FREDRICK MURIITHI THUITA V FIVE FOURTY AVIATION LIMITED [2013] KEELRC 269 (KLR)

The termination letter referred only to 'discussions' without stating reasons, yet Section 46 read with Section 43 requires the employer to give and prove reasons for termination. The alleged misconduct (failed training, quarrelsome attitude) was undocumented, disputed, and never addressed through appraisal or the hearing process mandated by Section 41(1) and (2). The claimed mutual agreement was inconsistent with the issuance of a unilateral termination letter. The court therefore found the termination unfair.

The respondent asserted the extra hours were flown fraudulently without the Chief Pilot's permission, but produced no evidence: the colluding staff were not called and no statements were submitted. Given monthly schedules and systems, such fraud would have been easily detected. The contract itself provided for the incentive, and control over overtime hours beyond 65 per month lay with the employer, not the claimant. The claim was therefore confirmed and converted to Kshs at the Central Bank rate of 2nd May 2013.

The court accepted the respondent's submission that interest is discretionary upon good reasons and cannot be claimed as of right against the remedies provided under Section 49 of the Employment Act. No good reasons having been shown, the prayer was refused.

After extensive evidence and submissions, the parties drew a consent settling payment in lieu of three months' notice (Kshs.675,000), November 2011 salary (Kshs.225,000) and 16 leave days (Kshs.120,000). The claimant withdrew the claim for severance pay of USD 3,000. These heads were no longer before the court for determination.