MODE OF TERMINATION OF EMPLOYMENT RELATIONSHIP
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TERMINATION
OF PROBATIONARY CONTRACTS
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TERMINATION
BY NOTICE.
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REDUDANCY
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SUMMMARY
DISMISSAL
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(UN)FAIR
DISMISSAL
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GROUNDS FOR TERMINATION
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Ø Probationary
contracts are contracts that expressly
state that they are for probationary period;
Ø they last for
a maximum period of twelve months.
Ø Probationary
contracts for that reason stand
terminated at the end of the stipulated duration.
Ø Probationary
contracts can also be terminated either
by notice or summarily
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Ø
The
employer or employee
intending to end the employment relationship for whatever lawful and fair reason
can do so by giving notice to the other party.
Ø
Alternatively
, if the terminating
party fails to give notice as required, he shall be liable to paying wages in
lieu of notice for the notice period.
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Ø This s an
involuntary loss of employment, job or career of an employee.
Grounds
1)
It occurs when, at the
initiative of the employer, the services of an employee are unneeded or
become superfluous;
2)
It includes the practices commonly known as abolition of office or job.
3) It could also occur as a result of the employer’s
insolvency.
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Ø
It is the
termination of
employment summarily on the grounds that the employee is guilty of fundamental breaches/gross misconduct,
that is:-
1)
Absenteeism
2)
Intoxication
at place of work
3)
Willful negligence
or doing work carelessly,
4)
use of
insulting language to employer
5)
refusal to
obey lawful commands from employer
6)
if employee
is arrested and he’s not been set at liberty within 14 days
7)
commission
of a crime detrimental to the employer or employer’s property
8)
Breach of
any vital obligation.
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Ø The
employer is not supposed to terminate
employment relationship unfairly
Ø Termination
of employment relationship is deemed
unfair if the employer fails to prove the validity and the fairness
of the reason of termination as well as the properness of the procedure adopted.
Ø It is deemed
unfair dismissal if the grounds
of the dismissal are:
1)
going on or
proposal of going on leave of an employee;
2)
involvement
in trade unionism;
3)
race, sex,
HIV status, nationality, tribe etc.;
4)
participation
in lawful strike;
5)
initiation
of legal proceedings/complaint against the employer
6)
pregnancy
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TERMINATION
OF PROBATIONA-RY CONTRACTS
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TERMINATION
BY NOTICE.
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REDUDANCY
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SUMMMARY
DISMISSAL
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(UN)FAIR
DISMISSAL
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TERMINATION OF EMPLOYMENT PROCEDURES.
Ø Either
party may give a seven day notice
of termination or in case the
terminating party is the employer, payment of wages in lieu of notice will be
sufficient.
Ø There is
no requirement that the employee be
notified of and explained to the reasons of the termination.
Ø The
employee whose employment has either
been summarily or unfairly terminated has no right of lodging a claim as against his employer.
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1)
There is no
requirement of giving notice where wages
are paid daily; the contract terminates
at the end of the day.
2)
if the
contract
is for payment of wages periodically
but for a period shorter than a
month, notice should be given that is equivalent to the duration of such payment.
3)
where the
contract is for payment of wages
periodically for a period equivalent to or greater than a month, a notice of 28 days will be required to be
given.
4)
However,
parties can agree to make the period of
giving notice greater than that stipulated in the foregoing paragraphs.
5)
If the
employee is unable to understand the
contents of the notice, the employer shall be under duty to explain orally to
the employee in the language that the employee understands.
6)
The notice
requirement does not extend to employees who
are members of:
a)
a registered provident fund registered under the
Retirement Benefits Act; or
b)
members of a gratuity or service established under a
collective bargaining agreement; or,
c)
members of any scheme operated by the employer with
more favourable terms than those of any scheme established under the Employment
Act; or
d)
members of National Social Security Fund.
7)
For contracts
where payment is made periodically and
that period is either monthly or exceeds one month, either party terminating
the contract can make payment in lieu of notice that is equivalent to the
amount paid for that duration.
8)
Termination
by notice does not preclude an employee from disputing the lawfulness or
fairness of the termination nor
does it restrict the employee or the employer from terminating the employment
contract for any reason recognized by law.
9)
Where the
employee has given notice of
termination of service and the employee has wholly or in part waived the
notice, the employee shall be entitled to remuneration for the period not
served unless the employee and the employer agree otherwise.
10)
Where a
casual
worker works continuously for a period aggregating
more than a month or where the
work he is engaged in would reasonably take a period of three or more months to complete, he will be entitled to notice of
one month subsequent to
termination.
11)
CERTIFICATE
OF SERVICE
The employer shall issue to the
employee certificate of service at termination unless the employee has worked
for less than 4 weeks.
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1)
for the employer to terminate
employment relationship on account of redundancy he must first meet the following conditions:
a)
Where
the employee is a member of a trade union the
employer is to inform the trade union and
the area labour officer at least one month preceding his
decision to render the employee redundant.
b)
Where
the employee is not a member of any trade union, the employer should notify
him in writing and the area labour officer of the intended redundancy
c)
In
selecting the employees to be rendered
redundant, the employer should adhere to seniority, reliability, ability and
skills of the employees;
d)
The
employer should not put an employee on
a disadvantage owing to the existence of a collective agreement (setting out
the terminal benefits) to which the employee is not a member.
e)
Where
leave to an employee declared redundant
is due, the employer should pay off the leave in cash.
f)
The
employer shall give the employee one month’s notice or pay one month’s
wages in lieu of notice.
g)
The
employer is to pay to the employee
declared redundant severance pay at the rate of not
less than 15 days for every completed year of service.
2) The Minister may make Rules requiring that employers
employing a certain number of employees insures them against risk of
redundancy.
3) CERTIFICATE OF SERVICE
The employer shall issue to the
employee certificate of service at termination unless the employee has worked
for less than 4 weeks.
4)
The
employer is not bound to give a testimonial, certificate or reference
as to the performance or character of the employee.
However, willful or negligent failure of
employer to give certificate of service to the employee or where the employer
includes a statement he knows to be false in the certificate of service is an offence
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Ø The notice of
termination/dismissal may or may not be
given or if given it may be shorter than the minimum provided for.
Ø dismissal in
this case is summarily,
Ø Even so, the
employee has to be notified of and
explained to in the language that he understands of the reasons of his
dismissal, and be accorded an opportunity of being heard and represented (by
another employee or shop floor union representative).
Ø The
employer has to take into consideration
the views of the employee or his representative.
NOTE: The
right to be heard and be represented extends to instances where the employer
intends to terminate the contract on grounds
of poor
performance or physical
incapacity
LODGING A COMPLAINT OF SUMMARY DISMISSAL
1) The affected employee shall lodge a complaint with
the labour officer within 3 months
of the date of dismissal
2) The labour officer shall accord the parties a hearing
and recommend to them the best way of settling the dispute.
3) In addition, the employee has right to complain to
the Industrial court and any other right under a collective bargaining is not
precluded.
4)
REPRESENTATION
Ø
Neither the
employer nor the employee shall be
represented by an advocate in proceedings before the labour officer.
Ø However, any
party may be assisted or represented by
a member of the trade union or official of employer’s organization even
though such official may be an advocate.
5) CERTIFICA-
TE OF SERVICE
The employer shall issue to the
employee certificate of service at termination unless the employee has worked
for less than 4 weeks.
6) The
employer is not bound to give a testimonial, certificate or reference
as to the performance or character of the employee.
However, willful or negligent failure
to give certificate of service to the employee or includes in the certificate
a false statement is an offence.
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1) Whenever a
claim for termination arises, the
employer must prove the reason(s) for the dismissal.
The
employer must prove:
a)
That the reason for
the termination was a valid reason;
b)
That the
reason is fair (related to the
capacity, conduct and compatibility of the employee AND based on operational requirements of the employer)
c)
That the
termination
was in accordance with fair procedure
(the employee shall be notified of the reason(s) for the termination in the
language that he understands, be accorded an opportunity to be heard and be
represented by an employee or shop floor representative).
2) Failure to
prove the above will render the
termination unfair and therefore wrongful.
3) Unfair
termination claims may only be raised
by employees who have been engaged continuously for more than 13 months preceding the date of termination.
4) The employer
must act in accordance with justice and
equity in terminating the employment relationship if the termination is to be
fair.
5) Relevant
matters that the court/labour officer shall consider in deciding whether
termination was just and equitable (fair):
a)
the
procedure adopted by employer, communication of the decision to the employee
and manner any appeal arising from his
decision was handled;
b)
the conduct
and capacity of the employee up until his termination date;
c)
extent of
employees compliance with the provisions of employment law (procedural
requirements and issuance of certificate of service)
d)
previous
practices of the employer in dealing with the type of circumstances which led
to termination.
e)
Existence of
previous warning letters.
Ø
Hence, the
employer must ensure that he adheres to
the foregoing.
6) In a claim of
unfair dismissal, the employee shall
bear the burden of proving the unfairness of termination while the employer
shall bear the corresponding burden of proving fairness of the dismissal.
LODGING A COMPLAINT OF UNFAIR DISMISSAL.
7) The affected
employee shall lodge a complaint with
the labour officer within 3 months
of the dismissal
8) The labour
officer shall accord the disputants a
hearing and recommend to them the best way under the law of resolving the
dispute.
9) In addition,
the employee has right to complain to
the Industrial court and any other right under a collective bargaining is not
precluded.
REPRESENTATION
10) Neither the
employer nor the employee shall be
represented by an advocate in proceedings before the labour officer.
11) However, any
party may be assisted or represented by
a member of the trade union or official of employer’s organization even
though such official may be an advocate.
CERTIFICATE OF SERVICE
12) The employer
shall issue to the employee certificate
of service at termination unless the employee has worked for less than 4 weeks.
13) The employer
is not
bound to give a testimonial, certificate or reference as to the performance or character of the employee.
However, willful or negligent failure
to give certificate of service to the employee or includes a false statement
in the certificate of service is an offence
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