LEGAL REMEDIES IN EMPLOYMENT
In Kenya, workers have several legal options at their disposal if they disagree with their Employers. These remedies are derived from several laws and rules, including the Director of Occupational Health Services Act, Employment Act, Fair Administrative Action Act, Employment and Labor Relations Court, and Work Injury Benefits Act.
LEGAL FRAMEWORK
1. Employment Act:
This Act provides for the rights of employees, obligation and rights of Employers and regulates the general conditions of employment.
2. Fair Administrative Action Act:[1]
If a public authority acts unfairly or unreasonably in an employment-related matter, an employee can seek remedies through the administrative review process provided by this act.
3. Work Injury Benefits Act:[2]
Employees are entitled to compensation and benefits under this act for work-related injuries or occupational diseases. Employees can file claims for compensation for medical expenses, disability, or death resulting from work-related incidents.
4. The Labor Relations Act
Employees have the right to establish, join, or leave a union. These Unions control how Employees and Employers associate.[3] They are crucial because they are believed to equalize the bargaining strength between the employers and the workers, whom the imbalance may grossly mistreat if they individually represent themselves.
5. Occupational Safety and Health Act,2007[4]
Sets standards of Safety at the workplace which makes an Employer liable if an Employee suffers damage or loss occasioned by the breach.
INSTITUTIONAL FRAMEWORK
1. Employment and Labor Relations Court
The specialized Employment and Labor Relations Court deals with various employment disputes, including unfair termination, discrimination, non-payment of wages, and other employment-related issues. Employees can file cases in this court seeking remedies such as reinstatement, compensation, or specific performance.
To hear and resolve issues originating from employment relationships, the ELRC has both original and appellate authority.[5]The court handles disputes related to employer and employee, employers and trade unions, disputes between trade unions, employers’ organizations, and trade unions and their members, among other disputes related to the employment sector and its players.
2.Director of Occupational Health Services
The Director is responsible for enforcing occupational health and safety regulations. Employees can report workplace health and safety concerns to the Director, who can act appropriately against the employer.
Disputes are common in the workplace, and therefore, we have disputes arising every day for various reasons, which include: unfair termination of employment, breach of contract of employment, or collective bargaining, among other disputes. Is therefore necessary to have in place
The Employment Act of 2007’s Sections 43, 45(2), and 47(5) lay the onus of proving the grounds for termination on the employer. When an employer fails to justify a termination will be regarded as unjust, according to Section 43. As customary in other civil proceedings, simple denials and requiring the employee to prove their case beyond a reasonable doubt do not support employment claims.
REMEDIES
1. Injunctions
These court orders are intended to maintain the current state of an employment dispute.[6] While the disagreement is being resolved. They maintain the prevailing commitments and duties. These directives might instruct the employee to stay at work or order the industrial action to be suspended pending the outcome of the case. This makes sure that events will win out over the case’s final resolution.[7]
Prohibitory Orders. A prohibitory injunction forbids a disputing party from taking specific actions. They may apply temporarily, throughout the process or after the matter has been resolved definitively.
2. Specific Performance
This is awarded when monetary compensation is not an adequate remedy under the circumstances. This order may be requested to force the employer to pay the employee in accordance with the terms of the employment contract and to enhance working conditions. This remedy is only granted in exceptional[8] situations since such instructions could deteriorate the employer and employee relationship. This was reiterated in Sotik Highlands Tea Estates Ltd versus Kenya Plantation and Agricultural Workers Union[9]
3. Order for Reinstatement
This is a request to reinstate a worker whose job was terminated.[10]. This order is only granted in certain situations because it strains the employer-employee relationship, much like Specific Performance.
4. Declaratory orders
These declares a particular conduct as legal or unlawful, proper or improper, or in compliance with the law.[11] These orders are generally followed by another order which is intended to serve as a remedy to the wrong. For instance, if the court rules that an employee’s firing was unfair, it should specify whether the individual should receive compensation.
5. Payment in lieu of notices
The remedies for an employee who has been unfairly fired or terminated from employment are provided in Section 49 of the Employment Act. In place of notice, an employee should be paid the pay he would have made for that one month’s salary. The employment law or employment contract determines the notice time.[12]
6. Severance pay
This is given to a worker whose employer has determined they are no longer needed. It is determined at a minimum of 15 days for each year of service that has been rendered.[13]
This only applies where the Employer does not pay NHIF as section 43 of the Employment Act
7. Accrued leave days
After one year of service, an employee is entitled to 21 days of leave. If an employee does not take a leave of absence, he is still entitled to compensation.[14]
8. Overtime
When an employee works longer than the contracted working hours, he is entitled to compensation at a rate typically higher than the rate for the contracted working hours. Working on public holidays counts as overtime.
9. Compensation for unfair termination
When it is proven that a worker was wrongfully let go or terminated from their position, this is paid to the worker. The employee is entitled upto twelve months of pay as compensation for wrongful dismissal or unfair termination.
10. Payment of wages for days worked
When an Employer dismisses an employee before the end of the month, the employee is entitled to compensation for the days worked. Unlike payments made in lieu of notice, which are all made to the employee, this payment is distinct.[15]
11. Damages
The Employment and Labor Relations Court can order the payment of damages to an employer in several instances. These include:
- Where an employee is injured in the course of work.
- Successful claim for sexual harassment
- Expenses incurred by the employee are necessary for the business.
These orders for compensation vary from case to case. The list above is not a definitive list of the orders a court can give, and the court is at liberty to issue orders as it deems fit. The court can also make orders as to the costs of the suit.
12. Exemplary damages
These are damages intended to deter a certain type of conduct. As stated by this Court in Godfrey Julius Ndumba Mbogori & Another V. Nairobi City County;
[16]“Exemplary damages differ significantly from regular damages. In the traditional definition of the word, the purpose of damages is to make up for the loss. Exemplary damages are intended to punish and deter.”
Lord Devlin, in Rookes v. Barnard,[17] elaborated on the circumstances in which in which exemplary damages may be granted. These include situations in which the defendant’s actions have been intended to generate financial gain for himself that may well exceed the amount of compensation due to the plaintiff, situations in which exemplary damages are expressly provided for by statute, and actions taken by government agents that are oppressive, arbitrary, or in violation of the constitution.
In conclusion, Employees have at their disposal a number of remedies they can pursue against their Employers. The various Acts and regulations discussed above provide for the remedies Employees can seek. The remedies cover areas such as wrongful dismissal, harassment and discrimination, working hours and general working conditions among others. The Employment and Labor Relations Court (ELRC) plays a crucial role in resolving such disputes. It is critical for both Employees and Employers to know their rights and obligations in order to promote a harmonious relationship with each other at the workplace.
LAWQUERY TEAM
[1] Fair Administration Action Act No 4 of 2015
[2] Work Injury Benefits Act, CAP 236, 2007
[3] Section 56(c) of the Labor Relations Act.
[4]Occupational Safety and Health Act No 15 of 2007.
[5]Employment And Labor Relations Court (Procedure) Rules, 2016
[6] Bakery Confectionery Food Manufacturing And Allied Workers Union (K). Versus Kenafric Industries Limited
[7] Ibid
[8] Kenya Airways Limited v Aviation and Allied workers Union & Others[2014]eKLR
[9] Sotik Highlands Tea Estates Limited v Kenya Plantation and Agricultural Workers Union [2017] eKLR
[10] Section 49(3)(a) of the Employment Act.
[11] ELRC Petition No. 93 Of 2020 Between Nancy Mbithe Mutisya And Coretec Systems & Solutions
[12] S. 49(1)(a) of the Employment Act CAP 226
[13] S. 40(1)(g)of the Employment Act, CAP 226
[14] Section. 28(1)(a) of the Employment Act, CAP 226
[15] S. 49(1)(b) of the Employment Act, CAP 226
[16] Julius Ndumba Mbogori & another V. Nairobi City County [2018] eKLR
[17] Rookes v. Barnard [1964] AC 1129