Q&A – 18 December 2023

Arbitration versus mediation in contract

I have been served with a notice of intention to refer the dispute for arbitration by a company for a purported breach of contract for supply of certain outfits. However, I recall that the said contract has a dispute resolution clause which provides that in case of a dispute between the parties it should first be referred to mediation, and if mediation fails then the same can be referred to arbitration at the London Center for International Arbitration (LCIA). What should I be doing? Pls guide.
KB, Arusha

We don’t have the benefit of looking at the wording of the clause which you have mentioned above, however based on our experience the said clause restrict parties to the contract to only refer the matter to arbitration after failure of mediation. Therefore the notice you have been served is premature.
Even if the other party will proceed to file arbitration you can successfully challenge the same before the arbitral tribunal. Based on our experience, LCIA don’t entertain a dispute which has not been referred for mediation as per the contract. In the meantime you need to respond to the said notice by informing them that they are supposed to attempt mediation before opting to go for arbitration.

Boss hates safety belt

My boss does not like fastening his safety belt when he sits in the front when I am driving. Every time I drive, I get stopped by the traffic police who punish me by making me pay a fine for driving while a front seat passenger has not fastened the safety seat belt. How does the law protect an innocent driver who advises his boss to fasten a safety seat belt but the boss refuses?
PP, Moshi

A driver commits a traffic offence under section 39(1) of the Road Traffic Act [Cap.168 R.E 2002] if he drives a motor vehicle while a person sitting in the front- seat has not fastened the safety belt. Unfortunately, the law does not give any excuse to a driver whose boss refuses to fasten the safety seat belt. Where the boss refuses to fasten the seat belt, the driver should not drive because if he does, he will be committing a traffic offence. Moreover, your boss cannot fire you for not driving in such circumstances.

Labour dispute by child employee

We are a non-governmental organisation dealing with child protection and have been approached by a child who was employed on a two-year contract as a gardener but his contract has been terminated on account of what the employer called laziness. We would like to get your opinion whether under law, a child employee can lodge a labour dispute against the employer directly or he is required to use a next friend.
PN, Dar

Rule 21 of the Law of the Child (Child Employment) Regulations, 2012 provides guidance for institution of employment disputes by a child employee. The Regulations require a child who is aggrieved with termination of his employment to refer the dispute to the Commission for Mediation and Arbitration in accordance with the procedure prescribed under the labour laws. Although the Commission does not sit as a juvenile Court, the Regulations demand that the procedure for institution and settlement of employment disputes by a child employee be modified in order to guarantee child protection. In that regard, a child is required to refer an employment dispute to the Commission through a parent or guardian or anybody who signed the employment contract on his behalf at the time of taking the job as a next friend.

In the absence of such a person, the child may refer the dispute to the Commission through any person he chooses to be his next friend for the purpose of referring the dispute to the Commission. At the time of taking the child’s evidence during the arbitration hearing, the procedure used by the Commission should be friendly to the child as if the child is giving evidence in a juvenile Court. Only the child’s next friend, lawyer, the arbitrator and the opposing party will be allowed to be present in the arbitration during the hearing session.