Alex Kihonge Mukoma v Tropical Farm Management Kenya Ltd [2012] KEELRC 127 (KLR)

Section 41 imposes a statutory obligation on employers to notify and hear an employee's representations before termination where the grounds relate to misconduct, poor performance or incapacity. The termination letter showed the dismissal was for alleged misconduct. No evidence suggested the Claimant was notified or heard before the decision. The Respondent's practice of preparing the termination letter first and inviting the employee to review it falls far short of section 41. Warning letters from 2003, 2004 and 2009 were of historical relevance only.

Section 43 places a duty on the employer to prove the reasons for termination, and section 45 requires proof that those reasons are valid and fair. The Respondent's witness gave only vague reasons - that the Claimant could not work with the Respondent and his conduct warranted disciplinary action - without details or particulars, such as who was insulted or abused. No witnesses were called to substantiate misconduct, and the Claimant had earned bonuses in recognition of his contribution. The threshold requirements of sections 43 and 45 were therefore not met.

Having found the termination both procedurally and substantively unfair, the court awarded notice pay despite the summary dismissal route. Under section 49(1)(c), the court exercised its discretion to award the maximum twelve months' gross salary, weighing the Claimant's age, possibility of securing alternative employment and length of service. Severance pay failed for want of a pleaded redundancy; the retirement salary claim had no contractual or statutory basis; and the bonus claim was unproven.