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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.

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Introduction

In Kenya, the retention of an employee's original identification card and academic certificates by an employer upon resignation is a serious matter that touches on both employment and property rights. The law provides mechanisms to address such grievances, ensuring that employees are not unduly deprived of their personal documents. This response will outline the legal avenues available to an employee in such a scenario, including relevant case laws and statutory provisions.

Legal Framework 1.1 Employment Act, 2007 1.2 Constitution of Kenya, 2010
Steps an Employee Can Take 2.1 Internal Resolution 2.2 Reporting to Authorities 2.3 Legal Action
Relevant Case Laws
Conclusion
Sources

1. Legal Framework

1.1 Employment Act, 2007

The Employment Act, 2007 is the primary legislation governing employment relationships in Kenya. Section 10 of the Act mandates that employers provide employees with written particulars of employment, which include the terms and conditions of employment. Importantly, Section 17 of the Act stipulates that employers must pay all wages and any other remuneration due to an employee upon termination of employment.

1.2 Constitution of Kenya, 2010

The Constitution of Kenya, 2010, under Article 40, guarantees the right to property, which includes personal documents such as identification cards and academic certificates. Article 41 further provides for fair labor practices, ensuring that employees are treated justly and fairly in their employment relationships.

2. Steps an Employee Can Take

2.1 Internal Resolution

Request in Writing: The first step an employee should take is to formally request the return of their original documents in writing. This request should be addressed to the employer or the human resources department, clearly stating the documents required and the urgency of the matter.
Engage in Dialogue: If the written request does not yield results, the employee should seek a meeting with the employer to discuss the issue. It is advisable to document all communications and meetings for future reference.

2.2 Reporting to Authorities

Labour Office: If internal resolution fails, the employee can report the matter to the nearest Labour Office. The Labour Office has the mandate to mediate disputes between employers and employees and can compel the employer to return the documents.
National Employment Authority (NEA): The NEA can also be notified, especially if the employer is in violation of employment regulations. The NEA has the authority to enforce compliance with employment laws.

2.3 Legal Action

Filing a Complaint: The employee can file a complaint with the Employment and Labour Relations Court. The court has the jurisdiction to hear and determine disputes relating to employment, including the unlawful retention of personal documents.
Injunction: The employee can seek an injunction from the court to compel the employer to return the documents. An injunction is a court order that requires a party to do or refrain from doing specific acts.

3. Relevant Case Laws

Kenya Plantation and Agricultural Workers Union v Mununga Leaf Base (2013) eKLR: In this case, the court held that the retention of an employee's personal documents by the employer was unlawful and ordered the immediate return of the documents.
Mary Chemweno Kiptui v Kenya Pipeline Company Limited (2014) eKLR: The court emphasized the importance of fair labor practices and ruled that the employer's actions in retaining the employee's documents were a violation of the employee's rights.

These cases illustrate the court's stance on the unlawful retention of personal documents by employers and provide a legal precedent for employees facing similar issues.

Conclusion

In conclusion, an employee in Kenya whose employer has refused to return their original identification card and academic certificates upon resignation has several legal avenues to pursue. These include internal resolution, reporting to relevant authorities, and taking legal action. The Employment Act, 2007, and the Constitution of Kenya, 2010, provide a robust legal framework to protect employees' rights in such scenarios. Employees are encouraged to document all communications and seek legal redress if necessary to ensure their rights are upheld.

Sources

By following these steps and utilizing the legal framework, employees can effectively address the issue of employers unlawfully retaining their personal documents.