Wrongful Termination Claims at the ELRC: What Kenyan Employers Actually Get Wrong

Wrongful Termination Claims ELRC Kenya cases share a pattern that shows up case after case at the Employment and Labour Relations Court: employers who had a genuine reason to let someone go, and lost anyway, because the process fell apart. The Employment Act 2007 does not ask employers to be lenient. It asks them to be fair and to be able to prove it, and those are two separate obligations that a surprising number of otherwise well-run businesses conflate.

The Two-Part Test Employers Keep Getting Wrong

Section 45 of the Employment Act makes termination unfair unless the employer proves both a valid and fair reason connected to the employee’s conduct, capacity, compatibility, or the employer’s operational requirements, and a fair procedure in reaching the decision to terminate on that ground. These are genuinely independent requirements. An employer with an airtight case on the merits, say a clearly documented pattern of underperformance, can still lose an unfair termination claim entirely on procedure. Section 41 sets out what that procedure requires: the employer must explain the reason for the proposed termination, in a language the employee understands, and give the employee a real opportunity to be heard, together with a co-employee or union representative if requested, before the decision is made.

Mistake One: Skipping the Hearing

The clearest illustration of this on the ELRC’s own docket is Benjamin Biko Mongatte v Rubycut Enterprises Limited [2021] KEELRC 1872, where the employer never filed a defence or appeared to answer the claim. The court found the dismissal unfair for lack of both a valid reason and a fair procedure, a result that required no close legal argument at all; an employer who does not engage with the section 41 hearing requirement, and then does not engage with the claim itself, gives the court nothing to work with except the employee’s account. The lesson is not subtle: documenting a hearing that never happened is not a substitute for holding one.

Mistake Two: Assuming Probation Is a Free Pass

Section 45(3) gives employees the right to bring an unfair termination claim once they have been continuously employed for at least thirteen months before termination, and section 42 disapplies the section 41 hearing requirement to terminations during probation. Employers sometimes read this as blanket protection for any dismissal inside the first year, which is not quite right; it protects specific probationary and short-service terminations from the section 41 hearing requirement, not from scrutiny generally. Kamau v Track & Trace Company Limited [2024] KEELRC 2846 shows the boundary working as intended: a general manager dismissed shortly after a verbal appraisal warning had his claim dismissed because he remained on probation and had missed contractual sales targets, and the court accepted that the section 41/45 fair-hearing protections did not bite in the same way during that period. The case is useful precisely because it shows employers can rely on probation correctly, provided the underlying performance failure is real and documented.

What Remedies Actually Look Like

Where a termination is found unfair, section 49 gives the court a choice between reinstatement, re-engagement, or compensation, weighing factors including the employee’s own wishes, the practicability of reinstatement, and length of service. Where compensation is ordered, section 49(1)(c) caps it at the equivalent of twelve months’ wages based on the employee’s gross monthly salary at the time of dismissal. That cap is a ceiling, not a tariff; courts still assess what is just in the circumstances of each case, and a short, clean-cut procedural failure will not automatically attract the maximum.

Automatically Unfair Grounds Are a Separate Trap

Section 46 lists grounds that make a termination automatically unfair regardless of process, including pregnancy, trade union membership or activity, protected characteristics, whistleblowing, and participation in a lawful strike. An employer can run an otherwise flawless section 41 hearing and still lose if the underlying reason for termination touches one of these grounds, because section 46 does not ask whether the process was fair, it removes the reason from the list of valid reasons altogether. Employers should check any termination decision against this list before proceeding, particularly where the timing of a dismissal coincides with an employee raising a grievance or disclosing wrongdoing, since proximity in time is often exactly what an ELRC claim will point to as evidence of the true reason.

Building a Process That Survives Scrutiny

The practical fix is neither expensive nor complicated: a documented notice of the specific allegation, in language the employee understands, a genuine hearing with the employee’s chosen representative present, and a decision that follows from what was actually discussed at that hearing rather than a conclusion reached beforehand. Many of the disputes we see at the ELRC stage were avoidable at the hearing stage, months earlier. Where an employer already has a written employment handbook and disciplinary policy, aligning day-to-day practice with what that document promises is often the single highest-value compliance step available; we discuss what a compliant handbook should contain in our guide to employment handbooks in Kenya.