Kenya Court Rules Employers Must Give Workers a Hearing Before Dismissal

The Employment and Labour Relations Court in Nairobi has reaffirmed that employers may dismiss workers for misconduct, but they must follow due process before terminating an employee’s contract.

The decision came after a clash between the security guard, who worked at Kasarani Stadium, and the stadium officials over his involvement in an unprotected strike in May 2021. The stadium gates were said to be locked during the industrial action to stop people from being able to enter and exit the stadium easily.

The employer had a valid reason to terminate the guard’s employment, however, it did not conduct the necessary disciplinary procedures as required by law, concluded Justice D. K. Njagi Marete.

The court documents state the guard had received a call and was directed to send an apology about his alleged role in the strike. He wasn’t formally notified of the claims against him nor had he been provided with adequate notice to respond to the allegations before the decision to dismiss was reached.

The court found that this procedure was not in compliance with Section 41(1) of the Employment Act, 2007 of Kenya which stipulates that when an employee is suspected of wrongdoing, the employee must be informed of the charges and given an opportunity to defend themselves before any termination.

Thereafter, the court ruled that the dismissal was unfair in terms of the procedure and said the former security guard Ksh34,826.48 was entitled to compensation for the breach of the procedure. He also received Ksh129,198.63 as wage underpayments, which includes interest.

The employer was also mandated to issue the former employee with a Certificate of Service within 30 days.

The court did not find the dismissal process unfair, but did find that the employer had a valid based on his actions. The judge concluded the guard was involved in the unprotected industrial action and that was a legitimate reason for termination of employment.

In Kenya, under the Labour Relations Act, industrial action can be deemed ‘unprotected’ if workers do not give their employer and government authorities a minimum of seven days’ notice. An illegal strike can also be one that violates a current court order or a valid collective agreement.

The ruling is significant as it explains the difference between employment legislation and the right of an employer to dismiss an employee on a legitimate basis and their duty to adhere to a fair disciplinary process.

Employers are therefore not allowed to summarily dismiss employees after an allegation of misconduct is made, even if there is evidence to support the allegations. An employee subject to a disciplinary action shall have the opportunity to respond to the factual allegations against him/her, which shall include a meaningful opportunity to explain himself or herself, and the right to have a representative present as required by law.

At the same time, the judgment does not provide employees with immunity from disciplinary consequences. Where misconduct is properly established, an employer may still have grounds to terminate employment, provided the dismissal is carried out in accordance with the law.