A Peek at the Labor Laws: Know your Rights as an Employee

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Do you know your rights as a job seeker or an employee? Do you understand the parameters that define your status as an employee? Do you know what the labor laws says about you tenure in an organization? The height of unemployment in Kenya makes getting a job seem like a miracle that one should be too grateful for to ask about conditions and circumstances surrounding it, especially for the entry-level job seeker.

The law is a double-edged sword that protects your rights from getting infringed, and at the same time keeps you from infringing on the rights of your employer.

It is wise to note that this is not legal advice, but general direction and a wake-up call, that you should be aware of the legal parameters that direct and guard your status as an employee. This article covers the law’s direction on employment contracts, documentation required, wages and disengagement. We have sampled particulars that would be of interest, but you need to read and interpret (or get assisted by a lawyer on) the Labor Laws for further understanding of your rights.

Employment Contracts: The law allows for oral and written contracts within employment (Employment act 2007) as an agreement to be employed and serve for a specified period of time in Kenya. Part III Section 9 of the labor laws stresses that employment whose duration lasts for 3 months or more should be in writing. This means that you should ensure you sign a contract if you are starting a job that will go on for more than three months. Most employment tenures begin with a period of probation where the employer gauges your skill set in order to decide whether you are the right fit for their company.

Probation Period: Your contract should not set your probation period for more than six months. The period of probation may, however be extended to a maximum of one year, with the employee’s consent (Section 42 subsection 2). Probation should not go for more than a year (Section 43 subsection 3).

 

Contract Particulars: As an employee, you should be aware of what details to expect in your contract in order to ensure all loopholes that might result in infringement are covered. You should check to ensure that your contract has the following details and that they are as discussed in your negotiation discussion; the name, age, permanent address and sex of the employee; (b) the name of the employer; (c) the job description of the employment; (d) the date of commencement of the employment; (e) the form and duration of the contract; (f) the place of work; (g) the hours of work; (h) the remuneration, scale or rate of remuneration, the method of calculating that remuneration and details of any other benefits; (i) the intervals at which remuneration is paid; and (j) the date on which the employee’s period of continuous employment began, taking into account any employment with a previous employer which counts towards that period; and (k) any other prescribed matter {Section 10 subsection 2 }

In the case where an employee is working outside Kenya for more than a month, details on the contract should also include type of employment, currency to be used in remuneration, benefits of the employee and their contract duration out of the country.

This is why most employers give time when issuing employment contracts for employees to go read and understand before signing. It is understandable that you might be excited by the prospect of a new job, but it is prudent that you calm down and read through your contract to ensure that the above details are captured, as well as every other important things you agreed on with your would-be employer.

If there is a change in any of the details mentioned above, this change should be documented in a written statement highlighting the particular change, date, month and year of the change and it should be signed by the employee. This documentation should be documented within a month after the change occurs.

 

Protection of wages: Did you know that your employer should not pay your salary in a bar or a place where intoxicating substance is sold? The law states that wages should be paid in either cash, by cheque, sent to an employee’s bank account or a person duly authorized by the employee can collect their wages in the case of the employee’s absence (Section 17 sub-section 1). If payment is by cash, the wages should be paid at the employer’s premises or near the place of employment, depending on the agreement. Wages shall, however, not be paid in a place where liquor or other intoxicating substance is sold and payment should be done on a working day, within working hours (Section 17 sub-sections 2,and 3)

 

 

Disengagement and Termination of work

A notice period or payment in lieu should be granted to the employer in the case where an employee wishes to leave employment. The notice period depends on the type of contract an employee is in (Section 35);

  • Daily basis contract (Casual employment): No notice period required from either party.
  • Probation: at least 7 days’ notice period or payment in lieu
  • Employment based on payment intervals less than 30 days (e.g weekly or fortnightly payment): 15 days’ notice should be served or payment in lieu
  • Permanent employment with monthly payment intervals: 28-day notice or payment in lieu

Notice of termination goes both ways. If an employer fails to give an employee a notice of termination prior to disengagement, he/she should pay the employee the wages and benefits in accordance with the appropriate notice period.

Except in cases of redundancy and summary dismissal, an employer should clearly explain to an employee the reason for their termination, and in a language the employee can understand. The notice too should be written by the employer in a language easily understood by the employee.

You should also be aware that as an employee, you have a right to challenge a termination, where you feel it’s unlawful or unfair. You may lodge a complaint with the labor office and your case will be heard in the Industrial Court. In such an instant, the employer should prove that the termination in question was lawful and that it followed due process.

 

In Conclusion:

As mentioned above, this article has no legal authority, but is meant to highlight key important aspects that most employees go through their work life ignorant about. Know your rights as an employee. Ignorance is no defense and what you don’t know is no protection either. Unscrupulous employers may decide to take advantage of your ignorant status and infringe on your rights.

 

We are discussing about the above topic in our forum! Join the discussion now!

 

 

Mueke Katwa
I have two years experience in Business Support which covers Human Resource as a function; and a lifelong passion in creative writing.
 

135 COMMENTS

  1. Thanks BM team for an insightful article. Kindly highlight also on issue of service and/ or gratuity for an employee upon leaving employment. Many employers are unwilling to pay what is rightful belongs to employees in terminal dues.

  2. Good article. Most people fear challenging their terminations because they see themselves as mosquitoes and their companies as giants/elephants. Is it costly to challenge a termination in a court of law i.e. in terms of legal fees. Please expound on this.

    • Hi Jared,
      Thank You for your inquiry.
      We would like to advise that you seek first, second and even third opinions from your connections. check with your professional connections in the law sector and ask someone with a legal background to check into the details of your case to ensure it is foolproof and that it is strong.

      We wish you all the best in this.

      ^DM

  3. I terminated on a seven day notice,however I have not received my terminal dues two months down the line.kindly advice.

    • Hi Anthony,
      Thank you for your inquiry. More background information on your situation is needed to give a concrete answer. notice period should be given in accordance to the employment contract assigned, as stated in the article. On the due owed, follow up with your previous employer, then seek legal council if the expected feedback is not given on the same.

      ^DM

  4. Thank you so much for this reminder, some employers dont pay terminal benefits after terminating employee, the only pay 2 months salary and tell you they will help you incase the person wants letter for job ie reference.

  5. The piece is quite enlightening particularly on the rights of employees.good job post more and more educative articles.

    • Hi Erick,
      Thank you for the feedback.
      We endeavor to bring our readers relevant and practical tips.
      Stay tuned for more enlightening articles.

      ^TM

  6. Thank you for the information given above. Please advise also on maternity issues because some employers dismiss mothers who become pregnant before the probation period is over. Some employers also fail to give maternity leave to their employees

    • Hi Kaigongi,

      The law requires employers to support mothers during pregnancy and after childbirth.Pregnant women are supposed to be given equal opportunities at the work place…for ladies who become pregnant during their probation period,they may be allowed to complete their probation period after they resume work after their maternity

      Female employees are entitled to 3 months maternity leave(maternity leave begins immediately after delivery) with full pay(this does not affect their annual leave)

      ^DM

  7. such an eye opener,kindly post something to do with service/gratuity pay,is an employee entitled to get the service pay afta termination?thanks

    • Hi Saida,
      Thank you for the feedback.. much appreciated.
      We will do as per your request and keep you updated just keep it here.

      ^TM

  8. Is there any term as service pay in Employment Act. and how does it work with employee’s leaving employment. whether summarily dismissed or Resigned.

    Thanks
    A.L

    • Hi Otieno,

      Thank you for your inquiry.
      Now people have different interpretation on service pay. Cap 35. 6 (c) Employment Act defines service pay as gratuity. This is at employers discretion or prior agreement with an employer when one resigns. This means that situations are different. Find out what yours is first before taking action.

      ^DM

  9. I have worked for my institution and I have not been able to go my entitled leave days whenever I apply its denied without a solid reason. What should I do and the employer is advising employees to take or the days will be forfeited? Or can they pay me if they don’t want me to go and how will I be paid are there any laws governing this.

    • Hi Ambrose,
      Thank you for your inquiry.
      Cap 28 states that every permanent employees is entitled to annual leave of a minimum of 21 working days after every twelve consecutive months of service. Leave should not be forfeited but should be redeemed in cash or carried forward not later than eighteen months from the end of the leave earning period.
      Kindly address the issue with your employer.
      All the best.

      ^DM

  10. Its very enlightening. I would like to know the procedure one would follow to ensure that you are served with contract letter. Coz for me I was told verbally.when I request them they say its their normal way. Kindly help.

    • Hi Felix,
      You need to know that Cap 8. of Employment Act provides for oral and written contracts. This means that both oral and written contracts are permitted. Written contracts are however recommended to avoid ambiguity. You will need to follow up with the company (or HR) for a written contract. Just try and talk to your employer and explain your concerns.

      ^DM

    • Thanks for the feedback Godfrey.
      We value your support and readership.
      Keep it Brighter Monday for more inspiring articles.

      ^TM

  11. Thank you so much BM, very enlightening.
    Many employers don’t know their rights and end up mistreated by unscrupulous employees and this is so unfair.
    Kindly post about termination pay, what one is supposed to be payed whether he quit job or the employer terminated his/her contract.
    Thanks once again.

    • Hallo Joan,
      Thank you very much for writing to us.
      We will do as per your request and keep you updated.
      Keep sharing your sentiments to us.

      ^TM

  12. SGR is giving people termination without no good reasons I wish to discuss that

  13. How long should one take to sue if she feels he was victimized for no good reason.Any lawyer in the discusion to help a friend

    • Hi Mark,
      Thank you for your inquiry.
      However your question not very clear, but the maximum amount of time one should take to sue is up to 3 years in case wrongful termination of employment. We recommended consult with lawyer immediately after victimization.

      ^DM

  14. Advise on a scenario where an employee tenders a resignation but with a short while before the employer reacts to it (a day), the employee rescinds the same. Can the employer accept or refuse this rescind?

    • Hi Oscar,
      An employment contract is an agreement between the employer and the employee protected by the law. None of either parties can force the other to keep the contract alive after there is a lawful intention to terminate the contract. Whether or not the employee accepts the rescind is a personal decision determined by whether better conditions were part of the rescind, a counter offer, or anything other binding aspect etc. But understand that the employer has no legal mandate to unlawfully hold back an employee.You also need to clearly understand the background of the situation.

      ^DM

  15. I’ll like to know, what I should do in my case, where as a casual employee working for about 10 months.. I was terminated without being clearly told about the reasons for dismissal.
    Upon my request for a recommendation letter from the manager, the answer was no… Suspecting that I might sue for unfair dismissal.. What should I do?

    • Hi Farouq,
      Thank you for your inquiry.
      The employment contract(Cap 51) requires the employer to provide a certificate of service upon termination of his employment, unless the employment has continued for a period of less than four consecutive weeks. This applies to permanent employees.
      They need to define their terms of employment clearly since 10 months is too long for casual employment (Cap 37). We advise that you seek legal counsel because the background of your case needs to be understood before a solution is found.

      All the best.

      ^DM

    • Thanks Arnold,
      Keep it Brighter Monday for more tips, advice and career guidance.

      ^TM

    • You’re welcome Debbie.
      We highly appreciate your support.
      Keep reading our articles for more insights.

      ^TM

    • You’re welcome Emily.
      Your feedback is highly appreciated, continue to read our articles for more insight.

      ^TM

    • You’re welcome Ally and we appreciates your sentiments.
      Keep it Brighter Monday for more enlightening articles.

      ^TM

    • You’re Welcome Elly,
      We appreciate your participation.
      Keep it here for more edifying articles.

      ^TM

  16. What if you have signed a contract stating that you will give 90 days notice but the employer can only give 30 days. Is it bidding? Can you only give the 30 days?

    • Hi Maurice,

      All employment contracts are drafted and clauses on termination are standard-if the notice period is specified,it should apply to both parties and the number of days is normally the same.Contracts where the termination notice is different for employees and employers should cause the employee to seek clarification before signing the contract.

      ^DM

  17. been wondering why am I still on contract a year down the line I think now is the right time to land My fist on simeone

    • Hi Abel,
      We would strongly advise against the fist-landing resolve.
      Please understand that probation is what shouldn’t go for more than a year. There are companies that hire on contract basis with a clear statement saying when they are renewable. Just take it up with your employer and understand the terms behind your employment. Is the contract on renewable terms? Were you aware that it was a 1-year, 2-year or any other stated terms? read your documentation carefully and get legal assistance before meeting your boss to help with the clarification needed.

      ^DM

  18. Thank you for this article. The challenge i have observed so far is that most employees do not want to give notice neither do they pay in lieu of the notice.

    • Hi Milcah
      Thank you for the feedback.
      We endeavor to bring our readers relevant and practical tips.
      Keep it Brighter Monday for more insightful articles.

      ^TM

  19. What can someone do if he goes up to a year without any written contract and the employer keeps on saying the contracts are being processed?

    • Hi Joe,
      The law allows for both oral and written contracts. Written contracts are preferred to take care of any ambiguity that may arise and as a standard form of reference in case of issues. Generally employees on full time basis should be given written contracts not later than two months from the commencement date of employment. Where your employer has given you a verbal contract, you can request for a written one. Key word here is request, because oral contracts also hold.

      ^DM

  20. Hi great..should I use my leave days as part of notice period. If I was to give 30days and I have 15leave days can I count 15days and add 15 pending leave days?

    Thanks

    • Hi Loise,

      Yes.This is allowed and happens all the time especially when staff leave one employment and have to join the new place immediately. In any case, the employer should pay your final dues in accordance to the number of leave days that are still pending.

      ^DM

    • Hi Maggie,
      Thanks a lot for your readership and support.
      Keep it brighter Monday your career partner.

      ^TM

    • Hi Rahab,

      Thank you for your inquiry.
      The norm is that one should lodge a complain within reasonable time and this should be between 1 to 3 months from the time of termination.

      ^DM

  21. I seek to know more about an appointment letter. What details should be included in an appointment letter?

    • Hi Steve,
      Thank you fro writting to us.
      An appointment letter is an official letter written either by the immediate superior or by the hierarchical superior to an individual who has been found eligible for the job advertised or applied for. The Letter of Appointment comes into play after a series of hiring procedures have been followed by the organization to eliminate most applicants for the job and finding that one suitable candidate eligible for the profile. The important points to consider while drafting one is:
      -should clearly give the designation for which the individual is being hired
      -The Terms and Conditions under which the hiring has been done should also be clearly mentioned.
      -The letter should be addressed to that one particular individual whose name, address, etc should be clearly mentioned to avoid misuse of the document
      -Information which needs to be emphasized should be typed in ‘bold’
      -It should not be a hand written letter but a typed one on the company letter head
      -It should be in duplicate – one to be given to the new employee and the second one to be signed by the employee and duly returned to then be handed over the HR department.
      Feel free to write to us if you need further clarification.

      ^TM

  22. Brighter Monday..thank you for this great info. Many employees do not know their rights in our country. Asante sana.

    • You’re welcome Bernadette.
      We are glad you are enlightened.
      Keep it brighter Monday for more enlightening articles.

      ^TM

  23. Good Labour Education .. thumbs up BrighterMonday, Most of many have no idea on their obligations to employer and visavis.

    • Hi Nathan
      Thank you for sharing your sentiments.
      We highly appreciate your engagement.
      Keep reading our articles for more insights.

      ^TM

  24. wow,you know what,this new restaurant by the name ‘newscafe’ just hires and fires people as they wish.i am the latest victim.i am not the first nor the last.something needs to be done realy quick

    • Hi Angelic,

      Thank you for sharing your experience. We totally understand how frustrating this must be for you and anyone who has been through this. The good thing is, now you have been informed and have information, which is very necessary for situations like this. Understanding your rights around the work place so you are not exploited unfairly is key. You can now have a new beginning. Start advancing now, create your brightermonday account now and begin sending applications to other opportunities as well.

  25. I am in situations of the same where my employer wants to deertament my employment with no good reason, what can I do…?

    • Hi Tito,
      How long have you been in the job? Did you sign a contract? What does it say? What your contract says is the key determinant of your next course of action. You should therefore get legal counsel on the same.

      ^DM

  26. I have got a friend who is employed as a volunteer with a small token end month at county level office without an assistant and he has never gone for his annual leave two years down the line and no compensation has been done to him. Kindly advice on annual leave right.

    • Hi Wanjala,
      Thanks for writing to us.
      It could be that your friend never applied or even if he did and the manager or supervisor refused and the issue was never forwarded to the relevant person like Hr then your friend will have himself to blame because it is his right. So our advice is to tell your friend not to with hold his legal right, if his contract says that he has leave rights then he should stand firm and go for what is writefully his.
      ^TM

  27. Hi,

    What happens if one received an appointment letter for a position but is put under probation for 3 months then after the end of probation no communication is given about your performance or continuation of work. On the 4th month, you are given a termination letter with performance issues being the reason. Note that the employee has never been given a warning letter concerning their performance nor called for a hearing. Is it Legal?

    • Hi Ruth,

      The probation period is a time when employers want to ascertain that the candidate they hired is really their ideal and that you are what you said you are during the interview. In most companies, the employer or new employee can terminate the contract during probation without giving the other party an explanation. This means that the employer in this case was within their right. The employee should critically review the situation and discover where they might have gone wrong to avoid a repeat of the same in another company.

      ^DM

  28. I have been on contract for four years and never employed on permanent basis.Is it fair for a company to employ someone for that long on contract basis without permanent approval?

    • Hi Karimi,
      It depends on the company and their terms. If on the contract, it was not indicated and from your end you didn’t take the initiative to inquire it , then you only have your self to blame however this should not with hold you to follow up. Please do and make sure that its at the right time like during the appraisals. Feel free to write to us if you have more questions.

      ^TM

  29. Hello am Lucy and have been employed for the last two years. Come March this year I was terminated without a notice I was not paid my salary for the last five months. The contract was oral. No NHIF, NSSF or PAYE has ever been made since I was paid in cash. Please help

  30. I have been employed for an year without a contract and on my second year that’s when am been issued with a contract is this legal?

    • Hi Sylviah,

      A contract might take 2 forms:
      1. Verbal: A contract that was orally agreed upon
      2. Written: A contract that is documented and literary referenceable

      Thus, for the first year of your employment, the employer might have been relying on the verbal arrangement which you had during the earlier stages of recruitment.

      What you need to ensure is that your written contract should have terms that match the ones which were postulated on the verbal contract.

      ^EK

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