Employers must follow fair process, Court rules in landmark case

In a landmark ruling, the Employment and Labour Relations Court has set a new standard for employers, requiring them not only to provide reasons for terminating an employee but also to prove that those reasons are valid.

The ruling clarifies that failure to demonstrate the legitimacy of the reasons could result in termination being considered unfair.

Justice Ocharo Kebira’s decision comes after a legal challenge from Jazak Salim, who sued Kenya National Shipping Line Ltd (KNSL) over her dismissal.

The judge emphasized that under the Employment Act, it is not enough for employers to claim a reason for dismissal; they must provide valid evidence that the reason justifies the termination.

Failure to do so, the court ruled, will result in the termination being deemed unfair.

Justice Kebira explained that while the Employment Act does not define what constitutes a valid reason, it is one that is reasonable and legitimate in the circumstances surrounding the case.

He further noted that employers are obligated under Section 43 of the Employment Act to prove the reasons for termination in any dispute.

If they fail to meet this burden of proof, the termination will be considered unfair as per the law.

The case arose when Salim challenged her firing by KNSL, arguing that the process was not fair.

Justice Kebira also addressed the issue of disciplinary hearings, stating that not every meeting labeled as such by an employer qualifies as an actual disciplinary hearing in the eyes of the law.

He pointed out that Salim was not given a proper opportunity to prepare and defend herself against the allegations made against her.

With no minutes recorded from the meeting and a lack of sufficient evidence, the judge concluded that the hearing was merely a formality and not a legitimate process.