Legal ForumExample Category: LSK Kajiado ForumUnfair Dismissal and Labour Matte …Post Reply

Post Reply: Unfair Dismissal and Labour Matters in Kenya: Legal Framework, Protections, and Remedies

<blockquote><div class="quotetitle">Quote from <a class="profile-link highlight-moderator" href="https://lawguide.co.ke/understanding-law/legal-forum/profile/lawyer/">Lawyer</a> on May 16, 2025, 11:24 am</div><div id="pl-5906" class="panel-layout" ><div id="pg-5906-0" class="panel-grid panel-no-style" ><div id="pgc-5906-0-0" class="panel-grid-cell" data-weight="1" ><div id="panel-5906-0-0-0" class="so-panel widget widget_sow-editor panel-first-child panel-last-child" data-index="0" data-style="{&quot;background_image_attachment&quot;:false,&quot;background_display&quot;:&quot;tile&quot;,&quot;background_image_size&quot;:&quot;full&quot;,&quot;background_image_opacity&quot;:&quot;100&quot;,&quot;border_thickness&quot;:&quot;1px&quot;}" ><div
			
			class="so-widget-sow-editor so-widget-sow-editor-base"
			
		>
<div class="siteorigin-widget-tinymce textwidget">
	Unfair dismissal and labour disputes remain critical issues in Kenya’s employment landscape, often leading to significant legal and financial consequences for both employers and employees. Governed primarily by the Employment Act, 2007, Kenyan labour laws aim to ensure fairness, protect employee rights, and promote equitable workplace practices. This article provides a comprehensive overview of unfair dismissal, including its forms, legal requirements, procedural fairness, and remedies available to aggrieved employees. It also explores related labour matters such as summary dismissal, constructive dismissal, and redundancy, drawing on insights from authoritative legal sources.
Unfair dismissal occurs when an employer terminates an employee’s contract without a valid reason or fails to follow due process as outlined in the Employment Act, 2007. The Act emphasizes that terminations must be both substantively fair (valid reason) and procedurally fair (proper process). According to Section 45(1) of the Act, an employer is prohibited from terminating employment unfairly, and employees who have been continuously employed for at least 13 months have the right to challenge unfair dismissal.
Unfair dismissal can manifest in several ways, including:
1. Breach of Employment Contract: Terminating an employee without adhering to contractual terms, such as failing to provide the required notice period.
2. Discrimination: Dismissal based on prohibited grounds such as race, gender, religion, pregnancy, or union membership (Section 46 of the Employment Act).
3. Retaliation: Terminating an employee for exercising legal rights, such as whistleblowing or filing a complaint against the employer.
4. Constructive Dismissal: Forcing an employee to resign by creating intolerable working conditions, such as non-payment of salaries, unilateral changes to employment terms, or a hostile work environment.
5. Poor Performance or Misconduct without Due Process: Dismissing an employee for alleged poor performance or misconduct without proper investigation, warnings, or a fair hearing.
<h3 dir="ltr">Legal Framework</h3>
The Employment Act, 2007 is the cornerstone of labour law in Kenya, supported by other legislation such as the Labour Relations Act, 2007 and the Constitution of Kenya, 2010, which guarantees fair labour practices under Article 41. The Employment Act sets out the minimum conditions for employment and termination, emphasizing fairness and due process. Additionally, Kenya is a signatory to International Labour Organization (ILO) conventions, including Convention 158, which requires justification for termination and reasonable notice or compensation.
For a termination to be lawful, it must meet the criteria of substantive and procedural fairness as outlined in the Employment Act.
<h3 dir="ltr">Substantive Fairness</h3>
Substantive fairness relates to the validity of the reason for termination. According to Section 45(2), a termination is substantively fair if it is based on:
A. Employee Conduct: Misconduct such as theft, fraud, or insubordination, provided it is proven.
B. Capacity: Inability to perform job duties, such as consistent poor performance, after adequate support and evaluation.
C. Compatibility: Incompatibility with the workplace, provided it is objectively demonstrated.
D. Operational Requirements: Redundancy due to economic or structural reasons, subject to specific procedural requirements.
The employer must genuinely believe the reason at the time of termination and provide evidence to support it. Courts apply a subjective test to determine whether a reasonable employer would dismiss an employee under similar circumstances.
<h3 dir="ltr">Procedural Fairness</h3>
Procedural fairness ensures that the process of termination is just and transparent. Section 41 of the Employment Act mandates the following steps:
1. Notice of Disciplinary Action: The employer must issue a written notice explaining the reasons for considering termination, in a language the employee understands.
2. Fair Hearing: The employee is entitled to a hearing where they can respond to allegations. They may be accompanied by a colleague or union representative, but advocates are prohibited from representing parties before a labour officer or hearing tribunal (Section 48).
3. Written Decision: If the employer decides to dismiss, they must provide a written statement of the reasons, the termination date, and information about the right to appeal.
4. Right to Appeal: The employee can appeal the decision, which should be heard promptly and at an agreed time and place.
Failure to adhere to these procedures renders the termination procedurally unfair, even if the reason is valid. For example, in Kenfreight (EA) Limited v. Benson K. Nguti [2016] eKLR, the court ruled that failure to conduct a disciplinary hearing made the termination unfair, regardless of the substantive grounds.
<h2 dir="ltr">Summary Dismissal</h2>
Summary dismissal allows an employer to terminate an employee’s contract without notice due to gross misconduct. The Employment Act recognizes the following grounds for summary dismissal:
a. Absence Without Leave: Skipping work without a valid reason.
b. Intoxication on Duty: Being intoxicated while performing job duties.
c. Negligence or Carelessness: Actions that jeopardize productivity or safety.
d. Gross Misconduct: Serious offenses like theft, fraud, violence, or insubordination.
e. Criminal Offenses: Engaging in activities detrimental to the employer’s interests.
f. Breach of Contract: Serious violations of employment obligations.
However, summary dismissal must still comply with procedural fairness. The employer must provide evidence of gross misconduct, issue a notice, and conduct a fair hearing. In the case of Cooperative Bank of Kenya Limited v. Yator, the Court of Appeal ruled that using a resolved complaint as the basis for summary dismissal without a hearing was unfair, awarding the employee compensation.
<h2 dir="ltr">Constructive Dismissal</h2>
Constructive dismissal occurs when an employee resigns due to the employer’s conduct that makes working conditions intolerable, effectively forcing the resignation. Although not explicitly defined in the Employment Act, Section 45 provides a foundation by protecting employees from unfair termination resulting from breaches of fundamental employment terms.
<h3 dir="ltr">Elements of Constructive Dismissal</h3>
For a constructive dismissal claim to succeed, the employee must prove:
1. Intolerable Working Conditions: The employer’s actions, such as non-payment of salaries, demotion, or harassment, made the workplace unbearable.
2. Breach of Contract: The employer’s conduct constitutes a significant breach of the employment contract.
3. Causal Link: The resignation was a direct response to the employer’s actions, not a voluntary decision.
4. Timely Action: The employee must file a claim within a reasonable time to avoid waiving their rights.
<blockquote>
In Nathan Ogada Atiagaga v. David Engineering Limited [2015] eKLR, the court held that constructive dismissal occurs when the employer’s behavior makes it impossible for the employee to continue working, deeming the resignation a forced response. Similarly, in Coca-Cola East and Central Africa Limited v. Maria Kagai Ligaga [2015] eKLR, the court awarded damages for constructive dismissal due to the employer’s unilateral relocation of the employee, breaching the contract.
</blockquote>
<h2 dir="ltr">Redundancy</h2>
Redundancy occurs when an employee’s position is eliminated due to operational requirements, such as economic downturns or restructuring.
The Employment Act outlines specific requirements for redundancy:
- Notification: The employer must issue a one-month notice to the employee, the County Labour Officer, and the union (if applicable).
- Consultation: The notice period allows for consultation to confirm compliance with redundancy preconditions.
- Selection Criteria: The employer must use fair and objective criteria, such as seniority or performance, to select employees for redundancy.
- Severance Pay: Employees are entitled to severance pay at a rate of at least 15 days’ wages for each completed year of service.
Failure to follow these procedures can result in a finding of unfair termination. Employers must also notify the National Employment Authority within two weeks of termination.
<h2 dir="ltr">Remedies for Unfair Dismissal</h2>
When a court or labour officer determines that a termination was unfair, the following remedies are available under Section 49 of the Employment Act:
i. Declaration of Unfair Termination: A formal ruling that the termination was unlawful.
ii. Reinstatement: Restoring the employee to their previous position without loss of benefits or seniority.
iii. Re-engagement: Offering the employee a comparable role with similar pay.
iv. Compensation: Up to 12 months’ gross salary, depending on factors like length of service and hardship suffered.
v. Payment in Lieu of Notice: Wages the employee would have earned during the notice period.
vi. Accrued Benefits: Payment for unpaid wages, leave days, or other entitlements.
vii. Severance Pay: At least 15 days’ wages per year of service in redundancy cases.
viii. Service Pay: For employees not covered by a social security scheme.
ix. Certificate of Service: A mandatory document, with false comments being a criminal offense.
In Walter Ogal Anuro v. Teachers Service Commission [2013] eKLR, the court emphasized that both substantive and procedural fairness are required for a lawful termination, awarding compensation for procedural lapses.
<h2 dir="ltr">Labour Dispute Resolution Mechanisms</h2>
Employees who believe they have been unfairly dismissed can seek redress through several avenues:
a. Internal Resolution: Request a written explanation from the employer and attempt to resolve the issue internally.
b. Labour Office: File a complaint with a labour officer, who can mediate or make a determination.
c. Employment and Labour Relations Court: Institute a claim within three years of receiving the termination notice. The court can order reinstatement, compensation, or damages.
d. Mediation or Arbitration: Alternative dispute resolution methods to avoid lengthy court processes.
Employees are advised to gather evidence, such as performance reviews, emails, and witness statements, and consult an employment lawyer to strengthen their case.
<h2 dir="ltr">Employer Best Practices</h2>
To avoid unfair dismissal claims, employers should:
- Comply with the Employment Act: Ensure terminations meet substantive and procedural requirements.
- Maintain Clear Policies: Document workplace conduct rules and consequences.
- Keep Records: Retain employment contracts, performance evaluations, and disciplinary records.
- Provide Training: Educate management on fair disciplinary and termination procedures.
<ul>
<li dir="ltr">Seek Legal Advice: Consult employment lawyers to ensure compliance and mitigate risks.</li>
</ul>
<h2 dir="ltr">Challenges and Trends</h2>
Unfair dismissal cases have surged in Kenya, particularly following economic challenges like the COVID-19 pandemic, which led to widespread terminations. Courts have increasingly emphasized employee protections, as seen in cases like Isdor Rachuonyo v. Brava Food Industries Limited, where vague performance allegations led to a finding of unfair termination. Additionally, the rise of constructive dismissal claims highlights the need for employers to maintain fair workplace conditions.
<h2 dir="ltr">Conclusion</h2>
Unfair dismissal and labour matters in Kenya are governed by a robust legal framework designed to balance employer flexibility with employee protections. The Employment Act, 2007, ensures that terminations are substantively and procedurally fair, with remedies like reinstatement and compensation available for violations. Both employers and employees must stay informed about their rights and obligations to navigate the complex employment landscape effectively.
</div>
</div></div></div></div></div></blockquote>

Cancel

Legal Forums

Post Reply: Unfair Dismissal and Labour Matters in Kenya: Legal Framework, Protections, and Remedies

Recent Posts

Crisis at Kenyatta National Hospital: Senators Demand Action on Overcrowding and Security Failures

Court Orders Equal Pay for UHC Nurses Amid Absorption Plan