Express and Implied Rights and Duties of Employee Under Employment and Labour Relation Act

Express Rights and Duties 

The express rights and duties in a contract of employment are provided by the parties expressly in the contract of employment. Worth remembering is the fact that express rights and duties may either be written or oral depending on the type of the contract. Matters such as leave, salary, overtime, hours of work, job description, job title, holidays, sick pay, pension, notice, confidentiality, restraints, disciplinary and grievance procedure, are covered by the express terms. In most cases these contents are provided in standard form to the employees with little room for negotiation. 

However, the various sources of express terms could include a formal contract, a letter of appointment, a statutory statement of the main terms and conditions, oral statements made prior to the contract and even the job advertisement. 

Note: 

1. It should be noted that express statements become part of the contract only if they were made prior to the contract and post express statement are ineffective unless they constitute a mutual agreement to vary the original terms. 

2. The express terms of employment may be varied by mutual agreement between employer and employee or between the employer and a trade union by means of collective bargaining.

IMPLIED RIGHTS AND DUTIES

Rights of The Parties to the Contract of Employment The rights of the parties to the contract of employment are provided for in the contracts of employment as well as in the employment laws. These rights include leaves, remuneration, hours of work, working days, repatriation, retirement benefits, medical treatments etc 

Position of the Old Laws ANNUAL LEAVES, PUBLIC HOLIDAYS, MATERNITY LEAVE AND WEEKLY REST DAYS. This is dealt with under sections 25 A, B, C and D of the Employment Ordinance as amended by Acts no. 1 and 20 of 1975 respectively. 

ANNUAL LEAVE Section 25A deals with the annual leaves. It states that:-

‘once in every calendar year every employee shall be entitled to a holiday with pay’ This brings up the concept of annual leave in a contract of service. This means that the holiday comes at the expense of the employer. The employee shall take the annual leave at the rate of 7 days in respect of each period of 3 month’s service. S.25A(1)(a)

When shall this leave be taken? This leave may be taken at any time during the calendar year as the employee may agree with the employer. Therefore, as regards the time when the annual leave should be taken, it depends on the agreement between the employer and employee. It should be noted that it is the employee who must ask for his leave. If the employee does not ask for his leave he forfeits it. 

Public Holidays The Public Holidays Ordinance Cap. 35 empowers the President to proclaim public holidays. The employees are not required to work on a public holiday. Whether a certain day is a Public Holiday or not is a matter of law. However, the contractual obligations & duties remain unaffected. 

Paragraph 25A(1)(b) governs the holidays with pay. This is an addition to annual leave. An employee shall be entitled to a day’s holiday with full pay at the expense of the employer during public holiday. An employee may be required to work on a Public Holiday and that is not unlawful. But the law says that when the employee works for the employer in a public holiday he will be entitled to a day’s holiday at full pay at the expense of the employer on some other day that will otherwise be a day of work. However, this is not absolute for there are exceptions. Thus, where an employer pays to the employee who work on a Public Holiday at double the wage payable for work of a day which is not a public holiday such employee shall not be entitled to a day’s holiday with full pay in lieu of the public holiday. Note: 

(a) The law sets the minimum days for the annual leave of the employee. i.e. 28 days. This is just a minimum. The employer can give more but not less. 

(b)Certain types of employees are not entitled to annual leave e.g. Casual employees. 

(c) Full pay: is defined under section 25C as the normal remuneration together with remuneration in kind or the cash equivalent thereof and any cost of living allowance which may be payable to the employee from time to time. 

(d) Bonus is not part of the definition of full pay. It is rather a payment by the employer to his employees ex-gratia or a token of appreciation. The employer cannot be forced to give bonus. But it must be understood that sometimes bonus may be included in the contract and in this sense it is not ex-gratia and so it can be claimed by the employee.

MATERNITY LEAVE Under section 25B a female employee is entitled to 84 days maternity leave. In order to be able to ask for maternity leave, the medical officer must have given a certificate of expectation of giving birth.

When may this leave be taken? This leave may be taken at any time between the commencement of the 7th month of the pregnancy and the days following determination of pregnancy by delivery. This means that the leave may be taken prior to delivery. Maternity leave may not be taken under certain circumstances. Thus, to be entitled to a maternity leave the female employee must not have taken a maternity leave 

within the last 3 years immediately within the application for the leave which she is applying for.

Why such a restriction? It can be argued that, the legislature is interested in maintaining the female labour flowing. It appreciates that at certain time a female employee becomes pregnant but it has to fall within the law, if it is so close as say pregnant after every year then she will not be entitled to maternity leave.

What if pregnancy results in an abortion/ the child dies? The law says that the female employee shall still be entitled to the maternity leave notwithstanding the fact that she had taken a leave within the last three years. Note: the maternity leave comes with full pay. Maternity pay is an aspect of security of earnings. Also there is nothing to prevent the employer from granting a female employee more favourable terms in respect of maternity leave, say he can allow the female employee a maternity leave of more than 84 days.

WEEKLY REST DAYS This is covered by section 25D of the Ordinance. The provision states that:-

“An employee shall not be required to work for more than 6 consecutive days without a day’s rest.” The weekly rest days will be taken on such a day as shall be agreed upon by the parties. This provision must be read together with regulation 8 of the Regulations of Wages and Terms Employment Orders of a particular year. This is a subsidiary legislation made under Cap.300 (Regulation of Wages and Terms of Employment Ordinance). The regulations provides that where an employee works on the statutory weekly rest days he shall be paid in respect of every hour or part of an hour during which he works at a rate which is twice his hourly wage in addition to his monthly wage.

Rights in Case of Relocation What happens if the employer changes the residence? Under section 18 of the Employment Ordinance, the employee is not bound to continue to perform his services under the contract of service when his employer relocates. The residence meant here is the place where the business is performed. The place where the firm is located. This rule is also not absolute for there are exceptions to it. These exceptions are:-

 1) Where there is consent:- If where the employee has consented to continue to render the service to his employer after relocation then he will be bound to perform the contract of service after relocation. Where the said employee is a minor, the consent must come from his parent or the guardian ad litem. It is interesting to note that the consent needed here need not be expressed but it will be deemed to be there when the employee has been for a period of 14 days in a place where his employer has relocated the firm without any complain or objection. 

2) Where there is an agreement:- If the employer and his employee enter into an agreement to continue to perform services then the employee will be bound to perform the contract of service even after relocation. This agreement can either be express or implied. It is not clear how an implied agreement can be entered into since it is provided that the agreement should come prior to relocation. 

It should be noted that section 18 deals with relocation within the country. The issue of relocation outside the country is dealt with under section 19. Under section 19 no employee is bound to accompany his employer out of the territory. However, where there is consent on the party of an employee then he will be bound to accompany his employer. What is the rationale of the two sections? (i.e. ss.18 and 19) The rationale is to protect the employee who may be victimised by employers who relocate. Rights in case of Imprisonment Or Detention Of Employee Whether the employer is bound to pay wages during imprisonment or lawful detention? Under section 25 of the Ordinance as amended by the Security of Employment Act states that, “No wages will be paid to any employee in respect to any period during which the employee is imprisoned under any law or otherwise detained in lawful custody”

The reason that wages are not payable during the period of imprisonment or other lawful custody is that there is a failure of consideration on the party of employee. There is a failure of an employee to perform services under the contract of service.

NB: Imprisonment or lawful custody is not in itself on ground of termination of contract as far as section 25 is concerned. If the employee reports back to work after imprisonment the employer cannot pay him on the time of imprisonment. So the employee can proceed with the contract. It is not safe for the employer to rely on imprisonment as a reason to terminate the contract under s.25.

Position Under the ELRA The new labour legislation have maintained and improved the rights of an employee in relation to leaves and holidays. To start with, the ELRA, 2004 provides for hours of work, time of work, break in working day, overtime, daily and weekly rest periods and public holidays. 

Annual Leave: s. 31 provides that an employer shall grant an employee at least 28 consecutive days leave in respect of each leave cycle and such leave shall be inclusive of any public holiday that may fall within the period of the leave. During annual leave, the employer shall not require or permit an employee to work for him (s.31(6). Leave cycle in respect to annual leave means a period of 12 months consecutive employment with an employer following the employee’s commencement of employment or the completion of the last 12 months leave cycle (s. 30). But the employer and employee may agree to a standard leave cycle provided that it shall not prejudice the paid leave afore said. As regards the number of days in respect of the annual leave, they may be reduced by the number of days during the leave cycle which, at the request of the employee, the employer granted that employee paid occasional leave. (s. 31(2).

The annual leave may be taken at the time which may be determined by the employer provided that such a leave shall not be taken later than six months after the end of the leave cycle or twelve months after the end of the leave cycle if the employee has consented and the extension is justified by the operational requirements of the employer (s.31 (3). 

Payment: An employer shall pay an employee the remuneration the employee would have been paid had he worked during the leave period before the commencement of the leave (s.31(4). 

The employer is prohibited from paying an employee an amount of money in substitution for the annual leave to which that employee is entitled whether or not the employee agrees to such payment (s. 31(7). But this provision is subject to prorata payment which is made under s. 31(8). Under this section, the employer shall pay an employee a prorata amount for annual leave accrued, at the termination of employment or at the expiry of each season in respect of an employee employed on seasonal basis (s. 31(8). Such a prorata amount of annual leave shall not be availed to an employee who has not taken the leave within the periods provided by the law (s.31(9). The prorata amount of annual leave shall be calculated at the rate of one day’s wage for every 13 days the employee worked or was entitled to work (s.31(10). This shows that under the ELRA, 2004 annual leave cannot be sacrificed by substituting it with pay. Also there is an additional benefit namely a prorata amount of annual leave which is not found in the old statutes.

Sick leave: s. 32 provides that an employee shall be entitled to sick leave for at least 126 days. The sick leave is a leave with pay but there is a modification as to the amount to be paid. The amount paid on sick leave is calculated as follows: a) the first 63 days are paid at full wages b) the second 63 days are paid at half wages But there are restrictions which apply to payment during sick leave. For the employee to be entitled to paid sick leave he must produce a medical certificate and he must not be entitled to paid sick leave under any law, fund or collective agreement. The rationale for the first restriction is to make sure that the employer pays only in genuine cases while the rationale for the second restriction is to prevent a double payment to the employee in respect of the same subject matter.

Maternity Benefit: S. 33 provides for maternity leave. The employee is required to give notice of intention to take maternity leave supported by a medical certificate at least 3 months prior to the date of birth. The leave may commence at any time from four weeks before the expected date of confinement or on an earlier date if a medical practitioner certifies it as necessary for the health of the employee or that of her unborn child (s.33(2). The duration of the leave is 84 days or 100 days in case of giving birth to more than one child (s.33(6). It should be noted that the leave cycle in relation to maternity is 36 months consecutive from an employee’s commencement of employment or the completion of the last 36 months leave cycle (s.30). 

This means an employee shall not be granted maternity leave under the terms of this Act if the cycle is not complete. But an employee is entitled to additional 84 days paid maternity leave within the leave cycle if the child dies within a year of birth (s.33(7). Moreover, an employer is only obliged to grant paid leave for 4 terms of maternity leave to an employee in terms of this law (s.33(8). 

The law also protects the pregnant and nursing women in many other ways. For instance it is provided that no employer shall require a pregnant or nursing woman to perform work which is hazardous to her health or the health of the child (s.33(5). Thus, where an employee performs work that is hazardous to her health or that of her child, her employer shall offer her suitable alternative employment, if practicable, on terms which are not less favourable than those she is serving (s.33(9). Also no employee shall work within 6 weeks of the birth unless a medical practitioner certifies that she is fit to do so (s.33(3). Again where an employee is breast-feeding a child, the employer shall allow the employee to feed the child during working hours up to a maximum of two hours per day (s. 33(10). 

Paternity Leave: S. 34 provides for the paternity leave together with other forms of leaves. Paternity leave of at least 3 days is granted to the male employees on the conditions that such leave is taken within 7 days of the birth of a child and the employee is the father of the child (s.34(1). Before paying, the employer may require reasonable proof of the event of birth. The three days referred to here is the total number of days to which the employee is entitled irrespective of how many of the employees children are born within the leave cycle. Other Leaves: the employee is entitled during any leave cycle to at least four days paid leave for the sickness or death of the employee’s child or the death of the employee’s spouse, parent, grand parent, grand child or sibling (s.34(1)(b). The four days referred here is irrespective of how many events prescribed here occur within the leave cycle, but the employee may take more days as may be authorised by the employer for the event provided that such extra days will be without pay.(s.34(3)(b)

Public Holidays: Section 25 provides that if an employee works on a public holiday specified in the Public Holidays Ordinance, the employer shall pay the employee double the employee’s basic wage for each hour worked on that day. Note: 1. the provisions elaborated above does not apply to employees who manage other employees on behalf of employer and who report directly to a senior management employee (s.17) 2. the provisions concerning maximum hours of work, maximum overtime, break in working day, daily rest period and public holiday shall not apply in an emergency which cannot be performed by employees during their ordinary hours of work (17(2)

Secondly, the ELRA, 2004 provides for different kinds of leaves. Under s.29 it is provided that employees with less than six months service shall not be entitled to paid leave. Thus as a precondition to a paid leave under the Act, one must have served not less than six month to be entitled to a paid leave. But it should be borne in mind that a seasonal employee is entitled to paid leave as well as an employee who has worked for less than six months provided that he has worked for the same employer more than once in a year and the total period worked for in that year exceeds six months in that year (s. 29(2). Moreover, paid leave is defined to mean any leave under part III subpart D of the ELRA and calculated on an employee’s basic wage.

Daily and Weekly rest periods: An employer shall allow an employee to have a daily rest period of atleast 12 hours between ending and recommencing work. Also he shall allow an employee a weekly rest period of at least 24 hours between the last ordinary working day in the week and the first ordinary working day in the next week. But a daily rest period may be reduced to 8 hours if there is a written agreement and the ordinary working hours are interrupted by an interval of at least three hours or the employee lives on the premises of the workplace. (s. 24(2). A weekly rest period may by written agreement provide for a rest period of at least 60 hours every two weeks, or a reduced weekly rest period by 8 hours if rest period in the following week is extended equivalently (s. 24(3). An employee may only work during the weekly rest period if he has agreed to do so provided that the employer shall pay the employee the double hourly basic wage for each hour worked during the period. (s. 24(4).

Overtime: Under s. 19 the employer is prohibited from requiring or permitting an employee to work more than 12 hours in any day. The law fixes the maximum number of ordinary days or hours that an employee may be permitted or required to work as being; six days in a week, 45 hours in any week, and nine hours in any day. In this respect, the overtimes are also limited by this law in the sense that, no employer is permitted to require or permit an employee to work overtime except in accordance with an agreement and the overtime hours are limited to not more than 50 in any four week cycle. The remuneration for overtime payment is also provided for in which case, an employer is prohibited from paying less than one and one half times the employee’s basic wage for any overtime worked.

Night Work: Section 20 also provides for restrictions as to night work. Note that night time is defined to mean hours after 20hrs and before 6hours. During this time it is prohibited that the employer should not allow pregnant employees, mothers( for period of two months after the date of birth or before that date if the mother requests to work and produces medical certificate that her baby’s health shall not be endangered), children under 18 years of age and an employee who is medically certified as being unfit for night work, to work at night. The remuneration at night work is also provided for in which the employer is required to pay an employee at least 5% of that employee’s basic wage for each hour worked at night and if the hours worked are overtime hours, the 5% to be calculated on the employee’s overtime rate. 

Compressed Work Week: Section 21 provides for the compressed working week. In this case a written agreement must be signed by the employer and employee to require or permit an employee to work up to 12 hours in a day inclusive of any meal interval, without receiving overtime pay. An agreement under this provision shall not require or permit an employee to work more than five days in a week or more than 45 hours in a week or more than 10 hours overtime in a week. 

Break in working day: Section 23 provides for break in a working day in which an employee who works for 5 hours continuously is granted a break of at least 60minutes. But the employer may require an employee to work during a break only if the work cannot be left unattended or cannot be performed by another employee. The employer is not obliged to pay the employee during the break period unless the employee is required to work or to be available during the break.

Other Rights Fundamental Rights PART II of the ELRA, 2004 deals with the fundamental rights and protections.

Prohibition against discrimination The ELRA prohibits discrimination in the workplace (s.7) - Employers are required to promote equal opportunity and to eliminate discrimination in workplace. - It is further provided that the Labour Commissioner may require an employer to develop a plan to promote equal opportunity and to eliminate discrimination in workplace and register the same with the commissioner. - The type of discrimination which is prohibited includes direct and indirect discrimination against employee on the grounds of colour, race, nationality, tribe of origin, social origin, sex, gender, religion, political opinion, HIV/Aids etc (s.7(4) - It is further provided that in proceedings where an employee alleges discrimination, it is the duty of the employer to prove that: (1) discrimination did not take place as alleged or (2) the discrimination does not fall under those categories prohibited by law Note: An employee under this provision, include an applicant for employment.

The ELRA also prohibits discrimination by a trade union or employer’s association of its members in admission, representation and termination of membership on the grounds of discrimination afore mentioned. This applies to collective agreements and employment policy and practice. 

Right to freedom of association Every employee has right to form or join trade union and to participate in lawful activities of the trade union (s. 9) However, this right is subject to qualification in certain kinds of employment. The employees who have a 

restricted right are magistrates, prosecutors and senior management employees. For magistrates they may only form or join trade unions that restrict their membership to judicial officers. The prosecutors on the other hand may only form or join trade unions that restrict their membership to prosecutors or other court officials. The senior management employees may not belong to a trade union that represents the non-senior management employees of the employer.

The right to association is also available to employers. The employers have a right to form or join employer’s association and to participate in the lawful activities of such associations (s.10). 

There are also rights accorded to trade unions and employers association such as right to determine their constitutions, right to plan and organize their administration and lawful activities, right to join and form federations, right to participate in the lawful activities of the federation and right to affiliate and participate in the affairs of any international workers or employees organization or the ILO (s.11).

It should be noted that the whole of Part IV of the ELRA is dedicated to the aspects of employers associations and trade unions in as far as their establishment and their operation is concerned. From part V to part VII the functioning and the significance of such organisations is clearly covered.

Other rights include the right to severance pay, repatriation, right to strike and lockout, will be discussed in future lectures.

IMPLIED DUTIES 

There are necessary terms which are implied in every contract of employment by law. Some of these duties are a result of customs, common law or practice but most of them are a result of statutory law. Lets now consider these implied duties on the side of both the employer and employee. 

Implied Duties of the Employer The duties of employer include but not limited to duty to provide work, duty of mutual respect, duty of confidentiality, duty to indemnity, duty to ensure employee’s safety etc.

1. Duty to Provide work Part III of the Employment Ordinance contains provisions of general application regardless whether the contract of service is oral or written. Section 16 provides that it is the duty of an employer to provide work for the employees. It must be borne in mind that the work provided by an employer must be in accordance with the contract of service. It means that the employer cannot give an excuse for not providing work to his employee so long as the employee is ready to work.

What if the employer does not provide work? The failure of an employer to provide work to his employee is detrimental to the employer. This is because the employer is supposed to pay the employee’s wages at the same rate as if he has actually performed the kind of work that as reserved under the contract of employment. However, it should be understood that this duty is not absolute because there are some circumstances which exempt the employer from liability to pay wages. These include: 

(a)Where the employee has broken his contract of service 

(b)Where the contract of employment is frustrated 

(c) Where the performance of the contract is prevented by force majeure or act of God

2. Duty of mutual respect The employer has the duty to treat his employees with due respect and consideration, mindful of their needs and problems, sympathetic to their problems. This duty arises at the outset of the contract and continues during its performance up to its termination. The employer therefore should not carry on the provocative conducts towards his employees. This duty is so much linked with the discussion on the disciplinary or dismissal policies where it is alleged that the employer has been carrying out himself provocatively. 

3. Duty of confidentiality

The employers are duty bound not to disclose any confidential information about their employees to third persons. Thus, the employer cannot disclose a confidential information concerning without the employee’s consent. This is because the employer comes into the possession of that information only for the purposes of employment relationship and not for any other purpose.

4. Duty to indemnify Where an employee reasonably incurs any expense in the performance of his contract ought properly to be met by the employer he should be indemnified by the employer. These include costs of travelling, lodging, etc while in performance of his contract of service. Normally, the employer provides for all these expenses in terms of travel allowance, lodging allowance etc but if it happens that the employer has not provided such allowances, then where the employee will have spent his own money for these he should be reimbursed by the employer. This duty covers even situations where the employee commits a wrongful act, if the wrong was done for the employer’s business and was authorised or if the employee was acting under the employer’s orders.

5. Duty to ensure employee’s safety The employers have a duty to take reasonable care to ensure the safety of their employees. This duty originates from the Common Law duty for the employer to provide his workers with a safe system of work. It encompasses the obligation of the employer to provide safe plant and appliances, appropriate safety equipment, safe work methods and safe fellow workers. This duty is an aspect of the law of negligence which requires that the activities of one person should not cause injury to others. In the same way the employees are required to cooperate in relation to their own safety otherwise the employer may raise a defence of contributory negligence. However, there are a number of statutory provisions which are aimed at ensuring that employers provide safe working environment. 

Implied Duties of the Employee The implied duties of employee include the duty of faithful service, the duty to obey lawful and reasonable orders, the duty to use skill and care, the duty not to disclose confidential information about employer’s business to an unauthorised person (eg. Working for competitor, moon-lighting etc) etc. This part therefore, deals with the implied terms in as far as they give rise to implied duties to an employee.

1. The duty of faithful service The law requires by implication, the employees to serve their employment faithfully because the relationship between the employer and employee is one of trust and confidence. This duty involves an obligation on the employee to respect confidence, take care of employers property, account for moneys received in the performance of duties and not disrupt the employers business. Thus any attempt by the employee to use his position for undisclosed personal gain, for instance by accepting secret bribes or making secret commission will constitute breach of employment contract. 

2. The duty to obey lawful and reasonable orders The employee is required to submit to the employer’s control and this involves obeying reasonable orders. What constitute a reasonable instruction depends upon objective interpretation of the employee’s contractual duties both express and implied. If the employee can show that the order was unlawful, he need not obey it. In the same way if the employee can show that the order involves a risk of serious injury or breach of public law, it can be held to be unreasonable even if it is within the scope of an employees duties. A wilful refusal to obey a lawful order will often lead to the termination of employment.

3. The duty to use skill and care The employee has a duty to perform his work competently, using reasonable skill and care. The employee is obliged to take care of the employer’s property. The breach of the duty to use care and skill entitles the employer to claim damages in respect of the negligent performance of the contract. In the same way an employee who negligently allows his employer’s property to be stolen or causes it wilful damage breaches his contract and may be liable to dismissal.

4. The duty not to disclose confidential information The employee is duty bound not to disclose information about employer’s business to an unauthorised person. Such information relating to the profitability, new designs or models, mode of operation or anything relating to business 

qualifies as confidential information. Thus the employee breaches the contract if he reveals confidential information relating to any aspect of his employer’s business to a competitor or make use of that information for his own purpose. However this will not apply if the employee is obliged by law to disclose information.