Whenever employees, especially those holding high profile positions, are terminated, the immediate reaction is to apply for an order of reinstatement from the employment Courts. Kenyan laws on employment, including the Constitution, the Employment Act and the Employment and Labour Relations Court Act confer various rights to employees including the right to fair employment conditions, right against discrimination and the right to fair termination. Unfair termination results in orders for monetary compensation and in some cases, orders compelling the employer to reinstate the employee into their former position without loss of benefits or salaries.

While these remedies are pivotal in the protection of employee rights, an order of reinstatement brings a challenge for both employers and employees. The employment relationship is cemented by trust and confidence that exists between the players. However, the law provides that in an unlawful termination, the court can order reinstatement of the employee to the position they held before termination. This remedy is available within three years of the termination.

The law empowers labour officers to recommend reinstatement of employees if in their opinion the termination or dismissal was unfair. In such cases, labour officers are expected to consider the wishes of the employee, the circumstances in which the termination took place and the practicability of reinstatement, as key considerations. The Court of Appeal in Kenya Airways Limited v Aviation Workers Union Kenya & 3 Others [2014] eKLR held that these factors must be considered when faced with a prayer for reinstatement. The Court reiterated the common law principle that there should be no order of specific performance in a contract of service except in very exceptional circumstances. This does not include situations where the employee is able to secure alternative employment. The metric to be applied to reach the conclusion that reinstatement is a practicable remedy for the parties involved remains unclear and unsettled.

At the end of an involuntary and perhaps acrimonious separation, a myriad of concerns will arise such as erosion of trust and confidence in the employment relationship. A critical analysis is required to determine whether reinstatement is the best available remedy for both parties, and whether such a remedy should be ordered through a compulsive court award. Courts should not issue orders in vain. Where trust and confidence between the parties is completely lost at the point of termination, it is untenable and futile to make orders for reinstatement. It is impractical to expect parties to resuscitate the camaraderie that is lost during a termination merely because the court has ordered reinstatement. The other challenge is on enforcement  of the  reinstatement order especially where employers merely restore the salaries but do not want anything to do with the ‘former’ employees who end up suffering alienation from their fellow employees. Such reinstated employees end up frustrated with no significant assignments being issued to them during their period of reinstatement.

Maintaining the order of reinstatement requires interrogation of the possibility of integration of the reinstated employee in the workplace after prior termination. The willingness of the employee  and the employer to re-start an employment relationship and their adaptation in the workplace upon reinstatement are key considerations. Other factors that come into play are the implications on existing employees especially where the position of the terminated employee had already been filled up. This therefore requires reorganization of the human resources and re-integration of the reinstated employee into an evolving culture. Reinstating an employee is also likely to create friction with other employees and in the end lower the synergies that enhance the overall performance of an organization. This affects human resource practices in organizations, whether privately run or owned by the State.

Lack of concrete legal provisions to address these concerns on the order of reinstatement and the challenge that the order causes on both the employee and employer make this remedy not only impractical but also outdated. The human resource sphere is calling for more employee engagement and stronger employer relationships which are impractical in the face of a reinstatement order.  The order potentially forces the employer to take back an employee whom they wished to separate with thereby interfering with the freedom to contract. As structured, employment contracts are not couched to last forever; they provide for exit and termination clauses. Whenever these incidents occur, the optimum compensation is an award of monetary damages. This enables the parties to be at liberty to start new employment relationships.  As our laws continue to develop, it is now time that steps are taken to retire the order of reinstatement from our books.