Lumumba Lena Owano
Employment disputes are among the most common claims before Kenya's Employment and Labour Relations Court. Most turn on a simple question: did the employer have a valid reason to terminate, and did it follow a fair procedure? The Employment Act, 2007 requires both.
The procedure: section 41
Before terminating an employee on grounds of misconduct, poor performance or physical incapacity, an employer must explain the reasons to the employee, in a language the employee understands, and give the employee an opportunity to respond. The employee is entitled to have a fellow employee or a shop floor union representative present during that explanation.
Courts treat these steps as mandatory. A strong reason for dismissal will not save a termination that skipped the hearing.
When is a termination unfair? Section 45
A termination is unfair if the employer fails to prove that the reason was valid and fair, that it related to the employee's conduct, capacity or compatibility or to the employer's operational requirements, and that the employment was terminated in accordance with fair procedure. The burden of justification rests on the employer.
Remedies: section 49
Where a termination is found unfair, the court may award compensation of up to twelve months' gross salary, alongside other remedies such as payment in lieu of notice. Twelve months is a ceiling, not an automatic entitlement: courts consider factors such as length of service, the employee's conduct, the circumstances of the dismissal and efforts to find other work. The Supreme Court in Kenfreight (E.A.) Limited v Benson K. Nguti confirmed that the award is a matter for the trial court's discretion in light of those factors.
Practical steps for employers
Most unfair termination awards are avoidable. Employers should:
- Put allegations to the employee in writing, with enough detail to respond
- Hold a hearing and keep minutes, allowing a representative to attend
- Give a written decision with reasons
- Keep disciplinary policies and contracts up to date
- Take advice before terminating senior staff or handling redundancies
For employees
If you have been dismissed without a hearing or a valid reason, keep every letter, message and payslip, and seek advice promptly. Claims are subject to limitation periods, and early advice often leads to a negotiated settlement without the need for litigation.
Sources
This article is general information on Kenyan law as at its publication date and is not legal advice.
