What Constitutes an Unfair Termination of Employment in Kenya
Unfair termination remains one of the most litigated employment issues in Kenya. It arises when an employer dismisses an employee without a just cause or fails to follow due process as required under the Employment Act, 2007
Legal Framework of Unfair Termination of Employment
Section 45 of the Employment Act, 2007, provides that no employer shall terminate the employment of an employee unfairly. For a termination to be considered fair, two critical elements must be met:
1. Substantive Fairness
The employer must have a valid and fair reason for termination, which is related to:
- The employee’s conduct
- The employee’s capacity or compatibility
- Operational requirements of the employer
Common grounds include gross misconduct, poor performance, redundancy, or legal prohibition to engage in the job. The burden is on the employer to prove that the reason was valid as per Section 43 of the Act.
2. Procedural Fairness
Procedural fairness requires that the employer adheres to fair process as outlined in Section 41 of the Act. This includes:
- Explaining the reason for termination to the employee in a language they understand
- Allowing the employee to have another employee or union representative present
- Giving the employee a fair chance to respond before a final decision is made
Failure to comply with either the substantive or procedural requirements makes the termination unfair.
Key Judicial Precedents of Unfair Termination in Kenya
In Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Ltd [2014] eKLR, the court emphasized that termination must not only be based on a valid reason but must also follow due procedure.
Similarly, in Walter Ogal Anuro v Teachers Service Commission [2013] eKLR, the Court held that failure to follow the process under Section 41 renders the dismissal unfair regardless of the reason.
