Volunteers and Labour Law
3 years ago
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  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  eKLR.
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.
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.
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