Under the Employment Act an employer may summarily dismiss an employee for the following reasons:
- Gross misconduct
- Poor performance
- Employers’ operational requirements
- Breach of fundamental terms of an employment contract
However, the dismissal can be challenged by the employee thus the Act is very specific that the employer must ensure that the dismissal was both substantively and procedurally proper. The employer is also under obligation to hear and consider any representations which the employee may make before taking the decision to terminate the employee.
During the process the employee is entitled to have a fellow employee present and if the employee is a union member, then a union representative can be present. The termination notice shall be in writing and such notice must be received and acknowledged by the employee. The notice period before termination and/or dismissal depends on the nature and the terms of the employment contract.
However, in the absence of express provisions on the notice period the Employment Act provides that:
- Where the employee is employed on a daily wage contract, the contract is terminable by either party at the close of any day without prior notice;
- Where the employee is employed on a weekly or two-week basis the notice period shall be one or two weeks respectively or payment of an equivalent in lieu of notice;
- Where the contract is to pay wages or salary on a monthly basis the notice period shall be 28 days in writing or payment of the equivalent of monthly’s salary in lieu of notice.
- For the termination of probationary contract, either party may terminate the contract by giving not less than seven days notice or payment of equivalent of seven days pay in lieu of notice.
In cases where the there is termination on account of redundancy and the affected employee/s are members of a union, the employer will be required to notify the union of the intended redundancy not less than a month prior to the date of the intended termination on account of redundancy.
This period of one month is intended for the person receiving the notice to confirm that the preconditions of redundancy have been complied with. These preconditions include the communication of reason for, and extent of, the redundancy, and the selection criteria. At this stage, the employer has not selected the specific employees who are likely to be made redundant. This period is necessary for any disputes over issues to be settled before the redundancy is affected.
The labour laws in Kenya make provision for declaration of redundancies in general without differentiating between individual or collective redundancies. The Law provides for the substantive and procedural legal requirements to be met by an employer before terminating an employee on account of redundancy:
Summary dismissals
An employee is summarily dismissed when the contract of employment is terminated without the requisite notice as per the terms of the contract or statutory provision as a result of a fundamental breach of contractual terms
Summary dismissal can only be lawful and justifiable if the conduct resulting in dismissal falls within the Act’s definition of Gross misconduct. However, the employee is allowed to challenge and dispute the facts and reasons provided by the employer for the dismissal, as well as challenge the legality of the decision.
Conclusion
Therefore, the termination of an employee has to be both substantively and procedurally fair failure to which such termination will be considered as unlawful and unfair termination.
In cases where the employee has been dismissed without just cause the employee may present a complaint to the labour officer or institute a claim in the industrial courts and should a determination be made whether by the labour office or a court of law that the dismissal was unjustified the following remedies are available under the law:
Before termination of an employee’s contract on account of redundancy, the employer is required to pay the affected employee his severance pay which is calculated at fifteen (15) days’ pay for each completed year of service, in addition to all other terminal dues.
Authors:
Ms. Faith Gituma, a Legal Assistant/Trainee with the Firm and Mr. SM Kotonya, Partner and Head of the Litigation/Dispute Resolution Department.
This note does not constitute legal advice neither is it a Legal Opinion. For more information or any further queries on termination of employment or labor matters, email us on info@kn-partners.com or telephone us on +254 20 2000431/+254717554430