James Mwamure Changawa v Board of Management [2019] KEELRC 2310 (KLR)
The bottom line
#A Kenyan school lost a teacher's unfair dismissal case because it fired him before his disciplinary hearing, without giving him a chance to be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's employment was lawful and fair
The termination was substantively and procedurally unfair; the decision was preconceived, the Claimant was not heard by the Board, and his representations were never considered
The Claimant responded to the show cause letter giving reasons for not amending the timetable. He attended the Board hearing but was not heard; instead he was issued a termination letter dated 24th October 2017, before the hearing date. The Respondent did not participate or contradict this testimony. Citing Mary Chemweno Kiptui v Kenya Pipeline Company Limited, the court held the burden was on the employer to show compliance with Section 41 of the Employment Act, which it failed to discharge.
Whether the Claimant is entitled to house allowance
House allowance claim allowed since there was no evidence the salary was inclusive of house allowance
Section 31(1) and (2) of the Employment Act obliges an employer to provide reasonable housing or pay rent, unless the contract consolidates a housing element in the salary or a collective agreement so provides. There was no evidence of such consolidation, so the claim was allowed and the monthly salary adopted for computation was Kshs. 16,100.
What remedies are due following the finding of unfair termination
Four months' salary in compensation, one month's notice pay, October 2017 salary and 13 months' house allowance awarded
In exercising discretion on compensation, the court considered the Claimant's length of service and the Respondent's conduct leading to the termination. Notice pay and withheld salary follow automatically from the unlawful termination, and interest was awarded at court rates from the date of judgment.
Legal principles established
#- In a claim for unfair termination of employment, the burden is on the employer to demonstrate compliance with the procedural fairness requirements set out under Section 41 of the Employment Act, 2007
- An employer who has predetermined the termination decision before a disciplinary hearing denies the employee an opportunity to defend himself, rendering the termination substantively and procedurally unfair
Court orders
#- 1.Judgment entered in favour of the Claimant: 4 months' salary in compensation Kshs. 64,400
- 2.1 month's salary in lieu of notice Kshs. 16,100
- 3.Salary for October 2017 Kshs. 16,100
- 4.House allowance for 13 months Kshs. 27,300
- 5.Total award of Kshs. 123,900 with interest at court rates from the date of judgment until payment in full
- 6.Claimant awarded costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over wrongful/unfair termination claims (Employment Act, 2007); specific enabling provision not cited in judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Mwamure Changawa v Board of Management [2019] KEELRC 2310 (KLR)", Case Analysis (2019). Memorandum of Claim dated 22nd January 2018, filed 29th January 2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2310/eng@2019-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.