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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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***THE END***

 

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 over 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

    1. Anne Babu says:

      Thank you Mary

  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. Otieno Oyuga says:

    Well articulated and this will go along way to help employees.

  4. Patrick Thuo says:

    I find this very useful. Such are the matters that the employment act does not adress expressly. This breakdown goes a long way to helping sort out messes later.

  5. 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.

          1. lemashon says:

            Kindly revisit acting in appointment, can one lodge case to employer for confirmation for having acted one year, 1& 1/2 or 2 years

          2. Anne Babu says:

            What is the company policy on acting? 2 years is a long time to be in an acting position; the company should clarify what its plans are.

  6. Tom says:

    Good insights in this blog as always. In regards to acting; someone acts in one position while substantively holding onto a former role. The person is then evaluated on the substantive role rather than the acting one and subsequently confirmed to a different position that is between the substantive one and the acting role. My mind tells me that this could be a dangerous trend but not sure if there is an illegality around it.T

    1. Anne Babu says:

      What would one circumvent by engaging in such a practice?

  7. Eunice says:

    Anne,

    Your insights always come in so handy. I have a question, a bit unrelated but kindly advice, is an employer obliged to send notice for fixed term contracts that are coming to an end? Thanks.

    1. Anne Babu says:

      No but it’s good practice to do so.

  8. Caroline Nanjowe Khamala says:

    Hi Anne
    Can I sue my employer for subjecting me to unfair labour conditions for acting in a given position for over 5 yrs without confirmation and subsequent advertising of the same position.

    1. Anne Babu says:

      It has been held in some cases determined by the Industrial Court that putting an employee in an acting position beyond a reasonable period is an unfair labour practice which can be challenged in court.

  9. Dee Kirindi says:

    Dear Anne,

    My boss left work 11 months ago and all along I have been acting in his position but without a formal letter from my employer acknowledging this. I was paid an appreciation allowance per the co policy on covering up to the 7th month at a low rate of about 20% of my current pay per the co policy which was introduced shortly after I assumed the role of my my boss. There was also no formal communication of this policy to the employees. What rights have I got as an employee? I have not been promoted neither have I been paid an appreciation allowance for 4 months. When such a policy is passed are the employees not supposed to be notified of it? When an employee is “acting” should they have a formal letter acknowledging the same?

    1. Anne Babu says:

      You should receive formal communication that you are acting as well as appropriate compensation for the same. A new policy should be communicated to staff so that everyone is aware of it. The acting allowance should be at least the difference between your salary and the salary of the acting position – subject to the extent of the roles taken up. You should find a tactful way of raising these issues with your supervisor.

  10. Eliud Kinyua says:

    Great work Ann. Keep it up as it’s really helping us.

    1. Anne Babu says:

      Asante.

  11. Francis says:

    Hi Anne, this is very insightful.

    What happens when an organization established in another country but has a legal presence in Kenya employs a Kenyan to work in Kenya. That means administrative procedures are done outside Kenya. Is the employer liable to deduct PAYE or withholding taxes and remit to KRA?

    1. Anne Babu says:

      I’d prefer if you asked a tax consultant to respond to that question. My limited knowledge is that the employer is obliged to deduct PAYE as long as the income is derived and accrued in Kenya.

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