XSK wrote:newfarer wrote:@ maka this is what I mean when I say employment act 2007 is a worthless waste of government printer stationery. of course most wazuans are above the minimum wage conditions. I guess.
unless nssf odongo had a contract expressly specifying what is due to him upon termination,he will be paid one month notice and days earned in July ie 22 days.that's what the worthiless employment act says.
that's why I always remind wazuan instead of the bickering Mara cord this ..jubilee that... pass this message to your MP :the employment act needs to be ammended to correct these flaws.
tomorrow it could be you.
How do we pass this message to all employees so that they lobby their MPs? It makes one very scared of leaving employment, you wait to be kicked out!!! Its very sad. However i am told that it was supposed to be done concurrently with the conversion of NSSF into a "provident fund" (i am not sure what this means)where the NSSF conributions were to go up to 7% of gross pay from both employee and the employer. However along the line, the law was changed but the NSSF conversion was shelved. Guess where this leaves the employees... without a parachute or even a simple umbrella.
As a starting point it is important to remember that the Industrial Courts derive their jurisdiction from the Labor Institutions Act (enacted along with the Employment Act) and the Industrial Court Act.
These Acts read together, grant the Industrial Courts exclusive jurisdiction to hear labor/employment disputes.
It is now settled law that no employee can be unfairly terminated.
The Employment Act recites what would be considered unfair termination unless the employer fails to prove otherwise.
Importantly the Act takes a different application of the evidentiary burden of proof. The burden of proof here is on the employer AND NOT the employee.
Therefore, the employer not only must prove fair reasons for termination, but also that it followed all the principles of Natural Justice including procedures to investigate the matter, conducted a hearing, and properly handled any appeals before resorting to termination.
If the employer is unable to prove this then the termination will be deemed to have been unfair.
Now what remedy is there for unfair termination? Read the Employment Act carefully and in particular Section 45: If a termination is deemed unfair, the Industrial Court not only has the power to award damages up to the equivalent of TWELVE MONTHS of gross salary, but can also order REINSTATEMENT to the same job position, or re-engagement under a similar position.
Is that an Act that is a worthless piece of paper? NO.
Ask yourself why the Board's members were keen on arguing that the relationship between Odongo and the Board has irretrievably broken down. They know that if the Court is so inclined It may order that Odongo gets a handsome one year bonus and still retains his job for the duration of the contract.
NSSF has this habit of treating its Managing Trustees like riffraff. One remembers how Alex Kazongo and Naftali Mogere were un ceremoniously bundled out of office. It is about time that they were hit with a big judgment so that they know that people do have rights.
And to make matters even better in a recent decision in Petition No. 341 of 2011 Justice Lenaola decreed that Section 45(3) of the Employment Act (the one stating that one must have worked for 12 months before getting this compensation) is unconstitutional.
The litigant had worked for 11 months and his case was dismissed. He therefore appealed to the High Court and prayed for a declaration that his right to fair labour practices under Article 41(1) of the Constitution had been violated by his employer.
Justice Lenaola in agreeing observed that the Employment Act was enacted in 2007 before the enactment of the 2010 Constitution of Kenya and therefore there was need to align the provisions of all statutes enacted prior to it with the said Constitution.
Judge Lenaola therefore declared and issued an order stating that section 45(3) of the Employment Act 2007 was inconsistent with the provisions of the Constitution of Kenya particularly Articles 28,41 (1), 47, 48 and 50(1) as the said section purported to deny the petitioner the rights and freedoms enshrined in the said Articles of the Constitution.
That makes the situation even better and despite the fact that so far none of the matters before Court has reached a full judgment based on that decision it follows that one can get 12 months Compensation even if you have worked for a day.
The Industrial Court has done this day after day and passed several judgments fortifying the position that compensation and reinstatement is a recognizable statutory award. I hope they do it in this case as well..
possunt quia posse videntur