SECTION 35- TERMINATION NOTICE

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1 TERMINATION Termination of employment is an employee's departure from a job. Termination may be voluntary on the employee's part, or it may be at the hands of the employer, often in the form of dismissal (firing) or a layoff.

2 SECTION 35- TERMINATION NOTICE Lawful termination of employment under common law includes: 1. Termination of employment by agreement 2. Automatic termination 3. Termination of employment by the employee/resignation 4. Termination of employment by an employer A contract of employment may be terminated by an employer on the following grounds: 1. Mutual consent. 2. Death 3. Incapability 4. Misconduct. Section 36 provides for payment of equivalent salary in lieu of notice

3 TYPES OF TERMINATION A. FAIR TERMINATION i. Procedural fairness ii. Substantive fairness. Section 41 of the Employment Act-Notification and hearing before termination on grounds of misconduct Section 43- Proof of reason for termination B. UNFAIR TERMINATION Section 45-termination of employment by an employer is unfair if the employer fails to prove: That the reasons for termination are valid; and That the reasons for termination are a fair reason either relating to the employee s conduct, capacity or compatibility. Veronica Mutheu vs Catholic University of Eastern Africa

4 VALID REASONS FOR TERMINATION It must be shown that: The employer must believe at the time of termination, that the employee is guilty of the allegations against him/her. The employer had reasonable grounds on which to sustain that belief. The employer carried as much investigations as reasonable in the circumstances Section 46- reasons for termination or discipline The following activities would result in what are characterized as automatically unfair termination:

5 an employee s race, colour, tribe, sex, religion, political opinion or affiliation, national extraction, nationality, social origin, marital status, HIV status or disability; an employee s initiation or proposed initiation of a complaint or other legal proceedings against his employer, except where the complaint is shown to be irresponsible and without foundation; or an employee s participation in a lawful strike.

6 TERMINATION FOR POOR PERFORMANCE Poor performance can be seen as unsatisfactorily job performance, a gap between the employees actual performance and the level of performance required by the employer. Court has in the case of Maina Mwangi v Thika Coffee Mills Limited Industrial cause No of 2012 Rika J on 7 th March, 2014 outlined what monitoring poor performance in the workplace entails. It involves: planning the work by the employer setting of expectations continued monitoring of performance building on the employees capacity to perform periodically rating the performance rewarding good performance. Jane Samba Mukala v Ol Tukai Lodge Limited industrial cause no. 823 of 2010 (Mbaru J on 30 th September 2013),

7 WARNINGS A written warning is simply a memorandum issued to employee explaining the employer s dissatisfaction with their conduct or performance while explaining the consequences of continuing variations or infractions. In summary, a written warning must contain the following: details of the performance or conduct deficiency stated in,specific behavioural terms. Reference to the relevant disciplinary policy or the law that has been breached. Details of the corrective action required of the employee and the time frame. State the intended action if the employees conduct or performance does not improve to the required level. Reference to the previous warnings given to the employee. The employee has to sign the warning letter and where possible in the presence of a witness.

8 SECTION 44-SUMMARY DISMISSAL Summary dismissal take places when an employer terminates the employment of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term. Matters amounting to gross misconduct that would lead to lawful dismissal: i. without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work; ii. during working hours, by becoming or being intoxicated, an employee renders himself unwilling or incapable to perform his work properly; iii. an employee willfully neglects to perform any work which it was his duty to perform, or if he carelessly and improperly performs any work which from its nature it was his duty, under his contract, to have performed carefully and properly; iv. an employee uses abusive or insulting language, or behaves in a manner insulting, to his employer or to a person placed in authority over him by his employer;

9 an employee knowingly fails, or refuses, to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer; in the lawful exercise of any power of arrest given by or under any written law, an employee is arrested for a cognizable offence punishable by imprisonment and is not within fourteen days either released on bail or on bond or otherwise lawfully set at liberty; or an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer s property.

10 PROCEDURE FOR SUMMARY DISMISSAL I. The employer must carry out full investigations as regards the alleged behavior or conduct. II. The employer ought to be informed of the exact nature of the allegations for gross misconduct. III. The employee is granted an opportunity to be heard in a properly constituted disciplinary machinery as per the employment policies in the workplace. IV. The employee must be given an option of having another employee or an official from his/her trade union to be present during the hearing. V. If the outcome of the hearing is a decision to summarily dismiss an employee, the employee should be notified of the dismissal in writing citing reasons for the dismissal.

11 SECTION 49-REMEDIES FOR WRONGFUL DISMISSAL AND UNFAIR TERMINATION Where in the opinion of a labour officer summary dismissal or termination of a contract of an employee is unjustified, the labour officer may recommend to the employer to pay to the employee any or all of the following the wages which the employee would have earned had the employee been given the period of notice to which he was entitled under the Act or his contract of service; where dismissal terminates the contract before the completion of any service upon which the employee s wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice which the employee would have been entitled to by virtue of the contract; or

12 the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.

13 TERMINAL BENEFITS IN AN EMPLOYMENT A. Gratuity Gratuity is a lump sum amount that an employer pays the employee (on contract) when he retires or resigns from the organization. An employee does not contribute any portion of his salary towards this amount. Gratuity is usually paid in the following circumstances: (i) when the employee retires (ii) When the employee resigns (iii) In event of death of the employee (iv) In event of disablement i.e. because of accident or illness.

14 B. Severance pay There is no provision for severance pay in legislation for reasons other than redundancy. Section 40- termination on account of redundancy Severance pay, paid by the employer, in Kenya is equivalent to 15 days basic wages for each completed year of employment.

15 C. Pension Section 9 and 10 of the Employment Act, an employee shall be employed under a contract of service which shall include pensions and pension schemes in which the employee is involved. Section 17 of The Pensions Act- payment of pension benefits to dependants upon the death of an employee in service or on retirement

16 QUESTION AND ANSWER SESSION