(i) When is an employee considered terminated permanently from work?
Termination refers to the end of an employer-employee relationship. An employee is considered terminated if they are absent for more than five working days without notification. However, an employer may issue a written warning if the absence fewer than five working days. Alternatively, employers should provide one-month notice if employed on a monthly basis, four days’ notice if employed on weekly basis, and seven days’ notice on the first month of employment.
However, the law prohibits termination of an employee who is on leave.
(ii) Various lawful forms of terminating an employee;
- Termination by agreement; This is occurs when both the employee and employer agree to end the contract of employment to an end. It is commonly used when the employee consents to the termination.
- Automatic termination; This occurs in circumstances such as an employee’s death, the loss of business by employer, the completion of an agreed task, or when an employee is not qualified for a specific task.
- Termination by resignation; This arises when an employer materially breaches the contract. If there is no breach by the employer, the employee may lawfully terminate the contract before the expiry of the fixed term by obtaining the employers agreement for early termination. An employee who resigns is entitled to paid remuneration for work done prior to resignation.
- Constructive termination; It’s a situation in which an employer makes employment intolerable, which may lead to employees forced resignation. Failure to protect an employee from sexual harassment and unfair treatment are common circumstances for this form of resignation.
- Termination by an employer; An employer may terminate an employee when they comply with the law, have a fair reason to do so, and have followed a fair procedure before terminating the contract.
- Termination of employment in unlawful strikes; An employer may terminate an employment contract, when an employee engages in unlawful strikes. However, the law protects employees who participate in lawful strikes from termination.
- Termination on poor performance and incapacity; The law obliges employers to terminate an employee for poor performance only after making the employees aware of the expected standards so as the termination is fair. An employer is required to investigate thoroughly on the reasons for underperformance, and provides guidance to the employee, and given a reasonable chance to improve. If there are no improvements, the employer will give a warning, and if no further improvements occur, then procedures for termination will follow. An opportunity to improve may be dispensed, if the employee is a manager or senior employee. Also when degree of professional skill required is so high and can lead to potential consequences.
- Termination based on operational requirements; The law authorizes termination based on the economic, technological, structural or similar needs of the employer, which requires a company close down. However, it requires an employer to give prior disclosure of information to the employee or trade union regarding the clear intentions for retrenchment to ensure proper consultation. If termination fails an employer is to refer the matter for mediation, and the employee is terminated after arbitration is done.
The law requires an employee to be paid benefits and any remuneration paid before termination.
- Termination due to incompatibility; Incompatibility may be a valid reason for termination. This includes employee’s unsuitability due to his work due to his character or disposition, or incompatibility of the employee in his work environment in that he relates badly with fellow employees of clients who are important to the business. Before terminating an employer is to give a fair opportunity to consider and reply to the allegations of incompatibility, remove the cause for disharmony, or propose an alternative to termination.
- Termination on illness or injury; The Law allows an employer to terminate an employee on illness or injury, after considering the cause of the incapacity, degree of the incapacity, temporary or permanent nature of the incapacity, ability to accommodate the incapacity and the existence of any compensation or pension. Possible alternatives including temporary replacement, light duty, alternative duty, early retirement, pension or any other acceptable alternative can be exercised instead of permanent termination.
(iii)Is it authorized for an employee with less than six months at work to claim unfair termination?
The law prohibits an employee who has worked less than six months for the same employer from claiming unfair termination, as the probation period is intended to assess the suitability of both parties for long-term employment.
(iv)Is an employer allowed to terminate a fixed term employment contract before the designated expiration date?
The law requires;
- Seven days’ notice, if employment is given in the first month of employment
- 28 days’ notice if an employee is employed on monthly basis.
Although the period may also depend on the agreed notice period by the employer and employee.
The law allows a fixed term contract termination, when the agreed period expired, unless the contract provides otherwise
(v)What are the benefits of a suspended employee
An employer is obliged to pay an employee their full salary, even during suspension, until the investigation is complete and disciplinary action is taken against the employee.
(vi) What are the benefits of a terminated employee?
The law lists the payment of termination and certificates of employment including;
- Any remuneration for work done before the termination.
- Any annual leave pays due to an employee, that the employee has not taken.
- Any annual leave accrued during any incomplete leave cycle
- Any notice pays due
- Any severance pays due
- Any transport allowance that may be due, (repatriation cost).
