Advertisements

changes-ahead-for-IT-300x225

It’s expected that terms and conditions of employment may change from time to time and, therefore, Section 10(5) of the Employment Act, 2007 provides that: –

“Where any matter stipulated in subsection (1) [the employment contract] changes, the employer shall, in consultation with the employee, revise the contract to reflect the change and notify the employee of the change in writing.”

A decision taken ‘in consultation with’ another is one that’s taken after a discussion with the other party about the thing that’s being decided.

If there’s trade union involved, the Recognition Agreement and Collective Bargaining Agreement will no doubt outline the procedure of making changes to the contractual terms.

This is not usually a problem if the proposed change is to the employee’s benefit; the problem arises where the proposed change is to the employee’s detriment; in such a case, the employer should not only consult but should also get the consent of the employee, if this is not done the results could be any of the following: –

consultation

Constructive dismissal

A constructive termination arises where the employer, in the absence of any justifiable reasons for dismissal, proceeds to “construct” circumstances that will bring about a dismissal. A unilateral change to a contract may amount to a constructive dismissal. For the Court to hold that a constructive dismissal has occurred, the following must be established by the employee: –

  1. That the employer made a fundamental change to the contract of employment;
  2. That such change was unilateral;
  3. That the situation was so intolerable that the employee was unable to continue working;
  4. That the employee would have continued working had the employer not created the intolerable work environment; and
  5. That the employee resigned because he did not believe the employer would abandon the pattern of creating an unacceptable work environment.

See: –

  1. Henry Ochido v NGO Co-ordination Board (Transferring an employee to another town without prior consultation)
  1. Elizabeth Kwamboka Khaemba v BoG Cardinal Otunga High School Mosocho & 2 others (Altering an employee’s job description without consultation)
  1. Max Masoud Roshankar & another v Sky Aero Limited 
  1. Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd 

3-void

No effect

The Court may ignore the change/amendment and uphold the earlier contractual terms. See: –

  1. Joseph Maina Theuri v Gitonga Kabugi & 3 others where the court declined to uphold disciplinary rules and procedures that were not notified to the employee.

237401-LawOrder-1314077166-489-160x120

Stay of implementation

The court may stay the implementation of the amendment until consultations are undertaken. See: –

  1. Kenya Union of Commercial Food and Allied Workers vs Tusker Mattresses Limited; and
  2. Kenya Local Government Workers Union vs Nyahururu Water & Sanitation Company Ltd

Other cases you may want to read through on the issue of changes to the contract: –

  1. Kenya County Government Workers Union v Kisumu County Government & 95 others; and
  1. Kepha Thuo Magua v Board of Governors Satima Secondary School

All cases can be accessed at http://kenyalaw.org/caselaw/

Mode of notification

The notification of the change may be done through a simple letter to the employee outlining the change or through an addendum to the contract. In either case, the employee should sign and retain a copy of the amendment and the signed acknowledgment should be kept in the employer’s records.

Summary

  1. An employer should consult an employee prior to effecting changes to agreed terms and conditions of employment;
  2. Consultation is mandatory, consent is not;
  3. A change that is of a fundamental nature, if not consented to, may lead to a finding that an employee who resigns as a result of the change, has been constructively dismissed.

Follow us on Twitter for a daily dose of the Employment Laws.

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. Advocates. She has practiced employment law for 10 years. She is a repository junkie and a lover of editing.

Advertisements

Disclaimer

The information on this website is for general guidance on your rights and responsibilities and is not legal advice. If you need more details on your rights or legal advice about what action to take, please contact a lawyer.

We try to ensure that the information on this website is accurate. However, we will not accept liability for any loss, damage or inconvenience arising as a consequence of any use of or the inability to use any information on this website.

We assume no responsibility for the contents of linked websites. The inclusion of any link should not be taken as an endorsement of any kind by us of the linked website or any association with its operators. Further, we have no control over the availability of the linked pages.


Leave a Reply

Your email address will not be published. Required fields are marked *


Comments

  1. Benson Kiguru says:

    Please send any new articles

  2. D.O.ONGOYA says:

    Please advise on this matter:
    Our company has not been doing well for the last 3 months since it began operation.
    I work as a receptionist. The MD called me two weeks ago and informed me that since we need more people in sales to drive up the business volumes, I will be moved to sales from 1.3.2016. He followed our conversation with a letter to this effect, which considerably changed the terms of my initial employment, including salary.
    I declined this and did not sign the initial letter of change of responsibility. He wrote again to me indicating that if I do not sign the letter in acceptance or to indicate decline, then he will have no alternative but to replace me.
    I was adamant and he proceeded to terminate my employment.
    Please advice if i may have any case against my former employer.

    1. Anne Babu says:

      An employee’s job description is a fundamental term of employment, in fact, it’s one of the most important terms.
      An employer cannot unilaterally alter such a fundamental term without the consent of the employee.
      What your former employer did was to unilaterally terminate your contract as a receptionist and then he proceeded to force on you a new contract with new terms which were not acceptable to you.
      A termination on such grounds cannot be justified and our courts have held similar terminations to be unlawful.

  3. D.O.ONGOYA says:

    Dear Ann,
    In your last opinion, you mentioned that the changes only needs to be discussed with me as the employee.
    The employer held this discussion with me, but I still declined to take up the new offers as In felt I did not have the passion nor the right background for the role.
    It was after this that he proceeded to terminate me as he claimed that under the reorganization of the Company, he feels that I best fit in Sales.
    He is the same person who interviewed me and believed that he knows where I best fit in the Company.
    I am contemplating suing the employer and needs to be sure that I have high chances of success in the case.

    1. Anne Babu says:

      You were employed as a receptionist on certain terms and conditions which you accepted. Your former boss offered you a different position with different terms and conditions. You were not bound to accept the new offer however, before terminating your contract, he had to ensure that he has a valid reason for doing so and that he followed the proper procedure.
      If this was a redundancy, due to the re-organization, then the question is was the proper procedure followed and was it a genuine redundancy.

  4. Anonymous says:

    Dear Anne,

    Let us look at it this way; Say the company is in a bad state and can’t afford paying a position that is not bringing in money so to say or a position that is not critical given the company’s feeble financial status. In your opinion, does the company have a right to terminate you on the account of redundancy or any other account?

    1. Anne Babu says:

      Yes, see the posts on redundancies.

  5. Mutisya Maingi says:

    Hi Anne,
    If an employer progressively/gradually alters an employee’s job description or roles to such an extent that they are completely different from what is on the employment contract, what legal rights is such an employee entitled to? If this has happened over the course of, say one year, and the employee has willfully accepted the new roles does it become binding that such an employee “accepted” new role?

    1. Anne Babu says:

      Thank you for your question. A job description is a fundamental term of the contract, it should not be altered without the employee’s consent. The employee should raise a concern/grievance as soon as possible otherwise he/she is deemed to have consented to the changes by implication. I’d advise the person to raise the issue through the grievance procedures asap.

  6. Juliet DIMA says:

    Dear Anne,
    I was interviewed and employed by Members of Kenya’s together with California’s Board.This was before registration of the Donor’s Non Profit Organization in California as well as pending Local registration of the Kenyan NGO.My job description as Project Director entailed among others reporting to both California and Kenyan Board.My salary was negotiated at ‘take home’ rate I.e,before including statutory deductions.A year later,the Secretary to the Kenyan Board doubling as California Board Chair person unilaterally reduced my salary by 40%. claiming amount was meant to be Gross Salary.
    At the time of employment .my Salary was negotiated in US Dollars and for a year paid I received salary in dollars.Thereafter,California Board unilaterally resorted to paying me in Kenya shillings;worked out based on current monthly exchange rate.I protested and was advised Board Secretary that Organization ‘s decision was final. Kenyan Board Membership comprised of 6 Americans and 3Kenyans.
    My Employment Contract letter came one year later. The Contract document confirmed payment in US Dollars and also stated the Contract was open ended. What does open ended Contract mean?.
    The Donors (Non Profit Organization in California ) received registration Certificate whose mandate is to set up Projects all over the World.The Kenyan team also received registration Certificate from NGO Board with the mandate to put up ‘state of art ‘Project and replicate same other Slums,Rural and Marginalized Communities through partnership with like minded Donors.Both Boards are substantive and Executive.The address on my Contract Letter is of the California Non Profit Org,the signature on the Contract is of California Board Chairperson who doubles as Secretary of Local Kenyan NGO.
    Who in this case is my employer?.
    Is it the Donor (Non Profit Org) or the Locally implementing Board?.
    As head of the Kenyan NGO’s Secretariat, I was answerable to both Local and California NGOs.California being initiator / Funder of the Local Community Project, unilaterally imposed decisions on conduct of implementation.They paid Secretariat Staff salaries.
    In my position I was Kenyan Board ‘s ex officio member I reported progress and challenges at the Secretariat ; received direction.
    Project progressed and California’s Non Profit (Donors) deemed it fit to take over my office by Employing their American citizen as CEO; who fully assumed my assignments in Kenya, she employed new staff,locked me from the Organization’s operations. The California CEO assumed my role in Kenya office , rubbished my Contract and demanded to prepare new Contract for me altering my role to that of a Consultant . Removing me from employment without regard to my dues and putting me in the ‘New Objectives’ role, expected to serve in a totally different capacity Not as an Employee but as Consultant (without retainer fee either)I declined to sign new Contract . This ‘New CEO’ reduced my phone allowance from 5k to 1k making it impractical to work effectively.
    She withdrew my house internet allowance stating I no longer had to do official correspondences after office hours.
    She assumed my official tittle, recruited new staff, redistributed my assignments to the new employees,she was brought on board to remove me from the structures introduced Daily Log reporting that I had to do to her based on what she termed ‘Juliet’s New Objectives’.She introduced an ad hoc Supervisor over me who directly reported to her.My new White supervisor was a S.African visiting Kenya on a tourist visa. On my Termination Letter ,the California CEO didn’t specify reason for terminating my employment.From her date of employment,’New CEO’ subjected me to hostile working environment ; ,intimidation and discrimination by her local agents including junior staff. The California office IT Department withdrew my official email address; the Organization’s intranet. The Local NGO’s Board seemed afraid to officially comment on conduct of the ‘California new CEO’ role / legitimacy at the Kenya office (possibly because the local Board solely relied on funding from the California Board) .The California Board had recruited their CEO to replace me Unilaterally. Is this Legal?.Does the fact that they initiated,and continue to fund the Kenyan NGO Community Project make them superior over Kenyan NGO Board?. The Kenyan Board neglected to give me a hearing even after I officially wrote to the members complaining about unfair termination.California Board didn’t release my dues even after i surrendered Organization’s items. Through their local Adv Californian Board offered me peanuts which I declined to take. Two years later,I now want to file suit.My Termination Letter was signed by the Californian CEO.She temporarily became local CEO ;assumed Head of Secretariat role for purposes of terminating my employment then hired a General Manager to run the Project under her supervision NOW as the Organization’s Global CEO.
    Who do I sue?. The California Non Profit Organization Board or Kenya NGO Board OR both?.
    Does the California ‘New CEO’ have legal authority to terminate my employment without meeting Kenyan Non Governmental Board ,immigration and KRA requirements?
    Is the California ‘New CEO’ legally authorized to terminate my employment?. Does this Claim fall within Constructive Dismissal?

    1. Anne Babu says:

      Thank you for your question. Please email your question to anne.babu @kenyaemploymentlaw.com so that we can get your contacts and correspond with you directly.

  7. ahmed says:

    Dear Ann Babu,

    Would you please clarify with ”clause evidence” the maximum working hours for employees involved in production in a manufacturing industry e.g (retreading industries)

    Advance thanks for your efforts

  8. Anonymous says:

    Hi Anne,

    What is the legal procedure for changing working hours. Is there any law that protects both the employer and the employee, please quote.

    1. Anne Babu says:

      Changing working hours should be done in the same way and using the same procedure for changing any other term and condition of employment – the employee should be consulted and their consent obtained.

    2. dchalkboard says:

      Thank you Anne for your quick response. What about in the event consultation is done, both parties don’t agree but he implements with out my consent and no compensation is made for the additional hours.

      1. Anne Babu says:

        You should raise a grievance through the company’s grievance mechanisms and if there’s no resolution you may have to seek legal options – either through a labour officer or a lawyer.

  9. Mwalimu says:

    I hope this finds you well.
    Thank you for the good work your doing. My employer has reassigned me from training department where I work as Training Manager to operations department as a Zone Manager. This are two different roles and the job descriptions are quite different. The reassignment was not caused by indiscipline, non-performance or any fault on my part but the company says it “reserves the right to change the terms and condition of employment”. It is two weeks now and I am being pressured to accept the offer by signing the reassignment letter and report to the new office or else…

    In view of the above what are my options? If I accept the new offer under duress and continue working can I still put in a claim of unfair dismissal in relation to the old contract i.e Training Manager Job? If so what is the procedure? If I decline to sign the reassignment letter what would be my rights against my employer.

    1. Anne Babu says:

      The terms of your contract should only be changed after consultation and agreement by you as the affected employee. If you accept, you cannot later complain. Your options are to seek an explanation of why this is being done. If you are not happy, you can resign and claim damages for constructive dismissal.

      1. Mwalimu says:

        Hi Anne,

        Thank you for your quick and timely response. I have written a formal grievance letter to my employer this morning, sighting a breach of contract. I have also taken the opportunity to propose three ways of resolving the matter and am now waiting for my employers reaction. Thank you for your support.

  10. Daniel Kamanja says:

    1. please send new articles.
    2. What happens if an employer continues under paying his/her employees knowingly

    1. Anne Babu says:

      By under paying do you mean paying below the minimum wage? If yes, that should be reported to the nearest labour officer. If it has nothing to do with the minimum wage, the terms of the employment contract apply.

      1. Daniel Kamanja says:

        Our casual employees are paid Ksh 300 instead of 600 they have also worked for years with out confirmation. No CBA

        1. Anne Babu says:

          As long as they are paid below the prescribed minimum wage, they have the right to report to the nearest labour office to take the matter up on their behalf.