Unfair termination of employment occurs when an employer terminates an employee’s contract of employment, without a justifiable and fair reason to do so. The Employment Act, 2007 Laws of Kenya, illustrates what unfair termination entails. Section 45 (2) of the Employment Act provides that termination is unfair when an employer fails to prove the following:
- That the reason for the termination is valid.
- That the reason for the termination is related to the employee’s conduct, capacity or compatibility.
- That the reason for the termination is based on the operational requirements of the employer.
- That the employment was terminated in accordance with fair procedure.
- if it is found out that in all the circumstances of the case, the employer did not act in accordance with justice and equity in terminating the employment of the employee.
Section 46 of the Act, provides for reasons that do not constitute valid grounds for termination:
- a female employee’s pregnancy, or any reason connected with her pregnancy
- the going on leave of an employee
- an employee’s membership in a trade union
- an employee’s participation in a trade union
- refusal to join or withdraw from a trade union
- an employee’s seeking of office as, or acting or having acted in the capacity of, an officer of a trade union or a workers’ representative
- an employee’s race, color, tribe, sex, religion, political opinion or affiliation, national extraction, nationality, social origin, marital status, HIV status or disability
- an employee’s valid initiation or proposed initiation of a complaint or other legal proceedings against his employer
- an employee’s participation in a lawful strike
An aggrieved employee has the right to institute a claim for unfair termination against his/her employer, through a labor officer or through the Employment and Labor Relations Court. The claim is instituted if it can be proven that he/she was terminated on account of the aforementioned reasons.
Section 45 (5) provides for the guidelines that labor officers and the Employment and Labor Relations Court ought to consider in determining whether a termination is unfair. They include:
- the procedure adopted by the employer in reaching the decision to dismiss the employee which entails:
- whether the employee was issued with a show cause letter and subsequently accorded an opportunity to respond to the show cause letter
- whether the employee was subjected to a fair hearing
- whether the employer was accorded a chance to provide witnesses or a representative of his/her choice during the hearing
- the communication of the decision to terminate the employee, for example, was the employee issued with a termination notice that clearly depicts the reasons for termination.
- Whether the employee was accorded the right to appeal against the decision
- the conduct and capability of the employee up to the date of termination
- whether the employee was issued with a Certificate of service
- the previous practice of the employer in dealing with the type of circumstances which led to the termination
- the existence of any previous warning letters issued to the employee.
The courts have held that any termination of employment that does not comply with the mandatory statutory requirements on the process of termination, is unfair and thus unlawful. In the case of Walter Ogal Anuro vs. Teachers Service Commission (2013)eKLR the Honorable court held that;
“… for a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness. Substantive justification has to do with establishment of a valid reason for the termination while procedural fairness addresses the procedure adopted by the employer in effecting the termination.”
Conclusion
It is critical for employers to keep in mind the provisions of the law when terminating an Employee’s ontract of Employment by ensuring that the process of termination is followed and that justified reasons are provided.
