Unfair termination – WK Advocates

Termination of Employment in Kenya

The law on termination and dismissal of an employee from employment in Kenya is mainly provided for in the Constitution of Kenya 2010, the Employment Act No. 11 of 2007, and case law.

a) On what grounds can a contract of employment be terminated?

An employment contract, as stipulated under the Employment Act, can be terminated in various ways.

  • First, an employer can give the employee a notice of intention to terminate the contract.
  • Secondly, an employee can give the notice to terminate their contract or resign.
  • Thirdly, a contract can be terminated through an agreement between the employer and the employee e.g. at the end of an internship.
  • And lastly, a contract can be terminated automatically in circumstances such as death or loss of business for the employer.

b) Grounds for Termination of Employment

The law provides for the following grounds as justifiable termination of employment by an employer.

· Misconduct

· Poor performance

· Physical incapacity

· Employer’s operational requirements/retrenchment

· Participation in an illegal strike

c) What amounts to an unfair termination of employment?

o For termination to be fair in the eyes of the law, it must be both substantively and procedurally fair. Failure of an employer to follow the due procedure on termination, that amounts to unfair termination.

o 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 allowed to be heard before a termination decision is taken against them as provided in section 41 (2) of the Employment Act.

o In the recent twist, it was declared that It’s unconstitutional to fire staff on probation at will. The Labour Court found that Section 42(1) of the Employment Act, 2007 takes away

the right to a fair hearing as it does not allow the employee to shop for a union representative, or an employee to plead his or her case, hence against the supreme law.

o Failure to follow the procedure will amount to 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 sections 47 and 49 (1) & (3) of the Employment Act.

You now know what the labor law says on termination, be on the lookout and cushion yourself against unfair termination.

Author: Edwin Lucheli, Associate WK Advocates

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