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Status of volunteers

The Employment Act, 2007 at Section 2 defines an employee as a person employed for wages or a salary and includes an apprentice and indentured learner.

According to Section 3, the Act applies to all employees employed by an employer under a contract of service. Since a volunteer does not receive a wage or a salary, they are not employees and the terms of their engagement do not have to conform to those provided in the Act.

In Richard Stanley Gathuku Kinuthia vs Kenya Red Cross Society [2016] eKLR, the Industrial Court upheld the legal position that a volunteer is not an employee within Section 2 of the Employment Act, 2007 and as such there is no employment relationship. The Court also held that the monthly payment to a volunteer is a volunteer allowance and not a wage. In light of these findings, the court further stated that the claimant was not entitled to the remedies for unfair dismissal under the Act due to their legal status.

There was a similar finding in Gilberforce Okong’o v Transworld Radio-Kenya [2016] eKLR.

club-2492011__340Statutory deductions

Section 3(2) of the Income Tax Act lists down income upon which tax is chargeable. For purposes of employment, the following are taxable (Section 5(2)(a)): –

Wages, salary, leave pay, sick pay, payment in lieu of leave, fees, commission, bonus, gratuity, or subsistence, travelling, entertainment or other allowance received in respect of employment or services rendered, and any amount so received in respect of employment or services rendered in a year of income other than the year of income in which it is received shall be deemed to be income in respect of that other year of income.

Based on advice received from a tax expert, a stipend/allowance paid to a volunteer or a payment in kind may be considered income for purposes of income tax depending on several factors such as the amount, nature of work, level of risk of the person engaged etc. It is, therefore, advisable to consult a tax expert to confirm whether or not there is a tax exposure.

Regarding NSSF, contribution is only mandatory for employees (Section 20 of the National Social Security Fund Act, 2013). Volunteers may, however, register as voluntary members of the fund. The same applies to NHIF.

Terms & conditions of service

The terms and conditions of service of a volunteer are wholly determined by the person engaging them. The minimum terms and conditions prescribed in the Act, such as annual leave, requirements governing disciplinary proceedings, maternity leave, sick leave etc. do not apply.

support-3017399__340Human rights

Volunteers are entitled to the basic human rights captured in  the Constitution, 2010, including the right not to be discriminated against on grounds of ace, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

***The End***

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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. Dorothy Akeyo says:

    Dear Anne,

    As always I find your posts very informative and helpful when handling Industrial relations matters with staff in our company.

    Are volunteers beneficiary of any compensation under Work Injury Benefit Act?

    Best regards,

    1. Anne Babu says:

      Thank you. No, they are not since they are not employees as per the definition in WIBA where the term “employee” has the same meaning as in the Employment Act.

      1. Mary says:

        Great article Anne!!!
        Am informed

  2. Caleb Anyula says:

    Thanks so much Anne for the articles.
    Well I would like to know the consequences of employee demotion both to the Employer and the aggrieved Staff – especially on compensation.

  3. Lilian says:

    Dear Anne

    Please clarify whether there should be a formal volunteer contract, or is it enough to note payments to the volunteers as such in the accounting books.

    Thank you
    Lilian

    1. Anne Babu says:

      It’s advisable to have a letter of engagement. A contract is not necessary.

  4. Amy Jones says:

    I read your Labour law blog, Really helpful for people.Thanx for share.

    1. Anne Babu says:

      You are welcome.

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