Naima Khamis v Oxford University Press (e.a) Ltd

Under section 43(1) of the Employment Act the employer must justify the reasons for termination; under section 47(5) the employee bears the burden of proving unfair termination while the employer bears the burden of justifying the grounds. The respondent produced correspondence and an appraisal (39% performance) substantiating poor performance, insubordination and carting away work products. The appellant did not deny her poor performance. The warning letters and documented process supported the validity of the reasons.

Section 41 requires an employer, before terminating on grounds of misconduct, poor performance or physical incapacity, to explain the reasons to the employee in a language the employee understands, in the presence of another employee or shop floor union representative, and to hear and consider representations. The respondent led no evidence that the appellant was given a chance to be heard prior to dismissal. Section 45(4)(b) requires the employer to act in accordance with justice and equity.

The number of months' compensation under section 49(1)(c), capped at twelve, is left to the court's discretion, which appellate courts interfere with sparingly. It was not demonstrated that the trial Judge misdirected himself, acted on wrong principles, or took into account extraneous matters. Damages cannot be upset merely because another judge would have awarded more; the appellate court is not entitled simply to substitute its own view where there was no improper appreciation of the evidence or law.

Section 12(4) of the Employment and Labour Relations Court Act gives the court discretion to make such orders as to costs as it considers just. Unlike ordinary civil claims, costs in labour relations claims do not automatically follow the event. The appellant, though partially successful, had the bulk of her claims dismissed, and no demonstrable error amounting to illegality was shown in the costs order.

Pleadings bind both the parties and the court; they define and narrow the issues and give fair notice. The allegation that the appellant had already been punished for the same wrongs was never pleaded at trial, so neither the trial Judge nor the parties had an opportunity to deal with it. New issues cannot be introduced by submissions, especially at the appellate stage.