Brandlife Kenya Limited v Anne Koskei

The court noted the respondent's written defence to the show cause letter showing she sought particulars that were never availed. The hearing was conducted by RW2 as the sole panelist, and an examination of the hearing proceedings showed that the respondent was not supplied with the relevant documents before the hearing, nor did RW2 have the documents the respondent relied on. The court therefore agreed with the trial judge that the process was neither proper nor fair, upholding the finding that a County Manager could not properly be subjected to a one-on-one session with a director lacking relevant information.

The first charge alleged that on 24th February 2020 the respondent misrepresented the approved budget and profit margin. The respondent denied making any such misrepresentation, and no such communication appeared in the record of appeal or supplementary record. The trial court had found that the respondent gave reasonable projections and that no loss was proved, the 18% profit margin having been achieved. On re-appraisal, the Court found the trial court correctly held that no genuine reason for termination was proved.

The appellant argued that the salary cut was proposed by the respondent herself and effected with her consent, and that she did not challenge it until filing the claim. The Court, evaluating the record, held that as County Manager the respondent merely suggested how the company could cut costs by reducing employees' salaries. There was no consent between the parties to reduce her salary, nor was the reduction captured in the employment contract, so the trial judge's award of salary arrears was correct.

Section 10(3)(b) of the Employment Act mandatorily requires the contract to contain the length of notice the employee is obliged to give and entitled to receive. The appointment letter was expressive that the respondent should give two months' notice or two months' salary in lieu, but was silent on the notice the appellant should give. The Court applied the maxim 'What is good for the goose is good for the gander' and found no reason to fault the award of one additional month's salary in lieu of notice.

The appointment letter provided 21 working days' annual leave which 'may not normally be carried forward to the next year.' The Court read the word 'may' as connoting that carry-forward is not absolutely prohibited, but the instances where it could happen were not stipulated in the letter. Guided by section 28 of the Employment Act, which requires the remainder of annual leave to be taken within eighteen months of the leave-earning period, the Court found the trial court correctly awarded 21 days' salary in lieu of leave not taken.

The Court reiterated that remedies for unfair termination include the equivalent of up to twelve months' gross monthly salary, and that section 49(4) requires consideration of the employee's wishes, circumstances of termination, employee contribution, length of service, and mitigation. The trial judge had considered the aggravating circumstances: the seniority of the job, the unfair process during pregnancy, the salary reduction while expectant, and the anguish suffered. The appellant established no basis for the appellate court to interfere with that exercise of discretion.