The relationship between an employer and an employee is governed by the Employment Act (Cap. 226), a legal framework that sets out workers’ fundamental rights and protects against unfair termination.
Under the Employment Act, unfair termination of an employee involves an employer ending a contract of service without a valid reason or failing to follow a fair procedure.
Under Section 45 of the Act, the reason must specifically relate to the employee’s conduct, capacity, or compatibility.
Additionally, the termination may be based on the operational requirements of the employer’s business.
“In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair,” the Employment Act states.
However, the Act states that the termination is still unlawful if the employer fails to prove that the process was conducted in accordance with fair procedure, even if the reason is in accordance with the termination grounds.
Unfair Termination Grounds
Employers should not terminate an employment contract on the grounds of an employee’s pregnancy or any reason connected to it.
An employee taking or proposing to take statutory leave, such as annual, maternity, or sick leave, is not a reasonable ground for an employer to end a contract under the Act.
Additionally, the Act states that terminating an employment contract because an employee participates in union activities outside working hours or seeks office as a workers’ representative is unlawful.
Discrimination based on race, color, tribe, sex, religion, political opinion, nationality, social origin, marital status, HIV status, or disability cannot be a reason for dismissal.
Employees have the right to participate in a lawful strike without risking untimely dismissal, as the Act protects them.
Fair Dismissal Procedure
Procedural fairness is a mandatory requirement before an employer can terminate an employee on grounds of misconduct, poor performance, or physical incapacity.
An employer must explain to the employee the reason for the potential termination in a language the employee understands before making the decision.
The employee has a statutory right to have representation present during this explanation, which can be another employee or a union representative.
As in the Employment Act, an employer is expected to hear and consider any representation made by the employee before proceeding with the dismissal.
Failure by the employer to follow the steps in the dismissal process renders the termination procedurally unfair, regardless of the cause of termination.
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Summary Dismissal
An employer has the right to terminate a contract without the required notice period when an employee has breached their obligations under the contract of service.
“An employer may dismiss an employee summarily when the employee has, by his conduct, indicated that he has fundamentally breached his obligations arising under the contract of service,” the Act dictates.
Reasons for Summary Dismissal
- Unlawful absence from work.
- Intoxication during working hours.
- Willful neglect or careless performance of duties.
- Use of abusive or insulting language toward the employer or a supervisor.
- Refusal to obey a lawful and proper command.
- Arrest for a cognizable offence punishable by imprisonment, if not released within 14 days.
- Committing or being suspected of a criminal offence to the detriment of the employer’s property.
In the case of a contract termination due to employee redundancy, the employer complies with the conditions set out in section 40 of the Employment Act.
The conditions include notifying the relevant trade union and the labour officer at least one month in advance.
Additionally, the employer is required to pay any accrued leave in cash and provide severance pay at a rate of at least 15 days for every year of service.
What to do when Unlawfully Terminated
Employees who have been wrongfully terminated from work have the right to file a complaint with the National Labour Board (NLB) within three months of dismissal.
If the labour officer finds the dismissal unjustified, they may recommend Payment of wages which the employee would have earned had the employee been given the period of notice.
Labour officers may also demand compensation for the loss, which may be up to 12 months’ gross wages in accordance with the Kenyan Law.
Employees who were terminated wrongly might also be reinstated to continue working up to the time of their contract expiry.
While the employee bears the initial burden of proving that a dismissal occurred, the burden of justifying the grounds for that termination rests on the employer.
In addition, any civil action arising from the Employment Act must commence within three years of the event.
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