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Employment Act

Purpose

The Purpose Of The Act Is To;

  • employment Status;
  • outlines The Rights And Duties Of The Employer
  • rights And Duties Of The Employee.

Section 2 of the Employment Act; 

"Any person, or public body or any firm, corporation or company, who or which has entered into a contract of service to employ any individual, and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company.”

Under Common Law(which Kenya follows) , a person who recruits Employees, defines their work,directs the Employees in the performance of their duty, pays their salary and provides any necessary amenities at the workplace is deemed to be an Employer of the Employee, as was established in the case of PO v Board of Trustees, A F & 2 Others [2014] eKLR

Section 2 of the Employment Act;

an employee is a person employed for wages or salary and includes an apprentice and an indentured learner.

Section 2 of the Employment Act defines a contract of service;

  • contract OF service is “an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an Employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies.
  • A contract of service shows there is an employment.
  • Any form of employment must be contractual in nature whether oral or written.
  • Employment for more than 3 months requires a written contract by the Employer (Section 9 (1) (b) Employment Act).
  • The Contract of Service should;
  1. State the particulars of employment i.e. pay, leave, job description, notice
  2. Must be agreed to by the Employee (section 9 (2) of the Employment Act)
  3. The Employee may sign his name or thumbprint on the Contract of Service, in the presence of a person other than his Employer{Section 9(3)}
  4. The Employer is required to give the Employee a statement of the employment particulars. Section 10(1) of the Employment Act.
  5. The particulars of employment may be given in installments not later than two months after the beginning of the employment, (Section 10 (3) of the said Act).
  • Change of the contract of service requires Employer to consult Employee , notify Employee in writing of the change . Section 10(5) of the Employment Act.
  • The Employer has a duty to keep the particulars of the contract of service for a period of five years after termination of the employment (Section 10(6) of the Employment Act).
  • In case of any legal proceedings and the Employer fails to produce a written contract or the written particulars, the Employer will be required to prove any term of the Contract of Service.

 

Contract FOR service means a contract by a service provide to provide a service on agreed term and conditions. This is not covered under the Employment Act.

NOTE:

An Employee works under a contract of service, NOT a contract for services. Unprotected persons (e.g. independent contractors, self-employed persons) work under a contract for service.

A.    Comply with terms of service i.e. employment contract

B.    Work at any place unless otherwise specified in the Employment contract

C.    Employee must work diligently to the standard required

D.   Employee must be honest and not commit fraud

E.     Employee must attend work regularly .

F.     Employee must observe punctuality in attendance

G.   Employee should not be absent from work without permission or authorised during working hours

H.   Unionised Employee should not carry out union activities during working hours and not at the Employers premises or work unless with notice.

I.       Not to drink or be drunk while on duty

J.      Not to leave the employment without proper notice as provided in the Contract of employment

K.    Employee should be cordial and civil at work and not use abusive language

L.     Employee should be carrying out activities as per his job description during working hours and not waste time or absent from work during working hours

M. Employee should not sleep during working hours

N.   During a strike and employee should `demonstrate outside the premises not inside the Employer’s premises.

O.   Not have a go slow without notice.

P.    Not to sexually harass fellow employees or customers

Q.   Not to cause damage to Employers Property or reputation

R.    To take care of any equipment or tools of trade provided by Employer and not to be wasteful.

S.     To ensure no Incompetence and negligence in carrying out duties

T.     Comply with the Employers rules and regulations  especially safety regulations

U.   Not to do anything that would cause employers insurance policies to be void

V.    Not to carry out any illegal or corrupt practices

W.  Not to make false statements or misrepresent any facts to the Employer especially during recruitment

X.    Not us the employers premises or resources for  a competing business or other personal business

 

Reference from, Employer’s  Right’s  under Labour Laws, H.L. Kumar, Fifth Edition

Employment Act  2007,  Cap 227 Section 5 outlaws discrimination at workplace on basis of;

Race,  Colour, Sex, Language, Religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status, HIV status ,recruitment, training, promotion, terms and conditions of employment, termination of employment, any other matters arising out of the employment.

SEXUAL HARASSMENT is defined in Section 6 of the Employment Act  2007, Cap 227

An employee is deemed sexually harassed if the employer of that employee or representative of that employer or a co worker;

A.      Directly or indirectly requests that employee;

  • for sexual intercourse ,
  • sexual contact or
  • any other form of sexual activity that contains an implied or express;

        i)            Promise for preferential treatment in employment

       ii)             threat of detrimental treatment in employment

  • threat about the present or future employment status of the employee

B) Uses language, whether written, or spoken of a sexual nature

C) Uses visual material of a sexual nature or

D) Shows physical behaviour of a sexual nature which directly or indirectly subjects the employee to behaviour that is unwelcome Or offensive to that employee and that by its nature has a detrimental  effect on that employees employment, job performance or job satisfaction.

Section 6 (2)

Every employer with more than 20 employees is required to have a Sexual Harassment Policy

The Policy contains

i)                    Definition of sexual harassment

ii). That every employee is entitled to employment that is free of sexual harassment

iii). That the employer shall take steps to ensure that  no employee is subjected to sexual harassment

iv) explain how complaints of sexual harassment complaints may be brought to the  attention of the employer

•       the employer shall take such disciplinary measures as the employer deems appropriate against any person under the employer’s direction, who subjects any employee to sexual harassment.

vi) the employer will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purpose of investigating the complaint or taking disciplinary measures in relation thereto

vii) employer shall bring to the attention of each person under the employer’s direction the policy statement required

This is provided for in Part VI of the Employment Act, Cap 226 Section 35 to 51.

 

Section 44(2)


No employer has the right to terminate a contract of service without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term except in case of Summary Dismissal or as per contract.

 

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Section 35(1) Give notice.

Notice period is similar to payment period whether payment is daily, weekly or monthly POR as per the contract. Notice in writing.

Section 35(3) Explain Notice- where employee does not understand notice, Employer must explain contents verbally in a language they can understand.

Section 35(4) Employee may challenge Notice to terminate if ground for termination not valid as per section 46 explained below).

Section 36. Payment in lieu of notice

Either of the parties to a contract of service to which section 35(5)( as below) applies, may terminate the contract without notice upon payment to the other party of the remuneration which would have been earned by that other party, or paid by him as the case may be in respect of the period of notice required to be given under the corresponding provisions of that section.

Section 38. Waiver of notice by Employer

Where an employee gives notice of termination of employment and the employer waives the whole or any part of the notice, the employer shall pay to the employee remuneration equivalent to the period of notice not served by the employee as the case may be, unless the employer and the employee agree otherwise.

Section 39. Where Employee Is On A Journey At Time Of Notice Of Termination

If the period expressed in a contract of service expires, or if an employee seeks to terminate a contract where no agreement is expressed respecting its duration while the employee is engaged on a journey, the employer may, for the purpose of the completion of the journey, extend the period of service for a sufficient period, but in any case not exceeding one month, to enable the employee to complete the journey.

Section 42.

A probationary period shall not be more than six months but it may be extended for a further period of not more than six months with the agreement of the employee.

No employer shall employ an employee under a probationary contract for more than the six months.

A party to a contract for a probationary period may terminate the contract by giving not less than seven days’ notice of termination of the contract, or by payment, by the employer to the employee, of seven days’ wages in lieu of notice.

Section 44.

Summary dismissal shall take place when an employer terminates the employment of an employeewithout notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term.

Subject to the provisions of this Act, an employer may dismiss an employee summarily when the employee has by his conduct indicated that he has fundamentally breached his obligations arising under the contract of service.

Any of the following matters may amount to GROSS MISCONDUCT so as to justify the summary dismissal of an employee for lawful cause,

if—

Section 44(4)

a.when the employee has by his conduct indicated that he has fundamentally breached his obligations arising under the contract of service.

b.without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work;

c.during working hours, by becoming or being intoxicated, an employee renders himself unwilling or incapable to perform his work properly;

d.an employee wilfully neglects to perform any work which it was his duty to perform, or if he carelessly and improperly performs any work which from its nature it was his duty, under his contract, to have performed carefully and properly;

e.an employee uses abusive or insulting language, or behaves in a manner insulting, to his employer or to a person placed in authority over him by his employer;

f.an employee knowingly fails, or refuses, to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer;

g.in the lawful exercise of any power of arrest given by or under any written law, an employee is arrested for a cognizable offencepunishable by imprisonment and is not within fourteen days either released on bail or on bond or otherwise lawfully set at liberty; or

 h. an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the     substantial               detriment of his employer or his employer’s property.

Section 41.

(1) An employer shall, before terminating the employment of an employee, on the grounds ofmisconductpoor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and

the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.

(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any,make.

Section 43.

(1) In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair.

(2) The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.

Section 35(5) on expiry of notice pay dues i.e. 15 days for every year worked plus leave days net of statutory deductions EXCEPT where the Employee is

(a) a registered pension or provident fund scheme under the Retirement Benefits Act;

(b) a gratuity or service pay scheme established under a collective agreement;

(c) any other scheme established and operated by an employer whose terms are more favourable than those of the service pay scheme established under this section; and

(d) the National Social Security Fund.

Section 46

(a) a female employee’s pregnancy, or any reason connected with her pregnancy;

(b) the going on leave of an employee, or the proposal of an employee to take, any leave to which he was entitled under the law or a contract;

(c) an employee’s membership or proposed membership of a trade union;

(d) the participation or proposed participation of an employee in the activities of a trade union outside working hours or, with the consent of the employer, within working hours;

(e) an employee’s seeking of office as, or acting or having acted in the capacity of, an officer of a trade union or a workers’ representative;

(f) an employee’s refusal or proposed refusal to join or withdraw from a trade union;

(g) an employee’s race, colour, tribe, sex, religion, political opinion or affiliation, national extraction, nationality, social origin, marital status, HIV status or disability;

(h) an employee’s initiation or proposed initiation of a complaint or other legal proceedings against his employer, except where the complaint is shown to be irresponsible and without foundation; or (i) an employee’s participation in a lawful strike.

Section 45

  1. No employer shall terminate the employment of an employee unfairly.

(2) A termination of employment by an employer is unfair if the employer fails

to prove—

(a) that the reason for the termination is valid;

(b) that the reason for the termination is a fair reason—

(i) related to the employee’s conduct, capacity or compatibility; or

(ii) based on the operational requirements of the employer; and

(c) that the employment was terminated in accordance with fair

procedure.(i.e. notice, hearing, payment of dues, certificate of service)

(3) An employee who has been continuously employed by his employer for a period not less than thirteen months immediately before the date of termination shall have the right to complain that he has been unfairly terminated.

(4) A termination of employment shall be unfair for the purposes of this Part where—

(a) the termination is for one of the reasons that are not valid as sated above ( YOU CANNOT TERMINATE OR DISCIPLINE AN EMPLOYEE ON THESE GROUNDS).

.; or

(b) it is found out that in all the circumstances of the case, the employer did not act in accordance with justice and equity in terminating the

employment of the employee.

(5) In deciding whether it was just and equitable for an employer to terminate the employment of an employee, for the purposes of this section, a labour officer,

or the Industrial Court shall consider—

(a) the procedure adopted by the employer in reaching the decision to dismiss the employee, the communication of that decision to the employee and the handling of any appeal against the decision;

(b) the conduct and capability of the employee up to the date of termination;

(c) the extent to which the employer has complied with any statutory requirements connected with the termination, including the issuing of a certificate under section 51 and the procedural requirements set out in section 41; ( NOTIFICATION AND HEARING BEFORE TERMINATION ON GROUNDS OF MISCONDUCT, POOR PERFOMANCE OR PHYSICAL INCAPACITY)

(d) the previous practice of the employer in dealing with the type of circumstances which led to the termination; and

(e) the existence of any pervious warning letters issued to the

employee.

Section 47

Section 47.

(1) Where an employee has been summarily dismissed or his employer has unfairly terminated his employment without justification, the employee may,

  1. i)within three months of the date of dismissal,
  2. ii)present a complaint to a labour officer and
  3. iii)the complaint shall be dealt with as a complaint lodged under section 87.(in Labour office or industrial Court)
  1. A labour officer who is presented with a claim under this section shall, after affording every opportunity to both the employee and the employer to state their case, recommend to the parties what in his opinion would be the best means of settling the dispute in accordance with the provisions of section 49( REMEDIES FOR WRONGFUL DISMISSAL AND UNFAIR TERMINATION).

(3) The right of the employee to present a complaint under this section shall be in addition to his right to complain to the Industrial Court on the same issue and to the right to complain of any other infringement of his statutory rights.

(4) The right of an employee to make a complaint under this section shall be in addition to any right an employee may enjoy under a collective agreement.

(5) For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.

(6) No employee whose services have been terminated or who has been summarily dismissed during a probationary contract shall make a complaint under this section.

Section 48

In any complaint made under section 47 (EMPLOYEE MAY MAKE A COMPLAINT OF SUMMARY DISMISSAL AND UNFAIR TERMINATION), no advocate shall represent a party in the proceedings before a labour officer, but any party may be assisted or represented by an official of a trade union or an official of an employers’ organisation notwithstanding the fact that the official is an advocate.

Section 49 and Section50

(1) Where in the opinion of a labour officer summary dismissal or termination

of a contract of an employee is unjustified, the labour officer may recommend to

the employer to pay to the employee any or all of the following—

(a) the wages which the employee would have earned had the employee been given the period of noticeto which he was entitled under this Act or his contract of service;

(b) where dismissal terminates the contract before the completion of any service upon which the employee’s wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph (a) which the employee would have been entitled to by virtue of the contract; or

(c) the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.

(2) Any payments made by the employer under this section shall be subject

to statutory deductions.

(3) Where in the opinion of a labour officer an employee’s summary dismissal

or termination of employment was unfair, the labour officer may recommend to

the employer to—

(a) reinstate the employee and treat the employee in all respects as if the employee’s employment had not been terminated; or

(b) re-engage the employee in work comparable to that in which the employee was employed prior to his dismissal, or other reasonably suitable work, at the same wage.

Section 49 (4)

A labour officer shall, in deciding whether to recommend the remedies take into account any or all of the following—

(a) the wishes of the employee;

(b) the circumstances in which the termination took place, including the extent, if any,

to which the employee caused or contributed to the termination; and

(c) the practicability of recommending reinstatement or re-engagement;

(d) the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances;

(e) the employee’s length of service with the employer;

(f) the reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for the termination;

(g) the opportunities available to the employee for securing comparable or suitable employment with another employer;

(h) the value of any severance payable by law;

(i) the right to press claims or any unpaid wages, expenses or other claims owing to the employee;

(j) any expenses reasonably incurred by the employee as a consequence of the termination;

(k) any conduct of the employee which to any extent caused or contributed to the termination;

(l) any failure by the employee to reasonably mitigate the losses attributable to the unjustified termination; and

(m) any compensation, including ex gratia payment, in respect of termination of employment paid by the employer and received by the employee.

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