Q&A – 11 February 2019

Retrenchment in banking sector in Tanzania

I am employed in a famous bank in Tanzania as a bank teller. It has now come to my knowledge that another bank is intending to acquire our bank. Should I be worried about my employment status and position? What are my rights if I am terminated?

JF, Dar

You are right to be anxious and unsure about your employment status as when two or more organizations come together operational restructuring is inevitable. Depending on different scenarios, the employees of the target company (your bank) may find themselves out of work or placed in a new role.

The law in Tanzania allows an employer to retrench on different grounds such as financial constraints, restructuring of the business, mergers and acquisition and closing of business. Rule 23 (2) of the Employment and Labour Relations (Code of Good Practice) Rules (ELRR), 2007 stipulates that as a general rule the circumstances that might legitimately form the basis of termination are- (a) economic needs that relate to the financial management of the enterprise; (b) technological needs that refer to the introduction of new technology which affects work relationships either by making existing jobs redundant or by requiring employees to adapt to the new technology or consequential restructuring of the workplace; (c) structural needs that arise from restructuring of the business as a result of a number of business related causes such as the merger of businesses, a change in the nature of the business, more effective ways of working, a transfer of the  business or part of the business.

The Employment and Labour Relations Act (ELRA), 2004 sets out the procedure an employer needs to follow to ensure that retrenchment is procedurally fair. Section 38 of the ELRA, read together with rule 23, 24 and 25 of the ELRR requires an employer to follow the procedure below: give notice of any intention to retrench as soon as it is contemplated; disclose all relevant information on the intended retrenchment for the purpose of proper consultation; consult prior to retrenchment or redundancy on reasons, measures, timing and severance pay in respect of the intended retrenchment.

The rationale behind imposing the above obligations is to ensure that all possible alternatives to dismissal are explored and that the employees to be retrenched are treated fairly. We must also state that some employment agreements may provide for other scenarios for retrenchment and an employment lawyer should read your contract in addition to the laws stated above.

Restructuring of the AGs office

I have been informed by my friend who is studying law that the office of the Attorney General has been restructured by taking away some functions and powers; establishing the office of Solicitor General (SG); and reinforcing the Director of Public Prosecutions’ Office. I always believed that in a law suit against the Government I would sue the AG. Is that still the position?

GM, Arusha

It is true that the office of the Attorney General (AG) has been restructured through GN No. 48 Office of Attorney General (Re-Structure) Order, 2018 with a view of enhancing and strengthening the legal sector capacity to respond to challenges in the emerging legal jurisprudence amongst others.

The new established office (SG) is charged with supervision of civil cases including human rights and constitutional matters in Courts of law and undertake arbitral proceedings in tribunals. At the same time the above mentioned Order has conferred the independence of the DPP through establishing the National Prosecutions Services which has mandate over all criminal litigations.

Therefore, the powers that have been retained by the office of the AG are the provision of legal advisory services to the Ministries and other Government institutions, legislative drafting of proposals into bills and general supervision of Law Officers, State Attorneys and other staff in the office of the Attorney General, Ministries, independent Government departments, Executive Agencies and Local Government Authorities.

However, it is important to note that, order 4(2) of GN No. 50 Office of the Solicitor General (Establishment) Order, 2018 makes it clear that all suits and claims instituted on behalf of the government and conducted in Courts of law or arbitral tribunal by the SG, Deputy SG, Law Officers, State Attorney or Legal Officers is supposed to be in the name of the AG. Therefore, when instituting any claim against the government, it shall be instituted in the name of the AG but will be conducted by the SG. Your lawyers can guide you further.

Colonial era documents in possession

My father left us some old colonial era documents that he had in his possession when he was in the Government then. We have preserved the documents for decades. Few years back we were contacted by some persons from the public records office who were trying to build some sort of archives. Can such officers take these documents away from us?

JU, Dar

The law in Tanzania categorizes records into two groups being public and private records. Public records have been defined to mean the records and archives belonging to the United Republic created, received and maintained in the offices of the President; official bodies and tribunals; public offices whether legislative, judicial or executive. While private records, are those document s other than public records.

The Records and Archives Management Act empowers the Minister responsible for records and archives management to acquire any private records that are of national importance and in public interest. After such acquisition, the Minister will then declare the records to be public records.

The law requires the Minister to consult the owner of private records before proceeding with the acquisition process. Furthermore, regulation 15 of the Records and Archives Management Regulation, GN No. 77 of 2007 provides for the procedure to be complied with before the acquisition of private records. The provisions of the above mentioned regulation makes it mandatory for the Records and Archives Management Department to prepare an agreement or contract which is to be entered between the owner of private records and the Department.

The said agreement has to specify the records to be acquired and various terms and conditions to be observed by both parties. On top of that, the owner is entitled to full and fair compensation in respect of the private records so acquired. Additionally, the amount of compensation to be paid shall be determined by the Minister for Finance after consultation with the person entitled to that compensation.