On what grounds can a contract of employment be terminated?An employment contract, as stipulated under the Employment Act, can be terminated in two ways.
Termination of employment by the employee/resignation: An employer can give the employee a notice of intention to terminate the contract.
Termination of employment by an employer: An employee can give the notice to terminate their contract or resign.
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Termination of employment through agreement: A contract can be terminated through an agreement between the employer and the employee This may be in case of terminating a contract of apprenticeship, where the period of training expires then the contract will obviously come to an end.
Automatic termination: A contract can be terminated automatically in circumstances such as death or loss of business for the employer.
What can make an employer terminate me?
Section 45 (2) and section 46, states that an employer cannot fire someone because they don’t like them. In any form of termination, the employer is required to prove the reasons for the termination, otherwise, it will be termed as unfair (section 45 (2)).
The law provides for the following grounds as justifiable termination of employment by an employer;
•Misconduct (Employment Act, section 44 (3))
•Poor performance
•Physical incapacity (Employment Act, section 41(1))
•Employer’s operational requirements/retrenchment
•Participation in an illegal strike
For an employer to terminate an employee he/she should have a genuine reason as specified in section 45 (2) and section 46. An employee cannot be fired because an employer does not like them – unless the grounds for this dislike are based on the above-mentioned factors.
Can I terminate an employee who is facing a criminal charge before a court of law?
One cannnot terminate or take disciplinary action against an employee who is facing the same charges before a court of law unless the two charges are different or do not arise in the same cause of action.
How should the notice of termination be served?
A termination notice shall be done in writing. In case the employee does not understand the notice, the employer is responsible for ensuring that the notice is explained orally to the worker in a language that he/she understands (section 35 (2) (3).
The same applies when the employee is giving notice; it must be done in writing and according to the agreed terms of the employment contract.
According to the Kenyan employment act, the acceptable notice periods are as follows;
•If the employee is employed on a daily wage contract, the termination notice is given at the close of any day without notice.
•If the employee is employed on a weekly pay or two-week basis, the notice period shall be one week or two weeks respectively, given in writing or payment of one week’s salary in lieu of notice.
•If the employee is employed on a monthly basis the notice period shall be 28 days and in writing or payment of one month’s salary in lieu of notice.
•In the case where a contract of employment provides that the notice of termination be given for a greater period than one month, then there will be an agreement in writing between employer and employee for a longer notice and the agreed notice period shall be of equal duration for both employer and the employee (section 35 (2)).
Can an employer fire me without giving me a notice?
An employer can fire an employee without notice. The Kenya Labor laws allow this. According to section 36 and 38, an employer is required to pay you a sum equal to the salary which you would have accrued during the notice period. This is what is usually referred to as payment in lieu of notice.
The reverse is equally applicable, where you as an employee resigns and does not give proper notice, you will be required to compensate your employer for the notice period you would have served.
What happens if my contract is terminated and I have pending leave days?
Don’t worry, your leave days will not be lost. According to section 40 (1) (e), if an employee has accrued leave days upon termination, the employer shall pay you on a pro rata basis an amount in cash for the leave days you are entitled.
What amounts to an unfair termination of employment?
In order for termination to be fair in the eyes of the law, it has to be both substantively and procedurally fair. Failure of an employer to follow the due procedure on termination, that amounts to unfair termination.
An employer is expected to provide the reasons for the termination, otherwise, it will be termed unfair according to section 45 (2). The law demands that an employee is given an opportunity to be heard before a termination decision is taken against them as provided in section 41 (2).
Failure to follow the procedure will amount to a summary dismissal, meaning an employee is terminated without being availed of an opportunity to defend herself/himself before a fair disciplinary committee. In the Kenya labor laws, as provided by the Employment Act, summary dismissal amounts to an unfair termination with consequences. This is specified in section 47 and 49 (1) ; (3).
Is a certificate of service and notice mandatory even when terminated on misconduct?
Yes. Both are mandatory regardless of the reason for termination, unless the period of service of employee to employer has lasted less than four weeks (section 51).
What are the likely consequences of unfair termination for an employer?
If the labor officer makes the decision that the summary dismissal or the termination of contract of an employee is unjustified, he may recommend to the employer to pay the employee any or all of the following:
The wages which the employee would have earned had the employee been given the period of notice to which he was entitled under this Act or his contract of service.
Where dismissal terminates the contract before the completion of any service upon which the employee’s wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph (a) which the employee would have been entitled to by virtue of the contract.
The equivalent of a number of months’ wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.
Alternatively, the employer may have to reinstate the employee and treat the employee in all respects as if the employee’s employment had not been terminated; or
Re-engage the employee in work comparable to that in which the employee was employed prior to his/her dismissal, or other reasonably suitable work, at the same wage.
Summary dismissalSummary dismissal occurs when an employer terminates the employment of an employee without notice or with less notice that the one the employee is entitled to. A person who is summarily dismissed is not entitled to any benefits unless he or she proceeds to go to court. The court will then decide whether he or she was unfairly dismissed and grant him or her requisite entitlements. However, it should be noted that there is no provision for any entitlements to a person summarily dismissed, unless you have evidence otherwise.
A person who is summarily dismissed is not entitled to any benefits unless he or she proceeds to go to court. The court will then decide whether he or she was unfairly dismissed and grant him or her requisite entitlements. However, it should be noted that there is no provision for any entitlements to a person summarily dismissed, unless you have evidence otherwise.
