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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.
Introduction
In Kenya, the issue of an employer withholding an employee's original identification card and academic certificates upon resignation is a serious matter. This practice can have significant legal implications and can be addressed through various legal avenues. The Kenyan legal framework provides several protections for employees in such scenarios, primarily through the Constitution of Kenya, the Employment Act, and other relevant statutes.
Table of Contents
Legal Framework
1.1 Constitution of Kenya
1.2 Employment Act
1.3 Other Relevant Statutes
Employee Rights and Employer Obligations
2.1 Right to Property
2.2 Right to Fair Labour Practices
2.3 Employer's Duty to Return Documents
Legal Remedies and Actions
3.1 Demand Letter
3.2 Reporting to Labour Office
3.3 Filing a Complaint with the Employment and Labour Relations Court
3.4 Alternative Dispute Resolution
Conclusion
1. Legal Framework
1.1 Constitution of Kenya
Article 40: Right to Property
The Constitution of Kenya, under Article 40, guarantees the right to property. This includes the right to own and have control over one's personal documents such as identification cards and academic certificates.
Article 41: Labour Relations
Article 41 of the Constitution provides for fair labour practices, which include the right to fair remuneration and reasonable working conditions. Withholding an employee's personal documents can be seen as a violation of this right.
1.2 Employment Act
Section 5: Prohibition Against Forced Labour
The Employment Act, 2007, under Section 5, prohibits forced labour. By withholding an employee's documents, an employer may be indirectly forcing the employee to continue working against their will.
Section 10: Employment Contract
Section 10 of the Employment Act requires that the terms of employment be clearly stated in the contract. This includes the return of any personal documents upon termination of employment.
Section 18: Payment of Wages
Section 18 mandates that all wages and dues be paid promptly upon termination of employment. This can be interpreted to include the return of personal documents.
1.3 Other Relevant Statutes
Data Protection Act, 2019
The Data Protection Act provides for the protection of personal data. Withholding personal documents without consent can be seen as a violation of this Act.
2. Employee Rights and Employer Obligations
2.1 Right to Property
Employees have a constitutional right to their personal property, including identification cards and academic certificates. Employers have no legal right to retain these documents beyond the period necessary for verification.
2.2 Right to Fair Labour Practices
Withholding personal documents can be considered an unfair labour practice. Employees have the right to fair treatment, which includes the return of their personal documents upon resignation.
2.3 Employer's Duty to Return Documents
Employers are obligated to return any personal documents belonging to the employee upon termination of employment. Failure to do so can result in legal consequences.
3. Legal Remedies and Actions
3.1 Demand Letter
Step 1: Drafting a Demand Letter
The first step an employee should take is to draft a demand letter to the employer. This letter should clearly state the employee's request for the return of their original identification card and academic certificates. It should also mention the legal basis for the request, citing relevant sections of the Constitution and the Employment Act.
Step 2: Sending the Demand Letter
The demand letter should be sent via registered mail or delivered in person with proof of receipt. This ensures there is a record of the request.
3.2 Reporting to Labour Office
Step 1: Filing a Complaint
If the employer does not respond to the demand letter, the employee can file a complaint with the nearest Labour Office. The Labour Office is mandated to handle disputes between employers and employees.
Step 2: Mediation by Labour Officer
The Labour Officer will mediate between the employee and the employer to resolve the issue. If the employer is found to be in violation of the law, the Labour Officer can take further action.
3.3 Filing a Complaint with the Employment and Labour Relations Court
Step 1: Preparing the Complaint
If mediation fails, the employee can file a complaint with the Employment and Labour Relations Court. The complaint should include all relevant details, including copies of the demand letter and any responses from the employer.
Step 2: Court Proceedings
The court will hear the case and make a determination. If the court finds in favor of the employee, it can order the employer to return the documents and may also award damages for any inconvenience caused.
3.4 Alternative Dispute Resolution
Step 1: Exploring ADR Options
Alternative Dispute Resolution (ADR) methods such as arbitration and mediation can also be considered. These methods can be faster and less formal than court proceedings.
Step 2: Engaging an Arbitrator or Mediator
The employee and employer can agree to engage an arbitrator or mediator to resolve the dispute. The decision of the arbitrator or mediator can be binding, depending on the terms agreed upon by both parties.
Conclusion
In conclusion, an employee in Kenya has several legal avenues to pursue if an employer refuses to return their original identification card and academic certificates upon resignation. The Constitution of Kenya, the Employment Act, and other relevant statutes provide robust protections for employees in such scenarios. By following the appropriate legal steps, including sending a demand letter, reporting to the Labour Office, filing a complaint with the Employment and Labour Relations Court, or exploring Alternative Dispute Resolution methods, an employee can seek redress and ensure the return of their personal documents.
Answered by mwakili.com