Employment termination notices
6 months ago
One of the ways that an employment contract can be terminated is by giving notice or paying in lieu of notice. This article looks at the intricacies of this mode of termination.
Minimum notice period
The minimum notice period is determined by the duration after which the salary is paid; so that if one is paid weekly, the minimum notice period is one week and if one is paid monthly, as most people are, the minimum notice period is one month. This simple formula is provided in Section 35 of the Employment Act, 2007;
- where the contract is to pay wages daily, a contract terminable by either party at the close of any day without notice;
- where the contract is to pay wages periodically at intervals of less than one month, a contract terminable by either party at the end of the period next following the giving of notice in writing; or
- where the contract is to pay wages or salary periodically at intervals of or exceeding one month, a contract terminable by either party at the end of the period of twenty-eight days next following the giving of notice in writing.
Therefore, if your salary is computed on the basis of a daily rate but is paid at the end of the month, you should give not less than one months’ notice of termination.
Where, however, the employment contract provides for giving a period longer than that provided in Section 35, the provisions of the employment contract will apply. It is common to find in the contracts of those in management, a requirement to give more than one month’s notice. CEO’s, for example, are normally required to give between three to six months’ notice.
Importance of the notice period
In James Chutha Gathere vs Nation Media Group Limited  eKLR the Court noted that the termination notice period is important as it ensures smooth handing over of work and company property.
Waiver of the notice
Where notice is given by the employee, the employer can waive the notice as long as the employee is paid for the notice period. This is provided in Section 38 of the Employment Act, 2007, the section provides;
Where an employee gives notice of termination of employment and the employer waives the whole or any part of the notice, the employer shall pay to the employee remuneration equivalent to the period of notice not served by the employee as the case may be unless the employer and the employee agree otherwise.
Payment in lieu of notice by the employee
Section 36, allows either party to pay the other in lieu of serving the notice period, it states;
Either of the parties to a contract of service to which section 35(5) applies, may terminate the contract without notice upon payment to the other party of the remuneration which would have been earned by that other party, or paid by him as the case may be in respect of the period of notice required to be given under the corresponding provisions of that section.
What happens if the employee wishes to pay in lieu of notice but the employer requires the employee to work for all or part of the notice period? A compromise should be reached whereby the employee is released after a proper handover and clearing. Alternatively, the employment contract should give the employer the right to require the employee to serve the notice and should also provide that the terminal dues will not be paid until the employee carries out a proper handover and clears with the various departments.
Using your leave days as part of the notice period
Where termination is by the employee, they can opt to use their leave days as part of the notice period.
Where termination is by the employer, the employee cannot be forced to utilise his leave days as part of the notice period. Such action should only be taken with the consent of the employee. The Industrial Court has upheld the legal position that leave should be taken voluntarily for purposes of rest and should not be converted and use for administrative purposes.
In David Wanjau Muhoro vs Ol Pejeta Ranching Limited  eKLR, it was held as follows: –
…The other notable irregularity in the procedure, related to the 30 days of compulsory leave, which were offset against the Claimant’s annual leave entitlement. The law does not contemplate the conversion of an Employee’s annual leave entitlement into anything else, other than cash…
…Section 28 of the Employment Act 2007, which regulates annual leave entitlement does not allow for conversion of annual leave days, into a period of disciplinary suspension.
Therefore, whereas an employee can choose to utilise their leave days as part of the notice period, this arrangement cannot be forced on an employee.
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