Sources of regulation
Legislation giving specific protection in relation to termination
of employment in Kenya has been enacted in the form of the Employment Act,
Cap. 226 (EA), the Trade Disputes Act, Cap. 234 (TDA), and the Regulation
of Wages and Conditions of Employment Act, Cap. 229. Pursuant to the Regulations
of Wages and Condition of Employment Act, Regulations of Wages Orders are
adopted which also contain provisions on termination of employment, either
by branch or generally, including the Regulation of Wages General Order
(RWGO). In addition, collective agreements, common law principles and case
law are important sources of regulation.
Scope of legislation
The EA excludes from its purview the armed forces, the
police, members of the prisons services, the National Youth Service, and
any class of persons or public body as the Minister may, by order, exempt
(sec. 1, EA).
Contracts of employment
In general, Kenyan labour legislation does not distinguish
between the various types of contract of employment in relation to termination
of employment.
Termination of employment
The contract of employment can terminate, not at the initiative
of the employer, in certain circumstances, including by:
- the
expiry of a fixed-term contract; and
- the
completion of the task for which a contract was concluded.
Dismissal
There is no statutory requirement for a valid cause or
justifiable reason of dismissal in Kenya. The employer is only required
to respect a specific notice period, or to give the employee pay in lieu
of notice. In case of “gross misconduct”, the employer may summarily dismiss
an employee (i.e. without notice). Sec. 17 of the EA lists the matters
amounting to serious misconduct as follows:
- absence
from work without leave or lawful cause;
- intoxication
during working hours that prevents proper performance of work;
- wilful
negligence or carelessness;
- insulting
the employer or other authority;
- knowingly
failing or refusing to comply with a lawful and proper order from a person
in authority;
- imprisonment
for an offence lasting more than four days; and
- commission
of, or reasonable suspicion of commission of, a criminal offence against
the employer or his or her property.
This list is not exhaustive. In addition, sec. 16 of the
RWGO provides that misconduct which does not by itself warrant summary
dismissal can become a valid cause for summary
dismissal if it is repeated three times in spite of written warnings.
In spite of the absence of a statutory requirement of valid
cause, the case law of the Industrial Court has established the necessity
of a justifiable cause for dismissal via the emphasis on the principles
of good industrial relations and fairness of labour practices. (These include
notions of incapacity, gross negligence, redundancy and serious misconduct.)
In fact the Court grants remedies to employees for wrongful dismissal if
in terminating the services of an employee, “the management’s action was
wanting” in the following instances:
- want
of good faith (e.g. camouflaging the real reason for dismissal);
- victimization
or unfair labour practices such as dismissal of an employee for trade
union activities, racism, tribalism, personal grudges;
- commission
of a basic error or violation of the principles of natural justice such
as denying an employee a chance to defend himself [sic] before dismissing
him;
- when
on the materials the finding is completely baseless or perverse; and
- where
the employer has been unduly harsh, e.g. terminating the services of
an employee where perhaps a warning letter would have been sufficient.[1]
Redundancy is defined in sec. 2 of the TDA as follows:
- the
loss of employment, occupation, job or career by involuntary means through
no fault of an employee involving termination of employment at the initiative
of the employer where the services of the employee are superfluous; or
- the
practice commonly known as abolition of office, job, occupation and loss
of employment due to the “Kenyanization” of a business. Redundancy does
not include loss of employment by a domestic servant.
Notice and prior procedural safeguards
Notice is required for terminating all contracts except
those for a fixed-term period or for specific tasks (sec. 14, EA),
and except when the employee is summarily dismissed (sec. 17, EA).
The relevant notice periods are as follows:
- for
workers paid daily, one day’s notice;
- for
contracts where wages are paid periodically at an interval shorter than
a month, notice equivalent to this interval; and
- for
contracts where wages are paid at intervals longer than a month, 28 days’
notice.
Employees declared redundant are entitled to one month’s
notice or wages in lieu. When a greater notice period has been agreed to
by the parties, this notice period prevails. The employer can give the employee payment
in lieu of notice (sec. 16, EA).
The trade union of which a redundant employee is a member
and the local Labour Office shall be informed of the reasons and the extent
of the redundancy (sec. 16A, EA and sec. 15, RWGO). In addition,
employers are required to have due regard to seniority, skill, ability
and reliability in selecting employees for redundancy and no employee is
to be placed at a disadvantage for being or not being a trade union member
(sec. 16A, EA).
If redundancies are effected according to an agreement
as to the terms of the redundancy, termination may be effected after compensation
is paid. If there is no agreement, the standard settlement procedure applies.
Termination for redundancy cannot be effected until any union of which
the employee is a member, and the area Labour Officer, have been notified
of the reasons for, and extent of, any redundancies. A “trade dispute”
is specifically defined to include redundancy terminations, enabling an
employee to challenge a redundancy dismissal in the Industrial Court.
An employee cannot be summarily dismissed for conduct which
does not by itself warrant summary dismissal, unless he or she has received
two written warnings for misconduct, the second being no more than a year
old (sec. 16, RWGO).
Severance pay
According to sec. 16A of the EA, an employee declared
redundant should be entitled to severance pay at the rate of not less than
15 days’ pay for each completed year of service. There are no provisions
in the legislation mentioned above for severance pay in case of termination
for reasons other than redundancy.
Avenues for redress
Any dispute involving dismissal or termination of employment
(and not being a termination as a result of redundancy) shall be reported
to the Minister by or on behalf of any party to the dispute within 28 days
of the dismissal or termination (sec. 4, TDA).
The Minister shall consider the dispute and consult a tripartite
committee to take one of the following steps: refuse the report, make proposals
for settlement, initiate the conciliation procedure under sec. 6 of
the TDA, commence an investigation of the dispute, or recommend that the
case be referred to the Industrial Court. Under sec. 6 of the TDA,
the Minister may make use of machinery or arrangements for the settlement
of disputes which exist by agreement at the enterprise or branch level.
He or she may also appoint a conciliator or a tripartite conciliation panel.
The Industrial Court is not to take cognizance of any trade
dispute concerning dismissal unless it has received a certificate of exhaustion
of the conciliation machinery for the voluntary settlement of the dispute,
and the written authorization of the Minister stating that the dispute
should be referred to the court (sec. 14(9), TDA). The Industrial
Court does not have jurisdiction over disputes in the public sector.
If the dismissal is held to be wrongful, the court may
order reinstatement and/or award compensation equal to the actual loss
of the reinstated employee or, when no reinstatement is ordered, equal
to 12 months’ monetary wages (sec. 15, TDA).
Further information
[1] S.R. Cockar: The Kenya industrial
court: Origins, development and practice (Longman, 1981), p. 105.
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