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Ask HR: Can I claim the leave days I accrued while on enforced leave?

by kenya-tribune

I am a public service employee and I wish to know if one can earn leave days while on dismissal and claim them upon reinstatement. 

My understanding of leave is that it is intended to give an employee time for reasonable rest after many days of work. The Employment Act states that employees should be awarded a minimum of 21 days of leave annually, and that 14 days out of the 21 must be uninterrupted to allow workers adequate rest.

The same Act defines leave as rest that is given after consecutive service spanning 12 months. This means for one to benefit from this rest, they must have been working, and not idling around waiting for a dismissal appeal to be determined. Indeed, a common phrase you will find in most leave policies says that leave must be earned. Going by these definitions, my genuine conclusion is that leave cannot be earned after an employee has been dismissed.

That said, there is need for fairness, where the employer may make exceptions based on deserving cases. One is to ensure that there are clear policies on how situations like this one can be avoided. This means there is clear, documented process on how dismissals are handled, with clarity on how the period between a dismissal and right of appeal is treated. Some employers are clear in their policies that upon a successful appeal of a dismissed employee, the period between dismissal and reinstatement is treated as unpaid leave. This means while there is assurance of continuity of service or employment, the period when the employee did not work is not paid. And therefore, since leave is earned, any time an employee is unable to perform their duties for whatever reasons, rest should not be granted. Otherwise, they will be granted rest from what?

This brings me to another question of prudent use of resources. If, for arguments sake, we turn the tables and assume that this is your personal business. You have rules and policies that guide all employees, and an employee has been dismissed for cause. But, due to technicalities, the worker is reinstated. In this case, would you allow them to take leave for the period they have been away?

Would this be good use of your resources? If you were leading a business on behalf of shareholders, would such a decision be deemed prudent? Lastly, if the employee is under a Collective Bargain Agreement (CBA), the provision of the Agreement will come to play. But even in such situations, I would be surprised to imagine concerned parties would be party to an agreement that goes against the provision of the Employment Act. As you ponder over my views, I hope you will look for ways to strengthen the governance of your institution and safeguard interest of all parties in a prudent manner.

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