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THE LAW

The Employment Act, 2007 does not address the issue of an employee’s rights while employed in an acting capacity.

The only legal provision, with general application, on the issue of acting, can be found in the Regulation of Wages (General) Order, which applies where not in conflict with the Employment Act, 2007. It provides  that where an employee is required to work for a period of not less than one month in an occupation or grade for which the prescribed minimum wage is higher than the basic salary earned by the employee, he shall be paid an acting allowance at the rate of not less than the difference between that higher basic minimum wage and his basic salary. This deals with those on minimum wage but many organizations apply this same principle to staff who are not on minimum wage.

In the absence of legal provisions, one would rely on the provisions of the employment contract, organization policies and manuals as well as applicable collective bargaining agreements. As shall be illustrated further in this article, our Industrial Court has set basic guidelines on the matter.

gears-398456_1920CAN ONE DEMAND TO BE CONFIRMED IN THE ACTING POSITION? 

The general answer is no unless the period of acting is inordinately long and no valid reasons are given by the employer for failing to confirm the person.

In the case of Henry Ochido vs NGO Co-ordination Board [2015] eKLR the Petitioner claimed that his constitutional right to fair labour practice had been violated by the failure of the Respondent to confirm him in the position of Deputy Executive Director which he occupied in an acting capacity from 4th December 2014 to 4th March 2015.  He had been employed as the Head of Operations, Compliance and Research. His claim was dismissed and the Court held as follows: –

I find no legitimate claim by the Petitioner over the same position. The officer appointed for this position was in existence and known to the Petitioner but based in the regional office, Kisumu. The Petitioner was only in an acting capacity and despite being in such a position for 3 months, he remained on a substantively different position as he was never confirmed on this position. It cannot therefore be a justification that such a position should have been confirmed and the Petitioner retained in the same. Even where there was no substantive holder for the position of Deputy Executive Director, the procedures set out by the employer for the appointment of the position would still have come to play. The Petitioner cannot therefore claim any entitlement over this position.

HOW LONG SHOULD A PERSON BE EMPLOYED IN AN ACTING CAPACITY? 

The period of acting should be reasonable. The employee should thereafter be confirmed in that position after competitively meriting it or be returned to their former position.  Failure to do this amounts to an unfair labour practice.

In the case of Kenya Shoe & Leather Workers Union vs Slapper Shoe Industries [2015] eKLR it was held that by using the grievants for prolonged periods of time in acting capacities, while paying them acting allowances, the Respondents engaged in unfair labour practices. The grievant who testified on behalf of others testified that he was employed on 1st June 2009 as a general worker and that he was subsequently employed in an acting capacity as a machine attendant on 11th May 2011 and paid an acting allowance as per the CBA. He left employment in January 2014.

In the case of Silas Kaumbuthu Mbutura vs Meru Central Dairy Co-Operative Union Limited [2015] eKLR an employee who had been employed in an acting capacity for over 18 years sought an order from the court to declare the acting appointment an unfair labour practice and the Claimant be confirmed as a Production Supervisor. The Court held as follows: –

The Claimant was subjected to an unfair labour practice by constantly being held on acting capacity in the post of the production supervisor. The Claimant’s claim to substantive appointment is valid and for the unfair labour practice in contravention of Article 41 of the Constitution, the court finds that a compensation of Kshs. 300, 000.00 under Article 21(3)(e) of the Constitution will meet the ends of justice. While making that finding, the Court finds that for over 18 years of service the Claimant was required by the Respondent to serve in an acting capacity for unexplained reasons of failure to be appointed substantively as a production supervisor or any other suitable position in the Respondent’s establishment. Such conduct on the part of the respondent, in the opinion of the Court, was a gross violation of the Claimant’s entitlement to fair labour practices as provided for in Article 41 of the Constitution.

If the acting appointment is inordinately long, the employee is entitled to have a legitimate expectation of confirmation and it’s an unfair labour practice for the employer to fail to confirm him to that position.

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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.

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Comments

  1. Mary says:

    I really appreciate your wise counsel and wide-ranging advice we get from you.
    Very insightful

  2. Otieno Oyuga says:

    You have addressed the matter relating to acting so well because it has always been a grey area in employment.Great article to read.

  3. ANGELINE says:

    Thanks Ann. This is good information and good work. Keep up to enlighten us on employment laws.

    Kindly advice on who should handle an appeal of a dismissed staff. Can any of those who handled the disciplinary participate in the appeal meeting.

    1. Anne Babu says:

      Hi Angeline, the appeal should be handled by someone who was not involved in the investigations and initial hearing.

      1. ANGELINE says:

        Thanks Ann.

      2. ANGELINE says:

        Thanks Ann. Kindly advise on the following.
        A staff member absentees herself. When you call her she says she has a sick baby. You advise her to take her annual leave. The annual leave is over and she does not come neither does she communicate. Can we terminate her services for duty absconding.

        1. Anne Babu says:

          Yes, she has absconded work without leave and without lawful cause. If this is a one off, consider a written warning before termination.