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Legal Termination of Employees in Kenya

Termination of employment is a sensitive aspect of the employer-employee relationship. Employers must adhere to the legal requirements to avoid wrongful termination claims, which can result in financial losses. Proper legal procedures help mitigate disputes and ensure compliance with employment laws.

Ways to Terminate an Employment Contract

Employment contracts may be terminated in various ways, including:

1. Termination by Agreement – Both the employer and employee mutually agree to end the contract.
2. Resignation – The employee voluntarily chooses to leave their job and provides notice to the employer.
3. Automatic Termination – The contract ends upon completion of the agreed term or fulfillment of a specific task.
4. Employer-Initiated Termination – The employer may terminate employment either with notice or through summary dismissal.
5. Redundancy – The employer discontinues an employee’s role due to operational changes, making their services unnecessary.

Legal Framework: The Employment Act, 2007

The Employment Act, 2007 outlines the procedures for lawful termination and summary dismissal:

• Notice Requirement – Either party must give adequate notice or pay in lieu of notice.
• Justifiable Reason for Termination – The employer must have a valid reason for termination and provide supporting evidence. This may include documented warnings, disciplinary records, and instances of misconduct.
• Prohibited Grounds for Termination – The Act prohibits termination based on factors such as pregnancy, taking leave, or trade union membership.
• Right to a Fair Hearing – If termination is due to misconduct, the employee must be given an opportunity to respond to the allegations before dismissal.

Summary Dismissal

Summary dismissal occurs when an employer terminates employment without notice due to serious misconduct. The Act lists grounds for summary dismissal, including:

• Gross insubordination
• Suspected involvement in a criminal offense
• Wilful neglect of duties

Unfair or Wrongful Termination

The employer bears the burden of proving that termination was fair and justified. A termination is deemed unfair if:

• The reason for dismissal is invalid or unfair.
• Due process, including the right to a fair hearing, was not followed.

Remedies for Wrongful Termination

Employees who have been wrongfully dismissed may seek redress through the Employment and Labour Relations Court. Available remedies include:

• Compensation for lost wages due to unjustified termination.
• Reinstatement to their previous position, if deemed appropriate by the court.

Conclusion

Employers should incorporate clear termination policies in employment contracts and internal handbooks to prevent disputes. Regular training on disciplinary procedures and compliance with employment laws can help ensure lawful termination practices. Adhering to legal procedures minimizes risks and protects both employers and employees.