compliance

An employment contract, together with all governing documents, should be given to the employee not later than two months after the beginning of the employment.

Whether you issue an open-ended or a fixed term contract, to be compliant, the contract should contain the following particulars (Section 10): –

  1. The name, age, permanent address (get a postal and physical address) and sex of the employee;
  2. The name of the employer;
  3. The job description;
  4. The date of commencement of the employment;
  5. Details of the type of contract (probationary, fixed term, open ended, contract to perform specific work, casual contract etc.);
  6. The duration of the contract;
  7. The place(s) of work;
  8. The hours of work;
  9. The remuneration, scale or rate of remuneration, the method of calculating the remuneration and details of any other benefits (‘remuneration’ is defined in Section 2 as the total value of all payments in money or in kind, made or owing to an employee arising from the employment of that employee);
  10. The intervals at which the remuneration is paid;
  11. The date on which the period of continuous employment began, taking into account any employment with a previous employer which counts towards that period;
  12. Annual leave entitlement and holiday pay;
  13. Sick leave entitlement and sick leave pay;
  14. Details of any applicable pensions and pension schemes;

Items 13 and 14 above may be contained in a separate document which the employee has reasonable access to.

  1. The termination notice period;
  2. The date when the contract is to end (for fixed term contracts);
  3. Details of any applicable collective bargaining agreements;
  4. The period for which the person is to work outside Kenya;
  5. For those required to work outside Kenya for more than one month: – 
    1. The currency in which remuneration is to be paid while that employee is working outside Kenya;
    2. Any additional remuneration payable to the employee and any benefits due by reason of him working outside Kenya; and
    3. Any terms and conditions relating to the employee’s return to Kenya.For those required to work outside Kenya for more than one month: –
  6. The disciplinary rules that apply or refer the employee to a document that contains the rules and that is reasonably accessible to the employee;
  7. Details of the person to whom the employee may apply to, (i) if dissatisfied with a disciplinary decision and (ii) to seek redress for any grievance relating to the employment.

Items 19 and 20 above only apply where the employer has employed fifty (50) or more employees.

Burden of Proof

According to Section 10(7), an employer who fails to produce a copy of the employee’s contract in any proceedings bears the burden of proving or disproving that a particular term was part of the terms and conditions of employment.

The Employment & Labour Relations Court has held that an employer who fails to issue a compliant contract exposes himself because, in the absence of evidence to the contrary, the Court will accept and adopt the employee’s position. See the following cases: –

  1. Evans Muhambe Orenze v Joseph Kirimi & Another [2013]Eklr 
  2. Josephat Mugalo Muhati v Chandha Investment Ltd & Another [2012]eKLR 
  3. Francis Ong’ele Opalla v Light Academy Schools [2015] eKLR 
  4. Geoffrey Nyandusi Oeri v Security Guards Services Limited & another [2015] eKLR
  5. James Chege & 6 others v Aqua Plumbing Company Limited [2013] eKLR 
  6. Pramillah Asena Ayuma v Quest Laboratories Limited [2015] eKLR 

(cases can be found at http://www.kenyalaw.org/)

Handbooks / Manuals/ Policies

The particulars of employment listed as items 1 to 18 above are required to be in one document (Section 11(4)). Whilst this is possible, in most companies, terms and conditions of employment are stipulated in the employment contract and in several other documents.

It’s the employer’s responsibility to prove that an employee, (i) was aware of the existence of the documents and (ii) agreed to be bound by their terms. The employer should, therefore, have an acknowledgement signed by the employee confirming these two details. The employee should either be given copies of each of the documents or he should have reasonable access to them – including in the company’s intranet.

Employment Records

An employer is required to keep the particulars of employment for five (5) years after termination of the employment (Section 10(3)(6)).

next post on …other terms worth including in the contract

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. She has practised employment law for over 12 years and her employment law practice has been recognized by the prestigious Chambers & Partners. Anne cares about employers and their labour issues.


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Comments

  1. Anonymous says:

    this is good

    1. Anne Babu says:

      Asante

  2. Anonymous says:

    Hi Anne,
    Many thanks for your articles, you capture every detail which is great, please keep it up
    Jerry Opondo

  3. Nimrod Mbae says:

    Great job. You are a great Kenyan

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