Are you currently employed or looking for a job?
If your answer to this question is YES, then do you fully understand what the Kenyan labour laws on termination of employment say?
Dorothy (not her real name) recently sent an email enquiring about termination laws in Kenya.
“I have been working as a Finance Associate fo two years now here in Mombasa. About two weeks ago, I was fired. My question is, what are the rules regarding termination and how do I even know that my termination was lawful or not?”
According to Perminus Wainaina, the Head of Recruitment at Corporate Staffing Service, wrongful termination is reached when an employee is fired without due process.
The Kenyan labour laws on termination of employment state that an employer can fire you because of any of the following reasons;
- Physical incapacity.
- Poor performance.
- Employer’s operational requirements/retrenchment.
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Termination Types as per the Kenyan labour laws on termination of employment
According to the Labour Laws, Termination of employment can be initiated by either employer or employee.
1. Termination of employment through agreement
This is when both the employer and employee decide to end the contract. This mostly occurs in internships and contract employment where there is a set period of time for one to work there and after that the person leaves.
2. Automatic termination
This is when the contract comes to an end due to unavoidable circumstances such as, death of either the employee or employer or closing of the business maybe because of bankruptcy.
3. Termination of employment by the employee/resignation
This is when an employee decides to quit their job for whatever reason.
4. Termination of employment by an employer
An employer may also terminate the employment of an employee but there is a need to comply with the provisions of the law and contract relating to termination.
An employer has to have a valid reason for terminating employment of an employee for it to be considered fair according to the law.
Apart from this valid reason of termination the employer must follow fair procedures for termination as are provided under the Employment Act, section 45 (2) and section 46.).
In any form of termination the employer is required to prove the reasons for the termination, otherwise it will be termed as unfair (section 45 (2)).
The procedures for termination are different depending on the reason for termination but, they all have a common item – the right of an employee to be heard before a termination decision is taken against him/her.
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1. Notice period
The law allows an employer to fire you without notice but they have to pay you an amount equal to the salary you would have been paid during the period of notice. (Section 36).
The law also states that incase an employee quits without giving notice, they are supposed to pay their employer.
2. How should the notice of termination be served?
A termination notice shall be in writing. In case the employee does not understand the notice, the employer is responsible to ensure that the notice is explained orally to the worker in a language he/she understands (section 35 (2) (3)
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The acceptable notice periods according to the Kenyan labour laws on termination of employment
- If the employee is employed on a daily wage contract, the notice is given at the close of any day without notice.
- If the employee is employed on a weekly pay or two-week basis the notice period shall be one week or two weeks respectively, given in writing or payment of one week’s salary in lieu of notice.
- If the employee is employed on a monthly basis the notice period shall be 28 days and in writing or payment of one month’s salary in lieu of notice.
- In the case where a contract of employment provides that the notice of termination be given for a greater period than one month, then there will be an agreement in writing between employer and employee for a longer notice and the agreed notice period shall be of equal duration for both employer and the employee (section 35 (2)).
Payment upon termination without notice
In a case where the employer terminates a contract without notice, h/she will be required to pay the employee the amount that an employee would have received if she/he had worked during the notice period.
This is what is usually referred to as payment in lieu of notice (section 36) also (section 38).
Do you have any question on Kenyan labour laws on termination of employment? Talk to a HR consultant by emailing firstname.lastname@example.org