As an employer in Kenya, it’s essential to navigate the legal landscape with caution when it comes to terminating employees. Understanding the acceptable standard procedures for separation between employer and employee is crucial in avoiding legal actions.
Whether you’re a human resource practitioner or an employer, knowing the ins and outs of Kenya’s labor laws is necessary due to the diverse nature of the country’s employment market, which includes both Kenyan citizens and foreign workers.
This guide aims to educate you on the appropriate procedures for terminating employees, ensuring that you adhere to the legal requirements and safeguard your organization from potential disputes.
TERMINATION OF A KENYAN CITIZEN LEAVING AND WORKING IN KENYA
In Kenya, courts consider the lawfulness of termination based on substantive and procedural fairness of the process adopted in termination.
Substantive fairness focuses on the validity and reasonableness of the termination, whereas procedural fairness is concerned with the fairness of the process leading to the decision to terminate.
Substantive fairness of the termination process is governed by the Employment Act, 2007 Section 43(2), which states that the reason for termination must be genuinely believed by the employer at the time of termination and must be the cause of the employee’s termination. The employer must prove the reason for termination, and failure to do so would render the termination unlawful. A reason for termination is considered lawful if the employer can prove that the reason is valid and fair.
An employer must consider what constitutes a justifiable reason for terminating an employee. Courts in deciding on whether a reason is justifiable, examine if it is related to the employee’s conduct, capacity, or compatibility; or is based on the operational requirements of the employer. A subjective test is employed, the test considers what a reasonable employer would do when confronted with similar issues. If an employer would reasonably dismiss an employee based on the reasons that they genuinely believe to be true at that time, then the reason is fair. However, if they wouldn’t dismiss the employee, the reason is not fair.
Procedural fairness of the termination
Courts have held that a termination is unlawful if it fails to meet the procedural requirements as set in the Employment Act.
If termination is on grounds of misconduct, poor performance, etc.
The employee must be issued with a notice, informing them that a disciplinary action which might lead to termination of employment is under consideration. The notice informs the employee of their right to defend himself and the right to have a union representative or employee of their choosing present during the hearing proceedings. If the employee does not understand the notice, it must be explained to the employee in a language they understand.
The employee is given a chance to be heard and then a sanction is decided by the employer based on the representation made by the affected employee. After a decision has been made in relation to the hearing, the employer is required to inform the employee of the decision. If the decision is to terminate the employee, the reasons prompting the termination have to be given.
It is now established best practice to provide an avenue for an employee appeal within the internal dispute resolution process, adhering to the provisions of section 5(7) (c) of the Employment Act. Where this procedure is followed an employer would have addressed the procedural requirements outlined under section 41.
Are you an employer or an employee; Talk to us to help you understand your rights.
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