2008 establishes the HIV law and provides a legal basis for protecting the rights of people living with HIV. Section 31 of The Act discourage all forms of discrimination and it makes it an offence for anyone who does the same.
Having said the above, if the HIV infection limits or renders the maid unable to perform her daily activities, she could be terminated on incapacitation as stipulated under rule 15 of the Employment and Labour Relations (Code of Good Practice).
We also believe if there is a likelihood or an attempt to deliberately spread the disease to the members of your family, based on section 33(2)(a) of the HIV and AIDS Act, one could terminate the maid on the ground of misconduct as is provided under rule 12(3)(c) of the Employment and Labour Relations (Code of Good Practice).
Our law provides for legal procedures to be followed in terminating the employee depending on the nature and or ground for such termination. Moreover, each ground attracts some pecuniary procedures to be followed thus each reason needs to be dealt with on its merits and a fair procedure applied in each case. Remember, to terminate any employee you need to have a valid reason, and, follow the proper procedure. Many employers fall foul of the procedure although they have a good reason.
We must state also that your doctor who did the test without your maid’s consent has broken the law. Section 15(7) clearly provides for this and states that ‘any health practitioner who compels any person to undergo HIV testing or procures HIV testing to another person without the knowledge of that other person commits an offence.’ The offence attracts a fine or imprisonment or both.
Finally, the law deals with expatriate and non-expatriate families along the same lines. There is no difference between a maid employed by you and one employed by a local family.
Liability of finance manager if entity doesn’t pay tax
I am only a finance manager of an entity that has failed to pay tax. I am just unsure what to do but have been told by my auditor that this cannot backfire on me personally. I seek your confirmation as presently I see a different and stricter TRA.
UR, Mwanza
Unfortunately, the Tax Administration Act 2015 doesn’t agree with the response from your auditor. Section 65 states that (1) where an entity failed to pay tax on time, a manager or a person who was the manager of that entity within a period of twelve months prior to the entity default shall be jointly and severally liable with the entity for payment of the tax. Subsection 2 however states that the provisions of subsection 1 shall not apply where the manager has exercised the degree of care, diligence, and skill that would have been exercised in preventing the failure to pay tax.
Hence, to ensure that you are not personally held liable, you need to make sure that you exercise a degree of care, diligence and skill to ensure that taxes are paid. If taxes are still not paid, you might want to preempt this by reporting this matter to the TRA, and perhaps resigning, so that you are not personally held liable.