Fixed term employment contracts have always been a contentious issue in the labour market. Employers have been known to use such contracts as a tool to avoid the mandatory termination procedures and unfair termination sanctions by labour courts.
In this article, we will discuss the legality of fixed term employment contracts and how employers use them to defeat labour laws. We will also delve into five recent court decisions, including Transparency International Kenya vs. Teresa Carlo Omondi.
What is a Fixed Term Employment Contract?
A fixed term employment contract is a type of employment contract that has a specified end date or period. This means that the employment relationship ends when the specified date or period has elapsed, without the need for any notice or termination procedures.
Such contracts are commonly used in industries where there is a need for a temporary workforce or where there is uncertainty about the duration of a project or contract.
The Legality of Fixed Term Employment Contracts
Fixed term employment contracts are legal, and employers have the right to use them. However, there are certain conditions that must be met for such contracts to be valid.
The employment contract must clearly state the end date or period, and there must be a genuine reason for the fixed term nature of the contract. The reason could be due to the temporary nature of the work, such as seasonal work, or the need to cover for an absent employee.
Employers must also ensure that employees on fixed term contracts are treated fairly and equally to permanent employees. This means that they should receive the same benefits and entitlements as permanent employees, such as sick leave, annual leave, and public holidays. Failure to do so could result in a claim of discrimination or unfair treatment.
How Employers Use Fixed Term Employment Contracts to Defeat Labour Laws
Employers have been known to use fixed term employment contracts to avoid the mandatory termination procedures and unfair termination sanctions by labour courts.
They do this by terminating employees on fixed term contracts before the end date or period, without any notice or reason. The termination is often disguised as a non-renewal of the contract, which means that the employee has no recourse to challenge the termination.
Employers also use fixed term contracts as a way to avoid paying benefits and entitlements to employees. They do this by employing workers on a series of fixed term contracts, which means that they are not eligible for benefits and entitlements that are only available to permanent employees. This practice is known as ‘contractualisation’, and it has been condemned by labour courts as a way to defeat labour laws.
Recent Court Decisions
There have been several recent court decisions that have addressed the issue of fixed term employment contracts and the mischief of employers to defeat labour laws. Five of the most notable decisions are:
Transparency International Kenya vs. Teresa Carlo Omondi:
In this case, Teresa Carlo Omondi was hired on a fixed-term contract by Transparency International Kenya (TI-Kenya) as the Head of Finance and Administration. Her contract was renewed several times but was terminated in 2016 without notice or compensation.
Omondi sued TI-Kenya for wrongful dismissal, alleging that her contract was renewed several times and should have been considered a permanent contract.
The court held that Omondi’s contract was a permanent contract, as it had been renewed several times, and the nature of her work was not tied to a specific project or activity. The court further held that TI-Kenya had wrongfully dismissed Omondi and ordered them to pay her damages equivalent to 12 months’ salary.
Boniface Kariuki Githinji vs. Kenya Literature Bureau:
In this case, the court held that the use of fixed term contracts to avoid paying benefits and entitlements was illegal. The court also held that the contractualisation of employees on fixed term contracts was unfair and could be challenged as discrimination.
Samuel Muriithi Nyoike vs. Kenya Medical Research Institute:
In this case, the court held that the use of fixed term contracts to avoid the mandatory termination procedures was illegal. The court also held that employees on fixed term contracts were entitled to the same benefits and entitlements as permanent employees, and that the non-renewal of fixed term contracts could be challenged as unfair termination.
Governor Kirinyaga County Government vs. Josphat Kinyua:
In this case, the court held that the use of fixed term contracts to avoid the mandatory termination procedures was illegal. The court also held that employees on fixed term contracts were entitled to the same benefits and entitlements as permanent employees, and that the non-renewal of fixed term contracts could be challenged as unfair termination.
Samuel Ndegwa Gathogo vs. National Hospital Insurance Fund:
In this case, the court held that the use of fixed term contracts to avoid paying benefits and entitlements was illegal. The court also held that the contractualisation of employees on fixed term contracts was unfair and could be challenged as discrimination.
Conclusion
Fixed term employment contracts have their place in the labour market, but employers must use them within the confines of the law. Employees on fixed term contracts are entitled to the same benefits and entitlements as permanent employees, and they should not be discriminated against or unfairly treated.
Recent court decisions have affirmed this principle and have condemned the use of fixed term contracts to defeat labour laws. Employers should be aware of these decisions and ensure that their employment practices are in compliance with the law.