Section 9 of the Employment Act provides for the particulars to be contained in written employment contracts. It provides that a written contract of service shall state—
- Name, age, permanent address and sex of the employee
- Name of employer
- Date of commencement of employment
- Job description of employment
- Form and duration of the contract
- Place of work
- Hours of work
- Remuneration, rate and method of calculation and details of any benefits
- Interval at which remuneration is paid
Some of the key clauses employers need to take into consideration while drafting employment contracts include but are not limited to;
- Working hours.
The Regulation of Wages (General) Order, 2022 provides for up to 52hours per week. In addition, Section 27 of the Employment Act provides that an employee shall be entitled to at least one rest day in every period of seven days and further provides that an employee’s working hours shall be regulated in accordance with the Employment Act and any other written law.
2. Remuneration
In Kenya, the minimum wage payable to employees is governed by The Regulation of Wages Order. For example, the regulation provides that a security guard working during the day is entitled to a minimum wage of 15,000 Kenya Shillings whilst a nightshift security guard is entitled to a minimum wage of 16,000 Kenya Shillings.
In addition, Section 31 of the Employment Act provides that an employer shall at all times, at his own expense, provide reasonable housing accommodation for each of his employees either at or near to the place of employment, or in the alternative, shall pay to the employee such sufficient sum, as rent, in addition to the wages or salary of the employee, to enable the employee to obtain reasonable accommodation.
3. Termination
An employment contract should clearly provide for the procedure of termination of the contract. Section 35 of the Employment Act makes it mandatory for an employer to issue a termination notice as failure to give notice amounts to unfair termination. However, it’s important for employers to take note that the termination notice period will vary depending on the type of contact as provided under Section 35 (1). e.g., where the contract is to pay wages daily, the contract may be terminated by either party at the close of any day without notice;
Conclusion
Having a written employment contract is of paramount importance for an employer as it serves as a crucial legal safeguard and clear communication tool between the employer and the employee. The employment contract outlines the terms and conditions of employment, including job responsibilities, working hours, compensation, benefits, and termination clauses. By having these terms in writing, it helps avoid misunderstandings and potential disputes that could arise in the absence of a formal agreement.
Furthermore, Section 10(7) of the Employment Act highlights the legal significance of having a written contract as it provides that if in any legal proceedings an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer. The case of Jackson Muiruri Wathigo t/a Murtown Supermarket v Lilian Mutune [2021] eKLR, illustrates this point clearly as the court held that the employer’s failure to provide written particulars of the employee’s employment placed the burden of proof on the employer to establish his contentions and disprove the employee’s allegations.
It is evident that having a written employment contract is not only advisable but crucial for employers. Such contracts ensure compliance with labour laws, protect the employer’s interests, and provide a solid foundation for a transparent and harmonious working relationship. Employers should therefore always opt for written employment contracts rather than relying on oral agreements to avoid potential legal challenges and uncertainties.
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Disclaimer
This article is for informational purposes only and should not be construed as legal advice.
