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Introduction
Unlawful termination of employment, a form of unfair labor practice that is prohibited under Kenyan labor laws. It occurs when an employer terminates the contract of an employee unfairly and fails to provide reasons for the termination, while also failing to provide adequate notice before the termination.
Employees who experience such conduct have the legal right to seek redress through the courts. Employers are required to adhere to proper procedures and provide a valid reason when terminating employment. The Kenyan legal framework on employment and labour relations is designed to uphold ethical workplace standards and protect the rights of workers.
The Employment Act 2007 emphasizes that both the reason for termination and the process used must be fair and just. If an employer terminates an employee without a valid reason or fails to follow the correct procedures, it constitutes an unfair labor practice.
Courts have established that employees who are terminated without a fair hearing are entitled to compensation for unfair dismissal. For a termination to be considered fair, it must meet the criteria of substantive justification, that is having a valid reason for the dismissal and procedural fairness which following the correct procedures.
The Legal Framework on Unlawful termination of employment
The Kenyan Constitution, under Article 41, guarantees the right to fair labor practices, which includes the right to ethical treatment in the workplace, such as fair hiring procedures.
The Employment Act of 2007 further provides the fundamental terms and conditions of employment, as well as the proper procedures for termination. According to Section 44 of the Act, an employer can only terminate an employment contract for a justifiable reason and must follow the procedures outlined in the Act. Unfair labor practices, including wrongful termination, are prohibited.
Section 5 of the Employment Act defines unfair labor practices as any actions by an employer that harm an employee’s employment, such as termination without valid justification.
Section 45 of the Act specifies that a termination is considered unfair if the employer cannot prove that the reason for termination is valid and fair, whether related to the employee’s conduct, capacity, compatibility, or the operational requirements of the employer. Additionally, the termination must be carried out in accordance with fair procedures. Employees who have been continuously employed for at least thirteen months before termination have the right to challenge an unfair dismissal. Employers are required to provide a notice of termination, or alternatively, a payment may be given, with the length of notice or payment determined by the employee’s tenure.
Section 43 of the Act places the responsibility on employers to prove the fairness of a termination. If they fail to do so, the termination is deemed unfair. The Act allows for summary dismissal of an employee under specific conditions, including gross misconduct, poor performance, the employer’s operational needs, or a breach of fundamental terms of the employment contract.
Any termination notice must be provided in writing, and it must be received and acknowledged by the employee.For a termination to be considered fair, the employer must demonstrate that the reason for the termination is valid and fair, whether it relates to the employee’s conduct, capacity, compatibility, or the employer’s operational requirements.
The Act also mandates that employers explain the reasons for considering termination in a language the employee understands. The notice period for termination depends on the nature and terms of the employment contract.
How unlawful termination of employment can occur
Unlawful termination can occur in several ways. These include
- Failing to follow due process, such as not conducting disciplinary hearings or allowing the employee to present their case, this can result in claims of unfair dismissal or termination of employment.
- Creating a hostile work environment, effectively forcing the employee to resign
- Retaliation, such as firing an employee for whistle blowing, participating in a legal strike, or exercising their rights.
- Discrimination-based termination, such as on the grounds of gender, race, or religion, which is prohibited under Kenyan law.
If an employee is summarily dismissed or unlawfully terminated without justification, they can file a complaint with a labor officer within three months of the dismissal. The labor officer will then provide both parties the opportunity to present their cases and recommend a resolution in accordance with the law.
Conclusion
The Employment Act outlines the requirements for dismissing an employee, emphasizing that an employer must provide the reasons for dismissal and give the employee an opportunity to defend themselves before termination. T
his shows the necessity of following due process in any dismissal. It is crucial in guiding the dismissal process in Kenya. Employers need to familiarize themselves with relevant laws and case precedents to avoid legal complications, and ensure that fair procedures are consistently applied when terminating employees.
I The opinion expressed here in is purely that of the author. For further inquiries please contact our office on 0742028500
