All employees have a duty not to have their employment unfairly terminated.

Section 45 of the Employment Act provides a termination will be unfair if the employer fails to prove that the reason for the termination is valid or that the reason for the termination is a fair reason. A fair reason would be that the termination is related to the employee’s conduct, capacity or compatibility based on the operational requirements of the employer and that the employment was terminated in accordance with fair procedure. A person will only be able to claim unfair compensation if he has continuously worked for an employer for a period of not less than 13 months. Gilbert MarieraMakori vs. Equity Bank Limited [2016] Eklr. The court in that case reported: Section 41 is very categorical on the procedure to be followed before an employee can be dismissed or terminated on grounds of misconduct, poor performance or physical incapacity.  First the employer must explain to the employee in a language the employee understands, the reason for which the employer is contemplating the termination or the dismissal.  This must be done in the presence of a witness of the employee’s choice, who must be either a fellow workmate or a union shop floor official if the employee is a member of a union. After such explanation the employer must hear the employee’s representations and the representations of the person accompanying the employee to the hearing.  The employer must then consider the representations made by and/or on behalf of the employee, before making the decisions whether or not to dismiss or terminate the services of the employee.

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