Termination of employment is a common issue for most professionals and employers in Kenya.
What Does The Law Say About Terminating Employment?
According to the Kenya Labour Laws, Termination of employment can be initiated by either of the parties to a contract of employment. Lawful Termination will usually include either of the following;
- Termination of employment by agreement:
When the employer and employee agree to bring a contract of employment to an end in accordance with an agreement. This may be in case of terminating a contract of apprenticeship; where the period of training expires, then the contract will obviously come to an end.
- Automatic termination:
A contract of employment may be terminated automatically in circumstances such as death or loss of business of the employer.
- Termination of employment by the employee/resignation:
This happens when an employee due to material breach of the contract by the employer decides to resign from his/her employment.
- Termination of employment by an employer:
An employer may also terminate the employment of an employee but there is a need to comply with the provisions of the law and contract relating to termination.
What is Lawful Termination of Employment?
An employer has to have a valid reason for terminating employment of an employee for it to be considered fair according to the law.
Apart from this valid reason of termination the employer must follow fair procedures for termination as are provided under the Employment Act, section 45 (2) and section 46.).
In any form of termination the employer is required to prove the reasons for the termination, otherwise it will be termed as unfair (section 45 (2)).
The procedures for termination are different depending on the reason for termination but, they all have a common item – the right of an employee to be heard before a termination decision is taken against him/her.
What does the law say about the notice period?
While most employees think the employer cannot fire them without due notice, the Kenyan law actually has a provision for this. The law allows him to fire an employee without notice, but he is required to pay a sum equal to the salary which would have accrued to the worker during the period of the notice (section 36).
This law is also applicable to an employee and protects the employer from a breech of contract. In such a case where the professional resigns without giving proper notice, h/she is required to compensate their employer.
How should the notice of termination be served?
A termination notice shall be in writing. In case the employee does not understand the notice, the employer is responsible to ensure that the notice is explained orally to the worker in a language he/she understands (section 35 (2) (3)
The acceptable notice periods according to the Kenyan employment act is as follows;
- If the employee is employed on a daily wage contract, the notice is given at the close of any day without notice.
- If the employee is employed on a weekly pay or two-week basis the notice period shall be one week or two weeks respectively, given in writing or payment of one week’s salary in lieu of notice.
- If the employee is employed on a monthly basis the notice period shall be 28 days and in writing or payment of one month’s salary in lieu of notice.
- In the case where a contract of employment provides that the notice of termination be given for a greater period than one month, then there will be an agreement in writing between employer and employee for a longer notice and the agreed notice period shall be of equal duration for both employer and the employee (section 35 (2)).
Payment upon termination without notice
In a case where the employer terminates a contract without notice, h/she will be required to pay the employee the amount that an employee would have received if she/he had worked during the notice period. This is what is usually referred to as payment in lieu of notice (section 36) also (section 38).
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