A termination is deemed to be unfair/unlawful if, the employer fails to prove the reasons for termination are valid and that the termination process was in line with statutory requirements.

Section 45 of the Employment Act defines an unfair termination as one in which the employer;

• Fails to prove that the reason for the termination is a fair reason related to the employee’s conduct, capacity, or compatibility;
• Fails to prove that the reason for the termination is a fair reason based on the operational requirements of the employer; and,
• Fails to prove that the employment was terminated by fair procedure and did not comply with rules of equity and justice.

In deciding whether it was just and equitable for an employer to terminate the employment of an employee, the Court shall consider—

• the procedure adopted by the employer in deciding to dismiss the employee, the communication of that decision to the employee, and the handling of any appeal against the decision;
• the conduct and capability of the employee up to the date of termination;
• the extent to which the employer has complied with any statutory requirements connected with the termination, including the issuing of a certificate under section 51 and the procedural requirements set out in section 41;
• the previous practice of the employer in dealing with the type of circumstances which led to the termination; and
• the existence of any previous warning letters issued to the employee.

Section 46 of the Employment Act outlines reasons that do not constitute fair reasons for dismissal or for the imposition of a disciplinary penalty to include;

• an employee pregnancy or any connected reason;
• the going or proposal to take on leave of an employee;
• an employee membership or proposed membership of a trade union;
• an employee’s seeking of office as, or acting or having acted in the capacity of, an officer of a trade union or a workers’ representative;
• an employee’s refusal or proposed refusal to join or withdraw from a trade union; an employee’s race, color, tribe, sex, religion, political opinion or affiliation, national extraction, nationality, social origin, marital status, HIV status or disability;
• an employee’s initiation or proposed initiation of a complaint or other legal proceedings against his employer, except where the complaint is shown to be irresponsible and without foundation; an employee’s participation in a lawful strike.

Are you an employer or an employee; Talk to us to help you understand your obligations and rights.

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