The Youth Agenda v Rita Kijala Shako [2017] eKLR

Key Facts

Issues

• The appellate court reduced the compensation from 10 to 2 months' salary, deeming the original award excessive for a one-year employment period and considering the lack of due process.
• The court determined whether the employer's termination of the respondent's employment was unfair, noting the lack of valid reasons provided and failure to follow due process under the Employment Act.
• The court examined if the respondent's one-year employment (terminated in January 2010) qualified as 'continuous employment for 13 months' under Section 45(3), concluding the contract terms allowed her claim despite the statutory period.

Holdings

• The court ordered payment of interest on the award from 24th February 2012 (date of lower court judgment) and directed the appellant to pay the respondent's costs in the lower court, with each party bearing their own appeal costs.
• The court adjusted the compensation from 10 months' salary to 2 months' gross salary (Kshs. 400,000) plus the conceded 3 months' salary in lieu of notice, totaling Kshs. 777,762.60.
• The court determined that the respondent's employment was unfairly terminated as the appellant failed to prove valid reasons and did not follow due process under Sections 41 and 43 of the Employment Act.

Remedies

• Interest is payable on the total award amount (Kshs. 777,762.60) from the date of the lower court's judgment (24th February 2012) at the prevailing court rates until the amount is fully paid.
• The Court substituted the original 10-month salary compensation award with 2 months' gross salary (Kshs. 400,000.00) due to the appellant's failure to establish valid termination reasons and provide a hearing. This reflects the discretionary power under Section 49 of the Employment Act.
• The Court ruled that the costs of the appellate proceedings shall be separately borne by the appellant and respondent.
• The appellant is liable for the conceded balance of Kshs. 377,762.60 representing 3 months' salary in lieu of notice, as outlined in the termination letter dated 26th February 2010 and confirmed by the lower court.
• The respondent is entitled to costs in the lower court, which the appellant is ordered to pay following the Court's determination of unfair termination.

Monetary Damages

Legal Principles

• The employer failed to discharge its burden of proving valid reasons for termination under Section 43 of the Employment Act, leading the court to deem the termination unfair.
• The court applied the doctrine of constructive dismissal, finding the employer's reassignment to a non-existent position and lack of due process amounted to unfair treatment.

Precedent Name

• Chukwuman vs. Shell Petroleum Development Co. Nig. Ltd
• D.K. Njagi Marete vs. Teachers Service Commission
• Land Securities Trillium Limited vs. Ms J Thornley
• Mary Saru Mwandawiro vs. Kenya Ports Authority
• Hema Hospital vs. Wilson Makongo Marwa

Cited Statute

Judge Name

• Asike-Makhandia
• W. Ouko
• S. Gatembu Kairu

Passage Text

• The respondent in the present case had worked for the appellant for just over one year... Considering these factors, we consider that compensation based on the equivalent of 2 months gross salary in addition to three months salary in lieu of notice is reasonable award. We accordingly set aside the award of Kshs. 2,000,000.00 made by the lower court and substitute therewith an award of Kshs. 400,000.00 being the equivalent of 2 months gross salary.
• In the foregoing circumstances, the respondent was no doubt justified in her complaint that her employment was unfairly terminated. She was not given reasons why her employment was terminated. The closest the appellant got to do so was to suggest that the secretariat was undergoing reorganization. The position that she held under her contract of service was assigned to another person while she was to be reassigned to a position that was yet to be created. She was kept in abeyance and locked out of the office of chief executive officer on resumption of duty on 11th January 2010 before being offered that position that she had never applied and that had no relation with the work for which she had been employed. She was not under any obligation to accept that position. The circumstances and the manner in which she was treated by the appellant are not dissimilar to those in the English case of Land Securities Trillium Limited vs. Ms J Thornley (above) in which the doctrine unfair constructive dismissal was applied save that in the present case the respondent did not resign but was terminated by the appellant in terms the appellant's letter dated 28th January 2010.
• Under Section 41(1) of the Employment Act... the employer is required to hear and consider any representations that the employee may make. Furthermore, under Section 43 of the Employment Act... where the employer fails to do so, the termination is deemed to have been unfair. The reasons given by the appellant for terminating the employment of the respondent oscillated from poor performance to absconding from duty. The appellant proved none of these and neither was due process followed, as the respondent was not accorded a hearing. The attempt by the appellant to seek protection under Section 42 that exempts the requirements for reasons and a hearing during a probation period cannot hold as the probation period of 6 months under the contract had lapsed by the time the respondent's employment was terminated.