LESSON 1 - When this happens, the judicial decision becomes a precedent

TOPIC: CONCEPTUALIZING LABOUR LAW: ITS MEANING, PURPOSE that will bind subsequent subordinate courts when addressing
AND FORMS similar disputes.
What is Labour Law? - Such precedents can then be thought of as a source of law
- A body of rules intended to regulate various aspects of the labour including employment law. Example: In Teachers Service
market. Commission (TSC) v Kenya Union of Teachers (KNUT) & 3 Others
[2015] eKLR), the court held that advise by SRC under Article
How do the rules arise? 230(4)(b) of the Constitution is binding and that SRC has a role to
play in the final input in collective bargaining agreements on
- Unlike other laws, employment law arises in various ways:
matters relating to remuneration and benefits of public officers,
 Legislation by Parliament.
including teachers. The Unions had contested this interpretation
- Parliament may in exercise of its constitutional mandate pass
before the ELRC and the ELRC held that the SRC had no role in
laws to regulate the employment sector. Examples: the
fixing teacher’s salaries. The CA reversed this finding.
Employment Act 2007, the Labour Institutions Act 2007, the
- In effect, the CA’s interpretation of the law that a
Labour Relations Act, 2007 etc.
recommendation by the SRC on remuneration of teachers is
 Through administrative action outside Parliament.
binding then clearly demarcates the applicability of the law in this
- Sometimes, bodies other than the Legislature may be responsible
regard.
for generating rules which have the force of law in the
- Other courts bound to apply the law on the role of the SRC in this
employment sector.
context. ( to interpret the SRC advise as binding and not
- These then become sources of employment law. Examples:
persuasive)
sections 46, 47 and 48 of the Labour Institutions Act. The Cabinet
Secretary for Labour can issue a Wage Order specifying minimum
 Constitution
terms and conditions of service for employees. Employers and
- This is another source of employment law particularly in Kenya
employees bound by this order. Failure to comply with it is an
where we have constitutionalized employment/labour
offence. The provisions of the Wage Order supersede the
rights.(Blurring of initial divide between private and public law)
provisions of law if they set better terms than what the law
Examples: art 27 on equality and freedom from
provides.( concept of floor/foundation and improvements on it)
discrimination has application to labour relations (see
section 5 of Employment Act). It also provides for the 2/3
 Judicial Precedent
gender rule in appointive positions. Art 41 provides for
- Courts do not make law.
various rights; the right to fair labour practices, the right
- However, they interpret and define parameters for application of
to fair remuneration, the right to reasonable working
some legal provisions.
conditions, the right to join and form trade unions and
- In doing this, they may sometimes make interpretations which
go on strikes, the right to join employers’ associations
may be thought of as making law through clarifying the scope of
and effect lockouts etc.
a legal provision.
 Art 47-right to fair admin action Purposes of Labour Law
 International Labour Law Instruments
- These are ILO conventions. They are a number. Once a country - It serves a variety of purposes. These include:-
ratifies the conventions, they apply as law. See art 2(5) and (6) of  Protection of workers
Constitution. All pieces of legislation at international level are a - Historically, employees have been assumed to be the weaker
source of law in Kenya once ratified. parties in employment relations.
Examples of Conventions ratified by Kenya include: Equal - Left to their own devises, employers are likely to manipulate
Remuneration for Equal Work of Equal Value-1951; Forced employees to their own advantage.
Labour Convention-1930; Workers’ Representatives - The law seeks to ensure that this is not permitted.
Convention 1971 etc. - Law seeks to ensure there is balance of power in the
employment relation by cushioning employees.
 Collective Bargaining Agreements (CBAs) - This ensures that employment is undertaken in a manner
- These agreements are the product of negotiations between that respects the dignity of employees.
employers and or employers’ representatives on the one - Example: section 6 of Employment Act protects employees
part and employees’ representatives (Trade Unions) on the from sexual exploitation by employers; sections 17 to 25
other part. protect wages of employees from being, inter alia, unfairly
- Once registered they become binding on the parties. In deducted by employers; section 40 prohibits employers from
Kenya for instance, CBAs are binding once registered at the terminating employees on grounds of redundancy unless
Employment and Labour Relations court (ELRC). certain prerequisites of law are met. Art 41 of Constitution
- The instruments become reference points for the parties that protects the rights to a fair wage and the right to join a trade
are bound by them. union in order to empower an employee to bargain with the
- Thus, they become a source of labour law. employer from some level ground regarding terms and
conditions of work.
 Other Internally Generated Work Rules  Protection of employers
- Examples are: employee workbooks and rules setting out - Employment law is also keen to ensure that the interests of
what employees need to do in the employment set up; the employer are protected. It does this both directly and
factory regulations; provisions in the contract of indirectly.
employment itself which address reporting time, Example: section 44 of Employment Act provides avenues to
remuneration, employee discipline etc. terminate employees for gross misconduct. Art 41 of
Constitution provides for the right by employers to also form
What then is unique about employment law in this regard? their own unions.
Indirect protection can be seen to flow from cushioning
- It is both: employees who in turn are motivated to be productive. This
 Internally generated. benefits the employer’s enterprise.
 And externally generated.  Promoting Social Stability in the Labour Sector
- The law seeks to limit opportunities for social strife in the - In 2007 for example, Kenya repealed the entire of its old
employment sector. labour law regime and replaced it with the current regime in
- Does so by setting up mechanisms through which disputes order to ensure it met the international law standards set by
are mutually addressed. the ILO.
- There are procedures for mediation, conciliation,
negotiations and court adjudications. CATEGORIES OF LABOUR LAW
- If well utilized, the mechanisms will limit tensions in the - Two main categories:-
labour sector and ensure development.  Individual Labour Law.
 Collective Labour Law.
 Contributes to General Economic Growth.
- When an enterprise does well, the economy is vibrant. INDIVIDUAL LABOUR LAW
- Employers and as well workers are able to inject their
- These are regulations that are concerned with contracts of
incomes into the economy.
labour inter-se.
- More jobs are generated by stable and growing enterprises
- They relate to individual contracts for provision of labour
thus absorbing more workers.
between an employee and an employer specifying an
- Workers benefit as well because their services are rewarded
employee’s rights and obligations under a contract of
in an even better manner.
employment.
- The parties to a well regulated labour contract therefore
enjoy a symbiotic relationship where the benefits go full COLLECTIVE LABOUR LAW
cycle.
- These laws deal with the relationship between the employer,
 To Standardize Labour Practices the trade unions, the employee and the government.(social
- Labour laws try to set standards that should apply uniformly partners)
across board. - They are the product of interactions between these various
- They prevent working conditions from being pushed below players in the labour market.
levels that society deems acceptable. - At common law, a contract of employment was treated like
-This is through placing restrictions on the contracting any other contracts which underscore the freedom of
partners’ freedom to contract on whatever terms they wish. contract.
- The laws set the floor below which the parties cannot - However, the reality was that in a contract of employment,
contract. the employer remained the dominant party.
- They for instance proscribe discrimination on based on sex. - To shield the worker from the disadvantage that arises from
- The international labour law regime through the ILO seeks his subordinated position in the labour contract, collective
to set uniform labour standards that will apply across labour law emerged.
member states to the ILO.
 - These set of laws, which are as a result of collective bargains This is a contract where a person is under actual employment for
or intervention by state, protect workers’ rights through provision of a service in return for a reward. i.e where the employee
imposed or negotiated terms not just by the employer and is employed on continuous basis under the employers supervision.
employee but as well the other third parties.
Section 2 of the E.A 2007, a contract of service is an agreement to
- Collective labour laws thus seek to protect:-
employ or serve as an employee for a period of time. The contract
a) Workers’ right to freely associate.
could be oral or in writing. It could be express or implied.
b) Workers’ right to collectively push for specified terms
and conditions of work. It is a contract that is personal in nature in the sense that an employee
- Collective labour laws also seek to deploy the law to is expected to execute duties assigned to him in person. - Everret
collectively set standards and conditions of work. Aviation Limited V Kenya Revenue Authority 2013

LESSON NO. 2 A contract of service/employment has been described as the

cornerstone of modern labour law. This is because it is this contract
CONTRACT OF EMPLOYMENT: ITS NATURE, FORM AND that employment law is concerned with (see section 7 of E.A).
CONTENT
Contract for Services xtics
1. NATURE OF LABOUR CONTRACT
a) Nature of Labour Contract 1.there is no actual employment within the meaning of the
- A labour contract is:- a juridical expression of a continuing social- employment law 2.even though there is provision of labour. 3.the
economic relationship Between two or more individuals in which service provider is hired to execute the works as a non-employee.
labour is provided in exchange for some other benefit, usually 4.the service provider is deemed to provide services to his/her
monetary. client.5.stands in the position of a self-employed person executing a
- Individuals needing some task performed can require another to certain task for another.
execute this task on their behalf and are rewarded mainly in
monetary terms. Kapa Oil Refineries Limited v KRA 2019
- The consumer of the labour service can elect to: hire an employee
Necessity of distinction between Contracts of Service and
to execute the works. Or hire a non-employee to do the work.
Contracts for Services
- Where a non-employee is hired to execute works, the relationship
that arises is one of independent contractor. 1.Employment law is only concerned with the employment contract
- A contract in which one is hired as an employee is also called ‘’a only i.e of service. 2. Independent contractors are governed by the
contract of service’’ while that in which the principal hires a non- ordinary contract law. Section 7 of the E.A ‘’No person shall be
employee to execute the works is called ‘’a contract for employed under a contract of service except in accordance with the
services’’. provisions of this Act’’

1. Liability in Civil Actions for Omissions and Commissions

Contract of Service Occurring in the Course of Work
Under the vicarious liability doctrine, an employer is liable for the How these two Contracts are to be distinguished in Practice
commissions or omissions by an employee that occur in the course of
duty should they occasion harm to a third party. So long as the -look at the actual relation between the parties as opposed to simply
employee was under his control and was executing work for the considering the name the parties have decided to assign the relation.
benefit of employer The task of determining whether a labour contract is one of employer-
employee or independent contractor normally rests with the court and
Rational: the employer has the right to exercise overall control over not the parties.The law has designed a number of tests for this purpose.
an employee while discharging his duties. See Bayley V Manchester These are as follows:-
Sheffield and Licdnshire Rly Co. [1873] “ Where a servant is acting
within the scope of his employment, and in so acting does something 1. The Degree of Control Test
negligent or wrongful, the employer is liable even though the
[act/omission] may be the very reverse of that which the servant was
actually directed to do.” a) Employer-employee Contract (Contract of Service)

A client:- is not vicariously liable for the omissions and commissions -the master has a greater degree of control over the servant.
of an independent contractor, while executing a task for the client. Collins VS Hertieldshire applied the test. The judge held that the test
Rational: client is not in law considered to have control over and does of whether one was a serving under a contract of service depended
not give specific directions to such contractor in the execution of the heavily on the degree to which the master could control and direct the
task at hand. Herman Nyangala Tsuma v Kenya Hospital execution of the task entrusted to the servant.
Association t/a the Nairobi Hospital & 2 Others [2012]eKLR. The master is able to direct the servant on:What to do; and How to do
2. Tax Obligations differ it.

Section 37 of the ITA- employer to deduct PAYE from an employee The employee strictly complies with the employer’s instructions
at source and remit it to the Commissioner for Income Tax. Failure regarding: When to work, Where to work; How to work.
which the employer is liable to fine or jail term

For independent contractor tax levied is called withholding tax. b) Independent Contractor Contract (Contract for Services)
Everret Aviation Limited V Kenya Revenue Authority 2013 -the hirer has limited control over the person hired to provide a service.
3. Protections extended by Law to Contracts of Service do not The service provider:-1. Is not instructed in detail about how to
apply to Independent Contractors these include protection from provide the service in question.2. Uses his own methods to provide the
unfair dismissal, the right to housing, annual and sick leave, service in question. 3.Does not rely on the hirer for training of either
medical care. While an employer is by law obligated to ensure himself or his personnel.4.Determines the hours and time to
these rights to employees are honoured and protected, no similar work.5.Deploys his own tools to execute his work.
duty arises towards an independent contractor. 2. The integration test
The degree of control test failed to stand the test of time in determining Ready Mixed Concrete (South East) vs Ministry of Pension and
the distinction between the two contracts. With advancement in National Insurance 1968 the court set the following parameters for
technology, employees are more skilled as they specialize in aspects this test:-1.There must be an obligation on one to provide labour in
of the labour market that the employer has no idea about. return for a wage,2. There must be sufficient control of the employee
by the employer. For example, although a worker may be skilled and
Thus, the employer can no longer be said to: direct or control what requiring no directions by his employer on how to undertake his
these employees do in absolute terms. This realization led to a shift of duties, the employer still exercises some control on him in terms of
focus to how integrated one is with the workplace. If one is so where the employee will work and for how many hours.3.The
integrated at his workplace as to become an integral part of the provisions of the contract between the parties must not be inconsistent
production chain, he is an employee. with it being a contract of service.
-Stevenson, Jordan and Harrison vs Mc Dounald and Evans 1952 1 4. Mutuality of obligation test
TRL where Lord Denning observed that a determination of
employment depended more on the degree of integration of an In an employment contract the employer has an obligation:- 1. to
individual in an organization. provide a continuous flow of work to the employee and; 2.the
employee has an obligation to complete the continuous work. This
- In contract of service the employee’s work is done as an integral part suggests that the relationship must enable a continuous flow of
of the business, whereas under a contract for service an independent assignments without interruptions.
contractor is hired to complete agreed tasks that are not integrated into
the business but is only accessory to it. Conversely, in a contract for service he is:-1. only obliged to complete
the agreed task and; 2.thereafter his obligation ceases. However, the
- An independent contractor is not considered as integrated into the independent contractor could be assigned another task after
work system. His relationship with the hirer often ends with the completion of the initial task so long as there is break. The element of
accomplishment of his task. Usually, an independent contractor does non- continuous intermittent breaks in between jobs will most likely
not rely on the personnel of the hirer but will hire his own distinct constitute a labour contract into one of contract for services.
workforce from those working in the establishment.
Basically it is a relationship organized around the completion of a
Weakness: how about contracts to independent contractors that are once-off piece of work. (Consider challenge posed by current trends
undertaken on regular basis and in quick succession and they relate to where some organizations hire independent contractors on a near
works that lie at the core of an organization? KPLC and Rural continuous basis for very long durations- Example KPLC rural
Electrification for instance? Are such contractors not integral in the electrification program which is subcontracted).
production chain of the company? If they are then how do we
distinguish them from regular employees of KPLC? FORM OF CONTRACT OF EMPLOYMENT

3. The Mixed test a) Written or Oral-sec 8 E.A

This test integrates the first two tests It emphasizes both:the degree of It could take either form. The general rule that writing of contract is
control and; The level of integration a labour relationship creates. not a requirement for its validity applies. Unless the law demands.
A contract of employment:-1. Sec 9 E.A. Whose tenure is for 3 months d) Part-time Contracts of Service
and above must be in writing 2. sec 2 E.A. Probationary contracts must
be in writing The contract in writing should set out the particulars Part-time contract of service are those contracts under which the
demanded by section 10 of the E.A. employee works for less time than he would under a full-time contract
of employment. Part-time contracts of service are however regular
b) Fixed Term and Open Ended Contracts within the timeframe the contracts are to be executed and employees
enjoy near similar benefits of employment as full time employees.For
Contracts of service can be for a fixed term or for an unspecified instance, they are entitled to sick leave and holiday breaks.
duration. Fixed term contracts relate to work which is to be executed
over a fixed or definite term. The contracts lapse upon expiry of their If a part-time employee works for the same hours as a full time
term. E.g. Article 250 (6) (a) of the Constitution states that members employee, he will be entitled to claim overtime pay for any hours
of constitutional commissions can only serve for one term of 6 years worked outside the regular work hours.
and are not eligible for reappointment.
Although part-time employees enjoy near similar rights as their full-
A contract is open ended if it does not specify when it is to determine time counterparts, there are certain cases when they are not treated
e.g lecturer employed by Kabarak on pensionable basis. The E.A 2007 equally. Example: While full time employees are entitled to pension
does not expressly categorize contracts of service in as either: fixed- benefits, part-time employees are not.
term or; Indeterminate. However, by implication it recognizes both
forms of contract. E.g. Section 39 provides that if the term of one’s e) Piece Rate Contracts of Service
contract ends while he/she is away from her station of work on work
related engagement, the employer shall extend the duration of such These contracts of service measure the employee’s entitlement to pay
contract as appropriate. This section recognizes that a contract of by:- 1.Reference to the unit of work given. 2.Not the duration one has
service in Kenya can be for a fixed term or indeterminate. Section 35 worked. Thus, employees are not paid upon the lapse of a fixed
provides for the manner in which to terminate a contract of service duration such every end month.They are paid upon completion of
through the issuance of notice specifically refers to how contracts of fixed outputs. Wilfred K Onyango v DHL Excel Supply Chain Kenya
service which make no reference to their lifespan should be Limited [2017] eKLR.
terminated. This section therefore recognizes open ended contracts of 5. CONTENT OF CONTRACT OF SERVICE
service in Kenya.
Section 10 of the Act requires that a written contract of service should
c) Temporary Contracts contain provisions addressing the following:- The names of the
casual employment contracts. Under these contracts, workers are on parties. Their addresses. The sex of the employee. Job description.
standby to work as required without fixed hours or attendance Date of commencement of employment. Form of contract. Duration
arrangements. The duration of the contract is for no more than 24 of contract. Place and hours of work. The remuneration, how it will be
hours per engagement (sec 2 ). They however enjoy some employment paid and methodology for its review. Details of other benefits under
rights. For instance, they are entitled to a safe work environment. the contract. Provisions as to other entitlements such as leave.
However, they may not claim a right to leave. Provisions as to notice period for ending contract.Any other relevant
matter.
LESSON 3. REMUNERATION AND OTHER RIGHTS/ There is no requirement that remuneration be paid at specific intervals.
ENTITLEMENTS AND DUTIES UNDER EMPLOYMENT However, it must be paid at agreed intervals but on a working day and
CONTRACTS during working hours. For instance, it may be calculated hourly, daily,
weekly or monthly.
I. REMUNERATION
d) In what form to be paid
a) Nature and Meaning
Salaries are generally to be remitted in legal tender, in cash, money
Remuneration is:- The consideration paid by the employer to the order or by cheque. However, section 2 of the E.A contemplates
employee, For the service rendered under a contract of service. It is payment in kind. However, the practice is to settle salaries in legal
the gross pay made by an employer to an employee and includes:- tender (Kenyan currency) as contemplated under section 17 of the E.A
1.The salary/wage. 2. Other payments such as bonuses, allowances and section 50 of the Labour Institutions Act.
and benefits such as medical cover.
e) Obligation to Provide Written Statement on
Contracts of employment are required to have clear stipulations on Remuneration
remuneration providing:- 1.The scale of remuneration and;2.The
manner for its review. Section 20 of the E.A requires that employees be supplied with a
written statement of their remuneration every time their salaries are
Remuneration is a fundamental term of the contract of employment paid. The statement should indicate: 1.The gross pay; 2.Particulars and
breach of which constitutes repudiation of the contract. amount of any deductions; and 3.Allowances. This is usually
contained in a pay slip.
b) Remuneration as a Protected Right
f)Quantum of Remuneration not to Fall below Minimum Wage
As a benefit under the contract of service, remuneration is protected.
Employers prohibited by law from:-1.Making deductions from it Salaries must either be:- Equal to the minimum wage set by the state
except as provided. 2. Reducing it unilaterally. As a consequence, a or; above the minimum wage set by the state. This is critical in
worker has a right to fair remuneration as contemplated under article ensuring that workers are able to lead a dignified life.
41 of the constitution.
Minimum wages are usually set by the Wage Councils established
Remuneration is recognized as a superior right. The essence is that it under the Labour Institutions Act and gazetted as Wage Orders by the
lies above other rights as against an employer’s property. E.g under Cabinet Secretary, Ministry of Labour.
section 17 (6) of the E.A, if there is execution of a decree against an
employer’s property, payments in satisfaction of such decree will only f) Reduction and Increment of Remuneration
be made after securing payment of any decrees for salaries of
employees covering a period of at least 6 months. Once fixed, it is not open to an employer to reduce remuneration of an
employee except by agreement of the parties. This is even when an
c) When Remuneration to be Paid employer is experiencing financial constraints. He/she cannot reduce
a worker’s wage without prior discussion and consensus. The
rationale for this lies in the fact that the quantum of salary is a term in I) Deductions from Wages
the contract of employment which cannot be varied unilaterally.
Unilateral reductions in remuneration constitute unfair labour practice Employers have no general right to make deductions from
that is prohibited under article 41 of the Constitution. remuneration of employees. Employers may only effect reductions to
an employee’s wage where:- 1.The law permits 2. The employee has
On the other hand an employer is entitled to freely adjust an agreed or;3 A court has sanctioned.
employee’s wage upwards. However, wage increments are dictated by
a series of factors including the need to ensure growth of the Deductions may cover the following:-
enterprise, creation of more opportunities for employment and fiscal
sustainability.  The workers’ contributions to any provident, pension, or other fund or
scheme approved by the Commissioner for Labour and agreed to by
g) Demotion and Wage Reduction the worker.
 Any amount wrongfully paid to an employee, as remuneration, in
A demotion is A permanent reassignment of an employee To a excess of what the worker is legitimately entitled to, from the
position lower than held by the employee previously; Where the employer.
employee has less responsibilities.  On the written authority of the worker, and for the time being in force,
collective agreement, wage determination, court order or arbitration
It could be due to:-Disciplinary action, Poor performance,
award.
Organizational restructuring. This devise is hardly used and must be
 Reasonable amount for any damage done to, or loss of, any property
resorted to very sparingly. Demotion can only be effected after due
of the employer occasioned by the willful default of the employee.
process in which the employee is fully heard. When found with a
 A day’s wages in respect of each working day for the whole of which
disciplinary issue warranting a dismissal, the employer may opt to
the employee, without leave or other lawful cause, absents himself
demote such an employee. Where this happens, the employee’s salary
from the premises of the employer or other place proper and appointed
will be accordingly revised downwards.
for the performance of his work.
Employment law in Kenya is silent on the question of unpaid leave.  An amount of any shortage of money arising through the negligence
As indicated earlier, a wage is a fundamental term of an employment or dishonesty of the employee whose contract of service provides
contract. An employer may not therefore unilaterally withhold or specifically or his being entrusted with the receipt, custody and
reduce it. Unpaid leave cannot therefore be unilaterally imposed in payment of money.
Kenya. Employees must be consulted and consent to it.  Any amount in which the employer has no direct or indirect beneficial
interest, and which the employee has requested the employer in
The challenge arises if the employee declines to proceed to unpaid writing to deduct from his wages.
leave. Here, the employee may precipitate a situation which may lead  An amount due and payable by the employee under and in accordance
to job loss through business closure. It is therefore important to explain with the terms of an agreement in writing, by way of repayment or part
to employees that the decision to place them on unpaid leave may repayment of a loan of money made to him/her by the employer, not
ultimately be in their best interest if it will ensure their employer’s exceeding 50% of the wages payable to that employee after the
business remains afloat. deduction of all such other amounts as may be due from him/her under
this section.
 Such other amounts as the Minister may prescribe. For example: state intervenes to ensure there is a fixed wage which is fair. The state
benefits in kind (such as housing, car, school fees among others) from must establish a wage policy that will enable this exercise.
employment income are taxable where their aggregate value exceeds
KES 36,000 per annum (Income Tax Act, section 5(2) (b)). Often, the reviews of minimum wages are done annually. In Kenya,
this is done by the Wages Council.
 Deductions must only be done with the employee’s full
k) Other Allowances
knowledge and involvement.
Employers are required to provide housing for employees. They can
 This is because an employee has a right to challenge any do this by providing either:- Actual housing within close proximity of
deductions he does not agree with. To enable him/her exercise this the work station or; House allowance in addition to the basic salary.
right, the employee must be privy to the deductions done. Employees may also be entitled to other allowances such as:- Leave
allowance; Travel allowance and; Baggage allowance.
 Deductions should usually not exceed 2/3 of one’s salary. The
logic is to ensure an employee retains sufficient funds on which to l) Equal Pay for Equal Work
live.
A fundamental consideration in the labour sector is the eradication of
 All deductions must be remitted to the intended bodies within the discrimination in all its forms. One of the significant areas in which
stipulated time. discrimination has always reared its head is in the area of pay for work
done with some employers paying employees differentially for similar
 Failure to remit may attract sanctions against the employer which work. To stem this form of unfair discrimination, it is a fundamental
include: Fines for failure to remit. Orders to refund the employee principle of both international and national law that employees be
the funds wrongly withheld.,Orders to pay the money to the equally remunerated for equal work.
intended beneficiary.
This principle is enshrined in section 5(5) of the E.A. It is also
j) Minimum Wage enshrined in the Equal Remuneration Convention of 1951 which
The law permits parties to a contract of employment to negotiate the Kenya ratified in May 2001.
terms of the relationship freely. This includes remuneration. However, Meaning of Principle of Equal Pay for Work of Equal Value
there are minimums below which the law will not permit. The essence
here is to ensure that employees:- are not exploited by the employers. The principle is not to be understood to require that people must be
Are able to lead a dignified life. engaged in the same work in order for them to receive equal pay.
Rather, it requires that the employer remunerates employees equally
In relation to remuneration, the law sets the floor by fixing the for work that is either:- The same; Or similar.Or different but of the
minimum wage. This is the very minimum wage guaranteed by law. same value.
It is that wage which a worker needs to meet the very basic
requirements of life. Minimum wages are often set in sectors where In determining what constitutes equal work, one considers:- The
employees may not be able to effectively negotiate for fair salaries content of the work;And not the job title. In measuring the sameness
either individually or through collective bargaining. As a result, the
of work, key indicators include the skill and levels of effort and This right has a constitutional foundation in article 41 of the
responsibility. Constitution 2010. The Constitution guarantees every worker the
right to form, belong and participate in the activities of a trade union.
Employers to Develop an Objective Evaluation System This right is further codified under sections 4 and 5 of the Labour
Relations Act.
Equal pay for equal work requires that the employer devises a system
of objective evaluation of work content in order to determine which Freedom of association provides essential means of improving
work fits in the a specific category. This informs the grading of jobs conditions of workers and ensuring industrial peace. It is only through
into groups. Most civil servants and employees in public institutions effective exercise of this right that the social partners in the labour
are often dealt with in terms of job groups for purposes of human sector are able to establish rules in areas such as working conditions
resource management. and wage setting.
m) The Salaries and Remuneration Commission Workers have the freedom to organize and join trade unions without
prior authorization. These unions are at the same time guaranteed
At the centre of the remuneration debate in the public sector is the independence by the law. The state has no right to interfere in their
SRC, a constitutional body. Its mandate is to:- 1.Set and regularly lawful activities.
review salaries and other benefits for state officers. 2. Advise county
and national governments on salaries and other benefits for all other Workers have the right to be elected to serve in the trade unions they
public servants. belong to without victimization. The employers have a right to form
employers’ associations in pursuit of their freedom of association.
The commission is critical in providing job evaluations in the public Employers however have a duty to ensure employees’ right to freedom
sector for purposes of implementing the equal pay for equal work of association is protected.
policy.
 Protection from discriminatory Practices.
1.Once an evaluation is undertaken by the SRC, public institutions
have to take its recommendations into consideration in addressing The law shield’s a worker from discrimination at the workplace on the
remuneration and other benefits in the public sector. 2. This affects the basis of factors such as his participation in trade unionism, sex,
process of collective bargaining as well. 3.However, the commission’s conditions such as HIV, political affiliation, race and colour, national
jurisdiction only extends to organizations whose remuneration is extraction, religion or social origin. Employees are entitled to equal
drawn from the Consolidated Fund. 4.As a consequence public bodies treatment and equal opportunities at the work place. This right
which are run for generation of income and which pay workers from goes beyond protection of those in actual employment to protection of
the income generated by them are not subject to the SRC evaluation those seeking employment. Thus, an employer should not decline to
process. hire a prospective employee on account of any of the prohibited
factors.
II. RIGHTS OF WORKERS/DUTIES OF
EMPLOYER At the same time employers must ensure employees get equal pay for
equal work of equal value. To enhance protection of the worker from
 Freedom of Association and Trade Unionism discrimination, the law has coined the requirement for security of
tenure of a job. This means that one’s job is generally secured and d) The Right to Rest, Work Hours and Prohibition of Forced
cannot be dismissed except as contemplated by law. Thus, one may Labour
not dismiss an employee merely because the employee is black or is
HIV positive. Section 5 of the E.A captures these general principles The law strictly regulates the amount of time one has to work. Every
on non-discrimination. The duty falls on the employer to ensure employer should regulate an employee’s work hours in accordance
discrimination is kept out of the work place. Section 5 however with the law. Section 27 All employees have a right to one day’s rest
permits positive discrimination on specified grounds every seven days

These include:- 1.Where it is intended to address imbalances caused A worker cannot be forced to undertake overtime work. Where an
by historical exclusion, 2.On grounds of national security. 3. When the employer desires to use the services of an employee outside eight
inherent requirements of the job leave the employer with little option working hours in a day, he must request the employee and adequately
but to hire in a manner that is prima facie discriminatory. compensate him. Any attempts to compel an employee to work outside
the recognized work hours will offend the principle against forced
An important principle in relation to positive discrimination is the two labour.
thirds gender rule in the Constitution 2010 which requires
implementation of equity of access by members of both genders to e) The Right to Leave
jobs in the public sector.
There are various forms of leave recognized by law. These include
 The Right to a Sexual-Harassment Free Environment annual leave, maternity leave and sick leave.An employee is entitled
to annual leave as of right. section 28 of the E.A.Every employee is
Employees are entitled as of right to a sexual-harassment free work entitled to at least 21 days of annual leave with full pay for every
environment. They are protected from sexual harassment at work and one year worked
can challenge any arbitrary discriminatory treatment visited upon
them in a bid to coerce or induce them into illicit sexual relations at Section 29 E.A Female employees are entitled to three months
work. maternity leave once they apply for it. Male employees on the other
hand are entitled to two weeks of paternity leave whenever their
Sexual harassment is deemed to occur when: 1.A promise of spouses deliver (section 29(8) of E.A).
preferential treatment in return for work related favours is given; 2.A
threat of detrimental action in relation to one’s employment unless The right to this leave does not affect one’s right to annual leave. Like
he/she gives in to sexual advances is issued and; 3. A threat about the annual leave, maternity leave comes with full pay. Once a mother’s
present or future employment status of the affected worker is made. maternity leave is over she is entitled to resume her work in the same
position.
Employers have a duty to formulate and issue a policy statement on
sexual harassment detailing, inter alia, commitment to the principle Sick leave is an entitlement to workers who have worked for at least
that every employee is entitled to employment that is free from sexual two consecutive months.The worker will be entitled to some pay as
harassment. regulated by section 30 of the E.A.

f) The Right Housing

Every employee has a right to be housed by his/ her employer. Under a) Duty to Work
section 31 of the E.A, an employer has a duty to provide employees
with reasonable housing at the employer’s cost. If the employer Employees are obligated to do the work that they were hired to do.
chooses to provide housing, then it must be within reasonable They must work according to their work schedule. Employees can
proximity of the employee’s work station. An employer can in the only refuse to do something if it is:- illegal or; a danger to their health
alternate provide the employee with house allowance. This allowance and safety. Conversely employers have a right to have employees
is in addition to the employee’s basic salary. discharge their functions as per their contracts of employment.

g) Right to Water b) Duty to be Loyal

An employer has a duty to provide employees with adequate amounts Employees must be loyal to their employers. They should avoid:-
of water. The water supply should be for use at work and at the Situations of conflict of interest with their employers and;Using the
worker’s residence where the employer has provided such employer’s confidential information personal gain. They must keep
accommodation. Under section 32 of the E.A, the water supplied employer’s information confidential. Conversely, an employer has a
must be wholesome meaning it should be of good quality. right to expect loyalty from his employee.

h) The Right to Food LESSON NO: 4

Only applies where the contract of employment obligates an employer LECUTRER: B M Manani
to supply the employee with food. In such case, the employee has a TOPIC: EMLPOYEE SAFETY AND LIABILITY
right to be supplied with adequate quantities of quality food for his OF EMPLOYER FOR EMPLOYEE
sustenance. This obligation however ceases where an employee ACT/OMISSIONS
absents himself from duty without permission.
I. EMPLOYER’S OBLIGATIONS TOWARDS THE
i) Right to Medical Attention EMPLOYEE’S SAFETY WHILE AT WORK
- The law obligates the employer to ensure the good health of
Every employee has a right to medical care at his employer’s employees while at work.
cost.However, the employer must be notified of the illness to be - This obligation is in two respects:-
obligated to attend to it.  Protection of employees from the risk of injury while
at work.
The right does not apply in certain circumstances such as:-1. Where  Protection of employees from exposure to an
the illness was contracted when the employee was absent from duty unhealthy work environment in order to prevent
without permission of the employer; 2.Where the government occurrence of occupational diseases.
provides free medical care and; 3.Where the treatment is covered - The obligation on the employer in this regard is premised both
under some insurance cover. in the:-
DUTIES OF EMPLOYEES/RIGHTS OF EMPLOYERS  Common law;
 Statute and;
 Contract of employment.
a) Common Law Duty of Care in relation to Employee’s  A natural or artificial person.
Safety while at Work  In direct or indirect control of the workplace.
- The law imposes a common law duty of care on employers to d) Converse Duty on Employees
ensure the safety of employees while at work. - The law (section 13 of the OSHA) imposes a converse duty on
- The duty of care imposed by common law seeks to prevent the employee to:-
these occurrences by requiring the employer to take all  Ensure his/her safety and health while at work.
reasonable steps to ensure a safe, clean and healthy work  Use protective equipment and clothing provided by
environment for its employees. the employer.
- Employees who suffer injury and or occupational diseases as  Comply with all safety and health procedures at
a result of failure by the employer to uphold the common law his/her workplace.
duty of care at their work stations are entitled to be - The law therefore recognizes that employees have a
compensated in damages by the employer. corresponding duty to ensure their own safety at work.
b) Statutory Duty to ensure Safety of Employees - Therefore, an employer accused of failure to ensure an
- The common law duty of care has been supplemented by employee’s safety at work can lawfully plead for contributory
statute as well. negligence against an employee who disregarded safety
- Now statute demands of an employer to ensure the safety of:- requirements at work.
 Employees; e) Particulars of Duty of Care
 Co-employees and;  Duty to ensure Safe Plant and Premises
 Non-employees - The employer must ensure plant (machinery) is safe for use
 from injury/occupational hazards occasioned while at by employees.
work or within the work premises. - This is to prevent:-
- In Kenya, the Occupational Safety and Health Act (Act No 15  Physical injury to employees using the plant.
of 2007(OSHA)) is of critical importance in this respect.  Exposure of employees to occupational hazards from
- It reiterates the duties of care an employer owes workers and unsafe plant.
visitors in a workplace in order to make the workplace safe - Work tools must be in a proper state of repair and order.
and healthy. - Machines must be serviceable.
c) Scope of Duty of Care - Dangerous machines must be secured
- The duty of care imposed by law on the employer to ensure - Premises must be generally safe and without hazardous
the safety of employees while at work is not absolute. emissions.
- The employer is only required to take reasonable steps to - Premises must have emergency exit and entry points.
ensure safety and health during execution of works and in the - Install firefighting equipment.
work premises. - Ensure proper ventilation of work areas.
- There is no strict liability imposed on the employer to prevent  Duty to ensure Safe Work System
occurrences beyond his human capacity to anticipate and - Ensure means by which works are to be executed are safe.
therefore prevent. - Provide the right tools for work.
- Duty of care applies whether employer be:-
- Not to improvise tools where this can occasion injury to  An employer is liable for an employee’s civil
workers. omissions/commissions which occasion
- Provide right methodologies for implementing work injury/damage/loss either to co-employees or
instructions. other 3rd parties and which have occurred in
 Ensure Competence of Staff the course of work.
- Workers to be properly trained and instructed to execute tasks.  However, this does not extend to liability for
- This will prevent them from:- loss/damage arising from criminal acts of an
 Injuring/dangerously exposing themselves to harm. employee.
 Injuring/dangerously exposing co-workers and other  On the other hand, the general rule is that a
3rd parties to hazardous work environment. client under a contract for services is not
- Employer to ensure proper supervision of workers. liable for either the civil or criminal wrongs
- Supervision ensures compliance with work rules and ensures of the independent contractor where those
proper directions are given to workers. acts/omissions result in harm to a 3rd party.
- This can help prevent injury and other damage arising from Liability for such acts of omission and or
execution of works. commission lies with the independent
II. EMPLOYER’S LIABILITY FOR ACTS AND contractor personally.
OMISSIONS OF EMPLOYEES - The law in addressing this concern treats contracts of service
1. Introduction distinctly from contracts for service.
- During the subsistence of the socio-economic relation
in which labour is provided in return for pay, the Instances When Liability may attach against an Employer for
providers of labour (workers):- Employee’s Acts/Omissions under Employment Contracts
 may engage in acts and or omissions which
may be harmful or injurious to; - An employer’s responsibility for the wrongs of the an
 3rd parties or; employee in the course of employment may broadly be
 Co-employees. discussed from two viewpoints:-
- The issue for concern here is whether the consumer  Responsibility for Civil Wrongs.
of the product of labour (employer/client as the case  Responsibility for Criminal Acts.
may be) can be held responsible for the acts and or a) Civil Wrongs
omissions of the supplier of labour - The general rule is that an employer will be held responsible
(employee/independent contractor as the case may for acts/omissions of an employee if the acts/omissions:-
be) which have occasioned such injury/damage/loss. a) Arise in the course of executing the employee’s duty.
- Again here, it becomes necessary to draw a b) Injure/cause damage to 3rd parties (including co-
distinction between contracts for services employees).
(independent contractors) and contracts of service i) Basis for Holding Employer Liable for
(employment contracts). Injury to Co-worker/3rd Party
- As a general rule:- - Liability in this case is premised on doctrine of vicarious
liability.
 - By it, the principal (employer) assumes liability for the  The employer was or had reasonable grounds to have
injury/damage occasioned by the wrongs of an agent if:- enabled him become aware of this disposition.
 The agent was acting on the general instructions of the  The employer failed at the time of hiring the employee to
principal (employer). conduct due diligence to ascertain the criminal disposition
 The wrong/injury occurred during the execution of such of the employee.
instructions by the agent (employee).  The employer having learned of the criminal disposition
 The principal (employer) was generally in control of of the employee after hiring him has retained him without
execution of the instructions by the agent (employee). character training to redeem such employee from his
b) Criminal Acts/Wrongs criminal disposition.
- General principle is that an employer is not liable for  The criminal act occasioning injury/damage to the co-
injury/damage/loss to 3rd parties flowing from criminal acts of employee or 3rd party has occurred during the time the
his/her employee(s). employee was executing his duties on behalf of the
Rationale:- employer.
 The acts are not within general scope of work instructions  See Teachers Service Commission v WJ & 5 others
by the employer. [2020] eKLR.
 The acts are not for the benefit of employer. (benefit III. LIABILITY UNDER CONTRACTS FOR
theory) SERVICES/INDEPENDENT CONTRACTORS
- Here, the consumer of the labour product does not, as a
Emerging Jurisprudence general rule, shoulder responsibility for the omissions and
commissions of the supplier of labour where those
- There has been a general shift in the law on absolute bar to acts/omissions occasion:
employers shouldering liability for injury/damage flowing  Injury/damage to the supplier of labour.
from criminal acts of their employees while in the course of  Injury/damage to 3rd parties.
duty. - The independent contractor of labour is generally responsible
- The law appears to be innovating to permit some window for his own safety and that of 3rd parties (see section 12 of
under which employers may be held responsible for such acts OSHA).
in some instances. Rationale:-
- This has been on two key innovations:-  The independent contractor is not under general control
 Negligent hiring. and directions of consumer of labour product (except as
 Negligent retainer. to the results of his work).
- Under these concepts, an employer may be held responsible
for injury/damage occasioned to 3rd parties out of the criminal Exceptions to the Rule that the Client is not Liable for the
conduct of an employee while on duty if it is demonstrated Wrongs of an Independent Contractor
that:-
 The employee has a general disposition to engage in - Despite the general principle that an independent contractor
criminal conduct that has occasioned the injury/damage. will be responsible for damage arising from the execution of
 the contract for services, the law has evolved to provide - A principal may therefore delegate a duty to an independent
exceptions to this principle. contractor but if the contract contains a clause setting out non-
- By these exceptions, a window is provided through which a delegable obligations, the responsibility for those obligations
3rd party can hold the principal liable for injuries/loss lies with the principal and he will be held liable for their
occasioned by the independent contractor while executing breach.
works under the independent contract. - Non-delegable clauses are often found in undertakings which
a) Agency Relationship involve dangerous or peculiar risks and for which the
- This is when an independent contractor is also acting as the principal is prohibited from avoiding liability through
agent for the other contracting party. independent contracting.
- When this is the case, the other contracting party (the c) Hiring of an Incompetent Contractor
principal) will be held liable for the damage/injury caused by - A hirer of an independent contractor is in law under duty to
the acts/omissions of the independent contractor. exercise care to ensure the person hired is competent to
- This is under the agent-principal theory in the law of agency. execute the duties he is hired to perform under the contract for
b) Existence of a non-delegable Clause in the Contract service.
between the Parties - If the hirer acts carelessly and hires an incompetent or
- Parties to an independent contract may have a clause which inexperienced contractor and the contractor’s wrongful acts
specifically requires the principal to be responsible for the injure an employee or a third party, the hirer can be sued
safety of 3rd parties when the independent contractor is directly.
executing works under the contract.
- When this happens, the effect of such a clause is to make
responsibility for the safety of 3rd parties during execution of
LESSON 5
the independent contract non-delegable.
- Example: a contract for provision of service by an TERMINATION OF EMPLOYMENT CONTRACT
independent contractor may state thus;
‘The contractor shall not be relieved of any Introduction
obligations, responsibilities or liability as to the
safety of 3rd parties under this agreement by the Like all other contracts, employment contracts are terminable either
appointment of any subcontractor to carry out any by:-
part of this service.’
- In M.B V British Columbia [2001] 227, the court said of non-  Voluntary acts of the parties to the contract or;
delegation thus:-
 Operation of the law.
‘To call a duty non-delegable does not mean that the
duty cannot be delegated but rather that the ultimate Voluntary termination of these contracts is conceptualized differently
responsibility for the performance of the duty cannot depending on whether the contracts are covered under:-
be delegated.’
 The traditional common law doctrine of employment at will - As a result, many countries are increasingly leaning towards
or; restricting the ability of employers to unilaterally terminate
these contracts.
 The modern termination for good cause doctrine.
- Specifically, contracts of service may not, as a general
Common law Employment at Will Concept principle, be unilaterally terminated midterm by an employer
without good cause.
- At common law, the doctrine of employment at will reigns
supreme. - This restriction is intended to provide security of tenure for
employees.
- By this doctrine an employer is free to hire and fire an
employee as he pleases. - Under this doctrine, employment contracts can only be
unilaterally terminated by employers for just cause and not in
- Thus, an employer has no obligation to provide:- bad faith or for any other unjustified reason.
 Reasons for varying the terms of or terminating a contract
Justification for Good Cause
of employment.
- Termination of employment is a traumatizing experience.
 Notice before varying the terms of or terminating a
contract of employment. - Loss of employment often means loss of one’s principal
source of income.
- Under this doctrine an employer may: reduce wages of
employees; change their benefits coverage; or even change the - Consequently, it is always desirable that the procedure of
employees’ job description without reference to and termination looks to minimizing the risk of subjecting an
consultation with the affected employees. employee to the possibility of loss of employment in a manner
that is, on the face of it, unjust.
- The employer enjoys absolute discretion to deal with
employees as he pleases. - It is important to ensure that the process respects the dignity
and self-worth of the employee.
- The employees do not enjoy protection from the above
vagaries by an employer. - The exercise should be conducted in a manner that is fair and
sensitive to the party to be adversely affected by the ultimate
Termination for Good Cause Doctrine
decision to terminate.
- In recent times, the law has gradually shifted from the harsh
- It should be fair and judicious.
common law position of employment at will.
- This is important in order to ensure that one is not unfairly and
- This is in order to provide more protection to employees when
arbitrarily deprived of her primary means of livelihood.
it comes to termination.
- This reality has informed the desire to infuse security of tenure - Where termination of an employment contract may only be
into contracts of service. for good cause, the law recognizes exceptions to this
requirement.
- Security of tenure in employment relations seeks to afford an
employee ‘’employment protection.’’ - These include:-

- The concept of employment protection, in a broad sense, is a) Probationary Contracts of Service

concerned with protection of employees against unfair
dismissal by their employers. - Sometimes, an employer needs to ascertain the ability and
skill of a new employee to competently execute the task she
- It acts like a shield afforded to the employee to insulate her is hired to perform before her contract of employment is
employment contract against possible arbitrary termination by confirmed.
the employer.
- In this case, the employer may place the employee on
Where Restrictions to the Free Will Doctrine originated probation.

- Strictures on the power of the employer to deal with the - The employer engages the employee for a short stint of time
contract of service as he pleases are a reaction to the historical to gauge her suitability for the task (maximum of 12 months
evolution of the contract. under E.A).

- While it is a cardinal principle of contract law that parties - If the employee is good enough, she is confirmed.
enjoy the freedom to negotiate into and out of a contract and
to agree on the terms of such contract, it is acknowledged that - If not, she is not confirmed on expiry of the probationary
this freedom may be abused in an employer-employee relation period.
because of the power imbalance between the parties to the
contract. - Employees under these contracts enjoy limited security of
tenure.
- Hence, the law has intervened to provide restrictions to the
exercise of this freedom. - The employer can terminate their services without assigning
any reasons for relieving them of their duties.
- Mostly, good cause requirements which are a bar to the
employment at will doctrine will be imposed by:- - Under section 42 of the E.A 2007, these categories of
employees are not entitled to an explanation or the reasons for
 The law. their dismissal as is contemplated under section 41 of the Act.

 Collective bargaining agreements. - The only obligation the law imposes on an employer in respect
of this category of employees relates to the giving of a notice
Exceptions to the Good Cause Requirement seven (7) days’ notice for termination before terminating the
contract.
 b) Temporary/Seasonal Contracts for Specific Work - This is usually evidenced if the employer is able to
demonstrate that he/she observed the following before
- These are short term contracts of service. terminating an employee:-
- They entail provision of labor on a temporary or seasonal  Substantive fairness and;
basis.
 Procedural fairness.
- The work may relate to a specified activity or time of the year.
Substantive Fairness
- Usually, the contracts determine when the task to be
performed is completed. - Section 41 of the E.A provides the substantive grounds upon
which an employer may terminate a contract of service. These
- The employer is under no duty to assign reasons for their are:-
termination once the task ends or their non-renewal.
 Misconduct;
c) Termination by Mutual Consent
 Poor performance and;
- Parties to a contract of service may mutually agree to
terminate it.  Physical incapacity.

- Where such decision is mutually reached, there is no - The three together with the unrelated ground of redundancy
obligation to assign reasons for it. are the only substantive grounds upon which an employment
contract may be terminated in Kenya.
- In such case, the requirement for good cause to terminate does
not arise. - As a matter of law, a decision to terminate a contract of service
should always be anchored on either one or more of these
- All the parties’ require is an agreement, preferably in writing, substantive grounds.
terminating their labor contract relation.
- It is only when an employer is able to point to either one or
Legal requirements where Good Cause is required before more of these grounds as justifying his decision to terminate
Termination an employee that he will be able to demonstrate that he has
observed substantive fairness in the case.
- Where the law or some other instrument obligates an
employer to terminate for good cause, he/she must justify the  Poor Performance
termination.
- Poor performance is a situation where an employee is unable
- The employer must be able to demonstrate that the to discharge her functions in line with the standards required
termination was fair. of her under the contract of employment.
- It denotes incompetence on the part of the employee in d) Improper or careless execution of duties assigned to an
discharging his duties. employee under her contract of employment.
e) Use of abusive or insulting language against one’s
- For poor performance or incompetence to be upheld as a employer or supervisors.
ground for dismissal, it must be demonstrated that the affected f) Refusal by an employee to obey lawful and reasonable
employee has displayed a level of competence that is plainly orders in relation to her employment from her superiors.
below the competence that is reasonably expected of g) Arrest of an employee for a cognizable offence and her
employees in that field. failure to secure bail or otherwise be released within
fourteen days of such arrest.
- Poor performance is often, attributable to the absence of h) Commission or reasonable suspicion of commission of a
adequate knowledge or skill on the part of the employee for crime by the employee that is injurious to the person and
the task she is assigned to execute. or property of her employer.
- This ground provides an objective, acceptable and good  Physical Incapacity
reason to terminate an employee’s contract of service.
- Physical incapacity denotes:-
 Gross Misconduct
 Physical disability;
- Gross misconduct arises when an employee willfully or
negligently fails to adhere to work regulations.  Or mental disability
- Here, the reason for misconduct is the employees own  which inhibits an individual’s ability to discharge
deliberate or negligent conduct. functions assigned to her under a contract of service.
- Gross misconduct can be as a result of a single or a series of - This incapacity may be due to an illness or injury to the
acts of serious misconduct. employee.
- Section 44 of the E.A sets out a number of acts that amount to - The injury/illness must either have:-
gross misconduct.
 substantially diminished the employee’s ability to
- This list is however by not exhaustive. The acts include:- discharge her work or;
a) Absence from duty without lawful cause or permission.  rendered such endeavor impossible.
b) Incapacity or unwillingness to discharge one’s duties
properly due to intoxication. - Physical incapacity provides a valid foundation for bringing
c) Willful failure to perform duties assigned to an employee the contract to an end.
under her contract of employment.
Procedural Fairness
- Procedural fairness in termination of employment looks to the - Procedural fairness therefore presupposes the grant of certain
process rather than the grounds for dismissal. procedural rights to an employee facing the possibility of
termination on any of the above substantive grounds.
- Like the grounds for termination, the process that leads to
termination of a contract of employment must be fair and just. - These include:-

- Procedural fairness seeks to entrench the principles of natural a) The Right to Know the Charge
justice in the process of termination.
- This right is protected by the duty imposed on the employer
- It looks to protecting the rights of an employee to a fair to explain to the employee the grounds and reasons for the
hearing and a fair and objective investigation into the reasons proposed dismissal.
for the proposed termination.
- Under the law, the employer must bring to the employee’s
- Except in cases of probation, section 41 of the E.A now notice all the charges that provide the foundation for the
requires that prior to terminating an employee’s contract of intended decision to dismiss her.
service on any of the substantive grounds for dismissal such
as gross misconduct, poor performance or physical incapacity, - This explanation must be made to the employee with utmost
the following procedural safeguards must be observed by the clarity.
employer:-
- Hence, it is a requirement that it be done in a language that the
 The employer must explain to the employee the reasons employee understands.
for dismissal and;
b) The Opportunity to respond to the Charge
 The explanation must be in a language that the employee
understands and; - Once the charges are made available to the employee, she has
a right to respond to them.
 The employer must afford the employee the right to be
heard in response to the accusations against her and; - Conversely, the employer has a duty to listen to her defense
before she renders her decision.
 The employer must permit the employee to have a witness
during the process in the form of a shop steward or a - The right to be heard covers the employee, her witnesses and
fellow employee and; union representatives.

 The employer must permit the employee to be represented c) The Right to be Represented, Freedom of Association and
in the proceedings and the employer must hear the the Right to belong to a Trade Union
employee’s witnesses.
- An employee who is facing disciplinary proceedings under
the E.A is entitled to representation.
- She has a right to have a witness who is either a co-employee the notice to the employee in a language that the employee
or a union representative during the proceedings. understands.

- And these representatives are entitled to address the employer Payment in lieu of Notice
during the hearing.
- A party to an employment contract who wishes to terminate it
d) The Right to a Reasoned Decision must give notice to terminate the contract in terms of the law.

- The fact that an employee is entitled to be heard prior to her - Where a party is unable to give notice where the law stipulates
dismissal necessarily implies the duty on the employer to for notice of 28 or more days, the party failing to give such
render a reasoned decision on the matter. notice must pay the party entitled to the notice salary in lieu
of such notice.
- Although the law is silent on the form in which the decision
should be rendered, it is desirable that it be in writing. - The quantum of salary must be equivalent to the notice period.

- This is essential both for the employee and the employer in Waiver of Notice in Case of Employee
the event they wish to litigate the matter in court.
- Where it is the employee who is terminating the contract of
Requirements as to Notice to Terminate service, he/she must give notice to the employer in similar
manner as the employer is required to give notice.
- Whether the contract of service is being terminated by
agreement or on the grounds cited under section 41 of the E.A, - If the employee does not give notice, then he/she must pay the
the law prescribes the need to issue notice before termination. employer money equivalent to salary for the notice duration.

- The duration of the notice is provided for in section 35 of the - However, under section 38 of the E.A, the employer can
E.A for contracts other than probationary contracts. decide to pardon the employee from serving the notice period
by waiving it.
- For probationary contracts, section 42 of the Act provides for
notice of seven (7) days to terminate. - Where this happens, the employer is required to pay the
employee salary for the period he would have remained in
Language of the Notice employment while serving the notice period.
- Section 35(3) of the E.A requires that a notice of termination Unfair Dismissal
of employment must always be in a language that the
employee understands. - An unfair dismissal is considered in sections 45 and 46 of the
E.A.
- Where an employee is not conversant with the language used
in the notice, the employer must orally explain the contents of - It is the diametrical opposite of fair termination.
 - It occurs when an employer, without justifiable cause or in - If the intention of these actions was to force the employee to
disregard of the requirements for procedural fairness, quit her employment, the resignation, though by the
dismisses an employee who is protected from arbitrary employee, is deemed as a dismissal by the employer.
termination of her employment.
- In this case, the law looks at the resignation as a forced
- This occurs when an employer bases her decision to terminate ejection of the employee by the employer from her
an employee’s services on grounds unrelated to those employment.
recognized by law.
- The law considers the resultant resignation by the employee
- Some of the grounds that will lead to unfair dismissal as a constructive dismissal.
include:-
- Such dismissal, as pointed out earlier, is a form of unfair
 Dismissal based on considerations such as the political dismissal.
opinion, gender, sexual orientation, race, color, disability,
HIV status or religious affiliation of the employee. - Constructive dismissals often arise in situations where an
employer wants to relieve an employee of her duties while at
 Dismissal for taking part in industrial action or joining the same time trying to avoid the backlash of an order for
and participating in activities of trade unions. compensation.

 Dismissal of female employees on grounds of pregnancy - Thus, the employer resorts to application of unfair means such
or maternity. as demoting the employee or worse still refusing to assign her
work in a bid to force her to tender a resignation.
 Dismissal of an employee because she has a case against
her employer. Summary Dismissal
Unfair dismissal appears in two forms. These are:- - Summary dismissal, as a general rule, is:-
 The direct dismissal of an employee by her employer.  termination by an employer of an employment contract;
 Forced resignation of an employee because of unfair labor  without or with short notice to an employee.
practices by the employer. In this case, although, in fact,
it is the employee who leaves employment, in law, the - This happens where an employee has so fundamentally
employee is deemed as constructively dismissed. breached the terms and conditions of the contract of
employment that the breach has substantially undermined the
Constructive Dismissal very foundation of the employment relationship between the
parties to the contract.
- Sometimes an employer’s actions may force an employee into
resigning from her employment. - In these circumstances, the employee is considered as having
repudiated her contract of service with the employer.
- When this happens, the employer is under no duty to pay the - Failure to accede to these demands will render the subsequent
employee terminal or severance dues. decision to dismiss the employee unlawful.

- Section 44 of the E.A spells some of the grounds to justify LESSON 6

summary dismissal.
TOPIC: OTHER MODES OF TERMINATION AND
- They are the same grounds that support dismissal for gross REMEDIES FOR UNLAWFUL TERMINATION
misconduct.
I. OTHER MODES OF TERMINATION OF
- They include: absence from work without leave or sufficient EMPLOYMENT
cause; being intoxicated while on duty; willful neglect of
duty; use of abusive and insulting language while at work; Apart from the termination of employment discussed in previous
failure to obey lawful orders from one’s employer; detention lesson, a contract of service can be brought to an end through various
pursuant to a lawful arrest for a cognizable offense where the other means. These include redundancy, insolvency, retirement and
employee fails to secure bail for within 14 days after arrest; resignation. This part of the lecture focuses on these modes of
and commission or suspicion of commission of crimes that are termination.
injurious to the property or person of one’s employer.
REDUNDANCY
Summary Dismissal and the Right to Fair Termination i) Nature and Meaning
- The E.A defines it as a situation in which an employee loses
- Employment protection operates to protect employees even in her employment by involuntary means without fault on her
situations where they face summary dismissal. part but at the employer’s initiative because the employee’s
position has become superfluous or obsolete.
- Thus, where an employee is faced with a threat of summary - In this case, employment is lost because the employer no
dismissal he may dispute the lawfulness of the decision to longer requires the position occupied by the employee.
terminate him pursuant to the provisions of section 44 (4) of - Redundancy is considered as a lawful way of terminating
the E.A. employment by an employer so long as it is done within the
confines of the law.
- When an employee does this, then the provisions of section - It is a tool available to the employer to reorganize his/her
41 (2) of the E.A come into play. enterprise in order to respond to new demands in the
enterprise.
- The employer must grant the employee’s demand to be heard.
ii) Redundancy Triggers
- If the employee demands representation and or mere presence - There are various reasons why a redundancy could happen.
of a witness when the employer is giving reasons for the - It can be because the employer has:-
proposed summary dismissal, the employer must grant this  Scaled down her operations;
request.  Merged her business with some other business; or
  Relocated her business to a place where the employee  First, she must provide notice of the intended
cannot be transferred. redundancy to the all the employees, their trade union
- Redundancies may also arise when:- and the local labor officer.
 An economic downturn adversely affects an  Second, she must ensure that the legal process of
employer’s business forcing her to scale down the selection of staff for redundancy is observed. It must
number of employees or close down the enterprise have regard for their seniority, reliability and skill.
altogether.  Finally, employees declared redundant must be paid
 Technological advancement renders some labour their salaries and severance pay in line with the law.
services obsolete. Here, an employer may shift from a) Notice of Redundancy
use of manual labor to machinery in order to enhance  Content and Extent of Notice
efficiency. This can effectively render obsolete the - Notice of an intended redundancy must be issued by the
use of manual labor thus consigning employees who employer to:-
were providing such labor to a state of redundancy.  All the employees;
This has been the case in most large scale tea firms in  Their trade union representatives where employees
Kenya where the owners resorted to the use of are members of a trade union;
machinery for harvesting tea instead of the traditional  The labor officer with jurisdiction in the area where
tea pickers. the employee works.
- The list of circumstances that may lead to redundancy is - The notice should be in writing.
inexhaustible. - The notice ought to specify:-
- What is important in determining whether an event occasions  The reason for the proposed redundancy;
a redundancy is for one to look at whether the event’s  The extent of the redundancy.
ramifications are such as to abolish, expressly or otherwise, - Thus, if the employer is issuing the redundancy due to closure
an employee’s employment. of business, this should be explicitly set out in the notice.
iii) The Law on Redundancy in Kenya - He must then indicate the extent of the redundancy by
- Article 41 of the Constitution protects an employee’s right to providing information on the number of employees to be laid
fair labour practices. off.
- This right provides the foundation for all labour rights - The intention here is to guard against the possibility of an
including the right by employees to a fair and lawful employer unlawfully terminating an employee under the guise
redundancy process. of redundancy.
- Section 40 of the E.A builds on the provisions of article 41 of  Duration of Notice
the Constitution by providing for the mechanisms of - The duration of the notice should be at least one month prior
implementing a redundancy at the workplace. to termination of the employee.
- From the provision, there are three important issues an - This is in order to provide time to the affected employee to
employer must keep in mind when declaring a redundancy. make necessary adjustments to the upcoming termination.
b) Procedure of Selection of Employees to the Terminated
- After issuance of the redundancy notice, the employer can - The employer is required to make payments to any employee
move to the next stage of selection of employees to be declared redundant.
terminated for reasons of redundancy. - The pay package comprises of the following:-
- When undertaking this process, the law requires the employer  If the employee was due for leave, she must be paid
to have regard for the following:- in lieu of such leave.
 Seniority of employees in terms of when they were  The employee will also be entitled to one month’s
hired; salary in lieu of notice where the employer is unable
 Skill, ability and reliability of the class of employees to permit him to serve notice for termination upon
to be terminated when making a redundancy decision. being declared redundant.
- This requirement is meant to infuse fairness and objectivity in  The employer must as well pay the employee
the process of selection of employees to be terminated. severance pay. This is worked out at the rate of an
- This minimizes the possibility of employers taking advantage amount equivalent to salary for fifteen days for every
of a redundancy to discriminate against and victimize some year worked.
employees.  Any other benefits payable on redundancy as
- For instance, it will be unlawful for an employer, hiding under negotiated through collective bargaining.
the guise of redundancy, to pick on a senior employee for d) Obligation to Insure Employees against the risk of
termination merely because she has been active in trade union Redundancy
activities. - The law anticipates the challenges that redundancy can cause
- With respect to skill and reliability, the law recognizes the both to the employer and employee especially if it is
right of an employer to have her enterprise managed in an occasioned due to an economic downturn.
effective and efficient manner in order to guarantee its - To ensure employees’ right to pay in this event is protected,
productivity. section 41 of the E.A provides for the possibility of the
- Therefore, an employer is entitled to retain employees that Cabinet Secretary Ministry of labour obligating employers to
will help her attain this goal. In the event of retrenchment, an take out insurance to cover redundancy eventualities.
employer will be entitled to determine who goes for
retrenchment with this right in mind.
- However, as a general rule and all factors being constant, an RETIREMENT
employer should conduct the selection exercise of employees
for retrenchment based on the first in last out principle. - Retirement occurs when an individual leaves employment
- This is in line with the requirement that an employer gives particularly in the public sector by reason of:-
consideration to the aspect seniority of employees during the  Having attained a fixed age beyond which one is not
exercise. expected to work; or
- Further, it minimizes the possibility of bias in the process.  For medical reasons.
- Thus, the last individuals to be employed would normally be - This action effectively determines an employment contract.
the first to be retrenched and vice versa. - Retirement age may be fixed by:-
c) Payments Required
  The law. For example, article 167(1) of the discharge his/its obligations under a contract of employment
Constitution requires that judges retire at the age of is disabled by reason of:-
70 years.  Corporate insolvency or;
 Regulations. For example, public universities in  The death or bankruptcy of a natural employer.
Kenya have through the Universities, Government - It operates to terminate an employment contract.
Research Organizations Scheme fixed retirement - The employee is technically rendered redundancy.
age for their teaching staff at 70 years. On the other - The technical redundancy has the effect of terminating the
hand the Human Resource Policies and Procedures contract of service.
Manual for the Public Service (2016) provides for - This is because, these legal processes, in effect render
the official retirement age for public servants. unwanted the position of the employee.
- It is important to note that retirement age in Kenya mainly - The employee will be entitled to the following in his pay
applies to public office. package:-
- There are no regulations of general application for retirement  Salary arrears subject to a limit of 6 months.
age for persons in the private sector.  Pay in lieu of notice.
- However, every sector can design rules to suit their needs  Settlement of leave dues.
mainly through collective bargaining agreements.  Basic compensation as would be available in a case
for unfair termination.
RESIGNATION
SUSPENSION
- Resignation is a situation where an employee quits her
employment. - A suspension is not a dismissal.
- Through her own voluntary action, the employee brings the - It is a devise that is normally resorted to in order to allow for
contract of service to a close. a disciplinary process against an employee to take place.
- Often, an employee will not be required to give reasons for - A suspension can therefore be viewed as a precursor to a
resigning from her position of work. dismissal.
- However, she/he is required to give notice in similar manner - The law does not envisage a situation where an employer may
as an employer would do. stand down an employee without pay.
- As a consequence, employees on suspension will ordinarily
INSOLVENCY AN EMPLOYER
be entitled to continue drawing a salary, usually computed at
- Section 67 the E.A recognizes the following events as half of the affected employee’s full salary.
constituting insolvency:- - The basis for providing pay to an employee who is on
 Corporate insolvency; and suspension is the very foundational principles of contract law.
- One of the conditions for the continuance of a contract of
 The death or bankruptcy of a natural person.
service is the discharge of the obligation to pay a salary.
- Insolvency for purposes of employment law broadly
envisages a situation where an employer’s capacity to
- Consequently, withdrawal of salary will constitute a
fundamental breach of the contract of service.
- The contract will be deemed as terminated. - An employee who is unfairly dismissed can maintain a cause
- To avoid this undesirable eventuality, employers will usually of action for damages against the employer.
place employees on suspension on half salary. - This matter must, where its resolution has not been possible
through the intervention of a labor officer, conciliator or
mediator, be filed before Employment and Labour Relations
court created under the Constitution.
II. REMEDIES FOR UNFAIR TERMINATION - Under its enabling statute, the Employment and Labour
a) Introduction Relations Court has exclusive original jurisdiction over trade
- The law provides both employers and employee with a range disputes.
of remedies in the event of an unfair termination. - Amongst other powers, it can order compensation and
- Whether presented by the employer or employee, an action for damages for unfair dismissal as may be contemplated under
breach of a contract of employment that results in its the Act.
termination is normally referred to as an action for wrongful - The damages granted may aggravated where the termination
termination. was unjustly handed down. The remedy is available to both
- The action may be presented in a variety of forums including:- the employer and employee.
 The court, - Compensation normally covers the pecuniary loss the
 A mediator, employee/employer has suffered.
 A conciliator or; - Under section 49 of the E.A, a Labor Officer may recommend
 A labor officer. payment of damages in the form of salary that would have
- Either of these institutions/personnel will determine the case been paid in lieu of notice or payment of a sum of money
and make some orders. whose aggregate does not exceed twelve months’ salary of the
- These orders are in the nature of remedies. affected employee.
b) Law Providing Remedies - The court has tended to apply this provision as a guide in
- The law setting out the remedies available is not codified in determining the quantum of damages in cases of unfair
one Act. termination. This is in line with the directions under section
- Some of the remedies may have their origins under common 50 of the Act which require the court to be guided by the
law and equity. section 49 when making decisions on suits relating to unfair
- In Kenya, most of these remedies have found their way into dismissal.
statute. ii) Claim for Reinstatement
- They are set out in at least two statutes thus:- - This remedy is provided for under section 49 of the E.A and
 The E.A. section 12 of the Employment and Labour Relations Court
 The Employment and Labour Relations Act. Act.
- These include an order for: compensation by way of payment - The court or labour officer can, in an action before it by an
of wages and damages; reinstatement and re-engagement; employee, order or recommend to the employer to reinstate
injunction; declaration; prohibition; and any other orders that the employee back to employment.
will be deemed suitable in the circumstances of the case.
i) Claim for Damages and Compensation
- If the order or recommendation issues, the employer will be - This order will issue as an interim measure pending
required:- determination of the question whether the decision to
 To reinstate the employee into his/her previous terminate by the employer is lawful.
position; - On the other hand, an employer may also sue for an injunction
 On the same terms and conditions under which the to restrain an employee who has breached a contract of
employee was serving prior to her dismissal. service.
- Therefore, reinstatement takes effect from the date of - For instance, the employer may bring such action to prevent
dismissal. the employee from going to work for a competitor in violation
- The order operates retrospectively. of an agreement between the parties in restraint of trade.
- Thus, an employer is required to pay the employee any salary - An employer may also sue to protect his/her trade secrets from
arrears. being divulged by a departing employee.
 Order to Issue Reservedly  Order to Issue Sparingly
- The remedy can only be granted as a last resort. - Just like in the case of reinstatement, an order for injunction
- A contract of service is underpinned by the trust that subsists has its own challenges.
between an employer and an employee. - As a contract of service is built on trust, it is undesirable to
- This value is destroyed when there is a dismissal. compel the two parties to maintain the relationship.
- An order for reinstatement cannot effectively restore the - Yet, this is precisely what an injunction seeks to attain.
confidence and trust that the relationship thrives on. - Therefore, these orders can only be resorted to sparingly.
- Therefore, it is desirable that a court refrains, as much as v) Suit for a Declaration
possible, from compelling the warring parties to remain in the - The court can also issue mere declarations in the suit.
already poisoned relationship. - These orders only declare the legal position on the matter
iii) Re-engagement before court.
- The court can also order re-engagement. - It may also be a declaration of rights.
- This happens when an employer is unable to reinstate the - For instance, the court may only declare that the dismissal
employee to his previous position but has a vacancy elsewhere was unlawful and therefore null and void.
where the employee can be deployed to. - Thus, the contract is deemed never to have terminated by
- In this case, the employee will be taken back but in a different reason of dismissal.
capacity so long as the terms and conditions of service in the - Once a declaration issues, the court may direct the employer
new position are similar to the terms and conditions of service to reinstate the affected employee and pay her all outstanding
in the previous position. dues in terms of the contract between the parties.
iv) Suit for Injunction - Declaratory orders are therefore usually accompanied by
- This remedy is also recognized by statute. further orders requiring the party to do or refrain from doing
- An employee may seek orders to restrain an employer from some act.
implementing a decision to terminate a contract of vi) Power to Issue Other Orders
employment. - The law empowers the court to issue any other remedy in
- This in effect, will protect the employee’s job. addition to the remedies discussed above.
 - This residual power is reserved for the court to make any other TOPIC: LABOUR INSTITUTIONS IN KENYA: THEIR
orders intended to promote the ends of justice. NATURE AND FUNCTIONS
- The orders, it has been argued, must be ancillary to the
specific orders enshrined in statute. 1. EMPLOYMENT AND LABOUR RELATIONS COURT
- For example, the court may in exercise of these powers issue
an order directing an employer to establish mechanisms to  Historical Origin of the Court in Kenya
prevent discrimination at the workplace. - The court was first established in 1964 under the Trade
Orders Can be Cumulative Disputes Act Cap 234 Laws of Kenya (repealed).

- The law does not suggest that the power to issue the remedies - It initially was called ‘’ the Industrial Court’’.
provided under statute is to be exercised disjunctively. - It did not enjoy constitutional status as it was not entrenched
- Rather, the court is empowered to ‘make any of the (…) in the country’s Constitution.
orders.’
- Thus, the discretion to exercise the powers either - The failure to provide for the court’s establishment through
conjunctively or disjunctively is left with the individual judge. the Constitution somewhat created a perception of want of
- Indeed, the above view is consistent with the truism that if the sufficient judicial authority.
court’s powers were purely disjunctive, some of the remedies
prescribed by statute will be in vain. - There was a general feeling that the court was a mere tribunal
- For example, an order declaring a dismissal as unlawful will and the Judges who served in it were much less than their
be of little value if it cannot be complemented with a further counterparts at the High Court. Thus, their authority was
order for compensation and or reinstatement. substantially compromised.

Procedure for Enforcement - Under section 14 of the repealed Act, the power to establish
and constitute the court lay with the President.
- The remedies granted by the court are enforceable in the
manner contemplated by law. - This further eroded the court’s independence as it was
- The Employment and Labour Relations Court Act provides perceived as prone to political manipulation.
that the court’s awards are enforceable in terms of the Civil
Procedure Rules. - The court was actually considered a department within the
- The court’s Registrar has powers to enforce the court’s Ministry of Labour, within the Executive.
awards.
- It functioned from Nairobi alone (centralized).
- Therefore, a party with an order from the court can enforce it
in the way an ordinary decree will be enforced. - The court’s jurisdiction was in respect of labour disputes only.

- This remains the position to date.

LESSON 7
  Transition into a Court with Constitutional Anchoring - The broad jurisdiction covers:-

- In 2010, the court was given the status of a High Court.  Original jurisdiction over labour disputes (section 12
of the ELRC Act).
- The judges are:-
 Appellate jurisdiction over labour disputes (section
 Appointed in like manner as High Court Judges. 12 of the ELRC Act).
 Enjoy the same security of tenure as their High  Review Jurisdiction (section 16 of the ELRC Act).
Court Judges. Under this power, it can review its own decisions.
- The court was renamed the Employment and Labour  Not Port of First Call of the Court
Relations Court (ELRC).
- The ELRC is, in law, not the first port of call.
- It is now:-
- Before approaching the court to resolve a trade dispute, parties
 A court of superior record. must have submitted to conciliation under Part VIII of the
Labour Relations Act.
 No longer within the Ministry of labour but has been
relocated to the Judiciary. - The court’s jurisdiction is invoked thereafter under Part IX of
the Labour Relation Act where conciliation has failed.
- It is currently decentralized.
 Disputes that May be Referred to Court Directly
 Composition of the Court
- Notwithstanding the foregoing, the law recognizes some
- Under section 21 of the Employment and Labour Relations exceptions where parties are entitled to move the court
Court Act, the ELRC is properly constituted if it has a single directly.
judge presiding over its session.
- These are covered under Part IX of the Labour Relations Act.
- However, if the case the court is handling raises a substantial
question of law, the Chief Justice may constitute an uneven - They include disputed relating to:-
bench of not less than three Judges to hear it.
 Strikes and lockouts.
 Powers and Jurisdiction of the Court
 Essential services.
- By virtues of article 162 of the Constitution as read with
section 12 of the ELRC Act, the court has power to hear all  Recognition agreements.
labour disputes.
 Declarations of redundancy.
  Power to Stay Proceedings - Upon service of the statement on the respondent, if he be
desirous of defending the cause, he files a reply to the
- Under section 15 (4) of the Employment and Labour Relations statement or memorandum of claim.
Court Act, the court has power to stay any proceedings filed
before it in disregard of the requirements on conciliation as - This instrument sets out:-
provided for under the Labour Relations Act.
 The grounds for opposing the applicant’s prayers to
- Where it stays a matter in exercise of these powers, the court the court.
will refer the matter back to reconciliation, mediation or
arbitration.  The prayers sought by the Respondent.

- Once the alternative dispute resolution process is finalized, - The court will then set the matter down for directions.
the decision is filed with the court for adoption as the decision
of the court. - At this point the judge confirms that the parties have filed all
documents required for trial.
- It should be noted that filing a matter in court before
attempting conciliation does not provide a ground for striking - If the case is ready for hearing the parties are given a hearing
it out. The only procedure permitted under the law is one of date.
staying the matter.
- On the trial date, the court starts by hearing the claimant and
 Procedure for Filing of Claims his witnesses.

- The claimant commences the proceedings by filing a - Once the claimant closes his case, the respondent and his
statement or memorandum of claim. witnesses are heard.

- This statement sets out:- - The respondent then closes his case and the parties, if they
choose, file their closing submissions.
 The grounds and particulars of the claim.
- The court then writes and delivers its judgment.
 The particulars of the parties and;
- These proceedings are done in open court.
 The orders sought.
- The parties can appear:-
- It must be accompanied by a verifying affidavit sworn by the
claimant.  In person or;

- If the claimant proposes to rely on any documents, he must  By Advocates or;

file copies of them in court.
 Through their union representatives.
  Enforcement of Court Awards - This includes the following:-

- Decisions of the court are enforced in the same way as  It advises the Cabinet Secretary on all employment
decisions of ordinary courts. and labour matters. The advice could be on: the
content, form and practice of labour laws at national
- The rules that apply to ordinary courts in this regard apply to level; trade unionism; international labour issues and
the ELRC. their ramifications on labour law and practice in
Kenya; and all issues touching on employer-
- Thus, an order for attachment may issue.
employee relations.
- Similarly, a party may be committed to civil jail for non-
 Appointment of judges to the ELRC.
compliance with the court’s orders.

2. THE NATIONAL LABOUR BOARD  Formulation of rules that govern the running of the
ELRC.
 Establishment, Role and Membership of the Board
 Powers of the Board
- The National Labour Board is a national public advisory
institution on employment and labour matters. - In order to discharge its mandate effectively, the Board is
empowered to undertake:-
- It is established under section 5 of the Labour Institutions Act.
 Investigations on any labour issue that is of interest
- The Board’s membership has representatives from:- to it.

 The most representative employers and employees  Research on labour, economic or social issues and
federations; policy.

 The government through its designated labour 3. THE WAGES COUNCILS

officers such as the Director of Employment and
Industrial Training;  Establishment and Term of Office of a Wages Council

- The Wages Councils are established under section 43 of the

 Independent persons and;
Labour Institutions Act.
 Representatives of micro and small enterprise
- They are established by the Cabinet Secretary, Ministry of
investors.
Labour.
 Mandate of Board
- He/she does this through a notice in the Kenya gazette.
- The Board has a very wide mandate.
- The notice specifies:-
  The terms of reference of the Council and; employment in a particular sector has not been adequately
covered through collective bargaining.
 The persons appointed to serve on Council.
4. COMMITTEE OF INQUIRY
- Wages Councils have a lifespan of three years.
- The CS labour may find it necessary to conduct an inquiry
 Functions of Wages Councils into any trade dispute.
- These are provided for under section 44 of the Labour - Where this happens, he/she may appoint a committee of
Institutions Act. inquiry under Part IV of the Labour Institutions Act to
undertake this task.
- The core functions of Wages Councils are to inquire into and
set minimum wages and terms and conditions of service in a - The committee is appointed through a notice in the Kenya
particular sector. gazette.
- This is particularly in sectors where trade union activity is - It is made up of not less than three members.
perceived as suppressed thus requiring intervention by the
state. - Once constituted, the committee will execute its mandate.

- The CS will, upon receipt of advice from a Wages Council on - It will then prepare a report on the issue at hand and pass it on
recommendations on minimum wages and other terms and to the Cabinet Secretary.
conditions of service in a sector publish a Wages Order setting
such minimum salaries and conditions of work (see sections - This report may, if the Cabinet Secretary decides, be
45 to 48 of the Labour Institutions Act). published.

 Types of Wages Councils 5. LABOUR ADMINISTRATORS AND INSPECTORS

- Section 43 of the Labour Institutions Act provides for two  The Various Labour Offices that may be Appointed
Councils:
- Section 30 of the Labour Institutions Act provides for the
 The General Wages Council and; appointment of two important officers:-

 The Agricultural Wages Council.  The Commissioner for Labour.

- However, and in addition to the foregoing, the Cabinet  The Director of Employment.
Secretary may in consultation with the National Labour
- However, in addition to these two, the law allows other
Board, establish a sector-based Wages Council if in his
officers to be appointed for purposes of executing duties
opinion the aspect of remuneration and other conditions of
 relating to the administration and inspection of the labour  Access premises housing employees in order to
sector. inspect conditions of employment in them.
- These include:-  Demand for documents and information from an
employer in furtherance of their inspection mandate.
 Labour officers,
- They are required to issue notice of an intended inspection to
 Employment officers; an employer unless it is considered that such notice will
prejudice the exercise.
 Medical officers.
- Obstruction of the officers during such an exercise is an
 The Registrar of Trade Unions and Employers’ offense in law.
Associations and his/her deputy.
6. TRADE UNION AND EMPLOYER’S ASSOCIATIONS
 Powers to Delegate Responsibilities
 Nature and Meaning
- Where the CS has appointed labour officers, the
Commissioner for Labour can delegate his functions to such - These are body corporates comprising of workers or
officers. employers.
- Similarly, where employment officers have been appointed, - Although generally perceived as referring to workers’
the Director of Employment can delegate his functions to such organizations (the Labour Relations Act also gives this
officers. impression in section 2), the term ‘’Trade Union’’ understood
in broad terms covers both:-
- The Registrar of Trade Unions and Employers’ Associations
can also delegate his functions to the Deputy Registrar.  Workers’ Organizations and;
- Importantly, where any of these officers delegate their  Employers’ Associations.
functions, they are allowed to set conditions to govern the
exercise of such delegated power.  Functions of Trade Unions

- And they have powers to set aside a decision of those - The organizations are concerned with representation of:-
exercising delegated power.
 Workers.
 Powers of the Various Offices
 Employers.
- The officers have power to:-
- They are established principally for purposes of protecting
interests of their members.
- They normally deal with questions touching on a variety of - These include:
work related issues such as:-
 Active negotiations on behalf of their members.
 Negotiating improvements on safety standards at
work;  Information dissemination. They do this by providing
members with information on their rights at work and
 Workers’ salaries and other emoluments. other related issues.

 Trade Unions as Voluntary Bodies  They can also act as providers of various services
such as trainings and legal advice.
- These institutions are voluntary in nature.
 The Statutory Framework on Trade Unions
- No one has a duty to join them.
a) Constitution
- Yet, every worker or employer has a constitutional right to
belong to whichever applies to them (see article 41 of the - Article 27 of Constitution forbidding discrimination. A social
Constitution as read with sections 4 to 8 of the Labour partner (employer/employee/govt) cannot deny another
Institutions Act). enjoyment of rights merely by reason of belonging to a Trade
Union.
 Trade unions as Vessels for Balancing Power in the
Labour Sector - Article 41 of Constitution. It protects rights by employers and
employees to form trade unions and employers’ associations.
- Trade unions and employers’ associations provide the most
ideal mechanisms for balancing and improving the relations - Articles 32 and 33 on freedom of expression and association
between employers and employees. enable the right to collective action that is critical in Trade
Union Activities.
- They are a means through which the parties marshal their
bargaining powers on various work related issues such as b) Labour Relations Act
wages and general conditions of work.
- Parts III, IV, V and VI of the Act deal with various aspects
- It is therefore safe to argue that trade unions play a significant relating to establishment and running of Trade Unions and
role in shaping the current and future work environment for Employers’ Associations.
the worker and as well the employer.
- These include the following:-
 Negotiating Tools
 Registration of Trade Unions and Employers’
- Trade Unions and employers’ associations discharge their Associations.
mandates using different tools.
  Registration of Federations of Trade Unions and  Where Statute has not fixed the minimums, the law
Employers’ Associations. recognizes that the Wages Councils will propose
minimum terms and conditions of engagement
 Officials of the organizations. which the CS Labour will issue as Wage Orders
under the Labour Relations Act. This is particularly
 Holding of property by these organizations. critical for sectors in which collective bargaining is
weak or nonexistent.
 Other activities by these organizations. - Parties entering a contract of service are free to negotiate
 Dissolution of the organizations. terms and conditions of engagement so long as they do not go
below what has been set in:-
 Statute.
 The current Wage Orders.
LESSON 8 - Parties can only either adopt or improve on these minimums.
- Where parties negotiate terms which are better than what
SETTING TERMS AND CONDITIONS OF EMPLOYMENT: Statute or a Wage Order prescribes, then the improved terms
TRADE UNION RECOGNITION AND COLLECTIVE and conditions of service displace the minimums as set out by
BARGAINING law or a Wage Order. For instance, section 35(2) of the E.A
stipulates that where parties have agreed on a greater notice
1. Setting Terms and Conditions of Employment
period than that contained in the section, the notice period
- Terms and conditions are critical components of any contract
provided in the section shall be disregarded in favor of the
including employment contracts.
agreed favorable period.
- Freedom of contract plays a critical role in informing the
- The position therefore is that individual labour law only sets
content of these terms and conditions of contract.
the floor in matters terms and conditions of employment.
- However, in employment contracts, the law treats the fixing
of these terms and conditions in slightly different manner. 2. Building on the Minimums
- Parties usually improve on the floor set by Statute and
- While the parties retain the freedom to negotiate terms and
sometimes the Wage Orders either:-
conditions of their engagement, the law sets the very
minimum below which the parties may not contract.  Through individual effort in negotiating their terms
- The setting of these minimum terms and conditions is usually and conditions above those set in a Wage Order or
undertaken in two ways:- Statute; or
 The law may prescribe the very minimum that  Through collective negotiations for better terms and
parties can include in the contracts of service. For conditions of service as collectivities.
instance, section 35 of the E.A prescribes a 3. Collective Bargaining
minimum period of notice parties to a contract of - Collective bargaining is a bipartisan process through which
service must give should they elect to end the Trade Unions representing employees engage employers or
relationship. employers’ associations with a view to agreeing on terms and
conditions of employment.
- The process is considered bipartisan because it usually - The employer or employers’ association recognizes the trade
involves two social partners to wit:- union as the legitimate representative of the workers in the
 The employers and or their associations. employers’ establishments for purposes of collective
 Trade Unions representing employees. bargaining.
 Content of a Recognition Agreement
Bipartisan distinguished with Tripartite Negotiations - Once the employer and trade union settle on the terms of
recognition, they are said to have entered a recognition
- As a bipartisan process, collective bargaining is slightly agreement.
different from the tripartite negotiations that involve:- - These agreements are termed as procedural agreements
 The Government. because they fix rules of engagement between the trade union
 Employers and or employers’ associations. and the employer.
 Trade Unions (employees’ representatives). - Essentially, they among other matters lay out the framework
- In tripartite negotiations, the three social partners negotiate to through which the employer and trade union will engage when
agree on broad issues that affect the labour sector. undertaking consultations and collective bargaining.
- For instance, the three social partners will usually engage in - Under sections 55 and 56 of the Labour Relations Act, the
the consultations on the content of a Wage Order with a Wage agreements provide for things such as:-
Council prior to its publication by the CS, Labour.  The election of trade union representatives at the
- Through this, the input of all the social partners on desirable workplace;
minimum terms and conditions of service is brought on board.  Conferment on union representatives certain rights
- However, both bipartisan and tripartite negotiations take place such as the right to represent employees in
under the umbrella of collective labour law. proceedings held by the employer.
- For the bipartisan negotiations to take place, the law requires  Recognition of the right of a trade union to access
that the employer and or employers’ association must have the employer’s premises to recruit members and to
recognized the Trade Union. hold meetings with its members.
4. Trade Union Recognition - Generally areas covered in the agreement may include:-
- Once a trade union has been registered, it can represent  The purpose of the agreement;
workers who have been recruited to be its members.  Basic principles of engagement;
- For a trade union to do this, it requires to enter a legal  The union that is recognized and the employer or
arrangement with the employer through which the employer employers’ association involved.
acknowledges its mandate in this respect.  The scope of the agreement in terms of which groups
- This arrangement is referred to as recognition. of workers the agreement covers for the purposes of
- Thus, recognition is the act by which an employer or an negotiations and consultation;
employers’ association acknowledges the right of a trade  Structure of representation in terms of who will be
union to represent workers who are members of the trade entitled to act as trade union representatives;
union and who work for the employer or employers
represented by the employers’ union.
  Guarantees as to facilities. These include physical  Where the membership of the Trade Union from the
facilities; time for representatives off work to be in employer falls below the simple majority threshold.
the negotiations and resources; - Under section 54 (5) of the Labour Relations Act, the
 Disputes resolution procedures; and employer may, where the threshold of employees who are
 Provision on review and termination of the members of the union falls below the statutory minimum or
agreement. for any other valid reason, apply to the National Labour Board
 Rights arising from Recognition Agreements to terminate the agreement.
- Recognition entitles the union and its members to certain 5. Procedure for Collective Bargaining
rights. - An employer who has a recognition agreement with a trade
- These include rights such as:- union has a duty to negotiate with the union on terms and
 The right of a trade union to access the employer’s conditions of unionized employees and come up with an
premises to recruit members and to hold meetings agreement containing all the settled matters.
with its members. However, the employer has a right - This agreement is called a Collective Bargaining Agreement
to reasonably limit access by trade unions to his/her (CBA).
premises to avoid undue disruption of his/her work. - And the steps that lead to the agreement are referred to as ‘the
 The right to information in the custody of an Collective Bargaining Process.’
employer that is relevant for collective bargaining.  Duties of Employer in Collective Bargaining Process
 The right for employees to some time off to attend to - During the negotiations, an employer must exhibit good faith.
union activities. - Thus, he must supply the trade union with all information that
 Statutory Provisions on Recognition in Kenya is material to arriving at a sound agreement.
- Under section 54 of the Labour Relations Act, an employer - However, an employer may decline to supply information if:-
including an employer in the public sector has a duty to  The information is legally privileged.
recognize a trade union for purposes of collective bargaining  To disclose the information will violate the law or a
if the trade union represents a simple majority of unionisable court order.
employees in the employer’s establishment.  To disclose the information will lead to harm or injury
- A simple majority is made up of 50 % plus 1 of the total to the employer or the employee.
unionisable employees.  It is private and personal information relating to an
- If there is a dispute about recognition, the parties may refer it employee which the employee has not consented to
for conciliation. its disclosure.
- Should the conciliator fail to resolve the dispute, the parties - The information accessed by the Trade Union must always be
can refer it to the ELRC. treated as confidential and may not be used for any other
- However, the parties can elect to move directly to the ELRC purpose than collective bargaining.
if the recognition dispute is filed under certificate of urgency. - If the parties cannot agree on whether the employer should
 Lapse of a Recognition Agreement disclose some information in his custody, they must refer the
- Recognition agreements may lapse:- dispute first to a conciliator appointed by the relevant CS.
 Where their time runs out.
 - It is only where the conciliator fails to resolve the matter that a) Concept of a strike
it can be escalated to the ELRC. - A strike is a cessation of work or a refusal to work or a refusal
 Post CBA to continue to work by two or more employees acting in
- Once a collective bargaining agreement is reached, it is cohort with a common intent to compel their employer to
presented to the ELRC for registration. agree to terms or conditions of employment or some other
- Before registration, the ELRC must confirm that the CBA is demand related to the work environment.
in consonance with the prevailing economic realities and that - For there to be a strike, there must be three elements:-
its prescriptions can be fairly absorbed by the economy  Refusal to work.
without crippling it.  Concerted action.
- To undertake this task, the court relies on the advice the  Intent to compel employer to accede to certain
Central Planning and Monitoring Unit (CPMU) housed at the demands in a trade dispute.
Ministry of Labour. b) Concept of a lockout
- Once the CPMU advises that the CBA is not at cross purposes - A lockout is the closing of the place of employment by an
with the general trends in the economy, the ELRC orders for employer; or suspending of work by an employer; or refusal
its registrat to continue work by an employer in a bid to compel
- employees to accede to certain demands or conditions by the
- employer in a trade dispute.
- ion. c) Rights Associated with the two Concepts
- Registration is also important because it enables the court to  Right to strike by employees is protected so long
determine whether any party to the negotiations has as the strike is lawful or protected (see section 76
reservations on the CBA before it is registered. of Labour Relations Act)
- The CBA takes effect once it is registered with the ELRC.  Right of employer to lockout employees so long
as it is a protected lockout.
 The right to associate and or belong to a trade
LESSON: 9 union which flows from the right to strike

B O M MANANI PROTECTED AND UNPROTECTED STRIKES AND

LOCKOUTS
STRIKES AND LOCKOUTS
a) Legal Strikes and Lockouts
- Strikes and lockouts are a permissible method for pushing for - Strikes and lock outs are regulated by the provisions of the
resolution of trade disputes in the labour sector where Labour Relations Act 2007.
amicable ways of addressing the issue at hand have failed. - Under section 79 of the Act only protected strikes and
- These two are some of the most potent tools collective labour lockouts are legal.
law has placed at the disposal of the social partners to be - If one takes part in a protected strike, he is protected by law.
resorted to as the last resort when all else has failed to force - An employer cannot for instance:-
the resolution of an industrial dispute.
  Dismiss an employee for having gone on a protected conciliation is not invoked before a strike or
strike. lockout is declared.
 Take any other disciplinary action against such  The Employment court prohibits it on an
employee. application by either of the parties to the trade
- Similarly, no civil legal proceedings can be filed against a dispute.
party who has been on a lawful strike or lockdown for any  It is prohibited by law or a collective bargaining
lawful act done in furtherance of the strike or lockout. or recognition agreement.
- However, the law does not shield one from legal action for  The trade dispute has been referred for arbitration
any criminal or unlawful acts engaged in during the duration or the court or the parties have agreed to make
of a lawful strike. such referral.
- Legal strikes and lockouts follow the procedure laid down in  They relate to an industry providing essential
the Act. services.
- This is:-  They are not in furtherance of a trade dispute
 They must relate to a trade dispute on terms and  They are actuated by sympathetic considerations.
conditions of employment and or recognition of a  Pay for Period Worker is on Strike
trade union. - While the general position in law is that an employer may not
 The trade dispute must have been referred to wholly withhold salary of an employee as this will be in
conciliation; breach of a term of the employment contract, there are
 Conciliation must have failed to resolve the instances where the employer will be entitled to withhold
dispute. portions of such salary.
 The party calling the strike or lockout must have - Some of the instances are when the law permits deductions.
given the other party and the CS for labour 7 - One such case when the law permits withholding part of the
days’ notice of his/her intention to strike or effect employee’s salary is when he goes on strike.
a lockout. - Under section 79(6) of the Labour Relations Act, an employer
has no obligation to remunerate an employee for the services
b) Illegal Strikes and Lockouts the employee did not render during the strike period.
- Strikes and Lockouts that do not follow this procedure are - This is notwithstanding that the strike is lawful.
unprotected and therefore unlawful. - The employer is entitled to rely on the doctrine of quantum
- Anyone going on an unprotected strike or lockout is not meruit to remunerate the employee for services rendered only.
protected by law. - Under section 80(1) of the Labour Relations Act, any
- They will be in breach of the contract of employment. employee who goes on an unprotected strike loses not just the
- An employee in this scenario risks summary dismissal. basic pay for the duration he/she is on strike but other benefits
- Strikes and lockouts are illegal when:- as well.
 The procedure provided in section 76 of the  The Essential Services
Labour Relations Act which requires, inter alia, - Section 78 (1) of the Labour Relations Act prohibits strikes or
lockouts in respect of essential service sectors.
- Section 81 of the Act defines an essential service to mean a on the right to strike and lockout now that the Constitution
service whose interruption can constitute a danger to:- recognizes that some rights are not absolute and can be
 Lives of the people; lawfully limited?
 Health of the people. - If we hold as above, then can we say that the limitations
- The CS Labour has power to declare any service essential so imposed on this right in respect of essential services meets the
long as it meets the above parameters. threshold set under article 24 of the Constitution to wit that
- Schedule 4 of the Act sets out the following as essential the limitation must be:-
services:-  Imposed by law;
 Water Supply Services.  Reasonable and justifiable in an open and democratic
 Hospital Services. society.
 Air Traffic Control Services; - The fact that courts have permitted these strikes suggests that
 Civil Aviation Services; they overlook the limitations on the right in the essential
 Telecommunications Services. service sector placed by the provisions of the Labour
 Fire Services of the Government or Public Relations Act.
Institutions. - One way of looking at the court’s position on the matter is that
 Posts Authority Services; the prohibition on the right to strike and lockout in Labour
 Local Government Authorities Services; and Relations Act is inconsistent with the constitutional protection
 Ferry Services. of this right. Hence, the provisions of the Constitution
 Controversies about Strikes by Medical Practitioners in guaranteeing the right prevail.
Kenya - This is especially so that the Constitution was enacted after
The question that has lingered for a while relates to why the Labour Relations Act and is deemed to have amended the
nurses and doctors still go on strike in Kenya despite the clear contra provisions in the Act.
provisions of the Labour Relations Act:- - Section 7 of Schedule 6 to the Constitution requires that all
 Declaring hospital services as essential; and laws that were in existence at the time the Constitution was
 Banning strikes and lockouts in respect of them. promulgated to be construed with alterations, adaptions,
- The Act was enacted in 2007. qualifications and exceptions necessary to bring them into
- The Constitution was promulgated in 2010. conformity with the Constitution.
- The Constitution recognizes the right to go on strike and - The other view would be to consider that section 78 of the
lockout under article 41. Labour Relations Act limiting the right to strike in essential
- While the Constitution recognizes this right and prohibits service sectors has not been amended to provide for
unequal protection of the law under article 27, the Labour mechanisms that will ensure the limitation imposed on the
Relations Act appears to permit differential treatment in right is reasonable and justifiable in an open and democratic
relation to strikes and lockouts by permitting certain sectors society as demanded by article 24 of the Constitution.
to exercise the right while prohibiting others.  The Duty to Compensate those whose Right to Strike is
- Should we consider the prohibition on strikes in essential Limited
services sector under the Labour Relations Act as a limitation
 - The ILO Recommendation on essential services is that where - Its creation was in order to assist member states in
a state law has prohibited or limited the right to strike in these standardizing labour practices by regulating national labour
sectors, it should provide for suitable compensatory markets.
mechanisms to employees to ensure their grievances are
promptly and effectively addressed. - Its main focus is to promote-
- This may require that the law provides for the following:-
 Uniform labor standards;
 A Conciliation procedure that is effective.
 An effective arbitration mechanism where  Social justice;
conciliation fails.
 The mechanism should be independent and be seen to  Social protection; and
be independent.
 The mechanism should be able to yield prompt  Sustainable employment by encouraging the
results. establishment of sustainable enterprises and income
 The decision of the arbitration process should be generating opportunities.
binding on the parties and should be implemented
without delay. - The main methodology at the disposal of the ILO in executing
 Alternative Approaches of Maintaining Minimum its mandate is the formulation of:-
Service
 Conventions; and
- It has been suggested by the ILO that countries can also think
of making provisions that guarantee minimum service  Recommendations.
delivery in essential service sectors while allowing strikes.
- This will ensure that service delivery is not completely - These instruments provide guidelines for shaping national
crippled when a strike is called. labour practices.

TOPIC: INTERNATIONAL LABOUR ORGANIZATION - Once issued, the conventions are ratified by member states.

LESSON 10 LECTURE NOTES - When a country ratifies the instruments they become binding
on it.
LECTURER: B O MANANI
- The legitimacy of its labour practices is measured against the
INTERNATIONAL LABOUR ORGANIZATION standards set in the instruments.
- The International Labour Organization was established in - The conventions and recommendations address a wide range
1919 under Part XIII of the Versailles Peace Treaty. of labour issues.
- It is a United Nations labour agency. - These include: protection of children from child labour;
protection of women workers; regulation of work hours, rest
 and holidays; labour inspection; vocational guidance and - It also has decentralized offices at national level.
training; social security protection; protection of workers at
sea; worker’s rights to housing, occupational health and - The secretariat is in charge of running the programs for the
safety; conditions of work; and protection of migrant workers. ILO.

- In addition the conventions and recommendations also - It however does this under supervision of the organization’s
address other rights of workers such as: the right to freedom governing body.
of association; freedom from forced labour; the right to
collectively bargain; and freedom from discrimination. ILO CONFERENCE

ORGANIZATIONAL STRUCTURE - This is the supreme decision making organ of the ILO.

- The ILO has a tripartite organizational structure. - It occurs once every year.

- It consists of representatives of:- - Every state has four representatives at the conference
comprising the following:-
 The governments of member states;
 Two Government representatives;
 The workers; and
 One workers’ representative; and
 The employers.
 One employers’ representative.
- This ensures full participation of all the social partners in the
activities of the organization. - The representatives are entitled to speak and vote
independently at the conference.
- The representative of government, the workers and the
employer have equal voice in shaping the policies by the ILO. THE ILO GOVERNING BODY

- The representatives vote independently on any issue that - The ILO has a governing body.
arises for determination. - It is made up of 56 persons constituted as follows:
THE SECRETARIAT  28 representing governments;
- The organization has a permanent secretariat at Geneva.  14 representing workers;
- It is referred to as the International Labour Office.  14 representing employers.
- It however has field officers who operate from across the - In addition, there are 42 deputies (14 from each of the above
world. three).
- The governing body undertakes all the work that arises - At the time the ILO was set up, there was social unrest that
between the ILO conferences. had unsettled the world.

- It inter alia:- - It was believed that part of the reasons for the unrest was the
oppressive work environment in various sectors that was
 Decides the agenda of the ILO conference; deemed unjust.
 Prepares and presents to the ILO the conference - There was need to correct this problem by revising labour
budget; practices in a uniform manner.
 Elects the ILO director general; and - Through this, it was believed that social unrest would be
controlled.
 Supervises the work of the secretariat.
- Currently, the need for standardized labour practices is
TECHNICAL ASSISTANCE BY THE ILO
informed by the desire to avoid market failure.
- The ILO is charged with the task of providing technical
- The general thinking is that an unregulated labour marked is
assistance to its member states in order to ensure the
susceptible to failure.
development of uniform standards in the labour sector.
- It is unlikely to give optimum attention to issues such as:-
- This assistance is majorly directed at developing nations.
 Safety of workers;
- The ILO provides this assistance mainly through the United
Nations Development Program (UNDP) but also utilizes other  Employment security; and
specialized UN agencies.
 Skills training.
- The assistance covers:-
- The consequence is that workers will be left worse off.
 Development of human resources;
- Regulation of standards limits these possibilities.
 Provision of vocational training;
- Uniformity of labour standards is also informed by the need
 Employment, planning and management; and to respect human dignity.
 Development of social institutions in inter-alia, - As human are equal, it is desirable to subject them to the same
labour administration, occupational safety and health work standards across the nations thus upholding their
and social security. dignity.
WHY THE NEED TO STANDARDIZE LABOUR
PRACTICES?
KENYA’S POSITION IN THE INTERNATIONAL LABOUR - This helps the ILO to monitor implementation of its
ORGANIZATION conventions at national level.

- Kenya is a state party to the ILO. - Other entities such as employers’ associations and trade
unions can also file their parallel reports to make comments
- The country is a monist state by virtue of clauses 2(5) and 2 on the reports by state parties.
(6) of the Constitution 2010.
- This assists in sustaining pressure on the state party to enforce
- As a consequence, any convention ratified by it becomes a its international labour obligations under the conventions.
source of law at national level without the need for its
domestication. - The ILO has a Committee of Experts that evaluates reports by
state parties.
- The country has ratified several ILO Conventions.
- The reports are then subjected to review by the tripartite
- Of these, 8 are of crucial application. committee of the ILO conference annually.
- These include:- - State reporting is an essential tool of implementation of the
ILO conventions and recommendations because it in effect
 ILO 29 : Force Labour Convention creates a supervisory mechanism through which states’
 ILO 98: Freedom of Association and Collective compliance with the labour standards set in the instruments
Bargaining Convention. are constantly evaluated.
 ILO 100: Equal Remuneration for Work of Equal
Value Convention. - The ILO can set up a commission of inquiry to inquire into
 ILO 105: Abolition of Forced Labour Convention. the complaint.
 ILO 111: Discrimination in Employment Convention
 ILO 182: Worst forms of Child Labour Convention.  Lodging of Individual Complaints
 ILO 138: Minimum age of Employment Convention.
- This is provided for under articles 24 and 26 of the ILO
HOW THE ILO ENFORCES ITS STANDARDS ACROSS Constitution.
MEMBER STATES
- Under this provision, any worker or employers’ association
 Reporting/Supervisory Procedures can make representations to the ILO about violations of any
convention by a state.
- Every state that is a member state reports periodically to the
ILO on the implementation process of the conventions. - Once these complaints are lodged they are investigated thus
piling pressure on states to comply.
- States have a duty to provide these reports once they ratify the
conventions. - Unfortunately, the ILO has no enforcement mechanisms
against a state that ignores its advice.
  The Carrots Approach  Law. Example article 50 of the Constitution on the
presumption of innocence. Its effect is to fix the legal
- Under the carrots approach, the ILO encourages and enforces burden of proof to establish the guilt of an accused
implementation of the standards in the conventions through person on the state. This remains so throughout the
provision of technical and financial support to states to case.
facilitate compliance.  Reference to the pleadings: Example: An assertion by
the plaintiff that the defendant caused the accident
- State parties who are keen to implement the conventions but through negligent conduct places the burden on the
have no technical and financial resources are assisted thus plaintiff to prove the negligence.
enhancing implementation of the conventions. - It usually does not shift from the commencement of the
 Use of National Courts trial till its close.
- Section 108 of the Evidence Act provides for the legal
- As mentioned earlier, Kenya has ratified several of the ILO burden of proof by stating as follows:-
conventions. ‘’The burden of proof in a suit or proceeding lies on
that person who would fail if no evidence at all were
- These conventions form part of the country’s national laws. given on either side.’’
b) The Evidential burden of proof
- The ILO encourages aggrieved individuals to enforce its - This is the burden to provide evidence to prove a fact.
recommendations in these conventions through national - When one provides evidence to establish a fact in issue,
courts. he thereby discharges both:
 The legal burden of proof; and
- A party can file case to compel the offending party to observe  The evidential burden of proof.
the guidelines in the ILO conventions.
- This burden usually shifts during the trial.
LESSON 11 - In a criminal case, the state has the overall legal burden to
demonstrate the guilt of the accused.
TOPIC: BURDEN OF PROOF - At the trial, the state gives evidence which if sufficient,
will establish a prima facie case requiring a response by
1. Conventional Approach the accused person.
- Party alleging must prove. Both the legal and evidential - The establishment of a prima facie case by the state results
burden of proof lies with the party asserting a fact in the in the accused person being placed on his defense through
first instance.; Section 107 of Evidence Act the pronouncement of a case to answer.
a) The legal burden of proof - When this happens, the evidential burden shifts from the
- This burden lies with the party asserting a fact that is in state to the accused person to provide evidence to dislodge
dispute. the prima facie case. (See section 109 0f the Evidence
- This is the burden that is fixed either by Act).

Employment Law and Burden of Proof

- In large part, employment law adopts the reverse burden It appears unjust to demand of an employee in the
of proof. circumstances to fault the dismissal beyond simply
- Instead of requiring the employee to provide evidence to asserting that it was unfair which assertion should shift
prove some assertions by him/her, the law requires the the burden of proof onto the employer to justify the
employer to provide evidence to disprove the assertions termination.
by the employee. - This seems to be the import of section 112 of the Evidence
- In effect, if the employer does not do this, the court may Act. It provides as here-below:-
proceed to find him/her in breach of some obligations in
relation to the employment contract. Section 112: Proof of special knowledge in civil
proceedings
Possible Explanations for this Position ‘’In civil proceedings, when any fact is especially
within the knowledge of any party to those
a) Law Proceeds on the basis of rebuttable presumptions proceedings, the burden of proving or disproving
of law. that fact is upon him.’’
- Once an employee raises a claim, the law raises a c) The Imbalance in Power
presumption of guilt on the part of the employee which - Historically, we can also think of this arrangement in
the employer must then dislodge by leading evidence to terms of the power spread in the employment relation.
the contrary. - The employer will be thought of as having a controlling
- Example: Section 45 (2) of the E.A provides thus:- influence in the relation.
‘’A termination of employment by an employer is - He/she as a result, will be in control of the evidence on an
unfair if the employer fails to prove………’’ issue in the relation.
- Here the law raises a presumption in favor of the - Thus, he/she should be burdened to provide it.
unlawfulness of a termination unless an employer
provides evidence to justify it.
- By this presumption, the law effectively shifts the burden What Employment Law then Demands
of justifying a dismissal onto the employer even if it is the
employee who will be alleging that the termination was  Employee to establish a Prima Facie Case
unlawful. - Although the burden generally lies with the employer, this
b) Facts in Dispute within the Peculiar knowledge of the is not the same thing as saying that the employee is left as
Employer an idle party in the proceedings.
- Usually, evidence on matters in dispute in employment - For a cause of action to arise, the employer must have
cases are in possession/custody of the employer. breached some obligation. In a dismissal for instance, the
- Therefore, it is only fair that the employer is called upon employer must have executed the dismissal.
to furnish evidence in resolving these disputes. - The employee must therefore lay preliminary evidence of
Example: When an employer asserts that he/she a dismissal before the court.
dismissed an employee for gross misconduct, evidence
establishing this can only be with the employer.
- This action is what is called the laying of a prima facie - Under section 43 of the Act, if the employer fails to
case which then requires an employer’s elaborate provide evidence to justify a termination, the law declares
justification of his/her action. that the termination shall be deemed as unlawful.
- That is why section 47 (5) of the E.A suggests that the  Discrimination Claims in the Workplace
burden of proving of proving a wrongful termination shall - Section 5 of the E.A bans negative discrimination at the
lie with the employee whilst the burden of justifying the workplace.
grounds of termination shall lie with the employer. - Under section 5(7) of the Act, where an employee alleges
- Taken literally, the section suggests the existence of two discrimination, the burden is on the employer to
burdens concurrently. This is misleading. The proper way demonstrate that the conduct complained of was not
to understand it is that the employee is required to discriminatory.
establish a prima facie case to warrant the shift in the - Section 11 of the Labour Relations Act appears to suggest
burden of proof so that the employer can justify his/her that there exists a burden dual on discrimination cases.
action. - However, it only requires the party alleging to lay a prima
 Specific Instances where the reverse burden is facie case by providing the factual basis for the complaint
seen before the burden shifts to the opponent.
 Disputes as to the Terms of a Written - Once the complainant lays out the facts that suggest
Contract of Employment differential treatment, then the onus shifts onto the
- Section 10 of the E.A requires an employer to maintain opponent to justify the facts as nondiscriminatory.
records of written contracts of service. When the Conventional Burden of Proof Applies
- Section 10(7) of the Act obligates an employer to provide  Constructive Dismissal
evidence to prove any particular term in a written - This is because the facts providing the foundation of the
contract. employee’s assertion that the employer forced the
- If he fails, this will be construed in favour of the resignation are within the knowledge of the employee.
employee.
- The law therefore places the burden of proving or
disproving alleged terms of the employment contract on
the employer irrespective of who may have raised the
issue in court.
 Proving Lawfulness of a Termination
- Sections 43 and 45 of the E.A place the burden of proof
on the validity of grounds for termination on the
employer.
- This is notwithstanding that it will be the employee
alleging wrongful termination.