THE PROVINCE OF THE LABOUR OFFICER

By Quincy Jesse Kiptoo LL.B. (Hons), CPM, Dip in Law

The Labour Officer is, no doubt, a creature of the law. The office was established as a reporting mechanism for employees against rogue employers. The office issues summons only to give recommendations. Is the Labour officer toothless? This paper shall locate the place and importance of the labour officer in the Kenyan legal landscape.

Prior to 2007, Kenyan Labour Laws were enshrined in the following pieces of legislation: the Employment Act, Cap 226; the Regulation of Wages and Conditions of Employment Act, Cap 229; the Trade Unions Act, Cap 233; the Trade Disputes Act, Cap 234; the Factories and Other Places of Work Act, Cap 514 and the Workmen’s Compensation Act, Cap 236.

These Acts were repealed and replaced with the Employment Act, the Labour Relations Act, Occupational Health and Safety Act, the Work Injury Benefits Act and the Labour Institutions Act.

Disputes between an Employer and Employee are primarily handled at the employment and labour relations Court. Some parties usually attempt alternative dispute resolution avenues which may be provided in their contracts of employment.

Parties who cannot afford legal representation and are not in a Union may opt for remedies from state organs that may not have a coercive power but serve as a forum for the ventilation of grievances, these may include the Chief and the Labour officer.

The focus of this Article shall be the office of the labour officer. It shall expressly analyze the statutory position, bearing, powers, duties and jurisdiction of the labour officer.

The Labour officer is cited 45 times in the Employment Act of 2007. The Employment Act is the substantive body of law that provides for the rights and duties of employers and employees.

A Labour officer is an authorised employment officer. Persons who hold the offices of Commissioner of Labour, Senior Deputy Commissioner of Labour, Deputy Commissioner of Labour, Assistant Commissioner of Labour, Chief Industrial Relations Officer, Deputy Chief Industrial Relations Officer, Senior Labour Officer and Industrial Relations Officer may be referred to as labour officers. Labour officers have the overall duty to promote equality of opportunity in employment in order to eliminate discrimination.

In the event of termination of a contract of service by dismissal, an employer has the duty to deliver a written report detailing the circumstances of termination to a labor officer of his local jurisdiction. This report should be furnished within 7 days of termination.

Every employer is mandated to provide each employee a statement of the employee’s rights. This statement serves to inform the employees of their rights at the work place. Whenever an employer breaches an obligation, a complaint may be filed with a labour officer.

Upon the death of an employee, the employer is mandated to notify the labour officer of the demise. The employer is further obligated to pay wages or any other remuneration due to the deceased employee to his legal representatives within 30 days of proof of death. Upon such payment, the employer is required to file a report with a labour officer.

On the occurrence of death of an employee or incapacitation by injury for a period exceeding three days, the employer is mandated to file a report of the incident to the labour officer. The Employment Act provides a general penalty of Kshs. 100,000 or imprisonment for a term not exceeding two years for the failure to comply with the mandatory reporting procedure to the labour officer.

A casual employee who is aggrieved by the treatment of his/her employer, may make a complaint with the labour officer.

The procedure of termination of employment on account of redundancy requires a report to be made to a labour officer.

It is universally agreed that no employer shall terminate an employee unfairly. Upon receipt of a report of unfair termination, a labour officer shall, in determining whether the termination was just and equitable, consider the procedure adopted by the employer, communication of the decision, the handling of any appeals, conduct and capability of employee and compliance with statutory requirements etc.

Upon summary dismissal of an employee without justification, they shall make a report within 3 months to the labour officer.

Power to listen to parties and make a recommendation:

A labour officer shall, after affording every opportunity to both the employee and the employer to state their case, recommend to the parties what in his opinion would be the best means of settling the dispute.

Upon consideration of a complaint and discovery of an unjustified termination, the labour officer may make any of the following recommendations:

• Payment of wages which the employee would have earned had the employee been given the period of notice to which he was entitled to;
• Payment of a proportion of the wage due for the period of time for which the employee has worked;

Upon consideration of a complaint and discovery of an unfair termination, the labour officer may recommend to the employer:

• To reinstate the employee; and
• To re -engage the employee in work comparable to that in which the employee was employed prior to his dismissal, or other reasonably suitable work, at the same wage.

Before the labour officer recommends an action, he/she must take into account the following:

• the wishes of the employee;
• the circumstances in which the termination took place, e.g. the extent, if any, to which the employee caused or contributed to the termination;
• the practicability of recommending reinstatement or re -engagement;
• the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances;
• the employee’s length of service with the employer;
• the reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for the termination;
• the opportunities available to the employee for securing comparable or suitable employment with another employer;
• the value of any severance payable by law;
• the right to press claims or any unpaid wages, expenses or other claims owing to the employee;
• any expenses reasonably incurred by the employee as a consequence of the termination;
• any conduct of the employee which to any extent caused or contributed to the termination;
• any failure by the employee to reasonably mitigate the losses attributable to the unjustified termination; and
• any compensation, including ex-gratia payment, in respect of termination of employment paid by the employer and received by the employee.

The right of every employee to present a complaint to a labour officer is in addition to their right to complain to the Employment and Labour Relations Court on the same issue and to the right to complain of any other infringement of rights. Noteworthy, advocates are barred by statute from representing parties in complaints before labour officers

The Labour officer is a vital person in the protection of children against forced labour. Any person who considers a child to be at risk of child labour may make a report to the labour officer. The labour officer shall thereafter investigate the complaint within 7 days and submit the findings to the Cabinet Secretary responsible for labour matters.

The labour officer has the peculiar power of cancelling contracts in which a child has entered into on the premise that the employer is undesirable or that it constitutes child labour. This power seems peculiar because a child has no capacity to contract ab initio. Additionally, the officer possesses the power to cancel and prohibit contracts executed by employers and children on the aforementioned grounds.

A foreign contract of service shall be attested to by a labour officer.

The Labour officer therefore has the jurisdiction to hear labour complaints and recommend a course of action. The Act does not grant the labour officer coercive powers to enforce these recommendations. The jurisdiction of the labour officer can also be usurped by the Court process due to the compelling and enforceable nature of court orders.

The Labour Institutions Act mentions the labour officer a total of 18 times. The Act establishes the office of the Commissioner of Labour and the Commissioner may delegate his duties to a labour officer. All labour officers operate under a certificate of authority from the Commissioner of labour.

The Labour Institutions Act grants extensive powers to labour officers. A labour officer in enforcing labour law may:

• require the production of wage sheets or other employment records and material kept by an employer;
• inspect and examine those sheets or records and copy any material part thereof;
• require any person giving out work and any out-worker to give any information which is in that person’s power to give with respect to the work, workers inter alia
• inspect employee residences
• Inspect latrines and sanitary arrangement of work premises
• Order the cleaning of such facilities
• Institute proceedings for contravention of labour law
• Institute an appeal on behalf of any employee in any civil proceedings
• Take into custody and return child involved in child labour to parents

The most profound power of the labour officer is the power to institute Court proceedings in the name of an employee against an employer.

There is no mention of the labour officer in the Labour Institutions Act.

There is no mention of the labour officer in the Occupational Health and Safety Act.

There is no mention of the labour officer in the Work Injury Benefits Act, 2007

Many employers do not follow the letter of the law. If this happens, workers should report the failure by their employers to follow the law to the local labour officer as it seems to be the reporting body mandated by law.