Hi Eric, please explain to me what the employment act states in terms of salaries, leaves and benefits. I have been an employee at a certain company for five years now without any promotion or pay increment. I would like to approach my boss for a raise but I am afraid to offend her and maybe even get fired.
Betty Bender cautions employers through the following statement: “When people go to work, they shouldn’t have to leave their hearts at home.” People can only carry and share their hearts with an organisation if fair labour practices are respected, protected and promoted.
Fair labour practice is a right created for and bestowed to an employee by the Constitution in Article 41 (1), which states that every person has the right to fair labour practices. Further, in Sub-Article (2), the constitution emphasises that every worker has the right to fair remuneration and reasonable working conditions. By seeking to have a salary responsive to the realities facing people, besides guaranteed leave and benefits, one is largely describing and qualifying reasonable working conditions.
An employee who is likely to encounter the challenges mentioned in your text is one with a contract of service, that often stipulates the terms of employment or engagement. Any and every contract of service must consist of and contextualise certain basic yet fundamental human resources management principles and practices.
First, as a law, each and every person must be subjected to the protection offered under Article 27 (1), of the Constitution places every person to be equal before the law and has a right to equal protection and equal benefit of the said law. Sub-Article 2 asserts that equality includes full and equal enjoyment of all rights and fundamental freedoms
At Sub-Article 4, the Constitution demands of the state not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status and ethnic or social origin, age disability, religion, conscience, belief, culture, dress language or birth.
The Employment Act of 2007 in labour-related matters, which has been amended through the Employment Amendment Act No. 22 of 2022 must treat you with dignity as prescribed in the constitution in Article 28.
Part II of the Employment Act Section 5 (2) offers that an employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice. Sub-Section 3 (a) of Section (5) follows through the tenets espoused in Article 27 (4), by directing all employers not to discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee on grounds of race, colour, sex, language, religion, political or other opinions, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status.
In addition, in Sub-Section 3 (b), employers are instructed not to discriminate against an employee or potential employee with respect to recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment. In affirming these duties and rights distributed between employer and employee, Sub-Section 4, behoves the employer to pay his or her employees’ equal remuneration for the work and equal value.
With regard to the contract of service, Section 10 (1) confirms that particulars of employment must be stated and given either expressly or in instalments for as long as this does not exceed two months after an employee is offered employment. At Sub-Section 3 (a-i) it is provided within the contract a statement detailing the entitlement to annual leave including public holidays, and holiday pay, (the particulars given being sufficient to enable the employee’s entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated).
Specifically, Section 28 (1) it is provided that an employee is entitled to annual leave after every twelve consecutive months of service with his employer to not less than twenty-one working days of leave with full pay. As regards benefits, it is provided for in Section 10 (2-h) that a contract of service shall detail the remuneration, scale of remuneration, the method of calculating that remuneration and details of any other benefits.
Each person in an employment relationship, notwithstanding the internal organisational human resources policies and manuals, has the right to demand what is lawfully provided. Such demand is premised on Article 33 (1), which gifts every person with the right to freedom of expression, which includes freedom to seek, receive or impart information or ideas.
The second tenet is Article 28, which is on the right to inherent human dignity. However, your pursuit for better pay and promotion should not cost your employment. There must be a clause in your contract that determines how your employment relationship can be terminated. Remember that the Employment Act in Part II, Section 5, creates an offence on the part of an employer should they practice discrimination.
Therefore, you have a cause to go to court should they terminate your employment for the reason you have pursued your right to promotion, leave and benefits. Section 6 transfers the burden of proof to the employer who shall be expected to prove that discrimination did not take place. Let all human resources managers be told by Richard Branson, that we train people well enough so they can leave while treating them well enough so they don’t want to.
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]
