Suspension|Gratuity|Sick Child Leave|Transfer of employment…
2 years ago
This article is a “mishmash”, for lack of a better word. I have put together my responses to various questions that I have been asked in the recent past. I have also included important points brought out in recent decisions of the Court of Appeal.
Under what circumstances can an employer suspend an employee?
It has been held, in a number of cases, that suspension is only lawful if provided in the employment contract or in the employer’s policies and that in the absence of such a provision, the employer should place an employee on administrative leave instead of suspension. This argument seems to me to be an issue of semantics.
Anyway, in a judgment delivered on 24th January 2020 in CMM vs INVESCO, Civ App No. 270 of 2017, the Court of Appeal came out strongly on this issue holding that an employer has the right to place an employee on suspension regardless of whether or not suspension is provided in the contract. The Court held,
We find that line of argument preposterous…suspension and interdiction pending investigations for alleged misconduct is ordinarily part of the disciplinary process …CMM vs INVESCO, Civ App No. 270 of 2017
Can a disciplinary hearing be conducted through documents only?
This is a reiteration of a position that the Court of Appeal has stated severally, that is, that Section 41 of the Employment Act provides for physical interaction in the disciplinary process and therefore the hearing provided under Section 41, must be an oral hearing. (New KCCC vs OAA, Civ App No. 163 of 2017, judgment delivered on 20th December 2019)
When is an employee entitled to gratuity?
Believe it or not, the post on gratuity is one of the most read in this blog, meaning, gratuity is an FAQ, to say the least. In the New KCC case, cited above, the Court of Appeal once again stated that an employee only gets gratuity if it is provided in the employment contract.
If an employee has a sick child, does that entitle them to sick leave?
No, sick leave is only taken on account of the employee’s sickness. The Employment Act does not provide for leave on account of a sick child and therefore, it is not a right by law. The employer may decide to grant a special type of leave for a sick child (family medical leave, dependant leave etc). In the absence of that, the employee may take annual leave or unpaid leave.
How do you transfer employees from one entity to another?
Where the registration status of an employer changes, for example, from a sole proprietor to a partnership or from a company limited by shares to a company limited by guarantee, there is need to transfer the employment contracts from the old entity to the new one.
The answer to how to go about doing the transfer is long because each situation should be looked at bearing in mind its own unique facts. However, generally, there needs to be a written agreement signed by the current employer, proposed new employer and the employee where the employee consents to have their employment transferred to the new employer on the same or better terms and conditions of employment and the new employer consents to this and specifically agrees to recognize that the employee’s years of service with the current employer and also to take over any liabilities or claims arising from the employee’s employment with the current employer.
The employee should be issued with a new contract by the new employer capturing their terms and conditions of employment.
If there is a trade union involved then, needless to say, the union should be consulted on behalf of their members.
Where there is a transfer of business or undertaking, the process is much more complicated and perhaps I’ll address this in a future article.
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