Kenya Introduces Customs Recordal to Fight Counterfeit Practices

In the wake of increased counterfeit goods in the Kenyan market, in January 2019, Kenya amended the Anti-counterfeit Act of 2008, through the Statute Law (Miscellaneous Amendments) Act of 2018, which made recordation of Intellectual Property Rights through the Anti-counterfeit Authority (ACA) mandatory.

The amendment became operational on 30th July 2021, after publication in the Kenya Gazette of the Anti-Counterfeit (Recordation) Regulations, 2021 (the Recordation Regulations) published under Legal Notice Number 118 of 2021.

The Recordation Regulations introduced Customs Recordal application procedures including the applicants detailed information, details relating to the name their appointed agent in Kenya or their local distributor, clear identification of the sample goods or photographic representation of the protected goods, indication of the products manufacturing country bearing the recorded intellectual property rights.

The Recordation Regulations make it mandatory for the recordation by the IP Right Owner relating to goods to be imported into Kenya, and any other person other than IP Right Owner importing goods into Kenya to notify the Anti-Counterfeit Authority the particulars of such goods and the same are recorded. Recordation shall remain in force for a period of one year, with the right to renew annually by submission of an application for renewal to the Anti-Counterfeit Authority which application should be filed at least thirty (30) days before its expiry.

Through operationalization of the Recordation Regulations, Kenya has joined the pool of other African countries such as South Africa and Morocco  in curbing counterfeit practices on its borders, enabling Intellectual Property Owners to utilize and enforce their Interllectual Property Rights.

INSURBODINATION UNDER THE LABOUR LAWS: KNOW THE FACTS

The Employment and Labour Relations (Code of Good Practice) G.N. NO. 42 of 2007 under Rule 12 (2)(3)(f) pronounces insubordination as a serious misconduct, that makes a continued employment relationship intolerable.

The 10th Edition of Black’s Law Dictionary, defines the term insubordination as a disregard of an employer’s instructions, especially a behavior that gives the employer cause to terminate a worker’s employment or, an act of disobedience to proper authority; especially a refusal to obey an order that a superior officer is authorized to give.

As a general rule, for insubordination to constitute a misconduct to justify dismissal of an employee, it has to be shown that, the employee deliberately refused to obey a reasonable and lawful order by the employer, as it was stated in the case of Ntsibande vs. Union Carriage & Wagon Co. (PTY) Limited (1993) 14 ILJ 1566 (1).

The same was evidenced in the case of Poly Oak Packaging (PTY) Limited vs. Siquibo NO &Others (unreported) case No.236/2008, it was held that;

as a general principle it may be stated that, the breach of rules laid down by an employer or the refusal to obey an employer’s lawful and reasonable order, is to be viewed in a serious light and may in given circumstances even justify summary dismissal, however the presence of certain prerequisites is required. In the first place it should be evident that the order was given, in the second place the order must be lawful, and thirdly the reasonableness of an order should be beyond reproach and will be inquired into.”

Furthermore, in the case of Vedastus S. Ntulanyenka & others vs. Mohamed Trans. Limited, Revision No. 4 of 2014, High Court Labour Division at Shinyanga it was held that;

“acts of an employee of disobeying a lawful order of the employer constitutes a gross insubordination”.

Despite the inclusion of insubordination in the Employment and Labour Relations (Code of Good Practice) G.N. NO. 42 of 2007 as a possible justification for dismissal, employers might be wrong to assume that the refusal to obey a lawful and reasonable instruction will always justify termination of employment contract by the employer. As a matter of fact, refusal to obey a lawful and reasonable instruction may, in some cases, not even constitute misconduct.

Reliance is made in the case namely Consolidated Revision Application No. 65 and 114 of 2019 between Registered Board of Trustees of LAPF, Dodoma vs. Jamal Mruma; where the trial Judge upheld the CMA decision that rendered the employer’s decision to terminate the employee’s employment contract due to gross insurbodination unfair, and stated that:

“I agree with both parties that insubordination is the act of the employee of not adhering to the directive of the employer. It also involves disrespect and abusive language addressed to senior officers in disrespectful manner. In the present case the words alleged to create the offence is the act of the employee Jamal Mruma through Exhibit D l to doubt the competence of DIA and all staff members in the directorate on the field of technical auditing. And his recommendation that some measures to be taken 20 to train DIA staff or employ an expert on the technical audit, and perhaps restructure of the Directorate to improve efficiency. Reading through those words I do not see any word or phrase or a sentence amounting to be disrespectful, abusive language or disregarding to the directive of the employer. The employee was explaining his observation after his interview with DIA during the inquiry on the causes for the fund to incur unnecessary storage cost of furniture. The employee stated that his observations are honest and should in no way be misconstrued as an attempt to molest anyone. I agree that recommendation of the employee that perhaps the authority may restructure the Directorate to improve efficiency is a strong word which shows that the directorate was not efficient. But the employee made it clear in what area he was doubting the competence of the directorate. The area is on the field of technical auditing. And he gave his reasons for the doubts. It is my opinion that what was written in exhibit D1 does not amount to insubordination. Further, there is no evidence whatsoever in the record to show the seriousness of the misconduct in the light of the nature of the job, the circumstances in which it occurred and the likelihood of repetition. The circumstances of the incident shows that the reason for the employee to write his explanation to the Director General of the Fund as found in Clause 21 1.8 and 1.9 of exhibit D1 is that DIA and her subordinate told him during the interview that he mismanaged the matter due to negligence thus leading to loss incurred. Therefore, the employee decided to write the explanation – Exhibit D1 in order to defend himself as it was clear that DIA was accusing him for the mismanagement. There is no evidence in the record which dispute this testimony of the employee. Moreover, it is in record that the employee’s employment record, length of service, previous disciplinary record and personal circumstances were not considered in disciplinary hearing held by ADC and the board. All of these are in contrary to rule 12(4) of the GN No. 42 of 2007. Therefore, I agree with the Trial Arbitrator findings that there was no insubordination which was committed by the employee. From above, it is my finding that the employer failed to prove that the reason for termination was fair”.

 

It is clearly seen in the above stated case, the Judge considered that, despite the fact that the employee’s statement might sound strong, but the High Court still found the employer’s decision to terminate the employee was unfair due to the following reasons;

  • There was no any lawful directive or instruction from the employer that the employee refused to adhere to.
  • There was no any word, phrase or sentence amounting to be disrespectful, abusive language or disregarding to the directive of the employer.
  • The employee’s statement originates from an interview with the DIA during the inquiry on the causes for the fund to incur unnecessary storage cost of furniture.
  • The employee made it clear in what area he was doubting the competence of the directorate, gave reasons for his doubts and he even went further to state that his recommendations were his honest opinion and in no way should be misconstrued as an attempt to molest anyone.

Another remarkable case is that of MITUSA obo Clarke vs. National Ports Authority (2006,9 BALR 861) the employee, a Tug Master, was dismissed for refusing to obey a lawful and reasonable instruction from the tugboat’s Pilot. The pilot had instructed the Tug Master to tie the tug’s rope to the bow (front) of the ship to be boarded. However, the employee refused to do so on the grounds that It would be dangerous to follow the instruction. As the employee had already received a final warning for insubordination she was fired.

The arbitrator found, amongst other things, that:

In terms of the employer’s policy and international practice, Pilots carry out boarding operations at their own discretion.

Decisions of Pilots as regards boarding operations are final.

The instruction given by the Pilot had been both lawful and reasonable.

However, when maneuvering their vessels to carry out the Pilot’s instructions Tug Masters must avoid risks.

According to standing orders, should the safety of the tug be at risk, the Tug Master may disregard the Pilot’s instruction.

Had an accident occurred after the rope had been secured to the front of the vessel the Tug master would have been blamed.

While the Pilot’s instruction was lawful and reasonable and may have been seen by others as being a safe one, the Tug Master had the right to a different opinion and to act on that differing opinion because she was responsible for the tug’s safety.

Contrary to the subsidiary charges the employee had neither been argumentative nor had behaved in an unprofessional manner.

Despite the validity of the Pilot’s instruction the Tug Master had not committed insubordination; she had exercised her professional discretion as she had been entitled to do.

The Pilot’s demeanor during the arbitration indicated that his view of female Tug Masters contributed to his attitude and all the events of the case.

The dismissal was substantively unfair.

The employee was to be reinstated with full back pay which amounted to eight months’ remuneration and benefits.

The remarkable aspect of this case is that the arbitrator found the dismissal to be unfair despite the fact that the employee had clearly disobeyed a lawful and reasonable instruction. The reason for this unusual finding was based on the unique circumstances of the case. These were:

  • The employee did not believe the instruction to be reasonable on the grounds that it was unsafe.
  • Her opinion was based on her own view of what was dangerous practice.
  • Her opinion was within the bounds of rationality.
  • Her refusal to obey the Pilot’s instruction was based, not on a desire to flout authority, but rather on her professional opinion relating to safety which, according to orders, was paramount.
  • There appeared to be a personal issue influencing the dismissal.

Conclusion

In a nutshell, employers should be aware of the fact that, not all refusals to obey a lawful and reasonable instruction amount to misconduct. Hence, before concluding that the refusal to obey the employer’s instruction is a misconduct, the employer should consider the motive behind the employee’s refusal to obey the said instruction and establish whether it is based on a desire to flout authority or rather based on professional opinion and rationality.

REASONS AND PROCEDURES FOR THE TERMINATION OF EMPLOYMENT DUE TO POOR PERFORMANCE.

Poor work performance generally falls under incapacity as provided under Rule 15(1) of the Employment and Labour Relations, (Code of Good Practice) G.N No. 42 of 2007 which states that, an employee’s incapacity may be due to ill health, injury, or poor work performance.

An employee has the responsibility to reach and maintain the employer’s work performance standards, in terms of quantity and quality.

Whether stated in the employment contract, the employee undertakes to perform according to the reasonable, lawful and attainable work performance standards set by the employer. When an employee fails to meet the required performance standards, he is regarded to be incapable, and the employer has the right to dismiss the employee.

However, the employers right to dismiss an employee can only be invoked by exercising fair reason and procedures, as provided under the Employment and Labour Relations (Code of Good Practice) G.N No. 42 of 2007.

Reasons for poor work performance under the employment and labour relations (code of good practice) G.N. No. 42 Of 2007

Rule 16 of the Employment and Labour Relations (Code of Good Practice) G.N. No. 42 of 2007, provides that, it is important in determining the fairness of termination for poor work performance, that the performance standard is not only reasonable, but it is also known to the employees.

Rule 17 provides that, any Arbitrator or Judge who determines whether a termination for poor work performance is fair shall consider;

Whether or not the employee failed to meet a performance standard;
Whether the employee was aware or could reasonably be expected to have been aware, of the required performance standards;
Whether the performance standards are reasonable;
The reasons why the employee failed to meet the standard and;
Whether the employee was afforded a fair opportunity to meet the performance standard.
Having seen what the employer must determine before terminating an employee for poor work performance, we now look at each of the requirements:

The 1st and 2nd points will be discussed together as they correlate. These points are whether or not the employee failed to meet a performance standard and whether the employee was aware or could reasonably be expected to have aware of the required performance standards. For an employer to terminate the employee’s employment contract he/she must satisfy himself that the employee has failed to meet the performance standards set by the employer. Thus, there must be performance standards and the employee must be aware of the same.

It would be unfair to terminate an employee for failure to attain a performance standard, if the employer failed to inform the employee of the required standards. The employer has the responsibility to disclose the performance standards to the employee beforehand. However, the employee is reasonably expected to be aware of the performance standards. The employee’s reasonability is tested by whether the employment contract stipulates the performance standards, or the job description or any other document and that, such documents were provided to the employee, to reasonably and prudently ensure that the employee was aware of the performance standards, that, he/she was to attain.

Reference is made from the case of Tanzania Breweries Limited vs. Leo Kobelo, High Court Labour Division, Dar es Salaam, Revision No. 211 of 2014, 29/09/15, before Her Ladyship Lilian Mashaka, J. where the Court upheld the decision of the Commission for Mediation and Arbitration (CMA) on grounds that:

  • The Applicant (Employer) had not set performance standards clearly known to his employees;
  • There were procedural irregularities relating to the Applicant’s failure to provide or have in place appropriate action like training to be conducted to improve performance of the Respondent;
  • Also, the Respondent was denied the right to be heard and represented during the meeting prior to his termination, as required under Rule 18 of GN.No.42 of 2007; and
  • Apart from the allegations that there was poor performance by the Respondent and would probably lead to termination, there was no evidence to prove that the procedure for termination was followed.

Thus, the Court held that, there was no valid reason for termination and that the fairness of the procedure under Rule 18 of GN. No. 42 of 2007 was not followed. Therefore, the termination was unfair, and the award of the Commission for Mediation and Arbitration was confirmed upheld.

Whether performance standards are reasonable. When we state that the performance standards are reasonable, we mean to say that the standards are achievable. The performance standards are regarded achievable when for instance the rest of the employees have been able to attain/meet the standards without mistakes. For example, an employee who keeps on making typing errors despite having been counselled, this employee could be disciplined and possibly dismissed depending on the circumstances. When the employer fails to prove the reasonability of the performance standard, he could fail at the Commission for Mediation and Arbitration.

Reliance is made in the case of White vs. Medpro Pharmaceutical (2000, 10 BALR 1182) where the employee failed to meet her targets in nine out of ten months. The Commission for Conciliation, Mediation and Arbitration (CCMA), South Africa, nevertheless found her dismissal to be unfair because in the Court’s view, the employer had set targets that were not achievable.

Again the 4th and 5th points of this work shall be discussed together since they also correlate. These are the reasons why the employee failed to meet the standards and whether the employee was afforded a fair opportunity to meet the performance standard.
Before terminating the employee’s employment contract, the employer must be sure that he knows the reasons as to why the employee failed to meet the standards, and those reasons should not be caused by the employer in the sense that;

  • the employer had failed to provide the employee with materials;
  • equipment was faulty;
  • required training had not been given; and
  • the employer’s product was not in demand or some other reason beyond the employee’s control.

In this case is it important that the employer can establish the reason for the poor performance and must prove that the poor performance was the employee’s fault.

Procedures for termination for poor work performance

Subject to the Provision of Rule 18 The Employment and Labour Relations (Code of Good Practice) G.N. No. 42 of 2007, it is crystal clear that, in setting and implementing performance standards employers have to make sure that, they have afforded the employees a fair trial and the procedures have been adhered to. An employer needs to observe that they have:

  • Set targets that are proven to be reasonable;
  • Adjust targets when changed circumstances dictate this;
  • Give an employee a real chance to achieve the desired performance level; and
  • Remove all obstructions to the achievement of the standards.
  • Where the employee continues to perform unsatisfactorily, the employer shall warn the employee that
  • employment may be terminated if there is no any improvement.
  • An opportunity to improve may be dispensed with if-
    The employee is a manager or senior employee whose knowledge and experience qualify him to judge whether
  • he is meeting the standards set by the employer;
  • The degree of professional skill that is required is so high that the potential consequences of the smallest departure from that high standard are so serious that even an isolated instance of failure to meet the standard may justify termination;
  • Prior to finalizing a decision to terminate the employment of an employee for poor work performance, the
  • employer shall call a meeting with the employee, who shall be allowed to have a fellow employee or trade union
  • representative present to provide assistance; At the meeting, the employer shall outline reasons for action to be taken and allow the employee and/or the representative to make presentations, before finalizing a decision;
    The employer shall consider any representations made and, if these are not accepted, explain why; and
    The outcome of the meeting shall be communicated to the employee in writing, with brief reasons.

Conclusion

We are of the view that, the employers should always exercise their duty by setting attainable targets and ensure that employees are made aware of the targets.

Further, employers are advised to consult Labour Law experts to ensure that the outlined legal procedures have been complied with adequately.

A NEW DAWN FOR INVESTORS IN TANZANIA.

On 6th of April 2021, the President of the United Republic of Tanzania, Her Excellency Samia Suluhu Hassan, while swearing-in the newly appointed Permanent Secretaries, among others, addressed the existing challenges facing the investment regime in relation to doing business in Tanzania.

In her speech, Her Excellency expressed the intention of her administration in curbing the existing bureaucracies and other impediments facing investments and related matters.

She further stated that, her administration will establish a one stop center responsible for coordinating and facilitating investments in Tanzania to provide for more favourable conditions for investors to establish and do business.

To accomplish the government’s goal in improving the investment environment, the administration intends to review the existing laws, regulations, procedures, and institutional set up to achieve a predictable investment environment.

With regard to the ongoing projects which have stalled for various reasons and at various stages, Her Excellency urged the responsible officials and institutions to accelerate implementation of the intended strategic projects including nickel mining and LNG to enhance the investment overflow.

It is worth noting that, since coming to power, and specifically her sentiments during this ceremony, Her Excellency President Samia Suluhu Hassan has renewed hope and confidence to investors and the private sector at large with the pledge aimed at creating predictable business policies for the private sector to thrive, attracting foreign direct investments, and promoting job creation in Tanzania.

VEMMA CONSULT ATTORNEYS RECOGNIZED IN 2021 WORLD TRADEMARK REVIEW 1000

The World Trademark Review 1000 ranking for the year 2021 is out. We are happy to report that, for the first time in the history of Intellectual Property Practice, Tanzania has been ranked and recognized in the 2021 edition of the World Trademark Review 1000 – The World’s Leading Trademark Professionals, a resource that highlights top legal talent in the trademark industry around the globe. The achievement is a result of our exerted efforts which led Tanzania to be ranked and recognized by the world peers for the first time.

We are proud to report that, Vemma Consult Attorneys has been listed as one of the leading law firms in Tanzania for Intellectual Property practice with the highest number of ranked professionals in the World Trademark Review 1000 for 2021 global rankings for Tanzania jurisdiction.

Furthermore, our two talented Partners both co-heading the IP Department, Patrick Sanga and Haika-Belinda John Macha are listed in the World Trademark Review 1000 as top trademarks professionals in Tanzania. The World Trademark Review 1000 states and we quote:

“Having ramped up its IP capabilities in recent years, corporate outfit Vemma Consult Attorneys now handles a significant volume of trademark filings, oppositions and litigation. Its enviable success rate is thanks to tried-and-tested quality control mechanisms and the hawkish supervision of partners Haika-Belinda Macha and Patrick Sanga, who provide stellar leadership to a keen, proactive team. Collectively they act for a slew of prestigious international brands, including Davidoff, Chanel and Coca-Cola, for which they have recently handled renewal projects; and Philips, for which they have registered trademarks in Tanzania and Zanzibar”

We could not have achieved this great milestone without the constant support from our Clients and Colleagues. We therefore extend our gratitude to our Clients, Peers and industry leaders who participated in the research. Special thanks to the World Trademark Review for acknowledging our work in Intellectual Property practice in Tanzania. You can read more about us here: https://www.worldtrademarkreview.com/directories/wtr1000/individuals/patrick-sanga