Author: HR fleek Administrator

Where poor performance is shown to be reason for termination, the employer is placed at a high level of proof as outlined in Section 43 of the Employment Act. Where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of Section 45.

The employer must show that in arriving at the decision of noting the poor performance of an employee:

1. Whether the employee was aware of the level of job performance required including whether the employee was provided with a job description and clear job expectations,
2. Whether suitable tools and instruction or supervision was accorded to the employee to enable him reach the standard,
3. Whether an employment policy or practice was put in place to measure good performance as against poor performance,
4. The measures that were in place to enable them assess the performance of each employee and further, for example, a Performance Improvement Plan (PIP),
5. The measures they have taken to address poor performance once the policy or evaluation system has been put in place; it will not suffice to just say that one has been terminated for poor performance as the effort leading to this decision must be established,
6. If after the appraisal, an employee is given time to improve on his performance, having been aware of the improvement areas as well documented in the performance appraisal and having been informed of a specific time frame within which to improve, the appraisal must include a warning that should the employee’s performance not improve his employment would be terminated,
7. demonstrate that before terminating the employee all efforts necessary were put in place to support the poor performing employee

Beyond having such an evaluation measure, and before termination on the ground of poor performance, the employer is required to:

1. Explain to the employee, in a language the employee understands, the reason for which the employer is considering termination. The employee is entitled to have another employee or a shop floor union representative of his choice present during this explanation.
2. As well as conducting the explanation in person, give a notice outlining in detail the instances of poor performance, the support the employer has given to the employee to enable him improve in the specified areas, the right of the employee to defend himself, the right to representation and the time within which the employee should give his response to the notice.
3. Observe the rules of natural justice by notifying the employee of the impending hearing and the grounds for the disciplinary hearing to enable the employee prepare to defend himself.
4. Hear the employee’s representations and the representations of the person who has accompanied the employee to the disciplinary hearing, if any.
5. Notify the employee of its decision to terminate or retain him after considering his defense.
6. In the event a decision is made to terminate an employee on the reasons for poor performance, the employee must be called again and in the presence of another employee of their choice, the reasons for termination shared with the employee.

The Employment Act, 2007 makes a distinction between termination and dismissal.  It distinguishes unfair termination and wrongful dismissal.

Wrongful Dismissal

An employer is required to give notice to his employee before terminating the employee’s contract of service.

Section 44 of the Employment Act provides that an employer may only resort to summary dismissal when the employee has, by his or her conduct fundamentally breached his or her obligations arising under the contract of service.  It is only a misconduct that is gross in nature that will entitle the employer to summarily dismiss an employee.

The section goes on to give instances of misconduct which amount to gross misconduct as to justify the summary dismissal of an employee. The courts have held that the list given by Section 44 is not exhaustive and the behavior of an employee can be construed as being that which fundamentally breaches their obligation under the employment contact.

Where an employee is summarily dismissed for any other reason outside the confines of fundamental breach of employment contract, then that action by the employer amounts to wrongful dismissal.

Unfair Termination

Termination of employment will be unfair if the court finds that in all the circumstances of the case, it is based on invalid reason or if the reason itself or the procedure of termination are themselves not fair.  Specifically, it will be unfair if it relates to;

• A female employee’s pregnancy,
• The going on leave of an employee,
• An employee’s membership of a trade union,
• The participation of an employee in the activities of a trade union,
• The employee’s seeking office in a trade union, or his refusal to join or withdraw from a trade union,
• An employee’s race, colour, tribe, sex, religion, political opinion or affiliation, national extraction, nationality, social origin, marital status, HIV status or disability,
• An employee’s initiation of a complaint or legal proceedings against the employer unless done irresponsibly, or
• An employee’s participation in a lawful strike.

According to Section 45(3) only an employee who has been in continuous employment for a period not less than thirteen months immediately before the date of termination has the right to complain that he has been unfairly terminated.

Remedies for wrongful dismissal and unfair termination are provided for in Sections 49 and 50 of the Employment Act.

Remedies for Unfair Termination.

1. Compensation – includes payment of damages 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 together with any other accrued benefits including: –

• Payment in lieu of notice of termination (not less than 1 months’ salary as provided under the Employment Act but can exceed this amount if the contract of service or the CBA provides so);
• Payment for any accrued leave days;
• Payment for overtime worked;
• Payment for days worked but not paid for at the time of termination of employment;
• Service pay for every year worked, the terms of which shall be fixed.

Service pay is not applicable where an employee is a member of a registered pension or provident fund scheme under the Retirement Benefits Act (No. 3 of 1997); a gratuity or service pay scheme established under a collective agreement; 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 the National Social Security Fund.

• Gratuity in case of termination through redundancy. Gratuity is payable for every 15 days of each year of service.

2. Payment for unexpired term of contract.
3. Payment of damages for workplace defamation.
4. Reinstatement

• Reinstate the employee and treat the employee in all respects as if the employee’s employment had not been terminated; or
• 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 wages.

5. Issuance of a Certificate of service.

This is a statutory requirement under the Employment Act regardless of the nature and circumstances of termination of the employee unless the employment has continued for a period of less than four consecutive weeks.

An employer is not bound to give to an employee a testimonial, reference or certificate relating to the character or performance of that employee.

A certificate of service must contain: –

• The name of the employer and his postal address;
• The name of the employee;
• The date when employment of the employee commenced;
• The nature and usual place of employment of the employee;
• The date when the employment of the employee ceased; and
• Such other particulars as may be prescribed.

REDUNDANCY

Redundancy occurs when an employee is terminated because his job/service is no longer required by the employer. In a redundancy, there is no fault on the part of either the employee or the employer. Redundancy may be caused by factors such as economic conditions, business efficiency or technological development.

Redundancy may occur under various circumstances including and not limited to:

• Closure of a plant, factory, or other workplace, with the total or near-total loss of jobs,
• Job losses arising from a reduction in staffing requirements due to efficiency gains or falling demand for the company’s products or services, and
• Job losses arising from a downsizing in operations or restructuring of the workforce following, for example, privatisation or merging causes.

Redundancy results in severance of the legal relationship of a worker and employer as it existed immediately before the circumstances that brought about the loss of job.

Below is the processes and procedure to the followed in terminating the employment contract because of redundancy.

Termination of Employees on account of Redundancy

For the termination of employment on account of redundancy to be valid and fair, the redundancy process must be carried out in accordance with the employment laws to avoid any claims for compensation from employees for unfair termination that may arise in future.

Legal Provisions on Redundancy

• The Constitution of Kenya, 2010

Article 41(1) of the Constitution of Kenya 2010, provides that every person has the right to fair labour practices. This right exists even at the point of termination of an employee by requiring that an employee is given the reasons for the termination and accorded a fair hearing before termination.

• The Employment Act 2007

The Employment Act, 2007 (the “Act”) is the primary legislation dealing with employment matters in Kenya. The Act declares and defines the fundamental rights of employees and provide basic conditions of employment of employees.

Section 2 of the Act defines Redundancy to mean “the loss of employment, occupation, job or career by involuntary means through no fault of an employee, involving termination of employment at the initiative of the employer, where the services of an employee are superfluous and the practices commonly known as abolition of office, job or occupation and loss of employment.”

Redundancy has also been referred to as “retrenchment”, “lay-off, “staff downsizing”, and “staff rationalization” among others. The terms are used interchangeably.

The procedure for termination of employment on account of redundancy is set out in section 40 of the Act. The section provides as follows;

An employer shall not terminate a contract of service on account of redundancy unless the employer complies with the following conditions: –

1. where the employee is a member of a trade union, the employer notifies the union to which the employee is a member and the labour officer in charge of the area where the employee is employed of the reasons for, and the extent of, the intended redundancy not less than a month prior to the date of the intended date of termination on account of redundancy;
2. where an employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer;
3. the employer has, in the selection of employees to be declared redundant had due regard to seniority in time and to the skill, ability and reliability of each employee of the particular class of employees affected by the redundancy;
4. where there is in existence a collective agreement between an employer and a trade union setting out terminal benefits payable upon redundancy; the employer has not placed the employee at a disadvantage for being or not being a member of the trade union;
5. the employer has where leave is due to an employee who is declared redundant, paid off the leave in cash;
6. the employer has paid an employee declared redundant not less than one month’s notice or one month’s wages in lieu of notice; and
7. the employer has paid to an employee declared redundant severance pay at the rate of not less than fifteen days’ pay for each completed year of service.”

The procedure set out in section 40 of the Act are mandatory and must be strictly followed for the redundancy to be valid.

The court held in the case of Hesbon Ngaruiya Waigi Vs Equatorial Commercial Bank Limited (2013) eKLR that:

“These conditions outlined in the law are mandatory and not left to the choice of the employer. Redundancies affect workers’ livelihoods and where this must be done by an employer must put into consideration the provisions of the law.”

In the case of Francis Maina Kamau Vs Lee Construction (2014) eKLR, the court emphasised the importance of observing the conditions on the Act in declaring an employee redundant. The Court held that:

“Where an employer declares a redundancy, the conditions set out in Section 40 of the Employment Act must be observed and where the employer fails to do so, the termination becomes unfair termination within the meaning of Section 45 of the Employment Act.”

A summary of the steps to be followed on termination of employee’s contract on account of redundancy under Section 40 of the Employment Act are set out below as follows:

Step 1:          Notice of Intended Redundancy

The employer must give notice of the intended retrenchment programme. The notice should be for not less than 30 days prior to the date of the intended date of termination on account of redundancy. Where the employment contract or Collective Bargaining Agreement (CBA) provide for a longer period than 30 days, then the notice must comply with the longer period.

Where the employee is a member of a trade union, the notice should be given to the trade union to which the employee is a member and to the labour officer in charge of the area where the employee is employed.

Where the employee is not a member of a trade union, the notice should be given to the employee personally in writing and also to the labour officer;

The notice must state the reasons for, and the extent of, the intended redundancy.

The employer is required to have consultation with the employee or their trade union with an aim of finding a way out of the intended redundancy or the best way of implementing it, if it is inevitable. Such consultations must be genuine rather than merely going through the motions to comply with the law.

In the case of Kenya Airways Limited Vs Aviation Allied Workers Union Kenya & 3 Others [2014] eKLR (Civil Appeal No. 46 of 2013), the court stated that the purpose of the notice under section 40(1)(a) and (b) of the Employment Act is to elicit consultation the between the parties. Consultation gives the parties an opportunity to consider “measures to be taken to avert or to minimize the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment”.

This is in line with Article 13 of Recommendation No. 166 of the International Labour Organisation (ILO), Convention No. 158-Termination of Employment Convention, 1982 which requires consultation between the employers and the employees or their representatives before termination of employment under redundancy. Article 41(1) of the Kenyan Constitution also guarantees the employee’s right to fair labour relations including the right to be notified of the intended redundancy and the reasons thereof and an opportunity to consult on the redundancy.

Step 2:         Criteria for Selection of Employee for Termination

In selection of the employees to be declared redundant, the employer must have due regard to the seniority in time, skill, ability and reliability of each employee in the group of employees affected by the retrenchment.

The selection criteria for identifying the employees to be retrenched must be objective and must not be based on discriminatory or subjective factors as such as membership to trade union, race, age, and gender among others. The selection criteria should be precise and documented and the employee scored on the basis of their seniority, skill, ability and reliability. The criteria listed in the Employment Act are not the only factors that an employer can consider. Any other objective criteria may be considered.

In the case of Kenya Plantation and Agricultural Workers’ Union Vs Harvest Limited [2014] eKLR, the court stated on the issue of the criteria for selection of employees to be declared redundant, that “the idea of last in first out satisfies the seniority criterion.  As far as skill, ability and reliability are concerned, it is the opinion of the court that the employer must have, prior to the redundancy exercise, instituted objective qualifications for skill, ability and reliability attached to the office held by the workers against which the skills, ability and reliability possessed by the individual workers targeted in the redundancy will be scored or measured against. The employer, in the court’s opinion, must demonstrate the objective score sheet and the ranking of the targeted employees against that score sheet with respect to the selection factors set out in section 40(1) (c) of the Act failing which, it is difficult to establish compliance with the section.  The court also holds that the selection parameters in section 40(1) (c) are not in alternative so that in a redundancy process, the employer must establish that all the parameters have been taken into account and in an objective manner.  It is the opinion of the court that the employer enjoys the discretion to place given weights on each of the parameters but none can be applied in exclusion of the others.

The employer should not place the employee at a disadvantage for being or not being a member of the trade union. Where there is a CBA setting out the terminal benefits payable on redundancy, the benefits should apply equally to all employees.

Step 3:         Payment of Dues

An employee who is declared redundant is entitled to payment as follows;

• Salary up to the date of termination on account of redundancy;
• Accrued leave days paid off in cash;
• One month’s notice or one month’s wages in lieu of notice; and
• Severance pay at the rate of not less than fifteen days’ pay for each completed year of service.

Where there exists a CBA between the employer and the trade union with better terms than those provided in the Act, the employee shall be entitled to be paid the higher rates in the CBA.

The employer must demonstrate that he has complied with the conditions of section 40 of the Act and the burden of proving that the procedure for declaring an employee redundant as set out in section 40 of the Act has been complied with is on the employer.

• Introduction

Probation period is the period of time at the start of an employment when an employer evaluates and assesses the ability, competence and suitability of the employee for the role. Probation period can also be seen as a coaching or training opportunity where the new recruit learns the new job.

The employee on probation may be dismissed with little notice if they’re found to be unsuitable for the role allowing the employer to take action more quickly if they feel that the new recruit is not suitable for the role.

• What is a Probationary Contract?

The Employment Act defines a probationary contract as a contract of employment, which is of not more than twelve months’ duration or part thereof, is in writing and expressly states that it is for a probationary period.

• Probationary Period

The probationary period should 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. A probationary contract should not exceed twelve months.

A probationary contract can only be extended on grounds of non-performance or unsuitability for the job. The court in the case of Wilson Simiyu Vs Chairman B.O.G Friends School Bokoli & Another (2016) (eKLR) stated that extension of a probationary period can only be for grounds of non-performance or non-suitability for the job, both of which cannot be presumed, but must be brought to the attention of the employee who must agree to the extension as provided under section 42 of the Employment Act.

• Termination of a Probationary Contract

A probationary contract may be terminated by giving not less than seven days’ notice of termination, or by payment of seven days’ wages in lieu of notice. The employer does not have to give reasons for the termination.

• Employment Benefits during Probationary Period

During the probation period, person is not entitled to the usual legal rights and benefits of employment such as leave and off days.

However, statutory deductions such as the National Social Security Fund (NSSF), National Hospital Insurance Fund (NHIF) and Pay as You Earn (PAYE) should be deducted and remitted.

 

The following are the powers of the Labour Officer as proscribed by Section 35 of the Labour Institutions Act:

• To require the production of wage sheets or other employment records kept by an employer, and records of payments made to outworkers by persons giving out work, and any other such records as are required by any labour law or wages order to be kept by employers, and to inspect and examine those sheets or records and copy any material part thereof;
• To require any person giving out work and any out-worker to give any information which is in that person’s power to give with respect to the names and addresses of the persons to whom the work is given or from whom the work is received and with respect to the payments to be made for the work;
• To inspect and copy any material part of any list of outworkers kept by an employer or other person giving out work to outworkers; and
• To examine, either alone or in the presence of any other person, with respect to any matter under Part VI of the Act, any person whom the labour officer has reasonable cause to believe to be or to have been an employee to whom a wages order applies or applied or the employer of any such person or a servant or agent of the employer employed in the employer’s business, and to require every such person to be so examined and to sign a declaration of the truth of the matters in respect of which he is so examined: Provided that no person shall be required to give any information that incriminates him;
• At all reasonable times, enter, inspect and examine any land or building, other structure, whether permanent or temporary on or in which the labour officer has reasonable ground to believe that an employee is residing or is employed, and may make such inquiry, inspection or examination as may be necessary to enable the labour officer to determine whether the provisions of the Act or any other labour law are being complied with;
• At all reasonable times, require an employer to produce an employee employed by him and a document relating to the employment of any employee, and may require an employee to produce any document relating to the employee’s employment;
• To examine and make copies of a register, record, book or other document relating or appearing to relate to employment, and seize any register, record, book or other document which he has reasonable ground to believe to be or to contain evidence of an offence under the Act or any other labour law;
• To enter, inspect and examine all latrines and other sanitary arrangement or water supply;
• To inspect and examine all food provided or appearing to be provided for the employees, and take samples thereof in duplicate, in the presence of the employer or the employers representative which samples shall be sealed and one sample so sealed shall be left with the employer;
• To order that all buildings and premises where employees are housed or employed be kept in a clean and sanitary condition;
• To institute proceedings in respect of any contravention of any provision of the Act or for any offence committed by an employer under the Act or any other labour law;
• To institute an appeal on behalf of any employee in any civil proceedings by an employee against his employer in respect of any matter, thing or cause of action arising out of or in the course of the employment, whether such civil proceedings are contemplated or instituted by the employee himself or are civil proceedings ordered by a magistrate;
• To take into custody and return to his parent or guardian, or other person whom he is satisfied has for the time being the charge of or control over him, any child whom he reasonably suspects to be employed in contravention of any of the provisions of the law relating to employment.

Performance evaluation are not mandatory and are largely dependent on the internal policies of a company as opposed to strict provisions of employment law. The relevant legal provisions that govern this as well as any other administrative processes are the laws relating to fair administration of justice and more specifically:

• The Constitution
• Article 41 (1): Every person has the right to fair labour practices.
• Article 47:

Fair administrative action

• Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
• If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
• Article 50 (1):

Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

• Employment Act

Section 5(2): An employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice. Employment policies are defined in this section to include performance evaluation systems, promotion, transfer, demotion, termination of employment on disciplinary measures.

Employers are encouraged to formulate effective performance evaluation tools and to incorporate best human resource management practices that best suit their firms. Such evaluation tools must be understandable by the employees and implemented in a manner that adheres to the highlighted legal provisions. Many firms employ the use of peer review mechanisms, self-evaluation mechanisms and quantitative mechanisms which would include evaluating sales made by an employee or clients acquired and critical incident feedback amongst other mechanisms.

The employer must endeavour to train the employees on the performance evaluation tool to ensure that the employee is not measured against a yardstick he is not aware of or does not adequately understood. The purpose and anticipated results of the evaluation exercise must also be disclosed to the employee to ensure that the employee has full knowledge of any adverse action that may be taken against them as a result of the evaluation exercise. The evaluation tool must clearly:

• set the specific goals to be achieved or lay out the employer’s expectations and performance standards to be achieved;
• assign the relevant member of staff undertaking the evaluation;
• detail the time, place and nature of evaluation to provide the employee with ample time to prepare for the exercise;
• provide the consequences resulting from the employee’s performance; and
• allow for a conversation between the employee and the evaluator of performance.

Below are some steps employers can follow when setting up employee performance evaluation tools:

• Develop an evaluation form.
• Identify performance measures.
• Set guidelines for feedback.
• Create disciplinary and termination procedures.
• Set an evaluation schedule.

It is highly advisable for all employers to seek the advice of an employment lawyer after developing the tool to ensure that there are no illegalities that may leave the employer vulnerable to a suit from an employee evaluated under the tool. Bearing in mind that some employee’s may challenge the results of an evaluation tool especially in cases where it may lead to a termination of the employment contract or other disciplinary measure, the employer must be careful to ensure that the evaluation tool is drafted in clear and concise language leaving little room for ambiguity or misinterpretation. In the case Banking Insurance & Finance Union (Kenya) v Barclays Bank of Kenya Ltd & another [2016] eKLR, the court held that “an employer has the prerogative to set out management tools in support of productivity within its business. However, such tools should not negate agreed terms and conditions of employment between the parties with reference to the Recognition Agreement or Collective Bargaining Agreement and or replace the set legal requirements that address termination of employment due to poor performance or any other ground”.

This exercise should also be undertaken in a confidential manner so as to avoid any backlash that may result on the employee or any fall out depending on the information disclosed during the exercise. The same should also be done in an environment that ensures that the employees are not victimized. Records of such exercises should also be maintained by the employer and employee as the same may be used to evidence a trend especially in cases of disciplinary actions against employees.

Evaluation of employees helps an employer to receive feedback from one’s staff and in various instances is used to reward or otherwise monitor the performance of employees. Actions like promotions and salary increments when undertaken pursuant to evaluation of performance are readily accepted and eliminates any antagonism that would have otherwise arisen if the actions were undertaken in an arbitrary manner.

 

Use of Forced Labour

Section 4 of the Employment Act prohibits the use of forced labour and makes it an offence for anyone to use or assist another person in recruiting, trafficking or using forced labour. An employer who commits this offence is liable upon conviction, to pay a maximum fine of five hundred thousand shillings or to imprisonment for a maximum of two years or both. The law however exempts from forced labour any work/service by virtue of compulsory military service, except where it involves recruitment of children. The law also exempts any work or service which is a normal civic obligation of any Kenyan citizen, work done as a consequence of a conviction in a court of law, work or service demanded in cases of an emergency and minor communal services performed by the members of the community in the direct interest of their community, provided the members of the community or their representatives are consulted.

Discrimination

Employee discrimination is an offence under the Employment Act. Section 5 prohibits discrimination based on race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status.

It also prohibits discrimination in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment. For this offence, the employer bears the burden of proving that the discrimination did not take place, and that the discrimination is not based on any of the grounds listed above.

Failure to give statements prescribed by law

Failure to give an employee a statement of employment particulars, a statement of disciplinary rules and changes and an itemized pay statement is an offence under Section 16(4) of the Employment Act. The offence attracts, on conviction, a maximum fine of one hundred thousand shillings or imprisonment for a maximum of two years or both.

Failure to pay an employee

Under Section 18, it is an offence for an employer to willfully fail to make payment of or to tender the wages earned or payable to an employee or failing to tender the payment in a manner prescribed by law. On conviction, such an employer is liable to a maximum fine of one hundred thousand shillings or to imprisonment for a maximum of two years or both.

 Failure to pay deducted amounts.

An employer is allowed to make statutory deductions and remit them on behalf of the employee. Failure to pay such deducted amounts in accordance with the period and other requirements specified in the law, agreement, court order or arbitration is an offence under Section 19 of the Employment Act, which attracts on conviction, a maximum fine of one hundred thousand shillings or imprisonment for a maximum of two years, or both.

 Failure to pay wrongfully deducted amounts

Under Section 25 of the Employment Act, failing to pay an employee amounts wrongfully deducted from his remuneration is an offence and an employer who commits this offence is liable to a maximum fine of one hundred thousand shillings or to imprisonment for a maximum of two years or both on conviction. Additionally, such an employer is required to repay any remuneration wrongfully withheld or wrongfully deducted from the employee’s wages.

 Refusal to give a certificate of service

Under Section 51 of the Employment Act, it is an offence for an employer to willfully fail or neglect to give an employee a certificate of service or include a false statement in the certificate of service. Such an employer is liable on conviction, to a maximum fine of one hundred thousand shillings or to imprisonment for a maximum of six months or both.

Employment by written contract for a child aged between 13 and 16 years

Under Section 57 of the Act, it is an offence for a person to employ a child aged between thirteen and sixteen years or to cause such a child to be employed by a written contract. The offence is punishable by a maximum fine of one hundred thousand shillings or imprisonment for a maximum of six months or both. This also applies to parents, guardians or people in charge of the child and is subject to the provisions of the Industrial Training Act relating to contracts of apprenticeship for children of the 13-16 age bracket.

Employment of a child

Under Section 64, it is an offence for a person to employ, engage, or use a child in an industrial undertaking in contravention of the Act or use a child in any activity that is considered worst form of child labour. Such a person, on conviction is liable to a maximum fine of two hundred thousand shillings or to imprisonment for a maximum of twelve months or both. It is a defence if the accused person proves that he genuinely believed that the child was above the age limit.

Making false entries in employment records

Under Section 75 of the Act, it is an offence for a person to knowingly make false entries into records required to be kept under the Employment Act, or to knowingly produce such false entries to an authorised officer. On conviction such a person is liable to a maximum fine of one hundred thousand shillings or imprisonment for a maximum of six months or both.

 Failure to provide employment management information to the Director of Employment.

Under Section 76 of the Act, an employer who employs twenty-five employees or more is required to notify the Director of employment when a vacancy arises and when an employee is terminated. Failure to provide this information constitutes an offence, which attracts a maximum fine of one hundred thousand shillings or imprisonment for a maximum of six months or both.

Prompting a foreign informal employment contract.

It is an offence to induce a person to go abroad under informal contract or to employ or knowingly help in the employment of a person with the intention that when he is employed, that person shall go outside Kenya. It is also an offence to induce or attempt to induce an employee to go outside Kenya. On conviction, this offence attracts a maximum fine of two hundred thousand shillings or imprisonment for a maximum of six months or both.

Human Resource (HR) Managers participate in the identification and development of the organization’s strategies. Participating in the organization planning allows them to gain profound understanding of the organizational activities needed to aid in sustainable growth of the company.

The obligations of HR managers in a company are as below: –

1. Develop and implement HR strategies and initiatives aligned with the overall business strategy.

HR managers are tasked with creation of goals to help meet key business objectives. They are involved in determining the organization’s long-term objectives and establishing the goals necessary to achieve them. They conduct in-depth analysis of current and anticipated conditions that may affect the company’s ability to achieve its mission.

2. Oversee the recruitment, selection and hiring process

HR managers who monitor the recruitment process of the company. They are tasked with hiring responsible employees who can invest their skills and abilities in the overall development of the company. It is essential to have a knowledgeable and responsible HR manager because without resourceful manpower the company cannot move in the right direction of success.

HR managers also draw up, negotiate, and administer labor contracts that cover issues such as grievances, wages, benefits, and union and management practices.

HR managers defining roles in the organization or assisting their client define roles in their business to avoid duplication of duties. Defining roles helps in accountability and performance evaluation.

3. Bridge management and employee relations by addressing demands, grievances or other issues

HR managers handle labor complaints between employees and management, and they coordinate grievance procedures.

4. Training and training programs

Employee training and development includes new hire orientation, leadership training and professional development. HR managers conduct periodic needs assessments to determine when training is necessary, and the type of training necessary to improve performance and productivity. They examine employee performance records to identify areas where employees could improve through job skills training or employee development, such as seminars or workshops on leadership techniques.

They also play an integral role in implementing employee development strategy and succession planning based on training and professional development. Succession planning draws on the manager’s knowledge of employee development, training and future business needs to devise career tracks for employees who demonstrate the aptitude and desire for upward mobility.

5. Organization structure and performance

HR managers are tasked with building organizational structure. They help in laying the foundation for the organization. They participate to form different pillars in an organization that is responsible for its development. They develop different strategies to meet the goals of the organization and contribute their support to all the departments of their company. HR managers should dedicate their existence by developing ideas to improve the company’s performance.

6. Formulation and implementation of policies

HR managers develop and update policies to govern the work environment. They keep track of whether the implemented policies are effective, and if not, take necessary action to ensure they are efficient. The policies they develop include HR policy and code of conduct, sexual harassment policy, anti-corruption and bribery policy, data protection policy, maternity and paternity policy among others.

7. Rewards and Recognition

It is a human resource manager’s key task to recognize their employees and reward them for their performance and contribution to the organization. According to their grading or rating, they will collect the information from the department managers and recognize the employees as per their performance. They make sure that this process underlies with organizational policies.

8. Employee support and Welfare

It is the duty of HR managers to ensure that there is a conducive work environment for the employees. They should nurture a positive work environment. HR managers act as a medium of communication between the management and employees. They should inform employees of their rights. They should conduct regular surveys on employee satisfaction and improve on areas pointed out by employees.

In a unionized organization, HR managers may be tasked with negotiating collective bargaining agreements, developing management response to union organizing campaigns and interpretation of labour union contract issues.

9. Effective Employee Relations

HR managers have the ultimate responsibility for preserving the employer-employee relationship through effective employee relations strategies. An effective employee relations strategy contains specific steps for ensuring the overall well-being of employees. It also ensures that employees have a safe working environment, free from discrimination and harassment.

10. Ensuring statutory and regulatory compliance

HR managers are tasked with ensuring that a company has complied with the set statutory and regulatory requirements. To this end, they should keep abreast with laws, regulations and policies that govern the operation of the company. They can seek the assistance of professionals such as financial and legal experts.

11. Adherence to work ethics and professionalism

HR managers are required to observe strict adherence to work ethics and code of conduct. They should avoid negative work practices such as discrimination, bias in decision making, nepotism and tribalism in discharge of their professional functions.

HR managers should not participate in activities that put them in conflict with the interests company and the business of the company. They should also not engage in activities that are contrary to those that they are registered as human resource professionals.

12. Custodian for company documents

HR managers are the custodians of extremely crucial company documents such as registration documents, contracts, strategies, financial documents and employee information. They should keep the documents confidential during and after their subsistence in the company, unless authorised or required to disclose the information by the company and the law.

 

1. To repeal the Employment Act Cap 226, declare and define the fundamental rights of employees;
2. To provide for basic conditions of employment of employees;
3. To regulate employment of children and to provide for matters connected thereto.

Employment Relationship & Contracts

All Contracts of Service are to be governed by the Employment Act, 2007 (Section 7). Provisions of the Act apply to both oral and written contracts (Section 8).

Contracts to be in writing if: –

• It is for a period of, or that amounts to, three (3) or more months;
• It provides for the performance of specified work which cannot be accomplished within a period of, or that amounts to, three or more months;

It is the duty of employer to reduce the contract into writing. Signification by the employee of acceptance of contract is by signing or imprint of finger and witnessed by another person other than the employer (Section 9).

Employment Contracts Particulars (Section 10)

The details required include: –

• The name, age, sex and permanent address of the employee;
• Name of employer, job description, commencement date, place of work and hours of work;
• Form and duration of the contract;
• Remuneration scale and rate including calculation method and payment intervals;
• Other particulars include; leave entitlement, public holidays, sick leave, pensions and pension schemes, length of notice and any existing CBA which affect the employee;
• Any assignment outside Kenya for more than one month –the terms, currency of benefits and terms on return.

Employment Changes

All changes to contracts of service must be in writing. The employment records are to be maintained for 5 years after termination of employment. The burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer.

Disciplinary Policy (Section 12)

Where an employer employs at least 50 employees, the employer must provide written disciplinary policy and procedure.

• Employer to set out an appeal system;
• Avail rules or make accessible the Collective Bargaining Agreement;
• Display statement of employee’s rights.

Exclusion from Application of the Employment Act, 2007 (Section 3)

• Armed Forces or Reserve
• Kenya Police, Kenya Prisons Service, Administrative Police
• National Youth Service
• An employer and employer’s dependants if the latter are the only employees in a family undertaking

Any persons excluded by the Minister after consultation with the National Labour Board, taking into account international instruments.

Any persons excluded by the Minister because their employment terms and conditions are governed by special arrangements which are similar or better than the Act’s provisions.

 

The Employment Act, the Labour Institutions Act 2007 and Wage Regulations constitute minimum statutory standards. An Employer cannot offer, and an Employee cannot legally accept, and be bound by an offer, of terms and conditions of service, below the statutory minimum standards.

Section 26 of the Employment Act provides that where the terms and conditions of a contract of service are regulated by any regulations, as agreed in any collective agreement or contract between the parties or enacted by any other written law, decreed by any judgment award or order of the Industrial Court are more favourable to an employee than the terms provided in Part V and Part VI of the Act, then such favourable terms and conditions of service shall apply.

• Working hours

Section 27 of the Employment Act provides that an employer shall regulate the working hours of each employee in accordance with the provisions of the Act and any other written law. Notwithstanding the foregoing an employee shall be entitled to at least one rest day in every period of seven days.

The Employment Act does not specifically set out a maximum limit on working hours. Limits on working hours are instead regulated on an industry-by-industry basis (i.e. general workers, agricultural etc.), and are set out in the various regulation of wages orders (the Wage Orders). A number of wages orders have been gazetted that regulate different working hour requirements for different industries. Flexible arrangements on working hours are possible provided the maximum number of hours is not surpassed.

Order 5 (1) (2) of the Regulation of Wages (General) Order (the General Order), which regulates general workers (who are a majority of the workforce), provides that the normal working hours should not be more than 52 hours spread over six days a week, and not more than 60 hours of work per week for a person employed on night work.

Order 5 (3) of the General Order further provides that no person under the age of 16 years is required to work for more than six hours in any day. Additionally, persons under the age of 18 years can only work as interns for training purposes. Where an employee works for more than the maximum number of hours, payment of overtime is required to be made.

Order 7 of the General Order provides that every employee shall be entitled to one whole rest day in each week. An employer and his employee may, by mutual consent, agree to the deferment of the employee’s rest day and the rest day so deferred may be taken by the employee on a subsequent day or may, subject to a maximum accumulation of fourteen such rest days at any one time, be accumulated and taken, as leave with full pay in addition to the employee’s entitlement to annual leave with full pay.

The weekly rest day of a person under the age of sixteen years shall not be so deferred.

There are no specific working hours or other terms specifically required for part-time workers. Other than their hours of work, all other rights and obligations of the employee that apply to full-time contracts apply to them.

• Overtime

Overtime is regulated in the same way that the maximum number of hours is regulated: on an industry-by-industry basis. Order 5 (1) (2) of the General Order limits normal working hours to 52 hours per week for day workers and 60 hours a week for night workers, meaning that any time worked beyond these limits will amount to overtime. There is, however, a limit to overtime. Overtime worked, together with the normal working hours per week, should not exceed 144 hours for employees engaged in night work. Overtime for all other adult employees in any period of two consecutive weeks should not exceed 116 hours.

Order 6 (1) (a) (b) of the General Order provides that overtime is payable at the following rates: for time worked in excess of the normal number of hours per week, 1.5 times the normal hourly rate, and for time worked on the employee’s normal rest day or public holiday, twice the normal hourly rate.

The Order provides that in calculating payments for overtime, the basic hourly rate shall, where the employees are not employed by the hour, be deemed to be not less than 1/225 of the employee’s basic minimum monthly wage.

• Keeping records

Section 48(1) as read with section 53(1) of the Labour Institutions Act require employers to keep records for 3 years after the date of last entry thereof with respect to minimum rates of remuneration or conditions of employment established in a wages order.

• Remuneration

Section 48(1)(b) of the Labour Institutions Act states where a contract of employment provides for less remuneration than the statutory minimum remuneration, remuneration and conditions of employment established by the Wages Order shall be inserted in the contract, in substitution of those terms.

• Allowances

Order 10 provides for Acting allowance where an employee is required to work for a period of not less than one month in an occupation or grade for which the basic minimum wage prescribed under paragraph 3 is higher than the basic wage normally earned by the employee. The employee shall be paid an acting allowance at a rate not less than the difference between that higher basic minimum wage and his basic wage.

Order 14 provides for Safari allowance for an employee who is required to work away from his principal area of employment. The subsistence and accommodation allowance payable shall cease to be payable to an employee after thirty consecutive days’ absence on duty from his principal area of employment and thereafter the employee shall be treated as permanently transferred.