Question:
I was recently given a termination notice by my employer of three years. My superior and I have personality differences and I believe this to be the reason I was let go. Is there a way a legal way I can fight this?
Angela
Labour or employment regulation in Kenya is covered by the general law of contract and refined by common law principles. Common law is created and refined by judges. For instance when there is no authoritative statement of the law, judges have the authority and duty to make law by creating precedent. In addition to contract and common law, Parliament passed important legislation to further protect employees in the work place. One of the new Acts was The Employment Act No. 11 of 2007 which repealed the earlier Employment Act cap 226.
As per the (2007) Act, there are basically three ways for the employer to terminate a contract of employment:
– Termination by Notice or Payment in lieu of Notice
– Redundancy
– Summary Dismissal
For purposes of the question, we shall discuss termination and dismissal.
In the first instance – termination by notice or payment in lieu of notice – the employer is not expressly required by statute to give their reasons as long as the correct procedure was followed.
Summary Dismissal is an option for the employer if the employee:
(a) Is absent from work without permission or good excuse;
(b) Is so intoxicated that cannot do their work properly;
(c) Deliberately neglects or ignores the work, or carries it out improperly;
(d) Uses abusive or insulting language;
(e) Disobeys orders from persons with authority;
(f) Is lawfully arrested for an offence punishable by imprisonment, and is not within 10 days either released on bail or otherwise lawfully set at liberty;
(g) Commits a criminal offence against the employer or his or her property.
Certain procedures have to be followed when summary dismissal is being contemplated
• The employee has to be informed of the claims of gross misconduct
• The employee has to be called upon and given the opportunity to defend themselves
• He or she must be informed in reasonable detail of the decision once it is made, and the grounds upon which this is done.
Common Law principles have however set precedent that requires more from the employer than simple adherence to the laid down statutory requirements. The decision to terminate employment must be based on good faith. It should be free of any bias and should not be seen to be simply victimising the employee.
In addition, under sec. 47 of the new Act, an employee who believes himself or herself to have been unfairly terminated or dismissed, may present a claim with the labour officer on charge of their local area.
Principles of Natural Justice state that everyone has a right to be heard and the Labour officer is bound by them as well as statutory provisions to hear out both parties. Only then can he offer an opinion on how to best handle or settle the matter.
Please note that while you can report the claim to a labour officer, this does not in any way impede your right to seek redress from the Industrial Court. The court requires you to prove your case of unfair termination/dismissal. At the same time, the employer is expected to justify his/her actions.
Under Kenyan legislation there are two basic rights of a dismissed employee where the dismissal is wrongful: the right to reinstatement and the right to compensation. These rights can be granted separately or together. In addition, as a contractual remedy, the Court may also grant specific performance (the performance of a contract as specified in its terms) or rescission (the cancellation of a contract).
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