“You’re fired!” The current US President Donald Trump made this line famous when he starred in the Apprentice. A runaway hit reality TV series where he is depicted as CEO firing hapless contestants working for his organisation. While this scene makes for a good TV show, in Kenya, the reality is far less glamorous. In fact, the process leading up to and following termination can be downright dangerous for organisations. Former employees may initiate a litany of claims challenging the validity and process of termination. Exposing the organisation to potential monetary damages, legal fees and reputation damage. Now more than ever, employers must exercise utmost caution when terminating an employee. In this one-day seminar, MMA Advocates seeks to inform business owners, managers and supervisors of the legal risks arising from termination and provide you with the knowledge and tools on how best to manage this risk.
1. An industrial court that strictly enforces the law
The Employment and Labour Relations Court (the “Court”), is the forum for adjudication of employment claims. It has been argued that the Court almost always rules in favour of employees. A review of the Court’s decisions seems to affirm this claim. Employers face an onerous burden to prove that they acted in conformity with the law. When they fail as they often do, monetary damages, legal fees and lost time in defending against these claims are predictable outcomes.
2. The Employment Act increases employees rights and protection
The Employment Act, 2007 is the primary legislation governing labour relations. Drafted with significant input from trade union organisation, its implementation over the last 10 years has seen employees enjoy greater legal protection. Coupled with greater awareness of legal rights and a reformed judiciary that inspires confidence, employees have become increasingly litigious. Employers seemed stuck in a time loop. They have been caught flat footed. Ignorance or misunderstanding of substantive and procedural requirements of the legislation has found them on the wrong end of most claims.
3. Discrimination claims can lead to unexpected liabilities
Claims for termination on grounds of discrimination are becoming increasingly common. Protection against discrimination on the basis of gender, age, race, colour or disability is captured in the Bill of Rights of our Constitution as well as the Act. These claims can take a life of their own what seemed like an ordinary termination can morph into a claim for discrimination. In such claims, the Court has pronounced that it will exceed the statutory cap on damages as provided in the Act to the greater detriment of employers.
4. The risk of exposure of trade secrets and confidential information
Besides the monetary costs arising from claims for damages, there are other risks. Senior and long-term employees gain access to trade secrets and confidential information in the course of their employment. The fallout arising from a contentious termination risk exposing this information. Court proceedings are a matter of public record. Inevitably, company secrets such as remuneration structure or management weakness come to the fore. Creating internal strife within the organisation and exposing the Company to further internal and external forces.
5. The public relations disaster of a disgruntled former employee
From a public relations perspective, a termination gone wrong can prove to be a disaster. For example, termination on grounds of sexual harassment makes for flashy headlines. The fallout from such PR disasters may spiral affecting the financial positions of these organisations as their leadership and culture are called into question. Smaller companies suffer a similar fate as oftentimes the ego wars arising from a contentious process, play out in the gallery of the organisations’ clients and stakeholders including the remaining employees.
Summary
As is evident letting go of an employee requires careful navigation through the minefield of risk. Focusing on the bottom line without addressing these legal issues can undo much of what an organisation has so painfully built.
In order to manage the process of termination, organisations need to have a proper understanding of the risks and comply with the law. By attending our one-day legal training seminar you will be ahead of the curve in protecting your organisation.
You will be able to spot risks in advance, address them it a timely fashion and manage the process for best outcomes. To register for the seminar or receive further updates, please fill out your details below.