Contract of Service and Contract for Service in Tanzania

In any dispute either of interest, right, or tortuous (vicarious) liability it is important to define what a contract of service is, since it is from that relation where a person working for another qualify as employee as distinguished from an independent contractor; and his or her purported master as an employer thus creating a contract of service (employment) between the two, hence be able to enforce rights and obligation accruing under such relation.

 I accordingly agree and substantiate to the view that The

Emloyment and labour relation Act, 2004 (hereinafter referred to as ELRA) unlike its predecessor [i.e The Employment Act, Cap 336] does not elucidate what a contract of service is as opposed to the contract for service thus, render it cumbersome to draw a demarcation between the two ultimately creating a misnomer on how to proceed in determining the rights and duties of the parties thereto.

  Under The employment Act, Cap 336 the term contract of service is defined to mean interlia 'any contract whether in writing or oral, whether express or implied to employ or to service as an employee for any period of time or number of days to be worked, or to execute any task or piece of work or any journey….' . 

In essence, The employment Act does not help much in contemporary labour disputes since it is repealed, save for transitional disputes which rose before December, 2006.

  Some case laws and legal texts have strived to throw some light on the concept as exemplified by Keith Abbott, et al. who argues that it is a relation of employer and employee; the view which concur with those of the learned author Dr. Mtaki.

The focal issue for determination is how the employee in Tanzania will establish the contract of service, thus the discuss hereinafter dwells in extenso on the legal pigeon holes availed to the alleged employee to establish a contract of service as follows;

Critically speaking, the employee may establish the existence of a contract of service under the purview of section 61(1) of Labour Institution Act, 2004 [hereinafter referred to as LIA], which in essence codifies some of the common law tests of determining contract of service as follows;

 First, the control test; the alleged employee need to prove that the manner in which he or she performed his or her work and time was subject to the control and direction of the purported employer thus, he or she worked under a contract of service.

Second, the organization (integration) test; here the alleged employee must establish that the work he or she did was an integral part of the business of the purported employer. This test is vital where the employee's work is not subject to direct control of the employer, for instance professional employees like Doctors et cetera.

Third, the Multiple (economic reality) test; under this test a number of factors are taken into account such as payment of remuneration by way of wages or salary, prohibition on working for competitors, supply of uniform and equipments, lack of personal business risk on the part of the worker, work is done at the employer's, also it may be contended by the alleged employee that he or she is economically dependant on the purported employer.

Fourth, the mutuality of obligation test; the alleged employee should establish to the satisfaction of the court that there existed a legal obligation on both parties to provide work and to do work respectively. Furthermore, the worker may establish that he or she worked for the purported employer only.

Finally, the 280 days rule; under common law and the transitional employment law a worker once established that he or she had worked for a person for 280 days annually qualified as employee thus the contract of service exist between the two. In LIA the alleged employee is required to prove only that he or she worked for the presumed employer for 45 hours per month over the last 3 months thus at the expiration of the said time one may be deemed as an employee. 

Conclusively, though section 61 lays down a rebuttable presumption as to the existence of employer-employee relationship somehow it throws some light on how to proceed further thus, together with decided cases especially under common law which lay down various tests as afore examined make it desirable and attemptable for employee in Tanzania to establish the existence of a contract of service.