The Employment Act, 2007 makes a distinction between termination and dismissal. It distinguishes unfair termination and wrongful dismissal.
Wrongful Dismissal
An employer is required to give notice to his employee before terminating the employee’s contract of service.
Section 44 of the Employment Act provides that an employer may only resort to summary dismissal when the employee has, by his or her conduct fundamentally breached his or her obligations arising under the contract of service. It is only a misconduct that is gross in nature that will entitle the employer to summarily dismiss an employee.
The section goes on to give instances of misconduct which amount to gross misconduct as to justify the summary dismissal of an employee. The courts have held that the list given by Section 44 is not exhaustive and the behavior of an employee can be construed as being that which fundamentally breaches their obligation under the employment contact.
Where an employee is summarily dismissed for any other reason outside the confines of fundamental breach of employment contract, then that action by the employer amounts to wrongful dismissal.
Unfair Termination
Termination of employment will be unfair if the court finds that in all the circumstances of the case, it is based on invalid reason or if the reason itself or the procedure of termination are themselves not fair. Specifically, it will be unfair if it relates to;
- A female employee’s pregnancy,
- The going on leave of an employee,
- An employee’s membership of a trade union,
- The participation of an employee in the activities of a trade union,
- The employee’s seeking office in a trade union, or his refusal to join or withdraw from a trade union,
- An employee’s race, colour, tribe, sex, religion, political opinion or affiliation, national extraction, nationality, social origin, marital status, HIV status or disability,
- An employee’s initiation of a complaint or legal proceedings against the employer unless done irresponsibly, or
- An employee’s participation in a lawful strike.
According to Section 45(3) only an employee who has been in continuous employment for a period not less than thirteen months immediately before the date of termination has the right to complain that he has been unfairly terminated.
Remedies for wrongful dismissal and unfair termination are provided for in Sections 49 and 50 of the Employment Act.
Remedies for Unfair Termination.
- Compensation – includes payment of damages equivalent of a number of months’ wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal together with any other accrued benefits including: –
- Payment in lieu of notice of termination (not less than 1 months’ salary as provided under the Employment Act but can exceed this amount if the contract of service or the CBA provides so);
- Payment for any accrued leave days;
- Payment for overtime worked;
- Payment for days worked but not paid for at the time of termination of employment;
- Service pay for every year worked, the terms of which shall be fixed.
Service pay is not applicable where an employee is a member of a registered pension or provident fund scheme under the Retirement Benefits Act (No. 3 of 1997); a gratuity or service pay scheme established under a collective agreement; any other scheme established and operated by an employer whose terms are more favourable than those of the service pay scheme established under this section; and the National Social Security Fund.
- Gratuity in case of termination through redundancy. Gratuity is payable for every 15 days of each year of service.
- Payment for unexpired term of contract.
- Payment of damages for workplace defamation.
- Reinstatement
- Reinstate the employee and treat the employee in all respects as if the employee’s employment had not been terminated; or
- Re-engage the employee in work comparable to that in which the employee was employed prior to his dismissal, or other reasonably suitable work, at the same wages.
- Issuance of a Certificate of service.
This is a statutory requirement under the Employment Act regardless of the nature and circumstances of termination of the employee unless the employment has continued for a period of less than four consecutive weeks.
An employer is not bound to give to an employee a testimonial, reference or certificate relating to the character or performance of that employee.
A certificate of service must contain: –
- The name of the employer and his postal address;
- The name of the employee;
- The date when employment of the employee commenced;
- The nature and usual place of employment of the employee;
- The date when the employment of the employee ceased; and
- Such other particulars as may be prescribed.