The document discusses Kenyan labour laws regarding employee termination. It outlines the notice periods required for termination, as well as situations that permit termination without notice such as gross misconduct. Redundancy procedures are also specified, requiring employers to consider seniority and notify unions. The document defines unfair termination as situations related to pregnancy, leave, union activities, and discrimination.
The document discusses Kenyan labour laws regarding employee termination. It outlines the notice periods required for termination, as well as situations that permit termination without notice such as gross misconduct. Redundancy procedures are also specified, requiring employers to consider seniority and notify unions. The document defines unfair termination as situations related to pregnancy, leave, union activities, and discrimination.
The document discusses Kenyan labour laws regarding employee termination. It outlines the notice periods required for termination, as well as situations that permit termination without notice such as gross misconduct. Redundancy procedures are also specified, requiring employers to consider seniority and notify unions. The document defines unfair termination as situations related to pregnancy, leave, union activities, and discrimination.
contract of service by observing the following provisions; (a) Where the contract is to pay wages daily, a contract can be terminated by either party at the close of any day without notice.
2 b) Where the contract is to pay wages periodically at intervals of less than one month (e.g. 2 weeks), a contract can be terminated by either party giving a written notice equivalent to that period (e.g. 2 weeks written notice). (c) where the contract is to pay wages or salary periodically at intervals of or exceeding one month, a contract can be terminated by either party by giving a 28 days written notice (one month notice).
3 • (d) A party to a contract for a probationary period may terminate the contract by giving not less than seven days’ notice of termination of the contract.
4 PAYMENT IN LIEU OF NOTICE • Either of the parties to a contract of service, may terminate the contract without notice upon payment to the other party of the remuneration which would have been earned by that other party in respect of the period of notice required to be given e.g. pay one month salary if you do not give your employer one termination month notice.
6 (a) Without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work (most organizations provide for seven days absence). (b) During working hours, by becoming intoxicated, an employee renders himself unwilling or incapable to perform his work properly. (c) An employee willfully neglects to perform any work which it was his duty to perform, or if he carelessly and improperly performs the work Advancing Knowledge, Driving Change | www.kca.ac.ke 7 Summary dismissal contd…. (d) 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. (e) 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.
8 (f) an employee is arrested for a cognizable offence - is not within fourteen days either released on cash bail or otherwise lawfully set at liberty. g) 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. (Sufficient evidence is available)
Redundancy : the state of being no longer needed in
employment because there is no more work available for you. • An employer shall not terminate a contract of service on account of redundancy unless the employer complies with the following conditions—
10 Redundancy procedure (a) where the employee is a member of a trade union, the employer notifies the union to which the employee is a member and the labour officer in charge of the area
11 (b) where an employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer; (c) the employer has, in the selection of employees to be declared redundant had due regard to seniority ,skill, ability and reliability of each employee of the particular class of employees affected by the redundancy;
12 (d) where there is in existence a collective agreement between an employer and a trade union setting out terminal benefits payable upon redundancy e) the employer has not placed the employee at a disadvantage for being or not being a member of the trade union; (e) the employer has, where leave is due to an employee who is declared redundant, paid off the leave in cash;
14 Severance pay • Severance pay is the compensation an employer provides to an employee after employment is over as a result of no fault of the employee (usually through redundancy).
• NB. This section shall not apply where an
employee’s services are terminated on account of insolvency.
16 • if the employer is a company— (i) a winding-up order has been made (ii) a receiver or a manager of the company’s undertaking has been duly appointed since the company cannot meet its financial obligations.
17 Termination by retirement • Occurs under the following: • when a person reaches the mandatory retirement age or as fixed by the parties • Medical grounds –one is sick on and off and affects performance • In the public interest –one has engaged in wrongful activities but the employer prefers not to institute legal proceedings • Abolition of office
18 Termination by operation of law • Contract of employment is automatically terminated under the following circumstances: • Persistent illness that amounts to incapacity • Bankruptcy of the employee • Sale of business • Winding up of business • In the event of frustration
20 Unfair termination refers to termination which is not protected by the law. The following constitute grounds for unfair termination according to the Employment Act; (a) a female employee’s pregnancy, or any reason connected with her pregnancy; (b) the going on leave of an employee, or the proposal of an employee to take, any leave to which he was entitled under the law or a contract;
21 Grounds of unfair termination (c) an employee’s membership or proposed membership of a trade union; (d) the participation or proposed participation of an employee in the activities of a trade union outside working hours or, with the consent of the employer, within working hours;
22 (e) an employee’s seeking of office or having acted in the capacity of an officer of a trade union. (f) an employee’s refusal to join or withdraw from a trade union;
23 (g) an employee’s race, colour, tribe, sex, religion, political opinion or affiliation, nationality, social origin, marital status, HIV status or disability;
(h) 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 (without evidence or malicious accusations).
24 • i) an employee’s participation in a lawful strike.
• NB: In any claim arising out of termination of a
contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair.
The following are the possible remedies for unfair
termination; (a) the wages which the employee would have earned had the employee been given the period of notice to which he was entitled under this Act or his contract of service;
26 (b) the proportion of the wages due for the period of time for which the employee has worked i.e where termination occurs before the employee gets paid what’s due to him. (c) the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly salary of the employee at the time of dismissal.
27 d) reinstate the employee and treat the employee in all respects as if the employee’s employment had not been terminated. (e) re-engage the employee in work comparable to that in which the employee was employed prior to his dismissal, or other reasonably suitable work, at the same wage
28 2. Where an employee has been summarily dismissed or his employer has unfairly terminated his employment without justification, the employee shall, within three months of the date of dismissal, present a complaint to a labour officer (After the lapse of three months, the matter shall be dealt by the industrial court). 3. No employee whose services have been terminated or who has been summarily dismissed during a probationary contract shall make a complaint under this section. Advancing Knowledge, Driving Change | www.kca.ac.ke 29 Certificate of service
An employer shall issue to an employee a certificate
of service upon termination of his employment, unless the employment has continued for a period of less than four consecutive weeks (one month). A certificate of service issued shall contain— (a) the name of the employer and his postal address; (b) the name of the employee;
30 (c) the date when employment of the employee commenced; (d) the nature and usual place of employment of the employee; (e) the date when the employment of the employee ceased; and (f) such other particulars as may be prescribed.
31 Protection of wages PROTECTION OF WAGES (1) Subject to the employment Act, an employer shall pay the entire amount of the wages earned by or payable to an employee in respect of work done by the employee in — (a) in cash; b) into a bank account or Sacco designated by the employee. (c) by cheque, postal order or money order in favour of the employee.
32 Protection of wages • (d) in the absence of an employee, to a person other than the other employee, if the person is duly authorised by the employee in writing to receive the wages on the employee’s behalf. • No employer shall limit or attempt to limit the right of an employee to dispose of his wages in a manner which the employee deems fit.
33 DEDUCTION OF WAGES an employer may deduct from the wages of his employee—
(a) any amount due from the employee as a
contribution to any provident fund or any scheme approved by the Commissioner for Labour to which the employee has agreed to contribute e.g. Sacco savings
34 • (b) a reasonable amount for any damage done to, or loss of any property lawfully in the possession or custody of the employer occasioned by the willful default of the employee. • (c) an amount not exceeding one day’s wages in respect of each working day the employee is absent from work without leave or other lawful cause.
35 (d) an amount equal to the amount of any shortage of money arising through the negligence or dishonesty of the employee whose contract of service provides specifically for his being entrusted with the receipt, custody and payment of money e.g. banking industry or cashiers
36 e) any amount paid to the employee in error as wages in excess of the amount of wages due to him i.e over payments. (f) any amount the deduction of which is authorised by any written law for the time being in force.
37 • (g) any amount in which the employer has no direct or indirect beneficial interest, and which the employee has requested the employer in writing to deduct from his wages e.g. employee savings. • (h) Advances or loans given to employee by the employer in writing.
• (i) such other amounts as the cabinet secretary for
labour may prescribe or a court of law e.g. child maintenance fee etc. Advancing Knowledge, Driving Change | www.kca.ac.ke 38 GENERAL REGULATIONS REGARDING EMPLOYEE PAYMENTS
• Hours of work per day or week
• Normal working hours consist of 45 hours of work
per week, eight hours from Monday to Friday , and five hours on Saturday. Collective agreements may modify the working hours, but generally provide for weekly working hours of 40 up to 52 hours per week.
• A person employed for night work may not work for
more than 60 hours a week. Advancing Knowledge, Driving Change | www.kca.ac.ke 39 • The end