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Legal position on gratuity
6 months ago
Definition
Gratuity is a monetary gift from an employer to an employee. It is a gratuitous pay and is, by its very nature, discretionary.
Payment of a gratuity and the applicable terms and conditions are governed by one’s contract and by the employer’s policies.
The rationale for payment of gratuity is in appreciation of services rendered and also as a retirement benefit.
General rules
- It is normally paid at the end of the contract.
- It is not normally paid if the employer has made arrangements for a pension scheme.
- Unlike NSSF, where both an employer and employee contribute, an employee does not contribute towards gratuity.
- It is normally paid at the rate of one month’s basic salary for every year of service. However, it could be less or more depending on the terms of the contract.
- In most cases, it is not paid if an employee is summarily dismissed. This was the holding in Bamburi Cement Limited v W KÂ [2016] eKLR.
- As long as an employee’s contract provides for gratuity, the employee will be entitled to the payment whether or not he is a member of NSSF (Wells Fargo Limited v J I G [2018] eKLR).
- Where the contract provides that gratuity will be payable upon successful completion of a contract and the employee is terminated before the end of the contract through no fault of his, the gratuity will be payable on a pro-rata basis (B P SÂ v Kenya Urban Roads Authority [2014] eKLR).
An employee who receives a gratuity is not entitled to service pay – Section 35(5) of the Employment Act, 2007.
XOX
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Dear Ann,
Good morning. Kindly confirm to me whether a Union Official(kudheiha) officer is supposed to attend a disciplinary hearing. Can an employee also bring in a none employee, an outsider working in another organization as a representative.
The employee can attend with a union representative or a fellow employee.
Hi Ann, there was an inquiry I made to you but went unanswered or rather unnoticed. It was about an employee claiming for unpaid rest days (off days) totaling 1644 equivalent to 533000/- These dates back from 2002. Kindly advice on the most appropriate way to address this.
Under the Employment Act, such a claim can only be made for the past 3 years, claims beyond that are time-barred. It’s the employer’s responsibility to keep records, therefore, if the claim is valid, it should be settled at usual overtime rates.
Hi Anne, Thank you so much for your articles they been such a source of information.Kindly where can i get the full notes on judgments mentioned above.
Thank you in advance.
Caroline Wanga.
Thanks. You can get them at http://kenyalaw.org/caselaw/. I normally initial the names of the individuals.
there is this guy who came for advice. he had worked for company X for 8years on temporary appointment…. is he entiltled to anything after dismisal?
What do you mean by temporary appointment?
Can a separation agreement help me win a court case against an employee who has a fairly strong discrimination case against my company.
I don’t understand your question.
Hi. If an employee resigns before lapse of his contract, will he be entitled to his gratuity?
Gratuity is only paid if provided in the contract and subject to the terms of the contract.
Hi Ann i was working with parliamentary service commission under a 5 year contract..i later served the commission with a 2 months notice of intendend resignation after working for 4 months am i eligible for gratuity payment for the six months i received my salary?
Gratuity is only payable if provided in your contract or in your terms and conditions of service.
This is so good. Up to date information, well researched.
Thank you
Hi, kindly what is the standard formula for calculating service pay ?
15 days’ pay for every year worked.
Hi Anne, HOW LONG AFTER ONES CONTRACTS END WITH GOVERMENT SHOULD THEIR GRATUITY BE PAID? ITS’ BEEN SLIGHTLY OVER A MONTH AND I FEEL i M BEING TAKEN ROUND IN CIRCLES?
Confirm from the terms of service that govern your employment.
VERY EDUCATIVE.
Asante
When an employee’s contract lapses at a time when he had gone for his leave days and got a leave allowance but 7 days remained as balance on the leave days. Do i pay for the seven leave days and at what rate if payable should the amount be calculated. Second of all. How does one calculate the gratuity step by step.
Gratuity is only payable if provided in the employment contract which should also provide the mode of conputation. The leave days not taken should be paid. You should first get the daily rate – monthly wage divided by 30 days – then multiply by the number of leave days.
Hi Anne Babu,
I would like to enquire whether an employee entitled to gratuity will be subjected to statutory deduction such as PAYE, NHIF and NSSF.
Kind regards
Statutory deductions are mandatory. Gratuity is only payable if provided in the contract.
Dear Ann,
Iam a unionisable employee working in a private company for now almost 5yrs. My question is if i decide to tender my resignaton tomorrow will i be paid gratuity?
Gratuity is only paid if it is provided in your contract or CBA.
Hi Anne, Came across your informative article on gratuity and I have a question on the same. My boss has a CBA with a union that states gratuity will be paid to all non-teaching staff as teachers were not union members when the CBA was signed. More than half the number of teachers came together and joined the union. When my boss found out, about teachers joining the union she was mad and she has threatened only to pay us for services rendered if she sacks us and not upon resignation. Question is, Can the teachers sue her for discrimination if she refuses to sign a new CBA stating that she will pay teachers gratuity when one decides to resign? Secondly, Can the same organization have two CBA for its employees? One with gratuity and one without?
Are teachers eligible to join the union according to the union’s constitution? Secondly, if the CBA only provides for payment of gratuity to non-teaching staff, there is nothing to compel your boss to pay teachers gratuity unless the CBA is amended.