When the newly-elected Governor of Tharaka Nithi took office, his first order of business was to fire all 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 Governors appear to have listened to wise counsel and have refrained from what would have been a mass layoff of county staff hired by their predecessors and an almost instant replacement by supporters of the incumbent. There is, however, no telling 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 2007 Employment Act only applies to the private sector. Nothing could be further from the truth.

The Act expressly states that it applies to all contracts of employment in Kenya and binds the Government (which, of course, includes county governments).

The only employment contracts excluded from the application of the Act are for persons employed in the armed forces, the Kenya police, prisons, the National Youth Service and dependants employed in a family undertaking.

Public servants are therefore protected by the safeguards provided under the Employment Act concerning arbitrary and unfair termination.

The law prescribes various remedies for unfair termination, including reinstatement or payment of a maximum of 12 months’ salary. It should, however, be noted that the maximum remedy is rarely awarded except in extreme cases of aggravated unfairness and flagrant disregard of procedure. In deciding the appropriate award, courts would normally be guided by the length of the contractual notice, seniority of the employee and the probability of the employee finding alternative employment.

The law prescribes two minimum conditions for a lawful termination. Firstly, the employer must have a valid reason for the termination and secondly, they must adopt a fair process in the termination.

Kenyan 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 already taken place. The law does not require the employee to accept the reasons given but if he or she disputes their validity, they may be able to challenge the termination on grounds of unfairness in which case the court will investigate 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 it may be.

Procedural fairness as an element of lawful termination means that every termination must be preceded by a consultation process where the employee is informed of the impending termination, the reasons for it and where the employee's response is considered objectively.

Parliament should probably have another look at the requirement for giving reasons as a pre-condition for termination of employment.

Given that employment is not an ordinary commercial contract, the hallowed 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 this clause to the extent that an employer who terminates a contract in strict conformity with the termination clause may still be found liable for unfair termination. Oddly enough, no such liability is attached to the employee for exercising the same rights conferred by the clause. The 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 to be suffered by the employer following the abrupt resignation of a key member of staff.

To new Governors, it is worth remembering that county employees are not the personal staff of the Governor as such but the County Government, a juridical body that continues to subsist regardless of any change in the occupant of the Governor’s mansion. Unless such 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 only be terminated in accordance with the law and established procedures. They can, however, be converted into fixed-term contracts but only with the written consent of the employee.

 

IKM Advocates is a member of the DLA Piper Africa Group, an alliance of leading independent law firms working together in association with DLA Piper across Africa.

Originally published as the Business Daily in Kenya, 13 November 2017. Reproduced with permission of IKM Advocates.