Please help me, I am in a desperate position. In January last year, I was poached by a competitor; I believe due to my excellent work skills. Then towards the end of last year, the company had layoffs and I was retrenched. Why did they poach me if they intended to fire me so soon?
Your concern is valid, as it would be for any professional. In a state of legal relevance to an employer, as it is to an employee, it provides an opportunity to interrogate how the right to fair administrative action as espoused in Article 47 of the Constitution promotes justice for both parties.
However, it is important and firstly central to acknowledge the right of choice and decision-making, provided for in Article 32 (1), which says that every person has the right to freedom of conscience, religion, thought, belief and opinion.
You, therefore agreed to be headhunted, which occasioned your movement from an old employer to a new one, on the basis of excellent work skills and competencies, as you have stated. The consequences of your decision are unprecedentedly unfortunate because you are out of gainful employment.
It is not clear why you exited the old employment. The balance between personal and organisational goals is a big challenge to many employers and employees. The interface of these two competing concepts of development is the premise upon which human resource policy is formulated and funded.
As a fundamental policy provision, each and every person in a working environment has the right to career growth and change, which may include moving from one employer to another.
In part, it is a component of fair labour practices rights championed by Article 41 of the Constitution. It is within the law and part duty of any employer to release an employee who seeks to depart their employ, upon fulfilling the appropriate administrative process of departure.
Consequences notwithstanding, it is necessary to review the several employees’ departure options to a new employer. Scenario one is where an organisation finds an employee’s services to be inadequate or incompetent. The inadequacy or incompetence likely leads to termination.
Scenario two is where an employee terminates his relationship with an employer upon finding another job or an alternative engagement, not necessarily employment. This could even be creating some good time to rest.
Scenario three is where an organisation cannot sustain its existence, for reasons that may include and are not limited to liquidation, unsustainable service/business delivery model or transition to new lines of business and change of ownership.
Scenario four is when someone’s skills and competencies do not match the organisation’s mission, leading to redundancy.
This has been captured by Section 35 of the Employment Act. Sub-Section (1-c) states that where the contract is to pay wages or salary periodically at intervals of or exceeding one month, a contract is terminable by either party in writing at the end of the period of twenty-eight days next following the giving of notice.
Sub-Section 5 indicates that an employee terminated as described in Sub-Section 1-c is entitled to service pay for every year worked, the terms of which shall be fixed. While Section 36 is for the party to a contract of service in pursuance to Section 35 (5) that terminates their engagement without notice upon payment to the unaware party of the remuneration which would have been earned. Section 35 (4-b) emphasises that there is nothing in the labour law that negates the right of an employee or employer to terminate a contract of employment without notice for any cause recognised in and by law. It is the imagination of this column that one of these scenarios did apply when you separated from the old employer.
There is nothing wrong with a person being headhunted following their skill, competencies and experience, and sometimes a combination of all cited. You have shared that you acquired a new job, but this was short-lived. Notwithstanding the circumstances under which you departed your former employer the assumption that the new one offered better terms prevails.
In order that this column is of great help to you and those facing and experiencing similar challenges, some more information is required. For instance, upon employment what contract of service, if at all, did you commit to? Was it annual, permanent and pensionable or probationary?
At what point, or after which period of time did the new employer terminate the contract? What was the remaining period of service on the terminated contract? What were the terms of the contract of service and whether this includes protection from victimisation, discrimination and unfair labour practices? It does not appear as though you failed to deliver the terms of your new-now lost job, nor the new employer found you redundant after recruitment.
Section 40 of the Employment Act does provide grounds and conditions that an employer must adhere to if they were to terminate an employee citing redundancy.
Understanding the kind of contract and the period at which it terminated increasingly points to the existence of a human resource management incongruity, that may have injured a legitimate legal expectation to provide employment service for a given time frame. You may wish to negotiate with the employer or move to the Employment and Labour court to canvass this issue.
Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]
