Chrispinus Wabwire v Spinknit Limited [2020] KEELRC 1369 (KLR)
The bottom line
#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 respondent proved a valid and fair reason for the summary dismissal of the claimant
- 2.Whether the claimant was afforded a fair hearing/procedure before termination
- 3.Whether the claimant is entitled to notice pay, compensation, leave pay, travelling allowance and severance pay
Key legal issues
#Validity of the reason for summary dismissal
There was no evidence supporting the reason stated in the dismissal letter; there was a variance between the notice to show cause, suspension, disciplinary proceedings and the ultimate notice of summary dismissal
The disciplinary proceedings centred on the claimant's absence from his duty station, yet the dismissal letter alleged creating commotion by spreading false information about Unitas. No material evidence supported that allegation, and the claimant had dared the respondent to call a witness. The variance meant the employer failed to prove a valid and fair reason under sections 43 and 45 of the Employment Act.
Remedies for unfair termination
The claimant was entitled to notice pay and compensation under sections 45(2) and 49 of the Employment Act; compensation assessed at one month's gross wage due to his poor disciplinary record
Without a valid and fair reason the termination was unfair. In assessing compensation under section 45(5), the court considered the claimant's work record, including a prior summary dismissal in March 2013 for gross misconduct later lifted after union intervention, and awarded one month's gross wage as compensation plus notice pay at the last gross wage of Ksh.14,763.
Leave pay and certificate of service
Leave pay of Ksh.9,309 awarded as unchallenged since the respondent filed no work records; certificate of service due under section 51
The respondent did not file any work records regarding leave, so the claim was unchallenged and succeeded. A certificate of service is a statutory entitlement under section 51 of the Employment Act, 2007 and was due to the claimant.
Legal principles established
#- The employer bears the burden under section 43 of the Employment Act to demonstrate a valid reason for termination
- The court does not re-enact the internal disciplinary process but examines the legality and reasonableness of the employer's action
Court orders
#- 1.A declaration that employment terminated unfairly
- 2.Compensation of Ksh.14,763 (one month's gross wage)
- 3.Notice pay of Ksh.14,763
- 4.Leave pay of Ksh.9,309
- 5.Certificate of service to issue under section 51 of the Employment Act, 2007
- 6.Dues under (b), (c) and (d) subject to the provisions of section 49(2) of the Employment Act, 2007
- 7.Claimant awarded 50% of his costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 40, 43, 45, 49, 51)
Relief refused
#Severance pay of Ksh.115,092
Severance pay arises only under section 40 of the Employment Act on redundancy, which was not the case here
Leave travelling allowance of Ksh.2,623
The leave was encashed rather than taken, so no travel arose
Days worked and not paid (Ksh.10,155), 4 months' notice pay of Ksh.50,776, cots and full compensation as sought
Not awarded as pleaded; notice pay assessed at one month's gross wage and compensation reduced to one month due to poor work record
Costs
The claimant is entitled to 50% of his costs.
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.
In this case, the court finds no evidence with regard to the reasons for which employment terminated. There is a variance on the notice to show cause, suspension and disciplinary proceedings with the ultimate notice of summary dismissal.
Without a valid and fair reason leading to termination of employment, the claimant was unfairly treated and under section 45(2) and 49 of the Employment Act, 2007 he I entitled to compensation and notice pay.
Accordingly, judgement is hereby entered for the claimant against the respondent in the following terms; a. A declaration employment terminated unfairly;
g. The claimant is entitled to 50% of his costs.
Issues in the judgment
#Date of employment stated inconsistently in the judgment
Date of prior dismissal stated inconsistently (2013 vs 2014) within the judgment
Date of the dismissal letter appears as both 14th October and 25th October, 2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chrispinus Wabwire v Spinknit Limited [2020] KEELRC 1369 (KLR)", Case Analysis (2020). Cause No. 52 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1369/eng@2020-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.