In this legal opinion we set out to outline the possible options of termination of the Employment Contract. We also suggest the most suitable option that will less likely attract legal action by the Employee against the Employer.
- Legal protection of Employees by Kenya Labour Laws
Kenyan law provides a great deal of protection to Employees from unfair termination. It is a right entrenched in the Constitution of Kenya under Article 41. Its purpose is to of ensure that the legislative framework governing labour relations in Kenya is in accordance with the Bill of Rights.
- Termination of Employee Contract
Clause 6 of the Employment Contract makes provision for summary dismissal.
Termination Of Employee Contract Upon Giving Notice
It is a mandatory requirement that termination of Employment be subject to notice as specified under Section 35. The Act provides for termination by giving one month’s notice or one month’s salary in lieu of notice. It is important to note that even where termination is through notice, Section 43 of the Employment Act provides that in any claim arising out of termination of a contract, the employer has the burden of proving the reason or reasons for the termination. Where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of Section 45
Summary Dismissal
Section 44(4) of the Employment Act makes provision on summary dismissal on grounds of gross misconduct. It specifically lists what amounts to gross misconduct such as to warrant summary dismissal, which is if:
- without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work;
- during working hours, by becoming or being intoxicated, an employee renders himself unwilling or incapable to perform his work properly;
- an employee willingly neglects to perform any work which it was his duty to perform. 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;
- 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
- 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;
- in the lawful exercise of any power of arrest given by or under any written law, an employee is arrested for a cognizable offence punishable by imprisonment and is not within fourteen days either released on bail or on bond or otherwise lawfully set at liberty; or
- an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer’s property.
If the Employer has proof of any of the above, summary dismissal would be a possibility. However, it is important to mention that the Employment Act provides that even where termination is by summary dismissal on grounds of gross misconduct, the decision of an employer to dismiss an employee summarily shall not preclude an employee from alleging or disputing whether the facts giving rise to the same.Also, whether any other matters not mentioned in this section, constitute justifiable or lawful grounds for the dismissal
Mutual Termination
If the Employer is adamant that it would not want to subject the employee to annual performance reviews or a performance improvement plan, this would therefore be the most ideal option. The mutual termination agreement will usually include details such as the termination date, an outline the terms and conditions of termination including a severance pay and most importantly a waiver releasing Employer from all claims and liabilities relating to the Employment Contract.
Parties will negotiate and agree on suitable terms. The severance package in a mutual termination agreement is typically more attractive than when normally terminating the Employment Contract. It is advisable to contact a lawyer for assistance.