Wrongful Termination in Kenya: Legal Framework and Remedies

Wrongful termination refers to the unfair dismissal of an employee in violation of legal protections established under Kenya’s Employment Act, 2007. The Act underscores the importance of fair treatment in employment relationships, providing mechanisms to ensure that terminations are not only substantively valid but also

fair. This article explores the statutory provisions governing wrongful termination, with a focus on Section 45 and Section 49 of the Act, and highlights remedies available to aggrieved employees.

The issue of wrongful termination goes beyond the act of dismissal itself; it encapsulates the principle that employees deserve respect and equitable treatment within the workplace. The Employment Act establishes a structured framework to evaluate the fairness of terminations, emphasizing both the employer’s accountability and the employee’s right to seek redress. By weaving justice and equity into employment law, the Act safeguards against arbitrary or discriminatory practices while fostering a balanced approach to resolving disputes.

Legal Provisions on Unfair Termination

Section 45: Unfair Termination

The Employment Act sets clear parameters to determine whether a termination is fair:

1. General Prohibition:

   • Section 45(1) prohibits employers from terminating employment unfairly.

2. Employer's Burden of Proof:

   • To justify a termination, the employer must prove:

     • Validity of the Reason: The termination reason must be valid (Section 45(2)(a)).

     • Fairness of the Reason: The reason must be related to the employee’s conduct, capacity, compatibility, or the employer’s operational requirements (Section 45(2)(b)).

     • Adherence to Fair Procedure: The employer must follow fair procedures in effecting the termination (Section 45(2)(c)).

3. Right to Complain:

   • Employees continuously employed for at least 13 months preceding the termination have the right to challenge unfair dismissal (Section 45(3)).

4. Unfair Circumstances:

   • Termination is deemed unfair if:

     • It is based on prohibited grounds under Section 46, such as discrimination, pregnancy, or union membership (Section 45(4)(a)).

     • The employer failed to act justly and equitably in the circumstances (Section 45(4)(b)).

5. Factors for Consideration:

   • In evaluating justice and equity, courts or labour officers assess:

     • Procedural compliance, including adherence to Section 41 requirements.

     • Employee conduct and capability.

     • Employer’s prior practices in similar cases.

     • Previous warnings issued to the employee.

Procedural Requirements for Fair Termination

Section 41 mandates that an employer must:

• Inform the employee of the reason for termination.

• Allow the employee an opportunity to respond before a decision is made.

• Ensure the presence of another employee or representative during the hearing.

Failure to follow these procedures renders the termination procedurally unfair, regardless of the reason.

Remedies for Wrongful Termination

Section 49: Remedies for Unjustified Dismissal

Employees subjected to wrongful termination are entitled to various remedies, as outlined in Section 49:

1. Monetary Compensation:

   • Employers may be directed to pay:

     • Wages for the notice period the employee was entitled to.

     • Proportional wages for time worked before dismissal.

     • Compensation not exceeding 12 months’ gross wages (Section 49(1)(c)).

2. Reinstatement or Re-engagement:

   • The labour officer or court may recommend reinstatement or re-engagement in comparable work at the same wage (Section 49(3)(a)-(b)).

3. Factors Considered in Awarding Remedies:

   • The employee’s wishes and length of service.

   • Circumstances surrounding the termination, including employee’s conduct.

   • The practicability of reinstatement or re-engagement.

   • Any severance pay, unpaid wages, or ex-gratia payments already received.

   • Efforts by the employee to mitigate losses post-termination.

4. Limitations:

   • Courts generally avoid ordering specific performance in employment contracts except in exceptional circumstances.

Common Grounds for Wrongful Termination Claims

• Discrimination: Termination based on race, gender, disability, or other protected grounds.

• Retaliation: Dismissal following whistleblowing or union activities.

• Failure to Follow Procedure: Lack of proper notice, hearing, or adherence to Section 41.

• Constructive Dismissal: Circumstances forcing the employee to resign due to employer’s actions.

Practical Steps for Employees

Employees who believe they have been wrongfully terminated should:

1. Document the Circumstances: Keep records of the termination notice, reasons provided, and any correspondence.

2. Seek Legal Advice: Consult an employment lawyer or union representative.

3. File a Complaint: Approach the Employment and Labour Relations Court or a labour officer for redress.

Conclusion

Kenya’s Employment Act provides robust protections against wrongful termination, ensuring fairness and equity in employment relationships. By adhering to procedural requirements and addressing grievances promptly, employers can avoid disputes, and employees can secure their rights. Legal practitioners play a crucial role in navigating these matters to uphold justice and equity in the workplace.

Disclaimer: The information provided in this article is for informational purposes only and should not be construed as legal advice or a legal opinion. Readers are advised to seek professional legal counsel regarding their specific circumstances and legal questions through info@mmorlaw.com.