IS AN ORAL EMPLOYMENT AGREEMENT PROTECTED BY THE LAW?

Under the Employment Act an oral employment contract cannot operate otherwise than in accordance with the provisions of the Act.  As long as he is an employee, the oral agreement is protected by the law, specifically the Employment Act.

The Employment Act

Section 2 defines a contract of service to include an oral contract.

Section 3 states that the Act will apply to all employees employed by any employer under a contract of service. This would therefore include employees under an oral employment agreement.

Section 7 states that no person shall be employed under a contract of service except in accordance with the provisions of this Act.

This sections are to the effect that an oral employment contract for security services is protected by the Act and an employee cannot be employed otherwise than in accordance with the Act.

William Onyango Rubia v Makini Security Services [2016] eKLR

The claimant was employed as a security guard by the Respondent on an oral agreement. Court observed, Section 9(2) of the Employment Act places the responsibility of drawing and issuing an employment contract on the employer and where the employer fails to discharge this responsibility, Section 10(6) of the Act allows the Court to adopt the Claimant's testimony on the terms of employment. The court went further to state that it would only accept the Employer’s claims on the terms of employment if the employer produced documentary evidence.

Michael Kyalo Maithya v Victory Construction Company Limited [2016] eKLR

The Claimant was employed as a driver. The court held in favour of the claimant and used the Claimant’s testimony on the terms of employment to determine its judgement and remedies awarded. The court observed,

The fact that the respondent has also taken the option not to issue the claimant with a written contract of employment spelling out his terms and conditions of employments does not place the respondent as an employer with good practices. Such an employment contract is a requirement in law under section 8, 9 and 10 of the Employment Act. Such an employment contract should be issued spelling out the details of employment and what is to happen when an employee misconducts himself. Such an employment contract is not only for the benefit of the employee, but it serves the employer well as upon it, where there is a conflict, parties can make reference to the written contract. It is also a requirement in law that the respondent should abide.

Jephther Etyangata Odera v Khetia Garment Limited [2016] eKLR

The Claimant claimed unfair termination of his employment. It was on oral contract of employment. The Respondent denied its existence as an employment under the Employment Act. Since the Claimant produced evidence to support his claim, the court declared he was an employee and further that the Employment Act applied to the agreement. Relying on section 8, 9 and 10 of the Employment Act, the court gave judgment in favour of the Claimant and awarded the reliefs sought.