The establishment of Employment and Labour Relations Court in the Courts of Kenya 2010. The further delegation of Labour matters to the Magistrate Court has made the court accessible and led to an increase in Labour disputes before the Court. The effect of this has been to enhance adherence of the provision of the Employment Act 2007 as many judgements are in favor of the employee.
The main claims before the Court are;
Where basic pay is below the Minimum Wage Scale. Further when overtime, 1.5 times pay, is not applied. 15% House allowance is also not paid by many employers thereby an underpayment.
Many employers do not provide the required 24 days leave per annum. This is separate for the 1 day of rest required every week
- Unfair Termination
Employers are generally guilty of either;
2.Unfair process i.e. no notice, hearing, written reasons
COVID 19 Pandemic
The unprecedented COVID 19 pandemic that led to closure of several establishment is now an opportunity for claims for unpaid leave, constructive termination and redundancy. All these attract significant damages awards.
- Reasonable Expectations of Employment
where fixed contract is not renewed or terminated clearly.
The question is how can the Law balance the interests of the Employee and Employer. Labour issues are both a human rights issue and contractual. Historically in Kenya, the Employers led the upper hand against employees because of poor enforcement of the Laws. However, with the establishment of new Courts, the claims and precedent therefore has encouraged more compliance with the legal requirements to ensure fairness.
The Law continues to be progressive to cater for the gaps in seeking Labour Rights. Recently the Employment Act (Amendments) 2021 that was gazette on 1st April, 2021. In this amendment the Law recognize the rights of adoptive parents and they are now entitled to 1 month leave similar to maternity leave. This amendment shall commence on 15th April, 2021.
There are still several Labour Rights issues that require to be addressed and there are various lobby groups working towards this. However, there is need to balance the rights of employees and the economic realities. Many employers are caught unawares and hit with huge claims due to ignorance, lack of policy and structures.
At a bare minimum to avoid huge claims an Employer should;
- Keep accurate written/physical records of Employee Contracts, leave days, working day (log in and our), pay slips etc.
- Have a written Disciplinary process in particular ensure to have a Notice to Show Cause, give opportunity for response, explanation, hearing allowing employees to be accompanied, give written reason for termination (keep minutes of the record)
- Ensure all salaries are paid in accordance with the Minimum Wage guidelines
- Pay all Statutory deductions. Failure to pay especially NSSF exposes the Employer to Claim of Year of Service i.e. 15 days for each year worked
- Make necessary reports to the Labour office and National Employment Authority or any change in employment.
- Comply with any CBA (Collective Bargains Agreement) it is a right entrenched in the constitution of Kenya 2010
- Explain all documents to the employee. Many employees convince the Court that they could not understand contracts on the policies and are therefore not bound.
- Make all necessary policies in place in particular sexual harassment policy where you have more than 20 employees.
It is key for an employer to keep abreast with the employment laws and trends. This can be through hiring a qualified Human Resource professional or legal adviser or being a member of FKE. This may save your organization from costly claims and enable you lobby for positive change to the law.
Do you think current laws adequately secure Labour Rights in the Kenyan economic reality?