The Economic Consequences of Poor Working Conditions- Compensation Structure for Employees in Kenya

By: klarksons COO
6 years ago

I worked at a petrol station immediately after graduating from University where I cleaned toilets among other jobs. I met really cool guys who taught me how to change and patch tyres, to never car wash over the weekend (its freaking busy and your car will not get the love and attention it warrants) and all about car spare parts. (Sorry John and Jeremy I forgot your lessons).

I most importantly got to experience first-hand the poor working conditions imposed upon workers in Kenya in spite of union’s efforts and sufficient laws in place to protect the employees. The hours were crazy and the employees were rarely provided with work related safety equipment’s. I sat and listened to stories of injuries workers suffered in the course of performing their duties, the casual and offhand treatment they received from employers immediately after a work-related injury and death. It was a very sad state of affairs and my friends tell me this has not changed.

 We all have different work experiences, most of us are fortunate to have entered the job market after graduation with knowledge of your rights in relation to your boss. Others were forced by circumstances to seek employment at a very young age either as a nanny, shamba boy, mtu wa mkono, haul 90 kg maize bags, scrub toilets in night clubs, as a bus boy at an hotel in town, this list goes on.

 It is a common denominator that when you are desperate and get employment you will not give a fig about the long hours, the poor work environment, and the unfair work conditions.  One just feels lucky to have a job, to have some few cents in the pocket and a majority of employers take advantage of this gratitude, they take advantage of this workers naivety and desperation.

The International Labour Organization in recent publications have stated that there is a direct correlation between the economic impact of failing to invest in work safety and health to the gross domestic product of  a Country. In its comments of 6^th September 2017, the ILO stated that worldwide 2.78 million workers die each year as a result of occupational injuries and illnesses. Of those, over 350,000 deaths are due to fatal work-related diseases and approximately 2.4 million are linked to work- related disease. In addition over 313 million workers are involved in non-fatal occupational accidents causing injuries and absences from work. The total cost of illnesses, injuries and deaths was 3.94 percent of the global GDP or $2.99 trillion in 2018.

 The need to invest in occupational safety and health so as to prevent occupational accidents and disease cannot be over emphasized but today we shall focus on the remedies available in Law for an employee who suffers work-related injury or death under the Work Injury Benefit Act, 2007.

The Work Injury Benefit Act, 2007 applies to all employees and employers in Kenya both in public and private sector with the exclusion of members of the Armed Forces.

The injuries under the Work Injury Benefit Act, 2007 are divided into three categories namely:-

1. Permanent Capacity or disability;
2. Temporal incapacity; and
3. Fatal Injury leading to death of a worker

Under Section 7 of the Work Injury Benefit Act, 2007 every employer shall obtain an insurance policy in respect of any liability that the employer may incur to any of its employees.

An employee who is involved in an accident which results in an injury or death should in the first and the later through his/her representatives take the following steps:-

1. a)Serve a written or verbal notice of the accident to the Employer ;
2. b)Serve a written notice of the accident to the Director under the Act (currently based in Nairobi) within 24 hours;
3. c)Undergo an examination by a medical practitioner and forward the medical report to the Director and the Employer;
4. d)The Director shall thereafter upon receipt of the notice of injury or death caused by work- related injury conduct an inquiry and deliver a Ruling on whether the Employee is entitled to compensation and if so, the amount of compensation.

Pursuant to Section 26 of the Work Injury Benefit Act, 2007 a claim for compensation shall be lodged by or on behalf of the employee within twelve (12) months after the date of the accident or, in case of death, within twelve (12) months after the date of the death. ANY CLAIMS FILED AFTER LAPSE OF THE TWELVE (12) MONTHS SHALL NOT SUCCEED AND ARE PROHIBITED under Section 26 (2) of the Work Injury Benefit Act, 2007.

Upon filling the claim with the Director or in Court an employee is entitled to the following compensation under the Act as of right;-

1. a)Permanent Capacity or disability; The employee is entitled to a lump sum of 60 months of the employees monthly earnings but subject to the maximum of KShs. 240,000.
2. b)Temporal incapacity; The employee is entitled to receive temporary disablement benefit of 50% of his/her average daily earning up to KShs. 540 ( if the incapacity lasts for more than 3 days)
3. c)Fatal Injury leading to death of a worker; the employees fully dependents survivors receive benefits equivalent to a lump sum of 60 months of the deceased employee’s earnings.

    In the absence of fully dependent survivors, reduced benefit is paid to partially dependent survivors. This amount will range from KShs.30.000/= to Kshs. 240,000/=. A funeral grant of KShs. 20,000/= is further entitled to the deceased employee’s family.

The above compensation is in addition to the expenses incurred in terms of medical treatment, specialized equipment’s procured and extra services incurred to take care of the employee.

Rtd,Justice M.Apondi in a recent speech quoted Frank Slesnick & Cynthia Mulliken on compensation and noted as follows:-

    Compensation is always the aim of the Law. It is the bottom principle of the Law of Damages. To restore the party injured, as near as may be, to his former position is the purpose of allowing a money equivalent of his property which has been taken, injured or destroyed. Hughett vs Caldwell County, Ky.85, 230 S.W. 2d 92, 96, 150.  

  It is impossible to calculate or capture in words the devastating effects of work related injury or deaths on workers and their families. I agree that the human costs are unacceptable and we all have a moral obligation to reduce the human and economic costs. However should you, dear reader or any of your loved ones suffer a work –related injury or death please seek compensation within timelines provided under the Law as we all work together towards developing effective prevention programmes and compensation systems through the collaborative effort of government and employers and employees organizations. 

For now, keep safe and stay safe.

P.S : I am grateful to Rtd, Justice M. Apondi and Advocate Simiyu Makokha whose presentations at the CL held in Bungoma on 6^th September, 2019 was insightful and helpful in today’s blog. Thank you once again.