Employment Separation and Termination

𝗞𝗡𝗢𝗪 𝗬𝗢𝗨𝗥 𝗟𝗔𝗕𝗢𝗨𝗥 𝗟𝗔𝗪𝗦; 𝗧𝗘𝗥𝗠𝗜𝗡𝗔𝗧𝗜𝗢𝗡 𝗢𝗙 𝗘𝗠𝗣𝗟𝗢𝗬𝗠𝗘𝗡𝗧 𝗣𝗔𝗥𝗧 𝟭 An employer cannot terminate employment “just because.” IT MUST BE FAIR, LAWFUL AND PROCEDURAL as per Employment Code Act No. 3 of 2019 A valid reason for terminating employment is required & it must be connected to; • 𝗧𝗵𝗲 𝗲𝗺𝗽𝗹𝗼𝘆𝗲𝗲’𝘀 𝗰𝗼𝗻𝗱𝘂𝗰𝘁 • 𝗧𝗵𝗲 𝗲𝗺𝗽𝗹𝗼𝘆𝗲𝗲’𝘀 𝗰𝗮𝗽𝗮𝗰𝗶𝘁𝘆 𝗼𝗿 𝗽𝗲𝗿𝗳𝗼𝗿𝗺𝗮𝗻𝗰𝗲 • 𝗢𝗿 𝘁𝗵𝗲 𝗼𝗽𝗲𝗿𝗮𝘁𝗶𝗼𝗻𝗮𝗹 𝗿𝗲𝗾𝘂𝗶𝗿𝗲𝗺𝗲𝗻𝘁𝘀 𝗼𝗳 𝘁𝗵𝗲 𝗯𝘂𝘀𝗶𝗻𝗲𝘀𝘀 Termination without a valid reason is unlawful. But having a reason is not enough. The process matters just as much as the reason. 𝗜𝗳 𝘁𝗲𝗿𝗺𝗶𝗻𝗮𝘁𝗶𝗼𝗻 𝗶𝘀 𝗯𝗮𝘀𝗲𝗱 𝗼𝗻 𝗺𝗶𝘀𝗰𝗼𝗻𝗱𝘂𝗰𝘁 𝗼𝗿 𝗽𝗼𝗼𝗿 𝗽𝗲𝗿𝗳𝗼𝗿𝗺𝗮𝗻𝗰𝗲, 𝘁𝗵𝗲 𝗲𝗺𝗽𝗹𝗼𝘆𝗲𝗲 𝗺𝘂𝘀𝘁 𝗯𝗲 𝗴𝗶𝘃𝗲𝗻 𝗮𝗻 𝗼𝗽𝗽𝗼𝗿𝘁𝘂𝗻𝗶𝘁𝘆 𝘁𝗼 𝗯𝗲 𝗵𝗲𝗮𝗿𝗱. 𝗧𝗵𝗶𝘀 𝗶𝘀 𝗻𝗼𝘁 𝗼𝗽𝘁𝗶𝗼𝗻𝗮𝗹. 𝗜𝘁 𝗶𝘀 𝗮 𝗿𝗲𝗾𝘂𝗶𝗿𝗲𝗺𝗲𝗻𝘁 𝗼𝗳 𝗳𝗮𝗶𝗿𝗻𝗲𝘀𝘀 𝗮𝗻𝗱 𝗻𝗮𝘁𝘂𝗿𝗮𝗹 𝗷𝘂𝘀𝘁𝗶𝗰𝗲 (𝘀𝗲𝗲 𝗩𝗲𝗸𝗵𝗻𝗶𝗸 𝘃 𝗖𝗮𝘀𝗮 𝗗𝗲𝗶 𝗕𝗮𝗺𝗯𝗶𝗻𝗶 𝗠𝗼𝗻𝘁𝗲𝘀𝘀𝗼𝗿𝗶 𝗭𝗮𝗺𝗯𝗶𝗮 (𝟮𝟬𝟭𝟴)). Generally, an employer must give notice of termination or pay in lieu of notice. However, where there is serious misconduct that makes it unreasonable to continue the employment relationship, an employer may dismiss without notice. This is called summary dismissal. Summary dismissal may apply in cases such as: • 𝗚𝗿𝗼𝘀𝘀 𝗺𝗶𝘀𝗰𝗼𝗻𝗱𝘂𝗰𝘁 • 𝗪𝗶𝗹𝗳𝘂𝗹 𝗱𝗶𝘀𝗼𝗯𝗲𝗱𝗶𝗲𝗻𝗰𝗲 𝗼𝗳 𝗹𝗮𝘄𝗳𝘂𝗹 𝗼𝗿𝗱𝗲𝗿𝘀 • 𝗛𝗮𝗯𝗶𝘁𝘂𝗮𝗹 𝗻𝗲𝗴𝗹𝗲𝗰𝘁 𝗼𝗳 𝗱𝘂𝘁𝘆 • 𝗖𝗼𝗻𝘁𝗶𝗻𝘂𝗼𝘂𝘀 𝗮𝗯𝘀𝗲𝗻𝗰𝗲 𝘄𝗶𝘁𝗵𝗼𝘂𝘁 𝗽𝗲𝗿𝗺𝗶𝘀𝘀𝗶𝗼𝗻 • 𝗟𝗮𝗰𝗸 𝗼𝗳 𝘀𝗸𝗶𝗹𝗹 𝘁𝗵𝗲 𝗲𝗺𝗽𝗹𝗼𝘆𝗲𝗲 𝗰𝗹𝗮𝗶𝗺𝗲𝗱 𝘁𝗼 𝗽𝗼𝘀𝘀𝗲𝘀𝘀 • 𝗦𝗲𝗿𝗶𝗼𝘂𝘀 𝗺𝗶𝘀𝗰𝗼𝗻𝗱𝘂𝗰𝘁 𝘂𝗻𝗱𝗲𝗿 𝗱𝗶𝘀𝗰𝗶𝗽𝗹𝗶𝗻𝗮𝗿𝘆 𝗿𝘂𝗹𝗲𝘀 Even then, due process must be followed. A hearing must take place. And in cases of summary dismissal, the employer must report the circumstances to a Labour Officer within four days. Now, let’s address poor performance. Poor performance is not misconduct. It is a consistent failure to meet agreed standards despite having the tools and ability to perform. An employer cannot wake up one morning and dismiss an employee for “poor performance.” The employer must show that: • 𝗘𝘅𝗽𝗲𝗰𝘁𝗮𝘁𝗶𝗼𝗻𝘀 𝘄𝗲𝗿𝗲 𝗰𝗹𝗲𝗮𝗿 • 𝗣𝗲𝗿𝗳𝗼𝗿𝗺𝗮𝗻𝗰𝗲 𝘄𝗮𝘀 𝗺𝗲𝗮𝘀𝘂𝗿𝗲𝗱 𝗼𝗯𝗷𝗲𝗰𝘁𝗶𝘃𝗲𝗹𝘆 • 𝗙𝗲𝗲𝗱𝗯𝗮𝗰𝗸 𝘄𝗮𝘀 𝗴𝗶𝘃𝗲𝗻 • 𝗦𝘂𝗽𝗽𝗼𝗿𝘁 𝗼𝗿 𝘁𝗿𝗮𝗶𝗻𝗶𝗻𝗴 𝘄𝗮𝘀 𝗽𝗿𝗼𝘃𝗶𝗱𝗲𝗱 • 𝗔 𝗣𝗲𝗿𝗳𝗼𝗿𝗺𝗮𝗻𝗰𝗲 𝗜𝗺𝗽𝗿𝗼𝘃𝗲𝗺𝗲𝗻𝘁 𝗣𝗹𝗮𝗻 (𝗣𝗜𝗣) 𝘄𝗮𝘀 𝗶𝗺𝗽𝗹𝗲𝗺𝗲𝗻𝘁𝗲𝗱 • 𝗥𝗲𝗮𝘀𝗼𝗻𝗮𝗯𝗹𝗲 𝘁𝗶𝗺𝗲 𝘄𝗮𝘀 𝗮𝗹𝗹𝗼𝘄𝗲𝗱 𝘁𝗼 𝗶𝗺𝗽𝗿𝗼𝘃𝗲 • 𝗪𝗮𝗿𝗻𝗶𝗻𝗴𝘀 𝘄𝗲𝗿𝗲 𝗶𝘀𝘀𝘂𝗲𝗱 • 𝗔 𝗳𝗮𝗶𝗿 𝗵𝗲𝗮𝗿𝗶𝗻𝗴 𝘄𝗮𝘀 𝗰𝗼𝗻𝗱𝘂𝗰𝘁𝗲𝗱 Only when all these steps are followed can termination for poor performance be justified. Poor performance alone is not enough, Misconduct alone is not enough & Operational needs alone are not enough.

He asked to work from home for reading week. The next message he received was a termination letter alleging cause. In a new court decision from Saskatchewan, the employee had been the Director of Programs and Public Relations at a university students' union. He had never been disciplined. His file was clean. Then his general manager was dismissed during a turbulent period for the organisation. New leadership stepped in. The employee sent a routine email asking to work remotely during reading week while most staff were away, a practice that had been informally approved for out-of-scope employees all along. The acting general manager replied: thanks for letting me know, I'll check with the executive. That was the last communication before he was fired for cause. The termination letter accused him of unexcused absenteeism, time theft, and fundamentally breaching the employer's trust. By the time the case reached summary judgment, the alleged absences had somehow ballooned from three days to ten consecutive days, a claim the court rejected on the evidence, including a photograph placing him in the office on a day the employer claimed he wasn't there. No warnings. No progressive discipline. No HR consultation or investigation. No attempt to contact the employee before pulling the trigger. So the court found no just cause, but it went even further. The employment contract gave him "12 months' notice or severance". The employer argued that figure was just a notice period, subject to mitigation. The court disagreed: this was a contractual severance entitlement, a fixed obligation, and the employee's subsequent earnings were irrelevant to it. The employee found more lucrative work within five months of dismissal. Under a standard notice analysis, that would have significantly reduced the damages. Under this contract, it changed nothing. Further, the employer now also owes him another $10,000 in moral damages for failing to investigate, for making degrading remarks to an employment standards officer, and for publicly suggesting that all employees let go during the restructuring had committed "really grave misconducts." Silence before a dismissal. Fabrications after it. Neither is a good strategy. Khan v Students' Union of the University of Regina Inc., 2026 SKKB 94

Andre Baptiste v. Toyota Trinidad and Tobago Ltd. (CV 2019-03281, Judgment: Sept. 3, 2025) Facts: Andre Baptiste, Managing Director of TTTL, was placed on administrative leave in 2016 following an EY investigation. He was charged with 15 allegations including unauthorized payment of bonuses, failure to disclose business interests, misuse of company resources, and an improper relationship with the Financial Controller. His employment was terminated without notice in December 2016. He sued for wrongful dismissal, breach of contract, and damages. Issues: *Was Baptiste wrongfully/unlawfully dismissed? *Did the disciplinary process meet fairness and natural justice? *Was TTTL entitled to terminate under the Service Agreement? *If dismissal was wrongful, what damages would follow? Reasoning: The dismissal was a summary dismissal (without notice). The disciplinary process was fair: charges were specified, evidence disclosed, and Baptiste had opportunities to respond. Employers are not obliged to disclose the entire EY Report; sufficient particulars were given. Some charges were not proven, but serious breaches were established: unauthorized bonus payments, undisclosed restaurant interest, improper sponsorships, and a compromised relationship with the Financial Controller. These amounted to serious misconduct and breach of fiduciary duty. Holding/Determination: TTTL lawfully dismissed Baptiste for cause under Clause 15 of the Service Agreement. His claims for wrongful dismissal, breach of contract, reputational damages, and reinstatement were dismissed. Costs were awarded against him. Legal Learnings: Employers must follow a fair disciplinary process, even in executive dismissals. Conflict of interest and failure to disclose personal interests are serious breaches of duty. Personal relationships compromising corporate checks can justify dismissal. Cumulative breaches can sustain termination even if not all charges are proven. Burden of proof rests on the employer to justify dismissal.

This case highlights important lessons for employers & HR professionals regarding probation, termination procedures & employee rights. The Industrial Court ruled in favor of the employee due to the employer’s failure to follow proper procedures, resulting in financial penalties. 1.Probation Must Be Clearly Managed: Manage probation periods with formal confirmation or termination. Employers must clearly confirm, extend, or terminate probation within the set period to avoid legal disputes. 2.Fair Procedure is Crucial in Termination: The employee was dismissed without a Show Cause Letter or DI, which denied him the opportunity to defend himself. Employers must follow proper disciplinary procedures, including (1)Issuing a Show Cause Letter, (2)Conducting a DI to allow fair hearing (if necessary), (3)Exercising PIP for performance related issues. Failure to do so can make the dismissal unlawful. 3.Misconduct Allegations Must Be Proven: The employer claimed the employee was involved in extortion & misconduct, but could not provide evidence to support these claims. The court ruled that the dismissal was unjustified. Employers must ensure that all allegations are backed by strong evidence such as (1)Emails, reports, or documented complaints. (2)Witness statements. (3)Clear company policies supporting disciplinary actions. 4.Wrongful Dismissal Can Be Costly: Since the dismissal was without just cause, the court ordered the employer to pay the employee RM124,183.54 in back wages and compensation. Wrongful termination can lead to (1)Financial losses due to legal claims, (2)Damage to employer reputation & employee trust. 5.HR Must Ensure Compliance: HR plays a critical role in ensuring proper employment practices. This includes (1)Monitoring probation periods & employment contracts, (2)Implementing structured disciplinary procedures for fairness, (3)Providing legal guidance to prevent wrongful dismissals. This case is a reminder for employers to follow proper procedures when terminating employees.

Judge Faults Foundation for Firing Worker on Alcoholic Drink Claims Is drunkenness a reason for summary dismissal? Many would quickly say yes. But in an interesting twist, the Employment and Labour Relations Court in Nairobi has reminded employers that it is not enough to simply allege intoxication, you must prove it. This reminder came in a case where Avsi Foundation was found to have unfairly dismissed its Project Coordinator, Olivia Chepwogen Chirchir, after accusing her of showing up to work drunk. Background Chirchir had been serving under a fixed-term contract beginning January 2023. But in October of the same year, her contract was abruptly cut short. The Foundation alleged she returned from lunch intoxicated and unfit for duty. She denied it all, insisting she was a teetotaler. More importantly, she pointed out that the process was grossly unfair, she had not been issued with a formal notice to show cause, she was ambushed with a meeting that turned out to be a disciplinary hearing, and she wasn’t even informed of her right to come with a representative. Issues Before the Court The Judge was called upon to determine two things: 1. Whether the termination was lawful and fair. 2. Whether Chirchir was entitled to any compensation or reliefs. What the Court Found Justice B.O.M. Manani highlighted serious flaws in the employer’s case. Witnesses contradicted each other on when Chirchir left and returned from lunch. No scientific proof, such as an alcohol test, was presented. Worse still, the minutes of the disciplinary hearing were unsigned by Chirchir, making their authenticity questionable. The Court reiterated that while drunkenness can*be gross misconduct under the Employment Act, it is not enough to allege that an employee had a drink. The employer must show that the employee was so drunk that they were incapable of performing their duties. Avsi Foundation failed this test. On procedure, the Court was clear: the Foundation violated fairness at every step. No notice to show cause, no clear invitation to a disciplinary hearing, no right of representation, and no avenue for appeal. Orders of the Court The dismissal was declared unfair and wrongful. Chirchir was awarded: 1.Ksh. 370,800(three months’ salary as compensation), 2.Ksh. 123,600 (pay in lieu of notice), 3. Costs of the case and interest. However, her claims for reinstatement, medical costs, leave commutation, and general damages were declined. Highlights This case carries a l reminder for employers,allegations must be backed by credible evidence and due process.As the Judge put it, “It was unfair for the Respondent to have sent the Claimant a blind invite only for her to be confronted with the charges.”