Article 41(1) of the Constitution of Kenya, 2010 provides that every person has a right to fair labour practices. Notably, the threshold of the fair labour concept is neither defined in the Constitution nor a statute under Kenyan law. Perhaps it could be attributed to the fact that this broad concept was only introduced by the Constitution of Kenya 2010 and which has to date seen Courts have varied (if not conflicted) interpretations of what would amount to unfair labour practice. Regrettably, as observed in some employment cases that have been filed by litigants, the term has been used ‘casually just to cover base’ in their claim if it has not been adequately pleaded and without clearly understanding how this concept can be helpful/meaningful to their claim before the Court.
Particularly, the Kenyan Courts have drawn inference from the provisions of the existing employment statutes to create a foundation of what would amount to fair labour practice. To aid in defining fair labour practices the Courts have relied on various provisions of the law (to cite just but a few), on a case by case basis as follows:
Section 41 of the Employment Act which has provided elements of a fair hearing to include the following items:
- an explanation of the grounds of termination in a language understood by the employee,
- the reason for which the employer was considering termination,
- entitlement of an employee to the presence of another employee of his/her choice when the explanation of grounds of termination was made; and
- hearing and considering any representations made by the employee and the person chosen by the employee.
Section 43 of the Employment Act – proof of reason of termination
a. the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair;
b. the reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.
Section 45 (2) of the Employment Act – Unfair termination
This Section provides that a termination of employment by an employer is unfair if the employer fails to prove—
a. that the reason for the termination is valid;
b. that the reason for the termination is a fair reason—
i. related to the employee’s conduct, capacity or compatibility; or
ii. based on the operational requirements of the employer; and
c. That the employment was terminated in accordance with procedure.
Kenya’s jurisprudence on the concept of fair labour practice is founded on the provision as enshrined in the Constitution of Kenya, various labour legislation, common law practices, treaties and convention ratified by Kenya, and various terms and conditions of employment as set in the subject employer’s code of conduct (where availed).
The above provisions are clearly illustrative that ‘fairness’ in all aspects is key in interpreting the fair labour practices concept.
The Kenyan case laws in which Claimants have been successful in their claim of unfair labour practices have in particular touched on unfair probationary terms, promotion, lack of fair distribution of employment opportunities on gender basis, imbalanced benefits, lack of accommodation of persons with special needs, whether ailing or with disability, amongst others.
It would be imperative to note that other jurisdictions have taken steps to define unfair labour practice such as South Africa which in its Labour Relations Act under Section 186 (2) provides as follows:
a. Unfair conduct by the employer relating to the promotion, demotion, probation, training or benefits;
b. The unfair suspension of an employee or any other unfair disciplinary action;
c. Failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement.
The above South African provision has a lot of similarities to the scenarios deemed as unfair labour practices in Kenya and thus perhaps a thought that the definition of unfair labour practices ought to be included in the Kenyan labour laws to facilitate certainty in its application.
Article by Angela Cherono, Principal Associate in the Litigation practice group with extensive experience of practicing civil litigation at the Court of Appeal, High Court and Subordinate Courts & Tribunals in the fields of employment, tax, intellectual property, corporate, banking, insurance, commercial and family laws.