How Covid ushered in a ‘strange’ workplace

Can Covid-19 be classified as ‘an act of God’?

One expression has gained currency in courts since the onset of the pandemic – force majeure. That is legalese for an unavoidable act of God.

It is typically used to describe unforeseeable occurrences that can make one party in a contract fail to honour their obligations.

So, is Covid-19 a force majeure? Such an argument was fronted by Tuskys supermarket as it faced off with the Kenya Union of Commercial, Food and Allied Workers in court over payment of unionised employees last year.

“The Covid-19 situation was an unforeseeable and unavoidable act of God or force majeure having the effect of legally frustrating any contract including the CBA (collective bargaining agreement) between the parties herein and indeed the individual contracts of service,” Tuskys argued at the Labour court through its lawyers.

In a ruling of July 2020, Justice Byram Onganya partly agreed with Tuskys’s argument but noted there was no force majeure clause in the CBA. “Whereas the Covid-19 pandemic was unforeseeable, it is clear that the collective and recognition agreements had no force majeure clause. Further, the clause subject of performance is the statutory and contractual clause that Tuskys negotiates and consults the claimant if salaries, wages and other benefits are to change,” the judge stated as he faulted Tuskys for not consulting employees before effecting pay changes. According to Mr Ratemo Tom Junior, a lecturer in labour and constitutional law at Kenyatta University, an employer cannot hide behind force majeure to make arbitrary decisions.

“There is a procedure to be followed. An employer cannot wake up in the morning and just go ahead and retrench the employees. A notice must be given in the first place to the employees, and in some cases the labour officer of a particular area must be informed well in advance, at least one month before,” Mr Ratemo told the Saturday Nation yesterday.

Noticing the precarious position the pandemic was putting employers in, the Federation of Kenya Employers discussed the force majeure issue in a session held in July.

“Participants discussed emerging industry trends and challenges exposed by Covid-19 such as inclusion of a clause on force majeure,” a summary of the virtual discussion published on the FKE website says.

So, where exactly is the workplace?

As per Kenyan laws, any employment contract needs to state the place of work. However, working from home became the norm to lessen movements during the pandemic. What if a litigable issue arose regarding the place of work?

In the 13th volume of the Italian Labour e-Journal, Mr Ratemo published a paper titled ‘Evaluation of the Demeaning Face of Covid-19 on Labour Relations: A New Challenge for Kenya’s Burgeoning Democracy’.

“Generally, the existing labour laws in Kenya do not incorporate guidelines for ‘working from home’ or ‘remote work /telework’. The Employment Act 2007 and the Employment (General) Rules 2014 specify that the employment contract or letter of appointment should indicate the place and hours of work of an employee,” Mr Ratemo wrote in the paper.

He went on: “The duty of an employer to facilitate reasonable working conditions is only restricted to workplaces and not at homes. In this context, the questions that beg for answers and which therefore need to be urgently addressed include whether the employer should be held liable in case of an injury sustained or diseases contracted while an employee works from home and not from the assigned place of work.”

Mr Ratemo advised that employers and employees should sign amended contracts to include “an employee’s home” as a place of work.

“This can help avoid instances of breach of terms of the employment contract,” he stated.

Mr Ratemo said the pandemic also raised the question of whether being on quarantine should be considered a sick leave, especially if the employee has not tested positive for Covid-19 in tests conducted as he or she quarantines.

In case an employee tests positive at the end of the quarantine, he argued in his paper, then they can count the isolation period as sick leave. “However, it would be difficult to establish whether an employee is/was entitled to sick leave after being declared Covid-19 negative (at the end of quarantine),” he wrote.

Can a worker be sent on unpaid leave because the company is not making money?

As the ripple effects of the pandemic spread, reports about employers sending staff on unpaid leave were widespread – especially in the hospitality industry.  Mr Ratemo said such a situation does not have the blessings of the Employment Act and, as such, the employer would be deemed to have sanctioned an illegal leave.

“Though the Employment Act envisages a situation where an employer may, in consultation with his/her employee, revise the employment terms, it can amount to breach of an employment contract in circumstances that an employee is compelled by an employer to proceed on leave yet there exists no mutual agreement between the two parties,” he wrote in his paper.

Lawyer Cathy Mputhia, writing about the employers’ predicament in the April 5 edition of the Business Daily, argued that Kenya should have a furlough law to address the effects of the pandemic.

“A furlough provision is treated as a temporary unpaid leave that employees take to allow an employer restructure. During a furlough period, an employee is not paid. However, the beauty with the provision is that the employee still retains their job. It is better than laying off staff,” she wrote. But the only amendment targeting the Covid-19 situation is in the Pandemic Response and Management Bill, introduced in the Senate by Nairobi Senator Johnson Sakaja in March. In its section on labour relations, the Bill sides with employees. “The measures taken by an employer who is adversely affected by a pandemic, with respect to an employee, shall not contravene the existing employment and labour relations laws,” reads part of the Bill.

How can productivity be measured remotely?

The Competition Authority of Kenya (CAK) claims to be one of the organisations that have come up with remote productivity monitoring tools, at least according to its human resource manager Faith Marete.

“We have a well-established remote working mechanism supported by a robust ICT infrastructure, productivity monitoring and measurement tools, and organised communication channels,” she says in a post on the CAK website.

However, the issue of monitoring the productivity of an employee working remotely is an untrodden path because most contracts signed before the pandemic did not factor it. “Remote working, otherwise called teleworking, is a very big issue at the moment,” Mr Ratemo said yesterday. An April 2020 survey by Consumer Insight Kenya showed 81 per cent of staff working from home were unproductive. Only a meagre two per cent felt productive working from home while three per cent of the 1,083 respondents said their productivity had remained the same.

What should happen if employees reject a pay cut?

With the pandemic came unprecedented actions among Kenyan employers, one of them being effecting pay cuts on staff by a certain percentage. But not all staff agreed to take pay cuts. In a case ruled upon by the Labour court in Nairobi in December, members of the Amalgamated Union of Kenya Metal Workers sued Kenya Coach Industries, a company that makes bus bodies, over pay issues.

The court heard the employer had suggested a 35 per cent pay cut for employees, which they rejected.

“Kenya Coach Industries attributes the deterioration of its business to the employees’ refusal to accept a 35 per cent pay cut or sending employees on unpaid leave,” the court record reads. As a result, the employer – citing a decline in earnings – declared 35 of the workers’ jobs redundant, hence the lawsuit.

As she issued an order restraining Kenya Coach from sending the workers home, Lady Justice Maureen Odero said the employer needed to have had consultations with employees before making the decision.