TERMINATION OF EMPLOYMENT-what you need to know!

Termination of employment can be initiated by either of the parties to a contract of employment (employment act, section 35 (1)). Any party may terminate the contract by giving not less than seven days’ notice or seven days wages in lieu of notice or more depending on the contract in place. The purpose of this is to allow parties relatively flexibility to exit from an employment relationship at the initial stages in cases of extreme incompatibility or inability of the employee to perform to the required standards.

If before the expiry of the probation period it is determined that the employee is not rendering the services satisfactorily, the employer may terminate the probation contract.

The Employment Act requires hearing of the employee before termination, the employer should act fairly and in a legitimate manner

A lawful conducted dismissal reduces chances of legal action by any party to the just terminated agreement. Lawful termination of employment under common law includes:

a)       Termination of employment by agreement

b)      Automatic termination

c)      Termination of employment by employee/resignation.

d)      Termination of employment by an employer

The employment termination is unfair if the employer fails to prove that;

1)      The reason for termination is valid

2)      The reason for the termination is a fair reason related to the employees conduct, capacity or compatibility.

The intention of the law with regard to labour relations is to protect that which is fair and just in a democratic society guided by article 14 of the constitution of Kenya. Even where the employee is on probation, there must been seen and found a practice and a process that is legitimate and free from unfair practice .The fundamental right of an employee not to be terminated as provided in section 45(1) and (2) cannot be abrogated (be done away with) even during the probation period unless clearly expressed in the contract.

Types of termination include;

1)      Termination by lieu of notice

It is regulated by employment act section 35 (1) (c) where the contract is to pay wages or salary periodically at intervals of or exceeding one month a written notice period of 28days should be issued. Section 35 (6) of the act states that termination by notice do not apply to employees whose contract are stated to be permanent and pensionable or those who are members of the retired benefit act.

2)      Termination by employer without payment in lieu of notice.

Section 36 of the act allows either parties in an employment contract to terminate without notice upon payment to the party of the remuneration which would have been earned by the other party or paid by him.

3)      Redundancy

Section 2 of the employment act as the loss of employment, occupation, job or career by involuntary means through no fault of the employee. Redundancy may arise in various circumstances including but not limited to the practices commonly known as abolition of office, job or occupation. The most common examples of these circumstances being:

• During the restructuring of an organization whereupon the organization is making losses and there is need to restructure.

• Instances where the employer has ceased or intends to cease continuing business.

• Where the requirement for an employee to perform their duties as per the employment contract has ceased or diminished.

FACTORS TO DETERMINE UNFAIR TERMINATION OF EMPLOYMENT

Some of the factors that guide the Labour office and courts in determining whether a termination was unfair are;

• The procedure adopted in reaching the decision- It is required that the Employee is issued a Notice explaining the reason for intended termination in a language he can understand.Have a hearing with the employee who can have his union representative or fellow employee present before a decision is made.

• Employer should have and present proof for the reasons for termination- The court considers the Employees reasons or representation during the hearing. Whether or not the decision to dismiss the employee is communicated to the employee.

• That there is an avenue for appeal accorded to the employee-The conduct and capability of the employee are to be considered. For example, if he has been a good employee this should be factored to reduce the sanction e.g. to suspension or warning.

• The fact that the Employer has issued the Certificate of Service and conducted a fair termination procedure.

• The Employer should treat all employees the same in the process of termination in the past and future.

• The Employee has received previous warning letters.

 The above does not constitute legal advice kindly reach out to us or your legal representative for advice applicable to you! *