Point in Time
Act No: No. 11 of 2007
Act Title: EMPLOYMENT
[ Date of commencement: 2nd June, 2008. ]
[ Date of assent: 22th October, 2007. ]
Arrangement of Sections
PART I – PRELIMINARY
1.
Short title

This Act may be cited as the Employment Act, 2007.

PART II – GENERAL PRINCIPLES
4.
Prohibition against forced labour
(1)

No person shall use or assist any other person in recruiting, trafficking or using forced labour.

(2)

The term “forced or compulsory labour” shall not include—

(a)

any work or service exacted by virtue of compulsory military service laws for work of a purely military character:

Provided that forced or compulsory recruitment of children for use in armed conflict shall be deemed to be forced or compulsory labour;

(b)

any work or service which forms part of the normal civic obligations of the citizens of Kenya;

(c)

any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the work or service is carried out under the supervision and control of a public authority and that the person is not hired out to or placed at the disposal of private persons, companies or associations;

(d)

any work or service exacted in cases of an emergency, such as in the event of war or disaster or threat of calamity in any circumstance that would endanger the existence or the well-being of the whole or part of the population; and

(e)

minor communal services performed by the members of the community in the direct interest of the said community, provided the members of the community or their representatives are consulted.

(3)

A person who contravenes the provisions of this section commits an offence and shall, on conviction be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding two years or to both.

6.
Sexual harassment
(1)

An employee is sexually harassed if the employer of that employee or a representative of that employer or a co-worker—

(a)

directly or indirectly requests that employee for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express—

(i) promise of preferential treatment in employment;
(ii) threat of detrimental treatment in employment; or
(iii) threat about the present or future employment status of the employee;
(b)

uses language whether written or spoken of a sexual nature;

(c)

uses visual material of a sexual nature; or

(d)

shows physical behaviour of a sexual nature which directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee and that by its nature has a detrimental

effect on that employee’s employment, job performance, or job satisfaction.

(2)

An employer who employs twenty or more employees shall, after consulting with the employees or their representatives if any, issue a policy statement on sexual harassment.

(3)

The policy statement required under subsection (2) may contain any term the employer considers appropriate for the purposes of this section and shall contain—

(a)

the definition of sexual harassment as specified in subsection (1);

(b)

a statement—

(i) that every employee is entitled to employment that is free of sexual harassment;
(ii) that the employer shall take steps to ensure that no employee is subjected to sexual harassment;
(iii) that the employer shall take such disciplinary measures as the employer deems appropriate against any person under the employer’s direction, who subjects any employee to sexual harassment;
(iv) explaining how complaints of sexual harassment may be brought to the attention of the employer; and
(v) that the employer will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purpose of investigating the complaint or taking disciplinary measures in relation thereto.
(4)

An employer shall bring to the attention of each person under the employer’s direction the policy statement required under subsection (2).

PART III – EMPLOYMENT RELATIONSHIP
7.
Contract of service

No person shall be employed under a contract of service except in accordance with the provisions of this Act.

8.
Oral and written contracts

The provisions of this Act shall apply to oral and written contracts.

9.
General provision of contract of service
(1)

A contract of service—

(a)

for a period or a number of working days which amount in the aggregate to the equivalent, of three months or more; or

(b)

which provides for the performance of any specified work which could not reasonably be expected to be completed within a period or a number of working days amounting in the aggregate to the equivalent of three months,

shall be in writing.

(2)

An employer who is a party to a written contract of service shall be responsible for causing the contract to be drawn up stating particulars of employment and that the contract is consented to by the employee in accordance with subsection (3).

(3)

For the purpose of signifying his consent to a written contract of service an employee may—

(a)

sign his name thereon; or

(b)

imprint thereon an impression of his thumb or one of his fingers in the presence of a person other than his employer.

(4)

Where an employee is illiterate or cannot understand the language in which the contract is written, or the provisions of the contract of service, the employer shall have the contract explained to the employee in a language that the employee understands.

12.
Statement on disciplinary rules
(1)

A statement under section 10 shall—

(a)

specify the disciplinary rules applicable to the employee or refer the employee to the provisions of a document which is reasonably accessible to the employee which specifies the rules;

(b)

specify the person to whom the employee may apply—

(i) if dissatisfied with any disciplinary decision relating to the employee; and
(ii) for the purpose of seeking redress of any grievance relating to his employment and the manner in which an application shall be made; and
(c)

where there are further steps to be taken consequent to any such application, explain the steps or refer the employee to the provisions of a document which is accessible to the employee which explains the steps.

(2)

Subsection (1) shall not apply to rules, disciplinary decisions, grievances, or procedures relating to health or safety at work.

(3)

This section shall not apply where as at the date the employee starts work the employer has employed less than fifty employees.

14.
Reasonably accessible document or collective agreement

In sections 11, 12 and 13, references to a document or collective agreement which is reasonably accessible to an employee are references to a document or collective agreement which—

(a)

the employee has reasonable opportunities of reading in the course of his employment; or

(b)

is made reasonably accessible to the employee in some other way.

15.
Informing employees of their rights

An employer shall display a statement in the prescribed form of the employee’s rights under this Act in a conspicuous place, which is accessible to all the employees.

PART IV – PROTECTION OF WAGES
18.
When wages or salaries due
(1)

Where a contract of service entered into under which a task or piece-work is to be performed by an employee, the employee shall be entitled—

(a)

when the task has not been completed, at the option of his employer, to be paid by his employer at the end of the day in proportion to the amount of the task which has been performed, or to complete the task on the following day, in which case he shall be entitled to be paid on completion of the task; or

(b)

in the case of piece-work, to be paid by his employer at the end of each month in proportion to the amount of work which he has performed during the month, or on completion of the work, whichever date is the earlier.

(2)

Subject to subsection (1), wages or salaries shall be deemed to be due—

(a)

in the case of a casual employee, at the end of the day;

(b)

in the case of an employee employed for a period of more than a day but not exceeding one month, at the end of that period;

(c)

in the case of an employee employed for a period exceeding one month, at the end of each month or part thereof;

(d)

in the case of an employee employed for an indefinite period or on a journey, at the expiration of each month or of such period, whichever date is the earlier, and on the completion of the journey, respectively.

(3)

The provisions of this section shall not affect an order, judgment or award of the Industrial Court or an agreement between an employee and his employer the relevant terms of which are more favorable to the employee than the provisions of this section.

(4)

Where an employee is summarily dismissed for lawful cause, the employee shall, on dismissal be paid all moneys, allowances and benefits due to him up to the date of his dismissal.

(5)

Upon the termination of a contract of service—

(a)

by effluxion of time, it shall be the duty of the employer to ensure that the employee is paid the entire amount of the wages earned by or payable to the employee and of the allowances due to him as have not been paid;

(b)

by dismissal, the employer shall, within seven days, deliver to a labour officer in the district in which the employee was working a written report specifying the circumstances leading to, and the reasons for, the dismissal and stating the period of notice and the amount of wages in lieu thereof to which the employee would, but for the dismissal, have been entitled; and the report shall specify the amount of any wages and other allowance earned by him since the date of the employee’s dismissal.

(6)

No wages shall be payable to an employee in respect of a period during which the employee is detained in custody or is serving a sentence of imprisonment imposed under any law.

20.
Itemised pay statement
(1)

An employer shall give a written statement to an employee at or before the time at which any payment of wages or salary is made to the employee.

(2)

The statement specified in subsection (1) shall contain particulars of—

(a)

the gross amount of the wages or salary of the employee;

(b)

the amounts of any variable and subject to section 22, any statutory deductions from that gross amount and the purposes for which they are made; and

(c)

where different parts of the net amount are paid in different ways, the amount and method of payment of each part-payment.

(3)

This section shall not apply to a casual employee or an employee engaged on piece-rate or task-rate terms or for any period not exceeding six months.

(4)

The Minister may exclude any category of employees or employees employed in any sector from the application of this section.

21.
Statement of statutory deductions
(1)

A pay statement issued in accordance with section 20 need not contain separate particulars of statutory deductions if—

(a)

it contains an aggregate amount of statutory deduction, including that deduction; and

(b)

the employer has given to the employee, at or before the time at which the pay statement is given, a statement of statutory deductions specified in subsection (2).

(2)

A statement of statutory deductions shall be—

(a)

in writing;

(b)

contain, in relation to each deduction comprised in the aggregate amount of deductions, particulars of—

(i) the amount of the deduction;
(ii) the intervals at which the deduction is to be made; and
(iii) the purpose for which it is made; and
(c)

in accordance with subsection (5), effective at the date on which the pay statement is given.

(3)

A statement of statutory deductions may be amended by—

(a)

the addition of a new deduction;

(b)

a change in the particulars; or

(c)

the cancellation of an existing deduction, by notice in writing, containing particulars of the amendment given by the employer to the employee.

(4)

An employer who has given to an employee a statement of statutory deductions shall—

(a)

within the period of twelve months beginning on the date the first statement of statutory deductions was given; and

(b)

at intervals of not more than twelve months afterwards, re-issue it in a consolidated form incorporating any amendments notified in accordance with subsection (3).

(5)

For the purposes of subsection (2)(c), a statement of deductions—

(a)

becomes effective on the date on which it is given to the employee; and

(b)

ceases to be effective at the end of the period of twelve months beginning on that date or, where it is re-issued in accordance with subsection (4), at the end of the period of twelve months beginning with the date of the last re-issue.

23.
Security bond for wages
(1)

An employer who is not incorporated or resident in Kenya may be required by the Minister to pay a bond assessed at the equivalent of one month’s wages for all employees employed or to be employed by the employer.

(2)

A bond paid by any employer shall be held by the Minister on behalf of that employer in a separate interest bearing account and shall not be used for any purpose other than paying wages and other entitlements to that employer’s employees in the event of default by that employer.

24.
Death of an employee
(1)

When the death of an employee from any cause whatsoever is brought to the notice or comes to the knowledge of the employee’s employer, the employer shall as soon as practicable thereafter, give notice of the death in the prescribed form to the labour officer or, if there is no labour officer, to the district commissioner of the district in which the employee was employed.

(2)

Upon the death of an employee during the term of a contract of service, the legal representatives of the employee shall, upon proof of capacity as required by law, be entitled to be paid wages and any other remuneration and property due to the employee as at the date of death within thirty days of submitting the proof.

(3)

The employer of the deceased employee shall, within seven days of such payment provide the labour officer or in his absence the district commissioner with evidence of the payment.

(4)

Where on expiry of three months after the employee’s death—

(a)

no legal representative has laid claim to the wages or property of the employee; or

(b)

where the employer is in doubt of or has rejected any claim made to the wages or the property of the employee,

the employer, shall deliver to the labour officer or district commissioner, as the case may be, all wages due to the employee at the date of his death and shall deliver to him all property of the deceased employee to be held by the labour officer or the district commissioner in trust subject to the Law of Succession Act (Cap. 160) or any other written law applicable to the disposal of a deceased person’s property.

(5)

Where an employee is, during the course of his employment killed or incapacitated by injury for a period exceeding three days, his employer shall as soon as practicable, send to the labour officer or, if there is no labour officer to a district commissioner a report in the prescribed form.

25.
Repayment of remuneration wrongfully withheld or deducted
(1)

Without prejudice to any other liability for a breach of the provisions of this Part, an employer who contravenes the provisions of this Part commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding two years or to both and shall be required to repay any remuneration wrongfully withheld or wrongfully deducted from the employee.

(2)

An employee may file a complaint under this Part—

(a)

to a labour officer;

(b)

not later than three years after the alleged unlawful deduction has been made.

PART V – RIGHTS AND DUTIES IN EMPLOYMENT
26.
Basic minimum conditions of employment
(1)

The provisions of this Part and Part VI shall constitute basic minimum terms and conditions of contract of service.

(2)

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

27.
Hours of work
(1)

An employer shall regulate the working hours of each employee in accordance with the provisions of this Act and any other written law.

(2)

Notwithstanding subsection (1), an employee shall be entitled to at least one rest day in every period of seven days.

28.
Annual leave
(1)

An employee shall be entitled—

(a)

after every twelve consecutive months of service with his employer to not less than twenty-one working days of leave with full pay;

(b)

where employment is terminated after the completion of two or more consecutive months of service during any twelve months’ leave-earning period, to not less than one and three-quarter days of leave with full pay, in respect of each completed month of service in that period, to be taken consecutively.

(2)

An employer may, with the consent of the employee divide the minimum annual leave entitlement under subsection (1)(a) into different parts to be taken at different intervals.

(3)

Unless otherwise provided in an agreement between an employee and an employer or in a collective agreement, and on condition that the length of service of an employee during any leave-earning period specified in subsection (1)(a) entitles the employee to such a period, one part of the parts agreed upon under subsection (2) shall consist of at least two uninterrupted working weeks.

(4)

The uninterrupted part of the annual leave with pay referred to in subsection (3) shall be granted and taken during the twelve consecutive months of service referred to in subsection (1)(a) and the remainder of the annual leave with pay shall be taken not later than eighteen months from the end of the leave earning period referred to in subsection (1)(a) being the period in respect of which the leave entitlement arose.

(5)

Where in a contract of service an employee is entitled to leave days in excess of the minimum specified in subsection (1)(a), the employer and the employee may agree on how to utilize the leave days.

30.
Sick leave
(1)

After two consecutive months of service with his employer, an employee shall be entitled to sick leave of not less than seven days with full pay and thereafter to sick leave of seven days with half pay, in each period of twelve consecutive months of service, subject to production by the employee of a certificate of incapacity to work signed by a duly qualified medical practitioner or a person acting on the practitioner’s behalf in charge of a dispensary or medical aid centre.

(2)

For an employee to be entitled to sick leave with full pay under subsection (1), the employee shall notify or cause to be notified as soon as is reasonably practicable his employer of his absence and the reasons for it.

(3)

For the purposes of subsections (1) and (2) “full pay” includes wages at the basic rate excluding deductions from the wages allowable under section 19.

(4)

For purposes of subsection (1), the twelve continuous months of service shall be deemed to commence on the date of the employment of the employee and on such subsequent anniversary dates of employment.

(5)

An employer shall have the right to place all his employees on an annual cycle of an anniversary date falling on a day to be determined by the employer.

32.
Water

An employer shall provide a sufficient supply of wholesome water for the use of his employees at the place of employment and, as the case may be, within a reasonable distance of any housing accommodation provided for the employees by the employer.

33.
Food
(1)

An employer shall, where the provision of food has been expressly agreed to in or at the time of entering into a contract of service, ensure that an employee is properly fed and supplied with sufficient and proper cooking utensils and means of cooking, at the employer’s expense.

(2)

The provisions of this section shall not be deemed to impose upon an employer any liability in respect of an employee during the time the employee is absent from his place of employment without the permission of the employer or without other lawful excuse.

34.
Medical attention
(1)

Subject to subsection (2), an employer shall ensure the sufficient provision of proper medicine for his employees during illness and if possible, medical attendance during serious illness.

(2)

An employer shall take all reasonable steps to ensure that he is notified of the illness of an employee as soon as reasonably practicable after the first occurrence of the illness.

(3)

It shall be a defence to a prosecution for an offence under subsection (1) if the employer shows that he did not know that the employee was ill and that he took all reasonable steps to ensure that the illness was brought to his notice or that it would have been unreasonable, in all the circumstances of the case, to have required him to know that the employee was ill.

(4)

This section shall not apply where—

(a)

the illness or injury to the employee was contracted during a period when the employee was absent from his employment without lawful cause or excuse;

(b)

the illness or injury is proved to have been self inflicted;

(c)

medical treatment is provided free of charge by the Government or under any insurance scheme established under any written law which covers the employee.

PART VI – TERMINATION AND DISMISSAL
35.
Termination notice
(1)

A contract of service not being a contract to perform specific work, without reference to time or to undertake a journey shall, if made to be performed in Kenya, be deemed to be—

(a)

where the contract is to pay wages daily, a contract terminable by either party at the close of any day without notice;

(b)

where the contract is to pay wages periodically at intervals of less than one month, a contract terminable by either party at the end of the period next following the giving of notice in writing; or

(c)

where the contract is to pay wages or salary periodically at intervals of or exceeding one month, a contract terminable by either party at the end of the period of twenty-eight days next following the giving of notice in writing.

(2)

Subsection (1) shall not apply in the case of a contract of service whose terms provide for the giving of a period of notice of termination in writing greater than the period required by the provision of this subsection which would otherwise be applicable thereto.

(3)

If an employee who receives notice of termination is not able to understand the notice, the employer shall ensure that the notice is explained orally to the employee in a language the employee understands.

(4)

Nothing in this section affects the right—

(a)

of an employee whose services have been terminated to dispute the lawfulness or fairness of the termination in accordance with the provisions of section 46; or

(b)

of an employer or an employee to terminate a contract of employment without notice for any cause recognised by law.

(5)

An employee whose contract of service has been terminated under subsection (1)(c) shall be entitled to service pay for every year worked, the terms of which shall be fixed.

(6)

This section shall not apply where an employee is a member of—

(a)

a registered pension or provident fund scheme under the Retirement Benefits Act;

(b)

a gratuity or service pay scheme established under a collective agreement;

(c)

any other scheme established and operated by an employer whose terms are more favourable than those of the service pay scheme established under this section; and

(d)

the National Social Security Fund.

36.
Payment in lieu of notice

Either of the parties to a contract of service to which section 35(5) applies, may terminate the contract without notice upon payment to the other party of the remuneration which would have been earned by that other party, or paid by him as the case may be in respect of the period of notice required to be given under the corresponding provisions of that section.

38.
Waiver of notice by employer

Where an employee gives notice of termination of employment and the employer waives the whole or any part of the notice, the employer shall pay to the employee remuneration equivalent to the period of notice not served by the employee as the case may be, unless the employer and the employee agree otherwise.

[Corr. No. 1/2008.]

39.
Contract expiring on a journey may be extended

If the period expressed in a contract of service expires, or if an employee seeks to terminate a contract where no agreement is expressed respecting its duration while the employee is engaged on a journey, the employer may, for the purpose of the completion of the journey, extend the period of service for a sufficient period, but in any case not exceeding one month, to enable the employee to complete the journey.

41.
Notification and hearing before termination on grounds of misconduct
(1)

Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.

(2)

Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.

42.
Termination of probationary contracts
(1)

The provisions of section 41 shall not apply where a termination of employment terminates a probationary contract.

(2)

A probationary period shall not be more than six months but it may be extended for a further period of not more than six months with the agreement of the employee.

(3)

No employer shall employ an employee under a probationary contract for more than the aggregate period provided under subsection (2).

(4)

A party to a contract for a probationary period may terminate the contract by giving not less than seven days’ notice of termination of the contract, or by payment, by the employer to the employee, of seven days’ wages in lieu of notice.

43.
Proof of reason for termination
(1)

In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.

(2)

The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.

44.
Summary dismissal
(1)

Summary dismissal shall take place when an employer terminates the employment of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term.

(2)

Subject to the provisions of this section, no employer has the right to terminate a contract of service without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term.

(3)

Subject to the provisions of this Act, an employer may dismiss an employee summarily when the employee has by his conduct indicated that he has fundamentally breached his obligations arising under the contract of service.

(4)

Any of the following matters may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause, but the enumeration of such matters or the decision of an employer to dismiss an employee summarily under subsection (3) shall not preclude an employer or an employee from respectively alleging or disputing whether the facts giving rise to the same, or whether any other matters not mentioned in this section, constitute justifiable or lawful grounds for the dismissal if—

(a)

without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work;

(b)

during working hours, by becoming or being intoxicated, an employee renders himself unwilling or incapable to perform his work properly;

(c)

an employee wilfully neglects to perform any work which it was his duty to perform, or if he carelessly and improperly performs any work which from its nature it was his duty, under his contract, to have performed carefully and properly;

(d)

an employee uses abusive or insulting language, or behaves in a manner insulting, to his employer or to a person placed in authority over him by his employer;

(e)

an employee knowingly fails, or refuses, to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer;

(f)

in the lawful exercise of any power of arrest given by or under any written law, an employee is arrested for a cognizable offence punishable by imprisonment and is not within fourteen days either released on bail or on bond or otherwise lawfully set at liberty; or

(g)

an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer’s property.

45.
Unfair termination
(1)

No employer shall terminate the employment of an employee unfairly.

(2)

A termination of employment by an employer is unfair if the employer fails to prove—

(a)

that the reason for the termination is valid;

(b)

that the reason for the termination is a fair reason—

(i) related to the employee’s conduct, capacity or compatibility; or
(ii) based on the operational requirements of the employer; and
(c)

that the employment was terminated in accordance with fair procedure.

(3)

An employee who has been continuously employed by his employer for a period not less than thirteen months immediately before the date of termination shall have the right to complain that he has been unfairly terminated.

(4)

A termination of employment shall be unfair for the purposes of this Part where—

(a)

the termination is for one of the reasons specified in section 46; or

(b)

it is found out that in all the circumstances of the case, the employer did not act in accordance with justice and equity in terminating the employment of the employee.

(5)

In deciding whether it was just and equitable for an employer to terminate the employment of an employee, for the purposes of this section, a labour officer, or the Industrial Court shall consider—

(a)

the procedure adopted by the employer in reaching the decision to dismiss the employee, the communication of that decision to the employee and the handling of any appeal against the decision;

(b)

the conduct and capability of the employee up to the date of termination;

(c)

the extent to which the employer has complied with any statutory requirements connected with the termination, including the issuing of a certificate under section 51 and the procedural requirements set out in section 41;

(d)

the previous practice of the employer in dealing with the type of circumstances which led to the termination; and

(e)

the existence of any pervious warning letters issued to the employee.

46.
Reasons for termination or discipline

The following do not constitute fair reasons for dismissal or for the imposition of a disciplinary penalty—

(a)

a female employee’s pregnancy, or any reason connected with her pregnancy;

(b)

the going on leave of an employee, or the proposal of an employee to take, any leave to which he was entitled under the law or a contract;

(c)

an employee’s membership or proposed membership of a trade union;

(d)

the participation or proposed participation of an employee in the activities of a trade union outside working hours or, with the consent of the employer, within working hours;

(e)

an employee’s seeking of office as, or acting or having acted in the capacity of, an officer of a trade union or a workers’ representative;

(f)

an employee’s refusal or proposed refusal to join or withdraw from a trade union;

(g)

an employee’s race, colour, tribe, sex, religion, political opinion or affiliation, national extraction, nationality, social origin, marital status, HIV status or disability;

(h)

an employee’s initiation or proposed initiation of a complaint or other legal proceedings against his employer, except where the complaint is shown to be irresponsible and without foundation; or

(i)

an employee’s participation in a lawful strike.

48.
Representation

In any complaint made under section 47, no advocate shall represent a party in the proceedings before a labour officer, but any party may be assisted or represented by an official of a trade union or an official of an employers’ organisation notwithstanding the fact that the official is an advocate.

49.
Remedies for wrongful dismissal and unfair termination
(1)

Where in the opinion of a labour officer summary dismissal or termination of a contract of an employee is unjustified, the labour officer may recommend to the employer to pay to the employee any or all of the following—

(a)

the wages which the employee would have earned had the employee been given the period of notice to which he was entitled under this Act or his contract of service;

(b)

where dismissal terminates the contract before the completion of any service upon which the employee’s wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph (a) which the employee would have been entitled to by virtue of the contract; or

(c)

the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.

(2)

Any payments made by the employer under this section shall be subject to statutory deductions.

(3)

Where in the opinion of a labour officer an employee’s summary dismissal or termination of employment was unfair, the labour officer may recommend to the employer to—

(a)

reinstate the employee and treat the employee in all respects as if the employee’s employment had not been terminated; or

(b)

re-engage the employee in work comparable to that in which the employee was employed prior to his dismissal, or other reasonably suitable work, at the same wage.

(4)

A labour officer shall, in deciding whether to recommend the remedies specified in subsections (1) and (3), take into account any or all of the following—

(a)

the wishes of the employee;

(b)

the circumstances in which the termination took place, including the extent, if any, to which the employee caused or contributed to the termination; and

(c)

the practicability of recommending reinstatement or re-engagement;

(d)

the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances;

(e)

the employee’s length of service with the employer;

(f)

the reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for the termination;

(g)

the opportunities available to the employee for securing comparable or suitable employment with another employer;

(h)

the value of any severance payable by law;

(i)

the right to press claims or any unpaid wages, expenses or other claims owing to the employee;

(j)

any expenses reasonably incurred by the employee as a consequence of the termination;

(k)

any conduct of the employee which to any extent caused or contributed to the termination;

(l)

any failure by the employee to reasonably mitigate the losses attributable to the unjustified termination; and

(m)

any compensation, including ex gratia payment, in respect of termination of employment paid by the employer and received by the employee.

50.
Courts to be guided

In determining a complaint or suit under this Act involving wrongful dismissal or unfair termination of the employment of an employee, the Industrial Court shall be guided by the provisions of section 49.

51.
Certificate of service
(1)

An employer shall issue to an employee a certificate of service upon termination of his employment, unless the employment has continued for a period of less than four consecutive weeks.

(2)

A certificate of service issued under subsection (1) shall contain—

(a)

the name of the employer and his postal address;

(b)

the name of the employee;

(c)

the date when employment of the employee commenced;

(d)

the nature and usual place of employment of the employee;

(e)

the date when the employment of the employee ceased; and

(f)

such other particulars as may be prescribed.

(3)

Subject to subsection (1), no employer is bound to give to an employee a testimonial, reference or certificate relating to the character or performance of that employee.

(4)

An employer who wilfully or by neglect fails to give an employee a certificate of service in accordance with subsection (1), or who in a certificate of service includes a statement which he knows to be false, commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding six months or to both.

PART VII – PROTECTION OF CHILDREN
52.
Interpretation

In this Part, except where the context otherwise requires—

“employment” means employment of a child in a situation where—

(a)

the child provides labour as an assistant to another person and his labour is deemed to be the labour of that other person for the purposes of payment;

(b)

the child’s labour is used for gain by any person or institution whether or not the child benefits directly or indirectly; and

(c)

there is in existence a contract for service where the party providing the service is a child whether the person using the services does so directly or by agent.

54.
Complaint to the labour officer or police officer
(1)

A person may make a complaint to a labour officer or a police officer of the rank of an inspector and above if that person considers any child to be employed in any activity which constitutes worst form of child labour.

(2)

On receipt of a complaint under subsection (1), the labour officer or the police officer, as the case may be, shall within seven days investigate the complaint and submit his finding to the person who filed the complaint and to the Minister.

(3)

Where the labour officer or the police officer considers it not expedient to conduct an investigation under subsection (2), he shall in writing inform the person and the Minister accordingly, giving reasons thereof.

(4)

Notwithstanding subsection (2) employment of a child in any work constituting worst form of child labour shall constitute a cognisable offence punishable under section 64 or any other written law provided that no person shall be punished twice for the same offence.

55.
Powers of labour officer to cancel and prohibit contracts
(1)

A labour officer may, by notice in writing served upon an employer, terminate or cancel any contract of service, other than a deed of apprenticeship or indentured learnership lawfully entered into under the provisions of the Industrial Training Act (Cap. 237), which has been entered into by a child with the employer, on grounds that, in the opinion of that labour officer, the employer is an undesirable person, or that the nature of the employment constitutes worst forms of child labour or for any other cause which may be prescribed.

(2)

A labour officer may, by notice in writing served upon any person, prohibit that person from employing a child in any class or description of employment specified in the notice, on grounds that, in the opinion of the labour officer, that person is an undesirable person, or that the nature of the employment constitutes worst forms of child labour or for any other cause which may be prescribed.

(3)

A notice given under subsection (1) or subsection (2) shall be personally served upon the employer or the person to whom it is addressed.

(4)

An employer, employee or person who is aggrieved by a notice given under subsection (1) or subsection (2) may, within thirty days after the date of service thereof, appeal in writing against that notice to the Industrial Court which may confirm or set aside the notice and the decision of the court shall be final.

(5)

An employer or a person who, having been served with a notice under subsection (1) or subsection (2) which has not been set aside on appeal, employs or continues to employ the child to whom the notice refers in or about the employment to which the notice relates, or any similar employment, or, as the case may be, employs any child in the employment to which the notice relates, or any similar employment, commits an offence.

(6)

It shall not be an offence for an employer served with a notice given under subsection (1) to continue to employ the child to whom the notice refers during the period of thirty days limited for appeal or, if an appeal is lodged and subject to obtaining from the Industrial Court a temporary stay of execution of the labour officer’s notice within, such period as the court may determine, pending the outcome of that appeal.

57.
Prohibition of written contracts for child between thirteen and sixteen years of age

Subject to the provisions of the Industrial Training Act relating to contracts of apprenticeship or indentured learnership, a person who employs a child of between thirteen and sixteen years of age, or causes such a child to be employed, or being the parent or guardian or other person having for the time being the charge of or control over the child, allows the child to be employed, otherwise than under a verbal contract of service commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding six months or to both.

58.
Restriction in employing child of between thirteen and sixteen years of age to attend machinery
(1)

No person shall employ a child of between thirteen and sixteen years of age, other than one serving under a contract of apprenticeship or indentured learnership in accordance with the provisions of the Industrial Training Act, in an industrial undertaking to attend to machinery.

(2)

No person shall employ a child in any opencast workings or sub-surface workings that are entered by means of a shaft or adit.

61.
Registers of child in employment

An employer who employs a child shall keep and maintain a register containing the following particulars of every child he employs—

(a)

age and date of birth;

(b)

date of entry into and of leaving the employment;

(c)

such other particulars as may be prescribed.

62.
Medical examination of a child employee

An authorised officer may require a child in employment to be medically examined at any time during the period of the child’s employment.

63.
Determination of age
(1)

If, during the hearing of a charge for an offence under this Act it is alleged that any person was at the date of the offence of, over or under a particular age, the court hearing the charge shall, after such inquiry as it considers necessary and after hearing any evidence which may be tendered by any party to the proceedings, determine the age of that person for the purposes of the proceedings, and the determination shall be final.

(2)

No conviction, order or judgment of a court under this Act shall be invalidated by any subsequent proof that the age of any person has not been correctly stated to, or determined by, the court.

(3)

Subject to the provision of subsection (1), whenever any question arises as to the age of an employee and no sufficient evidence is available as to that employee’s age, a medical officer may estimate the age of the employee by his appearance or from any available information, and the age so estimated shall, for purposes of this Act, and until the contrary is proved, be deemed to be the true age of the employee.

64.
Penalty for unlawful employment of child
(1)

A person who employs, engages, or uses a child in an industrial undertaking in contravention of the provisions of this Part, commits an offence.

(2)

A person who uses a child in any activity constituting worst form of child labour commits an offence and shall on conviction be liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding twelve months or to both.

(3)

It shall be a defence if the accused person proves that he genuinely had reason to believe that the child was above the age limit, which is the subject of the charge.

65.
Penalty in case of death or injury of a child
(1)

If a child is killed, dies or suffers any bodily injury in consequence of his employer having contravened any provision of this Part, the employer shall, in addition to any other penalty, be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding twelve months or to both and the whole or any part of the fine may be applied for the benefit of the injured child or his family or otherwise as the Minister may direct.

(2)

An employer shall not be liable under subsection (1)—

(a)

in the case of injury to health, unless the injury was caused directly by the contravention; and

(b)

if a charge against him under this Part in respect of the act or default by which the death or injury was caused has been heard and dismissed before the injury occurred.

PART VIII – INSOLVENCY OF EMPLOYER
67.
Definition of insolvency

An employer is insolvent for the purposes of this Part—

(a)

if the employer is a person who—

(i) has been adjudged bankrupt or has made a composition or arrangement with his creditors; or
(ii) has died and his estate is to be administered in accordance with the Law of Succession Act;
(b)

if the employer is a company—

(i) a winding-up order or an administration order has been made, or a resolution for voluntary winding-up has been passed, with respect to the company; or
(ii) a receiver or a manager of the company’s undertaking has been duly appointed, or possession has been taken, by or on behalf of the holders of any debentures secured by a floating charge, of any property of the company comprised in or subject to the charge.
68.
Debts to which this Part applies

This Part applies to the following debts—

(a)

any arrears of wages in respect of one or more months, but not more than six months or part thereof;

(b)

any amount which the employer is liable to pay the employee for the period of notice required by section 36 or for any failure of the employer to give the period of notice required by section 35(1)(b), and (c);

(c)

any pay in lieu of leave for annual leave days earned but not taken in accordance with section 28;

(d)

any basic award of compensation for unfair dismissal; and

(e)

any reasonable sum by way of reimbursement of the whole or part of any fee or premium paid by an apprentice.