Law Society of Kenya v Attorney General [2008] eKLR

High Court at Nairobi, Justice J.B. Ojwang, May 22, 2008.

The Law Society of Kenya got a temporary reprieve when the court
directed that

suits that were filed under the repealed Workmen Compensation Act,
Cap 236, should continue to be heard under that law until the hearing
of a petition filed by LSK on 14th April 2008.

The orders were made by High Court Judge J. B. Ojwang on 22nd May
2008 following LSK's complaints that the recent Work Injury Benefits
Act, 2007, which entered into force on 20th December, 2007, has no
provision which would enable parties to transfer suits currently in
the courts to a similar juridical forum thus leaving the parties who
have pending cases in courts without a legal redress avenue.

In its petition LSK challenges the constitutionality of some of the
provisions of the new law, such as Section 16 which prevents an
employee from instituting action in court for recovery of damages for
injuries or diseases specified in the Act. The society disputes
Section 23 (1) which gives the Director of Occupational Safety and
Health Services the power to decide any claim or liability, they
argue this is akin to giving the director judicial powers which is
vested in courts.

In the application before Judge Ojwang LSK asked the court to direct
that suits pending in courts be subjected to the normal judicial
adjudicative process. An affidavit by Ms. Betty Nyabuto, in her
capacity as the LSK's secretary, stated that the following the
enactment of the new law, LSK had received numerous complaints from
its members. She stated that since the passing of the new law the
subordinate courts have consistently upheld that in view of Section
58(2) of the Work Injury Benefits Act, 2007 they would not hear any
matter covered by the Act. Consequently the courts have stood over
generally matters related to compensation of employees for work
related injuries and diseases.

The pending litigation had in each case been commenced on the basis
that the repealed Workmen's Compensation Act was in force. The Work
Injury Benefits Act, 2007, however contains no transitional
provisions. Section 58(2) of the new enactment provides: "Any claim
in respect of an accident or disease occurring before the
commencement of this Act shall be deemed to have been lodged under
this Act."

It was further averred that the limitations in the new law have
adversely affected the practice of law. To further support its
application, LSK filed several supplementary affidavits from
advocates in practice throughout the country. For instance, Mr. Peter
Mwaura Kamau, a Nairobi lawyer, stated that when the new law commenced
he was handling a case whose judgement was delivered on 8th January,
2008 in favour of the plaintiff but the plaintiff has been unable to
enforce the decree because the new law has ousted the jurisdiction of
the courts in dealing with such matters.

Another Nairobi lawyer, Mr. P. Ngunjiri Maina, in his affidavit
listed several cases which he was handling before the subordinate
courts which had became impossible to progress. Similar experiences
were recorded in the affidavits of lawyers from Mombasa, Kilifi,
Mumias and Kitale.

The application was opposed by the A-G's Principal Litigation
Counsel, Mr. Ombwayo, who contended that LSK's application was
misconceived as that it was based on a misinterpretation of the law;
LSK lacked locus standi and that section 58 did not affect pending
suits, and so was not unconstitutional

Mr. Ombwayo submitted that LSK would not suffer irreparable loss if
its prayer for stay pending hearing of the main cause was not
answered and that the on going implementation of the Work Injury
Benefits Act, 2007 ought not to be interrupted save by judgement on
the main petition.

In oral submissions before the court, Mr Ngatia, submitted that the
Work Injury Benefits Act, 2007 which was passed towards the end of
the life of the 9th Parliament, has occasioned operational
implications with a direct impact not only on the basic rights of
citizens, but also on the functioning of the judiciary as the
constitutional organ entrusted with the mandate of dispute settlement
in justiciable matters.

Mr. Ngatia stated that before the new law's date of commencement,
there were many suits pending, founded on the repealed Workmen's
Compensation Act. Employers, who were generally the defendants in
such suits, he noted, have now invoked section 58(2) of the Work
Injury Benefits Act, 2007 to stop the suits.

The plaintiffs in such suits, the learned counsel urged, had been
restrained in their use of the judicial process to resolve their
claims, without being accorded some other forum where their pending
suits could be resolved. The effect, Mr. Ngatia submitted, was that
the Work Injury Benefits Act, 2007 had denied such suitors a legal
process by which they could address their grievance.

On his part, Mr. Guserwa for COTU, an interested party in the
application, supported LSK's application and urged that all
work-injury cases filed before the date of commencement of the new
law should continue to be litigated under the repealed Workmen's
Compensation Act, and that only suits arising after that date should
be filed under the provisions of the new enactment.

While the complex issues raised had to await final determination of
the main suit, the judge noted that there was no contest that a large
number many workmen's compensation cases remained pending before
Magistrates' Courts throughout the country. In some cases, decrees
had already been issued in favour of particular parties but they had
been rendered incapable of execution.

The Judge held that the suitors in such cases would have been
exercising their fundamental-rights, as secured in Chapter V of the
Constitution of Kenya, and so they had legitimate expectations that
the judicial process would handle and conclude their cases. The
enactment of the Work Injury Benefits Act, 2007, so far as it goes,
would be a normal exercise of the legislative power of the Kenyan
Parliament, in accordance with the terms of s.30 of the Constitution
of Kenya.

However, room for conflict between the Constitution's empowerment to
Parliament, on the one hand, and the Constitution's safeguards for the
citizen's rights, on the other: and whenever such a conflict occurs,
then, ordinarily, it is the High Court's mandate to make a sensible
interpretation, and to declare the correct understanding of the
Constitution.

"I have no doubts that irreparable harm will in the first place
result for the suitors whose cases before the Magistrates' Courts now
stand in limbo; this harm, by inference, may be attributed to the Law
Society of Kenya, the organization of Advocates who have the conduct
of the pending cases" the judge stated.

In his concluding remarks the judge found that "the lower risk of
injustice requires that the suits now pending before the Magistrates'
Courts, which have implications for the accrued rights of the suitors,
ought to be resolved and concluded without delay."

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Reported by Esther Nyaiyaki

L-K’ers: What is your take on this? Email your opinion now to: pmusyimi@gmail.com

PATERNITY LEAVE UNDER EMPLOYMENT ACT OF KENYA

Introduction
The provisions of the Employment Act on Paternity leave are evidently not clear in that they do not state when the leave is taken and on what basis. In the Act, the minister of labour is vested with the powers to make rules and regulations on any matter regulated by the Act. Matters touching on paternity leave are no exception. However, so far no rules or regulations have been passed.

The Employment Act also grants employer the indulgence contract with employees or their representatives on rights and duties of employee than otherwise provided for in the Act. The only condition is that for such the contract to stand, if inconsistent with the Act, it must be more favourable to the employee than the Acts provisions on the matter.

Also, the fact that the provisions on paternity leave are included on the provisions of maternity leave may be a pointer to their interpretation in case of ambiguity. If anything, if the law is strict on the female employee, the one expecting the baby, it is unreasonable to even think that the Parliament intended that it be lenient on male employees relying on the same expectancy.

Here, we consider the 17 frequently asked questions on right to paternity leave.

1. What are the rights to paternity leave?

The provisions on paternity leave under the Employment Act allow an eligible employee to take fully paid paternity leave.

The provisions of the Employment Act on Paternity leave are evidently not clear in that they do not state when the leave is to be taken and on what basis. The relevant section reads:

“A male employer (sic) shall be entitled to two weeks paternity leave with full pay.
The bit about ‘employer’ is a clerical error and clearly it was intended to state ‘male employees’.

2. Who qualifies for paternity leave?

Answer: A male full ‘employee’

To qualify for paternity leave, a person must be a male person and an employee. That is to say, ‘be employed for a salary or wages’, as employees are defined in the Act. However, a casual employee is not included as the Act seems to define an ‘employee’ and ‘casual employee’ separately. In our opinion, the right to paternity leave is available to full employees only and does not cover casual employees.
Logically, paternity and by extension a leave based on claims of paternity can only accrue to:

• the biological father of a baby
• husband or partner to the baby’s mother.

We are of the opinion that for the purpose, a partner would be someone who lives with the mother of the baby in an enduring family relationship but is not an immediate relative. This seems to us necessary because it will be hard for an employee to prove that he is the biological father.

3. Which employees are excluded from paternity leave?

Answer: Casual employees.

As opined above, the definition of ‘employee’ in the Employment Act does not include a ‘casual employee’. Given that only a ‘male employee’ is entitled to paternity right ‘casuals’ are thus excluded.

4. Is an employee entitled to time off to attend antenatal care appointments?

Under the statutory right to paternity leave, male employees are not entitled to time off to accompany their partner at antenatal appointments (although pregnant employees would as a matter of reasonability have the right to time off).

5. Can an employer create stipulation on paternity leave?

Answer: Yes. This also goes to answer, most especially your question three.

The Act allows the employer and employee to contract on terms of employment provided the terms between them are more favourable to the employee than the terms provided in the Act. In the present case, such contract would be justified in that it would aim to give effect to the right of paternity leave which is otherwise ambiguous.

However, employers cannot use the provision to contract employees out of their right to paternity leave as the law is couched in mandatory terms. Thus the answer to the question is that the employer can have its own paternity leave provisions on the contract of employment provided they do not infringe the right or paternity leave as provided for under the Act. If it infringes, the employee is entitled to choose the right under the scheme or the statutory one.

Thus, although not expressly provided for in the Act, the employer may restrict the right to paternity leave. But such restriction must be favourable to the employee and only requiring what a reasonable man would infer from the law otherwise they would amount to illegal contract and doomed to unenforceability.

6. How much paternity leave can an employee take?

Eligible employees are entitled to take either two consecutive weeks’ paternity leave. It can not be taken as odd days or as two separate weeks.
Employees can take only one period of leave even if more than one baby is born, i.e. twins or triplets, as the result of the same pregnancy.

7. When can an employee start his leave?

This is not provided for in the Act. However, a female employee is required to give seven or any other reasonable notice before proceeding to the leave. We find no reason why the male employee should not also be so required. But we think the employer and the employee can agree that the same be taken latter or earlier.

However, for prudence sake, paternity leave should, as far as possible, be restricted to after the given birth. If anything, that is the time when documentary evidence of fatherhood is forthcoming e.g. birth notification and baby cards.

8. Will an employee qualify for leave if his baby is stillborn or dies following birth?

The law does not stipulate on this. We opine that a qualifying employee should be entitled to paid paternity leave if his baby is stillborn after a reasonable time of pregnancy. This is because such births are usually traumatic to the couple and the employee may need, just as is the case in a live birth, time to take care of the mother.

However, not all still births can qualify. Some jurisdictions have put the period at twenty-four weeks of pregnancy for the male partner to qualify in case of a still birth. In our case, are of the opinion that reasonable time would do-that is such time as reasonable depending on the circumstances of the case.

Further, if the baby is born alive at any point in the pregnancy but dies later, it seems the employee should be entitled to paid paternity leave in the usual way.

9. Can the employer restrict the leave to be taken within a certain period?

The law does not limit the time on which the leave may start. However, we are of the opinion that the employer may provide for reasonable time in which it may be taken depending on the prevailing circumstances.

10. When must an employee tell his employer that he is going to take paternity leave?

No restrictions on this. But it seems the employer may within the law impose a reasonable restriction in the interest of smooth flow of its business i.e. as soon as is reasonably practicable after birth depending on the prevailing circumstances.
11. What does an employee have to inform the employer to be entitled to paternity leave under the Act?

If the requirements on maternity leave are anything to go by, a male employee wishing to exercise its right to paternity leave should if required by the employer, produce a certificate of the medical condition of his wife or partner and prove that he is the father of the child and/or the partner or husband of the mother.

12. What protection is there against detriment for taking paternity leave?

An employee is protected against being subjected to detriment by any act or deliberate failure to act by their employer because he:

• took paternity leave or
• sought to take paternity leave

Detriment can cover a wide range of forms of unfair treatment, such as denial of promotion, facilities or training opportunities which the employer would otherwise have offered or made available.

Employees who suffer unfair treatment at work for the above reasons may make a complaint to the authorities.

13. Are the 14 days inclusive or exclusive of public or weekly holidays or not?

Answer: Inclusive

In respect of annual leave, the Act is specific that the days that shall count are ‘working days’. However, in the provision on paternity leave, the law talks of ‘two weeks paternity leave’. Given that it does not specify that the two weeks compose of working days, the literal meaning is that the leave days are inclusive of weekly holidays and public holidays, i.e., calendar weeks.

16. Does the employer have the right to deny such paternity leave if requisitioned latter than time of partner’s delivery?

Answer: Yes.

However, it seems the employer must reserve the right as to the requirement with regard to notification of birth. Bust the same should not be unreasonable or unduly unfavourable to the rights of the employee.

17. Can the employee insist on claiming wages in monetary terms instead of the paternity leave?

Answer: No.

It would seem this touches on why the leave is granted in the first place. The father is given the leave to be with the new-born and take care of his responsibilities as a father. However, the law merely states that the employee is entitled and not that it shall go for the leave.

In my opinion, the employer cannot contract the employee to accept cash in place of the absence. The same would likely fail to pass the test of being favourable to the employee. For example, it may amount to acting against the interests of the employee.

However, if the employee opts for cash, and the employer is agreeable, we see no reason why the cash will not serve the purpose. But the employee cannot insist on the cash i.e. force the employer to agree to pay cash and forfeit the leave. It is a matter of discretion of the employer and if it wants the employee to proceed on leave, the employee has no choice. Just same way the employer cannot compel the employee to forfeit the leave for cash when he wants to proceed for the same.

GRATUITY LAW AND PRACTICE IN KENYA

Gratuity is a lump sum amount that an employer pays the employee (on contract) when he retires or resigns from the organization. An employee does not contribute any portion of his salary towards this amount. The rationale for gratuity is to encourage employees to offer longer service to the employer and to ease the termination of contract of employment by offering the sum of gratuity as consolation.

Gratuity is not provided for as a minimum condition of employment. But it has developed as a good practice in employment and employees have come to expect it from their employers.

Gratuity is usually paid in the following circumstances:
(i) when the employee retires
(ii) When the employee resigns
(iii) In event of death of the employee
(iv) In event of disablement i.e. because of accident or illness.

Generally, gratuity is payable upon successful completion of the agreed contract term. In alternative, an employee qualifies for gratuity payment after a specified period of employment, usually five years of service with the employer.

The gratuity payable depends on the terms of the contract of service. The prevalent practice is that the employer pays the employee a month’s basic salary for every year of service. However, there is no reason why the employer and employee cannot agree on alternative amounts.

In essence, gratuity should be a term of the contact of employment. It is not payable if the employee is summarily dismissed as the employee is usually in fundamental of the terms of employment. In such an instance, the employee cannot insist on enforcing the terms of employment against the employer having failed to keep his part of the bargain. But that does not prevent the employee from staking a claim in the industrial court alleging unfair dismissal and citing the need to avoid paying the gratuity as why the employer dismissed him.

With regard to resignation, the contract of employment should state the minimum period that the employee should have served to be entitled to gratuity. Thus if an employee resigns after 5 years he is eligible for gratuity. The law does not anticipate that one will work for a single employer all his life.

If the employee resigns citing ill-health, depending on the stipulations of the contract, he may or may not be eligible for gratuity. The contract of employment may put a limit on the period which the employee must have served to be eligible for gratuity. However, if the ill-health is as a result of work injury acquired while with the employer, the employee may be entitled to claim gratuity, at least for the period already served.

In event of death of the employee, the gratuity is to be paid to the nominee of the employee or the personal representative. Just like in resignation, the contract of employment may stipulate the period that the employee must have served to be eligible for gratuity.

When an employee is laid-off due to redundancy reasons, depending on the stipulation of the contract of employment, the employee should be entitled to gratuity. That is, at least for the years worked as he can argue that, but for the lay-off, he was willing to work until he was entitled to gratuity. But usually, gratuity here is part of the negotiated golden handshake for the lay-off.

Finally, if the employer is undergoing losses or goes into receivership, those are not reasons enough to disentitle the employee to gratuity. Losses do not afford a company the defense to breach a contract, and gratuity is clearly a matter of contract of employment. If the company is under receivership, the affected employees will be entitled to claim gratuity against the receiver of the employer as a contractual debt.