Unfair Dismissal Claims

An unfair dismissal claim is a legal action brought by an employee who believes that their termination was unlawful — either because the employer did not have a fair reason for the dismissal, or because the employer did not follow a fair procedure, or both. In Kenya, unfair dismissal is governed by sections 41 to 46 of the Employment Act, 2007, and the jurisprudence of the Employment and Labour Relations Court (ELRC). The Employment Act sets out the two-part test for a fair termination: the employer must have a valid reason (related to the employee's conduct, capacity, or the employer's operational requirements), and the employer must follow a fair procedure (including a hearing, the right to a companion, and a written reason for the decision).

Advocates offering this service act for both employees and employers. For employees, they provide representation from the moment the termination is contemplated or announced. Advocates review the circumstances of the termination, assess whether the employer had a valid reason and followed a fair procedure, and advise on the prospects of success in an unfair dismissal claim. Advocates calculate the remedies available — including reinstatement, re-engagement, and compensation (up to a maximum of 12 months' salary) — and they recommend the most effective strategy for pursuing the claim.

Advocates file claims before the Employment and Labour Relations Court, which has exclusive jurisdiction over employment disputes. Advocates prepare the statement of claim, the supporting affidavit, and the list of documents and witnesses. Advocates handle the entire court process — from the pre-trial conference through the hearing to the judgment — and they present the evidence and arguments that demonstrate that the termination was unfair.

For employers, they defend unfair dismissal claims. Advocates review the termination process, identify the strengths and weaknesses of the employer's position, and develop a defence strategy. Advocates prepare the statement of response, the supporting affidavit, and the list of documents and witnesses. Advocates challenge the employee's evidence, present the employer's evidence, and argue that the termination was both substantively fair (the employer had a valid reason) and procedurally fair (the employer followed a fair process).

Beyond representation in court, they provide proactive advice to employers on the management of terminations. Advocates guide employers through the section 41 hearing process — ensuring that the employee is given notice of the allegations, an opportunity to be heard, the right to be accompanied by a colleague or shop steward, and a written reason for the termination. Advocates advise on the documentation of the hearing — the invitation letter, the hearing notes, the outcome letter — which is critical to demonstrating procedural fairness if the termination is later challenged.

Advocates also handle redundancy — a form of termination that is governed by section 40 of the Employment Act and which has its own procedural requirements, including consultation with affected employees (and their union, if applicable), notification of the labour office, and the payment of severance. Advocates advise employers on the lawful management of redundancies, and they act for employees who have been made redundant without compliance with section 40.

For constructive dismissal cases — where the employee resigns because of the employer's conduct — they advise on whether the employer's conduct amounted to a repudiatory breach, and they pursue claims for compensation where the constructive dismissal is established.