Is there any relief for an employer who does not follow the stipulated termination procedure?
11 months ago
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Unfair termination; the burden of proof
According to Section 47(5) of the Employment Act, the burden of proving that an unfair termination has occurred rests on the employee. This burden can be discharged very easily by production of the termination letter.
The burden of justifying the grounds for the termination, however, rests on the employer. According to Section 45 of the Act, for a termination to be justified, it should be based either on the employee’s conduct or performance or on the organization’s operational requirements. In addition, the procedure used to carry out the termination should be fair, that is, in accordance with the procedure stipulated in the Act.
Therefore, for an employer to discharge the burden placed on them they must be able to demonstrate with sufficient evidence that the employee had a conduct or performance issue that necessitated the termination.
The question that is frequently asked is:- what if the employer did not follow the proper procedure in carrying out the termination BUT there is ample evidence of the employee’s culpability?
I once dealt with a case where a very senior engineer, in one of our local telcos, was dismissed for carrying out his duties negligently. His actions led to a significant loss of revenue for the company. When the news of the loss causing incident came to the attention of the Managing Director, the MD was furious, he summoned the employee and dismissed him on the spot. The employee filed a case for unfair dismissal, premised primarily on the failure to comply with the termination procedure. His claim was successful and he was awarded damages. The presiding judge stated categorically that the termination was unfair and no weight would be given to the fact that there was overwhelming evidence of the employee’s gross negligence.
What of the numerous cases involving domestic workers who are summarily dismissed for valid reasons but in a manner that is contrary to the stipulated termination procedure?
I’m sure you know of many cases where an employer was justified in terminating an employee but failed to follow the procedural dictates of the Act. I have certainly come across several.
Section 49(4) of the Act provides as follows: –
(4) A labour officer (and, the Industrial Court, by virtue of Section 50) shall, in deciding whether to recommend the remedies specified in subsections (1) and (3), take into account any or all of the following-
(k) any conduct of the employee which to any extent caused or contributed to the termination;
Those magic words mean that an employee’s conduct should be taken into consideration when the court is considering an unfair termination case. Any advocate representing an employer in such a case should highlight this.
In Karisa Charo Kiraga v Crown Petroleum [Kenya] Limited  eKLR
In considering the amount of compensation, the Court is mandated under Section 49  [k] of the Employment Act, to look at the conduct of the Employee, which to any extent caused or contributed to the termination.
The Claimant appears to be highly mobile, changing Employers at will. He however does not always seem to move in a manner consistent to his contractual obligations. He contributed to the termination. He is granted a minimal 1 month salary in compensation for unfair termination, at Kshs. 25,000.
In Patrick Njuguna Kamau & 26 others v Wilham (K) Limited  eKLR
The court finds that the claimants contributed to their termination. The termination was unfair for want of due process of a notice and hearing. Even for the 27th claimant, the court returns that there is no evidence that she was accorded due process. To balance justice and taking into account the tenure of service of the claimants prior to the termination, their desire to continue in employment and their established contribution to the termination, the court awards each of them six months’ gross pay for the unfair termination under section 49(1)(c) of the Employment Act, 2007. As they were not given a termination notice, each is awarded one month pay in lieu of the termination notice.
Though the termination will still be considered unlawful, the damages will be much lower than would have been awarded if there was no proof that the employee caused or contributed to the termination.
There you go…here’s to substance over form!
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