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What constitutes wrongful termination, and what can you do if you believe you've been wrongfully terminated?
Wrongful Termination in Kenya
Table of Contents
What is Wrongful Termination?
Grounds for Wrongful Termination
Procedural Fairness in Termination
Remedies for Wrongful Termination
What to Do if You Believe You've Been Wrongfully Terminated
1. What is Wrongful Termination?
Wrongful termination occurs when an employer dismisses an employee without a valid reason or without following the proper procedures as outlined in the Employment Act, 2007. It is a violation of the employee's rights and can lead to legal action.
2. Grounds for Wrongful Termination
The Employment Act, 2007 outlines specific grounds for termination, which can be categorized as follows:
2.1. Summary Dismissal:
This is a form of immediate termination without notice or payment in lieu of notice. It is allowed only in cases of serious misconduct, such as:
Theft or Fraud: An employee stealing from the employer or engaging in fraudulent activities.
Gross Misconduct: Serious breaches of employment contract or company policy, such as violence, insubordination, or sabotage.
Criminal Offenses: An employee being convicted of a criminal offense that affects their ability to perform their duties.
2.2. Termination for Cause:
This involves termination with notice or payment in lieu of notice, but only for valid reasons related to the employee's performance or conduct. These reasons include:
Poor Performance: Consistent failure to meet performance standards despite warnings and opportunities for improvement.
Incompetence: Lack of skills or abilities necessary to perform the job effectively.
Breach of Contract: Violation of the terms of the employment contract, such as absenteeism or unauthorized absence.
Redundancy: Termination due to a reduction in workforce or a change in business needs.
2.3. Termination Without Cause:
This is allowed in certain circumstances, such as:
Fixed-Term Contract Expiration: Termination at the end of a fixed-term contract.
Retirement: Termination upon reaching retirement age or upon voluntary retirement.
3. Procedural Fairness in Termination
Even when termination is justified, the employer must follow specific procedures to ensure fairness:
Written Notice: The employer must provide the employee with written notice of termination, specifying the reason for termination and the date of termination. The notice period is determined by the employee's length of service and is outlined in the Employment Act.
Opportunity to Be Heard: The employee must be given a fair opportunity to respond to the allegations against them and present their side of the story. This can involve a formal disciplinary hearing or a meeting with management.
Right to Representation: The employee has the right to be represented by a union representative or a lawyer during the disciplinary process.
Documentation: The employer must maintain proper documentation of the termination process, including the reasons for termination, the notice given, and the employee's response.
4. Remedies for Wrongful Termination
If an employee believes they have been wrongfully terminated, they can pursue various remedies:
Reinstatement: The court may order the employer to reinstate the employee to their previous position.
Compensation: The employee may be awarded compensation for lost wages, benefits, and other damages.
Damages: The court may award damages for emotional distress, reputational harm, and other losses.
Injunctive Relief: The court may issue an injunction to prevent the employer from taking further action against the employee.
5. What to Do if You Believe You've Been Wrongfully Terminated
If you believe you have been wrongfully terminated, you should take the following steps:
Consult with a Lawyer: It is essential to seek legal advice from an experienced employment lawyer in Kenya. They can assess your situation, advise you on your rights, and help you navigate the legal process.
Gather Evidence: Collect any relevant documentation, such as your employment contract, performance reviews, disciplinary records, and any communication related to your termination.
File a Complaint: You can file a complaint with the Labour Relations Court or the Employment and Labour Relations Court.
Negotiate a Settlement: You may be able to negotiate a settlement with your employer outside of court.
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Conclusion:
Wrongful termination is a serious issue in Kenya, and employees have legal rights to protect them. If you believe you have been wrongfully terminated, it is crucial to seek legal advice and take appropriate action to protect your interests.
Answered by mwakili.com