Section 43 of Employment Act CAP 226: Proof of reason for termination
(1) In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.
(2) The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.
Enhance Your Research with Bookmarks and Annotations
Here's how you can use these features:
- To bookmark this page, click the "Bookmark this Page" button below the document title.
- To add an annotation, highlight text in the document and select "Add Annotation" from the toolbar that appears.
- These features are great for organizing your research and keeping track of key information.
- You can view and manage your bookmarks and annotations on your Bookmarks and Annotations page.
- Section 44 - Summary dismissal
(1) Summary dismissal shall take 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...
- Section 45 - Unfair termination
(1) No employer shall terminate the employment of an employee unfairly.
(2) A termination of employment by an employer is unfair if the employer fails to prove—
(a) that the reason for the...
- Section 46 - Reasons for termination or discipline
The following do not constitute fair reasons for dismissal or for the imposition of a disciplinary penalty—
(a) a female employee’s pregnancy, or any reason connected with her pregnancy;
(b) the...
- Section 47 - Complaint of summary dismissal and unfair termination
(1) Where an employee has been summarily dismissed or his employer has unfairly terminated his employment without justification, the employee may, within three months of the date of dismissal, present...
- Section 48 - Representation
In any complaint made under section 47, no advocate shall represent a party in the proceedings before a labour officer, but any party may be assisted or represented by an official of a trade union or...
- Section 49 - Remedies for wrongful dismissal and unfair termination
(1) Where in the opinion of a labour officer summary dismissal or termination of a contract of an employee is unjustified, the labour officer may recommend to the employer to pay to the employee any...
- Section 50 - Courts to be guided
In determining a complaint or suit under this Act involving wrongful dismissal or unfair termination of the employment of an employee, the Industrial Court shall be guided by the provisions of section...
- Section 51 - Certificate of service
(1) An employer shall issue to an employee a certificate of service upon termination of his employment, unless the employment has continued for a period of less than four consecutive weeks.
(2) A...
- Section 52 - Interpretation
In this Part, except where the context otherwise requires—
“employment” means employment of a child in a situation where—
(a) the child provides labour as an assistant to another person and his...
- Section 53 - Prohibition of worst forms of child labour
(1) Notwithstanding any provision of any written law, no person shall employ a child in any activity which constitutes worst form of child labour.
(2) The Minister shall, in consultation with the...
- Section 54 - Complaint to the labour officer or police officer
(1) A person may make a complaint to a labour officer or a police officer of the rank of an inspector and above if that person considers any child to be employed in any activity which constitutes...
- Section 55 - Powers of labour officer to cancel and prohibit contracts
(1) A labour officer may, by notice in writing served upon an employer,
terminate or cancel any contract of service, other than a deed of apprenticeship
or indentured learnership lawfully entered...
- Section 56 - Prohibition of employment of children between thirteen years and sixteen years of age
(1) No person shall employ a child who has not attained the age of thirteen years whether gainfully or otherwise in any undertaking.
(2) A child of between thirteen years of age and sixteen years of...
- Section 57 - Prohibition of written contracts for child between thirteen and sixteen years of age
Subject to the provisions of the Industrial Training Act relating to contracts of apprenticeship or indentured learnership, a person who employs a child of between thirteen and sixteen years of age,...
- Section 58 - Restriction in employing child of between thirteen and sixteen years of age to attend machinery
(1) No person shall employ a child of between thirteen and sixteen years of age, other than one serving under a contract of apprenticeship or indentured learnership in accordance with the provisions...
- Section 59 - Time restriction in employing a child
(1) Subject to section 60, no person shall employ a child in an industrial undertaking between the hours of 6.30 p.m. and 6.30 a.m.
(2) Notwithstanding the provision of subsection (1), a person may...
- Section 60 - Emergencies
In case of a serious emergency, when the public interest demands it, the Minister may, by notice in the Gazette, suspend the operation of section 59.
- Section 61 - Registers of child in employment
An employer who employs a child shall keep and maintain a register containing the following particulars of every child he employs—
(a) age and date of birth;
(b) date of entry into and of leaving...
- Section 62 - Medical examination of a child employee
An authorised officer may require a child in employment to be medically examined at any time during the period of the child’s employment.
- Section 63 - Determination of age
(1) If, during the hearing of a charge for an offence under this Act it is alleged that any person was at the date of the offence of, over or under a particular age, the court hearing the charge...
- Section 64 - Penalty for unlawful employment of child
(1) A person who employs, engages, or uses a child in an industrial undertaking in contravention of the provisions of this Part, commits an offence.
(2) A person who uses a child in any activity...
- Section 65 - Penalty in case of death or injury of a child
(1) If a child is killed, dies or suffers any bodily injury in consequence of his employer having contravened any provision of this Part, the employer shall, in addition to any other penalty, be...
- Section 66 - Insolvency of employer
Where on an application made to him in writing by an employee or his representative the Minister is satisfied that—
(a) the employer of an employee has become insolvent;
(b) the employment of the...
- Section 67 - Definition of insolvency
An employer is insolvent for the purposes of this Part—
(a) if the employer is a person who—
(i) has been adjudged bankrupt or has made a composition or arrangement with his creditors; or...
- Section 68 - Debts to which this Part applies
This Part applies to the following debts—
(a) any arrears of wages in respect of one or more months, but not more than six months or part thereof;
(b) any amount which the employer is liable to...
- Section 69 - Limitation on amount payable under section 68
(1) The total amount payable to an employee in respect of any debt to which this Part applies, where the amount of the debt to which this Part applies, where the amount of the debt is referable to a...
- Section 70 - Role of relevant officer
(1) Where a relevant officer has been, or is required to be, appointed in connection with an employer’s insolvency, the Minister shall not make a payment under section 66 in respect of a debt until...
- Section 71 - Complaint to Industrial Court
(1) A person who has applied for a payment under section 66 may present a complaint to the Industrial Court—
(a) that the Minister has failed to make the payment; or
(b) that the payment made by...
- Section 72 - Transfer of rights and remedies
(1) Where, in pursuance of section 66, the Minister makes a payment to an employee in respect of a debt to which this Part applies—
(a) on the making of the payment, any rights and remedies of the...
- Section 73 - Power to obtain information
(1) Where an application is made to the Minister under section 66 in respect of debt owed by an employer, the Minister may require—
(a) the employer to provide him with such information as he may...
- Section 74 - Records to be kept by employer
(1) An employer shall keep a written record of all employees employed by him, with whom he has entered into a contract under this Act which shall contain the particulars—
(a) of a policy statement...
- Section 75 - False entries, etc.
A person who makes, causes to be made or knowingly allows to be made an entry in a register, record, book or other document whatsoever, required by this Act to be kept, which that person knows to be...
- Section 76 - Notification of vacancies
(1) This Part shall apply to an employer who employs twenty-five employees or more.
(2) An employer shall notify the Director of every vacancy occurring in his establishment, business or work place...
- Section 77 - Notification of filling or abolition of post
When a post, which has been notified to the Director as vacant, has been filled or has been abolished before being filled, the employer shall notify the employment service office of this in writing...
- Section 78 - Notification of termination of employment
An employer shall notify the termination of every employment and of each layoff of a person in writing to the nearest employment service office within two weeks of the termination or lay-off.
- Section 79 - Register of employees
An employer shall keep a register in which the employer shall enter the full name, age, sex, occupation, date of employment, nationality and educational level of each of his employees and a return of...
- Section 80 - Exemptions
The Minister may exempt any category of employers, any sector of industry or any industry from this Part, or any section of this Part or may vary the limit of its application provided under section 76...
- Section 81 - Offence under this Part
An employer who contravenes any of the provisions of this Part commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term...
- Section 82 - Form and attestation
A foreign contract of service shall be in the prescribed form, signed by the parties thereto, and shall be attested by a labour officer.
- Section 83 - Requirement before attestation
A foreign contract of service shall not be attested unless the labour officer is satisfied—
(a) that the consent of the employee to the contract has been obtained;
(b) of the absence of any fraud,...
- Section 84 - Security in foreign contract of service
(1) When the employer who enters into a foreign contract of service does not reside or carry on business within Kenya, the employer shall, or where the employer resides in Kenya, the labour officer...
- Section 85 - Offence to induce person to proceed abroad under informal contract
A person who—
(a) employs, engages, or knowingly aids in the employment or engagement of, a person with the intention that when so employed or engaged that person shall proceed outside the limits of...
- Section 86 - Offence to induce person to proceed abroad under informal contract
A person who—
(a) employs, engages, or knowingly aids in the employment or engagement of, a person with the intention that when so employed or engaged that person shall proceed outside the limits of...
- Section 87 - Complaint and jurisdiction in cases of dispute between employers and employees
(1) Subject to the provisions of this Act whenever—
(a) an employer or employee neglects or refuses to fulfill a contract of service; or
(b) any question, difference or dispute arises as to the...
- Section 88 - General penalty and offences under other laws
(1) A person, other than a child, who commits an offence under this Act, or contravenes or fails to comply with any of the provisions of this Act for which no penalty is specifically provided shall be...
- Section 89 - Savings of contracts of service made abroad
(1) Nothing in this Act shall prevent an employer or employee from enforcing their respective rights and remedies for any breach or non-performance of a lawful contract of service made outside Kenya,...
- Section 90 - Limitations
Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie...
- Section 91 - Rules
(1) The Minister may, after consultation with the Board, make rules providing for all or any of the purposes, for the administration of this Act or that may be necessary or expedient for carrying out...
- Section 92 - Repeal of Cap. 226 and savings
(1) The Employment Act is repealed.
(2) Except where otherwise provided, the provisions of this Act shall be in addition to, and not in substitution for or in derogation of, the provisions of any...
- Section 93 - Transitional provisions
A valid contract of service, and foreign contract of service to which Part XI applies, entered into in accordance with the Employment Act (now repealed) shall continue in force to the extent that the...