Termination notice clauses
4 years ago
One question that still gets asked quite a little bit is whether an employer can lawfully terminate an employment contract by giving the prescribed contractual notice without going into issues surrounding the employee’s performance or misconduct or whether a summary dismissal can be effected immediately the gross misconduct is discovered.
The answer is ‘no’. Even with the existence of a termination clause, the employer is still required to accord the employee a disciplinary hearing prior to termination or dismissal.
In Sammy Walter Birya v Shree Swaminarayan Academy  eKLR the Industrial Court held as follows regarding this issue: –
“Termination clauses contained in contracts of employment…are to be read together with the core termination provisions contained in Section 40, 41, 43, 45 and 47 of the Employment Act. Read alone, the result would be that termination is at the will of the Employer. As long as notice issues, or notice pay is made available, termination would be fair and lawful, and the rest of the provisions of the law mentioned above, would be meaningless. There would be no obligation on the part of the Employer to prove the reasons for termination under Section 43, 45 and 47 of the Act, and fulfill the demands of procedural fairness under Section 41 and 45 of the Act. Termination Clauses must therefore conform to these provisions…otherwise the whole termination law would be thrown back to the years before 2007, when Employers could terminate at will, for good reason, bad reason, or no reason.”
In Kenfreight (E.A.) Limited v Benson K.Nguti  eKLR the court held as follows: –
“Apart from issuing proper notice according to the contract (or payment in lieu of notice as provided), an employer is duty-bound to explain to an employee in the presence of another employee or a union official, in a language the employee understands, the reason or reasons for which the employer is considering termination of the contract. In addition an employee is entitled to be heard and his representations, if any, considered by an employer before the decision to terminate his contract of service is taken.”
In finding the Respondent was unfairly terminated, the court in International Planned Parenthood Federation v Pamela Ebot Arrey Effiom  eKLR stated as follows: –
“Despite having issued proper notice by payment in lieu of notice, the appellant failed to discharge its duty to explain the reasons for termination thereby denying the respondent an opportunity to make any representation on the matter. This was an unfair procedure which leads us to conclude that the termination was unfair.
All cases can be accessed at http://kenyalaw.org/caselaw/.
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