Anne Wairimu Nduta v Ukristo Na Ufanisi Was Anglicana Sacco Ltd [2021] KEELRC 2351 (KLR)

Section 41(1) and (2) of the Employment Act require the employer, before terminating or summarily dismissing an employee on grounds of misconduct, to explain the reasons and hear and consider the employee's representations. The claimant was only issued demand letters and a show-cause letter; no hearing at the shop floor took place. Nothing exceptional was shown to make a hearing impossible. Termination was therefore contrary to section 41 and unfair under section 45, calling for compensation under section 49.

The court held that where an employer's business gives rise to other matters comprising gross misconduct beyond those enumerated in section 44, the employer must incorporate such matters into work regulation policies and bring them to the employee's attention through memos, agreements, notices, circulars, work regulations or the employment contract. No such material existed here, and no work records showed the claimant had been directed to submit certificates and failed. The regulator explanation was unsupported by evidence.

Section 34(5) and (6) of the Employment Act provide that service pay is only due where statutory deductions and contributions are not complied with. The claimant's payment statement showed she was registered with NSSF and NHIF, so the claim for service pay from 2011 to 2019 failed.