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What constitutes wrongful termination, and what can you do if you believe you've been wrongfully terminated?

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Understanding Wrongful Termination in Kenya

Wrongful termination, also known as unfair dismissal, occurs when an employer terminates an employee's contract of employment in a manner that is unjust, unreasonable, or not in accordance with the law. In Kenya, the Employment Act, 2007, provides the legal framework governing employment relationships, including the termination of employment contracts.

Introduction
Legal Framework Governing Termination
Grounds for Wrongful Termination
Steps to Take if You Believe You've Been Wrongfully Terminated
Remedies for Wrongful Termination
Conclusion

1. Introduction

Wrongful termination is a significant issue in employment law, as it affects the livelihood and rights of employees. Understanding what constitutes wrongful termination and the legal recourse available is crucial for both employees and employers. This article delves into the legal framework, grounds for wrongful termination, steps to take if you believe you've been wrongfully terminated, and the remedies available under Kenyan law.

2. Legal Framework Governing Termination

The primary legislation governing employment in Kenya is the Employment Act, 2007. This Act outlines the rights and obligations of both employers and employees, including the procedures for lawful termination of employment. Key sections of the Act relevant to termination include:

Section 41: Provides for the procedure for termination on grounds of misconduct, poor performance, or physical incapacity.
Section 43: Requires the employer to prove the reason for termination.
Section 45: Prohibits unfair termination and outlines what constitutes unfair termination.
Section 47: Provides for the procedure for lodging complaints regarding unfair termination.

(Source: Employment Act, 2007 ↗)

3. Grounds for Wrongful Termination

Under the Employment Act, termination of employment is considered wrongful if it does not adhere to the following principles:

Lack of Valid Reason: The employer must have a valid and fair reason for terminating the employment. This could be related to the employee's conduct, capacity, or operational requirements of the business.
Failure to Follow Due Process: The employer must follow the due process as outlined in Section 41 of the Employment Act. This includes giving the employee a chance to be heard and to defend themselves against the allegations.
Discrimination: Termination based on discriminatory grounds such as race, gender, religion, or disability is considered wrongful.
Retaliation: Termination in retaliation for the employee exercising their rights, such as filing a complaint against the employer, is unlawful.

(Source: UNFAIR TERMINATION IN KENYA: WHAT YOU NEED TO KNOW ↗)

4. Steps to Take if You Believe You've Been Wrongfully Terminated

If you believe you have been wrongfully terminated, you can take the following steps:

Document Everything: Keep records of all communications, including emails, letters, and messages related to your termination.
Seek Legal Advice: Consult with an employment lawyer to understand your rights and the strength of your case.
File a Complaint: Lodge a complaint with the Ministry of Labour or the Employment and Labour Relations Court. The complaint should detail the reasons why you believe the termination was wrongful.
Attend Mediation or Conciliation: The Ministry of Labour may facilitate mediation or conciliation between you and your employer to resolve the dispute amicably.
Proceed to Court: If mediation fails, you can file a lawsuit in the Employment and Labour Relations Court for wrongful termination.

(Source: The 10 best Wrongful Termination Lawyers in Kenya (2024) ↗)

5. Remedies for Wrongful Termination

If the court finds that you were wrongfully terminated, several remedies may be available, including:

Reinstatement: The court may order that you be reinstated to your former position without loss of benefits.
Compensation: You may be awarded compensation for the wrongful termination. This could include lost wages, benefits, and damages for emotional distress.
Severance Pay: The court may order the employer to pay severance pay as stipulated under the Employment Act.

(Source: Dismissals & Termination of Employment in Kenya ↗)

6. Conclusion

Wrongful termination is a serious issue that can have significant implications for employees. Understanding the legal framework and the steps to take if you believe you have been wrongfully terminated is crucial. The Employment Act, 2007, provides robust protections for employees, ensuring that terminations are conducted fairly and justly. If you find yourself in such a situation, seeking legal advice and pursuing the appropriate legal channels can help you secure the remedies you deserve.

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