When the newly elected governor of Tharaka Nithi took office, his first order of business was to fire all of the county staff employed during his predecessor's tenure. This must have sent shivers down the spines of hundreds of county government workers across the country, as a number of other governors indicated that they were determined to follow suit.
Fortunately, the majority of the governors appear to have listened to counsel and refrained from what would have been a mass lay off of county staff hired by their predecessors and an almost instant replacement by supporters of the incumbent governor. However, there is no indication as to whether this is merely a lull before the storm, hence the need to set the law straight.
While public service has its own internal procedures and processes, there is clearly a misconception among some county officials that the Employment Act 2007 applies only to the private sector – nothing could be further from the truth.
The act expressly states that it applies to all employment contracts in Kenya and binds the government (including county governments). The only employment contracts excluded from the act's application are for persons employed in the armed forces, police, prison service and national youth service, as well as dependants employed in a family undertaking. Public servants are therefore protected by the safeguards provided under the act concerning arbitrary and unfair termination.
The law prescribes various remedies for unfair termination, including reinstatement or payment of up to 12 months' salary. However, the maximum remedy is rarely awarded except in extreme cases of aggravated unfairness and flagrant disregard of procedure. In deciding the appropriate award, courts are normally guided by:
- length of contractual notice;
- employee seniority; and
- likelihood of the employee securing alternative employment.
The law prescribes two minimum conditions for lawful termination:
- the employer must have a valid reason for the termination; and
- the employer must adopt a fair termination process.
The courts have ruled that the doctrine of 'termination at will' was abolished in Kenya following the enactment of the Employment Act in 2007. This means that while parties are free to enter into an employment contract at will, the employer cannot terminate it at will.
The reasons for termination must be given before and not after the termination has taken place. The law does not require that the employee must accept the reasons given, but if the employee disputes their validity then he or she could challenge the termination on grounds of unfairness, in which case the court will interrogate the validity of the reasons given. At any rate, it is unrealistic to expect an employee facing dismissal to accept the reason given, however plausible.
Procedural fairness as an element of lawful termination means that every termination must be preceded by a consultation process with the employee, where the employee is informed of the impending termination, the reasons for it and any response is considered objectively.
Parliament should look again at the requirement for giving reasons as a pre-condition for termination of employment. Although employment is not an ordinary commercial contract, the doctrine of freedom of contract should be respected. Parties enter into contracts freely and should be able to exit them in the same manner. This is the essence of having a termination clause, which is found in every well-drafted employment contract.
The requirement for giving reasons negates the purpose and value of such a clause to the extent that an employer which terminates a contract in strict conformity with the termination clause may still be found liable for unfair termination. Oddly enough, no such liability attaches to the employee for exercising the same rights conferred by the clause. An employee can walk out at any time as soon as he or she finds a better-paying job, irrespective of the inconvenience and financial loss suffered by the employer following such an abrupt resignation.
County employees are not the personal staff of the governor but of the county government, a juridical body corporate that continues to subsist regardless of any change in the occupant of the governor's mansion. Unless county employees' employment contracts were for a fixed five-year term ending with the reign of the previous governor, they remain in full force and effect and can be terminated only in accordance with the law and laid down procedures. However, they can be converted into fixed-term contracts, but only with the employee's written consent.
For further information on this topic please contact William Ikutha Maema at Iseme, Kamau & Maema Advocates by telephone (+254 20 271 1021) or email ([email protected]). The Iseme, Kamau & Maema Advocates website can be accessed at www.ikm.co.ke.
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