Maggie, can my employer terminate me without a notice? Esther.
Esther, this is a common question that we get asked all the time.
The law is very clear on this matter. The general rule is that an employer cannot fire his/her employee whenever he/she deems it necessary unless there are reasons which he/she can prove in a court of law authorizing him/her to do so.
Section 41 of the Employment Act, 2007 provides that,
‘an employer shall, before terminating the employment of the employee on the reason or reasons of misconduct, poor performance or physical incapacity explain to the employee in the language he/she understands the reasons the employer is considering termination and the employee shall be allowed to appoint an employee of his/her choice or a union representative.’
The court made this position very clear in the case of Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR, stated that ‘Invariably therefore, before an employer can exercise their right to terminate the contract of an employee, there must be valid reason or reasons that touch on grounds of misconduct, poor performance or physical incapacity. Once this is established the employee must be issued with a notice, given a chance to be heard and then a sanction decided by the respondent based on the representation made by the affected employee.’
The length of notice depends on your employment contract, whether the same is oral or written.
Section 35 of Employment Act, 2007 provides;
- If the employee is employed on a daily basis like, lets say may be he is working at a mjengo site payable at the end of the day, the termination notice is issued at the close of business of any day without notice.
- If the employee is employed periodically at the intervals less than one month for example being paid in weekly period or two weeks basis, the notice of termination shall be given by either party at the end of such period or payment of salary in lieu of notice.
- If the contract is on monthly basis which I believe majority of the employees in the country are employed on monthly basis, the notice shall be given in twenty eight days (28) in writing or payment of one month’s salary in lieu.
- Lastly, where a contract of employment provides that a notice of termination shall be given for a greater period other than the one provided in number (iii) above, then there shall be an agreement between the employer and the employee in writing providing for longer period. The notice shall provide for equal duration for both the employer and the employee.
So strictly speaking, unless you are paid daily at the end of the day, you ought to be given some type of notice. If you want to discuss this matter further, click here for further information and advice.