Legal ForumExample Category: LSK Kajiado ForumNavigating Unfair Dismissal in Ke …Post Reply

Post Reply: Navigating Unfair Dismissal in Kenya

<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 June 5, 2025, 10:01 am</div><div id="pl-6189" class="panel-layout" ><div id="pg-6189-0" class="panel-grid panel-no-style" ><div id="pgc-6189-0-0" class="panel-grid-cell" data-weight="1" ><div id="panel-6189-0-0-0" 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 is one of the most litigated issues in Kenyan employment law, often leading to disputes that can be costly for employers and distressing for employees. The Employment Act, 2007 provides a robust framework to protect employees from wrongful termination and ensure fair treatment in the workplace. This article explains the protections against unfair dismissal, the procedures for challenging it, and the remedies available under Kenyan law.
<h3 dir="ltr" data-pm-slice="1 1 []">What Constitutes Unfair Dismissal?</h3>
Under Section 45 of the Employment Act, 2007, a termination is deemed unfair if the employer fails to prove:
<ul class="tight" dir="ltr" data-tight="true">
<li>
Valid Reason: The termination must be based on a fair reason related to the employee’s conduct, capacity, compatibility, or the employer’s operational requirements (e.g., redundancy). For example, poor performance or gross misconduct can justify termination, but only if substantiated with evidence.
</li>
<li>
Fair Procedure: The employer must follow a fair process, including providing written notice, offering the employee a chance to respond, and conducting a disciplinary hearing where applicable.
</li>
</ul>
Unfair dismissal can occur in various forms, such as:
<ul class="tight" dir="ltr" data-tight="true">
<li>
Termination without notice or insufficient notice (unless for gross misconduct under Section 44).
</li>
<li>
Dismissal for reasons like pregnancy, union membership, or discrimination, which are expressly prohibited under Section 46.
</li>
<li>
Failure to follow due process, such as not allowing the employee to present their case.
</li>
</ul>
A notable case, Kenfreight (E.A.) Limited v Benson K. Nguti (Civil Appeal No. 31 of 2015), clarified that unfair termination includes breaches of contract, lack of notice, or procedural flaws, emphasizing the employer’s burden to justify dismissal.
<h3 dir="ltr">Protections Under the Employment Act, 2007</h3>
The Employment Act, 2007, ensures employees are safeguarded through:
<ul class="tight" dir="ltr" data-tight="true">
<li>
Right to Fair Hearing: Before termination (except in cases of summary dismissal for gross misconduct), employees are entitled to a hearing where they can present their case, often accompanied by a fellow employee or union representative (Section 41).
</li>
<li>
Notice Periods: For monthly salaried employees, a minimum of 28 days’ written notice is required, or payment in lieu of notice, unless otherwise stipulated in the contract (Section 35). Daily or weekly wage earners require no notice or one to two weeks, respectively.
</li>
<li>
Prohibited Grounds: Termination based on pregnancy, trade union activities, or discriminatory grounds (e.g., race, gender, disability) is unlawful (Section 46).
</li>
<li>
Certificate of Service: Upon termination, employers must provide a certificate of service, and false statements in it are a criminal offense (Section 51).
</li>
</ul>
<h3 dir="ltr" data-pm-slice="1 3 []">Procedures for Challenging Unfair Dismissal</h3>
If an employee believes they have been unfairly dismissed, they can take the following steps:
<ol class="tight" dir="ltr" data-tight="true">
<li>
Internal Grievance Process: Attempt to resolve the issue through the employer’s internal grievance procedures, if available, as outlined in company policies or collective bargaining agreements (CBAs).
</li>
<li>
File a Complaint with a Labour Officer: Under Section 47, employees can lodge a complaint with a Labour Officer, who may mediate or refer the case to the Employment and Labour Relations Court (ELRC).
</li>
<li>
Approach the Employment and Labour Relations Court: The ELRC, established under the Employment and Labour Relations Court Act, 2014, has jurisdiction over employment disputes. Employees must file a claim within three years of termination, per the Limitation of Actions Act (Cap 22), presenting prima facie evidence of unfair dismissal (Section 47(5)).
</li>
<li>
Appeals: If dissatisfied with the ELRC’s decision, employees can appeal to the Court of Appeal, and in limited cases, to the Supreme Court.
</li>
</ol>
<h3 dir="ltr" data-pm-slice="1 1 []">Remedies for Unfair Dismissal</h3>
If the ELRC finds a termination unfair, it may award the following remedies under Section 49:
<ul class="tight" dir="ltr" data-tight="true">
<li>
Reinstatement: Restoring the employee to their previous position without loss of benefits, though this is rare and granted only in exceptional cases.
</li>
<li>
Re-engagement: Offering the employee a comparable role with similar pay and conditions.
</li>
<li>
Compensation: Up to 12 months’ gross salary for unfair dismissal, depending on the case’s severity. For example, in Abraham Nyambane Asiago v Barclays Bank of Kenya Limited, the Court of Appeal confirmed a maximum of 12 months’ pay for unfair dismissal.
</li>
<li>
Payment of Dues: Includes unpaid wages, accrued leave, and notice pay.
</li>
<li>
Severance Pay: For redundancies, employees are entitled to at least 15 days’ pay per year of service (Section 40).
</li>
</ul>
By understanding your rights under the Employment Act, 2007, you can protect yourself from unfair dismissal or ensure compliance as an employer. For expert legal assistance, contact us at +254 716 808 104 or <a href="mailto:info@lawguide.co.ke">info@lawguide.co.ke</a> to guide you through the process.
</div>
</div></div></div></div></div>

Cancel

Legal Forums

Post Reply: Navigating Unfair Dismissal in Kenya

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