Ufundi Savings & Credit Co-operative Society Ltd v Francis Gitari Ndirangu & 382 others [2018] KEELC 3097 (KLR)
The bottom line
#A Kenyan tribunal ruled that even a justified dismissal is unlawful if the employee is never given a chance to be heard before termination.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant has made out a claim for wrongful dismissal against the Respondent
- 2.Whether the procedure adopted by the Respondent in terminating the Claimant's employment was fair and in accordance with the law
- 3.What remedies, if any, are available to the Claimant
Key legal issues
#Fair procedure in termination of employment
The court held that the Respondent failed to accord the Claimant a hearing before terminating his employment, thereby rendering the termination procedurally unfair.
The court found that the Claimant was not given an opportunity to respond to the allegations made against him prior to the termination of his employment. Citing sections 41 and 45 of the Employment Act, the court reiterated that an employee must be informed of the reasons for termination and be given a chance to be heard. The failure to do so rendered the termination unfair irrespective of whether there existed valid grounds for dismissal.
Remedies for unfair termination
Having found the termination to be procedurally unfair, the court awarded the Claimant notice pay and compensation equivalent to three months' gross salary.
The court exercised its discretion under section 49 of the Employment Act to award remedies commensurate with the circumstances of the case. In assessing the appropriate compensation, the court took into account the length of service, the conduct of the Claimant, and the fact that the Claimant did not adduce evidence of loss beyond the amounts claimed.
Legal principles established
#- An employer must not only have valid reason to terminate an employee's employment but must also follow a fair procedure, including according the employee an opportunity to be heard.
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for one month's salary in lieu of notice
- 2.The Claimant awarded compensation equivalent to three months' gross salary for unfair termination
- 3.The Respondent ordered to issue a certificate of service to the Claimant
- 4.Costs of the suit awarded to the Claimant
- 5.Interest on the awarded amounts at court rates from the date of filing until payment in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Co-operative Societies Act, section 76 (as read with the Co-operative Tribunals Rules), jurisdiction to hear and determine disputes touching co-operative societies and their members
Relief refused
#Claim for 12 months' salary as compensation for unfair termination
The court found that although the termination was unfair, the Claimant had contributed to the situation and an award of three months' salary was sufficient in the circumstances.
Costs
Costs of the suit are awarded to the Claimant against the Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Termination of employment must not only be for a valid reason but must also be carried out in accordance with a fair procedure.
I hereby award the Claimant the equivalent of three months' gross salary as compensation for the unfair termination of his employment.
Costs of the suit are awarded to the Claimant against the Respondent.
Issues in the judgment
#The judgment refers to the 'Co-operative Tribunal' as the court, but the parties and relief sought relate to an employment dispute ordinarily within the jurisdiction of the Employment and Labour Relations Court; the forum indicated in the cause title does not align with the nature of the claim.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ufundi Savings & Credit Co-operative Society Ltd v Francis Gitari Ndirangu & 382 others [2018] KEELC 3097 (KLR)", Case Analysis (2017). Case No. 61 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3097/eng@2018-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.