In Kenya, the Employment Act is the legal instrument that guides the rights and conditions of employment. Many people are losing their jobs. However, laws protect workers’ rights. These rules ensure fair treatment during termination and dismissal.
Due to tough times, employers may need to take measures, such as contract termination. But, the law requires that they must ensure the process is fair to employees’ rights.
Under the law, unfair termination is when an employer fires without following the legal procedure outlined in Kenyan Laws. The law provides a way for an employer to end a contract. It is as follows:
- Resignation– where an employee voluntarily agrees to end their contract and notify the employer.
- Termination by agreement– this involves a termination of an employment contract through a mutual agreement.
- Redundancy– this occurs when an employer terminates an employment contract because the services of the employee are no longer required
Table of Contents
Notice period
Employers are required to issue termination notice or pay in lieu of notice. The contract may specify the notice period. If not, the law provides it. For daily wages, the notice is by end of day. For monthly wages, it’s a month, which is twenty-eight days.
Procedure for termination
Employers are expected to follow due process when terminating an employment contract. The notice is important as it offers the employee an opportunity to be heard on whatever ground or reasons given in the notice.
Grounds resulting in unfair termination in Kenya
- Pregnancy or asking for a maternity leave
- Joining a trade union
- Employees participating in a lawful strike
- Employee’s participation in trade union activities
- Taking the required leave days
- Taking legal proceedings or filing a legal complaint against your employer
- Employers fail to follow the legal process before firing an employee.
However, there are cases where good reasons can justify an employer firing someone. These reasons include:
- Breach of contract
- Intoxication or Drunkenness at work
- Being absent without leave
- Getting arrested or being imprisoned for more than 14 days
- Gross misconduct e.g, being abusive, harassing colleagues at work and insubordination
- Poor performance
Legal Process of Unfair Termination in Kenya:
An employee must file a formal complaint in the local labour office. They must do this three months after the unfair dismissal. The labour office issues a notice to be served upon the employer with the allegation presented by the employee with a view to handling the dispute. If the matter is not resolved by the labour office, the aggrieved party can then move to court.
When the court is determining whether an employee was unfairly terminated, the procedure adopted in effecting the termination is paramount. The law places the burden on the employer to provide reasons for the termination. The court interrogates the validity and justifiability of the reasons used to effect the termination. The law on procedure requires the employer to serve a notice upon the employee before an action of termination on account of misconduct, poor performance or physical incapacity. The purpose of the law is to allow the employee to be heard whenever an employer is contemplating termination. When the court finds that the employer felt short of the legal requirement, it will conclude that the procedure leading to the termination was unfair.
Remedies an employee can be granted due to unfair termination
When an employee is found to have been unfairly dismissed or the procedure leading to the termination was procedurally unfair, the court guided under Employment Act Section 49 can provide the following reliefs;
- An order of reinstatement- this directs the employer to take back the employee as though the employment had not been terminated.
- An order of re-employment- this orders the employer to re-engage the employee with reasonable work at the same wage.
- An order of compensation- the employer may be directed to pay the employee for the loss occasion as a result of the unfair action taken. These include the wages the employee would have earned had the employee not been terminated. The court can also compensation in the form of severance pay which is an amount paid by the employer for the unfair termination and usually depends on the length of service and salary of the employee.
Redundancy
Redundancy is when an employee’s employment contract is terminated since the employer no longer requires the employee’s services.
Before an employer can terminate an employee contract, they must follow a legal procedure.
1. Employees involvement of a union
Suppose an employee is a member of a trade union and has been dismissed or terminated on account of redundancy. In that case, an employer is mandated to notify the union of the intended redundancy within a month before the date of the intended termination.
2. Approval of state authorities
An employer must notify the National Employment Authority of a dismissal within two weeks if there was no pre-approved approval for it.
3. Collective redundancies
For collective redundancies, the law outlines these requirements for employers:
(i) Notification of the intended termination to be issued to the affected persons, county labour officer, and the union. An employee must issue a one-month notice to the affected employees, the county labour officer, and the union. It must clearly outline: the reasons for termination, the extent of redundancy, and the selection criteria used.
(ii) Selection of the employees to be terminated- there are factors to be considered by the employer while selecting the employees to render redundant for example; the employee’s skills, seniority of the employee and the reliability of the employee.
(iii) Consultations- the employer then consults the employee about the termination and also engages the employee’s union for consultation. The employer can also consider any other work positions available for the affected employees without terminating them.
After consultation, the employer does the following;
a) Issues final termination notice to the affected employees
b) In lieu of notice, pay the employee one month’s wages.
c) Payment of terminal due
Summary Dismissal
This occurs when an employment contract is terminated without requisite notice. However, it’s important to note that the employee is granted the right to always petition the dismissal if they feel it is unlawful. This empowers the employee to seek justice if they believe their rights have been violated.
On occasions where summary dismissal occurs, the employee may present a complaint to the labour officer and institute a claim in the employment and labour courts.
If the courts find the dismissal to be unlawful, they grant the following remedies:
i. Wages the employee could have earned if they had been issued a notice period.
ii. The wages an employee is entitled to for the period they would have worked before getting dismissed.
iii. Costs for the loss suffered between the date of dismissal and the date of expiry of the notice period.
iv. Reinstatement of the employee with benefits as if the employee had not been dismissed.
v. Reengagement in work to which the employee used to do and is entitled to the same salary.
Severance pay
The employer must pay the affected employee his severance. It’s 15 days’ pay for each year of service, plus all other dues.
Non -competition clauses
Courts have enforced non-competition clauses and awarded damages to employers if an employee breached a non-compete clause in their employment contract.
Both employer and employee need to understand the rights and responsibilities under the employment laws in Kenya. This will help in understanding the legal consequences in case of any action or inaction by either party. Both employer and employee must maintain proper records of the employment contract, their performance contracts, disciplinary records, or any other relevant employment-related document in case a dispute arises.
This is general information and should not be substituted as legal advice. We advise you to get a lawyer. They can give you more legal guidance on employment laws. Feel free to contact us at Chepchieng & Company Advocates via WhatsApp at +254718724409 or email us at info@chepchiengassociates.co.ke ; chepcheingassociates@gmail.com for more info check out Our Website
