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Questions & Answers

As long as you can justify the poor performance and as long as you have complied with the termination procedure, you have the right to terminate. If the employee declines to receive the letter then have someone witness the delivery of the letter and if the employee once again declines to receive it, the witnesses should endorse on the letter that they were present when the letter was offered but the employee declined to receive it.
As long as you have a valid reason for termination and as long as the requisite processes have been followed, an employer should not be held at ransom by an employee.
A redundancy is a completely different avenue for termination and can only be effected if the requisite conditions are met, if not, it will be clear that you are simply looking for ways to terminate.

Answer by Anne Babu

  2 years ago

I have come across similar terms in a number of contracts. There is nothing unlawful about such provisions as long as the statutory minimum period is observed.
If an employee is paid monthly then the minimum period is one month.
Contractual terms are agreed upon before the contract is signed, therefore if someone has an issue with any provision, it should be raised before signing.

Answer by Anne Babu

  2 years ago

Yes, if that’s what the employer is able to offer and if the terms are acceptable to the employee.

Answer by Anne Babu

  2 years ago

Gratuity is not mandatory under the law and is therefore is only paid where the contract provides for it and as per the formula set in the contract.

Answer by Anne Babu

  2 years ago

Hello Claire,
Holiday – most companies give the statutory minimum of 21 days. Very senior staff may get more.
Public holidays – we go buy the gazetted public holidays.
Pension – a good number of companies offer a pension plan. Others stick to the mandatory National Social Security Fund. A pension plan is considered a benefit.
Healthcare – speak to a lady called Julie of Resolution Health Care (+254 721335273). Compare their rates with those of Jubilee Insurance.

Answer by Anne Babu

  1 year ago

Hi Esther,
In response to your first question, you justify by evaluating all affected employees in a certain job category against the pre-determined parameters…skill, ability, performance etc.
In response to your second question, there is a risk of the employee claiming undue influence or duress. It’s not advisable to do this unless you are dealing with an employee who has the ability to obtain independent legal advise so at to reduce any chances of claiming undue influence.

Answer by Anne Babu

  1 year ago

Hi Anne,
A fixed term contract ends on the last day of the contract and the employer has no obligation to the employee beyond that date. Discrimination does not arise – the employee was given a contract with a clear end date.

Answer by Anne Babu

  1 year ago

If the complainant and witness are not available then there is a high likelihood that the accused will be acquitted for lack of evidence.
Whether or not the former employee will succeed in a case for unfair dismissal will depend on whether the company had a valid reason for dismissing him and whether the termination procedure was followed. An acquittal in a criminal court does not automatically mean that the company was wrong in dismissing the employee. As to the remedies for unfair dismissal, please see the post on termination.

Answer by Anne Babu

  1 year ago

Negotiable items are stipulated in the Recognition Agreement.
Leave travelling allowance is provided for in the various orders passed under the Regulation of Wages & Conditions of Employment Act, Cap 229, the Act has since been repealed but the orders remain in force.

Answer by Anne Babu

  1 year ago

The person earning less than Kshs. 10,164/= isn’t liable to pay PAYE. For the rest see the income tax rates in the Third Schedule of the Income Tax Act which can be found at http://www.kenyalaw.org/lex//actview.xql?actid=CAP.%20470#KE/LEG/EN/AR/I/CHAPTER 470/hc_SCH_01/sec_3_t64.

Answer by Anne Babu

  1 year ago

Hi Dennis, thank you for your question. We’re working on a comprehensive post on demotions which should be posted on Monday next week.

Answer by Anne Babu

  1 year ago

An employee is controlled by his employer – from the work that he does to how he does it – and he is subject to terms and conditions such as working hours, annual leave, medical attention, house allowance etc. A consultant is not subject to such terms and conditions. I do not see a problem with considering a part time lecturer a consultant and deducting the withholding.

Answer by Anne Babu

  1 year ago

a) Performance management is not expressly provided for in the Employment Act, however, such a policy should be in place as it provides the basis for terminations that are based on performance. The Industrial Court has held that the employer should have a performance management system and that the employee should be put through that system prior to termination. The policy need not be elaborate or complex, as long as you have clear job descriptions, a way to measure performance and evidence that the employee has been given room for improvement.
b) According to the company’s grievance policy. Alternatively raise the matter with the supervisor’s line manager, having first raised it with the line manager.
c) The employee should complete his portion of the form to avoid allegations that he/she did not comply with instructions.

Answer by Anne Babu

  1 year ago

The termination should be for a valid reason and the termination procedure should be followed. The employer should give a clear explanation of what has led to the loss of trust then hold a disciplinary hearing prior to effecting the termination otherwise the termination will be held to be unlawful.

Answer by Anne Babu

  1 year ago

Hi, you can send me an email on anne.babu@kenyaemploymentlaw.com

Answer by Anne Babu

  1 year ago

The notice can be withdrawn if the situation that led to the redundancy ceases to exist. You have every right to inform your employer that following receipt of the notice, you have secured employment elsewhere and you do not wish to stay. Unfortunately in that case you will be deemed to have resigned and no severance will be due to you.

Answer by Anne Babu

  1 year ago

Hi Caroline, the following article should answer your question https://kenyaemploymentlaw.com/2016/10/01/just-how-lawful-is-it-to-demote-someone/.

Answer by Anne Babu

  1 year ago

If you pay for the notice period then that is not a summary dismissal but rather a termination by paying salary in lieu of notice.

Answer by Anne Babu

  1 year ago

Please see this post, I believe your question on suspension will be answered https://kenyaemploymentlaw.com/2016/08/22/suspension-with-no-pay/.

Calculation of bonuses depends on the provisions of the contract. Normally it is at the discretion of the employer and modalities of calculation should be stated in the contractual documents. I do not think there is a ‘best way’ as factors such as the nature of business etc all contribute.

Answer by Anne Babu

  1 year ago

Hi, there is no prohibition against such a practice.

Answer by Anne Babu

  12 months ago

Yes you are; paternity leave is an entitlement for any employee; probation is irrelevant in this case.

Answer by Anne Babu

  11 months ago

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