ATE LABOUR RELATIONS UPDATE
September 2020 |
 Volume 12
Termination due to incapacity by reason of underperformance
Qn: What is termination by reason of
incapacity?
Ans: In order for there to be a fair
termination, there ought to be a fair
reason for terminating. One of these
reasons is capacity. An employee may be
incapacitated to work because of ill health,
injury or generally poor work performance
causing the employer to terminate his/her
employment.
Qn: What is the criteria for terminating
due to underperformance?
Ans: In order for termination for poor
performance to be fair the criteria to judge
the fairness of reason shall consist of:
• whether the employee failed to meet a
set standard
• whether the employee was aware of the
standard
• why the employee failed to meet the
standard
• whether the employee was given an
opportunity to meet the standard (Rule
17 (1) of the Code of Good Practice,
GN 42 of 2007)
Qn. What should an employer do before
terminating an employee on reason of
underperformance?
Ans: The employer needs to give the
employee guidance, instructions and
training and give him/her time to improve.
If this underperformance continues, then
the employer has to warn the employee that
termination is imminent.
Every Good Employer is a Member of the Association of Tanzania Employers
However, if the employee is a senior
employee or manager or has a high degree
of professional skill, the opportunity to
improve may be dispensed with. (Rule
17(3), (4) and (5) of the Code of Good
Practice, GN 42 of 2007)
Qn: What is the procedure
for termination based on
underperformance?
Ans: employer has to call a meeting with the
employee in order to terminate on reasons
of underperformance. In this meeting; the
employee can be represented by another
employee or trade union representative; the
reasons for termination have to outlined
and the employee/representative need to
give their remarks; the employer considers
these representations and then a decision is
given with reasons and in writing. (Rule 17
(6), (7), (8) and (9) of the Code of Good
Practice, GN 42 of 2007).
What are the terminal benefits
that a person terminated due to
underperformance entitled to?
Apart from any other contractual benefit
listed; the employer is to pay the employee:
1. Notice
2. Any leave accrued to the date of
termination
3. Salary up to the last day worked
4. Repatriation to the place of recruitment
5. Severance pay (unless the employee
has unreasonably refused to accept
alternative work)