Automated Summary
Key Facts
The Claimant was employed as a driver by Redlands Roses Limited in 2010. On 24/4/2015, he was arrested for a traffic offense while driving the company's truck. The Respondent sent Ksh.10,200 to the Claimant for bail, with an agreement to deduct it from his salary. The Claimant returned Ksh.4,200 to the company but could not produce a cash bail receipt. On 28/4/2015, he was handed a summary dismissal letter and show cause letter, which the court found procedurally unfair. The Respondent alleged fraud and bribery, but the court ruled the dismissal was unlawful and unfair, awarding the Claimant three months' notice pay (Ksh.114,000) and eight months' compensation (Ksh.304,000).
Issues
- Whether the termination of the Claimant's employment was based on valid reasons, as required by Section 45(1) of the Employment Act 2007, and whether the employer failed to prove the existence of such reasons as outlined in Section 43.
- Whether the termination of the Claimant's employment was fair and lawful, including compliance with Section 41 of the Employment Act 2007, which mandates procedural fairness such as providing a hearing and opportunity to defend oneself before dismissal.
- Whether the Claimant is entitled to the reliefs sought, including payment in lieu of notice (Ksh. 114,000), compensation for unfair dismissal (Ksh. 304,000), payment for holidays worked (Ksh. 6,333.3), and a Certificate of Service, as determined by the Court's findings on the validity and fairness of the termination.
Holdings
- The Claimant was granted Ksh. 6,333.3 for holidays worked, as the Respondent admitted this claim during evidence. This relief was allowed by the court.
- The court declined the Claimant's request for twelve months' salary as compensation but awarded eight months' salary (Ksh. 304,000) for the unfair and unlawful termination, citing no special circumstances to justify the higher amount.
- The Claimant's request for Ksh. 17,000 related to payroll changes in 2010 was denied as the claim was not proven. The court required evidence to substantiate such a request, which was lacking.
- The court found that the termination of the Claimant's employment was not based on any valid reason and was both unfair and unprocedural, declaring it unlawful. The court held that the Respondent failed to prove fraud and did not comply with Section 41 of the Employment Act 2007, which requires employers to provide a hearing before termination.
- The court ordered the Respondent to issue a Certificate of Service to the Claimant within 30 days of the judgment. This was a direct relief granted to the Claimant.
- The Claimant was awarded payment in lieu of notice for three months (Ksh. 114,000) as per his contract, which was allowed by the court. The Respondent admitted the Claimant's entitlement to this relief.
Remedies
- The Claimant received compensation of eight months' salary (Ksh. 304,000) for the unfair and unlawful termination, as the court declined the 12-month compensation request due to lack of special circumstances.
- The Claimant is awarded three months' salary (Ksh. 114,000) in lieu of notice, as stipulated in the employment contract, for the unfair termination of employment.
- The court declared the termination of the Claimant's employment was unlawful, wrongful, and unfair due to procedural and substantive failures by the employer to prove valid grounds for dismissal.
- The respondent is ordered to issue a Certificate of Service to the claimant within thirty (30) days of the judgment's delivery.
- The claimant is awarded the costs of the claim, as costs follow the event of the judgment being in their favor.
- The Claimant was granted Ksh. 6,333.3 for holidays worked, which the Respondent admitted in the evidence provided during the trial.
- Interest at court rates is awarded on the monetary reliefs (payment in lieu of notice, compensation, and holiday pay) from the date of the judgment until full payment.
Monetary Damages
424333.30
Legal Principles
- The court held that the employer failed to meet the burden of proof under Section 43 of the Employment Act 2007 to demonstrate the termination was based on valid and fair reasons. The lack of evidence for fraud and procedural non-compliance led to the dismissal being deemed unfair.
- The court applied the principle of Natural Justice, emphasizing that the employer failed to provide the Claimant with a proper hearing before termination. Section 41 of the Employment Act 2007 mandates that employers must explain termination reasons and allow employees to respond, which the Respondent did not comply with, rendering the dismissal procedurally unfair.
Precedent Name
- Janet Nyandiko -vs- Kenya Commercial Bank Limited
- National Bank of Kenya -vs- Samuel Nguru Mutonya
Cited Statute
- Employment Act 2007 - Pre-Termination Procedures
- Employment Act 2007 - Unfair Termination Criteria
- Employment Act 2007 - Unfair Termination
Judge Name
Agnes M.K. Nzei
Passage Text
- The prayer for twelve (12) months salary as compensation is declined as no special circumstances have been shown, and instead I award the Claimant ksh.304,000 being eight (8) months salary as compensation for unfair and unlawful termination.
- I find and hold that the Respondent contravened the provisions of Section 41 of the Employment Act 2007. Termination of the Claimant's employment was not only unfair, but was unprocedural and therefore unlawful as well. I so declare.
- The Respondent is hereby ordered to issue a Certificate of Service to the Claimant within thirty (30) days of this judgment.