By Perminus Wainaina
What does the law stipulate when it comes to resignation?
According to section 35 of the Employment ACT 2007, the contract of any employment can only be terminated in 2 ways by either the employee or you as the employer.
- By giving a resignation or termination notice according to the terms of employment
- By death of an employee.
Simply put, a resignation will not be valid unless a notice is given according to the terms of employment.
A notice period is important because it ensures that you get a smooth transition after the employee’s exit.
So how do you determine this notice period?
Is every employee entitled to the same notice period? What does the labor law in Kenya say on resignation?
According to section 35 , under employment termination notice, an employee can only resign legally when they give a notice period which is determined by the period of time of which they had to wait before getting next salary.
So for instance if employer A was a casual worker who was paid weekly, then the law requires that this employee gives you a one week notice period.
The same case applies to those employees whose salary is calculated daily but are paid at the end of the month.
In such a case, these employees are required by the law to give you a notice period of not less than one month.
For those employees who are still on probation, their notice period is supposed to be seven days until when they are confirmed.
However, in instances where an employment contract provides that your employee gives a longer period than that indicated under section 35, then the terms and conditions of the employment contract should be used.
These are cases like those of CEOs who are mostly required to give a notice of between 3 to 6 months which again is dependent on a company’s policy.
Closely related to this is a waiver of notice.
As an employer, you can decide to reduce the employee’s notice period for your own reasons but make sure that the employee receives payment for the full notice period. This is according to section 38 of the employment ACT which states:
‘Where an employee gives notice of termination of employment and the employer waives the whole or any part of the notice, the employer shall pay to the employee remuneration equivalent to the period of notice not served by the employee as the case may be, unless the employer and the employee agree otherwise’
Also, your employee can choose to resign using their leave days. If they haven’t used their annual leave days, they can choose to include this days as part of the notice period.
Just remember that the use of leave days as notice period remains paid just like any other notice and it can only be used when an employee voluntarily decides so.
Never allow yourself to be caught off-guard when it comes to cases of resignation.
As an employer in Kenya, keeping yourself updated on the various sections of the employment ACT is important in order to make sure that you are operating within the labor laws.
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