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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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Introduction
Wrongful Termination 2.1. Definition of Wrongful Termination 2.2. Types of Wrongful Termination
Remedies for Wrongful Termination
Conclusion

Introduction

This response will address the question of what constitutes wrongful termination in Kenya and the remedies available to an employee who believes they have been wrongfully terminated. It will draw upon relevant provisions of the Kenyan Constitution and the Employment Act, 2007.

Wrongful Termination

2.1. Definition of Wrongful Termination

Wrongful termination occurs when an employer terminates an employee's employment contract without a valid and lawful reason, or in a manner that violates the terms of the contract or applicable employment laws.

Article 41 of the Constitution of Kenya, 2010 guarantees the right to fair labour practices, including the right to fair and reasonable terms and conditions of employment.
Section 43 of the Employment Act, 2007 outlines the grounds for termination of employment, which must be just and reasonable.

2.2. Types of Wrongful Termination

There are several types of wrongful termination, including:

Termination without notice: An employer must provide an employee with reasonable notice of termination, as stipulated in the employment contract or the Employment Act. Failure to do so constitutes wrongful termination.
Termination without just cause: An employer must have a valid and lawful reason for terminating an employee's contract. This reason must be related to the employee's performance, conduct, or the employer's operational needs.
Termination based on discriminatory grounds: An employer cannot terminate an employee's contract based on discriminatory grounds such as race, religion, gender, or disability.
Termination in violation of a collective bargaining agreement: If an employee is covered by a collective bargaining agreement, the employer must adhere to the terms of the agreement when terminating the employee's contract.
Termination in violation of a statutory right: An employer cannot terminate an employee's contract in violation of a statutory right, such as the right to maternity leave or sick leave.

Remedies for Wrongful Termination

An employee who believes they have been wrongfully terminated can pursue various remedies, including:

Negotiation: The employee can attempt to negotiate a settlement with the employer. This may involve seeking compensation for lost wages, benefits, and other damages.
Conciliation: The employee can file a complaint with the Labour Relations Court for conciliation. This process involves an attempt to resolve the dispute through mediation.
Litigation: If conciliation fails, the employee can file a lawsuit in the Labour Relations Court. The court can order the employer to reinstate the employee, pay damages, or both.
Compensation: The court may award compensation for lost wages, benefits, and other damages. This compensation may include:
- Back pay: This is compensation for wages lost from the date of termination to the date of reinstatement or the date of judgment.
- Front pay: This is compensation for future lost wages, if the employee is not reinstated.
- Damages for emotional distress: This is compensation for the emotional distress caused by the wrongful termination.
- Punitive damages: These are damages awarded to punish the employer for their wrongful conduct.

Conclusion

Wrongful termination is a serious issue that can have significant consequences for employees. It is important for employees to understand their rights and remedies under Kenyan law. If an employee believes they have been wrongfully terminated, they should seek legal advice to determine the best course of action.