Ask a lawyer:
What can an employee do in a scenario where the employer has refused to give back original identification card and original academic certificates upon the employee's resignation? The company hires only when the originals are presented and surrendered.

Table of Contents

1. Introduction

2. Legal Framework 2.1. Employment Act, 2007 2.2. The Constitution of Kenya, 2010

3. Remedies Available to the Employee 3.1. Negotiation and Demand 3.2. Filing a Complaint with the Labour Relations Court 3.3. Seeking Police Assistance 3.4. Seeking Legal Counsel

4. Conclusion

Introduction

This response addresses the legal implications of an employer's refusal to return original identification cards and academic certificates upon an employee's resignation, particularly in a scenario where the company requires the originals for employment. This practice raises concerns about potential exploitation and infringement on the employee's rights.

Legal Framework

2.1. Employment Act, 2007

The Employment Act, 2007, governs employment relationships in Kenya. It outlines the rights and responsibilities of both employers and employees. While the Act does not explicitly address the return of original documents upon resignation, it emphasizes the principle of fair treatment and good faith in employment relationships.

2.2. The Constitution of Kenya, 2010

The Constitution of Kenya, 2010, guarantees fundamental rights and freedoms, including the right to dignity, privacy, and freedom from exploitation. The employer's actions in withholding original documents could potentially infringe upon these rights.

Remedies Available to the Employee

3.1. Negotiation and Demand

The employee should first attempt to resolve the issue through negotiation and demand. They should:

• Demand the return of their original documents in writing. This written demand should be clear and concise, stating the specific documents being requested and the date by which they expect their return.

• Maintain a record of all communication with the employer. This includes emails, letters, and any other form of correspondence.

• Be polite and professional in their communication. While asserting their rights, the employee should avoid being confrontational or aggressive.

3.2. Filing a Complaint with the Labour Relations Court

If negotiation fails, the employee can file a complaint with the Labour Relations Court. The court has jurisdiction to hear and determine disputes arising from employment relationships. The employee can argue that the employer's actions constitute unfair labour practices and a violation of their rights.

• The employee should provide evidence of the employer's refusal to return the documents. This could include copies of their resignation letter, the written demand for the documents, and any communication with the employer.

• The employee can seek an order compelling the employer to return the original documents. The court may also order the employer to pay compensation for any damages suffered by the employee as a result of the employer's actions.

3.3. Seeking Police Assistance

If the employer continues to refuse to return the documents, the employee can seek police assistance. The police can investigate the matter and potentially take action against the employer.

• The employee should file a report with the police, providing details of the situation. They should also provide any evidence they have, such as copies of their resignation letter and the written demand for the documents.

• The police may investigate the matter and take appropriate action. This could include issuing a warning to the employer or even arresting the employer if they are found to be in violation of the law.

3.4. Seeking Legal Counsel

The employee should seek legal counsel from a qualified lawyer to understand their rights and options. A lawyer can provide advice on the best course of action and represent the employee in any legal proceedings.

• A lawyer can help the employee draft a demand letter to the employer.

• A lawyer can represent the employee in court if the matter goes to litigation.

• A lawyer can advise the employee on their legal rights and options.

Conclusion

An employer's refusal to return original identification cards and academic certificates upon an employee's resignation is a serious matter that can have significant consequences for the employee. The employee has several legal options available to them, including negotiation, filing a complaint with the Labour Relations Court, seeking police assistance, and seeking legal counsel. It is important for the employee to understand their rights and options and to take appropriate action to protect themselves.