TERMINATION OF EMPLOYMENT RELATIONSHIP

MODE OF TERMINATION OF EMPLOYMENT RELATIONSHIP

TERMINATION OF PROBATIONARY CONTRACTS

TERMINATION BY NOTICE.

REDUDANCY

SUMMMARY DISMISSAL

(UN)FAIR DISMISSAL

GROUNDS FOR TERMINATION
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	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.	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.	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.	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

TERMINATION OF PROBATIONA-RY CONTRACTS

TERMINATION BY NOTICE.

REDUDANCY

SUMMMARY DISMISSAL

(UN)FAIR DISMISSAL

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.

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.

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

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.

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