Business mogul Sir Richard Branson once said that “clients do not come first. Employees come first. If you take care of your employees, they will take care of your clients”. This is a paradox of the Kenyan system of employers who believe a client is a king. In fact, there’s a common saying that “the client is always right.”
This made employers value clients more than the employees who tend to these clients. For a long time, employees had no say at work. They have been misused, abused and dumped. They could be hired and fired at will, with or without a reason. Employees survived at the mercies of their employers. Their rights continue being infringed through underpayment, unpaid overtime and delayed salaries.
Many employees hold on abusive jobs but fear quitting or raising a voice for fear of dismissal.
With all these injustices, employees who have religiously worked for years, at times overtime and without annual leave while earning meagre salaries, are unceremoniously summarily dismissed on flimsy grounds. Some employers dismiss employees, especially casuals, to avoid paying gratuity.
But in recent days, the courts have come to the aid of casuals. How can someone work for over 10 years as a casual labourer? A majority of employees have been enlightened on their rights and are now able to seek legal redress. Today, labour courts are some of the most congested because of unfair dismissals.
But are these courts biased against employers as alleged? I hold a contrary view backed by facts and the law. Like any other court, labour courts dispense justice without favour or bias. Unlike other fields of law, labour laws are very clear in principle and applicability.
Employers have not realised that the new sheriff in town — the 2010 Constitution — emancipated employees by providing for labour rights. The employees are protected not only statutorily but also constitutionally.
This constitutional provision supersedes the statutory provisions which employers have religiously abused.
While the Employment Act, 2007 provides for grounds for termination of an employee, the supreme law lays down the procedural requirements of proving the grounds before termination.
The labour courts value procedure more that justification for termination. Many employers justify reasons for termination after a termination has taken place. Notwithstanding the good reasons for termination, the labour court always looks at the termination from the start as opposed to the employers who see termination from the end.
All employers should know that employees are constitutionally protected and that a termination must adhere to the tenets of fair hearing and fair administrative actions. No matter the offence, a hearing is supreme before termination.