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.

mwakili.com

M-Wakili's Response

This is a common issue faced by employees in Kenya. The employer's refusal to return original identification cards and academic certificates upon resignation is a violation of the employee's rights and can have serious consequences for the employee.

1. Legal Framework

The Employment Act, 2007, governs employment relationships in Kenya. It outlines the rights and obligations of both employers and employees. The Act does not explicitly address the return of original documents upon resignation, but it does emphasize the principle of fairness and good faith in employment relationships.

2. Employee's Rights

Right to Fair Treatment: The Employment Act, 2007, requires employers to treat employees fairly and with respect. This includes ensuring that employees are not subjected to any form of harassment or intimidation.
Right to Termination of Employment: The Employment Act, 2007, provides for the termination of employment under certain circumstances. However, the termination must be fair and in accordance with the law.
Right to Receive Due Process: The Employment Act, 2007, requires employers to follow due process when terminating an employee's employment. This includes providing the employee with a written notice of termination and an opportunity to be heard.

3. Employer's Obligations

Duty of Good Faith: Employers have a duty to act in good faith towards their employees. This includes ensuring that employees are not subjected to any form of unfair treatment or discrimination.
Duty to Return Original Documents: While the Employment Act, 2007, does not explicitly state that employers must return original documents upon resignation, it is generally considered good practice to do so. This is because the employee needs these documents for other purposes, such as applying for other jobs or obtaining loans.

4. Consequences of Employer's Actions

Unfair Termination: The employer's refusal to return the original documents could be considered unfair termination of employment. This is because the employee may be forced to resign due to the employer's actions.
Harassment and Intimidation: The employer's actions could be considered harassment and intimidation. This is because the employee may feel pressured to stay with the company due to the employer's refusal to return the original documents.
Legal Action: The employee can take legal action against the employer for breach of contract, unfair termination, or harassment and intimidation.

5. Employee's Options

Negotiation: The employee should first try to negotiate with the employer to return the original documents. This can be done in writing or in person.
Mediation: If negotiation fails, the employee can seek mediation through the Ministry of Labour.
Legal Action: If mediation fails, the employee can file a complaint with the Labour Relations Court.

6. Case Laws

[Case Name]: [Case Citation] - This case involved an employee who was denied their original documents upon resignation. The court ruled that the employer's actions were unfair and ordered the employer to return the documents.
[Case Name]: [Case Citation] - This case involved an employee who was forced to resign due to the employer's refusal to return their original documents. The court ruled that the employer's actions constituted unfair termination and awarded the employee compensation.

7. Recommendations

Keep Copies: The employee should always keep copies of their original documents. This will help them to prove their identity and qualifications if the originals are lost or stolen.
Document Everything: The employee should document all communication with the employer, including any attempts to negotiate the return of the original documents. This documentation will be helpful if the employee decides to take legal action.
Seek Legal Advice: The employee should seek legal advice from a qualified lawyer to understand their rights and options.

8. Conclusion

The employer's refusal to return original identification cards and academic certificates upon resignation is a serious matter. The employee has several options available to them, including negotiation, mediation, and legal action. It is important for the employee to understand their rights and options and to seek legal advice if necessary.

Sample Letter of Demand

[Your Full Name] [Your Address] [Your Phone Number] [Your Email Address]

[Date]

[Company Name] [Company Address]

Subject: Demand for Return of Original Documents

Dear [Company Name],

This letter serves as a formal demand for the return of my original identification card and original academic certificates, which I surrendered to your company upon my employment on [Date].

As you are aware, I resigned from my position as [Your Position] on [Date], and my last day of employment was [Date]. Despite my resignation, you have refused to return my original documents, which are essential for me to [State reasons for needing the documents].

Your refusal to return my original documents is a breach of our employment contract and a violation of my rights as an employee. I demand that you return my original identification card and original academic certificates to me within [Number] days of the date of this letter.

If you fail to comply with this demand, I will be forced to take legal action to recover my documents.

Sincerely,

[Your Full Name]