Contract of Employment
A contract of employment or service means an agreement whether oral or written, expressed or implied, to employ or to serve as an employee for a period of time, and this includes a contract of apprenticeship and indentured leadership but does not include a foreign contract of service.
What laws govern contracts of employment/service in Kenya that a worker can refer to?
In Kenya, employment is governed by the general law of contract, as much as by the principles of common law. Thus, employment is basically seen as an individual relationship negotiated by the employee and the employer according to their special needs. A number of laws have been passed specifically dealing with different aspects of the employer-employee relationship. These laws define the terms and conditions of employment, and consist mainly of four Acts of Parliament:
- The Employment Act (2007) and the Regulation of Wages and Conditions of Employment Act (2007) make rules governing wages, leave and rest, health and safety, the special position of children and women and termination of employment. The latter Act, in addition, sets up a process through which wages and conditions of employment can be regulated by the Minister.
- The Factories Act (Cap. 514) deals with the health, safety and welfare of an employee who works in a factory.
- The Work Injury Benefits Act (2007) provides for ways through which an employee who is injured when on duty may be compensated by the employer.
- The Employment Act does not make any provisions for wages in general. The minimum wage is dealt with by the Regulations of Wages and Conditions of Employment Act.
Are there different types of contracts?
There are mainly four types of contracts under which you can employ someone and these are:
- A contract for an unspecified period of time: An employment contract which does not specify a fixed period of duration, is considered to be for an unlimited period of time, but can be terminated by notice of either party. However, in the organised sector collective agreements which give workers’ tenure limit the employers’ ability to discharge and end the employment contract.
- Contract for specified period of time: If the contract is for a definite period of time then the term should be specified. If an employment contract specifies a fixed period of employment, usually three months and above, the contractual relationship is automatically terminated at the end of this period, without being considered a resignation or a dismissal. Under section 39 of the Employment Act, such a contract may be prolonged for a period of service up to one month, if the employee is engaged in any journey.
- Contract for a specific task (piecework employment): This is a kind of contract in which a person is employed for the performance of a specific task (section 9). Once the task is completed then that contract comes to an end.
- Contract for casual employment: The “casual employee” is an individual is paid at the end of every day and who is not engaged for a longer period than twenty-four hours at a time.
How long should it take for a newly employed worker to be given a contract of employment by the employer?
An employer shall within two months after the beginning of employment provide the worker with a written statement of the particulars of the main terms of the contract of employment (Employment Act, S 10).
What is a “written statement of employment particulars” and what are its ingredients?
An employment particulars statement is a list of information about an employee and terms of engagement which the employer must supply to an employee within two months of the employee’s commencement of employment. Employment particulars must contain the following information about an employee:
- Name, age, permanent address and sex of the employee
- Name of employer
- Date of commencement of employment
- Job description of employment
- Form and duration of contract
- Place of work
- Hours of work
- Remuneration, rate and method of calculation and details of any benefits
- Interval at which remuneration is paid
- Any other prescribed matter (section 10 (1) (2)).
If the particulars stated above are stated in a written contract which has been supplied to an employee the employer does not have to furnish the employee with the written particulars. It is also the duty of the employer to make sure that all written particulars or the ingredients of the contract are explained to the employee in a manner that an employee understands (section 9 (4)).
Can I be employed via an oral contract?
Yes. Oral contracts are permissible; however an employee must be supplied with a written statement of particulars containing terms listed above. It is okay to enter into an oral contract of employment because in case of any legal proceedings the burden of proving or disproving an alleged term of employment falls on the employer (section 10 (7)). If an employer fails to produce a contract of employment or written statement of particulars he/she will then fail to prove any term contained therein and the dispute might be decided against him/her.
Do I as an employee have to be given a written statement of particulars or contract of employment even if am employed for few days?
No. Any of the above-mentioned terms will apply to you as an employee if you have to work for a period of three months or more.
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