JANE KATUNGE WAMBUA V AIRSIDE LIMITED T/A SWISSPORT (K) [2013] KEELRC 315 (KLR)
The bottom line
#A Kenyan court reduced a summary dismissal to normal termination, awarding notice pay but no compensation, because a first offence by a long-serving employee deserved proportionate treatment.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was wrongful - procedural fairness under Section 41
The Claimant was accorded a fair hearing: she wrote a statement, met her head of department, and was heard on 20th August 2009 represented by the Chief Shopsteward and Security Shopsteward, with minutes produced.
Section 41 of the Employment Act prescribes the disciplinary procedure before dismissal. Both parties admitted the sequence of events: the Claimant was asked to write a statement, was summoned to a meeting by her head of department, and was given a hearing on 20th August 2009 with union representation. Minutes of the hearing were annexed to the Reply. The court therefore found procedural compliance with Section 41.
Whether there was a valid reason for termination
The Claimant's failure to carry out baggage search procedures properly on a high-risk airline and her insubordination constituted valid reasons for disciplinary action, but summary dismissal was harsh given her clean prior record and length of service; the dismissal was reduced to normal termination.
The Claimant performed a substandard baggage search on a check-in counter for a high-risk airline and, when corrected, was uncooperative; she confirmed this in her own statement. She was also disrespectful and shouted at her supervisor. However, there were no prior incidents of poor performance or insubordination, and given her length of service, summary dismissal was disproportionate. The court exercised its discretion to convert the summary dismissal into normal termination, attracting notice pay.
Entitlement to terminal dues
Notice pay of Kshs.16,119 (based on basic pay, house and laundry allowance) and August 2009 salary of Kshs.14,716 awarded; leave pay, compensation and service pay refused; Certificate of Service to be issued.
Following the reduction to normal termination, Section 35, 36, 46 and 49 of the Employment Act entitled the Claimant to one month's remuneration in lieu of notice, computed on basic pay, house allowance and laundry allowance. The Respondent admitted non-payment of the August 2009 salary of Kshs.14,716. Leave had been overdrawn; the termination was not unfair so no compensation lay; NSSF and pension membership barred service pay under Section 37(5) and (6). A Certificate of Service was mandatory.
Legal principles established
#- An employee accorded a disciplinary hearing, including representation by shop stewards, has been given the fair hearing required by Section 41 of the Employment Act.
- A first incident of insubordination or poor performance by a long-serving employee may constitute a valid reason for termination, but summary dismissal for such a first incident is overly harsh and will be reduced to normal termination.
- An employee who is a member of NSSF and a staff pension scheme is not entitled to service pay under Sections 37(5) and 37(6) of the Employment Act.
Court orders
#- 1.Award of Kshs.16,119 as one month's salary in lieu of notice
- 2.Award of Kshs.14,716.00 being salary for August 2009
- 3.Refusal of payment for annual leave due
- 4.Refusal of compensation for loss of employment
- 5.Refusal of service pay
- 6.Respondent to issue the Claimant a Certificate of Service
- 7.No order for costs
- Jurisdiction invoked
- Original jurisdiction of the Industrial Court of Kenya over employment and labour relations disputes (Cause filed under the Memorandum of Claim procedure)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JANE KATUNGE WAMBUA V AIRSIDE LIMITED T/A SWISSPORT (K) [2013] KEELRC 315 (KLR)", Case Analysis (2013). Cause 769 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/315/eng@2013-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.