Automated Summary
Key Facts
Stella Moraa Ondari was employed by Goodwill Photo Lab Limited in December 2011 as a photographer/saleslady with a claimed salary of Kshs.18,000/month. She was dismissed on 28th March 2012 without notice or due process. The employer failed to provide a written contract, certificate of service, or pay slips. The court ruled the dismissal unlawful and unfair, finding the employer did not adhere to Employment Act procedures (sections 41, 43, 45). The employer claimed she abandoned duties and was responsible for missing stock (Kshs.8,067), but provided no evidence. The court awarded notice pay (Kshs.18,000), March 2012 salary (Kshs.18,000), leave pay (Kshs.4,200), and house allowance (Kshs.12,000).
Issues
- The court addressed the non-payment of the Claimant's March 2012 salary (Kshs.18,000.00), leave days (1.75 days at Kshs.4,200.00), house allowance (Kshs.12,000.00), and 12 months' compensation (Kshs.216,000.00). The Respondent argued these were not owed, but the court found no evidence of a written contract or records to support their defense under the Employment Act.
- The court determined whether the Claimant's termination in March 2012 was unlawful and unfair, considering the absence of notice, lack of due process (no hearing), and the employer's failure to issue a written contract or Certificate of Service as required by the Employment Act. The Respondent alleged the dismissal was due to missing stock, but provided no evidence of proper investigation or documentation.
Holdings
- The Respondent did not prove the allegations of missing stock or establish a proper disciplinary process against the Claimant. The court found the termination unjustified under section 43 and 45 of the Employment Act.
- The court ordered that each party bear their own legal costs, as no party was found to be entirely at fault in the procedural failures.
- The Claimant was awarded notice pay of Kshs.18,000.00 and salary for March 2012 (Kshs.18,000.00) as the Respondent did not pay these amounts and failed to demonstrate proper cause for withholding.
- The court determined that the Respondent failed to issue a written contract within the legally mandated two months, leaving the Claimant's word as the primary evidence. The Respondent's failure to follow due process under section 41 of the Employment Act rendered the termination unlawful and unfair.
- Leave pay of Kshs.4,200.00 was awarded, as the Claimant was entitled to annual leave under section 28 of the Employment Act despite working only four months.
- The court ruled that the house allowance of Kshs.12,000.00 was due since no written contract specified housing terms, and the Respondent did not provide evidence of such an agreement.
Remedies
- Notice pay at Kshs.18,000.00
- House allowance at Kshs.12,000.00
- Salary for March 2012 at Kshs.18,000.00
- Leave pay at Kshs.4,200.00
Monetary Damages
52200.00
Legal Principles
- The judgment highlighted that the respondent failed to follow due process in termination, including providing notice and allowing the claimant a hearing as required by sections 41 and 44 of the Employment Act. This breach constitutes an unfair labour practice.
- The court emphasized that employers must prove the reasons for termination under section 43 of the Employment Act. Failure to demonstrate justification for dismissal results in the termination being deemed unfair under section 45 of the Act.
Precedent Name
Frederick Kariuki Kamau versus Bank of India
Cited Statute
Employment Act
Judge Name
M. Mbaru
Passage Text
- Judgement is entered for the Claimant in the following terms; a. Notice pay at kshs.18, 000.00; b. Salary for March 2012 at Kshs.18, 000.00; c. Leave pay at kshs.4, 200.00; and d. House allowance at Kshs.12, 000.00.
- To thus terminate the Claimant without notice, due process was not followed... For the inaction of the respondent, the resultant loss of employment by the Claimant amounts to unfairness.
- The employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.