Riley Falcon Security Limited v Simiyu (Appeal E011 of 2024) [2024] KEELRC 2710 (KLR) (31 October 2024) (Judgment)

Key Facts

Issues

• The court determined whether the termination of the respondent's employment was unfair, considering the lack of notice, failure to communicate contract renewal terms in the employee's language, and the employer's duty to follow due process under Sections 9(4), 35, 41, and 45 of the Employment Act. The termination was found unlawful due to these lapses, constituting unfair labor practices.
• The court evaluated the validity of a 12-month compensation award for unfair termination. It found the trial court's decision capricious and unjustified, substituting it with a three-month compensation of Ksh.54,436.68 based on the respondent's gross wage, citing principles from cases like Postal Corporation of Kenya v Andrew K. Tanui [2019] KECA.
• The court addressed whether the employer violated Section 9(4) of the Employment Act by failing to explain the contract renewal letter in a language the respondent understood. This lapse invalidated subsequent communications, exacerbating the unfair termination and denying the respondent a fair opportunity to renew his contract.

Holdings

• Uniform refund (Ksh.6,000) is due upon termination.
• Compensation of three months' gross wage (Ksh.54,436.68) is awarded for unfair termination.
• Leave pay for two years (Ksh.28,075.96) is awarded based on the respondent's last basic wage.
• Certificate of service must be issued to the respondent.
• Off days for three months (Ksh.5,784) are awarded as claimed by the respondent.
• Employment was terminated unfairly due to failure to provide notice and communicate in a language the respondent understood.
• The appeal partially succeeds; each party bears its costs for the appeal, but trial court costs are upheld without interest.

Remedies

• The respondent received notice pay amounting to Ksh.18,145.56.
• Leave pay was awarded at Ksh.28,075.96 for two years of annual leave.
• The respondent was awarded compensation of Ksh.54,436.68 for unfair termination.
• The court awarded Ksh.5,784 for three months of off days.
• Each party is to bear its own costs for the appeal proceedings. The trial court's costs, as previously awarded, are due without interest.
• The respondent is entitled to a uniform refund of Ksh.6,000.
• The respondent was ordered to be issued with a certificate of service.
• The court found that the employment was terminated unfairly.

Monetary Damages

Legal Principles

• The termination was deemed an unfair labour practice as the employer violated Section 9(4) of the Employment Act by failing to explain the 28 October 2021 termination letter in a language the employee understood. This contravened constitutional rights to fair treatment at work under Article 41.
• The court applied Section 12(4) of the Employment and Labour Relations Court Act, ruling that costs in employment claims must be justified and not awarded whimsically. This led to the decision that each party bear their own appeal costs.
• The court emphasized that when an employer initiates contract renewal discussions, a legitimate expectation is created for the employee to apply. This principle was central to finding the termination unfair due to the employer's failure to communicate renewal terms in a language the employee understood.

Precedent Name

• Robi Stephen Nyamohanga v Judicial Service Commission
• Williamson Diamonds Ltd. V. Brown
• Ibrahim Ulalo v Nation Media Group
• Johnstone Luvusia v All Pack Industries Limited
• CMC Aviation Limited v Mohamed Noor
• John Njoroge Wanjilu v Aldonai Enterprises Limited
• Ol Pejeta Ranching Limited v David Wanjau Muhoro
• Nanyuki Water & Sewage Company Limited v Benson Mwiti Ntiritu et al.
• Selle and Another v Associated Motor Boat Company Limited and others
• Postal Corporation of Kenya Andrew K. Tanui

Cited Statute

• Employment and Labour Relations Court Act
• Employment Act

Judge Name

• J. Ongundo
• M. Mbaru

Passage Text

• Compensation for three months' gross wage is hereby found justified. The respondent was earning Ksh.18, 145.56 per month x 3 is Ksh. 54, 436.68 in compensation.
• The duty is upon the employer to explain the contents of the contract to the employee in a language he understands. This obligation was not discharged in this case.
• The termination was therefore unlawful, and we so find. We also affirm the finding by the trial court that the appellant had engaged in unfair labour practices.