Sep 21, 2021

Mawazo Writing Africa

Writing about the main

How Covid ushered in a ‘strange’ workplace

As the world celebrates Labor Day today, let’s look at five areas where existing labor laws have been scrutinized.

Can Covid-19 be classified as an “act of God”?

One term has gained importance in court since the outbreak of the pandemic – force majeure. This is legal for an inevitable act of God.

It is usually used to describe unforeseen events that could cause a party to fail to meet its obligations.

This is Covid -19 a force majeure? One such argument was made by Tuskys Supermarket when it faced the Kenya Union of Commercial, Food and Allied Workers in court last year for paying unionized workers.

“The situation in Covid-19 was unpredictable and unavoidable force majeure or force majeure, which leads to the fact that a contract, including the CBA (collective agreement) between the parties and the individual service contracts, is legally frustrated, “argued Tuskys in the labor court through his lawyers.

In a July 2020 ruling, Justice Byram Onganya partially agreed with Tuskys’ argument, but noted that the CBA does not contain a force majeure clause. “While the Covid-19 pandemic could not have been foreseen, it is clear that the collective and recognition agreements did not contain a clause on force majeure. In addition, the performance clause is the legal and contractual clause that Tuskys negotiates and consults the applicant when salaries, wages and other benefits are to change, ”said the judge, alleging that Tuskys had not consulted employees before making changes to wages have made. According to Ratemo Tom Junior, Lecturer in Labor and Constitutional Law at Kenyatta University, an employer cannot hide behind force majeure to make arbitrary decisions.

“There is a process that must be followed. An employer cannot wake up in the morning and just fire the employees. Employees need to be notified in the first place, and in some cases the labor officer of a particular area needs to be given timely notice at least a month in advance, “Ratemo told Saturday Nation yesterday.

The Federation of Kenya Employers noted the precarious situation of employers due to the pandemic and discussed the problem of force majeure in a meeting in July.

“The participants discussed the emerging industry trends and challenges that Covid-19 such as the inclusion of a clause on force majeure”, says a summary of the virtual discussion published on the FKE website.

Where exactly is the workplace?

According to Kenyan law, the place of work must be specified in every employment contract. However, working from home became the norm to reduce movement during the pandemic. What if a contentious workplace issue arises?

In Volume 13 of the Italian Labor e-journal, Mr Ratemo published a paper entitled “Assessing the degrading face of Covid-19 too Industrial Relations “: A new challenge for Kenya’s burgeoning democracy.

” In general, the existing labor laws in Kenya do not contain any guidelines on ‘working from home’ or ‘remote / teleworking’. The Employment Act 2007 and the Employment (General) Rules 2014 stipulate that the employment contract or letter of appointment should indicate the place and the working hours of an employee, “Ratemo wrote in the newspaper.

He went to:” An employer’s duty to provide decent working conditions is limited to workplaces and not at home. In this context, one of the most urgent and urgent questions that should be answered is whether the employer should be held liable in the event of injury or illness while an employee is working from home rather than from their assigned job / p>

Mr Ratemo advised employers and employees to sign revised contracts to include “a worker’s home” as a place of work.

“This can help address cases of violations of the provisions of avoid the employment contract, “he explained.

Mr Ratemo said the pandemic has also raised the question of whether quarantine should be considered sick leave, especially if the employee has not tested positive for Covid-19 in tests carried out while he or she is in quarantine.

If an employee gives a positive test at the end of the quarantine, he or she argued in his or her work, he can count the isolation period as sick leave. “However, it would be difficult to determine whether an employee was / was entitled to sick leave after being classified as Covid-19 negative (at the end of the quarantine),” he wrote.

Can a Workers are sent on unpaid leave because the company is not making any money?

Given the impact of the pandemic, reports of employers sending employees on unpaid leave have been widespread – especially in the hospitality industry. Mr Ratemo said such a situation did not have the blessing of the Labor Code and as such the employer would be sanctioned to take illegal leave.

“Although the Labor Code provides for a situation in which an employer can operate in consultation with Revise their employee’s working conditions, which can lead to a breach of an employment contract if an employee is forced to take vacation by an employer but there is no mutual agreement between the two parties. He wrote in his newspaper.

Attorney Cathy Mputhia, who wrote about the situation of employers in Business Daily April 5, argued that Kenya should have a vacation law to address the effects of the pandemic .

“A leave scheme is treated as temporary unpaid leave that employees take to enable the employer to reorganize. An employee is not paid during a vacation. The nice thing about the appointment, however, is that the employee continues to keep his job. It is better than firing staff, ”she wrote. The only change targeting the situation in Covid-19 is the Pandemic Response and Management Act, introduced in the Senate in March by Nairobi Senator Johnson Sakaja. In its section on industrial relations, the bill takes the workers’ side. “The actions of an employer who is affected by a pandemic in relation to an employee must not violate existing employment and industrial relations laws,” says one part of the bill.

How Can productivity be measured remotely?

The Kenyan Competition Authority (CAK) claims to be one of the organizations that has developed remote productivity monitoring tools, at least according to its HR manager Faith Marete.

“We have via a well-established remote working mechanism supported by a robust ICT infrastructure, productivity monitoring and measurement tools, and organized communication channels, ”reads a post on the CAK website / p>

The problem of monitoring productivity in one Employee working remotely, however, is a pristine path as most contracts signed prior to the pandemic did not take this into account. “Remote work, also known as telework, is a very big problem right now,” Ratemo said yesterday. A survey by Consumer Insight Kenya in April 2020 found that 81 percent of employees working from home were unproductive. Only a meager two percent felt productive from home, while three percent of 1,083 respondents said their productivity had stayed the same.

What should happen if employees reject a wage cut?

The pandemic brought unprecedented action among Kenyan employers, one of which resulted in a percentage cut in wages for its staff. But not all employees agreed to pay cuts. In a case ruled by the Nairobi Labor Court in December, members of the Amalgamated Union of Kenya Metal Workers sued Kenya Coach Industries, a bus body manufacturer, over wage problems.

The court heard the Employers had proposed a 35 percent wage cut for workers who opposed them.

“Kenya Coach Industries attributes the deterioration in its business to workers’ refusal to accept a 35% wage cut or to send employees on unpaid leave “, It says in the court record. As a result, the employer – citing a drop in income – declared 35 of the workers’ jobs dismissed, hence the lawsuit.

When she issued an order preventing Kenya Coach from sending the workers home, lady Justice Maureen Odero said the employer must have had consultations with the workers before making the decision.