Even before the wounds of the 100-day doctors’ strike heal, literally and figuratively, another conflict looms.
The bone of contention is whether or not the doctors should be paid for the more than three months that they were on strike.
While the government contends that the doctors do not deserve to be paid for services they did not provide, the doctors hold that failure to pay them amounts to victimisation, contrary to Clause 3 of the return-to-work formula they signed to call off the industrial action.
A cursory glance at the law shows that the doctors may not have a strong legal argument, however.
Labour laws provide that an employer is not obliged to pay an employee if they did not work during a protected strike or lock-out.
The law also says that workers who participate in illegal strikes are not entitled to payment or any other benefit during the strike period.
The Labour court was consistent that the just-concluded doctors’ strike was unlawful.
The upshot is that, whether a legal or illegal strike, the employer is under no obligation to pay for that period.
It is evident that the doctors’ representatives at the negotiating table dropped the ball for failure to ensure payment of salaries for the strike period was an express term in the return-to-work formula.
From a legal standpoint, attempting to equate failure to pay (which is allowed by the law) with victimisation is, at best, a long shot.
Trade unions in some jurisdictions with similar ‘no work, no pay’ laws have established strike funds, where unions provide strike pay to their members for the period they are on strike. But this is yet to happen in Kenya.
The doctors also appear to be on the receiving end strategically and morally in their demand.
Having used their trump card — a prolonged strike — they may not enjoy sufficient public support and goodwill should they attempt to return to the streets over the disputed salaries.
It would also appear morally reprehensible to taxpayers that they pay for services they did not receive as it is tantamount to reaping where they did not sow.
The doctors are between a rock and a hard place.
Their conundrum, however, exposes the need for law reform. By providing the option not to pay striking employees, the law presents difficult options for workers: retain salaries under oppressive working conditions or exercise a constitutional right on empty pockets.
No worker should have to choose between the two in a progressive society such as ours.
Edward Kahuthia, Nairobi.
* * *
The decision by the government not to pay doctors for the days they were on strike calls for caution. It should pay them to avoid paralysing the health services again.
It is barely two weeks since Kenyans were relieved from suffering for lack of health services for the last three months.