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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?termination

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 [2016] eKLR

In considering the amount of compensation, the Court is mandated under Section 49 [4] [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 [2017] 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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About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. Advocates. She has practiced employment law for 10 years. She is a repository junkie and a lover of editing.

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Comments

  1. Charles Wachira says:

    Hi Ann, I got a Job as HR lately. I have found your posts very useful. Thanks for keeping us posted.

  2. Dorothy Akeyo says:

    Dear Anne,

    Please help me understand under what circumstances transfer of service can be applied. A group of employees were once transferred from a parastatal to a private company as per concession agreement and after working for 10 years have now been transferred back to the same parastatal firm who have since rejected the transfer letter. The employees have been advised to re -apply for the jobs . When they were originally transferred, they were issued with fresh employment contract that has not been terminated . Are the affected employees being short changed? What should they do legally ?

    Thanks,

    1. Anne Babu says:

      Dear Dorothy, Such a transfer should only be done with the consent of the employee. The new company should declare the affected employees redundant and those who want to apply to the parastatal can do so.

  3. Frerick O. Warega says:

    Dear Anne,

    Your work is spectacularly commendable. Kudos.
    Please kindly make clarifications herein:
    Have been working in a particular company for the last ten months without laid down contractual terms. However, the agreement was made in verbatim. Given this background, I would like to know where and/or how this kind of arrangement is lawfully classified.

    Two, how can I approach the management to establish terms and conditions under which I work to ensure that my job security is assured?

    Lastly, in the event of dismissal, can I get recourse in any court of law?

    Kind Regards,
    Fred.

    1. Anne Babu says:

      Apologies for the delayed response, I have just noted that your question was not answered. An employment contract can be oral or in writing. It is the employer’s obligation to ensure that every contract for more than 3months is in writing. In the absence of a written contract, you will be deemed to be entitled to the statutory minimum terms spelt out in the Employment Act. Proving that you are entitled to more will be subject to you having evidence. For example, you will be deemed to be entitled to 21 days of annual leave. If you claim to have agreed to more, it will be your duty to establish that. My advice is that you politely request for a written contract.

  4. Njeri says:

    Hi,
    I wish to know more about full time consultants and their rights as employees.
    Since this are people working full time in an organisation they should be protected by the employment Act 2007 like other employees.
    I have had cases of fulltime consultants claiming that they are not entitled to any leave day including sick off and incase they take a day off its deducted from their pay.

    1. Anne Babu says:

      Consultants are not entitled to the same rights as employees simply because they are not employees. This article will help you understand further https://kenyaemploymentlaw.com/2017/04/18/makes-consultant-not-employee/.