trouble with the law. They are condemned
by the Employment Court to pay hefty
awards for unlawfully terminating the
services of their employees--even
where whether there was justification for
termination. Many employers are therefore
learning the hard way that there is a lot
to consider before uttering the dreaded
words, "You are fired!" For an employer
to safely exercise their right to terminate
an employment engagement with their
employees, they must ensure compliance
with the procedural requirements for
fair termination established under the
rights of the employees as enshrined in
the Constitution of Kenya, 2010.
As the Employment Court observed
in Mary Chemweno Kiptui vs. Kenya
Pipeline Company Limited, Case No. 435
of 2013, "the industrial Court has now
built firm jurisprudence on circumstances
within which the employer and employee
relationship can be terminated or how
the process of summary dismissal can
be conducted so as to meet the strict
provisions of the law and to avoid making
the same invalid." The judge in this case
agreed with the decision in Kenya Union
of Commercial Food and Allied Workers
vs. Meru North Farmers Sacco Limited
Case No. 74 of 2013 where it was held
that "whatever reason or reasons that
arise to cause an employer to terminate an
employee, that employee must be taken
through the mandatory process as outlined
under Section 41 of the Employment Act.
This applies in cases for termination as
well as in a case that warrants summary
dismissal."
Section 41 of the Employment Act,
2007 provides that "Subject to Section 42
(1), an employer shall, before terminating
the employment of an employee on the
grounds of misconduct, poor performance
or physical incapacity, explain to the
employee in a language the employee
understands, the reason for which the
employer is considering termination and
the employee shall be entitled to have
another employee or a shop floor union
representative of his choice present
during this explanation."
and Labor Relations Court have now
established that Section 41 of the
Employment Act is a mandatory provision.
Therefore, if the employee has not been
given notice of intended termination and
an opportunity to be heard before the
decision for termination is made, whatever
the grounds the employer may use to
justify the termination, such termination
will be held to be unfair and unlawful.
There are three basic requirements for
an employer to put in place to meet this
threshold. First, the employer should have
valid reasons for termination. This may be
based on misconduct, poor performance
or physical incapacity on the part of the
employee. It is upon the employer to prove
the grounds.
The second requirement is that the
employer must notify the employee that
they are considering terminating their
employment. The Court in NAIROBI
ELR Case No. 562 of 2012, Shankar
Saklani vs. DHL Global, held that "except
for contracts of service to pay a daily
wage, the employer must serve a notice
and accord the employee a hearing
as contemplated in Section 41 of the
Act. The only leeway the employer is
entitled to under Section 44 (1) is to
serve a shorter notice, on account of
gross misconduct, than that to which the
employee was entitled to under statute or
contract."
The third requirement is for the
employee to be given an opportunity to
be heard before the decision to terminate
lawyer at Njoroge Regeru & Company Advocates.
He has more than 10 years' experience providing
transaction advice for real estate developers,
financial institutions, foreign investment, energy,
construction and nonprofit corporations. His other
areas of practice include international trade,
employment law, securities law and corporate
restructuring.
Arbor House, Arboretum Drive
P.O. Box 46971 00100
Nairobi, Kenya
njorogeregeru.com