Remuneration in lieu of paternity leave
I had extra marital affairs with a woman with whom three years ago I had a child born out of wedlock. I did not apply for paternity leave on the date of birth of the child because I feared the information would leak to my wife and to my pastor. Unfortunately, the news reached both my wife and the pastor. My employer has issued to some of the employees, with me inclusive, a notice of intention to retrench us for the operational needs of the Company. Now that I have nothing to hide or lose, can I claim the payment of remuneration in lieu of paternity leave I did not take three years ago as part of my terminal dues? Is there a timeframe for claiming paternity leave or payment in lieu of paternity leave? Was I entitled to a paternity leave for a child born out of the wedlock? Please advise.
Please note that section 34 of the Employment and Labour Relations Act, Cap. 366 [R.E. 2019] (the Act) which provides for the right to paternity leave does discriminate against children born out of wedlock. Under the Act, a male employee is entitled to a paid paternity leave for his child born out of the wedlock just like he has for the children born within the wedlock. However, unlike annual leave, the right to paternity leave has to be exercised within 7 days of the birth of the child and, if not enjoyed within 7 days, it is deemed to have been forfeited. Where a male employee gets more than one child within 3 years be it within or outside the wedlock, he is entitled to a paid paternity leave only once for those 3 years. The only leave that can be converted into monetary value and paid in lieu as a terminal due under section 44 of the Act is the annual leave.
Effect of abusive language conviction
I was convicted of abusive language which I admitted to have committed while under the influence of alcohol. After conviction, the Court gave me conditional discharge not to commit another offence within a period of twelve months. I was also ordered to pay the complainant a sum of TZS 200,000 which I have already paid. I would like to know the legal effect of the conviction of abusive language and the Court’s order of conditional discharge not to commit another offence within a period of six months. If I am convicted of a traffic offence before the expiry of the twelve months period of conditional discharge order, will I be sentenced for the offence of abusive language because I have breached the condition of Court’s order not to commit another offence within twelve months? If there is a job vacancy which requires the applicant not to have a conviction record, will I qualify to apply for that job. If I want to travel to a country where a visa issuance condition is that the applicant should not have a conviction record, will I qualify to get a visa to enter that country? And is this conviction and conditional discharge order a bar for me to apply for a political position like councilor’s seat?
Section 5 of the Penal Code, Cap.16 [R.E 2022] (Penal Code) defines offence as an act, attempt or omission which is punishable by law. Traffic offences are punishable under the Road Traffic Act, so they are offences in terms of section 5 of the Penal Code. Based on that definition of the term ‘offence’, a person who is convicted of abusive language and given a conditional discharge for 12 months but is convicted of a traffic offence he committed during the period of conditional discharge order is taken to have breached the conditions of the discharge order. In view of section 38 of the Penal Code, commission of another offence before the expiry of the period of the conditional discharge vitiates the discharge order and, if proved to the satisfaction of the convicting Court that the offender committed another offence while under conditional discharge order, the Court may set aside its conditional discharge order and proceed to pass a sentence it deems appropriate on the offender.
Notwithstanding the above, it is clearly provided under section 38B of the Penal Code that a conviction of an offence followed by absolute or conditional discharge is not a conviction record which bars the offender from exercising any right or applying for anything with disqualification for those with a conviction record. Therefore, conviction for abusive language punishable by conditional discharge not to commit an offence within a period of 12 months is not a conviction which will bar you from applying for a visa to enter any country which restricts entry for visitors with conviction records. Conviction with conditional discharge is also not a bar for you to apply for a job vacancy or contest for political position in Tanzania. However, if you commit any offence including a traffic offence and the Court sets aside the conditional discharge order for committing another offence during the pendency of the conditional discharge order and the Court substitutes the discharge order for any sentence, you will be taken to have a conviction record from the date the conditional discharge order is substituted with another sentence.
After the substitution of the conditional discharge with another offence, you may be disqualified from entering countries that restrict entry for visitors with conviction records. You may also be disqualified from getting a job if a conviction record is a disqualification for the job you are applying for. An order of the Court setting aside the conditional discharge order and substituting it with another sentence is appealable. When you have a conditional discharge order, you need to take it seriously and observe the terms and conditions of the order to avoid adverse consequences of the breach of the order.