The Employment Act (Chapter 373) is not a general occupational health and safety statute, and section 6 makes clear it does not relieve an employer of any duty or liability imposed by any other law. But it carries a set of welfare and safety duties of its own, and they are enforceable.
Section 132 — an employee to oversee general welfare
| Employees and accompanying dependants employed or accommodated | The employer shall nominate |
|---|---|
| More than 200 | An employee whose sole duty is to oversee the general welfare of employees and accompanying dependants |
| More than 10 but fewer than 200 | An employee whose duties shall include overseeing the general welfare of employees |
Above 200, welfare is a full-time job, not an added responsibility. Section 132(2) allows the Minister, by written notice in respect of a place of employment, to exempt an employer or modify the requirement.
The welfare nominee is the first person to raise housing, water, rations, sanitation or medical problems with. Ask who holds the role. If nobody can name them at a site with more than ten people, that is itself a breach worth reporting to a labour officer.
Section 127 — work an employee is not fit for
An employer who knowingly requires an employee to perform work for which he is not physically fit is guilty of an offence. Penalty: a fine not exceeding K500.00.
The word is knowingly, so what the employer has been told matters. Report a limitation in writing, keep the copy, and ask for the section 131 medical assessment where an attested contract is involved — and note that under section 131(4) the employer must comply with a medical direction to vary the contract, not only to end it.
Section 51(3) — fatigue in dangerous work
Where an employee is engaged as a winchman or in operating machinery or equipment the careless or inefficient use of which may constitute a danger to the health or life of the employee or of other persons, an employer shall not require or permit the employee to work consecutive periods including overtime that may cause the employee to suffer from fatigue or become careless or inefficient.
This subsection shall not be deemed to limit any liability of an employer to an employee or to any other person.
It overrides both the power to require overtime and any agreement to work it, and it catches permitting as well as requiring. It should be read with section 49 — the 12-hour daily maximum, the meal and rest periods, and the weekly 24-hour rest — and with the closed list of situations in section 50 in which those limits may be exceeded.
Sections 5 and 104 — heavy labour and injurious conditions
- Section 5 — the Minister may, by notice in the National Gazette, declare any kind of work to be heavy labour for the purposes of the Act.
- Section 104 — the employment of young persons under injurious conditions is restricted, and a medical practitioner’s certificate is conclusive evidence on the question.
- Sections 98 and 99 — restrictions on certain employment of females and on employment during the night.
Section 124 — clean and sanitary premises
All buildings, premises and surrounding areas where an employee or accompanying dependants are housed or employed shall be maintained in a clean and sanitary condition. The employer may require employees to do work reasonably necessary for that purpose — but only for that purpose. See standards for employer housing, together with the water, lighting and mosquito net requirements in sections 121 to 123.
Sections 147, 148 and 148A — what must be on site
Section 147 — the employer shall display prominently at each place of employment or housing all notices approved or made available by the Secretary relating to employment conditions, safety, health and welfare of employees and accompanying dependants, and any other approved matters.
Section 148 — approved books, pamphlets and other articles shall be kept at each place of employment or housing and made available to an employee at all reasonable times.
Section 148A — a copy of the Act, the regulation and all amendments shall be kept by the employer at each place where five or more employees work, and made available for examination on request.
These are the provisions that make the rest of the Act usable. An employer that cannot produce a copy of the Act to an employee who asks for it at a site with five or more workers is in breach of section 148A.
How these duties are enforced
| Section | Mechanism |
|---|---|
| 142 | Entry and inspection of an industrial work place day or night without notice; by day, of places where employees are employed or housed — sanitary arrangements, water samples, medicines, kitchens and food stores. Not a private dwelling without consent; not a mine unless accompanied by an inspector or mining engineer under the Mining Act 1992 |
| 121(2)–(3) | Written notice to remedy an inadequate water supply; offence to fail to comply — K200.00 |
| 138 | Offence to refuse information reasonably required by an employee, or to penalise them for asking — K200.00 |
| 140 | Offence to obstruct an authorised officer — K300.00 |
| 145 | The Secretary may prosecute, and may appear on behalf of an employee in the employee’s civil claim |
| 150 | An employer may appoint someone to perform its functions — but this does not relieve the employer of its duties, civil or criminal |
| 141 | General penalty of up to K100.00 where no other applies |
What lies outside this Act
Section 6 preserves other laws, and the significant ones for safety are the workers’ compensation scheme for injury arising out of or in the course of employment, the industrial safety legislation applying to particular industries, and the mining safety regime — including the Mining (Safety) Act (Chapter 195A). The common law duty of care of an employer, adopted through Schedule 2.2 of the Constitution, also applies, and section 51(3) expressly does not limit it.
Practical steps
- Find the welfare nominee under section 132 and raise the issue with them, in writing.
- Read the section 147 notices — and if none are displayed, say so.
- Ask for the copy of the Act under section 148A.
- Put fitness limitations in writing — section 127 turns on the employer’s knowledge.
- Raise fatigue in dangerous work — section 51(3) is a duty, not a preference.
- Report injury immediately and pursue workers’ compensation rather than sick leave.
- Contact a labour officer for an inspection under section 142 where conditions are poor.
- Get advice — the Public Solicitor, or a firm from the law firms directory.
Sources
- Employment Act (Chapter 373) — ss 5, 6, 49–51, 98, 99, 104, 121–124, 127, 131, 132, 138, 140–142, 145, 147–150
- Mining (Safety) Act (Chapter 195A)
- Mining Act 1992
- Constitution — Schedule 2.2
Before relying on anything here, read the current text of the Employment Act (Chapter 373) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.