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ELRCPartially AllowedNot stated in the judgment· [2019] KEELRC 1330 (KLR)

Justus Shikhunga Were v Tusker Mattresses Limited [2019] KEELRC 1330 (KLR)

Employment and Labour Relations Court
21 June 2019
MOMAUREEN ONYANGO
1,889 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that firing an employee without a disciplinary hearing is unfair, even if the employee's own conduct caused the problem.

What this practically means

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Executive summary

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Justus Shikunga Were, a shop assistant employed by the respondent from 1st June 2007, claimed unfair and unlawful termination after he was dismissed with effect from 23rd June 2014. He contended that the branch manager had verbally granted him leave, and that on reporting back he was served with a dismissal letter without any prior notice or opportunity to be heard. The respondent admitted the employment and termination but alleged habitual absenteeism, claiming only one day's leave had been permitted, and that it chose termination with one month's pay in lieu of notice rather than summary dismissal. The court framed two issues: whether the termination was unprocedural, wrongful, illegal or unfair, and whether the reliefs sought were payable. Relying on section 41 of the Employment Act and the authorities of Mary Chemweno Kiptui v Kenya Pipeline Company Limited and Gilbert Mariera Makori v Equity Bank Limited, the court held that the hearing requirement is mandatory. The respondent's human resource manager admitted that no meeting was called and the claimant was not heard. Although the claimant may have contributed to his termination by his absence, the court confined itself to the process followed. It declared the termination unprocedural, wrongful, illegal and unfair, awarded six months' salary as compensation (Kshs.210,828) considering the claimant's contribution and seven years of service, and awarded notice pay and June 2014 salary (Kshs.35,138 each) plus leave pay of Kshs.7,361, totaling Kshs.288,465. The claim for damages for violation of Article 41(1) constitutional rights failed for lack of proof. The respondent was ordered to pay the claimant's costs.

Key legal issues

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01

Whether the termination was unprocedural, wrongful, illegal or unfair

Holding

The termination was wrongful, unfair and unlawful because the respondent failed to follow the mandatory disciplinary process under section 41 of the Employment Act.

Reasoning

Section 41 of the Employment Act requires an employer to explain the grounds of contemplated termination and to hear the employee's representations before dismissal. The respondent's human resource manager admitted the claimant was not called for a meeting and did not defend himself. Although the claimant may not have been innocent in absenting himself, the court concerns itself only with the process followed. The absence of any disciplinary process rendered the termination unfair and unlawful.

p. 3
02

Whether the claimant is entitled to the reliefs sought

Holding

The claimant was entitled to a declaration of unfair termination, compensation of six months' salary, pay in lieu of notice, June 2014 salary and leave pay, but not damages for constitutional rights violation.

Reasoning

Having found the termination wrongful, unfair and unlawful, the court awarded compensation guided by section 49 of the Employment Act, factoring in the claimant's substantial contribution to his termination and his seven years of service. Six months' salary of Kshs.210,828 was awarded, plus notice pay and June salary of Kshs.35,138 each and leave of Kshs.7,361, based on the rate in the memo of 10th July 2014. The rights-violation damages claim failed for want of proof.

p. 3

Legal principles established

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  • Section 41 of the Employment Act mandatorily requires an employer, before terminating employment on grounds of misconduct, to give notice of the charges and accord the employee a hearing; failure to do so renders the termination unfair and unlawful regardless of the merits of the misconduct.

Court orders

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  1. 1.A declaration that the respondent's termination of the claimant's employment was unprocedural, wrongful, illegal and amounted to unfair termination
  2. 2.Compensation of six months' salary in the sum of Kshs.210,828 under section 49 of the Employment Act
  3. 3.Payment of Kshs.35,138 being pay in lieu of notice
  4. 4.Payment of Kshs.35,138.00 being June 2014 salary
  5. 5.Payment of Kshs.7,361.00 for leave
  6. 6.Total award of Kshs.288,465.00/=
  7. 7.The respondent to pay the claimant's costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (memorandum of claim for unfair termination; Employment Act 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Justus Shikhunga Were v Tusker Mattresses Limited [2019] KEELRC 1330 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1330/eng@2019-06-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.