Let’s talk about one of the principal rights of employees under Kenyan labour laws: the right to fair termination.

Section 45 of the Employment Act, 2007 in Kenya stipulates that no employer shall terminate the employment of an employee unfairly. For termination to be fair, it must satisfy the three-fold criteria set out under the Act, which is:-

a) the reason for termination must be valid;

b) the reason for termination must be fair and;

c) termination must be in accordance with fair procedure

The above criteria is classified into substantive fairness and procedural fairness.

Substantive fairness relates to the validity /fairness of the reason for termination.

A valid/fair reason is one that :-

a)relates to the employee’s conduct, capacity and compatibility; and

b)relates to the operational requirements of the employer

Procedural fairness on the other hand means that fair procedure must be adhered to. Fair procedure entails:-

a)the employee must be given a notice of the intended termination with reasons thereof and;

b)the employee shall have a chance to be heard in the presence of another employee or representative of their choice, and their representations considered before a decision to terminate is made.

In addition, upon termination the employer must pay the employee all terminal dues and benefits accruing to the employee. They include: one month salary in lieu of notice (where notice was not given for employees whose wages are payable on a monthly basis); service pay (except where the employee was part of a social security scheme); unpaid leave days; any accruing arrears and a certificate of service.

An employer who unfairly dismisses an employee may, in addition to the terminal dues mentioned above, be found liable to pay damages of equivalent to up to 12 months’ salary based on the salary that the employee was earning at the time of termination.

Leave a Reply

Your email address will not be published. Required fields are marked *

× How can I help you?