The labour laws in Kenya make provision for declaration of redundancies in general without differentiating between individual or collective redundancies. The Law provides for the substantive and procedural legal requirements to be met by an employer before terminating an employee on account of redundancy:
Notification of intended termination to be issued to the individual employee as well the County Labour Officerand the union.
This period of one month is intended for the person receiving the notice to confirm that the preconditions of redundancy have been complied with. These preconditions include the communication of reason for, and extent of, the redundancy, and the selection criteria. At this stage, the employer has not selected the specific employees who are likely to be made redundant. This period is necessary for any disputes over issues to be settled before the redundancy is affected.
Selection of the employees to be terminated from employment.
In the selection the employer is supposed to pay regard to various factors such as seniority in time, skill, ability and reliability of each employee of the particular class of employees affected by the redundancy.
These factors are not exhaustive and other reasonable factors can be considered as well provided that the employer can show that they were applied uniformly to all the employees in that category.
Consultations
The employer is required to consult with the employees regarding the reason for, and the extent of, the redundancy and the criteria to be followed.
The employer is required to provide the union, where its employees are members, and its employees who are not members with a reasonable opportunity to constructively engage in the consultations.
The employer is also required to consider whether there are any alternative employment positions that can be filled by the affected employees within the company.
Such consultations are important for procedural fairness.
Issuance of the Notice of termination
After the consultation, the following happens:
- The employer issues final termination notices to the affected employees
- In lieu of notice, the employer pays the employee one month’s wages.
- Payment of terminal dues
The Act requires that the employer pay terminal dues equally to all affected employees regardless of their membership in a trade union.
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