Beatrice Jelimo Toroitich v S G S Kenya Ltd & 2 others [2021] eKLR

Key Facts

Issues

• Whether the termination of the claimant's employment was procedurally fair, considering the procedures followed by the employer, including serving a show cause letter, allowing the claimant to respond, and conducting a disciplinary hearing as required under Section 41 of the Employment Act 2007.
• Whether the termination of the claimant's employment was substantively fair, particularly as the employer failed to prove that the reasons for termination (alleged fraud in submitting false hotel receipts) were valid, as per Sections 43 and 45 of the Employment Act 2007.
• Whether the employer's counter-claim for Ksh.67,750, alleging that the claimant submitted false hotel receipts for accommodation at Royal Homes in Mombasa, has been proved.
• Whether the claimant is entitled to the reliefs sought, including two months' salary in lieu of notice, payment for pending leave days, severance pay, and compensation for unfair termination, as outlined in the Memorandum of Claim.

Holdings

• The court directed the employer to issue a Certificate of Service within 45 days and awarded the Claimant costs of the claim and counter-claim, with interest at Court rates from the judgment date.
• The court held that the termination of the Claimant's employment was unfair because the employer (1st Respondent) failed to prove the allegations of fraud and falsification regarding the hotel receipts. The employer did not demonstrate the validity of the reasons for termination as required by Sections 43 and 45 of the Employment Act 2007.
• The Claimant's prayers for payment in lieu of notice, severance pay, overtime, NHIF, NSSF, and insurance claims were denied, except for the compensation for unfair termination. The employer's counter-claim for Ksh.67,750 was also dismissed.
• Procedural fairness was upheld as the Claimant was served with a show cause letter, attended a disciplinary hearing, and was informed of her right to be accompanied by a witness. However, the reasons for termination were invalid.
• The Claimant was awarded 10 months' salary (Ksh.986,435.20) as compensation for unfair termination of employment under Section 45 of the Employment Act 2007.

Remedies

• The Court directed the 1st Respondent to issue the Claimant with a Certificate of Service within forty-five (45) days of the judgment.
• The Claimant was awarded ten (10) months' salary as compensation for unfair termination of employment, amounting to Ksh.986,435.20. This was based on the Court's finding that the termination was substantively unfair due to the employer's failure to prove the validity of the allegations of fraud.
• The Claimant was awarded costs of the claim and counter-claim, along with interest at the Court's rate from the date of judgment until payment in full.
• The Claimant's claim against the 2nd and 3rd Respondents was dismissed with no orders as to costs. The Court held that they ought not to have been sued in the first place.

Monetary Damages

Legal Principles

Precedent Name

Cited Statute

• Evidence Act
• Employment Act 2007

Judge Name

Passage Text

• I award her ten (10) months salary for unfair termination of employment.
• Section 45 of the Act makes provisions, inter alia that no employer shall terminate the employment of an employee unfairly. In the terms of the said section, a termination of an employment is deemed to be unfair if the employer fails to prove that the reason for the termination was valid: That the reason for the termination was a fair reason and that the same was related to the employees conduct, capacity, compatibility or alternatively that the employer did not act in accordance with justice and equity....the parameters of determining whether an employer acted in accordance with justice and equity in determining employment of the employee are inbuilt in the same provision.
• The allegations of dishonesty, falsification of receipts, fraud and intent to fleece the 1st Respondent of money given for a business trip, on the basis of which the Claimant was dismissed, were never proved by the 1st Respondent. Termination of the Claimant's employment was not based on valid reasons. It was unfair within the meaning of Sections 43 and 45 of the Employment Act 2007.