4 Measures An Employee Can Take If He is Replaced While on Leave

By Mark Namaswa,

What would you do if you came back to your workplace refreshed and ready to work after leave only to find that you have been replaced?

This is what happened to Mary Munyoki* upon her return from a three-month maternity leave. She not only found her employment position taken over, but was also told by the employer to find answers from her replacement whether he was willing to relinquish the job back to her.

According to Caroline Mwangi, HR Crown Beverages, being replaced while on leave without due communication is not only illegal, but contravenes the ethics of employment practices.

“Procedure has to be followed when terminating someone from employment,” she says. “This also applies in cases where the said employee has been found culpable of gross misconduct.

Ms. Mwangi explains that ideally, there should have been some form of written notice given with reference to a HR Handbook or invoking a rules or regulations on labour the replaced employee may have violated that resulted in her replacement.

But Mr. Farayi Ziswa, MD – BTL Consulting holds a slightly different opinion. “In most cases the employee probably was fired or something transpired about which some information is not being told,” he opines.

What Should You do if you are Replaced while on Leave?

1. Attempt to Resolve the Matter with the Employer
Mr. Ziswa, says that even before the employee considers himself out of employment, he should first confirm his job status with the employer – ideally in written.

“The first step is finding his contractual status: ask the employer, ‘Am I still employed or dismissed? If I’m dismissed, then hand me the dismissal letter and if there’s compensation, let me have it,” he says.

2. Raise the Matter with a Trade Union
“Should you happen to be a member of a trade union, this should be the right time they should come to your aid,” she suggests.

“Take the matter to them and they should be the right people to take up your case to your employer and lobby on your behalf. They will ultimately reach a compromise and should it happen that your replacement was irregular, they can secure compensation on your behalf.”

3. Explore Legal Options
Though this avenue is not a popular one, heading to court, as Ms. Mwangi, suggests is one alternative an employee who finds himself or herself dismissed in this way can explore.
“Especially if you do not belong to any union at all, just approach a lawyer and he will, in consultation with a Labour or Industrial Court, serve the employer with a summons to appear in the court for resolution of the matter.”

Lawyers who have dealt with labour disputes, she suggests, are also well informed on handling work-related disputes and know their way around resolving them.

4. Secure an Out-of-Court Settlement
In most cases, says Ms. Mwangi, unless the court rules in favour of the employer, matters taken to the industrial court often end up being resolved out of court.

“Damages and compensation, she says are some of the matters most employers would prefer to settle out of court.

Ms. Mwangi insists that even if a worker’s reliever during the period of leave does a better job that the one he has replaced, the worker is still entitled to his job.

Tying up the discussion, Mr. Ziswa advices: “Unless it is communicated to him, the employee is technically still employed and should clear with the employer and not have anything to do with their replacement while the matter is still being resolved.”