Automated Summary
Key Facts
Andrew Ngure was employed by Sendy Limited as head of sales in February 2017. In October 2017, he requested leave due to burnout but was denied. On October 31, 2017, he was placed on one month's compulsory leave. Upon returning on November 30, he was informed of his termination during a breakfast meeting on December 1, 2017, without prior notice or a formal hearing. The employer cited poor work performance, failure to meet KPIs, and personal disruptions (including a family member's workplace visit) as grounds for termination. The court found the termination procedurally and substantively unfair under Section 41 of the Employment Act, 2007, as the employer failed to provide adequate due process. Ngure was awarded Ksh 390,000 in compensation for unfair termination, Ksh 65,000 for 5 days of December 2017 work, and the case was closed with each party bearing their own costs.
Issues
- Whether there was unfair termination of employment; Whether the remedies sought should issue; and Who should pay costs.
- Who should pay costs.
- Whether the remedies sought should issue; and Who should pay costs.
Holdings
- The claim for overtime pay was rejected due to lack of evidence that the claimant worked approved overtime or provided specific details to justify the claim.
- The court ruled that both parties should bear their own costs for this employment claim, as neither party demonstrated grounds for cost allocation to the other.
- The claimant was entitled to payment for 5 days worked in December 2017, amounting to Ksh 65,000, as the termination was deemed unfair and the notice period was not properly handled.
- The gratuity claim was dismissed as it was not a term of the employment contract and the respondent confirmed compliance with Section 35(5) and (6) of the Employment Act.
- The court determined that the respondent failed to meet the procedural requirements under Section 41 of the Employment Act, leading to an unfair termination. The claimant was awarded Ksh 390,000 as compensation for the unfair dismissal.
Remedies
- The claimant was awarded compensation of Ksh 390,000 for unfair termination of employment, as his one-year contract was due to lapse in January 2018 and he was denied a fair chance to complete it.
- The claimant was entitled to payment of Ksh 65,000 for 5 days worked in December 2017, separate from the notice pay awarded due to the finding of unfair termination.
- The court ordered that each party should bear their own costs in this employment claim, as outlined in the judgment.
Monetary Damages
455000.00
Legal Principles
- The court applied the principle of procedural fairness (natural justice), requiring employers to inform employees of termination reasons and provide an opportunity to be heard. The respondent failed to adhere to these requirements, as the claimant was not given adequate procedural safeguards before termination.
- The court ruled that each party should bear their own legal costs in this employment dispute, as neither side was entirely successful in their claims.
- The court emphasized that the employer bears the burden of proof to demonstrate poor work performance as grounds for termination under Section 41 of the Employment Act, 2007. This aligns with the Court of Appeal's ruling in National Bank of Kenya v Samuel Nguru Mutonya [2019] eKLR, which requires employers to meet a high standard of proof for performance-related terminations.
Precedent Name
- Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
- National Bank of Kenya v Samuel Nguru Mutonya
Cited Statute
Employment Act, 2007
Judge Name
M. Mbarú
Passage Text
- The claim for compensation for unfair termination of employment is justified on the finding that there was unfair termination of employment. The claimant was earning Ksh 390,000 per month, he worked under a year and his contract was due to lapse in January 2018. He was denied a fair chance to complete his contract and an award of one month is hereby found appropriate award at Ksh 390,000.
- After the claimant was sent on compulsory leave, this was to allow him to rest in terms of his employment rights under Section 28 of the Act. His performance could not be reviewed within such period outside work to enjoy his right for leave. Taking leave was with the approval and directions of the employer. Before the claimant could resume duty from his compulsory leave, he was summoned and within 5 days, his employment was terminated without notice and hearing as contemplated under Section 41 of the Act. Such was procedurally and substantively unfair. The respondent failed to meet the threshold and principles outlined by the Court of Appeal in the case of National Bank of Kenya v Samuel Nguru Mutonya [2019] eKLR cited above.