Constructive dismissal employment rights act kenya
Towards a fair hearing for all employees: a case of probationary employee's in kenya and the right to be heard prior to dismissal. Obiter [online]. ISSN X. An employer may require a newly hired employee to serve a reasonable period of probation to establish whether or not his or her performance is of an acceptable standard before permanently engaging the employee. Even so, the current provisions relating to termination of probationary employees under the Employment Act, EA remains a source of concern. Currently, an employer may terminate the employment of a probationary employee at will and without affording such employee an opportunity to be heard.
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- Constructive Dismissal and Practices in Kenya – Ong’anya Ombo Advocates
- Singapore’s Employment Act: The Top 6 Amendments
- PROPOSED LAW ON AUTOMATIC TRANSFER OF EMPLOYEES IN KENYA AND HOW IT WOULD FILL A MAJOR GAP
- What to do if you are unfairly dismissed
- Domestic Workers-The Law Rights and Responsibilities
- Joint ventures and human capital issues
- A resignation letter may be vitiated by rescission impairing an employer to act on the letter
Constructive Dismissal and Practices in Kenya – Ong’anya Ombo Advocates
This is the supreme law of the land and any laws inconsistent with the Constitution are null and void. The Employment Code Act governs the employer and employee relationship in Zambia and provides for the skills and labour advisory committees and their functions.
The Employment Code Act repealed and replaced the following Acts:. English common law and doctrines of equity are applicable in this jurisdiction. When Zambia gained independence in , it inherited the English legal system and certain pieces of English legislation are still applicable to Zambia through the English Law Extent of Application Act, Chapter 11, Volume 2, of the Laws of Zambia.
The statutes that were in force in England on 17 th August, , as well as the Northern Rhodesia Order in Council, and the British Acts Extension Act, Chapter 10, Volume 2 of the Laws of Zambia, which are statutes passed after 17 th August, , are contained in the schedule.
Decisions of Superior courts are binding on lower courts as they form part of the law. How are different types of worker distinguished? According to section 98 of the Employment Code Act, the Minister of Labour and Social Security may through a statutory instrument state the category of employees to be protected under the Act.
Other persons protected under the Employment Code Act include young children and young persons. These persons are protected in the following ways:. The Minimum Wages and Conditions of Employment statutory instruments prescribe for minimum benefits for protected employees. However, the Minimum Wages and Conditions of Employment statutory instruments do not apply to employees working for the Government of the Republic of Zambia, a local authority, employees in management and employees whose wages and conditions of employment are regulated through the process of collective bargaining, or employees with contracts of employment providing for conditions which are better than the prescribed minimum conditions.
It is imperative to note that both the Industrial and Labour Relations Act and the Employment Code Act do not cover the following persons:. The Minister of Labour and Social Security has the discretion to exempt any person or class of persons or trade, industry or undertaking from the provisions of the Employment Code Act and the Industrial and Labour Relations Act.
However, this can only be carried out after consultation with the Tripartite Consultative Labour Council. The different types of workers are distinguished by virtue of the legislation which establishes them.
If not, do employees have to be provided with specific information in writing? The Employment Code, under the provisions of section 22 1 , makes it mandatory for a contract of employment whose duration is for a period of six months or more to be in writing. However, oral contracts are recognised by section 18 of the Employment Code Act. With respect to employees under an oral contract of employment, the employer has a mandate to ensure that a record of the contract of employment is prepared and maintained.
This is provided for under section 18 of the Employment Code Act. The implied terms under common law are applicable provided they do not contravene the provisions of the Employment laws.
The Employment Code Act provides for some of the implied terms; for instance, an oral contract is presumed to be a contract for a period by which wages are calculated and where the wages are calculated by reference to any period of less than a day and in absence of an agreement to the contrary, the oral contract is deemed to be a daily contract.
Further, the Employment Code Act, under the provisions of section 21 1 , states that an oral contract for a period of one month will be deemed to have been extended for a further period of one month subject to the same terms and conditions. There is an implied term in the Employment Code regarding confirmation of an employee after a probation period: the Employment Code provides that where an employer does not notify the employee in writing of the confirmation, it will be presumed that the employee has been confirmed in the position from the date of the expiry of the probation period.
The Employment Code Act, under sections 33 to 48 Division 3. The Minimum Wages and Conditions of Employment statutory instruments, which apply to protected employees, also provide for the same. Does bargaining usually take place at company or industry level? The bargaining is undertaken at industrial level. The provisions of section 7 1 of the Industrial and Labour Relations Act make it mandatory for a trade union to be registered with the Commissioner within six months from the date of formation.
A trade union must possess a valid certificate of registration. The Industrial and Labour Relations Act does not wholly provide for the rights of trade unions. However, under section 5, the Industrial and Labour Relations Act provides for the rights of employees in a trade union.
The following are some of the rights exercised by employees in a trade union:. The Industrial and Labour Relations Act, under section 5 1 h , grants an employee the right not to do work normally carried out by an employee who is lawfully on strike or who is locked out, unless such work constitutes an essential service. Strikes are only lawful if they are resorted to after due process and only if they do not involve essential service. It should be noted that the right to strike is strictly limited to parties to the dispute.
This simply means that strikes over political affairs are not legitimate under the law. If so, what are the main rights and responsibilities of such bodies? In practice, what may be referred to as a works council is a works committee, which is set up by non-unionised employees, and the unionised employees form what are known as branch committees. If so, on what grounds is discrimination prohibited? Section 5 of the Employment Code places an obligation on the employer to promote equal opportunity in employment and eliminate discrimination in an undertaking.
Further, section 1 of the Industrial and Labour Relations Act prohibits an employer from terminating the services of an employee or imposing a penalty or disadvantage on an employee on the basis of race, sex, marital status, religion, political opinion, affiliation, tribal extraction or status.
James Matale S. As we said in the cases of Posts and Telecommunications Corporation Limited and Phiri 1 and Ngwira Vs Zambia National Insurance Brokers 2 that discrimination must come within the subject matter of section In the instant case however the respondent pleaded other grounds.
As stated in question 3. Discrimination may be said to be unlawful where an employer discriminates against a female employee on the grounds of her gender or marital status by denying her access to opportunities for promotion, training or any other benefits or facilities, or where the recruitment policies only privilege men despite their unsuccessful applications and interviews.
The Employment Code, under the provisions of section 95 1 , makes it mandatory for the employer to have an employment policy on harassment. Further, section A of the Penal Code Chapter 87, Volume 7 of the Laws of Zambia makes it an offence for any person to practise sexual harassment in a workplace or elsewhere on a child. There are no codified defences to a discrimination claim. However, the employer may plead any of the following defences to an alleged discrimination claim:.
Can employers settle claims before or after they are initiated? Employees belonging to a trade union may first take their complaint against the employer through a trade union representing them to an organisation representing employers, in the hope of settling the claims amicably. Section 2 of the Industrial and Labour Relations Act permits the employee to file a complaint within 30 days of the event which led to the discrimination before the High Court under the Industrial Relations Division.
The proviso to section 2 provides for an extension of the day period for a further three months, in order to allow the employee to exhaust all administration channels available. Employers are at liberty to settle claims at any time before trial.
The courts encourage the parties to settle the matter amicably through its mediation rules incorporated in its procedure rules. Salim Jack Phiri S. We entirely agree that there was a difference between the treatment of the persons involved, and, as a strict matter of language, the conduct amounted to discrimination.
However, the fact that one of the other parties was female and the other male makes it impossible to say that anybody was favoured or discriminated against because of his or her sex. With regard to social status, as we said in the case of Ngwira v. In this case there was no evidence that the standing in society of the respondent affected the situation one way or the other. When discrimination is referred to in the context of persons being wrongly discriminated against within the provisions of section it means discrimination only in respect of those matters which are referred to in the section.
Discrimination generally can never be a ground for finding that a person has been improperly dismissed, and could never give rise to an order of compensation or reinstatement under the section. We are satisfied in this case that there was no discrimination justifying the award of damages by the Industrial Relations Court and this ground of appeal succeeds.
Yes, atypical workers have additional protection such as: protection against dismissal connected with maternity leave, pursuant to the provisions of section 43 of the Employment Act; protection from harmful work, pursuant to the provisions of section 44 of the Employment Act; and protection of wages, pursuant to the provisions of section 79 of the Employment Act.
The Employment Laws do not have provisions with respect to whistleblowing. In the event of a multiple birth, the maternity leave will be extended for a further period of four weeks.
A female employee who remains in employment with the same employer for a period of 24 months preceding the beginning of the leave is entitled to full pay where the maternity benefits are not payable under the contract. The provisions of section 41 4 of the Employment Code Act states that where a female employee has more than one employer or third-party scheme from which the employee is entitled to claim maternity benefits, an employer who pays the maternity benefit is entitled to recover from the other employer or third-party scheme, as a civil debt:.
On expiry of the maternity leave, the female employee is entitled to return to the job she had held before the maternity leave, or to a reasonably suitable job with terms and conditions not less favourable than those which had applied to her before the maternity leave.
This is provided for under section 41 7 of the Employment Code Act. Notwithstanding having taken her maternity leave, the female employee is entitled to annual leave as stipulated under section 41 10 of the Employment Code Act. Further, the female employee nursing her unweaned child is entitled, each working day, to two nursing breaks of 30 minutes each, or one nursing break for an hour.
It is imperative to state that the nursing break period shall be six months from the date of delivery, and the said break will not be deducted from the number of paid hours of the female employee. Paternity leave is available to an employee who remains in continuous employment with the same employer for a period of 12 months and such leave shall be for at least five continuous working days.
The leave should be taken within seven days of the birth of a child and a birth record of the child should be submitted to the employer. This is provided for under section 46 of the Employment Code Act. Section 40 1 of the Employment Code Act allows an employee who has worked for a period of six months or more to be entitled to leave of absence, referred to as family responsibility leave, with pay for a period not exceeding seven days in a calendar year to nurse a sick spouse, child or a dependant.
An employer, before granting this leave, may require the employee to produce a certificate from a medical doctor certifying that the spouse, child or dependant is sick and requires special attention.
As stated in question 4. As the lower Court observed, the sequence of events on record shows that the Appellants were notified of the impending consolidation by 25 th February, and the mechanisms of the transfers were adequately clarified.
There was evidence before the Court that an officer from the Ministry of Labour was present when the employees signed the transfer documents. The spirit of the law was complied with. How does a business sale affect collective agreements? How long does the process typically take and what are the sanctions for failing to inform and consult? No, they are not. Any variation to the terms and conditions of employment must be agreed between the employer and the employee. It will be considered to be a breach of contract fundamental breach where the employer unilaterally varies the contract.
OF , stated that:. How is the notice period determined? According to the provisions of section 53 1 of the Employment Code, an employee whose contract of employment is intended to be terminated is entitled to a period of notice or compensation in lieu of notice where the employee is not guilty of misconduct or any act which would trigger the employment relationship to terminate.
Furthermore, the Employment Code Act provides for default notice periods where the contract of employment does not provide for the same. However, while section 53 1 permits the employer to terminate the contract with compensation in lieu of notice, section 52 of the Employment Code Act restrains and prohibits an employer from invoking a termination clause without giving valid reasons and section 52 1 of the Employment Code Act provides as follows:.
In the case of Sarah Aliza Vekhnik V. Employers are no longer at liberty to invoke a termination clause and give notice without assigning reasons for the termination. What is of critical importance to note however is that the reason or reasons given must be substantiated.
Singapore’s Employment Act: The Top 6 Amendments
This article specifically covers the important factors that employers have to consider with regard to probation as well as the purpose thereof. The probationary status of an employee is only applicable to matters concerning work performance or competency, and therefore has no relevance to misconduct on the part of the employee during probation, nor can it be an easy way out for the employer on the basis of an arbitrary matter concerning the employee. All other matters or issues that arise besides work performance should be dealt with in the same way as in the case of any permanent employee. During the probation period the employee is still entitled to the full protection of labour laws. There is a process to follow and legal requirements to be met and the dismissal must be substantively and procedurally fair. The guidelines for dismissal for poor work performance in general are set out in the Code as follows:.
PROPOSED LAW ON AUTOMATIC TRANSFER OF EMPLOYEES IN KENYA AND HOW IT WOULD FILL A MAJOR GAP
Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy. On 30 March , the President H. The Act was one of 3 Employment Amendment Bills introduced in 1 , and it is the only one that has currently been passed into law. Section 29A has been introduced to the Employment Act which provides that where a child is to be placed in the continuous care and control of an applicant who is an employee under the Employment Act, the employee shall be entitled to 1 month's pre-adoptive leave with full pay. This varies from the proposals made under the Employment Amendment Bill, the Bill , which proposed that a female married employee be entitled to pre-adoption leave for a period of 3 months from the date of the placement of the child and that a male married employee be entitled to pre-adoption leave for a period of 2 weeks. The Act has now moved away from qualifying the pre-adoption leave based on sex and marital status, and also changed the pre-adoption leave period from 3 months for female married employees and 2 weeks for male married employees, to 1 month for both male and female employees regardless of one's marital status. This is a welcome change for prospective parents who wish to adopt children. However, a period of 1 month may be too short a period for parents who wish to adopt newborns or children below 3 months, given the care that would be needed for the child. For an employee to be eligible for pre-adoption leave, they are required to notify the employer in writing of the intention of the adoption society to place the child in their custody at least 14 days before the placement of the child the Notice.
What to do if you are unfairly dismissed
Constructive dismissal arises where an employer, in the absence of any justifiable reasons for dismissal, advances to create circumstances that will bring about a dismissal leading to the resignation of an employee in response to the fundamental breach of the contract by the employer. The primary concern in constructive dismissal in Courts is the conduct of the employer and not the conduct of the employee unless waiver, estoppel or acquiescence is in issue. Acquiescence operates to vitiate the claim. Examples of breach of a contract include; variation of the terms of employment contract unilaterally without consent or a reasonable negotiation, failure to pay, an unlawful deduction of wages or sexual harassment. An employee must establish the following for the Court to consider that a constructive dismissal has occurred: -.
Domestic Workers-The Law Rights and Responsibilities
If you feel you have been unfairly dismissed by your employer, you should try appealing under your employer's dismissal or disciplinary procedures. If this does not work, then you may be able to make an appeal to an Industrial Tribunal. Before making a formal complaint for unfair dismissal you should try and resolve the reasons for your dismissal with your employer. For further information you may wish to refer to the Code of Practice on Disciplinary and Grievance Procedures. You and your employer could try conciliation through the Labour Relations Agency where a specialist helps you sort out the problem. Another option is individual arbitration, where an independent arbitrator hears the case and makes a legally binding decision.
Joint ventures and human capital issues
One of the preliminary questions to be asked in relation to employees is whether the joint venture entity will employ the staff or whether staff will be seconded to the business by the parties involved, or provided by way of a long-term services arrangement. The decision as to whether to employ the staff directly may be driven by various factors: the tax consequences of hiring employees; the employment rights that the staff acquire in the relevant jurisdiction and other local law considerations such as the illegal supply of employees or illegal subcontracting of labour ; whether this has an effect on the benefits that the employees enjoy i. There may also be practical issues impacting whether or not the employees are employed or seconded: are they to work full time in the new venture or will they have residual duties for their old employer and be providing work to the joint venture on a part-time basis suggesting that secondment may be a better option? The decision on whether the workers will be employed by the joint venture entity or not may also be driven by the long term intention behind the joint venture. Is it anticipated that all staff will transfer to the joint venture in the long-term?
A resignation letter may be vitiated by rescission impairing an employer to act on the letter
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Terminating employment has become so common among professionals and employers in Kenya. This is an extract from the countless emails we receive on what the Kenya labour law says on termination. In this post, we are going to answer some of the frequently asked questions relating to termination of employment in Kenya. Here are some questions and answers on termination of employment. On what grounds can a contract of employment be terminated? An employment contract, as stipulated under the Employment Act, can be terminated in two ways.
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