“You need to work for 3 additional months to your probation for us to confirm you as our employee.’’ This is the response Helen, an entry level employee, got from the HR manager when she inquired about her work status in the organization.
Confirming her fears, she got a termination letter on the second week of the 3rd month informing her that she wasn’t a good fit for the position she had worked for in 1 year and 2 months still on probation! They as well denied her the last month’s pay.
Helen, unaware of her rights as an employee, left the organization frustrated and started her job search cycle. Was there anything Helen could have done to change her situation? Did the employer take advantage of her ignorance?What about denying her the last month’s pay? Is it lawful?”
What about you? Do you understand the parameters that define your status as an employee?
The height of unemployment in Kenya makes getting a job seem like a miracle that one should be too grateful for to ask about conditions and circumstances surrounding it.
People tend to accept anything as long as they get attached somewhere. But this is very wrong a notion.
You might assume that your employer understands the Labor laws well and will always follow it, but in reality many employers regularly violate employment law, either knowingly or unknowingly.
It’s up to you as the employee to know what you are entitled to under the law and just how far you can stretch.
Here are five of the most common ways that employers go against the law with some being so obvious that don’t even realize your rights are being violated.
Take a look and see if you spot anything here that your own employer should be doing differently.
Do You Understand The Kenyan Labour Laws?
1. Wrongfully terminating your work contract
“I need to quit my job, but I’m not sure of what the law says about termination, kindly advise me”.
This is an extract from the countless emails we receive on what the Kenya labor law says on termination.
An employment contract, as stipulated under the Employment Act, can be terminated in two ways.
First, an employer can give the employee a notice of intention to terminate the contract. Secondly, an employee can give the notice to terminate their contract or resign.
Must Read >>> Kenyan Labour Laws On Termination Of Employment
2. Hiring you as an independent contractor but treating you like an employee
There is a difference between a ‘contract of service’ and a ‘contract for service’.
The latter applies where one seeks to engage an independent contractor, otherwise known as a consultant.
If your employer controls when, where and how you work, the government says that you’re an employee and your company needs to pay your payroll taxes and offer you the same benefits it offers to regular employees.
3. Treating you as exempt from overtime pay.
Whether or not you’re eligible for overtime pay isn’t up to your employer.
According to the regulation of wage orders and conditions of employment, there is a specific number of working hours varied by industries.
If you work in excess of normal hours per week as specified, the additional hours are treated as overtime.
4. Extending your probation period for longer than it should be
The Employment Act defines a probationary contract as ‘a contract of employment, which is of not more than twelve months duration or part thereof, is in writing and expressly states that it is for a probationary period.’
Before you start work, an employer has two options – to give you a probationary contract or to give a normal contract with a probation period at the start.
The probation should not go for more than a year (Section 43 subsection 3) as highlighted above.
5. Reducing your pay without prior notice or agreement
An employment contract cannot be unilaterally varied by one party without the consent of the other.
Hence, under the country’s Labor laws, an employee’s pay cannot be reduced without discussions between the employee and the employer.
Even in situations where a company is facing financial problems, the two parties must still discuss and agree.
That said, it’s now up to you to read and understand the Employment ACT and be fully informed.
Related Article >>> Kenyan Law On Suspension Without Pay: Is Suspension Legal?
This article is meant to highlight key important aspects that most employees go through. It does not however act as a substitute for the employment ACT. The earlier you realize your rights as an employee the better your career life shall be.
The writer works at Corporate Staffing Services Limited, a leading HR Consultancy firm that provides career advisory and FREE job placements. For more information visit https://www.corporatestaffing.co.ke/