Fair termination in Kenya: what an employer must do and what an employee can claim

Dismissal disputes are among the most common in the Employment and Labour Relations Court. They usually turn on two questions: why was the employee dismissed, and how?

A valid reason

Under the Employment Act, 2007, the employer must prove the reason for termination (section 43), and that the reason was valid and fair (section 45).

A reason is valid if the employer genuinely believed it existed at the time of dismissal. Common reasons include misconduct, poor performance, redundancy and the employee's incapacity.

A fair procedure

Even a valid reason is not enough if the process was unfair. Section 41 sets out what the employer must do before it dismisses or imposes a summary termination for misconduct, poor performance or physical incapacity:

1. Explain the reason to the employee, in a language the employee understands.
2. Allow the employee to have another employee or a shop floor union representative present when the reason is explained.
3. Hear and consider any representations the employee makes, and any made by the person chosen to accompany them.

Section 35 separately deals with notice. An employer who terminates a contract must give the notice the contract or the Act requires, or pay in lieu where the law allows it.

What the employee can claim

Where a termination is unfair, section 49 allows the court to award remedies that include:

• The wages the employee should have received for the notice period.
• Compensation, up to the equivalent of twelve months of the employee's gross salary.
• Reinstatement or re-engagement, in an appropriate case.

Advice for employers

• Document the reason, and the evidence for it.
• Invite the employee in writing, with enough time to prepare.
• Hold the hearing and keep minutes.
• Decide on proportionality: does the penalty fit the offence?

Advice for employees

Keep your contract, your letters and your payslips. Note the dates of every step. The time limits for a claim are short, so seek advice early.

This article is a general summary of the Employment Act, 2007. Read the current provisions and recent decisions of the Employment and Labour Relations Court before you rely on it.

Cover photo by Amina Atar on Unsplash.