Losing a job is a hard thing, especially at such times of economic uncertainty. Losing a job disrupts your life and of those who depend on you. It creates financial instability halting your progress in life. It can also take a toll on your mental health, and if not well handled it may lead to severe depression. While we all agree that employers reserve the right to terminate employment, in many cases it is not done within the confines of the law. 

Unlawful termination remains a major issue in Kenya for two reasons: 

• Many employers are unaware of the labour laws and believe they have the power to terminate employees at their volition
• Many employees are unaware of their rights according to the labour laws and do not know how to pursue legal action

The purpose of this article is not to escalate the conflict between employers and employees, but rather to educate Kenyans on unlawful termination by understanding what it is, what the law says about it, common examples of it, and most importantly how to pursue legal action for illegal termination or how to avoid it. Whether you’re an employee looking to protect your rights or an employer keen on understanding your obligations, this comprehensive article will enlighten you on what the law says about fair termination practices in Kenya.

Employee and Employer Rights Under Kenyan Law

Understanding the rights of both employees and employers is essential in ensuring a balanced and fair work environment. Multiple studies show that employees are more productive and best suited to meet their revenue targets for a business when working in a healthy work environment. The knowledge of these rights also helps employees to protect themselves against unfair dismissal while also ensuring employers comply with the law, to avoid costly legal battles. When both parties understand their roles and responsibilities, it fosters mutual respect, improves workplace morale, and promotes harmony.

These rights are contained in the Employment Act, 2007, which sets out the framework for employment contracts, termination procedures, employee rights, and employer responsibilities. The goal is to balance the interests of employers and employees, creating a safe and equitable work environment.

Brief Overview of the Employment Act

The Employment Act, 2007 is a central law in Kenya governing employment relationships. It sets the standards for employee welfare, working conditions, and dispute resolution. The Act covers various aspects of employment, such as:

• Employment Contracts: The Act mandates written contracts for all employees, detailing terms of employment, remuneration, and duties.
• Termination Procedures: The law outlines the justifiable reasons and processes for dismissal, ensuring fairness and transparency.
• Employee Rights: It covers the rights of employees to safe working conditions, freedom from discrimination, and the right to join trade unions.
• Dispute Resolution: The Act provides avenues for resolving employment disputes, including the role of the Industrial Court and the Employment and Labor Relations Court.

 

What Constitutes Unlawful Termination?

Unlawful termination, simply defined is the act of dismissing an employee without fair reasons or in a way that violates their rights according to Kenyan labor laws. The Employment Act, 2007, as you have read above is specific on the ways an employer can legally terminate an employee. Failing to follow these procedures for any reason renders the dismissal unlawful.

Here are the grounds for unlawful dismissal by the law:

Discrimination: Discriminating against an employee based on race, sex, religion, disability, pregnancy, or other protected categories.

Retaliation: If an employee is dismissed for filing a complaint (e.g. reporting unsafe work environment), whistleblowing (e.g. on corrupt practices), or participating in union activities. Dismissal for any of these constitutes retaliation, which is unlawful.

Unfair Labor Practices: This includes all practices that violate employee rights such as not adhering to required procedures like providing adequate notice before termination or denying severance pay.

Failure to Follow Proper Procedures: An employer is required to follow the procedure of termination laid out in your work contract (always ensure you have an employment contract). If this procedure is not followed then the employer may face a lawsuit. 

Common Examples of Scenarios That Might Qualify as Unlawful Dismissal

Dismissal for Seeking Medical Leave i.e. Terminating an employee after requesting sick leave or providing medical documentation for illness. 

Termination Based on Union Membership i.e. Firing an employee for being a member of a union or participating in union activities. 

Summary Dismissal Without Proper Investigation i.e. Firing an employee summarily (i.e. without notice), and without conducting a fair hearing or investigation. Especially for cases involving misconduct, there should be a proper investigation, and the employee afforded a chance to explain themselves.

Legal Requirements for a Valid Termination

As you have noted by now, there are specific requirements for both the reason and the procedure that must be followed to ensure a termination is legally valid. Let us now explore three legal grounds for termination, procedural fairness, and circumstances under which summary dismissal (firing without notice) is justified.

For a termination to be legally valid, the employer must have a valid reason, which can fall into three broad categories:

Performance
Employees can be terminated for poor performance, but this must be substantiated with evidence. This means that before dismissing an employee for poor performance, employers must demonstrate that:

1. The employee was aware of the performance standards.
2. They were given reasonable opportunities to improve.
3. The performance was consistently below expectations over a period.

Conduct
Misconduct is another valid ground for termination but it must be serious and proven before an employer can terminate employment. Misconduct can include actions such as theft, fraud, insubordination, or any behavior that violates the terms of the employment contract. The employer should:

1. Investigate the allegations thoroughly.
2. Allow the employee to respond to the allegations.
3. Follow disciplinary procedures laid out in the employment contract or company policy.

Redundancy
Redundancy occurs when an employer no longer requires the services of an employee, for example, due to the closure of a business or branch, technological advances, or restructuring. For redundancy to be legal: 

1. The employer must demonstrate the business need for redundancy.
2. A fair selection process must be followed, considering factors like seniority, skill, and performance.
3. A severance package and due notice must be provided to the employee.

 

Understanding Summary Dismissal and When It’s Justified

Summary dismissal simply refers to the immediate termination of an employee without notice or payment in place of notice. This form of termination is only permitted under specific, serious circumstances, such as:

Gross Misconduct – Summary dismissal is justified if the employee is guilty of gross misconduct, such as theft, violence, fraud, or other serious breaches of the employment contract like stealing company property, engaging in violence or threatening behavior at the workplace, breaching confidentiality agreement etc.

Failure to Perform Essential Duties – If an employee fails to perform essential job duties that directly harm the business or workplace environment.

Immediate Risk to the Workplace – If the employee’s continued presence poses an immediate risk to the safety, health, or reputation of the business.

What to do if you experience Unlawful Termination

After reading this far then you can judge if your case constitutes unlawful employment. In this section, we shall discuss various legal avenues to seek justice. There are two ways an employee can challenge unlawful termination. One is by reporting the issue to the labor officer, and the other is by filing claims in the Employment and Labour Relations Court. Let us discuss these in more detail. 

1. Reporting to the Labor Officer

The first step to take when you believe you were unfairly dismissed is to report the matter to the Labor Officer, who operates under the Ministry of Labour and Social Protection.

The Process:

• Formal Complaint: The employee must file a formal complaint detailing the circumstances surrounding the termination. This must be done within three months of termination and should include the reason for termination, whether the correct procedures were followed, and any evidence supporting the claim of unlawful dismissal.
• Investigation: Once a complaint is filed, the labor officer will investigate the matter. They may summon both you and the employer to provide further details and attempt to resolve the issue.
• Mediation: The Labor Officer may attempt to mediate between you and the employee to reach an amicable resolution. However, if the issue remains unresolved, you may need to escalate the case to the Employment and Labour Relations Court for formal legal proceedings.

2. Filing Claims in the Employment and Labour Relations Court

This is the court with specialized jurisdiction to handle employment-related matters, including disputes over wrongful dismissal. While it is not mandatory, it is highly recommended that the employee seek legal representation to navigate the legal process effectively. A lawyer specializing in employment law can help gather evidence, present the case in court, and advocate for the employee’s rights.

Benefits of Winning an Unlawful Termination Suit

When the court finds that you were unlawfully dismissed, it may grant one or more of the following:

Compensation
The court may order the employer to pay you a sum of money, which can include:

• Compensation for lost wages from the date of termination until the date of judgment.
• Compensation for any benefits you would have received had you not been terminated e.g. bonuses, pensions, or allowances.
• In some cases, the court may award additional damages for the emotional, financial, and psychological impact caused by the unlawful termination.

Reinstatement
This refers to you getting your job back and applies if the court determines you can still effectively perform the job. It is important to note that this may not always be practical, especially in cases where the working relationship has been damaged beyond repair.

Re-engagement
Re-engagement is different from reinstatement as you may be offered a different position within the company. This applies when reinstatement is not possible, but the employee is still entitled to continue working within the company. This may happen when:

• The original position no longer exists or has been filled.
• The employer recognizes the employee’s rights but is unable to offer their previous position.
• The relationship between the employee and employer can only be salvaged through a different role.

 

How Employers Can Avoid Unlawful Termination Suits

Employers have a critical role in ensuring that the termination process is carried out in accordance with the law to avoid lawsuits and legal complications. By following best practices, employers can protect their organizations from the risk of unlawful termination claims, maintain a fair work environment, and uphold good relations with their employees. 

Below are essential guidelines for employers to avoid unlawful termination suits: 

1. Document and maintain transparency in every step of the employee management process. For example, you can ensure you keep detailed and accurate records of performance reviews, Disciplinary Actions, and termination notices. This will help demonstrate that decisions were made based on valid reasons and fairness. 

2. Ensuring compliance with labor laws particularly the Employment Act, 2007. Understanding the legal rights of employees and the processes required for lawful termination is crucial in preventing legal challenges. This includes recommended Notice Periods before termination, Valid Grounds for Termination, and the Statutory Benefits implied when terminating employment. 

3. Conduct fair hearings and engage legal advisors for guidance before dismissing an employee. This ensures that employees are not arbitrarily dismissed before presenting their side of the story which can attract a lawsuit. Ensure you provide notice in writing stating the allegations, allow them representation (either from a colleague, lawyer, or union representative), and keenly document the proceedings.

4. Create a healthy work environment that promotes fairness, transparency, and mutual respect. With an open and supportive workplace culture, you can prevent the need for dismissals, and even in cases where dismissal is unavoidable, you can carry it out ethically and lawfully.

This means…

• Encouraging employee engagement where they can freely raise concerns and provide feedback.
• Having training programs on acceptable conduct, job expectations, new skills acquisition, and company policies. 
• Ensure you establish fair dispute resolution mechanisms to address conflicts before they escalate.

Kindly note: This article is primarily for general use. For any specific legal matter, seek the legal guidance of an advocate. If you have any questions or concerns on unlawful termination, please shoot us an email at consult@mahida-maina.com for a prompt response. 

Thank you for taking the time to read to the end.