Employment Act
This Act may be cited as the Employment Act.
- Jurisdiction
- Kenya
- Instrument
- Act or statute
- Citation
- Cap. 226
- Version
- 26 Apr 2024
- Language
- en
- Official source
- View official record ↗
Source attribution: Source: Kenya Law
Statute overview
About this statute
This Act may be cited as the Employment Act. Provides definitions of terms used in the Act (e.g. "authorised officer", "child", "employee", "employer"). Section 3 sets out who the Act applies to (employees under a contract of service), lists several excluded services and categories, binds the Government, allows the Cabinet Secretary (after consulting the National Labour Board and considering international instruments) to exclude limited categories by order, permits exclusion of categories governed by special arrangements provided those arrangements give equivalent or better protection, and declares the Act's terms to be minimum terms of employment with any agreement to relinquish them void. No person shall use or assist another in recruiting, trafficking or using forced labour. Employers must promote equal opportunity, eliminate discrimination in employment policies and practices, pay equal remuneration for work of equal value, and employers who contravene the section commit an offence; in proceedings the employer bears the burden of proof.
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Legal text
Provisions of Employment Act
Showing 94 of 94
Part 1
PRELIMINARY
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PRELIMINARY - 1. Short title
This Act may be cited as the Employment Act.
Section 1. Short title Section This Act may be cited as the Employment Act. - 2 Verify source ↗
PRELIMINARY - 2. Interpretation
Provides definitions of terms used in the Act (e.g. "authorised officer", "child", "employee", "employer").
Section 2. Interpretation Section In this Act, unless the context otherwise requires— "authorised officer" means a labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") , employment officer or medical officer; "basic salary" means an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's gross salary excluding allowances and other benefits; "Board" means the National Labour Board; "Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to labour matters; "casual employee" means a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time; "child" means a person who has not attained the age of eighteen years; "collective agreement" means a registered agreement concerning any terms and conditions of employment made in writing between a trade union ("an association of employees whose principal purpose is to regulate relations between employees and employers and includes an employer 's organisation;") and an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") , group of employers or employers' organization; "contract of service" means an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies; "dependent" means a member of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's family or a relative who substantially depends on that employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") for his livelihood; "Director" means a person appointed as the Director of Employment; "disability" means a physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacts adversely on a person's social and economic participation; "employee" means a person employed for wages or a salary and includes an apprentice and indentured learner; "employee contribution" deleted by ActNo. 20 of 2020, Sch. ; "employee earnings" deleted by ActNo. 23 of 2019, s. 52 ; "employer" means any person, public body, firm, corporation or company who or which has entered into a contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company; "employer contribution" means the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 's contribution payable into the National Housing Development Fund ; "exit certificate" means a written authority given by a registered adoption society to a prospective adoptive parent to take the child ("a person who has not attained the age of eighteen years;") from the custody of the adoptive society; "forced or compulsory labour" means any work or service which is extracted from any person under the threat of any penalty, including the threat of a loss of rights or privileges, which is not offered voluntarily by the person doing the work or performing the service; "HIV" means the Human Immune-Deficiency Virus; "industrial undertaking" includes— (a) a mine ("an undertaking, whether public or private, for the extraction of a substance from the surface, or from under the surface of the earth;") , quarry and other works for the extraction of any substance from the surface or under the surface of the earth; (b) a factory or a place where raw materials are manufactured, processed or packaged; (c) the construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, tramway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, viaduct, sewer, drain, well, telegraphic or telephone installation, electrical undertaking, gas work, water work or other work of construction, as well as the preparation for or laying of the foundations of any such work or structure; or (d) transport of passengers or goods by road, rail, or inland waterway, including the handling of goods at docks, quays, wharves and warehouses, but excluding transport by hand: Provided that— (i) the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") , if he sees fit so to do, having regard to the nature of the work involved in any employment carried on in any industrial undertaking, may by order declare that the employment shall be excluded from the provisions of this Part relating to industrial undertakings, and thereupon the employment shall be deemed not to be employment in an industrial undertaking for the purposes of this Part; (ii) an undertaking of which a part only is an industrial undertaking shall not for that reason alone be deemed to be an industrial undertaking; "labour inspector" means a person appointed as a labour inspector; "labour officer" means a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer; "lockout" means the closing of a place of employment or the suspension of work or refusal by an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") to employ any employees— (a) for the purpose of compelling the employees of the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") to accept any demand in request of a trade dispute; and (b) not for the purpose of finally terminating employment ; "migrant worker" means a person who migrates to Kenya with a view to being employed by an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") and includes any person regularly admitted as a migrant worker; "mine" includes an undertaking, whether public or private, for the extraction of a substance from the surface, or from under the surface of the earth; “Minister” deleted by ActNo. 19 of 2015, s. 143(c) ; "National Housing Development Fund" deleted by ActNo. 20 of 2020, Sch. ; "organisation" includes employees' trade unions and employers organisations; "parties" means the parties to a contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") ; "piece work" means any work the pay for which is ascertained by the amount of work performed irrespective of the time occupied in its performance; "probationary contract" means a contract of employment , which is of not more than twelve months duration or part thereof, is in writing and expressly states that it is for a probationary period; "redundancy" means the loss of employment , occupation, job or career by involuntary means through no fault of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , involving termination of employment at the initiative of the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") , where the services of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") are superfluous and the practices commonly known as abolition of office, job or occupation and loss of employment ; "Registrar" means the Registrar of Trade Unions; "remuneration" means the total value of all payments in money or in kind, made or owing to an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") arising from the employment of that employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; "strike" means the cessation of work by employees acting in combination, or a concerted refusal or a refusal under a common understanding of employees to continue to work, for the purpose of compelling their employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") or an employers' organization of which their employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") is a member, to accede to any demand in respect of a trade dispute; "task" means such amount of work as can, in the opinion of an authorised officer ("a labour officer,employment officer or medical officer;") , be performed by an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") in an ordinary working day; "trade union" means an association of employees whose principal purpose is to regulate relations between employees and employers and includes an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 's organisation ("employees' trade unions and employers organisations;") ; "woman" means a female of the age of eighteen years or above; "worst form of child labour" with respect to juveniles, means their employment , engagement or usage in any activity comprising of— (a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory recruitment of children for use in armed conflict; (b) the use, procuring or offering of a child ("a person who has not attained the age of eighteen years;") for prostitution, for the production of pornography or for pornographic performances; (c) the use, procuring or offering of a child ("a person who has not attained the age of eighteen years;") for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of the child ("a person who has not attained the age of eighteen years;") ; "young person" means a child ("a person who has not attained the age of eighteen years;") who has attained the age of sixteen years but has not attained the age of eighteen years. [Act No. 19 of 2015 , s. 143, Act No. 10 of 2018 , s. 85, Act No. 23 of 2019 , s. 52, Act No. 20 of 2020 , Sch., Act No. 2 of 2021 , s. 2.] - 3 Verify source ↗
PRELIMINARY - 3. Application
Section 3 sets out who the Act applies to (employees under a contract of service), lists several excluded services and categories, binds the Government, allows the Cabinet Secretary (after consulting the National Labour Board and considering international instruments) to exclude limited categories by order, permits exclusion of categories governed by special arrangements provided those arrangements give equivalent or better protection, and declares the Act's terms to be minimum terms of employment with any agreement to relinquish them void.
Section 3. Application Section 3(1) This Act shall apply to all employees employed by any employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") under a contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") . Section 3(2)(a) the Kenya Defence Forces or the reserve as respectively defined in the Kenya Defence Forces Act ( Cap. 199 ); Section 3(2)(b) the Kenya Police, the Kenya Prisons Service or the Administration Police Force; Section 3(2)(ba) the Kenya Coast Guard Service; Section 3(2)(bb) the National Intelligence Service; Section 3(2)(c) the National Youth Service; and Section 3(2)(d) an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") and the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 's dependants where the dependants are the only employees in a family undertaking. Section 3(3) This Act shall bind the Government. Section 3(4) The Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") may, after consultation with the Board ("the National Labour Board;") and after taking account of all relevant conventions and other international instruments ratified by Kenya, by order exclude from the application of all or part of this Act limited categories of employees in respect of whom special problems of a substantial nature arise. Section 3(5) The Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") may, after consultation with the Board ("the National Labour Board;") , by order exclude from the application of all or part of this Act categories of employed persons whose terms and conditions of employment are governed by special arrangements: Provided those arrangements afford protection that is equivalent to or better than that part of the Act from which those categories are being excluded. Section 3(6) Subject to the provisions of this Act, the terms and conditions of employment set out in this Act shall constitute minimum terms and conditions of employment of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") and any agreement to relinquish, vary or amend the terms herein set shall be null and void.
Part II
GENERAL PRINCIPLES
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GENERAL PRINCIPLES - 4. Prohibition against forced labour
No person shall use or assist another in recruiting, trafficking or using forced labour.
Section 4. Prohibition against forced labour Section 4(1) No person shall use or assist any other person in recruiting, trafficking or using forced labour. Section 4(2)(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 ("any work or service which is extracted from any person under the threat of any penalty, including the threat of a loss of rights or privileges, which is not offered voluntarily by the person doing the work or performing the service;") ; Section 4(2)(b) any work or service which forms part of the normal civic obligations of the citizens of Kenya; Section 4(2)(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; Section 4(2)(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 Section 4(2)(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. Section 4(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. - 5 Verify source ↗
GENERAL PRINCIPLES - 5. Discrimination inemployment
Employers must promote equal opportunity, eliminate discrimination in employment policies and practices, pay equal remuneration for work of equal value, and employers who contravene the section commit an offence; in proceedings the employer bears the burden of proof.
Section 5. Discrimination inemployment Section 5(1)(a) to promote equality of opportunity in employment in order to eliminate discrimination in employment ; and Section 5(1)(b) to promote and guarantee equality of opportunity for a person who, is a migrant worker ("a person who migrates to Kenya with a view to being employed by an employer and includes any person regularly admitted as a migrant worker;") or a member of the family of the migrant worker ("a person who migrates to Kenya with a view to being employed by an employer and includes any person regularly admitted as a migrant worker;") , lawfully within Kenya. Section 5(2) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice. Section 5(3)(a) on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability ("a physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacts adversely on a person's social and economic participation;") , pregnancy, marital status or HIV ("the Human Immune-Deficiency Virus;") status; Section 5(3)(b) in respect of recruitment, training, promotion, terms and conditions of employment , termination of employment or other matters arising out of the employment . Section 5(4)(a) take affirmative action measurers consistent with the promotion of equality or the elimination of discrimination in the workplace; Section 5(4)(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a job; Section 5(4)(c) employ a citizen in accordance with the National employment policy; or Section 5(4)(d) restrict access to limited categories of employment where it is necessary in the interest of state security. Section 5(5) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall pay his employees equal remuneration ("the total value of all payments in money or in kind, made or owing to an employee arising from the employment of that employee;") for work of equal value. Section 5(6) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") who contravenes the provision of the section commits an offence. Section 5(7) In any proceedings where a contravention of this section is alleged, the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall bear the burden of proving that the discrimination did not take place as alleged, and that the discriminatory act omission is not based on any of the grounds specified in this section. Section 5(8)(a) " employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") " includes an applicant for employment ; Section 5(8)(b) " employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") " includes an employment agency; Section 5(8)(c) an " employment policy or practice" includes any policy or practice relating to recruitment procedures, advertising and selection criteria, appointments and the appointment process, job classification and grading, remuneration ("the total value of all payments in money or in kind, made or owing to an employee arising from the employment of that employee;") , employment benefits and terms and conditions of employment , job assignments, the working environment and facilities, training and development, performance evaluation systems, promotion, transfer, demotion, termination of employment on disciplinary measures. - 6 Verify source ↗
GENERAL PRINCIPLES - 6. Sexual harassment
Section 6 defines sexual harassment and requires employers with twenty or more employees to issue a sexual-harassment policy after consulting employees; employers must prevent sexual harassment, discipline offenders, provide complaint procedures, and keep complainants' identities confidential except when disclosure is necessary for investigation or discipline; employees are entitled to employment free from sexual harassment.
Section 6. Sexual harassment Section 6(1)(a) promise of preferential treatment in employment ; Section 6(1)(a)(i) promise of preferential treatment in employment ; Section 6(1)(a)(ii) threat of detrimental treatment in employment ; or Section 6(1)(a)(iii) threat about the present or future employment status of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; Section 6(1)(b) uses language whether written or spoken of a sexual nature; Section 6(1)(c) uses visual material of a sexual nature; or Section 6(1)(d) shows physical behaviour of a sexual nature which directly or indirectly subjects the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to behaviour that is unwelcome or offensive to that employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") and that by its nature has a detrimental effect on that employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's employment , job performance, or job satisfaction. Section 6(2) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") who employs twenty or more employees shall, after consulting with the employees or their representatives if any, issue a policy statement on sexual harassment. Section 6(3)(a) the definition of sexual harassment as specified in subsection (1) ; Section 6(3)(b) that every employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is entitled to employment that is free of sexual harassment; Section 6(3)(b)(i) that every employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is entitled to employment that is free of sexual harassment; Section 6(3)(b)(ii) that the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall take steps to ensure that no employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is subjected to sexual harassment; Section 6(3)(b)(iii) that the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall take such disciplinary measures as the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") deems appropriate against any person under the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 's direction, who subjects any employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to sexual harassment; Section 6(3)(b)(iv) explaining how complaints of sexual harassment may be brought to the attention of the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") ; and Section 6(3)(b)(v) that the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 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. Section 6(4) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall bring to the attention of each person under the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 's direction the policy statement required under subsection (2) .
Part III
EMPLOYMENT RELATIONSHIP
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EMPLOYMENT RELATIONSHIP - 10. Employment particulars
The employer must provide the written employment particulars specified in subsection (1), which may be given in instalments, and must give them not later than two months after the start of employment.
Section 10. Employment particulars Section 10(1) A written contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") specified in section 9 shall state particulars of employment which may, subject to subsection(3) be given in instalments and shall be given not later than two months after the beginning of the employment. Section 10(2)(a) the name, age, permanent address and sex of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; Section 10(2)(b) the name of the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") ; Section 10(2)(c) the job description of the employment ; Section 10(2)(d) the date of commencement of the employment ; Section 10(2)(e) the form and duration of the contract; Section 10(2)(f) the place of work; Section 10(2)(g) the hours of work; Section 10(2)(h) the remuneration ("the total value of all payments in money or in kind, made or owing to an employee arising from the employment of that employee;") , scale or rate of remuneration ("the total value of all payments in money or in kind, made or owing to an employee arising from the employment of that employee;") , the method of calculating that remuneration ("the total value of all payments in money or in kind, made or owing to an employee arising from the employment of that employee;") and details of any other benefits; Section 10(2)(i) the intervals at which remuneration ("the total value of all payments in money or in kind, made or owing to an employee arising from the employment of that employee;") is paid; Section 10(2)(j) the date on which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's period of continuous employment began, taking into account any employment with a previous employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") which counts towards that period; and Section 10(2)(k) any other prescribed matter. Section 10(3)(a) entitlement to annual leave, including public holidays, and holiday pay, (the particulars given being sufficient to enable the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's entitlement, including any entitlement to accrued holiday pay on the termination of employment , to be precisely calculated); Section 10(3)(a)(i) entitlement to annual leave, including public holidays, and holiday pay, (the particulars given being sufficient to enable the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's entitlement, including any entitlement to accrued holiday pay on the termination of employment , to be precisely calculated); Section 10(3)(a)(ii) incapacity to work due to sickness or injury, including any provision for sick pay; and Section 10(3)(a)(iii) pensions and pension schemes; Section 10(3)(b) the length of notice which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is obliged to give and entitled to receive to terminate his contract of employment ; Section 10(3)(c) where the employment is not intended to be for an indefinite period, the period for which it is expected to continue or, if it is for a fixed term, the date when it is to end; Section 10(3)(d) either the place of work or, where the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is required or permitted to work at various places, an indication of that place of work and of the address of the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") ; Section 10(3)(e) any collective agreements which directly affect the terms and conditions of the employment including, where the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") is not a party, the person by whom they were made; and Section 10(3)(f) the period for which that employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is to work outside Kenya; Section 10(3)(f)(i) the period for which that employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is to work outside Kenya; Section 10(3)(f)(ii) the currency in which remuneration ("the total value of all payments in money or in kind, made or owing to an employee arising from the employment of that employee;") is to be paid while that employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is working outside Kenya; Section 10(3)(f)(iii) any additional remuneration ("the total value of all payments in money or in kind, made or owing to an employee arising from the employment of that employee;") payable to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , and any benefits due to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") by reason of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") working outside Kenya; and Section 10(3)(f)(iv) any terms and conditions relating to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's return to Kenya. Section 10(4)(a) the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's pension rights depend on the terms of a pension scheme established under any provision contained in or having effect under any Act; and Section 10(4)(b) any such provision requires the body or authority to give to a new employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") information concerning the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's pension rights or the determination of questions affecting those rights. Section 10(5) Where any matter stipulated in subsection (1) changes, the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall, in consultation with the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , revise the contract to reflect the change and notify the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") of the change in writing. Section 10(6) The employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall keep the written particulars prescribed in subsection (1) for a period of five years after the termination of employment . Section 10(7) If in any legal proceedings an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") fails to produce a written contract or the written particulars, prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") . - 11 Verify source ↗
EMPLOYMENT RELATIONSHIP - 11. Statement of initial particulars
Requires that where specified particulars are absent they be stated as absent; allows a statement under section 10 to refer employees to other accessible documents or the law/collective agreements for certain particulars; requires particulars from section 10(2) and (3) to be in a single document; and sets timing for giving the statement to employees who will work outside Kenya for over one month.
Section 11. Statement of initial particulars Section 11(1) If in the case of a statement under section 10 there are no particulars to be entered under subsection (2) (d) or (j) or under any of the other provisions of section 10(2) or (3) , that fact shall be stated in the statement. Section 11(2) A statement under section 10 may refer the employee for particulars of any of the matters specified in section 10(3)(a)(ii) and (iii) to the provisions of any other document which is reasonably accessible to the employee. Section 11(3) A statement under section 10 may refer the employee for particulars of either of the matters specified in section 10(3)(e) to the law or to the provisions of any collective agreement directly affecting the terms and conditions of the employment which is reasonably accessible to the employee. Section 11(4) The particulars required by section 10(2) and (3) shall be included in a single document. Section 11(5) Where before the end of the period of two months after the beginning of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's employment the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is to begin to work outside Kenya for a period of more than one month, the statement under section 10 shall be given to him not later than the time when he leaves Kenya in order to begin work. Section 11(6) A statement shall be given to a person under section 10 even if his employment ends before the end of the period within which the statement is required to be given. - 12 Verify source ↗
EMPLOYMENT RELATIONSHIP - 12. Statement on disciplinary rules
Employers must provide employees with disciplinary rules or accessible documents setting out those rules, explain grievance redress and application procedure, and explain subsequent steps; exceptions cover health and safety matters and employers with fewer than fifty employees when the employee starts work.
Section 12. Statement on disciplinary rules Section 12(1)(a) specify the disciplinary rules applicable to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") or refer the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to the provisions of a document which is reasonably accessible to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") which specifies the rules; Section 12(1)(b) if dissatisfied with any disciplinary decision relating to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; and Section 12(1)(b)(i) if dissatisfied with any disciplinary decision relating to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; and Section 12(1)(b)(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 Section 12(1)(c) where there are further steps to be taken consequent to any such application, the steps or refer the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to the provisions of a document which is accessible to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") which explains the steps. Section 12(2) Subsection (1) shall not apply to rules, disciplinary decisions, grievances, or procedures relating to health or safety at work. Section 12(3) This section shall not apply where as at the date the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") starts work the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") has employed less than fifty employees. - 13 Verify source ↗
EMPLOYMENT RELATIONSHIP - 13. Statement of changes
If, after the material date, any particulars required under sections 10 and 12 change, the employer must give the employee a written statement with particulars of the change.
Section 13. Statement of changes Section 13(1) If, after the material date there is a change in any of the particulars required under sections 10 and 12 , the employer shall give to the employee a written statement containing particulars of the change. Section 13(2)(a) in relation to particulars which are included or referred to in a statement given under section 10 otherwise than in instalments, the material date is the date to which the statement relates; Section 13(2)(b) are included or referred to in an instalment of a statement given under section 10 , or Section 13(2)(b)(i) are included or referred to in an instalment of a statement given under section 10 , or Section 13(2)(b)(ii) are required by section 11(4) to be included in a single document but are not included in an instalment of a statement given under section 10 which does include other particulars to which that provision applies, the material date is the date to which the instalment relates; and Section 13(2)(c) in relation to any other matter the material date is the date by which a statement under section 10 is required to be given. Section 13(3)(a) one month after the change in question, or Section 13(3)(b) where that change results from the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") being required to work outside Kenya for a period of more than one month, the time when the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") leaves to start work if that is earlier. Section 13(4) A statement under subsection (1) may refer the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to the provision of a document which is accessible to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") for a change in any of the matters specified in section 10(3)(ii) and (iii) and section 12(1)(a) and (c) . Section 13(5) A statement under subsection (1) may refer the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") for a change in either of the matters specified in section 10(3)(e) to the law or to the provisions of any collective agreement directly affecting the terms and conditions of the employment which is reasonably accessible to the employee. Section 13(6)(a) the name of the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") is changed without any change in the identity of the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") , or Section 13(6)(b) the identity of the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") is changed in circumstances in which the continuity of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's period of employment is not broken, and subsection (7) applies in relation to the change, Section 13(7) Subsection (6) applies in relation to a change if it does not involve any change in any of the matters, other than the names of the parties ("the parties to a contract of service;") , particulars of which are required by section 10 and 11 to be included or referred to in the statement under subsection (1) . Section 13(8) A statement under subsection (1) which informs an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") of a change referred to in subsection (6)(b) shall specify the date on which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's period of continuous employment began. - 14 Verify source ↗
EMPLOYMENT RELATIONSHIP - 14. Reasonably accessible document orcollective agreement
The employee is entitled to reasonable opportunities to read a reasonably accessible document or collective agreement during the course of employment.
Section 14. Reasonably accessible document orcollective agreement Section the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") has reasonable opportunities of reading in the course of his employment ; or - 15 Verify source ↗
EMPLOYMENT RELATIONSHIP - 15. Informing employees of their rights
An employer must display, in a conspicuous and accessible place, a prescribed-form statement of employees' rights under this Act.
Section 15. Informing employees of their rights Section An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall display a statement in the prescribed form of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's rights under this Act in a conspicuous place, which is accessible to all the employees. - 16 Verify source ↗
EMPLOYMENT RELATIONSHIP - 16. Enforcement
If an employer does not give required statements, the employee may file a complaint with the labour officer; the court can determine missing particulars and the employer will be deemed to have given the corrected statement; failure to give the statement is an offence punishable by a fine or imprisonment; the court may order remedies.
Section 16. Enforcement Section 16(1) Where an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") does not give an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") a statement as required by section 10 , 12 or 13 or an itemised pay statement as required by section 20 , the employee may file a complaint with the labour officer and the complaint shall be deemed to be complaint filed under section 86 . Section 16(2) Where as a result of a complaint arising out of section 10 , 12 , 13 or 20 the Employment and Labour Relations Court determines particulars which ought to have been included or referred to in a statement given under these sections, the employer shall be deemed to have given to the employee a statement in which those particulars were included or referred to as specified in the decision of the Employment and Labour Relations Court. Section 16(3)(a) confirm the particulars as included or referred to in the statement given by the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") ; Section 16(3)(b) amend those particulars; or Section 16(3)(c) substitute other particulars for them as the Employment and Labour Relations Court may determine to be appropriate, and the statement shall be deemed to have been given by the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") in accordance with the courts decision. Section 16(4) A person who fails to give to an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") a statement as required by section 10 , 12 , 13 or 20 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. Section 16(5) Where a person contravenes the sections specified in subsection (1) , a court, on application of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") or the labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") on behalf of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") may, in addition to the penalty specified in subsection (4) order any remedy specified in subsection (3) . - 7 Verify source ↗
EMPLOYMENT RELATIONSHIP - 7. Contract of service
No person may be employed under a 'contract of service' except in accordance with the provisions of this Act.
Section 7. Contract of service Section No person shall be employed under a contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") except in accordance with the provisions of this Act. - 8 Verify source ↗
EMPLOYMENT RELATIONSHIP - 8. Oral and written contracts
The provisions of this Act shall apply to oral and written contracts.
Section 8. Oral and written contracts Section The provisions of this Act shall apply to oral and written contracts. - 9 Verify source ↗
EMPLOYMENT RELATIONSHIP - 9. General provision ofcontract of service
Employers must prepare written contracts of service with particulars and employee consent; employees must sign or thumbprint; employers must explain contracts when the employee is illiterate or does not understand the language; employers generally must not require clearance certificates unless intending to hire, but may request mandatory clearances in compliance with chapter six and may withdraw offers if requirements not met; applicants for state office must provide certificates when required.
Section 9. General provision ofcontract of service Section 9(1)(a) for a period or a number of working days which amount in the aggregate to the equivalent, of three months or more; or Section 9(1)(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, Section 9(2) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") who is a party to a written contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") 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 ("a person employed for wages or a salary and includes an apprentice and indentured learner;") in accordance with subsection (3) . Section 9(3)(a) sign his name thereof; or Section 9(3)(b) imprint thereon an impression of his thumb or one of his fingers in the presence of a person other than his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") . Section 9(4) Where an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is illiterate or cannot understand the language in which the contract is written, or the provisions of the contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") , the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall have the contract explained to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") in a language that employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") understands. Section 9(5) In respect of recruitment, an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall not require an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to submit any clearance or compliance certificate unless such employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") intends to enter into a contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") with the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") : Provided that an applicant for a state office shall provide compliance or clearance certificates at such times in the recruitment or approval process as they may be required. Section 9(6) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") who intends to enter into a written contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") may, in compliance with chapter six of the Constitution, request an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to submit mandatory clearance certificates from the relevant entities. Section 9(7) Notwithstanding subsection (6) , an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") may, where an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") does not satisfy the requirements under subsection (6) , withdraw an offer of contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") . Section 9(8)(a) not charge a fee for the issuance of a clearance or compliance certificate under this section or any other written law; Section 9(8)(b) issue an applicant with the clearance or compliance certificate or reject the application within seven days of receipt of the application. Section 9(9)(a) " employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") " includes an applicant for employment ; Section 9(9)(b) " employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") " includes an employment agency; Section 9(9)(c) "relevant entity" includes any public or private entity that issues clearance certificates for purposes of satisfying the requirements under chapter six of the Constitution.
Part IV
PROTECTION OF WAGES
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PROTECTION OF WAGES - 17. Payment, disposal and recovery of wages, allowances, etc.
Section 17 requires employers to pay employees their wages on working days during working hours at or near the workplace (or another agreed place), prohibits certain conditioned advances and limitations on disposal of wages, limits recoverability of excessive advances, and protects some employee wage claims from court attachments up to six months' wages.
Section 17. Payment, disposal and recovery of wages, allowances, etc. Section 17(1)(a) in cash; Section 17(1)(b) into an account at a bank, or building society, designated by the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; Section 17(1)(c) by cheque, postal order or money order in favour of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; or Section 17(1)(d) in the absence of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , to a person other than the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , if the person is duly authorised by the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") in writing to receive the wages on the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's behalf. Section 17(2) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall pay wages to an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") on a working day, and during working hours, at or near to the place of employment or at such other place as may be agreed between the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") and the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") . Section 17(3) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall not pay wages to an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") in any place where intoxicating liquor is sold or readily available for supply, except in the case of employees employed to work in that place. Section 17(4) No person shall give or promise to any person any advance of money or any valuable consideration upon a condition expressed or implied that the person or any dependant of that person shall enter upon any employment . Section 17(5)(a) is for the personal use and benefit of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; and Section 17(5)(b) does not consist of or include any intoxicating spirit or noxious drug. Section 17(6) Notwithstanding the provisions of any law for the time being in force, whenever an attachment has been issued against the property of an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") in execution of a decree against him, the proceeds realised in pursuance of that execution shall not be paid by the court to a decree-holder until a decree obtained against the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") in respect of the wages of employees has been satisfied to the extent of a sum not exceeding six months' wages of those employees. Section 17(7) Nothing in subsection (6) shall prevent an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") from recovering any balance due after such satisfaction, by ordinary process of law. Section 17(8) Subsection (6) shall not apply if the attachment is issued against an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") undergoing insolvency as defined under Part VIII in which case the provisions under that Part shall apply. Section 17(9) If an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") advances to an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") a sum in excess of the amount of one month's wages of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") or, in the case of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") employed under a written contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") , a sum in excess of the amount of two months' wages of that employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , the excess shall not be recoverable in a court of law. Section 17(10)(a) subject to section 19 , wilfully fails to make payment of or to tender the wages earned by or payable to an employee in accordance with subsection (1) ; or Section 17(10)(b) contravenes any of the provisions of subsections (2) , (3) , (4) and (5) , Section 17(11) No employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall limit or attempt to limit the right of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to dispose of his wages in a manner which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") deems fit, nor by a contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") or otherwise seek to compel an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to dispose of his wages or a portion thereof in a particular place or for a particular purpose in which the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") has a direct or indirect beneficial interest. - 18 Verify source ↗
PROTECTION OF WAGES - 18. When wages or salaries due
Section 18 sets when wages or salaries are payable and includes employer duties on payment and reporting after dismissal, and an employee entitlement to be paid on completion of certain tasks.
Section 18. When wages or salaries due Section 18(1)(a) when the task ("such amount of work as can, in the opinion of an authorised officer, be performed by an employee in an ordinary working day;") has not been completed, at the option of his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") , to be paid by his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") at the end of the day in proportion to the amount of the task ("such amount of work as can, in the opinion of an authorised officer, be performed by an employee in an ordinary working day;") which has been performed, or to complete the task ("such amount of work as can, in the opinion of an authorised officer, be performed by an employee in an ordinary working day;") on the following day, in which case he shall be entitled to be paid on completion of the task ("such amount of work as can, in the opinion of an authorised officer, be performed by an employee in an ordinary working day;") ; or Section 18(1)(b) in the case of piece work ("any work the pay for which is ascertained by the amount of work performed irrespective of the time occupied in its performance;") , to be paid by his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 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. Section 18(2)(a) in the case of a casual employee ("a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time;") , at the end of the day; Section 18(2)(b) in the case of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") employed for a period of more than a day but not exceeding one month, at the end of that period; Section 18(2)(c) in the case of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") employed for a period exceeding one month, at the end of each month or part thereof; Section 18(2)(d) in the case of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 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. Section 18(3) The provisions of this section shall not affect an order, judgment or award of the Employment and Labour Relations Court or an agreement between an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") and his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") the relevant terms of which are more favorable to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") than the provisions of this section. Section 18(4) Where an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is summarily dismissed for lawful cause, the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") shall, on dismissal be paid all moneys, allowances and benefits due to him up to the date of his dismissal. Section 18(5)(a) by effluxion of time, it shall be the duty of the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") to ensure that the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is paid the entire amount of the wages earned by or payable to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") and of the allowances due to him as have not been paid; Section 18(5)(b) by dismissal, the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall, within seven days, deliver to a labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") in the district in which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 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 ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 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 employees dismissal. Section 18(6) No wages shall be payable to an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") in respect of a period during which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is detained in custody or is serving a sentence of imprisonment imposed under any law. - 19 Verify source ↗
PROTECTION OF WAGES - 19. Deduction of wages
Section 19 lists specific situations where an employer may deduct amounts from an employee's wages, caps total deductions at two thirds of wages (subject to Cabinet Secretary prescription), forbids deductions as an advance in consideration of employment, requires remittance of certain deducted amounts in accordance with specified instruments, and prescribes penalties for failure to remit.
Section 19. Deduction of wages Section 19(1)(a) any amount due from the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") as a contribution to any provident fund or superannuation scheme or any other scheme approved by the Commissioner for Labour to which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") has agreed to contribute; Section 19(1)(b) a reasonable amount for any damage done to, or loss of, any property lawfully in the possession or custody of the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") occasioned by the wilful default of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; Section 19(1)(c) an amount not exceeding one day's wages in respect of each working day for the whole of which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , without leave or other lawful cause, absents himself from the premises of the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") or other place proper and appointed for the performance of his work; Section 19(1)(d) an amount equal to the amount of any shortage of money arising through the negligence or dishonesty of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") whose contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") provides specifically or his being entrusted with the receipt, custody and payment of money; Section 19(1)(e) any amount paid to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") in error as wages in excess of the amount of wages due to him; Section 19(1)(f) any amount the deduction of which is authorised by any written law for the time being in force, collective agreement ("a registered agreement concerning any terms and conditions of employment made in writing between a trade union and an employer, group of employers or employers' organization;") , wage determination, court order or arbitration award; Section 19(1)(g) any amount in which the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") has no direct or indirect beneficial interest, and which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") has requested the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") in writing to deduct from his wages; Section 19(1)(h) an amount due and payable by the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") under and in accordance with the terms of an agreement in writing, by way of repayment or part repayment of a loan of money made to him by the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") , not exceeding fifty per cent of the wages payable to that employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") after the deduction of all such other amounts as may be due from him under this section; and Section 19(1)(i) such other amounts as the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") may prescribe. Section 19(2) No employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall make a deduction from the wages payable to an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") as an advance of wages in consideration of, or as a reward for, the provision of employment for that employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , or for retaining the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") in employment . Section 19(3) Without prejudice to any right of recovery of any debt due, and notwithstanding the provisions of any other written law, the total amount of all deductions which under the provisions of subsection (1) , may be made by an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") from the wages of his employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") at any one time shall not exceed two thirds of such wages or such additional or other amount as may be prescribed by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") either generally or in relation to a specified employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") or employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") or class of employers or employees or any trade or industry. Section 19(4) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") who deducts an amount from an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's remuneration ("the total value of all payments in money or in kind, made or owing to an employee arising from the employment of that employee;") in accordance with subsection (1)(a) , (f) , (g) and (h) shall pay the amount so deducted in accordance with the time period and other requirements specified in the law, agreement court order or arbitration as the case may be. Section 19(5) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") who fails to comply with the provisions of subsection (4) 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. Section 19(6) Where proceedings are brought under subsection (5) in respect of failure by the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") to remit deductions from an employees remuneration ("the total value of all payments in money or in kind, made or owing to an employee arising from the employment of that employee;") , the court may, in addition to fining the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") order the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") to refund to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") the amount deducted from the employees wages, and pay the intended beneficiary on behalf of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") with the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 's own funds. - 20 Verify source ↗
PROTECTION OF WAGES - 20. Itemised pay statement
An employer must give a written itemised pay statement to an employee at or before payment, stating gross pay, specified deductions (subject to section 22) and, where parts are paid differently, the amount and method of each part-payment.
Section 20. Itemised pay statement Section 20(1) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall give, a written statement to an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") at or before the time at which any payment of wages or salary is made to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") . Section 20(2)(a) the gross amount of the wages or salary of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; Section 20(2)(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 Section 20(2)(c) where different parts of the net amount are paid in different ways, the amount and method of payment of each part-payment. Section 20(3) This section shall not apply to a casual employee ("a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time;") or an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") engaged on piece rate or task ("such amount of work as can, in the opinion of an authorised officer, be performed by an employee in an ordinary working day;") rate terms or for any period not exceeding six months. Section 20(4) The Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") may exclude any category of employees or employees employed in any sector from the application of this section. - 21 Verify source ↗
PROTECTION OF WAGES - 21. Statement of statutory deductions
The employer must give the employee, at or before the time the pay statement is given, a statement of statutory deductions specified in subsection (2).
Section 21. Statement of statutory deductions Section 21(1)(a) it contains an aggregate amount of statutory deduction, including that deduction; and Section 21(1)(b) the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") has given to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , at or before the time at which the pay statement is given, a statement of statutory deductions specified in subsection (2) . Section 21(2)(a) in writing; Section 21(2)(b) the amount of the deduction; Section 21(2)(b)(i) the amount of the deduction; Section 21(2)(b)(ii) the intervals at which the deduction is to be made; and Section 21(2)(b)(iii) the purpose for which it is made; and Section 21(2)(c) in accordance with subsection (5) , effective at the date on which the pay statement is given. Section 21(3)(a) the addition of a new deduction; Section 21(3)(b) a change in the particulars; or Section 21(3)(c) the cancellation of an existing deduction, by notice in writing, containing particulars of the amendment given by the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") . Section 21(4)(a) within the period of twelve months beginning on the date the first statement of statutory deductions was given; and Section 21(4)(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) . Section 21(5)(a) becomes effective on the date on which it is given to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; and Section 21(5)(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. - 22 Verify source ↗
PROTECTION OF WAGES - 22. Power to amend provisions on pay and statements of deductions
Power to vary the particulars which must be included in a pay statement or a statement of statutory deductions by adding, removing or amending items listed in sections 20 and 21.
Section 22. Power to amend provisions on pay and statements of deductions Section vary the provisions of sections 20 and 21 as to the particulars which must be included in a pay statement or a statement of statutory deductions by adding items to, or removing items from, the particulars listed in those sections or by amending any such particulars; and - 23 Verify source ↗
PROTECTION OF WAGES - 23. Security bond for wages
Foreign (non‑incorporated or non‑resident) employers may be required by the Cabinet Secretary to pay a bond equal to one month's wages for employees; the Cabinet Secretary must hold such bonds in a separate interest‑bearing account and may only use them to pay wages and entitlements if the employer defaults.
Section 23. Security bond for wages Section 23(1) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") who is not incorporated or resident in Kenya may be required by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") to pay a bond assessed at the equivalent of one month's wages for all employees employed or to be employed by the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") . Section 23(2) A bond paid by any employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall be held by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") on behalf of that employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") in a separate interest bearing account and shall not be used for any purpose other than paying wages and other entitlements to that employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 's employees in the event of default by that employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") . - 24 Verify source ↗
PROTECTION OF WAGES - 24. Death of anemployee
When an employee dies or is killed/incapacitated, the employer must notify the labour officer or district commissioner, pay or deliver wages and property as required, provide evidence of payment, and report killings/incapacitations; legal representatives may be paid within 30 days upon proof.
Section 24. Death of anemployee Section 24(1) When the death of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") from any cause whatsoever is brought to the notice or comes to the knowledge of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") , the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall as soon as practicable thereafter, give notice of the death in the prescribed form to the labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") or, if there is no labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") , to the district commissioner of the district in which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") was employed. Section 24(2) Upon the death of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") during the term of a contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") , the legal representatives of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") shall, upon proof of capacity as required by law, be entitled to be paid wages and any other remuneration ("the total value of all payments in money or in kind, made or owing to an employee arising from the employment of that employee;") and property due to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") as at the date of death within thirty days of submitting the proof. Section 24(3) The employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") of the deceased employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") shall, within seven days of such payment provide the labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") or in his absence the district commissioner with evidence of the payment. Section 24(4)(a) no legal representative has laid claim to the wages or property of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; or Section 24(4)(b) where the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") is in doubt of or has rejected any claim made to the wages or the property of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") , shall deliver to the labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") or district commissioner as the case may be all wages due to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") at the date of his death and shall deliver to him all property of the deceased employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to be held by the labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a 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 persons property. Section 24(5) Where an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is, during the course of his employment killed or incapacitated by injury for a period exceeding three days, his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall as soon as practicable, send to the labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") or, if there is no labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") to a district commissioner a report in the prescribed form. - 25 Verify source ↗
PROTECTION OF WAGES - 25. Repayment ofremunerationwrongfully withheld or deducted
Employers who contravene Part IV must repay any remuneration wrongfully withheld or deducted from an employee and commit an offence punishable by a fine up to one hundred thousand shillings or imprisonment up to two years or both.
Section 25. Repayment ofremunerationwrongfully withheld or deducted Section 25(1) Without prejudice to any other liability for a breach of the provisions of this Part, an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 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 ("the total value of all payments in money or in kind, made or owing to an employee arising from the employment of that employee;") wrongfully withheld or wrongfully deducted from the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") . Section 25(2)(a) to a labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") ; Section 25(2)(b) not later than three years after the allegedly unlawful deduction has been made.
Part IX
EMPLOYMENT RECORDS
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EMPLOYMENT RECORDS - 74. Records to be kept byemployer
Employers must keep the employee records listed in Section 74(1)(a)–(m) and must allow an authorised officer to inspect records for the preceding thirty-six months; employers of children who keep the register required by section 61 with the particulars in subsection (1) are deemed to have complied.
Section 74. Records to be kept byemployer Section 74(1)(a) of a policy statement under section 6(2) where applicable; Section 74(1)(b) specified in section 10(3) ; Section 74(1)(c) specified in section 13 ; Section 74(1)(d) specified in sections 21 and 22 ; Section 74(1)(e) of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's weekly rest days specified in section 27 ; Section 74(1)(f) of an employees annual leave entitlement, days taken and days due specified in section 28 ; Section 74(1)(g) of maternity leave specified in section 29 ; Section 74(1)(h) of sick leave specified in section 30 ; Section 74(1)(i) where the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") provides housing, particulars of the accommodation provided and, where the wage rates are deconsolidated particulars of the house allowance paid to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; Section 74(1)(j) of food rations where applicable; Section 74(1)(k) specified in section 61 ; Section 74(1)(l) of a record of warning letters or other evidence of misconduct of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; and Section 74(1)(m) any other particulars required to be kept under any written law or as may be prescribed by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") . Section 74(2) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall permit an authorised officer ("a labour officer,employment officer or medical officer;") who may require an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") to produce for inspection the record for any period relating to the preceding thirty six months to examine the record. Section 74(3) Where an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") who employs a child ("a person who has not attained the age of eighteen years;") maintains a register in accordance with section 61 , the employer shall be deemed to have complied with this section if the register contains in relation to each child, the particulars required to be kept by the employer under subsection (1) . - 75 Verify source ↗
EMPLOYMENT RECORDS - 75. False entries etc.
A person who makes or allows a knowingly false entry in required registers or who produces a document known to be false to an authorised officer commits an offence and on conviction may be fined up to one hundred thousand shillings or imprisoned up to six months or both.
Section 75. False entries etc. Section A person who makes, causes to be made or knowingly allows to be made an entry in a register, record, book or other document whatsoever, required by this Act to be kept, which that person knows to be false in a material particular, or produces, furnishes, causes or knowingly allows to be produced or furnished, to an authorised officer ("a labour officer,employment officer or medical officer;") , a register, record, book or other document which he knows to be false in a material particular, 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 V
RIGHTS AND DUTIES IN EMPLOYMENT
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RIGHTS AND DUTIES IN EMPLOYMENT - 26. Basic minimum conditions ofemployment
This Part and Part VI set out the basic minimum terms and conditions of a contract of service; where other laws, agreements, regulations or court orders provide more favourable terms, those favourable terms apply to the employee.
Section 26. Basic minimum conditions ofemployment Section 26(1) The provisions of this Part and Part VI shall constitute basic minimum terms and conditions of contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") . Section 26(2) Where the terms and conditions of a contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") are regulated by any regulations, as agreed in any collective agreement ("a registered agreement concerning any terms and conditions of employment made in writing between a trade union and an employer, group of employers or employers' organization;") or contract between the parties ("the parties to a contract of service;") or enacted by any other written law, decreed by any judgment award or order of the Employment and Labour Relations Court are more favourable to an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") than the terms provided in this Part and Part VI, then such favourable terms and conditions of service shall apply. - 27 Verify source ↗
RIGHTS AND DUTIES IN EMPLOYMENT - 27. Hours of work
Employers must regulate employees' working hours according to this Act; employees are entitled to at least one rest day in every period of seven days.
Section 27. Hours of work Section 27(1) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall regulate the working hours of each employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") in accordance with the provisions of this Act and any other written law. Section 27(2) Notwithstanding subsection (1) , an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") shall be entitled to at least one rest day in every period of seven days. - 28 Verify source ↗
RIGHTS AND DUTIES IN EMPLOYMENT - 28. Annual leave
Sets minimum annual leave entitlements and rules for taking and dividing leave.
Section 28. Annual leave Section 28(1)(a) after every twelve consecutive months of service with his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") to not less than twenty-one working days of leave with full pay; Section 28(1)(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. Section 28(2) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") may, with the consent of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") divide the minimum annual leave entitlement under sub-section (1)(a) into different parts to be taken at different intervals. Section 28(3) Unless otherwise provided in an agreement between an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") and an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") or in a collective agreement ("a registered agreement concerning any terms and conditions of employment made in writing between a trade union and an employer, group of employers or employers' organization;") , and on condition that the length of service of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") during any leave earning period specified in subsection (1)(a) entitles the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to such a period, one part of the parts agreed upon under subsection (2) shall consist of at least two uninterrupted working weeks. Section 28(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. Section 28(5) Where in a contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is entitled to leave days in excess of the minimum specified in subsection (1)(a) , the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") and the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") may agree on how to utilize the leave days. - 29 Verify source ↗
RIGHTS AND DUTIES IN EMPLOYMENT - 29. Maternity leave
Female employees are entitled to three months' maternity leave with full pay and to return to their prior or a suitably equivalent job; they must give at least seven days' written notice (or a shorter reasonable period) and may be required to produce a medical certificate. Male employees are entitled to two weeks' paternity leave with full pay.
Section 29. Maternity leave Section 29(1) A female employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") shall be entitled to three months maternity leave with full pay. Section 29(2) On expiry of a female employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's maternity leave as provided in subsections (1) and (3) , the female employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") shall have the right to return to the job which she held immediately prior to her maternity leave or to a reasonably suitable job on terms and conditions not less favourable than those which would have applied had she not been on maternity leave. Section 29(3)(a) the maternity leave has been extended with the consent of employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") ; or Section 29(3)(b) immediately on expiry of maternity leave before resuming her duties a female employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") proceeds on sick leave or with the consent of the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") on annual leave; compassionate leave; or any other leave, Section 29(4) A female employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") shall only be entitled to the rights mentioned in subsections (1) , (2) and (3) if she gives not less than seven days notice in advance or a shorter period as may be reasonable in the circumstances of her intention to proceed on maternity leave on a specific date and to return to work thereafter. Section 29(5) The notice referred to in subsection (4) shall be in writing. Section 29(6) A female employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") who seeks to exercise any of the rights mentioned in this section shall, if required by the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") , produce a certificate as to her medical condition from a qualified medical practitioner or midwife. Section 29(7) No female employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") shall forfeit her annual leave entitlement under section 28 on account of having taken her maternity leave. Section 29(8) A male employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") shall be entitled to two weeks paternity leave with full pay. - 29A Verify source ↗
RIGHTS AND DUTIES IN EMPLOYMENT - 29A. Pre-adoptive leave
An employee who will have a child placed in their care under section 157 of the Children Act is entitled to one month's pre-adoptive leave with full pay from the placement date; the employee must notify the employer in writing at least fourteen days before placement and must accompany that notice with documentation (custody agreement and exit certificate).
Section 29A. Pre-adoptive leave Section 29A(1) Where pursuant to section 157 of the Children Act ( Cap. 141 ), a child is to be placed in the continuous care and control of an applicant who is an employee under this Act, the employee shall be entitled to one month's pre-adoptive leave with full pay from the date of the placement of the child. Section 29A(2) An employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") eligible for leave under subsection (1) shall notify the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") in writing of the intention of the adoption society to place the child ("a person who has not attained the age of eighteen years;") in the custody of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") at least fourteen days before the placement of the child ("a person who has not attained the age of eighteen years;") . Section 29A(3) A notice under subsection (2) shall be accompanied by documentation evidencing the intention of the adoption society to place the child ("a person who has not attained the age of eighteen years;") in the custody of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , including a custody agreement between the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") and the adoption society and an exit certificate ("a written authority given by a registered adoption society to a prospective adoptive parent to take the child from the custody of the adoptive society;") . Section 29A(4) Subsections (2) , (3) and (7) of section 29 shall, with necessary modifications, apply to an employee eligible to leave under this section. - 30 Verify source ↗
RIGHTS AND DUTIES IN EMPLOYMENT - 30. Sick leave
Employees are entitled to sick leave (minimum seven days full pay, then seven days half pay per 12 months) after two months' service, subject to a medical certificate; employees must notify employers promptly to get full pay; employers may set an annual anniversary cycle.
Section 30. Sick leave Section 30(1) After two consecutive months of service with his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") , an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 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 ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 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. Section 30(2) For an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to be entitled to sick leave with full pay under subsection (1) , the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") shall notify or cause to be notified as soon as is reasonably practicable his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") of his absence and the reasons for it. Section 30(3) For the purposes of sub-section (1) and (2) "full pay" includes wages at the basic rate excluding deductions from the wages allowable under section 19 . Section 30(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 ("a person employed for wages or a salary and includes an apprentice and indentured learner;") and on such subsequent anniversary dates of employment . Section 30(5) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 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 ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") . - 31 Verify source ↗
RIGHTS AND DUTIES IN EMPLOYMENT - 31. Housing
Employers must at their own expense provide reasonable housing for each employee at or near the workplace or pay a sufficient sum as rent to enable the employee to obtain reasonable accommodation.
Section 31. Housing Section 31(1) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall at all times, at his own expense, provide reasonable housing accommodation for each of his employees either at or near to the place of employment , or shall pay to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") such sufficient sum, as rent, in addition to the wages or salary of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , as will enable the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to obtain reasonable accommodation. Section 31(2)(a) contains a provision which consolidates as part of the basic wage or salary of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , an element intended to be used by the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") as rent or which is otherwise intended to enable the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to provide himself with housing accommodation; or Section 31(2)(b) is the subject matter of or is otherwise covered by a collective agreement ("a registered agreement concerning any terms and conditions of employment made in writing between a trade union and an employer, group of employers or employers' organization;") which provides consolidation of wages as provided in paragraph (a) . Section 31(3) The Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") may, on the recommendation of the Board ("the National Labour Board;") by notice in the Gazette , exclude the application of this section to a category of employees and such category of employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") shall be dealt with as shall be specified in the notice. - 31A Verify source ↗
RIGHTS AND DUTIES IN EMPLOYMENT - 31A.[Deleted by ActNo. 20 of 2020Sch.]
Section 31A has been deleted by Act No. 20 of 2020.
Section 31A.[Deleted by ActNo. 20 of 2020Sch.] - 31B Verify source ↗
RIGHTS AND DUTIES IN EMPLOYMENT - 31B.[Repealed by ActNo. 2 of 2024, Third Sch.]
Section 31B has been repealed.
Section 31B.[Repealed by ActNo. 2 of 2024, Third Sch.] - 31C Verify source ↗
RIGHTS AND DUTIES IN EMPLOYMENT - 31C.[Repealed by ActNo. 2 of 2024, Third Sch.]
Section 31C was repealed.
Section 31C.[Repealed by ActNo. 2 of 2024, Third Sch.] - 32 Verify source ↗
RIGHTS AND DUTIES IN EMPLOYMENT - 32. Water
An employer must provide a sufficient supply of wholesome water for employees at the workplace and, where applicable, within a reasonable distance of employer-provided housing.
Section 32. Water Section An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 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 ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") . - 33 Verify source ↗
RIGHTS AND DUTIES IN EMPLOYMENT - 33. Food
If providing food was agreed when hiring, an employer must feed the employee and provide cooking utensils and means of cooking at the employer's expense.
Section 33. Food Section 33(1) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall, where the provision of food has been expressly agreed to in or at the time of entering into a contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") , ensure that an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is properly fed and supplied with sufficient and proper cooking utensils and means of cooking, at the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 's expense. Section 33(2) The provisions of this section shall not be deemed to impose upon an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") any liability in respect of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") during the time the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is absent from his place of employment without the permission of the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") or without other lawful excuse. - 34 Verify source ↗
RIGHTS AND DUTIES IN EMPLOYMENT - 34. Medical attention
Employers must provide sufficient and proper medicine for employees during illness and, if possible, medical attendance for serious illness; they must take reasonable steps to be notified promptly of employee illness. Employers have a defence to prosecution if they did not know and took reasonable steps, and subsections (4)(a)–(c) list further exceptions.
Section 34. Medical attention Section 34(1) Subject to subsection (2) , an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall ensure the provision sufficient and of proper medicine for his employees during illness and if possible, medical attendance during serious illness. Section 34(2) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall take all reasonable steps to ensure that he is notified of the illness of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") as soon as reasonably practicable after the first occurrence of the illness. Section 34(3) It shall be a defence to a prosecution for an offence under subsection (1) if the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shows that he did not know that the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 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 ("a person employed for wages or a salary and includes an apprentice and indentured learner;") was ill. Section 34(4)(a) the illness or injury to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") was contracted during a period when the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") was absent from his employment without lawful cause or excuse; Section 34(4)(b) the illness or injury is proved to have been self inflicted; Section 34(4)(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 ("a person employed for wages or a salary and includes an apprentice and indentured learner;") .
Part VI
TERMINATION AND DISMISSAL
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TERMINATION AND DISMISSAL - 35. Termination notice
Sets termination notice periods depending on pay intervals, requires oral explanation of notice if employee cannot understand it, allows dispute of termination and termination without notice for causes recognised by law, and entitles employees terminated under the one-month-or-more rule to service pay.
Section 35. Termination notice Section 35(1)(a) where the contract is to pay wages daily, a contract terminable by either party at the close of any day without notice; Section 35(1)(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 Section 35(1)(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. Section 35(2) Subsection (1) shall not apply in the case of a contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") 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. Section 35(3) If an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") who receives notice of termination is not able to understand the notice, the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall ensure that the notice is explained orally to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") in a language the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") understands. Section 35(4)(a) of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") whose services have been terminated to dispute the lawfulness or fairness of the termination in accordance with the provisions of section 46 ; or Section 35(4)(b) of an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") or an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to terminate a contract of employment without notice for any cause recognised by law. Section 35(5) An employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") whose contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") has been terminated under subsection (1)(c) shall be entitled to service pay for every year worked, the terms of which shall be fixed. Section 35(6)(a) a registered pension or provident fund scheme under the Retirement Benefits Act; Section 35(6)(b) a gratuity or service pay scheme established under a collective agreement ("a registered agreement concerning any terms and conditions of employment made in writing between a trade union and an employer, group of employers or employers' organization;") ; Section 35(6)(c) any other scheme established and operated by an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") whose terms are more favourable than those of the service pay scheme established under this section; and Section 35(6)(d) the National Social Security Fund. - 36 Verify source ↗
TERMINATION AND DISMISSAL - 36. Payment in lieu of notice
Either party to a contract of service (to which section 35(5) applies) may end the contract without notice if they pay the other party the remuneration that would have been earned or paid for the notice period.
Section 36. Payment in lieu of notice Section Either of the parties ("the parties to a contract of service;") to a contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") 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. - 37 Verify source ↗
TERMINATION AND DISMISSAL - 37. Conversion of casualemploymentto term contract
Section 37 sets rules for when casual employment converts to a term contract, entitles certain casual employees to paid rest days and to terms of service after conversion, allows the Employment and Labour Relations Court to vary terms, and permits aggrieved casual employees to file complaints with a labour officer.
Section 37. Conversion of casualemploymentto term contract Section 37(1)(a) works for a period or a number of continuous working days which amount in the aggregate to the equivalent of not less than one month; or Section 37(1)(b) performs work which cannot 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 or more, Section 37(2) In calculating wages and the continuous working days under subsection (1) , a casual employee ("a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time;") shall be deemed to be entitled to one paid rest day after a continuous six days working period and such rest day or any public holiday which falls during the period under consideration shall be counted as part of continuous working days. Section 37(3) An employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") whose contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") has been converted in accordance with subsection (1) , and who works continuously for two months or more from the date of employment as a casual employee ("a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time;") shall be entitled to such terms and conditions of service as he would have been entitled to under this Act had he not initially been employed as a casual employee ("a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time;") . Section 37(4) Notwithstanding any provisions of this Act, in any dispute before the Employment and Labour Relations Court on the terms and conditions of service of a casual employee ("a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time;") , the Employment and Labour Relations Court shall have the power to vary the terms of service of the casual employee ("a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time;") and may in so doing declare the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to be employed on terms and conditions of service consistent with this Act. Section 37(5) A casual employee ("a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time;") who is aggrieved by the treatment of his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") under the terms and conditions of his employment may file a complaint with the labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") and section 86 of this Act shall apply. - 38 Verify source ↗
TERMINATION AND DISMISSAL - 38. Waiver of notice byemployer
If an employee gives notice and the employer waives all or part of that notice, the employer must pay the employee remuneration equal to the period of notice not served, unless they agree otherwise.
Section 38. Waiver of notice byemployer Section Where an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") gives notice of termination of employment and the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") waives the whole or any part of the notice, the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall pay to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") remuneration ("the total value of all payments in money or in kind, made or owing to an employee arising from the employment of that employee;") equivalent to the period of notice not served by the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") as the case may be, unless the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") and the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") agree otherwise. - 39 Verify source ↗
TERMINATION AND DISMISSAL - 39. Contract expiring on a journey may be extended
An employer may extend a contract that expires while an employee is on a journey for up to one month so the employee can complete the journey.
Section 39. Contract expiring on a journey may be extended Section If the period expressed in a contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") expires, or if an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") seeks to terminate a contract where no agreement is expressed respecting its duration while the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is engaged on a journey, the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 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 ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to complete the journey. - 40 Verify source ↗
TERMINATION AND DISMISSAL - 40. Termination on account ofredundancy
When making redundancies the employer must notify the union and labour officer (if employee is in a union) or notify the employee in writing and the labour officer (if not), must consider seniority and skill in selecting staff, must pay leave in cash, at least one month's notice or wages in lieu, and severance of at least fifteen days' pay per completed year; subsection (1) does not apply in cases of insolvency and the Cabinet Secretary may make rules requiring employers to insure against redundancy.
Section 40. Termination on account ofredundancy Section 40(1)(a) where the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is a member of a trade union ("an association of employees whose principal purpose is to regulate relations between employees and employers and includes an employer 's organisation;") , the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") notifies the union to which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is a member and the labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") in charge of the area where the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is employed of the reasons for, and the extent of, the intended redundancy ("the loss of employment, occupation, job or career by involuntary means through no fault of an employee, involving termination of employment at the initiative of the employer, where the services of an employee are superfluous and the practices commonly known as abolition of office, job or occupation and loss of employment;") not less than a month prior to the date of the intended date of termination on account of redundancy ("the loss of employment, occupation, job or career by involuntary means through no fault of an employee, involving termination of employment at the initiative of the employer, where the services of an employee are superfluous and the practices commonly known as abolition of office, job or occupation and loss of employment;") ; Section 40(1)(b) where an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is not a member of a trade union ("an association of employees whose principal purpose is to regulate relations between employees and employers and includes an employer 's organisation;") , the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") notifies the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") personally in writing and the labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") ; Section 40(1)(c) the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") has, in the selection of employees to be declared redundant had due regard to seniority in time and to the skill, ability and reliability of each employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") of the particular class of employees affected by the redundancy ("the loss of employment, occupation, job or career by involuntary means through no fault of an employee, involving termination of employment at the initiative of the employer, where the services of an employee are superfluous and the practices commonly known as abolition of office, job or occupation and loss of employment;") ; Section 40(1)(d) where there is in existence a collective agreement ("a registered agreement concerning any terms and conditions of employment made in writing between a trade union and an employer, group of employers or employers' organization;") between an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") and a trade union ("an association of employees whose principal purpose is to regulate relations between employees and employers and includes an employer 's organisation;") setting out terminal benefits payable upon redundancy ("the loss of employment, occupation, job or career by involuntary means through no fault of an employee, involving termination of employment at the initiative of the employer, where the services of an employee are superfluous and the practices commonly known as abolition of office, job or occupation and loss of employment;") ; the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") has not placed the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") at a disadvantage for being or not being a member of the trade union ("an association of employees whose principal purpose is to regulate relations between employees and employers and includes an employer 's organisation;") ; Section 40(1)(e) the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") has where leave is due to an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") who is declared redundant, paid off the leave in cash; Section 40(1)(f) the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") has paid an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") declared redundant not less than one month's notice or one month's wages in lieu of notice; and Section 40(1)(g) the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") has paid to an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") declared redundant severance pay at the rate of not less than fifteen days pay for each completed year of service. Section 40(2) Subsection (1) shall not apply where an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's services are terminated on account of insolvency as defined in Part VIII in which case that Part shall be applicable. Section 40(3) The Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") may make rules requiring an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") employing a certain minimum number of employees or any group of employers to insure their employees against the risk of redundancy ("the loss of employment, occupation, job or career by involuntary means through no fault of an employee, involving termination of employment at the initiative of the employer, where the services of an employee are superfluous and the practices commonly known as abolition of office, job or occupation and loss of employment;") through an unemployment insurance scheme operated either under an established national insurance scheme established under written law or by any firm underwriting insurance business to be approved by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") . - 41 Verify source ↗
TERMINATION AND DISMISSAL - 41. Notification and hearing before termination on grounds of misconduct
Before terminating an employee for misconduct, poor performance or physical incapacity, an employer must explain the reason in a language the employee understands and the employee is entitled to have another employee or a shop floor union representative present; the employer must also hear and consider any representations the employee (or the person chosen under subsection (1)) makes before termination or summary dismissal under section 44(3) or (4).
Section 41. Notification and hearing before termination on grounds of misconduct Section 41(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. Section 41(2) Notwithstanding any other provision of this Part, an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall, before terminating the employment of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") or summarily dismissing an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 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 Verify source ↗
TERMINATION AND DISMISSAL - 42. Termination of probationary contracts
Employers must not keep employees on probationary contracts beyond the total maximum probation period; parties to a probationary contract may end it with at least seven days' notice or by the employer paying seven days' wages instead of notice.
Section 42. Termination of probationary contracts Section 42(1) The provisions of section 41 shall not apply where a termination of employment terminates a probationary contract. Section 42(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 ("a person employed for wages or a salary and includes an apprentice and indentured learner;") . Section 42(3) No employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall employ an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") under a probationary contract ("a contract of employment, which is of not more than twelve months duration or part thereof, is in writing and expressly states that it is for a probationary period;") for more than the aggregate period provided under subsection (2) . Section 42(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 ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , of seven days' wages in lieu of notice. - 43 Verify source ↗
TERMINATION AND DISMISSAL - 43. Proof of reason for termination
Employers must prove the reason(s) for terminating a contract; if they fail to prove them the termination is deemed unfair.
Section 43. Proof of reason for termination Section 43(1) In any claim arising out of termination of a contract, the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall be required to prove the reason or reasons for the termination, and where the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45 . Section 43(2) The reason or reasons for termination of a contract are the matters that the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") at the time of termination of the contract genuinely believed to exist, and which caused the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") to terminate the services of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") . - 44 Verify source ↗
TERMINATION AND DISMISSAL - 44. Summary dismissal
Employers may summarily dismiss an employee for a fundamental breach of the contract of service (examples at (4)(a)–(g)), but otherwise an employer must not terminate without notice or give less notice than the employee is entitled to by statute or contract.
Section 44. Summary dismissal Section 44(1) Summary dismissal shall take place when an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") terminates the employment of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") without notice or with less notice than that to which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is entitled by any statutory provision or contractual term. Section 44(2) Subject to the provisions of this section, no employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") has the right to terminate a contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") without notice or with less notice than that to which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") is entitled by any statutory provision or contractual term. Section 44(3) Subject to the provisions of this Act, an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") may dismiss an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") summarily when the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") has by his conduct indicated that he has fundamentally breached his obligations arising under the contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") . Section 44(4)(a) without leave or other lawful cause, an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") absents himself from the place appointed for the performance of his work; Section 44(4)(b) during working hours, by becoming or being intoxicated, an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") renders himself unwilling or incapable to perform his work properly; Section 44(4)(c) an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 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; Section 44(4)(d) an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") uses abusive or insulting language, or behaves in a manner insulting to his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") or to a person placed in authority over him by his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") ; Section 44(4)(e) an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 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 ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") or a person placed in authority over him by his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") ; Section 44(4)(f) in the lawful exercise of any power of arrest given by or under any written law, an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 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 Section 44(4)(g) an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") or his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 's property. - 45 Verify source ↗
TERMINATION AND DISMISSAL - 45. Unfair termination
Employers must not terminate an employee unfairly; employees with at least thirteen months' continuous service have the right to complain of unfair termination.
Section 45. Unfair termination Section 45(1) No employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall terminate the employment of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") unfairly. Section 45(2)(a) that the reason for the termination is valid; Section 45(2)(b) related to the employees conduct, capacity or compatibility; or Section 45(2)(b)(i) related to the employees conduct, capacity or compatibility; or Section 45(2)(b)(ii) based on the operational requirements of the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") ; and Section 45(2)(c) that the employment was terminated in accordance with fair procedure. Section 45(3) An employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") who has been continuously employed by his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 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. Section 45(4)(a) the termination is for one of the reasons specified in section 46 ; or Section 45(4)(b) it is found out that in all the circumstances of the case, the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") did not act in accordance with justice and equity in terminating the employment of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") . Section 45(5)(a) the procedure adopted by the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") in reaching the decision to dismiss the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , the communication of that decision to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") and the handling of any appeal against the decision; Section 45(5)(b) the conduct and capability of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") up to the date of termination; Section 45(5)(c) the extent to which the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 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 ; Section 45(5)(d) the previous practice of the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") in dealing with the type of circumstances which led to the termination; and Section 45(5)(e) the existence of any previous warning letters issued to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") . - 46 Verify source ↗
TERMINATION AND DISMISSAL - 46. Reasons for termination or discipline
Text references a female employee and mentions pregnancy or reasons connected with her pregnancy in the context of termination or discipline.
Section 46. Reasons for termination or discipline Section a female employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's pregnancy, or any reason connected with her pregnancy; - 47 Verify source ↗
TERMINATION AND DISMISSAL - 47. Complaint of summary dismissal and unfair termination
Employees who are summarily dismissed or unfairly terminated may, within three months, present a complaint to a labour officer; the employee bears the burden of proving unfair termination while the employer must justify the termination; probationary employees whose services were terminated may not complain under this section; employees keep the right to complain to the Employment and Labour Relations Court.
Section 47. Complaint of summary dismissal and unfair termination Section 47(1) Where an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") has been summarily dismissed or his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") has unfairly terminated his employment without justification, the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") may, within three months of the date of dismissal, present a complaint to a labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") and the complaint shall be dealt with as a complaint lodged under section 86 . Section 47(2) A labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") who is presented with a claim under this section shall, after affording every opportunity to both the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") and the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") to state their case, recommend to the parties ("the parties to a contract of service;") what in his opinion would be the best means of settling the dispute in accordance with the provisions section 49 . Section 47(3) The right of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to present a complaint under this section shall be in addition to his right to complain to the Employment and Labour Relations Court on the same issue and to the right to complain of any other infringement of his statutory rights. Section 47(4) The right of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to make a complaint under this section shall be in addition to any right an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") may enjoy under a collective agreement ("a registered agreement concerning any terms and conditions of employment made in writing between a trade union and an employer, group of employers or employers' organization;") . Section 47(5) For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") . Section 47(6) No employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") whose services have been terminated or who has been summarily dismissed during a probationary contract ("a contract of employment, which is of not more than twelve months duration or part thereof, is in writing and expressly states that it is for a probationary period;") shall make a complaint under this section. - 48 Verify source ↗
TERMINATION AND DISMISSAL - 48. Representation
Advocates are prohibited from representing a party before a labour officer in complaints under section 47; any party may instead be assisted or represented by an official of a trade union or an employer's organisation, even if that official is an advocate.
Section 48. Representation Section 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 employer's organisation notwithstanding the fact that the official is an advocate. - 49 Verify source ↗
TERMINATION AND DISMISSAL - 49. Remedies for wrongful dismissal and unfair termination
Provides remedies for wrongful dismissal including payment of wages, proportional pay for uncompleted service, compensation up to 12 months' wages, reinstatement or re-engagement options, and that payments by the employer are subject to statutory deductions.
Section 49. Remedies for wrongful dismissal and unfair termination Section 49(1)(a) the wages which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") would have earned had the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") been given the period of notice to which he was entitled under this Act or his contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") ; Section 49(1)(b) where dismissal terminates the contract before the completion of any service upon which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's wages became due, the proportion of the wage due for the period of time for which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 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 ("a person employed for wages or a salary and includes an apprentice and indentured learner;") would have been entitled to by virtue of the contract; or Section 49(1)(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 ("a person employed for wages or a salary and includes an apprentice and indentured learner;") at the time of dismissal. Section 49(2) Any payments made by the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") under this section shall be subject to statutory deductions. Section 49(3)(a) reinstate the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") and treat the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") in all respects as if the employees employment had not been terminated; or Section 49(3)(b) re-engage the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") in work comparable to that in which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") was employed prior to his dismissal, or other reasonably suitable work, at the same wage. Section 49(4)(a) the wishes of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; Section 49(4)(b) the circumstances in which the termination took place, including the extent, if any, to which the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") caused or contributed to the termination; and Section 49(4)(c) the practicability of recommending reinstatement or re-engagement; Section 49(4)(d) the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances; Section 49(4)(e) the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's length of service with the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") ; Section 49(4)(f) the reasonable expectation of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") as to the length of time for which his employment with that employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") might have continued but for the termination; Section 49(4)(g) the opportunities available to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") for securing comparable or suitable employment with another employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") ; Section 49(4)(h) the value of any severance payable by law; Section 49(4)(i) the right to press claims or any unpaid wages, expenses or other claims owing to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; Section 49(4)(j) any expenses reasonable incurred by the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") as a consequence of the termination; Section 49(4)(k) any conduct of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") which to any extent caused or contributed to the termination; Section 49(4)(l) any failure by the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to reasonably mitigate the losses attributable to the unjustified termination; and Section 49(4)(m) any compensation, including ex-gratia payment, in respect of termination of employment paid by the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") and received by the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") . - 50 Verify source ↗
TERMINATION AND DISMISSAL - 50. Courts to be guided
When deciding wrongful dismissal or unfair termination cases, the Employment and Labour Relations Court must be guided by section 49.
Section 50. Courts to be guided Section In determining a complaint or suit under this Act involving wrongful dismissal or unfair termination of the employment of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , the Employment and Labour Relations Court shall be guided by the provisions of section 49 . - 51 Verify source ↗
TERMINATION AND DISMISSAL - 51. Certificate of service
Employers must give a departing employee a certificate of service (unless employment lasted less than four consecutive weeks) listing specified particulars; employers are not required to provide testimonials; wilful or negligent failure or false statements are an offence punishable by fine or imprisonment.
Section 51. Certificate of service Section 51(1) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall issue to an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") a certificate of service upon termination of his employment , unless the employment has continued for a period of less than four consecutive weeks. Section 51(2)(a) the name of the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") and his postal address; Section 51(2)(b) the name of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; Section 51(2)(c) the date when employment of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") commenced; Section 51(2)(d) the nature and usual place of employment of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ; Section 51(2)(e) the date when the employment of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") ceased; and Section 51(2)(f) such other particulars as may be prescribed. Section 51(3) Subject to subsection (1) , no employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") is bound to give to an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") a testimonial, reference or certificate relating to the character or performance of that employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") . Section 51(4) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") who wilfully or by neglect fails to give an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 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
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PROTECTION OF CHILDREN - 52. Interpretation
Defines "employment" of a child (a person under eighteen) to include situations where the child's labour is provided as an assistant and counted as another's labour for payment, is used for gain by any person or institution, or there is a contract for service where the service provider is a child.
Section 52. Interpretation Section In this Part, except where the context otherwise requires— "employment" means employment of a child ("a person who has not attained the age of eighteen years;") in a situation where— (a) the child ("a person who has not attained the age of eighteen years;") 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 ("a person who has not attained the age of eighteen years;") 's labour is used for gain by any person or institution whether or not the child ("a person who has not attained the age of eighteen years;") benefits directly or indirectly; and (c) there is in existence a contract for service where the party providing the service is a child ("a person who has not attained the age of eighteen years;") whether the person using the services does so directly or by agent. - 53 Verify source ↗
PROTECTION OF CHILDREN - 53. Prohibition of worst forms ofchildlabour
No person must employ a child under eighteen in activities that are worst forms of child labour; the Cabinet Secretary must make regulations (with the National Labour Board) declaring work harmful to children's health, safety or morals.
Section 53. Prohibition of worst forms ofchildlabour Section 53(1) Notwithstanding any provision of any written law, no person shall employ a child ("a person who has not attained the age of eighteen years;") in any activity which constitutes worst form of child labour . Section 53(2) The Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") shall, in consultation with the Board ("the National Labour Board;") , make regulations declaring any work, activity or contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") harmful to the health, safety or morals of a child ("a person who has not attained the age of eighteen years;") and subsection (1) shall apply to such work, activity or contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") . - 54 Verify source ↗
PROTECTION OF CHILDREN - 54. Complaint to thelabour officeror police officer
Allows any person to complain to a labour officer or inspector-grade police officer about a child employed in the worst forms of child labour; requires the labour officer or police to investigate and report within seven days or to inform in writing if not investigating; such employment is a cognisable offence punishable under section 64, with no double punishment.
Section 54. Complaint to thelabour officeror police officer Section 54(1) A person may make a complaint to a labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") or a police officer of the rank of an inspector and above if that person considers any child ("a person who has not attained the age of eighteen years;") to be employed in any activity which constitute worst form of child labour . Section 54(2) On receipt of a complaint under subsection (1) , the labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a 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 Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") . Section 54(3) Where the labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a 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 Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") accordingly, giving reasons thereof. Section 54(4) Notwithstanding subsection (2) employment of a child ("a person who has not attained the age of eighteen years;") 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 Verify source ↗
PROTECTION OF CHILDREN - 55. Powers oflabour officerto cancel and prohibit contracts
Labour officers may cancel child employment contracts and prohibit persons from employing children; notices must be personally served; affected parties may appeal to the Employment and Labour Relations Court within thirty days; employing a child after a notice not set aside is an offence, but continuing employment during the appeal period or with a court stay is permitted.
Section 55. Powers oflabour officerto cancel and prohibit contracts Section 55(1) A labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") may, by notice in writing served upon an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") , terminate or cancel any contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") , 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. Section 55(2) A labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") may, by notice in writing served upon any person, prohibit that person from employing a child ("a person who has not attained the age of eighteen years;") in any class or description of employment specified in the notice, on grounds that, in the opinion of the labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") , that person is an undesirable person, or that the nature of the employment constitutes worst forms of child ("a person who has not attained the age of eighteen years;") labour or for any other cause which may be prescribed. Section 55(3) A notice given under subsection (1) or subsection (2) shall be personally served upon the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") or the person to whom it is addressed. Section 55(4) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") , employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 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 Employment and Labour Relations Court which may confirm or set aside the notice and the decision of the court shall be final. Section 55(5) An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 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 ("a person who has not attained the age of eighteen years;") 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 ("a person who has not attained the age of eighteen years;") in the employment to which the notice relates, or any similar employment , commits an offence. Section 55(6) It shall not be an offence for an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") served with a notice given under subsection (1) to continue to employ the child ("a person who has not attained the age of eighteen years;") 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 Employment and Labour Relations Court a temporary stay of execution of the labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") 's notice within, such period as the court may determine, pending the outcome of that appeal. - 56 Verify source ↗
PROTECTION OF CHILDREN - 56. Prohibition ofemploymentof children between thirteen years and sixteen years of age
No person must not employ a child under thirteen; conditions limit employment of children aged thirteen to sixteen and the Cabinet Secretary may make rules prescribing light work and terms for such employment.
Section 56. Prohibition ofemploymentof children between thirteen years and sixteen years of age Section 56(1) No person shall employ a child ("a person who has not attained the age of eighteen years;") who has not attained the age of thirteen years whether gainfully or otherwise in any undertaking. Section 56(2)(a) not likely to be harmful to the child ("a person who has not attained the age of eighteen years;") 's health or development; and Section 56(2)(b) not such as to prejudice the child ("a person who has not attained the age of eighteen years;") 's attendance at school, his participation in vocational orientation or training programmes approved by Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") or his capacity to benefit from the instructions received. Section 56(3) The Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") may make rules prescribing light work in which a child ("a person who has not attained the age of eighteen years;") of between thirteen years of age and sixteen years of age may be employed and the terms and conditions of that employment . - 57 Verify source ↗
PROTECTION OF CHILDREN - 57. Prohibition of written contracts for children between thirteen and sixteen years of age
It is an offence for a person to employ or allow to be employed a child aged between thirteen and sixteen under a written contract (employment must be under a verbal contract except for specified apprenticeship/learnerships); conviction may lead to a fine up to 100,000 shillings or imprisonment up to six months or both.
Section 57. Prohibition of written contracts for children between thirteen and sixteen years of age Section Subject to the provisions of the Industrial Training Act ( Cap. 237 ) 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 Verify source ↗
PROTECTION OF CHILDREN - 58. Restriction in employingchildof between thirteen and sixteen years of age to attend machinery
No person must employ a child aged between thirteen and sixteen in an industrial undertaking to attend to machinery, except apprentices or indentured learners; and no person must employ a child in opencast or sub-surface workings entered by shaft or adit.
Section 58. Restriction in employingchildof between thirteen and sixteen years of age to attend machinery Section 58(1) No person shall employ a child ("a person who has not attained the age of eighteen years;") 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 ( Cap. 237 ), in an industrial undertaking to attend to machinery. Section 58(2) No person shall employ a child ("a person who has not attained the age of eighteen years;") in any opencast workings or sub-surface workings that are entered by means of a shaft or adit. - 59 Verify source ↗
PROTECTION OF CHILDREN - 59. Time restriction in employing achild
Prohibits employing a child in an industrial undertaking between 6.30 p.m. and 6.30 a.m., subject to section 60; allows employment of male young persons in unforeseen emergencies and allows the Cabinet Secretary to authorise night work for young persons under conditions.
Section 59. Time restriction in employing achild Section 59(1) Subject to section 60 , no person shall employ a child in an industrial undertaking between the hours of 6.30 p.m. and 6.30 a.m. Section 59(2) Notwithstanding the provision of subsection (1) , a person may employ a male young person ("a child who has attained the age of sixteen years but has not attained the age of eighteen years") in cases of emergencies which could not have been controlled or foreseen, and which interfere with the normal working of the industrial undertaking and which are not of a periodical nature. Section 59(3) Notwithstanding the provision of subsection (1) , the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") may, after consultation with the Board ("the National Labour Board;") , authorise an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") in writing to employ a young person ("a child who has attained the age of sixteen years but has not attained the age of eighteen years") for a specific period of the night subject to such conditions as the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") may determine. - 60 Verify source ↗
PROTECTION OF CHILDREN - 60. Emergencies
The Cabinet Secretary may, by notice in the Gazette, suspend the operation of section 59 in case of a serious emergency when the public interest demands it.
Section 60. Emergencies Section In case of a serious emergency, when the public interest demands it, the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") may, by notice in the Gazette , suspend the operation of section 59 . [Act No. 19 of 2015 , s. 152.] - 61 Verify source ↗
PROTECTION OF CHILDREN - 61. Registers ofchildinemployment
Employers must keep a register of child employment listing age and date of birth; date of entry and leaving employment; and other prescribed particulars, and must maintain the register in accordance with the Data Protection Act (Cap. 411C).
Section 61. Registers ofchildinemployment Section 61(1)(a) age and date of birth; Section 61(1)(b) date of entry into and of leaving the employment ; Section 61(1)(c) such other particulars as may be prescribed. Section 61(2) Where an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") maintains such a register, the register shall be maintained in accordance with the principles of data protection as set out in the Data Protection Act ( Cap. 411C ). - 62 Verify source ↗
PROTECTION OF CHILDREN - 62. Medical examination of achildemployee
An authorised officer may require a child employee to be medically examined.
Section 62. Medical examination of achildemployee Section An authorised officer ("a labour officer,employment officer or medical officer;") may require a child ("a person who has not attained the age of eighteen years;") in employment to be medically examined at any time during the period of the child ("a person who has not attained the age of eighteen years;") 's employment . - 63 Verify source ↗
PROTECTION OF CHILDREN - 63. Determination of age
When a person's age is in dispute in a charge under the Act, the court hearing the charge must determine that person's age (and that determination is final). If there is insufficient evidence about an employee's age, a medical officer may estimate it and that estimate is deemed the true age until proved otherwise.
Section 63. Determination of age Section 63(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. Section 63(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. Section 63(3) Subject to the provision of subsection (1) , whenever any question arises as to the age of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") and no sufficient evidence is available as to that employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's age, a medical officer may estimate the age of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 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 ("a person employed for wages or a salary and includes an apprentice and indentured learner;") . - 64 Verify source ↗
PROTECTION OF CHILDREN - 64. Penalty for unlawfulemploymentofchild
Employing, engaging or using a child under 18 in contravention of this Part is an offence; using a child in worst form child labour carries a penalty on conviction of a fine not exceeding 200,000 shillings or imprisonment up to 12 months or both; it is a defence if the accused genuinely believed the child was above 18.
Section 64. Penalty for unlawfulemploymentofchild Section 64(1) A person who employs, engages, or uses a child ("a person who has not attained the age of eighteen years;") in an industrial undertaking in contravention of the provisions of this Part, commits an offence. Section 64(2) A person who uses a child ("a person who has not attained the age of eighteen years;") 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. Section 64(3) It shall be a defence if the accused person proves that he genuinely had reason to believe that the child ("a person who has not attained the age of eighteen years;") was above the age limit, which is the subject of the charge. - 65 Verify source ↗
PROTECTION OF CHILDREN - 65. Penalty in case of death or injury of achild
If a child is killed, dies or suffers bodily injury because an employer contravened this Part, the employer is liable to a fine of up to five hundred thousand shillings or to imprisonment for up to twelve months or both; the fine or part of it may be applied for the benefit of the injured child or family or otherwise as the Cabinet Secretary may direct.
Section 65. Penalty in case of death or injury of achild Section 65(1) If a child ("a person who has not attained the age of eighteen years;") is killed, dies or suffers any bodily injury in consequence of his employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") having contravened any provision of this Part, the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 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 ("a person who has not attained the age of eighteen years;") or his family or otherwise as the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") may direct. Section 65(2)(a) in the case of injury to health, unless the injury was caused directly by the contravention; and Section 65(2)(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
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INSOLVENCY OF EMPLOYER - 66. Insolvency ofemployer
Defines "employer" and "employee" and states that the employer of an employee has become insolvent.
Section 66. Insolvency ofemployer Section the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") of an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") has become insolvent; - 67 Verify source ↗
INSOLVENCY OF EMPLOYER - 67. Definition of insolvency
Defines insolvency to include being adjudged bankrupt or having made a composition or arrangement with his creditors.
Section 67. Definition of insolvency Section has been adjudged bankrupt or has made a composition or arrangement with his creditors; or - 68 Verify source ↗
INSOLVENCY OF EMPLOYER - 68. Debts to which Part applies
This Part applies to arrears of wages for one or more months, but not exceeding six months or part thereof.
Section 68. Debts to which Part applies Section any arrears of wages in respect of one or more months, but not more than six months or part thereof; - 69 Verify source ↗
INSOLVENCY OF EMPLOYER - 69. Limitation on amount payable under section 68
Limits amounts payable under section 68 to either ten thousand shillings or one half of monthly remuneration (whichever is greater) per month, with proportional amounts for shorter periods; the Cabinet Secretary may vary that limit on the advice of the National Labour Board by Order in the Gazette.
Section 69. Limitation on amount payable under section 68 Section 69(1)(a) ten thousand shillings or one half of the monthly remuneration ("the total value of all payments in money or in kind, made or owing to an employee arising from the employment of that employee;") whichever is greater in respect of any one month payable; or Section 69(1)(b) in respect of a shorter period an amount proportionate to the shorter period based on the amount payable under paragraph (a) . Section 69(2) The Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") may, on the advise of the Board ("the National Labour Board;") , by Order in the Gazette , vary the limit specified in subsection (1) . - 70 Verify source ↗
INSOLVENCY OF EMPLOYER - 70. Role of relevant officer
A relevant officer must provide the Cabinet Secretary a statement of the employee's unpaid debt on request; the Cabinet Secretary must not pay under section 66 until that statement is received, but may pay without it if satisfied the statement is unnecessary.
Section 70. Role of relevant officer Section 70(1) Where a relevant officer has been, or is required to be, appointed in connection with an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 's insolvency, the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") shall not make a payment under section 66 in respect of a debt until the Cabinet Secretary has received a statement from the relevant officer of the amount of that debt which appears to have been owed to the employee on the appropriate date and to remain unpaid. Section 70(2) A relevant officer shall, on the request of the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") , provide the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") with a statement for the purposes of subsection (1) as soon as is reasonably practicable. Section 70(3) If the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") is satisfied that he does not require a statement under subsection (1) in order to determine the amount of a debt which was owed to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") on the appropriate date and remains unpaid, he may make a payment in respect of the debt without having received the statement. Section 70(4)(a) a bankruptcy trustee or interim trustee holding office under Part III of the Insolvency Act ( Cap. 53 ); Section 70(4)(b) a liquidator appointed under Part VI of that Act; Section 70(4)(c) an administrator appointed under Part VIII of that Act; Section 70(4)(d) the Official Receiver or other person responsible for supervising the debtor under a deed of composition approved by the Court under Division 24 of Part III of that Act; Section 70(4)(e) a supervisor or provisional supervisor under a voluntary arrangement entered into under Part IX or Division 1 of Part IV of that Act; Section 70(4)(f) a trustee under a trust deed for his creditors executed by the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") . - 71 Verify source ↗
INSOLVENCY OF EMPLOYER - 71. Complaint to Employment and Labour Relations Court
Allows a complaint to the Employment and Labour Relations Court alleging that the Cabinet Secretary failed to make a payment or underpaid; the complaint must be made within three months of communication of the Secretary’s decision, or within a further period the Court considers reasonable; the Court may make an award and declare the amount payable by the Cabinet Secretary.
Section 71. Complaint to Employment and Labour Relations Court Section 71(1)(a) that the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") has failed to make the payment; or Section 71(1)(b) that the payment made by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") is less than the amount which should have been paid. Section 71(2)(a) before the end of the period of three months beginning with the date which the decision of the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") on the application was communicated to the applicant; or Section 71(2)(b) within such further period as the Employment and Labour Relations Court considers reasonable in a case where it is not reasonably practicable for the complaint to be presented before the end of that period of three months. Section 71(3)(a) make an award to that effect; and Section 71(3)(b) declare the amount of any payment which it finds the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") ought to make. - 72 Verify source ↗
INSOLVENCY OF EMPLOYER - 72. Transfer of rights and remedies
When the Cabinet Secretary pays (in full or in part) an employee's debt, the employee's rights and remedies in respect of that debt transfer to the Cabinet Secretary; such transferred rights include preferential status and priority over other creditors, and recovered sums must be paid into the National Social Security Fund.
Section 72. Transfer of rights and remedies Section 72(1)(a) on the making of the payment, any rights and remedies of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") in respect of the debt or, if the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") has paid only part of it, in respect of that part become rights and remedies of the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") ; and Section 72(1)(b) any decision of the Employment and Labour Relations Court requiring an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") to pay that debt to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") has the effect that the debt, or the part of it which the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") has paid, is to be paid to the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") . Section 72(2) If the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") has, in accordance with subsection (1) , made a payment in respect of a debt, or a part of the debt, the right that become right of the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") because of subsection (1) include a right arising because of the status of the debt, or that part of it as a preferential debt. Section 72(3)(a) any claim of the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") to be paid in priority to other creditors of the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") by virtue of subsection (2) ; and Section 72(3)(b) any claim by the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to be so paid made in the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's own right, Section 72(4) The Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") shall be entitled, as against the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") , to be paid in respect of any claim made by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") the full amount of the claim before any payment is made to the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") in respect of any claim by the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to be paid made in the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") 's own right. Section 72(5) Any sum recovered by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") in exercising any right, or pursuing any remedy, under this section shall be paid into the National Social Security Fund. - 73 Verify source ↗
INSOLVENCY OF EMPLOYER - 73. Power to obtain information
The Cabinet Secretary may require employers or custodians of records to provide information or produce documents by notice; refusal, wilful neglect, or false statements are offences punishable by a fine not exceeding one hundred thousand shillings or imprisonment up to six months or both.
Section 73. Power to obtain information Section 73(1)(a) the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") to provide him with such information as he may reasonably require for the purpose of determining whether the application is well founded; and Section 73(1)(b) any person having the custody or control of any relevant records or other documents the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") may require to produce for examination on behalf of the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") any such records or document. Section 73(2)(a) shall be made by notice in writing to the person required to furnish the information, or produce the records or document; and Section 73(2)(b) may be varied or revoked by a subsequent notice so given. Section 73(3) A person who refuses or wilfully neglects to furnish any information or produce any record or document that he has been required to furnish or produce by a notice under this section 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. Section 73(4) A person who in purporting to comply with a requirement of a notice under this section, knowingly or recklessly makes any false statement commits an offence. Section 73(5)(a) to have been committed with the consent or connivance of; or Section 73(5)(b) to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, that person and the body corporate commits an offence. Section 73(6) Where a member of a body corporate manages the body corporate, subsection (5) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
Part X
EMPLOYMENT MANAGEMENT
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EMPLOYMENT MANAGEMENT - 76. Notification of vacancies
Employers with twenty-five or more employees must notify specified vacancy details when creating a post, engaging an employee, or abolishing a post after termination.
Section 76. Notification of vacancies Section 76(1) This Part shall apply to an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") who employs twenty-five employees or more. Section 76(2)(a) the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") 's name and full address; Section 76(2)(b) details of the vacant post; Section 76(2)(c) minimum qualification required of the person seeking to be employed; Section 76(2)(d) the place of work; and Section 76(2)(e) the type of work, whether casual, permanent or term contract; and Section 76(2)(f) such other information as the Director ("a person appointed as the Director of Employment;") may require. Section 76(3)(a) an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") creates a post to be filled by an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") or decides to engage one; Section 76(3)(b) an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") terminates or has his employment terminated by the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") and the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") abolishes the post. - 77 Verify source ↗
EMPLOYMENT MANAGEMENT - 77. Notification of filling or abolition of post
If a post that was notified to the Director as vacant is filled, or is abolished before being filled, the employer must notify the employment service office in writing within two weeks of the filling or abolition.
Section 77. Notification of filling or abolition of post Section When a post, which has been notified to the Director ("a person appointed as the Director of Employment;") as vacant, has been filled or has been abolished before being filled, the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall notify the employment service office of this in writing within two weeks of the filling of the post or of its abolition, as the case may be. - 78 Verify source ↗
EMPLOYMENT MANAGEMENT - 78. Notification of termination ofemployment
An employer must notify in writing the termination of employment or any lay-off to the nearest employment service office within two weeks.
Section 78. Notification of termination ofemployment Section An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall notify the termination of every employment and of each lay-off of a person in writing to the nearest employment service office within two weeks of the termination or lay-off. - 79 Verify source ↗
EMPLOYMENT MANAGEMENT - 79. Regiser of employees
Employers must keep a register of employees, record specified personal and employment details for each employee, and submit an annual return to the Director by 31 January following the year.
Section 79. Regiser of employees Section An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall keep a register in which the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall enter the full name, age, sex, occupation, date of employment , nationality and educational level of each of his employees and a return of employees for each calendar year, ending on 31st December containing such information shall be sent to the Director ("a person appointed as the Director of Employment;") not later than 31st January of the following year. - 80 Verify source ↗
EMPLOYMENT MANAGEMENT - 80. Exemptions
The Cabinet Secretary may exempt categories of employers, sectors or industries from this Part or vary the limit of its application under section 76(1).
Section 80. Exemptions Section The Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") may exempt any category of employers, any sector of industry or any industry from this Part, or any section of this Part or may vary the limit of its application provided under section 76(1) . [Act No. 19 of 2015 , s. 160.] - 81 Verify source ↗
EMPLOYMENT MANAGEMENT - 81. Offence under Part
An employer who contravenes any provision of this Part commits an offence and on conviction may be fined up to one hundred thousand shillings or imprisoned for up to six months or both.
Section 81. Offence under Part Section An employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") who contravenes any of 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 six months or to both.
Part XI
FOREIGN CONTRACTS OF SERVICE
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FOREIGN CONTRACTS OF SERVICE - 82. Form and attestation
A foreign contract of service must be in the prescribed form, signed by the parties, and attested by a labour officer.
Section 82. Form and attestation Section A foreign contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") shall be in the prescribed form, signed by the parties ("the parties to a contract of service;") thereto, and shall be attested by a labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") . - 83 Verify source ↗
FOREIGN CONTRACTS OF SERVICE - 83. Requirement before attestation
Before attestation, the consent of the employee to the contract must have been obtained.
Section 83. Requirement before attestation Section that the consent of the employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") to the contract has been obtained; - 84 Verify source ↗
FOREIGN CONTRACTS OF SERVICE - 84. Security in foreigncontract of service
If an employer under a foreign contract of service does not reside or carry on business in Kenya the employer must give a security bond with Kenyan resident sureties; if the employer resides in Kenya a labour officer may require such a bond; where there is an authorised agent resident in Kenya the Cabinet Secretary may require the agent to give the bond and the agent shall be personally bound.
Section 84. Security in foreigncontract of service Section 84(1) When the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") who enters into a foreign contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") does not reside or carry on business within Kenya, the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") shall, or where the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") resides in Kenya, the labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") may require the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") to, give security by bond in the prescribed form, with one or more sureties resident in Kenya and approved of by the labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") for the due performance of the contract in such sums as the labour officer ("a person appointed as the Commissioner of Labour, a Senior Deputy Commissioner of Labour, a Deputy Commissioner of Labour, an Assistant Commissioner of Labour, a Chief Industrial Relations Officer, a Deputy Chief Industrial Relations Officer, a Senior Labour Officer, an Industrial Relations Officer or a Labour Officer;") considers reasonable. Section 84(2) Where the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") has an authorised agent resident in Kenya, the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to labour matters;") may require that the security bond specified in subsection (1) be given by the agent and the agent shall personally be bound by the terms of the bond notwithstanding the disclosure of his principal. - 85 Verify source ↗
FOREIGN CONTRACTS OF SERVICE - 85. Offence to induce person to proceed abroad under informal contract
Makes it an offence to induce a person to proceed outside Kenya under an informal contract.
Section 85. Offence to induce person to proceed abroad under informal contract Section employs, engages, or knowingly aids in the employment or engagement of, a person with the intention that when so employed or engaged that person shall proceed outside the limits of Kenya; or
Part XII
DISPUTES SETTLEMENT PROCEDURE
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DISPUTES SETTLEMENT PROCEDURE - 86. Complaint and jurisdiction in cases of dispute between employers and employees
Only the Employment and Labour Relations Court may determine complaints or suits under subsection (1); other courts shall not determine them.
Section 86. Complaint and jurisdiction in cases of dispute between employers and employees Section 86(1)(a) an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") or employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") neglects or refuses to fulfill a contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") ; or Section 86(1)(b) any question, difference or dispute arises as to the rights or liabilities of either party; or Section 86(1)(c) touching any misconduct, neglect or ill treatment of either party or any injury to the person or property of either party, under any contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") , Section 86(2) No court other than the Employment and Labour Relations Court shall determine any complaint or suit referred to in subsection (1) . Section 86(3) This section shall not apply in a suit where the dispute over a contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") or any other matter referred to in subsection (1) is similar or secondary to the main issue in dispute. - 87 Verify source ↗
DISPUTES SETTLEMENT PROCEDURE - 87. General penalty and offences under other laws
If a person (other than a child) commits an offence under this Act or contravenes its provisions for which no specific penalty is provided, they are liable to a fine up to fifty thousand shillings, or imprisonment up to three months, or both; employers and employees may also be proceeded against under other laws; and no employer or employee shall be punished twice for the same offence.
Section 87. General penalty and offences under other laws Section 87(1) A person, other than a child ("a person who has not attained the age of eighteen years;") , who commits an offence under this Act, or contravenes or fails to comply with any of the provisions of this Act for which no penalty is specifically provided shall be liable to a fine not exceeding fifty thousand shillings or to imprisonment for a term not exceeding three months or to both. Section 87(2) Nothing in this Act shall prevent an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") or employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") from being proceeded against according to law for an offence punishable under any other law in force. Section 87(3) No employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") or employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") shall be punished twice for the same offence. - 88 Verify source ↗
DISPUTES SETTLEMENT PROCEDURE - 88. Saving of contracts of service made abroad
Employers and employees may enforce rights under contracts of service made outside Kenya; contracts made in a foreign country must be attested by a judge or magistrate and authenticated by the court seal.
Section 88. Saving of contracts of service made abroad Section 88(1) Nothing in this Act shall prevent an employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") or employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") from enforcing their respective rights and remedies for any breach or non-performance of a lawful contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") made outside Kenya, but the respective rights of the parties ("the parties to a contract of service;") under that contract as well against each other as against third parties ("the parties to a contract of service;") invading those rights may be enforced in the same manner as other contracts. Section 88(2) Where a contract has been executed in conformity with this Part, it shall be enforced in the same manner as a contract entered into under this Act, but no written contract, tenor and execution of which are not in conformity with this Act shall be enforced as attains an employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") who is unable to read and understand the contract and any such contract shall be deemed to be executed in conformity with this Act if it is signed by the names or marks of the contracting parties ("the parties to a contract of service;") and bears, as concerns any illiterate parties ("the parties to a contract of service;") , an attestation to the like effect as if prescribed by this Act. Section 88(3) Where a contract is made in a foreign country, the contract shall be attested by a judge or magistrate, and shall be authenticated by the official seal of the court to which the judge or magistrate is attached. - 89 Verify source ↗
DISPUTES SETTLEMENT PROCEDURE - 89. Limitations
Civil actions under this Act or arising from a contract of service must be commenced within three years of the act, neglect or default complained of, or if injury or damage is continuing, within twelve months after the cessation of that injury or damage.
Section 89. Limitations Section Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act ( Cap. 22 ), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.
Part XIII
MISCELLANEOUS PROVISIONS
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MISCELLANEOUS PROVISIONS - 90. Rules
Section 90 authorises rules that set workplace requirements—covering housing, feeding, medical care, books and returns, working hours and breaks, holidays, supervision, casual employment, employment of women, young persons and children, age limits for child employment, information from employers of children, employment cards, certificates of service particulars, and notices to be displayed.
Section 90. Rules Section 90(1)(a) prescribing anything which under this Act is to be or may be prescribed; Section 90(1)(b) the conditions under which employees may be housed or employed, including sanitary arrangements and water supply; Section 90(1)(c) the feeding of employees in cases where food is to be supplied by the employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") under the contract of service ("an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;") , including the quantity, variety and kind of food to be supplied; Section 90(1)(d) regulating the care of sick and injured employees; Section 90(1)(e) prescribing books to be kept and returns to be rendered by employers; Section 90(1)(f) for any period, the maximum number of hours during which any employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") or class of employees, whether generally or in relation to any particular kind of employment , may be required to work; Section 90(1)(f)(i) for any period, the maximum number of hours during which any employee ("a person employed for wages or a salary and includes an apprentice and indentured learner;") or class of employees, whether generally or in relation to any particular kind of employment , may be required to work; Section 90(1)(f)(ii) the intervals to be allowed to them for meals and rest; Section 90(1)(f)(iii) the holidays or half holiday with or without pay and travelling expenses to be allowed to employees; Section 90(1)(f)(iv) any other conditions to be observed in relation to their employment ; and any such conditions may relate to feeding, housing, medical attendance, education, recreation, discipline or otherwise; Section 90(1)(g) appointing labour supervisors where employees of one employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") exceed the maximum prescribed; Section 90(1)(h) the registration and employment of casual employees; Section 90(1)(i) the establishment and administration of employment exchanges, including the procedure to be adopted for the notification of employment vacancies and opportunities; Section 90(1)(j) prescribing the conditions of the employment of women, young persons or children in any specified trade or occupation; Section 90(1)(k) prescribing the age at which a child ("a person who has not attained the age of eighteen years;") may be employed; Section 90(1)(l) requiring employers of children to furnish information and return to any specified officer in respect of such children or their employment or the conditions of their employment ; Section 90(1)(m) issue by employer ("any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company;") or any class of employers to employees or any class of employees, whether generally or in relation to any particular kind of employment , of employment cards, and the forms of such cards; Section 90(1)(n) prescribing particulars to be included in a certificate of service; and Section 90(1)(o) prescribing the form, and providing for the display in places of employment , of notices relating to wages and the terms and conditions of employment . Section 90(2) Any rules made under this section may impose conditions, require acts or things to be performed or done to the satisfaction of an authorised officer ("a labour officer,employment officer or medical officer;") or a medical officer, empower any such officer to issue orders either verbally or in writing requiring acts or things to be performed or done or prohibiting acts or things from being performed or done, and may prescribe periods or dates upon, within or before which such acts or things shall be performed or done or such conditions shall be fulfilled. Section 90(3) Any rules made under this section may distinguish between juveniles of different ages and sexes and, in relation to women or juveniles, between different localities, occupations and circumstances.
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