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Granting of leave to employee has always been a contentious issue involving employees and employers. In many cases employees regard leave as their right and they should be given when they apply for it.
On the other hand, employers are of the opinion that although employees deserve to be granted leave, employers have the right to determine when and how should the leave be granted
About a year ago, I was involved in trying to find an amicable solution for a leave issue that was brought to my attention by one of my clients. Given below is the issue that was brought to me by my client for a piece of advice
Mr. Joseph Massawe, a proud owner of Mawenzi Tours Ltd, a car rental and tour operating Company called me in his office to discuss an important issue.
At that particular time, I was engaged by Mawenzi Tours Ltd to implement a system development assignment.
So, I imagined that Mr. Massawe wanted to ask me something about the assignment I was doing
To my surprise, the CEO of the Mawenzi Tours Ltd asked me a question which was not related to the assignment I was doing!
The CEO started narrating his story as follows. ‘Bwana Consultant, sorry for disturbing you because I know you are very busy. I need your advice’
I just smiled and told him, ‘No disturbance at all. I am keen to know what the problem is’
The CEO started narrating a story of Juma Msangi, the driver of Mawenzi Tours Ltd who had been working with the Company for the past five years.
‘ You see Bwana Consultant, this driver started working in this Company as an Office Attendant and I promoted him to the position of a driver, but now he wants to stub me with knife on my back’
He said, with his voice trembling.
The previous week, Juma Msangi, applied for an unpaid leave to take care of his seriously ill father. The CEO of Mawenzi Tours Ltd refused to grant Juma Msangi the unpaid leave. The CEO didn’t give any reason for his refusal to grant Juma, the unpaid leave
At the time Juma Msangi applied for the unpaid leave, he had worked more than 8 months out of 12 months of his leave cycle without taking a leave
A brief profile of Mawenzi Company Ltd, which was owned by Mr. Joseph Massawe is as follows:
Mr. Joseph Massawe established Mawenzi Tours Ltd, a car rental and tour operating Company in 2006. From a humble beginning, the Company has grown into a formidable firm.
The Company started as a car rental firm and shortly thereafter, Mr. Massawe established a tour operations business. Currently, the Company operates in three regions in Tanzania with the Head office located in Dar es Salaam and branches in Mwanza and Mbeya regions
The Company owns a fleet of over 100 vehicles, comprising economic, executive and luxurious vehicles to suit customers’ needs.
Among the vehicles the Company owns are RAV 4, Toyota Land Cruiser VX, Land Cruiser Prado, saloon cars and Mini Buses.
Mawenzi Tours Ltd has a total of 54 employees including managers and subordinate staff
CONSEQUENCE
After the CEO refusal to grant Juma Msangi the unpaid leave, the driver discussed the issue with his family and friends and he decided to report the matter to the Department of Labour.
THE QUIZ
Can you guess what kind of advice did I give Mr. Joseph Massawe, the CEO of Mawenzi Company Ltd?
FACTS ABOUT STAFF LEAVE
To enable you give a correct answer regarding the quiz, I have decided to give you some facts regarding the conditions for granting leave to employees as follows:
It is known to many workers in Tanzania that every employee should be granted an annual leave in every year, but most of them do not understand how many days and under what circumstances can an annual leave be granted
What is annual leave? How do you become eligible for it?
Annual leave is covered under Sub Part D of Part III of the Tanzanian Employment and Labour Relations Act, No. 6 of 2004.
An annual leave is a time off work granted to you by your employer in which you receive your full monthly salary.
You may become eligible for an annual leave if you have completed a period of 12 months service with your employer.
The annual leave matures six months from commencement of employment and it can also be taken on a pro rata basis.
The duration of annual leave is 28 days and it is inclusive of the weekly rest period and all public holidays falling therein.
Is this leave compulsory or can it be accumulated?
Generally, it is in the spirit of the law that you may take your annual leave during a leave cycle.
However, under the law, you can apply for a leave and it is a mandate of your employer to determine the time when the leave is to be taken.
Your employer has the mandate to carry the leave forward, but it should not be later than six months after the end of a leave cycle, or twelve months after the end of the leave cycle, if the employee has consented and the extension is justified by operational requirements.
In the event of termination or resignation, if you have some outstanding/accrued leave days, your employer is liable to pay you the leave amount.
At what rate is annual leave paid? Do you get a full pay?
Yes, you get your full wages. In fact, the law requires your employer to pay your remuneration before the commencement of your leave. On top of your ordinary remuneration, the Regulation of Wages and Terms of Employment, Order, 2010 requires you to be paid Leave Travel Assistance and the same is payable once in two years.
The purpose of this is to assist you in providing you with transport during your leave. The law does not stipulate an amount which should be paid.
The employer and employee should negotiate the Leave Travel Assistance amount and either put it into a Collective Bargaining Agreement, Human Resource manual or employment contract.
Can your employer pay you an amount of money in substitution for your annual leave?
The law prohibits payment in substitution of leave whether you as an employee agree or not. The leave days are meant to provide you time off to relax, so that you can come back to work with a fresh mind and full of energy.
Annual leave becomes payable only upon termination/resignation or expiration of a contract and when you have accrued a number of leave days.
Neither is your employer allowed to call you to work during the period of annual leave.
In the case of an emergency and you need paid time off, will you still be entitled to your annual leave?
Yes. If you have taken some paid days off during the leave cycle you would still be entitled to annual leave but minus the number of days during the leave cycle which were granted to you at your request.
LEAVE TYPES
According to the Tanzanian Employment and Labour Relations Act of 2004 and Public Service Act the following are the types of leave that can be granted to employees:
· Annual leave,
· Sick leave,
· Maternity leave,
· Paternity leave,
· Leave without payment,
· Sabbatical leave
· Leave pending retirement.
The Annual Leave
This is the type of leave which every employer is compelled to grant to employees at least 28 consecutive days. Such leave should be inclusive of public holidays that may fall within the period of leave.
The number of leave days may be reduced during a given leave cycle at the request of an employee. Also the law gives power to the employer to determine when annual leave is to be taken.
The law compels the employer to pay an employee an amount that would have been paid; had the employee worked during the period of leave and the said payment should be paid before the commencement of the leave.
The Sick leave
An employee is entitled to a sick leave of at least 126 days in any leave cycle. The first 63 days are paid full wages and for the subsequent 63 days the employer is entitled to be paid half wages.
But for public servant, sick leave shall be granted on condition that it does not exceed six months on full payment and six months on half pay in any sick leave period.
Employers are not obliged to pay sick leave, if such employee fails to produce a medical certificate.
Medical certificate according to the law means certificate issued by registered medical practitioner or any other medical practitioner accepted by the employer.
Maternity leave
A pregnant employee is entitled to at least 84 days paid maternity leave or 100 days if the employee has given birth to more than one child at the same time.
If the child died within a year the employee is entitled to an additional 84 days paid maternity leave within the leave cycle.
Employers are obliged to grant four terms only of maternity leave to employees. The law obliges an employee who intends to take maternity leave to give notice to the employer to that effect.
The notice must be given three months before the expected date of birth and it should be supported by medical certificate.
An employee may commence maternity leave at any time from four weeks before the expected date of confinement or an earlier date, if medical practitioner certifies that it is necessary for employee’s health or that of unborn child.
Maternity leave cannot cancel out your annual leave even if both of them are taken within one year. This is because annual leave and maternity leave both serve a different purpose. Section 31 (5) provides that an employer shall not require or permit an employee to take annual leave in place of any leave to which the employee is entitled.
Paternity leave
The law gives paternity leave to the father of the child. An employee is entitled to at least three days paternity leave, if the leave is taken within seven days of the birth of a child and employee is father of the child.
On the other hand, an employee is entitled to at least four days paid leave for the sickness or death of the child or the death of the employee’s spouse, parent, grandparent, grandchild or sibling.
In any event, the employer may require reasonable proof from the employee. It should be kept in mind that the three days paternity leave to which the employee is entitled is the total number of days, irrespective of the number of children born within leave cycle.
Leave without Pay
An employee may be granted leave without pay provided that the employer is satisfied that it is in the organization’s interest to do so. The grant of the leave should be in according to the regulations, taking into consideration the organization’s policies.
Sabbatical Leave
Sabbatical leave, an employee may be eligible for the grant of sabbatical leave where necessary to broaden his experience or to increase his potential value to the service.
This type of leave is not a right as one must apply for.
Leave Pending Retirement
Leave pending retirement, a public servant should be granted a leave pending retirement.
The requirement is that this leave should be taken before the date of his retirement. This type of leave is a right and the employer has no discretion not granting it.
Lastly, it should be noted that the employee with less than six months in services is not entitled to paid leave under the law.
But an employee with less than six months service and who has worked in a year for the same employer is entitled to paid leave if the total period worked for that employer exceeds six months in the year.
ajmwambola@tanbusiness.co.tz
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