Many people have lost their job as a result of unfair dismissal or termination especially as a result of the pandemic which has affected the economy globally. Employers have been forced to take some measures in an effort to remain afloat which includes unfair termination. However, despite the circumstance it does not mean that the employers should go against the Kenyan Labour Laws and violate employees’ rights.

In this article I will share simplified Kenyan Labour laws on unfair termination to help anyone who is in this position to know their rights under the Law.

1. What is Unfair Termination

Unfair termination is when  an employer decides to fire you without following the due process as is set out under the Kenyan Labour Laws.

2. Kenyan Labour Laws on Unfair Termination

The Kenyan Labour Laws that deal with Unfair termination in Kenya include;

• The Constitution of Kenya, 2010
• The Employment of Kenya, 2007
• The International Labour Organization that Kenya is a party to.

3. Circumstances Unfair termination is deemed illegal

• Participating in Lawful Strike
• Pregnancy or going for maternity leave
• Taking your Employer to court or filling a Complaint
• Taking the required Leave days under the Act
• Discrimination i.e tribe, political affiliation, race,, disability, tribe or gender
• Joining a Union or Membership
• What procedure should be employed prior to termination of employment?
• 4. Is Unfair Termination Legal in Kenya?

No. Under the Kenyan Labour laws, an employer cannot terminate an employee unfairly due process under the law must be followed.

5. What can you do when an Employer fires you unfairly?

As an Employee when you are fired unfairly you have two options;

• File a complaint at the Labour office within 3 months of the alleged unlawful termination.
• Get legal representation through an advocate of the high court of Kenya within a year of the alleged unfair termination.

6. When you are not allowed to file a complaint for unfair termination?

When you are fired during your probation period, you can complain of unfair termination because an employer can terminate your employment during your probation period for any reason and it will not be termed as unfair termination.

7. What are some of the grounds termination will be deemed Legal?

• If you are arrested and imprisoned for more than 14 days.
• Intoxication
• Absence without leave
• Insubordination
• Willingly refusing to perform your duties
• Being abusive

8. How can one prove unfair Termination?

The employee has the burden of proving that the unfair termination was indeed unlawful while the employer has to only prove that the grounds they fired you was actually legal and valid.

9. Legal Process of Unfair Termination

Some of the legal process of Unfair Termination includes the following;

1. Notice
   An employee is required to receive a notice subject to the Kenyan Labour laws which will depend on what has been stipulated in your contract of payment in regards to notice.
2. Warning
   If you are being dismissed by your employer, they are required under the law to give you four warnings. The first warning should be verbal or through oral communication while the three warnings should be via written letters.
3. Fair hearing and representation
   If the employer is terminating your employment, you are entitled under the Kenyan Labour Law to be granted a chance to fight for your job or else it will be termed as unfair termination. As an employee, you are entitled to a fair hearing where you can defend your case. You are also require to have your own representation of people who can entail your colleagues to vouch for you.
4. Right to appeal
   Under the Kenyan Labour law, as an employee you are also entitled to an appeal, where you are in disagreement of the decision that has been made during the hearing.

10. Are you entitled to Payment?

Yes. You are entitled to Severance Pay which is the amount paid to the employee by the employer for termination of employment regardless of the reason for the termination. Severence pay is usually depended on the Length of service and the wage level of the employee.

I hope this information has been helpful. I have shared a video on the same on my you tube channel here https://youtu.be/OfLgKeFYzQY

If you have any question on termination of employment under redundancy? Leave them in the comment section below:

If you need help or consultancy on termination of employment under unfair termination reach us on our website  by filling in the free evaluation or our email info@ruthtanuiadvocates.co.ke or contact us at 0738 372354.

Kindly Note: The content of this blog post is intended to be of general use only and should not be relied upon without seeking specific legal advice on any matter.