LABAOR RELATIONS ACT

EMPLOYEES

LABOR RELATIONS ACT CONSTITUTION

1. Rights of Employees 1. to fair
a. Freedom of association remuneration.
i. Employees right to participate in a trade union 2. (b) to
ii. Join a trade union reasonable
iii. Leave a trade union working
b. Protection of employees conditions.
i. not discriminate against for seeking employment for 3. (c) to form, join
exercising an right conferred in this act or participate in
ii. require an employee or a person seeking employment not the activities
to be or become a member of a trade union or to give up and
membership of a trade union programmes of
iii. Prevent an employee to participate in all trade union lawful a trade union;
activities and
iv. Dismiss an employee based on 4. to go on strike.
1. Past, present, and anticipated trade union membership
2. Participating in the formation or the lawful activities of a trade union
2. Lawful trade union activities/Right of trade union members of trade
member of federation of union
a. participate in its lawful activities.
b. participate in the election of its officials and representatives.
c. stand for election and be eligible for appointment as an officer or
official and, if elected or appointed, to hold office; and
d. stand for election or seek for appointment as a trade union
representative and, if elected or appointed, to carry out the
functions of a trade union representative in accordance with the
provisions of this Act or a collective agreement.

EMPLOYERS, EMPLOYERS ORGANISTION, FEDERATION OF EMPLOYERS ORGANISATION

LABOR RELATIONS ACT CONSTITUTION

1. Rights of Employees Every employer has
a. Participate in the right—
i. participate in forming an employers’ organization or a (a) to form and join
federation of employer’s organizations; and an employers’
ii. subject to its constitution, join an employer’s organization organization; and
or a federation of employers’ organizations. (b) to participate in
b. Protection of employer’s rights the activities and
i. not discriminate against for against an employer for programmes of an
exercising a right conferred in this act employers
ii. require an employer or members of an employers’ organization
organization to be or become a member of a trade union or
to give up membership of a trade union
iii. Prevent an employer to participate in all trade union lawful
activities
iv. Dismiss an employer based on
1. Past, present, and anticipated trade union
membership
2. Participating in the formation or the lawful activities
 of a trade union
2. Every member of the employer organization has the right to/ every
employer whether part or not of a employers’ organization or federation
of employers’ organization has the right subject to the constitution to (4)
a. participate in its lawful activities.
b. participate in the election of its officials and representatives.
c. stand for election and be eligible for appointment as an officer or
official and, if elected or appointed, to hold office; and
d. stand for election or seek appointment as an office bearer and if
elected or appointed to hold office

TRADE UNIONS

LABOR RELATIONS ACT CONSTITUTION

Every trade union, employers’ organization or federation has the right to— to determine its
1. determine its own constitution and rules; and own
2. hold elections to elect its officers. administration,
3. plan and organize its administration and lawful activities. programmes and
4. participate in forming a federation of trade unions or a federation of activities;
employer’s organizations. (b) to organize;
5. join a federation of trade unions or a federation of employer’s and
organizations, subject to its constitution, and to participate in its lawful (c) to form and
activities; and join a federation.
6. affiliate with, and to participate in the affairs of any international workers
organization or international employers’ organization or the international
labor organization, and to contribute or receive financial assistance from
those organizations.

ESTABLISHMENT OF TRADE UNIONS OR EMPLOYERS’ ORGANISATION

A. Federation of employers, trade unions, employers organisation and trade union
a. the federation has applied for registration in accordance with this Act;
b. the federation has adopted a constitution that complies with the requirements of this
Act;
c. the federation has an office and postal address in Kenya;
d. the constitution of the federation specifies that its members are employers or registered
employers’ organization’s.
e. the federation was established at a meeting attended by the representatives of at
i. Federation of Trade unions-least three registered trade unions with the
ii. Trade unions- fifty members
iii. Employers organization – 4 members
iv. Federation of employers- 3 members
f. the name of the federation is not the same as one of an existing trade union or
federation or sufficiently similar so as to mislead or cause confusion; and
g. the federation is independent from the control, either, directly or indirectly, of any
employers’ organisation or federation of employers
RECOGNITION OF TRADE UNIONS AND COLLECTIVE AGREEMENTS
1. shall recognize trade union for purposes of collective bargaining if that trade union
represents the simple majority of unionisable employees.
2. An employer, group of employers and employers’ organization’s a trade union shall conclude
a written recognition agreement recording the terms upon which the employer or
employers’ organization recognizes a trade union
3. The Minister may, after consultation with the Board, publish a model recognition agreement.
4. An employer, group of employers or employers’ association may apply to the Board to
terminate or revoke a recognition agreement.
RECOGNITION AGREEMENT
1. Provide for trade union members in a workplace to elect from among themselves trade
union representatives in accordance with the constitution of the trade union.
COLLECTIVE AGREEMENT
1. Registered within 14 days of its conclusion
2. Employer and employers’ organization submit agreement, fails then the trade union can submit
it
3. Registered as submitted or with amendments or modifications
4. Not register Should not conflict with the act or any other law
5. Not register Does not comply with the directives or guideline concerning wages, salary levels or
other conditions of employment
6. Both parties must make oral presentations to the court for and against the collective agreement
DISPUTE RESOLTION
REPORTING
1. Prescribed form
2. Report dismissal or termination cases within ninety days
3. Redundancy cases
ALTERNATIVE DIPUTE RESOLUTIONS
ARBITRATION
1. An award is arbitration is final and binding
2. An award is subject to appeal on points of law to any court
3. May be enforced by the industrial court
4. Award may be set aside by the Industrial court on any ground in the law
CONCILIATION
Appointed 21 days after trade dispute has been reported to the Minister, who determines whether to
appoint a conciliator or not. Does the CBA provide for conciliation procedures, prohibits negotiation,
information provided,
POWERS OF CONCILIATOR
1. Resolve the dispute within 30 days
2. Mediate between parties
3. Conduct a fact-finding exercise
4. Make recommendations or proposal to the parties for settling the dispute
 5. Has the power to summon any person to attend a conciliation process, witness or evidence, and
interrogate
CONICLIATION DIPSUTES
RECOGNITION AGREEMENT : If there is a dispute as to the right of a trade union to be recognized for
the purposes of collective bargaining in accordance with this section or the cancellation of recognition
agreement, the trade union may refer the dispute for conciliation in accordance with the provisions of
Part VIII.
STRIKES AND LOCKOUTS : The trade dispute is unresolved after conciliation under this Act; or as
specified in a registered collective agreement that provide for the private conciliation of disputes; and
COLLECTIVE AGREEMENTS- If there is a dispute about what information is required to be disclosed in
accordance with the provisions of this section, any party to the dispute may, in writing, refer the
dispute to the Minister for conciliation
UNREOLVED CONCILITAIONS
1. Certificate of dispute not resolved
2. Thirty-day period from day of appointment
EMPLOYEE LABOR RELATIONS COURT/INDUSTRIAL COURT
1. AFTER CONCILIATION: Unresolved conflicts after conciliation under the labor relations act
2. APPLICATION REVIEW OF ARBITRATION AWARD- within 30 days of the award
3. RECOGNITION AGREEMENT : If the dispute referred to in subsection is not settled during
conciliation, the trade union may refer the matter to the Industrial Court under a certificate of
urgency. When determining a dispute under this section, the Industrial Court shall take into
account the sector in which the employer operates, and the model recognition agreement
published by the Minister.
4. ESSENTIAL SERVICES- Any trade dispute in a service that is listed as or is declared to be an
essential service may be adjudicated upon by the Industrial Court.
5. REDUNDANCY- a redundancy where—the trade union has already referred the dispute for
conciliation under section 62(4); or the employer has retrenched employees without giving
notice.
6. CERTIFICATE OF URGENCY- Where a party is aggrieved by a Minister’s decision to not appoint a
conciliator that party may refer the matter to the Industrial Court under a certificate of urgency.
a dispute on disclosure of information remains unresolved, after it has been referred to the
Minister under subsection (5), any party to the dispute may refer the dispute to the Industrial
Court under a certificate of urgency.
7. BREACH OF CONFIDENTIALITY- prohibition order

STRIKES AND LOCKOUTS

Sympathetic Strikes- an employee engages in a sympathetic strike if the employee participates in a
strike in support of a trade dispute in respect of which the employee’s employer— is not a party to the
dispute; or is not represented by an employer’s organization that is a party to that dispute; or an
employer engages in a sympathetic lock-out if the employer lockout an employee in support of a trade
dispute— to which the employer is not a party; or in respect of which the employer is not represented
by an employer’s organization that is a party to dispute.
Protected strike means a strike that complies with the provisions of this Part and “protected lock-out”
means a lock-out that complies with the provisions of this Part.
“lock-out” means the closing of a place of employment, the suspension of work, or the refusal by an
employer to continue to employ any number of employees— (a) for the purpose of compelling any
employees of the employer to accept any demand in respect of a trade dispute; and (b) not for the
purpose of finally terminating employment.
“essential services” means a service the interruption of which would probably endanger the life of a
person or health of the population or any part of the population.

PROTECTED: Person may participate in a strike or lock-out if—

1. the trade dispute that forms the subject of the strike or lock-out concerns terms and conditions
of employment or the recognition of a trade union.
2. the trade dispute is unresolved after conciliation under this Act; or as specified in a registered
collective agreement that provide for the private conciliation of disputes; and
3. seven days written notice of the strike or lock-out has been given the other parties and to the
Minister by the authorized representative of— the trade union, in the case of a strike; the
employer, group of employers of employers’ organization, in the case of a lock-out.
4. person does not commit a breach of contract or a tort by taking part in—a protected strike or a
protected lock-out; or any lawful conduct in contemplation or furtherance of a protected strike
or a protected lock-out.
5. An employer may not dismiss or take disciplinary action against an employee for participating
in a protected strike or for any conduct in contemplation or furtherance of a protected strike.
6. An employer is not obliged to remunerate an employee for services that the employee does not
render during a protected strike or lock-out.
PROHIBITED: No person shall take part in a strike or lock-out or in any conduct in contemplation of a
strike or lock-out if—
1. any law, court award or a collective agreement or recognition agreement binding on that
person prohibits a strike or lock-out in respect of the issue in dispute.
2. the subject matter of the strike or lock-out is regulated by a collective agreement or recognition
agreement binding on the parties to the dispute.
3. the parties have agreed to refer the trade dispute to the Industrial Court or to arbitration.
4. in the case of a dispute concerning the recognition of a trade union, the trade union has
referred the matter to the Industrial Court.
5. the trade dispute was not referred for conciliation in terms of—
a. (i) this Act; or
b. (ii) a collective agreement providing for conciliation.
c. the employer and employees are engaged in an essential service.
d. the strike or lock-out is not in furtherance of a trade dispute; or
e. the strike or lock-out constitutes a sympathetic strike or lock-out.
6. Sympathetic strikes
7. An employee who takes part in, calls, instigates, or incites others to take part in a strike that is
not in compliance with this Act is deemed to have breached the employee’s contract and— is
 liable to disciplinary action; and is not entitled to any payment or any other benefit under the
Employment Act during the period the employee participated in the strike
8. There shall be no strike or lock-out in an essential service for services listed as essential services
or declare by the minister or collective agreement an essential service

FAIR AND NATURAL JUSTICE

Every person has the right to administrative action, which is expeditious, efficient, lawful, reasonable,
and procedurally fair.
1. Every person has the right to be given written reasons for any administrative action that is
taken against him.
2. prior and adequate notice of the nature and reasons for the proposed administrative action
3. an opportunity to be heard and to make representations in that regard.
4. notice of a right to a review or internal appeal against an administrative decision, where
applicable.
5. information, materials, and evidence to be relied upon in making the decision or taking the
administrative action.
6. attend proceedings, in person or in the company of an expert of his choice.
a. be heard.
b. cross-examine persons who give adverse evidence against him; and
c. request for an adjournment of the proceedings, where necessary to ensure a fair hearing.

PROTECTION OF DATA
1. An employer is not required to disclose information that—
a. is legally privileged.
b. the employer cannot disclose without contravening a prohibition imposed on the
employer by any law or an order of any court.
c. if disclosed, may cause substantial harm to the employer or employee.
d. is private personal information relating to an employee unless an employee consents to
the disclosure of that information.
2. A data controller or data processor shall collect, store or use personal data for a purpose which
is lawful, specific and explicitly defined.
3. A data controller or data processor shall, before collecting personal data, in so far as
practicable, inform the data subject of the rights of data subject, the fact that personal data is
being collected; the purpose for which the personal data is being collected; the third parties
whose personal data has been or will be transferred to, including details of safeguards adopted.
4. A data controller or data processor shall not process personal data, unless— the data subject
consents to the processing for one or more specified purposes; or
a. the processing is necessary
b. for the performance of a contract to which the data subject is party or in order to take
steps at the request of the data subject before entering into a contract.
c. for compliance with any legal obligation to which the controller is subject.
d. in order to protect the vital interests of the data subject or another natural person.
e. for the performance of a task carried out in the public interest or in the exercise of official
authority vested in the controller.
f. the performance of any task carried out by a public authority.
g. for the exercise, by any person in the public interest, of any other functions of a public
nature.
 h. for the purpose of historical, statistical, journalistic, literature and art or scientific
research.

EMPLOYEE SEPARATION
Employee Separations- Employee separation is the process of efficiently and fairly terminating
employment relationship between an employee and the employer. These refers to the process
through which the employment relationship is brought to an end between the employer and the
employee, involuntarily by the employer either through dismissal, summary dismissal, retrenchment,
rightsizing, or redundancy.
LAWS
labor regime and practice, Industrial relation charter, International labor standards, Constitutions,
National Labor Policy-standards, Organization culture and past practices, labor management practices,
Employment Act 2007, Court precedents, Rules, and practices (formal and informal)-staff orders, staff
rules or manuals, CBA, contract of employment, codes of regulations, recognition agreement
TERMINATION PROCESSES
1. Notice Periods
a. Where the contract is to pay wages daily a contract terminable by either party at the
close of any day without notice.
b. where the contract is to pay wages periodically at intervals of less than one month, a
contract terminable by either party at the end of the period next following the
giving of notice in writing. Or
c. where the contract is to pay wages or salary periodically at intervals of or exceeding
one month, a contract terminable by either party at the end of the period of twenty-
eight days next following the giving of notice in writing.
d. The notice of termination must be written in a language that can be understood, if
not it can be interpreted
2. Hearing before termination- Before terminating an employer should hear and consider any
representations which the employee on the grounds of misconduct or performance
3. Proof of reason for termination- in any claim arising out of termination of a contract, 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
4. Issuing a certificate of service
5. Complaints of Wrongful dismissal to the labor office- Where an employee has been
summarily dismissed or his employer has unfairly terminated his employment without
justification, the employee may, within three months of the date of dismissal, present a
complaint to a labor officer.
6. Employee Burden of Proof for unfair and wrongful dismissal and Employer grounds for
termination or wrongful dismissal
TYPES OF TERMINATION
1. Voluntary Termination
a. voluntary resignation - Reasons for resignation- underappreciated, poor compensation,
insufficient time off, change in management, outdated machinery and equipment,
unrealistic goals, lack of management support, need for challenge, lack of a joyful
environment and career growth needs among many others,
 b. voluntary exits- Voluntary Early Retirement- prompted early by the organization
through a Voluntary Separation Scheme,
2. Involuntary Termination
a. Redundancy
b. Insolvency
c. Dismissal
i. Summary dismissal for breach of contract- unsatisfactory performance and poor
appraisal
ii. Summary dismissal for gross misconduct
iii. Constructive Dismissal- Constructive dismissal is considered a termination of
employment brought about by the employer by making the employee's working
conditions intolerable that the employee feels compelled to leave.
d. Employs Capacity- Medical separation, physical or metal capacity
e. Death
f. Mandatory Age Retirement
g. Retrenchment/Rightsizing
h. Frustration- prevention of carrying out the expected action by circumstances outside of
their control, Acts of God, The passing of a law, which makes performance of the
contract illegal
3. Performance- end of the performance as per the agreement. Task carried out, causal-days work,
UNFAIR TERMINATIONS
1. The reason is due to an employee being involved in trade union activities.
2. The case is of gross misconduct by the employee
3. Due process not followed, commission of basic error or violation of the principle of natural
justice
4. Proof of reason for termination- no valid and fair reasons provided related to the
employees conduct, capacity or compatibility; or based on the operational requirements of
the employer; and the findings are baseless and cannot be sustained in court
5. no legal basis,
6. pregnancy,
7. taking leave,
8. membership to a trade union,
9. participation of trade union activities outside working hours,
10. refusal or join or withdrawal from a trade union,
11. discrimination- an employee's race, color, tribe, sex, religion, political opinion or affiliation,
national extraction, nationality, social origin, marital status, HIV status or disability
12. legal proceedings against the employer,
13. lawful strike
14. lack of good faith,
15. victimization or unfair labor practices,
16. harshness of the employer
CONSIDERATIONS BY THE LABOR COURT ON TERMINATION CASES
1. the procedure adopted by the employer in reaching the decision to dismiss the employee, the
communication of that decision to the employee and the handling of any appeal against the
decision.
2. the conduct and capability of the employee up to the date of termination.
 3. the extent to which the employer has complied with any statutory requirements connected
with the termination, including the issuing of a certificate under section 51 and the procedural
requirements set out in section 41;
4. the previous practice of the employer in dealing with the type of circumstances which led to the
termination; and
5. the existence of any previous warning letters issued to the employee.
REMEDIES FOR WRONGFUL DISMISSAL
1. The wages which the employee would have earned had the employee been given the period of
notice to which he was entitled under this Act or his contract of service
2. reinstate the employee and treat the employee in all respects as if the employee’s employment
had not been terminated; or
3. re-engage the employee in work comparable to that in which the employee was employed prior
to his dismissal, or other reasonably suitable work, at the same wage
RIGHT TO BENEFITS PRIOR TO TERMINATION
An employer must make good to the employee all the benefits relating to the accrued rights prior to
termination of employment
1. Accrued leave earned but not taken
2. Salaries and wages for days worked and not yet paid.
3. allowances and benefits due to him up to the date of his dismissal
4. Medical expenses paid by employee on behalf of the employer but not yet refunded by the
employer
5. Any underpayment or wrongful deduction as at the time of termination of contract.
DEDUCTIONS OF WAGES
1. any amount due from the employee as a contribution to any provident fund
2. a reasonable amount for any damage done to, or loss of, any property lawfully in the possession
or custody of the employer occasioned by the willful default of the employee
3. an amount equal to the amount of any shortage of money arising through the negligence or
dishonesty of the employee whose contract of service provides specifically or his being
entrusted with the receipt, custody and payment of money
4. any amount paid to the employee in error as wages in excess of the amount of wages due to
him
5. any amount the deduction of which is authorised by any written law for the time being in force,
collective agreement, wage determination, court order or arbitration award;
6. part repayment of a loan of money made to him by the employer, not exceeding fifty per cent of
the wages payable to that employee after the deduction of all such other amounts as may be
due from him under this section; an
RETRNCHMENT
1. announce to employees, reasons for retrenchment,
2. take advantage of the voluntary retirement scheme,
3. the employer has the sole right in how managed.
4. Personnel records- letters of appointment, schedule of responsibilities, warning letters,
appraisal or progress reports, wages and salary progressions
REDUNDANCY
 7. Reasons for Redundancy-
a. new technology,
b. relocation of office,
c. economic,
d. bankruptcy,
e. more employees due to trade disputes,
8. Conditions for redundancy-
a. One months’ notice- Employee is a member of a trade union must notify the and the
labor office in charge of the area and the reason, the extent and the date of
termination for the intended redundancy
b. One month’s written notice- employees not members of a trade union
c. Selection Considerations - due regard to seniority in time and the skill, ability, and the
reliability of each employee on a particular class of employees affected by
redundancy.
d. Terminal benefits to non-union employees- No employee shall be placed at a
disadvantage for being or not being a member of trade union.
e. Leave earned paid- Any leave due to an employee
f. One months’ notice or one month’s wages in lieu of notice-who is declared
redundant shall be entitled to one month notice or one month’s wages in lieu of
notice.
g. Severance Pay- An employee declared redundant shall be entitled to one month
notice or one month ‘s wages in lieu of notice. An employee declared redundant shall
be entitled to severance pay at the rate of not less than 15 days’ pay for each
completed year of service

An employee whose services have been terminated is entitled to service pay unless by
provision of sec. 35 the employee is: 1. A member of a registered provident fund under
Retirement Benefits Authority (RBA) Act. 2. A member of gratuity or service pay scheme
established under Collective Bargaining Agreement (CBA). 3. A member in any other scheme
established and operated by the employer with better terms than those provided by the
Employment Act (EA). 4. A member of National Social Security Fund (NSSF).

INSOLVENCY
DISMISSAL
The employer has a right to terminate or end the employment relationship by terminating the contract
either through dismissal, or summary dismissal. In many cases the dismissal by notice arises due to a
number or reasons and may include redundancy, rightsizing, retrenchments among others which the
employer may be faced with in consideration to the changing nature of business
A. SUMMARY DISMISSAL
1. Breach of contract- fundamentally breached his obligations, either the contract fails to carry out
his part of the contract either wholly or partly. It is the opposite of performance or specific
performance intentional breaking, or failure to adhere to the expectations.
a. Types of terms
 i. Conditions: - which are terms especially important or are fundamental terms of a
contract and goes to the roots of the contract such that breaking them hurts the
core or nature of the contract. 1. Hours of work 2. Leave 3. Mode of termination 4.
Rate of pay 5. Safety and health provision 6. Type of work
ii. Warranties: - on the other hand are terms of the contract that are not especially
important or are incidental to the contract and breaking them may not
fundamentally affect the contract.
Decisions by the court
1. Behavior of the party.
2. Declared intention of the parties.
3. The contract.
4. The value of the term to the overall contract.
B. GROSS MISCONDUCT
They are referred to as acts of gross misconduct or gross negligence and includes the following:
1. criminal offence against or to the substantial detriment of his employer or his employer’s
property.
2. intoxicated during working hours unwilling or incapable to perform his work.
3. Knowingly fails, or refuses, to obey a lawful and proper command scope of his duty to obey.
4. arrested for a cognizable offence punishable by imprisonment and is not within fourteen days
either released on bail or on bond or otherwise lawfully set at liberty
5. Use of abusive or insulting language, or behaves in a manner insulting,
6. Willful neglects to perform any work
7. Without leave or other lawful cause, an employee absents himself from work.

IMPACT OF SEPARATION
For the individual: stress, depression, anxiety, divorce, poor health, children’s wellbeing.
For the firm:
1. loss of knowledge skills, and abilities acquired over time,
2. cost of replacement,
3. recruitment costs,
4. training, and development costs.
5. Productivity,
6. profitability,
7. turnover,
8. customer loyalty,
9. distress
Mitigation :
6. Culture of succession,
7. sustainability