Gladys Kakai v Pan Africa Chemicals Limited [2013] KEELRC 104 (KLR)
The bottom line
#Kenya's Industrial Court ruled a secretary was unfairly fired because her employer gave no reasons and never heard her side, awarding her Kshs.238,410.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the claimant's employment was unfair, wrongful and unlawful
The termination was unfair, wrongful and unlawful. No reasons were given in the termination letter dated 23rd March 2009; the reasons in the memo of 25th March 2009 were an afterthought; and the claimant was never heard before termination, offending Sections 41 and 45 of the Employment Act, 2007.
The court found the employer failed to prove a valid and fair reason for termination as required by Section 45(2) of the Employment Act. The reasons were only recited in an internal memo of 25th March 2009, two days after the termination letter, following the claimant's protest. No explanation was given to the claimant and no opportunity to be heard was afforded, offending Section 41. The claimant's salary increments and a letter of recommendation further undermined the employer's case of poor performance.
Whether the claimant was entitled to overtime pay for 1324 hours worked between 15th October 2004 and 25th March 2009
The claim was allowed; the respondent failed to rebut the claimant's evidence of extended working hours, given that she combined the duties of typist/secretary, receptionist and clocking officer.
The respondent did not bring out a clear case to rebut the claimant's working hours, bearing in mind that she combined the duties of typist/secretary, receptionist and clocking officer, implying she reported earlier and left later than all other employees. The court found she must be compensated for the extra hours at 1½ times the normal hourly rate.
Whether the claimant was entitled to 12 months' salary as compensation for unfair termination
Compensation equivalent to 12 months' gross salary at the time of termination was awarded as all elements of the prayers were proven in evidence and law.
Having found the termination unfair, wrongful and unlawful, the court held the claimant entitled to the relief sought and assessed compensation at the maximum of 12 months' gross salary (Kshs.149,040/=) in addition to the overtime award, finding all elements of the prayers proven in evidence and law.
Legal principles established
#- An employer bears the burden of proving both the validity of the reason for termination and that a fair procedure was followed; failure to give reasons at the time of termination and to hear the employee offends Sections 41, 43 and 45 of the Employment Act, 2007.
- Reasons for termination communicated by an employer only after the employee protests are an afterthought and not valid reasons for termination.
Court orders
#- 1.Payment of Kshs.89,370/= to the claimant for 1324 hours of extra hours/overtime worked from 15th October 2004 to 25th March 2009, calculated at 1½ times the normal hourly rate
- 2.Compensation equivalent to 12 months' salary (Kshs.149,040/=) for unfair and wrongful termination
- 3.Total award of Kshs.238,410/= in favour of the claimant
- 4.Costs of the cause to be borne by the respondent
- Jurisdiction invoked
- Original jurisdiction of the Industrial Court of Kenya over employment and labour relations disputes (claim of wrongful and unfair termination of employment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gladys Kakai v Pan Africa Chemicals Limited [2013] KEELRC 104 (KLR)", Case Analysis (2013). Cause No. 1861 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/104/eng@2013-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.