By Wamucii Kabue & Helen Ambasa

On Thursday 2nd July, 2020, the Division of Legal Services held a webinar titled Leading in Uncertain Times- Governance, Legal & HR Issues That Organizations Have to Contend with. This was the final webinar in a series of webinars held over the past month with a view of ensuring that the campus community as well as USIU-Africa’s partners were apprised on topical legal and governance issues during this unprecedented time of the COVID-19 pandemic. The webinar attracted a broad range of participants drawn from the legal, governance, finance and human resource sectors. The webinar was streamed live on Facebook and attracted a viewership of 1,800 participants. It was hosted and moderated by Helen Ambasa, the Director-Legal Services, and featured two esteemed facilitators, Mrs. Jackline Oyuyo Githinji the Managing Partner at Umsizi LLP and Mr. Raimond Molenje, Head of Legal, HR, and Industrial Relations at the Kenya Bankers Association.

Mrs. Githinji begun by giving a working definition of governance as the manner in which an entity utilizes the resources available to it to enable it to achieve its objectives (the resources ranging from intellectual, material, financial natural and human capital to name a few). She commended the Kenyan government for its quick response to the pandemic but emphasized that governance was not a preserve of huge corporations and that we all have an important role to play. Governance within organizations during this time consists of trying to achieve the delicate balance between life and in specific the good health of persons within the organization, and an individual’s ability to sustain oneself.

Leadership was at the forefront and acted as the lens-view within which the topic of governance was dissected by both panelists. Leaders within organizations bearing the responsibility of ensuring that any policies adopted are effectively communicated, taking into consideration the organization’s diverse target audience, and ensuring that each person within the organization understands their obligations.

Participants were informed that the Covid-19 pandemic, ministry regulations, current daily curfew as well as the cessation of movement laws have forced employers to review their policies on employees’ physical presence at the workplace or whether to shut down operations altogether. Mr. Molenje proposed that organizations could implement human resource measures such as the adoption of a hybrid system where employees take shifts between working from home and going into the office. This would also involve ensuring that the expectations of each employee working from home are well defined as well as ensuring that they have the necessary resources to enable them to achieve their given task.

Organizations that resume physical work would need to adopt return to work policies. This is because, the Occupational Health and Safety Act, 2007 (“OSHA”) provides that employers have an obligation to ensure the safety, health and welfare of their employees. This duty would mean that employers have a duty to protect their employees from the effects of the pandemic. The Occupational Safety and Health Advisory on Coronavirus (COVID 19) issued recommendations that employers are required to abide by, which include maintaining social distancing, offering alcohol-based sanitizers amongst others. Failure to abide by government directives and regulations could potentially lead to the organization being found liable. Further, the policies should highlight the steps that would be taken should an employee be suspected of or found to test positive for Covid-19. This is to ensure that such employees are not discriminated against once they resume work.

In answering a question from one of the participants regarding whether organizations would benefit from using redundancy as a means to terminate employment contracts, both facilitators as well as Ms. Ambasa emphasized that redundancy, as a legal principle, should be employed as a last resort. This is because an employer would be required to meet the requirements set out in Section 40 of the Employment Act, 2007 failure to which, employees whose contracts are terminated could institute suits for unfair termination of employment, notwithstanding that the termination of contracts can be linked to a decline in the organization’s financial standing as a result of Covid-19.

Subtle alternatives to redundancy that could be employed by organizations struggling to meet their financial obligations were also shared. These include negotiating with employees and thereafter implementing consensual temporary pay cuts in an aim to avoid terminating employment contracts altogether. Citing the Mediamax Limited case as an example, Mrs. Githinji noted that even though employees went to court protesting the non-consensual implementation of pay cuts and the court ruled in their favor, the same court went on to add that the organization was free to commence redundancy proceedings-the effect of which was that hundreds of employees would now be unemployed thereby resulting in what could be termed a pyrrhic victory. The facilitators reiterated the fact that employees, who for one reason or another, are unable to work from home could be asked to take advanced leave days. Any agreements entered into, however, should be well documented and should only last through the Covid-19 period.

In conclusion, as we carry out our day to day activities and redefine a new sense of normal, we would benefit from taking to heart some of the words of wisdom from the facilitators, in particular, Mrs. Githinji’s statements that “Nobody is an expert in this crisis”, “Communication must be tailored to fit the audience and in a manner that they understand”, “Leaders must be ready to communicate both good and bad news” and Mr. Molenje’s “you understand, it’s as a result of Coronavirus” as not being a justifiable excuse in a court of law should an employer take questionable measures during this time that could find them liable.

The next set of webinars are scheduled to be held on 30th July, 2020 and in August 2020.