Reinstatement of Employment after Unlawful Termination

Termination of employment is usually stressful and unsettling for employees, particularly where the termination was unlawful. The fact that most employees often have no other source of income normally compounds the situation, as does the fact that some employees often have long-term financial commitments such as mortgages at the time of termination.

In such circumstances, getting your job(s) back (reinstatement) may be something that you may be interested in as the affected employee(s).

Reinstatement of employment is one of the remedies that Courts in Kenya can grant an employee whose employment it finds the employer to have unlawfully terminated.

Reinstatement is, however, not an automatic right of an affected employee. It is a remedy that is entirely within the discretion of the Court to grant, save to note that by law a Court cannot issue an order of reinstatement where three years have lapsed since the termination of employment.

The factors that a Court would take into account when considering whether to order reinstatement are set out under Section 49(4) of the Employment Act 2007 and include: the wishes and expectations of the employee; the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances; the practicability of reinstatement; compensation paid by the employer;  and chances of the employee securing alternative employment.

Of these factors, the one that is often the crux of the debate in Court cases is the practicability factor.

Practicability of reinstatement was defined by the New Zealand Court of Appeal in New Zealand Educational Institute -vs- Board of Trustees of Auckland Normal Intermediate School as follows:

“Practicability is the capability of being carried out in action, the feasibility or the potential for the reimposition of the employment relationship to be done or carried out successfully.  Practicability cannot be narrowly construed in the sense of being simply possible irrespective of consequence.”

Whether … it would not be practicable to reinstate [the employee] involves a balancing of the interests of the parties and the justices of their cases with regard not only to the past but more particularly to the future.” 

This definition of practicability has been adopted by the Courts in Kenya as accurate.

It is not unusual, therefore, for a Court having found a termination to have been unlawful to nonetheless decline to order reinstatement where the evidence suggests that it would be impractical to reinstate the employment relationship.

Reinstatement Pending Trial

Given the length of time that Court cases often take to conclude, the question usually arises whether the Court should order the reinstatement of employment pending the hearing and determination of a case.

Most Courts to which this question has been posed have ruled against reinstatement pending trial, preferring instead to determine the question of reinstatement upon the full hearing and determination of the case.  

This is not to mean that the Courts lack jurisdiction to grant reinstatement pending trial. Indeed, as noted in the Employment & Labour Relations Court (Mombasa) Cause No. 793 of 2015: Fadhil Juma Kisua & another v Kenya Ports Authority the Employment & Labour Relations Court can, after inter-parties hearing of an application for reinstatement pending trial, order interim reinstatement of an employee so long as three years have not lapsed since the termination.

The factors to consider in deciding whether to seek or to grant reinstatement pending trial are similar to the ones to be applied in considering whether to seek or to grant interlocutory injunctions.

This is to mean that a Court called upon to grant reinstatement pending trial is not called upon to make any findings of fact on the substantive dispute, as it would not at that stage have taken the oral evidence of the parties. Rather, that the Court is obliged to undertake a broad assessment of the Affidavit evidence presented to it with a view to:

  1. assessing whether the Applicant is likely, at the full hearing of his Claim, to succeed in proving that the termination of his/her employment was unjustified;
  2. assessing whether there is a possibility that the Applicant may be permanently reinstated into employment, upon the full hearing of his Claim;
  3. assessing whether in the absence of reinstatement, the Applicant is likely to suffer irreparable injury which would not be adequately compensated by an award of damages; and,
  4. if the Court is in doubt as to the above, assessing whether the balance of convenience lies in favour of reinstatement.

The outcome of the assessment would then guide the Court in the exercise of its discretion to grant, or decline, reinstatement pending trial.

Safeguard your Rights!

This article is intended to provide a basic guide on the concept of reinstatement and is not to be misconstrued as legal advice. If you suspect that your employer has terminated your employment wrongfully, consult a lawyer for specialist advice on the possibility of reinstatement.

Disclaimer: The information contained in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. While the information is accurate as at date hereof, there can be no guarantee that the information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act upon such information without appropriate professional advice after a thorough examination of the particular situation.