Unfair termination is a serious issue in Kenya. Many employees face sudden job loss without proper reasons or dismissal without following the right legal procedures.

In this article, we’ll break down what unfair termination means, the rights of employees, and the steps to take if you’re a victim. We aim to help you understand unfair dismissal so you can protect yourself or know what recourse you might have if your legal rights are not respected.

What is Unfair Termination?

Unfair termination occurs when an employer dismisses an employee without a fair reason or fails to follow the proper legal process. According to the Employment Act, employers must justify any termination and treat their employees with fairness.

If an employer is found to have been biased during the termination of an employee, the dismissal is termed unfair, and the employee is entitled to legal remedies.

Unfair termination differs from constructive dismissal in that the former is performed by the employer when they terminate the employer-employee relation for no cause or unfairly, while the latter is performed by the employee who resigns from a job as they have been left with no other choice.

Legal Grounds for Termination

To terminate an employee fairly, an employer must provide a valid reason related to:

• The employee’s conduct,
• The employee’s capacity to do the job,
• The employer’s operational needs.

Without one of these reasons, termination may be classified as unfair. For example, firing an employee because of personal differences unrelated to their work performance is not legally acceptable.

The Fair Process of Termination

Even with a valid reason, an employer must follow a fair process. This includes:

1. Notice: Giving the employee notice or paying them in lieu of notice.
2. Hearing: Offering the employee an opportunity to be heard before the dismissal decision is made.

Failure to meet these requirements makes the dismissal unfair.

Employee Rights in Unfair Termination

Employees in Kenya have specific rights when they face unfair dismissal. The Employment Act provides clear guidelines on how an employee can seek justice. Here are the key rights:

1. Right to Notice or Compensation: If an employer terminates without notice, they must pay the employee for the notice period. The length of notice depends on the contract but cannot be less than seven days for those paid daily or monthly.
2. Right to be Heard: Before dismissing an employee, the employer must inform the employee of the reasons and allow them to respond. This ensures that the termination is not based on misunderstandings or unfair assumptions.
3. Right to Compensation: In cases of unfair termination, an employee can claim compensation through the Industrial Court. Section 49 of the Employment Act allows the court to award up to 12 months’ salary as compensation for unfair termination.

What to Do if You Are Unfairly Terminated

If you believe your dismissal was unfair, there are several steps you can take to protect your rights:

1. Request the Reason in Writing: Ask your employer to provide the reason for your termination in writing. The law requires them to do so within two weeks.
2. File a Complaint with the Labour Office: If your employer refuses to follow the correct procedures, file a complaint at your local Labour Office. They will guide you through the next steps.
3. Seek Legal Redress: You can pursue a case in the Employment and Labour Relations Court. The court can order reinstatement, compensation, or other remedies.

Common Defenses Employers Use

Employers may attempt to justify dismissals even when they’re unfair. These are some of the common defences they might use:

• Gross Misconduct: Employers sometimes claim the employee was guilty of gross misconduct, such as theft or insubordination. However, they must provide clear evidence, and the employee must be given a chance to defend themselves.
• Redundancy: Employers may cite redundancy, claiming that a job role is no longer needed. In such cases, they must follow strict redundancy procedures, including consulting employees and paying severance.
• Poor Performance: Employers might claim the employee was not performing well. They are required to give warnings, provide training, and offer support before dismissing someone on these grounds.

Case Law Example: Walter Ogal Anuro v Teachers Service Commission

In the case of Walter Ogal Anuro v Teachers Service Commission, the court held that for termination to be fair, both the reason and the process must be justified. In this case, the employer had failed to follow due process even though they claimed the dismissal was due to misconduct. The employee was awarded compensation for unfair termination.

Compensation for Unfair Termination

Compensation can take different forms:

• Reinstatement: The court may order that the employee be reinstated to their former position, especially if the dismissal was entirely unjustified.
• Compensation for Lost Wages: If reinstatement isn’t possible, the employee may be awarded compensation for the wages they lost because of the dismissal. The amount varies but is capped at 12 months’ salary.
• Severance Pay: In cases of redundancy, the employer must pay severance, which amounts to at least 15 days’ pay for each year of service.

Steps Employers Must Take to Avoid Unfair Termination Claims

To avoid disputes, employers should:

1. Document Employee Performance: Keeping clear records of performance reviews, warnings, and support provided to employees can help avoid claims of unfair dismissal.
2. Follow a Clear Procedure: Before terminating, ensure the employee understands why they are being dismissed and allow them a fair opportunity to respond.
3. Comply with the Law: Adhering to the requirements of the Employment Act 2007 is crucial. Regular training on employment laws can help both the employer and employees understand their rights and obligations.

Conclusion

Unfair termination in Kenya is a violation of an employee’s rights. By understanding what constitutes unfair dismissal, both employees and employers can protect themselves from legal issues. For employees, knowing their rights and seeking proper recourse can provide the justice they deserve. For employers, following fair procedures can help avoid costly legal disputes.

If you need assistance with a case of unfair termination or if you’re an employer looking to avoid legal complications, contact our team of experienced employment lawyers. We are here to help you navigate Kenya’s employment laws and ensure your rights are respected.