Mary Aoko Oduor v Sparkfresh Investments Limited [2018] KEELRC 1974 (KLR)
The bottom line
#A Kenyan court ruled that dismissing an employee by text message without a hearing or proof of misconduct was unfair, awarding her damages.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there were valid reasons to warrant dismissal of the Claimant
- 2.Whether the Respondent exercised due process before dismissal of the Claimant
- 3.What orders to grant in the circumstances
Key legal issues
#Status of the Claimant's employment
Though she never signed the contract, having served over one year she was deemed a permanent and pensionable employee under Section 37(1) of the Employment Act
RW2 confirmed the Claimant was employed on 27 May 2013 and served slightly over one year at termination. The Respondent did not produce employment records such as the muster roll. The court applied Section 37(1), deeming a casual employee who has worked for the equivalent of one month or more to be employed on monthly wage terms.
Validity of reasons for dismissal
The Claimant was dismissed without valid reasons because the Respondent failed to prove the alleged absenteeism and misconduct
The Respondent alleged absenteeism and absconding but never produced employment records like the muster roll. The Claimant produced medical records proving hospitalisation from 17 to 20 June 2014. Under Section 43, an employer must give minimum justification and prove the reasons for dismissal; the burden was not discharged.
Due process before dismissal
The dismissal by text message without notice or hearing violated Section 41 of the Employment Act
The Respondent conceded the dismissal was effected by text message. Section 41 requires the employer to explain the reasons for termination, allow an employee representative, and hear and consider representations. There was no indication this process was followed, so the Claimant was dismissed without due process.
Legal principles established
#- A casual employee who has worked for the equivalent of not less than one month is deemed under Section 37(1) of the Employment Act to be employed on monthly terms, attracting the protections of Section 35(1)(c)
- The burden lies on the employer to prove the reasons for termination, failing which the termination is deemed unfair under Section 43 of the Employment Act
- Under Section 45(2), termination is unfair where the employer fails to prove a valid and fair reason and fair procedure
Court orders
#- 1.Payment of 1 month's salary in lieu of notice of Kshs. 25,000
- 2.Damages for unfair termination equivalent to 8 months' salary of Kshs. 200,000
- 3.Payment in lieu of leave for 1 year of Kshs. 25,000
- 4.Unpaid salary for days worked in June 2014 of Kshs. 15,625 (total Kshs. 265,625)
- 5.The Respondent to pay costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Cause proceedings under the Employment Act, 2007)
Relief refused
#Salary for the unexpired period of the contract (18 months and 19 days) of Kshs. 471,590 as sought in the Memorandum of Claim
The court awarded damages limited to 8 months' salary rather than the full unexpired contract term claimed; the Respondent had relied on Bank of Uganda vs Betty Tinkamanyire against compensating for the remainder of the contract period
Costs
The Respondent will also pay costs of this suit.
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.
Though she never signed any contract as averred by the Respondent, I will consider her a permanent and pensionable employee by virtue of Section 37(1) of Employment Act
In the absence of proof of the reasons given for dismissal, I find that the Claimant was dismissed without valid reasons.
There is no indication that the above process was ever followed. The Claimant was therefore dismissed without due process.
The Claimant was however dismissed without valid reasons and without following due process. I therefore find the dismissal of the Claimant unfair and unjustified.
1. 1 months salary in lieu of notice = 25,000/=. 2. Damages for unfair termination equivalent to 8 months salary = 8 x 25,000/=200,000/=.
Issues in the judgment
#Judgment inconsistently names the hospital where the Claimant was admitted, first as Nairobi West Hospital Limited, later as Nairobi Womens Hospital
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Aoko Oduor v Sparkfresh Investments Limited [2018] KEELRC 1974 (KLR)", Case Analysis (2018). Cause No. 1515 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1974/eng@2018-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.