Ask a lawyer:
I worked as a shamba boy in a home in Mombasa, Kenya. I was given notice of termination and was informed that I would be paid for three months of work. However, I have only received payment for one month and have yet to receive any compensation for my unused 28 leave days. I am seeking advice on how to take legal action against my former employer. I would greatly appreciate any guidance or information

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Introduction

In Kenya, employment matters are governed by various laws and regulations, primarily the Employment Act, 2007. This Act outlines the rights and obligations of both employers and employees, including issues related to termination, notice periods, and compensation for unused leave days. This response will provide a detailed guide on how to take legal action against your former employer for the unpaid dues and unused leave days.

Relevant Laws and Regulations
- Employment Act, 2007
- Labour Institutions Act, 2007
- Constitution of Kenya, 2010
Understanding Your Rights
- Notice Period and Termination
- Payment for Unused Leave Days
- Remedies for Unpaid Dues
Steps to Take Legal Action
- Documenting Your Claims
- Reporting to the Labour Office
- Filing a Complaint with the Employment and Labour Relations Court
Conclusion

1. Relevant Laws and Regulations

Employment Act, 2007

Section 35: Provides for the notice period required for termination of employment.
Section 36: Allows for payment in lieu of notice.
Section 28: Entitles employees to annual leave and compensation for unused leave days.
Section 49: Outlines remedies for wrongful dismissal and unfair termination.

Labour Institutions Act, 2007

Section 12: Establishes the role of the Labour Commissioner in resolving employment disputes.

Constitution of Kenya, 2010

Article 41: Guarantees fair labour practices.

2. Understanding Your Rights

Notice Period and Termination

Section 35 of the Employment Act, 2007: Requires that an employer provide notice before terminating an employee. The length of the notice period depends on the terms of the employment contract but should not be less than 28 days if the employee is paid monthly.
Section 36 of the Employment Act, 2007: If the employer does not provide the required notice, they must pay the employee in lieu of notice. This means you are entitled to payment equivalent to the notice period if you were not given proper notice.

Payment for Unused Leave Days

Section 28 of the Employment Act, 2007: Entitles employees to at least 21 working days of leave with full pay after every 12 consecutive months of service. If you have unused leave days, you are entitled to compensation for those days upon termination of employment.

Remedies for Unpaid Dues

Section 49 of the Employment Act, 2007: Provides remedies for wrongful dismissal and unfair termination, including payment of wages, compensation for lost income, and any other dues owed to the employee.

3. Steps to Take Legal Action

Documenting Your Claims

Employment Contract: Gather a copy of your employment contract, which should outline the terms of your employment, including notice periods and leave entitlements.
Termination Notice: Keep a copy of the termination notice provided by your employer.
Payslips and Payment Records: Collect all payslips and records of payments received, including the one month of payment you have already received.
Leave Records: Document the number of leave days you have taken and the unused leave days you are claiming.

Reporting to the Labour Office

Labour Institutions Act, 2007, Section 12: You can report your case to the Labour Office, where the Labour Commissioner or their representative will assist in resolving the dispute. The Labour Office can mediate between you and your employer to ensure you receive the dues owed to you.
Procedure: Visit the nearest Labour Office with all your documentation. File a formal complaint detailing your claims, including the unpaid two months' salary and compensation for the 28 unused leave days.

Filing a Complaint with the Employment and Labour Relations Court

Employment and Labour Relations Court: If the Labour Office mediation does not resolve the issue, you can escalate the matter to the Employment and Labour Relations Court.
Filing a Claim: Prepare a statement of claim outlining your grievances and the relief you are seeking. This should include:
- Details of your employment and termination.
- The amount of unpaid salary (two months).
- Compensation for the 28 unused leave days.
- Any other relevant claims, such as damages for wrongful termination if applicable.
Legal Representation: While you can represent yourself, it is advisable to seek legal representation to ensure your case is presented effectively.

Conclusion

In summary, you have several avenues to seek redress for the unpaid dues and unused leave days. Start by documenting all relevant information and reporting the matter to the Labour Office. If mediation fails, you can file a complaint with the Employment and Labour Relations Court. The relevant laws, including the Employment Act, 2007, and the Labour Institutions Act, 2007, provide a robust framework to protect your rights as an employee. By following the outlined steps, you can take legal action to ensure you receive the compensation you are entitled to.