Work and Business > Dismissal > Justifiable reasons
KenyaLast modified: September 26, 2011
There is no statutory requirement for a valid cause or justifiable reason of dismissal in Kenya. The employer is only required to respect a specific notice period, or to give the employee pay in lieu of notice. In case of “gross misconduct”, the employer may summarily dismiss an employee (i.e. without notice).
There is no statutory requirement for a valid cause or justifiable reason of dismissal in Kenya. The employer is only required to respect a specific notice period, or to give the employee pay in lieu of notice. In case of “gross misconduct”, the employer may summarily dismiss an employee (i.e. without notice). Sec. 17 of the EA lists the matters amounting to serious misconduct as follows:
- absence from work without leave or lawful cause;
- intoxication during working hours that prevents proper performance of work;
- wilful negligence or carelessness;
- insulting the employer or other authority;
- knowingly failing or refusing to comply with a lawful and proper order from a person in authority;
- imprisonment for an offence lasting more than four days; and
- commission of, or reasonable suspicion of commission of, a criminal offence against the employer or his or her property.
This list is not exhaustive. In addition, sec. 16 of the RWGO provides that misconduct which does not by itself warrant summary dismissal can become a valid cause for summary dismissal if it is repeated three times in spite of written warnings.
In spite of the absence of a statutory requirement of valid cause, the case law of the Industrial Court has established the necessity of a justifiable cause for dismissal via the emphasis on the principles of good industrial relations and fairness of labour practices. (These include notions of incapacity, gross negligence, redundancy and serious misconduct.) In fact the Court grants remedies to employees for wrongful dismissal if in terminating the services of an employee, “the management’s action was wanting” in the following instances:
- want of good faith (e.g. camouflaging the real reason for dismissal);
- victimization or unfair labour practices such as dismissal of an employee for trade union activities, racism, tribalism, personal grudges;
- commission of a basic error or violation of the principles of natural justice such as denying an employee a chance to defend himself [sic] before dismissing him;
- when on the materials the finding is completely baseless or perverse; and
- where the employer has been unduly harsh, e.g. terminating the services of an employee where perhaps a warning letter would have been sufficient.
Redundancy is defined in sec. 2 of the TDA as follows:
- the loss of employment, occupation, job or career by involuntary means through no fault of an employee involving termination of employment at the initiative of the employer where the services of the employee are superfluous; or
- the practice commonly known as abolition of office, job, occupation and loss of employment due to the “Kenyanization” of a business. Redundancy does not include loss of employment by a domestic servant.
This information was retrieved from the ILO.
Work & Business | Dismissal | Justifiable reasons
by Jin Ho Verdonschot on July 8, 2011