How to terminate an employee in Kenya under the Employment Act

The Employment Act, No. 11 of 2007 (“the Act”) provides for Termination and Dismissal when it comes to Employment matters.

1. Termination Notice:
Section 35(2) of the Act provides that where a contract provides for a period of notice of termination in writing that notice period prevails.

2. Payment in Lieu of Notice:
Section 36 of the Act provides that where there is termination of a contract without notice by either the employee or the employer, the terminating party shall pay the remuneration that would have accrued for the notice period.

3. Waiver of notice Period:
Section 38 of the Act provides that where the employee and employer decide to waive notice the employer shall pay the employee for the notice period. The parties may, however, agree to waive the payment.

4. Termination on account of redundancy:
Section 40 provides that a procedure must be followed. In any case, the notice period should be issued or default of which payment in lieu of notice. The process does not apply on account of insolvency.

5. Termination on grounds of misconduct:
Section 41 provides for a notification and hearing process before an employee can be terminated on this grounds. Misconduct includes ground of misconduct set out in contracts, poor performance and physical incapacity. The employee is entitled to be heard and to provide representation before being terminated.

6. Proof of reason for termination
Section 43 provides that the employer is required to prove the reason(s) for termination, failure to which it shall fall under unfair termination.

7. Summary dismissal:
Section 44 of the Act provides for the exact grounds for summary dismissal and they include:
a. Where an employee absents himself from work;
b. Where an employee during working hours is intoxicated and thus renders himself unwilling or incapable to perform his work properly;
c. Where an employee wilfully neglects to perform any work which it was his duty to perform, or if he carelessly and improperly performs any work which from its nature it was his duty, under his contract, to have performed carefully and properly;
d. Where an employee uses abusive or insulting language or behaves in a manner insulting, to his employer or to a person placed in authority over him by his employer;
e. Where an employee knowingly fails, or refuses, to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer;
f. Where in the lawful exercise of any power of arrest given by or under any written law, an employee is arrested for a cognizable offense punishable by imprisonment and is not within fourteen days either released on bail or on bond or otherwise lawfully set at liberty; or
g. Where an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offense against or to the substantial detriment of his employer or his employer’s property.

8. Unfair Termination
Section 45 of the Act provides for what would be classified under unfair termination and includes:
a. Where the employer fails to prove a reason for termination is valid;
b. Where the employee fails to prove that the termination was fair reason relating to the employee’s conduct, capacity or compatibility, operational requirements, or that it was done in accordance with procedure.

Conclusion
Employees are greatly protected when it comes to employment matters owing to the fact that they have less bargaining power compared to the employer. Given this, due process must be followed when contemplating the termination of a contract.

The proper notice period must be given to an employee. The employee should be allowed to work through the notice period without frustration. Failure to allow such a period would amount to constructive notice where an employee can easily file an industrial matter against the employer.

Where the employer does not wish to allow the employee to work through the notice period, payment must be made in lieu of notice.

When it comes to summary dismissal, the employer must follow due process and the employee must be allowed an opportunity to defend him/herself, failure to which it becomes unfair termination.

The best course of action is to issue notices -which clearly state out reasons for termination, to the employees and allow them to work for the notice period or pay in lieu of notice.

This article does not constitute legal advice.