DO YOU KNOW YOUR EMPLOYMENT RIGHTS?

Under the Employment Act, there are five major avenues through which an individual’s employment can be determined. They are
  • Termination of Contract by either party in accordance to the terms and conditions of the contract.
  • Termination of Contract in accordance with Section 35 of the Employment Act
  • Summary Dismissal
  • Unfair Termination of employment and
  • Unlawful Termination or Wrongful Dismissal
I shall endeavor to impart some knowledge on any employer and more so the employee out there on what to expect from the other party in the event your contract comes to an end. 

Termination of an Employment Contract
The general provision of the law is that any contract of service for a period of more than three months should be in writing. The law further provides that it is the duty of the employer to ensure that the contract of employment is drafted and that the same is issued to the employee. However where the employer for whatever reasons fails to put the contract in writing, the terms and conditions provided for in the Employment Act shall come into operation.

The Procedure for termination of an employment contract is provided for under sections 35 of the Employment Act.

Section 35 (1) provides for termination Notice. Of particular concern is section 35 (1) (C) which provides that where an employer wishes to terminate the services of an employee or where an employee wishes to terminate his services, either of the party shall give the other a 28 days Notice as the case may be which section is supplemented by section 36 of the Act which provides for payment in lieu of Notice.  

Section 35 (4) of the Act provides for the employee’s right to dispute the lawfulness or fairness of his termination.

Finally under Section 35 (5), an employee terminated under subsection 1(c) is entitled to service pay for every year worked the terms of which should be fixed.

Where the employer claims to dismiss the employee on grounds of misconduct, poor performance or physical incapacity, Section 41 of the Employment Act comes into operation. The employer is under a duty and obligation to observe the following;
  • Explain to the employee in a language that he understands the reason for which the employer is considering his termination.
  • During this explanation, the employee shall be entitled to have another employee or a shop floor union representative of his choice during this explanation.
  • The employer shall also before terminating the services of the employee give the employee an opportunity to make his representations. If any of these provisions are contravened then this would be amount unlawful termination of employment.

In the event that all the above provisions are followed to the letter then the termination of employment is lawful unless the reasons given by the employer are unjustifiable.
In the event that the procedure above is not followed, then the termination of employment is wrongful in which case the recourse of the employee shall be as provided for under the provisions for wrongful termination under section 49 of the Act.

Summary Dismissal
Summary Dismissal on the other hand takes place when an employer terminates the employment of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term on grounds of gross misconduct or fundamental breach of obligations arising under the contract of service.

Acts which amount to gross misconduct are further provided for under Section 44 of the Employment Act. They are;
  • Where without leave or other lawful cause an employee absents himself from the place appointed for the performance of his work.
  • Where during working hours an employee becomes intoxicated thus rendering himself unwilling or incapable of performing his work properly.
  • Where an employee wilfully neglects to perform any work which it was his duty to perform, or where he carelessly and improperly performs any work which from its nature it was his duty, under his contract to have performed carefully and properly.
  • Where an employee uses abusive or insulting language or behaves in a manner insulting to his employer or to a person placed in authority over him or his employer.
  • Where an employee knowingly fails or refuses to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or  person placed in authority over him by his employer.
  • Where in the lawful exercise of any power of arrest given by or under any written law an employee is arrested for a cognizable offence punishable by imprisonment and is not within fourteen days either released on bail or on bond or otherwise lawfully set at liberty.
  • Where an employee commits or on reasonable and sufficient grounds is suspected of having committed a criminal offence against or to the substantial detriment of his employer or his employer’s property.

Where one is dismissed on grounds of gross misconduct, he is not entitled to anything other than his wages for the days worked and any other dues that he was yet to be paid at the time of his dismissal.

However the employee is still entitled to a fair and just hearing before his dismissal and where there is an appeal procedure he is entitled to an Appeal. All procedure relevant to termination of employment as discussed above applies in this case too. Where an employer fails to follow these procedures, the dismissal is wrongful and the employee’s recourse would be as provided for under the provisions for wrongful dismissal under Section 49 of the Act.

Unfair or Termination
Unfair termination occurs where the employer fails to prove that the reason for termination is valid or where the employer fails to prove that the reason for the termination was a fair reason.

Section 45 further makes provision that an employer who has worked for more than thirteen years immediately before the date of termination may complain of unfair termination.

The law further states that in deciding whether the termination was just and equitable, the procedure by which the employee’s contract was determined, the communication of the decision to the employee and handling of any appeal against the decision. In addition the conduct of the employee up to the time of termination and the extent to which the employer has complied with the statutory requirements shall also be taken into account.

Where the termination of an employee is found to be unfair the, the employee is entitled to
  • The wages which would have been earned had the employee been given the period of Notice to which he was entitled under the Act or the Contract of service.
  • Where the dismissal terminates the contract before the completion of any service upon which the employee’s wages are due, the proportion of the wage due for the period of time for which the employee has worked.
  • The equivalent of a number of months not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.
This recourse in my opinion is however only available to employees who have worked for thirteen years or more immediately prior to the termination of the employment.

Wrongful Termination
Section 49 of the Act provides that wrongful termination of employment or unfair dismissal occurs where summary dismissal or termination of a contract of an employee is unjustified. The section goes further ahead to provide for remedies for the unfair dismissal or wrongful termination of employment as;

  • The wages which the employee would have earned had the employee been given the period of notice to which he was entitled under this Act or his contract of service.
  • where dismissal terminates the contract before the completion of any service upon which the employee's wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice which the employee would have been entitled to by virtue of the contract.
  •  The 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.
These remedies are however available where a court of law or a labor officer finds the employee’s termination or dismissal to be unlawful.

So the next time you wish to terminate your employment or to terminate someone’s employment, you will be better informed

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