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

Introduction

Wrongful termination is a significant issue in employment law, and understanding what constitutes wrongful termination and the remedies available is crucial for both employers and employees. In Kenya, wrongful termination is governed by various statutes, including the Constitution of Kenya, the Employment Act, and other relevant labor laws. This comprehensive guide will delve into what constitutes wrongful termination and the steps you can take if you believe you have been wrongfully terminated.

Table of Contents

1. Definition of Wrongful Termination

   • 1.1 Legal Framework

   • 1.2 Grounds for Wrongful Termination

2. Legal Provisions Governing Termination

   • 2.1 The Constitution of Kenya

   • 2.2 The Employment Act

   • 2.3 Other Relevant Laws

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

   • 3.1 Internal Remedies

   • 3.2 External Remedies

4. Conclusion

1. Definition of Wrongful Termination

1.1 Legal Framework

Wrongful termination refers to the dismissal of an employee in a manner that breaches one or more terms of the employment contract or violates statutory provisions. The primary legal frameworks governing wrongful termination in Kenya include:

• The Constitution of Kenya, 2010

• The Employment Act, 2007

• The Labour Relations Act, 2007

• The Industrial Court Act, 2011

1.2 Grounds for Wrongful Termination

Wrongful termination can occur under various circumstances, including but not limited to:

• Unfair Dismissal: Termination without a valid reason or without following due process as stipulated in the Employment Act.

• Discrimination: Termination based on race, gender, religion, disability, or other protected characteristics.

• Retaliation: Termination as a form of retaliation for whistleblowing or for filing a complaint against the employer.

• Violation of Contractual Terms: Termination that breaches specific terms outlined in the employment contract.

2. Legal Provisions Governing Termination

2.1 The Constitution of Kenya

The Constitution of Kenya, 2010, provides a broad framework for the protection of workers' rights. Key provisions include:

• Article 41: This article guarantees fair labor practices, including the right to fair remuneration, reasonable working conditions, and the right to form, join, or participate in the activities of a trade union.

• Article 27: This article provides for equality and freedom from discrimination, ensuring that no one is discriminated against on various grounds, including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language, or birth.

2.2 The Employment Act

The Employment Act, 2007, is the primary statute governing employment relationships in Kenya. Key sections relevant to wrongful termination include:

• Section 45: This section stipulates that no employer shall terminate the employment of an employee unfairly. It outlines what constitutes unfair termination, including lack of a valid reason and failure to follow due process.

• Section 46: This section lists reasons that do not constitute fair reasons for dismissal, such as pregnancy, union membership, and filing a complaint against the employer.

• Section 47: This section provides the procedure for lodging complaints related to unfair termination and the role of labor officers in resolving such disputes.

2.3 Other Relevant Laws

• The Labour Relations Act, 2007: This act governs the relationship between employers, employees, and trade unions, providing additional protections against unfair labor practices.

• The Industrial Court Act, 2011: This act establishes the Industrial Court, which has jurisdiction over employment and labor relations disputes, including wrongful termination cases.

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

3.1 Internal Remedies

• Review Your Employment Contract: Carefully review your employment contract to understand the terms and conditions related to termination.

• Lodge a Complaint with HR: If your employer has an internal grievance procedure, lodge a formal complaint with the Human Resources department.

• Seek Mediation: Some organizations offer mediation services to resolve employment disputes internally.

3.2 External Remedies

• File a Complaint with the Labour Office: If internal remedies fail, you can file a complaint with the nearest Labour Office. Labour officers are empowered to investigate complaints and mediate disputes.

• Seek Legal Advice: Consult with an employment lawyer to understand your rights and the legal options available to you.

• File a Case with the Industrial Court: If mediation fails, you can file a case with the Industrial Court. The court has the authority to hear and determine cases related to wrongful termination.

• Compensation and Reinstatement: If the court finds that you were wrongfully terminated, it may order remedies such as compensation for lost wages, reinstatement to your former position, or both.

Conclusion

Wrongful termination is a serious issue that can have significant implications for both employees and employers. Understanding the legal framework and the steps you can take if you believe you have been wrongfully terminated is crucial. The Constitution of Kenya, the Employment Act, and other relevant laws provide robust protections against wrongful termination, ensuring that employees' rights are safeguarded. If you believe you have been wrongfully terminated, it is essential to seek legal advice and explore both internal and external remedies to address the issue effectively.

Answered by mwakili.com

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