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Unilateral salary cut has no basis in law

COMMENTARY
By Moses Nthurima | May 15th 2020

The disruptions to economic production brought about by Covid-19 are impacting negatively on workers. In addition to fatalities, millions of workers have lost their jobs and livelihoods. According to the International Labour Organisation, almost half the global workforce – 1.6 billion people – are in “immediate danger of having their livelihoods destroyed.”

In Kenya, private-sector workers have borne the brunt of Covid-19. Many have been rendered jobless and even more forced to take unpaid leave or salary cuts. No such decisions have applied in the public sector. However, the circular from the Office of the President on voluntary salary cuts dated April 23 may signal some thinking in that direction.

Public servants in Cameroon and Burkina Faso have gone for two months without salaries. It is unthinkable that Kenya, a constitutional democracy with a highly cherished Bill of Rights, would go down that path.

Here, the terms and conditions of workers in the public service are negotiated and concluded within the parameters of the Bill of Rights. Once agreed, workers’ unions and employers sign a Collective Bargaining Agreement (CBA) which is then deposited in the industrial court, to give it the force of law.

This regime is anchored in a plethora of constitutional provisions and industrial legislation which have been reaffirmed in many landmark precedents. Article 41 of the Constitution, which provides workers with the right to join and participate in the activities of a union, lays the foundation upon which labour rights should be construed.

Article 27 protects employment from arbitrary and capricious exercise of power by employers. Article 28 guarantees employees the right to the inherent dignity and have that dignity respected and protected at the workplace. Article 30 guarantees the enjoyment of the right not to be held in slavery or servitude. Article 41 guarantees the right to fair labour relations, the right to have employment contracts respected and adhered to, and a fair opportunity to correct or contradict any prejudicial statement. Lastly, Article 47 guarantees employees the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

These rights are buttressed under the Employment Act, whose Section 26 recognises minimum terms of employment to include terms negotiated by a union in a CBA. Sections 41 and 46 protect employees from dismissal, the imposition of disciplinary penalty or victimisation for membership and participation in trade union activities.

Likewise, Section 4 and 5 of the Labour Relations Act protect employees’ right to participate in trade union activities. Section 48 requires employers to deal with unions on matters relating to the rights and interests of union members regardless of whether a CBA is in place.

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As the guarantor of citizens’ rights, the Government will not easily infringe on the rights of its own workers. However, in these hard times, it should be proactive in encouraging private sector employers to adhere to legal principles.

Since the first case of Covid-19 was announced, many employers have unilaterally varied the salaries for their workers. Salary is a fundamental term of employment; its reduction negatively impacts employees’ livelihoods, resulting in pecuniary embarrassment, emotional distress and reduced dignity.

The courts have pronounced themselves unambiguously on the issues of a salary cut. In Petition No. 38 of 2019, Kenya County Government Workers Union vs Wajir County Government, it was held that, for a reduction of salary to be valid, an employer must obtain the approval of the employee by communicating the reduction to the employee by letter and causing the letter to be accepted by the employee.

The worker must freely and conscientiously sign any new term of the agreement, which must be unequivocal. Salary diminution cannot be legally achieved by a circular to employees or notices to trade unions, as has happened in some cases.

There are, of course, ways in which employees can legally take pay cuts. In Air Service Ltd vs Theuri Munyi, Civil Appeal No. 310 of 2014, it was held that where constitutional rights are violated, the employee is entitled to damages.

However, an employee whose salary is reduced and does not contest such reduction, in the hope that it would be restored at a later date, upon the curtailment of the reason for the cost-cutting, would not be able to plead the principle of estoppel in a court of law. Such an employee would have waived his rights to the “lost” salary.

The Covid-19 pandemic, which will pass with time, should not provide cover for unfair labour practices by employers.

Nthurima is the Deputy Secretary-General of Kuppet.

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