Termination of Employment in light of #COVID19Ke: Legal consideration.
The impacts of #COVID19 have been felt in nearly all sectors of the global economy.
Question: Can an employer terminate employees’ contracts on account of force majeure/frustration...
A Thread..
The impacts of #COVID19 have been felt in nearly all sectors of the global economy.
Question: Can an employer terminate employees’ contracts on account of force majeure/frustration...
A Thread..
..where the business is disrupted due to the Corona Virus?
1/Kenya’s Employment law has no procedure to be followed by employers in terminating employment in case of an outbreak of an infectious disease.However, it provides for various modes &reasons for termination of employees,
1/Kenya’s Employment law has no procedure to be followed by employers in terminating employment in case of an outbreak of an infectious disease.However, it provides for various modes &reasons for termination of employees,
..including termination on account of poor performance, misconduct or on account of redundancy.
2/. Under the Act, the employer is under obligation to justify any termination. Hence, it is advisable that any form of termination be done per the options and processes under the Act
2/. Under the Act, the employer is under obligation to justify any termination. Hence, it is advisable that any form of termination be done per the options and processes under the Act
3/ As a result of #COVID19, the best routes for employers/businesses contemplating termination, would be redundancy.
Redundancy is defined in the Employment Act as: “the loss of employment, occupation, job or career by involuntary means through no fault of an employee, involving
Redundancy is defined in the Employment Act as: “the loss of employment, occupation, job or career by involuntary means through no fault of an employee, involving
..termination of employment at the initiative of the employer, where the services of an employee are superfluous and the practices commonly known as abolition of office, job or occupation and loss of
employment.”
To relay on redundancy employer must show that:
employment.”
To relay on redundancy employer must show that:
4/
(a) it was an involuntary loss of employment at the initiative of the employer,
(b) due to factors beyond the control of the employer,
(c) at no fault of the employee whose services became superfluous.
See: CoA in Kenya Airways Limited -V- Aviation & Allied Workers Union
(a) it was an involuntary loss of employment at the initiative of the employer,
(b) due to factors beyond the control of the employer,
(c) at no fault of the employee whose services became superfluous.
See: CoA in Kenya Airways Limited -V- Aviation & Allied Workers Union
5/ On satisfaction that a frustration has occurred rendering some of the employees’ services redundant, one may terminate in accordance with the redundancy processes under the Employment Act
6/ Procedural steps in termination due to redundancy
Step 1: General Meeting. The employer is required to issue formal & sufficient notice to all the staff with a view to communicate to them information on redundancy. The communication can be electronic, a memo or verbal.
Step 1: General Meeting. The employer is required to issue formal & sufficient notice to all the staff with a view to communicate to them information on redundancy. The communication can be electronic, a memo or verbal.
The proceedings of the meeting have to be properly documented and the staff in attendance must sign an attendance sheet.
Step 2: Notification. The employee and the union (for unionisable employees) and the local labour officer ought to be notified of the intended redundancy and
Step 2: Notification. The employee and the union (for unionisable employees) and the local labour officer ought to be notified of the intended redundancy and
..of the reasons for and the extent of the redundancy.
The notice should not be for less than 30 days and cannot be paid off in lieu. The period it must run its full course. Where the employee is not a member of the union, the notification must be in writing to the employee and..
The notice should not be for less than 30 days and cannot be paid off in lieu. The period it must run its full course. Where the employee is not a member of the union, the notification must be in writing to the employee and..
..the local labour officer. {Thomas De La Rue (K) Ltd v David Opondo Omutelema [2013]eKLR}
The notice must:
i.communicate the issue of intended redundancy;
ii.The reasons for the redundancy;
iii.The departments to be affected & the employees thereof.
iv.When it'll take place
The notice must:
i.communicate the issue of intended redundancy;
ii.The reasons for the redundancy;
iii.The departments to be affected & the employees thereof.
iv.When it'll take place
7/
Step 3: Consultation. While not provided for under the Act, court decisions say that consultation with employees to be affected by the redundancy is key. The main purpose is to consult on measures that can be taken to avert/minimize the redundancies &mitigate its effects.
Step 3: Consultation. While not provided for under the Act, court decisions say that consultation with employees to be affected by the redundancy is key. The main purpose is to consult on measures that can be taken to avert/minimize the redundancies &mitigate its effects.
Step 4: Criteria for Selection for Termination. Section 40(1) (c) of the Act provides the criterion in selecting employees for redundancy. The employer, must demonstrate the objective score sheet and the ranking of the targeted employees against that score sheet with respect to..
...the selection factors set out in section 40(1) (c) of the Act failing which, it is difficult to establish compliance with the section. The selection rationale should be documented. See: Kenya Plantation and Agricultural Workers’ Union v Harvest Limited [2014] eKLR
8/
Step 5: Dues. employee declared redundant is entitled to: severance pay (which should not be less than 15 days’ pay for each year worked),salary up the last day worked, payment for accrued leave and any other contractual payments.
Step 5: Dues. employee declared redundant is entitled to: severance pay (which should not be less than 15 days’ pay for each year worked),salary up the last day worked, payment for accrued leave and any other contractual payments.
9/
The courts have held that in a redundancy process, the employer must establish that all the parameters have been taken into account and in an objective manner. It must be legitimate, simply changing the title of a position, without a legitimate change to the job description..
The courts have held that in a redundancy process, the employer must establish that all the parameters have been taken into account and in an objective manner. It must be legitimate, simply changing the title of a position, without a legitimate change to the job description..
...and skill set will not suffice; but a clear sign that one is trying to get rid of an employee through the back door.
Failure to make profits as a result of #COVID19Ke isn't a ground to terminate employees' contract unless through redundancy process.
Ends.
Failure to make profits as a result of #COVID19Ke isn't a ground to terminate employees' contract unless through redundancy process.
Ends.
