Terminating employment has become so common among professionals and employers in Kenya. “I need to quit my job, but I’m not sure of what the law says about termination, kindly advise me”. This is an extract from the countless emails we receive on what the Kenya labour law says on termination.
In this post, we are going to answer some of the frequently asked questions relating to termination of employment in Kenya.
Here are some questions and answers on termination of employment.
1. On what grounds can a contract of employment be terminated?
An employment contract, as stipulated under the Employment Act, can be terminated in two ways. First, an employer can give the employee a notice of intention to terminate the contract. Secondly, an employee can give the notice to terminate their contract or resign.
Thirdly, a contract can be terminated through an agreement between the employer and the employee e.g. at the end of an internship. And lastly, a contract can be terminated automatically in circumstances such as death or loss of business for the employer.
2. What can make an employer terminate me?
Thanks to the law, section 45 (2) and section 46, an employer cannot fire you because they don’t like you. 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 law provides for the following grounds as justifiable termination of employment by an employer;
•Employer’s operational requirements/retrenchment
•Participation in an illegal strike
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3. How should the notice of termination be served?
A termination notice shall be done in writing. In case the employee does not understand the notice, the employer is responsible for ensuring that the notice is explained orally to the worker in a language that he/she understands (section 35 (2) (3).
The same applies when the employee is giving notice; it must be done in writing and according to the agreed terms of the employment contract.
According to the Kenyan employment act, the acceptable notice periods are as follows;
•If the employee is employed on a daily wage contract, the termination 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)).
4. Can an employer fire me without giving me a notice?
News flash: Yes, your employer can fire you without notice. The Kenya Labour laws allow for this. That said, according to section 36 and 38, an employer is required to pay you a sum equal to the salary which you would have accrued during the notice period. This is what is usually referred to as payment in lieu of notice.
The reverse is equally applicable, where you as an employee resigns and does not give proper notice, you will be required to compensate your employer for the notice period you would have served.
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5. What happens if my contract is terminated and I have pending leave days?
Don’t worry, your leave days will not be lost. According to section 40 (1) (e), if an employee has accrued leave days upon termination, the employer shall pay you on a pro rata basis an amount in cash for the leave days you are entitled.
6. What amounts to an unfair termination of employment?
In order for termination to be fair in the eyes of the law, it has to be both substantively and procedurally fair. Failure of an employer to follow the due procedure on termination, that amounts to unfair termination.
An employer is expected to provide the reasons for the termination, otherwise, it will be termed unfair according to section 45 (2). The law demands that an employee is given an opportunity to be heard before a termination decision is taken against them as provided in section 41 (2).
Failure to follow the procedure will amount to a summary dismissal, meaning an employee is terminated without being availed of an opportunity to defend herself/himself before a fair disciplinary committee. In the Kenya labour laws, as provided by the Employment Act, summary dismissal amounts to an unfair termination with consequences. This is specified in section 47 and 49 (1) & (3).
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You now know what the labour law says on termination, be on the look-out and cushion yourself against unfair dismissal.
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