In an economy such as present-day Kenya, many people are roaming the streets looking for employment irrespective of how these opportunities may present themselves.
In a bid to be flexible enough to be considered by a potential employer most would-be employees are growing increasingly more inconsiderate to terms and conditions of employment.
It is this lack of caution that employers have since taken advantage of in offering job seekers opportunities that flout legislation on employment.
In most cases, the script would go something like this — you apply for a job, get shortlisted, interviewed, salary discussed, and reporting date is given, where after in one month’s time your account gets credited with the agreed salary amount, if lucky. Before you know it your colleagues are planning your surprise seven-year employment anniversary, of course not knowing that you have been on your current salary for three years.
A month after this celebration, your employer denies you access to your place of work and when you call him, he transfers you to the human resource manager who will inform you that your employment has been terminated. As you drive home, you begin to think of what your contract stipulated on termination, just for you to remember that you had no employment contract. Is this the end of your case?
That is what your employer may think. He could not be further from the truth.
Most employers make the mistake of not keeping employment records with the belief that if a contract is terminated then the more grey the terms alleged by the employee the more the outcome in their favour. The Employment Act obliges the employer to keep employment records including wages payment records for a minimum of up to 10 years post-termination of the contract. This is especially needful to protect the employer from false allegations by the employee of the terms and conditions of the employment.
For instance, if an employee alleges that he never went for annual leave for seven years, worked on public holidays and on overtime but never got paid for these, the only rebuttable evidence that an employer can produce are the employment records.
Failure by the employer to produce these records would only lead to an assumption by the judge that if these records are produced they would be very prejudicial to the employer’s case.
This would only persuade the trial judge that the employee’s assertions are true. This means that the court will have no option but to award the employee seven years annual leave, overtime and public holiday pay, which by any standard would be a hefty amount of damages.
Further, any decision to terminate the employee from employment must be communicated to the employee giving at least one month’s notice. Having no record of this notice would classify the employee’s case as one of wrongful termination — which would entitle one to a maximum of 12 months gross salary.
In some cases, an employer may have an under-performing employee, who has in the past committed gross employment violations. The employer may have held private meetings or even phone calls with the employee who has on all these occasions committed to change his ways. The employer has just never seen the need to write any warning letters because it is usually easier and less time consuming to walk into the employee’s office to “sort out these issues”. Only that on one morning, the employee absents himself from work, switches his phone and cannot be reached. In a moment, the employer calculates terminal dues payable and issues a termination letter.
Two weeks pass after which the employee shows up at work receives the dismissal letter and sues his employer for wrongful termination. Without the employer’s records of warning letters, minutes of meetings held to discuss the misconduct and disciplinary hearings, the employer could be looking at a judgment that would see the employee a few hundreds of thousands richer. All this because of the lack of employment records. The Employment and Labour Relations Courts have pronounced themselves on these issues and always against the employer who has no employment records. Especially in this era of technology where there is really no excuse in failing to track emails, M-Pesa statements of salaries paid or bank account entries, whichever the case.
Employers must maintain and keep records of taken and untaken leave days, overtime paid, public holidays worked, and allowances given. Unfortunately, on these issues, a handshake cannot build any bridges and cannot be deemed as evidence of employment records. So as an employer next time you want to leave records to memory, remember it will definitely break your case.