Threat of termination related to pregnancy

I am an employee working in a Company owned and managed by foreigners. These last few weeks have been stressful as my manager recently discovered that I am pregnant. Following this discovery, I received a letter that the Company is considering my termination and wants me to start looking for another job before the termination letter is issued. The letter even quoted a law which says ‘no employer shall require or permit a pregnant employee to perform work that is hazardous to her health or the health of her child.’ Is this the position of the law? I do not think I will be able to find another job. Kindly guide me.
EG, Geita

We are sorry to hear about the stressful situation you are going through. Your concern is addressed in the Employment and Labour Relations Act [Cap. 366 R.E 2019] (ELRA). First of all, according to section 7(4)(j) of the ELRA, no employer shall discriminate, directly or indirectly, against an employee, in any employment policy or practice, on the ground of pregnancy. In that regard, the law protects you from discrimination.

Further, section 37(1) generally states that it is unlawful for an employer to terminate the employment of an employee unfairly. Specifically, termination for reasons related to pregnancy is considered to be unfair termination as per section 37(3)(b)(i) of the ELRA in addition to various precedents. While it is true that section 33(5) of the ELRA states that no employer shall require or permit a pregnant employee or an employee who is nursing a child to perform work that is hazardous to her health or the health of her child, this cannot justify termination. According to section 33(9) of the ELRA, where an employee performs work that is hazardous to her health or that of her child, her employer must offer her suitable alternative employment, if practicable, on terms and conditions that are no less favourable than her terms and conditions. Your lawyer can guide you further. We wish you all the best.

Witness avoiding incriminating questions

I was watching a television show from the USA, where a witness refused to answer a question in order to protect himself. The Court allowed them to refuse to answer. This part inspired me to investigate what the Tanzanian law says about a witness refusing to answer an incriminating question. Please enlighten me.
HJ, Dar es Salaam

This is a very interesting question. In Tanzania, a witness cannot be excused from answering a question because the answer is incriminating. Section 141 of the Evidence Act [Cap. 16 R.E 2022] provides that a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceedings, on the ground that the answer to that question will incriminate, or may tend directly or indirectly to incriminate the witness, or that it will expose, or tend directly or indirectly to expose her/him to a penalty or forfeiture of any kind, or that it may establish or tend to establish that she/he owes a debt or is otherwise subject to a civil suit.

Nonetheless, section 141 adds that, no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any subsequent criminal proceedings, except to a prosecution for giving false evidence by such answer.

From the foregoing provision, you will see that the section has two limbs. First, it targets to compel a witness to answer questions even when the answer may be incriminating. The second limb grants immunity to a witness who has information that can help establish matters in issue which she/he would not have otherwise provided because it exposes them. Your lawyer can guide you further.

Withholding tax for non-resident service provider

We are a company based in Dar es Salaam. In 2019, we engaged a foreign consultancy firm for certain services. Following this engagement, we made payments to the firm and did not withhold tax based on advice from a local tax consultant. According to the tax consultant, the payments made to the said non-resident service provider, had no source in Tanzania and were for services performed outside Tanzania hence, not liable to the withholding tax. The Tanzania Revenue Authority (TRA) has conducted a tax audit on our company and is now demanding withholding tax on the payments made to the foreign firm. Why did the consultant and the TRA have a different view? Kindly guide us.
MK, Dar es Salaam

We believe the concern is on the application of sections 6(1)(b) on chargeable income of a non-resident person with a source in United Republic of Tanzania (Tanzania); 69 (i)(i) on payments considered to have a source in Tanzania; and section 83(1)(c) on withholding tax for services fee of the Income Tax Act, [Cap. 332 R.3 2019]. A number of cases before the Court of Appeal (the Court), have dealt with the interpretation and application of these sections on withholding tax for services rendered by a non-resident service provider. The gist of these provisions is the compliance with withholding tax in respect of service fees paid by a resident company to non-resident service providers. The position regarding the interpretation of the above-cited provisions of law and their proper application, has already been settled by the Court that there is an obligation to withhold tax for payments made to the non-resident entity as per the rates provided by law even when the services were performed outside Tanzania. This is the settled position in Tanzania and you should comply. Your tax consultant can guide you further.