Employment is not permanent and may be terminated using the correct procedure and for justified grounds or reasons. Termination of employment can be initiated by either of the parties to a contract of employment (Employment Act, section 35(1)).

A lawful conducted dismissal reduces chances of legal action by any party to the just terminated agreement. Lawful termination of employment under common law includes:

• Termination of employment by agreement
• Automatic termination
• Termination of employment by the employee/resignation
• Termination of employment by an employer

The employment termination is unfair if the employer fails to prove that;

1. The reason for the termination is valid
2. The reason for the termination is a fair reason related to the employee’s conduct, capacity or compatibility and  based on the operational requirements of the employer
3. The employment was terminated in accordance with fair procedure.

It is important to note this as termination must be fair and justified. The fairness arises from the process that gives a fair hearing to the employee and the reasons for termination. The Labour office or the Labour Relations Court handles claim for unfair termination. It is beneficial for an Employee to know his rights and challenge any unfair termination.

Factors to determine unfair termination of employment

Some of the factors that guide the Labour office and courts in determining whether a termination was unfair are;

1. The procedure adopted in reaching the decision. It is required that the Employee is issued a Notice explaining the reason for intended termination in a language he can understand.
2. Have a hearing with the employee who can have his union representative or fellow employee present before a decision is made.
3. Employer should have and present proof for the reasons for termination
4. The court considers the Employees reasons or representation during the hearing.
5. Whether or not the decision to dismiss the employee is communicated to the employee.
6. That there is an avenue for appeal accorded to the employee.
7. The conduct and capability of the employee are to be considered. For example, if he has been a good employee this should be factored to reduce the sanction e.g. to suspension or warning.
8. The fact that the Employer has issued the Certificate of Service and conducted a fair termination procedure.
9. The Employer should treat all employees the same in the process of termination in the past and future.
10. The Employee has received previous warning letters.