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Hello. I need an advice. I got employed as an account officer in a company that deals with land survey in the month of may 2023. I was first employed on probation basis which was to last for three months up untill 15th august 2023. After I was to bevemplyed on yearly contract. After my probation the company never communicated about my contract employment and ao I continued working as a salaried employee. In the month of October, the company gave a memo of notice to close the company by the end of November. After that memo the MD became hostile and the enviroment become unconducive to work in. I stopped going to work by the end of October but then they refused to pay part of my October salary. Do I have a right to claim my salary, can I sue the company, am I under any legal obligation given that I never signed any contract and given that the probation period has already expired
Advice on Employment Rights and Obligations
Introduction
In Kenya, employment relationships are governed by the Employment Act, 2007, which outlines the rights and obligations of both employers and employees. Your situation involves several key issues, including the transition from probationary employment to a permanent contract, the non-payment of salary, and the legal implications of working without a formal contract. This response will address each of these issues in detail, providing you with a comprehensive understanding of your rights and potential legal actions.
Table of Contents
Probationary Employment and Transition to Permanent Employment
Non-Payment of Salary
Legal Implications of Working Without a Formal Contract
Potential Legal Actions
Relevant Case Laws
Conclusion
1. Probationary Employment and Transition to Permanent Employment
Under the Employment Act, 2007, probationary periods are specifically addressed. Section 42(2) of the Act states that a probationary period shall not exceed six months but may be extended for a further period of not more than six months with the agreement of the employee. In your case, the probationary period was set to last for three months, ending on 15th August 2023.
Transition to Permanent Employment
If an employee continues to work beyond the probationary period without any formal communication from the employer, the law generally presumes that the employee has transitioned to a permanent employment status. This is supported by Section 45(3) of the Employment Act, which provides that an employee who has worked continuously for an employer for a period of not less than thirteen months is entitled to complain of unfair termination.
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2. Non-Payment of Salary
The non-payment of salary is a serious issue and is addressed under the Employment Act. Section 18(2) of the Act mandates that wages must be paid at the end of each month. Failure to pay wages is a breach of contract and entitles the employee to seek legal redress.
Claiming Unpaid Salary
You have the right to claim your unpaid salary for the month of October. The fact that you continued working after the probationary period without any formal communication from the employer strengthens your position. The employer's failure to pay your salary constitutes a breach of the implied terms of your employment contract.
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3. Legal Implications of Working Without a Formal Contract
In Kenya, an employment contract does not necessarily have to be in writing to be enforceable. The Employment Act recognizes both written and oral contracts. However, it is always advisable to have a written contract to avoid disputes.
Implied Contract
Given that you continued working after the probationary period, an implied contract exists between you and the employer. This implied contract is governed by the terms and conditions that were initially agreed upon, including the payment of salary.
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4. Potential Legal Actions
You have several legal options to address the issues you are facing:
Filing a Complaint with the Labour Office
You can file a complaint with the Labour Office, which will investigate the matter and may mediate between you and the employer to resolve the dispute.
Filing a Lawsuit
You can file a lawsuit in the Employment and Labour Relations Court for the non-payment of your salary and any other claims arising from the breach of your employment contract. The court has the jurisdiction to hear and determine disputes relating to employment and labour relations.
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5. Relevant Case Laws
Case Law 1: Kenya Union of Commercial Food and Allied Workers v. Meru North Farmers Sacco Limited [2014] eKLR
Relevance: This case involved the non-payment of wages and the court held that the employer was liable to pay the outstanding wages to the employee.
Outcome: The court ordered the employer to pay the unpaid wages and compensation for the breach of contract.
Source: Kenya Law Reports ↗
Case Law 2: Mary Chemweno Kiptui v. Kenya Pipeline Company Limited [2014] eKLR
Relevance: This case addressed the issue of implied contracts and the rights of employees who continue working after the expiration of their probationary period.
Outcome: The court held that the employee was entitled to the benefits of a permanent contract, including the right to fair termination procedures.
Source: Kenya Law Reports ↗
6. Conclusion
Based on the information provided, you have a strong case for claiming your unpaid salary and potentially seeking compensation for any other breaches of your employment contract. The fact that you continued working after the probationary period without any formal communication from the employer implies that you transitioned to a permanent employment status. You have the right to file a complaint with the Labour Office or pursue legal action in the Employment and Labour Relations Court.
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If you need further assistance or wish to proceed with legal action, it is advisable to consult with a qualified employment lawyer who can provide personalized guidance based on the specifics of your case.
Answered by mwakili.com