Section 88, The Employment Act, 2023

(1) For the avoidance of doubt the following reasons donot constitute fair reasons for termination or for the imposition of a disciplinary penalty- (a) the fact that a worker took, or proposed to take, leave to which he was entitled under this Act, an agreement or a contract; (b) a worker’s refusal or proposed refusal to join or withdraw from a trade union; (c) a worker’s initiation or proposed initiation of a complaint or other legal proceedings against his employer, except where such conduct is, in the opinion of the Commissioner or High Court, wholly irresponsible and without foundation; (d) a worker providing information, giving evidence or complying with a lawful requirement in respect of paragraph (h); (e) a worker ’s participation or proposed participation in a lawful strike or other industrial action; (f) a worker’s organisation or proposed organisation of a strike or other industrial action; (g) that the worker has joined, intends to join or has ceased to be a member of a trade union or intends to take part in the activities of a trade union; (h) that the worker seeks office as, or is acting or has acted in the capacity of, a workers’ representative; Fair termination Unfair termination 58 59 (i) that the worker has filed a complaint or participated in proceedings against the employer involving alleged violation of this Act or any other enactment; (j) the worker’s gender, race, colour, ethnicity, origin, religion, creed, social, political or economic status; (k) in the case of a female worker, due to the pregnancy of the worker or the absence of the worker from work during maternity leave; (l) in the case of a worker with a disability, due to the worker’s disability; (m) that the worker is temporarily ill or injured and this is certified by a recognised medical practitioner or personnel; (n) that the worker does not possess the current level of qualification required in relation to the work for which the worker was employed which is different from the level of qualification required at the commencement of his employment; or (o) that the worker refused or indicated an intention to refuse to do work normally done by a worker who at the time was taking part in a lawful strike unless the work is necessary to prevent actual danger to life, personal safety or health. (2) Notwithstanding subsection (1), a worker ’s employment is deemed to be unfairly terminated if, - (a) with or without notice to the employer, the worker terminates the contract of employment because- (i) of ill-treatment of the worker by the employer, having regard to the circumstances of the case; or (ii) the employer has failed to take action on repeated complaints of violence or sexual harassment of the worker at the workplace. (b) the employer fails to prove that- (i) the reason for the termination is fair;or (ii) the termination was made in accordance with a fair procedure and in accordance with this Act.