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There have been recent developments in Tanzania regarding the qualifications required for a chairperson of a Disciplinary Committee that hears disciplinary charges against an employee accused of misconduct. In a recent decision (Lucy Mandara vs. Tanzania Cigarette Company Limited, Revision Number 185 of 2020), delivered by the Honourable Judge Aboud on April 1st, 2021, the High Court (Labour Division) addressed scenarios where the chairperson of a Disciplinary Committee is outsourced to hear disciplinary charges against an employee.

It is important to note that Guideline 4 (2) of the Guidelines for Disciplinary, Incapacity, and Incompatibility Policy and Procedures of the Employment and Labour Relations (Code of Good Practice) Rules, published under Government Notice Number 42 of 2007, does not cover such a scenario. This means that the guideline does not provide for employers outsourcing a person to chair a Disciplinary Committee. Rather, it only stipulates that a Senior Manager should be appointed as the chairperson of the Disciplinary Committee. There have been recent developments in Tanzania regarding the qualifications required for a chairperson of a Disciplinary Committee that hears disciplinary charges against an employee accused of misconduct. In a recent decision (Lucy Mandara vs. Tanzania Cigarette Company Limited, Revision Number 185 of 2020), delivered by the Honourable Judge Aboud on April 1st, 2021, the High Court (Labour Division) addressed scenarios where the chairperson of a Disciplinary Committee is outsourced to hear disciplinary charges against an employee.

It is important to note that Guideline 4 (2) of the Guidelines for Disciplinary, Incapacity, and Incompatibility Policy and Procedures of the Employment and Labour Relations (Code of Good Practice) Rules, published under Government Notice Number 42 of 2007, does not cover such a scenario. This means that the guideline does not provide for employers outsourcing a person to chair a Disciplinary Committee. Rather, it only stipulates that a Senior Manager should be appointed as the chairperson of the Disciplinary Committee. 

This new decision captures such a circumstance, and what employers should take into consideration when outsourcing for such services.

Brief facts of the case:

An employee was accused of gross insubordination and negligence by their employer. A disciplinary committee was then set up by the employer, which was chaired by their private lawyer. The lawyer provided legal services to the employer on a routine basis. The disciplinary committee terminated the employee's contract of employment, which led to the employee referring the matter to the Commission for Mediation and Arbitration (CMA). The CMA found that the termination was fair, but the employee was not afforded the right of representation during the termination procedure. As a result, the CMA awarded the employee six months' salary and a certificate of service as compensation for the procedurally unfair termination. The employee was unsatisfied with the CMA's award and filed an application to revise the Arbitral Award with the High Court (Labour Division). 

The Court’s decision:

The Court, presided over by Honourable Aboud, J., has stated that during a disciplinary hearing of an employee accused of misconduct, the Chairperson of the disciplinary committee should be a Senior Manager or Management Staff of the employer, as per the Guidelines 4 (2) of the Guidelines. However, if there are no Senior Managers qualified to chair the Disciplinary Committee, the law allows employers to outsource a competent person to act as a chairperson, provided that the elected person is impartial, completely neutral, and not on the payroll of the employer.

Furthermore, the Honourable Judge clarified that a private advocate who is engaged by an employer to provide legal services and is on the payroll of the employer does not qualify to act as a chairperson for the Disciplinary Committee, regardless of whether he or she is employed by the employer. The Honourable Judge explained that “in my view, the law envisaged the situation where the employer does not have the required senior manager, for instance, when it is a small company with no enough senior managers to handle the matter, or for any other reasons. In such cases, the employer can find someone from outside that particular office who possesses the required qualities to chair the committee.”

Conclusion:

Although the law does not provide specific guidelines for outsourcing a chairperson of a Disciplinary Committee, it still allows employers to outsource in certain situations. For example, when the company lacks adequate senior management in cases of small or start-up companies or when the senior managers available are uncertain about their impartiality. However, when the employer decides to outsource, they should ensure that the person chosen to chair the Disciplinary Committee is completely impartial, and neutral and is not on their payroll. It is crucial to select an impartial person to ensure fair and just decisions.

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