Open University Law Journal, 2013, Vol. 4, No.

2:51-72

The evolution and the changing face in contract of

employment in Tanzania
Ferdinand M. Temba
Abstract
This article explores the evolution of contract of employment in Tanzania. It
starts by examining the contract of employment and its evolution in Britain
since our legal system and labour legislation owes their origin from the
common law. The article envisages that the concept of contract of
employment is linked with the common law contract of employment, and that
its essential features have been shaped by legislation. It argues that overtime
the nature of contract of employment has changed as the result of the
changing nature of the global economy causing cross-cutting challenges
hindering effective protection of workers rights by the contract of
employment including ever-changing patterns of engagement threatening the
employment contract and efficacy of labour laws; the economic informality
which has resulted to informalization, externalization and casualisation; and
the changing dimension of employee-employer relationship which creates
new opportunities and new types of vulnerabilities as well. However,
presumption of employee as introduced in the Labour Institutions Act, 2004
has assisted in determining the scope of the workers regulated under the
contract of employment. Thus, this article supports endeavours by the
country of borrowing and bending labour law principles from other
jurisdictions in improving its labour regime and lay the groundwork for
context-specific regulatory strategies given the non-existence of a one-sizefits-all labour regime.
Key words: Contract of employment, evolution in labour laws, common
law
Introduction
The article explores the evolution of contract of employment in Tanzania. Reflecting
common law principles, the article posits that the contract of employment in
Tanzania like in many other jurisdictions has undergone many changes which
ultimately led to the problem of ascertaining the parties. Having traced the evolution
of the contract of employment the article seeks to examine the notion of the meaning
of employee from both the perspective and context of the current constitutional

Assistant Lecturer, Faculty of Law, Mzumbe University. E-Mail: ferdinandt3@gmail.com

51

F.M.Temba

dispensation, labour laws1 in the system of governance in Tanzania. 2 Arguably, the

article sees it important to determine the meaning of employee since it is the starting
point of contract of employment. Only employees enjoy the protection of labour
legislation and further examine the legitimacy in terms of bringing disputes before
labour tribunals for recourse which rests on holding up the regulation of labour
market to primarily curb unnecessary flow of moot disputes in our labour disputes
resolutions forums.
Further, the article acknowledges that in the evolution and development of the
contract of employment in Tanzania changes have occurred especially after the
introduction to our labour laws the provisions which are similar to the South African
Labour laws3 and others which maintains the traditional employment relationship
which based on the common law contract of employment.
The article starts by providing the evolution of the contract of employment. It also,
explores legislative development in Tanzania describing the role played by the
Germans and British in shaping Tanzanias contract of employment. It further
describes the changing face of contract of employment in Tanzania which resulted
from the global economic changes which among others have extended the scope of
employment relationship leaving many workers outside the scope of the protection of
labour laws. Concluding remarks winds up this paper.
The evolution of the contract of employment
In tracing the origin of contract of employment in Tanzania one may not avoid to
discuss its evolution in Britain since our employment relationship is based on
common law contract of service. Different authors have given their views in as far as
the evolution of employment contract in Western Europe, Britain inclusive.
Veneziani, for instance, maintained that the contract of employment had reached

The Employment and Labour Relations Act 6 of 2004 (ELRA), The Labour Institutions Act, No 7
of 2004 and the subsidiary legislation made under these two principal legislation.
2
In this article, unless otherwise stated, the term Tanzania excludes Zanzibar. Tanzania is
intended here to be restricted to Tanzania Mainland (the former Tanganyika), because in both parts
of the union that is to say Mainland Tanzania and Tanzania Island (Zanzibar) there are two
ministries responsible for labour matters and this paper is restricted to Mainland Tanzania.
3
The South African employment relationship has evolved out of the common law principles of the
contract of service and Roman-Dutch dichotomy between the locatio conductio operarum i.e. the
contract of letting and hiring of services between master and servant; and the locatio conductio
operis i.e. the contract of letting and hiring of some definite piece of work between the principal
and a contractor. (For detailed discussion on the evolution of contract of employment in South
Africa particularly on locatio conductio operarum and locatio conductio operis see Le Roux, R.,
The evolution of the contract of employment in South Africa, Industrial Law Journal, June 2010,
Vol. 39, No. 2, pp. 149 -150.

52

Evolution of contract of employment

maturity throughout Western Europe, by the beginning of the twentieth century.4 To

the contrary the views of Simon Deakin on the evolution of the contract of
employment in Britain, has recently suggested that the contract of employment as a
concept embracing all forms of wage dependent labour or as a unitary concept of
employment only reached maturity towards the middle of the twentieth century,
mostly as a result of social welfare legislation.5
Nevertheless, prior to the maturity of contract of employment in the mid of 20th
century as accepted by many labour law proponents, the first labour statutes, passed
by way of response to the labour shortage which followed the Black Death of 1346,
was the Statute of Labourers of 1351. The Statute did not just formalize the system of
wage regulation: it also helped to seed legal innovations which led to the promissory
action of assumpsit, the forerunner of modern contract law.6 The sixteenth century
saw, alongside the diminution in the role of the Church as an institution of social
protection, the extension of state control over labour, through the passage of
numerous poor law statutes and of the pivotal Statute of Artificers of 1562, which
was to provide the legislative foundation for wage setting, service in agriculture and
the activities of the urban guilds up to the early nineteenth century.7 The industrial
revolution in 1750 brought about the uncertainty in the application of the Statute of
Artificers of 1562 to industrial workers hence the enactment of several master and
servant laws between 1747 and 1867.8 The first of these so-called Master and Servant
Acts was enacted in 1747 on the basis that the existing laws for the regulation of
servants and the payment of their wages are insufficient and defective.9 While the
master and servant relationship under these laws was formally founded in contract,
its substance suggested very little mutuality. Criminal law was used to enforce
contracts and breaches of contract by servants were adjudicated by magistrates and
could result in imprisonment, fines or even whipping. Similar recourse, however,
was not available to servants.10
4

Le Roux, R., The regulation of work: whither the contract of employment?: an analysis of the
suitability of the contract of employment to regulate the different forms of labour market
participation by individual workers, PhD Thesis, University of Cape Town, June 2008, p. 12
5
Ibid
6
Deakin, S., The comparative evolution of the employment relationship, Centre for Business
Research, University of Cambridge, Working Paper No. 317, December 2005 p. 3; Deakin, S., The
Comparative Evolution of the Employment Relationship, in Guy Davidov and Brian Langille (eds)
Boundaries and Frontiers of Labour Law: Goals and Means in the Regulation of Work, Hart
Publishing, Portland, 2006, p.93
7
Ibid.
8
Le Roux, (n4), p. 12.
9
Deakin, S., The Contract of Employment: A Study in Legal Evolution, ESRC Centre for
Business Research, University of Cambridge Working Paper No. 20, June 2001 p. 19
10
Le Roux, (n4), citing Steinmetz, W., Was there a Dejuridification of Individual Employment
Relations in Britain? in Steinmetz, W (ed) Private Law and Social Inequality in the Industrial Age
2000 265-312 pp. 269-282.)

53

F.M.Temba

The early workmen legislations11 limited the definition of a workman to those

working under a contract of service or apprenticeship but did not apply to nonmanual workers earning above a certain threshold, casual workers, outworkers and
family workers.12 Similarly the National Insurance Act 1911 applied to employed
persons employed under a contract of service or apprenticeship, but once again
excluded non-manual workers earning above a certain threshold, casual workers,
commission agents, some public servants such as civil servants, military personnel
and teachers as well as some female outworkers.13 Therefore, early legislative
schemes excluded higher status and lower status workers from protection of the
contract of service. The legislative exclusion of some workers from the protection of
contract of service led to the development of the control test by the courts in the
twentieth century. This was evident in the case of Gould v. Minister of National
Insurance And Another,14 in which the principles laid down in determining the
control of the employer to the employee were stated reference been made from the
case of Short v. Henderson a case in which the House of Lords under the Workmans
Compensation Act, (Lord Thankerton) at 115 recapitulated with approval the four
indicators of the contract of service i.e. the masters power of selection of his servant;
the payment of wages and other remuneration; the masters right to control the
method of doing the work; and the masters right of suspension or dismissal.15
Kahn-Freund suggested that the control test developed in the context of the common
law principle of the employers vicarious liability for torts of a servant acting in the
course of employment.16 However, the control test, while used during the nineteenth
century, was not as important as the concept of exclusive service to determine the
application of the Master and Servants law and initially it was not even used in the
context of employment disputes.17 In support of this Deakin observed that;
However, the nineteenth-century authorities cited for control were not concerned
with the issue of tortious liability. One of the most widely cited cases, Yewens v.
Noakes, concerned the definition of a live-in servant under tax legislation. Nor did
this case turn on the distinction between employees and the self-employed, or
even between servants and independent contractors. Central to the decision was
the refusal of the court to believe that a salaried clerk earning a substantial salary

11

These included the Employers Liability Act 1880, the Workmens Compensation Act 1897 and
the Workmens Compensation Act 1906.
12
Le Roux, (n4), p.17
13
Ibid pp 17-18
14
(1951) ALL E.R 368 at 371
15
See also Walker v. Crystal Palace (1910) 1 KB 87; Yewens v. Noakes (1880) 6QD 530 at p 532
and Lane v. Shire Roofing Company (1995) IRLR 493 at 495.
16
Deakin, (n9), p. 30 citing Kahn-Freund, O. the personal scope of English labour law, servant, employee, - workman Rivista di Diritto del Lavoro: 1966 508- 524 pp. 512-513.
17
Le Roux (n4), p. 18

54

Evolution of contract of employment

could be a servant, since, according to the court, such a person was more clearly
akin to the manager of a bank, a foreman with high wages, persons in the position
almost of gentlemen.18
In the case of Walker v. Crystal Palace;19 a professional footballer was held to have a
contract of service with the club. He was paid 3.50 pounds per week for a year
contract, in which he was supposed to provide his playing services exclusively to
Crystal Palace Football Club. He was given detailed rules about training and under
whose direction he was during training. He was also expected to be available for
training and matches. The club argued that he did not have a contract of service
because, it asserted, it was essential that in such a relationship the master should have
the power to direct how work should be done. The case of Yewens v. Noakes20 was
cited where Bramwell J had defined a servant as a person subject to the command of
his master as to the manner in which he shall do his work. It was argued that this
definition should not be applicable to a professional footballer who was hired to
display their talents and skills. The control of the club is limited to deciding whether
the player is picked for the team or not.
Farewells J dismissed the argument on the basis that many workmen display their
own initiative, like footballer, but were still bound by the directions of their master.
In this case the player had agreed to follow detailed training instructions and to obey
his captains instructions on the field. He observed; I cannot doubt that he is bound
to obey any directions which the captain, as the delegate of the club, may give him
during the course of the game that is to say, any directions that is within the terms
of his employment as a football player.
Apart from the control test, it was found that there are situations where it was
difficult to establish control by the employer hence the development of
integration/organisation test as was in the case of Stevenson Jordans and Harrison
Ltd v. Macdonald And Evans,21 where Lord Justice Denning when distinguishing
contract of services and contract for service stated that in the contract of service a
man is employed as part of the business and his work is done as an integral part of
the business. The test of the workers integration into an organisation was used to
explain how professionals such as doctors and journalists could be classified as
employees notwithstanding the high degree of autonomy they enjoyed in their
work.22 The more a person is integrated into the organizational structure the more
likely to an employee and the less the integration the more likely the individual to be
18

Deakin, (n9), p. 29
(1910) 1 KB 87
20
(1880) 6QD 530 p 532
21
[1952] 1 TLR 101
22
Deakin, (n9), p. 32 citing Cassidy v. Minister of Health [1951] 2 KB 343; Roe v. Minister of
Health [1954] 2 QB 66; Beloff v. Pressdram Ltd. [1973]] 2 All ER 241.
19

55

F.M.Temba

self employed23. The Decision by Denning above was approved by Lord Widgery CJ
in Beloff v.Pressdram Ltd,24 where he stated:
The test which emerges from the authorities seems to me, as Denning LJ said,
whether on the one hand the employee is employed as part of the business and his
work is an integral part of the business, or whether his work is not integrated into the
business but is only accessory to it, or as Cooke J expressed it, the work is done by
him in business on his own account.
It is difficult to understand where the dividing line may be: for example, what of the
dependent contractor? If a person is self-employed, but works continuously for one
organization, are they to be treated as integrated into the organization or not? Much
work is now the subject of outsourcing. To what extent, for example, is the catering
assistant who works for an outsourced company to be treated as an integrated part of
organization in which he or she is located?25
The integration test seemed to be an attempt to cope with the difficulties posed by the
growth of technical and skilled work which may not be the subject of close control
by an employer. Although it may be used as an indicator of a person under a contract
of service, it cannot be conclusive. Indeed the problem of this test and the control test
is that they do not sufficiently distinguish between the employed and the selfemployed. It is arguable that it is possible for workers without a contract of
employment to be closely integrated into an organization and closely controlled by
that organization. To some extent this has been recognized by the Court of Appeal in
Franks v. Reuters Ltd.26 In this case it was held that a person who had worked for
Reuters on a full-time permanent basis for more than four years on an assignment
from an employment agency could be an employee of Reuters. It is consistent with
general legal principles that dealings between parties over a period of years are
capable of generating an implied contractual relationship.27
There were situations when courts were faced with cases in which they failed to
apply either of the two tests to solve them. This led to the formulation of multiple
test. The test is the combination of the control test and organisational test. Lord
Wright in Young v. Montreal Locomotive Works28 stated that in many cases the
question can only be settled by examining the whole of the various elements which
constitute the relationship between the parties. It looks on the surrounding features
23

Sargeant, M., and Lewis, D., Employment Law, 4th edn, Pearson Education Limited, Essex,
2008, p. 43
24
[1973] 1 All ER 241
25
Sergeant and Lewis, (n23), p. 43
26
[2003]1 RLR 423
27
Sergeant and Lewis, (n23), p. 44
28
[1974] 1 DLR 161 p.169

56

Evolution of contract of employment

of the relationship between the parties including; the power of selection of employee
by the employer; the payment of wages by the employer; national insurance stamps;
income tax; holiday monies and pensions; and the power to suspend and dismiss.29 In
the case of Ready Mixed Concrete v. Minister for Pensions and Insurance30 a
contract between the plaintiff company and a lorry driver stated that the lorry driver
was self-employed. He owned, insured and maintained his own lorry, but the
plaintiffs had helped finance its purchase. He wore a uniform, and the lorry was
painted with the companys colours. He could delegate the driving and was paid per
mile driven. The issue arose as to whether he was an employee and whether the
plaintiffs should have been making pension contributions for him to the defendants.
McKenna J stated that three conditions had to be fulfilled to establish a contract of
service: firstly, there must be an obligation of the person to provide his own skill and
work in return for a wage or other remuneration, secondly, there must be a sufficient
degree of control by the employer, and lastly, the other provisions of the contract
must not be inconsistent with its being a contract of service. The court found that the
economic reality of the situation should also be considered when coming to a
decision. Having regard to all of the factors, the court concluded that the lorry driver
was an independent contractor.
In Kirwan v. Dart Industries and Leahy (1980), the Employment Appeals Tribunal
applied the multiple test and set out a number of criteria to consider including; the
extent of control over the task, the manner in which it is carried out, the means used
to carry it out and where it is to be carried out; whether the person was in business of
his own account or whether he was an integral part of the business; whether the
person was required to provide personal service or whether he could delegate the job
and finally whether the person was free to work for other employers.
The factors to be considered to establish the existence of the contract of employment
as developed by common law courts are also evident in the development of contract
of employment in Tanzania. Addressing the issue under the old labour laws the High
Court in the case of Director of Public Prosecution v. Eliatosha Moshi &
Another31had an opportunity to consider the factors for determination of contract of
employment as stated in the English cases. In ascertaining whether there was the
contract of employment between parties to the dispute before the court Mushi J
stated:
The agreement between the complainant and the respondents did not amount to a
contract of service between employer and employee. There was certainly an
agreement between the complainant and the respondent. What sort of an agreement
29

Sikalumba A.J., Legal Aspects of Employment Contracts and Dispute Settlement Schemes in
Tanzania Research and Publication Department, Mzumbe, 2003 p. 4
30
(1968) 2 QB 497
31
[1983] TLR 146 at 151, See also Director of Public Prosecutions v. Eliatosha Mosha and another
(1984) TLR 28 (CA) which upheld the decision of the High Court.

57

F.M.Temba

was it? Was it an agreement for the complainant to render service on one part and the
respondents to pay specific amount on the other part? The complainant told the court
that the respondent employed him at an agreed monthly wage. The trial magistrate
found this allegation to be false but found that he was paid commission of Shs. 20/=
per each Shs. 100/= earned. How was the work being done? There was evidence
which was believed by the court to the effect that the complainant was given the taxi
which he kept at his home. The way I understand this is that the respondents gave the
taxi to the complainant to go and use it and whatever income he gets by carrying
passengers on hire he should deduct Shs. 20/= for each Shs. 100/=. Put it in a
different way one can say that the complainant was hiring the vehicle from the
respondents for use at Shs. 80/= per each Shs. 100/= he gets. How the complainant
was to do the work was to be decided by himself. If the complainant did not work
and thus earned nothing, he could not go to the respondents and say - look, you
fellow I have done my work can I have my wage or salary? To the contrary if the
complainant did not remit anything for a day, the respondents could ask - Look you
fellow what is happening? Are you not using the taxi? If you do not want money you
had better give it back to me and I shall give it to someone else. The complainant was
working independently and was, I think, using the vehicle as if it was his own. Under
these circumstances, the complainant could not be said to have been a workman for
the respondents and he was not in contract of service with the respondents but he was
on an agreement for hire and used the taxi of the respondents and sharing the
proceeds on 80/20 per cent basis.
In another case of Janeth Febbs v. TBC,32 the court found that the applicant was not
the employee as she was never recruited and/or employed nor there was any contract
of employment entered between the parties. As on the presumption to an employee as
per section 61 of the LIA the court found that there was no evidence to show that she
was working under direct control of the respondent or part of the organisation. the
court went on to state that to qualify under that section, the applicant ought to have
showed things like terms of work, attendance register, monthly salary, schedule of
work etc. The applicant used her own equipment of work i.e. the camera she used
was hers thus she could not be presumed as an employee as per section 61 of the
LIA.
The legislative development in contract of employment in Tanzania
The evolution of contract of employment in Tanganyika cannot be traced beyond the
colonization of the territory by the Germans since the lack of documentary sources
has proved to be a significant barrier. However, a note has to be taken that, prior to
colonization means of labour production and control ranged from chattel slavery to
pawnship, corvees, various kinds of patronclient relations, bride service, cooperative
32

Labour Revision No 287 of 2008 High Court of Tanzania Labour Division Dar es Salaam,
(Unreported).

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Evolution of contract of employment

labour, and also, in more and more contexts over time, wage labour.'33 Slavery, of
course, has received the attention of many scholars, as have some of the other
categories.34
On the basis of the background information provided above, after colonization of
Tanganyika, State through legislation created a framework for recruitment of
labour.35 The Germans begun by creating Wage Labour and enacted the House and
Poll Tax Ordinance 1912. What is apparent from a careful following the position of
colonialists in Tanganyika was that, taxes were used as a means of forcing Africans
to enter into wage labour. After the Germany rule in Tanganyika which followed its
defeat in the First World War 1914 1918, Tanganyika was declared a mandate
territory in the Treaty of Versailles of 1919 and was put under the British rule.
British laws were received in Tanganyika under the Tanganyika Order in Council,
1920 (22 July, 1920) in which we received English common law, doctrines of equity
and statutes of general application in its article 17 (2) [the reception clause].36 In this
regard like its predecessor British enacted legislations such as the Hut and Poll Tax
Ordinance No. 13 of 1922 together with Involuntary Servitude (Abolition)
Ordinance, No. 13 and House Tax Ordinance, No. 26 both of the same year, whose
main purpose was to create taxation which in turn forced the Africans to work in
order to get money to pay taxes. In 1923 the Master and Native Servants Ordinance
No 32 (Cap. 78 of 1923) was enacted. Its main purpose was to facilitate and regulate
the procurement of labour for capital and repatriation. Section 5 of the Ordinance
made it mandatory for employers to pay wages in cash only. The Native Authority
Ordinance 1926 legalised the communal labour tribal turnouts and the tax
33

Rockel, S., Relocating Labor: Sources from the Nineteenth Century, History in Africa, 1995
Vol. 22, p. 447
34
Ibid.
35
United Republic of Tanzania: Law Reform Commission of Tanzania, Report on the labour law
presented to the Minister for Justice and Constitutional Affairs, Ministry of Justice and
Constitutional Affairs Dar es Salaam, Tanzania, 2001 p. 7. The report was prepared after the
reference made, in writing, by the then Honourable Minister for Justice and Attorney General to
the Law Reform Commission of Tanzania on the 13th day of May 1986 under section 8 of the Law
Reform Commission of Tanzania Act, No. 11 of 1980 to report upon, whether the Permanent
Labour Tribunal Act, 1967 after taking into account s.27 (1) of the Act on making awards of the
Tribunal final and binding, adequately protects employees or employers from possible no
jurisdictional errors committed by the Tribunal in making an award or deciding on matters referred
to it; whether the Permanent Labour Tribunal Act 1967 has adequately served the purposes it was
intended to serve; and If the answers to (1) and (2) is no, whether any and what measures could be
adopted by way of legislation or otherwise to achieve those objectives.
36
After Independence the reception clause was firstly retained under section 2(2) of the
Judicature and Application of Laws Ordinance, 1961 Cap 453 and later section 2 (3) of the
Judicature and Application of Laws Act, (Cap 358 R.E 2002) which was so renamed after coming
into force of the Revised Edition of 2002 which was prepared under the authority of the Laws
Revision Act (Act No. 7 of 1994). The Revised Edition of 2002 was made operative retrospectively
by Government Notice No. 124 published on 06/05/2005.

59

F.M.Temba

defaulters. The Master and Native Servants (Written Contracts) Ordinance No. 28
of 1942 (Cap 79) came into force on 18/12/1942. It made it obligatory for certain
types of contracts involving natives to be reduced into writing. The Master and
Native Servants (Recruitment) Ordinance, No. 6 of 1946 (Cap 80) came into force on
15/3/1946. This Ordinance made provisions for licensing of recruiters who were
divided into two categories: private recruiters and professional recruiters. Section
2 defined recruiting as:
any operations undertaken with the object of obtaining or supplying the labour of
natives who do not spontaneously offer their services at the places of employment, or
at an office established by Government, or by an employers organisation with the
approval of the Labour Commissioner for the purpose of receiving applications for
employment, and recruit, recruiter and recruitment have corresponding
meanings.
Another legislation which was enacted by the British was the colonial Labour
Utilisation Ordinance, 1947 Cap 243. The 1947 Ordinance was passed at the height
of labour crisis which continued after the second imperialist world War of 1939
1945. The Ordinance set up labour utilization boards in an effort to secure the
employment of the available resources of native labour in the interest of the colonial
enterprises.37 It would seem that the distinguishing features of the legislation which
were passed by the Germans and British were the element of involuntariness on the
part of the native servant. During British colonial period the country experienced a
British colonial legal system whose labour legislation was predominantly punitive.38
The notion of freedom of contract was jettisoned and in its place a quasi-penal
regime was introduced. As Jack Woddis puts it: the history of African relations with
the West has been a history of robbery, robbery of African manpower, its minerals
and its agricultural resources, and its land.39
A spectacular change occurred in 1950s with the enactment of the Employment
Ordinance Cap 366 of the Laws of Tanganyika in 1955 which came into force in
1957. The Ordinance recognised that the contract of employment is a voluntary
agreement between the employer and the employee. The Ordinance was later referred
to as the Employment Act (Cap 366 R.E 2002). The Act was essentially enacted to
deal with; rights of employees on any obligation in the contract of employment, or in
any matter involving non-fulfilment of the terms of the contract of service, or
whenever any difference arises in the interpretation of those terms or touching on the
conduct of the employer or employee, may report the matter to the labour officer.40
37

Kapinga, W.B.L., State control of the working class through legislation in Shivji, I.G.,(editor)
the State and the working people in Tanzania, CODESRIA, Dakar, 1986 p. 87
38
Ibid.
39
Woddis, J., The Roots of Revolt, Lawrence and Wishart, London, 1960 p. 1
40
Employment Act, s. 139

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Evolution of contract of employment

The Employment Act which dealt with all matters pertaining to contract of
employment provided a wide scope of protection to employees. Under the Act
employee was defined as any person who has entered into or works under a contract
of service with an employer whether by way of manual labour, clerical work, or
otherwise and whether the contract is expressed or implied or is oral or in writing.41
The contract of service meant any contract, whether in writing or oral, whether
expressed 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 work or to perform
any journey and includes a foreign contract of service.42 The existence of contract of
service was ascertained by applying common law tests as developed in the UK
courts.
Also, the long title of the Employment Act stated the purpose of the law as to amend
and consolidate the Law relating to Labour and regulate conditions of employment
for Employers and Employees. This Law governed all agreements of employment.
Section 13 of the Act was to the effect that no person shall employ any employee and
no employee shall be employed under any contract of service except in accordance
with the provisions of this Act. In this respect therefore this Law became the most
basic law as far as employment and all its dynamics are concerned. Terms and
conditions of employment were stipulated in this law. Furthermore section 16 (1)
stated that contracts of service may be oral or written contracts. The details of these
two aspects were dealt with more exhaustively in Part IV and Part V of the Act.43
The legal basis of employment relationship
The primary legal basis of an employment relationship is a contract of employment
despite the fact that the rules regulating the employment relationship are derived
from mainly three sources, namely the common law, labour legislation and collective
bargaining.44 The common law contract of employment remains the basis of the
employment relationship in the sense that the legal relationship between the
employer and the employee is created by it.45 Under the common law of
employment, no formalities are required to bring an employment relationship into
being.46 The contract of employment can simply be implied by prevailing practice or,

41

Ibid, s. 2
Ibid, s. 2
43
Oral contract of service was covered under sections 34 and 40 while the written contract of
employment was covered under section 47 of the Employment Act.
44
Coaker, J. F., and Zeffertt, D. T., (eds) Wille & Millins Mercantile Law of South Africa 18th
edition, 1984 p. 340
45
Grogan, J., Riekerts Basic Employment Law, Cape Town, 2nd edition, 1993, pp. 2-3.
46
Brown, W., et al, The employment contract: from collective procedures to individual rights,
ESRC Center for Business Research, University of Cambridge Working Paper No. 171, September
2000, p. 12 (Available on http:/ http://www.cbr.cam.ac.uk/pdf/wp171.pdf accessed 18/08/2013)
42

61

F.M.Temba

if it is to be made explicit, this can be done either in writing or orally.47 The nature of
employment relationship is a complex and multifaceted social relationship; its forms
are protean, and its existence must be viewed by a process whose application goes
unremarked in most other branches of the law, the process of assessing all the
relevant facts.48 Labour law scholars, however, have defined contract of
employment as an agreement in terms of which one party (the employee) agrees to
make his personal services available to the other party (the employer) under the
latters supervision and authority in return for remuneration.49
It is nonetheless, noticeable that, appointment and dismissal of employees are
determined by the conditions created by the fixed regulation usually offered by
legislation. Thus, Legislation has superimposed a growing set of duties upon the
employer to provide the employee with written information on certain specified
terms of contract and certain specified duties.50 This legislative intervention is
evident even in Tanzania where the employee should be given the written statement
of particulars.51 If the employee does not understand the particulars of the written
statement of particulars it is the duty of the employer to make sure that they are
explained to the employee in the manner in which the employee understands.52
Where there are changes of the written statement of particulars there should be the
consultation between the employer and the employee to revise the written particulars
to reflect the change and to notify the employee in writing the changes.53 In case the
contract between the employer and the employee is terminated the law puts it clear
that it is the duty of the employer to keep the record of written statement of
particulars for five years after the termination of the contract of employment.54 The
duty is for the purpose of using the particulars as evidence in case there is the case
between the employee and the employer. If there is a legal proceedings and the
employer fails to produce the written statements of particulars as prescribed under
section 15 (1) the burden of proving or disproving an alleged term of employment
stipulated under section 15 (1) lies on the employer. If the factors introduced are
valid indicators of an employment relationship, they must hold for employment
47

Ibid.
Brassey, M., The nature of employment ILJ 1990, Vol. 11 p. 920.
49
Du Plessis, J.V., and Fouche, M., A Practical Guide to Labour Law 2nd edition LexisNexis,
Durban, 1996, p. 7.
50
Brown, (n46), p. 12
51
Section 15 (1) of the Employment and Labour Relations Act, 2004 requires the employer to
supply to an employee the written statement of particulars in writing when commencing
employment. The written statement of particulars include; name, age, permanent address and sex of
the employee; place of recruitment; job description; date of commencement; form and duration of
the contract; place of work; hours of work; remuneration, the methods of its calculation, and details
of any benefits or payment in kind; and any other prescribed matter.
52
Employment and Labour relations Act, s. 15 (2) and (3).
53
Ibid, s. 15 (4).
54
Ibid, s. 15 (5).
48

62

Evolution of contract of employment

relationship of any kind.55 Besides, the employer is supposed to keep the record as
per section 96 of the ELRA 2004. These records includes the records of any
remunerations paid to the employee and written particulars referred under section 15
(1) of the ELRA.
Apart from the protection given to employees under the contract of employment in
Tanzania related to the supply of written statement of particulars, the ELRA and the
LIA provide for other statutory provisions which protect the employee at work. They
include provisions relating to prohibition of discrimination at work;56 provisions
which provides for the right of employees at work;57 right of trade unions;
recognition of trade union;58 payment of wages and remunerations as stated in the
contract of employment;59 protection against unfair termination of employment;60
regulation of termination of employment by operational requirements;61 right of
lawful strikes;62 the right to be informed of the minimum wage rates63 in force by
posting notices at the workplace or by any other more effective means; and other
protections such as those provided for under the Workers Compensation Act, 2008
including social security to employees by way of insurance.
Statutory regulation has been regarded as complementary instead of displacing to the
status of the individual contract of employment.64 It has been suggested that although
the impact of statute in employment has increased dramatically, there are
undoubtedly areas where common law remains important, most notably contractual

55

Kalula E., et al, Labour Law Reforms that Support Decent Work: The Case of Southern Africa,
ILO Sub-Regional Office for Southern Africa: Harare, Zimbabwe, Issues Paper No 28,
International Labour Organization 2008 p. 8 (available on
http://www.ilo.org/public/english/region/afpro/harare/download/issues_paper_28.pdf
accessed
18/08/2013).
56
Section 7 of the ELRA prohibits all forms of discrimination at work while section 8 of the same
Act prohibits discrimination at trade unions.
57
Employment and Labour Relations Act, s.9 provides for the right of employee to form and join
trade unions.
58
Ibid, s. 67 (1).
59
Ibid, s. 27and the Labour Institutions Act, s. 41 (3).
60
Employment and Labour Relations Act, s. 37.
61
Ibid, s. 38.
62
Ibid, Part VII especially sections 75, 76, 77 and 78.
63
Minimum wage rate is set by the Minister by making the a Wage Order determining the
minimum wage and other conditions of employment of employees in any sector and area of
economy after considering the recommendations of the Wage Board appointed under section 35 of
the LIA . The Wage Order is made as per section 39 of the LIA by notice in the Gazette and with
effect from the date specified in the Gazette.
64
Van Jaarsveld, M. I., Contract in Employment: Weathering Storms in Mixed Jurisdictions? Some
Comparative Thoughts Electronic Journal of Comparative Law, May 2008, Vol. 12. No. 1 p. 22
(available on http://www.ejcl.org/121/art121-26.pdf accessed 24/07/2013).

63

F.M.Temba

terms that underpin statutory claims for breach of contract or unfair dismissal.65 With
the increase of the influence of statutory provisions in employment relationship, the
same have been interpreted purposively. This purposive interpretation of statutory
provisions has, however, witnessed the granting or accepting of workers, under
different circumstances, as employees, despite the lack of the contract of
employment, the ground being that it is equitable to do so.66 The protection of labour
legislation should be extended to those who are vulnerable, but only to those who
may be considered deserving of it.67 The effectiveness of the protection of the
workers rights at work by the statutory provisions is achieved upon establishment
that the employee so protected falls within the four corners of the definition of the
employee as defined by the ELRA. The protections offered by the statutory
provisions are not supposed to be inconsistent to the tenets of contract of
employment. Importantly, the position of statutory provisions aims at providing
some rights which are not offered by the common law contract of employment.
In the UK, for instance, employee is defined as an individual who has entered into or
works under a contract of employment.68 A worker is defined as an individual who
has entered into or who works under a contract of employment, or any other contract,
whether expressed or implied and (if it is expressed) whether oral or in writing,
whereby the individual undertakes to do or perform personally any work or services
for another party to the contract whose status is not by virtue of the contract that of a
client or customer of any profession or business carried on by the individual.69 In
Tanzania the Employment and Labour Relations Act, 2004, does not define a
contract of employment but it defines an employee as an individual who has entered
into a contract of employment; or has interred into any other contract under whichthe individual undertakes to work personally for the other party to the contract; and
the other party is not a client or customer of any profession, business, or undertaking
carried on by the individual; or is deemed to be an employee by the minister under
65

S Middlemiss The Demise of the Common Law in the UK Employment Law? Part 1 (2004)
Irish Law Times at 218, See also J Gaymer The Employment Relationship Sweet & Maxwell, 2001
p. 417.
66
In South Africa the following cases provide lucid examples namely; National Automobile &
Allied Workers Union (now known as the National Union of Metalworkers of SA) v Borg-Warner
SA (Pty) Ltd (1994) 15 ILJ 509 (A) and more recently Transport Fleet Maintenance (Pty) Ltd &
another v NUMSA & others (2004) 25 ILJ 104 (LAC); [2003] 10 BLLR 975. These cases involved
workers who had been dismissed (so the employment contract had been terminated) but sought to
rely on the Labour Relations Act as 'employees'.
67
See Bosch, C., Can unauthorized workers be regarded as employees for the purposes of the
Labour Relations Act? Industrial Law Journal, 2006, Vol. 27 pp. 1359-1360 analyzing Wei-Xin
& another v Minister of Home Affairs [2006] JOL 16728 (T) at para 40)
68
Section 230(1) of the Employment Rights Act of 1996; section 230(2) of the same Act states that
contract of employment means a contract of service or apprenticeship, whether express or implied,
and (if it is express) whether oral or in writing.
69
The Employment Rights Act 1996, s. 230(3).

64

Evolution of contract of employment

section 98 (3) of the ELRA.1 Section 98(3) empowers the minister for labour after
consultation with the labour, economic and social council established under section 3
of the LIA, by notice in the gazette deem any category of persons to be employees.
International Labour Organisation describes an employee in consideration of the
distinctive dichotomy which exists around the phrase itself and categorise it
primarily on two premises; i.e. employee with stable contract and regular employees.
Employees are all those who hold the type of job defined as paid employment jobs.
Employees with stable contracts are those employees who have had, and continue to
have an explicit written or oral or implicit contract of employment or a succession of
such contracts with the same employer on a continuous basis which notion implies
a period of employment which is no longer than a specified minimum period
determined according to national circumstances. Regular employees are those
employees with the stable contracts for whom the employing organisation is
responsible for payment of taxes and social security contributions and where the
contractual relationship is subject to national legislation.70
It is ones considered view that attempts made by all the legislative provisions in
providing a succinct definition of an employee streams unanimously in the same
direction and demonstrate the sentiment of achieving one common comprehension on
the notion of employee. Whilst, it should be noted that the ELRA and all other
legislations vary slightly in construction of words when defining an employee,
however, a fact worth mentioned is that the form of expression does not matter
much; instead what matters is the content and objective that the legislation seeks to
achieve. It has tacitly been agreed upon in those provisions that a person has to work
or be working for another person or state and receive remuneration or entitled to
receive any remuneration and/or assist another person in carrying of business, for
that individual to basically meet the requisite of being an employee, as stated in
ELRA71 and other statutory provisions for purposes of getting protection from the
labour laws, resulting from unfair dismissals, discrimination, and so forth. It is
therefore concluded that the ELRA and ILO assent on common basis and conclusion
in as far as defining employee is concerned.
This article further submits that, the definitions of employee in labour statutes in
different jurisdictions are open to an expansive interpretation, but the courts have
preferred to interpret them conservatively.72 Nonetheless, it is also worth noting that,
in determining whether the parties are employer and employee the courts are
70

International Labour Organisation (ILO) Resolutions concerning International classification of

status in employment Adopted by the 15th International Conference of labour statisticians; January
1993, para 8
71
Employment and Labour Relations Act, s. 4.
72
Benjamin P., An Accident of History: Who Is (and Who Should Be) an Employee under South
African Labour Law, ILJ 2004 Vol. 25 p. 787

65

F.M.Temba

increasingly less concerned with finding a valid contract between the parties as
opposed to discerning an employment relationship and an example in this regard is
taken from Rumbles v Kwa Bat Marketing (Pty) Ltd.73 In this case the court stated
that what is required in determining whether a worker is an employee is a
conspectus of all the relevant facts including any contractual terms, and a
determination whether these holistically viewed establish a relationship of
employment as contemplated by the statutory definition.74
Taking into account on the position of the definitions of employee and a worker it is
clear that the law excludes the independent contractor from the definition of an
employee.75 The courts have stated that the contract between the parties is the
primary source from which to establish the nature of the parties' work relationship.76
There are situations when workers may be considered as employees in the absence of
the contract as was in the case of NUCCAWU v Transnet Ltd t/a Portnet.77 In this
case, the workers in question were members of the workforce pool and have the right
to be considered for employment on a day-to-day basis. In addition the respondent
(employer) stated that when there is a need to employ extra staff for its day-to-day
requirements, it would employ from the pool it created. The employer sought to
introduce new agreements in terms of which the workers in the pool would be
employed for the full week, Mondays to Sundays, but for a fixed term of three
months, the proposal which was refused by the workers in the pool hence they were
not considered for the employment. The court was satisfied that the workers were
employees within the definition contained in the LRA.78

73

(2003) 24 ILJ 1587 (LC) at 1592

Christie S & Bosch C, Are sex workers employees ILJ Vol. 28. No.4 p. 808
75
The courts have, however, held that independent contractors are also excluded from the
definition. See Craig Bosch, (n67), p. 1354.
76
See, Church of the Province of Southern Africa Diocese of Cape Town v CCMA & others (2001)
22 ILJ 2274 (LC); Salvation Army (South African Territory) v Minister of Labour [2004] 12 BLLR
1264 (LC). See also Smith v Workmen's Compensation Commissioner at 64; Liberty Life
Association of Africa Ltd v Niselow at 683; Niselow v Liberty Life Association of Africa Ltd
(1998) 19 ILJ 752 (SCA) at 754; SA Broadcasting Corporation v McKenzie at 591 and Hood and
Association for Retired Persons & Pensioners (2004) 25 IL] 1111 (CCMA) at 1113. (cited from
Bosch, (n67), p. 1355). For example, in Church of the Province of Southern Africa Diocese of Cape
Town v CCMA & others the LC held that an Anglican priest could not be regarded as an employee
because the parties had never intended there to be a civilly enforceable contract between them.
Rather, their relationship was intended to be regulated by the laws governing the Anglican Church.
77
(2000) 21 ILJ 2288 (LC).
78
One has to take into account that the LRA of the Republic of South Africa definition of
employee the streams into the same direction as the ELRA.
74

66

Evolution of contract of employment

The changing face of contract of employment

Despite the fact that contract of employment has striven to regulate and protect
workers rights at the place of work, certain trends have in recent years been caused
by the social-economic developments in international standards which in turn,
influenced the role of the employment contract at all national levels.79 Much of the
focus of recent debates has been on the protection of the employee-likethose
whose employment conditions defy the conceptual tools of traditional labour law.80
This is because labour laws are concerned with the regulation of formal labour
markets to the exclusion of irregular workers, particularly those in the informal
sector.81 It is acknowledgeable that all attempts at working out a legal definition of
the informal economy have so far been unsuccessful. The only certainty, as observed
by the Director-General of the ILO, about the informal sector is that it exists.82 The
same is said to have, not only given legal recognition, but it is also much debated
whether the informal sector should be legalized or left in a laissez-faire limbo.83 In
spite of the increasing size of the informal sector and the rise of atypical workers, the
focus of emerging new systems of labour market regulation remains the formal
employment sector.84 Most informal economy workers are in fact excluded from the
scope of labour law, because law enforcement is minimal or even non-existent in the
informal economy.85 Workers in the informal economy are among the weakest and
most vulnerable groups of workers. Most of them have a very low income, their jobs
are unstable and their conditions of work are precarious.86 In one decision the
changing world of employment was acknowledged by an observation that the court
must be mindful of trends leading to the progressive deregulation of the labour
market, the privatisation of public services, and the globalisation of product and
financial markets.87

79

Van Jaarsveld, (n64), p. 3.

Benjamin, P., Beyond the Boundaries: Prospects for Expanding Labour Market Regulation in
South Africa, in Guy Davidov and Brian Langille (eds) Boundaries and Frontiers of Labour
Law:Goals and Means in the Regulation of Work, Hart Publishing, Portland, 2006, p. 182
81
Kalula, E., Beyond Borrowing and Bending: Labour Market Regulation and Labour Law in
Southern Africa in Barnard, C., Deakin, S., and Morris, G.S., (eds) The Future of Labour Law:
Liber Amicorum Sir Bob Hepple QC (Hart, Oxford, 2004), 275 p. 287
82
ILO, The dilemma of the informal sector, Report of the Director-General, International Labour
Conference, 78th Session, Geneva, 1991, p. 4.
83
Bronstein, A., International and Comparative Labour Law: Current challenges, International
Labour Organization, 2009 p. 31
84
Benjamin, (n77), p 188; Kalula, (n78), p. 287.
85
Bronstein, (n80), p. 31
86
Ibid p. 30
87
Lord Steyn in Johnson v Unisys Ltd [2001] IRLR 279 (HL) 283 par 19. See also Jamodien C in
Bennett and Mondipak (2004) 25 ILJ (SA) 583 (CCMA) 590J-591A who stated that the
characteristics of modern work environments, example increased competition in markets, new
modes of working and elements of rapid change, impact on current employment relationships.
80

67

F.M.Temba

These changes have led to informalisation and externalization of labour force.88 The
impacts of externalization and casualisation to the labour economy has been
summarized by Jan Theron that;
One consequence of casualization and externalization is that the numbers protected
by labour legislation has substantially diminished. Those who are protected can be
viewed as insiders in a position of relative privilege. Those outside the ambit of
the legislation comprise unprotected employees (such as casual workers, or workers
in the employ of a broker or satellite enterprise) or those nominally independent
persons who are in fact in a relationship of economic dependence (the so-called
dependent contractor). Accordingly, there is a growing number of persons who
cannot meaningfully be called employees, or if they are employees, cannot
effectively avail themselves of the rights available to employees. By the same token,
they cannot meaningfully be called independent contractors because they are not in
any real sense independent.89
The import of this changing dimension of contract of employment is that the
protection of workers rights by the contract of employment is far to be reached due
to the fact that taking into consideration of the employee covered under the contract
of employment without ambiguity, only the group of workers within formal
employment has adequate protection. Whilst some labour law commentators argue
that the contract of employment is still in its infancy and needs to be given time to
develop, others regard it as incapable of regulating the modern employment
relationship properly.90 From these differing views on the nature of contract of
employment, focusing it from the standpoint of the globalised economy is a
necessary antidote to the problems facing workers in the contemporary employment
relationship. The effective extension of protection of workers in the informal
economy must be informed by an appreciation of the diversity of forms of work
within the contemporary labour market.91 Workers employed through triangular
arrangements (that is to say, three-dimensional work relationships) or in outsourced
work; workers employed by informal businesses; self-employed workers and
dependent contractors employed within the formal sector protection is far from

88

For detailed discussion on informalisation, externalization and causualisation see Colin Fenwick,
et al, Labour Law: A Southern Africa Perspective, International Labour Organization
(International Institute for Labour Studies) 2007 Geneva, pp. 18 - 22 (Available at
http://www.ilo.org/wcmsp5/groups/public/---dgreports/---inst/documents accessed 21/07/2013);
89
Theron, J., Employment is not what it used to be ILJ 2003, Vol. 24 p. 1271.
90
Rycroft, A. J., and Jordaan, B., A guide to South African labour law, 2nd edition, JUTA, Cape
Town, 1992 p. 1.
91
Kalula, et al, (n55), p. 9.

68

Evolution of contract of employment

reach.92 Labour legislation ought to provide remedies to workers who are vulnerable
and therefore in need of protection.93
Proving the existence of contract of employment in terms of the ELRA is a
demanding task owing to the complex nature of the work environment and the
intricacies surrounding the agreements entered into by the parties and deregulation of
the labour market. Legislative recognition of that appears in the rebuttable
presumption in the Labour Institutions Act. Section 61 of Act No 7 of 2004, provides
that: for the purpose of labour law; a person who works for, or lenders services to
any other person is presumed, until the contrary is proved, to be an employee,
regardless of the form of the contract, if any one or more of the following factors
listed in paragraph (a) to (g) is/are present; that, the manner in which the person
works is subject to the control or direction of another person; the persons hours of
work are subject to the control or direction of another person; in case of a person
who works for an organization, a person is a part of that organization; a parson has
worked for that other person for an average of at least 45 hours per month over the
past three months; the person is economically dependent on the other person for
whom that person works or renders services; the person is provided with tools of
trade or work equipment by the other person; and the person only works or renders
services to one person.
The few decisions available on the issue, however, suggest that the presumption of
employee under section 61 of Act No 7 of 2004 assists in the determination of the
existence of the contract of employment. The cases of Janeth Febbs v. TBC (supra)
and Director Usafirishaji Africa v. Hamisi Mwakabala and 25 others94 have
interpreted the provisions of section 61 of the Act. In the latter case, for instance, the
respondents were employed by the applicant to loading and off-loading cement from
train wagon. Their employment was terminated. They filed application before CMA
claiming for terminal benefits. The key contentious issue at the CMA was whether
the respondents were employee in terms of the labour laws. The arbitrator found the
respondents employees as per section 14 of the ELRA and presumed employee under
section 61 of the labour Institution Act. The applicant were aggrieved by the decision
of the arbitrator thus applied for the revision to the High Court claiming that the
respondents were employed for specific tasks, and were not part of the applicants
payroll; that payment based on tasks performed i.e. the amount of bags loaded and
unloaded and were not on 12 months continuous service. In reply to this averment
92

For detailed on Triangular employment see Bartkiw T. J., Labour Law and Triangular
Employment Growth, Paper for presentation at the inaugural Labour Law Research Network
Conference, Pompeu Fabra University, Barcelona, Spain, June 13-15, 2013
93
Bosch, (n67) p. 1357 citing Du Toit, et al, Labour Relations Law: A Comprehensive Guide, 4th
edition, LexisNexis/Butterworths, Durban, 2003, p. 72.
94
Labour Revision No 291 of 2009 High Court of Tanzania Labour Division at Dar es Salaam
(Unreported

69

F.M.Temba

the respondent stated that they were employees as per section 14 paragraph (a) and
(c) of the ELRA. They further stated that they were employed to loading and offloading cement from train wagon, and the nature of their engagement amounts to
employment in terms of section 61 (a) (c) (e) & (f) of the Labour Institution Act.
They worked for an average of 45 hours for more than 3 months and were provided
with working equipments being protection equipments and gate passes. Having
considered the facts of the case the court found the respondents employees as per
section 61 (a), (d) to (f) of the labour Institutions Act.
The presumption was promulgated in order to protect vulnerable employees who
enjoyed little or no protection under the sanctity of contract.95 It was introduced as a
response to a widespread practice of disguised employment96 in terms of which
employees were converted into independent contractors by contractual stipulations
to avoid labour legislation.97 The importance of this presumption is that it does not
assume that only a common-law contract of employment serves to establish an
employment relationship.98 While it is open to rebuttal, the presumption also informs
the nature of the relationship that qualifies for protection.99 Nevertheless, the point
has been made that problems that the presumption sought to address in respect of
disguised employment were largely problems of enforcement, and that the state had
not simultaneously committed greater resources to enforcing existing laws.100 On the
same footing, it is felt that, by introducing an earning threshold to the category of
workers covered, and by making the presumption rebuttable by the employer, the
presumption was divested of much of its usefulness to the worker.101 Thus, despite
presumption, the issue of protection of workers still depends on enforcement. Many
of the most marginal workers such as home workers are now covered under the
existing definitions in section 61 of the LIA. Therefore presumption will do no more
than distract attention from the same old failures if enforcement remains inadequate
and under resourced.102

95

Tamara Cohen Placing substance over form Identifying the true parties to an employment
relationship ILJ 2008, Vol. 29 863 p. 878; Le Roux, R., the meaning of worker and the road
towards diversification: reflecting on discovery, SITA and Kylie, ILJ, January 2009, Vol. 30, pp.
52-53
96
The International Labour Organization describes disguised employment as an employment
relationship that is lent an appearance that is other than the underlying reality. (Source: ILO, the
Scope of the Employment Relationship, Geneva, 2003 p. 24).
97
Benjamin, (n80) p. 191.
98
Le Roux, R., The Worker: Towards Labour Laws New Vocabulary SALJ 2007, Vol. 124, p. 470
99
Ibid.
100
Godfrey, S., and Clarke, M., The Basic Conditions of Employment Act Amendments: More
Questions than Answers Law, Democracy and Development, 2002, Vol. 6, p. 1.
101
Kalula, et al, (n55), p. 8
102
Benjamin, (n80), p. 192

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Evolution of contract of employment

Concluding remarks
This article submits that in establishing employment relationship in Tanzania,
contract of employment remains to be a key factor. The enacted laws further states
that there should be employer and employee for existence of contract of employment.
Courts have developed tests in ascertaining the existence of employment
relationship. The study shows that courts do not look at one single factor but instead
take a multiple approach, weighing up all the factors for and against a contract of
employment and determines on which side the scales will settle. However, despite
the evolution of a number of tests to be used to determine the existence of a contract
of employment, the changing face of the relationship of the parties in employment
have made the determination of contract of employment to be more difficult. The
changing of globalised economy has ultimately rendered employment relation to
change to disguised employment. Disguised employment has become a significant
reality in the Tanzania labour market.103 This is evident particularly in the context of
changing dimension of employee such as agency workers, zero-hours contract
workers and casual workers, free-lancers, consultants, on call workers, outworkers or
homeworkers, gang workers, contract workers, and agency temps.104 Hence,
personal work contracts are conceived of as a large group or family of contracts,
some of which fall into the subcategory of contracts of employment while others do
not.105 The change does not end into employee or worker dimension the same is the
case on employers or employing agencies dimension which has resulted to the
presence of intermediary employing enterprise i.e. employment agencies, labour
brokers and corporations involved in outsourcing.
That, in the absence of the contract of employment between parties many workers in
working places are not protected by labour laws. For instance in the case of James v
London Borough of Greenwich,106 it was held that, in many cases agency workers
will fall outside the scope of the protection of the 1996 Act because neither the
workers nor the end users were in any kind of express contractual relationship with
each other and it is not necessary to imply one in order to explain the work
undertaken by the worker for the end user. This trend has made Tanzania labour
statutes to provide for the provisions which presumed who is an employee. The use
of presumption and the common law tests as developed in the UK courts in
ascertaining who is an employee only comes into existence at the time of the dispute
between the employer and the presumed employee. It means that these workers work
for another without guarantee of their rights such as the right against unfair dismissal,
statutory minimum notice, written particulars of statement and disciplinary and
103

Benjamin (n72), p. 794

Freedland, M., From the Contract of Employment to the Personal Work Nexus, Industrial Law
Journal, March 2006 Vol. 35, No. 1, p 9
105
Ibid p.7.
106
[2008] IRLR 302, CA.
104

71

F.M.Temba

grievance procedures. It is from this observation the article concludes that; the
contract of employment in Tanzania which owes its evolution from the UK law, has
changed and many workers are in the informal sector. The protection provided for by
the employment contract, though may look attractive; the situation on the ground is
different. In Tanzania the situation is even worse; since, after independence in, 1961
the country has never experienced the rising of formal employment above 10 percent.
The last recorded report of the government in 2003 [The National Social Security
Policy 2003] showed that only 5.4 of the population were employed in the formal
sector. The remaining were unemployed, underemployed and working in informal
forms of employment. The law purporting to protect workers at working place should
take into account the socio-economic situation taking place in the country which has
made the working class to fall in the hands of informal employment.

72