Unfair Dismissal in Kenya: Your Rights and How to Sue

Being fired is traumatic. But in Kenya, an employer cannot just wake up and tell you to "go home." The Employment Act (2007) protects employees from arbitrary termination. If your employer failed to follow the correct procedure, you may be entitled to **up to 12 months' gross salary** as compensation.

Whether you are an employee seeking justice or an employer trying to avoid a lawsuit, understanding the concept of "Unfair Dismissal" is critical. In this guide, we break down the legal process of termination and what happens when it is violated.

1. What Constitutes Unfair Dismissal?

Under Section 45 of the Employment Act, termination is deemed unfair if the employer fails to prove that the reason for termination was valid and fair.

Illegal Grounds for Firing:

• Pregnancy: You cannot be fired for being pregnant or taking maternity leave.
• Union Activity: Joining a trade union is a constitutional right.
• Refusal to perform illegal acts: E.g., refusing to cook books for your boss.
• Race, Tribe, or Religion: Discrimination is strictly prohibited.

2. The Mandatory Disciplinary Procedure

Even if you stole money or were incompetent, you cannot be fired instantly. The employer MUST follow Section 41 (The Right to be Heard). If they skip these steps, the dismissal becomes unfair automatically on procedural grounds.

The "Show Cause" Process

Before firing you, the employer must:

1. Issue a Notice: A "Show Cause Letter" detailing the accusations against you.
2. Allow Representation: You have the right to bring a colleague or union rep to the hearing.
3. Hold a Hearing: A formal meeting where you can defend yourself against the claims.

3. Calculating Compensation

If the Employment and Labour Relations Court (ELRC) finds that you were unfairly dismissed, Section 49 provides for several remedies:

• Reinstatement: Getting your old job back (rarely granted due to bad blood).
• Payment of Salary Arrears: Any unpaid wages up to the date of judgment.
• Compensation: The court can award you the equivalent of 12 months' gross salary.

Note: The exact amount depends on the length of service and how badly the employer behaved.

4. Constructive Dismissal

What if you weren't fired, but resigned because the environment was toxic? This is called Constructive Dismissal.

If your employer frustrated you (e.g., cut your salary without consent, verbally abused you, or demoted you without cause) to force you to quit, the law treats it as if you were fired. You can sue for damages just like a terminated employee.

5. Steps to Take if You Are Fired

If you receive a termination letter today, do not panic. Follow this checklist:

"Do not sign any 'discharge voucher' claiming you have no further claims against the company until you have spoken to a lawyer."

1. Demand Reasons: Ask for a written letter stating exactly why you were let go.
2. Appeal Internally: If the company has an appeals process, exhaust it.
3. Contact the Labour Office: Report the dispute to the local labour officer.
4. Hire an Advocate: We can issue a demand letter to your employer for settlement before going to court.

Get Legal Help Now

Employment cases have strict timelines. If you delay, you may lose your right to sue. At Mutea Muthuri & Associates, we represent both employees and employers in labour disputes.