Employee claims payment in form of alcohol

We are an alcoholic beverages distributor, distributing different types of alcoholic drinks in Tanzania. We pay our employees overtime allowance and bonuses according to the Company Policy. One of our staff has approached us requesting the Company to pay him his overtime allowance and bonus in the form of alcohol instead of cash we normally pay through the employees’ bank accounts. We have not responded to the employee’s request for payment of overtime allowance and bonus in the form of alcohol because we are not sure if the law allows such a form of payment. Can you please guide us before we respond to this unusual request? If we compensate him with alcohol is this a taxable benefit?
DK, Dodoma

This is indeed very unusual. Section 27(4) of the Employment and Labour Relations Act, Cap.366 [R.E 2019] (the Act) mandates the Minister to make Regulations which allow the employers to pay certain allowances in kind where such form of payment of allowance in kind is customary or desirable depending on the industry in which the employee works or the inherent nature of the employee’s occupation. The employers paying allowances and bonuses in kind must ensure the value attributed to payment in kind is fair and reasonable. Although the law mandates the Minister to make the Regulations allowing payment of allowance in kind, we are not aware if such regulations exist, we think not.

However, you should note that section 27(4) itself expressly disallows payment of allowance or other remunerations in the form of alcohol or noxious drugs. So, though the Regulations that would allow payment of allowances and bonuses in kind are not in place, the Act itself does not allow payment of allowance in the form of alcohol. This means, therefore, that the Minister cannot make the Regulations allowing payment of allowances and bonuses in form of alcohol as doing so will contravene the Act of Parliament. This would be against the principle under which Regulations cannot be inconsistent with the Act of Parliament from which they derive their validity.

Prohibition of payment of allowance in the form of alcohol was meant to protect the drunkard employees’ families. An employee’s remuneration should be beneficial not just to the employee himself but also to their families. Alcohol is excluded from the list of forms of payments in kind which the Minister can authorize by Regulations because alcohol cannot benefit the employee’s family (some might want to argue otherwise!). It is actually an offence under section 27(5) of the Act to pay the employee alcohol in lieu of allowance or bonus he is entitled irrespective of the industry or the nature of his job. Considering that you cannot compensate him with alcohol, the issue of tax does not arise. However, assuming you could pay him with alcohol, corporate income tax at the market value of the alcohol would apply as this would be a benefit to the employee.

Paying fine for killing unintentionally

I am charged with an offence of manslaughter and I am thinking of entering into a plea bargaining with the Prosecutor for me to pay a fine as an alternative sentence instead of serving life imprisonment which I am told is the maximum penalty for the offence of killing unintentionally (manslaughter). However, I doubt if the law permits a person who is charged with manslaughter to pay a fine. Can you advise me before I decide to ask for plea bargaining?
LS, Kibaha

The maximum penalty for the offence of manslaughter as provided for under section 198 of the Penal Code, Cap.16 [R.E. 2022] is life imprisonment. However, section 27(1) of the Penal Code confers criminal Courts with power to impose fines and other forms of non-custodial sentences including community service as an alternative to custodial sentence provided the penalty provided for offence charged is not a statutory minimum sentence.

Moreover, section 194D(6) of the Criminal Procedure Act, Cap.20 [R.E. 2022] requires criminal Courts to sentence the offenders convicted on plea bargaining in accordance with the sentence agreed in the plea bargaining agreement regardless of the penalty provided for under the law creating the offence charged. Although under the law it is not illegal to impose a fine sentence for the offence of manslaughter, we think it is unlikely that the Prosecutor will agree with your proposal for payment of a fine for the offence of manslaughter unless it is a really unfortunate killing. It will depend on how the prosecutor perceives this. We wish you all the best.

Employees demand smoking room in office

Our employees, through their trade union, have formally lodged a claim for a smoking room within the office premises. They claim that the employer is obliged to set aside a smoking room for employees who smoke. We would like to hear from you if an employer has an obligation to set aside a room just for smoking.
CD, Mbeya

Section 13 of the Tobacco Products (Regulation) Act, 2003 and regulation 6 of the Tobacco Products Regulations, 2014 imposes an obligation on the owners or occupiers of office buildings to set aside rooms for smoking. The smoking room should be equipped with a ventilation system which allows smoke to evacuate outside the building and not to recirculate in any other area. The smoking room should not exceed 25% of the total floor area; has to be separated from the rest of the office area by a solid partition; and should have an entrance door with the following words written on it, “SMOKING AREA” and “SEHEMU YA KUVUTIA TUMBAKU”. The height of the smoking room should not be less than 3 meters from the floor level to the lowest part of the ceiling. It should also have fire-fighting equipment.

In addition to setting aside a smoking room, an owner or occupier of a public building has the duty to install in the building, a tobacco product smoke detector gadget and place a warning at the entrance of the building stating that “THIS BUILDING IS INSTALLED WITH A SMOKE DETECTOR and “JENGO HILI LIMEFUNGWA MTAMBO WA KUBAINI MOSHI WA SIGARA.”

Based on the legal analysis we have given, and unfortunate for you, the employees have a right to demand a smoking room within the office building.