KENYA UNION OF JOURNALISTS AND ALLIED WORKERS V BRITISH BROADCASTING CORPORATION [2013] KEELRC 337 (KLR)
The bottom line
#Kenya's Industrial Court ruled the BBC unfairly dismissed two workers but awarded only two months' pay each, refusing reinstatement because three years had passed.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Grievant, Leonard Kihara, was unfairly dismissed
Dismissal was unfair for want of a hearing, but only 2 months' compensation awarded given the signed discharge form and payment beyond the dismissal date
There was no evidence that the Grievant was given a hearing as required by Section 41 of the Employment Act 2007 and the employee handbook. However, he had signed a discharge form accepting the dismissal with no further claims and was paid salary up to April, more than a month after dismissal. Re-instatement was barred by the 3-year rule and unsuitable on fraud grounds. Full 12-month compensation was therefore refused and 2 months' gross salary awarded.
Whether the 2nd Grievant, Eric Mbugua, was an independent contractor
He was an employee on monthly contracts under Section 37(1)(b) of the Employment Act 2007, and his termination was unfair
The original contract expired on 30th October 2007 but the Respondent continued his services without a break until 25th March 2009. His payslip showed PAYE, NSSF and NHIF deductions, unique to employees, and the payment schedule showed continuous employment. The independent contractor argument was rejected. No reasons for termination were given as required by Section 41, so the termination was unfair; 2 months' salary compensation was awarded given his just over 2 years of service.
Whether re-instatement was available
Re-instation was refused for both Grievants as more than 3 years had elapsed since dismissal
The Industrial Court Act 2011 does not permit re-instatement of an employee who has been out of employment for more than 3 years. The 1st Grievant was dismissed in March 2009 and the 2nd Grievant's 3 years lapsed in February 2012. In any event, the 1st Grievant's dismissal on grounds of irregularities and fraud made re-instatement unsuitable.
Legal principles established
#- An employee whose salary is paid monthly is deemed to be on monthly contracts, and PAYE, NSSF and NHIF deductions are unique to employees, rebutting an independent-contractor assertion.
- Termination without giving reasons and without a hearing under Section 41 of the Employment Act 2007 is unfair.
Court orders
#- 1.Award to Leonard Kihara of Kshs.147,316 being 2 months' gross salary as compensation for unfair dismissal
- 2.Award to Eric Mbugua of Kshs.38,564 as compensation for unfair termination
- 3.Payment within 30 days failing which the Claimant may apply for execution
- Jurisdiction invoked
- Reference to the Industrial Court Act 2011 following conciliation before the Minister for Labour
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KENYA UNION OF JOURNALISTS AND ALLIED WORKERS V BRITISH BROADCASTING CORPORATION [2013] KEELRC 337 (KLR)", Case Analysis (2013). Cause 516 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/337/eng@2013-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.