KITUO CHA SHERIA BLOG

Are you employed or looking for employment? Then this is for you!

All you need to know about your labour rights!

You may watch your labour rights explained Haki Vlogs Series HERE>>

Termination of Labour

https://www.youtube.com/watch?v=n0EPwe3csqg

https://www.youtube.com/watch?v=l5ptiNo_DzU

• An employer is required to give reason of termination to the worker. If the employer fails to do this, the termination will be considered unfair.
• Before terminating the employment of an employee or summarily dismissing an employee, the employer should hear and consider any explanations or reasons which the employee may give.

Reasons for Termination

For specific reasons

• The employee is incapable of performing the job
•  After receiving a final warning letter, the employee continues with misconduct or indiscipline
• The employee suffers from prolonged illness that makes him/her unable to perform his/her normal duties

Summary Dismissal

An employee may be summarily dismissed for gross misconduct. Gross misconduct includes:

• Absence from the workplace without permission
• Being drunk at the workplace
• Neglecting to perform any assigned work
• Use of abusive language or behaviour in the workplace
• Failing to obey a lawful and proper command that is within the employee’s scope of work
• Arrested for a crime that can lands the employee in jail and is not released within 14 days
• Committing a criminal offense against the employer or his/her property
• Summary dismissal takes place without a termination notice. It is immediate.

Redundancy

• This means the loss of employment where the services of an employee are no longer needed
• Before declaring an employee redundant, the employer must meet the following conditions:

The employer must notify the trade union if the employee belongs to one and the labour office in that area. In the notification, which is given one month before, the employer must include the reasons for the redundancy.

If the employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer;

Before declaring an employee redundant, the employer has to consider the work experience, ability, job group and reliability of the employee

• The employer should give the employee one month notice or one month’s salary in place of notice
• The employer should pay for the remaining leave days in cash
• The employer should pay the employee severance pay of 15 days salary for every year worked

Termination Notice

If you are paid daily – either the employer or the employee can terminate the contract at the end of any day without notice.

If you are paid periodically at intervals less than a month e.g every 2 weeks or 3 weeks – either the employer or employee can terminate the contract by giving notice in writing equivalent to the intervals of payment. So if you are paid every 2 weeks, give a 2 week notice in writing of termination of employment.

If you are paid at intervals of one month or exceeding one month – either the employer or employee can give a 28-day notice in writing of termination of employment.

However, if you have a contract that clearly states when your services end or the period needed to give a termination notice for your contract – then you should follow what your contract states.

If an employee who receives notice of termination is not able to understand the notice, the employer should orally explain the notice to the employee in a language the employee understands. The employee should have another employee or union representative of his/her choice present during this explanation.

If an employee or employer terminates a contract without notice, then the following happens:

• Employer- must pay the employee what he/she would have earned during the notice period. e.g. If you are fired without notice, your employer must pay you one month full salary
• Employee- if you decide to end your contract without giving notice to your employer – then you will pay your employer what he/she would have paid you during the notice period. e.g. If you leave without notice, you must pay your employer one month full salary

Grievance Procedure and Institutions to approach

https://www.youtube.com/watch?v=3q6Ng9t2A9M

• If an employee is not a member of a trade union, he/she should present their complaint or grievance to the immediate supervisor.
• If there is no action taken, the employee should set an appointment with management.
• If the matter remains unresolved, then the employee should file a complaint at the nearest labour office.
• However sometimes the employee is forced to go straight to the labour office or the Industrial Court.
• If an employee has been dismissed unfairly, he /she should present a complaint to a labour office within 3 months of the date of dismissal.
• The labour officer will give an opportunity to both the employer and employee to give their side of the story and give recommendations on how to settle the dispute.
• The employee also has a right to go to the Industrial Court to present his complaint. If the complaint is because of a contractual agreement, the complaint should be filed in court within 6 years. If it is because of injury at work, then the complaint should be filed within 3 years.
• The employee must be able to show that he/she was unfairly terminated and the employer must be able to show the justification for termination.
• An employee under probation or who has been summarily dismissed while under probation cannot complain at the labour office or at the Industrial Court.

NOTE: At the Industrial Court you do not need an advocate to represent you.  You can be represented by a trade union representative or you can appear in person ( self-represent). You can also hire an advocate if you want.

Remedies for wrongful dismissal and unfair termination

• Where there was no notice given, the employee is entitled to the salary he/she would have earned had he/she been given notice
• Where an employee is dismissed before the contract is over and the contract was such that the employee gets paid at the end of the contract and after completing his/her services, the employee is entitled to:-

1. payment for work done until the time he/she was dismissed
2. payment for losses incurred as a result of the dismissal

• payment for losses arising between the date of dismissal and the date of expiry of the notice period

1. money he/she would have earned had notice been given

Where an employee is unfairly dismissed, he/she may:

1. be reinstated and continues to work like as if he/she was never dismissed
2. not be returned to his/her original position but may be given similar or suitable work and be paid the same wages (re-engaged)

Before any recommendations are given, the labour officer or Industrial Court consider the following:

• the wishes of the employee
• the circumstances in which the termination took place, including if the employee caused or contributed to the termination
• if it is practical for the employee to be reinstated or re-engaged
• the employee’s length of service with the employer
• the reasonable expectation of the employee as to the length of time for which his/her employment might have continued had he or she not been terminated.
• the opportunities available to the employee for securing similar or suitable employment with another employer
• the value of any severance payable by law
• the right of the employee to claim for any unpaid wages or expenses
• any expenses reasonably incurred by the employee as a consequence of the termination
• any conduct of the employee which to any extent caused or contributed to the termination
•  any compensation, including ex gratia payment paid by the employer and received by the employee.

Sexual Harassment

https://www.youtube.com/watch?v=1wHdBmnGdXU

An employee is sexually harassed if the employer or a 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.

The sexual request may contain:

• promise of preferential treatment in employment e.g if you have sex with me, I will give you a promotion
• Threat of harmful or negative treatment in employment e.g if you do not let me touch your buttocks, I will ensure that you do not go on leave or I will make your life here a living hell
• Threat about the present or future employment status of the employee e.g if you do not kiss me now, I will fire you
• uses language whether written or spoken of a sexual nature
• shows physical behaviour of a sexual nature that is unwelcome or offensive and which affects employment, job performance or job satisfaction.

An employer who employs twenty or more employees should have a sexual harassment policy at the workplace.

Sexual Harassment Policy

This Policy will contain:

• Definition of sexual Harassment
• A statement explaining that;
• every employee is entitled to employment that is free of sexual harassment
• the employer shall take steps to ensure that no employee is subjected to sexual harassment;

• the employer shall take disciplinary measures against any person guilty of sexual harassment
• how complaints of sexual harassment may be brought to the attention of the employer
• the employer will not disclose the name of the complainant or the circumstances related to the complaint except during investigations or if the employee wants to take disciplinary action

Judgement

Anyone found guilty of sexual harassment will be imprisonment for not less than three years or will have to pay a fine of not less than one hundred thousand shillings or both imprisonment and payment of a fine.

For more information on your labour rights write to info@kituochasheria.or.ke mhaki@kituochasheria.or.ke or SMS 0700777333

Kituo cha Sheria

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